Where We Can Help: California Student Misconduct

Are you a student or the parent of student at a California school, college, or university facing a school-related issue or concern? Attorney Joseph D. Lento and the Lento Law Firm can help. The world of academia is unique, and the Lento Law Firm has unparalleled national experience bringing its problem-solving approach and fighting spirit to address school-related injustice. Attorney Lento and his Firm have helped countless students and families in California and across the United States at the school level and in court. Please click on the following links for more information. Please also see our expanded list of school practice areas.

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Joseph D. Lento has helped countless students and others in academia in California protect their academic and professional future, and he can do the same for you. Contact him today at 888-535-3686.

An Overview of California Student Discipline and Student Rights

California has more public universities and colleges than any other state in the U.S., with three major college systems. It's also home to some of the most well-known private colleges in America, such as Stanford, California Institute of Technology, and USC. But these large educational systems can seem impenetrable and overwhelming if a college accuses you of misconduct and puts its full administrative and legal weight against you. Fortunately, you do have rights, and your private or public college can't get away with simply kicking you out without allowing you a fair hearing. But you'll need an experienced student misconduct attorney-advisor by your side to make sure you get a fair shake.

Misconduct Allegations in California

While schools across California handle misconduct allegations differently, there are similarities concerning California's public colleges. There are 146 public colleges across California serving more than 2.2 million students. The state has three major public college systems:

University of California
California State University
California Community College

The three college systems in the state have similar conduct rules across their respective organizations, and all must follow California's laws that mandate due process and reporting. California also has about 200 private colleges (and many for-profit private academic institutions). While private schools may have to follow a niche set of rules, there are still ways that they must protect student rights during misconduct allegations.

But there are differences. That's where a professional attorney can help—making sure that you're able to work within the disciplinary system of your specific college.

California State University System

The California State University system is the second-largest public university system in California, with 23 campuses and eight off-campus centers enrolling more than 484,000 students. The California Master Plan for Higher Education created the Cal State system in 1960 as a descendant of the earlier California State Normal Schools.

The code of conduct for the California State University system comes from the California Code of Regulations, which delineates the “Standards for Student Conduct.” See 5 Cal. Code Reg. § 41301 (2021). Cal State's Standards for Student Conduct describe shared community values, grounds for discipline, application of the code to individuals, and how the Chancellor may adopt procedures for enforcing the code. The standards also “ensure students are afforded appropriate notice and an opportunity to be heard before the University imposes any sanction for a violation of the Student Conduct Code.” However, the procedures themselves do vary somewhat from school to school, and each school varies in how much information they provide to students on their websites.

1. Grounds for Discipline at Cal State

Grounds for discipline in the Cal State system include:

Dishonesty, including academic dishonesty, furnishing false information to a university employee, forgery or alteration of a university document, and misrepresenting oneself as a university representative.
Unauthorized entry or use of university property.
Willful or substantial disruption or interruption of campus activity.
Participating in an activity that disrupts a university activity or impinges on the school community's rights.
Obstruction of the free flow of traffic to or from a university activity or campus.
Disorderly, lewd, or indecent activity at a university activity or directed at a school community member.
Conduct that threatens or endangers someone in or related to the school community, including physical abuse, threats, intimidation, harassment, or sexual misconduct.
Hazing or conspiracy to haze, even with express or implied consent.
Use, possession, manufacture, or distribution of alcohol except as expressly allowed by law and the school, including intoxication on campus or at a school event.
Theft of University property or services or misappropriation of university resources.
Unauthorized destruction or damage to university property or property in the school community.
Possession or misuse of firearms, or guns, replicas, ammunition, explosives, fireworks, knives, other weapons, or dangerous chemicals (without the prior authorization of the campus president) on campus or at a school-related activity.
Unauthorized recording, dissemination, or publication of academic presentations, including handwritten notes, for a commercial purpose.
Misuse of computer facilities or resources, including:
Violating any school policy, rule, regulation, or presidential order.
Failing to comply with directions, or interference with, any University official or any public safety officer while acting in the performance of their duties.
Any act chargeable as a violation of a federal, state, or local law that poses a substantial threat to the safety or well-being of members of the school community, property within the community or poses a significant threat of disruption or interference with school operations.
Violation of the student conduct procedures, including interfering with a student discipline matter, initiating one in bad faith, or failure to comply with the sanctions.
Encouraging, permitting, or assisting another to do any act that could subject them to discipline.

All Cal State schools use a formal hearing procedure with a “hearing officer” for disciplinary actions that could result in dismissal from school. But each school also has a separate formal procedure for disciplinary matters that fall under federal Title IX laws and regulations, which includes sexual misconduct and harassment. Cal State uses the “preponderance of the evidence” standard in determining the accused's guilt, which means that it is the university's burden to show that the student is more likely than not guilty of the accused misconduct. See, e.g., Cal. State Univ. EO 1098 (2020).

2. Possible Sanctions at Cal State

The sanctions possible for violating the student conduct code, including Title IX violations, include:

Restitution
Loss of financial aid
Educational and remedial sanctions
Denial of access to campus or persons
Disciplinary probation
Suspension
Expulsion
Administrative hold and withholding of a degree

University of California System

The University of California system has ten campuses that serve more than 280,000 students across the state. A public trust in the California Constitution created the university system, which is self-governing, with policies set by the Regents of the University of California. Under the California Constitution, the regents are:

[S]ubject only to such legislative control as may be necessary to insure the security of its funds and compliance with the terms of the endowments of the university and such competitive bidding procedures as may be made applicable to the university by statute for the letting of construction contracts, sales of real property, and purchasing of materials, goods, and services.

Cal. Const. Art IX, § 9(a). At UC, the Academic and Student Affairs Committee of the Board of Regents determine student conduct policies. The UC system also has an organization-wide Title IX office to handle support for each UC campus concerning sexual harassment and misconduct complaints and investigations.

1. UC Disciplinary Procedures

Each UC school has a similar but slightly different set of disciplinary procedures. They involve:

Referral to the Reviewing Appointed Member: When a student receives notice of their disciplinary referral, they will report to the school's appointed disciplinary review member.
Appointed Member Review: If the student admits guilt, the reviewing member can determine the sanction. If the student doesn't admit guilt, but there is “sufficient evidence,” the reviewing member refers the case to the student conduct committee or similar hearing board. If the student doesn't admit guilt and there isn't “sufficient evidence,” the reviewer can dismiss the complaint.
Sanction or Dismissal: If the reviewer's sanction is suspension or dismissal, the student can appeal. Otherwise, the sanction is final.
Student Conduct Committee: After a hearing, the conduct committee sends their decision to the vice-chancellor regarding the student's guilt and sanction.
Appeal to the Vice-Chancellor: The student may submit a statement to the vice-chancellor, but this determination is final.

UCLA even has a flow chart that demonstrates the process, and the appointed member to review is the Dean. UC Berkeley has a similar but slightly different flow chart and procedure with a “student conduct staff member” rather than a determination by the Dean. UC Davis uses a “judicial officer” from the Office of Student Support and Judicial Affairs.

2. UC Title IX

The UC system also has a separate set of uniform procedures for Title IX violations in all UC schools.

California Community College System

The California Community College System consists of 73 community college districts with 115 accredited colleges serving more than 2.1 million students. It is the largest system of higher education in the entire U.S. The California Master Plan for Higher Education created the community college system with a board of governors and an executive officer.

1. CCC Disciplinary Procedures

Like the other two major California college systems, the community colleges all have similar yet slightly different disciplinary procedures. The procedures are also quite similar to those of the UC and CSU systems, including a:

Complaint: A complaint goes to a designated administrator. At LA Community College, this is the Chief Student Services Officer.
Review: A dean or designated administrator reviews the matter and attempts to resolve it informally or recommends sanctions.
Sanctions: The designated reviewer has the authority to issue a formal sanction for a warning, reprimand, disciplinary probation, restitution, and a suspension for ten days or less. If the recommended sanction is more severe, the student can request a hearing.
Hearing: After a hearing, the hearing committee forwards its determination of guilt and sanctions to the college president.
President Determination: If the student doesn't request a hearing, the president can make a final determination of a sanction on the recommendation of the designated reviewer. If the sanction is expulsion, the decision goes to the vice-chancellor of the college.
Appeal: A student can appeal a sanction to the board of trustees by filing an appeal with the college's Chancellor.

2. CCC Possible Sanctions

Possible sanctions for disciplinary violations include:

Warning
Written reprimand
Restitution
Disciplinary probation
Removal by instructor
Immediate suspension, suspension, or suspension subject to reconsideration
Suspension of financial aid
Expulsion and expulsion subject to reconsideration

As with the UC and CSU systems, the California Community Colleges all follow the same general Title IX investigation and complaint procedures.

Private Schools in California and Misconduct Processes

In 2009, California established the Bureau for Private Postsecondary Education—an entity that's in charge of making sure that private institutions of higher education have good business and education practices. While each private school in California has its own code of conduct and due process standards, the Bureau can provide additional recourse for resolving student complaints. California Legislature also has language that guides private colleges as they manage financial aid (AB-1118 Postsecondary education: institutional financial aid), oversight of their facilities (AB-635 Postsecondary education: California Educational Facilities Authority), and more. This means that if you run into difficulties with your private school, you may be able to find a legal basis to pursue a favorable outcome should your situation require it.

Title IX Misconduct Accusations in California and the 9th Circuit

Allegations against students related to sexual harassment or misconduct fall under Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq. Title IX allegations are usually subject to clearer and more stringent due process rules because of the serious nature of the allegations and because federal regulations provide more direction for colleges and universities. Additionally, because issues surrounding sexual misconduct disciplinary matters are highly litigated, we have a wide range of case law interpreting both the federal law and its regulations.

What is Title IX?

Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., is a federal civil rights law prohibiting discrimination based on sex in federally funded schools. Title IX applies to most private and public K through 12 schools, and most private, public, and state colleges and universities. This includes the UC, CSU, and CCC systems, as well as well-known private institutions such as Stanford and USC. Title IX states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Federally funded schools in California must protect against discrimination in college admissions, athletics, employment, and financial aid. Sexual harassment and assault are also violations of Title IX. If a college knows about an assault on campus or at a school event, it must investigate and remediate even if no student makes a complaint. For sexual harassment allegations, a school “may address sexual harassment affecting its students or employees that falls outside Title IX's jurisdiction in any manner the school chooses” under Title IX regulations. As a result, Title IX mandates that colleges perform a broad quasi-judiciary and investigative role for some of the most serious allegations of campus misconduct.

Title IX Regulations

Title IX regulations dictate the minimum due process colleges and universities must give students in sexual harassment and misconduct matters. These due process procedures include:

Written notice of the allegations containing sufficient detail, including the names of the other parties, the alleged conduct, the sections of the student conduct code allegedly violated, and the date and time of the incident,
Receiving notice with adequate time to prepare before a hearing,
An unbiased and trained tribunal,
The ability to introduce evidence and witnesses,
The ability to cross-examine witnesses, including the complainant or respondent,
The right to consult an attorney or advisor,
An application of the correct standard of proof,
Disclosure of all evidence against the respondent,
The right to inspect and review the evidence,
The right to discuss the allegations and to contact potential witnesses,
The procedures given to either party must be available to both parties. These procedures include cross-examination, a right to submit questions to be asked of witnesses, and the right to have an attorney or advisor,
Having an advisor or attorney cross-examine witnesses, including the respondent or complainant,
The right to receive a written investigative report at least ten days before any hearing, and
Provide both parties written findings of fact and conclusions of law, and a rationale for the results and the suggested sanctions or remedies.

Schools can also use informal hearings or other resolutions. But both parties must consent in writing. However, Title IX regulations don't require informal procedures.

Schools can use one of two standards of proof under Title IX:

The “preponderance of the evidence” standard means that it's more likely than not that the accused committed the infraction.
The “clear and convincing evidence” standard, which is more stringent than the preponderance of the evidence but less stringent than “beyond a reasonable doubt.

However, colleges must use the same standard for all students and employees, including faculty. 34 C.F.R. §106.45(b)(1)(vii); §106.45(b)(7)(i). All California colleges and universities use the lower “preponderance of the evidence” standard in Title IX cases.

Title IX Hearing Procedures

All three California state college systems delineate separate procedures for Title IX allegations, hearings, and sanctions. Most private colleges in California have similar dual-policy systems. While Title IX hearings are more formal than many disciplinary hearings, they do not include formal rules of evidence used in a courtroom setting from the California Evidence Rules. While the parties are entitled to ask questions and cross-examine the witnesses, they must submit written questions to the hearing officer who will ask the questions. However, the students may waive this and permit direct questioning.

The hearing officer then prepares a written report for the university president with a recommended course of action and any sanctions. The report can only include information from the investigative report and the hearing. The president then reviews the report and determines the final sanction.

The parties can appeal the decision to the Chancellor within ten working days. The Chancellor's review is limited to the record at the hearing and determining whether the sanction is reasonable considering the facts and circumstances as determined by the investigation and hearing and whether any prejudicial errors happened during the hearing.

Federal Courts of Appeals Differ in Interpreting Title IX

For Title IX disputes, federal law and regulations apply, and federal courts address disputes that escalate to litigation. However, state courts and the eleven U.S. Circuit Courts of Appeals, which hear appeals from federal district courts, often differed in their interpretation of federal Title IX laws and regulations. For many issues arising under Title IX law, the various circuits across the U.S. hold schools within their areas to different standards.

1. Differing Due Process Standards

One example of differing standards involves the due process schools must give students during Title IX hearings. The UC system did not allow respondents to cross-examine witnesses during the hearing. California's law regarding cross-examination of witnesses got a fast update because of litigation involving a University of Southern California football player accused of violence against his girlfriend, despite her insistence that there was no abuse, and someone simply witnessed a playful interaction.

The two students involved, Boermeester and Katz, both vehemently denied the allegation of abuse, responding that they were joking around and throwing french fries at one another. A bystander told a staff member about the interaction, and the staff member filed a complaint. Katz did not file a complaint, and Boermeester never faced a criminal investigation. After the school's Title IX investigation, USC expelled Boermeester, who then filed suit against USC. The superior court of Los Angeles County denied his petition to set aside the expulsion.

The California Court of Appeals overturned the superior court's decision. The court held that USC's disciplinary procedures “were unfair because they denied Boermeester a meaningful opportunity to cross-examine critical witnesses at an in-person hearing.” Those limitations prevented him from “fully presenting his defense, which was that the eyewitnesses misunderstood what happened between him and [his girlfriend] on January 21, 2017.” The court of appeals remanded the case to the superior court with instructions to allow Boermeester to “directly or indirectly cross-examine witnesses at an in-person hearing.” Boermeester v. Carry, 2020 BL 199382, Cal. Ct. App., 2d Dist., No. B290675, 5/28/20.

The Boermeester ruling regarding Title IX due process came out just as the U.S. Department of Education promulgated sweeping new rules governing college Title IX investigations. The regulations now require that colleges and universities follow a judicial process allowing the accused the right to cross-examine witnesses, including their accusers. As a result, all colleges nationwide must provide accused students with more due process.

2. Differing Standards of Institutional Liability

Another example arose from a 6th Circuit Court of Appeals case regarding a private cause of action against Michigan State University regarding student-on-student sexual harassment, which the plaintiff alleged the school did nothing to remedy. The 6th Circuit ruled that a student complainant must show that a college had actual knowledge of sexual harassment and that a school's deliberate indifference resulted in further actionable harassment under Title IX.

At this point, Title IX required schools to investigate and remediate sexual harassment if they knew or should have known of the harassment. But in a deliberate indifference lawsuit, the plaintiff only had to show that the school's failure to act made future harassment more likely. In the Michigan State case, the 6th Circuit required more tangible proof of harm.

While federal regulations have cleared up issues concerning conflicting student's due process rights in some areas, regulations don't directly address all disciplinary issues. Courts will continue to interpret the grey areas surrounding Title IX in different ways until the U.S. Supreme Court, Congress, or additional Title IX regulations decide these issues.

How Do Due Process Rights Apply to California Schools?

Aside from Title IX claims, students still have broader due process rights that apply to all student disciplinary matters. A disciplinary allegation that can result in suspension or expulsion should entitle a student to more due process than, say, a minor matter resulting in only a written warning. But schools across the country and California will differ on how much due process is necessary and when.

Due Process Origins

Due process rights come from the idea that a school is taking something important from you, including a right or a property interest. Students have both substantive and procedural due process rights, but these issues arise in many ways. Procedural due process involves the steps a school takes to remove a right. Substantive due process prevents government actors, like California public colleges, from interfering with a fundamental or constitutional right. On-campus, free speech restrictions, discrimination based on membership in a protected class such as race, gender, or religion, and removing a property right like your education all raise due process concerns.

Many colleges and universities, including those in California, argue that the disciplinary process is an educational correction rather than a punitive action. This argument is often an attempt to avoid allowing students procedural due process rights during disciplinary matters. However, the law is clear – students have a right to due process protections at college whenever they have a property interest or a right or liberty interest at stake.

1. Property Interests

Your education is a property interest that you have. A degree you've earned and the progress you've made towards your degree all have significant value to you. Losing a degree or hours of school credits isn't as serious as going to jail, but it has a significant impact on a student's life and long-term earning potential.

If a California public college wants to suspend or expel a student, they can't simply take away a student's property interest in their education arbitrarily. The student is entitled to due process. However, the level of due process depends due a student depends on the severity of the sanction. The greater the sanction, the more due process a California school must give the student.

2. Liberty Interests

According to the U.S. Supreme Court, a disciplinary proceeding also implicates a liberty interest “[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him….” Wisconsin v. Constantineau 400 U.S. 433, 437 (1971). If a disciplinary proceeding harms a student's reputation and threatens their education, this is enough to involve a liberty and a property interest, requiring due process.

Free speech is also a liberty interest and many state constitutions, including California's, give its citizens an affirmative right to free speech. While these provisions protect free speech on state campuses, the courts sometimes rule that blanket free speech restrictions at private schools are also improper. Many states, including California, now specifically protect speech on college campuses, although some limit those protections to public colleges and universities.

In 2019, President Trump signed an executive order to protect free speech on college campuses by ordering all federally funded institutions, including private schools receiving federal money, to comply with federal laws protecting speech. After that, the Department of Education published new proposed regulations addressing free speech in January of 2020.

California also has one of the most sweeping laws protecting speech on private school campuses. The Leonard Law expressly applies some First Amendment protections to all private schools in the state:

A school district operating one or more high schools, a charter school, or a private secondary school shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.

Cal. Educ. Code § 48950 (2011). But the statute doesn't apply to religious schools “to the extent that the application of this section would not be consistent with the religious tenets of the organization.”

Court Litigation Against California Colleges

If it's necessary to take a conflict over alleged misconduct with your California school to court, there are several basic legal grounds for doing so. You may be able to make arguments under Title IX, breach of contract, violation of your due process rights, and by challenging a state action.

Steps to Consider Taking Prior to Pursuing Litigation Against Your School

Prior to suing your school, it's a good idea to exhaust all other avenues of recourse. This will show courts that you've done everything in your power to achieve the end that you want, and that litigation truly is your last option.

Your attorney-advisor will help you determine what you need to do, but it's likely a good strategy to consider the following actions:

Going through your school's due process and appeals procedures
Filing a complaint with the California Bureau for Private Postsecondary Education or the California Department of Education
Consulting with a California student defense lawyer to see what basis you may have for a court case. Common rationales for litigation include the following:

Title IX Court Litigation

You may have a valid claim against a school based on Title IX if:

You can prove the outcome was wrong and show actual evidence of gender bias in the decision, or
You can show statements by the school demonstrating gender bias.

If your claim is successful, you may be able to recover attorney's fees.

Breach of Contract Claims

Another option for a claim against a college is a breach of contract claim, arguing that the school breached a contract established by the student handbook, code of conduct, and other written documents establishing disciplinary procedures and school responsibilities. For example, California courts have held state schools liable for breach of contract for violating language or promises in student handbooks. See Kashmiri v. Regents of University of California, 67 Cal. Rptr. 3d 635 (Cal. Ct. App. 2007).

Due Process Violations

As we discussed above, if a state school takes a property or liberty interest related to your education from you, they must give you due process. These due process rights can vary based on whether your claim involves a Title IX case or another type of student disciplinary case. But generally, you're entitled to notice of the charges. The notice should be specific enough to defend against the charges, and you must have the chance to plead your case before a neutral arbiter.

Administrative Mandamus

California state schools are effectively agents of the state government. In California and many other states, you can challenge some decisions of the state through a writ of administrative mandamus. The writ is a request to a superior court to reverse a decision of a state administrative agency because it wasn't “supported by the evidence.” The court can inquire whether:

The state acted in excess of its jurisdiction,
There was a fair trial, and
There was any prejudicial abuse of discretion.

See Cal. Code of Civ. Pro. (CCP) § 1094.5 (2006). In some cases, you may even use administrative mandamus to challenge a decision from a private college if you meet the requirements for the writ.

Statute of Limitations

While litigation claims against colleges and universities nationwide will be quite similar, each state has its own statute of limitations, after which the courts bar you from bringing a claim. California's statute of limitations for the possible claims include:

Breach of Contract: For a written contract in California, the statute of limitations is four years from the breach.
Due Process Violations: The statute of limitations for due process violations can also vary based on the state or federal statutes involved and whether you file a state or federal claim.
Administrative Mandamus: The statute of limitations for a writ of mandamus can vary widely, from 15 days to four years, depending on the action challenged.

Because the statutes of limitations can vary so widely, it's best to consult an experienced student discipline attorney as soon as possible to preserve any possible claims.

Hire an Experienced Student Discipline Attorney-Advisor

When you're looking for an attorney-advisor to represent you in a student discipline case, the most important factor will be the breadth of experience and skill that your advisor has. You need an attorney-advisor with years of experience handling a wide range of student discipline matters, as well as someone with advanced negotiation skills.

Attorney Joseph D. Lento and the Lento Law Firm have unparalleled experience as attorney-advisors negotiating with, and when necessary, litigating against hundreds of colleges and universities nationwide. If there is a possible issue or concern affecting a student at a college or university, he's already seen it and resolved it. He can help you. Call today at 888.535.3686 or reach out to us online.