Balakrishnan v. Univ. of Cal.

317 Cal.Rptr.3d 863

Gopal BALAKRISHNAN, Plaintiff and Appellant,

v.The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Respondent.

A164480

Court of Appeal, First District, Division 5.

Filed February 1, 2024

Trial Court: Superior Court of the County of Alameda, Trial Judge: Paul Herbert (Alameda County Super. Ct. No. RG19018682)

Hathaway Parker, Mark M. Hathaway and Jenna E. Parker, for Plaintiff and Appellant.

University of California Office of the General Counsel and Katharine Essick; Munger, Tolles & Olson, Hailyn J. Chen, Los Angeles, and Rebecca L. Sciarrino, for Defendant and Respondent.

Jackson, P. J.

This appeal addresses the authority of a public university to discipline a faculty member for certain off-campus behavior. We conclude the University of California, Santa Cruz (University or UCSC), could permissibly find, based on the plain language of its internal policies, rules and regulations, that a tenured professor could be dismissed and denied emeritus status for sexually abusing (1) a fellow academic at an event held in connection with an off- campus academic conference and (2) a UCSC student whom he volunteered to walk home from an off-campus graduation party, two days after she walked in her graduation ceremony.

Plaintiff, Dr. Gopal Balakrishnan, a former tenured UCSC professor, appeals from a judgment denying his petition for a writ of administrative mandate under Code of Civil Procedure section 1094.5¹ to set aside the findings and decision of defendant, The Regents of the University of California (Regents), to terminate his employment and deny him emeritus status. In so doing, plaintiff does not dispute the University’s evidentiary finding that he sexually abused two women. Rather, he contends: (1) the University lacked jurisdiction to discipline him because the victims did not qualify as University students, (2) the University misinterpreted and misapplied its own regulations and policies, (3) he did not receive notice of all charges, and (4) the sanctions were excessive.

We reject these contentions and affirm the trial court’s judgment to deny his writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff attended Cornell University. He earned a Ph.D. from the University of California, Los Angeles, and, in 2000, published a well-received scholarly book entitled The Enemy: An Intellectual Portrait of Carl Schmitt. In 2006, after holding several teaching positions at higher learning institutions in the United States and abroad, plaintiff became an associate professor in UCSC’s History of Consciousness Department. In 2015, he was promoted to tenured professor.

In 2017, an anonymous letter was published online, accusing plaintiff of engaging in a pattern of sexual intimidation, harassment, and assault against young women and gender nonconforming people during his time as a UCSC professor. The letter contained seven anonymous firsthand accounts of plaintiff’s alleged abuse and called on the University to act. Over 150 people signed this letter to show their support.

Plaintiff publicly denied the accusations in the anonymous letter and blamed " ‘the current context of national indignation around the issue of sexual harassment …." In response, the University issued a statement that it was aware of the letter and asked individuals with relevant information to contact the Title IX office to assist its investigation.²

The University received multiple complaints about plaintiff’s conduct. One of the more serious complaints, involving Jane Doe, an academic, came in anonymously. Since Doe did not wish to participate in a formal investigation, the Title IX office relied on information she gave to a news Web site to identify an eyewitness who was willing to speak. The Title IX office also decided to investigate complaints from three other individuals: Brian G., Anneliese H. and Patrick M.

On February 7, 2018, Executive Vice- Chancellor (EVC) Marlene Tromp notified plaintiff that a single investigation of all four complaints would go forward under the Title IX office’s supervision. The Title IX office thereafter engaged an outside investigator to conduct the investigation and draft an investigative report, a process that took over six months.³

I. The Allegations and Investigative Findings.

A. Jane Doe.

Jane Doe, a poet and academic from the East Coast, met plaintiff when she traveled to Berkeley in 2013 to attend the three-day East Bay Poetry Summit (Poetry Summit), which plaintiff also attended. Doe, along with a friend and professor (Witness 1), were invited to stay overnight at the home of the professor who was hosting the Poetry Summit. One evening, after the Poetry Summit ended for the day, the professor held a party for attendees at her home. It was a festive affair. At some point, Doe and plaintiff were observed kissing. After midnight, however, Doe and Witness 1 retired for the evening to the study where they were sharing a bed. A short while later, Doe woke up to find plaintiff in the study, drunkenly trying to get in bed and asking to have sex with her. She told plaintiff that she was not interested in sexual activity and " ‘shooed’ " him from the room. Nonetheless, around 2:00 a.m., Doe woke up again to find plaintiff naked and "loom[ing] over her while she lay in bed." Plaintiff climbed into bed, and Doe could feel his penis poking into her side. Doe and Witness 1 forced plaintiff from the room and, this time, barricaded the door with furniture so he could not return.

After completing the Doe investigation, the investigator found plaintiff engaged in "unwelcome physical conduct of a sexual nature which is conduct that falls squarely within the definition of prohibited conduct under the University of California Policy on Sexual Harassment dated February 10, 2006, the policy in effect at the time of the incident." However, the investigator could not substantiate a violation of this policy because it only applied to " ‘member[s] of the University community.’ "

B. Anneliese H.

Anneliese H. walked in her UCSC class graduation on June 16, 2013. Days later, on June 18, 2013, Anneliese attended a graduation party at the off-campus apartment of her friend and neighbor, who was a UCSC student (Friend 1). There, she met plaintiff for the first time without realizing he was a professor. Friend 1 had audited one of plaintiff’s classes and invited him to the party in an effort to obtain his mentorship. As the evening progressed, plaintiff danced and flirted with both Anneliese and Friend 1. Anneliese, who was quite intoxicated, began to feel nauseous and " ‘on the verge of blacking out or browning out.’ " Plaintiff offered to walk her home. Anneliese agreed and, after arriving at her home, she invited him inside. Plaintiff initiated sexual activity, but Anneliese insisted she only wanted to talk to him. Although Anneliese acknowledged experiencing memory lapses after arriving home, she recalled being undressed in bed and kissing plaintiff. Then, after another memory lapse, she " ‘came to,’ " to find plaintiff on top of her, performing oral sex. Anneliese repeatedly told plaintiff, " ‘You need to leave,’ " and, " ‘I do not want to have sex with you,’ " yet he persisted. Plaintiff told Anneliese that he wanted to have anal sex with her. Anneliese was scared, as plaintiff was bigger and stronger than her. Finally, after Anneliese pushed him away several times, plaintiff got up and left.

The next day, Anneliese woke up devastated by what happened with plaintiff. Anneliese’s friend (Friend 2), also a UCSC student, went to Anneliese’s home, and they discussed the incident. When Friend 2 told Anneliese that plaintiff may have been a professor, she was " ‘traumatized.’ "

About a week later, Anneliese told Friend 1 what happened with plaintiff. Friend 1 then shared that on the night of her party plaintiff bought her several drinks despite knowing that she was underage, Later, however, Friend 1 told plaintiff that she was not interested in him, after being " ‘shocked’ " to learn he was 48 years old. At that point, plaintiff appeared to redirect his focus to Anneliese.

Shortly thereafter, Anneliese obtained plaintiff’s phone number from Friend 1 and called " ‘to confront him.’ " Friend 2 was with Anneliese when she made the call and overheard the conversation on speakerphone. When plaintiff answered, Anneliese identified herself. At first, plaintiff flirted with her and asked whether she wanted to meet. Anneliese responded, " ‘That is not why I am calling. I need to let you know what happened the other night was not OK. I was nearly blacked out. You did not have my consent. That is considered rape and it is not OK.’ " At that point, plaintiff became defensive, telling Anneliese that it was not a good time to talk and that he had no idea she had been so intoxicated. Plaintiff also accused Anneliese of " ‘forc[ing] herself on him or seducing] him.’ " Anneliese responded, " ‘That is not OK. You knew how drunk I was.’ " The call ended after five to 10 minutes; however, plaintiff later called Anneliese back and left a message. She deleted the message without listening to it.

In 2018, Anneliese contacted the Title IX office after receiving a call from Friend 1, who told her about the accusations that had been publicly raised against plaintiff. Anneliese was enraged that plaintiff was denying the accusations and blaming the " ‘political’ " environment.

The Title IX investigator interviewed Anneliese, her mother, Friend 1, Friend 2, and plaintiff regarding Anneliese’s allegations. Plaintiff recalled attending Friend 1’s party in June 2013 and meeting Anneliese for the first time. Plaintiff claimed that he left the party alone and was walking to his car when Anneliese came out of her apartment. According to plaintiff, Anneliese pulled him toward her apartment and he "reluctantly went in." After talking briefly, Anneliese suggested sexual activity, which surprised him. However, because Anneliese was highly intoxicated, p...