Filed 2/23/24 Doe v. University of Southern California CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JOHN DOE, B328682
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCP04155)
UNIVERSITY OF SOUTHERN
CALIFORNIA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Hathaway Parker Inc., Mark M. Hathaway and Jenna E.
Parker for Plaintiff and Appellant.
Pazzani & Sandhu, Karen J. Pazzani and Simar K.
Ahluwalia for Defendants and Respondents.
__________________________________________
A student at the University of Southern California (USC)
was accused of cheating on an exam. He denied wrongdoing. A
hearing officer found against the student, who received a failing
grade for the course. The trial court denied his petition for a writ
of mandate. We conclude that USC did not violate its procedures,
deprive the student of evidence, or alter the burden of proof. The
findings are supported by substantial evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
USC’s Student Conduct Code
The Student Conduct Code (Student Code) prohibits “use or
attempted use of external assistance” during an exam, including
“use of unauthorized notes.” It also bars “[f]ailure to comply with
testing protocols, policies, procedures, or instructions.” “Any act
that gains or is intended to gain an unfair academic advantage
may be considered an act of academic dishonesty.”
Appellant Is Accused of Violating the Student Code
On March 19, 2021, appellant “John Doe” took a biology
midterm exam administered on-line via Blackboard.1 Students
were not allowed to use outside sources during the exam. At the
end of the semester, the instructor learned from an anonymous
person that some students used a shared document posted on
Blackboard, entitled Class Notes, during exams. USC’s IT
department provided the names and IP addresses of six students
who accessed the Class Notes during exams, with dates and
times. IT logs showed that appellant viewed three items in the
Class Notes during the March 19 exam.2
1 Undesignated dates in this opinion are to the year 2021.
2 The topics he accessed were “photosynthesis,”
“metabolism,” and “cell communication.”
2
On May 15, appellant e-mailed his instructor, Dr. Spence,
to learn why he did not receive a grade report. Dr. Spence replied
that USC’s Student Judicial Affairs and Community Standards
(SJACS) would be in touch. Appellant wrote back, “I do not cheat
on the final exam.” He inquired what the allegations are and
what program USC used to ascertain cheating, adding, “The only
two tabs I had open during the final exam were Blackboard and
zoom. I only had one computer open and all materials were
cleared from my desk.” SJACS advised appellant that a review
was underway. Dr. Spence submitted an Academic Integrity
Violation report to SJACS on June 2.
On June 30, SJACS notified appellant that Dr. Spence
reported “an alleged act of academic dishonesty.” Appellant “was
documented by USC IT services as having accessed an online
shared document during [his] exam period” on March 19. This
violated Student Code exam protocols and provisions against
external assistance during an exam and unfair advantage. He
was informed that he would receive a failing grade if found
responsible and was instructed to schedule a hearing if he wished
to dispute the allegations.
SJACS Hearing and Decision
On July 12, appellant met remotely with SJACS Judicial
Officer Nancy Dominguez. He was sent a link to view a faculty
report about the exam and was allowed “to inspect the evidence
on file and respond to the allegations.”
Dominguez wrote that during their meeting, appellant
“denied the allegations and noted that he did not have any other
program/window/browser open on his computer other than what
was required of him to complete the exam in question. . . . [He]
stated that the exam contained about 40 multiple-choice
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questions that were worded in a way that he found confusing
[and] emphasized that he had no reason to access the shared
document during the exam. [He] also mentioned that he does not
know where USC IT service obtained the submitted information.”
Appellant confirmed viewing the faculty report; Dominguez
also read it to him. When told that the evidence showed he
accessed the on-line shared document based on the timestamps,
appellant insisted that he and his parents “ ‘want a decision
now.’ ” He “had no other questions or comments or concerns” and
stated that the meeting could end.
Dominguez found by a preponderance of the evidence that
appellant “accessed an external document during the completion
of an online exam.” He violated Student Code testing protocols
and “intended to gain an unfair academic advantage.” His
sanction was a grade of “F” for the course and writing a
“Reflective Paper” addressing “ethical decision-making.”
Appellant’s signed acknowledgement reads, “I understand
the violation(s) with which I am charged. I agree that I have had
the opportunity to discuss the incident and the allegation(s) and
to review the student conduct procedures with a judicial officer. I
understand that the [officer’s] decision was made based on the
preponderance of the information.”
Appeal Panel Review
Appellant sought review by the Student Behavior Appeal
Panel (Appeal Panel). He asserted that “ ‘new evidence has
become available which is sufficient to alter the decision and
which [he] was not aware [of] or could not have reasonably
obtained at the time of the original review.’ ” He also argued that
the review officer’s deviation from USC rules deprived him of
procedural protections.
4
Appellant wrote that he is a sophomore majoring in East
Asian Languages and Culture who intends to pursue a career in
medicine. He graduated in the top 10 percent of his high school
class. His grade point average at USC was 3.66.
As new evidence, appellant offered a screenshot of his
computer browser history. He stated, “I did not realize that my
computer records all of the sites I access daily.” He accessed
Blackboard at 1:59 p.m. to start the exam, and “[t]he history does
not record further activity until 2:54 pm when I access my
Blackboard dashboard to finally submit my exam at 2:55 pm . . . .
Nowhere in the history does it indicate that I accessed a Google
document with the shared ‘Class Notes’ file.” He wrote, “At no
time during the test did I access unauthorized material.”
Appellant wrote that SJACS Officer Dominguez reviewed
the IT log with him. No witness corroborated the information
and “I was not allowed to question[ ] the person who generated
the report or ascertain how the report data was obtained. It was
not even a computer-generated report because it was a PDF
document. There was no information on the PDF documenting
that it was from USC IT.” Appellant was unable to retrieve the
document after the meeting ended. He objected to his lack of
access to the IT document and its authenticity.
Appellant objected that he was entitled to written notice
specifying the nature of the alleged violation and the basis for the
charge, including dates and time and location. “The unclear
charge of accessing an online shared document prevented me
from preparing a proper defense, and the proof was on my
computer browser history which I was not aware I needed at the
meeting.”
5
Appellant claimed he was denied a fair and impartial
hearing. Dominguez listened to him, but was unable to describe
how the PDF document was generated and did not identify
specific pages allegedly used to cheat. Appellant was allowed to
inspect the document only briefly. The notice he received on
June 30 lacked a “factual description of any misconduct. I wasn’t
given time to prepare to rebut the charges, and there was no
factual support given to me at my meeting with Ms. Dominguez.”
Dr. Spence did not discuss the incident with appellant or give
him documentation.
SJACS Officer Dominguez replied that appellant received
the evidence and confirmed reviewing it. He responded to the
charge and had the opportunity to provide information during
their meeting. She stated that the evidence supported her
conclusion that appellant violated the Student Code.
The Appeal Panel considered appellant’s claims. It found
that his browser history was not “new” evidence because it was
available at the time of the SJACS hearing. Even if allowed, the
new evidence showed only sites accessed by one device using a
specific Web browser, which “did not account for the student’s
access to multiple devices (such as a phone or a tablet), the
potential use of a different internet browser, or the available use
of a private browser window, any of which could have been used
to access the file and would not have been represented in the
browser history provided.” The evidence “was not exculpatory or
otherwise sufficient to alter the decision.”
The Appeal Panel wrote that appellant (referred to as
“they”) “would have weighed the evidence differently.”3 The
3 Contrary to appellant’s claim, the panel did not say it
would weigh the evidence differently. Its decision consistently
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panel emphasized that it “is not empowered to reconsider the
case’s evidence and make different factual findings” by
reweighing evidentiary conflicts. It decided that Dominguez
reasonably found appellant accessed external sources during an
exam to gain an academic advantage.
The Appeal Panel rejected appellant’s claim of procedural
unfairness. It found he received sufficient written notice and a
fair and impartial review of the incident; he was not unfairly
restricted from accessing relevant documents; the review was
timely and fair; his instructor was not required to meet with him
before reporting the incident; and the hearing officer was not
influenced by undisclosed evidence. The Appeal Panel upheld the
SJACS decision.
In December, USC’s vice-president of student affairs,
respondent Monique Allard, wrote appellant that she reviewed
the SJACS decision, his appeal, and the Appeal Panel decision.
She accepted findings that appellant violated the Student Code.
She advised him that the decision is final and binding, with no
further avenue of appeal.
Appellant Petitions for a Writ of Mandate
Appellant sought relief in the trial court by filing a petition
for a writ of mandate. He alleged that he has exhausted his
administrative remedies and that USC failed to proceed in the
manner required by its policies and committed a prejudicial
abuse of discretion. He asserted a fundamental vested right to
“attend USC uninterrupted, free from the reputational harm and
stigmatization that inherently accompanies responsibility for
refers to appellant as “they.” For example, it wrote, “In their
appeal, John Doe reiterated that they did not access any external
sources.”
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dishonesty.” He asked the court to set aside the findings and
sanctions against him.
In his trial brief, appellant argued that USC failed to follow
its policies and procedures or provide him with a fair process, and
its findings are not supported by the evidence. He asserted that
Dominguez should not have accepted Dr. Spence’s report without
further investigation. Dr. Spence did not meet with appellant or
give him a report. Without access to evidence, appellant was
unable to present a meaningful defense. Dominguez did not
independently verify the existence of the Class Notes. The report
of cheating was hearsay from an anonymous person, supported
by an unauthenticated document purporting to be “IT logs.”
USC countered that Dr. Spence was not required to meet
with appellant, who received notice of the allegations and an
opportunity to respond. Substantial evidence supports the
administrative decision. Because appellant never denied
awareness of the Class Notes or expressed confusion about its
shared use, there was no need for Dominguez to further
investigate its existence. He did not request additional time to
review the evidence, seek a follow-up interview, or ask to submit
rebuttal evidence. Instead, he told Dominguez that he wanted
“ ‘a decision now’ ” based on the evidence she had.
The Trial Court’s Ruling
The trial court ruled that appellant had a fair hearing. Dr.
Spence was not required to meet with him. Appellant’s messages
in May showed his awareness of a cheating allegation. He
received notice of the substance of Dr. Spence’s report over 10
days before the SJACS hearing. USC’s failure to send him the
report did not deprive him of a fair hearing because appellant
knew the nature of the allegations and had time to examine his
8
computer and provide his browser history to Dominguez. He did
not ask to conduct additional research after the meeting but
demanded an immediate decision. Dominguez did not place the
burden of proof on appellant.
The court found that substantial evidence supported USC’s
decision. USC is not required to follow rules of evidence; it could
rely on hearsay and an IT log to investigate a report of cheating.
USC did not have to accept appellant’s claim that he did not
cheat, or his browser history, because he “could have used a
different internet web browser, accessed the document from a
different device, used a private browser, or deleted entries from
the browser history.” The court denied the petition and entered
judgment for respondents.
DISCUSSION
On a petition for writ of mandate, courts decide if there was
a fair trial or a prejudicial abuse of discretion. “Abuse of
discretion is established if the respondent has not proceeded in
the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by
the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).) Writ review
is appropriate in a student disciplinary case at a private
university. (Boermeester v. Carry (2023) 15 Cal.5th 72, 85
(Boermeester).) We review the university’s decision, not the trial
court’s decision. (Doe v. Regents of University of California (2016)
5 Cal.App.5th 1055, 1072 (UCSD).)
1. Procedural Unfairness Claims
We review de novo appellant’s challenge to the fairness of
the administrative hearing, which presents a question of law.
(Boermeester, supra, 15 Cal.5th at p. 85.) USC must provide
“notice of the charges and a meaningful opportunity to be heard,
9
[but is] not required to provide accused students the opportunity
to directly or indirectly cross-examine the accuser and other
witnesses at a live hearing.” (Id. at p. 79.) Constitutional due
process principles—protecting citizens “from abuses of state
power”—do not apply to USC. (Id. at p. 87.)
“Where student discipline is at issue, the university must
comply with its own policies and procedures.” (UCSD, supra, 5
Cal.App.5th at p. 1073.) “Here, USC’s policies were subject to the
common law doctrine of fair procedure, and those policies
specified that the university would offer the accused student a
hearing, take evidence, and make factual determinations in a
final adjudicatory decision issued by the vice president of student
affairs.” (Boermeester, supra, 15 Cal.5th at p. 86.)
We conclude that USC complied with its policies and
provided appellant with a fair procedure.
First, appellant argues that Dr. Spence “made no attempt
to contact Doe” to discuss the cheating allegation, though
appellant took the initiative and e-mailed Dr. Spence to say that
he did not cheat and opened only two tabs on his computer. He
posits that Dr. Spence violated USC policy by refusing to speak to
him. Appellant overstates school policy.
Student Code section 13.20.I states that if instructors have
“reason to believe, based on observation or other evidence, that a
student has violated the university’s academic integrity
standards, they are encouraged to make reasonable attempts to
meet with the student and discuss the alleged violation and the
evidence which supports the charge.” (Italics added.) Appellant
conflates a policy encouraging instructors to meet with students
with one that obligates them to do so. The plain language of the
policy does not mandate the meeting appellant desired.
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Second, appellant claims that “Dr. Spence was required to
provide Doe with a copy of the report Dr. Spence made to
SJACS.” He points to Student Code section 13.20.III. It states
that the instructor will provide SJACS “with a completed
Academic Integrity Violation Form. The reporting party likewise
will make a reasonable attempt to provide a copy of the report to
the student.”
USC does not dispute that Dr. Spence failed to give
appellant the Academic Integrity Violation form submitted to
SJACS on June 2. However, appellant’s May 15 e-mails show he
understood the problem when he wrote, “I do not cheat on the
final exam,” asked what program USC used to ascertain
cheating, adding that his desk was clear and he had only
Blackboard and Zoom open.
SJACS gave appellant formal notice on June 30, saying he
“was documented by USC IT services as having accessed an
online shared document” during his biology exam on March 19.
He had 12 days before the hearing to analyze his computer, cell
phone or other device—or submit them to USC for analysis—to
show he did not access material during the exam. He viewed Dr.
Spence’s report and Dominguez read it to him.
In sum, though Dr. Spence did not give his report directly
to appellant, appellant has not shown prejudice. He was aware
since mid-May about a cheating claim. He viewed the report. If
there was procedural error, it was harmless. (Doe v. Occidental
College (2019) 40 Cal.App.5th 208, 227.)
Third, appellant contends that USC failed to provide him
with access to the evidence. It is undisputed that he received
advance notice of the allegations. Dominguez showed (and read)
Dr. Spence’s report at the hearing. Appellant confirmed that he
11
viewed the evidence. Nonetheless, he argues that “[h]e was
denied any legitimate opportunity to mount a defense and
disprove the charges.”
Appellant is mistaken. After receiving the June 30 notice,
he could marshal evidence to rebut a charge of accessing external
documents during the exam. USC did not have his electronic
devices; it knew only that his IP address accessed the Class Notes
during the exam. It was up to appellant to lay bare his devices to
convince Dominguez that he did not access the Class Notes, or
show his account was hacked. He did not present exculpatory
evidence at their meeting or seek time to investigate or obtain
evidence. Instead, he asked for a decision “now” and did not
question the state of the evidence. Dominguez deemed the
matter complete and issued a decision the same day.
Fourth, appellant maintains that USC placed the burden of
proof upon him, “requiring him to prove that he did not access a
document that may or may not exist . . . instead of requiring Dr.
Spence to prove that Doe accessed the document during the
examination.” Contrary to appellant’s claim, he did not have the
burden of proof.
At review hearings, the burden of proof “rest[s] upon the
reporting party. The standard of proof for deciding against the
accused student shall be such evidence that, when weighed
against that opposed to it, has the more convincing force and the
greater probability of truth.” (Student Code, § 12.40.IV.)
USC IT logs revealed that appellant accessed external
information during the exam period. Dominguez found that this
evidence supported USC’s charge. When she asked for a response,
appellant denied the allegations, claimed he did not have
anything open on his computer other than what was required to
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complete the exam, and said he had no reason to access the
shared document during the exam.4 Dominguez did not find
appellant’s denials of culpability credible or convincing, or that
they outweighed USC’s evidence.
Dominguez did not shift the burden to appellant but could
rely on the veracity of the IT evidence submitted by Dr. Spence,
even if it was not authenticated. Student Code section 12.40.III
allows the review officer to consider information that is relevant,
material, and temporally proximate to the conduct at issue.
Dominguez was not required to undertake an independent
investigation into USC’s IT logs, and state and federal rules of
evidence do not apply to SJACS reviews. (Ibid.)
2. Substantive Findings
We review factual findings for substantial evidence. (Code
Civ. Proc., § 1094.5, subd. (c) [“abuse of discretion is established if
the court determines that the findings are not supported by . . .
substantial evidence in the light of the whole record”].) Review is
deferential. We presume the decision is correct and “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
4 Appellant did not deny the existence of the Class Notes to
Dominguez, saying only that he had no reason to access them.
He cannot question their existence for the first time on appeal.
Also, appellant cites an instance of alleged cheating at
Dartmouth University that proved to be unfounded. An
investigation at another university, using a different computer
program, is not germane to this case.
13
substantial evidence to support a finding of fact.” (UCSD, supra,
5 Cal.App.5th at p. 1074.)
Appellant contends that Dr. Spence’s report, based on IT
logs, is not substantial evidence. He suggests it is “ ‘based upon
suspicion, imagination, speculation, surmise, conjecture or
guesswork’ ” and assails Dr. Spence’s credibility. Appellant offers
no reason why Dr. Spence would fabricate evidence that
appellant and five other students cheated on biology exams. If
anything, the report of cheating increased Dr. Spence’s workload
without enhancing his résumé.
Dr. Spence’s report is substantial evidence that appellant
accessed the Class Notes during the exam. The hearing officer
could rely on any information that is “relevant, material, and
temporally proximate to the conduct at issue [making] the
existence of a fact or inference more or less likely.” (Student
Code, § 12.40.III.) Rules of evidence applied in court proceedings
do not apply. (Ibid.) Thus, evidentiary rules requiring
authentication or barring hearsay need not be consulted.
Appellant did not counter the charge of accessing external
shared documents by presenting his browser history at the
SJACS hearing. Instead, he simply denied cheating, hoping to
safeguard his grade point average from the impact of an “F”
grade. Dominguez did not credit his denial. We decline his
invitation to disregard Dominguez’s credibility determination.
Appellate courts do not retry credibility, as we cannot assess
witness sincerity. On this evidence, a reasonable person could
reach the same conclusion as SJACS Officer Dominguez.
After receiving an adverse ruling at the SJACS hearing,
appellant submitted new evidence to the Appeal Panel—his
computer browser history for the Blackboard site. The panel
found the evidence is not “new” because it could have been
presented to the trier of fact before she rendered her decision.
14
USC rules do not allow the Appeal Panel to make new findings of
fact or credibility calls, or substitute their judgment for the
review officer. (Student Code, § 15.04.)
Even if new evidence were allowed, it was unpersuasive.
As the Appeal Panel found, the history on appellant’s computer
for his use of Blackboard could have been altered and entries
deleted, or he could have used a different device or a different
browser. These issues could have been fully explored had
appellant sought to present evidence of his browser history in a
timely manner at the SJACS fact-finding hearing, or sought
additional time to present his devices to USC IT services for
examination. He chose not to do so and cannot blame USC if he
was not forthcoming at the SJACS hearing.
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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