Thursday, September 15, 2011
High Court Will Not Review Law Student’s Suspension
Ruling Upholding Penalty for Plagiarism Left Standing by Justices
By a MetNews Staff Writer
The California Supreme Court yesterday declined to hear a law student’s challenge to her suspension for plagiarism and academic dishonesty.
The justices, at their weekly conference in San Francisco, unanimously denied review in Yu v. University of LaVerne, B229949.
The Court of Appeal for this district, Div. Three, held in June that the University of La Verne did not violate the rights of third-year law student Katarina Yu. The court said Yu failed to demonstrate that the law school dean’s decision to increase the discipline imposed against her after she appealed the ruling of a three-member disciplinary board arose from her exercise of free speech.
In the spring of last year, while in her final semester at the private law school, Yu was enrolled in a contracts drafting class. An assignment in this course required students to work as “co-counsel” to prepare a coffee-supply contract on behalf of a seller.
Yu was teamed with Hyung Ahn and Jeff Wirtes on this project. Another student, Alvin Koan, was assigned the role of “opposing counsel.”
Yu apparently found a coffee-supply contract on the internet, which she emailed to Ahn and Wirtes. The contract which she subsequently prepared and submitted to the instructor allegedly included provisions from the online contract, as well as provisions prepared by Ahn.
In May 2010, a few days before the law school’s graduation ceremony, Yu was notified that she was being investigated for plagiarism and academic dishonesty. The school offered her a “plea bargain,” which she declined, but Ahn and Koan accepted. Wirtes was not charged with any wrongdoing.
A search of State Bar records indicates that Koan is the only one of the four to have been licensed to practice in California.
The university brought formal charges against Yu in August of last year, and a trial was held in September before a panel comprised of two faculty members and one student. The case against Yu was presented by a “special prosecutor” who was a faculty member.
Although the special prosecutor had asked the Judicial Board to expel Yu from the law school, the board elected to impose a lesser punishment of denying Yu credit for taking the course and entering a failing grade on her academic record.
Yu appealed the board decision to Allen K. Easley, dean of the law school.
Pursuant to the school’s Manual of Academic Policies and Procedure, the dean could reverse the board’s decision if “no reasonable person” would have issued the decision or if newly discovered evidence justifies a new hearing. It also provides that the dean “may impose a greater or lesser sanction than that imposed by the Judicial Board,” if he finds a different level of punishment is justified.
Yu contended she had been singled out for prosecution when other classmates who engaged in similar conduct were not prosecuted, the course syllabus was ambiguous about what “use of form agreements” was permissible, the definition of plagiarism in the MAPP was unclear, and that Ahn had copied her work. She also presented character evidence.
Easley rejected Yu’s appeal and increased the sanctions against Yu by suspending her for the remainder of the academic year and by the insertion of a formal letter of censure in Yu’s file.
Rules Clear, Dean Says
In his three-page letter to Yu, Easley said he found a “reasonable person could find from the evidence presented that the prohibition against use of form agreements in the student’s final work product was clear, that the definition of plagiarism was clear, and that Ms. Yu copied significant portions of her final work product from form agreements and from the work of another student….”
He said he felt the increased punishment was merited since Yu had demonstrated no remorse or “any comprehension of the seriousness of the charges brought against her” and her “use of unauthorized materials in her assignment [was] not unlike a student using unauthorized materials in a final exam.”
As a student caught the previous academic year hiding a course outline in a restroom so that he could access it surreptitiously during the final exam was sanctioned with expulsion, Easley insisted a “sanction more serious than a failing grade in the course is clearly justified” for Yu.
Yu thereafter filed a complaint, asserting the school had violated Education Code Sec. 94367 in imposing the increased discipline against her.
Sec. 94367 prohibits private universities from disciplining students solely on the basis of speech which would be protected from governmental restriction by the federal and state constitutions if made off campus.
Yu contended her appeal to the dean was protected speech and petitioning activity under this statute, but Los Angeles Superior Court Judge Robert H. O’Brien found she was unlikely to prevail on the merits of this claim and declined her request for a preliminary injunction.
Writing for the appellate court, Justice Patti S. Kitching said this was not an abuse of discretion.
She explained that Sec. 94367 creates statutory free speech rights for students of private postsecondary educational institutions, but no right to petition.
The justice emphasized the purpose of the statute “is to prohibit private universities from punishing students solely for engaging in speech,” and this goal “would not be promoted by interpreting the statute to exclude speech directed at a school official regarding a school-related issue” as urged by the university.
But Kitching noted that Easley “stated a number of reasons for increasing Yu’s sanctions that have nothing to do with Yu’s exercise of her free speech rights,” such as her extensive use of the online contract and Ahn’s work, and her continued disputation of the charges against her.
In other conference action, the court unanimously denied review of a ruling by this district’s Div. Two in favor of Fox Sports Net, Inc., which was sued by a former sales executive after firing him for sexual harassment.
Sean McCormack—who was also a onetime co-host of “The Third String,” a weekly sports talk show on what was then KXTA radio—claimed FSN breached his employment contract by firing him without a “good faith and reasonable belief” that it had good cause to do so.
But Los Angeles Superior Court Judge Rita Miller and the Court of Appeal both ruled that there was undisputed evidence of the company’s good faith belief that McCormack violated the company’s sexual harassment policy by persistently referring to co-workers in sexually demeaning terms, using crude anatomical references and anti-gay slurs.
Presiding Justice Roger Boren, in an unpublished June 20 opinion for the Court of Appeal, noted that FSN employed independent, unbiased, expert investigators to look into the complaints; that they conducted multiple interviews of employees; that the statements of those interviewed were consistent in their observations of McCormack’s behavior; and that McCormack had such a sterling performance record that “Fox had no motive to fire a reliable employee, absent serious complaints from his coworkers that pointed to violations of company policy and state law.”
The case is McCormack v. Fox Sports Net, Inc., B221708.
Copyright 2011, Metropolitan News Company