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College Is Not Required To Have A Trial-Like Hearing Before Issuing A Written Reprimand To A Student
The South Orange County Community College District received a complaint from a female student-worker, N.R., regarding a male student, M.K. N.R. alleged M.K. followed her around campus, tried to put his arm around her shoulder and her hand on his thigh, and invaded her personal space. Pursuant to District policy, the District informally resolved the matter at N.R.’s request with a mutual no-contact order memorialized in a letter. Days after the District issued the no-contact order, M.K. continued to follow N.R. M.K. made a written apology and stated he just wanted to “make friends.”
Less than two weeks after the resolution of the N.R. complaint, the District received notice of another complaint by a female student, M.G., who took a class with M.K. and told the instructor M.K. followed her around and took numerous photos of her in their class while putting his hands on her. M.G. told the instructor she was coming to class late so she would not encounter M.K. before class, and she considered dropping the class.
The District met with M.K. to discuss M.G.’s complaint. M.K.’s mother presented the District with a durable power of attorney for M.K. and demanded to be present at any meeting between the District and M.K. The District subsequently began an investigation into M.G.’s complaints.
While the investigation was proceeding, the District sent M.K. a letter, dated December 1, 2017, and formally apprising him of M.G.’s complaint and explaining the District would gather evidence to determine whether M.K. was responsible for the alleged misconduct.
On December 13, 2017, M.K.’s mother responded in writing to the December 1 letter and to the discussion at the meeting regarding M.G.’s complaint.
The District’s investigator interviewed M.G. on January 17, 2018, and M.K.’s mother on February 12, 2018. The mother refused to allow M.K. to participate and insisted M.K. had “perfect behavior” on campus. The investigator finalized the investigative report on March 8, 2018. The report concluded M.K. had a pattern of attempting to get too close within people’s personal space and was unable to understand why other students perceived this as threatening. The report included a recommendation the District suspend M.K. for the remainder of the 2018 spring semester.
On March 28, 2018, the District sent M.K. a letter setting out the results of the investigation. The letter included a timeline of the complaints against him. The letter also stated the District found M.K. responsible for the alleged misconduct and would suspend him for the remainder of the semester. M.K. appealed the suspension. While the hearing was pending, the District permitted M.K. to attend classes.
The District set a date and time for the disciplinary hearing. However, M.G., who was no longer a District student, refused to testify in the hearing, so the District cancelled the hearing. In a letter to M.K. dated August 2, 2018, the District informed M.K. that in lieu of suspension, the District issued a disciplinary notice stating expectations with regard to M.K.’s future conduct. This letter included a timeline of complaints against M.K. from the 2017-2018 academic year, which largely duplicated the timeline of the March 28 letter notifying M.K. of the District’s intention to suspend him. The letter also recounted M.K.’s decision to appeal his suspension and his ability to attend class pending the appeal. The letter further stated M.K. violated the District’s policies and regulations regarding harassment and discrimination. The letter closed with an invitation to M.K. to submit a written statement the District would retain in his student record along with this letter. M.K. did not respond.
Instead, M.K. petitioned for a writ of mandate on March 7, 2019. He requested the trial court set aside the District’s order or decisions and all findings and sanctions against him. The trial court granted M.K.’s petition and ordered the District “to set aside the order or decision issued against [M.K], including all findings and sanctions.” The judgment did not specify the “order,” “decision,” “findings,” or “sanctions” to be set aside. The District appealed.
M.K. based his petition on Code of Civil Procedure section 1094.5, which provides a means of “inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.” However, the Court of Appeal stated it was unclear whether M.K. was entitled to a hearing “by law” when the outcome of the District’s decision was a written reprimand.
The Court of Appeal pointed to Goss v. Lopez (1975) 419 U.S. 565, in which the United States Supreme Court addressed students’ due process rights. Goss identified two levels of due process that apply to student discipline. The first level is notice of the charges and of the evidence and an opportunity to state the student’s side of the story. The second level, which is in addition to the first level, is the formal hearing, with witnesses and cross-examination. The Court in Goss stated that the first level is required before a suspension of 10 days or less may be imposed, but the second level of due process is not required even before imposing a short suspension.
Regarding N.R.’s complaint that was informally resolved, M.K. received the level of due process appropriate: notice and an opportunity to explain his conduct. Regarding M.G.’s complaint the District formally investigated, the District provided M.K. with information regarding the complaint and more than one opportunity to respond before it issued the March 28 letter. Although the March 28 letter stated the District intended to suspend M.K., M.K. continued to attend classes, and the District allowed M.K. to appeal the suspension. Had the disciplinary hearing occurred, M.K. would have had the opportunity to question witnesses. Ultimately, the District changed the suspension to the second lowest of the District’s disciplinary procedures, a written reprimand.
The Court agreed that M.K. was entitled to the first-level due process (notice and opportunity to respond) in preparation of the investigative report, and he received this. However, the Court of Appeal did not find any published cases that held a student is entitled to second-level due process before receiving a written reprimand that M.K. claimed here. In fact, the Goss opinion generally cautioned against providing second-level due process for less severe discipline it when it stated, “To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness.” Accordingly, the Court of Appeal held that the second level of due process is mandatory only before a district imposes a penalty of suspension upon an objecting student, not before a district informs a student that it is considering suspension, as M.K. argued here.
M.K. also argued he had no opportunity to contest the written reprimand the District placed in his file without due process. The written reprimand represented the culmination of all the events that had taken place since the previous October. The District thoroughly discussed all the circumstances leading up to the written reprimand with M.K. and his mother over the intervening months. M.K. received first-level due process well in advance of the written reprimand. There was no requirement to have further discussions regarding events the parties had already thoroughly discussed. M.K. also declined to exercise his rights under Education Code Section 76233 by providing the District a written statement or response concerning the written reprimand as invited in the written reprimand. Although the written reprimand will stay in M.K.’s student record, the Court did not find this to be unfair considering his behavior and the District’s policies and regulations.
Therefore, the Court of Appeal reversed the judgment of the trial court and ruled in favor of the District.
Knight v. S. Orange Cmty. Coll. Dist. (2021) __ Cal.App.5th __ [2021 WL 486518].