‘Stacking the Deck’ Against Due Process at UCSD

Among the more unusual and important due process cases FIRE is following this summer is one that began with an allegation that a University of California, San Diego (UCSD) student cheated on a chemistry exam in 2011. Why does this case stand out? Because what it suggests generally about UCSD’s views on due process could have implications far beyond any one exam room, affecting untold numbers of students.

In May 2011, former UCSD student Jonathan Dorfman was accused of copying the Scantron sheet of another student during a chemistry exam. Following an academic disciplinary hearing, UCSD expelled him. Dorfman was granted a rehearing by the university’s Council of Provosts, but after the university ruled against him again, Dorfman filed suit against the university in 2012. (The San Diego Union-Tribune and Inside Higher Ed both provide detailed timelines of the ensuing legal fight.)

Throughout Dorfman’s efforts to prove his innocence, he has repeatedly sought—and UCSD has repeatedly refused to provide—basic evidence from the university that could tie him to the alleged cheating. Chiefly, he has asked UCSD to identify the student (referred to in court documents as “Student X”) whose answers he was alleged to have copied. The logic is simple: If Dorfman wasn’t in fact sitting next to Student X, UCSD’s case against him would quickly fall apart. Not having access to this information would deny Dorfman basic information necessary to defend himself in a hearing, in violation of his due process rights.

In September 2015, a California appellate court agreed, finding that UCSD had violated its own policies mandating “certain minimum procedural protections in disciplinary proceedings.” The court directed UCSD to overturn its decision in Dorfman’s case. A transcript of Dorfman’s August 2015 hearing (The College Fix has posted the document on its website) shows the surreal lengths to which UCSD went in defending its decision to withhold information that even its own attorneys conceded could vindicate Dorfman. UCSD, in fact, went so far as to claim Student X was not a “relevant witness” even though his proximity to Dorfman during the exam is central to the question of Dorfman’s culpability. Inside Higher Ed reported:

“Without this information, [the accused student] could not adequately defend himself against the charge of copying,” the court wrote in its decision. “No eyewitness evidence showed [the student] copied from another student. [He] may have been able to exonerate himself completely by showing Student X was not seated near him. Where Student X sat during the exam was, therefore, ‘knowledge relevant to the charge.’”

Because [the] instructor did not keep a seating chart, the court said, “the only avenue available to [the student] to obtain this information was through Student X.” According to a transcript of the university’s oral argument, a lawyer representing the university’s Board of Regents agreed with this assessment.

“Was Student X not relevant?” a judge asked the lawyer. “Did Student X not have relevant information?”

“Yes,” the attorney said. “Student X had relevant information.”

“OK,” the judge continued. “Extremely relevant information, arguably.”

“Extremely relevant,” the attorney said.

“Dispositive, arguably.”

“Potentially dispositive information.”

The attorney also said the university did not try to determine whether the two students sat near each other, nor did it ask the proctor of the exam if he or she had noticed anyone cheating.

“I think there’s a word for that,” a judge said, according to the transcript. “It’s called stacking the deck.”

By its own admission, then, UCSD claimed it had sufficient evidence to expel Dorfman even while admitting it hadn’t attempted to determine if Dorfman could possibly have copied from Student X. (Rather than do this, UCSD relied heavily on the argument that the likelihood of Dorfman and Student X’s answers being so similar was so small as to be indicative of cheating.) The College Fix’s reporting provides additional glimpses of the court’s incredulity:

As [attorney for UCSD Michael] Goldstein pointed to the alleged supremacy of the exams with matching wrong answers, Judge Terry O’Rourke blew up:

It would be so easy, wouldn’t it, if we just found out that Student X was on the opposite side of the room? And then you don’t have a case. And it seems to me to be the linchpin of this whole hearing. … It’s almost preposterous in my estimation that we’re sitting around bickering about statistical probability and hearsay and someone calculated this or that. … It’s so simple to find out where the other person was sitting, and you refuse to tell anyone.

An unidentified “female judge” agrees that UCSD’s failure to first investigate Student X’s location during the exam “seems like an enormous omission … in the chain of evidence.”

The question of Dorfman’s culpability in this matter is outside the scope of FIRE’s mission, as are issues concerning academic misconduct generally. But if this is how UCSD adjudicated Dorfman’s case—not only preventing him from accessing crucial information about his case, but also not doing its own due diligence to ensure its own investigators had the necessary information—what does it say about due process at UCSD generally? Would a student facing, say, a charge of sexual assault, encounter a similarly flawed process?

In fact, there is reason to believe that they would—and that some already have.

Just months before UCSD was rebuked by the court in Dorfman’s case, a different court faulted UCSD’s procedures in a case that had resulted in the suspension of a student for sexual assault, and it ordered the suspension be reversed. That court found, among other deficiencies, that UCSD unfairly hindered the student’s ability to question his accuser and admitted into evidence material that the student was not allowed to question or challenge, severely compromising the accused student’s ability to defend himself. Does that sound like “stacking the deck” to you? It does to us, and apparently the court agreed.

Writing of that case last year, FIRE’s Joe Cohn noted the importance of the case “because it demonstrates that when courts subject campus proceedings to scrutiny, the ugly truth of their shortcomings is glaring.” He wasn’t writing about Dorfman’s case, but he easily could have been.  

Following a hearing last Friday, Dorfman and UCSD are awaiting the court’s directions on how to handle matters from here. Should he decide to return to UCSD, Dorfman could face what would be the third hearing over his alleged cheating in going on six years. Hopefully, for UCSD and the rest of its students, the exposure that Dorfman’s case has brought to the university’s shameful practices will motivate it to clean up its procedures and give accused students the fair process they’re owed.