A Cheater’s Guide To Zealous Advocacy
By Matt Mong
The California Court of Appeal for the Second Appellate District recently affirmed the old adage that “cheaters never prosper,” in Yu v. University of La Verne, (2011) No. B229949. Specifically, the Court held that a law school dean’s decision to increase a student’s punishment for plagiarism after she appealed her charges did not violate California Education Code section 94367, which prohibits private universities from disciplining students on the basis of speech that would be constitutionally protected if it was made off campus.
Facts & Procedural History
In 2010, Plaintiff Katrina Yu was about to graduate from the University of La Verne College of Law. During her final semester at La Verne, Ms. Yu enrolled in a contract drafting class. As part of her final assignment, Ms. Yu was instructed to draft a hypothetical contract with two other classmates. Instead of drafting the contract from scratch, Ms. Yu decided that it would be easier to “borrow” contract provisions from form contracts she found online, as well as from her fellow classmates. Ms. Yu’s creative drafting skills were discovered by La Verne officials, who subsequently notified her that she was under investigation for plagiarism and academic dishonesty.
La Verne brought formal charges against Ms. Yu after she declined a plea bargain. After a school trial was held, the school’s Judicial Board found her guilty. As punishment, Ms. Yu received no credit for the class and a grade of 0.0. In response, Ms. Yu channeled the knowledge she acquired in her first year civil procedure course by filing an appeal of the Judicial Board’s decision to the Dean of La Verne, by way of a letter written by her attorney.
Under La Verne’s school policies, the Dean can reverse a Judicial Board decision if he determined that “no reasonable person” would have made the decision. The Dean can also “impose a greater or lesser sanction that that imposed by the Judicial Board,” if the “Dean concludes that a different sanction is justified.” Not surprisingly, the Dean affirmed the Judicial Board’s decision after determining that a reasonable person could find that Ms. Yu committed plagiarism.
The Dean also decided to increase Ms. Yu’s punishment by suspending her for the remainder of the academic year and by including a formal letter of censure in Ms. Yu’s school file. In a strongly worded letter, the Dean decided to increase Ms. Yu’s punishment because Ms. Yu’s “conduct represent[ed] blatant examples of academic dishonesty,” that was akin to cheating on a final exam. Furthermore, the Dean increased Ms. Yu’s punishment because she showed an utter lack of remorse for her innovative drafting skills, and failed to comprehend the seriousness of her actions. This decision was made in spite of the “character evidence” Ms. Yu submitted with her appeal, attesting to her “work ethic and moral character generally.”
In response to the Dean’s decision, Ms. Yu took the next logical step of suing La Verne. Ms Yu’s complaint pleaded one cause of action for violation of Section 94367. California Education Code section 94367(a) prohibits private universities from punishing a student “solely on the basis of conduct that is speech or other communication that, when engaged in outside 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.”
Ms. Yu also requested a preliminary injunction to prevent La Verne from enforcing the Dean’s decision. The trial court denied Ms. Yu’s request after it found that she was unlikely to prevail on the merits of her claim for violations of Section 94367. Ever tenacious, Ms. Yu appealed the trial court’s order, arguing that the Dean’s decision to increase her punishment violated Section 94637 because it was based solely on her exercise of free speech and right to petition.
The Court of Appeal’s Decision
The Court of Appeal upheld the trial court’s order on appeal. The Court held that Section 94367 only protects liberty of speech, and not the right to petition. However, the Court found that Ms. Yu’s appeal letter constituted speech protected by Section 94367. Unfortunately for Ms. Yu, the Court also held that there was substantial evidence to support the trial court’s finding that the Dean did not increase Ms. Yu’s punishment solely on the basis of her exercise of free speech.
The Right to Petition is not Protected by Section 94367
In her appeal of the trial court’s order denying her request for a preliminary injunction, Ms. Yu argued that Section 94367 applies to the right to petition, i.e., her right to appeal the Judicial Board’s decision to the Dean. The Court resoundingly disagreed. The Court came to this decision because the “plain language of section 94367 [. . .] applies to freedom of speech, and not the right to petition.” This was based, in part, on the fact that the statute referred solely to Article I, Section 2 of the California Constitution, which protects free speech, and not Article I, Section 3 of the California Constitution, which protects the right to petition.
Ms. Yu’s Appeal Letter Constituted “Speech” Protected by Section 94367
The Court next determined that Ms. Yu’s actual appeal letter constituted speech protected by Section 94367, even if the Ms. Yu’s right to petition was not protected. La Verne argued that Ms. Yu’s appeal letter was not protected speech because it was not a form of speech that Ms. Yu “could have engaged in outside the campus of the University.” The Court rejected La Verne’s narrow interpretation of Section 94367, reasoning that the statute was enacted to prohibit private universities from punishing a student from engaging in speech, including “speech directed at a school official regarding a school-related issue.”
Ms. Yu’s Punishment was not Increased Solely on the Basis of Her Exercise of Free Speech
Despite the fact that the Court found that Ms. Yu’s appeal letter was speech protected by Section 94367, the Court held that there was substantial evidence to support the trial court’s order denying the preliminary injunction. Specifically, the Court held that Ms. Yu would likely not prevail on the merits because the Dean’s decision to increase her punishment was not based solely on her exercise of free speech. For example, the Dean increased Ms. Yu’s punishment because he determined that Ms. Yu’s plagiarism was tantamount to cheating on a final exam. Further, Ms. Yu’s punishment was increased because she displayed an utter lack of remorse for her actions, and “this factor was not necessarily related to Yu’s decision to file an appeal.” For these reasons, the Court found that Ms. Yu was unlikely to prevail on the merits of her claim against La Verne for violations of Section 94367.
Despite her spirited efforts, Ms. Yu was unable to convince the University of La Verne, the Superior Court, and the Court of Appeal that she did not deserve to be punished for brazen plagiarism. Despite failing to recognize one of the cardinal rules of law school, Ms. Yu did leave La Verne with one valuable legal skill: zealously advocating your position.
Matthew N. Mong is a Senior Associate in the law firm of Kelley Clarke PC. He practices in the area of civil litigation, including personal injury, employment and business litigation.
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