Opinion
B309886
10-25-2022
JOHN DOE, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
Hathaway Parker Inc., Mark M. Hathaway and Jenna E. Parker, for Plaintiff and Appellant. Munger, Tolles &Olson, Hailyn J. Chen, Rebecca L. Sciarrino; and Katharine Essick, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from judgment of the Superior Court of Los Angeles County No. 19STCP02886, Mary H. Strobel, Judge. Affirmed.
Hathaway Parker Inc., Mark M. Hathaway and Jenna E. Parker, for Plaintiff and Appellant.
Munger, Tolles &Olson, Hailyn J. Chen, Rebecca L. Sciarrino; and Katharine Essick, for Defendant and Respondent.
TAMZARIAN, J. [*]
Two female students at the University of California, Los Angeles (UCLA) accused appellant John Doe of raping them. Doe was a UCLA student and member of the UCLA chapter of the Zeta Beta Tau (ZBT) fraternity. During the pendency of UCLA's investigation of Doe's alleged sexual assaults, the university placed Doe under an Interim Exclusion barring him from attending events hosted by ZBT.
After Doe attended a concert allegedly hosted by ZBT, UCLA dismissed him for violating the Interim Exclusion and the university's code of conduct. Doe then filed a petition for writ of administrative mandate challenging his dismissal. The superior court denied the petition on the ground Doe failed to exhaust his administrative remedies and on the merits.
Doe makes five principal arguments: (1) there was no substantial evidence supporting UCLA's decision; (2) the university's decision was not supported by its findings; (3) UCLA abused its discretion by imposing the sanction of dismissal instead of a lesser penalty; (4) UCLA's decision violates his First Amendment rights; and (5) the university failed to give him a fair hearing because it did not follow its own policies and procedures.
BACKGROUND
In the fall of 2016, a company called GDM Live contacted Jack V., the then-president of ZBT at UCLA. GDM Live specializes in fraternity associated live events. The company proposed "partnering" with ZBT with respect to a concert by entertainer Snoop Dogg at the Belasco Theater in downtown Los Angeles. GDM Live needed ZBT to sell tickets at UCLA because the company had no relationship with the student body there.
GDM Live and ZBT reached an agreement regarding the Snoop Dogg concert. Pursuant to this agreement, ZBT promoted the event through social media, flyers, and face-to-face interactions. ZBT's social media posts and flyers stated, "UCLA's ZBT Presents The Legend Snoop Dogg."
Jack V. sought guidance regarding the concert from Lindsey Goldstein, ZBT's Fraternity and Sorority Life Staff Advisor at the time. Goldstein advised him that he needed to complete an Event Registration Form - Alcohol, because the Snoop Dogg concert was an "event" under the UCLA Interfraternity Council and Panhellenic Social Policy (IFC Policy). Goldstein gave ZBT the option to cancel and withdraw from the event or comply with the IFC Policy. Jack V. completed the form and registered the event.
On March 10, 2017, UCLA sent letters to Doe advising him that the university was investigating allegations by two undergraduate women that Doe had sexually assaulted them. The alleged assaults occurred in October 2015 and August 2016.
On May 8, 2017, UCLA sent Doe a letter stating he was "placed on Interim Exclusion from all events and activities supported by the Office of Fraternity and Sorority Life, and the corresponding councils and chapters, pending resolution" of the sexual assault allegations. The exclusion included "[a]ny events/programs that are hosted" by a UCLA fraternity chapter.
The underlying claims by the two women against Doe were not resolved until after the petition commencing the present action was filed. Initially, finding the women's allegations credible, UCLA disciplined Doe. Doe filed petitions for writ of administrative mandate against Regents of the University of California (Regents) on the grounds the procedures implemented by UCLA violated his rights, including his right to cross-examine witnesses. After those petitions were filed, the Court of Appeal issued its decision in Doe v. Allee (2019) 30 Cal.App.5th 1036 (Allee), which held that universities must permit cross-examination in sexual misconduct cases where credibility is at issue. (Id. at p. 1066.) Regents then stipulated to judgments setting aside the disciplinary actions against Doe based on his alleged sexual assaults.
After receiving this letter, Doe asked Jack V. whether he could attend the Snoop Dogg concert. Jack V. advised Doe, "I don't think you should be going." But Jack V. also told Doe he could not prevent him from purchasing his own ticket because the concert was open to the public and tickets were sold by GDM Live and the theater. Doe attended the Snoop Dogg concert on June 2, 2017.
On August 17, 2017, UCLA Assistant Dean of Students Hilary Crocker provided Doe with written notice that she was investigating whether he violated Section 102.22 of the UCLA Student Conduct Code (Section 102.22) by attending the Snoop Dogg concert. Section 102.22 provides that a student may be disciplined for violating an Interim Exclusion.
Dean Crocker investigated the matter by interviewing Doe, Jack V., and Lindsey Goldstein, corresponding with other witnesses regarding the nature of the Snoop Dogg concert, and obtaining and reviewing relevant documents. She also exchanged emails with Doe regarding the investigation.
Doe's initial correspondence with Dean Crocker was polite and cordial. But on June 7, 2018, Doe sent an email to Dean Crocker calling her "simple minded and unintelligent," UCLA a "classless and backwards operating organization," and the process of resolving the allegations against him "ridiculous and foolish." A few minutes later Doe sent another email to Dean Crocker telling her, "I have no desire to be apart [sic] of this investigation" and "leave me out of it." Dean Crocker nonetheless subsequently advised Doe in writing multiple times about the hearing scheduled before the Student Conduct Committee.
On September 7, 2018, the hearing took place before a three-person panel. Dean Crocker, Jack V., and Lindsey Goldstein testified. By this time, Goldstein was Acting Director for Fraternity &Sorority Life. Doe did not appear. Shortly after the hearing, a panel of the Student Conduct Committee issued a report finding that Doe violated Section 102.22 and recommending Doe be dismissed from UCLA and the University of California.
On October 4, 2018, the Student Conduct Committee forwarded the report to Doe. In a cover letter, the committee advised Doe that before October 11, he could respond to the report if he believed that the recommended sanction was substantially disproportionate to the severity of the violation. Doe did not respond to this letter.
On October 15, 2018, Monroe Gorden, Jr., UCLA Vice Chancellor-Student Affairs, sent a letter to Doe advising him that he was upholding the findings of Student Conduct Committee and dismissing Doe from UCLA and the University of California.
On July 10, 2019, Doe filed a petition for writ of administrative mandate against Regents in superior court, challenging his dismissal pursuant to Code of Civil Procedure section 1094.5 (section 1094.5). The superior court denied his petition and entered judgment for Regents. This appeal followed.
STANDARD OF REVIEW
The scope of our review of a petition for writ of administrative mandate is the same as that of the trial court. (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1072 (UCSD); Allee, supra, 30 Cal.App.5th at p. 1059.) As relevant here, the questions presented by the petition are whether there was a "fair trial" and "whether there was any prejudicial abuse of discretion." (§ 1094.5, subd. (b).)
A "fair trial" here means a fair administrative hearing. (Allee, supra, 30 Cal.App.5th at p. 1059.) "We review the fairness of the administrative proceeding de novo." (UCSD, supra, 5 Cal.App.5th at p. 1073.)
One aspect of a fair proceeding is whether the administrative agency complies with its own policies and procedures. In reviewing this issue, we give weight to the agency's construction of its policies and procedures if the language at issue is ambiguous, the agency has a comparative interpretative advantage over the courts because of its expertise or technical knowledge, or other circumstances support giving the agency's interpretation deference. (Akella v. Regents of University of California (2021) 61 Cal.App.5th 801, 816 (Akella).)
A petitioner challenging an administrative agency's decision can establish abuse of discretion if he or she shows the agency's decision "is not supported by the findings." (§ 1094.5, subd. (b).)
An agency also abuses its discretion if its "findings are not supported by the evidence." (§ 1094.5, subd. (b).) When a petitioner makes an insufficiency of the evidence challenge, the court applies one of two standards of review. (See § 1094.5, subd. (c).) If the administrative decision affects "vested, fundamental rights," the court "exercises its independent judgment upon the evidence disclosed in a limited trial de novo." (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Otherwise, the court reviews the decision for substantial evidence. (Ibid.) Doe argues we should review the evidence de novo. Yet he concedes "no California authority has held that enrolled university and college students have vested fundamental rights that demand independent judgment review."
In Gurfinkel v. Los Angeles Community College Dist. (1981) 121 Cal.App.3d 1, a community college student argued her "fundamental right to a college and community college education" was violated. (Id. at p. 4.) The court rejected this argument, holding the student's position was based on an "unfounded premise." (Id. at p. 5.)
The courts have repeatedly applied the substantial evidence standard to university disciplinary decisions involving sexual misconduct. (See, e.g., Doe v. Occidental College (2019) 37 Cal.App.5th 1003, 1018; Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1065; UCSD, supra, 5 Cal.App.5th at p. 1073.) This is because "[a] university disciplinary proceeding concerning sexual misconduct does not involve a fundamental vested right." (Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, 1231 (USC).) Although Doe was disciplined for violating the Interim Exclusion-not sexual misconduct-the same reasoning applies. The substantial evidence standard of review applies to Doe's challenge to the sufficiency of the evidence.
Citing Do v. Regents of University of California (2013) 216 Cal.App.4th 1474 (Do), Regents argues the substantial evidence standard applies regardless of whether Doe had a vested, fundamental right. In Do, the court held that the substantial evidence standard applied to the University of California's decision to terminate an employee because the university is authorized by the California Constitution to exercise quasi-judicial adjudicatory powers. (Id. at pp. 1483-1489.) We do not reach the issue of whether the holding of Do applies here because we conclude UCLA's decision did not affect a vested, fundamental right.
Under the substantial evidence standard of review, we do not reweigh the evidence. (UCSD, supra, 5 Cal.App.5th at p. 1073.) Rather, we are required to accept all evidence that supports the university's position, disregard contrary evidence, and draw all reasonable inferences to uphold the challenged decision. (Id. at p. 1074; Akella, supra, 61 Cal.App.5th at p. 814.)
Finally, we review whether UCLA imposed an excessive penalty under the abuse of discretion standard. (UCSD, supra, 5 Cal.App.5th at p. 1106.) A university abuses its discretion in imposing a penalty for student misconduct only in exceptional cases" 'when it is shown that reasonable minds cannot differ on the propriety of the penalty.'" (Ibid.) We give deference to the university's expertise in determining the appropriate penalty to be imposed. (Hughes v. Board of Architectural Examiners (1998) 68 Cal.App.4th 685, 692.)
DISCUSSION
I. Was There Substantial Evidence Supporting UCLA's Finding that Doe Violated the Interim Exclusion?
The Interim Exclusion broadly barred Doe from "all events and activities supported by the Office of Fraternity and Sorority Life, and the corresponding councils and chapters," including but not limited to any events "hosted" by a chapter. There was substantial evidence supporting UCLA's finding that the Snoop Dogg concert was a UCLA ZBT event barred by the Interim Exclusion.
UCLA's Interfraternity Council heavily regulates fraternity events. The IFC Policy defines "event" to include "any functions sponsored" by a UCLA fraternity. The IFC Policy lists 13 examples of events, including two that apply in this case: (1) "If the function is announced in Chapter"; and (2) "If eight or more chapter members are involved."
Here, UCLA ZBT not only "announced" the Snoop Dogg concert; the chapter actively promoted it on its social media and by other means. Further, of the 140 members of the chapter, 4050 attended the concert as part of a contingent of about 150 UCLA students who took buses to the venue. There is thus substantial evidence the Snoop Dogg concert was a ZBT event.
There is also substantial evidence the concert was "hosted," "sponsored," and "supported" by ZBT. The fraternity provided important publicity for the event to UCLA students, a service GDM Live sought and could not perform itself. The event was called, "ZBT AP Presents: Snoop Dogg at the Belasco Theater." Further, ZBT's promotional materials stated that the fraternity "presents" the "Legend Snoop Dogg," making clear to UCLA students and the general public that this was a ZBT event.
Interpreting IFC Policy, Dean Goldstein, ZBT's then-advisor, instructed ZBT's president Jack V. to complete an Event Registration Form - Alcohol. To comply with IFC Policy, Jack V. indicated on the form that "unlimited" bottles of water and "non-salty" food-bread and chips-would be provided at the venue. Next to the signature line, it states: "By submitting this form, I am aware that the host chapter . . . is responsible for ensuring compliance with IFC/Panhellenic/GAMMA Policies."
Dean Goldstein testified at the administrative hearing: "Our thought, in conversations with the chapter at the time, was this is - you've now marketed this event out. You are now responsible also for what happens at this event and what's going on at this event, because when we look at our definition of terms, you're saying this is Alpha Roh chapter of Zeta Beta Tau is hosting Snoop Dogg. You're now sponsoring, in some sense, that event."
Prior to the hearing, Dean Crocker obtained documents from several witnesses who did not testify regarding the nature of the Snoop Dogg concert. Kevin A. Dougherty, Associate Dean of Students &Director-Fraternity &Sorority Life, and Jasmine Rush, Associate Dean of Students, Director-Office of Student Conduct, both stated in emails that the concert was "an official fraternity event." These emails were presented to the Student Conduct Committee.
To the extent there is any ambiguity in the IFC Policy, we may give weight to the expertise of UCLA's deans on the matter (Akella, supra, 61 Cal.App.5th at p. 816), though we need not do so to resolve Doe's contentions. With or without deference to the university's deans, there is substantial evidence that the Snoop Dogg concert was an event supported, hosted, and sponsored by the UCLA ZBT chapter. As it is undisputed that Doe attended this event, there is also substantial evidence that he violated the Interim Exclusion and Section 102.22 of the Student Conduct Code.
In his opening and reply briefs, Doe discusses at length evidence supporting his argument that the Snoop Dogg concert was not an event barred by the Interim Exclusion. For example, Doe points out that the concert was open to the public and ZBT did not sell tickets. He also makes inferences from the evidence in his favor. But as we have explained, we do not reweigh evidence and we must make all reasonable inferences in favor of UCLA. (UCSD, supra, 5 Cal.App.5th at pp. 1073-1074.) Applying the correct standard, we reject Doe's argument that there was insufficient evidence to support UCLA's decision.
II. Was UCLA's Decision Supported by Its Findings?
Section 1094.5, subdivision (b) requires that an administrative agency's decision be supported by "the findings." This means "the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.)
"Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein." (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954.) "The findings do not need to be extensive or detailed." (Environmental Protection Information Center v. California Dept. of Forestry &Fire Protection (2008) 44 Cal.4th 459, 516.)
"[W]here reference to the administrative record informs the parties and reviewing courts of the theory upon which an agency has arrived at its ultimate finding and decision it has long been recognized that the decision should be upheld if the agency 'in truth found those facts which as a matter of law are essential to sustain its . . . [decision].'" (McMillan v. American General Finance Corp. (1976) 60 Cal.App.3d 175, 184; accord Sierra Club v. California Coastal Com. (1993) 19 Cal.App.4th 547, 556.)" 'In addition, findings are to be liberally construed to support rather than defeat the decision under review.'" (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421.)
While conclusory findings are not enough, the agency's findings may" 'still be determined to be sufficient if a court has "no trouble under the circumstances discerning 'the analytic route the administrative agency traveled from evidence to action.' [Citations.]" [Citation.]'" (West Chandler Boulevard Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1521-1522.)
Doe argues UCLA's decision to dismiss him was not supported by its findings because the Student Conduct Committee did not expressly find that the Snoop Dogg concert was an "event" that was "supported" by ZBT within the meaning of the Interim Exclusion. We reject this argument.
Doe made this argument for the first time in his reply brief in the trial court. The trial court found that Doe "does not show good cause to raise this argument in reply." Regents does not argue that Doe forfeited this argument on appeal.
The Student Conduct Committee found that Doe, by a preponderance of the evidence, violated section 102.22, the provision in the Student Conduct Code that provides for disciplinary action against a student who fails to comply with an Interim Exclusion. In support of this conclusion, the committee's report reviewed the relevant language of the Interim Exclusion and the IFC Policy discussed above. The committee also quoted section 102.22 and stated it "referred" to the language of this section in determining whether Doe's "behavior constituted a violation."
The committee also summarized the evidence presented at the hearing, including the following: • Evidence that Doe attended the Snoop Dogg concert.
• Evidence of ZBT's promotion of the concert.
• Dean Goldstein's testimony regarding "the implications of advertising the event as an official UCLA ZBT event."
• Dean Dougherty's "email confirming that this was an official fraternity event."
• Jack V.'s testimony that he completed an event registration form and told Doe that he should not go to the event.
The committee report further stated: "[Jack V.] confirmed that [Doe] contacted him (in his role as the UCLA ZBT president) prior to [Doe's] attending the event. The Panel found this to be indicative that [Doe] knew that this event was affiliated with UCLA ZBT." The committee also found Doe "acknowledged that he was aware that he was prohibited from attending official fraternity events."
When construed liberally, collectively, and in context, the committee's report bridges the analytic gap between the evidence and UCLA's decision. We can readily discern the committee's analytic route to its conclusion. The committee found, in essence, that Doe's presence at the Snoop Dogg concert was a violation of the Interim Exclusion because it was a ZBT supported and hosted event. These findings support UCLA's decision to dismiss Doe.
III. Did UCLA Abuse Its Discretion by Imposing a Sanction of Dismissal?
Doe argues UCLA's decision to dismiss him from the university and the entire University of California was an abuse of discretion. He cannot, however, pursue this argument in court because he failed to exhaust his administrative remedies. (Grist Creek Aggregates, LLC v. Superior Court (2017) 12 Cal.App.5th 979, 991 [Before seeking relief under section 1094.5, "a party must exhaust available administrative remedies"].)
Doe was accused of violating the UCLA Student Conduct Code. The code sets forth detailed procedures for adjudicating allegations of student misconduct.
Under the Student Conduct Code, the Student Conduct Committee is required to submit a report to the Vice Chancellor of Student Affairs stating whether the student violated the code and, if so, a recommendation of the sanction that should be imposed. The committee is also required to send a copy of the report to the student, who then has five days to "submit a written response challenging the findings and recommendations included in the report." Upon the expiration of that deadline, the Vice Chancellor of Student Affairs decides whether to adopt or modify the findings and recommendations of the report.
Here, the Student Conduct Committee sent a copy of its report to Doe. The report stated the committee recommended Doe's dismissal. In its cover letter to Doe, the committee advised him he had five days to respond to its recommendations by writing to Vice Chancellor Gorden. The committee informed Doe he could challenge its recommended sanction if he believed it was "substantially disproportionate to the severity of the violation." Doe did not avail himself of this opportunity to ask for a more lenient punishment. By failing to do so, he failed to exhaust his administrative remedies.
Doe contends that if he argued to the Vice Chancellor that the sanctions were too severe, he would have been "required . . . to admit that there was a violation." There is no basis for this argument. Doe could have, as he does in this appeal, argued in the alternative: he did not violate the Student Conduct Code and, if he did, the punishment for his violation is too harsh.
Doe's failure to exhaust his administrative remedies with respect to the issue of the severity of the sanction is fatal to his argument. The court does not have jurisdiction to address the issue. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321.)
Doe's argument also fails on the merits. The severity of the punishment must be placed in context. Doe was accused of very serious misconduct-raping two UCLA students-at the UCLA ZBT residence. The Interim Exclusion served the very important purpose of keeping other students safe during UCLA's investigation. UCLA had a vital interest in enforcing the Interim Exclusion.
Moreover, Doe knew that ZBT was promoting the Snoop Dogg concert and, at the very least, his attendance at the event was a potential violation of the Interim Exclusion. Yet even after the president of his fraternity wisely counselled him to not attend the event, Doe went anyway.
When UCLA investigated Doe's potential violation of the Interim Exclusion, he did not take the matter seriously or show any insight into his wrongdoing or contrition for his misconduct. He did not even bother attending the hearing on the matter before a panel of the Student Conduct Committee.
Under these circumstances, we cannot find that this is an exceptional case when reasonable minds cannot differ on the propriety of the penalty. UCLA acted within its discretion in dismissing Doe.
IV. Did UCLA Violate Doe's First Amendment Rights?
Doe argues the application of the Interim Exclusion to the Snoop Dogg concert and the discipline imposed on him violates his rights to assembly and association protected by the First Amendment to the United States Constitution. This argument fails because Doe did not exhaust his administrative remedies.
The Student Conduct Code provides that a student can appeal an Interim Exclusion to the Dean of Students. The Dean of Students may investigate the matter, hold a hearing, and lift or modify the Interim Exclusion. In UCLA's notice to Doe of the Interim Exclusion, it advised him of his right to appeal the Interim Exclusion and how to do so. Doe did not appeal the Interim Exclusion or seek a modification of it.
The Student Conduct Code further provides that when a student is accused of violating an Interim Exclusion, the student "will have the opportunity to present documents and witnesses, and to address all information being presented in the hearing." In her letter notifying Doe of the hearing, Dean Crocker informed Doe of these and other rights. Despite this notice, Doe failed to appear at the hearing. Had he appeared, Doe could have made his First Amended argument.
Doe claims he raised his First Amendment claim in his correspondence with Dean Crocker prior to the hearing. He" 'bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.'" (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536.)
Doe did not meet his burden. In a belligerent email to Dean Crocker, Doe ambiguously asserted UCLA was stripping him of his "God given right to freedom." But Doe did not make a constitutional argument or even refer to the United States Constitution. This was not enough to preserve a First Amendment argument in court.
Doe argues he was excused from exhausting his administrative remedies because his "First Amendment challenge to the Interim Exclusion was outside the scope of the administrative procedure, and the Student Conduct Committee lacked the power to fashion an appropriate remedy." A similar argument was rejected in Tiernan v. Trustees of Cal. State University &Colleges (1982) 33 Cal.3d 211 (Tiernan).
In Tiernan, an employee of California State University, Northridge, argued the university infringed her First Amendment rights. (Tiernan, supra, 33 Cal.3d at p. 216.) The court held the employee could not pursue her First Amendment claim in court because she failed to exhaust her administrative remedies available under an executive order of the university chancellor. (Id. at p. 217.)
The Tiernan court reasoned: "Plaintiff has not demonstrated that the grievance procedure available to her was inadequate to resolve her First Amendment claim either because the grievance committee lacked the power to fashion an appropriate remedy or because this issue was beyond the scope of grievance resolution. Moreover, an independent review of the terms of the Executive Order discloses no reason to believe that the grievance procedure was not adequate to resolve this issue." (Tiernan, supra, 33 Cal.3d at p. 217.)
Likewise, in this case, Doe has not demonstrated he could not have raised his First Amendment argument in an appeal of the Interim Exclusion or at the hearing before the Student Conduct Committee. He has also not shown that, in response to his First Amendment argument, the Dean of Students lacked the power to modify the Exclusion Order or that the Student Conduct Committee could not have found in his favor. Moreover, after independently reviewing the procedures stated in the Student Conduct Code, we have no reason to believe Doe's First Amendment argument could not have been addressed by UCLA.
Doe contends he could not have raised his First Amendment argument in a response to the Student Conduct Committee's report because the Student Conduct Code limited such a response to three defined issues. While that may be true, it does not change our analysis because Doe could have made his First Amendment argument at or prior to the administrative hearing but failed to do so.
A student may respond to the report on three grounds: (1) the hearing was not conducted in accordance with the Student Conduct Code; (2) there is new information potentially sufficient to alter the findings that could not have been known by the student at the time of the hearing; or (3) the sanction is "substantially disproportionate to the severity of the violation .... "
Doe argues he did not fail to exhaust his administrative remedies because he was not required by the Student Conduct Code to attend the hearing. But a party seeking to sue an administrative agency must first exhaust all available administrative remedies, even if they are optional, before commencing an action in court. (Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 732-734; Morton v. Superior Court (1970) 9 Cal.App.3d 977, 982.)
Because Doe's First Amendment claim is barred for failure to exhaust administrative remedies, we do not reach the merits of Doe's First Amendment argument. Absent exceptional circumstances that do not exist here, we do not decide constitutional questions when other grounds are available to resolve the issues in the case. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 233.)
V. Did UCLA Abide by Its Own Policies and Procedures?
Doe contends UCLA violated its own policies and procedures in three ways. First, he argues the Interim Exclusion exceeded the scope permitted by the Student Conduct Code, which provides a student will be restricted "only to the minimum extent necessary." Doe cannot pursue this argument in court because he did not raise the issue at or prior to the administrative hearing and thus failed to exhaust his administrative remedies.
Doe's argument also fails on the merits. The Student Conduct Code provides that a student subject to an Interim Exclusion "be restricted only to the minimum extent necessary when there is reasonable cause to believe that the student's participation in University activities or presence at specified areas of the campus will lead to physical abuse, threats of violence, or conduct that threatens the health or safety of any person on University property or at official University functions." (Italics added.)
In the present case, Doe was accused of raping women, on two separate occasions, at his fraternity residence after fraternity events. UCLA had reasonable cause to believe Doe's participation in future fraternity or sorority events would pose a threat to the safety of others. Barring Doe from such events was consistent with UCLA's policy. Notably Doe was not barred from any academic endeavors or extracurricular activities unrelated to fraternities and sororities, and he had access to all other parts of the UCLA campus apart from fraternity or sorority residences.
Next, Doe contends the Interim Exclusion is void under the provisions of the Student Conduct Code because the Chancellor or his designee did not approve it within 24 hours. This argument, too, is barred because Doe failed to raise the issue during administrative proceedings at UCLA.
The Student Conduct Code provides: "Within twenty- four hours of the imposition of the Interim Exclusion, the Chancellor or her or his designee will review the information upon which the Interim Exclusion was based. If the Chancellor or designee does not affirm the Interim Exclusion within twenty-four hours of its imposition, the Interim Exclusion will be deemed void."
Moreover, Doe did not argue in the trial court that the Interim Exclusion was void due to the Chancellor's alleged failure to approve it within 24 hours. Doe thus forfeited the argument on appeal. (Doe v. Occidental College (2019) 40 Cal.App.5th 208, 225; USC, supra, 29 Cal.App.5th at p. 1230.)
In any case, there is nothing in the record indicating the Chancellor did not approve the Interim Exclusion within 24 hours of its issuance on May 8, 2017. Doe has the burden of proof on this issue. (Alford v. Pierno (1972) 27 Cal.App.3d 682, 691 [petitioner has burden of proof to show the proceedings were unfair or there was prejudicial abuse of discretion].)
Doe argues "it appears that the Chancellor did not approve the Interim Exclusion until May 11, 2017," citing an email of that date from Interim Title IX Coordinator Jessica Price to an unknown recipient. The email merely states that the Chancellor approved the Interim Exclusion "[t]his week." It does not state the precise date of approval or support Doe's contention that the Chancellor did not approve the Interim Exclusion within 24 hours. Doe does not meet his burden of showing the Interim Exclusion is void.
Finally, Doe argues UCLA violated its policy of providing him with a "prompt hearing," which is set forth in the Student Conduct Code. Doe did not make this argument to the trial court and thus forfeited the issue on appeal.
Doe also fails to make a persuasive argument on the merits. The hearing took place about a year after UCLA advised Doe of its investigation of his alleged violation of the Interim Exclusion. Doe provides no analysis of why the hearing was not "prompt" and cites no legal authority to support his position. He therefore fails to meet his burden of showing UCLA failed to comply with its policy of providing accused students with a prompt hearing.
Doe does not, moreover, demonstrate how any delay in the hearing was prejudicial. Even if UCLA did not provide a prompt hearing in violation of the Student Conduct Code, we would not reverse the judgment because there was no miscarriage of justice. (Cal. Const., art. VI, § 13 [judgment may not be set aside unless "the error complained of has resulted in a miscarriage of justice"]; Tran v. County of Los Angeles (2022) 74 Cal.App.5th 154, 172 [to prevail on a section 1094.5 petition, the petitioner must establish prejudicial error].)
DISPOSITION
The judgment is affirmed. Respondent Regents of the University of California is awarded its costs on appeal.
We concur: RUBIN, P.J., KIM, J.
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.