Case Number: BS165077 Hearing Date: June 14, 2018 Dept: 85

Matthew Clements v. Lydia Thompson, et al., BS 165077

Tentative decision on (1) motion to augment: denied; and (2) petition for writ of mandate: denied

Petitioner Matthew Clements (“Clements”) seeks a writ of mandate directing Respondents Lydia Thompson (“Thompson”) and ArtCenter College of Design (“ArtCenter”) (collectively, “ArtCenter”) to set aside their findings and sanctions against Clements. Clements also moves to augment the Administrative Record.

The court has read and considered the moving papers,[1] opposition,[2] and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Clements commenced this proceeding on September 14, 2016. The operative pleading is the Second Amended Petition (“SAP”), filed September 7, 2017. The SAP alleges in pertinent part as follows.

Clements was, at all times relevant, an Associate Professor of Humanities and Sciences at the ArtCenter, and was the professor for the Visiting Artist Workshop: PERFORMANCE, ART 351 (“ART 351”) during the Spring Semester.

ArtCenter is a college that receives federal funds and is bound by Title IX and its regulations. As such, it is required to establish policies and procedures to address sexual harassment. ArtCenter sought to implement Title IX procedures through its 2015-2016 Student Handbook. The procedure set forth in the Student Handbook applies to student reports against faculty and requires a hearing, a decision based on the preponderance of the evidence standard, and that both the reporting party and the responding party each have the right to appeal the outcome of the hearing.

In the Fall 2015, Clements submitted a course proposal for a studio offering on performance art to the ArtCenter’s Fine Art Department. The department’s curriculum review committee approved the proposal, which included a syllabus, course description, assigned readings, videos, course outline, and performance assignments protocols and process. The approved course, ART 351, ran in Spring 2016.

Over the 14-week term, students in ART 351 designed five performances, most of which encouraged audience engagement and participation. As part of the five assigned performances, Clements, the students, the students’ invited friends, and various members of the ArtCenter community served as members in the participatory-audience group.

On April 21, 2016, eight students from the class, including Jane Roe (“Roe”),[3] publicly performed their performance-art pieces at ArtCenter. Roe’s Plan-Statement (pre-event) and Artist-Statement (post-event) relied upon audience-participation for her “Doll House.” Roe designed “Doll House” to continue themes from her earlier ART 351 performances: female submissiveness and objectification. Roe’s performance involved her laying on the floor as a doll and asking audience members to move her body or order her to perform tasks.

Before an audience of some 20 to 30 people, Clements performed part of the audience-engagement in “Doll House” by performing an exaggerated parody of an interaction between an “offensive, straight-male, ensconced in principles of hypermasculinity and heteronormativity,” and the vulnerable character Roe created for “Doll House.” As part of this parody, Clements kissed the “Doll.” The April 21, 2016 “Doll House” performance received positive reviews.

A week or so after the performance, Roe received correspondence from Title IX investigator Respondent Thompson who stated that she had received “a report regarding a serious incident that occurred to you on the night of the ArtCenter Grad Show on April 21, 2016.” On July 12, 2016, Roe informed Clements that the complaint was filed by a group of students who were not in the class.

Respondent Thompson conducted the investigation and made the determination of responsibility for the complaint against Clements. During the investigation and adjudication, ArtCenter provided no information about Thompson’s required Title IX training or private investigator’s license, and no information about her impartiality.

On September 12, 2016, ArtCenter notified Clements of his indefinite suspension on the ground that it was still conducting the Title IX investigation. No hearing was provided to allow Clements to challenge his interim suspension.

On January 10, 2017, almost nine months after the Title IX investigation was initiated, Thompson issued her summary of the investigation. Thompson found that Clements was responsible for kissing Roe on the lips without her consent during her performance of “Doll House” in violation of ArtCenter’s Policy Against Harassment and Prohibition of Sexual Harassment. Clements was informed that a reprimand letter would be permanently placed in his file as a result of conduct that was “improper, unprofessional, and unethical.”

Thompson informed Clements that he could appeal her decision to the Provost within ten days, and that “An appeal will only be considered if based upon (a) new, compelling evidence; (b) evidence of a mistake, fraud, bad faith, or incompetence in the investigation process; or (c) compelling argument that the sanctions imposed are not consistent with the severity of the violation(s).” Clements timely appealed Thompson’s decision.

On March 1, 2017, Thompson was terminated by ArtCenter from her employment as Director of Diversity, Equity, Inclusion and Title IX Coordinator. On March 22, 2017, Clements’ appeal was denied by ArtCenter’s Provost.

ArtCenter has failed to comply with its Title IX obligations because its administrative process does not afford due process and is not fair, impartial, reliable or equitable. Respondents have also issued a decision which is invalid under Code of Civil Procedure (“CCP”) section 1094.5.

2. Course of Proceedings

On September 15, 2016, Clements applied ex parte for a stay of the administrative decision. The court denied the stay, finding that Clements had shown no authority that the court should intervene in this matter.

On August 1, 2017, the court sustained Respondents’ demurrer to the First Amended Petition (“FAP”) without leave to amend. Clements’ claim for administrative mandamus under CCP section 1094.5 was not viable because he was not entitled to a hearing required by law. His claim for traditional mandate under CCP section 1085 was only for a hearing, and ArtCenter had no ministerial duty to provide one. The court set an Order to Show Cause (“OSC”) re: dismissal, and gave Clements permission to present new argument at the OSC hearing regarding whether Title IX applies to faculty and requires a hearing.

On August 22, 2017, the court granted Clements leave to amend to allege a claim for administrative mandamus under CCP section 1094.5 based on ArtCenter’s Title IX Policy and Procedures dated January 9, 2017 only and no other theory.

B. Standard of Review

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). Untenured professors do not have a legitimate claim of entitlement to continued employments, so the substantial evidence standard applies. See King v. Regents of University of California, (“King”) (1982) 138 Cal.App.3d 812, 816.

“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California Youth Authority”) (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value. Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n.28. The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole record. Young v. Gannon, (2002) 97 Cal.App.4th 209, 225. The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision. California Youth Authority, supra, 104 Cal.App.4th at 585.

The question of whether a university has complied with the requirements of fair procedure is an issue of law reviewed by the court de novo. Doe v. University of Southern California, (2016) 246 Cal.App.4th 221, 239. See Pet. Op. Br. at 8.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 515.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.” Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (1975) 47 Cal.App.3d 224, 228. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (1972) 26 Cal.App.3d 961.

C. Governing Law

1. Employee Handbook

ArtCenter’s Employee Handbook, issued April 2013, sets forth a summary of Art Center’s employee policies and procedures. AR 824, 831.

ArtCenter is committed to a policy of equal employment opportunity and does not discriminate against its employees or applicants on the basis of, inter alia, sex. AR 835 (§1.01).

ArtCenter is committed to provide a work environment that is free of any kind of unlawful harassment, and maintains a strict policy prohibiting unlawful harassment by any employee. AR 835 (§1.02)

All ArtCenter employees have a right to work in an environment free of harassment, including sexual harassment. AR 835 (§1.03). “Sexual harassment” is defined as “any unwelcome sexual advances, propositions or requests for sexual favors and other unwelcome verbal, visual or physical conduct of a sexual nature.” Id.

“Any type of harassment, whether engaged in by fellow employees, supervisors, and managers or by nonemployees with whom the employee comes into contact in the course of employment (e.g., students, visitors, service providers or contractors), is contrary to this policy and will not be tolerated. AR 836 (§1.04). ArtCenter encourages the reporting of all incidents of harassment or discrimination, regardless of who the offender may be.” Id. “All allegations of discrimination, harassment or retaliation will be investigated, and Art Center will take appropriate corrective action.” Id.

The Employee Handbook also discusses employment at-will. AR 837. The Handbook states: “ArtCenter has the right to terminate the employment relationship at will at any time, with or without cause or prior notice. This ‘at-will’ employment, which includes the College’s right to transfer, discipline, demote, or change the conditions of employment with or without cause or prior notice, cannot be modified … [except] by an express individualized written employment agreement signed by both the employee and the College Provost.” AR 837 (§1.07) (emphasis added).

2. Title IX Policy

On January 9, 2017, ArtCenter adopted a “Title IX Policy Prohibiting Discrimination, Harassment, Retaliation, Sexual Harassment, Sexual Misconduct, Sexual Violence, Dating Violence, Domestic Violence and Stalking against Students; and Procedures for Addressing such Complaints.”[4] (Title IX Policy” or “Policy”) AR 903. This Policy replaced the Sexual Misconduct Policy in the 2015-2016 ArtCenter Student Handbook. Id.

The Policy covers both students and employees, and both are “subject to its terms.” AR 905. The Policy defines sexual harassment as “unwelcome verbal, nonverbal or physical conduct of a sex-based and/or Gender-based, or sexual in nature.” AR 925. It includes sexual advances, requests for sexual favors, and any other non-consensual sexual conduct such as kissing. AR 925, 927. The Policy imposes an affirmative consent standard, which is defined as “an informed affirmative, conscious, voluntary and mutual agreement to engage in sexual activity.” AR 906.

Where there is an ArtCenter investigation of a Title IX complaint, the accused Respondent is to receive a “description of the Complainant’s allegations against the Respondent” and “an opportunity to respond to the allegations.” AR 912. “[T]he Complainant and the Respondent shall have equal opportunities to present relevant witnesses and evidence in connection with the investigation and equal access to information being considered in the investigative process.” AR 914. ArtCenter will conduct a fair and impartial investigation that will be completed no more than 60 calendar days after the intake interview, unless extended by mutual agreement. AR 914.

ArtCenter shall prepare an investigation report that “include[s] a summary of the allegations, the investigation process, the Preponderance of the Evidence standard, a detailed description of the evidence considered, and appropriate findings. AR 915. The investigation report is not provided to the Complainant or Respondent. Instead, the parties receive a notice which includes a summary of the allegations, the investigation process, the Preponderance of the Evidence standard, the evidence considered, the findings of fact, a determination whether the Title IX Policy was violated, and any remedies afforded to the Complainant. AR 915.

Either the Complainant or Respondent may submit a written appeal within ten days after receiving notice of the investigation’s findings. AR 915. The appeal shall be submitted to the Provost if the Complainant is a student and the Respondent is a faculty member. AR 915. The appeal shall be in writing and may be based only on the following grounds: (a) new compelling evidence not available during the investigation; (b) evidence of a mistake or fraud in the investigation, or prejudicial procedural errors that adversely affected the investigation outcome; and (c) the investigation outcome, including penalty, is not supported by the evidence. AR 915-16.

The ArtCenter administrator deciding the appeal may conduct an interview with the appealing party, at his or her discretion, to clarify the written appeal. AR 916. The ArtCenter administrator shall prepare an Appeal Response which includes a determination of the written appeal. Id. The Appeal Response is final and concludes the appeal process. Id.

3. Revised Title IX Policy

On February 8, 2017, ArtCenter issued a revised “Title IX Policy Prohibiting Discrimination, Harassment, Retaliation, Sexual Harassment, Sexual Misconduct, Sexual Violence, Dating Violence, Domestic Violence and Stalking against Students; and Procedures for Addressing such Complaints.” AR 935. The Revised Title IX Policy makes non-substantive changes. See id.

D. Motion to Augment

Clements moves to correct the record or augment it with extra-record evidence of ArtCenter’s 2015-2016 Student Handbook. Mot. at 2.

1. Governing Law

For the judicial review of a state agency decision made after hearing governed by the Administrative Procedures Act (“APA”), the “complete record of proceedings” shall be prepared. Govt. Code §11523. The complete record consists of “the pleadings, all notices and orders issued by the agency, any proposed decision by an administrative law judge, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence and any other papers in the case.” Id.

Apart from what must be included in the record, a petitioner may seek to augment the record with extra-record evidence. The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency. Toyota of Visalia v. New Motor Vehicle Bd., (1987) 188 Cal.App.3d 872, 881. The court can only consider extra-record evidence if it is shown that (1) the evidence could not with reasonable diligence have been presented at the administrative hearing, or (2) was improperly excluded at that hearing. CCP §1094.5(e); Fairfield v. Superior Court of Solano County, (Fairfield”) (1975) 14 Cal. 3d 768, 771-72; see Western States Petroleum Association v. Superior Court, (“Western States”) (1995) 9 Cal.4th 559, 578. In addition, extra-record evidence is admissible only if it relevant. Western States, supra, 9 Cal.4th at 570.

The Code of Civil Procedure does not expressly provide for a motion to augment or correct the administrative record, but they are routinely made. See e.g., Pomona Valley Hospital Medical Center v. Superior Court, (1997) 55 Cal.App.4th 93, 101.

2. Merits

Petitioner Clements contends that the 2015-2016 Student Handbook should be included in the Administrative Record because it was an applicable ArtCenter policy in effect at the time of the incident on April 21, 2016. Mot. at 2. Clements also argues without specificity that several Student Handbook provisions relate to ArtCenter’s Title IX sexual misconduct procedures in the instant case. Id.

This is an argument that the Administrative Record should be corrected. Clements’ contentions are conclusory and therefore unpersuasive. Clements’ contention that the 2015-2016 Student Handbook was in effect at the time of the incident does not show how or why it is applicable to Clements as a faculty member. Clements fails to cite any Handbook provision that would indicate why it is relevant. This case concerns faculty, not student, discipline.

Clements presents more detail in reply. But an argument raised for the first time in reply constitute an improper basis to grant relief. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333. The motion to augment must be denied.

Assuming arguendo that the court should consider Clements’ arguments in reply, he disputes ArtCenter’s contention that his FAP alleges that the Employee Handbook was the only source for the policies and procedures applicable to faculty misconduct. FAP ¶32. Clements argues that he alleged in the SAP that the Student Handbook applies to student reports against faculty, including Petitioner. SAP ¶45. ArtCenter conceded in its verified Answer to the SAP that the Student handbook applies to allegation of misconduct by students. Second Amended Answer ¶41. Reply at 1-2.

This argument is untenable. ArtCenter’s agreement that the Student Handbook applies to misconduct by students does not mean that ArtCenter has conceded that the Student Handbook applies to misconduct by a faculty member as reported by a student.

Clements contends that he consistently argued in his administrative appeal that he had not been informed of the ArtCenter policies he was being accused of violating, and his appeal also stated that harassment policies are implemented for students through the Student Handbook and for employees through the Employee Handbook. AR 231. Reply at 2-3. It is not true that Clements has consistently argued that the Student Handbook is relevant. In the FAP, Clements alleged that “ArtCenter had one source of written policies and procedures for allegations of misconduct by faculty: the Employee Handbook.” FAP ¶32.

Clements argues that ArtCenter included the 2017 Student Handbook in the Administrative Record, which lends support that the 2015-2016 Student Handbook should be included as well. Reply at 3. Clements does not explain why the 2017 Student Handbook was included in the record and he gave ArtCenter no opportunity to do so by addressing it only in his reply. The inclusion of the 2017 Student Handbook in the record only shows that it is relevant to some aspect of the case. It does not show that the policies set forth in the 2015-2016 Student Handbook apply to the allegations against Clements.

The Record shows that the Title IX Policy replaced the Sexual Misconduct Policy in the 2015-2016 ArtCenter Student Handbook. AR 903. Since the Title IX Policy was adopted on January 9, 2017, the day before ArtCenter’s decision, it could not retroactively govern Clements’ conduct in this case. This would be a reason to include the 2015-2016 Student Handbook in the Record; its sexual harassment prohibitions might govern Clements’ conduct. But Clements does not even refer to the contents of the 2015-2016 Student Handbook in his briefs. Therefore, it is irrelevant.

Clements then addresses the portion of the motion made to include extra-record evidence. He argues that the 2014-2015 Student Handbook could not have been presented at the administrative hearing with reasonable diligence. Reply at 4. This argument is not viable. Clements acknowledges that his course syllabus states that the Student Handbook governs “any kind of unlawful harassment” committed against students “by any employee and by any third parties.” Reply at 2. He obviously knew about this document’s existence, and there is no reason why he could not have presented it in reasonable diligence at the hearing. In fact, he presents no evidence on this issue, which is fatal to an extra-record claim.

Clements’ motion to correct or augment is denied.

E. Statement of Facts

1. Course Description

In the Fall 2015, Clements submitted a course proposal for a studio offering on performance art to ArtCenter’s Fine Art Department. AR 60. The Fine Art Department’s curriculum review committee approved the proposal, which included a syllabus, course description, assigned readings, and performance assignments. AR 60, 126-208. The approved course, ART 351, ran in Spring 2016. AR 60.

In preparing the class, Clements researched professional performance artists in the same age group as ArtCenter students. Id. He learned that the issues most affecting them, and therefore thematically present, in up-and-coming performance artists’ work were body, gender, sexuality, race, and class. Id. Accordingly, Clements incorporated these themes in his course syllabus and assignments. Id.

Students in Clements’ class studied the ways in which performance art is interactive and a participatory medium. AR 60. The course underscored how performance art intentionally blurs boundaries between performer and audience and how performers can use audience participation to help make a thematic statement. Id. To this end, the course required students to design five performances which encouraged or involved audience engagement and participation. Id.

2. Roe’s Public Performance

a. The Planning

Roe, a student in Clements’ course, designed a performance art piece called “Doll House.” AR 66. Her goal was to continue two themes from her earlier performances: female submissiveness and objectification. AR 568.

On April 19, 2016, in advance of her final performance in Clements’ course, Roe submitted to Clements a pre-performance planning statement. AR 54, 56. In her statement, Roe explained that her piece would involve her “wearing body tights (what ballet dancers wear),” laying on the floor like a doll, and asking 1-2 people at a time to enter a “doll house” and “do whatever they wish to do.” AR 56. In the statement’s “possible problem” section, Roe acknowledged that the performance could be “metaphorically sexual even without sexual content.” Id. She asked Clements whether he thought incorporating some adult toys into the performance would be too sexual and even though she did not think “anyone will try anything sexual on me even if I have those things.” Id. She also asked whether alcohol could be present during the performance. Id.

That same day, Clements responded that alcohol was a good idea, but it could not occur because of the school’s potential liability. AR 54. Clements thought adult toys were a good idea. AR 54. Clements added: “I agree no one will actually mess with you… but you may be fondled, you are kind of granting license for such activity…. Will you be OK if someone from the audience whom we don’t know wishes to push your performance a little farther?” Id. Clements also commented, “body suit or nude? (Isn’t nude better?…).” Id. Clements rejected Roe’s proposal to bring alcohol for school liability reasons. Id.

Roe replied that she would not perform in the nude and that she did not think anyone would “mess with [her] sexually when they all know that [she’s] married, but I’ll think about it.” AR 53.

Clements responded that he suspected some audience members would not know she is married because they will have never seen her before. AR 53. He encouraged Roe to revise her performance format to allow a whole group of people to enter the “Doll House” at the same time to create the most dynamic performance event possible. Id.

b. The Performance

Roe and other students performed their performance art pieces at the ArtCenter on April 21, 2016. AR 214. Prior to her performance, Roe decided to incorporate an adult toy with batteries in her performance, but asked Clements to stop the performance if anyone tried anything sexual on her or tried to use the toy on her. AR 25. Clements responded, “Of course.” AR 20, 25.

During the performance, the audience asked Roe to perform simple tasks like “eat,” “wear,” and “dance” as well as sexual tasks like “lick,” “kiss,” and “touch.” AR 67.

Clements was in the audience. AR 228. During the performance, Clements kissed Roe. Id. Several witnesses described seeing Clements kiss her on the lips for an uncomfortably long time, and he appeared to put his tongue in her mouth. AR 20-22. A witness described the act as an “exaggerated parody of an offensive, straight male ensconced in principles of hypermasculinity and heteronormativity engaging with the vulnerable character the student [Roe] created for ‘Doll House.’” AR 228.

After the performance, witnesses described Roe as angry and/or crying. AR 20-22. Witness Evan Blake described Roe as really angry because she believed that Clements would stop the performance if anything sexual occurred, and he was the one kissing her. AR 22.

c. Roe’s Post-Performance Statement

On April 24, 2016, Roe submitted to Clements her post-performance Artist Statement. AR 66-67, 85. Roe remarked: “While some audience members continued to acknowledge the Doll as a person …, some completely neglected and objectified the Doll without consents (sic.) or doubts.” AR 67. Roe also remarked: “By performing the extreme example of submissive female, the artist allowed the audiences to have personal experiences as either the offender, or a bystander of the female objectification.” AR 67.

Later that day, Clements emailed Roe thanking her for her “very wonderful work” and informing her that she would receive an “A” in the course. AR 84. Roe thanked him in response and expressed her desire to have Clements teach the course again so that she could sit in on future performance shows. Id. “Performing is a bitch but everything else was fun!” Id.

3. The Investigation

a. The Complaint

On April 25, 2016, a Fine Art student complained to Kendra Stanifer, an ArtCenter Grievance Intake person, about “an incident that occurred on April 21, 2016 at … the Fine Art Grad show opening.” AR 42. The reporting party admitted that he/she had not experienced the incident firsthand, and only heard about it from other students. AR 42. The reporting party stated that Clements “made out” with Roe, appeared “clearly intoxicated” during the performance, and gave Roe sexually-charged critiques about her performance piece in class. AR 42-43. The reporting party also voiced concern that an unidentified person used an electric dildo on Roe during the performance. AR 43.

The reporting party’s statement was provided to Thompson, the then-Director of Diversity, Equity, Inclusion, and Title IX Coordinator. See AR 17.

b. Witness Interviews

On May 3, 2016, Thompson interviewed Witness Kate Tasumi (“Tasumi”) who stated that Clements kissed Roe “on the lips for about 10 seconds” and appeared to be “making out” with her. AR 20. Roe told Tatsumi that she felt “betrayed” by Clements and had not wanted him to kiss her. Id.

On May 5, 2016, Thompson emailed Roe stating that she had received “a report regarding a serious incident that occurred to Roe on the night of the ArtCenter Grad Show on April 21, 2016.” AR 86.

Roe forwarded Thompson’s email to Clements and asked him if he knew anything about it. AR 89. Roe further stated that she had emailed Thompson that “I don’t recall anything special.” Id.

Roe and Clements exchanged several emails. AR 88-89. Clements stated that he would like to talk to Roe prior to her meeting with Thompson. AR 88. On May 14, 2016, Clements shared with Roe a “list of talking points” which Roe could use in her interview by Thompson if she wished to do so. AR 93. On May 17, 2016, Roe responded that she would “deny everything to end this [as] quickly as possible” without having to explain that the performance was legitimate. AR 97-98. Clements expressed agreement with Roe’s plan. AR 97.

On May 19, 2016, Thompson interviewed Witness Ashley Campbell (“Campbell”). AR 20. Campbell reported that Clements grabbed Roe and “passionately kiss[ed]” her for an “uncomfortably” long time. Id. Campbell saw Roe crying afterwards, and Roe told her that she was upset and embarrassed. Id.

On May 20, 2016, Thompson interviewed Roe. AR 20. Roe told Thompson, inter alia, that a lot of people kissed her during the performance and that she did not know if Clements was one of them. AR 20-21.

b. The Request to Interview Clements

On July 5, 2016, Thompson sent Clements an email as the Title IX Coordinator informing him “of an open investigation at ArtCenter for which I need to interview you. This is a confidential matter….” AR 726. Over the next week, Thompson and Clements corresponded to schedule his Human Resources (“HR”) interview. AR 722-27. On July 9, 2016, Clements emailed Thompson and asked if he were a witness or a target of a complaint. AR 723. He stated that, if he was a target of the investigation, he was entitled to certain information before the interview: (a) notice of the incident report that specifies the date, time, and location of the alleged incident; (b) the right to inspect documents; and (c) the right to an advisor of his own choosing. AR 723.

On July 12, 2016, Thompson responded, informing Clements that the HR interview “is in regards to a Title IX complaint from an incident that occurred on the evening of April 21, 2016, involving” Roe. AR 125. “The complaint alleges that you kissed [Roe] on the lips, without her consent.” Id. Thompson stated that Clements could bring an advisor to any interview. AR 722. “You have the right to review evidence during the investigative interview and subsequent investigative process. Any evidence that I have will be presented to you during the investigative interview.” Id. During the investigation, Clements would have the right to respond to the allegations, submit documentary evidence, and provide a list of potential witnesses. Id. Thompson referred Clements to Title IX, section 304 of the Violence Against Women Reauthorization Act of 2013 (“VAWA”), the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (“Clery Act”), and sections 1.01-1.05 of the Employee Handbook. Id.

That same day, Clements emailed Roe to discuss the allegations. AR 631. Roe replied that she did not file the complaint and that she did not know initially what the incident was. Id. Roe told Clements that the investigation started when she was in Korea. Id.

c. Communications with Clements’ Attorney and His First Interview

On July 13, 2016, Clements’ attorney sent Thompson a letter stating that there was no factual basis to maintain an investigation against Clements because Roe did not complain that anyone kissed her without her consent. AR 645. Later that day, Thompson responded directly to Clements: “This confidential HR interview is regarding a Title IX complaint from an incident involving you and [Roe], a student, that occurred at the College. As a result, ArtCenter is legally obligated to investigate this matter.” AR 639.

On July 14, 2016, Clements’ attorney requested the following documents from Thompson: (1) the ArtCenter policy that he was alleged to have violated; (2) the Title IX complaint lodged against him; and (3) witness statements and any other evidence supporting the policy violations. AR 648-49.

On July 25, 2016, Thompson re-interviewed Roe. AR 22. Roe reported that she “did not ask Clements to kiss her during her performance of ‘Doll House.’ Clements kissed Roe on her lips for more than five seconds. Roe thinks ‘his tongue lingered’ on her lips, but didn’t go in her mouth.” Id. Roe was “mad” that Clements kissed her and “allowed other people to do that, too.” Id. Roe stated that Clements “made it possible for more people to do this,” even though she “specifically asked him not to.” Id. Roe explained that she initially denied the allegations because she “was mad about what happened and didn’t want [Clements] to get fired.” Id.

On July 27, 2016, Thompson met with Clements and his attorney. AR 22. Clements provided Thompson with a memorandum regarding the performance class and the night of the incident. AR 23, 60-62.

d. The Suspension

On July 28, 2016, Thompson issued Clements a non-contact directive instructing him not to have contact with Roe. AR 777.

On September 8, 2016, ArtCenter confirmed Clements’ new class schedule for Fall 2016. AR 679.

On September 10, 2016, ArtCenter’s Associate Provost asked to meet with Clements on September 12, 2016. AR 681. On that date, Thompson notified Clements of his indefinite suspension with pay effective immediately and pending completion of the investigation. Id.

e. The Additional Allegations

On September 22, 2016, Thompson notified Clements that additional allegations came to light during the course of her investigation, including: (a) he was intoxicated during the performance, (b) an electric dildo was used on Roe and he was involved, (c) he had given Roe sexually-charged critiques in previous classes, suggesting that she perform in the nude and give a male student a “blowjob”, and (d) he sent Roe emails about the investigation, including giving her talking points for her interview and asking her to forward any emails she gave to Thompson. AR 783-84.

On October 19, 2016, Clements’ attorney wrote to Thompson: “As you know, a respondent/employee is entitled to notice of any policy violations and to be presented with any evidence of such policy violations. To date, you and ArtCenter have refused to provide any reports, complaints, evidence, witness statements, or any other evidence supporting your allegations.” AR 785.

f. The Second Clements Interview

On October 20, 2016, Thompson met again with Clements and his attorney. AR 23. Clements again provided Thompson with a written memorandum responding to the September 22 allegations. AR 23, 64. Although Thompson provided Clements with numerous emails, letters, and sections 1.03 and 1.04 of the Employee’s Handbook, which had been previously provided in the July 27, 2016 interview. AR 786-88. Thompson did not provide an investigative report, the complaint, or witness statements. See id..

During the interview, Thompson asked Clements if Roe asked him to kiss her during the performance. AR 23. Clements responded that Roe’s plan made clear that she was relying on audience participation and that such engagement was consensual. Id. Clements denied the allegation that Roe asked him to stop the performance if anyone attempted to do anything sexual to her. AR 24. Clements saw maybe ten people kiss Roe, but he did not remember who. Id.

g. The Third Roe Interview

On October 27, 2016, Thompson interviewed Roe for a third time. AR 25. Roe reiterated that she asked Clements to stop the performance if anyone tried anything sexual on her. AR 25. By sexual, she meant any kind of provocative interaction: touching, verbally or physically harassing her, and intense kissing (meaning something more than hello). AR 26. She did not think anything would happen under the professor’s watch. Id Roe did not consent to anyone kissing her. AR 26. She remarked, “I didn’t think I would be kissed — especially by a professor. Isn’t that against school policy — especially when I’m taking his class and getting his grade? … I was still his student. I didn’t consent.” Id.

On December 20, 2016, Clements’ attorney asked Thompson, inter alia, for a copy of the complaint and the evidence she had collected during the investigation. AR 797. ArtCenter’s counsel responded: “As you know, Mr. Clements has been advised of the allegations against him and provided a complete opportunity to respond to those allegations.” AR 800. Art Center did not provide any of the requested evidence. Id.

4. Thompson’s Decision

On January 10, 2017, Thompson sent Clements her summary of the investigation. AR 1. Thompson stated that the investigation was conducted under Title IX and ArtCenter’s Employee Handbook, which prohibits harassment and sexual harassment. AR 2. Thompson found that Clements kissed Roe on the lips during her performance and that she did not consent to the kiss. AR 3. This conduct violated ArtCenter’s Policy against Harassment and Prohibition of Sexual Harassment. AR 6. Thompson also found that Clements’ emails to Roe after the commencement of the investigation were inappropriate even though there was no policy violation and his explanations for them were not credible. AR 5. Thompson found that insufficient evidence supported the allegations that Clements was intoxicated during the performance, was involved in using an adult toy on her, and that he gave Roe sexually charged critiques during previous performance classes. Id.

Thompson notified Clements that he would be receiving a letter of reprimand and required to complete sexual harassment training. AR 6-9. Thompson also stated that Clements could appeal the outcome of the investigation to Fred Fehlau (“Fehlau”), the ArtCenter Provost if the appeal was based upon (1) new, compelling evidence; (2) evidence of a mistake, fraud, bad faith, or incompetence in the investigation process; or (3) compelling argument that the sanctions imposed are not consistent with the severity of the violations. AR 6.

5. The Appeal

On January 19, 2017, Clements sent a written appeal to Fehlau. AR 818-19. Fehlau met with Clements regarding the appeal. AR 823. On March 22, 2017, Fehlau denied Clements’ appeal. AR 714-15. Fehlau’s basis for denial, in part, was that a written reprimand “represented [the] exercise of ArtCenter’s disciplinary discretion against [Clements] as an at-will employee.” AR 714. Fehlau also stated that ArtCenter disclosed to Clements all pertinent information regarding the allegations and that it provided Clements with ample opportunities to respond. AR 715.

F. Analysis

Petitioner Clements seeks a writ of mandate directing Respondents to set aside the decision and reprimand. He contends that (a) ArtCenter’s Title IX proceeding was unfair, and (b) the findings were not supported by the evidence.

1. Administrative Mandamus

The threshold issue is whether Clements was entitled to any disciplinary procedure at all, and if so, what kind? Administrative mandamus under CCP section 1094.5 is a form of judicial review that has three required elements: (a) a hearing was required by law, (b) evidence is required to be taken, and (c) the administrative agency has made a final discretionary decision based on findings of facts. Environmental Protection Information Center v. California Dept. of Forestry &Fire Protection, (2008) 44 Cal.4th 459, 520.

Did Clements have any due process rights? Clements was a part-time, Adjunct Associate Professor employed by ArtCenter as an at-will employee. Employees in California are presumed to be employed at-will, and may be disciplined without an evidentiary hearing. Labor Code §2922; DiGiacinto v. Ameriko-Omsery Corp., (1997) 59 Ca1.App.4th 629, 634-35 (holding that when an employee may be discharged at will, he may also be subject to lesser discipline at will); Crosier v. United Parcel Service, Inc., (1983) 150 Cal.App.3d 1132, 1140. As an at-will employee, Clements had no protected property interest in continued employment. Moreover, as a private educational institution, ArtCenter’s employee discipline is not governed by the due process requirements of the United States Constitution or the California Constitution because there is no “state action.” See also Shoemaker v. County of Los Angeles, (1995) 37 Cal.App.4th 628, 632 (employee’s removal from position at private university does not constitute state action, and does not implicate the due process clause). As an at-will employee of a private institution, Clements had no protected property interest and no due process right to a hearing that would trigger a CCP section 1094.5 claim.

Respondent ArtCenter points out that administrative mandamus review does not apply even where a hearing is provided on discretionary grounds because such a hearing was not “required by law.” 300 DeHaro Street Investors v. Department of Housing and Community Development, (“300 DeHaro”) (2008) 161 Cal.App.4th 1240, 1251; Coelho v. State Personnel Board, (1989) 209 Cal.App.3d 968, 970-71. ArtCenter argues that its Employee Handbook expressly states that, absent a written employment agreement, the school has the right to discipline at-will employees with or without cause, and without prior notice. Opp. at 7 (citing AR 837). Clements has not pointed to any employment agreement between himself and ArtCenter that would require a hearing before disciplining him. Id.

This is true, but the hearing necessary for administrative mandamus is not required to be imposed by statute. A private university may have an internal grievance process, and administrative mandamus applies to an adjudicative hearing that is required by an organization’s internal rules and regulations, or due process. Pomona College v. Superior Court, (1996) 45 Cal.App.4th 1716, 1727, n.10 (citations omitted). Clements does not cite any grievance rights under the Employee Handbook that ArtCenter followed or failed to follow. But he does rely on ArtCenter’s Title IX Policy. The Title IX Policy expressly states that it applies to both students and faculty (AR 905), and it sets forth procedures for the investigation of a Title IX complaint, including the rights of the accused to receive a description of the allegations (AR 912), an opportunity to respond and to present relevant evidence (AR 912), the preparation of an investigative report (AR 915), notice to the parties of a summary of the allegations, investigation, evidence considered, findings of fact, and decision (AR 915), and the right of the losing party to appeal. AR 915-16.[5]

The court must consider the intersection of ArtCenter’s policies in the Employee Handbook and its Title IX Policy. The Employee Handbook states that the school can discipline Clements with or without cause. AR 837. Thus, the school can clearly reprimand Clements and choose not to renew his position as an Adjunct Professor, as it apparently has done. But it may not make a finding to support the reprimand that Clements violated Title IX Policy by kissing Roe without consent unless it followed its own Title IX Policy investigative procedures.

The issue becomes whether ArtCenter’s Title IX Policy procedures qualify as a hearing required by law for purposes of administrative mandamus. The fact that the Title IX Policy does not call for a formal hearing at which the accused is present is not fatal to this determination. Administrative hearings are often informal, and may be based on only written evidence. Purely documentary proceedings can satisfy the hearing requirement of section 1094.5 so long as the agency is required by law to accept and consider evidence from interested parties before making its decision. Friends of the Old Trees v. Department of Forestry & Fire Protection, (1997) 52 Cal.App.4th 1383, 1391. Where an agency makes a decision based upon one party’s unilateral submission of information without an opportunity for other interested parties to submit evidence, no hearing occurs within the meaning of CCP section 1094.5. 300 DeHaro, supra, 161 Cal.App.4th at 1250. In that circumstance, there still must be something in the nature of a hearing – “an adversarial process in which the agency resolves disputed facts after affording interested parties an opportunity to present evidence.” Id. at 1251.

In its Title IX Policy procedure, ArtCenter gathers evidence and prepares an investigative report. The report includes evidence from the accused respondent, and may include evidence from the complainant. The investigator also makes the decision – described by Clements as the “single investigator model” — which is subject to appeal. See Pet. Op. Br. at 13. This procedure qualifies as a paper hearing required by ArtCenter’s own rules for which administrative mandamus will lie.

What is the nature of the hearing ArtCenter was required to follow? Clements contends that, since it is required to conduct a hearing, ArtCenter is governed by the law of fair procedure. Pet. Op. Br. at 10. Administrative mandamus is also available when a hearing is required by the “common law right to fair procedure protecting individuals from arbitrary exclusion or expulsion from private organizations which control important economic interests.” Delta Dental Plan v. Banasky, (1994) 27 Cal. App. 4th 1598, 1607 (emphasis in original). Fair procedure comes into play where private organizations are “tinged with public stature or purpose” or attain a “quasi-public significance”. Id. at 1607. Because of the need to defer to a private university’s academic decisions, judicial review of a denial of tenure is limited to the fairness of the administrative proceeding. Pomona College, supra, 45 Cal.App.4th at 1726. Other employee grievance proceedings may be the equivalent of a hearing triggering administrative mandamus review and requiring a fair administrative hearing. Id. at 1730. Hence, Clements is correct that he was entitled to a fair Title IX Policy hearing.

2. Fair Hearing

A fair hearing requires “”[a]dequate notice of charges and a reasonable opportunity to respond.” Applebaum v. Board of Directors, (1980) 104 Cal.App.3d 648, 657. The specific requirements of a fair trial vary depending upon the situation and interest involved. Id. A fair hearing does not require a formal hearing with the right to confront and cross-examine witnesses. Goodstein v. Cedars-Sinai Medical Center, (1998) 66 Cal.App.4th 1257, 1265-66 (“fair procedure does not compel formal proceedings with all the embellishments of a court trial”) (citation omitted). Fair procedure does require adequate notice and a reasonable opportunity to be heard. Tiholiz v. Nortridge Hospital Foundation, (1984) 151 Cal.App.3d 1197, 1202. The adequacy of an administrative hearing is an issue of law for the court. Pomona Valley Hospital Medical Center v. Superior Court, (1977) 55 Cal.App.4th 93, 101.

a. Notice of Charges

Petitioner Clements argues that ArtCenter failed to provide sufficient notice of the charges. ArtCenter’s Title IX Policy is devoid of procedure s for providing notice to an accused. Neither Roe nor Clements understood the purpose for Thompson’s requested meetings and were not aware of the anonymous complaint. AR 751. Thompson failed to inform him about the allegations for over two months, and only after his request did Thompson provide on July 12, 2016 a barebones email stating that an undisclosed “Reporting Party” claimed Petitioner kissed Roe on the lips without her consent. AR 722. Months later, on September 22, 2016, Clements received a Notice of Additional Allegations, but no notice of specific policy violations. AR 783-84. Pet. Op. Br. at 10-11.

As ArtCenter points out, Thompson’s July 12, 2016 email gave Clements notice of the date of the incident, Roe’s identity, the allegation of unconsented kissing, and the relevant Employee Handbook policies (§§ 1.01-1.04) and Title IX law. AR 722. This notice occurred before Clements’ July 27, 2016 interview. AR 22-23. When the scope of allegations expanded, Clements was given additional notice on September 22, 2016. AR 783-84. Clements was interviewed again on October 20, 2016. AR 23. This notice was adequate for purposes of fair procedure.

Clements argues that the timing of the notice was unfair because he was not informed of the allegations until three months after the investigation began, and only after he asked. Reply at 4. The timing of notice is a matter of some agency discretion. There is nothing wrong with delaying notice of allegations until the investigator has verified that there are allegations that need a response. Clements was informed about the allegations before he was interviewed, and he can claim no prejudice from the delay. Indeed, he was able to provide written statements for his interviews showing that he knew precisely what was at issue.

Clements contends that the notice was overinclusive in citing the WAWA and Cleary Act and also did not state the authority on which an employee could be disciplined for a Title IX violation. Reply at 5. Clements argues that the Employee Handbook policies (211.01-1.04) do not apply to complaints by students against employees. Reply at 5. He further argues that he was given notice of the 2001 Guidance definition of sexual harassment only in Thompson’s January 10, 2017 findings. AR 2.

Clements is simply wrong in stating that the Employee Handbook does not apply to complaints by students against employees. The Employee Handbook applies to any employee misconduct, and most certainly applies to employee sexual harassment of a student. ArtCenter maintains a strict policy prohibiting unlawful harassment by any employee. AR 835 (§1.02). The Employee Handbook defines “sexual harassment” as “any unwelcome sexual advances, propositions or requests for sexual favors and other unwelcome verbal, visual or physical conduct of a sexual nature.” AR 835 (§1.03). “Any type of harassment is contrary to this policy and will not be tolerated. AR 836 (§1.04). “All allegations of …harassment… will be investigated, and Art Center will take appropriate corrective action.” Id. This includes sexual harassment of a student by a faculty member.

While the notice was overinclusive, there was no harm in it. As for the 2001 Guidance definition of sexual harassment in Thompson’s January 10, 2017 findings (AR 2), Clements points to no difference between that definition and the Employee Handbook’s definition. AR 835.

The notice of allegations and policy violations given to Clements complied with fair procedure.

b. Disclosure of Evidence

Petitioner relies on student discipline cases to contend that fair procedure required ArtCenter to disclose the names of the witnesses against him and the gist of their proposed testimony. See USC, supra, 246 Cal. App. 4th at 246; Dixon v. Alabama St. Bd. of Ed., (5th Cir. 1961) 294 F.2d 150, 159. Pet. Op. Br. at 11; Reply at 5-6.

The fair hearing procedure for student discipline requires notice to the student of the pendency of the action and an opportunity to present a defense. USC, supra, 246 Cal.App.4th at 240. This generally requires that the student be informed of the factual basis for the charge against him. Id. at 243 (fair hearing not provided where school shifted theory of discipline and student not informed at the outset of factual basis of allegations). “Even where constitutional due process protections do not apply, common law requirements for a fair hearing under section 1094.5 do not allow an administrative board to rely on evidence that has never been revealed to the accused.” Id. at 247. However, not even constitutional due process requires witness identities to be disclosed in all cases, particularly in cases involving a sensitive subject matter. See Granowitz v. Redlands Unified School District, (2003) 105 Cal. App. 4th 349, 356 (identification of accusers not required by due process). Where students are at risk of retaliation, a school may rely on their statements without requiring them to be identified. See John A. v. San Bernardino City Unified School District, (1982) 32 Cal. 3d 301, 308.

Clements was given the documentary evidence against him. Opp. at 10. On October 25, 2016, Thompson provided Clements with numerous emails and letters, and sections 1.03 and 1.04 of the Employee’s Handbook (which also had been previously provided in the July 27, 2016 interview). AR 786-88. He also was given a July 12, 2016 email string between himself and Roe. See id. Clements was not given the complaint, any witness interviews, witness summaries, or investigative report.

On January 10, 2017, Thompson sent Clements her summary of the investigation. AR 1. The summary set forth the investigation process, the applicable policies in the Employee Handbook and Title IX, the documents reviewed, Thompson’s findings of fact, and application of the findings to the law. Id. Clements did not receive the investigative report or witness summaries. Nor die he receive them for his appeal. The first time Clements saw the investigative report was when the Administrative Record was prepared. Pet. Op. Br. at 11.

Did ArtCenter’s failure to give Clements the complaint and witness summaries violate fair procedure? Unlike the student discipline cases on which Petitioner relies, nothing in fair procedure requires disclosure of the names of witnesses and the gist of their statements. Clements was only entitled to a reasonable opportunity to be heard. Tiholiz, supra, 151 Cal.App.3d at 1202. ArtCenter’s Title IX Policy is not inconsistent with this view. The Title IX Policy only requires that the parties receive a summary of the allegations, the investigation process, the Preponderance of the Evidence standard, the evidence considered, the findings of fact, a determination whether the Title IX Policy was violated, and any remedies afforded to the Complainant. AR 915. That is exactly what Thompson sent to Clements on January 10, 2017.[6]

The court believes that there would be cases of student discipline in which ArtCenter’s Title IX procedure would be inadequate. But this case concerns only the limited discipline of a faculty member that is an at-will employee. Fair procedure may be satisfied by a variety of procedures which afford a fair opportunity to present his position. Goodstein v. Cedars-Sinai Medical Center, (1998) 66 Cal.App.4th 1257, 1266. In most circumstances, Clements could be disciplined without notice. He was entitled to a fair procedure in this case only because the discipline is based on a finding of sexual harassment. In such a circumstance, disclosure of witness statements, and of witness identities, was not required.

Additionally, ArtCenter correctly argues that Clements can show no prejudice from a failure to disclose this information. The allegation was that Clements kissed Roe without her consent and that he sent her emails intended to influence her witness interview with Thompson. Clements was given copies of the emails and he admitted to kissing Roe. The only issues were consent and attempted witness influence. Clements submitted various documents on the issue, including Roe’s Artist Plan and post-performance Artist Statement, to show her consent. In his own interview, he was shown Roe’s email asking him to stop the performance if anything sexual happened and was given the opportunity to comment on Roe’s request. AR 25. Under these circumstances, Clements cannot show prejudice from the failure to disclose witness identities and statements.

In reply, Clements argues that he could have used the witness statements to contradict Roe’s fluctuating account of events and challenge whether it was sexual in nature. Nor could he request that additional witnesses be interviewed without knowing what witnesses were interviewed. Reply at 6. Clements does not explain how he could have used the witness statements. The facts were straightforward and whether Clements violated Title IX Policy by kissing Roe, even if she was performing as a compliant doll, is really a black and white issue. Either he did or did not violate the Policy, and there is nothing in the witness statements, including Roe’s credibility issues, which could change that fact.[7]

c. Opportunity to Question Roe

Clements admits that there is no authority requiring that the accused be permitted to directly question a complainant, but argues that a procedure allowing the accused to submit questions to be asked by the investigator satisfies fair procedure requirements. Doe v. Regents of University of California, (2016) 5 Cal.App.5th 1084. Clements argues that questioning of Roe would have clarified whether she consented to the kiss. Pet. Op. Br. at 11-12. ArtCenter correctly argues that no case requires that an at-will faculty member be given an opportunity to question his/her accuser, directly or indirectly.

d. Bias of Investigator

ArtCenter’s process requires an investigator to conduct a “prompt, fair, and impartial investigation and resolution process.” AR 1001. This includes the right to an impartial adjudicator. Applebaum, supra, 104 Cal.App.3d at 658. Clements argues that the single investigator model followed by ArtCenter enabled Thompson to abuse her power, as she did when threatening to discipline other students if Roe did not implicate Clements. AR 789.

Bias is never implied, and the burden is on the petitioner to show actual bias. Breakzone Billiards v. City of Torrance, (2000) 81 Cal.App.4th 1205, 1237. Clements has not shown that Thompson was biased. She decided several issues in his favor (AR 5, 27), and the record citation does not support Clements’ claim of bias. In an email to Clements, Roe said that Thompson told her the investigation of sexual harassment was for all students, not just Roe. AR 789. Thompson “made it sound” like Robert (apparently a student) will get in trouble unless she admits that Clements “started it”. Id. This ambiguous statement does not show Thompson’s bias.[8]

3. Substantial Evidence

Clements argues that the finding of sexual harassment is not supported by the evidence. He argues that the court should exercise its independent judgment, and he contends that sexual harassment was not established because the Employee Handbook does not include kissing as a form of prohibited sexual activity. AR 697. The Employee Handbook requires a showing that unwelcome physical conduct of a sexual nature, and a kiss during a public performance, invited by the performer in writing, is not prohibited conduct. He contends that Thompson completely disregarded Roe’s specific requests for audience participation in her performance to highlight the objectification of female sexuality. AR 312-14. Pet. Op. Br. at 15.

Clements does not have a fundamental, vested right to his job as Adjunct Professor. To the contrary, he was an at-will employee. Labor Code §2922; see King, supra, 138 Cal.App.3d at 816. Judicial review of ArtCenter’s sexual harassment finding is governed by the substantial evidence test.

Jane Roe’s performance was not a scripted piece that involved a kiss between two characters where a professor played one of the roles. It was an unscripted performance, and the written emails between Roe and Clements prior to the performance established that Roe was concern that audience members who did not know that she is married would engage with her in a sexual way.

Roe’s pre-performance planning statement stated that a “possible problem” was that the performance could be “metaphorically sexual even without sexual content.” AR 56. She said that she did not think “anyone will try anything sexual on me even if I have [a sex toy with me]. Id. Clements asked: “I agree no one will actually mess with you… but you may be fondled, you are kind of granting license for such activity…. Will you be OK if someone from the audience whom we don’t know wishes to push your performance a little farther?” AR 54. Roe replied that she did not think anyone would “mess with [her] sexually when they all know that [she’s] married, but I’ll think about it.” AR 53. Clements responded that some audience members would not know she is married. AR 53. Prior to her performance, Roe decided to incorporate an adult toy with batteries in her performance, but asked Clements to stop the performance if anyone tried anything sexual on her or tried to use the toy on her. AR 25. Clements responded, “Of course.” AR 20, 25.

Substantial evidence supports a conclusion that Roe was performing an unscripted performance to demonstrate female submissiveness and objectification. AR 568. She and Clements anticipated that audience members might take advantage of her sexually, and she specifically asked Clements to intervene if necessary.

In this circumstance, Roe did not anticipate that her professor would not be her protector, but rather would take advantage of her situation by kissing her. The unwelcome nature of the kiss is underscored by Clements’ authority-figure status as her professor. As Roe said in her third interview, she did not think anything would happen under the professor’s watch. Id Roe did not consent to anyone kissing her. AR 26. She remarked, “I didn’t think I would be kissed — especially by a professor. Isn’t that against school policy — especially when I’m taking his class and getting his grade? … I was still his student. I didn’t consent.” Id.

That Clements may have kissed Roe for purposes of enhancing her performance and not for sexual gratification is a mitigating factor, but does not excuse the act. The Employee Handbook defines “sexual harassment” as “any unwelcome sexual advances…and other unwelcome…physical conduct of a sexual nature.” AR 835 (§1.03).[9] Clements’ kiss – which witnesses described as passionate and uncomfortably long (AR 20) and he appeared to be “making out” with her (AR 20) – certainly qualifies as an unwelcome sex or gender-based act.

Additionally, Clements was reprimanded for his email with Roe in which he sent her talking points before her interview. AR 93-95. There is no smoking gun in the talking points, but it was certainly inappropriate for Clements to attempt to influence Roe’s witness statement. Clements’ opening brief fails to address the reprimand based on his emails to Roe. In reply, Clements claims he was merely attempting to assist Roe. Reply at 10. ArtCenter was certainly entitled to conclude otherwise.

Substantial evidence supports ArtCenter’s findings.

.G. Conclusion

The petition for writ of mandate is denied. ArtCenter’s counsel is ordered to prepare a proposed writ and judgment, serve it on Clements’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed writ and judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for ­­­July 26, 2018 at 9:30 a.m.

[1] Petitioner’s 16-page opening brief violates the 15-page limit of CRC 3.1113(d), and his counsel is admonished that the 15-page limit does not mean 15 pages plus a signature page.

[2] ArtCenter’s opposition footnotes violate the 12-point type requirement of CRC 2.104 and counsel is admonished to follow the rule in future cases.

[3] The parties’ briefs use the pseudonym of Jane Roe. However, Clements’ SAP, filed on September 7, 2017, discloses her full name and there has been no objection to this disclosure. Out of an abundance of caution, the court will continue to use the pseudonym.

[4] Title IX states in full: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

[5] In reply, Clements also notes that the United States Department of Education, Office of Civil Rights’ 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (“2001 Guidance”). AR 28. This document requires a school receiving federal funds to have a grievance procedure for sex discrimination in the schools’ education programs and activities filed by students against school employees, other students, or third parties. AR 28. Reply at 2.

[6] Thompson’s July 12, 2016 email to Clements did say: “You have the right to review evidence during the investigative interview and subsequent investigative process. Any evidence that I have will be presented to you during the investigative interview.” AR 722 (emphasis added). While witness interviews are evidence, in context it seems clear that Thompson was referring to documentary evidence – i.e., the emails disclosed on October 25, 2016.

[7] The court agrees with Clements that the existence of the appeal does not change the fair procedure analysis. Reply at 6.

[8] In an attempt to overcome lack of prejudice, Clements argues that the procedure was replete with structural error because there is no procedure for notice, no opportunity to respond to the evidence, no opportunity to question the complainant, and no evidentiary hearing. Pet. Op. Br. at 13-14. The short answer is that one of these alleged failures is untrue (notice) and the others are unnecessary in the context of this case.

[9] Similarly, the Title IX Policy “sexual harassment” as “unwelcome…physical conduct of a sex-based and/or Gender-based, or sexual in nature.” AR 925. Clements points out that this Policy was adopted one day before Thompson’s decision, and expressly added kissing as a prohibited activity. AR 906, 927. Pet. Op. Br. at 15. Clements is correct, although it seems unfair for him to rely on the Title IX Policy to support administrative mandamus, but argue that its definition of sexual harassment should not be applied to his conduct. In any event, the Title IX Policy’s definition of “sexual harassment” is consistent with that in the Employee Handbook.