The opinion
Filed 2/1/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
GOPAL BALAKRISHNAN,
Plaintiff and Appellant, A164480
v.
THE REGENTS OF THE (Alameda County
UNIVERSITY OF CALIFORNIA, Super. Ct. No. RG19018682)
Defendant and Respondent.
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
1 Unless otherwise stated, all statutory citations herein are to the Code
of Civil Procedure.
1
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
2
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
2 Reports of sexual violence and sexual harassment at the University
are handled by the Title IX office. When an investigation is warranted, the
Title IX office appoints an investigator to conduct the investigation by
interviewing witnesses and gathering evidence and then preparing a written
report with findings of fact and a recommendation as to whether any
University policy was violated.
3 On February 1, 2018, EVC Tromp placed plaintiff on involuntary
leave due to the egregiousness of the allegations against him and for his own
protection.
3
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,
4
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
5
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 seduc[ing] 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, plaintiff
“extricated [him]self from the interaction and left her apartment and went
home.” He denied being naked or attempting to have sex with her.
According to plaintiff, when Anneliese called him about a month later, she
“clearly indicated” having no memory of what transpired between them that
evening.
6
After concluding the Anneliese investigation, the investigator found “it
is more likely than not that [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 Policy [sic] dated February 10, 2006, the policy in effect
at the time of the incident . . . .” This “unwelcome sexual activity occurred on
June 18, 2013 after [Anneliese] had completed her course work and
participated in commencement but before her degree was conferred.”
C. Brian G. and Patrick M.
Former UCSC student Brian G. reported that, during the fall or winter
of 2009, when he was 18 years old, he attended a small party at plaintiff’s
residence. Brian knew plaintiff through campus activities but was not his
student. At this party, plaintiff gave Brian and other attendees cocaine and
alcohol, and afterward he drove Brian home while under the influence of
alcohol and drugs. Brian also recalled other occasions during this time period
when plaintiff bought him alcohol at local bars although he was underage.
Brian contacted the Title IX office after learning of the public accusations
that had been raised against plaintiff because he believed his experiences
were relevant.
Following an investigation, the investigator found by a preponderance
of evidence that plaintiff gave Brian G. alcohol and cocaine at a party and
bought him alcohol at least twice at local bars despite knowing he was under
age 21.
Patrick M. was a Ph.D. candidate in the History of Human
Consciousness Department in 2015, and plaintiff was his adviser. According
to Patrick, one afternoon he visited plaintiff’s office to discuss his
dissertation. The pair engaged in a heated discussion regarding the
7
appropriate direction of Patrick’s dissertation. At some point, plaintiff
became verbally and physically aggressive. Patrick protested and tried to
leave, but plaintiff blocked him by lunging at him and aggressively grabbing
him.
Patrick reported this incident to Professor Dean Mathiowetz in
November 2015 and later discussed it with the department’s chair, David
Marriott. Marriott secured plaintiff’s commitment to have no contact with
Patrick and assigned Patrick a new adviser. Despite this informal resolution,
Patrick came forward with an official complaint after reading the publicity, in
2017, about plaintiff’s pattern of abusive behavior.
The investigator again found by a preponderance of the evidence that
plaintiff engaged in the alleged misconduct. While plaintiff’s “overall intent
may have been benign,” his advising approach was detrimental to Patrick.
Further, Patrick reasonably viewed plaintiff’s conduct as unwelcome and
physically aggressive.
II. The Four Charges and Administrative Hearing.
The investigation reports were forwarded to the University’s Charges
Committee to assess whether there was sufficient evidence to initiate
disciplinary action.
On November 9, 2018, the Charges Committee found probable cause as
to each complainant: Jane Doe, Anneliese H., Brian G., and Patrick M. With
respect to Doe, the Charges Committee acknowledged the investigator did not
substantiate a violation of the UCSC sexual harassment policy because Doe
was not a member of the University community. The committee nonetheless
found probable cause under part II of the University’s Faculty Code of
Conduct (APM-015),4 Professional Responsibilities, Ethical Principles, and
4 See footnote 5, post, page 9.
8
Unacceptable Faculty Conduct (hereinafter, Faculty Code of Conduct,
Part II), which permits faculty members to be disciplined “ ‘for conduct which
is not justified by the ethical principles, and which significantly impairs the
University’s central functions as set forth in the Preamble.’ . . . ‘Other types
of serious misconduct, not specifically enumerated herein, may nonetheless
be the basis for disciplinary action [if they also meet the preceding
standards] . . . .”5
Accordingly, on November 14, 2018, EVC Tromp issued plaintiff a
notice of intent to discipline. In the notice, EVC Tromp proposed that
plaintiff be dismissed and denied emeritus status “based on the egregious
nature of [his] misconduct . . . .” She also advised plaintiff of his right to a
formal hearing under academic senate bylaw 336 before the Committee on
Privileges and Tenure (PT Committee) prior to the imposition of any
disciplinary sanction.
This formal administrative hearing took place over five days in May
2019. Initially, the PT Committee, made up of three UCSC professors, heard
and denied 12 prehearing motions brought by plaintiff’s counsel. The
committee then heard from 11 University witnesses,6 including Witness 1 in
the Jane Doe case and Anneliese H., before issuing its final report on July 18,
2019.
With respect to Jane Doe, the PT Committee found clear and
convincing evidence that plaintiff violated the Faculty Code of Conduct,
Part II, as there was “no question” his conduct toward Doe at an academic
5 “APM” refers to the University’s Academic Personnel Manual. The
Faculty Code of Conduct is found at APM-015.
6 Plaintiff and his counsel declined to participate in the hearing before
the PT Committee.
9
event was not justified by ethical principles and undermined the University’s
central function to provide an environment “ ‘conducive to sharing, extending,
and critically examining knowledge and values, and to furthering the search
for wisdom.’ ”
As to Anneliese H., the PT Committee found by clear and convincing
evidence that plaintiff’s conduct violated “APM 015 II.C.7: Serious violation
of University policies governing the professional conduct of faculty
(specifically, the University Policy on Sexual Harassment, 2006).”7 It also
found “a close nexus” between plaintiff in his role as University
representative and his conduct, since he was invited to the graduation party
where he met Anneliese by a student who sought to foster his mentorship.
Then, after using his professor status to connect with these women, plaintiff
treated Anneliese in an “unwelcome, deeply harm[ful]” manner—conduct that
constituted a “ ‘serious violation of University policies governing the
professional conduct of faculty’ within the meaning of the [Faculty Code of
Conduct], APM 015 II.C.7.”
The PT Committee also found plaintiff’s conduct independently violated
other Faculty Code of Conduct provisions. As in the case of Jane Doe, his
sexual abuse of Anneliese was not justified by ethical principles and
7 The sexual harassment policy defines “[s]exual harassment” as
“unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature, when submission to or rejection of this
conduct explicitly or implicitly affects a person’s . . . education, unreasonably
interferes with a person’s work or educational performance, or creates an
intimidating, hostile or offensive working or learning environment. . . .
[¶] . . . [¶] In determining whether the reported conduct constitutes sexual
harassment, consideration shall be given to the record of the conduct as a
whole and to the totality of the circumstances, including the context in which
the conduct occurred.”
10
significantly impaired the University’s central functions and, as such,
violated the Faculty Code of Conduct, Part II.
With respect to Brian G., the PT Committee found evidence that
plaintiff violated the University’s policy on substance abuse by knowingly
providing him alcohol and cocaine. However, it concluded the evidence
presented at the hearing did not meet the clear and convincing standard
since Brian was vague as to key information, including times, persons, and
dates. Accordingly, this charge was dismissed.
Lastly, the PT Committee dismissed the charge relating to Patrick M.
based on the three-year limitations period set forth in the Faculty Code of
Conduct.8
Thus, having unanimously found plaintiff committed serious violations
of the Faculty Code of Conduct in the cases of Doe and Anneliese H., the
PT Committee recommended his dismissal and denial of emeritus status.
III. Plaintiff’s Dismissal and Denial of Emeritus Status.
On August 15, 2019, UCSC Chancellor Cynthia K. Larive notified
plaintiff that she had adopted the unanimous findings and recommendations
of dismissal and denial of emeritus status set forth in the PT Committee’s
July 2019 report. Chancellor Larive also imposed the interim sanction of
“suspension without pay effective with the date of this letter until the earlier
of either: 1) dismissal pursuant to my recommendation; or 2) twenty (20)
years.” In doing so, Chancellor Larive informed plaintiff that, while “not
relevant to my recommendations to the President and Regents, or the
8 Department chair David Marriott testified that he knew of the alleged
incident as of November 1 or 2, 2015, the day of or after it occurred. Yet,
Patrick did not file a formal complaint until 2018, and plaintiff did not
receive notice of the University’s intent to discipline him until November 14,
2018, about two weeks past the limitations period.
11
exercise of my authority under [the academic senate bylaws], it is notable
that the record before me is devoid of any acknowledgement from you about
your behavior or the detrimental impacts of your misconduct on the direct
victims or the University.”
On August 23, 2019, University of California President Janet
Napolitano issued a decision, based on her own independent review of the
record, recommending that the Regents dismiss plaintiff from the
University’s employ.9
In September 2019, the Regents held a meeting to consider President
Napolitano’s recommendation of dismissal. Plaintiff did not avail himself of
the opportunity to appear personally or through counsel. He did, however,
submit a written statement arguing that the University lacked jurisdiction to
pursue either incident of sexual misconduct because they occurred off campus
and involved nonstudents. At the meeting’s conclusion, the Regents
unanimously voted in favor of plaintiff’s dismissal and denial of emeritus
status.
IV. Petition for Writ of Administrative Mandate.
On October 2, 2020, plaintiff filed the operative third amended petition
for writ of administrative mandate in Alameda Superior Court. A hearing
was held on September 1, 2021. Afterward, the court denied the petition,
declining to set aside the administrative findings or sanction. This timely
appeal followed.
DISCUSSION
Plaintiff contends on appeal: (1) the University lacked jurisdiction to
discipline him with respect to Jane Doe or Anneliese H. because they were
9 President Napolitano deferred decision on denial of emeritus status
pending the Regents’ decision on her dismissal recommendation.
12
not University students; (2) in the case of Jane Doe, he cannot be disciplined
for violating general ethical principles and there was no evidence his conduct
significantly impaired the University’s central functions; (3) in the case of
Anneliese H., he cannot be disciplined for violating uncharged provisions of
the Faculty Code of Conduct for which he did not receive notice; and (4) the
sanctions of dismissal and denial of emeritus status were excessive. We
address these contentions post, in appropriate order.10
I. Administrative Mandate: Standard of Review.
“To prevail, a petitioner seeking a writ of administrative mandate must
show the agency (in this case, [the University]) (1) acted without, or in excess
of, its jurisdiction; (2) deprived the petitioner of a fair administrative hearing;
or (3) committed a prejudicial abuse of discretion. (§ 1094.5, subd. (b); Doe v.
University of Southern California (2016) 246 Cal.App.4th 221, 239 [200
Cal.Rptr.3d 851] (Southern California I) [§ 1094.5’s ‘fair trial’ requirement
means there must be a fair administrative hearing].) [Fn. omitted.] ‘ “Abuse
of discretion is established if the [agency] has not proceeded in the manner
required by law, the order or decision is not supported by the findings, or the
findings are not supported by the evidence.” ’ [Citations.]” (Doe v. Regents of
University of California (2021) 70 Cal.App.5th 521, 532.)
10 Plaintiff raises two additional contentions that we decline to
consider: (1) the University’s consolidation of two unrelated complaints was
prejudicial and (2) the denial of his request for a continuance of the
administrative hearing was unfair. We deem these contentions forfeited due
to plaintiff’s failure, in his opening brief, to support them with reasoned legal
argument. (See People v. Guzman (2019) 8 Cal.5th 673, 683, fn. 7 [appellant
forfeited due process claim by failing to “develop the argument”]; In re
Phoenix H. (2009) 47 Cal.4th 835, 845 [“ ‘ “Contentions supported neither by
argument nor by citation of authority are deemed to be without foundation
and to have been abandoned” ’ ”].)
13
Where, as here, an administrative decision involves a fundamental
vested right to employment, the trial court “independently review[s] the
record to determine whether the weight of evidence supports a factual
finding, whereas the substantial evidence test applies when a fundamental
right is not at issue. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th
305, 313 [99 Cal.Rptr.3d 199] (Wences).) But [as] the appellate court[, we]
appl[y] a substantial evidence test, regardless of whether a fundamental
right is involved. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824 [85
Cal.Rptr.2d 696, 977 P.2d 693].)” (O’Brien v. Regents of University of
California (2023) 92 Cal.App.5th 1099, 1116.) Further, as always, we
exercise independent judgment on legal issues. (Manderson-Saleh v. Regents
of University of California (2021) 60 Cal.App.5th 674, 693 (Manderson-
Saleh).)
II. The University’s Findings as to Jane Doe Stand.
A. Plaintiff’s Jurisdiction Argument Fails.
Plaintiff contends the Jane Doe findings must be set aside because the
University cannot “exercise limitless jurisdiction by policing and prosecuting
faculty for conduct that occurs off campus after hours, separate and apart
from the faculty member’s professional role at UCSC.” The following rules
apply.
“The University is a statewide administrative agency with
constitutionally derived powers. (Cal. Const., art. IX, § 9, subd. (a);
[citation].) Its employees are public employees. [Citation.] The University is
administered by the Regents. (Cal. Const., art. IX, § 9, subd. (a).) Regents
have rulemaking and policymaking power in regard to the University; their
policies and procedures have the force and effect of statute.” (Kim v. Regents
of University of California (2000) 80 Cal.App.4th 160, 165.) Generally, the
14
rules that govern statutory interpretation also govern interpretation of
administrative regulations. (Akella v. Regents of University of California
(2021) 61 Cal.App.5th 801, 817 (Akella).) “Further, policies established by
the Regents according to their constitutionally derived rulemaking and
policymaking power, like the Academic Personnel Manual, have the force and
effect of statute.” (Ibid.)
“Generally, the interpretation of a regulation [or statute] ‘ “is . . . a
question of law” and is . . . subject to de novo review.’ [Citation.] However, a
reviewing court accords an administrative agency’s interpretation of its own
regulation great weight and deference, unless the interpretation is
unauthorized or clearly erroneous. [Citations.] This rule recognizes that an
‘agency has developed a level of “expertise” in light of its familiarity with the
legal and regulatory issues.’ [Citation.] Courts are particularly deferential of
the Regents’ determinations because of its role as a state constitutional
entity. [Citations.] Thus, although we are not bound by the Regents’
interpretation, we give it great weight under the circumstances. (See
Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12
[citations]; [citation].)” (Manderson-Saleh, supra, 60 Cal.App.5th at p. 697;
accord, Akella, supra, 61 Cal.App.5th at p. 817 [“considering it is well within
the Regents’ constitutionally delegated authority [citation] to hear and
resolve disputes related to the administration of the university’s academic
affairs ‘by applying University policies to particular cases’ [citation], we
conclude that Privilege & Tenure’s interpretation is entitled to a reasonable
degree of judicial deference”].)11
11 The Akella court recognized the degree of deference owed the
University in interpreting one of its policies depends on the interpreter’s
familiarity with the policy at issue, whether the University has adhered
consistently to the interpretation at issue, and whether there was an
15
In determining that plaintiff’s conduct toward Jane Doe was subject to
discipline, the University relied on Faculty Code of Conduct, Part II. The
relevant provision states: “Th[e] listing of faculty responsibilities, ethical
principles, and types of unacceptable behavior is organized around the
individual faculty member’s relation to teaching and students, to scholarship,
to the University, to colleagues, and to the community. Since University
discipline, as distinguished from other forms of reproval or administrative
actions, should be reserved for faculty misconduct that is either serious in
itself or is made serious through its repetition, or its consequences, the
following general principle is intended to govern all instances of its
application: [¶] University discipline under this Code may be imposed on a
faculty member only for conduct which is not justified by the ethical
principles and which significantly impairs the University’s central functions
as set forth in the Preamble. . . . The Types of Unacceptable Conduct listed
below in Sections A through E are examples of types of conduct which meet
the preceding standards and hence are presumptively subject to University
discipline. Other types of serious misconduct, not specifically enumerated
herein, may nonetheless be the basis for disciplinary action if they also meet
the preceding standards.” (Italics omitted.)
According to plaintiff, this language permits faculty members to be
disciplined only as to matters “in the scope of their professional roles, not
after they have hung up their coat and kicked off their shoes at the end of the
day, and certainly not after an after-party for an off-campus poetry summit
[unaffiliated] with UCSC.”
opportunity for comment to be made on the interpretation. (Akella, supra, 61
Cal.App.5th at pp. 816–817.)
16
In its final report, however, the PT Committee interpreted this
provision otherwise: “The [Faculty Code of Conduct] does in fact extend to
interactions between faculty and ‘the community’: ‘This listing of faculty
responsibilities, ethical principles, and types of unacceptable behavior is
organized around the individual faculty member’s relation to teaching and
students, to scholarship, to the University, to colleagues, and to the
community’. (APM 015, Part II.) The ‘community’ meant here is clearly not
the University community, but the community at large. It is not true that
the conduct in question had no relation to the University. The poetry summit
was an academic conference (testimony by [Witness 1], HT p. 272), and
[plaintiff’s] presence at it was clearly related to his status as a Professor at
the University. The question before us, then, is whether [plaintiff’s] conduct
in the [Jane Doe] incident was conduct which ‘is not justified by the Ethical
Principles and which significantly impairs the University’s central functions
as set forth in the Preamble’.
“There is no question that the behavior was not justified by the Ethical
Principles. We also find that it significantly impairs the University’s central
functions. The Preamble states: ‘The University seeks to provide and
sustain an environment conducive to sharing, extending, and critically
examining knowledge and values, and to furthering the search for wisdom.’
The University is impaired in this function if its faculty, without consequence
or sanction, engage in behavior in the context of professional events that
would not be tolerated on campus because of their clear incompatibility with
sustaining an environment ‘conducive to sharing, extending, and critically
examining knowledge and values, and to furthering the search for wisdom’.
For example, it is to be expected that neither Ms. [Doe] nor [Witness 1] (nor
potentially others who became aware of the behavior) would want to work
17
with [plaintiff] (or even with anyone from UCSC) in the future, if they see
that this behavior has no consequences. In other words: only a safe
environment is an environment conducive to sharing knowledge and values.”
Applying the above stated rules of statutory interpretation, we
conclude the PT Committee’s reading of the Faculty Code of Conduct was
consistent with the plain and commonsense meaning of the Code’s language.
(Akella, supra, 61 Cal.App.5th at pp. 817–818.) The PT Committee’s
interpretation also gave meaning to the provision “as a whole, giving effect to
all of its parts . . . .” (Id. at p. 818.) And lastly, the PT Committee’s
interpretation respected the University’s underlying intent in prohibiting
faculty conduct “not justified by the Ethical Principles and which
significantly impairs the University’s central functions.” (Ibid.) As explained
in the PT Committee’s final report, “only a safe environment is an
environment conducive to sharing knowledge and values.” Climbing naked
and uninvited into bed with and pressing his genitalia against a female
academic attending the same academic conference at a party given by the
conference host (also a professor) clearly created an unsafe environment not
conducive to the sharing of knowledge and values.12
We hasten to add this interpretation of the Faculty Code of Conduct
was made by a committee comprised of three of plaintiff’s fellow UCSC
professors, adding to its evidentiary weight. As recognized by numerous
courts, “contextual familiarity matters. The disputed policy language, while
12 We reject plaintiff’s suggestion in his reply brief that there was no
evidence he attended the poetry summit in his professional capacity.
Witness 1 testified at the administrative hearing that the poetry summit was
an offsite “academic conference” organized by “poets, professors, and
members of the community in the East Bay” and that conference participants
knew and respected plaintiff as a historian of consciousness. Plaintiff chose
not to participate in the hearing and, thus, presented no contrary evidence.
18
not complex or technical, should be interpreted in a manner that is both
knowledgeable of and sensitive to the needs of [the] department and
university population to which it applies. (See Simi Corp. v. Garamendi
(2003) 109 Cal.App.4th 1496, 1505 [citation] [noting the ‘particular expertise’
of the agency’s commissioner in that case was a ‘deep understanding of the
context in which the regulation exists’]; Berman [v. Regents of University of
California (2014)] 229 Cal.App.4th [1265,] 1271–1272 [explaining that the
court accords great weight and respect to the administration’s construction of
the university’s student conduct code based on its expertise and familiarity
with the legal and regulatory issues].)” (Akella, supra, 61 Cal.App.5th at p.
817.) There is no evidence calling into question the PT Committee’s
familiarity with both the Faculty Code of Conduct as a legal document and
the significance that its enforcement has within the University community.
For the foregoing reasons, we uphold the University’s finding that
plaintiff’s conduct toward Jane Doe at a party held in connection with an off-
campus academic conference was subject to discipline under the Faculty Code
of Conduct.
B. Petitioner Violated Ethical Principles that Significantly
Impaired the University’s Central Functions.
Plaintiff next contends the University lacked authority to discipline
him for conduct not enumerated as “ ‘unacceptable conduct’ ” in the Faculty
Code of Conduct. A plain, commonsense reading of the Faculty Code of
Conduct, Part II, defeats plaintiff’s contention.
The relevant provision, discussed ante, states: “The Types of
Unacceptable Conduct listed below in Sections A through E are examples of
types of conduct which meet the preceding standards and hence are
presumptively subject to University discipline. Other types of serious
misconduct, not specifically enumerated herein, may nonetheless be the basis
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for disciplinary action.” (2d italics added.) This language reflects the
University’s clear intent to authorize discipline for conduct not specifically
laid out in the Faculty Code of Conduct, Part II, if it otherwise meets the
standard of violating “ethical principles and . . . significantly impair[ing] the
University’s central functions . . . .” Again, the PT Committee’s
interpretation of this language is reasonable and entitled to our deference.
(Akella, supra, 61 Cal.App.5th at pp. 817–818; Manderson-Saleh, supra, 60
Cal.App.5th at p. 697 [courts accord an administrative agency’s
interpretation of its own regulation great weight and deference, unless the
interpretation is “unauthorized or clearly erroneous”].)
Plaintiff deflects with a fairness argument, insisting he had no notice
the University would seek to regulate faculty behavior at a non-University
event with respect to conduct not articulated in the Faculty Code of Conduct.
We disagree. The regulated conduct was in fact set forth in the code,
providing notice to him and other faculty members as to what was not
acceptable—to wit, “conduct which is not justified by the ethical principles
and which significantly impairs the University’s central functions . . . .” The
code’s failure to enumerate every type of conduct meeting this standard does
not render this provision unenforceable.
Finally, plaintiff claims the University “postulated without support
that anytime a faculty member engages in conduct that would not be
tolerated on campus, the University’s central functions are impaired.” Not
so.
The PT Committee explained its Jane Doe finding as follows: “The
University is impaired in this function if its faculty, without consequence or
sanction, engage in behavior in the context of professional events that would
not be tolerated on campus because of their clear incompatibility with
20
sustaining an environment ‘conducive to sharing, extending, and critically
examining knowledge and values, and to furthering the search for wisdom.’
For example, it is to be expected that neither [Jane Doe] nor [Witness 1] (nor
potentially others who became aware of the behavior) would want to work
with Professor Balakrishnan (or even with anyone from UCSC) in the future,
if they see that this behavior has no consequences. In other words: only a
safe environment is an environment conducive to sharing knowledge and
values.”
Plaintiff’s attempt to paint this explanation as mere postulating
underscores his ongoing failure to recognize the gravity of his conduct. He
sexually abused a fellow academic, Jane Doe, at an academic conference, and
when she escorted him from the room, he returned later and abused her
again. In response, Doe and Witness 1 were forced to barricade the door for
their safety. Plaintiff’s colleagues on the PT Committee appropriately
determined that his conduct presented a serious risk to the safety of others in
the community and that his continued association with UCSC would likely
discourage students and professors alike from participating in academic
events where he might be present. The 2017 open letter calling on the
University to discipline plaintiff for his pattern of abusive behavior, signed by
over 150 people, confirms the PT Committee’s determination was well
founded, as does Witness 1’s testimony about the trauma Doe suffered from
his abuse. Accordingly, the University’s Jane Doe findings stand.
III. The University’s Findings as to Anneliese H. Stand.
A. Petitioner’s Jurisdiction Challenge Fails.
Plaintiff contends the University had no jurisdiction over
Anneliese H.’s complaint because she was not a student or member of the
University community when he sexually harassed her. Plaintiff relies upon
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the definition of “student” in the University’s Policies Applying to Campus
Activities, Organizations and Students, part III, section 14.00,
DEFINITIONS, which states: A “ ‘student’ ” is “an individual for whom the
University maintains student records and who: (a) is enrolled in or registered
with an academic program of the University; (b) has completed the
immediately preceding term, is not presently enrolled, and is eligible for re-
enrollment; or (c) is on an approved educational leave or other approved leave
status, or is on filing-fee status.” According to plaintiff, Anneliese was a
graduate who did not meet this definition, such that the University’s sexual
harassment policy did not apply to her. Not so.
The evidence demonstrated that Anneliese walked in the UCSC
graduation ceremony on June 16, 2018, about two days before attending the
party after which plaintiff sexually harassed her. In fact, she attended this
party in part to celebrate her graduation. At that time, the University had
not yet audited Anneliese’s grades or conferred her degree, which did not
occur until July 2018. Under these circumstances, we conclude the evidence
supports a finding that Anneliese was in fact a student under the
University’s policies.
In any event, as the PT Committee pointed out, the University’s sexual
harassment policy dated February 1, 2006, page 1, states, “Sexual
harassment may include incidents between any members of the University
community, including faculty and other academic appointees, staff, coaches,
housestaff, students, and non-student or non-employee participants in
University programs, such as vendors, contractors, visitors and patients.”
Given this broad standard, “it is not necessary to quibble over the exact
moment when [Anneliese H.] ceased being a student. The Sexual
Harassment policy prohibits Sexual Harassment of any member of the
22
University community. . . . There may be some question whether alumni
remain members of the University community for the rest of their lives, but
certainly a graduating senior does not cease to be a member of the University
community on the last day of the final quarter. For this reason, we believe
that the University Sexual Harassment policy does prohibit the behavior
committed by Professor Balakrishnan on this occasion, and thus that this
behavior was a violation of the Sexual Harassment policy, and consequently a
violation of the FCC (APM 015.II.C.7).”
We conclude the PT Committee’s interpretation was consistent with
both the language and purpose of the sexual harassment policy. Moreover, as
stated before, the PT Committee was comprised of three of plaintiff’s
professor colleagues who were individually and collectively “knowledgeable of
and sensitive to the needs of [the] . . . university population to which [the
policy] applies.” (Akella, supra, 61 Cal.App.5th at p. 817, citing Simi Corp. v.
Garamendi, supra, 109 Cal.App.4th at p. 1505, and Berman v. Regents of
University of California, supra, 229 Cal.App.4th at pp. 1271–1272.) Relevant
here, as the PT Committee found, Friend 1 invited plaintiff to her graduation
weekend party after having audited one of his classes because she was
seeking his mentorship. Anneliese knew Friend 1 because they were both
UCSC students living with other students in off-campus housing. Anneliese
met plaintiff at Friend 1’s party and was sexually abused by him after he
volunteered to walk her home, when she fell ill due to having consumed too
much alcohol. In these circumstances, plaintiff’s claim that Anneliese had
ceased to be a member of the University community entitled to protection
under the sexual harassment policy two days before he abused her rings
hollow.
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B. Plaintiff Had Notice of the Charge.
Plaintiff contends he had no notice of one of the two charges against
him in the case of Anneliese H. The first charge, discussed ante, was for
violation of the University’s sexual harassment policy. The second charge, of
which plaintiff claims he had no notice, was for a violation of the Faculty
Code of Conduct, Part II. We reject this contention.
Plaintiff is correct the notice of intent to discipline issued by the
University identified one charge relating to Anneliese H.: “Alleged violation:
APM 015 II.C.7: Serious violation of University policies governing the
professional conduct of faculty (specifically, the University Policy on Sexual
Harassment, 2006).” Following the hearing, the PT Committee found a
violation of the sexual harassment policy and, thus, APM 015 II.C.7, with
respect to plaintiff’s conduct toward Anneliese. In addition, the committee
found his conduct “independently violated the [Faculty Code of Conduct],”
which “prohibits, in general, faculty conduct that is unacceptable because it is
‘not justified by the Ethical Principles and significantly impairs the
University’s central functions as set forth in the Preamble’ (APM 015,
Preamble).” The committee reasoned: “Students have a right to expect that
the University does not tolerate faculty who attempt to rape people. The
University has an obligation to honor that right.”
The PT Committee’s findings and recommendations were then
reviewed by Chancellor Larive, who determined, based on her own review of
the evidence, that plaintiff violated the University’s sexual harassment policy
(and, thus, APM 015 II.C.7). Chancellor Larive made no mention of, or
finding as to, the Faculty Code of Conduct, Part II, before submitting her
recommendation of dismissal and denial of emeritus status to University
President Napolitano.
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After her own review, University President Napolitano adopted the
same finding of a violation of the University’s sexual harassment policy in
submitting her recommendation of dismissal to the Regents, which the
Regents then approved—the administrative decision challenged by this writ
petition.
Plaintiff’s lack-of-notice claim thus fails. In the case of Anneliese H., he
was charged with—and disciplined for—only the serious violation of the
University’s sexual harassment policy.
IV. The Sanctions Imposed Were Not Excessive.
Lastly, plaintiff contends dismissal of a tenured professor and denial of
emeritus status for conduct that was never criminally charged, resulting in a
loss of “upwards of a million dollars” in salary and benefits, is
constitutionally excessive (Cal. Const., art. I, § 17). We disagree.
“We review the penalty imposed by an administrative body for an abuse
of discretion. [Citation.] This court cannot ‘substitute its discretion for that
of the administrative agency concerning the degree of punishment imposed.’
[Citation.] Moreover, ‘[i]t is only in the exceptional case, when it is shown
that reasonable minds cannot differ on the propriety of the penalty, that an
abuse of discretion is shown.’ [Citation.]” (Doe v. Regents of University of
California (2016) 5 Cal.App.5th 1055, 1106; Hughes v. Bd. of Architectural
Examiners (1998) 68 Cal.App.4th 685, 692 [courts “ ‘pay great deference to
the expertise of the administrative agency in determining the appropriate
penalty to be imposed’ ”].)
The University found clear and convincing evidence that plaintiff
egregiously sexually abused both Jane Doe and Anneliese. As to the latter, in
particular, plaintiff took advantage of Anneliese’s extreme intoxication to
enter her home and attempt to rape her. Rather than challenge this
25
evidence, plaintiff attempts to minimize its significance. However, as the
University’s chancellor found, given the nature and severity of plaintiff’s
conduct, the harm to the victims, and the harm to the University, his
dismissal and denial of emeritus status were warranted on the basis of either
or both incidents. The University’s decisions were well within its discretion.
DISPOSITION
The judgment is affirmed.
Jackson, P. J.
WE CONCUR:
Burns, J.
Chou, J.
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A164480/Balakrishnan v. Regents of University of California
Trial Court: Superior Court of the County of Alameda
Trial Judge: Paul Herbert
Counsel: 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 and Rebecca L. Sciarrino, for Defendant and
Respondent.
27