Alpha Nu Assn. of Theta XI v. University of So. Cal.

Filed 3/3/21; modified and certified for publication 3/23/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ALPHA NU ASSOCIATION OF B303269
THETA XI,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 18STCP02516)
v.
UNIVERSITY OF SOUTHERN
CALIFORNIA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mitchell L. Beckloff , Judge. Affirmed.
Hathaway Parker, Mark M. Hathaway and Jenna E.
Parker for Plaintiff and Appellant.
Paul Hastings, J. Al Latham, Jr., Paul W. Cane, Jr.
and Cameron W. Fox for Defendants and Respondents.
__________________________________________________
INTRODUCTION
Appellant Alpha Nu Association of Theta Xi (Theta Xi),
a national fraternity, challenges the decision by respondent
University of Southern California (USC) to suspend
recognition of Theta Xi’s USC chapter for six years. In
January 2018, in response to a complaint submitted that
month by former Theta Xi member John Schaar, USC’s
Office of Student Judicial Affairs and Community Standards
(SJACS) began investigating allegations that Theta Xi had
hazed new members in fall 2016 and fall 2017, and had
served alcohol at recruitment events. The investigation was
conducted by respondent Donna Budar-Turner (SJACS’s
director) and another investigator. SJACS interviewed
Schaar and four Theta Xi members, and received
documentary evidence from both Schaar and Theta Xi.
SJACS ultimately found that in fall 2016 and fall 2017,
Theta Xi’s active members expected and at times required
underage pledges to participate in drinking games designed
to induce severe inebriation, subjected pledges to
requirements likely to compromise their dignity and deprive
them of sleep, and encouraged pledges to fight other
members as a spectator sport. Specifically, SJACS found
that during a brotherhood retreat, pledges were required to
participate in an “Around the World” event featuring at least
five varieties of alcoholic beverages, during which pledges
2
were encouraged to drink in large quantities, and some
members fell ill. Within the Theta Xi house, pledges played
Power Hour (each participant drank a shot of beer every
minute for an hour), War (each team drank 60 cups of beer
and Four Loko as fast as possible), and the Great American
Challenge (each team raced to consume a 30-pack of beer, in
addition to pizza and marijuana). Throughout their
initiation week, all 11 members of the 2016 pledge class
were required to sleep in the Theta Xi house’s small library,
which was not large enough to accommodate them, and to
clean the library to the active members’ satisfaction if they
wished to sleep undisturbed. At the same time, pledges wore
costumes of cartoon and comic book characters at the request
of active members. Moreover, pledges participated in annual
“fight night” events, during which members fought other
members with whom they had a dispute, watched by an
audience of members and others -- at times resulting in noise
complaints. On the basis of these findings, SJACS concluded
that Theta Xi had violated nine sections of the University
Student Conduct Code (USC Code), including sections
prohibiting hazing and the serving of alcohol to anyone
under 21. SJACS determined that the appropriate sanction
was a six-year suspension of USC’s recognition of the local
Theta Xi chapter.
Theta Xi appealed the suspension to USC’s Student
Behavior Appeals Panel (SBAP). Theta Xi acknowledged the
truth of several of SJACS’s findings, including the findings
that pledges had participated in “fight night” and been
3
invited by active members to drink alcohol, but argued the
underlying activities were voluntary and therefore did not
warrant sanctions. Theta Xi also characterized several of
the underlying activities as innocuous; for instance, it
characterized “fight night” as a boxing lesson held in the
spirit of healthy dispute resolution, and compared Power
Hour and the Great American Challenge to hypothetical
games of Monopoly and backgammon. In responding to and
rejecting the appeal, respectively, SJACS and SBAP
emphasized that Theta Xi had violated USC rules regarding
hazing and alcohol. They also observed that Theta Xi had
failed to evaluate its culture or to take responsibility for its
members’ actions, and that the six-year suspension would
incentivize Theta Xi to make changes to its culture and
leadership before seeking to resume activities as a USC
student organization. The suspension became final when
SBAP’s decision was approved by respondent Ainsley Carry,
then USC’s vice president for student affairs.
Theta Xi filed a petition for a writ of administrative
mandamus against USC, Budar-Turner, and Carry under
Code of Civil Procedure section 1094.5. Theta Xi alleged
that USC’s suspension decision should be set aside because
USC’s administrative procedure had been unfair, and
because SJACS’s factual findings were not supported by the
evidence. Rejecting both allegations, the trial court denied
the petition.
On appeal, Theta Xi contends (1) USC acted in excess
of its jurisdiction by suspending its recognition of Theta Xi’s
4
USC chapter based on events that preceded Schaar’s
complaint by more than one year; (2) SJACS’s factual
findings were unsupported by the evidence; (3) USC’s
decision was unsupported by SJACS’s factual findings; and
(4) USC’s administrative procedure was unfair.
Finding no error, we affirm.
FACTUAL BACKGROUND
A. USC’s Administrative Investigation
1. Schaar’s History with Theta Xi
Theta Xi, a national fraternity, has long operated a
chapter at USC, in addition to chapters at other universities.
Theta Xi owns a house near the USC campus, and rents
rooms in it to members and non-members. Events held to
recruit new members are known as “rush” events. Rush
events held without university approval -- including all rush
events involving alcohol -- are known as “dirty” rush events.
Newly admitted members are referred to as “associate
members” or “pledges.” Pledges are required to undergo an
initiation process before becoming “active” members. The
week before their initiation into active status is known as
initiation week or “hell week.”
In fall 2016, John Schaar was one of 11 pledges at
Theta Xi’s USC chapter. His girlfriend, Sarah Nuckel, was a
tenant in the Theta Xi house. After an initiation week in
October 2016, he became an active member. In 2017,
disputes arose between Theta Xi, on the one hand, and
Schaar, Nuckel, and Schaar’s mother, on the other. These
5
disputes related to (1) allegations that Schaar had sexually
harassed and sexually assaulted women; (2) Schaar’s desire
to renounce his Theta Xi membership in order to join
another fraternity; and (3) Theta Xi’s attempts to collect
unpaid rent from Nuckel after she moved out of the Theta Xi
house before the end of her lease.
In the course of these disputes, Schaar’s mother left a
voicemail for the director of chapter services at Theta Xi’s
headquarters in Missouri, alleging that Theta Xi had hazed
Schaar and forced him to drink alcohol, and threatening to
“‘tell[] the whole story’” to USC’s administration.
Additionally, in text messages to the USC chapter’s
president (Jose Casillas) and house manager (Michael
Marzouk), Schaar predicted that Theta Xi would soon hear
from SJACS, and that Theta Xi would “lose,” “get fucked,” or
be “kicked off campus.”
2. Schaar’s Complaint
On January 10, 2018, SJACS received a written
complaint from Schaar concerning his experiences as a
1
Theta Xi pledge in fall 2016. Schaar alleged he and other
pledges had “endured a number of different hazing incidents
. . . .” First, the pledges had participated in “[l]ots of forced
1
Schaar’s complaint was submitted about 14 months after
his experiences as a pledge. The USC Code provides, “Generally,
a matter will be reviewed only when a report has been filed with
[SJACS] within one year of discovery of the alleged violation.”
6
drinking activities,” including the Great American Challenge
(which was later described by Schaar and active Theta Xi
members as a game in which competing teams each consume
a 30-pack of beer, in addition to pizza and marijuana).
Second, on the first morning of hell week, the pledges were
awakened at 5:00 a.m., forced to drink alcohol, and required
to run laps, during which one pledge fell and “cut his knee
very bad.” Third, active members blindfolded Schaar,
confiscated his phone and wallet, and dropped him off (while
he was wearing only a “morph suit”) at the University of
California, Los Angeles (UCLA), where he and other pledges
were told to complete tasks and find their way back to USC.
Fourth, Theta Xi held a “fight night” event, during which
active members required pledges “to drink copious amount[s]
of alcohol and . . . fight each other while actives watched.”
Finally, for 10 days (including hell week), the active
members required all 11 pledges to sleep in the Theta Xi
house’s small library, which was not large enough to
accommodate them. During that 10-day period, “[s]everal
[pledges] got sick because of lack of sleep and the gross
conditions of the room.”
Schaar alleged that Jose Casillas and Damian Ortega
had been the active members “in charge of hazing,” and that
the specified incidents could be corroborated by witnesses
and “group messages.” He submitted screenshots of several
group text messages sent by active Theta Xi members.
Messages from late October 2016 implied that pledges were
7
2
then required to sleep in the Theta Xi house’s library.
Messages from January 2017 indicated that Theta Xi was
then hosting rush events at which potential members
3
participated in drinking games.
Along with Schaar’s complaint, SJACS received a
statement from Schaar’s girlfriend, Sarah Nuckel. She
alleged that after Schaar left Theta Xi, its members had
launched a “smear campaign” against him, repeatedly lying
to her and her friends that Schaar had embezzled money and
2
On October 27, 2016, Theta Xi member Peter Chen wrote,
“The ass mems [associate members] are at the house from
6pm-6am[.]” The next day, Theta Xi member Derek Cheng wrote,
“[T]he AM [associate member] group . . . will need to keep that
room clean if they want to sleep undisturbed for the rest of
I-week[.]” Chen responded, “I assigned two AMs, who stayed
sober all of last night, to be in charge of cleaning the library after
the I-week event. They did not complete their job. This won’t
happen again.”
3
On January 11, 2017, Theta Xi member Andrew
Weilbacker wrote, “[W]e will be having a Brotherhood/Dirty Rush
Beer Pong Tournament tonight at the house. We will have a few
potential members hanging out with us . . . .” Theta Xi member
Anish Mahadeo inquired, “[W]ill we be doing beer p[o]ng
tomorrow as well?” Weilbacker responded, “I was thinking
possibly a power hour[.]” The next day, Weilbacker wrote, “[W]e
will be inviting rushees . . . to the house tonight. Probably power
hour and/or rage cage.” Schaar and active Theta Xi members
later confirmed that Power Hour and Rage Cage are drinking
games. Power Hour entails drinking one “shot of beer” per
minute for an hour. Rage Cage involves drinking alcohol from
and bouncing balls into cups arranged on a table.
8
committed “Title 9 offenses.” Nuckel’s statement said
4
nothing related to Schaar’s allegations against Theta Xi.
3. Notice of Schaar’s Complaint and Interim
Suspension
On January 17, 2018, SJACS emailed a letter to Theta
Xi President Jose Casillas, notifying Theta Xi that SJACS
had received a complaint from a student that Theta Xi had
5
violated the USC Code. For reasons the record does not
disclose, the notice letter identified the “Date(s) of
Incident(s)” as November 4, 2017 (roughly a year after
Schaar had been initiated into active status). As a
“Description” of the complaint, the letter stated, “Hazing[.]”
It did not identify Schaar or describe the substance of his
allegations.
The notice letter alleged violations of nine sections of
the USC Code, including one section concerning
unauthorized dissemination of alcohol, two sections
concerning risks to health or safety, two sections concerning
disruptive behavior, and four sections concerning violations
4
SJACS emailed an interview request to Nuckel. There is
no evidence in the record that Nuckel responded to the request,
or that SJACS made further efforts to interview her.
5
The USC Code requires SJACS to provide an investigation
respondent with “[w]ritten notice via email of the incident report
that specifies the nature of the alleged violation and the basis for
the charge including the date or period of time and location
regarding the alleged incident.”
9
6
of other university rules. One of the latter four sections
specifically concerned violations of USC Code section G.2,
which provided, “Student organizations may be held
responsible for the acts of individual members. Acts include
but are not limited to the following types of circumstances:
[¶] when a member of an organization is violating state law
6
Specifically, the notice letter alleged violations of the
following sections of the USC Code: (1) section 11.40, prohibiting
“[u]nauthorized use, possession or dissemination of alcohol or
tobacco products in the university community or at
university-sponsored activities”; (2) section 11.32.A, prohibiting
“[c]onducting oneself in a manner that endangers the health or
safety of oneself within the university community”; (3) section
11.36.B, prohibiting “[c]ausing reasonable apprehension of harm
to any person in the university community”; (4) section 11.38,
prohibiting “[b]ehavior which disrupts or interferes with normal
university or university-sponsored activities, including, but not
limited to, study, teaching, research, officially invited speakers,
university administration, public safety, or fire, police or
emergency services or other authorized activity”; (5) section
11.44.A, prohibiting “[e]ngaging in disruptive or disorderly
conduct in the university community”; (6) section 11.44.C,
prohibiting “[e]ncouraging or permitting others to engage in
misconduct prohibited within the university community, [or]
failing to confront and prevent the misconduct, notify an
appropriate university official of the misconduct, or remove
oneself from the situation”; (7) section 11.50.B, prohibiting
“[v]iolating standards or policies established for social Greek
letter organizations”; (8) section 11.50.C, prohibiting “[v]iolating
any policies, rules or regulations of the university”; and
(9) section 11.50.D, prohibiting “[v]iolating Section G.2. Group
Responsibility for Student Organizations . . . .”
10
or university standards and other members present fail to
indicate their disapproval, or by their continued presence
without objection implicitly condone the behavior; [¶] . . . [¶]
. . . [¶] when an organization places prospective members in
a subordinate status prior to achieving full membership, or
imposes any kind of probationary period prior to full
membership, and hazing occurs.” As examples of relevant
university rules, section G.2 identified, inter alia, rules
7
regarding alcohol and hazing.
7
USC’s alcohol policies prohibited, inter alia, (1) providing
alcohol to any person under the age of 21; (2) serving alcohol “to
the point of intoxication” or “to an intoxicated person”; and
(3) serving alcohol without university permission at a student
organization’s event.
USC’s hazing policy provided, inter alia, “[T]he university’s
policy with respect to hazing prohibits students from engaging
collectively or individually in any of the following practices as a
part of any programs or general activities. This list is intended to
provide examples of hazing; as it is impossible to anticipate every
situation that could be defined as hazing, this list should not be
considered all-inclusive. [¶] a. Forced excessive or strenuous
physical activities. [¶] b. The application of foreign substances to
the body. [¶] c. Activities such as scavenger hunts, which result
in illegal or otherwise prohibited activity, such as pledge ditches,
kidnaps and the like. [¶] d. Depriving students of sufficient sleep
(eight consecutive hours per day minimum). [¶] e. Not providing
decent and edible meals (no unusual combinations or
preparation, colored foods, etc.). [¶] f. Depriving students means
of maintaining a normal schedule of bodily cleanliness (including
a minimum of one shower per day). [¶] g. Depriving students
means of communications, such as their cell phones. [¶] h.
(Fn. is continued on the next page.)
11
The day after it sent the notice letter (on January 18,
2018), SJACS sent an email to USC’s associate vice provost
for student affairs, requesting an interim suspension of
USC’s recognition of the local Theta Xi chapter. SJACS
described Schaar’s allegations, which it characterized as
“allegations of hazing,” and noted that Theta Xi members’
text messages seemed to corroborate some of the allegations.
Later that day, the associate vice provost for student affairs
sent a letter to Casillas, notifying Theta Xi that an interim
suspension had been placed on Theta Xi “pending the review
of reports of alleged behaviors that may have endangered
the university community, including hazing.”
4. Schaar’s Interview
On January 19, 2018, two days after SJACS sent the
notice letter, Schaar was interviewed by SJACS Director
Donna Budar-Turner and SJACS Judicial Officer Lucy
Forcing, coercing or permitting students to eat an excess of
substances such as raw meat, onions, peppers, etc. [¶] i. Forcing,
coercing, or permitting students to drink excessive amounts of
liquids including alcohol, salt water, water, etc. [¶] j. Nudity or
forcing or allowing students to dress in a degrading manner. [¶]
k. Branding any part of the body. [¶] l. Psychological hazing,
which is defined as any act or peer pressure which is likely to: (i)
compromise the dignity of any student affiliated with the
organization, (ii) cause embarrassment or shame to any student
affiliated with the organization, (iii) cause any student affiliated
with the organization to be the object of malicious amusement or
ridicule, or (iv) cause psychological harm or emotional strain.”
12
Chavez Vargas. As set forth below, Schaar generally
repeated and elaborated on his written allegations.
Schaar alleged that in fall 2016, pledges had been
required to participate in several drinking games, including
Power Hour. A couple of pledges had vomited while playing
Power Hour. Pledges also had played War, in which a team
of four or five pledges drank approximately 60 cups of beer
or Four Loko. While playing War, one pledge (Nikhil
Cherukuri) had become so intoxicated that he showered with
his clothes on and vomited multiple times. Pledges had also
been required to drink “‘a lot’” of alcohol during a retreat
held in a rented house in San Diego. The retreat had
featured an “Around the World” event, during which
approximately nine rooms had been set up to feature
alcoholic drinks representing different nations, including
tequila, wine, sake, “Irish car bomb” cocktails, and
Jägermeister. Pledges had spent approximately five
minutes in each room. Several pledges had vomited during
the event, and one (Anish Mahadeo) had passed out.
During hell week, pledges had been required to spend
each evening and night at the Theta Xi house, and to sleep
in the library. Pledges had also been asked to wear
“ridiculous” costumes, including of cartoon and comic book
characters (Naruto and Spider-Man). One morning, the
pledges had been awakened at 5:00 a.m., and required to
drink alcohol before running laps, during which one pledge
(Oliver Eisenberg) fell and cut his knee. Schaar predicted
that Eisenberg might corroborate his allegations.
13
Also during hell week, active members had blindfolded
pledges, confiscated their phones and wallets, and dropped
them off at UCLA, where they were tasked with, inter alia,
finding the UCLA chapter of Theta Xi and finding their way
back to USC. The pledges had returned to USC in a car that
one pledge retrieved from his home near UCLA. Pledges had
also been required to visit the Theta Xi chapter at the
University of California, Davis, where the Davis members
threw eggs at them and gave them alcohol.
Finally, during a “fight night” event, active members
had required pledges to fight each other (while wearing
8
boxing gloves). Schaar had fought fellow pledge Nikhil
Cherukuri, and knocked him down. Several pledges had
sustained bruises, and another had sustained a black eye.
5. Casillas’s Interview
At the time of the SJACS investigation, Jose Casillas
was president of Theta Xi’s USC chapter. On January 19,
2018, two days after Casillas received the notice letter,
Budar-Turner and Chavez Vargas interviewed Casillas, who
was accompanied by Theta Xi Vice President Nicholas
Toghia. According to Chavez Vargas’s interview notes,
Budar-Turner “explained [the] allegations” and read “the
8
Though Schaar’s written complaint alleged that pledges
had been required to drink alcohol during “fight night,” he stated
otherwise during his interview.
14
report” to Casillas, and both Casillas and Toghia viewed the
9
text messages Schaar had submitted with his complaint.
In the interview, Casillas, who had been the “pledge
master” or “associate member educator” in fall 2016,
addressed each specific allegation in Schaar’s written
complaint. He acknowledged that “usually” all pledges “end
up” sleeping in the Theta Xi house during initiation week,
and that the library is set up for them to sleep in. But he
denied that pledges were required to sleep in the library, or
at the house. He further acknowledged that Theta Xi hosted
a “fight night” in which pledges “who ha[d] a dispute with
each other” were allowed to participate, although he
emphasized that participation was not mandatory. He
indicated that a goal of the event was to “‘let out the
steam[.]’” He confirmed that the fall 2016 pledges had been
awakened early one morning, and that Eisenberg had fallen
and cut his knee, although he denied any knowledge of
mandatory running. Finally, he confirmed that pledges had
been tasked with visiting Theta Xi’s UCLA chapter, taking a
9
In a January 27, 2018 letter to Budar-Turner, Toghia
characterized Casillas’s interview as a “grueling 2-hour long
interrogation” and complained, “At the end we still didn’t know
the specifics of the charges and when I asked you to provide them
you declined and said they were ‘confidential.’” Two days later,
in an email to Toghia and others, Casillas memorialized other
complaints about the interview, including a claim that he had
been “given no time to give any clarification or tell [his] side of
the story . . . .” Casillas accurately identified Schaar as the
source of the administrative complaint.
15
photo, and posting it to a group chat. He did not corroborate
any of Schaar’s other allegations about the UCLA event.
Casillas also addressed Schaar’s allegations concerning
alcohol. He acknowledged that pledges were allowed to
participate in the Great American Challenge drinking game,
although he claimed they usually did not. He further
acknowledged that pledges and other members, including at
least one 18-year-old member, had drunk alcohol during the
Around the World event, although he claimed drinking had
been optional. He recalled a few active members vomiting
during the event, but claimed he did not remember any
pledges falling ill. He denied that Theta Xi served alcohol at
any rush events.
6. Other Theta Xi Members’ Interviews
Within days of its interview of Casillas, SJACS emailed
interview requests to Theta Xi members Andrew Weilbacker,
Damian Ortega, and Oliver Eisenberg. On January 25,
2018, in response to Eisenberg’s refusal to attend an
interview without an attorney present, SJACS “placed a hold
on Mr. Eisenberg’s record for failure to comply with a
request to meet with SJACS.” Eisenberg ultimately
consented to an interview without an attorney.
On January 26, 2018, Budar-Turner and Chavez
Vargas interviewed Andrew Weilbacker, who had been a
member of the fall 2016 pledge class. They denied
Weilbacker’s request to be accompanied by Theta Xi Vice
President Toghia during the interview. Weilbacker stated
16
that during the fall 2016 pledging process, he had slept in
the Theta Xi house’s library for four or five days. He further
stated that he had fought fellow pledge Matt Anderson
during the “fight night” event, and confirmed that Schaar
had fought fellow pledge Cherukuri. He stated that
participants had worn gloves, headgear, and mouthpieces,
and that an alumnus with relevant experience had served as
a referee. He recalled that campus police had arrived during
the event and told the members to “keep the noise down.”
Weilbacker denied that he had ever felt pressured to do
anything as a pledge. He confirmed that the pledges had
been awakened early to run laps, but denied alcohol was
involved. He confirmed that alcohol generally had been
available to pledges. When shown his January 2017 text
messages referring to rush events featuring drinking games,
he responded, “[A]ll fraternities do this[.]”
On April 4, 2018, Budar-Turner and Chavez Vargas
interviewed Damian Ortega, who had been the “assistant
pledge master” (or “assistant associate member educator”) in
fall 2016. Ortega confirmed that pledges had fought other
pledges and active members during the “fight night” event,
with the safety precautions Weilbacker had described. He
indicated some of the members who fought each other had
“‘beef’” (disputes). He further confirmed that active
members had told pledges they should sleep in the Theta Xi
house, and that the library was the “main” space in which
the pledges had slept. Pledges had been responsible for
keeping the library clean because they had been “residing” in
17
it, and they had been told they would be woken up early if
they did not keep it clean. He acknowledged “there may
have been a couple of wake ups,” but stated he did not
believe there had been. He further acknowledged that
pledges had been dropped off at UCLA and tasked with
“finding” the UCLA Theta Xi chapter. He stated that the
Great American Challenge drinking game was “usually”
played in teams of “actives vs associates,” though it had been
played in “mixed” teams in fall 2017. He indicated the
Power Hour drinking game was designed “‘to get drunk,’”
although he claimed he had never participated. Finally, he
stated that in fall 2017, he had occasionally led the pledge
class in workouts, including workouts at a park near the
Theta Xi house. In her interview notes, Chavez Vargas
wrote “holding 25lb plate” and “‘we would all carry
equipment to the park[.]’” Ortega denied that pledges had
been required to sleep in the library or to participate in the
Great American Challenge, fight night, or workouts.
On April 13, 2018, Chavez Vargas interviewed Oliver
Eisenberg, who had been a member of the fall 2016 pledge
class. Eisenberg confirmed that he had scraped his knee
during a run, but stated that the injury had not required
medical attention, and that he had not been under the
influence of alcohol at the time. He acknowledged that he
had drunk alcohol as a pledge, including while participating
in the Great American Challenge and the Around the World
event. He further acknowledged that the pledges had been
told to sleep in the library during initiation week, and that
18
most complied. He denied that he had been forced to do
anything, maintaining that all pledge activities had been
voluntary.
7. Theta Xi’s Internal Investigation
On March 26, 2018, Theta Xi interviewed 16 active
members, seven of whom had been members of the fall 2016
pledge class. The questions and answers from each
interview were recorded on a single-page questionnaire. The
questions were derived from USC’s hazing policy;
specifically, each question corresponded to one of the policy’s
non-exhaustive examples of forbidden hazing practices.
Members who had been pledges in fall 2016 (including
Weilbacker and Eisenberg) were asked if they had been
subjected to any of those hazing practices, while members
who had been active in fall 2016 (including Casillas and
Ortega) were asked if they had subjected Schaar to any of
those hazing practices. Each member answered “No” to
every question.
Also on March 26, 2018, Toghia sent a letter to USC’s
senior vice president and general counsel, informing her that
Theta Xi had interviewed its members and found no hazing
or misconduct, and that it had additionally scheduled
“interrogation[s] under oath” of its members to take place in
April 2018. Toghia invited the general counsel to participate
in the upcoming interviews under oath, predicting she would
“reach the same conclusion that none of the conduct
prohibited by [USC’s hazing policy] occurred.” On April 5,
19
2018, USC’s university counsel sent a response letter to
Toghia, observing that Theta Xi and other outside entities
had no role to play in conducting SJACS’s investigation, but
that “relevant information is always welcome.”
On April 7, 2018, Theta Xi conducted interviews under
oath, transcribed by a court reporter, of 14 of its members
(including Weilbacker, Ortega, and Eisenberg), eight of
whom had been pledges in fall 2016. No USC representative
attended the interviews. Again, each member was asked
questions derived from USC’s hazing policy, and each
indicated he had not been subjected to, and had not
subjected Schaar to, any of the policy’s non-exhaustive
examples of forbidden hazing practices. Nearly all the
members were also asked to share their opinions of Schaar.
Most members opined that Schaar was a misogynist, and
recalled various verbal transgressions he had committed
against women.
The interviews under oath were conducted by Toghia,
who had been present during SJACS’s interview with
Casillas. Generally, Toghia did not ask the Theta Xi
members about the specific incidents Casillas had addressed
10
during his interview. For instance, Toghia did not ask
10
Toghia did ask some members about “fight night” and the
UCLA event. Two members acknowledged they had participated
in “fight night,” but emphasized they had done so voluntarily,
and two others stated they had not participated. Several
members acknowledged that pledges had been dropped off near
UCLA and asked to find Theta Xi’s UCLA chapter, and that the
(Fn. is continued on the next page.)
20
Eisenberg about the incident in which he had fallen and cut
his knee. Nor did he ask any members whether pledges had
drunk alcohol during the Great American Challenge or the
Around the World event. With the exception of Ortega, none
of the members were asked whether pledges had been
required to sleep in the Theta Xi house’s library during
initiation week (Ortega claimed that pledges had been
allowed to sleep at their own homes, and that those who had
slept at the Theta Xi house were not confined to the
library).
Though Theta Xi member Chris Ladan had executed a
questionnaire, he was not interviewed under oath. On
August 19, 2017, when he was 20 years old, Ladan had been
found “heavily intoxicated” near the Theta Xi house by a
USC Department of Public Safety officer (according to the
officer’s incident report, which SJACS incorporated into the
administrative record). Ladan was sitting on a curb,
attempting to stand, and vomiting. Ladan’s speech was
slurred, and he was unable to answer some questions about
himself and his whereabouts. Before he was transported to
a hospital, however, Ladan told the officer he had been
drinking at his fraternity house.
pledges returned in a car that one pledge retrieved from his home
near UCLA. They denied that pledges had been blindfolded or
deprived of phones or wallets.
21
8. Theta Xi’s Evidence Review and
Additional Submissions
On April 16, 2018, Toghia emailed Budar-Turner and
other USC administrators, attaching the transcripts of the
14 interviews under oath. Toghia requested that USC
rescind its interim suspension of its recognition of the local
Theta Xi chapter, on the ground that the transcripts made
clear that no violation of USC’s hazing policy had occurred.
Toghia also observed that the members’ characterizations of
Schaar “portray[ed] a person who behaved in the most
offensive manner toward women and whose self-expressed
attitudes show objective hostility toward women.”
The same day, Chavez Vargas emailed Theta Xi
president Casillas. She informed Casillas that SJACS’s
investigation was nearly complete, and invited him to
submit additional information or schedule a meeting to
review the information that SJACS had gathered.
On May 9, 2018, Chavez Vargas and Budar-Turner met
with Casillas, who was accompanied by attorney Mark
Hathaway (his counsel in the trial court and on appeal).
Chavez Vargas read a summary of the information gathered
in SJACS’s interviews. She allowed Casillas and Hathaway
to review Schaar’s written complaint, the text messages
Schaar had submitted, and SJACS’s notes from its witness
interviews. Their review of the evidence lasted
approximately 50 minutes.
After reviewing the evidence, Casillas said that “‘a few
things’” stated in the evidence were incorrect. The record
22
does not disclose whether Casillas specified any alleged
inaccuracies. Casillas was invited to provide additional
information. Casillas said there was “‘not much’” he could
add, but indicated he would submit additional documents.
On May 11, 2018, Casillas emailed Chavez Vargas and
attached various documents, which he characterized as “all
the relevant information that we would like to turn in for
our case.” The documents included, inter alia, the
questionnaires and transcripts collected in Theta Xi’s
internal investigation, and records of Schaar’s disputes with
Theta Xi and alleged transgressions against women.
B. USC’s Administrative Decision
1. SJACS’s Decision
On August 9, 2018, SJACS sent Theta Xi a Summary
Administrative Review (SAR) report notifying Theta Xi of
SJACS’s decision to suspend the USC chapter’s recognition
11
as a student organization for six years. By a
preponderance of the evidence, SJACS found that Theta Xi
11
USC Code section 11.93, entitled “Organizational
Sanctions,” provides, “All organizations . . . are responsible for
compliance with university rules and regulations. Upon a
determination that the group has engaged in violations,
encouraged violations, or did not take reasonable steps as a group
to prevent violations of university rules and regulations, the
group may be subjected to permanent or temporary removal of
recognition . . . .” Within its hazing policy, the USC Code
similarly provides that a student organization may lose its
recognition if SJACS finds a hazing violation.
23
was responsible for violations of each section of the USC
Code listed in the notice letter. In a five-page “Rationale”
section of the SAR report, SJACS summarized Schaar’s
allegations at length, and observed that most were
corroborated by Theta Xi members’ text messages and
interview statements. It proceeded to set forth the following
factual findings.
SJACS found widespread and frequently excessive
drinking at Theta Xi events, including among underage
pledges. It found Schaar’s allegations corroborated, in part,
by a message sent by active member Peter Chen during the
fall 2016 initiation week, in which he observed he had
assigned library-cleaning duties to two pledges who had
“stayed sober” the previous night (suggesting intoxication
among most or all of the other pledges). SJACS further
found that active members had “planned and executed
drinking games for the new member class to participate in,”
including the Great American Challenge (each team raced to
consume a 30-pack of beer, in addition to pizza and
marijuana), War (each team drank 60 cups of beer and Four
Loko “as fast as possible”), and Power Hour (each participant
drank a shot of beer every minute for an hour). Similarly,
SJACS observed that a Theta Xi member (Weilbacker) had
sent text messages planning to play Power Hour and/or
other drinking games at rush events, that Theta Xi members
had been aware of the prohibition against serving alcohol at
rush events, and that Weilbacker had nevertheless
commented, “[A]ll fraternities do this.” Finally, SJACS
24
found that active members had required pledges to
participate in the Around the World event featuring at least
five varieties of alcoholic beverages (tequila, wine, sake,
cocktails known as “Irish car bombs,” and Jägermeister),
during which pledges had been “provided and encouraged to
consume large amounts of alcohol,” and members had fallen
ill.
Moreover, and related to Chen’s message regarding the
two sober pledges assigned to clean the library, SJACS found
that the 11 members of the fall 2016 pledge class had been
required to sleep in the Theta Xi house’s library during
initiation week. It further found, “New members were told
that if they did not keep the library clean, they would be
woken up by active members at early hours of the morning.
The assistant pledge master [Ortega] stated that ‘there may
have been a couple of wake ups.’ . . . Some of the new
members slept on the floor. . . . New members were asked to
wear costumes during this time. It was reported that one
member wore a Naruto costume and another wore a
Spiderman costume.” In finding that Chen’s message
corroborated Schaar’s allegations, SJACS quoted Chen’s
observation that the two sober pledges had not completed
their library-cleaning job, and his announcement, “‘This
won’t happen again.’”
SJACS also found that Theta Xi had hosted “fight
night” in fall 2016 and fall 2017. While active members and
others watched, pledges (as well as active members) “fought
someone in the chapter who they had ‘beef’ (a dispute) with.
25
It was reported that the purpose of this activity was to ‘let
out steam’ and settle conflict with each other.” SJACS did
not find that participation had been mandatory, or that
anyone had been injured (although it noted Schaar’s
allegations that “at least one new member was ‘knocked
over,’ another had a black eye and others had bruises from
the punches”). It did find that campus police had “responded
to noise complaints resulting from fight night.”
SJACS made several other findings. First, it found, as
Schaar alleged, that the fall 2016 pledge class had been
awakened early one morning for a mandatory run, during
which Eisenberg fell and cut his knee. Relatedly, it found,
“[n]ew members of the Fall 2017 class engaged in physical
activities similar to what occurred in Fall 2016. . . . New
members participated in workouts led by the pledge master
[Ortega] and at times had to carry 25lb weights from the
Theta Xi house to [a nearby] park . . . .” Finally, SJACS
found, as Schaar alleged, that active members had dropped
the 2016 pledge class members off at UCLA and tasked them
with finding Theta Xi’s UCLA chapter and then finding their
12
way back to USC.
In addition to setting forth factual findings, the
“Rationale” section of the SAR report addressed Theta Xi’s
12
SJACS observed that it had received “conflicting reports”
regarding whether active members had blindfolded the pledges or
confiscated their phones or wallets during the UCLA event. It
did not resolve the conflict between those reports.
26
submissions. SJACS observed that during Theta Xi’s
internal interviews, its members had not been asked about
the incidents that had been brought to Theta Xi’s attention
earlier. It further observed that the members had been
asked if they had been “‘forced’” to engage in certain acts,
and Theta Xi had taken the position that pledges had not
been “forced” to do so. SJACS commented, “Force is not
necessarily an indication of hazing. New members often
engage in hazing activities voluntarily, as a result of peer
pressure, intimidation or their desire to be a part of an
organization.”
2. Theta Xi’s Administrative Appeal
The SAR report notified Theta Xi of its right under the
USC Code to appeal SJACS’s decision to SBAP. The Code
authorized appeals only on the following grounds: (1) “new
evidence has become available which is sufficient to alter the
decision and which the appellant was not aware of or could
not have been reasonably obtained at the time of the original
review”; (2) “the sanction imposed is excessive, insufficient or
inappropriate”; and (3) “the review panel or review officer
failed to follow university rules or regulations while
reviewing the cited behavior.” Though the Code provided
that SBAP would apply “a preponderance of the evidence
standard,” insufficiency of the evidence was not an
authorized ground for appeal, and the Code also provided
that “all appeals are documentary reviews in which no oral
testimony is taken.” Finally, the Code provided that SBAP’s
27
decision would become final and binding upon approval by
USC’s vice president for student affairs, who had “sole
discretion” to approve or modify the decision.
Theta Xi appealed SJACS’s decision on the grounds
that (1) the decision was undermined by purportedly new
evidence; (2) the six-year suspension was an excessive and
inappropriate sanction; and (3) SJACS violated the USC
Code by (a) failing to consider the totality of the evidence,
(b) failing to review the matter in an impartial manner, and
(c) failing to “apply the facts to the alleged policy violations
. . . .” Theta Xi did not attempt to identify evidence that had
been unknown or unobtainable during the investigation.
Instead, it challenged the evidentiary support for SJACS’s
factual findings, relying on information that “was either
provided to SJACS and not included in the SAR [report] or
was never presented to Theta Xi for response.”
In the course of its evidentiary challenges, Theta Xi
suggested that SJACS’s findings, even if true, did not
warrant sanctions, emphasizing a lack of coercion. For
instance, it claimed “wearing costumes was optional and was
in no way mandated by any member of Theta Xi.” It
acknowledged that pledges participated in “fight night”
events held every semester, but emphasized that
participation was voluntary, and characterized “fight night”
as a boxing lesson held in the spirit of “working out
grievances in a healthy manner . . . .” In response to
SJACS’s finding that “[a]ctive members planned and
executed drinking games for the new member class to
28
participate in,” Theta Xi acknowledged, “Active members
decided to drink and invited whomever wished to join.”
Theta Xi asserted there was no evidence that pledges had
been required to drink, had been under 21, or had
participated in any drinking games. In response to SJACS’s
finding that pledges had participated in the Power Hour and
Great American Challenge drinking games, Theta Xi wrote,
inter alia, “Power Hour and the Great American Challenge
are drinking games that date back to the 1980s. Should we
also penalize everyone that knows how to play Monopoly or
Backgammon and [sic] if they play those a couple times each
semester? The guys play video games every night while
some choose to drink beers … [sic] would the University
classify that as hazing as well? Again, all of these are just
instances of people hanging out and playing games. No one
was ever required or pressured to drink or to participate.”
3. SJACS’s Response
On September 17, 2018, SJACS sent SBAP a response
to Theta Xi’s appeal. In response to Theta Xi’s reliance on
purportedly new information, SJACS observed that Theta Xi
had failed to explain why the information had been
unobtainable during the investigation. SJACS added that
Theta Xi had failed to support its evidentiary claims, stating,
“For example, Theta Xi claims that there is no evidence that
new members of the Fall 2016 class were not 21 years of age.
SJACS reviewed student records via the USC Student
Information System that clearly show that new members of
29
the Fall 2016 class were not 21 years old at the time the
incident occurred.”
In response to Theta Xi’s argument that the six-year
suspension was excessive and inappropriate, SJACS stated,
“[USC Code section G.2] states that an organization may be
held responsible for the acts of individual members ‘when a
member of the organization is violating state law or
university standards and other members present fail to
indicate their disapproval, or by their continued presence
without objection implicitly condone their behavior.’
Members of Theta Xi corroborated [Schaar’s allegations] that
alcohol was provided to new members of the Fall 2016
[pledge class] in violation of university standards and the
Laws of the State of California.” SJACS again observed that
“[t]he absence of the use of force does not excuse or
legitimize” hazing or other activities prohibited by the USC
Code. SJACS expressed concern that in its appeal, Theta Xi
had “continue[d] to deny the activities corroborated by [its]
own members,” and had failed to evaluate its culture, take
responsibility for its members’ actions, or outline strategies
to prevent future violations.
4. SBAP’s Decision
On December 5, 2018, a USC administrator provided
Theta Xi with SBAP’s decision upholding the six-year
suspension, and informed Theta Xi that SBAP’s decision had
been reviewed and approved by Vice President for Student
30
Affairs Carry Ainsley. As discussed below, SBAP found the
record did not support any of Theta Xi’s appellate claims.
SBAP rejected Theta Xi’s allegations that SJACS had
failed to evaluate all the evidence in an impartial manner.
SBAP observed that Theta Xi president Casillas had
received notice of the alleged violations of the USC Code,
and had been allowed to review and respond to the
information gathered by SJACS. SJACS’s case file included
all evidence submitted by Theta Xi, and the SAR report
articulated why SJACS did not find the evidence credible.
Further, SJACS’s case file included the entirety of the
witnesses’ statements, and the SAR report acknowledged
conflicts among their statements.
SBAP concluded that Theta Xi’s purportedly new
evidence was not new because it had been known to Theta Xi
during the investigation. SBAP observed that Theta Xi’s
reliance on this evidence “appeared to be an attempt to
present the organization’s version of the events to a different
audience,” and that SBAP was “not empowered to reconsider
the evidence of the case and make different factual findings.”
SBAP further observed that in the “Rationale” section of the
SAR report, SJACS had detailed which of Schaar’s
allegations had been corroborated by other witnesses. SBAP
concluded that the corroborated allegations were sufficient
to find, by a preponderance of the evidence, that Theta Xi
violated all sections of the USC Code identified in the notice
letter and SAR report.
31
SBAP found the six-year suspension neither excessive
nor inappropriate. SBAP observed that in the process of
gaining recognition as a student organization, Theta Xi had
agreed to abide by “rules and regulations surrounding
alcohol and hazing . . . .” SBAP further observed, “Theta Xi’s
organizational structure includes risk managers, advisors,
and leadership tasked with ensuring that members act in
accordance with these rules and regulations. Despite this,
the organization chose to engage in conduct that it knew was
not in accordance with the University’s standards. . . . [T]he
suspension of the organization . . . will allow time for the
organization to reform under a new culture and with new
leadership . . . .”
C. Theta Xi’s Writ Petition
On October 5, 2018, Theta Xi filed a petition for a writ
of administrative mandamus against USC, Budar-Turner,
and Carry. On February 11, 2019, Theta Xi filed an
amended petition. Theta Xi alleged that USC had deprived
Theta Xi of a fair procedure and committed a prejudicial
abuse of discretion within the meaning of Code of Civil
Procedure section 1094.5.
1. Briefing
Theta Xi devoted most of its opening brief to
arguments that USC’s administrative procedure was unfair
because (1) USC had provided Theta Xi inadequate notice of
the allegations and evidence underlying USC’s ultimate
32
decision; (2) a single individual (Budar-Turner) had
exercised investigative and adjudicatory functions; (3) Theta
Xi had been given no opportunity to cross-examine
witnesses; and (4) SJACS had failed to evaluate the evidence
13
in an impartial manner. Theta Xi also argued that
SJACS’s factual findings had been unsupported by the
evidence, under either a substantial evidence or independent
judgment standard of review. It argued that an independent
judgment standard was proper because the six-year
suspension substantially affected Theta Xi’s vested
fundamental rights “to engage in fraternity activities at
USC”; “to house members, fundraise and seek new
membership at USC”; and to maintain its reputation.
Within the section of its brief devoted to challenging the
evidentiary support for SJACS’s findings, Theta Xi asserted
that the SAR report contained “no explanation linking . . .
the mostly innocuous factual findings . . . to the alleged
policy violations,” and implied that SJACS had therefore
failed to “set forth findings to bridge the analytic gap
13
In support of its argument concerning inadequate notice,
Theta Xi asserted that “SJACS had no jurisdiction under its
Code” to investigate events that preceded Schaar’s administrative
complaint by more than one year. It quoted the section of the
USC code providing, “Generally, a matter will be reviewed only
when a report has been filed with [SJACS] within one year of
discovery of the alleged violation.” Theta Xi did not develop this
argument further, and did not allege that USC had “proceeded
without, or in excess of, jurisdiction” within the meaning of Code
Civil Procedure section § 1094.5, subdivision (b).
33
between the raw evidence and ultimate decision,” as
required by Topanga Assn. for a Scenic Community v.
County of Los Angeles (1974) 11 Cal.3d 506, 515 (Topanga).
It did not develop its Topanga argument further.
In its opposition brief, USC argued that its
administrative procedure had been fair, emphasizing that
administrative procedures need not be as formal as judicial
procedures, and that much of the caselaw on which Theta Xi
relied concerned discipline of students for sexual misconduct,
not discipline of a student organization for violating rules
related to alcohol and hazing. USC further argued that the
trial court was required to review SJACS’s factual findings
only for substantial evidence, as the six-year suspension did
not substantially affect any vested fundamental right held
by Theta Xi. Finally, USC argued that SJACS’s factual
findings were supported by substantial evidence. In
identifying the evidence it found most alarming, USC noted,
inter alia, the police report that in August 2017, underage
Theta Xi member Chris Ladan had been transported to a
hospital for “alcohol poisoning treatment” after being found
vomiting and unable to answer basic questions, reportedly
after drinking at the Theta Xi house.
In its reply brief, Theta Xi generally repeated the
arguments made in its opening brief. However, it did not
argue that SJACS had violated the requirements of
Topanga, supra, 11 Cal.3d 506. Nor did it repeat its
argument that the six-year suspension substantially affected
its vested fundamental rights. Instead, it argued that
34
because USC is a private entity, USC’s factual findings
should be reviewed under an independent judgment
standard, even in the absence of a substantial effect on any
vested fundamental right. In replying to USC’s reference to
underage Theta Xi member Chris Ladan’s alcohol overdose,
Theta Xi emphasized that Ladan had been nearly 21 years
old, and that he had been found “away from” the Theta Xi
house -- ignoring Ladan’s report that he had been drinking
at the Theta Xi house.
2. Hearing and Ruling
At the outset of the hearing on Theta Xi’s petition, the
trial court observed that it had issued a tentative ruling
generally adverse to Theta Xi. The court proceeded,
however, to express concerns that SJACS might have
provided inadequate notice of the allegations underlying its
ultimate decision, and might have failed to bridge the
analytic gap between its factual findings and its decision, as
required by Topanga, supra, 11 Cal.3d 506. After hearing
argument from both parties, primarily on these issues, the
court took the matter under submission.
On October 28, 2019, the trial court issued an order
denying Theta Xi’s petition. In its 19-page decision, the
court found the administrative procedure had been fair. It
found SJACS’s notice letter satisfied the requirements of the
USC Code, and that Theta Xi had received adequate notice
of the factual basis of the allegations through Casillas’s
January and May 2018 meetings with SJACS’s
35
investigators. Further, because Casillas and attorney
Hathaway had reviewed SJACS’s evidence during the May
2018 meeting, and Casillas thereafter had submitted all
additional evidence Theta Xi wished to submit, the court
found Theta Xi had received adequate opportunities to
review and produce evidence. Finally, the court found Theta
Xi was not entitled to cross-examination of witnesses or
separation of investigative and adjudicative functions. It
reasoned that caselaw had recognized a right to such
safeguards only in cases of student discipline for sexual
assault. The court found this caselaw distinguishable,
reasoning in part, “[G]iven the severity of the consequences
to a student and the fact that, in a sexual assault case, there
is very limited corroborating evidence, if any, and often a
credibility contest between only two individuals -- a right to
cross examine in a sexual assault case is critical to ensuring
a fair hearing. [¶] In contrast, here, the severity of the
sanction to any individual student directly is nonexistent;
the investigation and subsequent proceeding only affected
the rights of the fraternity, a private association, to
participate as an on-campus organization. . . . [¶] Also,
unlike a sexual assault case, where the case often depends
on the credibility of the only two people involved, the hazing
case here had numerous potential witnesses; for example,
[Theta Xi]’s own investigation into the allegations involved
deposing fourteen witnesses. . . . Further, SJACS relied on
other corroborating evidence, such as text messages.”
36
The court observed that Theta Xi’s opening brief had
conflated two distinct issues: (1) whether sufficient evidence
supported SJACS’s factual findings; and (2) whether
SJACS’s factual findings were adequate under Topanga,
supra, 11 Cal.3d 506 to support USC’s decision. The court
further observed that Theta Xi had provided “no real
analysis” of the Topanga issue, and had not addressed the
issue in its reply brief. The court did not address the merits
of the Topanga issue.
Finally, the court found that SJACS’s factual findings
were supported by substantial evidence. In rejecting Theta
Xi’s argument that an independent judgment standard
should apply, the court reasoned that the Courts of Appeal
had consistently applied the substantial evidence standard
in cases of student discipline for sexual misconduct, and that
“USC’s refusal to recognize [Theta Xi], a fraternal
organization, for six years [is] no more burdensome than a
student’s expulsion from a private university because of
sustained sexual misconduct allegations.” The court further
reasoned that the record did not support Theta Xi’s claim to
a vested fundamental right to “‘engage in fraternity
activities at USC,’” as the USC Code provided that a student
organization’s recognition was conditioned on annual
approval, and that student organizations could be sanctioned
for violations of university rules. Applying the substantial
evidence standard, the court found “significantly more” than
substantial evidence, as the administrative record included
(1) statements by Schaar supporting SJACS’s factual
37
findings; (2) SJACS’s finding that most of Schaar’s
allegations had been corroborated by Theta Xi members’ text
messages and interview statements; and (3) Casillas’s
statement, after reviewing SJACS’s evidence, that the
evidence contained only “‘“a few”’” inaccuracies. The court
specifically found substantial evidence that underage
pledges had been provided alcohol during Theta Xi activities,
observing that (1) “the record is replete with references to
the pledge class members, including Schaar, drinking
alcohol in the context of activities promoted by [Theta Xi]”;
(2) SJACS’s notes from Casillas’s interview twice referred to
“‘letting’” underage drinking occur; and (3) the report
regarding Theta Xi member Chris Ladan’s alcohol overdose
indicated that Ladan, then underage, had been drinking at
the Theta Xi house on August 19, 2017.
On December 13, 2019, the court entered judgment
against Theta Xi. Theta Xi timely appealed.
DISCUSSION
Theta Xi contends (1) USC acted in excess of its
jurisdiction by suspending its recognition of Theta Xi’s local
chapter based on events that preceded Schaar’s complaint by
more than one year; (2) SJACS’s factual findings were
unsupported by the evidence; (3) USC’s decision was
unsupported by SJACS’s factual findings; and (4) USC’s
administrative procedure was unfair.
38
A. Jurisdiction
An administrative decision must be set aside where
“the respondent has proceeded without, or in excess of,
jurisdiction . . . .” (Code Civ. Proc., § 1094.5, subd. (b).)
“Because administrative agencies are tribunals of limited
jurisdiction, they can exercise quasi-judicial authority only
to the extent authorized by the statutes or constitutional
provisions that created them. [Citation.] Jurisdictional
issues arise when an agency acts outside the scope of its
statutory or constitutional authority. In addition, an agency
can act in excess of its jurisdiction when it fails to stay
within the procedural rules and regulations it has
established . . . .” (CEB, Cal. Administrative Mandamus
(May 2020) § 6.3.)
Here, USC acted within its jurisdiction in suspending
its recognition of Theta Xi’s USC chapter, even to the extent
its action was based on events that preceded Schaar’s
complaint by more than one year. As a private entity, USC
was not bound to act only within the confines of certain
statutory or constitutional authority. In any event, Theta Xi
has not argued that any statute or constitutional provision
barred USC from acting on events that preceded Schaar’s
complaint by more than one year. Instead, Theta Xi relies
solely on the section of the USC code providing, “Generally, a
matter will be reviewed only when a report has been filed
with [SJACS] within one year of discovery of the alleged
39
violation.”14 Theta Xi has not shown that SJACS violated
this limitations policy. The policy provides only that SJACS
“[g]enerally” will not investigate untimely complaints -- not
that SJACS cannot, shall not, or may not investigate them.
Theta Xi cites no authority, and offers no persuasive
rationale, for its interpretation that this policy prohibited
the investigation of untimely complaints in the absence of
exceptional circumstances.
Moreover, there were ample grounds for SJACS to find
that the circumstances warranted an exception to its general
15
limitations policy. As Theta Xi acknowledges, Schaar’s
complaint was submitted 14 months after the fall 2016
initiation week. Thus, with respect to Schaar’s allegations of
hazing during that week, the complaint was untimely only
14
In response to Theta Xi’s reliance on this limitations policy,
USC quotes from the following language within the same section
of the USC Code: “There is no time limit for cases involving
academic, sexual, interpersonal, and protected class misconduct,
and those matters will be reviewed whenever they are reported;
such matters should be filed with the Office of the Title IX
Coordinator, as explained in the University’s Policy and
Procedures on Student Sexual, Interpersonal, and Protect Class
Misconduct.” This language was inapplicable to SJACS’s review
of Schaar’s complaint. The USC Code provided that SJACS was
not responsible for “reviews of Sexual, Interpersonal, and
Protected Class Misconduct.”
15
The record is silent regarding whether SJACS made such a
finding. However, because Theta Xi did not raise the limitations
issue during the administrative process, SJACS had no incentive
to make an express finding on the issue.
40
by two months. There was little prospect that this modest
untimeliness would obstruct the investigation or prejudice
Theta Xi’s defense. By their nature, allegations of fraternity
hazing involve many prospective witnesses, including the
fraternity’s active members and pledges. Moreover, SJACS
reasonably could have predicted that Theta Xi’s initiation of
new members involved traditional or recurring events,
reducing the likelihood that the prospective witnesses would
have forgotten the circumstances of the fall 2016 initiation
week. Indeed, Theta Xi does not claim that any evidence
had gone stale.
The cases on which Theta Xi relies are distinguishable,
as none addressed a limitations policy or other time
restriction. (See Doe v. Claremont McKenna College (2018)
25 Cal.App.5th 1055; Berman v. Regents of University of
California (2014) 229 Cal.App.4th 1265; BMW of North
America, Inc. v. New Motor Vehicle Bd. (1984) 162
Cal.App.3d 980.) Moreover, one of these cases did not
address any jurisdictional challenge. (See Doe v. Claremont
McKenna College, supra, at 1057-1058 [holding only that
university’s procedure in disciplining student for sexual
assault was unfair].) Another rejected a jurisdictional
challenge. (See Berman v. Regents of University of
California, supra, at 1270-1271, 1274-1276 [rejecting
contention that university council of deans of student affairs
acted in excess of its jurisdiction by imposing suspension not
recommended by student conduct review board].) Though
the remaining case found an agency had acted in excess of
41
its jurisdiction, its holding was based on the agency’s nature
as a government entity with no power to act except as
authorized by law; the agency’s act was unauthorized
because none of the statutory predicates for the act had
occurred. (See BMW of North America, Inc. v. New Motor
Vehicle Bd., supra, at 994-995.) USC is a private entity. It
needs no statutory authorization to suspend its recognition
of another private entity for violations of its private rules.
In sum, Theta Xi has not shown that USC violated its
limitations policy. Thus, even assuming the limitations
policy restricted USC’s jurisdiction, Theta Xi has not shown
that USC acted in excess of its jurisdiction in suspending its
recognition of Theta Xi’s USC chapter.
B. Sufficiency of the Evidence
“Abuse of discretion is established if . . . the findings
are not supported by the evidence.” (Code Civ. Proc.,
§ 1094.5, subd. (b).) Here, the trial court concluded that
SJACS’s factual findings were supported by substantial
evidence, and that nothing more was required. Theta Xi
contends (1) the court erred by applying the substantial
evidence standard rather than exercising its independent
judgment; and (2) there was insufficient evidence to support
SJACS’s factual findings under any standard.
42
1. Standard of Review
a. Principles
“Under Code of Civil Procedure section 1094.5, there
are two alternative standards of review that a trial court
uses to review [challenges to an agency’s factual findings
raised by] a petition for writ of administrative mandamus.
[Citation.] ‘If the administrative decision involved or
substantially affected a “fundamental vested right,” the
superior court exercises its independent judgment upon the
evidence . . . . [Citations.]’ [Citations.] ‘Where no
fundamental vested right is involved, the superior court’s
review is limited to examining the administrative record to
determine whether the adjudicatory decision and its findings
are supported by substantial evidence in light of the whole
16
record.’” (Benetatos v. City of Los Angeles (2015) 235
Cal.App.4th 1270, 1280 (Benetatos).) “Courts determine on a
case-by-case basis whether a right is ‘vested’ and
16
In its reply brief, for the first time, Theta Xi urges us to
discard these well-established principles and hold that trial
courts must always exercise independent judgment in reviewing
the evidentiary support for a private entity’s administrative
findings, even in the absence of a substantial effect on a vested
fundamental right. Theta Xi forfeited this contention by failing
to raise it in its opening brief. (See People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 408 [“‘It is axiomatic that
arguments made for the first time in a reply brief will not be
entertained because of the unfairness to the other party’”].) In
any event, Theta Xi offers no persuasive reason to discard the
principles.
43
‘fundamental,’ taking into account both economic effects and
effects ‘in human terms and the importance of [the right] to
the individual in the life situation.’” (JMS Air Conditioning
& Appliance Service, Inc. v. Santa Monica Community
College Dist. (2018) 30 Cal.App.5th 945, 960 (JMS).) As
Theta Xi’s cited cases recognize, “‘[t]he ultimate question in
each case is whether the affected right is deemed to be of
sufficient significance to preclude its extinction or
abridgement by a body lacking judicial power.’” (Wences v.
City of Los Angeles (2009) 177 Cal.App.4th 305, 313; accord,
Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th
1519, 1526 (Goat Hill Tavern); Interstate Brands v.
Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 779,
fn. 5; see also Berlinghieri v. Department of Motor Vehicles
(1983) 33 Cal.3d 392, 894 [issue “relates to the appropriate
relationship between administrative and judicial
adjudicatory decisions” (italics omitted)].)
“Courts have rarely viewed purely economic interests,
such as the right to profit under a particular business
venture, as a fundamental vested right.” (JMS, supra, 30
Cal.App.5th at 960.) “Purely financial effects will only affect
‘fundamental’ rights in extreme, unique situations, such as
when an administrative decision imposes ‘operating
conditions [that] severely impair [a company’s] ability to
function or . . . drive [the company] out of business.’” (Ibid.;
see also Benetatos, supra, 235 Cal.App.4th at 1281-1282
[city’s imposition of conditions on operation of fast-food
restaurant did not substantially affect any vested
44
fundamental right held by restaurant’s owners, where
owners “suggested only an economic effect from the required
operating conditions”].)
The parties have cited no caselaw on this issue
involving discipline of student organizations, and we have
found none. However, “[t]his and numerous courts have
applied [the substantial evidence] standard to disciplinary
decisions involving [students’] sexual misconduct at private
and public universities.” (Doe v. Allee (2019) 30 Cal.App.5th
1036, 1060 (Allee); see also Doe v. University of Southern
California (2018) 29 Cal.App.5th 1212, 1231 [“A university
disciplinary proceeding concerning sexual misconduct does
not involve a fundamental vested right”]; Doe v. University of
Southern California (2016) 246 Cal.App.4th 221, 248-253
(USC 2016) [concluding no substantial evidence supported
SJACS’s factual findings in sexual-misconduct case].)
b. Analysis
We conclude that USC’s decision to suspend its
recognition of Theta Xi’s local chapter did not substantially
17
affect any vested fundamental right held by Theta Xi. As
17
Theta Xi lacks standing to assert vested fundamental
rights held by others. (See Interstate Brands v. Unemployment
Ins. Appeals Bd., supra, 26 Cal.3d at 781 [“‘[A] party has no
standing to assert that an independent judgment review rather
than a substantial evidence review is required unless it possesses
a fundamental vested right on its own behalf which was involved
(Fn. is continued on the next page.)
45
noted, we and other courts have found no substantial effect
on any vested fundamental right where universities have
sanctioned students for sexual misconduct. (See, e.g., Allee,
supra, 30 Cal.App.5th at 1060.) Here, the asserted right -- a
fraternity’s right to remain recognized by a private
university in the face of alleged violations of university rules
-- has no more significance, from the perspective of the
appropriate relationship between administrative and judicial
decisions, than a student’s right to remain enrolled in the
face of allegations of sexual misconduct. We see nothing
inappropriate in the suspension of a private university’s
recognition of a fraternity by the university itself rather
than by a court, particularly where the suspension is based
on violations of the university’s private rules.
The cases on which Theta Xi relies are distinguishable.
Most concerned rights unrelated to Theta Xi’s asserted right
to continue operating its USC chapter. (See Wences v. City
of Los Angeles, supra, 177 Cal.App.4th at 316 [police
department’s reprimand of employee substantially affected
employee’s vested fundamental right in his public
employment]; Interstate Brands v. Unemployment Ins.
Appeals Bd., supra, 26 Cal.3d at 780-781 [Unemployment
Insurance Appeals Board’s award of benefits to employees
substantially affected employer’s vested fundamental right
to be free from erroneous charges to its unemployment
in an administrative agency’s action’”].) We therefore need not
address Theta Xi’s references to its members’ association rights.
46
insurance]; Berlinghieri v. Department of Motor Vehicles,
supra, 33 Cal.3d at 397-398 [DMV’s suspension of driver’s
license substantially affected driver’s vested fundamental
right to retain license].) In the remaining case, the Court of
Appeal held that a city’s decision not to renew a tavern’s
conditional use permit would have substantially affected the
tavern owner’s vested fundamental right to continue
operating his business (had the city’s decision not been set
aside), reasoning that the decision would have driven the
tavern out of business. (Goat Hill Tavern, supra, 6
Cal.App.4th at 1527-1531.) Here, however, Theta Xi -- a
national organization with headquarters in Missouri, with
chapters at multiple universities even within California --
does not argue that the six-year suspension of its USC
chapter will drive it out of business. Instead, Theta Xi
merely complains of a loss of revenue. Such a run-of-the-mill
economic impact does not establish that the suspension will
substantially affect a vested fundamental right. (See
Hardesty v. Sacramento Metropolitan Air Quality
Management Dist. (2011) 202 Cal.App.4th 404, 415-417
[distinguishing Goat Hill Tavern; air quality management
district’s order for mining company to cease operations until
it obtained permit did not substantially affect any vested
fundamental right held by company, where nothing in record
indicated obtaining permit would drive company out of
business]; JMS, supra, 30 Cal.App.5th at 960 [community
college district’s decision to allow subcontractor to be
replaced on construction project did not substantially affect
47
any vested fundamental right held by subcontractor, despite
its potential to cause subcontractor to lose money];
Benetatos, supra, 235 Cal.App.4th at 1281-1282.)
In sum, because USC’s decision did not substantially
affect any vested fundamental right held by Theta Xi, the
trial court properly declined to exercise its independent
judgment in reviewing the evidentiary support for SJACS’s
factual findings, and properly applied the substantial
evidence standard instead.
2. Application of Substantial Evidence
Standard
Because the trial court properly applied the substantial
evidence standard, “our review is the same as the trial
court’s -- we review the administrative record to determine
whether substantial evidence supports the agency’s
findings.” (Benetatos, supra, 235 Cal.App.4th at 1281.) “In
that review, we resolve all conflicts in the evidence and draw
all inferences in support of the agency’s findings.” (Ibid.)
Theta Xi challenges the evidentiary support for many
(although not all) of SJACS’s factual findings. We address
each challenged finding in turn.
a. Alcohol-Related Findings
Substantial evidence supported SJACS’s finding that
Theta Xi violated the prohibition against serving alcohol at
rush events. On January 11, 2017, Theta Xi member
Weilbacker sent a text message advertising a “Dirty Rush
48
Beer Pong Tournament” that would be attended by “a few
potential members . . . .” Fellow member Anish Mahadeo
inquired whether beer pong would be played the next day
too, and Weilbacker replied that he was contemplating
playing Power Hour (another drinking game) instead. The
next day, Weilbacker stated in another message, “[W]e will
be inviting rushees . . . to the house tonight. Probably power
hour and/or rage cage [yet another drinking game].” When
shown these messages during his SJACS interview,
Weilbacker said, “‘[A]ll fraternities do this.’”
Relatedly, substantial evidence supported SJACS’s
findings that pledges participated in drinking games and
drank large amounts of alcohol during the Around the World
event. Theta Xi member Eisenberg said that pledges
sometimes participated in drinking games, and that he had
participated in the Great American Challenge drinking
game as a pledge. Eisenberg further said that he had drunk
during the Around the World event, and implied that other
pledges had drunk too (by stating they had not “really”
drunk). Theta Xi president Casillas acknowledged that
pledges were allowed to participate in the Great American
Challenge, and to drink during the Around the World event.
Theta Xi member Ortega said that the Great American
Challenge was usually played in teams of “actives vs.
associates,” implying that a substantial number of pledges
typically participated, and that in fall 2017, pledges had
participated alongside active members on “mixed” teams.
49
Finally, substantial evidence supported SJACS’s
finding that underage pledges drank alcohol during Theta Xi
events. There was specific evidence of underage drinking at
Theta Xi events or in the Theta Xi house, viz., (1) two
references in Casillas’s interview notes to allowing underage
drinking to occur; and (2) the campus police report indicating
that Theta Xi member Chris Ladan, then underage, had
been drinking heavily at the Theta Xi house on August 19,
2017. Further, SJACS stated that it had reviewed student
records and confirmed that the members of the fall 2016
pledge class had been underage in fall 2016. Theta Xi did
not submit evidence, and has not claimed on appeal, that
any member of the fall 2016 pledge class was 21 or older at
the time. Though the student records are not in the
administrative record, they are inessential to a finding of
substantial evidence, as SJACS reasonably could infer that
many pledges were underage. During Theta Xi’s internal
interviews of its members, one member stated he had joined
Theta Xi as a freshman, and another stated he had joined as
a sophomore. Additionally, by stating when they joined
Theta Xi and when they expected to graduate, several other
members implied they had joined as freshmen or sophomores
(i.e., more than two school years in advance of their expected
graduation dates). As Theta Xi acknowledges, “It may be
correct to presume that most university freshmen and
sophomores are under age 21 . . . .”
50
b. Other Challenged Findings
Substantial evidence supported SJACS’s finding that,
as Schaar alleged, the fall 2016 pledge class had been
required to sleep in the Theta Xi house’s small library during
initiation week. Eisenberg, who had belonged to the pledge
class, said that the pledges had been told to stay in the
library, and that most pledges had slept in the library during
initiation week. Weilbacker, who also had belonged to the
pledge class, said he had slept in the library for four or five
days. Casillas, who had been the “pledge master” or
“associate member educator” in fall 2016, said that all
pledges usually slept in the Theta Xi house during initiation
week, and that the library was set up for them to sleep in.
Ortega, who had been the “assistant pledge master” in fall
2016, said that the library had been the “main space,” and
that some pledges had slept in it. Finally, in a text message
sent on October 28, 2016, Theta Xi member Derek Cheng
wrote that “the AM [associate member] group” would “need
to keep that room clean if they want[ed] to sleep undisturbed
for the rest of I-week[.]”
Substantial evidence also supported SJACS’s finding
that pledges participated in “fight night” events. Several
Theta Xi members confirmed that pledges participated.
Indeed, in its administrative appeal, Theta Xi admitted that
pledges participated. Theta Xi now asserts there was no
substantial evidence to support a finding that pledges were
forced to participate, but acknowledges that SJACS made no
such finding.
51
Theta Xi additionally challenges the evidentiary
support for factual findings that, as we explain in more
detail below, were inessential to USC’s suspension decision.
SJACS found that in fall 2016, pledges had been dropped off
at UCLA with a list of tasks to perform, including finding
Theta Xi’s UCLA chapter and finding their way back to USC.
SJACS also found that in fall 2017, pledges had participated
in workouts led by Ortega (then pledge master), and at times
had been required to carry 25-pound weights. But the SAR
report, SJACS’s response to Theta Xi’s administrative
appeal, and SBAP’s decision all focused on misconduct
unrelated to these findings. Thus, assuming, arguendo, that
SJACS abused its discretion by making these findings in the
absence of substantial supporting evidence, the abuse of
discretion was not prejudicial. (See Code Civ. Proc.,
§ 1094.5, subd. (b) [administrative decision must be set aside
if “there was any prejudicial abuse of discretion” (italics
added)].)
C. Sufficiency of the Findings
Theta Xi contends SJACS’s factual findings were
inadequate to support USC’s decision. It further contends
this inadequacy warrants annulment of the administrative
action or, in the alternative, remand to USC for additional
findings.
52
1. Principles
An administrative decision must be set aside if “there
was any prejudicial abuse of discretion.” (Code Civ. Proc.,
§ 1094.5, subd. (b).) “Abuse of discretion is established if . . .
the order or decision is not supported by the findings . . . .”
(Ibid.) Our Supreme Court has interpreted this latter
language as establishing “a requirement that the agency
which renders the challenged decision must set forth
findings to bridge the analytic gap between the raw evidence
and ultimate decision or order.” (Topanga, supra, 11 Cal.3d
at 515.) The findings must be sufficient “both to enable the
parties to determine whether and on what basis they should
seek review and, in the event of review, to apprise a
reviewing court of the basis for the [administrative] action.”
(Id. at 514.)
However, “‘[a]dministrative agency findings are
generally permitted considerable latitude with regard to
their precision, formality, and matters reasonably implied
therein.’ [Citation.] An agency’s findings under Code of
Civil Procedure section 1094.5 ‘do not need to be extensive or
detailed.’ [Citation.] ‘In addition, findings are to be liberally
construed to support rather than defeat the decision under
review.’ [Citation.]” (Young v. City of Coronado (2017)
10 Cal.App.5th 408, 421; see also Topanga, supra, 11 Cal.3d.
at 514 [“the reviewing court must resolve reasonable doubts
in favor of the administrative findings and decision”].)
“‘“[W]here reference to the administrative record informs the
parties and reviewing courts of the theory upon which an
53
agency has arrived at its ultimate finding and decision it has
long been recognized that the decision should be upheld if
the agency ‘in truth found those facts which as a matter of
law are essential to sustain its . . . [decision].’”’”
(Environmental Protection Information Center v. California
Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459,
516; see also Kifle-Thompson v. State Bd. of Chiropractic
Examiners (2012) 208 Cal.App.4th 518, 521 & fn.2, 530-531
[State Board of Chiropractic Examiners complied with
Topanga in revoking chiropractor’s license as sanction for
engaging in six separately defined varieties of
“unprofessional conduct,” where Board found chiropractor
had conspired in formation of sham medical corporations and
participated in insurance fraud; it “require[d] no great
analytic leap” for Court of Appeal to conclude from these
findings that chiropractor had committed all six varieties of
unprofessional conduct].)
2. Analysis
We conclude SJACS’s factual findings adequately
supported USC’s decision to suspend its recognition of Theta
Xi’s local chapter for six years. First, the findings were
sufficient to “enable the parties to determine whether and on
what basis they should seek review . . . .” (Topanga, supra,
11 Cal.3d at 514.) As is evident from the briefing, Theta Xi
has sought review on multiple bases. In doing so, it has not
asserted any prejudice from the purported vagueness of
SJACS’s analysis, with one exception -- it asserts that “it is
54
impossible to decipher which members supposedly engaged
in prohibited activity,” and “equally impossible to mount a
defense against such ambiguity.” But SJACS found that
Theta Xi members had performed prohibited acts, including
organizing and observing pledges’ participation in “fight
nights” and unauthorized drinking events (including the
Around the World event and other drinking games), and
imposing requirements for pledges to sleep in the small
library. Moreover, SJACS identified Casillas and Ortega by
name and observed that they had been the “pledge master”
and “assistant pledge master” in fall 2016, implying that
they had orchestrated or been involved in all the prohibited
acts at that time. The acts were identified with sufficient
particularity to enable Theta Xi to mount a defense on the
grounds that the acts had not occurred, or had not been
committed or implicitly condoned by Theta Xi members.
SJACS’s findings also were sufficient to apprise us of
the basis for the suspension. (See Topanga, supra, 11 Cal.3d
at 514.) The USC Code provided that a student
organization’s recognition by the university could be
suspended upon a finding of a hazing violation, or a finding
that the organization had engaged in, encouraged, or failed
to take reasonable steps to prevent violations of university
rules. In the SAR report, SJACS made such findings --
indeed, it found that Theta Xi had violated nine sections of
the USC Code, including section 11.40 (prohibiting
unauthorized dissemination of alcohol) and section 11.50.D
(prohibiting violations of section G.2, which incorporates
55
USC’s hazing policy by reference). In response to Theta Xi’s
argument to SBAP that the suspension was excessive and
inappropriate, SJACS stated, “[USC Code section G.2] states
that an organization may be held responsible for the acts of
individual members ‘when a member of the organization is
violating state law or university standards and other
members present fail to indicate their disapproval, or by
their continued presence without objection implicitly
condone their behavior.’ Members of Theta Xi corroborated
[Schaar’s allegations] that alcohol was provided to new
members of the Fall 2016 [pledge class] in violation of
university standards and the Laws of the State of
California.” SJACS thereby revealed that its many factual
findings concerning unauthorized drinking, which obviously
were linked to Theta Xi’s violation of USC Code section
11.40, were also linked to Theta Xi’s violation of section G.2,
and that SJACS attached special significance to the latter
violation. Elsewhere in SJACS’s response to Theta Xi’s
appeal, SJACS referenced its “findings” (implied in the SAR
report) that Theta Xi members had “engaged in behavior
that is considered to be hazing . . . .” Similarly, in rejecting
Theta Xi’s argument that the suspension was excessive and
inappropriate, SBAP observed that in the process of gaining
recognition as a student organization, Theta Xi had agreed
to abide by rules concerning “alcohol and hazing . . . .”
These statements, along with the SAR report, reveal
that USC’s suspension decision was based on SJACS’s
findings that in fall 2016 and fall 2017, Theta Xi’s active
56
members expected and at times required underage pledges
to participate in drinking games designed to induce severe
inebriation, subjected pledges to requirements likely to
compromise their dignity and deprive them of sleep, and
encouraged pledges to fight other members as a spectator
sport. It requires no great analytic leap for us to conclude
that these activities violated the specified USC Code sections
prohibiting unauthorized dissemination of alcohol (section
11.40), risks to health or safety (sections 11.32.A and
11.36.B), disruptive behavior (sections 11.38 and 11.44.A),
and hazing (sections 11.44.C, 11.50.B, 11.50.C, and 11.50.D),
keeping in mind that USC defined hazing to include coercing
or permitting students to drink alcohol to excess, depriving
students of eight hours of sleep, and compromising any
18
affiliated student’s dignity. SJACS found that during a
brotherhood retreat, pledges were required to participate in
an Around the World event featuring at least five varieties of
alcoholic beverages, during which pledges were encouraged
to drink in large quantities, and some members fell ill.
Within the Theta Xi house, pledges played Power Hour (each
18
USC Code sections 11.44.C, 11.50.B, 11.50.C, and 11.50.D
do not expressly prohibit hazing, but they prohibit categories of
misconduct encompassing hazing, viz., (1) misconduct prohibited
within the university community; (2) violations of policies
established for Greek-letter organizations; (3) violations of any
university policies; and (4) violations of section G.2, which
incorporates the hazing policy by reference. As explained below,
Theta Xi received adequate notice of SJACS’s investigation into
hazing violations.
57
participant drank a shot of beer every minute for an hour),
War (each team drank 60 cups of beer and Four Loko as fast
as possible), and the Great American Challenge (each team
raced to consume a 30-pack of beer, in addition to pizza and
marijuana). Throughout their initiation week, all 11
members of the 2016 pledge class were required to sleep in
the Theta Xi house’s small library, which was not large
enough to accommodate them. If they wished to sleep
undisturbed, they were required to clean the library to the
active members’ satisfaction -- which text messages
indicated they failed to do, prompting an active member to
announce his intent to ensure they never failed again. At
the same time, pledges wore costumes of cartoon and comic
book characters at the request of active members. Moreover,
during “fight night,” pledges participated in widely viewed
fights, at times resulting in noise complaints. The USC Code
provided that the university could suspend its recognition of
a student organization if SJACS found even a single hazing
violation, or a violation of other university rules. Thus, the
record reveals that SJACS found those facts essential to
sustain USC’s decision on its theory of recurring violations of
its hazing and alcohol policies. (See Environmental
Protection Information Center v. California Dept. of Forestry
& Fire Protection, supra, 44 Cal.4th at 516.)
Based on the foregoing, and resolving reasonable
doubts in favor of USC’s ultimate decision (see Topanga,
supra, 11 Cal.3d at 514), we infer that SJACS’s remaining
factual findings were inessential to the suspension. Thus,
58
even assuming USC abused its discretion in failing to
adequately reveal the analytical significance it attached to
those findings, Theta Xi was not prejudiced. (See Code Civ.
Proc., § 1094.5, subd. (b) [administrative decision must be
set aside if “there was any prejudicial abuse of discretion”
(italics added)].)
Theta Xi cites no caselaw on this issue other than
Topanga itself, which is distinguishable. There, a county
planning commission granted an investment company a
zoning variance, which was required by statute to be based
on comparative information regarding the property at issue
and other properties. (Topanga, supra, 11 Cal.3d at 520.)
Our Supreme Court found the commission’s findings
deficient because they lacked any such information. (Ibid.)
Here, Theta Xi has identified no requirement for USC to rely
on a specific category of information in rendering its
decision, let alone a category of information omitted from
SJACS’s factual findings.
In sum, we conclude that USC adequately revealed its
“analytic route . . . from evidence to action” in suspending its
recognition of Theta Xi’s local chapter for violating
university rules. (Topanga, supra, 11 Cal.3d at 514-515.)
This is especially true in light of SJACS’s and SBAP’s
observations that Theta Xi failed to evaluate its culture or
take responsibility for its members’ actions, and that the
six-year suspension would incentivize Theta Xi to make
changes to its culture and leadership before seeking to
resume activities as a USC student organization. We note
59
that in the trial court and this court, Theta Xi has at times
minimized the risks of a culture in which young men
pressure their peers into excessive drinking and other
violations of university rules. For instance, in addressing
underage Theta Xi member Chris Ladan’s alcohol overdose
in the trial court, Theta Xi emphasized that Ladan was only
slightly underage, and that he had been found (vomiting,
confused, and in need of medical attention) “away from” the
Theta Xi house -- ignoring Ladan’s report that he had been
drinking at the Theta Xi house. On appeal, Theta Xi
continues to deny the existence of evidence of peer pressure
within its ranks, and minimizes the power of such pressure
by implying it is unlikely to affect anyone with “individual
agency and the ability to make rational decisions for their
safety and well-being.” Such positions reflect a failure to
appreciate the value of university rules that, as SJACS and
SBAP emphasized, require a student organization to
maintain an environment free from even ostensibly
voluntary violations among its members.
D. Fair Hearing
An administrative decision rendered without a “fair
trial” must be set aside. (Code Civ. Proc., § 1094.5, subd.
(b).) In this context, a fair trial means a fair administrative
hearing. (Allee, supra, 30 Cal.App.5th at 1059.) As the
parties agree, we review de novo the fairness of the
administrative hearing. (Ibid.)
60
Theta Xi contends it was deprived of a fair hearing
because (1) it received inadequate notice of the allegations
that served as the basis for the suspension; (2) it received
inadequate opportunities to review and produce evidence;
and (3) SJACS was biased, as evidenced by (a) SJACS’s
failure to investigate Schaar’s alleged retaliatory motive and
transgressions against women, (b) SJACS’s placing a hold on
Theta Xi member Eisenberg’s student records to induce his
consent to an interview, without similarly seeking to induce
an interview with Sarah Nuckel, the author of a written
statement that Schaar had submitted with his complaint,
(c) the allegedly objectionable manner in which SJACS
Director Budar-Turner interviewed Casillas, and
(d) SJACS’s denial of Theta Xi member Weilbacker’s request
to have an advisor present during his interview. Theta Xi
additionally contends that its status as an established
student organization entitled it to a heightened standard of
fairness, and that SJACS’s procedures fell short of such a
heightened standard because (1) Theta Xi had no
opportunity to cross-examine witnesses; (2) SJACS exercised
both investigative and adjudicatory functions; and (3) the
administrative appeal procedure was inadequate.
1. Principles
“For practical purposes, common law requirements for
a fair disciplinary hearing at a private university mirror the
due process protections at public universities.” (Allee, supra,
30 Cal.App.5th at 1061.) “Disciplinary hearings ‘need not
61
include all the safeguards and formalities of a criminal
trial.’” (Id. at 1062.) “[T]he essence of both [the common law
and due process] rights is the fairness of the decision-making
process, including adequate notice, a reasonable opportunity
to respond, and a fair, unbiased decision-maker.” (CEB, Cal.
Administrative Mandamus, supra, § 5.32.) Though fairness
requires an unbiased decision maker, “[a] disciplinary
decision may not be invalidated solely on the basis of an
inference or appearance of bias.” (Allee, supra, at 1060.)
Instead, a party claiming bias bears the burden of showing
actual bias, or a high probability thereof. (See ibid.)
“Generally, a fair procedure requires ‘notice reasonably
calculated to apprise interested parties of the pendency of
the action . . . and an opportunity to present their
objections.’” (USC 2016, supra, 246 Cal.App.4th at 240.)
However, “[t]he rules of pleading that apply in ordinary civil
actions do not apply to administrative proceedings. The
courts consider whether the accused received fair notice,
apart from any technical requirements of pleading; what is
required is disclosure of charges adequate to allow the
accused to prepare a defense and to avoid being
disadvantaged by surprise at the hearing.” (CEB, Cal.
Administrative Mandamus, supra, § 6.81.)
“Fair hearing requirements are ‘flexible’ and entail no
‘rigid procedure.’” (Allee, supra, 30 Cal.App.5th at 1062.)
“‘“[T]o comport with due process,” the university’s procedures
should “‘be tailored, in light of the decision to be made, to
“the capacities and circumstances of those who are to be
62
heard,” [citation] . . . to insure that they are given a
meaningful opportunity to present their case.’”’” (Ibid.)
Even when recognizing a right to administrative
cross-examination in certain circumstances, we have
“‘“reject[ed] the notion that as a matter of law every
administrative appeal . . . must afford the [accused] an
opportunity to confront and cross-examine witnesses.”’”
(Allee, supra, at 1067, quoting USC 2016, supra, 246
Cal.App.4th at 245.) We have also recognized that “an
administrative procedure in which a single individual or
body investigates and adjudicates does not, ‘without more,’
violate due process.” (Allee, at 1067.)
2. Analysis
We conclude that Theta Xi received a fair
administrative hearing. Theta Xi’s arguments to the
contrary concern (1) notice; (2) opportunities to review and
produce evidence; (3) bias; and (4) Theta Xi’s purported right
to heightened procedural safeguards. We address each.
First, Theta Xi received adequate notice. SJACS’s
notice letter listed all the USC Code sections that Theta Xi
was ultimately found to have violated. The letter also
identified “Hazing” as the factual basis of the allegations,
thereby directing Theta Xi’s attention to USC’s hazing policy
-- which was incorporated into several of the USC Code
sections identified in the notice, and which Theta Xi used as
the source of nearly all its questions in its internal
63
19
interviews. Moreover, SJACS shared the factual specifics
of Schaar’s complaint with Theta Xi’s president (Casillas)
and his advisor (Toghia) a mere two days after it sent the
notice letter. The factual basis for the SJACS and SBAP
decisions closely tracked Schaar’s allegations, to the extent
they were found credible. Thus, Theta Xi received “‘notice
reasonably calculated to apprise [it] of the pendency of the
action . . . and an opportunity to present [its] objections.’”
20
(USC 2016, supra, 246 Cal.App.4th at 240.)
19
Theta Xi complains that SJACS never “expressly charged”
a violation of USC’s hazing policy. But SJACS’s notice letter was
not a formal charging document, and Theta Xi was not entitled to
one. (See CEB, Cal. Administrative Mandamus, supra, § 6.81.)
20
Theta Xi argues that our holding in USC 2016 establishes
that it received inadequate notice. Not so. There, a student
(John) was accused of misconduct in connection with the sexual
assault of a woman (Jane) by a group of men. (USC 2016, supra,
246 Cal.App.4th at 224.) In its notice letter to John, SJACS
listed USC Code sections that had allegedly been violated,
without stating any factual basis for the alleged violations. (USC
2016, supra, at 225.) SJACS proceeded to inform John of the
factual basis for the allegations -- but this factual basis differed
from the factual basis for the sanction ultimately imposed. (Ibid.)
Specifically, “[t]he SJACS investigation and report focused on
alleged sexual assault and whether Jane consented to sexual
contact. The Appeals Panel, on the other hand, suspended John
for encouraging other students to slap Jane and for endangering
Jane after all sexual contact had ended.” (Id. at 225.) We
concluded, “Because John was sanctioned based on activities that
he was never informed might be the cause for sanctions, John
was not provided with sufficient notice . . . .” (Id. at 244.) Here,
(Fn. is continued on the next page.)
64
Second, Theta Xi received adequate opportunities to
review and produce evidence. Near the end of its
investigation, but well before it issued its decision, SJACS
allowed Casillas and attorney Hathaway to review the
evidence it had gathered. Casillas and Hathaway reviewed
the evidence for 50 minutes, and nothing in the record
indicates they requested additional time. Soon thereafter,
Casillas submitted various documents, which he
characterized as “all the relevant information” Theta Xi
21
wished to submit. Theta Xi’s documentary submission
included, inter alia, the questionnaires and transcripts
collected in Theta Xi’s internal investigation, and records of
Schaar’s disputes with Theta Xi and alleged transgressions
against women. SJACS addressed these matters in the SAR
there was no such bait and switch. (See Doe v. Occidental College
(2019) 37 Cal.App.5th 1003, 1016 [distinguishing USC 2016;
college’s adjudicator “did not engage in any ‘bait and switch,’” but
instead found accused student “had committed sexual misconduct
as stated in the notice and nothing different”].) As noted, the
factual basis for the SJACS and SBAP decisions closely tracked
Schaar’s allegations, which SJACS had communicated to Theta
Xi two days after sending its notice letter.
21
In support of its claim of bias, Theta Xi relies on Casillas’s
claim, in an email to Toghia, that SJACS Director Budar-Turner
had denied him an opportunity to “tell [his] side of the story”
during his initial SJACS interview. However, Budar-Turner and
Chavez Vargas’s interview notes show that Casillas was allowed
to provide exculpatory or mitigating statements (e.g., his denial
that Theta Xi had held any “dirty” rush events), which
Budar-Turner recorded.
65
report. It reasonably deemed the Theta Xi members’
internal interview responses not credible, particularly given
the interview questions’ narrow focus. Contrary to Theta
Xi’s contention, SJACS was not required to interview each
Theta Xi member the fraternity itself had interviewed.
SJACS interviewed four of those witnesses -- viz., Casillas,
Ortega, Weilbacker, and Eisenberg -- and reasonably found
their statements corroborated Schaar’s allegations in key
respects. In light of such corroboration, SJACS reasonably
found Schaar generally credible, despite his potential motive
to retaliate against Theta Xi for its role in their prior
disputes. Finally, SJACS reasonably deemed Schaar’s
alleged transgressions against women immaterial to the
credibility of his allegations of misconduct among members
of Theta Xi, an all-male fraternity.
Third, Theta Xi has failed to show even an appearance
of bias, let alone actual bias or a high probability thereof.
(See Allee, supra, 30 Cal.App.5th at 1060.) Weighing against
a finding that SJACS was biased against Theta Xi or in favor
of Schaar, SJACS declined to credit Schaar’s allegations in
several respects. Specifically, due to the absence of
corroborating evidence, SJACS did not find true the
allegations that (1) pledges had been required to participate
in “fight night”; (2) pledges had been required to drink
alcohol before their early-morning run; and (3) during the
UCLA event, Theta Xi members had blindfolded pledges,
required them to wear costumes or morph suits, and
confiscated their wallets and phones. Moreover, in part for
66
the reasons we have rejected Theta Xi’s other procedural
arguments, SJACS’s procedures were not suggestive of bias.
No bias was suggested by SJACS’s refusal to allow Theta Xi
member Weilbacker to be accompanied by an advisor during
Weilbacker’s interview. Theta Xi has neither claimed that
USC’s rules entitled Weilbacker to the presence of an
advisor, nor identified evidence that SJACS allowed any
third-party interviewee unaffiliated with Theta Xi to be
accompanied by an advisor. Finally, no bias was suggested
by SJACS’s placing a hold on Theta Xi member Eisenberg’s
student records to induce his consent to an interview,
despite SJACS’s decision not to similarly induce an
interview with Sarah Nuckel. Eisenberg and Nuckel were
not similarly situated with respect to SJACS’s investigation
into hazing in and after fall 2016. Eisenberg had been a
member of the fall 2016 pledge class, and Schaar had named
Eisenberg as the pledge who had injured his knee during an
alleged hazing activity. In contrast, Nuckel had never been
a Theta Xi member. Though Schaar had submitted a
written statement from Nuckel along with his complaint,
Nuckel’s statement concerned only Theta Xi’s alleged “smear
campaign” against Schaar, and said nothing about Schaar’s
allegations against Theta Xi. SJACS’s decision to forego
Nuckel’s interview (after she failed to respond to its
interview request) was reasonable and not suggestive of
bias.
Finally, we reject Theta Xi’s argument, based on our
decision in Allee, supra, 30 Cal.App.5th 1036, that it was
67
entitled to heightened procedural safeguards, viz., (1) an
opportunity to cross-examine witnesses; (2) separation of
SJACS’s investigative and adjudicatory functions; and (3) an
administrative appellate procedure involving a more
searching factual review than SBAP conducted. In Allee, as
noted, we recognized that the common law right to a fair
hearing typically does not require cross-examination or the
separation of investigative and adjudicative functions. (See
id. at 1061-1062, 1067.) On the record then before us,
however, we held that a USC student accused of sexual
assault and given no opportunity for cross-examination had
been denied a fair administrative hearing, reasoning that
(1) the student had been entitled to an opportunity for
cross-examination, given the severity of the discipline he
faced and the fact that the case turned on the credibility of
the only two witnesses to the alleged assault, viz., the
student and his alleged victim; and (2) the Title IX
investigator had exercised her investigative discretion in
“questionable” ways, as we deemed “virtually unavoidable”
in a system entrusting her with combined investigative and
adjudicative functions. (Id. at 1069-1071.) We did not hold
that the student had been entitled to any particular
administrative appellate procedure. Rather, we merely
relied on limitations of the Title IX appellate procedure to
support our holding that on the record before us, additional
safeguards were required in the underlying factfinding
process. (Allee, supra, at 1069.)
68
As the trial court aptly explained, Allee is
distinguishable. “[H]ere, the severity of the sanction to any
individual student directly is nonexistent; the investigation
and subsequent proceeding only affected the rights of the
fraternity, a private association, to participate as an
22
on-campus organization.” “Also, unlike a sexual assault
case, where the case often depends on the credibility of the
only two people involved, the hazing case here had numerous
potential witnesses; for example, [Theta Xi]’s own
investigation into the allegations involved deposing fourteen
witnesses. [Citation.] Further, SJACS relied on other
corroborating evidence, such a text messages.” Finally,
although investigative and adjudicative functions were
combined in SJACS, these functions were jointly exercised
by two individuals (Budar-Turner and Chavez Vargas), and
22
The nonexistence of any student discipline also
distinguishes this case from Knight v. South Orange Community
College District (Feb. 10, 2021, G058644) ___ Cal.App.5th ___
[2021 Cal.App. LEXIS 120] (Knight), decided the day this case
was argued. There, the court held that a student reprimanded by
a community college for physical harassment, but neither
suspended nor expelled, received adequate notice of the
allegations against him and an opportunity to respond.
(Id. at *19-*30.) In dictum, the Knight court posited that had the
student been suspended or expelled, he would have been entitled
to “some form of hearing and witness confrontation . . . .” (Id.
at *2.) Neither the Knight court’s holding nor its dictum
addressed the due process requirements applicable to student
organizations. As we have explained, Theta Xi received adequate
notice and opportunities to respond.
69
the record reveals no questionable exercises of their
investigative discretion. This record does not warrant the
heightened procedural safeguards we found necessary on the
record before us in Allee. Instead, Theta Xi’s procedural
rights were governed by “General Principles of Fundamental
Fairness,” which, as we recognized in Allee, do not mandate
cross-examination, separation of investigative and
adjudicative functions, or any particular administrative
appellate procedure.23 (Allee, at 1061-1062.)
In sum, Theta Xi has not shown that it was deprived of
“adequate notice, a reasonable opportunity to respond, [or] a
fair, unbiased decision-maker.” (CEB, Cal. Administrative
Mandamus, supra, § 5.32.) Nor has it shown that it was
entitled to heightened procedural safeguards. We conclude
that Theta Xi received a fair administrative hearing.
23
Our Supreme Court is currently reviewing the following
issue: “Under what circumstances, if any, does the common law
right to fair procedure require a private university to afford a
student who is the subject of a disciplinary proceeding with the
opportunity to utilize certain procedural processes, such as
cross-examination of witnesses at a live hearing?” (Boermeester
v. Carry (2020) 49 Cal.App.5th 682, review granted and ordered
not to be published September 16, 2020, S263180, Supreme Court
Mins., Sept. 30, 2020.) Pending guidance from our Supreme
Court, we adhere to the views we have expressed here and in
Allee.
70
DISPOSITION
The judgment is affirmed. Respondents are entitled to
their costs on appeal.
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
71
Filed 3/23/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ALPHA NU ASSOCIATION OF B303269
THETA XI,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.18STCP02516)
v. ORDER MODIFYING OPINION
AND CERTIFYING OPINION
UNIVERSITY OF SOUTHERN FOR PUBLICATION
CALIFORNIA et al.,
[NO CHANGE IN JUDGMENT]
Defendants and Respondents.
THE COURT:*
It is ordered that the opinion filed March 03, 2021 be modified as
follows:
On page 8, line 3 of footnote 2, the phrase “Theta Xi member
Derek Cheng” is deleted and replaced with the phrase “a fellow
member”;
On page 8, lines 4 through 5 of footnote 3, the phrase “Theta Xi
member Anish Mahadeo” is deleted and replaced with the phrase “A
fellow member”;
1
On page 13, lines 8 through 9, the parenthetical “(Nikhil
Cherukuri)” is deleted;
On page 13, line 19, the parenthetical “(Anish Mahadeo)” is
deleted;
On page 14, lines 12 through 13, the phrase “fellow pledge Nikhil
Cherukuri” is deleted and replaced with the phrase “a fellow pledge”;
On page 17, line 3, the phrase “fellow pledge Matt Anderson” is
deleted and replaced with the phrase “a fellow pledge”;
On page 17, line 5, the phrase “fellow pledge Cherukuri” is deleted
and replaced with the phrase “a fellow pledge”;
On page 21, line 11, the name “Ladan” is deleted and replaced
with the initial “L.”;
On page 21, line 13, the name “Ladan” is deleted and replaced
with the name “Chris”;
On page 21, line 17, the name “Ladan” is deleted and replaced
with the name “Chris”;
On page 21, line 18, the possessive “Ladan’s” is deleted and
replaced with the word “His”;
On page 21, line 21, the name “Ladan” is deleted and replaced
with the word “he”;
On page 34, line 19, the name “Ladan” is deleted and replaced
with the initial “L.”;
On page 35, line 5, the possessive “Chris Ladan’s” is deleted and
replaced with the possessive “Chris’s”;
On page 35, line 6, the name “Ladan” is deleted and replaced with
the name “Chris”;
On page 35, line 8, the possessive “Ladan’s” is deleted and
replaced with the word “his”;
On page 38, line 13, the possessive “Chris Ladan’s” is deleted and
replaced with the possessive “Chris L.’s”;
On page 38, line 14, the name “Ladan” is deleted and replaced
with the name “Chris”;
2
On page 49, line 2, the phrase “Fellow member Anish Mahadeo” is
deleted and replaced with the phrase “A fellow member”;
On page 50, line 7, the name “Ladan” is deleted and replaced with
the initial “L.”;
On page 51, line 17, the phrase “Theta Xi member Derek Cheng”
is deleted and replaced with the phrase “a Theta Xi member”;
On page 60, line 5, the possessive “Chris Ladan’s” is deleted and
replaced with the possessive “Chris L.’s”;
On page 60, line 6, the name “Ladan” is deleted and replaced with
the name “Chris”;
On page 60, line 9, the possessive “Ladan’s” is deleted and
replaced with the word “his”;
On page 71, line 4, the language “NOT TO BE PUBLISHED IN
THE OFFICIAL REPORTS” is deleted.
The opinion in the above-entitled matter was not certified for
publication in the Official Reports. For good cause it now appears that
the opinion should be certified for publication in its entirety in the
Official Reports and it is so ordered.
There is no change in judgment.
__________________________________________________________________
MANELLA, P. J. WILLHITE, J. CURREY, J.
3