1

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

,

v.

THE REGENTS OF THE

UNIVERSITY OF CALIFORNIA,

Defendant and Respondent

. A164480

(Alameda County

Super. Ct. No. RG19018682 )

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 acade mic 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

manda te under Code of Civ il Proc edure section 1094.5 1 to set aside the

1 Unless otherwise stated, all statutory citations herein are to the Code

of Civil Procedure.2

findings and decision of defendant, The Regents of the Univers ity 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 sexual ly abused two women . Rather, he contends : (1) the

University lacked jurisdic tion to discipline him because the victims did not

qualify as University students, (2) the University mis interpreted and

misapplied its own regulations and policies, (3) he did not receive notice of all

charges, and (4) the sanction s 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, a fter holding several teaching positions at higher learning

institutions in the United States and abroad, plaintiff became a n a s sociate

p rofessor in UCSC ’s History of Consciousness D epartment

. I n 2015, he was

promoted to tenured p rofessor.

I n 201 7 , an anonymous letter was published online

, a ccusing plaintiff

of engag ing in a pattern of sexual intimidation, harassment, and assault

against young women and gender nonconforming people during his time as a

UCSC professor. Th e letter contained seven anonymous firsthand accounts

of plaintiff’s alleged abuse and call ed on the University to act

. Over 150

people signed this letter to show their support

.

Plaintiff publicly denied the a ccusations in the anonymous letter and

blamed “ ‘the current context of national indignation around the issue of

sexual harassment

. . . .’ ” In response, the University issued a statement3

that it was aware of the letter and ask ed individuals with relevant

information to contact the Title IX office to assist its investigat ion

. 2

The University received multiple complaints about plaintiff’s conduct.

One of the more serious complaint s

, involv ing 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 w h o was willing to speak

. The Title IX office

als o 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

. T he Title IX office the reafter

engaged an outside i nvestigator to conduct th e investigation and draft an

investigative report

, a process that took over six month s

. 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, a long with a

friend and professor ( Witness 1 )

, were invited to stay overnight at the home

2 R eports 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 a ppoints 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, EV C Tromp placed plaintiff on involuntary

leave due to the egregiousness of the allegations against him and for his own

protection.4

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. I t 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 s haring a bed

. A s hor t while later

, Doe

woke up to find plaintiff in t he study

, drunkenly trying to get in bed and

asking to have sex with h er

. She told plaintiff that she was not interested in

sexual activity and “ ‘shooed’ ” him from the room. Nonetheless, a round

2:00 a.m. , Doe woke up again to find plaintiff naked and “loom[ing] over her

while she lay in bed.” Plaintiff climbed in to bed, and Doe could feel his penis

poking into her side. Doe and Witness 1 forced plaintiff from the room and

,

this time

, barricad ed the door with furnitu re 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

Univer sity 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 Universit y community.’ ”

B. Anneliese H.

Anneliese H. walked in her UCSC class graduat ion on June 16 , 2013

.

D ays later, on June 18 , 20 1 3, Anneliese attended a graduation party at the

off

- campus apartment of he r 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

. Ann e liese

,5

who was quite intoxicated, began to feel nauseous and “ ‘on the verge of

blacking out or browning out.’ ” Plaintiff offered to walk her home.

Ann e liese agreed and, after arriv ing at her home

, she invited him inside.

Plaintiff initiated sexual activity, but Ann e liese insisted she only wanted to

talk to him

. Although Ann e liese acknowledged experienc ing memory lapses

after arriving home, she recalled being undressed in bed and kissing plaintiff

.

The n, after another memory lapse, she “ ‘came to,’ ” to f ind plaintiff on top of

her

, performing oral sex. Ann e liese repeatedly told plaintiff, “ ‘You need to

leave,’ ” and

, “ ‘I do not want to have sex with you,’ ” yet he persisted

.

Plaintif f told Ann e liese that he wanted to have anal sex with her. Ann e liese

was scared , as plaintiff was bigger and stronger than her

. Finally, after

Ann e liese push ed him away several times, plaintiff got up and le ft

.
The next day, Ann e liese woke up devastated by what happened with

plaintiff. Ann e liese’s friend (Friend 2) , also a UCSC student, went to

Ann e liese’s h ome

, and they discussed the incident

. When Friend 2 told

Ann e liese that plaintiff may have been a professor

, she was “ ‘traumatized.’ ”

About a week later

, Ann e liese told Friend 1 w hat 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. A t that point

, plaintiff appeared to

redirect his focus to Ann e liese

.
Shortly thereafter

, Ann e liese obtained plaintiff’s phone number from

Friend 1 and called “ ‘to confront him.’ ” Friend 2 was with Ann e liese when

she made the call and over hear d the conversation on speakerphone

. When

plaintiff answered, Ann e liese identified herself . At first, plaintiff flirted with

her and a sked whether she wanted to meet

. Ann e liese responded, “ That is6

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 d efensive

,
telling Ann e liese that it was not a good time to talk and that he had no idea

she had been so intoxicated

. Plaintiff also accused Ann e liese of “ ‘forc[ing]

herself on him or seduc [ing] him.’ ” Ann e liese responded, “ ‘That is not OK.

You knew h ow drunk I was.’ ” The call ended after five to 10 minutes;

however, plaintiff later called Ann e liese back and left a message. She deleted

the message without listening to it.

In 2018, Ann e liese 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. Ann e liese was enraged that plaintiff was denying

the a ccusations and blaming the “ ‘political’ ” environment.

The Title IX investig ator interviewed Ann e liese , her mother, Friend 1,

Friend 2, and plaintiff regarding Anneliese’s allegations. Plaintiff recall ed

attending Friend 1’s party in June 2013 and me e t ing Ann e liese for the first

time

. Plaintiff claimed that he left the party alo ne and was walking to his

car when Ann e liese came out of her apartment . According to plaintiff,

Ann e liese pulled him toward her apartment and he “ reluctantly went in. ”

After talk ing briefly

, Ann e liese 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 attempt ing to have sex with her.

A ccording to plaintiff, when Annelie se called him about a month later , she

“clearly indicated” having no memory of what transpired between them that

evening.7

A fter conclu ding t he 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 [ si c ] dated February 10 , 2006, the policy in effect

at the time of the incident

. . . . ” T his “ unwelcome sexual activity occurred on

June 18 , 2013 after [Anneliese] had completed her course work and

participated in commencement but before her degree was conf erred

. ”

C. Brian G. and Patrick M.

Former UCSC student Brian G. reported that, during the fall or winter

of 2009, when he was 18 year s old

, he attended a small party at plaintiff’s

residence. Brian knew plaintiff through campus activities but was not his

student. A t t h is 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 re called other occasions during this time period

when plai ntiff 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 believ ed his experiences

w ere relevant.

Following an investiga tion, the investigator found by a preponderance

of evidence that plaintiff gave Brian G. alcohol and cocaine at a party and

b ought him alcohol at least twice at local bars despite know ing he was under

age 21

.

Patrick M. was a Ph.D. candidate in the History of Human

Consciousness D epartment 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 dis cussion regarding the8

appropriate direction of Patrick ’s dissertation. At some point, plaintiff

became verbally and physically aggressive . Patrick protested and tried to

leave, but plaintiff b locked him by lung ing at him and aggressively grabb ing

him.

Patrick reported th is 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 ca me forward with an official complaint after reading the publicity

, in

2017

, about plaintiff’s pattern of abus ive behavior

.

T he investigat or again found b y 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 unwel come 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 initiat e

disciplinary action.

On November 9 , 2018 , the Charges Committee found probable cause as

to each complain an t : 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. T he 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

.9

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, o n November 14 , 2018, EVC Tromp issued plaintiff a

notice of intent to discipline . In th e 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

.

Th is formal administrative hearing took place over five days in May

2019. Initially , the PT Committee

, made up of three U CSC professors, heard

and denied 12 prehearing motions brought by plaintiff’s counsel. The

committee then heard from 11 University witnesses

, 6 including Witnes s 1 in

the Jane Doe case and Anneliese H.

, before issu ing 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

.10

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 val ues, 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 [ F aculty C ode of

C onduct]

, APM 015 II.C.7. ”

T he PT Committee also found plaintiff’s conduct independently violated

other Faculty Code of Conduct pro visions . 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.”11

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 U niversity’s policy on substance abuse by knowingly

provid ing 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 t imes, 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 violat ions

of the F aculty C ode of C onduct 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, U CSC Chancellor Cynthia K. Larive notified

plaintiff that she had adopted the unanimous findings and recommendation s

of dismissal and denial of emeritus status set forth in th e 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 an d 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 aft er 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

.12

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

, recommend ing t hat 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 dismiss al

. Plaintiff did not avail himself of

the opportunity to appear personally or through counsel . H e did, h owever

,

submit a written statement argu ing that the University lacked jurisdiction to

pursue either incident of sexual misconduct because the y occurred off campus

and involved nonstudents

. At the meeting’s conclusion, the Regents

unanimously voted in favor of plaintiff’s dismissal and denial of em eritus

status

.

IV. Petition for Writ of Administrative Manda te

.

On October 2, 2020, plaintiff filed the operative third amended petition

for writ of administrative manda te in Alameda Superior Court. A hearing

was held on September 1 , 2021

. Afterward, t he 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 deferre d decision on denial of emeritus status pending the Regents’ decision on her dismissal recommendation.13

not University students ; (2) in the case of Jane Doe, he cannot be disciplined

for violat ing 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 violat ing 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 we re 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, t he 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” ’ ” ].)14

Whe re , as here, an administrative decision involve s 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 Angel s (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 J urisdiction 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 facu lty member’s professional role at UCSC.” T he following rules

appl y

.
“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, the15

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 o f statute.” ( Ibid. )

“ Generally, the interpretation of a regulati on [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 leve l 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 an16

In de termining that plaintiff’s conduct toward Jane Do e was subject to

discipline, the University relied on Faculty Code of Conduct, Part II

. Th e

relevant provision states: “ Th [e] listing of faculty responsibilities, ethical

principles, and types of unacceptable behavior is organized around the

individual f

aculty 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 disciplin ary action if they also meet

the preceding standards.” (Italics omitted.)

According to plaintiff , this language permits faculty members to be

discipline d only as to matter s “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 .)17

I n its final report, however, the PT Committee interpreted th is

provision otherwise: “ The [ F aculty C ode o f C onduct] 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 significa ntly 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 Preambl e 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, wi thout 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 k nowledge 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 work18

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 wa s

consistent with the plain and commonsense meaning of the Code’s language

.
( Akella, supra

, 61 Cal.App.5th at pp. 817

– 818 .) T he PT Committee’s

interpretation also g ave 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 respect ed 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 pre ssing his genitalia against a female

academic attending the same academic conference at a party given by the

conference host (also a professor) clearly create d a n 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 wei ght. As recognized by numerous

courts

, “ c ontextual 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 capa city.

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 plaintif f as a histor ian of consciousness

. Plaintiff chose

not to participate in the hearing and, thus, presented no contrary evidence.19

not complex or technical, should be interpreted in a manner that is both

knowledgeable of and sensitive to the needs of [the] department and

unive rsity 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 co de 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 t he foregoing reasons

, we uphold the University’s finding that

plaintiff’s conduct toward Jane Doe at a party held in connection with a n off

campus academic conference was subject to discipline under the Faculty Code

of Conduct.

B. Petitioner Violat ed 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 basis20

for disciplinary action

. ” (2d italics added.) Th is 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

. . . . ” A gain , the PT Committee’s

interpretation of this language is reasonabl e and entitled to our deference.

( Akella, supra , 61 Cal.App.5th at pp. 817

– 818 ; Manderson

- Saleh, supra , 60

Cal.A pp.5th at p. 697 [ court s accord an administrative agency’s

interpretation of its own regulation great weight and deference, unless the

interpretation i s “ 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 memb ers 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 mee ting this standard doe s

not render th is provision unenforceable.

Finally

, plaintiff claims the University “postulat ed 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.

T he 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 with21

sustaining an environment ‘conducive to sharing, exte nding, 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 Pro fessor 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 thi s 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

. T he 2017 open letter calling on the

University to discipline plaintiff for his pattern of abusive behavior , signed by

over 1 5 0 people , confirms the PT Committee’s determination was well

founded , as does Witness 1’s testimony about the trauma Doe suffered from

his a buse

. 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 upon22

the definition of “student” in the University’s Policies Applying to Campus

Activities, Organizations and Students, part II I, 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 preced ing 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 definiti on, 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 sexual ly 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 h e r d egree, 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 partici pants 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 the23

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 Universit y

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, a s

stated before, the PT Commi ttee 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 plaintif f to her graduation

weekend party after having audited one of his classes because she w as

seeking his mentorship. Anneliese knew Friend 1 because they were both

UCSC students liv ing 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 fe ll ill due to having consumed to o

much alcohol. In these circumstances, plaintiff’s c laim 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

.24

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 relat ing to Anneliese H.: “Alleged v iolation:

APM 015 II.C.7: Serious violation of University policies governing the

professional conduct of faculty (specifically, the University P olicy on Sexual

Harassment, 2006).” F ollowing the hearing, the PT Committee found a

violation of the sexual h arassment 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 un acceptable 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 Universit y 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.25

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

pet ition.

Plaintiff’s lack

- of

- notice claim thus fail s. 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

, result ing 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 can not ‘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 p enalty, 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 experti se 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 this26

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 decisio n s were well within its discretion.

DISPOSITION

The judgment is affirmed

.

Jackson, P. J.

WE CONCUR:

Burns, J.

Chou, J.27

A16 4480 / 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.