John Doe v. University of Southern California

The superior court granted former University of Southern

California student John Doe’s petition for writ of administrative

mandamus and ordered USC’s Office of Student Judicial Affairs

and Community Standards (SJACS) to vacate its decision to

discipline Doe for violating the university’s academic integrity

standards. On appeal USC1

contends the superior court erred in

concluding there was insufficient evidence to support the

SJACS’s finding that Doe and a second student had cheated on

the final examination in Biology 220. In response Doe asserts,

even if the administrative record contains substantial evidence of

his academic dishonesty, the superior court’s judgment should be

affirmed because USC’s internal discipline and review procedures

as applied in this case lacked fundamental fairness and did not

comply with the university’s own rules, an argument the superior

court rejected.

Although reasonable factfinders could disagree, substantial

evidence supports USC’s decision that Doe cheated, a

determination reached after a fair, albeit less than perfect,

process. Accordingly, we reverse the judgment and remand with

directions to the superior court to deny the petition for writ of

administrative mandamus.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Allegations of Cheating

On May 27, 2015 the professors and the laboratory

manager for USC’s course BISC 220, General Biology: Cell



1 Dr. Ainsley Carry, sued in his then-official capacity as

USC’s Vice Provost for Student Affairs, is also an appellant. No

issue raised in the appeal is specific to Dr. Carry. For simplicity,

the opinion refers only to USC.

3

Biology and Physiology, after speaking with Doe about their

concerns, submitted a report of academic integrity violation to

SJACS. The report stated the professors believed Doe and a

second student (identified in the case as Student B) had shared

answers on the final examination through written notes on their

examination booklets and recommended a grade sanction of “F”

for the course.

According to the report, the belief that cheating had

occurred was based on the following facts: Doe and Student B sat

next to each other and had the same version of the multiple

choice examination although two versions with shuffled questions

were usually distributed in a manner intended to ensure that

adjacent students would receive different versions.2

Doe’s and

Student B’s Scantron® answer sheets had identical answers for

46 of the 50 questions, the greatest number of identical answers

of all 8,002 pairs of students who took the same version of the

examination.3

Both Doe and Student B wrote proposed answers

in large letters in the left margin of the examination booklets

that would have been visible to the student seated next to each of

them; Student B had written proposed answers for all 50



2

The report stated Doe and Student B could have been given

the same version of the examination because the teaching

assistants distributed them from both sides of the row, “which is

not our usual procedure,” but that “the exams could also have

been intentionally swapped during the test distribution.”

3

The anomalous pairing data were initially identified by a

software program.

4

questions; Doe for 33 questions.4

Comparison of the proposed

answers to the students’ Scantron® answers indicated a pattern

of sharing answers: On all but one question where Doe wrote a

proposed answer in the margin, Student B filled in the Scantron®

with that answer.5

Only two of Doe’s answers on his Scantron®

sheet differed from Student B’s proposed answers for those

questions for which Doe did not write a proposed answer in the

margin. Student B outperformed his historical average (a “C”) by

answering 40 of the questions correctly; Doe maintained his

performance level, answering 42 questions correctly.

A course professor and the laboratory manager spoke to

Doe and Student B separately about their concerns. Both

students denied any wrongdoing, and each stated he always

writes answers in the margins of multiple choice examinations

before filling in the Scantron® sheet to facilitate checking

answers before completing the test.

2. USC’s Disciplinary Process and the Finding of Academic

Dishonesty

a. The summary administrative review

Based on the faculty report, Doe was advised he was

accused of violating the university’s Student Conduct Code

sections 11.13.A, which prohibits external assistance during an



4

Subsequent review of the examination papers showed that

Student B wrote proposed answers for 47 of the 50 questions

although he indicated answers to two additional questions with

circles on the examination, rather than letters in the margin; Doe

wrote proposed answers for 34 questions, not 33.

5

In fact, two of Student B’s answers on his Scantron® were

different from those proposed answers. The faculty’s initial

analysis transposed the proposed answers to Question 38.

5

examination, including copying or attempting to copy material

from another student and allowing another student to copy from

an examination or assignment; 11.15.A, which prohibits

attempting to benefit from the work of another; and 11.21, which

prohibits any act that gains or is intended to gain an unfair

academic advantage by an act of academic dishonesty. Doe was

provided with a summary of the student conduct review process

and referred to the portion of the student handbook that

described that process in detail. He was asked to schedule a

meeting with the SJACS review officer assigned to the case.6

Upon receiving notice of the charges of academic

dishonesty, Doe requested a copy of the faculty report that had

been submitted to SJACS. Several days later Doe was provided a

copy of the report itself, but not copies of the examination

booklets with handwritten letters in the margins, the Scantron®

answer sheets or the chart showing the faculty’s comparison of

answers. The review officer advised Doe he was allowed access

to, but not copies of, the examination documents.

Doe met with the review officer on July 1, 2015 and

described what had happened from his perspective. He insisted

he had not cheated and had no motive to cheat based on his past

performance in the Biology 220 course and his excellent overall

academic standing at USC. As he had when contacted by the

professor who prepared the initial report, Doe explained he wrote

proposed answers for questions he wanted to check—one letter if

he wanted to double check his answer; two letters if he was

unsure of the answer; nothing in the margin if he was sure of the



6

The initial step in USC’s disciplinary process is identified

as a summary administrative review.

6

answer. Doe said he did not know how he came to have the same

version of the examination as Student B. Doe accused Student B

of cheating, suggesting he had copied from Doe’s papers. Doe

acknowledged he knew Student B, but said the two had not

studied together for the examination.

The SJACS review officer told Doe, based on the current

information in the case, he would find by a preponderance of the

evidence that Doe had engaged in the charged academic

violations. The review officer, however, intended to meet with

Student B before reaching a final decision.

The review officer met with Student B several days later.

According to the report ultimately prepared by the review officer,

Student B disputed Doe’s statement that the two had not studied

together for the examination, recalling that they had done so on

one or two occasions and had also communicated about the

upcoming examination via text message and had viewed and

discussed recorded course lectures together.

On July 15, 2015 Doe was notified that a suspension was

being considered as a sanction because this was his second

academic integrity violation7

and was told he could have an

attorney represent him in any further proceedings in the matter.

On July 21, 2015 Doe, accompanied by his mother as his adviser,

reviewed his own examination. Doe sent an email later that day

asking that he be allowed to review both examinations and the

Scantron® answer sheets. Approximately three weeks later, Doe,



7 During the fall 2014 semester Doe had received a zero on a

chemistry assignment after he submitted a lab report that used

another student’s data and calculations. After initially denying

the misconduct, Doe eventually signed a form acknowledging his

actions had violated the Student Conduct Code.

7

accompanied by his father, was allowed to review both

examinations. At that time Doe gave the review officer the

results of a polygraph examination to show he had not shared

answers on the Biology 220 examination. He also submitted a

character reference from one of his professors.

On August 14, 2015 Doe was given notice of the written

decision from the summary administrative review and advised of

his right to appeal to the Student Behavior Appeals Panel. The

report concluded Doe was “responsible for gaining an unfair

academic advantage during exam 4 in BISC 220 by collaborating

with, providing answers to, and/or receiving answers from a

classmate seated next to him.” This conclusion was based on the

highly unusual statistical similarities in the two students’

examination papers, as described in the faculty report; the fact

that Doe and Student B, although sitting next to each other, had

the same version of the examination; the use by both students of

large letters indicating proposed answers in the examination

margins; and Student B’s improved performance on this

examination compared to his prior grades in the class. Because

this was Doe’s second act of academic dishonesty, the report

imposed as sanctions an “F” grade in the course, a two-semester

suspension and the requirement that Doe attend and successfully

complete an ethics workshop.

b. Doe’s administrative appeal

Doe appealed the review officer’s decision to the Student

Behavior Appeals Panel, filing a lengthy document with exhibits

in support of his contentions the review officer’s decision lacked

evidentiary support, the review officer violated the procedural

protections for students set forth in the Student Conduct Code

8

and the sanctions imposed were excessive.8

Doe argued

Student B alone had cheated and contended that Student B was

responsible for switching the examination papers so that he and

Doe had the same version of the examination. Doe described his

outstanding academic record and insisted, “The notion that I

would receive help from a student I have historically

outperformed is illogical.” He also presented another faculty

reference and statements from several students confirming that

he had studied alone for the examination. Doe also argued the

two-semester suspension was excessive and asserted the SJACS

decisionmaking process was procedurally unfair.

The three-member appeals panel denied Doe’s appeal. The

SJACS report and appeals panel decision were then reviewed by

the Vice Provost for Student Affairs, who approved the findings

and sanctions imposed.

3. The Petition for Writ of Administrative Mandamus and

the Judgment in Favor of Doe

Doe filed a petition for writ of administrative mandate in

superior court on January 7, 2016 challenging the SJACS

decision and the appeals panel’s denial of his appeal on both

procedural and substantive grounds.9

The petition requested an



8

Section 15.00 of the USC Student Conduct Code provides

an appeal may be based on new evidence that is sufficient to alter

the decision or the contention that the review officer failed to

follow university rules or that the sanction imposed is excessive.

The appeals panel does not reweigh the evidence.

9

The remedy of administrative mandamus is available to

review adjudicatory decisions of private organizations, including

universities. (See Doe v. University of Southern California (2016)

246 Cal.App.4th 221, 237 & fn. 9; Gupta v. Stanford University

9

immediate stay of all sanctions. The following day the court

stayed Doe’s suspension pending further order of the court.

Following briefing and oral argument, the court issued a

13-page written decision on February 17, 2017 granting Doe’s

petition, finding SJACS’s decision to impose sanctions was not

supported by substantial evidence. In its amended judgment

entered March 14, 2017 the court ordered USC to vacate the

SJACS administrative decision and the sanctions that had been

imposed on Doe.

In its statement of decision the court concluded Doe had

been provided a fair administrative hearing as required by Code

of Civil Procedure section 1094.5, subdivision (b).10

“Petitioner

was provided with clear notice of the allegations against him and

was informed of USC’s written policies and procedures related to

the administrative review process. All evidence that SJACS

relied on in making its decision was made available to Petitioner

for review, and Petitioner did in fact review this evidence.

Petitioner had multiple face to face meetings with a

representative of SJACS. At these meetings Petitioner was

afforded the opportunity to object to the charges against him and

explain his version of facts. All indications are that USC fully

complied with its policies and procedures and conducted a fair

hearing.”

Turning to SJACS’s findings, the court identified the

following undisputed facts: “Petitioner and Student B sat next to

each other during the exam. [¶] Although adjacent students



(2004) 124 Cal.App.4th 407, 411; Pomona College v. Superior

Court (1996) 45 Cal.App.4th 1716, 1722-1723.)

10

Statutory references are to this code.

10

were supposed to have different versions of the exam, Petitioner

and Student B had the same version. [¶] Petitioner and

Student B had the greatest number of identical answers out of

every pair of students with their version of the exam

(46/50 answers were answered identically). [¶] Both Petitioner

and Student B wrote large proposed answers along the left-hand

side of the of their exam question sheets that would be easily

visible to a neighbor.” The court also explained, although

disputed by Doe, “Student B stated that the two of them studied

together for the exam, communicated about the exam via text

message, watched recorded course lectures together, and

discussed the recorded lectures together.”

Referring to the facts it had just listed, both undisputed

and disputed, and purporting to review the SJACS’s decision for

substantial evidence,11 the court found, “Based on this evidence

alone, a reasonable trier of fact could have concluded, as did

SJACS, that Petitioner collaborated with, provided answers to,



11 The court rejected Doe’s contention an independent

judgment standard of review applied in this case because he

purportedly had a vested contractual right and property interest

in attending USC. (See generally Strumsky v. San Diego County

Employees Retirement Assn. (1974) 11 Cal.3d 28, 34 [“[w]hen an

administrative decision affects a right which has been

legitimately acquired or is otherwise ‘vested,’ and when that right

is of a fundamental nature from the standpoint of its economic

aspect or its ‘effect . . . in human terms and the importance . . . to

the individual in the life situation,’ then a full and independent

judicial review of that decision is indicated because ‘[the]

abrogation of the right is too important to the individual to

relegate it to exclusive administrative extinction’”].) Doe has

abandoned that argument on appeal.

11

and/or received answers from Student B during the examination.”

Nonetheless, the court stated it could not ignore the fact that 22

of the notations in the margins of the two students’ examination

question sheets were not the same. It asked rhetorically, “If

Petitioner was ‘cheating’ either by receiving answers from

Student B or sending answers to Student B, [USC] fails to

explain how the ‘cheating’ was facilitated when 44% of the

answers in the margins were not the same. How do two students

sitting next to each other each score 92% (46/50 identical

answers),[12]

based on letter answers in the margins of each

student’s exam where 44% of them are not the same?” Implicitly

answering its own question, the court then ruled, “The fact that

44% of the letter answers in the margins were not the same

persuades this Court that there was, in fact, no substantial

evidence to support the administrative body’s determination

because putting letter answers in the margins could not have

caused the students to have 46 of 50 identical answers.”

4. USC’s Appeal, Doe’s Graduation and the Petition for

Writ of Supersedeas

USC filed a notice of appeal on April 10, 2017.

Because of the superior court’s stay of his suspension

during the pendency of the administrative mandamus

proceedings, Doe was able to complete all necessary coursework



12 The superior court misunderstood USC’s evidence.

Although Doe and Student B answered 46 of 50 questions

identically, only 42 of Doe’s answers (84 percent) and 40 of

Student B’s answers (80 percent) were correct. This

misunderstanding was also reflected in the court’s order that

USC remove Doe’s grade of “F” in the course and “give Petitioner

the letter grade that a score of 46/50 would achieve.”

12

and graduated from USC on May 12, 2017 with a Bachelor of

Science degree in Human Biology. However, USC refused to

issue him a transcript pending resolution of its appeal.

On June 22, 2017 Doe petitioned Division Eight of this

court, then assigned USC’s appeal,13 for a writ of supersedeas

giving full effect to the superior court’s judgment during the

appeal. Relying on section 1094.5, subdivision (g), which

provides, in part, “If an appeal is taken from the granting of the

writ, the order or decision of the agency is stayed pending the

determination of the appeal unless the court to which the appeal

is taken shall otherwise order,” Doe argued withholding his

degree and his transcript, which he needed to apply to medical

school and to seek employment, violated the automatic stay of the

university’s imposition of disciplinary measures. USC opposed

the petition, contending the superior court had ordered it to give

Doe an “A” in Biology 220, affirmative relief that was not subject

to section 1094.5, subdivision (g)’s provision for an automatic

stay.

On July 28, 2017 Division Eight granted Doe’s petition and

directed USC, pending resolution of the appeal and until further

order, to “(1) reinstate John Doe as a student in good standing,

(2) issue a transcript showing the grade to which he would

otherwise be entitled absent the allegation of cheating, (3) allow

Doe to register for classes, if he would otherwise be entitled

absent the cheating allegation, and (4) issue Doe a diploma, if he

would otherwise be entitled to it absent the cheating allegation.”



13 USC’s appeal was transferred to Division Seven pursuant

to California Rules of Court, rule 10.1000(b)(1)(A) on January 29,

2018.

13

DISCUSSION

1. Standard of Review

The question presented by a petition for writ of

administrative mandate is whether the agency or tribunal that

issued the decision being challenged “proceeded without, or in

excess of, jurisdiction; whether there was a fair trial; and

whether there was any prejudicial abuse of discretion.” (§ 1094.5,

subd. (b).) “Abuse of discretion is established if the respondent

has not proceeded in the manner required by law, the order or

decision is not supported by the findings, or the findings are not

supported by the evidence.” (Ibid.)

On appeal from the judgment on a petition for writ of

administrative mandate in a case not involving fundamental

vested rights, as here, we review the agency’s findings, not the

superior court’s decision, for substantial evidence. (Doe v.

University of Southern California (2016) 246 Cal.App.4th 221,

239; see § 1094.5, subd. (c) [“abuse of discretion is established if

the court determines that the findings are not supported by

substantial evidence in the light of the whole record”]; see also

Doe v. Regents of University of California (2016) 5 Cal.App.5th

1055, 1072 [“‘The scope of our review from a judgment on a

petition for writ of mandate is the same as that of the trial court.’

[Citation.] ‘An appellate court in a case not involving a

fundamental vested right reviews the agency’s decision, rather

than the trial court’s decision, applying the same standard of

review applicable in the trial court.’”].)

We review the fairness of the administrative proceeding de

novo. (Doe v. University of Southern California, supra,

246 Cal.App.4th at p. 239 [“‘[a] challenge to the procedural

fairness of the administrative hearing is reviewed de novo on

14

appeal because the ultimate determination of procedural fairness

amounts to a question of law’”]; accord, Doe v. Regents of

University of California, supra, 5 Cal.App.5th at p. 1073.)

Section 1094.5, subdivision (b)’s requirement of a “fair trial”

“means that there must have been ‘a fair administrative

hearing.’” (Gonzalez v. Santa Clara County Dept. of Social

Services (2014) 223 Cal.App.4th 72, 96.) “Where student

discipline is at issue, the university must comply with its own

policies and procedures.” (Doe v. University of Southern

California, at p. 239; see Berman v. Regents of University of

California (2014) 229 Cal.App.4th 1265, 1271.)

2. Substantial Evidence Supports USC’s Finding of

Academic Dishonesty

As discussed, it is undisputed that Doe and Student B sat

next to each other during the final examination in Biology 220;

had the same version of the examination although adjacent

students were supposed to have different versions; answered

46 of the 50 examination questions identically, a highly

anomalous statistical result; and wrote large letter answers in

the margins of the examination booklets that would be visible to

the students sitting next to them. Although Doe and Student B

insisted they generally wrote answers in the margins of multiple

choice examinations to facilitate checking their answers, the

laboratory manager who participated in reporting the academic

integrity violation stated in the summary of the incident that

neither of the students had written anything next to the multiple

choice questions on the fall semester Biology 120 final

15

examination.14

In addition, Student B, who performed better on

the Biology 220 final than his “C” academic average, while

denying he had cheated, contradicted Doe’s claim that the two of

them had not studied together for the examination.

We certainly agree with the superior court that these facts

reasonably support the inference Doe provided answers to

Student B and may have also received answers from him during

the examination. Contrary to the superior court’s analysis,

however, closer review of the pattern of answers by Doe and

Student B, viewed in the context of the facts just recited,

reinforces the conclusion that cheating occurred. Doe wrote a

single letter in the margin for 29 questions; Student B marked 28

of his answers to those questions, all but number 10, with the

same letter. On question 10, Doe wrote a “D” in the margin of his

examination booklet; Student B wrote a large “C” in his margin;

both Doe and Student B marked “C” on their Scantron® answer



14

Copies of the Biology 120 examination booklets were not

attached to the faculty report of academic integrity violation and

not otherwise made part of the administrative record.

Doe attempted to augment the administrative record in the

superior court with the booklets from two midterm examinations

in Biology 220 to establish the veracity of his statement that he

normally wrote letters in the margins of multiple choice tests.

Although Doe contends to the contrary, the superior court

ultimately sustained USC’s objection to the requested

augmentation. In any event, as the court noted at the January 4,

2017 hearing before finally ruling on USC’s objection, there were

many fewer letters in the margins of those two tests than in Doe’s

final examination booklet and a number of those were smaller

and less distinct than the handwritten letters at issue in this

case.

16

sheets. Doe wrote two letters in the margins of five additional

questions (for example “A/B” for question 14); Student B marked

one of those two letters as his answer to four of those questions

(all but number 40, which was one of the four questions as to

which Doe and Student B provided different answers). Of the 16

questions for which Doe did not write any letter in the margins of

the examination booklet, Student B wrote an answer for 14. Doe

marked 12 of his answers to those 14 questions with the letter

Student B placed in the margins of his booklet. Neither student

wrote in the margin of questions 18 and 26. However, on

question18 Student B circled “C” in his booklet; both Doe and

Student B marked “C” on their answer sheets. Both students

marked “D” as their answer to question 26. Significantly, for at

least six questions Doe and Student B marked the same incorrect

answer.

15

Although this pattern of cross-identity of proposed and

actual answers between Doe and Student B might have been the

product of independent work, SJACS’s conclusion it was the

result of cheating is a reasonable inference, solidly grounded in

the record.

In contrast, the superior court’s observation that Doe’s and

Student B’s marginal notes differed on 44 percent of the

questions—the sole basis for its conclusion SJACS’s decision was

not supported by substantial evidence and a point repeated by

Doe on appeal—is of minimal probative value. In fact, Doe and

Student B wrote different letters in the margins of their



15 Although the answer key is not part of the administrative

record, their test scores equate to eight incorrect answers for Doe

and 10 incorrect answers for Student B. Because 46 of their 50

answers were identical, Doe and Student B necessarily marked

the same incorrect answers on six or seven questions.

17

examination booklets in only two instances, questions 10 and 40

(that is, 4 percent of the time, not 44 percent). As to the other

20 questions included in the court’s calculation, either one

student wrote an answer while the other left the margin blank, or

one student wrote two letters, while the other wrote one of those

same two letters in the examination booklet margins. And they

marked identical answers for all but three of those questions, a

result that does nothing to belie the conclusion they were

improperly sharing information during the examination.

Neither of Doe’s other challenges to the evidence in the

administrative record undermines the sufficiency of that evidence

to support SJACS’s decision. (See Young v. City of Coronado

(2017) 10 Cal.App.5th 408, 431 [applying deferential substantial

evidence standard of review, court will uphold an administrative

decision if there is substantial evidence to support it whether or

not that evidence is contradicted]; California Oaks Foundation v.

Regents of University of California (2010) 188 Cal.App.4th 227,

247 [“[w]here a petitioner’s challenge in a mandamus action rests

on the sufficiency of the evidence, ‘the court does not have the

power to judge the intrinsic value of the evidence or to weigh

it’”].)

First, Doe points out that the redacted copy of Doe’s

examination booklet in the administrative record has two

different page 9’s, containing questions 34 through 39: On one

version the page number is visible, and a large “C” is written next

to question 36. In the second version there is no page number; at

the bottom of the page there is the legend, “Figure 3 Example

page from [John Doe’s] exam”; and the margin next to

question 36 is blank. In addition, the redactions on the two

pages, apparently made by a dark marker pen, are slightly

18

different; and the handwritten letters in the margins next to

questions 34 and 38 are not identical.

Doe posits that at least one of these two pages is not an

actual photocopy of his examination booklet, but a “re-creation.”

While not suggesting this necessarily demonstrates improper

action by USC officials, Doe argues the unexplained presence of a

false copy calls into question the authenticity of all the pages of

the examination booklet and, as a consequence, the reliability of

SJACS’s finding that cheating occurred, which was largely based

on inferences from the margin notations in Doe’s and Student B’s

examination booklets and their bubbled answers on the

Scantron® answer sheets.

The existence of two nonidentical versions of the same page

from Doe’s examination booklet is troubling. Because this issue

was not raised during the administrative proceedings or in the

superior court, however, USC did not have an opportunity to

address it; and it would normally be deemed forfeited. (See, e.g.,

Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 587

[issue not raised in administrative proceedings or in the trial

court deemed forfeited]; Owen v. Sands (2009) 176 Cal.App.4th

985, 995 [same].)16

In any event, Doe does not dispute he wrote

large letters in the margin next to most, but not all, of the

questions in his examination booklet. Nor does he contend those

handwritten letters were not visible to Student B, who was

sitting next to him. Moreover, whether Doe wrote a “C” next to

question 36 or left that margin blank has no real significance for



16

Although USC was responsible for preparing the

administrative record, it was provided directly to Doe’s counsel,

who added several documents before lodging it with the superior

court.

19

the statistical analysis at the heart of this case because question

36 was one of the four questions Doe and Student B answered

differently.17



Next, Doe argues certain evidence that would generally be

expected in an academic cheating case was apparently not

considered during the university’s disciplinary proceedings. As

Doe notes, there was no explanation as to how Doe and

Student B, while seated next to each other, ended up with the

same version of the examination. In addition, there was no

testimony from any of the six proctors who were present in the

examination room or from any of the students seated near Doe

and Student B that indicates they were seen copying from each

other or otherwise engaged in suspicious behavior while taking

the test. Those evidentiary gaps, Doe contends, justify the

conclusion the administrative record is insufficient to support

SJACS’s decision to impose sanctions on Doe.

There is no question that evidence from proctors or fellow

students concerning distribution of the examination booklets or

Doe and Student B’s behavior in the examination room would

have been material, either to support or contradict the allegation

of cheating. But the absence of that information does not detract

from the reasonableness of the inferences by the SJACS review

officer based on the evidence that was presented to him,

including the statistical analysis of Doe’s and Student B’s



17 Student B wrote “A/C” in the margin next to question 36.

He then bubbled “C” on the Scantron® answer sheet; Doe

bubbled “A.” The comparison sheet in the initial faculty report

has “C?” next to question 36 in the column indicating Doe’s

margin notes. Apparently unaware of the second version of this

page, the superior court wrote Doe had “C” next to question 36.

20

answers, the fact they had the same version of the examination

while sitting next to each other and their use of large letter

proposed answers in the margins of the examination booklets.

Finally, conceding the evidence may well be sufficient to

conclude that Student B copied the answers Doe had marked in

the margins of the examination booklet,18 Doe contends the

finding he intentionally facilitated Student B’s cheating is purely

speculative. Doe’s protestation of his noninvolvement in the

cheating that took place, however, was belied by his denial that

he and Student B had studied together for the examination,

which Student B refuted. The SJACS review officer was charged

with the responsibility to determine Doe’s credibility and, having

done so, to weigh all the evidence. (See Doe v. Regents of

University of California, supra, 5 Cal.App.5th at p. 1073.) The

determination Doe and Student B collaborated to share answers

during the Biology 220 final examination is “one which could

have been made by reasonable people.” (Ibid. [internal quotation

marks omitted].)

3. Doe Was Not Deprived of His Right to a Fair Hearing

Doe urges us to affirm the superior court’s order granting

his petition for writ of administrative mandamus even if the

administrative record supports the finding of academic

dishonesty because the decisionmaking process used in this case

violated USC’s own procedural rules and was fundamentally



18 In his written submission to the Student Behavior Appeals

Panel, Doe acknowledged he had “made the mistake of letting my

guard down in not protecting my exam and scantron as well as I

normally would.”

21

unfair.19

(See Doe v. University of Southern California, supra,

246 Cal.App.4th at pp. 245-246 [student disciplinary process

should at least provide the student the names of the witnesses

against him, an oral or written description of the facts as

reported by those witnesses and an opportunity to respond and

characterize his or her conduct and put it in its proper context];

see also Doe v. Regents of University of California, supra,

5 Cal.App.5th at p. 1077 [fair procedure generally requires notice

reasonably calculated to apprise interested parties of the nature

of the charges and an opportunity to respond to them]; see



19 USC anticipated Doe’s argument concerning procedural

unfairness and asserted in the final section of its opening brief

that Doe could not establish he had been denied a fair hearing.

In its reply brief, however, USC contends, because Doe did not

file a cross-appeal from the superior court’s judgment, that issue

is not properly before us. USC’s belated forfeiture argument

overlooks section 906, which expressly authorizes a respondent,

without appealing from the judgment, to assert grounds rejected

by the trial court that compel affirmance of the judgment in its

favor. (§ 906 [“respondent, or party in whose favor the judgment

was given, may, without appealing from such judgment, request

the reviewing court to and it may review any [order or decision

that involves the merits or necessarily affects the judgment] for

the purpose of determining whether or not appellant was

prejudiced by the error or errors upon which he relies for reversal

or modification of the judgment from which the appeal is taken”];

see Mayer v. C.W. Driver (2002) 98 Cal.App.4th 48, 57

[respondent permitted by section 906 to raise argument without

cross-appeal that trial court reached right result “even if on the

wrong theory”]; California State Employees’ Assn. v. State

Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7

[section 906 “allow[s] a respondent to assert a legal theory which

may result in affirmance of the judgment”].)

22

generally Goss v. Lopez (1975) 419 U.S. 565, 579-580 [95 S.Ct.

729, 42 L.Ed.2d 725] [“[a]t the very minimum, therefore, students

facing suspension . . . must be given some kind of notice and

afforded some kind of hearing”].) Specifically, Doe argues USC

failed to timely provide him with his and Student B’s

examination booklets with lettering in the margins, the key

evidence used against him, and chilled his right to gather from

witnesses information relevant to the cheating charge. Neither of

Doe’s contention has merit.

Shortly after the academic integrity review process began,

Doe was provided a copy of the faculty report sent to SJACS that

triggered the formal proceedings. The report emphasized the

statistically improbable correlation between Doe’s and

Student B’s answers, discussed the fact they had the same

version of the examination while seated next to each other and

analyzed the relationship between the proposed answers written

in the margins of their examination booklets and the Scantron®

answer sheets—that is, the report explained the basis for the

charge of cheating, the evidence supporting the charge, and the

identity of the professors who had initiated the complaint. Doe

was given a summary of the review process that would be

followed, referred to the portion of the student handbook that

detailed the entire process and told he had a right to inspect, but

not copy, the examination papers. Doe exercised his right to

review the examination papers. This procedure complied with

USC’s rules governing the review process20 and satisfied the



20

Section 10.30 of USC’s Student Conduct Code, Student

Procedural Protections, provides, among other safeguards for a

fair hearing, the right to “[w]ritten notice via email of the

incident report that specifies the nature of the alleged violation

23

rudimentary requirements for a fair hearing. (See Doe v.

University of Southern California, supra, 246 Cal.App.4th at

p. 240 [student facing suspension must be given, at a minimum,

an opportunity to explain his or her version of the facts after first

being informed of the accusation of misconduct and the basis for

it].)

In addition, although Doe complains he was not allowed to

inspect both sets of examination papers until late in the review

process (two months after the complaint was initiated and only a

few days before the SJACS review officer issued his decision), he

was invited to schedule an appointment to review those

documents more than a month earlier, on July 1, 2015, the same

day he met with the review officer.

21

Moreover, Doe does not

indicate how his delay in reviewing the examination papers

prejudiced his case. To the contrary, Doe never argued that the

analysis of the relationship between the handwritten letters in

the margins of the examination booklets and the Scantron®

answer sheets was flawed or disputed that this evidence

convincingly demonstrated Student B had cheated. Rather, he



and the basis for the charge including the date or period of time

and location regarding the alleged incident”;“[t]he right to inspect

documents and/or relevant information on file prior to the

review”; “[t]he opportunity to be present at the review; to inspect

all evidence presented; and to present witnesses and evidence”;

and the right to “[a] fair and impartial review of the incident”

with “a written decision outlining the results of the review . . .

includ[ing] the factual basis for the conclusions drawn.”

21 The invitation to schedule an appointment to inspect the

examination papers was repeated in an email sent to Doe on

July 15, 2015.

24

challenges only the additional finding that he cooperated with

Student B in the cheating scheme, an inference based primarily

on evidence relating to his credibility, not the information

gleaned from the examination booklets and answer sheets. (Cf.

Doe v. Regents of University of California, supra, 5 Cal.App.5th at

pp. 1085-1093 [court analyzes whether restrictions on crossexamination

of sexual assault victim “rendered the hearing

unfair by prejudicing” the alleged perpetrator].)

Doe’s second complaint of procedural unfairness—that USC

severely compromised his ability to gather evidence to defend

against the charge of cheating—is based on the review officer’s

admonition when sending Doe a copy of the faculty report not to

engage in inappropriate contact with the reporting individuals or

other witnesses.22

Although Doe contends this warning deterred

him from interviewing Student B, the examination proctors and

other students sitting near him during the examination,

cautioning Doe to refrain from improper tactics when speaking to

potential witnesses did not preclude him from reaching out to any



22

The review officer’s email stated, “Per your request, I have

attached a copy of the [faculty] report for your review. Please

note that documents may include names of reporting individuals

and witnesses. Receipt of this email and included documents

means that you understand that inappropriate contact with these

individuals may be deemed as intimidation or retaliation, a

violation of the Student Conduct Code (11.55).” Section 11.55 of

the USC Student Conduct Code, which had been made available

to Doe, prohibits, in part, “[t]hreatening, attempting, or

committing retaliation against anyone who, in good faith, brings

a complaint under the Student Handbook policy, university

policy, or applicable law; or participates in investigation of such a

complaint . . . .”

25

of those individuals or to have one of his parents, who assisted

him during this process, or a lawyer do so. The decision to

refrain from appropriate contact with potential witnesses was

Doe’s alone.23



In addition, as USC points out, this argument was not

presented during Doe’s administrative appeal and was only

identified in passing in the superior court, as part of Doe’s

contention that USC had improperly imposed on him the burden

to prove his innocence—a claim of procedural unfairness that has

not been raised on appeal. Accordingly, independent of its lack of

merit, the issue whether the review officer’s warning improperly

chilled Doe’s ability to contact potential witnesses has been

forfeited. (See NBS Imaging Systems, Inc. v. State Bd. of Control

(1997) 60 Cal.App.4th 328, 336-337 [review of administrative

proceedings is confined to the administrative record]; Coalition

for Student Action v. City of Fullerton (1984) 153 Cal.App.3d

1194, 1197 [failure to raise a defense before the administrative

body waives the defense]; City of Walnut Creek v. County of

Contra Costa (1980) 101 Cal.App.3d 1012, 1019-1020 [a party

must present all legitimate issues before the administrative

tribunal].)



23 The review officer’s notes indicate Doe had communicated

with Student B prior to the July 1, 2015 meeting between Doe

and the review officer. In a telephone call following the July 1

meeting, the review officer advised Doe against any further

contact with Student B in response to Doe’s suggestion he could

prove his innocence by obtaining a confession from Student B.

26

4. The Consequences of Our Reversal of the Superior

Court’s Judgment Are Appropriately Determined by USC

in the First Instance

Because Doe graduated and received his degree while

USC’s appeal was pending, we invited the parties to submit

supplemental letter briefs addressing whether his graduation

mooted the appeal and, if not, what effect it might have on

possible academic sanctions that would be available to USC if we

were to reverse the superior court’s judgment granting the

petition for writ of administrative mandamus.

USC responded that Doe’s graduation does not moot the

case, in whole or in part. Upon reversal, USC asserted, Doe’s

grade in Biology 220 will be changed to an “F”; his diploma will

be invalidated because passing Biology 220 is a requirement for

Doe’s major; and the two-semester suspension will be imposed,

preventing Doe from enrolling in courses at USC during that

period.24

USC emphasized that in his reply brief in support of his

petition for writ of supersedeas, Doe had argued, “Granting this

petition would not in any way deprive USC of appellate remedies

to which it could be entitled were it to prevail. . . . USC would—if

successful on appeal—be able to rescind or modify whatever

academic recognition it confers . . . .”



24 While insisting Doe must retake and earn a passing grade

in Biology 220 if the judgment granting the writ of

administrative mandamus is reversed, USC’s supplemental brief

confirms, “Doe may retain credits he earned since the

administrative proceeding during which the suspension was

stayed by order of the trial court and this Court’s writ of

supersedeas.”

27

In his supplemental brief Doe acknowledged that passing

Biology 220 was required for his degree in Human Biology and

that, in general, USC has the power to revoke a degree.

Nonetheless, Doe contends the appeal is now moot, arguing that,

following the filing of its notice of appeal and before the May 12,

2017 graduation ceremony, USC could have asked this court for

discretionary relief under section 1094.5, subdivision (g), to keep

the disciplinary measures in place while the appeal was pending.

USC’s failure to do so, Doe insists, “was surely a waiver.”

Moreover, Doe argues, revoking the degree USC conferred in May

2017 would impose an increased and harsher sanction than

initially ordered by the university, in effect an impermissible

punishment for having challenged the university’s disciplinary

process in court.

Determining the ultimate effect of our reversal of the

superior court’s judgment, including whether Doe’s degree should

be rescinded or the two-semester suspension imposed nearly

three years after it was ordered, are matters properly entrusted

to USC in the first instance. (See generally Paulsen v. Golden

Gate University (1979) 25 Cal.3d 803, 808 [courts will not

intervene in the academic affairs of schools unless the school

acted arbitrarily or in bad faith]; Lachtman v. Regents of

University of California (2007) 158 Cal.App.4th 187, 203

[“‘“[u]niversity 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”’”].)

Accordingly, although we raised the issue with our invitation for

supplemental briefing, we decline to resolve it at this time.

The judgment is reversed and the cause remanded with directions to deny John Doe’s petition for writ of administrative mandamus. USC is to recover its costs on appeal.