Thursday, April 25, 2019
Panel Won’t Undo Its Naming of Woman Who Sued to Force USC to Relieve Her of ‘F’ Grade;
Another Panel Grants Anonymity to Student Contesting Suspension Over Alleged Rape
By a MetNews Staff Writer
Div. Three of the Court of Appeal for this district has denied an unusual petition for rehearing which asked that an opinion that was publicly filed and posted on the Judicial Council’s Internet site be sealed, and that it be reissued with the appellant’s actual name changed to “Jane Doe.”
The request was made Friday by downtown Los Angeles attorney Mark M. Hathaway of Hathaway Parker, Inc., on behalf of his client Madeline Schrager; it was denied Tuesday. The one-sentence order was signed by Justices Halim Dhanidina, who authored the unpublished opinion in the case, and Justice Luis A. Lavin.
Also on Tuesday, Div. Six of this district’s Court of Appeal issued a published opinion identifying a student who sued to contest his two-year suspension from a college as “John Doe.”
Flunking Grade Contested
Dhanidina’s opinion affirms a denial by Los Angeles Superior Court Judge Howard L. Halm of a petition for a writ of administrative mandamus sought by Schrager to compel the University of Southern California to relieve her of an “F” grade in chemistry, imposed as a punishment for violating a rule against “possession or use of unauthorized notes” during an exam. Schrager has pursued the matter although she has graduated from the university.
In 2015, a yellow pad with notes relating to the subject matter of the final exam she was taking was protruding from Schrager’s bag. Although there was evidence that she could not have deciphered the notes in her bag from where she was seated owing to an eye condition, and that the proctor did not spot her looking at those notes, Dhanidina said this “is irrelevant to her possession of the notes.”
Possession, without any intent to cheat, was sufficient to constitute a violation of the rule, justifying the penalty, he wrote.
Litigated as ‘Doe’
Hathaway, in arguing that Div. Three should cloak his client with anonymity, noted that she filed the action as “Jane Doe”; that USC challenged, by demurrer, her use of a pseudonym; that Halm overruled the demurrer; and that USC did not seek a writ.
The lawyer contended:
“Appellant properly sought to protect her identity and prevailed at the trial court on the issue of her use of a pseudonym. No public interest is served by the public learning her identity now. In fact, disclosure of her identity by the Court, contrary to the unchallenged trial court order and without notice or opportunity to be heard, would appear to be contrary to any public interest.”
The case is Schrager v. Carry, B282970.
Div. Six on Tuesday handed a victory to a male client of Hathaway who was subjected by the Student Conduct Panel to a two-year suspension from Westmont College, a small private institution in Santa Barbara County, for allegedly raping a female student. In affirming the granting of a petition for a writ of administrative mandamus to the accused student, the alleged rape victim was designated, as is customary, pseudonymously, as “Jane Roe”; Hathaway’s client was also accorded anonymity.
Justice Martin Tangeman set forth in a footnote:
“The parties refer to the individuals involved in this case by pseudonyms. We do the same.”
Explaining the affirmance, Tangeman said:
“Westmont’s investigation and adjudication of Jane’s accusation was fatally flawed. Westmont did not provide John with a fair hearing: indeed, it did not comply with its own policies and procedures. The Panel did not hear testimony from critical witnesses, yet relied on these witnesses’ prior statements to corroborate Jane’s account or to impeach John’s credibility. The Panel withheld material evidence from John, which its policies required it to turn over. As a result. John was denied a meaningful opportunity to pose questions to Jane and other witnesses on material disputed facts. We affirm.”
That case is Doe v. Westmont College, B287799.
The due-process discussion was in conformity with that contained in a 2015 Div. Six opinion in Doe v. Regents of the University of California, authored by Presiding Justice Arthur Gilbert.
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