Vaish v. Regents of the U. of Cal. CA2/1

Filed 10/27/22 Vaish v. Regents of the U. of Cal. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
LAVANYA VAISH, B308262
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCP05187)
v.
REGENTS OF THE UNIVERSITY
OF CALIFORNIA,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
The Appellate Law Firm and Berangere Allen-Blaine for
Plaintiff and Appellant.
Paul, Plevin, Sullivan & Connaughton, Sandra L.
McDonough and Joanne Alnajjar Buser for Defendants and
Respondents.
________________________________
Lavanya Vaish was an undergraduate student at the
University of California, Davis (UC Davis or the University).
In September 2019, a judicial officer in the UC Davis Office of
Student Support and Judicial Affairs (OSSJA) found that Vaish
had committed multiple instances of plagiarism, as defined in
the UC Davis Policy on Student Conduct and Discipline, and
is “either unable or unwilling to abide by UC Davis polic[ies].”
Based on these findings, UC Davis dismissed Vaish from the
University. She appealed to the University’s Associate Vice
Chancellor, who affirmed the OSSJA’s decision.
In December 2019, Vaish filed in the Los Angeles County
Superior Court a petition for administrative mandamus to compel
Regents of the University of California (Regents) to reverse its
decision. (Code Civ. Proc., § 1094.5.)1 The court denied the
petition and entered judgment accordingly.2
On appeal, Vaish contends that the trial court erred in
denying the petition because UC Davis denied her a fair hearing
and the sanction of dismissal is unfair and excessive. We reject
these arguments and affirm the judgment.
1Subsequent unspecified statutory references are to the
Code of Civil Procedure.
2 Vaish filed her notice of appeal on October 13, 2020, after
the court denied her petition and prior to the entry of judgment.
After the court entered judgment on November 30, 2020, we
issued an order, upon the parties’ stipulation, stating that we
shall treat the notice of appeal as being filed immediately after
the entry of judgment.
2
FACTUAL AND PROCEDURAL SUMMARY
A. Background: Events Leading up to Deferred
Separation Agreement
In 2017, Vaish was an undergraduate at UC Davis.
During the spring 2017 term, a computer science engineering
instructor reported to OSSJA that Vaish’s homework “shared
unusual answers” on four problems with two other students.
An official with the OSSJA determined that Vaish had
“misrepresent[ed] copied or collaborative work as [her] own
independent work.” Her actions constitute “academic dishonesty
and violate[d] University policy” and “the UC Davis Code of
Academic Conduct[,] which prohibits cheating on coursework.”
The official stated that “OSSJA will retain [Vaish’s] name on
file until [she] graduate[s]” and “warned” her against further
violations of academic dishonesty.
During the fall 2017 term, Vaish was referred to the
OSSJA based on allegations that Vaish and four other students
in a computer science engineering class had submitted homework
assignments with identical computer code. In resolving this
referral, Vaish signed a “Disciplinary Agreement.” According
to the agreement, Vaish acknowledged that her “behavior
violated the UC Davis Policy on Student Conduct and Discipline,
Section 102.01.G: Providing or obtaining unauthorized
assistance on graded coursework.” Vaish agreed to be on
“[d]isciplinary [p]robation,” which “is defined as ‘a status imposed
for a specific period of time in which a student must demonstrate
conduct that conforms to University standards. . . . Misconduct
during the probationary period or violation of any conditions
of the [p]robation may result in further disciplinary action,
3
normally in the form of Suspension or Dismissal.’ ” Vaish also
agreed to complete 15 hours of community service.
The OSSJA provided Vaish with a copy of the UC Davis
Code of Academic Conduct and informed Vaish that “students
may be disciplined for any violation of University policy,
including those involving academic misconduct. Violators are
subject to disciplinary sanctions that include Censure/Warning,
Disciplinary Probation, Suspension or Dismissal from the
University of California.”
During the winter 2018/2019 term, the OSSJA received
a third referral concerning Vaish. According to the referral,
Vaish “copied from a project posted on [the website] GitHub”
in connection with her “final project” in a computer science
engineering class.3 The OSSJA and Vaish resolved the referral
by entering into a second disciplinary agreement, which we will
refer to as the deferred separation agreement.4 The deferred
separation agreement states: “You [i.e., Vaish] understand that
your behavior violated the UC Davis Policy on Student Conduct
and Discipline, Section 102.01.B.2: Copying any work belonging
to another person without indicating that the information
is copied and properly citing the source of the work.” Vaish
agreed to accept, as a “Sanction and Condition[ ],” to a status
of “Deferred Separation.” (Underscoring omitted.)
According to the deferred separation agreement: “Deferred
Separation means that you are giving up the right to a formal
3 The University describes Github as “a non-University
website where users can post questions and answers to
homework.” Vaish does not disagree with this description.
4 Vaish was also required to complete an “online Academic
Integrity Seminar.”
4
hearing if reported again. If reported, you would have the right
to meet with a Judicial Officer who would review the evidence
and decide if you are in violation. If found in violation, you are
likely to be suspended from the University for at least one year
through Dismissal. Please see the UC Davis Policy on Student
Conduct and Discipline Section 105.13 . . . . Your Deferred
Separation applies if you are referred for an alleged violation
of Sections 102.01−102.06 of the UC Davis Policy on Student
Conduct and Discipline. For alleged misconduct, not subject to
deferred separation, you retain your right to a formal hearing.”
At the time Vaish entered into the deferred separation
agreement, section 105.13 of the UC Davis Policy on Student
Conduct and Discipline Section provided: “Deferred Separation,
Deferred Suspension and/or Deferred Dismissal: Defined as
a delay in imposing a Suspension or Dismissal, which means
that a Suspended or Dismissed student may be permitted to
remain in school on condition that he / she agrees to waive the
right to a formal factfinding hearing. If the student whose
Suspension / Dismissal has been deferred is later reported again,
and admits or is found in violation by an OSSJA officer of having
committed a subsequent violation of specified conduct standards,
the deferred Suspension or Dismissal may be implemented at
that time. If referred[,] the student has an opportunity to meet
with a judicial officer for an informal hearing. At the informal
hearing, the judicial officer tells the student the information
supporting the report, allows the student to respond and to
submit any relevant information on his or her behalf. The
student retains the right to remain silent and the student may
bring an advisor; however, the student is expected to speak for
himself or herself. The student does not have the right to present
5
witnesses or confront or question any witnesses, although the
OSSJA officer may contact and talk with others to help evaluate
the alleged misconduct[.] ‘Deferred Separation’ means that
OSSJA officer may impose any appropriate sanction, including
Dismissal, after determining that a violation has occurred.”
B. Referral Regarding Computer Science Course,
ECS 150
At the time Vaish entered into the deferred separation
agreement during the spring 2019 term, she was enrolled
in a computer science course (ECS 150) taught by Professor
Joël Porquet. According to the syllabus for the course,
“[v]iewing other students’ homework submissions is strictly
prohibited (including past students[)],” and “[a]ll online sources
(stackoverflow[.com], etc.) must be properly cited in submissions.”
After students in ECS 150 submitted their first two class
projects—“P1” (project 1) and “P2” (project 2)—Porquet ran
the submissions through a software tool that detects potential
plagiarism. The program flagged Vaish’s submission for both
projects as potentially being plagiarized. Porquet then examined
Vaish’s submissions. Regarding Vaish’s project 1 submission,
Porquet “found different pieces of evidence in the code that were
above the threshold of coincidence.” In particular, “[t]here is a
block of code that is strictly identical and also incorrect in a very
specific way” and “[t]here are two other functions that are similar
(same name, same code) which by themselves could be completely
coincidental, but given the circumstances, it reinforces the theory
of plagiarism.”
Regarding Vaish’s project 2 submission, Porquet stated:
“the amount of similarity is staggering. [Vaish] tried to hide the
6
plagiarism by changing a few things (e.g., some variable names,
etc.) but overall the code is still nearly identical.”
Porquet also determined that Vaish’s submissions are
similar to submissions from other students that “had been left
publicly accessible on github.com.”
Porquet emailed Vaish and her project 1 partner, along
with another team in class, stating that he had “found evidence
that [the] two groups had collaborated too much (or used the
same source?).” He described the evidence and indicated that he
may “report this case to [OSSJA].” Regarding project 2, Porquet
informed Vaish and her project 2 partner that their code was
“very similar (and almost identical in some places) to another
submission from last quarter.” He asked Vaish to respond.
In her emailed response to Porquet on May 15, 2019, Vaish
stated: “I admit to using online sources like [S]tack [O]verflow
and at some instances I was stuck so I did refer to GitHub at
certain points.” She explained that, in working on project 1,
she “looked at the online sources when [she] had a lot of bugs
and errors,” and that she “got a little of the logic part from
[S]tack [O]verflow and . . . had asked someone in the room for
help.” Regarding project 2, Vaish said she did not “copy paste[ ]
anything,” but “did look at a lot of the online sources” and looked
at “a program on Github to understand certain functions as [she]
was out of time to figure them out on [her] own.” She further
stated that she did not realize that by “using the logic from
[online sources],” she “was basically typing out the same / similar
code and using the same / similar variable.”
Porquet emailed Vaish on May 16, asking whether she
would “confirm” that she found code from other students on
Github “and copied some portions of it.” He also asked Vaish
7
to identify the Internet address where she found certain code or
identify the students who gave her the code.
Vaish responded to Porquet later that day. She stated that
she “did not get the code from anyone or anywhere”; rather, she
“looked up online sources to help [her] understand the logic and
[she] googled [her] error to see if there was a fix to it.”
On May 17, in response to a further inquiry from Porquet,
Vaish stated that she is “accepting responsibility” for using
“online websites and refer[ring] to different sources,” and she
acknowledged that she made “mistake[s]” in failing to cite her
sources and by looking at the Internet for help. She further
stated: “I am not denying my misconduct, especially for
[project 2]. I did use the help of the internet a lot, as I was
desperate to finish the program on time, . . . and I willingly admit
to these wrongdoings.” She denied, however, that she had gotten
any “code from anyone.”
On May 20, Porquet informed Vaish that he had submitted
a report of academic misconduct to OSSJA. He also stated that
he had found on Github the code that was “nearly identical” to
Vaish’s project 2 submission, and that a group of students from
the prior quarter had left the code on the website.
Marilyn Derby is the OSSJA judicial officer who
investigated and decided the ECS 150 referral. On May 23,
Derby sent Vaish a letter notifying her that she had been
reported for “cop[ying] code that was posted publicly on github”
in ECS 150. Derby asked Vaish to contact her to schedule
a meeting to discuss the matter. She informed Vaish that,
pursuant to the deferred separation agreement, Vaish had
waived her right to a formal hearing, but was entitled to an
informal hearing. Derby further stated: “Please note that the
8
meeting you schedule with me will constitute that informal
hearing. When we meet, I will describe the information
supporting the report and allow you to present your side of
the story and submit any relevant information on your behalf.
You have the right to remain silent without any inference of
culpability, and you may bring an advisor, but you are expected
to speak for yourself if you choose to do so. You do not have
the right to present witnesses or confront or cross-examine any
witnesses; however, I may contact other parties to help evaluate
the matter as necessary. After reviewing relevant information,
I will then decide by a preponderance of the evidence whether
you violated University policy or not, and will notify you of my
decision in writing. If you are found in violation, the University
will impose appropriate disciplinary sanction(s); however, you
will have the right to a written appeal.”
Vaish met with Derby on June 11 and June 24 regarding
the ECS 150 referral. With the exception of notes apparently
prepared by Derby, our record is silent as to what transpired
during these meetings. Derby’s notes indicate that Vaish told
Derby: “ ‘I am not denying me cheating, but rather I am denying
cheating in the way [Porquet] accuses me of cheating.’ ” Vaish
does not dispute making this statement.
After the June 11 meeting, Derby sent an email to
UC Davis computer science professor Justin Perona. Derby said
she is overseeing “a case of alleged plagiarism of computer code”
is “concerned that [her] knowledge of programming is insufficient
to understand the student’s explanations of what she did and
why.” Derby asked Perona if he was available to assist her with
understanding the evidence supporting the allegation and Vaish’s
explanations, and to opine on whether Vaish’s “explanation is
9
sufficient to conclude that she did not plagiarize code.” Perona
declined the request because he believed his friendship with
Porquet prevented him from being fair and impartial. Our record
does not reflect whether Derby consulted with or obtained the
opinions of persons other than Porquet.
On June 17, Porquet emailed to Derby a “document
explaining almost everything [he] know[s] about the case
concerning . . . Vaish’s plagiarism” in the ECS 150 course. The
document included copies of his email exchanges with Vaish
(summarized above), and screenshots of Vaish’s code side-by-side
with code from the other students’ submissions. Porquet pointed
out multiple instances where Vaish’s code shared particular
variable names, function names, and mistakes with the other
students’ code. Finally, Porquet included a block of Vaish’s
code for what was “maybe the most complicated [function] to
write,” which was “almost identical” to the previous quarter’s
submission. He wrote: “The plagiarism here is very sloppy, as
for example, [Vaish] didn’t even change the variable names, . . .
nor their order of declaration.” Porquet concluded by saying that
“the amount of evidence [against Vaish] is nearly impossible to
dispute,” and “I personally have no doubt that [Vaish] did violate
my class rules, and by extension the Code of Conduct.”
On June 24, Derby and Vaish met a second time. Derby
asked Vaish to submit a response to Porquet’s report and
supporting documents. Two days later, Derby emailed Vaish,
reminding her to send her response, and told Vaish that she
would share Vaish’s response with Porquet “and may get an
additional opinion if [Derby] feel[s] the need to do so.”
On July 5, Vaish sent Derby documents that included
screenshots of “source code” she viewed from stackoverflow.com
10
and other sources. Vaish asserted that she used Github as
a source because Porquet “never mention[ed] specifically that
we are not allowed to use this website,” and the Github code
“was not another student’s submission.” She explained the lack
of citations in her submission by stating that her partner was
responsible for that part of their report.
On July 18, Derby emailed Vaish to say that she would
“need to talk with a [computer science] professional who can
compare your code to that on Github,” and that she would draft
her decision letter “once [she has] been able to do that.”
C. Referral Regarding Math Course, MAT 145
On August 3, 2019, before Derby’s issued a decision on
the ECS 150 referral, Professor Eric Severson—the instructor
of Vaish’s summer session math class (MAT 145)—reported
to OSSJA that Vaish “has been plagiarizing solutions for
homework[ ] in [the] class.” Severson had become suspicious of
Vaish because Vaish had received the lowest score in the class
on her tests, yet her homework scores were among the highest,
and Vaish’s homework answers contained “advanced methods
or math concepts” that Severson “had not mentioned in this
course.” Severson reported that “it is very clear that [Vaish]
found solutions online,” and one particular homework submission
“was clearly copied from a solution [Severson] found online.”
Severson did not, however, save an image or screenshot of
the online solution. Severson subsequently reported to Derby
that someone had “copy pasted a question directly out of [his]
homework” on a website known as “Chegg”; that another person
posted a solution to the question; and Vaish’s answer to the
homework question “is clearly plagiarizing this solution.”
11
On August 6, Derby sent Vaish written notice of the report
concerning MAT 145 that she has “been copying solutions found
online.” Derby reminded Vaish of her deferred separation
agreement and waiver of a formal hearing, and asked Vaish to
schedule a meeting for her “informal hearing.”
Derby met with Vaish regarding the MAT 145 referral
on August 14. As with other meetings between them, our record
is generally silent as to what occurred. According to Derby’s
subsequent decision, Vaish stated during the meeting that she
went online to learn concepts, but not to get answers, and that
she denied using Chegg and denied having a Chegg account.
Sometime after their August 14 meeting, Derby received
from Chegg copies of the subject homework question and answer
that had been posted on the website. Severson confirmed that
the posted question matched his homework question. The
answer to the question posted on Chegg and Vaish’s handwritten
homework answer are substantially similar.
On August 27, Derby received a report from Chegg that
revealed that the MAT 145 question had been posted on July 19,
2019 by a UC Davis student with an email address that began
with “vaish.lavanya[ ].”
Derby and Vaish were scheduled to meet again the next
day. Although our record does not reveal whether they met
in person as scheduled, Vaish indicated that they spoke by
telephone and discussed the information Derby received from
Chegg. Vaish described the email address Chegg provided to
Derby as her “old abandoned email address.”
D. Derby’s Decision
On September 3, 2019, Derby issued her decision
concerning the ECS 150 and MAT 145 referrals. She determined
12
that the “preponderance of evidence” in both cases “supports the
conclusion that [Vaish’s] behavior violated [section 102.01.B of]
the UC Davis Code of Academic Conduct under the UC Davis
Policy on Student Conduct and Discipline.” The cited section
provides: “Plagiarism – Taking credit for any work created by
another person. Copying any work belonging to another person
without indicating that the information is copied and properly
citing the source of the work.”
Regarding the ECS 150 referral, Derby cited Professor
Porquet’s evidence of similarities between variable names and
function names and stated that she found Vaish’s evidence
unpersuasive: “I do not believe that you saw the code you
provided from Stack Overflow and came up with code that
is nearly identical to the code on GitHub by coincidence. The
same was true for the other examples your instructor provided
as evidence. You did provide one example of code you got from
Stack Overflow, but it was not one of the examples of code that
was nearly identical to code from GitHub.”
Regarding the MAT 145 referral, Derby relied on the
evidence from Professor Severson that someone had posted a
particular question from his homework on the Chegg website
on July 19, 2019; someone else posted a solution to that question
the next day; and Vaish’s answer to the question was “the same”
as the posted solution. Derby further stated that she contacted
Chegg, which informed her on August 27 that the person
who posted the question gave his or her name as “ ‘Lav Dee,’ ”
identified as a UC Davis student, and has an email address that
begins with “vaish.lavanya[ ].”
In discussing the sanction for the violations, Derby set
forth Vaish’s history of misconduct, including the referrals that
13
were previously resolved on May 5, 2017, January 30, 2018,
and April 11, 2019. Derby stated that she is “particularly
concerned that the [MAT 145 incident] occurred after [she
and Vaish] had been discussing the referral for ECS 150 and
[Vaish was] aware that [she] would be facing dismissal if found
responsible for the allegations related to ECS 150.”
In imposing the sanction of dismissal, Derby explained:
“The University has provided numerous opportunities for you
to understand and comply with the expectations regarding
academic honesty. Despite our efforts to help you to understand
the rationale for the policies, you have repeatedly engaged in
academic misconduct. Your pattern of behavior demonstrates
a consistent lack of commitment to follow the UC Davis Code of
Academic Conduct and Standards of Conduct for Students. When
a student demonstrates that they are either unable or unwilling
to abide by UC Davis polic[ies], they cannot continue as a student
or earn a degree from UC Davis. Given the nature of these
referrals, the aggravating factors of your dishonesty, and your
prior academic misconduct, Dismissal from the University of
California is the appropriate sanction.”
E. Vaish’s Internal Appeal
Vaish appealed the decision to Sheri Atkinson, Associate
Vice Chancellor of Student Affairs at UC Davis. Atkinson
characterized Vaish’s arguments as: (1) Derby’s decision lacked
substantial basis in fact; (2) the hearing process was unfair;
and (3) there was new evidence not known at the time of the
decision. In her written statement in support of her appeal,
Vaish admitted looking at Github, but explained that the code
she viewed “did not belong to a student at UC Davis and the
professor never once said that [the students] could not use Github
14
as a reference code.” Vaish argued that her hearing was
unfair because Derby had repeatedly cited the need to consult
an outside expert, but had abruptly decided to judge the code
for herself: “If she was going to look at the code herself,” Vaish
asked rhetorically, “why did she wait nearly four months to
resolve this case?” Vaish’s new evidence consisted of an email
from Chegg to her confirming that as of September 19, 2019,
there was no Chegg account under her name or the email address
that included her name.
On October 11, 2019, Atkinson denied Vaish’s appeal.
Atkinson explained that, although Vaish is correct that the
ECS 150 students were permitted to use online resources, “the
instructions provided by [Porquet] explicitly state that students
are required to properly cite the online resources” they use.
Vaish admitted to using online sources without citation, which,
Atkinson stated, “constitutes plagiarism.” The evidence of
similarities between her submissions and online sources provided
substantial evidence to support Derby’s decision.
Atkinson rejected Vaish’s arguments concerning the
fairness of the proceeding because Derby had given Vaish
“numerous opportunities to provide [her] perspective, present
evidence, and discuss [her] referral.” Any failure by Derby to
compare Vaish’s work with the online sources was immaterial
because “this comparison would not change the core issue [that]
you accessed online resources to inform your code without proper
citations.”
Atkinson rejected Vaish’s reliance on the new evidence of
Chegg’s email indicating the absence of an account in her name
or associated with her email address. Atkinson explained: “The
policy violation in question is regarding plagiarism, not online
15
postings. While the email account and name that Chegg initially
identified as being associated with the account supports the
findings, the content of your homework submissions in MAT 145
constitute plagiarism as outlined in the UC Davis Policy on
Student Conduct and Discipline regardless of the posting being
connected to you.”
Atkinson informed Vaish that there are no further appeal
rights and that the matter is closed.
F. Petition for Writ of Mandamus
On December 5, 2019, Vaish filed a petition for a writ of
administrative mandamus in the Los Angeles County Superior
Court.5 She argued that UC Davis failed to grant her a fair
hearing and that Derby abused her discretion by failing to
provide her with evidence of the source documents she allegedly
plagiarized and by failing to obtain a computer science expert to
evaluate the evidence. She further argued that she was deprived
of her right to confront and question the instructors who accused
her and that Derby based her decision in part on evidence that
Vaish had not seen. Vaish also asserted that the sanction of
dismissal from the University is excessive.
On September 14, 2021, the court denied Vaish’s petition.
The court stated it reviewed the issue of the fairness of the
administrative proceeding “as a question of law,” and reviewed
5 In her petition, Vaish sought a writ of administrative
mandate under section 1094.5 and a writ of traditional mandate
under section 1085. The trial court treated the petition as
a petition for administrative mandate, and Vaish does not
challenge such treatment on appeal.
16
the University’s factual findings to determine whether they are
supported by substantial evidence.
In rejecting Vaish’s claim that UC Davis did not provide
her with a fair hearing, the court explained that Vaish received
the informal hearing she “had agreed to” in the deferred
separation agreement, and the University “complied with its
own rules under the Deferred Separation agreement.” The court
also rejected Vaish’s argument that the University should have
provided her with copies of the source documents she allegedly
plagiarized. The court reasoned that Vaish’s statements to
Derby and her instructors “established [Vaish’s] violations of
the UC Davis Policy on Student Conduct and Discipline.”
The court rejected Vaish’s argument that she was denied
the right to confront and cross-examine witnesses because,
among other reasons, Vaish waived any right to confront or
question witnesses in the deferred separation agreement.
Lastly, the court concluded that the University did not
abuse its discretion in dismissing Vaish.
Vaish timely appealed.
DISCUSSION
A. Standards of Review
We review a judgment on a petition for writ of
administrative mandate under the same standards the trial court
applied in evaluating the underlying decision. (Doe v. Regents
of University of California (2016) 5 Cal.App.5th 1055, 1072.) We
thus determine “whether the respondent has proceeded without,
or in excess of, jurisdiction; whether there was a fair trial; and
whether there was any prejudicial abuse of discretion.” (Code
17
Civ. Proc., § 1094.5, subd. (b).)6 A “fair trial” in this context
means a “ ‘ “fair administrative hearing.” ’ ” (Doe v. University
of Southern California (2016) 246 Cal.App.4th 221, 239.) “We
review the fairness of the administrative proceeding de novo.”
(Ibid.)
An abuse of discretion in this context “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).) In determining whether the findings are supported
by substantial evidence, “ ‘we resolve all conflicts in the evidence
and draw all inferences in support of the agency’s findings.’ ”
(Alpha Nu Assn. of Theta XI v. University of Southern California
(2021) 62 Cal.App.5th 383, 411.) “Credibility is an issue of fact
for the finder of fact to resolve [citation], and the testimony of
a single witness, even that of a party, is sufficient to provide
substantial evidence to support a finding of fact. (Doe v. Regents
of University of California, supra, 5 Cal.App.5th at p. 1074.)
“We review the penalty imposed by an administrative
body for an abuse of discretion.” (Doe v. Regents of University
of California, supra, 5 Cal.App.5th at p. 1106.) We do not
substitute our views “ ‘for that of the administrative agency
concerning the degree of punishment imposed.’ ” (Ibid.)
B. Fairness of the Hearing
Vaish contends that UC Davis denied her a fair hearing
because “there was never even an actual hearing, just a series of
meetings between [her] and [Derby], who served as investigator,
6 Vaish raises no issue concerning the university’s
jurisdiction concerning the matter.
18
prosecutor, and judge.” Vaish further contends that she was
denied “the opportunity to cross-examine her accuser.”
Vaish’s arguments ignore her deferred separation
agreement. Indeed, Vaish does not mention the agreement
in her opening brief. Under that agreement, Vaish, who, at
the time she entered into the agreement had been found to
have committed three incidents of academic misconduct and
was subject to dismissal from the University, was permitted
to remain a student based upon her waiver of certain rights,
including the right to have “a formal hearing if reported again.”
The agreement referred Vaish to section 105.13 of the UC Davis
Policy on Student Conduct and Discipline, which provides
that a student on deferred separation status waives the right
to a “formal factfinding hearing.” Instead, in the event of a
subsequent referral to OSSJA, “the student has an opportunity
to meet with a judicial officer for an informal hearing” where
“the judicial officer tells the student the information supporting
the report, allows the student to respond and to submit any
relevant information on his or her behalf.” “The student does not
have the right to present witnesses or confront or question any
witnesses.” Lastly, the OSSJA judicial officer is permitted, but
not required, to “contact and talk with others to help evaluate
the alleged misconduct.”
Vaish did not assert below or in her appellate briefs that
the deferred separation agreement is invalid or unenforceable.
Indeed, in response to Regents’ reliance on the agreement in their
brief on appeal, Vaish states that “the signing of the agreement
is not at issue,” and offers no argument as to why the University
could not rely on the agreement or a court should not enforce it
19
according to its terms.7 Therefore, Vaish was not entitled to
a formal factfinding hearing or an opportunity to confront or
question her “accuser[s].” Vaish’s reliance on cases that hold that
a university must provide a student with a hearing more formal
than that to which she agreed or the right to confront and cross-
examine witnesses are thus inapposite.
In cases involving student discipline, “the university must
comply with its own policies and procedures.” (Doe v. Regents of
University of California, supra, 5 Cal.App.5th at p. 1073; accord,
Doe v. University of Southern California (2018) 28 Cal.App.5th
26, 35.) The applicable policies and procedures in this case
are those pertaining to students who, like Vaish, have agreed
to deferred separation status. Under the relevant version of
rule 105.13 of the UC Davis Policy on Student Conduct and
Discipline, Vaish was entitled to an “opportunity to meet with a
judicial officer for an informal hearing” where “the judicial officer
tells the student the information supporting the report, allows
the student to respond and to submit any relevant information
on his or her behalf.” “The student does not have the right
to present witnesses or confront or question any witnesses.”
The OSSJA officer “may contact and talk with others to help
7 During oral argument before this court, Vaish’s counsel
asserted that the waivers in the deferred separation agreement
violate public policy. He did not elaborate further. In any
case, we do not “consider arguments that are raised for the
first time at oral argument.” (Haight Ashbury Free Clinics,
Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539,
1554, fn. 9; accord, Ace American Ins. Co. v. Walker (2004) 121
Cal.App.4th 1017, 1027, fn. 2.)
20
evaluate the alleged misconduct.” Vaish has not shown that
the University failed to comply with these obligations.
Regarding the ECS 150 referral, Derby informed Vaish
that OSSJA had received a report concerning her first two
projects in ECS 150 that she had “copied code that was posted
publicly on github.” Derby reminded Vaish of her deferred
separation agreement and waiver of the right to a formal hearing
and to confront or question witnesses. Derby requested Vaish
to schedule a meeting with her, which would “constitute [the]
informal hearing” to which Vaish is entitled. Derby and Vaish
thereafter met twice, on June 11 and June 24, 2019. Between
these two dates, Professor Porquet provided to Derby a report
including screenshots of Vaish’s code and similar code Porquet
found online, annotated with Porquet’s comments and analysis.
The report also includes Vaish’s emails to Porquet, which include
her admissions that she looked at and used online sources like
Stack Overflow and Github to help her with her projects.
Although our record is largely silent as to what transpired
during the meetings between Derby and Vaish, we can infer from
email correspondence in the record that Derby provided Vaish
with Porquet’s report and asked Vaish for a written response,
which Vaish provided. There is nothing in the record to suggest
that Derby refused to accept any relevant information evidence
Vaish offered.
Vaish argues that Derby never produced to her the code
from Github that Vaish allegedly plagiarized. Porquet’s referral,
however, was based primarily on his comparison of Vaish’s
project submission with those submitted by other students and
code found on other online sources, such as Stack Overflow, not
Github. Github was relevant to Porquet’s investigation only
21
because he learned that the similar submissions from other
students had been left publicly accessible on Github. The fact
that the code had been posted on Github, however, appears to
have little relevance to the merits of the referral.
Vaish further argues that Derby informed her that she
would need to consult a computer science expert to determine
whether the similarities between Vaish’s work and the work of
others was coincidental or plagiarism, yet Derby never did so.
Although the record indicates that Derby sought the views of a
computer science expert and suggests that she did not retain one,
this does not mean that Vaish was deprived of a fair hearing.
Under the deferred separation agreement, Derby was permitted,
but not required, to “contact and talk with others to help evaluate
the alleged misconduct.” Derby may have reasonably decided
that she could evaluate the merits of the referral without
consulting others. Porquet’s report, we note, describes in detail
the similarities between Vaish’s work and the work of others,
and explains why the similarities “were above the threshold
of coincidence” as to project 1 and “staggering” as to project 2.
Derby could rely on Porquet’s evidence and opinions; an
independent expert is not necessary. (See Doe v. Regents of
University of California, supra, 5 Cal.App.5th at p. 1074 [“the
testimony of a single witness, even that of a party, is sufficient
to provide substantial evidence to support a finding of fact”].)
Moreover, Vaish admitted that she used online sources such as
Stack Overflow and Github and failed to cite to these sources—
itself a violation of UC Davis’s policy against plagiarism. As
Vaish told Derby, she did not deny cheating; rather, she denied
cheating in the way Porquet accused her of cheating. Derby
could thus decide whether Vaish committed academic misconduct
22
without consulting with experts, and there is neither a violation
of UC Davis’s policies nor any unfairness in doing so.
Regarding the MAT 145 referral, Derby gave Vaish
notice of Professor Severson’s report that she had been copying
homework solutions found online. Derby again reminded Vaish
of her waiver of rights under the deferred separation agreement
and of her rights under the informal hearing process described
in the agreement and the University’s policies. Derby and Vaish
met in person on August 14 and either in person or by telephone
on at least one other occasion to discuss the allegations and the
evidence. Although Vaish asserts that Derby never presented
her with the evidence supporting the decision, she does not
support the assertion with a citation to the record. Indeed,
the record is largely silent as to what evidence Derby provided
to Vaish, when evidence was provided, and what was said during
their meetings. It appears that, as of the date of Derby and
Vaish’s first meeting about this referral on August 14, the
evidence consisted of Severson’s statements, based on his review
of Vaish’s homework submissions, that her work was derived
from solutions available online, including one answer that
“was clearly copied from a solution [Severson] found online.” It
further appears from our record that the documentary evidence
showing the homework question posted on the Chegg site, the
posted answer to the question, and the information about the
person who posted the question, was not available until after
the August 14 meeting.
Even if Derby received the inculpatory information and
documents from Chegg after the last meeting between Derby
and Vaish and she did not provide Vaish with an opportunity
to respond to them, Vaish has not demonstrated that reversal
23
is required. An administrative procedural error must be
deemed harmless unless it is “ ‘reasonably probable a more
favorable result would have been reached absent the error.’ ”
(Thornbrough v. Western Placer Unified School Dist. (2013) 223
Cal.App.4th 169, 200.) After Derby’s decision, Vaish appealed
to UC Davis’s Associate Vice Chancellor and presented evidence
that, as of September 19, 2019, there was no Chegg account
under Vaish’s name or associated with her abandoned email
address. Vaish does not refer to any other evidence she might
have provided to Derby if she had been provided with the
information Derby received from Chegg. As the Associate
Vice Chancellor determined, however, whether she posted the
homework question on Chegg is inconsequential: “The policy
violation in question is regarding plagiarism, not online
postings,” and the evidence establishes that “the content
of [Vaish’s] homework submission in MAT 145 constitute[s]
plagiarism” under UC Davis’s “Policy on Student Conduct and
Discipline regardless of the posting being connected to [Vaish].”
Any failure to provide Vaish with the Chegg information earlier,
therefore, was harmless.
C. The Sanction of Dismissal
Vaish challenges the severity of the sanction imposed
on her, arguing that dismissal is punishment too harsh for her
misconduct. We review the University’s choice of disciplinary
sanction on an abuse of discretion standard and will disturb it
in the absence of “ ‘ “arbitrary, capricious or patently abusive” ’ ”
action. (Cassidy v. California Board of Accountancy (2013) 220
Cal.App.4th 620, 627−628.) No such showing is made here.
Derby imposed the sanction of dismissal based on Vaish’s
brief, but extensive, history of academic misconduct and noted
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her particular concern that the MAT 145 incident occurred while
the ECS 150 referral was still open, when Vaish was “aware
that [she] would be facing dismissal if found responsible for the
allegations related to ECS 150.” Derby concluded that, despite
being given “numerous opportunities” . . . “to understand and
comply with the expectations regarding academic honesty,” and
UC Davis’s “efforts to help [Vaish] to understand the rationale for
the policies, [Vaish] repeatedly engaged in academic misconduct.”
Vaish’s conduct, Derby concluded, demonstrated that she is
“either unable or unwilling to abide by UC Davis polic[ies]” and,
therefore, she “cannot continue as a student or earn a degree
from UC Davis.” Derby’s reasons are well-supported by
the record and her conclusion is well within the scope of her
discretion. Accordingly, we will not disturb the University’s
choice of sanction.
25
DISPOSITION
The judgment is affirmed. The respondent is awarded its
costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
26