Fraternity Members Were Not Entitled to Cross Examine Witnesses in Disciplinary Hearing

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Jul 08, 2024

In early 2019, UC Riverside’s Student Conduct and Academic Integrity Programs office (SCAIP) received a report expressing concern about the health of a member of the Phi Gamma Delta fraternity (PGD) pledge class. SCAIP conducted a welfare check for the student and then began an investigation into the PGD pledge process. Joseph Nofal was PGD’s UC Riverside chapter president and Chad Ayach was the “disciplinarian” for the chapter’s pledge campaign.

The investigator interviewed most of the PGD’s 2018 and 2019 pledges. Pledges told the investigator that: (1) As part of the pledge process, pledges were forced to complete workouts as “punishments”; (2) at least one such workout took place outdoors at night for several hours; (3) PGD members would take away “pledge pins” and pledges would engage in a mock kidnapping to retrieve the pins, which in one instance led to a pledge tasing a member; (4) PGD had a “check” system requiring pledges to complete household chores for members to work off their “checks”; (5) PGD would question pledges in an “intense” setting; (6) PGD required pledges to wear “feminine” clothing to a party; and (7) PGD performed a “date auction” where pledges were “sold” to bidders.

In April 2019, SCAIP sent notices to Nofal and Ayach, directing them to appear for an administrative review meeting. The notices informed them that many of the PGD pledge process activities appeared to meet UC Riverside’s definition of hazing. The notices also identified the student conduct policies that the pledge process may have violated. During their interviews, Nofal and Ayach eventually admitted that many of the alleged activities had taken place.

In June 2019, SCAIP sent Nofal and Ayach notices informing them that SCAIP had referred their cases to the student conduct committee for a hearing. In these and subsequent notices, the University provided additional details about the investigation and about information witnesses had provided.

Nofal had a hearing on September 10, 2019. Ayach had a hearing before the student conduct committee on October 3, 2019. In both hearings, the committee explained the charges and the SCAIP investigator presented the results of her investigation and provided a “master packet” containing reports and notes from the investigation. The investigator’s presentation and master packet identified the witnesses by initials. Nothing in the record indicated that the Nofal or Ayach attempted to call witnesses during the hearing. Nofal and Ayach did not contest that the events took place. Rather, they argued that they were not responsible for the events or that the activities did not constitute hazing.

On November 6, 2019, the committee issued its decisions. The committee found that both Nofal and Ayach had violated student conduct policies, and it expelled the students. Both students appealed to the vice-chancellor, who denied their appeals and upheld the committee’s decision.

On May 5, 2021, Nofal and Ayach filed a petition for writ of mandate challenging their expulsion. They argued that UC Riverside should not have redacted witness names and should have let them cross-examine witnesses. The trial court denied the petition and Ayach and Nofal appealed.

On appeal, Ayach and Nofal argued that UC Riverside deprived them of a fair administrative hearing prior to expelling them, because: (1) the identities of adverse witnesses were secret, depriving them of the opportunity to investigate the allegations, (2) the unidentified witnesses did not appear at the hearings, depriving them of the opportunity to confront them or assess their credibility, and (3) the “purported victim”, the pledge whose welfare check led to the investigation, did not appear or testify, depriving them of the right of confrontation.

The court of appeal held that there is no blanket right to cross examination, confrontation, or witness identity in all student disciplinary proceedings. A student disciplinary proceeding does not require the formalities of a criminal trial. Rather, students are entitled to notice and a hearing that affords them a meaningful ability to present their defense. The court of appeal found that the cases that Nofal and Ayach cited to requiring live witness testimony, cross-examination, and identification of witnesses did not apply. Those cases dealt with sexual misconduct and assault where the case turned on the credibility of the opposing party (he-said, she-said). The court of appeal noted that UC Riverside did not allege that Nofal and Ayach engaged in sexual misconduct and the adjudication of the allegations did not depend on the credibility of adverse witnesses.

The court of appeal then assessed the fairness of Ayach’s and Nofal’s hearings. The court of appeal held that UC Riverside clearly communicated the accusations to Nofal and Ayach. Further, their statements reflected that they knew the identities of some of the witnesses and nothing in the record suggested they even attempted to call witnesses to testify.

The court of appeal held that the administrative proceedings afforded Nofal and Ayach the process they were due, given the nature of the charges and their response. The court of appeal affirmed the trial court’s denial of Nofal’s and Ayach’s writ petition and awarded costs to the UC Regents.

Ayach v. Regents of University of California (2024) 102 Cal.App.5th 331.

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