Head v. Bd. of Trustees of Cal. State Univ.

Filed 1/18/07  Head v. Bd. of Trustees of Cal. State Univ. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Stephen Head, who was a student in San Jose State University's teaching credential program, filed a " petition for writ of mandate and/or prohibition or other relief" against respondents California State University's Board of Trustees, San Jose State University's Interim President Don W. Kassing, Dean Susan Meyers of the University's School of Education, Associate Professor and Chair of the Department of Secondary Education Cathy Buell, and Associate Professor Helen Kress.  Head sought review of the university's denial of a revised October 28, 2004 grievance filed with the university in regard to a course entitled " Social, Philosophical and Multicultural Foundations of Secondary Education" (EDSC 172A), which had been taught by respondent Kress in the fall 2003 semester.[1]  The grievance challenged the curriculum, his assigned grade, and the treatment he received during the course.  It also challenged, on free speech and due process vagueness grounds, the Secondary Education Department's " professional dispositions," which candidates in the teaching credential program are expected to demonstrate as they progress through the single subject credential program. 

Appellant Head's grievance had been rejected by the university's Student Fairness Committee (SFC).  One of the responsibilities of the SFC is to hear " complaints of violations of student rights in instructional and curricular matters, including grade appeals . . . ."   The SFC denied appellant's grievance petition, finding, among other things, that appellant had not shown his right to free speech had been violated or he was entitled to a change of grade. 

Appellant Head's petition sought, among other relief, a judicial order requiring the university to change his grade to an " A" or a " B." [2]  In his prayer for relief, he also sought to enjoin (1) the use or enforcement of the " professional dispositions," (2) the infringement of teaching credential students' constitutionally protected speech, and (3)  grade discrimination against " White, White-appearing or male" candidates.  In his petition, appellant described himself as " a person who holds generally libertarian or conservative beliefs and viewpoints" and " who may appear White."   The trial court denied relief on appellant's petition.

Head appeals, claiming that the university's actions deprived him of substantive and procedural due process and the " professional dispositions," which he labeled " student speech codes," are unconstitutionally vague and constituted compelled speech and viewpoint discrimination in violation of the First Amendment right to free speech and Education Code section 66301.[3]  He asks this court to issue a permanent injunction enjoining respondents from enforcing the " professional dispositions" and to reverse the SFC's decision or, alternatively, to issue a peremptory writ of mandate directing the trial court to vacate its order denying relief and to grant a de novo hearing.  As he did below, appellant Head represents himself.

We affirm the trial court's order denying relief.

A.  Record on Appeal

In his declaration supporting his petition, appellant Head provided a number of excerpts from instructional materials used in the course.  They related to, among other things, culturally sensitive teaching methodology, White preservice teachers' lack of understanding of, and experience with, cultural differences, racism, and discrimination, and the inability of a color blind approach to address these problems.  Head also referred to respondent Kress's handout regarding multiculturalism and indicated that respondent Kress had failed to define the meaning of the words " promoting alternative life styles" as used in the handout and expressly disallowed him from citing certain individuals who " contested" multiculturalism in class discussions and class work. 

Appellant Head also described a number of other interactions with respondent Kress.  He described an incident occurring on October 4, 2003 after the class viewed a videotape regarding discrimination in modern day California.  According to Head, he voiced his opinion that immigrants were " generally better off in the United States than in their native countries by way of the greater opportunities afforded by a comparatively better form of government in the United States" and respondent Kress responded by saying, "   'When I hear such opinions coming from someone, it makes me think that that person is unfit to teach.'  "   Head also reported that on October 18, 2003, he was told by respondent Kress, in regard to an assignment, that it was "   'inadvisable'  " for him to focus on a White female student who was prevented from forming a " Caucasian Club" at her high school because " the [W]hite female student was not being discriminated against . . . , and even if she was being discriminated against, it did not matter, since non-Hispanic White Europeans comprised the 'dominant power structure' in the U.S. society and . . . did not qualify for being the focus of the assignment  .  .  .  ."  

In his declaration, appellant Head stated that he filed a complaint regarding the October 4, 2003 incident with the university's police on October 21, 2003.  Head reported receiving an e-mail message from respondent Kress on October 27, 2003 offering to discuss the Secondary Education dispositions to which she had referred in class and informing Head that " [s]o far this semester I have not seen you make progress on displaying these dispositions in our class and I want to know why not and how I can help you with these."

Head also indicated in his declaration that he received an " F" in the course and was placed on academic probation, which prevented him from taking EDSC 184X, the required student teaching course, in Spring 2004.  He stated he submitted a " revised complaint, grievance, and appeal" on October 28, 2004, he presented his case to a two-member subcommittee of the University's SFC on November 30, 2004, and he presented his case to the full SFC on December 15, 2004. 

The declaration of the University Ombudsman Savander Parker was submitted in opposition to the petition.  She received appellant's formal, written grievance from appellant on October 28, 2004.  In the grievance, appellant declared that he " appears White."   The grievance contained excerpts from a textbook for course EDSC 172A, Educating Teachers for Diversity:  Seeing with a Cultural Eye, which Head impliedly challenged as racist against Whites.  He complained that he had suffered a hostile educational environment in the class, violations of his First Amendment rights to free speech, discrimination on the basis of race, and violations of his right as a student to take reasoned exception to the data and views offered in the course.  He also asserted, based upon the title of a 2002 conference paper written by professor Kress, that instructor Kress " had a disposition towards discrimination" and she " harbor[ed] hostility towards a concept of multiculturalism and diversity among teachers which is inclusive of 'Whiteness' . . . ."  

In his grievance, Head complained that he had been " barred from using conservative and libertarian sources in class discussions and work . . . ."   He asserted that the e-mail from respondent Kress indicating that he had not made progress on displaying the professional dispositions could have a chilling effect on students' freedom of speech.  He also contended, among other things, that his First Amendment rights were violated by " the existence and threat of enforcement of speech codes in the form of the Secondary Education Department 'Professional Dispositions,'  " and those dispositions " require[] that  teacher credential students adopt a particular set of beliefs" and are " indistinguishable from 'thought control.'  "  

The administrative record contains the Secondary Education Department's " professional dispositions."   The Department states that candidates for a single subject credential are expected to demonstrate " professional dispositions as they progress through course work and field work experiences."   Those " professional dispositions" are reflectiveness, responsibility, commitment to professionalism, and commitment to fairmindedness and equity and are accompanied by " indicators" for assessing student progress.  In the category of reflectiveness, some of the specified indicators are " [q]uestions own beliefs and practices," " [p]ractices critical questioning," and is " responsive to opposing views" and " criticism."   In the category of commitment to fairmindedness and equity, the indicators are " [t]reats others with equal respect, courtesy, and dignity," " [i]s intolerant of any form of harassment, discrimination, and exploitation," and " [r]ecognizes the need for differences to ensure equal treatment of all."

Ombudsman Parker explained that appellant's formal grievance was treated as a grievance governed by Part V of Policy S97-8, which provided for the fullest possible academic due process, because the grievance's complaints concerned more than his assigned grade and were related to instruction.  Ordinarily, a grade appeal would be governed by Part IV of the policy, which provides less procedural protection. 

The university's policy S97-8 makes clear that in the grievance process under Part V that " [t]he burden of proof rests with the complainant."   The policy states in Part V, subdivision (C)(1)(c):  " The committee, before conducting a full adversary hearing, shall arrange for a swift and comprehensive investigation of the case on the basis of written statements of the complainant and preliminary discussion with her or him, whether or not there are sufficient grounds to hear the case, and whether it will accept written statements in lieu of personal appearances and oral testimony of witnesses.  If the committee decides that there are not sufficient grounds for a full hearing, it may close the case, and the chair shall then notify the complainant and respondent in writing of the basis of its decision."   (Italics added.)  Part V, subdivision (C)(1)(e), of the policy provides:  " If the committee determines that the case merits further consideration, the parties involved shall be informed in writing, consulted as to the possibility of correcting the situation, and if a hearing is still required, be advised in writing of the scheduled time and place and alleged grievance."   Part V, subdivision (C)(1)(f), states:  " At the hearing the complainant, persons directly involved, and witnesses may testify and be questioned by the opposite party and committee members.  Only evidence or individual written statements presented in the hearings may be considered in the final judgment."  

Ombudsman Parker indicated in her declaration that a SFC subcommittee, consisting of faculty member Marty Froomin and a student, investigated appellant's complaints and then submitted a written report summarizing its findings and making a recommendation to the SFC.  The report indicated that the subcommittee had met with the parties and had reviewed the student's work and had " noted dates of submission and instructor comments."   The report stated that the subcommittee found no evidence to support a claim that marks were assigned based upon criteria other than academic performance and no evidence that grading was based on student Head's personal views.  Professor Kress had shown that " student's work does not demonstrate appropriate knowledge of the subject material" and " [r]evisions were in a dialogue form and often argumentative."   The subcommittee observed that student Head had given no explanation " as to why a higher grade was expected on the assignments," despite the subcommittee's request for such explanation.

The investigative subcommittee concluded that student Head " did not do the work required to receive a higher grade" and " failed to demonstrate to Dr. Kress' satisfaction an understanding of the concepts taught in the class."   It recommended that the grievance be denied.

Ombudsman Parker indicated that appellant's case came before the SFC during a regular meeting of the SFC on December 15, 2004.  The minutes of the meeting show that Ombudsman Parker gave a brief summary of the grievance and appellant also presented the charges.  SFC members questioned appellant.  Marty Froomin then gave the SFC subcommittee's report with the recommendation to deny the grievance.  After a brief discussion, the SFC denied the grievance and confirmed that a grade change should not be granted.  Three faculty members in the College of Education and the College of Science abstained.

A letter from the university's ombudsperson informed appellant that the SFC had denied his grievance petition and closed his case.  The letter stated that the SFC had not found evidence that appellant's marks had been based on criteria other than academic performance, that appellant had failed to be informed of his academic progress in the course within a reasonable time, that appellant had been denied his right to an explanation of the grading criteria, that grading had been based on appellant Head's personal views, that appellant's right to free speech had been violated, or that appellant was entitled to a change of grade.

The denial letter indicated that a subcommittee of the SFC had interviewed respondents Kress and Buell and appellant and the full committee had reviewed all the documentation provided and examined the course syllabus, grading policy, grade calculations, and lesson plan rubrics.  It found that respondent Kress provided appellant with " a grading criterion on the course syllabus" and " detailed assessments on returned assignments and extended opportunities to resubmit corrected work" and respondent Kress " did not deviate from the stated grading system."   It also found that respondent Kress had " provided Mr. Head with detailed assessments on returned assignments and extended opportunities to resubmit corrected work."

In opposition to appellant's petition, the university also filed California State University Chancellor's Executive Order 792.  That executive order establishes guiding principles governing assignment of grades and grade appeals, including " a presumption that grades assigned are correct" and that " [i]t is the responsibility of anyone appealing an assigned grade to demonstrate otherwise."   The order also states that " [f]aculty have the sole right and responsibility to provide careful evaluation and timely assignment of appropriate grades" and " [i]n the absence of compelling reasons, such as instructor or clerical error, prejudice or capriciousness, the grade assigned by the instructor of record is to be considered final."   The order makes each campus responsible for implementing policy and procedures that incorporate specified provisions, including a provision stating the presumption that assigned grades are correct, which places the burden of proof on the individual appealing.

Following a hearing, the trial court denied appellant's petition.  It stated:  " Contrary to the claim of petitioner, the administrative record confirms that his due process rights were assiduously protected and that he was accorded the benefit of appropriate administrative due process.  There is no evidence or showing that the decision of the Student Fairness Committee was arbitrary, capricious, or lacking in evidentiary support."   It also concluded that " petitioner's grade must remain as given and that there is no basis for changing it.  Further, there is no basis for any other form of relief that petitioner sought."

B.  Scope of Review

Appellant has requested a variety of relief from this court but this court has no authority to issue a writ of mandate or grant an injunction on appeal from the trial court's denial of appellant's petition filed below.  Our review is limited to evaluating the trial court's denial under the proper standard.

Appellant claims he was entitled to administrative mandamus review. He states, without reference to the record, that the SFC determined that a hearing was required pursuant to S97-8 and, consequently, he " petitioned for a writ of administrative mandate and a hearing de novo."  Respondent Board of Trustees maintains that this lawsuit was an ordinary mandamus proceeding and that the sole issue before the superior court was whether the SFC's decision was arbitrary, capricious, or entirely lacking in evidentiary support.

We conclude that the decision of the SFC was not subject to administrative mandamus review (Code Civ. Proc., §  1094.5).  Relief under Code of Civil Procedure section 1094.5 is available only when the petitioner seeks review of " any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal . . . ."   (Code Civ. Proc., § 1094.5, subd. (a); Keeler v. Superior Court (1956) 46 Cal.2d 596, 599.)  "   '[O]rdinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.'  (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848 . . . .)"   (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1785.)  An administrative decision made after a hearing held as a matter of discretion is not reviewable under Code of Civil Procedure section 1094.5.  (See Weary v. Civil Service Com. (1983) 140 Cal.App.3d 189, 195 [review of commission's evaluation rating reached following discretionary hearing available under ordinary mandamus rather than administrative mandamus].)

The university's grievance procedures established by Policy S97-8 did not require the SFC to hold a hearing and take evidence to act on appellant's grievance.  Rather, the SFC was permitted to conduct an initial investigation and informally consider the grievance unless and until it determined there were " sufficient grounds to hear the case" and to hold a " full adversary hearing."  

Even though SFC members questioned appellant during a discussion of appellant's case at a regular meeting of the SFC, the appellate record does not show that the discussion of appellant's case was part of " a full adversary hearing" involving the presentation of evidence (live testimony or individual written statements) and a final judgment based solely upon the evidence presented as required by the university's policy following a finding by the SFC that there were sufficient grounds to hold such a hearing.  It may be inferred from the administrative record that, following the subcommittee's investigation, report, and recommendation, the SFC decided at its regular meeting that there were not sufficient grounds for an evidentiary hearing and closed the case as permitted by the university's Policy S97-8.

Neither has appellant demonstrated that he had a legal right to an evidentiary hearing under due process principles.  " The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property."   (Board of Regents of State Colleges v. Roth (1972) 408 U.S. 564, 569 [92 S.Ct. 2701].)  Although protected liberty interests may include the right " to engage in any of the common occupations of life" (id. at p. 572; see Conn v. Gabbert (1999) 526 U.S. 286, 291-292 [119 S.Ct. 1292] [" liberty component of the Fourteenth Amendment's Due Process Clause includes some generalized due process right to choose one's field of private employment" circumscribed by reasonable government regulation]) and the right to an opportunity to refute governmental charges of misconduct that affect one's livelihood (see Board of Regents of State Colleges v. Roth, supra, 408 U.S. 573-574; but see Paul v. Davis (1976) 424 U.S. 693, 701, 712 [96 S.Ct. 1155] [no cognizable liberty interest in a person's reputation standing alone]), appellant has failed to cite any authority establishing that the receipt of a poor or failing academic grade in a university course implicates any liberty interest.  Neither has appellant shown that he had protected property right to a better grade (see Board of Regents of State Colleges v. Roth, supra, 408 U.S. at p. 576 [" Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits" to which the person is entitled under independent law, rules or policy]).

Even assuming arguendo that a constitutionally protected liberty or property interest was at stake, appellant was not entitled to a formal hearing.  In Board of Curators of University of Missouri v. Horowitz (1978) 435 U.S. 78 [98 S.Ct. 948], the U.S. Supreme Court assumed, without deciding, that a liberty or property interest was implicated where a medical school student was dismissed from a public university " for failure to meet academic standards."   (Id. at pp. 79, 84-85.)  The court nevertheless concluded that due process did not require a formal hearing at which the student could defend her academic ability and performance.  (Id. at pp. 85-86, see p. 89 [" Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative fact-finding proceedings to which we have traditionally attached a full-hearing requirement" ].)  A fortiori, in this case involving only the lesser consequence of an " F" grade in single course, appellant not entitled to an evidentiary hearing before the SFC under principles of due process.

Accordingly, the trial court's review was limited as is our review on appeal.  " [W]hen review is sought by means of ordinary mandate (Code Civ.Proc., §  1085) 'judicial review is limited to an examination of the proceedings before the [agency] to determine whether [its] action has been arbitrary, capricious, or entirely lacking in evidentiary support, or whether [it] has failed to follow the procedure and give the notices required by law.'  [Citations.]"   (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 35, fn. 2.)  " In a petition for writ of mandate brought pursuant to Code of Civil Procedure section 1085, .  .  . the petitioner bears the burden of pleading and proving the facts on which the claim for relief is based.  (Code Civ. Proc., §  1109; Evid. Code, § 500; [citations].)"   (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153-1154.)

" Generally, for a [traditional] writ of mandate to issue, two basic requirements are essential, namely, a clear, present and usually ministerial duty on the part of the defendant and a clear, present and beneficial right in plaintiff to performance of that duty.  (Code Civ.Proc., § 1085; People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491 .  .  .  .)"   (Taylor v. Board of Trustees (1984) 36 Cal.3d 500, 507.)  A traditional writ of mandate (Code Civ. Proc., §  1085) " will not lie to control discretion conferred upon a public officer or agency."   (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491.)  It is well established, however, that " mandate will lie whenever an administrative board has abused its discretion . . . ."   (Manjares v. Newton (1966) 64 Cal.2d 365, 370.)  " The applicable principle was stated many years ago in Inglin v. Hoppin (1909) 156 Cal. 483, 491 .  .  .  :  'While, of course, it is the general rule that mandamus will not lie to control the discretion of a court or officer, meaning by that that it will not lie to force the exercise of discretion in a particular manner . . . [it] will lie to correct abuses of discretion, and will lie to force a particular action by the inferior tribunal or officer, when the law clearly establishes the petitioner's right to such action.'  (See also authorities cited in 3 Witkin, Cal. Procedure (1954) p. 2529.)  In determining whether an abuse of discretion has occurred, a court may not substitute its judgment for that of the administrative board (Pitts v. Perluss (1962) 58 Cal.2d 824, 834-835 .  .  .), and if reasonable minds may disagree as to the wisdom of the board's action, its determination must be upheld (Rible v. Hughes (1944) 24 Cal.2d 437, 445 .  .  .)."   (Id. at pp. 370-371.)

In reviewing a trial court's ruling on a petition for writ of ordinary mandamus, appellate courts apply the substantial evidence test to any factual findings but exercise independent judgment on issues of law.  (See Johnston v. Sonoma County Agricultural Preservation & Open Space Dist. (2002) 100 Cal.App.4th 973, 983-984; County of San Diego v. State of California (1997) 15 Cal.4th 68, 109; Burden v. Snowden (1992) 2 Cal.4th 556, 562.)

C.  Substantive Due Process

Appellant Head argues that he is entitled to judicial relief because he was denied substantive due process.  He contends that he was deprived of due process by the enforcement of an unconstitutionally vague and discriminatory " speech code" and by respondents giving him " failing grades and prevent[ing] him from further pursuing his teaching credential based on his exercise of free speech, his race and/or in retaliation for his filing a faculty complaint" against respondent Kress.  We find no basis for overturning the SFC's decision on substantive due process grounds.

Even assuming arguendo that the SFC's decision regarding appellant's grievance implicated a right protected under principles of substantive due process and appellant was entitled to review of that decision under an arbitrary and capricious due process standard (see Board of Curators of University of Missouri v. Horowitz, supra, 435 U.S. at pp. 91-92 [recognizing that " a number of lower courts have implied in dictum that academic dismissal from state institutions can be enjoined if 'shown to be clearly arbitrary or capricious'  " ]), a proposition that we find to be highly dubious, the record before us does not reveal that the SFC acted arbitrarily or capriciously in reaching its conclusions.[4]

In Board of Curators of University of Missouri v. Horowitz, supra, 435 U.S. 78, the U.S. Supreme Court, in finding no showing of arbitrariness or capriciousness had been made in that case, observed that " [c]ourts are particularly ill-equipped to evaluate academic performance."   (Id. at p. 92.)  The high court emphasized the subjective and evaluative nature of academic decision-making and central role of the faculty-student relationship in the educational process and indicated that these factors warned against " judicial intrusion into academic decisionmaking."   (Id. at pp. 89-92, fn. omitted.)  The U.S. Supreme Court has also stated:  "   'University faculties must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation.'  Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 96, n. 6 .  .  . (POWELL, J., concurring).  See id., at 90-92 .  .  . (opinion of the Court)."   (Regents of University of Michigan v. Ewing (1985) 474 U.S. 214, 225, fn. 11 [106 S.Ct. 507].)  " Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking."   (Board of Curators of University of Missouri v. Horowitz, supra, 435 U.S. at p. 90.)

" When judges are asked to review the substance of a genuinely academic decision,  .  .  . they should show great respect for the faculty's professional judgment.  [Fn. omitted.]  Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.  Cf. Youngberg v. Romeo, 457 U.S. 307, 323, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982)."   (Regents of University of Michigan v. Ewing, supra, 474 U.S. at p. 225.)  The wisdom, as opposed to the arbitrariness or capriciousness, of a university's academic decision is not reviewable.  (See id. at pp. 227-228 [university decision to dismiss student from university program after failing important written exam without allowing him to retake it may have been unwise but not " beyond the pale of reasoned academic decision-making" ]; see also Wood v. Strickland (1975) 420 U.S. 308, 326 [95 S.Ct. 992] [" It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion" ].)

The record does not establish that the SFC acted arbitrarily or capriciously in not finding that the challenged instruction constituted reverse discrimination against Whites.  The First Amendment broadly protects academic freedom in public colleges and universities.  (See Regents of University of California v. Bakke (1978) 438 U.S. 265, 312 [98 S.Ct. 2733] [" Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment" ]; Keyishian v. Board of Regents of Univ. of State of N. Y. (1967) 385 U.S. 589, 603 [87 S.Ct. 675] [" Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us . . ." ]; Sweezy v. State of N.H. by Wyman (1957) 354 U.S. 234, 250 [77 S.Ct. 1203] [" government should be extremely reticent to tread" in the area of academic freedom].)  Discretion to determine, on academic grounds, " what may be taught" and " how it shall be taught" has been described as two of " the four essential freedoms" of a university.  (Sweezy v. State of N.H. by Wyman, supra, 354 U.S. at p. 263 (conc. opn. of Frankfurter, J.).)  Nothing in the record establishes that the chosen course curriculum did not reflect legitimate sociological theories and philosophies of education recognized within the academic community.  In addition, appellant has not pointed to any evidence in the record showing that respondent Kress had an impermissible discriminatory or retaliatory purpose in grading appellant or that the academic reasons given for the failing grade in respondent Kress's class were a pretext.

Appellant Head more specifically attacks the SFC's determination regarding his right to free speech.  He maintains that he was improperly " barred from discussing views or citing authors and literature that disputed or took exception to the views offered as the official dogma in the class" when he was merely expressing reasoned exception to the data or views offered in the course as permitted by express university policy.  He suggests that his prohibited speech was relevant to the discussions but disallowed " because . . . the professor's enforcement of the Speech Code prohibited those views from debate."   He also states that respondent Kress " refused to grade most, if not all," of his course work because she " disagreed with the views, opinions, analysis or conclusions contained therein," and required him to " conform with the Speech Code and [respondent Kress's] radical political preferences, opinions, and points of view."   He asserts that he was given D's and F's because " resubmitted work still did not conform to the Speech Code's vague standards and mandates and [respondent Kress's] worldview .  .  .  ."

Appellant Head also contends that the professional dispositions are unconstitutionally vague, unconstitutionally compel speech, and unconstitutionally discriminate on the basis of viewpoint, and violate Education Code section 66301.  Although it is not clear from the record that the " professional dispositions" directly impacted appellant's grade, we consider appellant's free speech claims, keeping in mind that the ultimate question is whether the SFC acted arbitrarily or capriciously.

We begin by noting that " the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired.  Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966); Poulos v. New Hampshire, 345 U.S. 395, 405, 73 S.Ct. 760, 766, 97 L.Ed. 1105 (1953); see Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965)."   (Heffron v. International Soc. for Krishna Consciousness, Inc. (1981) 452 U.S. 640, 647 [101 S.Ct. 2559].)  For one thing, a university classroom where instruction is taking place is not a public forum.

" In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed.  At one end of the spectrum are streets and parks which 'have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'  Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939).  In these quintessential public forums, the government may not prohibit all communicative activity.  For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.  Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (1980).  The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.  [Citations.]"   (Perry Educ. Ass'n v. Perry Local Educators' Ass'n (1983) 460 U.S. 37, 45 [103 S.Ct. 948] (Perry).)

" A second category consists of public property which the state has opened for use by the public as a place for expressive activity.  The Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place.  Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (university meeting facilities); City of Madison Joint School District v. Wisconsin Public Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (municipal theater).  [Fn. omitted.]  Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum.  Reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.  Widmar v. Vincent, supra, 454 U.S., at 269-270, 102 S.Ct., at 279."   (Perry, supra, 460 U.S. at pp. 45-46.)

" Public property which is not by tradition or designation a forum for public communication is governed by different standards. . . . In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.  [United States Postal Service v. Greenburgh Civic Ass'n, supra], 453 U.S., at 131, n. 7, 101 S.Ct., at 2686, n. 7. . . '[T]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.'  Id., 453 U.S., at 129, 101 S.Ct., at 2684; Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976); Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966)."   (Perry, supra, 460 U.S. at p. 46, italics added.)  " [S]chool facilities may be deemed to be public forums only if school authorities have 'by policy or by practice' opened those facilities 'for indiscriminate use by the general public,' Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 47 .  .  .  , or by some segment of the public, such as student organizations.  Id., at 46, n. 7,  .  .  ."   (Hazelwood School Dist. v. Kuhlmeier (1988) 484 U.S. 260, 267 [108 S.Ct. 562].)

" [T]he First Amendment rights of students in public schools . . . must be 'applied in light of the special characteristics of the school environment.'  [Citations.]"   (Hazelwood School Dist. v. Kuhlmeier, supra, 494 U.S. at p. 266.)  If no public forum has been created, " school officials may impose reasonable restrictions on the speech of students . . . ."   (Id. at p. 267.)  " A school need not tolerate student speech that is inconsistent with its 'basic educational mission,' Fraser, supra, 478 U.S., at 685, 106 S.Ct., at 3165, even though the government could not censor similar speech outside the school."   (Id. at p. 266.)  While a school cannot prohibit a student's expression of personal views where that expression does not interfere with or disrupt the educational process, " conduct by the student, in class or out of it, which for any reason -- whether it stems from time, place, or type of behavior -- materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.  [Citation.]"   (Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 513 [89 S.Ct. 733] [school officials could not suspend students for merely wearing armbands protesting the Vietnam war].)  Student speech in school-sponsored expressive activities may be restricted so long as the restrictions reasonably relate to legitimate pedagogical concerns.  (See Hazelwood School Dist. v. Kuhlmeier, supra, 484 U.S. at p. 273 [educators may exercise editorial control over style and contents of a high school newspaper produced as part of the school's journalism curriculum " so long as their actions are reasonably related to legitimate pedagogical concerns" ].)

An instructor may exercise reasonable control over student expression during class to ensure, among other things, students learn whatever lessons are being taught.  (Cf. Hazelwood School Dist. v. Kuhlmeier, supra, 484 U.S. at p. 271 [educators are entitled to exercise control over student expression that is part of school-sponsored expressive activities to " ensure that participants learn whatever lessons the activity is designed to teach" ].)  Public university instructors are not required by the First Amendment to provide class time for students to voice views that contradict the material being taught or interfere with instruction or the educational mission.  Although the First Amendment may require an instructor to allow students to express opposing views and values to some extent where the instructor invites expression of students' personal opinions and ideas, nothing in the First Amendment prevents an instructor from refocusing classroom discussions and limiting students' expression to effectively teach.

A university's " students are inevitably required to support the expression of personally offensive viewpoints in ways that cannot be thought constitutionally objectionable unless one is prepared to deny the University its choice over what to teach."   (Board of Regents of University of Wisconsin System v. Southworth (2000) 529 U.S. 217, 242-243 [120 S.Ct. 1346], opn. of Sutter J. concurring in judgment.)  Courts have recognized that a school may compel some speech for legitimate pedagogical purposes by requiring, for example, that a student " write a paper on a particular topic even if the student would prefer to write on a different topic."   (C.N. v. Ridgewood Bd. of Educ. (3d Cir. 2005) 430 F.3d 159, 178.)  Similarly, an instructor at a public school may require student expression, oral or written, to assess whether instructional materials have been adequately mastered.

Furthermore, although viewpoint discrimination is generally considered " an egregious form of content discrimination" and ordinarily " a University may not discriminate based on the viewpoint of private persons whose speech it facilitates," a university's own speech is controlled by different principles.  (Rosenberger v. Rector and Visitors of University of Virginia (1995) 515 U.S. 819, 834 [115 S.Ct. 2510]).)  " [W]hen the State is the speaker, it may make content-based choices.  When the University determines the content of the education it provides, it is the University speaking . . . ."   (Id. at p. 833.)  A public school's prescription of its curriculum " by its nature will facilitate the expression of some viewpoints instead of others."   (Arkansas Educ. Television Com'n v. Forbes (1998) 523 U.S. 666, 674.)  A university is entitled to set its own curriculum and its selection of course materials will express the academic ideas and values that it wishes to inculcate.

In this case, the university's Secondary Education Department had adopted a philosophy of education[5] and established explicit " professional dispositions" that candidates in the Single Subject Credential Program were expected to demonstrate.  A university's standards of academic competence are set by a subjective expert evaluation.  (See Board of Curators of University of Missouri v. Horowitz, supra, 435 U.S. at p. 95, fn. 5 (conc. opn. of Powell, J.).)  As previously indicated, judicial deference is generally accorded to academic decision-making.  (See Regents of University of Michigan v. Ewing, supra, 474 U.S. at pp. 222-228.)  " Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students [citations], but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself [citations]."   (Regents of University of Michigan v. Ewing, supra, 474 U.S. at p. 226, fn. 12.)

Although appellant has labeled the university's " professional dispositions" a " speech code," they are not administrative regulations governing students' speech or conduct, the violation of which might subject a student to disciplinary sanction.  They are academic standards established by the university's Secondary Education Department.  They aim in part in producing credentialed teachers who have particular conceptual understandings and approaches to teaching that the university has impliedly determined will make students more effective educators.  Nothing in the First Amendment precludes the university from prescribing the academic standards that must be met to obtain a teaching credential from that institution.

Appellant has not shown that the due process vagueness doctrine invalidates the " professional dispositions."   " It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.  Vague laws offend several important values.  First, because we assume that [an individual] is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that [the person] may act accordingly.  Vague laws may trap the innocent by not providing fair warning.  [Fn. omitted.]  Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.  [Fn. omitted.]  A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.  [Fn. omitted.]  Third, but related, where a vague statute 'abut(s) upon sensitive areas of basic First Amendment freedoms' [fn. omitted], it 'operates to inhibit the exercise of (those) freedoms.'  [Fn. omitted.]  Uncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked."   (Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109 [92 S.Ct. 2294].)  As already stated, however, the university's professional dispositions are neither a statute nor an administrative rule, regulation or policy, violation of which could result in punishment or disciplinary action against a student.[6]  (Cf. Keyishian v. Board of Regents of University of State of N. Y., supra, 385 U.S. at pp. 592, 597-604 [statutes and regulations designed to prevent the " appointment or retention of 'subversive' persons in state employment" unconstitutionally vague].)

Moreover, even if due process vagueness principles apply to academic standards, due process does not demand the clarity required for a criminal statute.  The high court has recognized, for instance, that schools " need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process" and, consequently, " school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions.  Cf. Arnett v. Kennedy, 416 U.S. 134, 161, 94 S.Ct. 1633, 1647-1648, 40 L.Ed.2d 15 (1974) (REHNQUIST, J., concurring)."   (Bethel School Dist. No. 403 v. Fraser (1986) 478 U.S. 675, 686 [106 S.Ct. 3159] [school disciplinary rule proscribing " obscene" language not impermissibly vague].)  A fortiori, assuming due process vagueness doctrine is even applicable to academic standards not carrying the threat of disciplinary sanction, those academic standards are not required to achieve the standard of clarity required of penal statutes or even disciplinary rules.  Although the " professional dispositions" reflect abstract ideas, we conclude that they are sufficiently clear, especially as elucidated by the more concrete " indicators," to meet the minimum requirements of due process that might be applicable to academic standards. 

Neither has appellant shown that the " professional dispositions" unconstitutionally compel speech even though he argues they do by requiring " credential students to declare and commit to a pre-approved set of beliefs, values and attitudes towards particular subjects, including controversial and unsettled subjects or concepts like 'social justice,' 'equity' and 'multiculturalism' . . . ."   It is true that the Supreme Court has declared that " the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.  See Board of Education v. Barnette, 319 U.S. 624, 633-634, 63 S.Ct. 1178, 1182-1183, 87 L.Ed. 1628 (1943); id., at 645, 63 S.Ct., at 1188 (Murphy, J., concurring)."   (Wooley v. Maynard (1997) 430 U.S. 705, 714 [97 S.Ct. 1428]; see Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) 515 U.S. 557, 573 [115 S.Ct. 2338] [state law cannot require a parade to include a group whose message the parade's organizer does not wish to send because " one important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say. . .'  " ].)  As already discussed, however, this broad statement is not necessarily applicable in the context of academic instruction at a public university that a student has chosen to attend.

We discern nothing in First Amendment jurisprudence that precludes a public university from adopting, in its exercise of its academic freedom, academic standards that must be satisfied by a student seeking a professional teaching credential even where those standards reflect a certain philosophy of education or academic viewpoints with which a student vehemently disagrees.  Obviously, if so-called academic standards were not based upon legitimate pedagogical grounds that would be an altogether different matter but the record before us does not demonstrate that is the situation here.

We agree with observations made by New York's high court:  " Strong policy considerations militate against the intervention of courts in controversies relating to an educational institution's judgment of a student's academic performance.  [Citations.]  Unlike disciplinary actions taken against a student [citation], institutional assessments of a student's academic performance, whether in the form of particular grades received or actions taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators (Board of Curators v. Horowitz, 435 U.S. at 90, 98 S.Ct. at 955, supra).  These determinations play a legitimate and important role in the academic setting since it is by determining that a student's academic performance satisfies the standards set by the institution, and ultimately, by conferring a diploma upon a student who satisfies the institution's course of study, that the institution, in effect, certifies to society that the student possesses the knowledge and skills required by the chosen discipline [citations]."   (Susan M. v. New YorkLawSchool (1990) 76 N.Y.2d 241, 245-246 [556 N.E.2d 1104, 1106-1107].)

Appellant Head had the burden of proving the claims advanced in his grievance (San Jose State University, Policy S97-8; see also California State University, Executive Order No. 792) and implicitly the SFC concluded that he did not meet his burden of proof.  The record before us does not demonstrate that appellant's constitutionally protected right to free speech was violated during the course of EDSC 172A.  It certainly does not does not compel the conclusion that the SFC altogether failed to exercise its professional judgment or that the SFC's judgment was " beyond the pale of reasoned academic decision-making" (see Regents of University of Michigan v. Ewing, supra, 474 U.S. at pp. 227-228).  The bottom line is that the record simply does not show that the SFC acted arbitrarily or capriciously or in bad faith in making its findings or denying appellant's grievance.

D.  Procedural Due Process

Appellant Head lastly asserts that he was denied procedural due process.  "   '(D)ue process is flexible and calls for such procedural protections as the particular situation demands.'  Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). .  .  . [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors:  First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.  See, e. g., Goldberg v. Kelly, supra, 397 U.S., at 263-271, 90 S.Ct., at 1018-1022."   (Mathews v. Eldridge (1976) 424 U.S. 319, 334-335 [96 S.Ct. 893].)  Fundamental fairness is the touchstone of due process.  (Gagnon