Private University Violated Student’s Right To Fair Process Where Student Was Not Allowed To Cross Examine Witnesses On Statements The University Relied On To Expel Student When Code Of Conduct Allowed Cross-Examination

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Apr 28, 2022

California Western School of Law (CWSL) conducted an investigation into several incidents in which explicit sexual, racist, and inappropriate emails were sent to faculty, students, and an alumnus. On February 7, 2018, CWSL’s Vice Dean of Academic Affairs, Donald Smythe, sent Christopher Teacher (Teacher), a CWSL student, a letter accusing Teacher of obtaining unauthorized access to the accounts of two CWSL students to send these inappropriate emails in violation of CWSL’s Code of Student Professional Conduct. The letter also stated Teacher printed various documents to CWSL computers from one of the students’ account. Dean Smythe informed Teacher that a formal Professional Responsibility Committee hearing would be held to consider the allegation in accordance with CWSL’s student conduct code regulations. Under CWSL’s procedures, the accused student or the student’s representative has the right to cross-examine witnesses at the formal hearing.

On February 12, 2018, a panel of the Professional Responsibility Committee (Panel) held a hearing to consider the matter. There was no verbatim transcript of the hearing, and the administrative record contains notes summarizing the hearing. The notes indicated the hearing consisted of a discussion among the Panel members, Teacher, and Dean Beshant about the documents contained in the administrative record. The record contained emails and other documentary evidence pertaining to CWSL’s investigation. Teacher also submitted a post-hearing response to the matters discussed and emailed evidence presented at the hearing.

In late February 2018, the Panel issued its report. In the report, the Panel found there was sufficient evidence to conclude that Teacher was responsible for accessing the email accounts of the two students without their authorization and used those accounts to send offensive and inappropriate emails and to print a number of documents. The Panel recommended expulsion given the serious nature of Teacher’s violations of the student conduct code.

After the Panel issued the Report, CWSL expelled Teacher from the law school. Teacher filed a writ of administrative mandate and alleged that CWSL did not provide Teacher with a fair hearing for several reasons, including that CWSL failed to afford Teacher the opportunity to cross-examine witnesses. The trial court denied Teacher’s request for writ relief, holding that CWLS followed its policies and procedures. The trial court also noted that a CWSL security guard could have testified about Teacher’s whereabouts at the time of one of the unauthorized uses, and Teacher could have had an opportunity to cross-examine. Teacher appealed.

The Court of Appeal first addressed CWLS’s arguments that Teacher failed to object to the lack of cross-examination at the administrative hearing and therefore, forfeited this claim on appeal and that Teacher’s right to cross-examine witnesses was not violated because there were no witnesses at the hearing to cross-examine. The Court of Appeal rejected CWLS’s arguments and held that Teacher did not forfeit his claim because any request for Teacher to assert his right to cross-examine would have been futile under CWLS’s own interpretation of its procedures.

The Court of Appeal also found that even assuming Teacher forfeited his right to cross-examine witnesses, CWSL affirmatively discouraged Teacher (who represented himself throughout the proceedings) from presenting witnesses and seeking to cross-examine witnesses. Dean Smythe sent Teacher a letter before the hearing informing him that the hearing would “not be a trial and it will not be similar to a trial” and that CWSL did not “anticipated that there will be any witnesses or other persons who will be present to provide additional information.” Additionally, at the beginning of the hearing, Dean Bashant stated that “no courtroom procedures apply” and “questions can be answered by the committee or by [Teacher].”

The Court of Appeal then considered Teacher’s argument on the merits. The Court of Appeal held that CWLS procedures generally grant an accused student the right to cross-examine any person who makes a statement to those investigating the alleged misconduct on which the panel relies in reaching its determination. The Court of Appeal rejected CWSL’s argument that its procedures only provide the right to cross-examine witnesses who CWLS calls to provide live testimony at a panel hearing. The Court of Appeal found CWSL procedures contain no language limiting the witnesses who the student has the right to cross-examine. Additionally, the term “witness” is not limited to persons who provide live testimony. Therefore, CWSL’s interpretation of its procedures would undermine the very right to cross-examine CWLS adopted in its procedures, and CWSL provided no other evidence that supported its interpretation of its procedures. Rather, its interpretation would circumvent an accused student’s right to cross-examination witnesses.

The Court of Appeal also held that CWSL violated Teacher’s right to cross-examination. The Panel expressly relied on witness statements made to CWSL administrators during the investigation. Additionally, the administrative record includes numerous documents that contain witness statements or summaries related to the alleged misconduct.

Finally, the Court of Appeal held that CWSL denied Teacher a fair process in expelling Teacher.  While private colleges have wide discretion to determine how it conducts disciplinary hearings, CWSL violated Teacher’s right to a fair process leading to Teacher’s expulsion because it failed to comply with its own procedures that allowed for cross-examination of witnesses.

The Court ordered the trial court to ensure that CWLS holds a new hearing and that the Panel permit Teacher to cross-examine any witnesses who the Panel relies on to determine whether Teacher was responsible for the misconduct.

Teacher v. California Western Sch. of Law (2022) 77 Cal.App.5th 11.


Private K-12 schools, colleges, and universities in California must provide a fair process (i.e., fundamental fairness) to students who are accused of misconduct and facing disciplinary action.  This case highlights the necessity to closely follow internal procedures and avoid statements that circumvent a student’s fair process rights as outlined in internal procedures.

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