SAMANTHA RAMOS

v.

FLORIDA INTERNATIONAL UNIVERSITY

Before: TRAWICK, WALSH and SANTOVENIA, JJ. Filing # 126611300 E-Filed 05/11/2021 05:21:29 Allegedly, your lab reports for Recrystallization, Extraction, and Thin Layer Chromatography and Column Chromatography have significant portions directly from a lab report submitted by another student in a previous semester. 1 Plagiarism is defined in the FIU Student Code as “the deliberate use and appropriation of another’s work without any indication of the source and the representation of such work as the Student’s own.” Section 1.6.g.1., FIU Student Code. [*3] Page 3 of 12 Pursuant to Section 8 of the FIU Student Code, Ramos had the option of waiving a hearing and proceeding to a summary resolution for a hearing officer to determine the findings and sanctions on discipline, or addressing the allegations of plagiarism at either an administrative hearing before a single hearing officer or at a hearing before the SCC, which is comprised of both student and faculty representatives. Ramos opted for an SCC hearing, which was held on April 14, 2020 (“SCC hearing”).² Standard of Review Our standard of review of administrative action requires the court to determine “(1) whether procedural due process was accorded; (2) whether the essential requirements of the law were observed; and (3) whether there was competent, [*4] Page⁴ of 12 substantial evidence to support the administrative findings and judgment.” City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). Due Process in Administrative Hearings The extent of procedural due process afforded to a party in a quasi-judicial hearing is not as great as that afforded to a party in a full judicial hearing. Seminole Entertainment, Inc. v. City of Casselberry, 811 So. 2d 693, 696 (Fla. 5th DCA 2001). Consequently, such hearings are not controlled by strict rules of evidence and procedure. Id. Nevertheless, a party to a quasi-judicial hearing “must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts.” Kupke v. Orange County, 838 So. 2d 598, 599 (Fla. 5th DCA 2003) (citing Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So. 2d 996 (Fla. 2d DCA 1993)).

In student disciplinary actions, due process requires adequate notice, an opportunity to be heard, and substantial evidence to support the penalty. Matar v. Florida Int’l Univ., 944 So. 2d 1153, 1160 (Fla. 3d DCA 2006); Student Alpha ID No. Guja v. Sch. Bd. of Volusia County, 616 So. 2d 1011, 1012 (Fla. 5th DCA 1993). The due process requirement of a student administrative proceeding requires that the proceeding must be “essentially fair.” Abramson v. Fla. Int'l Univ., 704 So. 2d 720 (Fla. 3d DCA 1998); Student Alpha, supra., 616 So. 2d at 1013. It is equally clear [*5] Page⁵ of 12 that disciplinary proceedings do not require the same safeguards afforded to criminal defendants. Id. (citing Gordon v. Savage, 383 So. 2d 646 (Fla. 5th DCA 1980)).

In Matar, the Third District Court of Appeal stated that: Section 120.68, Florida Statutes, provides that “[a] party who is adversely affected by final agency action is entitled to judicial review.” § 120.68(1), Fla. Stat. (2005); Morfit v. Univ. of S. Fla., 794 So. 2d 655, 656 (Fla. 2d DCA 2001). A district court reviewing a final agency action shall reverse or set aside agency action if it finds that “[t]he fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.” § 120.68(7)(c), Fla. Stat. (2005); see also Ames v. Dist. Bd. of Trustees, Lake City Cmty. Coll., 908 So. 2d 1142, 1143 (Fla. 1st DCA 2005)(specifying that Florida's Administrative Procedure Act (“APA”) permits reversal only upon a showing of “material error in procedure or a failure to follow prescribed procedure”). This standard of review “has been characterized as the APA's version of the harmless error rule.” Ames, 908 So. 2d at 1143.

944 So. 2d at 1157. Florida universities and community colleges follow different procedures than other administrative agencies. See Morfit v. Univ. of S. Fla., 794 So. 2d 655, 656 (Fla. 2d DCA 2001), review denied, 817 So. 2d 852 (Fla. 2002). “In any proceeding in which the substantial interests of a student are determined by the state university system or a community college district, sections 120.569 and 120.57 (the general due process provisions of the Administrative Procedure Act) do not apply.” Id.; § 120.81(1)(g), Fla. Stat. (2005). Rather, pursuant to section 6C-6.0105(1) of the Florida Administrative Code, each university president is directed to “establish [*6] Page 6 of 12 university rules that ensure fairness and due process in student disciplinary proceedings and that guarantee the academic integrity of the university.” Matar, supra., 944 So. 2d at 1157. Analysis In order to prevail on her Petition pursuant to the applicable standard of review, Ramos would have to show that the SCC hearing did not afford her due process as alleged. See City of Deerfield Beach, supra., 419 So. 2d at 626. The relevant law in this case is derived from the FIU Student Code which is set forth in FIU's Student Handbook 2019-2020, Policies and Regulations FIU-2501. The FIU Student Code also expressly specifies the “Due Process Rights of the Charged Student or Student Organization” in Section 11, subsections a. through j. With regard to the due process rights of a Charged Student, FIU’s policy states that the student has “[t]he opportunity to present relevant Witnesses and information at the hearing” and “[t]he opportunity to question Witnesses in accordance with the Hearing Procedures”, among other rights. The FIU Student Handbook specifically provides as to a Charged Student’s due process rights:

DUE PROCESS RIGHTS OF THE CHARGED STUDENT OR

STUDENT ORGANIZATION The Charged Student or Student Organization has the following rights: a. Reasonable, written notice of the Code charge(s) and the allegations upon which the charge(s) is/are [*7] Page 7 of 12 based. b. A fair and impartial hearing. c. Accompanied by an Advisor of their choice and expense at any time during the Code process. d. The opportunity to review all relevant information or evidence to be used in the hearing prior to the hearing. e. The ability to participate in the Student Conduct hearing either physically or by contemporaneous alternative means (e.g., Skype, phone). f. The opportunity to present relevant Witnesses and information at the hearing. g. The opportunity to question Witnesses in accordance with the Hearing Procedures. h. Not to provide self-incriminating testimony. (This right does not apply to Student Organizations.) Invoking the right against self-incrimination will not be considered as a negative factor in the decision of the Hearing Officer or Hearing Body. i. Receive notification of the decision of the Hearing Body in writing within fourteen (14) Business Days of the hearing. j. Appeal the decision via the process established by the University.

Section 11, FIU Student Code (emphasis added). Both FIU's Student Code and Florida Administrative Code Rule 6C– 6.0105(6)(f) and (g) have been interpreted as “provid[ing] that the student may present information in his or her own behalf and that the student may hear and question adverse witnesses.” See Matar, supra., 944 So. 2d at 1158-59 (emphasis added). Moreover, an agency violates a person’s due process rights if it ignores rules it promulgated which affect individual rights. Id. at 1157 (citing Armesto v. Weidner, 615 So. 2d 707, 709 (Fla. 3d DCA 1992)); Morton v. Ruiz, 415 U.S. 199 (1974).

Pursuant to the Charged Student’s rights in the FIU Student Code, Ramos had the due process right to cross-examine FIU’s witnesses at the SCC hearing. Ramos [*8] Page 8 of 12 also had the due process right to present relevant witnesses and information at the SCC hearing. FIU called as witnesses Jose Consuegra, Ramos’s teaching assistant (“Teaching Assistant”) and Dr. Sandra Stojanovic, the lab supervisor and Ramos’s professor (“Professor”) for the Organic Chemistry course corresponding to the Organic Chemistry lab. The record reveals that there was a contentious relationship between Ramos and both the Professor and Teaching Assistant. Ramos testified that the Professor would not allow Ramos to drop her Organic Chemistry class and that Ramos had to have the department chair override the Professor’s refusal in order to drop the class. Ramos also testified that the Teaching Assistant had told another student – a potentially favorable witness for Ramos – “do not engage” when the student inquired about speaking to Ramos. Further, the Teaching Assistant had threatened that student with legal trouble if he spoke to Ramos3, thus interfering with Ramos’s ability to question witnesses in preparation for the SCC hearing. In addition, Ramos and other students had criticized the Teaching Assistant’s organization skills for a last-minute e-mail assignment he had sent to the lab group. Ramos also testified that the Teaching Assistant was biased against her because she had previously confronted him about allowing two students to walk over to a testing 3 While Ramos asked the Teaching Assistant at the SCC hearing if he had threatened the student, the Teaching Assistant pointed to email communications between himself and the student, but did not directly answer the question. [*9] Page 9 of 12 center with a written examination in hand, which Ramos had confirmed was not permitted. Ramos testified that the Teaching Assistant reacted very angrily and had said: “You are going to ruin my whole entire career, and you know that. I am going to ruin yours.” (SCC Hearing transcript at 7). Motive and bias of these witnesses were certainly relevant areas of inquiry that were permissible as a matter of the Charged Student’s rights as set forth in the FIU Student Code. Motive and bias of these witnesses are also relevant areas of inquiry because of how the Teaching Assistant and Professor came to focus on Ramos⁴ for the charge of plagiarism. Ramos attempted to question the Teaching Assistant about his motive or bias towards her, asking him if he had threatened her (SCC Hearing transcript at 46), but was not allowed to do so. Instead, the hearing officer at the SCC hearing, Jennifer Martin, Assistant Director, FIU SCAI (“Hearing Officer”) instructed Ramos to redirect her questions to the topic of lab reports.

[*10] Page 10 of 12 The motive and bias of the Teaching Assistant and Professor were relevant not only to the plagiarism charge, but also to the discipline which Ramos received as a result of the SCC hearing. While the FIU Student Code provides for a right of appeal of disciplinary action, Ramos argues in her brief that the discipline which she received was greater than FIU’s discipline of the other two students who were also charged with plagiarism. Ramos points out in her reply brief that these students elected not to contest the allegations against them and thus were not sanctioned as severely as Ramos where their only punishment, which was minimal, was to receive a course grade of “B” for their lab. By comparison, Ramos received zeros for each of the three lab reports in question and for Lab Technique and Skill, resulting in a “C” for the course despite allegedly performing better than both of these students.⁵ Therefore, there would appear to be support for Ramos’s argument that she was punished for her claimed plagiarism more severely than two other students because she pursued her appeal rights set forth in the FIU Student Code.

[*11] Page 11 of 12 The failure to allow Ramos to cross examine the Teaching Assistant as to his bias or motive against her was a “material error in procedure or a failure to follow prescribed procedure” which resulted in a denial of due process. Reversal is mandated where, as here, a university does not follow its own rules and fails to afford a student due process. See Morfit, 794 So. 2d at 656 (held that the university did not follow its own rules and failed to afford the student due process). The Morfit court stated that: Subsection 6 of the code describes the student judicial process and proceedings, and subsection 7(b) delineates the student's due process rights. Specifically, section 7(b)⁵ gives the student the right to question witnesses: “The student may hear and question adverse witnesses, except in cases of violent misconduct where the student may submit questions to the hearing officer for use in questioning adverse witnesses.” Although Morfit claims several other violations of his due process rights, the violation of this right is sufficient to require reversal of the dean's decision. The complaining witnesses were never called. In fact, the only statements from the alleged victims were contained in the investigation report written by an officer who talked with them. Morfit was entitled to have the witnesses make their statements directly to the hearing officer, and he was entitled to question them. This is a fundamental ingredient of due process in any judicial or quasi-judicial proceeding.

Id. (emphasis added); Seminole, supra., 811 So. 2d at 696 (held that hearing on license revocation violated due process where licensee was denied the right to challenge, through cross-examination, the testimony of the principal witness against [*12] Page 12 of 12 it.). Contrast Matar, 944 So. 2d at 1159 (due process rights not violated where “[a] careful review of the transcript of the proceedings reflects that Mr. Matar never attempted to cross examine the sole witness against him, Prof. Farmer, and that Mr. Matar was permitted to fully present his case”).

For the foregoing reasons, we find that FIU violated Ramos’s due process rights in failing to follow its own rules, grant the Petition and quash the April 21, 2020 decision of the SCC and the May⁵, 2020 decision denying Ramos’s appeal. TRAWICK, WALSH and SANTOVENIA, JJ. Concur COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

[*13] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected]

2 Ramos appealed the April 21, 2020 decision of the SCC based on due process errors and the severity of the sanctions.