Court of Appeal:
Opinion Says Institution Was Precluded From Denying Right of Cross-Examination at Disciplinary Hearing
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal yesterday reversed an order denying a writ of administrative mandamus sought by a man who was expelled from a private law school for allegedly sending inappropriate emails from two students’ accounts to which he gained unauthorized access, holding that the institution failed to provide “fair process” by disallowing cross-examination of witnesses at a disciplinary hearing, in violation of its own rules.
While providing “due process” is a duty constitutionally imposed on governmental entities, recent cases have recognized a mandate, stemming from common law precepts, that private institutions provide fair procedures in disciplinary matters. Div. Four of this district’s Court of Appeal said in its Jan 4, 2019 opinion by Justice Thomas L. Willhite Jr. in Doe v. Allee:
“For practical purposes, common law requirements for a fair disciplinary hearing at a private university mirror the due process protections at public universities.”
Acting Presiding Justice Cynthia Aaron authored yesterday’s opinion reversing a writ denial by San Diego Superior Court Judge Randa Trapp in in by expelled student Christopher Teacher against California Western School of Law (“CWSL”). She wrote:
“The contours of the common law right to ‘fair process’…in private university student disciplinary settings is both unsettled and evolving….However, one component of the right to fair process is well established, commonsensical, and undisputed: ‘Where student discipline is at issue, [a] university must comply with its own policies and procedures.’…
“CWSL violated this principle in expelling Teacher. CWSL’s disciplinary procedures expressly provide, ‘The student or the student’s spokesperson shall have the right to cross [-] examine witnesses.’ Notwithstanding this provision, CWSL did not afford Teacher the opportunity to cross-examine any of the witnesses on whose statements CWSL relied in reaching its decision to expel Teacher. In light of the fact that CWSL entirely deprived Teacher of this important right guaranteed by its own procedures, we reverse the judgment, emphasizing that we do not reach any conclusion as to Teacher’s commission of the misconduct that CWSL alleges.”
Aaron pointed out in a footnote that the California Supreme is considering the breadth of “fair process” in the case of Boermeester v. Carry.
CWSL contended—and Trapp agreed—that there were no witnesses to cross-examine. The judge said:
“[I]it appears that in this case there were no witnesses as the charges were founded upon computer records, e-mails, [Teacher’s] classes and circle of professors and acquaintances. While the security guard could have testified and [Teacher] theoretically could have cross-examined her regarding her verification that [Teacher] was present at the time of one of the unauthorized uses…, the determination against him was made upon the computer records placing him in the area.”
The law school’s stance was that the right of cross-examination existed only as to such witnesses at it chose to call, and it called none.
Aaron said that while no witnesses provided live testimony, their statements to investigators were taken into account by the hearing panel. She declared:
“[W]hat CWSL may not do is purport to provide an accused student with a right to cross-examination, only to eviscerate that right by holding a hearing without calling any witnesses to provide live testimony and adjudging the accused student guilty of misconduct based in part on summaries of witness statements made to those investigating the misconduct.”
Record Is Clear
The jurist went on to say:
“[T]he administrative record unequivocally establishes both that the Panel relied on various witness statements in determining whether Teacher was responsible for the misconduct alleged and that Teacher was not afforded the opportunity to cross-examine these witnesses.
“Accordingly, we conclude that CWSL violated Teacher’s right to cross-examine witnesses, as established in the Procedures.”
The appeals court did not order Teacher’s reinstatement. Rather, it directed that the trial court, on remand, consider CWSL’s unclean-hands defense based on Teacher having allegedly provided false information on his application for admission.
The case is Teacher v. California Western School of Law, 2022 S.O.S. 1403.
Mark M. Hathaway and Jenna E. Parker of the downtown Los Angeles firm of Hathaway Parker represented Teacher. Hollis R. Peterson, Camille L. Gustafson and Jeffrey P. Michalowski of the San Diego firm of Paul, Plevin, Sullivan & Connaughton acted for CWSL.
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