Ayach v. Univ. of Cal.

321 Cal.Rptr.3d 428

Chad AYACH, et al., Plaintiffs and Appellants,

v.The REGENTS OF the UNIVERSITY OF CALIFORNIA, et al., Defendants and Respondents.

B325545

Court of Appeal, Second District, Division 1.

Filed April 30, 2024

APPEAL from an order of the Superior Court of Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed. (Los Angeles County Super. Ct. No. 21STCP01434)

David Romley for Plaintiffs and Appellants.

Venable and Jean-Paul P. Cart for Defendants and Respondents.

ROTHSCHILD, P. J.

Appellants Chad Ayach and Joseph Nofal appeal from the denial of a petition for writ of administrative mandate challenging their expulsions from the University of California Riverside (UC Riverside or the University).¹ Nofal and Ayach contend that the University’s administrative hearings leading to their expulsions did not afford them due process because (1) the charging documents and evidence presented used pseudonyms to identify witnesses who provided statements to university investigators, and (2) Nofal and Ayach were purportedly denied the opportunity to confront or cross-examine these witnesses at the hearing. Due process in the context of university disciplinary proceedings is a flexible concept that depends on the specific circumstances and charges at issue in each particular case. We conclude that the challenged administrative proceedings afforded Nofal and Ayach the process they were due, given the nature of the charges and their response. Accordingly, we affirm the judgment denying the petition.

FACTS AND PROCEEDINGS BELOW

A. UC Riverside’s Initial Investigation of Phi Gamma Delta

In early 2019, UC Riverside’s Student Conduct and Academic Integrity Programs office (SCAIP) received a report expressing concern for the health of a member of the Phi Gamma Delta fraternity (PGD) pledge class at UC Riverside. SCAIP began an investigation into the PGD pledge process. During the time period relevant to the disciplinary investigation, Nofal was PGD’s UC Riverside chapter president, and Ayach was the "disciplinarian" for the chapter’s pledge campaign. (Capitalization omitted.)

SCAIP’s investigator conducted interviews of most of PGD’s 2018 and 2019 pledges. During these interviews, the pledges stated that: (1) As part of the pledge process, pledges were forced to complete workouts as "punishments"; (2) at least one such workout took place outdoors at night for several hours; (3) PGD had a practice of taking away "pledge pins," which in one instance led to an altercation in which a pledge used a projectile stun gun on a PGD member ("tasing" the member); (4) PGD had a "check" system that required pledges to complete household tasks and chores for the members to work off their "checks"; (5) PGD would question pledges in an "intense" setting as part of the pledge process; (6) pledges were required to wear "feminine" clothing to a party; and (7) PGD performed a "date auction" where pledges were "sold" to bidders.

B. Initial Notices to Nofal and Ayach of UC Riverside Administrative Review Meeting

In April 2019, SCAIP sent Nofal and Ayach "notice[s] to schedule and appear for an administrative review meeting." (Capitalization omitted.) These notices informed Nofal and Ayach that SCAIP had "received a detailed description of the components of [PGD’s] pledge process, including many activities appearing to meet [UC Riverside] definitions of hazing," namely kidnapping, tasing, sale of pledges at a date auction, physical workouts, assignment of chores, exposure to the elements, sleep deprivation, heavy alcohol consumption, and coordinated dishonesty. The notices also identified the sections of the "University[’s] Policies Applying to Campus Activities, Organizations, and Students—100.00 Policy on Student Conduct and Discipline" (the student conduct policy) SCAIP was concerned the pledge process had violated.² The notices informed Nofal and Ayach that "an administrative review process [had] begun," which process presented them an "opportunity to provide information which clarifies your involvement or contributes to SCAIP’s resolution of the situation." (Capitalization omitted.) The notices requested Nofal and Ayach schedule an administrative review within a certain time frame.

C. Nofal's Statements to the SCAIP Investigator

Nofal met with the SCAIP investigator on May 7, 2019 and denied that the conduct described in the notice had occurred as part of the PGD pledge process or that PGD would have condoned such conduct. Nofal further denied that PGD had a "disciplinarian" for its pledge process. (Capitalization omitted.) After statements of "Student A"—the student whose wellness check had triggered the investigation—were read aloud to Nofal, Nofal stated he knew who Student A was.

Less than two weeks later, on May 17, 2019, Nofal told the SCAIP investigator that many of the allegations in the notice were true, defending some of them as part of "40 years of traditions." Specifically, Nofal admitted (1) there was a process of taking away "pledge pins" and retrieving them by kidnapping and "exchang[ing]" a PGD member for the pin, (2) that in one instance, this led to a tasing incident during what was described by others as a mock kidnapping, (3) the existence of the date auction, (4) that pledges were forced to perform physical workouts, and (5) that PGD had a "check" system whereby pledges could "work off checks by helping active members with certain tasks." More specifically, Nofal admitted that in one instance, a pledge brought a taser to the "exchange" of a member for a pledge pin, and tased one of the members, whom Nofal identified by name and claimed to have spoken with about the incident. Nofal stated he was aware that it was PGD’s practice to have pledges do pushups and planks us part of the pledge process, but first claimed he was not present for this, then said he "thought they’d gotten rid of it." Nofal indicated the "pledge educator" was the individual in charge of this, and that Nofal would speak to him about it. Despite having initially denied there was a "disciplinarian" in the pledge process, Nofal acknowledged that there was, and that Ayach played this role, pursuant to which Ayach was responsible for tracking pledge checks and their work to clear them.

Nofal continued to deny that alcohol was part of PGD’s pledge process, but acknowledged that the PGD pledge tradition of a "big brother" taking on a "little brother"—also referred to as a "big/little [brother] reveal"—involved an alcohol drinking competition.

D. Ayach’s Written Statement

Ayach submitted a written statement to SCAIP during the investigation and administrative review process. In his statement, Ayach confirmed Nofal’s account that a pledge had tased a member during a pledge pin-member "exchange." Ayach stated a date auction took place as part of the pledge process, but that it was not mandatory for pledges. He likewise confirmed that pledges were required to perform workouts, and that when pledges received "checks," they could work them off by helping members in "clean[ing] up after events, or help[ing] them clean their house." Ayach generally denied alcohol consumption was part of the hazing process, but stated that PGD has "one official chapter event where the pledges are invited to drink an Irish car bomb"—a combination of beer and liquor—with their "big brother."

E. Additional SCAIP Investigation Interviews of Note

On May 24, 2019, SCAIP’s investigator interviewed a PGD member who identified himself as the PGD president immediately prior to Nofal. He stated that pledges were required to do physical workouts, including as punishment, and that the role of the disciplinarian is to oversee some workouts. With respect to the "check" process, he likewise confirmed that pledges are assigned duties to work off their checks, such as "[w]ashing dishes [or] mopping floors." Like Ayach, he explained that a big brother-little brother "tradition" involved the two individuals drinking "Irish car bombs," adding that "they chug to see who does it the quickest."

On June 3, 2019, SCAIP’s investigator interviewed a PGD pledge from the relevant time period. He confirmed that the tasing incident took place during a mock "kidnapping" to retrieve pledge pins. He also confirmed that pledges were required to do physical workouts, and described a two to three-hour workout one night.

F. UC Riverside Hearings Regarding Ayach and Nofal

On June 18, 2019, SCAIP sent Ayach and Nofal notices that their respective cases had been referred to the student conduct committee (the committee) for a hearing. In these and subsequent notices SCAIP sent in September 2019, the University provided additional details about the investigation. They noted that SCAIP had received reports that a student’s "participat[ion] in hazing activities with [PGD] … contributed to a welfare check of the student." " [P]rofessional staff members [had] interviewed both the fall 2018 and winter 2019 [PGD] pledge classes" and believed "most of the pledges were generally dishonest within these interviews, which some students later attributed to following directions from their advisors." (Capitalization omitted.) The notices further identified "some helpful information" about the PGD pledge process nevertheless collected from these interviews, namely: "the role of a disciplinarian within the pledge process"; "the completion of workouts identified as ‘punishment’ by several pledges"; "a description of an outdoor workout which lasted several hours at night"; "a situation in which pledge pins were taken away from the fall pledge class and ultimately resulted in the tasing of an active member"; "a check system in which checks could be forgiven through completion of household tasks"; "quizzes conducted in an environment which was described as ‘intense’ "; "requirement of the fall pledge class to wear ‘feminine’ outfits at a party"; and "a date auction." (Capitalization omitted.) The notices advised that, based on this...