Knight v. South Orange Community College Dist.

Filed 2/10/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MARCUS KNIGHT,
Plaintiff and Respondent, G058644
v. (Super. Ct. No. 30-2019-01055547)
SOUTH ORANGE COMMUNITY OPINION
COLLEGE DISTRICT et al.,
Defendants and Appellants.
Appeal from a judgment of the Superior Court of Orange County, Ronald
L. Bauer, Judge. Reversed.
Walsh & Associates and Dennis J. Walsh for Defendants and Appellants.
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for Plaintiff and
Respondent.
INTRODUCTION
Cultural evolution works faster than physical evolution. The body politic
changes more rapidly than the body, and sometimes the swiftness of that change can be
difficult for established institutions. Organizations that have functioned successfully for
a long time doing things one way may find it difficult to adjust to new realities. In this
case we deal with the efforts of an educational institution to deal with such changes. We
conclude it complied with the law.
Saddleback College and Juan Avalos, vice-president of Saddleback’s
student services and its Title IX officer, appeal from a judgment granting the petition of
1
Marcus Knight, a Saddleback student, for a writ of mandamus. Knight petitioned the
court regarding discipline imposed on him after two female students complained that he
was following them, taking photos of one of them on his phone, and touching them.
Knight has multiple disabilities, including cerebral palsy and autism, which have
complicated his experience at Saddleback.
In March 2018, Knight received a letter from Avalos stating that he was
“suspended” – that is, barred from classes and campus activities. It appears, however,
that he was allowed to attend classes anyway, while he contested the suspension.
Eventually the potential suspension was dropped, and a written disciplinary reprimand
was placed in his student record instead.
In the trial court, Knight based his mandamus petition on the ground that
the college did not afford him due process before it suspended him. By due process, he
did not mean notice and an opportunity to be heard, both of which he had. He meant a
hearing during which he or his counsel could confront and cross-examine witnesses. The
trial court granted the writ petition on that basis.
1
Saddleback College answered the petition as South Orange County Community College District.
2
Unquestionably, a student is entitled to some form of hearing and witness
confrontation before he or she can be suspended or expelled. The question before us is
whether Knight was entitled to the same level of due process before a written reprimand
could be placed in his student record, if he suffered no other official detriment.
We conclude that he was not entitled to this level of due process. The
parties have not presented us with any authority on point, and we have found none. We
have concluded that requiring a trial-like hearing before Saddleback could issue a written
reprimand places too great a burden on the college when compared to the minor
detriment to Knight. He received notice of the charges against him, and he had an
opportunity to respond – several opportunities, in fact. Had the suspension gone forward,
he would have had the hearing he feels he was entitled to. But it did not go forward, and
he received a much lower level of discipline. Accordingly, we reverse the judgment for
Knight and direct the trial court to enter judgment for appellants.
FACTS
South Orange County Community College District’s administrative
regulation No. 5401 governs standards of student conduct. It lists the activities for which
students can be disciplined, among which are violations of district regulations.
Administrative regulation No. 4000.5 prohibits “harassment,” including “physical
harassment.” “Physical harassment” means not only inappropriate touching but also
“physical interference with free movement.”
Regulation No. 4000.5 also defines the complaint procedure, which can be
either informal or formal. “The informal resolution process is intended to allow an
individual who believes he or she has been harassed to resolve the issue through an
informal or mediation process rather than the formal complaint process. A complainant
may wish to select the informal process when there is a simple misunderstanding or the
complainant does not wish to file a formal complaint. Examples of informal complaint
3
resolutions include clarification of a misunderstanding or an apology from the respondent
and his or her assurance that he or she will cease the offending behavior.”
On October 4, 2017, Knight and his mother, Aurora Knight, met with two
Saddleback administrators regarding a complaint by a female student-worker, N.R., that
Knight was following her around campus, trying to put his arm around her shoulder and
her hand on his thigh, and invading her personal space. The matter was informally
resolved, at N.R.’s request, with a mutual no-contact order, memorialized in a letter dated
October 11. N.R. explained that she understood Knight’s disability accounted for his
conduct and she did not want to get him into trouble. Nevertheless, she wanted Knight to
stop following her.
Notwithstanding the informal resolution and the no-contact order, as of
October 16 Knight was still following N.R. and disrupting her work. He was peering into
the staff lounge, and he made her afraid to go there alone. She was afraid to walk on
campus alone and had colleagues walk with her. She “no longer want[ed] to be on
campus because [she must] be escorted from place to place[.]” She considered calling in
sick to work to avoid Knight.
Knight apologized in a letter to N.R. dated October 18 and at another
2
meeting with school officials on October 19. In his letter, Knight described himself as a
“very lonely and depressed” person who just wanted to “make friends.” Aurora Knight
arranged for her son to have an attendant accompany him to classes beginning the
following week. The record does not contain any further complaints by N.R.
Administrative regulation No. 4000.5 provides: “The District is committed
to maintaining a safe and harassment free educational environment and may determine
that serious allegations may need to be investigated even if the complaining party
2
Aurora Knight may have also been present at the October 19 meeting.
4
considers the matter resolved. The District may also determine that the complaint will no
longer be held informally, and instead should proceed to the formal complaint procedure
stage.” The formal procedure begins with a “thorough, prompt, and impartial
investigation of the complaint,” which includes interviews with the complaining party,
the accused party, and any necessary witnesses; reviewing the relevant files; and
preparing an investigative report.
Saddleback has a range of disciplinary procedures ranging from verbal
reprimand through written reprimand, disciplinary probation, partial or full suspension, to
expulsion. The possibility of suspension triggers a hearing process closely resembling a
trial. The administrative regulations also provide a procedure for appealing to the college
president a suspension or a recommendation of expulsion imposed after the hearing.
Expulsion can be ordered only by the board of trustees.
At the end of October, less than two weeks after the resolution of the N.R.
incident, Saddleback received notice of another complaint by a female student, M.G.,
who was taking a class with Knight and told the instructor Knight was following her
around and taking numerous photos of her in their class, putting his hands on her while
doing so. M.G. told her instructor she was coming to class late so she would not
encounter Knight before class. She asked her instructor whether she could complete the
course work without coming to class and told him she was considering dropping the
class.
There was another meeting with Knight on November 8, 2017, this time
regarding M.G. The matter was continued for an investigation. Aurora Knight presented
Saddleback with a durable power of attorney for her son and demanded to be present at
any meeting between Saddleback representatives and Knight.
While the investigation was proceeding, Avalos sent Knight a letter, dated
December 1, 2017, formally apprising him of M.G.’s complaint, referring to intake
meetings with each party, and explaining that evidence would be gathered to determine
5
whether Knight would be “deemed responsible or not responsible” for the complaint.
The letter specified the complaint against Knight as “following [M.G.] around,” taking
“over 300 unauthorized pictures of her” and “forcefully plac[ing] your hand on her
shoulder while taking a selfie with her.” In the meantime, a mutual no-contact order was
put in place: Knight was to delete photos of M.G. from his phone, and he and M.G.
would not interact or sit next to each other in class.
On December 13, Aurora Knight responded in writing to the letter of
December 1 and to the discussion at the November 8 meeting. She asserted Knight had
M.G.’s permission to take the photos, which were of both of them, and denied Knight had
put his hand on M.G.’s shoulder or followed her around to take photos. She referred to
the meeting (presumably the one on November 8) in which all of these issues had been
discussed.
M.G. was interviewed on January 17, 2018. She said Knight would ask her
for a selfie at the beginning of class. At first she agreed, but when he asked her for a
photo at every class, she became worried about what he was doing with them. Another
student told her Knight had hundreds of photos of M.G. on his phone. He also placed his
hand on her shoulder at least once while taking a photo, putting enough pressure on her
neck that she went to the restroom to check whether his nails had drawn blood. Given the
amount of time that had passed and the fact she no longer attended Saddleback, M.G. was
not particularly interested in the investigation or its outcome.
Another meeting with Aurora Knight took place on February 12, 2018. She
refused to allow Knight to participate. She insisted Knight had “perfect behavior” on
campus and refused to tell him not to take selfies on campus because “this is how he
makes friends.” She accused Saddleback of discriminating against Knight and stated he
was not wanted on campus because he is different.
6
3
The investigative report was finalized on March 8, 2018. The report noted
that “[Knight] and his mother have an expectation that our community college can
provide a secure learning environment much like their high school experiences.
Unfortunately, the campus and the student body is simply too large. There is an
expectation that all of [Knight’s] instructors explain [his] need for selfie taking, which is
an unreasonable request.” The report concluded that “[Knight] has a pattern of
attempting to get too close within people’s personal space, and is unable to understand
why this is perceived as threatening to students.” The report also noted Aurora Knight’s
refusal on Knight’s behalf to stop approaching students to take photos. The report ended
with a recommendation Knight be suspended for the remainder of the 2018 spring
semester, until an agreement was made prohibiting him from taking selfies with others on
campus.
On March 28, 2018, Avalos sent Knight a letter setting out the results of the
investigation of M.G.’s complaint. The letter includes a timeline of the complaints
against him, including a complaint from a faculty member regarding Knight’s behavior in
4
class on September 21, 2017, which may have preceded N.R.’s complaint. The March
28 letter stated, “Based on the preponderance of the evidence, Saddleback College has
found you responsible for taking selfies without permission and forcefully placing hands
on Complainant’s [i.e., M.G.’s] shoulders while taking selfies. Given the continued
complaints and concerns regarding your ability to be on campus independently without
causing disruptions or presenting a threat or perceived threat to our student body,
Saddleback College has decided to suspend you from the South Orange County
3
The investigator is not named. Knight identified this person as “Penny Skaff, Dean of Counseling
Services,” presumably because the December 1 letter stated that she would contact Knight to set up his interview.
The author of the report personally observed Knight “struggle with his balance sitting down and getting up from a
chair during meetings where he has attended.” This observation led the author to conclude that M.G. was probably
accurate in reporting that Knight had put his hand on her while taking the photos.
4
The faculty member’s complaint was for disruptive behavior, willful disobedience, profanity, and
open defiance of authority on September 21. The instructor observed that Knight needed “constant reminding of the
tasks in order to complete the work.”
7
Community College District for the spring 2018 semester and recommend you take this
time to seek out assistance you may need before considering re-enrolling at Saddleback
College in the future. [¶] A hold has been placed on your student records, which bars
you from accessing your student account. Our suspension policy is listed in Board Policy
5401 section IV, B. 4 and states, ‘Removal from all classes and activities of the District
and its colleges for one or more terms. During this time, the student may not be enrolled
in any class or program within the District’. [¶] If you wish to appeal this suspension
you may do so by contacting my office in writing within ten working days of receipt
of this letter to request a hearing conducted by the Disciplinary Hearing Panel. If
you should request, this hearing will be conducted within ten days of receipt of your
official request for appeal.” (Boldface in original.)
On April 3, Aurora Knight received confirmation through the office of
student services that Knight could attend classes while awaiting the results of the hearing.
On April 12, Avalos sent Knight a letter setting a date and time for a “disciplinary
5
hearing,” which Knight had apparently requested.
Knight retained counsel, and there is a gap in the administrative record after
6
some emails from his counsel in April and May regarding the hearing. The next
document is a letter from Avalos dated August 2, 2018, stating that Knight had been
7
notified that the hearing was canceled due to witness unavailability. “In lieu of
suspension,” Saddleback issued a “disciplinary notice stating expectations with regard to
[his] future conduct.”
The August 2 letter included a timeline of complaints against Knight from
the 2017-2018 academic year, which largely duplicated the timeline of the March 28
5
The administrative record does not reflect a discussion before April 3 of Knight’s ability to attend
classes despite the March 28 letter or include a written appeal and a request for a hearing.
6
Knight’s counsel demanded the “alleged inculpatory evidence supporting [his] suspension” on
April 17, 2018, and an authorization to release Knight’s student records was signed on April 18.
7
No written notice appears in our record.
8
8
letter notifying Knight of Saddleback’s intention to suspend him. After this list, the
letter recounted Knight’s decision to “appeal [his] suspension” and stated that he was
allowed to attend class and register for classes pending the appeal. The letter further
stated Knight had violated South Coast Community College District’s policies and
regulations regarding harassment and discrimination. The letter closed with an invitation
to Knight to “submit a written statement to be retained with this correspondence in [his]
student record.” Our record does not include such a written statement.
Knight petitioned for a writ of mandate on March 7, 2019. The relief he
requested was an order to “set aside” Saddleback’s “order or decisions and all findings
and sanctions against [Knight].” He alleged, “Where an accused student faces severe
consequences and the determination of facts turns on credibility, the opportunity to be
heard must include questioning of the complainant and adverse witnesses by the accused
student or their agent in a live, adversarial, back-and-forth setting before neutral fact-
finder(s), so that the accused can expose weaknesses in the witnesses’ testimony.” He
further alleged that (1) he was not provided notice of the potential violations of the policy
sections, (2) he had no opportunity to question the complainant or adverse witnesses in
front of a neutral fact-finder at a live evidentiary hearing, (3) Avalos failed to analyze and
document all the available evidence and objectively evaluate the parties’ credibility, (4)
8
The timeline of the August 2 letter and those of the investigative report and letter of March 2018
differ in one respect. The August 2 letter suggests that a third female student may have reported that Knight was
following her on campus. The letter refers to a “meeting” with a college representative, Knight, and Aurora Knight
that took place on September 12, 2017, to discuss Knight’s conduct in following a female student. The
administrative record does not include a separate report of this meeting. It does include a report of an “incident”
dated September 12 that may be N.R.’s initial complaint and of a meeting on October 2, which may be the same
meeting that was reported with a date of October 4 and that concerned N.R.’s complaint. The report of the
September 12 incident identified the “primary violation” as “disruptive behavior, willful disobedience, profanity,
open defiance of authority,” the same violation that appeared on the faculty member’s incident report of September
21. The body of the report, however, concerned Knight’s conduct in following a female student around campus and
duplicates to some extent the circumstances of N.R.’s complaint.
The investigative report timeline begins with the faculty member’s incident report of September
21, proceeds to N.R.’s complaint, dated September 25, then to the meeting on October 4, to the no-contact letter of
October 11, and to the second complaint by N.R. on October 16. There is no reference to anything occurring on
September 12. The letter of March 28, informing Knight of the intention to suspend him, likewise does not refer to
an incident occurring on September 12.
9
evidence never provided to Knight was relied upon, and (5) a single-person investigation
and decision is not a fair and impartial process for adjudicating complaints of sexual
misconduct.
The trial court granted Knight’s petition and ordered Saddleback “to set
aside the order or decision issued against [Knight], including all findings and sanctions.”
The judgment did not specify the “order,” “decision,” “findings,” or “sanctions” to be set
aside.
DISCUSSION
We begin by discussing an underlying assumption: Knight based his
9
petition on Code of Civil Procedure section 1094.5, which provides a means of
“inquiring into the validity of any final administrative order or decision made as the result
of a proceeding in which by law a hearing is required to be given, evidence is required to
be taken, and discretion in the determination of facts is vested in the inferior tribunal,
corporation, board, or officer[.]” (§ 1094.5, subd. (a), italics added.) The task of the
superior court, like our own on appeal, is to 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. 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.” (§
1094.5, subd. (b).) If the writ is granted, then the order or decision must be set aside. (§
1094.5, subd. (f).) Neither we nor the trial court reweigh the evidence. We must resolve
conflicts in the evidence in favor of the agency. In addition, the agency’s determinations
receive substantial deference from us. (Save Our Heritage Organisation v. City of San
Diego (2015) 237 Cal.App.4th 163, 173.)
9
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
10
His resort to section 1094.5 assumes that Knight was entitled to a hearing
“by law” and that Saddleback did not proceed “in the manner required by law” during
this hearing. That is by no means clear. Those are questions we must resolve in this
10
appeal. Moreover, the trial court did not specify which order or decision was to be set
aside. This is another question we must resolve.
In Goss v. Lopez (1975) 419 U.S. 565 (Goss), the United States Supreme
Court addressed students’ due process rights when suspensions up to 10 days were
11
imposed on them. The court ruled that the students had a due process right to a hearing;
“[a] 10-day suspension is not de minimis in our view and may not be imposed in
complete disregard of the Due Process Clause.” (Id. at p. 576.) “[T]he total exclusion
from the educational process for more than a trivial period, and certainly if the
suspension is for 10 days, is a serious event in the life of the suspended child.” (Ibid.)
The court then turned to the question of what process is due. The minimum
amount of due process was notice and an opportunity to be heard – information that “the
matter is pending” and a chance to “choose . . . whether to . . . contest.” (Goss, supra,
419 U.S. at p. 579.) The court concluded that “[s]tudents facing temporary suspension
have interests qualifying for protection of the Due Process Clause, and due process
requires, in connection with a suspension of 10 days or less, that the student be given oral
or written notice of the charges against him and, if he denies them, an explanation of the
evidence the authorities have and an opportunity to present his side of the story.” (Id. at
p. 581.)
10
If Knight wished to proceed under section 1085, the remedy would be different. The remedy
would be to compel Saddleback to hold a hearing or to admit him to classes, not to set aside any orders. (§ 1085,
subd. (a).)
11
The issues in Goss do not exactly parallel the present case. The students in Goss were high school
students and were required by law to attend school. They therefore had a property interest in their education that
could not be taken away without due process. (Goss, supra, 419 U.S. at p. 574.) “A university disciplinary
proceeding concerning sexual misconduct does not involve a fundamental vested right[.]” (Doe v. University of
Southern California (2018) 29 Cal.App.5th 1212, 1231; see also Doe v. Claremont McKenna College (2018) 25
Cal.App.5th 1055, 1065; Doe v. University of Southern California (2016) 246 Cal.App.4th 221-239.)
11
“We stop short of construing the Due Process Clause to require,
countrywide, that hearings in connection with short suspensions must afford the student
the opportunity to secure counsel, to confront and cross-examine witnesses supporting the
charge, or to call his own witnesses to verify his version of the incident. Brief
disciplinary suspensions are almost countless. To impose in each such case even
truncated trial-type procedures might well overwhelm administrative facilities in many
places and, by diverting resources, cost more than it would save in educational
effectiveness. Moreover, further formalizing the suspension process and escalating its
formality and adversary nature may not only make it too costly as a regular disciplinary
tool but also destroy its effectiveness as part of the teaching process. [¶] On the other
hand, requiring effective notice and informal hearing permitting the student to give his
version of the events will provide a meaningful hedge against erroneous action. At least
the disciplinarian will be alerted to the existence of disputes about facts and arguments
about cause and effect. He may then determine himself to summon the accuser, permit
cross-examination, and allow the student to present his own witnesses. In more difficult
cases, he may permit counsel. In any event, his discretion will be more informed and we
think the risk of error substantially reduced.” (Goss, supra, 419 U.S. at pp. 583-585.)
Goss thus identified two levels of due process that apply to student
discipline. The first level is notice of the charges and of the evidence and an opportunity
to state the student’s side of the story, to explain. This is the “hearing” referred to in the
opinion. (Goss, supra, 419 U.S. at pp. 576, 579.) The second level builds upon the first
and assumes the first level has been afforded. The second level is the formal hearing,
with witnesses and cross-examination. Goss clearly states that the first level is required
before a suspension of 10 days or less may be imposed, but the second level of due
process is not required even before imposing a short suspension.
In the past five years, a string of California cases has hammered out the due
process requirements for a postsecondary student (invariably male) accused of sexual
12
assault or harassment of a female student. These situations have become increasingly
fraught as the federal government has threatened to withhold funding from schools that
do not comply with Title IX strictures against sex discrimination, which includes non-
12
consensual sexual activity. The colleges and universities receiving federal funds are
charged with “prompt and equitable resolution of student . . . complaints . . . .” (34
C.F.R. § 106.8(b).)
The most recent consensus appears to be that a student facing suspension or
expulsion for non-consensual sexual activity has the right to notice of the charges. (See,
e.g., Doe v. University of Southern California, supra, 246 Cal.App.4th at p. 241.) The
school must follow its own policies and procedures. (See, e.g., Doe v. Regents of
University of California (2016) 5 Cal.App.5th 1055, 1078). The accused student must
have access to the evidence. (See Doe v. Regents of University of California (2018) 28
Cal.App.5th 44, 57.) There must be an in-person hearing, including testimony from the
parties and witnesses. (See, e.g., Doe v. Westmont College (2019) 34 Cal.App.5th 622,
637.) In addition, because most cases turn on credibility (he-said, she-said), the
adjudicator or adjudicators must be able to see the parties’ testimony and the testimony of
important witnesses so their demeanor may be observed, and the accused student must
have an opportunity for cross-examination. (See Doe v. Allee (2019) 30 Cal.App.5th
1036, 1069 (Allee); Doe v. Occidental College (2019) 40 Cal.App.5th 208, 224; Doe v.
13
University of Southern California, supra, 29 Cal.App.5th at p. 1237.) He must also
have “‘a full opportunity to present his defenses.’ [Citation.]” (Doe v. Regents of
12
Title IX (20 U.S.C. § 1681, subd. (a)) provides, in pertinent part, “No person in the United States
shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance . . . .”
13
Recognizing that a complainant may be reluctant to be in the same room with the person she is
accusing of assaulting her, the courts have explained that cross-examination need not be face-to-face.
Videoconferencing or some other similar technology may be employed, so long as the fact finder can see the
complainant’s testimony in real time. (See, e.g., Allee, supra, 30 Cal.App.5th at p. 1069.)
13
University of California, supra, 5 Cal.App.5th at p. 1104; see also Doe v. Claremont
McKenna College, supra, 25 Cal.App.5th at p. 1070.)
We have no doubt that if Saddleback had suspended Knight without a
hearing of this kind, he would be entitled to have his suspension set aside. Absent an
imminent threat, a school cannot suspend first and ask questions later. But in this case,
Knight was not in any real way suspended – that is, he was not barred from campus or
from his classes. The only consequence he suffered was a written reprimand. To what
level of due process was he entitled under the circumstances and did he receive it? And
what “order,” “decision,” “findings,” or “sanctions” became the subject of the writ?
I. Student N.R.
This student complained about Knight’s conduct at least as of October 2017
and possibly as early as September. Two meetings were held about the complaint in
October, meetings Knight attended. His mother was definitely present at one meeting
and may have been present at the second one. The first meeting resulted in a mutual no-
contact order, which Knight promptly, and admittedly, violated.
Knight was unquestionably “physically harassing” N.R., as that term is
defined in Saddleback’s regulation. He was “physically interfering” with her “free
movement.” He admitted to doing so.
N.R.’s complaint was resolved at the second meeting by providing an
attendant to accompany Knight to class. One purpose of this attendant was, presumably,
to prevent Knight from violating the order again. As this was Knight’s own suggestion –
or perhaps his mother’s – it cannot be regarded as a sanction.
Knight received the level of due process appropriate to the situation: notice
and an opportunity to explain his conduct. The “findings” – Knight’s physical
harassment of N.R. – were not disputed. What was disputed was his intent. No findings
were made about his intent. The no-contact order was mutual and was entered into
14
voluntarily, as a result of discussions at two meetings. The record does not support a
claim that Knight was deprived of due process before this order was issued.
II. Student M.G.
This student’s complaint had more serious consequences. Again there were
two meetings to discuss Knight’s behavior, one on November 8, 2017, the other on
February 12, 2018. The letter of December 1, which issued interim orders while the
investigation of M.G.’s complaint was taking place, required Knight to have no contact
with M.G., delete her photos from his phone, and to refrain from interacting with her or
sitting next to her in class. These orders are now moot, since class is over and M.G. no
longer attends Saddleback. Presumably the photos have been deleted.
The next incident in the M.G. complaint process was the letter of March 28,
2018. The letter informed Knight that “Saddleback College has decided to suspend you
. . . for the spring 2018 semester” and explained what that meant: “Removal from all
classes and activities of the District and its colleges for one or more terms. During this
time, the student may not be enrolled in any class or program within the District.” In
addition, a “hold” was placed on his account, “which bars you from accessing your
student account.” The consequences of not having access to this account are not
explained.
Again, before the issuance of the March 28 letter, Knight had first-level due
process: he (and his mother as his representative) received information regarding M.G.’s
complaint and had more than one opportunity to respond. In fact, there were two
meetings, one before and one after M.G.’s interview. Aurora Knight also wrote a letter in
December, after the first meeting and after receiving the interim order of December 1,
stating Knight’s case point by point, demonstrating that she knew exactly what charges
had been leveled against Knight. She also attended the meeting after M.G.’s interview to
contest the findings, while refusing to allow Knight to attend. There could be no question
that he was as thoroughly apprised as possible under the circumstance of the charges
15
against him, just as there could be no question that, if M.G.’s complaint was credited, he
was physically interfering with her free movement.
Although the March 28 letter stated Saddleback had decided to “suspend”
him, Knight was not “removed from all classes and activities”; he was permitted to attend
classes, and he has not contended he was denied access to activities. While it was
expressed rather clumsily, the purpose – and more importantly, the effect – of the March
28 letter appears to have been to forcefully inform Knight that Saddleback was
14
recommending or contemplating suspension and to explain the reasons. If Knight
disagreed, he could appeal the recommendation, in which case he could have a full-dress
hearing, as nearly as possible like a trial, the second level of due process. And, in fact,
Knight disagreed, and the hearing procedure was invoked. In the meantime, however,
nothing changed.
The hearing procedure collapsed after M.G. declined to testify. Saddleback
recognized it could not suspend Knight without a hearing. Instead, Avalos issued a
“disciplinary notice,” the letter of August 2, 2018, which appears to conform to the
second lowest of Saddleback’s disciplinary procedures, the written reprimand.
This brings us to the question of what “order,” “decision,” “findings,” or
“sanctions” relating to the M.G. complaint should be set aside for lack of due process.
But before we can address this question we need to be completely clear about what due
process entails.
As described in Goss, when it comes to student discipline, there are two
levels of due process. (Goss, supra, 419 U.S. at pp. 584-585.) The first level is notice of
the charges and their basis and an opportunity to contest them. The second level, which
assumes the student has had the first level, is the hearing with witnesses, cross-
examination, and the rest.
14
Avalos referred to this letter as “a notice of the intention to suspend and the grounds for the
proposed suspension[.]”
16
The “findings” are recorded in the March 8 report, which gave the results of
15
the interviews and recommended suspension. This report was generated as part of the
prescribed investigative process for a formal complaint, and Knight or his mother was
interviewed at least twice in connection with its preparation. We agree that Knight was
entitled to first-level due process (notice and an opportunity to respond) in the
preparation of the report, and he appears to have received it. There were two meetings
addressing the charges and Knight’s response to them. He, or his mother as his
representative, presented his side of the story, in the letter of December 13, which
contested each of the charges against him and stated his position.
The “decisions” and “sanctions” are harder to pinpoint. The March 28
letter said Knight was suspended, but apparently he never was. So the “decision” to
suspend him and the “sanction” of suspension cannot be set aside because they did not
happen.
The last decision and sanction in the record is the August 2 letter, which
substituted a written reprimand, the second lowest level of discipline, for suspension. So
the question we must face is whether Knight was entitled to the second level of due
process – hearing and witness confrontation – before the reprimand that he would have
been entitled to before he could have been suspended?
We have found no published cases holding that a student is entitled to this
level of due process before receiving a written reprimand, and Goss militates against such
a requirement. In Goss, it will be recalled, the basic due process for a suspension was
notice and an opportunity to explain. If there are “disputes about facts and arguments
about cause and effect[,]” then the disciplinarian may want to go to the next level – the
presentation of witnesses and cross-examination. (Goss, supra, 419 U.S. at pp. 584-585.)
15
The interim order reflected in the December 1 letter – no contact, delete the photos – is, as we
have already stated, moot because M.G. no longer attends the class or the college. We assume the photos were
deleted in December, as ordered.
17
From the more recent published cases dealing with suspension and
expulsion from postsecondary schools, we have distilled the following process: (1) a
student is accused of misconduct; (2) the school lets the student know what the
accusation is and how he/she is alleged to have violated school rules (notice) and gives
him/her the opportunity to explain or contest the accusation (first-level due process);
(3) the school investigates; (4) the school informs the student that, after completing the
investigation (including his/her version of events), it is considering suspension (or
expulsion); and (5) the student decides whether to object to being suspended (or
expelled). If the student does object, then there must be (6) a hearing, live testimony, and
the full panoply of trial-like procedures (second-level due process). That second level of
due process becomes mandatory only before the penalty of suspension can be imposed
upon an objecting student.
In effect, Knight is arguing second-level due process is required before the
school can inform the student that it is considering suspension, that is, before step (4).
Knight has not offered us any cases supporting that position.
Knight also argues that he had no opportunity to contest the August 2 letter,
that it was put in his file without due process. The August 2 letter represented the
culmination of all the events that had taken place since the previous October. It
contained nothing new. All the circumstances leading up to the written reprimand had
been thoroughly discussed with Knight and his mother over the intervening months.
These same circumstances formed the basis of the March 28 suspension letter, which
prompted Knight to demand a hearing. Knight had received first-level due process –
notice of the charges and a chance to present his evidence – well in advance of the
August 2 letter. There was no requirement to have further discussions in July about
events from the previous fall and winter that had already been thoroughly discussed.
In arguing he had no opportunity to present his evidence, Knight simply
ignores the two meetings he and then his mother had with Saddleback administrators.
18
Aurora Knight’s December 13 letter refers to the meeting of November 8 and states
Knight’s side of the story point by point. There was another meeting on February 12,
during which Aurora Knight again presented Knight’s version of events and categorically
refused to tell him not to approach people for selfies.
Moreover, Knight had another opportunity to respond with his side of the
story, an opportunity he declined. Education Code section 76233 provides: “Whenever
there is included in any student record information concerning any disciplinary action
taken by community college personnel in connection with the student, the student shall be
allowed to include in such record a written statement or response concerning the
disciplinary action.” The August 2 letter invited Knight to submit such a written
16
statement, but he did not. He sued instead.
Knight argues that the presence of the August 2 reprimand letter in his
confidential student record “adversely affects [his] life.” Therefore, before the letter can
go into the record, Knight must have a hearing with live testimony and cross-
examination, i.e., second-level due process.
According to administrative regulation No. 5401, a written reprimand
“[b]ecomes part of the student file for a minimum of five years or longer at the discretion
of the disciplinary officer and is considered in the event of future violations.” It is true
that the letter will stay in Knight’s student record. But we cannot see that this is unfair to
him. His mother, speaking on his behalf, categorically refused to halt his habit of
approaching students on campus to take photos. Campus administrators in charge of
dealing with harassment are entitled to know Knight’s history if another such complaint
16
Education Code section 76232 provides a process by which a student may correct or remove
inaccurate information in his or her student records. This process ultimately involves taking the matter to the
governing board of the community college district, whose decision is final. (Ed. Code, § 76232, subd. (c).) If the
student receives an unfavorable decision from the governing board, he or she may still object to the information in
writing. (Ed. Code, § 76232, subd. (d).) Thus the Education Code provides yet another opportunity for a student to
record his or her version of events.
19
is made. There is a significant difference for disciplinary purposes between a first-time
offense and a pattern of similar conduct.
There is also an important difference between this case and the typical
college misconduct cases cited in this opinion. In most of those cases, the facts are
disputed; they are “he-said-she-said” cases in which credibility of both parties and
witnesses plays a large part. In this case, however, there was no essential dispute about
the facts. Knight was following N.R., even after he had agreed not to do so. He had
17
taken enough photos of M.G. to make her uneasy about them and him. The dispute
here was ultimately about whether these students were justified in finding his conduct
unsettling and in asking to have it stopped.
The investigative report concluded Knight had a “pattern of attempting to
get too close within people’s personal space” and he could not “understand why this is
perceived as threatening to students.” The report also observed that a strategy that may
have worked well in high school – approaching people and asking for photos – was not
suited to the college environment. Knight’s refusal to stop this practice – and his
mother’s insistence that his right to make friends overrode the disquiet it caused –
effectively decided the outcome. Knight was violating the school’s policy against
harassment, and he had to be warned that he faced more severe sanctions if he continued
on this course.
We conclude that first-level due process – notice and an opportunity to
18
respond – is required before a written reprimand may be placed in a student’s record.
We also conclude that Knight received this level of due process. Saddleback did not need
to afford him second-level due process before issuing a written reprimand.
17
There was a dispute about whether Knight had touched M.G. The investigator resolved this
dispute in M.G.’s favor after observing Knight struggling to keep his balance to sit down and to get up from a chair.
As stated above, we do not reweigh the evidence upon which the school based its determination. (See Save Our
Heritage Organisation v. City of San Diego, supra, 237 Cal.App.4th at p. 173.)
18
See Education Code sections 76242 et. seq. for privacy protections afforded to student records.
20
DISPOSITION
The judgment is reversed. Respondents are to recover their costs on appeal.
BEDSWORTH, ACTING P. J.
WE CONCUR:
THOMPSON, J.
GOETHALS, J.
21