Alpha Nu Ass'n of Theta Xi v. Univ. of S. Cal.

• Decision Date: 03 March 2021
• Docket Number: B303269
• Citation: 276 Cal.Rptr.3d 623,62 Cal.App.5th 383
• Court: California Court of Appeals Court of Appeals
• Parties: ALPHA NU ASSOCIATION OF THETA XI, Plaintiff and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA et al., Defendants and Respondents.

62 Cal.App.5th 383

276 Cal.Rptr.3d 623

ALPHA NU ASSOCIATION OF THETA XI, Plaintiff and Appellant,

v.UNIVERSITY OF SOUTHERN CALIFORNIA et al., Defendants and Respondents.

B303269

Court of Appeal, Second District, Division 4, California.

Filed March 3, 2021

As Modified March 23, 2021

Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for Plaintiff and Appellant.

Paul Hastings, J. Al Latham, Jr., Paul W. Cane, Jr. and Cameron W. Fox for Defendants and Respondents.

MANELLA, P. J.

INTRODUCTION

Appellant Alpha Nu Association of Theta Xi (Theta Xi), a national fraternity, challenges the decision by respondent University of Southern California (USC) to suspend recognition of Theta Xi's USC chapter for six years. In January 2018, in response to a complaint submitted that month by former Theta Xi member John Schaar, USC's Office of Student Judicial Affairs and Community Standards (SJACS) began investigating allegations that Theta Xi had hazed new members in fall 2016 and fall 2017, and had served alcohol at recruitment events. The investigation was conducted by respondent Donna Budar-Turner (SJACS's director) and another investigator. SJACS interviewed Schaar and four Theta Xi members, and received documentary evidence from both Schaar and Theta Xi.

SJACS ultimately found that in fall 2016 and fall 2017, Theta Xi's active members expected and at times required underage pledges to participate in drinking games designed to induce severe inebriation, subjected pledges to requirements likely to compromise their dignity and deprive them of sleep, and encouraged pledges to fight other members as a spectator sport. Specifically, SJACS found that during a brotherhood retreat, pledges were required to participate in an "Around the World" event featuring at least five varieties of alcoholic beverages, during which pledges were encouraged to drink in large quantities, and some members fell ill. Within the Theta Xi house, pledges played Power Hour (each participant drank a shot of beer every minute for an hour), War (each team drank 60 cups of beer and Four Loko as fast as possible), and the Great American Challenge (each team raced to consume a 30-pack of beer, in addition to pizza and marijuana). Throughout their initiation week, all 11 members of the 2016 pledge class were required to sleep in the Theta Xi house's small library, which was not large enough to accommodate them, and to clean the library to the active members’ satisfaction if they wished to sleep undisturbed. At the same time, pledges wore costumes of cartoon and comic book characters at the request of active members. Moreover, pledges participated in annual "fight night" events, during which members fought other members with whom they had a dispute, watched by an audience of members and others -- at times resulting in noise complaints. On the basis of these findings, SJACS concluded that Theta Xi had violated nine sections of the University Student Conduct Code (USC Code), including sections prohibiting hazing and the serving of alcohol to anyone under 21. SJACS determined that the appropriate sanction was a six-year suspension of USC's recognition of the local Theta Xi chapter.

Theta Xi appealed the suspension to USC's Student Behavior Appeals Panel (SBAP). Theta Xi acknowledged the truth of several of SJACS's findings, including the findings that pledges had participated in "fight night" and been invited by active members to drink alcohol, but argued the underlying activities were voluntary and therefore did not warrant sanctions. Theta Xi also characterized several of the underlying activities as innocuous; for instance, it characterized "fight night" as a boxing lesson held in the spirit of healthy dispute resolution, and compared Power Hour and the Great American Challenge to hypothetical games of Monopoly and backgammon. In responding to and rejecting the appeal, respectively, SJACS and SBAP emphasized that Theta Xi had violated USC rules regarding hazing and alcohol. They also observed that Theta Xi had failed to evaluate its culture or to take responsibility for its members’ actions, and that the six-year suspension would incentivize Theta Xi to make changes to its culture and leadership before seeking to resume activities as a USC student organization. The suspension became final when SBAP's decision was approved by respondent Ainsley Carry, then USC's vice president for student affairs.

Theta Xi filed a petition for a writ of administrative mandamus against USC, Budar-Turner, and Carry under Code of Civil Procedure section 1094.5. Theta Xi alleged that USC's suspension decision should be set aside because USC's administrative procedure had been unfair, and because SJACS's factual findings were not supported by the evidence. Rejecting both allegations, the trial court denied the petition.

On appeal, Theta Xi contends (1) USC acted in excess of its jurisdiction by suspending its recognition of Theta Xi's USC chapter based on events that preceded Schaar's complaint by more than one year; (2) SJACS's factual findings were unsupported by the evidence; (3) USC's decision was unsupported by SJACS's factual findings; and (4) USC's administrative procedure was unfair.

Finding no error, we affirm.

FACTUAL BACKGROUND

A. USC's Administrative Investigation

1. Schaar's History with Theta Xi

Theta Xi, a national fraternity, has long operated a chapter at USC, in addition to chapters at other universities. Theta Xi owns a house near the USC campus, and rents rooms in it to members and non-members. Events held to recruit new members are known as "rush" events. Rush events held without university approval -- including all rush events involving alcohol -- are known as "dirty" rush events. Newly admitted members are referred to as "associate members" or "pledges." Pledges are required to undergo an initiation process before becoming "active" members. The week before their initiation into active status is known as initiation week or "hell week."

In fall 2016, John Schaar was one of 11 pledges at Theta Xi's USC chapter. His girlfriend, Sarah Nuckel, was a tenant in the Theta Xi house. After an initiation week in October 2016, he became an active member. In 2017, disputes arose between Theta Xi, on the one hand, and Schaar, Nuckel, and Schaar's mother, on the other. These disputes related to (1) allegations that Schaar had sexually harassed and sexually assaulted women; (2) Schaar's desire to renounce his Theta Xi membership in order to join another fraternity; and (3) Theta Xi's attempts to collect unpaid rent from Nuckel after she moved out of the Theta Xi house before the end of her lease.

In the course of these disputes, Schaar's mother left a voicemail for the director of chapter services at Theta Xi's headquarters in Missouri, alleging that Theta Xi had hazed Schaar and forced him to drink alcohol, and threatening to " ‘tell[ ] the whole story’ " to USC's administration. Additionally, in text messages to the USC chapter's president (Jose Casillas) and house manager (Michael Marzouk), Schaar predicted that Theta Xi would soon hear from SJACS, and that Theta Xi would "lose," "get fucked," or be "kicked off campus."

2. Schaar's Complaint

On January 10, 2018, SJACS received a written complaint from Schaar concerning his experiences as a Theta Xi pledge in fall 2016.¹ Schaar alleged he and other pledges had "endured a number of different hazing incidents ...." First, the pledges had participated in "[l]ots of forced drinking activities," including the Great American Challenge (which was later described by Schaar and active Theta Xi members as a game in which competing teams each consume a 30-pack of beer, in addition to pizza and marijuana). Second, on the first morning of hell week, the pledges were awakened at 5:00 a.m., forced to drink alcohol, and required to run laps, during which one pledge fell and "cut his knee very bad." Third, active members blindfolded Schaar, confiscated his phone and wallet, and dropped him off (while he was wearing only a "morph suit") at the University of California, Los Angeles (UCLA), where he and other pledges were told to complete tasks and find their way back to USC. Fourth, Theta Xi held a "fight night" event, during which active members required pledges "to drink copious amount[s] of alcohol and ... fight each other while actives watched." Finally, for 10 days (including hell week), the active members required all 11 pledges to sleep in the Theta Xi house's small library, which was not large enough to accommodate them. During that 10-day period, "[s]everal [pledges] got sick because of lack of sleep and the gross conditions of the room."

Schaar alleged that Jose Casillas and Damian Ortega had been the active members "in charge of hazing," and that the specified incidents could be corroborated by witnesses and "group messages." He submitted screenshots of several group text messages sent by active Theta Xi members. Messages from late October 2016 implied that pledges were then required to sleep in the Theta Xi house's library.² Messages from January 2017 indicated that Theta Xi was then hosting rush events at which potential members participated in drinking games.³

Along with Schaar's complaint, SJACS received a statement from Schaar's girlfriend, Sarah Nuckel. She alleged that after Schaar left Theta Xi, its members had launched a "smear campaign" against him, repeatedly lying to her and her friends that Schaar had embezzled money and committed "Title 9 offenses." Nuckel's statement said nothing related to Schaar's allegations against Theta Xi.⁴

3. Notice of Schaar's Complaint and Interim Suspension

On January 17, 2018, SJACS emailed a letter to Theta Xi President Jose Casillas, notifying Theta Xi that SJACS had received a complaint from a student that Theta Xi had violated the USC Code.⁵ For reasons the record does not disclose, the notice letter identified the "Date(s) of Incident(s)" as November 4, 2017 (roughly a year after Schaar had been...