Monday, April 22, 2019
Court of Appeal:
Opinion Says Under University’s Rule, Inability to See Notes Protruding From Bag, Lack of Intent To Cheat, Aren’t Relevant; Appellant Seeks Reissuance of Opinion Without Her True Name
By a MetNews Staff Writer
A woman who, as a USC student in 2015, received an “F” in chemistry after a proctor spotted a yellow pad with notes on it protruding from her bag during the final examination has failed in her effort to persuade the Court of Appeal for this district’s Div. Three to reverse the denial of her petition for a writ of administrative mandamus challenging the punitive grade.
Under a USC rule, the opinion says, mere possession of “unauthorized notes” justified flunking the student, without any need to show that she intended to cheat.
The opinion was filed Thursday and was not certified for publication. On Friday, attorneys for the student, Madeline Schrager, filed an unusual “Petition for Rehearing to Seal Opinion and Issue New Opinion.” It says:
“Appellant respectfully petitions the Court, which sua sponte and without any notice disclosed Appellant’s true name yesterday, to withdraw and place under seal the opinion filed herein on April 18. 2019, and to re-issue the opinion using the pseudonym of ‘Jane Doe,’ consistent with the order of the trial court, Hon. Howard L. Halm, issued September 6, 2016.”
Thursday opinion affirming the writ denial by Halm, a judge of the Los Angeles Superior Court, was written by Justice Halim Dhanidina of Div. Three.
Schrager, who graduated from USC last year, explained during a 2015 internal inquiry that she had reviewed her notes in the library prior to the exam, closed the bag containing the notes when she entered the room in which the exam was administered, and did not know how the bag had become open, surmising that she had accidentally knocked it open.
Evidence showed that Emily Roberts, the proctor who spotted the notepad, advised Thomas Bertolini, the assistant professor in whose class Schrager was enrolled, that Schrager had not actually peeked at the notes “from what we could tell.” Roberts took photographs on the spot, which Schrager contended showed that the notes were not in her line of sight, and the student produced a letter from her optometrist stating that, while wearing her reading glasses, she would not be able to decipher writings from a distance.
But, even if Schrager had no intent to refer to her notes during the exam, Dhanidina said, there was still a violation of USC Student Conduct Code §11.13A, which declares:
“Any use or attempted use of external assistance in the completion of…an examination…shall be considered academically dishonest unless expressly permitted by the instructor.”
An example provided is “possession or use of unauthorized notes.”
The jurist wrote:
“Section 11.13A is unambiguous. It first sets forth a general rule: in short, do not engage in academically dishonest behavior. Then, the section provides examples of the general rule, including do not possess or use unauthorized notes. Possessing or using unauthorized notes is in the disjunctive….Thus, possessing unauthorized notes is academically dishonest behavior.”
He said the “unauthorized nature” of the notes was clear, pointing out that what was written on the pad was not something along the lines of a “grocery list”; rather, Dhanidina noted, “she had a chemical formula on her notepad.”
Utility of Rule
Schrager challenged the proposition that a rule barring mere possession of notes advances any interest of USC in deterring cheating. Dhanidina responded:
“The simplest answer is this: it is the rule. Such a bright-line rule makes it easier for both USC and its students to understand what is and is not prohibited conduct.”
He rejected the appellant’s contention that the university’s investigation was inadequate, not including any interviewing of Roberts. The only issue, Dhanidina stressed, was whether Schrager was in possession of notes during the exam, saying that the fact that the proctor “did not see Schrager look at the notes was irrelevant to whether Schrager possessed them,” just as it was irrelevant whether, in light of the condition of her eyes, she was capable of reading them from where they were located.
Dhanidina noted that Roberts, relaying a message from the assistant professor, who was not present during the examination, cautioned students that it was impermissible to have “extraneous course-related material in your field of vision,” a warning which was also printed on the exam. The opinion says that the “instruction could not have been clearer or, in hindsight, more apt” but it does not explain the relevance of Bertolini’s admonishment as to materials “in your field of vision” in light of the appeals court’s determination that it does not matter, under §11.13A, if Schrager had, in fact, been unable to read the notes on the pad that was sticking out of her bag.
USC founded its action on a determination, reached through its administrative process, that Schrager “was in possession of a notepad with written course-related material that was both clearly accessible and visible during the examination.”
The opinion, while finding that it is irrelevant whether the material was “visible” during the exam, does not discuss the matter of accessibility. It does not spell out whether it is significant that Schrager’s bag was open when the proctor came by or whether she would have been subject to a punitive “F” by virtue of “possession” of the notes if they had been inside a closed bag and the contents had somehow been discovered.
The university on Friday provided this statement:
“We are pleased the Court of Appeal and the Superior Court agreed that Madeline Schrager received a fair hearing, that USC followed its policies and procedures and that the evidence was sufficient to support USC’s findings. USC takes academic integrity issues very seriously.”
Friday’s petition for rehearing was filed on behalf of Schrager by attorneys Mark M. Hathaway (who has handled several cases against USC) and Jenna E. Parker of the downtown Los Angeles firm of Hathaway Parker. It argues:
“Following the order of Hon. Howard L. Halm on September 8, 2016, the reference to Appellant as ‘Jane Doe’ was honored throughout the proceedings in the trial court and briefing in the Court of Appeal. Only at oral argument on February 14, 2019, was the issue of Appellant’s true name raised for the first time in over two years, in an inquiry by Justice Luis Lavin. Appellant, through counsel, referenced the confidentiality of educational records and [the Family Educational Rights and Privacy Act]. No further briefing on the issue was requested by the Court. Appellant could not have reasonably anticipated that the Court would sua sponte and without notice, disclose Appellant’s identity in the public record, contrary to the trial court’s order.”
“It’s almost as if Appellant is being outed and punished because her appeal was unsuccessful, in order to discourage others from seeking redress under pseudonyms, where appropriate and approved by the trial court.”
The case is Schrager v. Carry, B282970. USC’s co-defendant Ainsley Carry is identified in a footnote as “USC’s vice-president for student affairs” but it is not mentioned what role she played in the events of which Schrager complained.
Schrager was initially represented on appeal by Mark M. Hathaway, Mark W. Allen, and Jenna E. Eyrich of Werksman Jackson Hathaway & Quinn; Hathaway Parker substituted in. Kenneth R. Pedroza and Matthew S. Levinson of Cole Pedroza, along with Denise Ann Nardi, acted for USC.
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