Grisham v. Notre Dame De Namur
University
Filed 9/6/13
Grisham v. Notre Dame De Namur University CA1/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
CHARLES
CURTIS GRISHAM, JR.,
Plaintiff and Appellant,
v.
NOTRE DAME
DE NAMUR UNIVERSITY,
Defendant and Respondent.
A135765
(San Mateo County
Super. Ct. No. CIV501683)
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT
The opinion filed August 13, 2013, is hereby modified as
follows:
1.
On page 4, the first two sentences of the first
full paragraph shall be modified to
read as follows:
A
meeting was held on April 30, 2007. In
attendance were plaintiff, his ombudsman appointed by the University, Dean
Rossi, and Dr. Chang.
2.
On page
4, the second full paragraph shall be modified to read as follows:
Dean Rossi advised plaintiff that
the Committee had recommended that plaintiff pursue other teaching programs at
other universities or reconsider “the teaching profession.†The conclusion of the meeting became
contentious when Dean Rossi indicated her belief in response to plaintiff’s
inquiry that he was not suited to the teaching profession, and plaintiff
replied that she was not fit to be dean of the program. Dean Rossi reported on the April 30, 2007,
interaction at a meeting of the Committee held the following day. The minutes of this meeting indicate that the
Committee determined plaintiff “violated university policies about misconduct,â€
specifically section C of the “Notre Dame de Namur University Student Handbook
& Academics Planner†(Student Handbook), “Non-Academic Misconduct,†by
verbally abusing University faculty and staff.
The Committee authorized Dean Rossi to obtain written documentation of
incidents of plaintiff’s inappropriate conduct, and send notice to him “disqualifying
him from the University†based on unprofessional behaviors.
3. On
page 15, the first sentence of the last paragraph shall be modified to read as follows:
A meeting was held
on April 30, 2007, at which plaintiff appeared and was represented by his
ombudsman appointed by the University.
4. On page 15, the third sentence of the last
paragraph shall be modified to read as follows:
The Committee subsequently authorized Dean
Rossi to send notice to plaintiff of his disqualification from the Program
based on unprofessional behavior.
5. On page 16, the second sentence of the first
full paragraph shall be modified to read as follows:
The Committee, although composed of members
of the Program faculty and administrators, rendered a deliberate decision to
dismiss plaintiff following careful consideration of his performance and
conduct.
6. On
page 16, the Harris citation
following the newly modified second sentence of the first full paragraph shall
be deleted.
Appellant’s petition for rehearing is hereby
denied.
There is no change in judgment.
Dated: _____________________ __________________________
Dondero,
Acting P. J.
Filed
8/13/13 Grisham v. Notra Dame De Mamur
University CA1/1 (unmodified version)
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
CHARLES
CURTIS GRISHAM, JR.,
Plaintiff and Appellant,
v.
NOTRE DAME DE NAMUR UNIVERSITY,
Defendant and Respondent.
A135765
(San Mateo County
Super. Ct. No. CIV501683)
Plaintiff
has taken this appeal from a judgment in favor of defendant Notre Dame de Namur
University (the University) following a trial before the court in his action
for mandamus relief for his dismissal from the University’s teaching credential
program. He claims the University failed
to adhere to its contractual obligation to follow internal procedural rules
before dismissing him, denied him procedural and substantive due process
rights, and retaliated against him for exercising his free speech rights. We conclude that the University properly
followed the procedural rules for dismissal from the “Single Subject Credential
Program†(the Program), did not deny plaintiff his procedural and substantive
due process rights, and did not act in retaliation for plaintiff’s criticism of
the Program. We therefore affirm the
judgment.
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
In
August 2006, plaintiff enrolled at the University as a graduate student in the
Program, a one-year, graduate-level course of study designed to prepare
students to obtain a single subject teaching credential. The Program is accredited by the California
Commission on Teacher Credentialing, which grants teaching credentials to
students approved by the University who have successfully completed the teacher
education program. (Ed. Code, §§
44001.1, 44227, subd. (b).) A single
subject teaching credential authorizes the holder to teach specified subject
matter courses in California high schools and most junior high schools.
The
Program is administered by the University’s school of education and
leadership. According to the
“Preliminary Single Subject Credential Program Handbook†(the Program
Handbook), which serves as a guide for student teachers, interns, and
supervisors in the Program, teacher candidates are supervised and evaluated by
master teachers and a University supervisor, who meet periodically to discuss
the progress made by the candidates.
Conferences are called to respond to any conflicts that arise between
student teachers and evaluators.
The
progress of teacher candidates is also reviewed by the “Education Committeeâ€
(the Committee), composed of “undergraduate and graduate faculty, Dean of the
School of Education and Leadership, Director and Credential Analyst,†at
meetings held twice each semester, or at any “special meeting†called “to
review all cases involving unsatisfactory progress.†Students “who are experiencing problemsâ€
receive a Committee report “identifying areas of difficulty.†The Committee participates in all decisions
related to Committee reports and evaluations of effectiveness. The Program Handbook provides that on rare
occasions the Committee may meet and recommend an additional semester of
student teaching for a candidate “to meet University expectations. Very rarely, the Committee may determine that
a teacher candidate should not continue the program. The committee’s decision is final unless
appealed within fourteen (14) calendar days.â€
Plaintiff
began his course of study in the English subject area in the Program in
September 2006. He thereafter received
high marks in classroom courses, and passed the “California Subject Examination
for Teachers.â€
During
the spring semester, 2007, plaintiff was given a student teaching assignment in
a seventh grade class at the Hillview Middle School (Hillview) in Menlo
Park. He was reviewed and evaluated by a
master teacher at Hillview and his University supervisor, Dr. Peter Dalton. He received a very positive evaluation from
the master teacher in February 2007, but in March 2007, Dr. Dalton commented
that plaintiff “needed to follow the master teacher’s rules of conduct.†In April 2007, plaintiff intervened when he
witnessed a faculty member at Hillview chastise a misbehaving middle school
student. Plaintiff asserted that the
discipline was an inappropriate threat of violence, but Dr. Dalton advised him
not to report the incident. Plaintiff
felt compelled to report the perceived faculty abuse as a “mandated reporter,â€
and did so to the school counselor Debbie Devoto.
By
April 2007, plaintiff no longer had the support of his master teacher at
Hillview, and Dr. Dalton facilitated a transfer to the Cunha Middle School in
Half Moon Bay. At Cunha, according to
the principal and Dr. Dalton, plaintiff received positive evaluations of his
lesson plans, instructional presentation, and rapport with students, but
displayed deficiencies with classroom management skills, professional behavior,
and interactions with staff.
Dr.
Dalton suggested that plaintiff develop rules for respectful classroom
behavior, and advised him that he would be given an “In Progress†grade until
the completion of the school year and further observations by his supervisor—as
required by state regulations. Plaintiff
responded by complaining to Dr. Joanne Rossi, dean of the school of education
and leadership, that the evaluation standards were unfair, the University was
“woefully out of compliance with the State requirements,†operated a “shoddy program,â€
and did “actual harm to future teachers.â€
At a meeting of the Committee on April 16, 2007, concerns were stated
with plaintiff’s student teaching performance, his unprofessional attitude, and
his ability to meet expectations as a professional. Apprehension about his ultimate success in
the program was also expressed, although no action was taken.
On
April 24, 2007, Dr. Dalton attempted to discuss with plaintiff his shortcomings
related to classroom management, and methods for controlling student
behavior. Plaintiff became
“antagonistic,†and voiced displeasure with the instruction he was
receiving. The next day, the chair of
the Committee, Dean Rossi, and Dr. Lu Chang, decided that issues raised by
plaintiff’s attitude and conduct justified action by the Committee, beginning
with a meeting with plaintiff to review concerns with his ability “to be
successful in the vocation of teaching.â€
Plaintiff was advised by Dr. Chang that a meeting was necessary to discuss
his “ ‘anger management’ †issue.
Plaintiff voiced the opinion that he was the subject of retaliation and
unfair evaluation for criticism of the program, and requested instructions for
filing a grievance. Following review
sessions a few days later, Dr. Dalton praised plaintiff’s lesson plans and
teaching methods, but again noted that plaintiff had problems with classroom
organization, student disruptions, and sustaining a smooth flow of teaching to
the whole class.
A
Committee meeting was held on April 30, 2007.
In attendance were plaintiff, his ombudsman appointed by the University,
Dean Rossi, the Program directors, the credential analyst, and members of the
faculty of other subject areas within the Program. Plaintiff was told that while his academic
work was good quality, and his performance “with small groups†in the classroom
was satisfactory, his success in the Program was threatened by disrespectful
and “unprofessional behavior,†including: disturbing remarks about an
instructor and guest speaker in class; inappropriate intervention at school
sites; rude remarks and derogatory e-mails to faculty, his supervisor and other
University personnel; and bypassing established levels of communication.
The
Committee recommended that plaintiff pursue other teaching programs at other universities
or reconsider “the teaching profession.â€
The conclusion of the meeting became contentious when Dean Rossi
indicated her belief in response to plaintiff’s inquiry that he was not suited
to the teaching profession, and plaintiff replied that she was not fit to be
dean of the Program. The minutes of the
meeting indicate that the Committee determined plaintiff “violated university
policies about misconduct,†specifically section C of the “Notre Dame de Namur
University Student Handbook & Academics Planner†(Student Handbook),
“Non-Academic Misconduct,†by verbally abusing University faculty and
staff. The Committee authorized Dean
Rossi to obtain written documentation of incidents of plaintiff’s inappropriate
conduct, and send notice to him “disqualifying him from the University†based
on unprofessional behaviors.
In
a letter dated May 3, 2007, Dean Rossi informed plaintiff of the Committee’s
decision “that effective immediately†his student teaching assignment was
terminated, and he was “dismissed from the program effective today.†According to the letter, disqualification was
based on plaintiff’s failure “ ‘to meet professional standards required by
the specific degree, credential, or certificate program’ †as stated in
the “General Catalog,†and disrespect by infringing on the rights of others
through “ ‘inappropriate actions or communication’ †in violation of
the Student Handbook code of conduct.
Specific examples of plaintiff’s “repeated unprofessional and
disrespectful behavior towards†University faculty and staff were recited. Plaintiff was advised that he was entitled to
consult the grievance process outlined in the Student Handbook.
Plaintiff
filed a “Petition to the Graduate Academic Standards and Curriculum Committee,â€
in which he outlined violations of University policies by Dean Rossi, other
members of the Committee, and Program faculty.
On May 10, 2007, plaintiff sent a letter entitled “Notice of Student
Grievance Complaint and Appeal†to Dr. Judith Greig, University provost, in
which he appealed the decision of the Committee and gave notice of a grievance
pursuant to the procedures specified in the Student Handbook. He requested an opportunity to make a
personal appearance before the Committee, and asked for the University to
provide him with all documents or guidelines pertinent to the review
process.
Plaintiff’s
letter was treated by Provost Greig as an appeal of the determination of the
Committee. Plaintiff was granted a
personal appearance before the Committee on May 30, 2007, and advised to
provide “any other materials†he wished for consideration as part of the appeal
process. He was given copies of all
prior Committee reports and minutes, student evaluations, and other documents
considered by the Committee in arriving at the decision to dismiss him from the
Program.
The
Committee meeting on May 30, 2007, was attended by Dean Rossi, Program chair
Barbara Kammerlohr, Dr. Dalton, and other Program faculty members. The minutes of the meeting reflect that
plaintiff referred to the Committee members as a “ ‘group of
mobsters’ †controlled by Dean Rossi.
When plaintiff was asked to proceed with his presentation of
information, he accused the Program of noncompliance with state standards for
single subject credential education, admitted his criticism of the Program,
particularly his placement at Hillview as a student teacher, and disparaged the
evaluations by Dr. Dalton. He asked the
Committee to consider an e-mail from Hillview counselor Debbie Devoto, who
offered a positive assessment of his previous criticism of a faculty member at
Hillview, and requested the principal of Hillview to write a letter on his
behalf detailing the inappropriateness of his assignment there. Plaintiff engaged in considerable disparagement
of the procedure and the Committee members before the meeting was concluded and
he was excused.
Thereafter,
the Committee members noted that plaintiff’s continued contentious,
unprofessional behavior, “tirades†in response to constructive feedback, numerous
confrontations with faculty and staff, and difficulty in communication
demonstrated a lack of professionalism required by the Program. The Committee report to University Provost
Judith Greig stated that plaintiff did “not satisfy the standards†of the
Program due to his demonstrated “inadequate ability to work with people from
many diverse backgrounds and schools of thought.†Plaintiff’s appeal was denied and the
decision to disqualify plaintiff from the Program due to “a failure to meet
professional standards†was “reaffirmed.â€
Provost
Greig notified plaintiff on June 19, 2007, that his appeal had been denied
based on the Committee’s decision that he “demonstrated a failure to meet
professional standards warranting disqualification from the Program.†The provost advised plaintiff that he was not
entitled to any additional hearing under the student grievance procedure of the
Student Handbook, to challenge the final “academic evaluative decision†to
disqualify him from the University.
Following
a meeting with the president of the University, Dr. John Oblack, plaintiff’s
“academic disqualification†from the University, as reflected in his
transcript, remained unchanged. Due to
perceived offensive and threatening remarks to faculty and administrators,
plaintiff was declared “persona non grata†on the University campus and
prohibited from appearing on the premises.
On
December 20, 2010, plaintiff filed the present action for traditional and
administrative mandamus, breach of contract and declaratory relief. He requested relief in the form of an order
reinstating him in the Program, his due process right to a fair procedure prior
to dismissal from the University, an order expunging the reference to academic
disqualification from his record, lost wages and attorney fees.
Following
a trial before the court, a statement of decision was issued on April 11, 2012,
that denied plaintiff’s claims for ordinary and administrative mandamus. The court determined that ordinary mandamus
(Code Civ. Proc.,
title="">[2] § 1085),
rather than administrative mandamus (§ 1094.5), was the appropriate
statutory remedy, and in any event plaintiff failed to make the required
evidentiary showing to support relief under either statute. The court found that the procedure followed
to dismiss plaintiff was fair, complied with due process, and adhered to the
University policies. The court further
found the University’s decision to dismiss plaintiff from the Program was
supported by the evidence, was not arbitrary or capricious, and was not in
retaliation for plaintiff’s exercise of First Amendment rights. The parties stipulated that in light of the
trial court’s denial of the mandamus causes of action, plaintiff cannot prevail
on his third and fourth causes of action for breach of contract and declaratory
relief. Judgment in favor of defendant
was filed, and this appeal followed.
II. DISCUSSION
The Standard of Review
Plaintiff
urges us to undertake an independent review of the University’s decision to
dismiss him from the Program, in accordance with the standards for a petition
for writ of administrative
mandamus. He maintains that the
University’s “internal rules and regulations†detailed in the Student Handbook
required a “ ‘full adversarial hearing’ †to resolve the “charge of
academic discipline,†which was erroneously denied him by the University. He therefore claims “review by administrative
mandamus†is the appropriate remedy, and we engage in “de novo review†of his
claim that the University failed to follow its own procedures or the
requirements of due process before dismissing him from the Program.
We
observe that the present case, like some others, falls into the “statutory
cracks of writ review†provided by sections 1085 and 1094.5. (Southern California Cement
Masons Joint Apprenticeship Committee v. California Apprenticeship Council (2013) 213 Cal.App.4th
1531, 1541 (Cement Masons).) “ ‘Administrative mandamus under section
1094.5 is appropriate to inquire “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. . . .â€
[Citation.] By comparison, a writ
of mandate under [Code of Civil Procedure] section 1085 is available where the
petitioner has no plain, speedy and adequate alternative remedy; the respondent
has a clear, present and usually ministerial duty to perform; and the
petitioner has a clear, present and beneficial right to performance. [Citations.]
Where a petition challenges an agency’s failure to perform an act
required by law rather than the conduct or result of an administrative hearing,
the remedy is by ordinary mandate pursuant to Code of Civil Procedure section
1085, not by administrative mandate pursuant to section 1094.5. [Citation.]’
[Citation.]†(
465.) It is generally recognized that
traditional mandamus under section 1085 applies to “[q]uasi-legislativeâ€
decisions, defined as those involving “ ‘the formulation of a rule to be
applied to all future cases,’ †while administrative mandamus under
section 1094.5 applies to “quasi-judicial†decisions, which involve “ ‘the
actual application of such a rule to a specific set of existing
facts.’ †(Friends of the Old Trees v. Department of Forestry & Fire
Protection (1997) 52 Cal.App.4th 1383, 1389.) “Administrative mandamus is properly employed
when a hearing is required by law, even if the hearing is not held.†(Lanigan
v. City of Los Angeles (2011) 199 Cal.App.4th 1020, 1029.)
“ ‘ “In
reviewing a trial court’s judgment on a petition for writ of ordinary mandate,
the appellate court applies the substantial evidence test to the trial court’s
factual findings, but exercises its independent judgment on legal issues, such
as the interpretation of statutes.
[Citation.]†[Citation.] Thus, to the extent that the trial court’s
decision does not turn on disputed facts, we review de novo the trial court’s
interpretation of the [statutory] . . . provisions at issue. [Citations.]’
[Citation.]†(
Conservation Bd. (2012) 207 Cal.App.4th 237, 243–244.) On appeal from a writ of administrative
mandate, “this court, just as the trial court, reviews the administrative
record for ‘a prejudicial abuse of discretion.’
[Citations.] ‘Abuse of discretion
is established if the agency has not proceeded in a manner required by law or
if the determination or decision is not supported by substantial
evidence.’ [Citations.]†(Citizens
for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, 557,
fn. omitted.) Under administrative
mandamus, we exercise our independent judgment as to questions of law, and
apply the substantial evidence test to questions of fact. (Lanigan
v. City of Los Angeles, supra,199 Cal.App.4th at p. 1029;
Cal.App.4th 373, 380.)
In
the present case, a decision was made after an administrative hearing that was
far more adjudicatory than legislative in nature, placing it in the natural
domain of section 1094.5. Yet
because the Commission was not required to hold a hearing before dismissing
plaintiff, the decision does not fall within the literal language of that section,
which applies only to decisions rendered “as the result of a proceeding in
which by law a hearing is required to
be given[ and] evidence is required to be taken†(§ 1094.5, subd. (a),
italics added). As a result, it is not
readily apparent which statutory form of writ relief and review should govern
here.
We need not resolve this dilemma because the standard
of review applicable to the particular issues raised by plaintiff is not
dependent on the type of writ review employed.
(See State Bd. of Chiropractic
Examiners v. Superior Court (2009) 45 Cal.4th 963, 977 & fn. 3;
p. 1541.) We will independently
judge whether the University proceeded in a manner required by law by providing
plaintiff with the appropriate review process and substantive and procedural
due process. We will apply the
substantial evidence test to the trial court’s factual findings. (Cement
Masons, at pp. 1541–1542; Citizens
for East Shore Parks v. State Lands Com., supra, 202 Cal.App.4th at p.
557; Fat v. County of Sacramento
(2002) 97 Cal.App.4th 1270, 1277.)
name="_ftnref3" title="">[3]
Required by University Regulations
Plaintiff
claims that the University improperly and unfairly proceeded according to the
Program Handbook, which did not afford him a full and formal evidentiary
hearing. He submits that the Committee
had “no jurisdiction†to decide the allegations against him. Instead, he asserts, the University was
obligated to proceed according to the “Code of Student Conduct†spelled out in
the Student Handbook, which provided him with “18 enumerated procedural
rights,†including the right to prior written notice of the charges and
accusing witnesses, the right to present documentary evidence and witnesses to
rebut the charges, the right to a written transcript of the proceedings, and
the right to an appeal of an adverse decision before the University’s vice
president, with a review of the verbatim record of the hearing. He maintains that the University thus “violated
its own written guarantees†to him as a student in a case of alleged
“non-academic misconduct.â€
We
have no quarrel with the settled proposition advanced by plaintiff that “[t]he
basic relationship between a student and a private university . . . is
contractual in nature.†(
(1972) 25 Cal.App.3d 1, 10; see also Paulsen
v. Golden Gate University (1979) 25 Cal.3d 803, 811; Kashmiri v. Regents of University of California (2007) 156
Cal.App.4th 809, 823–824.) Whether by
analogy to the law of associations, on the basis of a supposed contract between
university and student, or simply as a matter of essential fairness in the
somewhat one-sided relationship between the institution and the individual,
“when a university has adopted a rule or guideline establishing the procedure
to be followed in relation to suspension or expulsion that procedure must be
substantially observed.†(
49 N.Y.2d 652, 660; see also Clayton
v. Trustees of Princeton University (D.N.J. 1981) 519 F.Supp. 802, 804;
(Iowa Ct.App. 1984) 363 N.W.2d 443, 445.)
The University was bound by existing internal policies and procedures
stated in the University’s handbooks or other guidelines. (Pomona
College v. Superior Court (1996) 45 Cal.App.4th 1716, 1727–1728.) Moreover, “Mandamus is available if a hearing
is required by statute, an organization’s internal rules and regulations, or
due process.†(Id. at p. 1727, fn. 10.)
The
critical inquiry here is which procedures the University was contractually
required to follow. Defendant submits
that the procedures outlined in the Student Handbook govern his dismissal. The “Code of Student Conduct†section in the
Student Handbook, specifies the code of conduct expected of students, and
provides that a “student’s inappropriate conduct†violates the code “whenever
it is detrimental to the security, personal safety and/or employee and student
welfare.†Two forms of prohibited
misconduct are described in the Student Handbook. “Academic Misconduct†includes plagiarism,
cheating, fabrication of information, misuse of computer software, unauthorized
use, forgery or duplication of a document, grade tampering, and the like, none
of which are at all pertinent to plaintiff’s case. Under the heading “Non-Academic Misconduct,â€
the Student Handbook refers to abuse of alcohol or drugs, harassment, bullying,
assault or hazing, disrespect through infringing on the rights of others or
failure to comply with a lawful request by University staff, misconduct through
vandalism or other actions related to University property, discrimination,
commission of lewd or disruptive acts, and other specific behavior that
discredited the University.
The
Student Handbook states that disciplinary proceedings may be instituted against
any student who violates criminal law or the code of conduct. A charge of violation of the code of conduct
may be initiated in writing by any member of the University community. The University “Student Conduct Board†(the
Board), consisting of one administrator, two faculty members, and two appointed
students, hears and resolves cases of alleged violations of the code. For nonacademic misconduct cases, the student
must be notified three days in advance of any formal meeting or hearing on the
allegation, provided with documents and witnesses in support of the
accusations, accompanied by a nonattorney advisor at the hearing, and must be
granted the right to present evidence or testimony. A single verbatim record of the hearing must
be created and maintained. All decisions
are by a majority of the Board present at the hearing. The criterion for the decision of the Board
is “whether it is more likely or not that the Responding Student violated the
Code of Conduct.†The student must
receive a written decision within seven days of the hearing, which includes a
statement of the charges, a summary of the information presented at the
hearing, the sanctions imposed, and the right to appeal.
The
decision of the Board may be appealed, within 20 days of receipt, to the “Vice
President for Campus Life†(vice president).
The vice president reviews the verbatim transcript of the evidentiary
hearing to determine whether the hearing was conducted fairly, whether the
decision was based on “substantial information,†whether the sanctions imposed
were appropriate, or whether new information is sufficient to alter the
decision. The vice president has
authority to conduct an investigation, and must render a decision within seven
days. The decision of the vice president
is final, except in cases of expulsion, which may be further and finally
appealed to the president.
Plaintiff
was not subjected to discipline for acts that purportedly violated the code of
student conduct articulated in the Student Handbook. No charge was filed against him for academic
or nonacademic misconduct pursuant to the Student Handbook. Plaintiff’s conduct as a student was not at
issue. Instead, the discipline was
initiated in accordance with the Program Handbook by plaintiff’s master
teachers and University supervisors at a meeting of the Committee, where concerns were
expressed about his student teaching performance, his unprofessional attitude,
and his prospects for ultimate success in the Program. While references were made during the course
of the disciplinary process to plaintiff’s violation of University nonacademic
misconduct policies in the Student Handbook, his disrespectful behavior towards
University and staff, and the grievance process outlined in the Student
Handbook, the substance of the proceeding was not based on academic or
nonacademic misconduct as delineated
in the Student
Handbook.
Plaintiff’s
dismissal was academic rather than disciplinary in nature, resting as it did on
the academic judgment of school officials that he did not exhibit the necessary
conduct and personal attributes to become a successful teaching candidate. (Board
of Curators of University of Missouri v. Horowitz (1978) 435 U.S. 78, 89–90
(Horowitz); Fenje v. Feld (7th Cir. 2005) 398 F.3d 620, 624–625.) The entire focus of the University’s action
against plaintiff was upon performance that brought into question his ability
to meet the professional standards of the Program. For academic dismissal actions within the
Program, the University was not required to follow the distinct and unrelated
Student Handbook procedures for disciplinary misconduct. The Student Handbook specifically provides
that the grievance procedure stated therein “is not the appropriate procedure
to follow when a student wants to appeal regarding an evaluation of academic
performance.â€
The
misconduct charged against plaintiff was also not of a nature that was
appropriate for evaluation by the Board, which consists of an administrator,
faculty members and students, none of whom possess the experience or expertise
in the teaching field to properly assess plaintiff’s progress in the Program
and prospects as a successful teaching candidate. The appropriate forum for consideration of
the accusations against plaintiff was the Committee, whose members were
equipped to conduct the expert evaluation and judgment of educators. (Horowitz,
supra, 435 U.S. 78, 89–90.) We
conclude that under the circumstances presented the University complied with
its internal procedural rules and guidelines in the Program Handbook for the
disciplinary action that resulted in plaintiff’s expulsion from the Program.
We
turn to plaintiff’s contention that he was denied procedural due process and
basic fairness by the University’s disciplinary action. He complains that the Committee was not an
impartial, fair tribunal, but rather was comprised in part of “the very faculty
and administrators†who raised the allegations of his unprofessional conduct
and failure to meet professional standards.
He submits that the Committee combined “the roles of accuser and
tribunal,†which denied him “any semblance of fair procedure.†He also complains of the Committee’s failure
to give him adequate notice of the proceedings, the right to call “his own
witnesses,†or a fair appeal before an independent body. In total, plaintiff argues that his
“common-law right to fair procedure†was denied.
Due
process is a flexible concept that calls for such procedural protections as the
particular situation demands. (
930; Morrissey v. Brewer (1972) 408
U.S. 471, 481; Civil Service Assn. v.
City and County of San Francisco (1978) 22 Cal.3d 552, 561.) “A determination whether administrative
procedures ‘are constitutionally sufficient requires analysis of the
governmental and private interests that are affected. [Citations.]’
[Citation.]†(
Cal.App.4th 1264, 1279.)
The
United States Supreme Court in Goss v.
Lopez (1975) 419 U.S. 565, 581, “held that due process requires, in
connection with the suspension of a student from public school for disciplinary
reasons, ‘that the student be given oral or written notice of the charges
against him and, if he denies them, an explanation of the evidence the
authorities have and an opportunity to present his side of the
story.’ †(Horowitz, supra, 435 U.S.
78, 85.) “The need for flexibility is
well illustrated by the significant difference between the failure of a student
to meet academic standards and the violation by a student of valid rules of
conduct. This difference calls for far
less stringent procedural requirements in the case of an academic
dismissal.†(Id. at p. 86, fn. omitted.)
“Academic evaluations of a student, in contrast to disciplinary
determinations, bear little resemblance to the judicial and administrative
factfinding proceedings to which we have traditionally attached a full-hearing
requirement.†(Id. at p. 89.)
Where,
as here, dismissal is based on academic deficiencies rather than disciplinary
reasons, “Procedural due process does not require a university to provide a
student a formal hearing but is satisfied if the university informs the student
of its dissatisfaction with the student’s academic performance, it informs the
student of the consequences of deficient performance, and a decision regarding
the student’s academic progress is careful and deliberate. [Citation.]
When reviewing an academic decision for substantive due process, courts
should show ‘great respect for the faculty’s professional judgment’ and may not
override a faculty’s academic decision unless it is ‘such a substantial
departure from accepted academic norms as to demonstrate that the person or
committee responsible did not actually exercise professional judgment.’ [Citation.]â€
(Lachtman v. Regents of University
of California (2007) 158 Cal.App.4th 187, 192 (Lachtman).) “The United
States Supreme Court has established a student is not entitled to a formal
hearing.†(Id. at p. 201.) “Thus, under
Horowitz, a university satisfies the
demands of procedural due process if it informs the student of its
dissatisfaction with the student’s academic performance, it informs the student
of the consequences of deficient performance, and a decision regarding the
student’s academic progress is careful and deliberate.†(Ibid.)
Plaintiff
was fully and repeatedly informed of the concerns of his master teachers
and supervisors with his academic performance.
The Committee then met to evaluate plaintiff’s progress, and advised him
of his perceived professional deficiencies.
Dr. Dalton subsequently again discussed plaintiff’s shortcomings related
to classroom management and methods for controlling student behavior, followed
by the Committee’s meeting with plaintiff to review concerns with his ability
“ ‘to be successful in the vocation of teaching.’ †Soon thereafter Dr. Dalton repeated his
concerns with plaintiff’s classroom organization, student disruptions, and the
flow of plaintiff’s classes.
The
Committee meeting was held on April 30, 2007, at which plaintiff appeared and
was represented by his ombudsman appointed by the University. Plaintiff was told that his behavior was disrespectful
and unprofessional, and he was not suited to continue as a teaching candidate
in the Program. At the conclusion of the
meeting the Committee authorized Dean Rossi to send notice to plaintiff of his
disqualification from the Program based on unprofessional behavior. Plaintiff was then afforded an appeal hearing
at which he was offered the opportunity to present the Committee with new
information that reflected on the case.
He was given copies of all prior Committee reports and minutes, student
evaluations, and other documents considered by the Committee in arriving at the
decision to dismiss him from the Program.
At the appeal hearing, plaintiff offered little in the way of evidence,
although the Committee did consider a supportive e-mail from Hillview counselor
Debbie Devoto. Plaintiff’s presentation
consisted almost exclusively of criticism of the Committee and the
Program. Finally, plaintiff met with the
University president, who declined after consideration of the case to change
plaintiff’s “academic disqualification.â€
We
realize that plaintiff suffered a harsh sanction through disqualification from
the Program, but the record demonstrates to us that he was given adequate prior
notice of faculty
dissatisfaction with his performance and of the possibility of dismissal. The Committee, although composed of members
of the Program faculty and administrators, rendered a deliberate decision to
dismiss plaintiff following careful consideration of his performance and
conduct, and after granting plaintiff the opportunity to respond to the
accusations against him. (
F.2d 419, 422.) We find no suggestion in
the record that the Committee was biased to a degree that precluded an
objective, reasoned decision. We conclude
that plaintiff received adequate procedural due process. (Lachtman,
supra,158 Cal.App.4th at p. 201.)
Plaintiff
also complains that he was denied substantive due process. He claims the administrative record fails to
provide “a fair basis for concluding that the charges†against him were “true
or accurate.†Plaintiff challenges the
trial court’s “uncritical reliance†on the administrative record “manufacturedâ€
by the Committee to support the decision to dismiss him from the Program, and
claims the Committee’s decision was “arbitrary, capricious and entirely lacking
in evidentiary support.â€
“The
guarantee of due process of law includes a substantive component†which
prohibits infringement on certain “fundamental†interests. (Washington
v. Glucksberg (1997) 521 U.S. 702, 721; Reno
v. Flores (1993) 507 U.S. 292, 301–302; Coshow
v. City of Escondido (2005) 132 Cal.App.4th 687, 708.) We recognize that plaintiff had a protectable property right in continued
enrollment in the Program. (
(1985) 474 U.S. 214, 223 (Ewing).) However, “In deciding whether a student’s
substantive due process rights have been violated, we start with the ‘widely
accepted rule of judicial nonintervention into the academic affairs of
schools.’ [Citation.] ‘ “University faculties must have the
widest range of discretion in making judgments as to the academic performance
of students and their entitlement to promotion or graduation.†’ [Citation.]
Judicial review of a university’s academic decision is a ‘narrow avenue’
restrained by ‘[c]onsiderations of profound importance.’ [Citation.]â€
(Lachtman, supra, 158
Cal.App.4th at pp. 203–204.)
A
limited exception to nonintervention is recognized where the university has
acted “arbitrarily or in bad faith.†(
25 Cal.3d at p. 809; see also Shuffer v.
Board of Trustees (1977) 67 Cal.App.3d 208, 219–220; Wong v. Regents of University of California (1971) 15 Cal.App.3d
823, 830–832.) “We may only overturn the
university’s decision if we find it to be arbitrary and capricious, not based
upon academic criteria, and the result of irrelevant or discriminatory factors. [Citations.]
We must uphold the university’s decision ‘unless it is such a
substantial departure from accepted academic norms as to demonstrate that the
person or committee responsible did not actually exercise professional
judgment.’ [Citation.]†(Banks
v. Dominican College (1995) 35 Cal.App.4th 1545, 1551 (Banks).)
The
evidence before us supports the trial court’s determination that plaintiff’s
dismissal did not violate his substantive due process rights. His performance in the clinical teaching
program raised doubts on the part of both his master teacher and faculty
supervisor about his suitability as a teaching candidate. When plaintiff was given recommendations to
develop his teaching skills, he responded with anger and accusations rather
than efforts to improve his classroom management skills, professional
behavior, and interactions with staff.
Instead, plaintiff continued to exhibit disrespectful and unprofessional
behavior. As a result, the members of the
Committee uniformly concluded after what appears to be conscientious reflection
that he lacked the skills and demeanor necessary to remain in the teaching
Program. As we read the record, the
decision was based on academic
criteria and professional judgment, not arbitrary, capricious or discriminatory
factors. (Ewing, supra, 474 U.S. at pp. 223–225; Paulsen v. Golden Gate University, supra, 25 Cal.3d at pp. 809,
811; Banks, supra, 35 Cal.App.4th at
p. 1553.) No denial of plaintiff’s
substantive due process rights occurred.
Plaintiff’s
final contention is that he was improperly dismissed in retaliation for
exercising his “free speech†rights to criticize the Program. He argues that the University “violated the
law and its own rules†by retaliating against him for “exercising rights of
free speech.†Plaintiff’s argument
relies on the “freedom of speech†guarantees in the United States and
California Constitutions, along with Education Code section 94367,
subdivision (a), which
provides: “No private postsecondary
educational institution shall make or enforce a rule subjecting a student to
disciplinary sanctions solely on the basis of conduct that is speech or other
communication that, when engaged in outside the campus or facility of a private
postsecondary institution, is protected from governmental restriction by the
First Amendment to the United States Constitution or Section 2 of Article I of
the California Constitution.â€
A
person’s free speech rights under the federal and state Constitutions are not
infringed unless there is state action.
(Lloyd Corp. v. Tanner (1972)
407 U.S. 551, 567; Golden Gateway Center
v. Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 1023.) Accordingly, a private school is not subject
to constitutional scrutiny for infringing free speech rights unless the
school’s action “can fairly be seen as state action.†(Rendell-Baker
v. Kohn (1982) 457 U.S. 830, 838; Caviness
v. Horizon Community Learning Center (9th Cir. 2010) 590 F.3d 806,
814–816.) “ ‘Education Code section
94367 et seq., prohibits private universities from disciplining students for
First Amendment [and article I, section 2 of the California Constitution] if
made off campus.’ [Citation.]†(Yu v.
University of La Verne (2011) 196 Cal.App.4th 779, 788–789, italics
added by Yu.) “[I]t creates statutory free speech rights for students of private postsecondary
educational institutions.†(
“A
claim for retaliation for engaging in protected speech under the First
Amendment requires proof that (1) the person was subjected to an adverse
action; (2) the person had engaged in speech that was constitutionally
protected because it touched on a matter of public concern; and (3) the
protected speech was a substantial motivating factor for the adverse
action.†(Lachtman, supra, 158 Cal.App.4th at p. 214.) While plaintiff exercised his right to
criticize the Program, his dismissal was not in retaliation for the
criticism. The evidence demonstrates that
the Committee reached the decision to dismiss plaintiff on the basis of his unprofessional
behavior that reflected adversely on his ability to successfully complete the
Program, not because he reported his perception of inappropriate discipline or
disparaged the University. His dismissal
was unrelated to protected activity.
Plaintiff did not establish a retaliatory dismissal.
DISPOSITION
Accordingly,
the judgment is affirmed.
__________________________________
Dondero,
Acting P. J.
We
concur:
__________________________________
Banke,
J.
__________________________________
Sepulveda,
J.*
*
Retired Associate Justice of the Court of Appeal, First Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
Dondero, Acting P. J., Banke, J, and Sepulveda, J.* Retired Associate Justice
of the Court of Appeal, First Appellate District, Division Four, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
name="_ftn2" title="">[2] All further statutory references are to the
Code of Civil Procedure, unless otherwise indicated.
