In August, we told you about an unusual and important due process case involving former University of California, San Diego (UCSD) student Jonathan Dorfman, who was expelled after being accused of copying another student’s Scantron sheet during a 2011 chemistry exam.
Dorfman sued the school in 2012, alleging that administrators committed critical due process violations by failing to consider readily available evidence that would have exonerated him—namely, the identity of the student he was alleged to have copied from—and the question of whether that student was even in the same room as Dorfman during the exam. Now, after a legal battle that has dragged on for more than five years, a Superior Court judge has decided in favor of Dorfman, ruling that if he re-enrolls and UCSD pursues a re-hearing on the cheating charges, UCSD must provide the potentially exculpatory evidence and an opportunity for Dorfman to question the student whose work he allegedly copied.
When we first wrote about this case, my colleague Peter Bonilla recapped the procedural shortcomings at issue:
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.
…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.)
According to The San Diego Union-Tribune, which has closely followed the case, the university has indicated it is “seriously considering having a ‘do-over’ hearing on the same charges if Dorfman returns to UC San Diego.” If that happens, Dorfman’s attorney, Robert Ottilie, told the Union-Tribune he would ask for the name of “Student X,” as permitted by the court’s order. He said Dorfman would also sue UCSD for damages if they discover that the school knew Dorfman couldn’t have cheated off Student X (if the school knew Student X had been seated in a different exam room, for example), but failed to disclose that information. As the Union-Tribune reports:
Ottilie said he thinks the school had contacted [Student X], but they didn’t use the evidence because it didn’t help their case…
“If we find out that they called Student X and they knew what Student X was going to say and they concealed it, then we’re going to the Board of Regents and disclose this whole sordid mess and ask that everyone responsible be held accountable,” he said.
The Superior Court’s opinion is below. FIRE will continue watching developments in this case.