Dorfman v. University of California, San Diego CA4/1

Filed 9/16/15 Dorfman v. University of California, San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JONATHAN DORFMAN, D065865
Plaintiff and Appellant,
(Super. Ct. No. 37-2012-00101760-
v. CU-WM-CTL)
UNIVERSITY OF CALIFORNIA, SAN
DIEGO et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County, Joel M.
Pressman, Judge. Reversed.
Robert P. Ottilie for Plaintiff and Appellant.
Charles F. Robinson, Karen J. Petrulakis, Margaret L. Wu and Michael R.
Goldstein for Defendants and Respondents.
Jonathan Dorfman, an undergraduate student at the University of California, San
Diego (UCSD), was dismissed from the university after he was found to have violated its
Policy on Integrity of Scholarship1 for the second time. Dorfman sought relief in the
superior court and appeals that court's order denying Dorfman's petition for writ of
administrative mandate to compel UCSD to overturn its dismissal. We conclude UCSD
did not provide Dorfman with a fair proceeding and, accordingly, reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A
Alleged Violation of UCSD's Policy on Integrity of Scholarship
On July 1, 2011, Dorfman was notified by the dean of his college that his CHEM
6B instructor, John Crowell, alleged Dorfman cheated on a midterm exam during the
prior term. The exam in question was given on May 25, 2011, over a month before
Dorfman was notified of Crowell's accusation. Crowell distributed four versions of the
exam, A, B, C, and D. Each of the 618 students who took the exam received one of the
four exam versions and a Scantron test form premarked with the corresponding version
letter in pencil on the front and in permanent ink on the back. Crowell suspected
Dorfman of cheating because after the term had ended he discovered the front of the test
form Dorfman submitted was altered from version D to version A.
The exam was administered in four different classrooms. Crowell provided
written instructions to the proctors in each classroom that stated the proctors should print
"a condensed version of the [instructions] on the blackboard." (Italics added.) The
instructions included a direction to check the exam version against the test form version
1 The Policy on Integrity of Scholarship is also referred to in this opinion as the
academic integrity policy.
2
and inform a proctor if the version letters did not agree. The instructions also stated in
bold capital letters "DO NOT ALTER YOUR SCANTRON." Crowell stated his practice
was to visit each exam room at the beginning of the test and personally instruct students
to notify someone if there was a discrepancy between the exam booklet and Scantron
version letters.
Dorfman admitted that the exam and test form he received were mismatched, that
he did not notify anyone of the discrepancy, and that he erased the D marking and
marked A. He did not recall being told to notify anyone if the exam and test form
versions did not agree. Dorfman claimed that if the instruction was provided orally, he
did not hear it because when he arrived at his assigned classroom, the room was full and
he was directed to another classroom causing him to arrive late. Dorfman also did not
recall seeing instructions on the blackboard. No other student or proctor in the classroom
where Dorfman took the test reported observing Dorfman copying from another student
during the exam.
After the semester ended, Crowell discovered Dorfman and four other students
had altered the version letters on the test form. As a result, on June 29, 2011, Crowell
submitted an instructor report form to the university's Academic Integrity Coordinator,
Tricia Bertram Gallant, Ph.D., alleging Dorfman violated the university's academic
integrity policy by altering the premarked test form. Because Crowell did not collect the
exam booklet and permitted students to take them home for study purposes, he did not
have direct proof that Dorfman was not given a D exam. Dorfman also did not have the
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booklet, which he kept to study for the final exam then threw away when he moved out of
his apartment after the term ended.
UCSD's "Instructor's Guide for Preventing and Processing Incidents of Academic
Dishonesty" outlines responsibilities of instructors and students with respect to the
school's academic integrity policy and provides guidance to instructors to prevent
academic misconduct. The guide states students are expected to notify instructors or
other appropriate administrative officers "about any incident of dishonesty they observe."
Instructors are told "[t]he responsibility for enforcing academic honesty rests with" them
and that they should take "every precaution to minimize opportunities for academic
misconduct." The "Tips for Preventing Incidents of Academic Misconduct" section of
the guide suggests precautions that instructors should take to minimize academic
dishonesty during examinations. These tips include asking "students to write their names
in ink on all pages of the exam," asking students "to write on their exam their row
number and the names of students seated to their left and right," and to "[i]mmediately
collect all exam papers . . . ." (Italics added.)
The guide also tells instructors it is their responsibility to "[p]romptly confront any
student(s) suspected of academic dishonesty in a manner that respects the student's
privacy and the right to due process" and that this confrontation "will usually involve
meeting with the student to discuss the charges, the evidence, and proposed academic
consequences." Similarly, the guide suggests that "[i]n cases in which the evidence can
be clearly documented, e.g. plagiarism [and] identical answers submitted by two
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students" the instructor should "[m]eet with the student [who is accused of academic
misconduct] to discuss the charges, the evidence, and possible academic consequences."
B
Initial University Proceeding
After Dorfman received notice of Crowell's allegation he was informed that,
because he was under academic probation for a prior incident of academic misconduct, he
faced possible dismissal from UCSD. When he was notified of the allegation Dorfman
denied any wrongdoing and submitted a request for all documentation supporting
Crowell's allegation. On July 25, 2011, Dorfman requested a hearing before an
Academic Integrity Review Board (AIRB) under the academic integrity policy to dispute
the charge.
In response to Dorfman's initial request for documentation, UCSD provided him a
copy of his altered test form and a statement that Dorfman was "suspected to have
changed Exam [two] from D to A. The evidence is that your [S]cantron was altered
based on the discrepancy from the front [versus] back of the [S]cantron and the erasure
marks." Dorfman asked if any additional evidence existed and was told he had received
all of the existing documentation related to the allegation against him. The university
also informed Dorfman he would receive a briefing packet at least five days before the
hearing and that under the school's policy, new material could be added at the hearing at
the discretion of the presiding officer.
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Dorfman then retained an attorney, Robert P. Ottilie, to assist with his preparation
for the hearing.2 Ottilie requested additional information about the alleged cheating,
including a seating chart and the test forms of students who sat near Dorfman at the
exam. After several additional unsuccessful requests for information about the charges,
and just five days before the scheduled hearing, Ottilie was provided with Crowell's
report for the AIRB hearing. The report indicated for the first time that Dorfman was
accused of copying another student's answers. Crowell stated he had compared
Dorfman's answers to those of the other students in the class and found that Dorfman's
answers on 24 of the 26 exam questions (eight wrong and 16 correct) were the same as
those of another student, referred to as Student X. Student X's test form was marked with
version A and he or she took the exam in the same room as Dorfman. Crowell's report
also asserted that Crowell had consulted with a professor from another university with
experience in statistical analysis. That professor concluded that the chances of Dorfman
and Student X having eight wrong matching answers by coincidence was a billion to one.
Once Dorfman and Ottilie received Crowell's report, Ottilie immediately and
repeatedly asked Gallant to reveal the identity of Student X and to provide the test form
data Crowell and the consulting professor used to arrive at their conclusion that Dorfman
copied from Student X. Gallant denied Ottilie's requests for the identity of Student X,
taking the position that because Student X was not aware of the allegation against
2 The university did not permit Ottilie to represent Dorfman at the hearing. Under
the academic integrity policy a student accused of academic dishonesty may be
represented only by a student advocate.
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Dorfman he or she was not a relevant party to the proceeding. Dorfman was provided
with the test form data used by the consulting professor, but only two days before the
hearing. After the hearing, which was conducted in October 2011, the AIRB issued its
decision finding Dorfman violated UCSD's Policy on Integrity of Scholarship. Shortly
after, Dorfman was notified that the Council of Deans, the body responsible for imposing
sanctions under the academic integrity policy, had imposed the sanction of dismissal
from UCSD.
Dorfman appealed the AIRB's decision and dismissal to UCSD's Council of
Provosts. He contended that altering the version letter on the test form was not a
violation of the university's policy and that there was insufficient evidence to support the
AIRB's finding he had copied from Student X. Dorfman also argued his due process
rights were violated in various ways, including Crowell's failure to raise the cheating
allegation before the end of the semester and the university's refusal to identify Student
X. Dorfman also asserted that Gallant inappropriately assisted Crowell in obtaining
testimony from the consulting professor who had opined on the statistical significance of
Dorfman's and Student X's matching answers.
The Council of Provosts concluded Gallant had improperly solicited the opinion of
an outside expert and provided him with test form data, in effect assisting Crowell with
his case against Dorfman without being authorized to do so by the Policy on Integrity of
Scholarship. The Council also disapproved of the university's failure to provide Dorfman
with the statistical data used by the expert until just two days before the hearing,
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concluding that as a result Dorfman was precluded from retaining his own expert or
conducting his own statistical analysis. The Council of Provosts suspended the sanction
of dismissal pending the outcome of a new AIRB hearing.
C
Second University Proceeding
After the Council of Provosts issued its decision, Ottilie sent a letter to UCSD
again seeking the identity of Student X. In the alternative, Ottilie sought the exclusion of
Student X's test form from the hearing. Ottilie then submitted a letter to UCSD 's Office
of Student Conduct seeking rulings on three formal motions: a motion in limine to
exclude any reference to Student X or his or her test form; a motion seeking the recusal
of the new presiding officer, Dean Patty Mahaffey; and a motion to exclude any reference
to other students claimed by Crowell to have cheated by altering the version of the test
form they submitted.
Dorfman's motion with respect to Mahaffey asserted that, as part of the Council of
Deans responsible for determining sanctions for violations of the academic integrity
policy, she had prejudged Dorfman by deciding before the first AIRB hearing that
dismissal was an appropriate sanction for Dorfman's alleged misconduct. The Office of
Student Conduct denied Dorfman's request that Mahaffey recuse herself. It explained
Mahaffey's consultation with the other deans was routine in academic misconduct cases
because the university's policy "imposes an affirmative obligation on the Dean of the
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accused [s]tudent's [c]ollege" to advise the charged student of the sanction he or she faces
before an AIRB hearing.
After UCSD denied Dorfman's motion concerning Mahaffey, Mahaffey sent a
letter to Dorfman and Ottilie with her rulings on Dorfman's other motions. With respect
to Student X, she stated she would obtain the identity of the student from Crowell and
contact the student to "judge his/her interest and willingness to either participate in th[e]
review or submit a written statement." Mahaffey granted Dorfman's motion with respect
to other students Crowell alleged had cheated by changing the exam version on their test
forms, agreeing this information was irrelevant and excluding any reference to it from the
hearing.
In response to Mahaffey's rulings, Ottilie sent a letter to Mahaffey objecting to her
contacting Student X. Ottilie stated the proposal was not authorized by the academic
integrity policy and noted the Council of Provosts' reversal of the dismissal after the first
hearing was based in part on Gallant improperly contacting a witness on behalf of UCSD.
Ottilie stated his concern that Mahaffey's contact would result in the university receiving
information that Dorfman would not have access to and that Mahaffey might influence
Student X's decision whether to participate in the hearing. Rather than contact Student X,
Ottilie requested Mahaffey "make an evidentiary ruling and exclude reference to the
Student X [S]cantron evidence . . . ."
In response to Ottilie's objection, Mahaffey stated she would not contact the
student, but ruled the test form could still be included in the hearing and Dorfman could
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raise the issue again at the hearing. Ottilie sent another letter to Mahaffey clarifying that
Dorfman objected to Mahaffey contacting Student X because it was not authorized by
UCSD's policies and that he wanted Mahaffey to make a ruling on that objection. Ottilie
then stated that if Mahaffey ruled the objection was well taken, Mahaffey should then
also rule on the underlying motion to exclude the Scantron test form from the hearing.
Mahaffey responded by repeating her earlier decision to allow the test form and, "per
[Ottilie's] request," not "attempt to contact [Student X] to gather additional information."
The second review hearing took place on April 27, 2012. Dorfman and Crowell
presented their cases to the panel who asked questions throughout. Without relying on
the statistical analysis prepared by the other professor, Crowell advanced the same basic
case he presented at the first hearing. He argued the chances of Dorfman's answers
matching those of Student X were extraordinarily small and could not have been by
coincidence. He offered no evidence concerning where Dorfman was seated in
relationship to Student X. In his presentation Dorfman refuted the charge that he copied
from another student. In response to Crowell's assertion that the two exams could not
have matched by coincidence, Dorfman said that he found over 40 other instances of
pairs of Scantrons with 23, 24 or 25 matching answers and that half of these pairs
involved students who were sitting in different classrooms.
On May 2, 2012, the AIRB issued its decision finding Dorfman had changed his
test form from version D to version A, that 24 of 26 answers on Dorfman's test form
matched only one other exam, and that the matching exam was version A and was taken
10
by a student in the same exam room as Dorfman. The panel also found Dorfman had
failed to adequately explain the identical sequences of answers. The panel concluded it
was more likely than not that Dorfman violated the academic integrity policy and found
him responsible for exam misconduct. The following day Dorfman was notified that the
Council of Deans had again imposed dismissal from UCSD as the sanction for the
misconduct.
Dorfman appealed to the Council of Provosts, asserting his due process rights
were violated by the university's refusal to identify Student X, Crowell's delay in
asserting an allegation against Dorfman, and Mahaffey's role as the hearing officer.
Dorfman also asserted insufficient evidence supported the panel's findings. The appeal
was rejected on June 6, 2012.
D
Superior Court Proceedings
On August 12, 2012, Dorfman filed a petition for writ of mandate in the superior
court against UCSD and the Regents of the University of California. Dorfman again
asserted his procedural due process rights had been violated and insufficient evidence
supported the AIRB's findings. The Regents answered, denying each claim. After full
briefing and a hearing, on February 10, 2014, the court issued a writ of mandate
concluding the AIRB's evidentiary findings did not support the ultimate finding that
Dorfman had cheated on the exam. The court found the university had failed to provide
any evidence to show the matching exams were more than a statistical anomaly. The
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court rejected Dorfman's contention that he had not been afforded a fair process. The
trial court's order set aside the AIRB's decision and ordered a rehearing at the option of
the Regents.
Thereafter, the Regents moved for reconsideration or, in the alternative, a new trial
under Code of Civil Procedure, section 657.3 Dorfman also sought reconsideration and
modification of the order to preclude a rehearing by UCSD. After further briefing and
another hearing, the trial court granted the Regent's motion for reconsideration and
reversed its prior ruling setting aside the AIRB's decision. The trial court's new order
concluded sufficient evidence supported the AIRB's finding and again rejected Dorfman's
claims of procedural unfairness.
DISCUSSION
In this appeal, Dorfman again asserts the university violated his right to a fair
disciplinary proceeding by excluding Student X as a witness and by allowing Mahaffey
to serve as the presiding officer. He also argues Crowell's evidence was insufficient to
support the AIRB's findings. Additionally, Dorfman contends the trial court erred by
considering documentation that was not part of the administrative record and by granting
the Regent's motion for reconsideration. We agree with Dorfman that the university's
refusal to provide him with the identity of Student X violated the Regents' and UCSD's
own policies mandating certain minimum procedural protections in disciplinary
3 All further statutory references are to the Code of Civil Procedure.
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proceedings. Without this information, Dorfman could not adequately defend himself
against the charge of copying. Because we conclude reversal of the AIRB's decision and
the university's dismissal is warranted on this basis alone, we do not reach Dorfman's
other contentions on appeal. (See In re Marriage of Carlsson (2008) 163 Cal. App. 4th
281, 291 [" 'Denying a party the right to testify or to offer evidence is reversible per
se.' "].)
I
Section 1094.5, subdivision (b) governs our review of an administrative
proceeding. Under this statute, mandamus is required where a party is deprived of a fair
trial or the proceedings are not conducted "in the manner required by law." (§ 1094.5,
subd. (b).) "The ultimate determination whether an administrative proceeding was
fundamentally fair is a question of law to be decided on appeal."
(Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003)
108 Cal. App. 4th 533, 542 (Southern Cal. Underground Contractors).) "Thus, we
independently evaluate [Dorfman's] claims that [he] was denied a fair hearing." (Ibid.)
The university is bound by its own policies and procedures. (Berman v. Regents of
University of California, (2014) 229 Cal. App. 4th 1265, 1271-1272 (Berman).)
Additionally, UCSD's "rule-making powers and its relationship with its students are
subject to constitutional guarantees." (Goldberg v. Regents of University of Cal. (1967)
248 Cal. App. 2d 867, 875.) A disciplinary proceeding at a university does not provide
the same due process protections afforded to a defendant in a criminal trial. (Id. at
13
p. 881.) However, "to 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.' " (Southern Cal. Underground Contractors, supra,
108 Cal.App.4th at p. 545.)
"[A] court's determination of whether an agency's hearing procedures are in
compliance with relevant statutes and regulations, and with an agency's own policies,
requires application of the rules of statutory interpretation and construction." (Do v.
Regents of University of California (2013) 216 Cal. App. 4th 1474, 1488.) Deference is
accorded to the university's interpretation of its own policies and procedures because of
its expertise in the subject. (Berman, supra, 229 Cal.App.4th at p. 1272.)
II
The Regents' "Policy on Student Conduct and Discipline" requires its universities
to implement certain minimum procedural standards to assure fair hearings in situations
where a formal hearing is deemed appropriate to resolve alleged misconduct. These
minimum requirements specifically include "[t]he opportunity for a prompt and fair
hearing where the University shall bear the burden of proof, and at which the student
shall have the opportunity to present documents and witnesses and to confront and cross-
examine witnesses presented by the University . . . ." UCSD's academic integrity policy,
in turn, provides "the general rules and procedures associated with student integrity of
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scholarship" and implements the Regents' policy mandating minimum procedural
safeguards in disciplinary proceedings.
Under UCSD's policy, a student may contest an alleged violation of the academic
integrity policy by submitting "a written request for an Academic Integrity Review to the
appropriate" dean within 12 days of receiving notification of the allegation. An academic
integrity coordinator (AIC) then schedules the review "to explore and investigate the
incident giving rise to the charge and to reach an informed, evidence-based conclusion as
to whether the [academic integrity p]olicy was violated." (Emphasis added.) Once the
student has requested a hearing, section seven of the policy states that "the relevant
documents will be collected, including the facts of the charge by the Instructor and the
Student's dispute of the facts of the charge." Section seven also permits the student and
instructor to submit "additional documents relevant to the charge, or the names and
contact information of any additional people (e.g., classmates, teaching assistants) who
have knowledge relevant to the charge (Relevant Parties)." Section eight of UCSD's
policy gives the instructor and student "the right to present [r]elevant [p]arties and
question all [r]elevant [p]arties present" at the hearing. The provision defines a
"[r]elevant [p]arty" as "one with direct and material understanding of the allegation."
III
Crowell's allegation was based solely on (1) Dorfman's alteration of the version
letter on his Scantron, which UCSD concedes was insufficient to support the charge, and
(2) Dorfman's answers matching those of Student X. No eye witness evidence showed
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Dorfman copied from another student. Dorfman may have been able to exonerate
himself completely by showing Student X was not seated near him. Where Student X sat
during the exam was, therefore, "knowledge relevant to the charge" under section seven
of UCSD's academic integrity policy.
Further, because Crowell did not create a seating chart for the exam or institute
any of the other safeguards specifically suggested by UCSD to prevent this type of
cheating—for example collecting the exam booklets from the students after the exam or
asking students to write their row numbers and names of neighboring students on their
exams—the only avenue available to Dorfman to obtain this information was through
Student X. Crowell's unexplained delay in reviewing the exam materials until after the
term was over and Dorfman had discarded the exam booklet, also contrary to UCSD's
suggested practices, further contributed to Dorfman's inability to defend against the
allegation without Student X's identity. In these circumstances, UCSD's refusal to
provide Student X's identity violated the minimum procedural requirements afforded by
the Regents and UCSD set forth above. Without this information, Dorfman was deprived
of a meaningful "opportunity to present documents and witnesses and to confront and
cross-examine witnesses presented by the University" as required by UCSD's own policy.
UCSD's assertion that Student X's identity was not relevant because it could prove
its case based on the low probability that Dorfman and Student X had 24 of 26 matched
answers by chance is not well taken. Regardless of how high the odds of the answers
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matching by coincidence were, the chance existed.4 Since there was no allegation or
showing by UCSD that Dorfman and Student X were cooperating, evidence that Student
X was not seated where Dorfman could see his or her exam could establish the matching
answers were that rare coincidence. Without any ability to determine where Student X
sat, Dorfman's defense was unfairly crippled. (See Andersen v. Regents of University of
California (1972) 22 Cal. App. 3d 763, 771 [student facing expulsion from college is
" 'entitled to a "fair hearing," ' " which includes an "opportunity to present his defenses."]
and Fremont Indemnity Co. v. Workers' Comp. Appeals Bd. (1984) 153 Cal. App. 3d 965,
971 [" 'All parties must be fully apprised of the evidence submitted or to be considered,
and must be given opportunity to cross-examine witnesses, to inspect documents and to
offer evidence in explanation or rebuttal. In no other way can a party maintain its rights
or make its defense.' "].)
UCSD argues that the definition of relevant parties ("one with direct and material
understanding of the allegation") contained in section eight of its Policy on Integrity of
Scholarship supports its decision to keep Student X's identity secret. Although deference
is afforded to the university's interpretation of its own policies, we do not agree with
UCSD's narrow reading of this provision. As an initial matter, the definition does not
purport to limit the student's ability to investigate the allegations against him. The
provision, titled "Parties Attending the A[cademic] I[ntegrity] R[eview]," on its face
4 At oral argument, Ottilie suggested there was also no reason for Crowell to have
assumed that Dorfman, and not Student X, was the cheater. Dorfman's admitted
modification of the Scantron version letter, however, was a reasonable basis for Crowell's
conclusion that Dorfman and not Student X was the culprit.
17
addresses who may attend the hearing and not what information the university or
accusing instructor must provide to the student.
Further, section seven (titled "The Review Packet") explains the process of
preparing the compilation of documentation about the charges to be used at a hearing.
This provision suggests a broader scope of relevant evidence. Section seven states that in
addition to the documentation used by the instructor to initiate the charges, the student or
instructor may submit "additional documents relevant to the charge, or the names and
contact information of any additional people (e.g., classmates, teaching assistants) who
have knowledge relevant to the charge (Relevant Parties)." The discovery of the location
of where Student X sat during the exam, or in this case the identity of Student X to seek
that information, falls within the evidence contemplated by this provision. This
information was highly relevant to the allegation against Dorfman regardless of whether
Student X could be excluded from attending the hearing under section eight.5 Indeed, at
oral argument UCSD's counsel conceded that where Student X sat during the exam was
potentially "dispositive."
5 UCSD also argues "there were sound reasons for leaving X out of this, given the
strength of the incriminating evidence" against Dorfman. It quotes Jaska v. Regents of
University of Michigan (E.D.Mich. 1984) 597 F. Supp. 1245 to state that " 'the need for
anonymity of student accusers, who might otherwise be the victim of reprisals from
fellow students, could prevail over the right to confrontation.' " (Id. at p. 1253.) Student
X did not accuse Dorfman of cheating. The accusation stemmed solely from Crowell's
review of the Scantrons after the semester ended. While there may be sound reasons to
protect the identity of students in various circumstances, there was no reason in this case
to believe Dorfman or anyone else would threaten Student X. (See John A. v. San
Bernardino City Unified School District (1982) 33 Cal. 3d 301, 308 [school board could
not rely on written statements of witnesses where "there is no showing or finding of a
significant and specific risk of harm."].)
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Finally, UCSD contends that even if Dorfman had the right to learn Student X's
identity, he waived that right by objecting to Mahaffey's offer to contact the student to
gauge his or her willingness to participate. As stated, Crowell's case against Dorfman
was based solely on the facts that (1) Dorfman altered the exam version letter on the
Scantron and (2) his answers matched Student X's answers. Where Student X sat was
vital to Dorfman's ability to defend himself against the charges. Ottilie did object to
Mahaffey contacting Student X, but his concern over Mahaffey influencing the student
(consciously or otherwise) was reasonable after the prior Academic Integrity Coordinator
was found to have improperly solicited testimony and evidence on behalf of Crowell for
the first hearing.
Further, Ottilie clarified the basis for his objection was that it was an ex parte
communication that was not authorized, but that if the Scantron was admitted and
Mahaffey ruled her contact was proper under the academic integrity policy, she should
make contact. There was nothing improper in Ottilie's attempts to preserve Dorfman's
objection to the ex parte communication with Student X. Those attempts did not result in
a waiver of Dorfman's right to assert that UCSD's repeated refusal to provide him with
Student X's identity violated his right to a fair process. (See Rinaker v. Superior Court
(1998) 62 Cal. App. 4th 155, 168 ["Waiver is ' " 'the intentional relinquishment of a known
right after knowledge of the facts.' " ' [Citations.] Courts will not presume acquiescence
in the loss of a fundamental constitutional right . . . ; rather, we must indulge in every
reasonable presumption against the waiver of such a right."].)
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DISPOSITION
The order denying Dorfman's petition for a writ of mandate is reversed. The trial
court is directed to issue a writ of mandate requiring UCSD to set aside its dismissal and
remanding the matter to UCSD for further proceedings consistent with this opinion.
O'ROURKE, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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