Filed 11/14/22 Christenfeld v. Regents of the University of Cal. CA1/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
NICHOLAS CHRISTENFELD,
Plaintiff and Appellant,
A162690
v.
REGENTS OF THE UNIVERSITY (Alameda County
OF CALIFORNIA, Super. Ct. No. RG19036427)
Defendant and Respondent.
Appellant Nicholas Christenfeld, a psychology professor, participated in
a process that resulted in the graduate-school admission of a student with
whom he was having a sexual and romantic relationship. After this was
discovered, he and the university entered into an informal agreement in
which he agreed to certain terms, one of which provided that disciplinary
charges would be filed if the university received further credible reports that
he violated the faculty’s code of conduct or the university’s sexual harassment
policy.
Years later, Christenfeld sent unsolicited pornographic images to a
different female student using his university email account, although the
parties agree that the student was not the intended recipient. The university
filed disciplinary charges seeking to dismiss him. After a disciplinary
committee agreed with that penalty and it was adopted by respondent
1
Regents of the University of California (the Regents), Christenfeld sought a
petition for a writ of administrative mandate, which the trial court denied.
In this appeal, Christenfeld argues that he did not receive a fair disciplinary
hearing, that the disciplinary committee’s findings were not supported by
sufficient evidence, and that his termination was an abuse of discretion. We
affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Christenfeld began working at the University of California, San Diego
(UC San Diego or the university) in 1991. He was a professor in the
psychology department.
Jane Doe 1 transferred to UC San Diego from community college in fall
2010. During her first semester there, she took an introduction to social
psychology course taught by Christenfeld. Later, in winter 2012, Jane Doe 1
took a smaller seminar with Christenfeld. She began visiting him during his
office hours, where they would talk for several hours about social psychology,
how she might prepare to attend graduate school, and other topics.
Christenfeld is 25 years older that Jane Doe 1, which meant that at the time
he was more than twice her age. They sometimes discussed sexuality (the
subject of her honors thesis), which led to more generalized discussions about
sexual topics, as well as flirting.
After the course ended, the two continued to communicate by email,
and in April 2012 they met for the first time outside office hours. They
quickly began a romantic and sexual relationship, which spanned the next
four years.
A different professor, who was Jane Doe 1’s primary academic mentor
and her honors thesis advisor, let Doe 1 use office space in her lab.
2
Christenfeld and Jane Doe 1 had sex dozens of time in that space because the
room was bigger and more private than Christenfeld’s office, and Jane Doe 1
did not often see the professor in that lab.
In November or December 2012, Jane Doe 1 applied to the UC San
Diego psychology department’s Ph.D. program. Christenfeld did not want to
“officially” recuse himself from her admission process, but they discussed how
he could avoid influencing her admission to the program.
UC San Diego’s psychology department had a total of around six areas
of study, including developmental psychology and cognitive psychology. Jane
Doe 1 was interested in social psychology, one of several areas of study within
psychology. Christenfeld was one of four social psychology faculty members
in a department of around 25 people.
One-on-one interviews for prospective psychology graduate students
took place in February 2013. Jane Doe 1 and Christenfeld knew in advance
that he was one of three people who would separately be interviewing her,
though neither one of them requested that he be her interviewer.
Christenfeld interviewed 14 people that year, or more than twice what would
be considered a lot of people to interview, and he could have requested not to
interview Jane Doe 1. When Christenfeld interviewed Doe 1, they met for
around 30 minutes and mostly discussed topics unrelated to her fitness for
the program.
With most applicants, the three interviewers would separately evaluate
the candidate. Christenfeld suggested that the three interviewers send in
their recommendations regarding Jane Doe 1 as a group. Jane Doe 1’s
academic mentor (the one whose lab space Doe had been using to have sex
with Christenfeld) found the suggestion “odd” and believed it was designed so
that Christenfeld could “make sure that [Jane Doe 1] did indeed get into the
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program.” The professor explained that “when we did meet as a group, he
[Christenfeld] was very positive about her, and I think that then you can
persuade people, yes, this is somebody that we—and you’re not on paper
having said ‘I want this graduate student for my own.’ ” Christenfeld did not
evaluate Doe 1 through the department’s online system. But when the
admissions committee asked for individual rankings, Christenfeld sent an
email stating he thought Doe 1 was one of the two best applicants for the
graduate program. Jane Doe 1 was accepted into the graduate program.
In the middle of March 2013, after Jane Doe 1 had been admitted, she
and Christenfeld met in the afternoon to have sex in the lab space.
Afterward, they were lying on the ground fully clothed and talking while
Jane Doe 1 waited to hear from a postdoctoral researcher who was visiting
from out of town. Doe thought the researcher would call or text first so they
could meet to discuss a project, but instead the researcher knocked on the
door along with a second person. It took around a minute for Doe 1 to answer
the door, and when she opened it she blocked the door from fully opening.
Her hair was messy, her face was flushed, the breast area of her tank top was
wet, and it appeared to the researcher that she had just had sex. Doe 1
would not let the visitors into the lab and told them she was with
Christenfeld analyzing data.
The next day, the visiting researcher told the chair of the psychology
department and two other psychology professors about the incident. The
chair then reported it to the university’s office for the prevention of
harassment and discrimination, which began an investigation.
Christenfeld communicated “quite a bit” with Jane Doe 1 about how to
handle investigators’ questions. The two of them continued to engage in
sexual activity. Jane Doe 1 met with the head of the office of prevention of
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harassment and discrimination to discuss her relationship with Christenfeld.
In an effort to protect Christenfeld, she reported that she had not had sexual
intercourse in the lab on the day they were discovered there. Doe 1 also
misrepresented to the investigator that she was no longer in a relationship
with Christenfeld, again in an effort to protect him. Christenfeld also
discussed with Jane Doe 1 his own meetings with investigators. They
discussed his “clever argument” that Christenfeld did not reasonably have
supervisory authority over Jane Doe 1 because she “could be considered
outside the social psychology area, in a different area of the psychology
department” from Christenfeld.
Two members of the psychology department concluded in a report for
the department chair that Christenfeld had not unduly intervened in the
admissions process to have Jane Doe 1 accepted into the graduate program.
But they found that Christenfeld clearly had engaged in behavior that was
ethically and morally questionable, and that at the very least Christenfeld
demonstrated poor judgment. They also found that it was unclear whether
Christenfeld recognized there was a problem with his behavior. The office for
the prevention of harassment and discrimination concluded that it was “a
very close call” and that the “violation regarding evaluative authority [was]
somewhat technical in nature,” but it also concluded that Christenfeld had
been dishonest with his colleagues, which “damage[d] the integrity of the
[graduate] admissions process.” And that turned out to be the case. As Jane
Doe 1’s former mentor later explained, at least one “graduate student[] drew
the conclusion that the way you get into the program is you sleep with a
professor and you get in.”
In September 2013 Christenfeld and UC San Diego entered into an
informal resolution agreement to resolve the complaint (informal agreement).
5
Christenfeld agreed, among other things, not to enter into a romantic or
sexual relationship with any student for whom he had or could be expected to
have academic responsibility. He also agreed to attend a professional
boundaries course, to hold office hours with the door open, and to refrain from
holding office hours at campus pubs or other places that serve alcohol. The
agreement further provided: “If at any future time, additional credible
reports of such behavior on Professor Christenfeld’s part (regarding violations
of the Faculty Code of Conduct or the UC Policy on Sexual Harassment) are
reported to the Office for the Prevention of Harassment and Discrimination,
Professor Christenfeld understands and agrees that the EVC [Executive Vice
Chancellor] for Academic Affairs will immediately file charges in P&T
[Committee on Privilege and Tenure] and recommend discipline up to and
including termination, and provide P&T with the June 21, 2013 report and
findings already issued by OPHD [the office for the prevention of harassment
and discrimination], along with the new credible reports.”
As discussed in more detail below, Christenfeld apparently contends
that the informal agreement was akin to a settlement or plea agreement,
whereby the university was forever precluded from ever pursuing discipline
against Christenfeld based on his relationship with Jane Doe 1. Members of
the psychology department saw it differently. The chair of the department
viewed it as a “you’re-on-thin-ice type of statement.” The professor who later
became department chair considered that Christenfeld “was effectively . . . on
probation, that any further incident, then he would be brought up on a
recommendation of termination.”
Christenfeld and Jane Doe 1 continued to have a sexual relationship
after Christenfeld entered into the informal agreement. Christenfeld did not
feel that the agreement required him to end his relationship with Doe 1
6
because, as he understood it, the agreement referred only to entering into
new relationships. Jane Doe 1 ultimately transferred in August 2015 to a
different school on the east coast and by June 2016 had ended her ties with
Christenfeld.
The events leading to the discipline that directly gave rise to these
proceedings took place in April 2018. According to Christenfeld, he intended
to send an email to a woman with whom he communicates almost exclusively
electronically. When he addressed the email using his UCSD.edu account, he
mistyped a letter of the intended recipient’s email address, and the email
system auto-filled a different address, that of an undergraduate student
(Jane Doe 2), who previously had emailed a final exam to him. The email
Christenfeld sent had the subject line “w, now?” and contained two
pornographic images. The images showed two different women, both holding
erect penises between their exposed breasts.
According to the chair of the psychology department, Jane Doe 2 was
“very distraught” and cried when she received the email. She experienced
anxiety for which she sought medical treatment. According to an
investigative summary of the incident, Jane Doe 2 had planned to take a
summer course with Christenfeld but decided against it after receiving his
email, which meant she ended up having to enroll in two summer sessions
instead of one.
The email was reported to the university’s office for the prevention of
harassment and discrimination, which investigated. The office notified
Christenfeld of the complaint against him in early June, which is the first
time he realized he had misaddressed his email. Christenfeld emailed an
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apology to Doe 2 and told her he had meant to send the email to his wife.1
His apology email stated, “I am profoundly sorry for the bewilderment and
horror this mistake must have caused, and am filled with shame and
remorse. I hope you will accept my heartfelt apology, and that this careless
fiasco will not poison your memories of [my] class.” An investigator reported
that Jane Doe 2 thought Christenfeld should not have sent the apology email,
which “also affected her and . . . was ‘too much for [her].’ ”
The chair of the psychology department concluded that Christenfeld’s
continued interaction with students and continued ability to use university
resources created a strong risk of immediate and serious harm to the
university community. He recommended that Christenfeld be placed on
involuntary leave.
In December 2018 the executive vice chancellor for academic affairs
submitted formal charges to the committee on privilege and tenure
(disciplinary committee), based both on Christenfeld’s relationship with Jane
Doe 1 and on his sending the email to Jane Doe 2. The vice chancellor
alleged that Christenfeld violated both the University of California’s faculty
code of conduct and the university’s policy on sexual violence and sexual
harassment.
The disciplinary committee held a three-day evidentiary hearing in
May 2019. Before witnesses testified, Christenfeld’s attorney objected that
Jane Doe 2 was not appearing as a witnesses and was therefore unavailable
1 Christenfeld later realized that the email in question was in fact
intended for another woman. An investigator spoke with the woman
Christenfeld said was the intended recipient. She said they did not generally
send sexual photos but speculated that Christenfeld might have sent them
because she did not know what certain terms meant. The woman did not
testify at Christenfeld’s disciplinary hearing.
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for cross-examination. The university’s attorney stated that Jane Doe 2 was
unavailable because she declined to testify and the university lacked
subpoena power in administrative proceedings. The investigator who
interviewed Jane Doe 2 also declined to testify, as she had been appointed to
be a superior court judge and said she could not ethically testify. The
university’s attorney further argued that it was unnecessary in any event to
cross-examine Doe 2 because her credibility was not at issue. The committee
chair denied the objection.
Jane Doe 1 testified at the hearing. She explained that over the
previous seven years she had matured, had participated in intensive therapy,
and had “come to realize just how unhealthy and unbalanced” her
relationship with Christenfeld had been. She came to believe that they had
“what is called in clinical psychology a traumatic bond,” which is when
someone who is being victimized by someone else actually creates a “very
strong bond” with them, similar to the Stockholm syndrome. Although
Christenfeld never “specifically forced” Doe 1 to have sex, there were times
she did things with him sexually that she “didn’t really want to do” (including
“violent things”), which “created a very negative relationship for [her] to sex.”
She believed that Christenfeld was a predator who had exploited her. Doe 1
was concerned that what happened with Jane Doe 2 was caused by her
(Doe 1’s) failure to have been forthright about her relationship with
Christenfeld. Doe 1 was motivated to testify because she would “feel very
guilty” if someone else “f[ell] prey” to Christenfeld if she did not testify
truthfully.
Christenfeld also testified at the hearing. He expressed remorse for his
actions and said he apologized to Jane Doe 1. He claimed, though, that the
9
university was not seeking the truth but instead appeared “to be agenda
pushing,” which “surprised” him.
The disciplinary committee prepared a 14-page report for the
university chancellor. As for Jane Doe 1, the committee found that
Christenfeld’s behavior violated three provisions of the faculty code of
conduct and one provision of the policy against sexual violence and sexual
harassment. Specifically, committee members found that by entering into
and continuing a relationship with a student interested in social psychology
(his area of expertise) and evaluating her application to the graduate
program, Christenfeld violated policies prohibiting (1) entering into a
romantic or sexual relationship with a student for whom the person has, or
reasonably expects to have, academic responsibility (instructional,
evaluative, or supervisory), and (2) exercising that academic responsibility.
The committee further found that Christenfeld’s evaluation of Jane Doe 1
violated a policy prohibiting conflicts of interest and amounted to a serious
violation of policies governing professional conduct. As for Jane Doe 2, the
committee found that Christenfeld’s behavior violated the faculty code of
conduct and the sexual harassment policy. Specifically, the committee found
that Christenfeld’s email to Doe 2 was sexual harassment that created a
hostile environment as defined by the university (discussed further below),
and the sexual harassment was a serious violation of policies governing
professional conduct.
A majority of the committee members endorsed a recommendation that
Christenfeld be dismissed and that emeritus status be denied. The Regents
ultimately approved the recommendation that Christenfeld be terminated
and his emeritus status be denied.
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Christenfeld filed a petition for writ of administrative mandate (Code
Civ. Proc., § 1094.5) in the trial court seeking an order directing the Regents
to set aside its administrative findings and decision imposed against him.
Both his original petition and his first amended petition alleged that because
he possessed a vested, fundamental right to his tenured faculty position, he
was entitled to have the trial court exercise its independent judgment in
reviewing the disciplinary committee’s findings (Code Civ. Proc., § 1094.5,
subd. (c)). But in his opening brief in support of his petition, Christenfeld
argued that the disciplinary committee’s findings against him were “not
supported by substantial evidence, much less clear and convincing evidence.”
The Regents’ opposition argued that the trial court was to review the
disciplinary committee’s findings for substantial evidence. Christenfeld’s
reply brief again asserted that the findings against him were not supported
by substantial evidence. In its order denying the petition, the trial court
concluded that the committee’s findings of policy violations were supported
by substantial evidence.
II.
DISCUSSION
A. Christenfeld Was Not Denied a Fair Administrative Hearing.
1. The Standard of Review.
For Christenfeld to have prevailed in the superior court on his petition
for a writ of administrative mandate, he was required to show that the
university “(1) acted without, or in excess of, its jurisdiction, (2) deprived
[him] of a fair administrative hearing, or (3) committed a prejudicial abuse of
discretion.” (Doe v. Regents of University of California (2021) 70 Cal.App.5th
521, 532.) “Abuse of discretion is established if the [agency] has not
proceeded in the manner required by law, the order or decision is not
11
supported by the findings, or the findings are not supported by the evidence.”
(Code Civ. Proc., § 1094.5, subd. (b); see also Doe at p. 532.)
Christenfeld first argues he was deprived of a fair disciplinary hearing
in several ways. “When reviewing a claim that a petitioner did not receive a
fair hearing, we uphold the trial court’s decision if it is supported by
substantial evidence, but when the evidence is substantially undisputed, the
issue becomes a question of law, which we review de novo.” (Doe v. Regents of
University of California, supra, 70 Cal.App.5th at p. 533.)
2. Jane Doe 2’s Unavailability for Cross-examination Did Not
Deprive Christenfeld of a Fair Hearing.
Christenfeld first renews his argument that he was deprived a fair
hearing because he was denied the opportunity to cross-examine Jane Doe 2.
We are not persuaded.
The university’s academic senate bylaws state that parties to
disciplinary hearings have the right “to conduct such cross examination as
may be required for a full and true disclosure of the facts.” (Italics added.)
Where an accused in university disciplinary proceedings faces serious
consequences and findings are likely to turn on the credibility of the
complainant, the complaining witness must be before the trier of fact so that
the person’s credibility may be evaluated. (Doe v. Regents of University of
California, supra, 70 Cal.App.5th at pp. 534–536.)
Christenfeld relies on a series of cases where college students were
accused of, but denied, having nonconsensual sexual contact with other
students. The courts in those cases concluded that the students had been
deprived of a fair hearing because the complainants had not been available
before the fact-finders, who thus were unable to assess the complainants’
credibility. (Doe v. Westmont College (2019) 34 Cal.App.5th 622, 625; Doe v.
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Allee (2019) 30 Cal.App.5th 1036, 1039; Doe v. Claremont McKenna College
(2018) 25 Cal.App.5th 1055, 1057–1058.) We agree with the Regents that
those cases are distinguishable because Jane Doe 2’s credibility was not
central to the disciplinary committee’s determination. (Doe v. Regents of
University of California, supra, 70 Cal.App.5th at p. 536.)
The disciplinary committee concluded that Christenfeld’s email to Jane
Doe 2 violated the University of California’s policy against sexual violence
and sexual harassment. That policy prohibits sexual harassment, defined as
“unwelcome sexual advances, unwelcome requests for sexual favors, and
other unwelcome verbal, nonverbal or physical conduct of a sexual nature
when” it creates a hostile environment in that “such conduct is sufficiently
severe or pervasive that it unreasonably denies, adversely limits, or interferes
with a person’s participation in or benefit from the education, employment or
other programs and services of the University and creates an environment
that a reasonable person would find to be intimidating or offensive.” (Italics
added.) The committee further found that Christenfeld’s conduct violated the
faculty code of conduct by committing sexual harassment against a student
and by committing a serious violation against professional conduct. Jane
Doe 2’s credibility was not critical to any of these findings. It was undisputed
that the email Christenfeld sent to Jane Doe 2 from his UCSD.edu email
address contained pornography. Although it was also essentially undisputed
that Christenfeld did not intend to send the email to the student who
received it, that does not change the fact that the email was highly
inappropriate and that a reasonable person would find it to be offensive.
“This is not a ‘he-said, she-said’ case because the material facts are not in
dispute.” (Doe v. Regents of University of California, supra, 70 Cal.App.5th at
p. 536, italics added.)
13
Christenfeld contends that he should have been able to ask Doe 2
“about whether the single errant email unreasonably denied, adversely
limited, or interfered with her participation in or benefit from her education,
employment or other programs and services of the University, a critical
element to a finding of Sexual Harassment as defined by University policy.”
He disagrees with the disciplinary committee’s conclusion that it was
undisputed that Doe 2 changed her coursework. He apparently contends that
if Jane Doe 2 did not actually change her coursework, he could not have been
found to have unreasonably denied, adversely limited, or interfered with Jane
Doe 2’s participation in or benefit from the university, as set forth in its anti-
sexual harassment policy. Not so. Any student who enrolls in college can
reasonably expect not to receive unsolicited pornography from a professor. A
professor who sends such emails using a university email account should
understand that they may be received by a student and, if received, will
interfere with that student’s education.
The disciplinary committee also focused on Christenfeld’s lack of
insight into his use of his university email account to send sexually explicit
emails. Christenfeld wrote to Jane Doe 2 that he “would never deliberately
send you, or any student, any such thing,” a reference to the pornographic
email. But he “clarified” at the disciplinary hearing that he had been
“referring to unsolicited pornographic images, unwelcomed pornographic
images.” The disciplinary committee stated in its final decision that it “was
disappointed that a faculty member would suggest that sending such images
from a UCSD email account would be acceptable under different
circumstances.” As the chair of the psychology department put it, the fact a
faculty member who previously had faced discipline then used his university
email account to send pornographic images “engage[d] in potential behaviors
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that could be that reckless would be—would be problematic and indicative of
the continued major risk to the university.”
In general, “disciplinary proceedings in university settings do not
require ‘all the safeguards and formalities of a criminal trial’ [citation] and a
university ‘ “is not required to convert its classrooms into courtrooms.” ’ ”
(Doe v. Regents of University of California, supra, 70 Cal.App.5th at p. 534.)
Although “the trend in case law has been to expect more adversarial and
criminal-trial-like procedures when a student is accused of sexual misconduct
and the complainant’s credibility is questioned” (ibid.), that was not the case
here. We thus reject Christenfeld’s argument that he was denied a fair
hearing because he was unable to cross-examine the recipient of his email
containing pornographic images.
3. The Charges Relating to Jane Doe 1 Were Not Time-barred or
Otherwise Improper.
Christenfeld next argues that disciplinary charges relating to Jane
Doe 1 were barred by the university’s faculty code of conduct. Again, we are
not persuaded.
The code provides that the chancellor must initiate disciplinary action
no later than three years after the chancellor is deemed to have known of an
alleged violation, defined as when an allegation is first reported to an
academic administrator at the level of department chair or above. Because
the chair of the psychology department was notified of Christenfeld and Jane
Doe 1’s relationship in March 2013, Christenfeld reasons, the university was
barred from bringing charges based on that relationship more than three
years later, in December 2018. This argument is based on an interpretation
of the informal agreement that we reject.
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As we have recounted, the agreement provided that “[i]f at any future
time, additional credible reports of such behavior on Professor Christenfeld’s
part (regarding violations of the Faculty Code of Conduct or the UC Policy on
Sexual Harassment) are reported to the Office for the Prevention of
Harassment and Discrimination, Professor Christenfeld understands and
agrees that the EVC [Executive Vice Chancellor] for Academic Affairs will
immediately file charges in P&T [Committee on Privilege and Tenure] and
recommend discipline up to and including termination, and provide P&T with
the June 21, 2013 report and findings already issued by OPHD [the office for
the prevention of harassment and discrimination], along with the new
credible reports.” Christenfeld contends that under this agreement he “did
not expressly or implicitly waive his right” to be protected by the statute of
limitations, and the agreement authorized the vice chancellor to file charges
based on new alleged violations. But the vice chancellor is always authorized
to bring charges based on new reports of violations. The agreement
contemplated that when any new credible reports of misbehavior were
received, the executive vice chancellor could immediately recommend
discipline “up to and including termination,” without reference to the
seriousness of any future reports, an indication that a new complaint could be
based on the prior conduct.
A contract must be interpreted in a way as to make it reasonable and
capable of being carried into effect. (Civ. Code, § 1643.) The disciplinary
committee concluded that “[i]mposing an external three year limitation on
the agreement would alter the plain meaning of the language and defeat the
purpose of the agreement (to ensure that the behavior is not repeated).” The
trial court likewise concluded that, “[f]airly read, the Agreement placed
[Christenfeld] on notice that future acts of misconduct could subject him to
16
discipline including termination for his misconduct in 2013, and for
subsequent misconduct.” Reviewing the agreement de novo as there was no
conflicting extrinsic evidence as to its meaning (Brandwein v. Butler (2013)
218 Cal.App.4th 1485, 1497–1498), we agree. And because we find no
ambiguity in the agreement, we also reject Christenfeld’s argument that any
ambiguity should be interpreted in his favor (Civ. Code, § 1654).
We likewise reject Christenfeld’s related argument that to the extent
the university was permitted to pursue charges related to Jane Doe 1, the
scope of those charges was impermissibly expanded beyond his role in
evaluating Doe 1’s application for admission into UC San Diego’s graduate
program. We agree with the Regents that this is simply another way of
claiming that the university filed time-barred charges against him. And we
agree with the two chairs of the psychology department who considered
Christenfeld to be on a form of probation under the informal agreement.
Once he was accused of additional misconduct, the university was entitled
under its procedures and the informal agreement to pursue the charges it
pursued.
Christenfeld briefly contends that his disciplinary hearing “was
essentially a smear campaign and a forum for the University to shame [him]
and police faculty and graduate student morality.” Aside from this statement
providing further evidence that Christenfeld continues to minimize his
behavior and its effect on Jane Doe 1, it provides no support for issuing a writ
of mandate. “An administrative agency is not required to observe the strict
rules of evidence enforced in the courts, and the admission or rejection of
evidence is not ground for reversal unless there has been a denial of justice.”
(McCoy v. Board of Retirement (1986) 183 Cal.App.3d 1044, 1054.) There
being no such denial of justice here, we reject Christenfeld’s arguments.
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B. Substantial Evidence Supports the Disciplinary Committee’s
Findings.
Christenfeld next argues that the disciplinary committee’s findings
were supported by insufficient evidence. The parties disagree both about the
standard of review and about whether there was sufficient evidence
supporting the committee’s conclusions. We agree with the Regents that we
review the findings for substantial evidence and that they are supported by
such evidence.
1. The Standard of Review.
Where an administrative decision does not involve a fundamental
vested right, the trial court reviews the record to determine whether the
findings and decision are supported by substantial evidence. (Doe v. Regents
of University of California, supra, 70 Cal.App.5th at pp. 532–533; Code Civ.
Proc., § 1094.5, subd. (b).) But where an administrative decision affects a
“vested, fundamental right[],” the trial court “exercises its independent
judgment upon the evidence disclosed [before the administrative body] in a
limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Code Civ.
Proc., § 1094.5, subd. (c).) “The courts must decide on a case-by-case basis
whether an administrative decision or class of decisions substantially affects
fundamental vested rights and thus requires independent judgment review.”
(Bixby at p. 144.)
Unlike in his briefs on the merits in the trial court, Christenfeld now
argues that that he possessed a fundamental vested right to his tenured
professorship and was thus entitled to a limited trial de novo. (E.g.,
Turner v. Board of Trustees (1976) 16 Cal.3d 818, 825 [“a tenured teacher
possesse[s] a vested right to be retained”].) He is mistaken. “[U]nder the
California Constitution, article IX, section 9, the University as a
18
constitutionally created state institution has been delegated the quasi-
judicial power to conduct its own administrative decisionmaking on staff
employment matters.” (Do v. Regents of University of California (2013)
216 Cal.App.4th 1474, 1477–1478; see also Strumsky v. San Diego County
Employees Retirement Assn. (1974) 11 Cal.3d 28, 34–35 [independent-
judgment review inapplicable to “agencies of constitutional origin which have
been granted limited judicial power by the Constitution itself”].) We thus
review the disciplinary committee’s decision for substantial evidence. There
is a strong presumption as to its correctness and “[w]e do not reweigh the
evidence; we indulge all presumptions and resolve all conflicts in favor of the
[university’s] decision. Its findings come before us ‘with a strong
presumption as to their correctness and regularity.’ ” (Camarena v. State
Personnel Bd. (1997) 54 Cal.App.4th 698, 701.)
Even if Christenfeld had been entitled to a less deferential standard of
review in the trial court, there is no indication that the result would have
been different. In its order denying Christenfeld’s petition, the trial court
stated it “disagree[d] in the strongest terms” with Christenfeld’s argument
that his conduct was “benign.” This suggests that the trial court did not
consider this a close case. Neither do we. The evidence supports the
committee’s findings.
2. Substantial Evidence Supports the Disciplinary Committee’s
Findings Regarding Jane Doe 1.
The disciplinary committee concluded that Christenfeld’s evaluation of
Jane Doe 1 for the graduate program at UC San Diego violated four
university policies. Specifically, the conduct violated policies against
(1) entering into a romantic or sexual relationship with any student for whom
the faculty member has or reasonably should expect to have academic
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responsibility (instructional, evaluative, or supervisory), (2) exercising such
academic responsibility, and (3) violating policies against professional
conduct. The committee also concluded that Christenfeld violated the anti-
sexual harassment policy barring conflicts of interest where a faculty member
engages in a decision affecting a person with whom a faculty member has a
romantic or sexual relationship.
Christenfeld stresses that when he originally entered into a
relationship with Jane Doe 1 he did not have academic responsibility over
her. In making this argument, he quotes selectively from investigatory
memos prepared after the relationship was first discovered and suggests they
somehow absolved him of any wrongdoing. To the contrary, one concluded
that Christenfeld’s behavior posed ethical and moral issues and evinced poor
judgment, and the other stated that Christenfeld had been dishonest and did
not fully appreciate the problem with his conduct.
The remainder of Christenfeld’s arguments amount to casting the
evidence in the light most favorable to him. He quibbles about when Jane
Doe 1 became interested in social psychology, his field of expertise. He also
repeats his argument that he did not violate the informal agreement because
it barred him only from entering into a new relationship, not from continuing
his relationship with Doe 1. None of these arguments undermine the
committee’s ultimate conclusion, in light of all the evidence, that Christenfeld
was in a relationship with someone over whom he should reasonably have
expected to have academic responsibility.
Christenfeld characterizes his role in evaluating Jane Doe 1 for
admission to the graduate program as a “[m]arginal [v]iolation” of the faculty
code of conduct and again summarizes the evidence in the light most
favorable to him, downplaying the seriousness of the role he played. Giving
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the deference we must to the disciplinary committee’s findings, we cannot
agree.
3. Substantial Evidence Supports the Disciplinary Committee’s
Findings Regarding Jane Doe 2.
We must also defer to the disciplinary committee’s findings that
Christenfeld’s sending pornographic images to Jane Doe 2 amounted to
sexual harassment in violation of the university polices against sexual
harassment. Again, we conclude that the committee’s conclusions were
supported by substantial evidence.
As he did at his discipline hearing, Christenfeld characterizes the
message he sent as an “errant email.” He acknowledges that the email
contained “sexually graphic images” but contends that it was not sent “with
any sexual intent of subtext [sic],” and the sexual content was not “severe.”
And he claims that a reasonable undergraduate student would not have
found the email to be “intimidating or offensive,” in violation of the
university’s anti-harassment policies. In support of this assertion, he points
to the testimony at his hearing that another professor teaches a course on
human sexuality. As part of that course, students are shown videos of people
masturbating and having anal sex, and the textbook is a “sex manual.”
Presumably students who sign up for a course in human sexuality would
know in advance that they would view explicit images, and they would
reasonably expect that those images would be presented with appropriate
context and for a legitimate educational purpose. This is far different from
receiving unsolicited sexually graphic images from a professor sent from a
university email account. Like the trial court, we disagree “in the strongest
terms” with Christenfeld’s argument that his behavior was benign, or that
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that a reasonable undergraduate student would not be “intimidated or
offended” by his email.
Considering all the evidence in the light most favorable to the Regents,
we conclude that substantial evidence supports the disciplinary committee’s
findings that Christenfeld’s conduct with respect to Jane Doe 2 violated
university policies.
C. The Regents Did Not Abuse Its Discretion When It Fired Christenfeld
and Denied Him Emeritus Status.
Lastly, Christenfeld argues that his dismissal and the denial of
emeritus status was “an overly severe sanction” and asks us to set it aside.
(Bold and capitalization omitted.) He acknowledges that we review the
sanction for an abuse of discretion. That is, “ ‘[n]either a trial court nor an
appellate court is free to substitute its discretion for that of an administrative
agency concerning the degree of punishment imposed.’ ” (Hughes v. Board of
Architectural Examiners (1998) 68 Cal.App.4th 685, 692.) “Moreover, ‘[i]t is
only in the exceptional case, when it is shown that reasonable minds cannot
differ on the propriety of the penalty, that an abuse of discretion is shown.’ ”
(Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1106.)
Although reasonable minds might differ about the appropriateness of
Christenfeld’s discipline, we cannot say under the appropriate standard that
it amounted to an abuse of discretion.
III.
DISPOSITION
The judgment is affirmed. The Regents shall recover costs on appeal.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Devine, J. *
*Judge of the Superior Court of the County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
Christenfeld v. Regents of The University of California A162690
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