Judge Mitchell L. Beckloff, Case 21STCP04161 2023-02-10 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP04161, Date: 2023-02-10 Tentative Ruling

Through his petition for writ of administrative mandamus, Petitioner, Aaron Colodne, seeks an order compelling Respondent, University of Southern California (USC), to set aside its September 22, 2021 decision imposing academic discipline on him. USC opposes the petition.

In the Spring of 2021, Petitioner enrolled in a data analysis course at USC (BAUD 425). The instructor for the course was Professor Chen. (AR 1-2.)

On May 2, 2021, a few days prior to the final examination in BUAD 425, an individual reached out to the online tutoring service, Wyzant. (AR 19, 20, 21, 48.) The individual wrote:

“Hi [tutor], thank you for taking my call. I will send you the study information and let me know [your] availability tomorrow to meet to go [through] the sample exam. Also the take home exam begins at 2 pm pt on Wednesday so would like to schedule a session starting then as well.” (AR 20.)

The Wyzant tutor asked the individual: “Ok. How long is the take home exam period that you me [sic] to help you with?” (AR 20.) The individual responded: “The exam is open for 3 hours but should only take around 90mins.” (AR 20.)

The individual also sent the tutor copies of the sample examination material Professor Chen had posted to Blackboard, an online platform, through Wyzant’s messaging platform.[1] (AR 20.) The individual subsequently emailed the same materials to the tutor using an iCloud email address under the signature: “Best, Aaron.” (AR 21.)

This dispute turns on the identity of the individual who communicated with the Wyzant tutor.

On May 3, 2021, Professor Chen submitted a report of academic integrity violation to USC’s Student Judicial Affairs and Community Standards (SJACS). Professor Chen alleged Petitioner solicited a third party to provide external assistance on an examination. Professor Chen also alleged Petitioner transmitted examination material to a third party in violation of course instructions posted on Blackboard. (AR 98-101.)

On June 1, 2021, Petitioner met with and was interviewed by a review officer with SJACS to discuss Professor Chen’s report in the context of a conduct review.[2] (AR 9-12.) The review officer also met with Petitioner on June 10 and 11, 2021. (AR 11-12.)

On July 12, 2021, SJACS issued its summary administrative review (SAR) finding Petitioner violated provisions in USC’s Student Conduct Code. (AR 75, 80.) The SAR concluded Petitioner committed academic dishonesty. (AR 75-82.) As a sanction, SJACS determined Petitioner’s degree from USC should be delayed, and Petitioner would receive a grade of fail for BAUD 425. (AR 81.) In addition, SJACS required Petitioner to write a reflective paper about “ethical decision-making.” (AR 81.)

On July 23, 2021, Petitioner appealed SJAC’s decision on the following grounds: (1): new evidence had become available which is sufficient to alter the decision and which Petitioner was not aware of or could not have been reasonably obtained at the time of the original conduct review; (2) the sanction imposed is grossly disproportionate in light of the Student Conduct Code violation(s) found; and (3) the review officer deviated from USC’s rules and/or regulations, in a way which materially deprived Petitioner of the procedural protections detailed in the Student Conduct Code. (AR 84.)

The Student Behavior Appeal Panel (Appeal Panel) met on September 2, 2021 to consider Petitioner’s appeal. (AR 92.) The Appeal Panel recommended the conclusions and sanctions imposed by SJACS as discussed in the SAR be affirmed. (AR 92-96.)

On September 22, 2021, after reviewing the Appeal Panel’s recommendation, Winston B. Crisp, Vice President for Student Affairs, affirmed SJACS’s findings. Accordingly, USC found Petitioner violated sections 11.12.B, 11.13.A, 11.13.C, 11.15.A and 11.21 of the Student Conduct Code. Crisp affirmed the sanctions. (AR 97.)

Petitioner seeks relief from the court pursuant Code of Civil Procedure section 1094.5.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc. § 1094.5, subd. (b).)

Code of Civil Procedure section 1094.5’s “ ‘ requirement of a “ ‘fair trial’ ” means that there must have been “a fair administrative hearing.” ’ ” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 239.) The fairness of an administrative proceeding is reviewed as a question of law, reviewed under the independent judgment standard. (Doe v. Westmont College (2019) 34 Cal.App.5th 622, 634.) That is, the court exercises its independent judgment on legal issues.

It is well established in student discipline cases this court reviews USC’s decision under the substantial evidence standard as to any factual findings made by USC. (Doe v. University of Southern California (2018) 28 Cal.App.5th 26, 35-36.)

On substantial evidence review, “the trial court will affirm the administrative decision if it is supported by substantial evidence from a review of the entire record, resolving all reasonable doubts in favor of the findings and decision.” (M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607, 616.) The court must “accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the [administrative decision]. [Citation.] Credibility is an issue of fact for the finder of fact to resolve [citation], and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact. [Citation.]” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1074.)

Under this “deferential” standard of review, the court presumes the correctness of the administrative ruling. (Patterson Flying Service v. California Dept. of Pesticide Regulation (2008) 161 Cal.App.4th 411, 419; see also Doe v. Regents of the University of California, supra, 5 Cal.App.5th at 1073 [substantial evidence standard is “extremely deferential standard of review”].)

Finally, the court exercises its independent judgment on legal issues in administrative mandamus. (Doe v. University of Southern California, supra, 28 Cal.App.5hh at 34. [“We review the fairness of an administrative proceeding de novo.”])

Petitioner challenges USC’s decision on several grounds. First, he argues USC denied him a fair hearing. Second, he contends the evidence does not support the findings. Third, he contends USC filed to comply with their own policies and procedures when it imposed discipline on him. Finally, Petitioner argues the sanction USC imposed is excessive.

Fair hearing requirements are “flexible” and entail no “rigid procedure.” (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1807.) “Although no particular form of student disciplinary hearing is required under California law, a university is bound by its own policies and procedures.” (Doe v. Regents of University of California, supra, 5 Cal.App.5th at 1078.)

“[F]undamental fairness requires that a disciplinary proceeding afford an accused student ‘a full opportunity to present his defenses.’ ” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062.) “[T]o comport with due process,” the university's procedures must “ ‘be tailored, in light of the decision to be made, to “the capacities and circumstances of those who are to be heard,” [citation] . . . to insure that they are given a meaningful opportunity to present their case.’ ” (Doe v. Regents of University of California, supra, 5 Cal.App.5th at 1078.)

“[A]n accused student has an interest to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. . . . Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.” (Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1066 [cleaned up].) “On the other hand, a formalized hearing process would divert both resources and attention from a university's main calling, that is education. Although a university must treat students fairly, it is not required to convert its classrooms into courtrooms.” (Ibid. [Cleaned up.])

Petitioner contends USC failed to conduct a fair and through investigation when it “disregard[ed] key witness testimony”—the testimony of Petitioner’s mother, Katherine Saperstein. (Memo 7:25-26.) Such testimony, according to Petitioner, “proved that [Petitioner] did not engage in any conduct that would violate the University’s policies.” (Memo 7:27.)

The record does not support Petitioner’s argument that USC “refus[ed] to hear her testimony.”[3] (Memo 8:1.)

During Petitioner’s conduct review, Petitioner alleges he offered to have his mother testify about the alleged misconduct, but the review officer “said it shouldn’t make a difference.” (AR 85.) Petitioner discussed with the SJACS review officer his mother’s involvement with “contacting resources in and outside of USC to find help for him to study for the final exam.” (AR 9.) Based on Saperstein’s letter to the Appeal Panel, Saperstein would have explained to the review officer she used her son’s email account to find a tutor, sent the tutor the examination materials at issue, and discussed the examination details with the tutor. (AR 85-88 [Saperstein letter for Appeal Panel].) Also, Saperstein would have admitted she communicated with the tutor “as if” she was Petitioner because Petitioner did not want to “deal with [] interviewing tutors.” (AR 86.)

Other than Petitioner’s statement in his letter to the Appeal Board, Petitioner does not cite anything in the administrative record to suggest SJACS refused to interview his mother. The review officer’s notes indicate Petitioner’s mother had “been contacting different offices within the university.” (AR 11.) The review officer “advised [Petitioner] that he may sign a confidentiality waiver and review advisor guidelines if he would like his mother to be a part of the conduct review process.” (AR 11.) Petitioner recalled receiving the forms, and the review officer indicated she would send them to him again by email. (AR 11.) Nothing suggests Petitioner signed the waivers so that his mother could “be a part of the conduct review process.” (AR 11.) The review officer’s detailed notes do not suggest Petitioner asked that the review officer interview anyone other than him.[4]

In fact, Petitioner admitted after SJACS issued its SAR he made a conscious decision not to include his mother in the conduct review. “Initially, [Petitioner] wanted to proceed with the investigation without having Ms. Saperstein make an actual statement due to her health. He believed it would be sufficient to simply relay the truth of Ms. Saperstein’s involvement to the University.” (Opening Brief 2:18-21.) Petitioner reported to an advisor he “realize[d] how the lack of [his mother’s] testimony in this case may have gotten” him to where he had to appeal the SJACS decision. (AR 204.) He admitted, “Quite frankly, it was just difficult for [him] to accept that [he] would have to involve her.” (AR 204.)[5]

Petitioner had the opportunity to present relevant evidence to SJACS—including the identity of witnesses, such as Saperstein. (AR 289.) Petitioner met with SJACS review officer on three separate occasions. There is no suggestion Petitioner offered any evidence—other than his own statements—in defense of Professor Chen’s allegations.

USC does not explain why Petitioner would have had to sign the waiver forms for Saperstein to participate as a witness in the conduct review. Petitioner correctly notes the waiver forms would have provided Saperstein access to relevant documents in the context of acting as Petitioner’s advisor, not a witness. (AR 289-299.) Thus, Petitioner’s failure to sign and return waiver forms does not excuse USC’s failure to interview Saperstein, assuming Petitioner made such a request.

The weight of the evidence does not support a finding Petitioner asked the review officer to interview Saperstein. Petitioner admitted he did not want to involve his mother during the conduct review and it was only after SJACS issued its SAR that Petitioner decided he should have had Saperstein interviewed. (AR 204.) The review officer’s detailed notes do not suggest Petitioner requested the review officer interview his mother during any of the three meetings she had with Petitioner. (AR 9-11.) In fact, given the review officer’s conversation with Petitioner about involving his mother “in the conduct review process” and the form waivers as well as the lack of any evidence Petitioner signed such waivers, it appears Petitioner made no efforts to have Saperstein interviewed.

Certainly, SJACS did not fail to consider the evidence before it concerning Saperstein and Petitioner’s alleged misconduct. SCJACS considered Petitioner’s explanation which included a discussion about Saperstein and her efforts to find a tutor.[6] SJACS did not find Petitioner’s version of the events credible; SCJACS found inconsistencies in Petitioner’s explanation to be inconsistent. (AR 3-6.)

Petitioner submitted Saperstein’s letter to the Appeal Panel. The letter corroborated Petitioner’s version of the events. The Appeal Panel, however, found the letter did not constitute new evidence under USC’s policies.[7] (AR 278.)

Petitioner has not demonstrated the Appeal Panel erred when it refused to consider the evidence because it was not new. Petitioner makes no showing the evidence—a letter from his mother—was unavailable at the time of his conduct review.

Instead, Petitioner argues: “[Petitioner] was able to testify about his mother’s actions based on his knowledge, but the explicit details, including Ms. Saperstein’s mindset and how she went about the incident, could only come from her. All that information would have been new to Ms. Saperstein’s testimony.” (Opening Brief 8:18-21.) Petitioner’s argument does not address USC’s definition of “new evidence” under SCampus and USC’s disciplinary process.

Despite its finding Saperstein’s letter did not constitute new evidence under USC’s disciplinary policies, the Appeal Panel nonetheless considered the evidence. (AR 278. [“The Panel conceded that the student might not have understood the review officer’s reasoning for providing the documents and elected to review Saperstein’s statement.”]) The Appeal Panel found SJACS had and considered the information from Saperstein during the conduct review. (AR 278.) The Appeal Panel “concluded that based on the professor’s explicit instructions, it was [Petitioner’s] responsibility to ensure that the course materials provided to them was in a secure folder and was not accessible by other parties, including their mother.” (AR 279.)

Based on the evidence, the court finds Petitioner has not met his burden of demonstrating USC denied him a fair hearing. The court finds at both the conduct review and appeal, USC considered all of the evidence marshaled when deciding to impose discipline upon Petitioner. The court also finds SJACS did not refuse to interview Petitioner’s mother; Petitioner chose not to involve her until after SJACS rendered a decision adverse to him.

Petitioner argues USC failed to comply with its own policies and procedures when it deprived Petitioner of an opportunity to provide the names of relevant witnesses and evidence. USC’s Student Conduct Code guarantees a student a “fair and impartial review of the incident.” (AR 289.)

To be sure, “[w]here student discipline is at issue, the university must comply with its own policies and procedures.” (Doe v. Regents of the University of California, supra, 5 Cal.App.5th at 1073.)

Petitioner’s argument about USC’s alleged failure to comply with its policies and procedures is derivative of his claim SJACS refused to interview Saperstein. Petitioner contends his conversation with the review officer about waiver forms confused him. (Opening Brief 12:23-13:4.)

The court finds the argument unpersuasive. The court’s reasoning earlier is equally applicable here. In sum, Petitioner elected not to involve Saperstein until after SJACS issued its SAR imposing discipline. (AR 204.)

Petitioner has failed to demonstrate USC failed to comply with its own policies and procedures.[8]

Finally, Petitioner argues USC’s findings are not supported by the evidence. Petitioner contends USC considered the evidence of single witness while it disregarded statements from Saperstein.

First, as discussed earlier, USC did not disregard the evidence from Saperstein. The Appeal Panel noted the review officer considered Petitioner’s explanation which included a description of his mother’s acts. The Appeal Panel actually considered the substance of Saperstein’s letter and found all of the information had already been considered by SJACS. Of course, Petitioner elected not to involve his mother until the appeal process.

Second, SJACS could rely on the evidence submitted by the tutor. The tutor’s evidence supports USC’s findings. The evidence is substantial evidence.

To reiterate, on substantial evidence review, “the trial court will affirm the administrative decision if it is supported by substantial evidence from a review of the entire record, resolving all reasonable doubts in favor of the findings and decision.” (M.N. v. Morgan Hill Unified School Dist., supra, 20 Cal.App.5th at 616.) The court must “accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the [administrative decision]. [Citation.]” (Doe v. Regents of the University of California, supra, 5 Cal.App.5th at 1074.)

“In general, substantial evidence has been defined in two ways: first, as evidence of ponderable legal significance . . . reasonable in nature, credible, and of solid value; and second, as relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” (Ogundare v. Department of Industrial Relations (2013) 214 Cal.App.4th 822, 830 [cleaned up].)

As USC notes, the tutor had Petitioner’s email address and phone number. The phone number and email address both reference Petitioner by name. The person communicating with the tutor responded as Petitioner. (AR 19 [text “Aaron C.”], 21 [email “Best, Aaron”], 48 [phone call “may have” identified himself as Aaron”].) In fact, the tutor blocked Petitioner’s phone number—not Saperstein’s phone number. (AR 48; Opening Brief 4:9.) In addition, the person communicating with the tutor had unique course details that USC found would not likely be known by Saperstein. (AR 20.)

Based on the foregoing, the court finds Petitioner has not met his burden of demonstrating USC’s decision is not supported by substantial evidence.

Petitioner argues the penalty imposed on him by USC was excessive and unfair. (Opening Brief 13:15-14:11.)

The court’s standard of review concerning the imposition of penalty is distinctly different than that for USC’s evidentiary findings. “[T]he propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966.) “A manifest abuse of discretion exists if the penalty was arbitrary, capricious, or patently abusive.” (Oduyale v. California State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 118.)

“If reasonable minds could differ over the appropriateness of a penalty imposed, there is no manifest abuse of discretion.” (Ibid.) “ ‘Even if a penalty were to appear to be too harsh according to the court's evaluation, the court is not free to substitute its own discretion for that exercised by the administrative agency.’ ” (Landau v. Superior Court (1998) 81 Cal.App.4th 191, 221.)

Petitioner’s penalty argument is largely undeveloped. He neither cites legal authorities nor the administrative record.

Moreover, Petitioner fails to address the appropriateness of the penalty in the context of USC’s decision—and instead continues to argue the decision was wrong. Specifically, Petitioner argues “delaying the degree of a soon-to-be graduated student and requiring them to write a reflective paper on ethical decision making when the student did not participate in any sort of misconduct is grossly unfair.” (Opening Brief 13:17-19; see also 14:1-2.) While Petitioner is correct, the argument is based on an incorrect assumption—Petitioner committed no wrongdoing. USC found Petitioner engaged in misconduct. Petitioner’s failure to consider the appropriateness of the penalty in light of USC’s findings fails to place the penalty in an appropriate framework.[9]

As such, Petitioner does not carry his burden of demonstrating the sanction USC imposed constituted a manifest abuse of discretion. (The court notes more severe sanctions—suspension or expulsion—are recommended sanctions for misconduct where someone other than the student completes coursework on a student’s behalf.) (AR 280.)

Petitioner claims he is entitled to an award of attorney’s fees pursuant to Government Code section 800. Government Code section 800 authorizes such an award, however, only where “the complainant . . . prevails in the civil action . . . .” As Petitioner has not prevailed in this proceeding, Petitioner has not demonstrated any entitlement to attorney’s fees. Accordingly, Petitioner’s request for attorney’s fees is denied.

[1] In advance of the final examination, Professor Chen posted sample examination materials on Blackboard to help students study. Professor Chen made clear to the students that the sample materials were not for distribution. He wrote: “This exam and its answer key are COPYRIGHTED. They may not be copied, reproduced, sold, published, broadcast, disseminated, shared, or otherwise communicated to third parties whether in person, online or otherwise and whether or not for profit or nonprofit use.” (AR 98.)

[2] USC charged Petitioner with various acts of misconduct, including distribution of notices or recordings based on university classes without the permission of the instructor, use or attempted use of external assistance during an examination as well as any act that gains or is intended to gain an unfair academic advantage. (AR 152.)

[3] Petitioner’s claim he “repeatedly told investigators to contact” his mother is belied by his own statements he did not want to get his mother involved in the disciplinary proceedings. (Reply 3:25.) As the court views the whole record, Petitioner made one statement in his appeal letter to support his claim the evidence he offered on appeal was new under USC’s appeal procedures. (AR 85.) Petitioner admitted before submitting his appeal letter “it was difficult for him to accept that [he] would have to involve” his mother in the disciplinary proceedings, and his failure to do so resulted in an adverse decision. (AR 204.)

[4] Petitioner now suggests he was confused about the waivers. The court is unpersuaded—based on the whole record—the waivers confused Petitioner. The review officer’s notes detail the discussion between Petitioner and her about Petitioner’s mother participating in the conduct review process. The notes are clear the review officer: “advised [Petitioner] that he may sign a confidentiality waiver and review advisor guidelines if he would like his mother to be part of the conduct review process.” (AR 11.) The review officer indicates she would send the forms (a second time) to Petitioner. (AR 11.)

[5] Petitioner also admits in his Opening Brief that he elected not to get his mother involved. Petitioner argues he “believed he could take care of the investigation himself if he just told the truth about what may have happened to his mother. He did not want to get his mother involved due to being in recovery from multiple health conditions . . . . (AR0087.)” (Opening Brief 10:3-5.) In fact, it was not until after SJACS issued its SAR that Saperstein “urged [Petitioner] to let her come forward . . . .” (Opening Brief 2:22-23.)

[6] The Appeal Panel noted Petitioner “had previously shared the information included in Saperstein’s statement with the SJACS review officer.” (AR 278.)

[7] Section 15.02.I of the SCampus defines “new evidence” as evidence that “has become available which is sufficient to alter the decision and which appellant was not aware of or could not have been reasonably obtained at the time of the original review.” (AR 90.)

[8] Petitioner also argues “the administrative record does not reflect whether the professor was questioned again based on [Petitioner’s] initial testimony.” (Opening Brief 12:19-20.) Petitioner fails to put this argument into any framework in administrative mandamus. Importantly, Professor Chen merely received the initial report of misconduct—he was not a witness to it. Thus, Professor Chen is not a material witness to the alleged misconduct.

[9] In fact, Petitioner concedes “the imposed sanctions were fair and reasonable for a student who committed an act of academic dishonesty.” (Opening Brief 13:16-17.)