D065865

DORFMAN v. UCSD
Transcript of Oral Argument by Attorney Michael Goldstein,
Representing Board of Regents of the University of California
Held on Monday 8/10/15 at 9 a.m.

Mr. Goldstein:

May it please the Court, my name is Michael Goldstein and Im here to

represent the Regents of the University of California this morning.

Female Judge:

Why, this is, this is my real problem. If the scantron, is the scantron
relevant if we dont know where Student X was sitting?

Mr. Goldstein:

Yes.

Female Judge:

Is it relevant, or it, is that a missing link in the chain of evidence here?

Goldstein:

Its not a missing link

Female Judge:

Because

Goldstein:

It would be, because there is other evidence that along with the highly,
highly suspicious matching scantron

Female Judge:

Is it suspicious if we dont know where Student X was sitting? Thats,

thats really the issue.

Goldstein:

Well, I dont want to dodge your question but let me ask you a question in
response. Is it

Various:

No, no...

Judge ORourke:

We dont let people ask questions.

Goldstein:

Okay. Okay. Okay. The question again is, is it suspicious without

knowing? Yes it is suspicious without knowing, for this reason. And the
reason that you, Justice Aaron, alluded to a few minutes ago.
In Mr. Dorfmans case, he and the other student matched 24 out of 26
answers the same. Now, you get a question right, theres only one way to
get the question right. If you get the question wrong, these are marked A,
the possible answers are A through E. There are five, there are four
different ways to get it wrong, and he the other student matched eight of
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ten wrong answers. Were not looking at a case like his, like his exhibit
that he did in the hotel room where he came up with a case where he
matched, where a couple of students matched because they got, I believe,
three wrong answers matched and one wrong answer did not match. We
have a situation in his case where there were eight matched wrong answers
and two unmatched wrong answers. That in itself is highly significant.
Thats why in the Fan case, which Mr. Ottilie cites in his brief, the court
relied on the same kind of statistic which was the probability that someone
would get the overlap between those answers, and that was not an expert
by the way in that case, that was a lay person who did that calculation.
But its in addition to all of the other evidence that is very suspicious
Female Judge:

Why dont you tell us what the other evidence is, since I think all of us are
concerned about the lack of information as to where Student X was sitting.

Judge ORourke:

It would be so easy, wouldnt it, if we just found out that Student X was
on the opposite side of the room? And then you dont have a case. And it
seems to me to be the linchpin of this whole hearing. Its very simple to
resolve the matter whether he copied the paper or not, simply by showing
that it was physically possible or not possible. Its so simple. Its so
basic. Its almost preposterous in my estimation that were sitting around
bickering about statistical probability and hearsay and someone calculated
this or that. Its so simple to look at physical proximity. I guess youd
call it Detective Lesson Number 1. And thats our problem with your
procedure and your case. Its so simple to find out where the other person
was sitting, and you refuse to tell anyone.

Goldstein:

With all due respect, Justice ORourke, you have in very few words put in
a very compelling way the argument in favor of revealing and presenting
witnesses like Student X in this case. There is an argument which, with all
due respect, is equally compelling on the other side of the argument

Judge ORourke:

We said to present the witness. We said to present evidence as to where

the person was sitting. And instead we were told that its irrelevant
because of the statistical anomaly its not necessary. You can
independently determine where the person was sitting, cant you?

Goldstein:

Where do we draw the line? For example, when Mr. Ottilie

Judge ORourke:

We draw the line of the side of due process, Mr. Goldstein. Thats where
we draw the line. Now, is it a due process violation not to actually talk to
the student and find out where the student was in proximity to Mr.
Dorfman? Theres no indication that anybody did it!

Goldstein:

Actually, on the contrary, Dr. Mahaffey, the presiding officer, asked Mr.
Ottilie, would you like me to reach out to the student which is what we do
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in many cases up and down our system, would you like me to reach out to
the student and ask the student, are you willing to participate? And
instead, Mr. Ottilie inundated her with a barrage of letters and the Court
will read the letters itself and
Judge ORourke:

We have.

Goldstein:

Okay.

Judge ORourke:

And let me ask you this. Separate and apart from that, why couldnt you
find out, as part of your own investigation, before you even charged with
someone with cheating?

Female Judge:

It seems like an enormous omission in the, in the chain of evidence. You

know, its hard to, its difficult for me personally to say well, you know,
this is obvious when we dont have a basic piece of information, you
know, and were accepting the testimony of a, of a not, not a statistician as
to the odds against this happening, instead of the actual evidence.

Goldstein:

Well, we have, we have here, Justice Aaron, not only the highly suspicious
match, but we also have the fact that he erased his test, the fact that
contrary to the instructions he did go, did not go down and tell the proctors
Ive erased the test. He has, trying to take the test in advance. These are
all together evidence that make up substantial evidence which, lets not
forget, Ive heard a lot of great ideas this morning, virtually of them
except one was in Mr. Ottilies brief. I responded to all of them in our, in
our Respondents brief so I urge the Court to go back if anything he said
this morning is appealing and look at what my response is. The one I did
not hear, Justice ORourke

Judge ORourke:

Your sarcasms not appreciated, Mr. Goldstein, and I think the recording
will show it. Try to show a little respect for our Court, would you please?

Goldstein:

I, I apologize, Judge ORourke, but the point I wanted to make was,

theres no mention in any of the proceedings of the trial court with respect
to the due process issue of having assistance of a lawyer. It isnt part of
our procedure for very good reasons. We want to keep this an educational
investigative process and not get up to a level where we are essentially in a
Superior Court. And the cases are very consistent on that issue that we
want to try to keep it informal. And thats one of the reasons we do not
permit lawyers to attend. If that was an issue that Mr. Ottilie had with our
procedure, he certainly did not include it as one of his due process
criticisms in his petition for writ of mandate.

Female Judge:

No, this is, I want to get back to the issue here. The Regents determined
that Student X was not a relevant party under the policy.
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Goldstein:

Correct.

Female Judge:

And that seems unfathomable.

Goldstein:

Well, what they, what the, they determined that a student is relevant if the
student is also a charged party so for example, two students are cheating
off of one another. Then we need to get the other student involved in the
proceeding because that student also likely is responsible for misconduct.

Female Judge:

Well, but

Female Judge:

But Mr., Mr. Goldstein, you determined, or the University determined that
the two, correct my thinking here if you would. The University
determined it wasnt relevant because two students werent cheating and
the only way you could have determined that was the fact that one student
changed the scantron so it could only have been that one student who was
cheating.

Goldstein:

Correct.

Female Judge:

But, did the University also not make the determination that changing the
scantron was, alone wasnt evidence of cheating?

Goldstein:

I, I believe the determination the University made was, simply making a

change is not misconduct. And thats now what

Female Judge:

Oh okay, but [unintelligible] --

Goldstein:

Excuse me, and thats not what they were charging him with here. What
they were saying was, you cheated and the evidence that you cheated was
that you changed the mark on the front. So changing the mark in itself

Female Judge:

Im having, I guess Mr. Goldstein, Im, Im, understand me here. Im just

trying to understand here that, speaking only for myself, Im having a little
problem with the Universitys interpretation of a relevant party or relevant
student when stakes are so darn high.

Female Judge:

It doesnt say, the definition does not say another cheating student. It says
one with direct and material understanding of the allegation.

Female Judge:

Thats where my problem, Mr. Goldstein, is, is why, I understand that the,
your brief said there was no need to burden Student X when the statistics
were so revealing. But, if Student X, if there had been any evidence that
Student X was sitting where could be, could be copied, Id have a, this
would be a different case for me. But there was just I understand, you
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cant compel Student X, but it didnt prevent the University from, from as
part of its case he cheated of saying Student X was sitting in this location,
so. This is where my problem is Mr. Goldstein, and if you can help me, I
would appreciate it, because this isnt fair in my view. This just isnt fair.
Goldstein:

I can, I can help.

Female Judge:

Go for it, please.

Goldstein:

And lets start with the rule, and this is in the administrative record on
page 483.

Female Judge:

483?

Goldstein:

Yes. The rule is, the instructor and the student shall have the right to
present relevant evidence relevant parties, excuse me, and question all
relevant parties present at the academic integrity review. So, the rule they

Female Judge:

So, so the professor has it, the student has it.

Goldstein:

Both the student and

Female Judge:

How does the student, how does the student have a right that can be
executed if the student doesnt know who the, the alleged X is?

Goldstein:

What this rule says is, how you get the people in the room is your
problem.

Female Judge:

Is your problem.

Goldstein:

We cant help you because our hands are tied. We do not have subpoena
power.

Female Judge:

[unintelligible]

Goldstein:

None of the administrative proceedings in the UC system have subpoena

power. Excuse me?

Female Judge:

You could provide information, you know. You could have tried to get
the information, you know. You dont have to subpoena somebody to ask
them where they were sitting and say, as far as we know this is where the
person was sitting, or give contact information if the, Student X appears to
[unintelligible]

Goldstein:

And I think thats where, I think thats where Dean Mahaffey was going. I
think she wanted to contact the student and get information about that, but
she was bullied, frankly, into not doing it at that point

Female Judge:

The problem is, the rules apparently dont require it. Hes told again that
Student X is not a relevant party, okay. Thats really the bottom line.

Goldstein:

Yes, because, right. Because what theyre trying to do, its actually, they
take it from a different angle. What theyre trying, their definition of
relevant party is, is constructed in such a way that theyre trying to keep
out witnesses who are not relevant.

Female Judge:

Okay, but this [unintelligible] --

Goldstein:

And what they try to do is limit it to people who are relevant.

Female Judge:

[unintelligible] Student X is not a relevant party? Was not relevant?

Goldstein:

The def, definition here,

Female Judge:

Im asking you. Was Student X not relevant? Did Student X not have
relevant information?

Goldstein:

Yes, Student X had relevant information.

Female Judge:

Okay. Extremely relevant information, arguably.

Goldstein:

Extremely relevant.

Female Judge:

Dispositive, arguably.

Goldstein:

Potentially dispositive information. On the other hand, the, the

administration, which had the burden in this proceeding, decided, with a
number of considerations in mind including having to burden
unnecessarily Student X, decided instead to put on the case they put on,
which consisted of the match of the two scantrons plus the altering of the
scantron plus the other evidence Ive already [unintelligible].

Judge ORourke:

But let me ask you this, Mr. Goldstein, it gets back to my original
question. Had you merely gone and asked Student X where he or she was
sitting in the room, the whole proceeding may not even have been
initiated. Will you grant that?

Goldstein:

Yes I will.

Judge ORourke:

All right. I think thats our concern. And that to us, why isnt that a
violation of due process then? We put on all this evidence instead, instead
of the dispositive, conclusive evidence that might even have precluded the
entire proceeding. And you tell us that theres no due process problem.

Goldstein:

There isnt, and the way we handle the due process issue is by putting the
burden of proof onto the administration to prove that the student engaged
in misconduct.

Judge ORourke:

Why cant we say that you failed to do that because you didnt show the
proximity of the purported person whose paper was copied?

Goldstein:

Well the stan

Judge ORourke:

Why cant we just simply say that?

Goldstein:

Because the, because of the applicable standard of review.

Female Judge:

In a proceeding [unintelligible]

Judge ORourke:

In other words, so you go ahead and, you go ahead and skew the inquiry
from the get-go, dont even take the trouble to talk to the person to
determine where he or she was sitting in the room, whether it was even
possible that he could have copied the exam, and you set the rule and
preclude that evidence, and you tell us theres no due process problem,
even though you tell us it could have been conclusive.

Goldstein:

And we tried to fix the problem by contacting the student and we were
told not to by Mr. Dorfmans lawyer. We tried to fix it.

Female Judge:

The problem is again, it gets back to the rule. The rule defines, apparently
the Regents told Mr. Dorfman that Student X was not relevant.

Goldstein:

Correct.

Female Judge:

Okay. I think that, thats the issue, not what efforts might have been made
despite the, standing on the conclusion that Student X isnt relevant well
still try to contact Student X. That, that doesnt fix a fundamentally unfair
process.

Goldstein:

Well, well again, the rule is that we define whos relevant for purposes of
only having at the hearing those individuals who have a need to be there.
Now a separate question is, how about other people who might do, for
exam who might be able to provide exonerating testimony. Because we
dont have the power to compel people to show up, we dont go out and
find everyone who may be relevant. What we do is instead
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Female Judge:

But what happens

Goldstein:

we impose the burden on the administration.

Female Judge:

But, but, but, but Mr. Goldstein, what happens if all that information is
within the Universitys control, and only the Universitys control?

Goldstein:

Thats always the case. Thats often the case.

Female Judge:

So you can accuse someone of cheating, fail to provide something you say
could be dispositive, and a young mans life is ruined? I, I, Im having
trouble with this, Mr. Goldstein. Im having a lot of trouble with this. But
I also see the right of the other students for fair procedure, and its not fair
to have a cheater. But my concern is, cheating is a serious allegation.
And by darn, the rules ought to be fair.

Goldstein:

And they are fair, because what they do is they impose on the
administration a burden of proof, and if the proof without that other
Student, or the question that was raised by the absence of that other
Student and the possibility that that Student was nowhere near Mr.
Dorfman even though he was in the same room, but could have exonerated
him

Female Judge:

The numbers alone, what youre saying is, there is absolutely no positive
way that somebody who doesnt do statistics could have made a mistake
and theres no way for a young man to say, excuse me? There is a fact
that completely either makes those numbers relevant or makes them bunk.
And that wasnt presented.

Goldstein:

And this, Mr. Dorfman could have presented that case during the hearing.
He could have said these are not

Female Judge:

How could he have done that without having the evidence that apparently
the University was not willing to put on?

Female Judge:

The, the real, the evidence that you say was within their scope and power
to produce, without even producing the Student, that would have made
those numbers either correct and compelling, or may have completely
vitiated the need for this charging at all. Im having trouble with it, Mr.
Goldstein.

Goldstein:

How could the University have presented that information, Justice Aaron.

Female Judge:

Mr. the professor knew where this other Student sat, yes?

Goldstein:

Yes. Yes.

Female Judge:

Could the professor have testified where this other Student sat?

Female Judge:

Wait, the professor knew where the Student sat?

Goldstein:

And missed, well, we dont know that. Thats not in the record.

Female Judge:

He just said yes.

Female Judge:

You said yes!

Female Judge:

Okay.

Goldstein:

Excuse me? I, I was

Female Judge:

Thats what she asked you.

Goldstein:

I was going, Im sorry, I was, I was going with you, Im sorry. I thought
you said the professor could have said, in theory, the professor could have
said, yes, this is where the Student sat.

Female Judge:

The information was in, within the professors ability to produce.

Goldstein:

What we have in the record is that because of the Student ID numbers on

the tests themselves, the professor could identify the Student, thats
correct.

Female Judge:

He didnt know where he or she was sitting, presumably.

Goldstein:

Thats not, thats not in the record. I havent, I dont remember seeing it
in the record. But, just going with you for a moment, Justice Aaron

Judge ORourke:

What I recall in the record was there was no need to know that because the
statistics were so compelling.

Goldstein:

As well as the corroborating evidence, that together made up the

substantial evidence to support the decision of the board. And reweighing
all of the evidence and looking at the evidence of the whole, the trial court
came to the same conclusion, that there was substantial evidence to
support the decision of the board, and it looked at all of the evidence.
Now, if I could just finish that last point. And if the professor had said, I
know where the Student was sitting and the Student was sitting in the
same row as Mr. Dorfman, then the next question from Mr. Dorfmans
counsel would have been, well, we dont, with all due respect, we dont
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believe you. We want to talk to the Student. Where do we draw the line?
We believe
Judge ORourke:

Well I think from the ID number youre not going to know where the
student was sitting.

Goldstein:

Correct.

Judge ORourke:

I think youd have to talk to the Student to ask the Student where they
were sitting.

Goldstein:

And Mr. Ottilie told Dean Mahaffey he did not want her to do that. Even
though he could have said, I dont want you to do

Female Judge:

What he told her is it was against the policy or the procedures or

something.

Goldstein:

Ive read

Female Judge:

His understanding.

Goldstein:

There are about four or five letters and I cited all of them in my
Respondents brief and when you read all those letters, Im now putting
myself into Dean Mahaffeys shoes, and Im scared of this individual.
This, these are pretty, hes talking about, and you better do it and better be
sure that you could do it or Ill see you in Superior Court. Those are, these
are, these are deans.

Judge ORourke:

Maybe even at the Court of Appeal.

Goldstein:

Maybe even the Court of Appeal.

Female Judge:

Mr. Goldstein, the process that is due is one that the University must
supply, yes?

Goldstein:

Yes.

Female Judge:

Okay.

Goldstein:

And by providing students with an opportunity to bring into the hearing

with them any witness who is relevant.

Female Judge:

Right, but if theres no way to find out who this pivotal person is, or where
they, this person was sitting, you know, that seems, that seems like a
questionable process in terms of fairness.

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Goldstein:

Not, not where we have the burden of proof and if we dont bring in

Female Judge:

Well thats like not providing discovery in a criminal case because the
prosecution has the burden of proof.

Goldstein:

Exact, exactly, and the cases are uniform that this is not to be like a
criminal case.

Female Judge:

I understand that, but that means no information is provided?

Goldstein:

Theres a difference, and so what we do is we are informal and we try to

be creative, so if we have concerns about the safety of the Student, then
the other side will say, Im not sure Dean that youre with all respect the
right person. Lets have someone

Judge ORourke:

[unintelligible] goes back to the original question. Before you charge

someone with cheating and seek to expel him and ruin his academic
career, it just seems so commonsensical if not common decency to find
out the proximity of the person who he purportedly copied answers from
to see if it was physically possible.

Goldstein:

And, and the, and the view of the administration was that the evidence that
the professor provided was sufficiently conclusive, putting all of it
together, that he had cheated, that there was no need so far as the
University was concerned to go find that other Student

Female Judge:

Even though that students information could be dispositive either way.

Goldstein:

Correct. And other information could be dispositive one way or the other.
We could have asked Holly, the proctor who was in the room at the time,
did you see Mr. Dorfman look over? There are other things we could have
done that would also have been dispositive but the administration chose
the evidence it chose, and it knew that it had a burden of proof

Judge ORourke:

Well, I think theres a word for that. Its called stacking the deck. Could
that not be a fair interpretation of what you did? I mean its easy to say
what, what youre saying, but, I think the vernacular term for that is
stacking the deck.

Female Judge:

You see the problem in that

Judge ORourke:

You dont talk to a proctor. You have a proctor in a room to detect

cheating. To intimidate students. To instill fear. And yet you dont even
bother to talk to a proctor. And you dont bother to find out if it was
physically possible that the test should have been copied and instead, we
have all this statistical. Why talk to people who do these things.
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Female Judge:

The, the problem with what youre saying is that the, the board determined
that this was sufficient evidence is that it effectively, arguably prevents the
student from poking, from presenting a defense by poking holes in the
evidence presented by, or to the board, by the school. Its tying the
defenses hands, arguably.

Goldstein:

In, in what sense other than

Female Judge:

In the sense that theres

Goldstein:

Talking to that other student.

Female Judge:

Theres a material witness out there who hasnt been interviewed or

produced. And extremely material in that sense.

Judge ORourke:

Or actually two now that you interject Polly. Polly the proctor.

Female Judge:

Presumably the proctor, the proctor presumably would have reported any
cheating, so Im not as concerned about that.

Goldstein:

Actually it was Holly with an H.

Female Judge:

But, you know, its, its a, it seems very one-sided to say well we decided
this was enough and were not going to give the information to the defense
to try to poke holes in it.

Goldstein:

That is, that is the procedure here. Thats why, and we have, we have the
burden of proof. And so

Female Judge:

Right, but there is, theres something called due process. What is due
process to a student in Mr. Dorfmans position?

Goldstein:

Well, again, I, I, I, I, I want to emphasize again, cause I think this is very

important, we did ask Mr. Ottilie how about we go talk to Student X? We
did say that. Lets go talk to Student X. And we were told no, dont do
that.

Female Judge:

They said ultimately, he said just rule on the objection. If you rule against
me then go ahead.
Again, those four letters, hes not, hes, hes not, thats not what it, thats
not my, thats not the way I would characterize that, those letters taken
together. Its, its intimidating, what he did. He wasnt saying, I just want
a ruling. What he was trying to do was, well, anyway.

Goldstein:

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Judge ORourke:

Keep them from talking to the student. Thats what youre saying the
purpose of the letter was. Is that a, is that a reasonable inference?

Goldstein:

I think a reasonable inference is that he was trying to make a helpful

record for himself, and his client. So that he could

Judge ORourke:

But youre telling us it wasnt helpful, because hed wrote all these letters
that precluded the University from talking to the Student.

Goldstein:

He made a record which sounded like he was telling the dean go ahead
and talk to the Student, but he really wasnt saying that, and she
understood the letters for what they were which was a threat, and he, and
she said you know, forget it. Im not going to. If he really wanted to and
he had concerns about her, he could have said to her, I have concerns
about you. How about we find a neutral third party to reach out to the
Student. Id be much more comfortable with that. And we do that all the
time up and down the system where we, just as courts do, as trial courts
do, we run into a situation and its not, theres not a textbook explanation
for how to solve the problem. We come up with a creative solution.
Question: Do we go back now and rewrite our rules to say that if were in
a situation like this again where theres an evidence we must go talk to
that other witness? What other rules do we add? We

Judge ORourke:

I dont know, it just seems to me to be a commonsensical thing to do. It

just seems so blatantly obvious, that one just cant imagine why anyone
whos ready to charge somebody with cheating and to expel them
wouldnt take the trouble to find out if it was physically possible.

Female Judge:

The specter of, of, of a bunch of cheating allegations now coming based
on statistics with no information as to where students were sitting is not
very attractive.

Goldstein:

Well, its not just the statistic, its the having erased the exam when it was
clearly improper and not telling the proctor that he was doing that when
the instruction said tell us.

Judge ORourke:

Okay, let, let me ask you this. Does that alone constitute cheating?

Goldstein:

Does erasing the exam?

Judge ORourke:

Doing what he did. A to D. Does that constitute cheating? Everything he

did. Not telling proctor, not telling anyone what he was doing. Is that
sufficient to say he cheated? Standing alone.

Goldstein:

Its strong evidence of cheating.

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Judge ORourke:

Well, Mr. Ottilie made reference to some ruling or regulation that said that
it was not sufficient to be considered as cheating.

Goldstein:

Well he may have been referring

Judge ORourke:

The policies, was that incorrect?

Goldstein:

No, I, I think someone said the infraction is, they were trying to make it
clear to him the infrac, if my memory is correct, its not the erasing thats
the violation. And what they were trying to say to him was, the erasing is
evidence of a violation which is cheating.

Judge ORourke:

It would facilitate copying.

Goldstein:

Exactly.

Judge ORourke:

Okay. And the purpose of having four separate letters is to make it harder
to cheat.

Goldstein:

And they make it even

Judge ORourke:

Its a safe, its intended as a safeguard against cheating, is that correct?

Goldstein:

Yes, and the additional safeguard is that they not only put in pencil A, B,
C or D on the front, but also, unbeknownst to the students, in ink they fill
in the bubble A, B, C or D so they can see whether theres a
correspondence that didnt go along with a request of the proctor,
understand, I, Im now erasing this cause they dont correspond.

Judge ORourke:

This is a policy that purportedly takes place in all examinations in classes

other than this class.

Goldstein:

I have no knowledge of that. I just know from the record that thats what
Dr. Crowells practice is, as well as his testimony that theres only been a
handful of times when theres been a discrepancy and all cases they were
cheaters. So the thousands of exams he makes with paperclips and so
forth, hes never gotten it wrong. Hes never, theyve never mixed them
up. And as a safeguard, they say to students, in the highly unlikely event
that weve mixed up yours, come down and tell us, dont just correct it on
your own, and they said it at the first exam, which Mr. Dorfman attended,
they said it at the second exam, which is the exam at issue here, and they
said at the final exam, which he took at the end of the, of the term, and in
no case did he ever say, oh wait a second, after the final, I made a mistake
on the second midterm. I fixed, I made the correction but I didnt bring it
to your attention, can we do something about it?

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Judge ORourke:

Anything further?

Goldstein:

No Your Honor.

Judge ORourke:

All right, thank you.

Goldstein:

Thank you.

Judge ORourke:

Mr. Ottilie? Id like you to reply to what he just said about the
significance of changing....

/sam

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VERIFICATION
I, Susan Milne, declare:
I am the owner/operator of A Precision Secretarial Service in San Diego, California.
On April 18, 2016, I received from Robert Ottilie a CD of the hearing at the Court of
Appeal regarding Dorfman v. University of California San Diego. I transcribed portions of that
CD; the transcript is attached to this Verification.
I declare under penalty of perjury the foregoing is true and correct and this verification
was executed at San Diego, California, on April 18, 2016.

____________________________
Susan Milne

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