SHANE LACHTMAN, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent, 158 Cal. App. 4th 187

Opinion FYBEL, J. Introduction Shane Lachtman entered the graduate program in the history department (History Department) of the University of California, Irvine (UCI) in the fall of 2001. After his first year, Lachtman was informed of deficiencies in his academic performance and of certain requirements, including improvement in his writing, he needed to meet to advance to the Ph.D. program.

In February 2003, three professors in the History Department evaluated Lachtman’s writing, determined it had not improved and was not good enough for the Ph.D. program, and concluded Lachtman displayed limited interest in essential areas outside of his narrow field of academic interest. As a result, the History Department denied Shane Lachtman advancement to the department’s Ph.D. program, and he ultimately received a master’s degree. Lachtman sued the Regents of the University of California (the University) contending the History Department’s decision violated his due process rights.

He also contended the University breached a contract employing him as a graduate student researcher and a contract awarding him a fellowship, and violated his privacy rights by allegedly disclosing his personal information. The trial court granted

summary judgment in favor of the University. United States Supreme Court decisions have long recognized “universities occupy a special niche in our constitutional tradition” and the “ ‘freedom of a university to make its own judgments as to education includes the selection of its student body.’ ” (Grutter v.

Bollinger (2003) 539 U.S. 306, 329 [156 L.Ed.2d 304, 123 S.Ct. 2325].) In keeping with these principles, judicial review of academic decisions, such as the one denying Lachtman advancement in the Ph.D. program, is a “narrow avenue” restrained by “[considerations of profound importance.” (Regents of University of Michigan v.

Ewing (1985) 474 U.S. 214, 227, 225 [88 L.Ed.2d 523, 106 S.Ct. 507] (Ewing).) Procedural due process does not require a university to provide a student a formal hearing but is satisfied if the university informs the student of its dissatisfaction with the student’s academic performance, it informs the student of the consequences of deficient performance, and a decision regarding the student’s academic progress is careful and deliberate. (Board of Curators, Univ. of Mo. v.

Horowitz (1978) 435 U.S. 78, 91-92 [55 L.Ed.2d 124, 98 S.Ct. 948] (Horowitz).) When reviewing an academic decision for substantive due process, courts should show “great respect for the faculty’s professional judgment” and may not override a faculty’s academic decision 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.” (Ewing, supra, 474 U.S. at p. 225, fn. omitted.) Under the undisputed facts, procedural and substantive due process standards were met in this case.

Lachtman was given ample notice of the deficiencies in his academic performance, the consequences of those deficiencies, and an opportunity to improve. The decision denying him advancement in the Ph.D. program resulted from the careful and deliberate exercise of professional judgment by History Department faculty members.

We cannot second-guess that exercise of professional judgment because the History Department’s decision was based on the quality of Lachtman’s writing and his limited area of academic interest—indisputably normal academic criteria—and because Lachtman failed to produce evidence of a triable issue of material fact. The undisputed facts establish the University did not violate Lachtman’s privacy rights or retaliate against him for exercising his right of free speech, the basis for two causes of action.

Lachtman’s contractual claims based on his employment as a graduate student researcher fail as a matter of law because public employment, including employment by the University of California, is held by statute, not contract, and Lachtman did not plead a statutory claim. However, Lachtman asserted two separate contractual causes of action based on a diversity fellowship he received, and the University failed to meet its burden of showing the fellowship was not a contract or that it complied with the terms of the fellowship. For these reasons, we reverse

summary judgment and remand with directions to enter an order granting

summary adjudication of all but those two causes of action. Statement of Facts The Ph.D. program in history at UCI typically takes a student seven years to complete. Before a student is formally admitted into the program, the UCI History Department performs a first-year review to evaluate the student’s likelihood of successfully completing the program and receiving a Ph.D.

After the first-year review, the History Department will take one of four actions: (1) formally admit the student into the doctoral program; (2) recommend the student not continue in the program and permit the student to voluntarily withdraw; (3) recommend the student not continue in the program and offer the student the opportunity to change his or her degree status to a terminal master’s degree; or (4) recommend the student’s disqualification from the program. The UCI Graduate Advisor’s Handbook (the Handbook) sets minimum standards of academic progress for graduate students.

The Handbook also specifies that grade point average alone is not enough to establish satisfactory progress toward a graduate degree: “Satisfactory progress is determined on the basis of both the student’s recent academic record and overall performance. . . . [][] ...[f]... Unsatisfactory academic progress may be determined on the basis of explicit requirements such as those outlined above. However, the professional judgment of the faculty, upon review of all graduate work undertaken by the student, is paramount.” Lachtman was accepted into UCI’s graduate program in history, to begin study in the fall of 2001.

A promising candidate with an impressive academic background, Lachtman received a “Diversity Fellowship award” (also called a graduate opportunity fellowship). As a fellowship recipient, Lachtman was required to “remain in good academic standing during the tenure of the award.” Lachtman enrolled in History 260A, a required course for United States history graduate students, but attended only two class sessions before dropping it due to a disagreement with the instructor, Professor Sharon Block.

After dropping the course, Lachtman received permission from the graduate program committee to substitute a comparable course at the University of California, Los Angeles (UCLA). After a review was conducted of Lachtman’s first year in the graduate program, the History Department advised Lachtman in June 2002 not to continue in the Ph.D. program. The History Department offered Lachtman the option of withdrawing from the program or pursuing a terminal master’s degree in lieu of a Ph.D.

Lachtman disputed the results of the first-year review and notified the History Department he wanted to continue in the Ph.D. program. Lachtman also sought assistance from the UCI ombudsman, who intervened with the History Department at his request. In a letter dated October 28, 2002, the History Department renewed its recommendation that Lachtman pursue a terminal master’s degree, but offered him another opportunity to pursue advancement to the Ph.D. program and identified the steps he would need to take to do so.

Lachtman advised the History Department he wanted to remain in the Ph.D. program, but that he would not agree to all the conditions proposed in the History Department’s October 28 letter. In January 2003, the chair of the History Department’s graduate program committee sent Lachtman another letter reiterating the steps he was “required to take in order to be re-considered for admission to the History department Ph.D. program.” This letter reminded Lachtman he had completed only one of the requirements outlined in the October 28 letter, and granted him an extension to complete the remaining requirements.

Lachtman’s grades for the fall quarter of 2002 and winter quarter of 2003 raised his cumulative grade point average to 3.577. He petitioned for and was granted permission to substitute UCLA History 246A for UCI History 260A. He submitted two writing samples that were evaluated by three history professors. However, the three professors who reviewed Lachtman’s writing samples concluded they did not provide “convincing evidence” Lachtman could perform competent work outside of his narrow field of interest and failed to demonstrate his writing had improved.

As a result, in February 2003, the History Department’s graduate program committee unanimously agreed to deny Lachtman advancement to the Ph.D. program. The committee encouraged Lachtman to accept the previous offer to pursue a terminal master’s degree; Lachtman ultimately accepted the offer and received his master’s degree in July 2003. In the summer of 2002, Lachtman applied for a position as a graduate student researcher with the University of California Humanities Research Institute (UCHRI).

Lachtman received the job offer on October 3, 2002, but the offer was withdrawn when the UCHRI was informed Lachtman was not a Ph.D. student. Lachtman’s position as a graduate student researcher later was reinstated. His initial hire date was November 18, 2002, and official separation date was May 1, 2003. He performed work assigned to him in that position until at least March 2003. Procedural History Lachtman sued the University for a variety of claims. After numerous demurrers were sustained, Lachtman filed a third amended complaint, the operative complaint in the case.

The third amended complaint contains causes of action for (1) invasion of privacy (cause of action 1); (2) breach of contract (causes of action 2 & 6); (3) violation of due process under state and federal law (causes of action 3 & 4); (4) breach of the covenant of good faith and fair dealing (causes of action 5 & 7); and (5) retaliation for exercise of free speech rights under the United States Constitution and the California Constitution (cause of action 8). The University filed a motion for

summary judgment or, in the alternative,

summary adjudication of each of Lachtman’s causes of action. Lachtman filed a motion for

summary judgment of cause of action 2 (breach of the graduate student researcher agreement). The trial court granted the University’s motion for

summary judgment, denied Lachtman’s motion, and entered judgment in the University’s favor. The order granting the University’s motion reads, in part, as follows: “It appears to this Court that [Lachtman] has not shown any legally protected privacy interest related to the University’s evaluation of [Lachtman]’s academic standing and abilities (first cause of action).

It is clear as a matter of law that a student must be graded and evaluated when he is a member of a graduate program at a University. [Lachtman]’s breach of contract claims for employment (second and fifth causes of action) fail as a matter of law because employment with the Regents is pursuant to statute, not contract. The Court also notes that even if employment with the Regents was contractual, it is difficult to see how a contract was formed.

There is no evidence that [Lachtman] was a Ph.D. student in good standing at the time the contract was allegedly formed. [Lachtman]’s contract claims based on his Diversity Fellowship (sixth and seventh causes of action) also fail because there is no evidence that [Lachtman]’s scholarship was a contract with the Regents. It is also the case that [Lachtman]’s due process claims (third and fourth causes of action) cannot survive

summary judgment because there is no evidence of either a protected property or liberty right. Likewise, [Lachtman]’s eighth cause of action fails as a matter of law because [Lachtman] did not provide sufficient evidence of retaliation to withstand

summary judgment.” Lachtman timely appealed. Principles of Review In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [107 Cal.Rptr.2d 841, 24 P.3d 493], the Supreme Court described the burden of production on

summary judgment motions as follows: “[F]rom commencement to conclusion, the party moving for

summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. [Citation.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. ...[][]... [T]he party moving for

summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. ... A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Fns. omitted.) A motion for

summary judgment is properly granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

Summary judgment “provide[s] courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 844.) Under “[t]he historic paradigm for our de novo review of a motion for

summary judgment. . . [w]e first identify the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine if the moving party has established a prima facie entitlement to judgment in its behalf. Only if the moving party has satisfied this burden do we consider whether the opposing party has produced evidence demonstrating there is a triable issue of fact with respect to any aspect of the moving party’s prima facie case.” (Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 734-735 [60 Cal.Rptr.2d 710].) Discussion I.

Due Process Claims (Causes of Action 3 and 4) In causes of action 3 and 4, Lachtman alleged the University violated his substantive and procedural due process rights under

article I of the California Constitution and under the Fifth and Fourteenth Amendments to the United States Constitution by (1) depriving him of compensation earned as a graduate student researcher without sufficient process, and (2) depriving him of his position as a Ph.D. student in good standing without adequate procedures and for arbitrary and capricious reasons. A. Graduate Student Researcher Compensation Lachtman was hired by the UCHRI as a graduate student researcher for the 2002-2003 academic year.

Lachtman received the job offer on October 3, 2002, but the offer was withdrawn when the UCHRI was informed Lachtman was not a Ph.D. student. Lachtman’s position as a graduate student researcher later was reinstated with an initial hire date of November 18, 2002, and an official separation date of May 1, 2003. He performed work assigned to him in that position until at least March 2003. Lachtman contends the University paid him only $880 toward his tuition and failed to pay him his salary of $33,396.

College professors and staff members dismissed during the terms of their contracts “have interests in continued employment that are safeguarded by due process.” (Board of Regents v. Roth (1972) 408 U.S. 564, 576-577 [33 L.Ed.2d 548, 92 S.Ct. 2701]; see Connell v. Higginbotham (1971) 403 U.S. 207, 208 [29 L.Ed.2d 418, 91 S.Ct. 1772] [Supreme Court decisions “proscrib[e]

summary dismissal from public employment without hearing or inquiry required by due process”].) Lachtman was not, however, dismissed from his graduate student researcher position. He does not contend he had a right to continue employment beyond the term of his employment; rather, he contends the University failed to pay his salary. Assuming Lachtman has a protected property interest in any earned but unpaid salary, we conclude he was provided adequate procedures to protect his interest.

Employment by the State of California, including employment by the University of California, is held by statute rather than by contract. (Kim v.

Regents of University of California (2000) 80 Cal.App.4th 160, 164-165 [95 Cal.Rptr.2d 10] (Kim).) “The University is a statewide administrative agency with constitutionally derived powers. [Citations.] Its employees are public employees. [Citation.] The University is administered by the Regents. [Citation.] Regents have rulemaking and policymaking power in regard to the University; their policies and procedures have the force and effect of statute. [Citation.]” (Id. at p. 165.) The Handbook contains UCI’s academic student policies, procedures, and guidelines for graduate students.

The Handbook states, “UCI Graduate Student Researcher appointments are covered by University academic personnel policies.” Under Kim, supra, 80 Cal.App.4th at page 165, the University academic personnel policies controlled the terms of Lachtman’s employment and “have the force and effect of statute.” The University academic personnel policies are maintained in the Academic Personnel Manual (APM), which “includes policies and procedures pertaining to the employment relationship between an academic appointee and the University of California.” The Handbook contains informal grievance resolution procedures for graduate student researchers and refers to the formal grievance procedures in

section 140 of the APM if the Handbook’s procedures are unsuccessful.

Thus, the University academic personnel policies in the APM controlled the terms of Lachtman’s employment and “have the force and effect of statute.” (Kim, supra, 80 Cal.App.4th at p. 165.) The APM includes a grievance policy for academic appointees intended “to encourage voluntary resolution including mediation when it is desired by both parties.” The APM sets forth step-by-step procedures for grievance resolution, starting with attempts at informal resolution, followed by formal grievance procedures, and concluding with an appeal of a formal grievance “not resolved to the satisfaction of the grievant.” Lachtman does not assert the APM procedures or the informal procedures referred to in the Handbook fail to satisfy due process.

He did not allege he followed those procedures. He therefore cannot prevail on a claim the University violated due process by failing to pay his salary. B. Continued Enrollment in Ph.D. Program 1. Property Interest? No United States or California Supreme Court opinion holds a student has a property or liberty interest in continued enrollment in good standing in an academic program.

In Horowitz, supra, 435 U.S. 78, 91-92, and Ewing, supra, 474 U.S. 214, 222, the two seminal cases in the area of a university student’s due process rights, the Supreme Court assumed, without deciding, that a public university’s academic decisions are subject to judicial review under a due process standard. (But see Gossett v.

Board of Regents for Langston Univ. (10th Cir. 2001) 245 F.3d 1172, 1181 [student had a property interest in his place in a nursing school program that was entitled to due process protection].) The University has not argued the issue, asserting instead that “even if the court were to conclude there is a protected interest, it is beyond debate that whatever process might conceivably be due has been afforded to Lachtman in this case.” 2.

Procedural Due Process Horowitz, supra, 435 U.S. 78, remains the definitive case on the scope of a university student’s procedural due process rights to remain enrolled in an academic program.

In that case, the Supreme Court rejected Horowitz’s assertion the University of Missouri-Kansas City Medical School violated her due process rights under the United States Constitution by dismissing her in the last year of her study without a formal hearing. (435 U.S. at pp. 79-80.) In Horowitz, several faculty members expressed dissatisfaction with Horowitz’s clinical performance after her first year of study. (Horowitz, supra, 435 U.S. at pp. 80-81.) Upon the recommendation of the medical school’s council on evaluation, Horowitz was advanced to her second and final year on probationary status. (Id. at p. 81.) Faculty dissatisfaction with Horowitz’s performance continued during her second year of study, and, in the middle of the year, the council on evaluation concluded Horowitz should not be considered for graduation in June and recommended, “absent ‘radical improvement,’ ” she be dismissed from the medical school. (Ibid.) As an “ ‘appeal’ ” of that decision, Horowitz was permitted to take a set of oral and practical examinations and to spend time with seven practicing physicians, who would offer their recommendations whether to permit Horowitz to graduate. (Ibid.) Based on those recommendations, the council on evaluation reaffirmed its prior decision to dismiss Horowitz. (Ibid.) Later, the council met again and, after receiving further negative reports on Horowitz’s performance in rotations, unanimously reaffirmed its recommendation to dismiss Horowitz from the medical school. (Id. at pp. 81-82.) After the dean and coordinating committee approved the recommendation, Horowitz appealed to the health sciences provost, who sustained the medical school’s decision. (Ibid.) In concluding due process did not require Horowitz be granted a formal hearing, the Supreme Court distinguished academic evaluations of a student from disciplinary determinations, to which the court traditionally attached a full-hearing requirement. (Horowitz, supra, 435 U.S. at pp. 86-87.) Unlike disciplinary actions, the decision to dismiss Horowitz “rested on the academic judgment of school officials that she did not have the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal.” (Id. at pp. 89-90.) The Supreme Court explained: “Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision.

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. [][] Under such circumstances, we decline to ignore the historic judgment of educators and thereby formalize the academic dismissal process by requiring a hearing.

The educational process is not by nature adversary; instead it centers around a continuing relationship between faculty and students, ‘one in which the teacher must occupy many roles—educator, adviser, friend, and, at times, parent-substitute.’ [Citation.] This is especially true as one advances through the varying regimes of the educational system, and the instruction becomes both more individualized and more specialized.” (Horowitz, supra, 435 U.S. at p. 90.) Affirming the judiciary’s limited role in reviewing academic decisions, the court “decline[d] to further enlarge the judicial presence in the academic community and thereby risk deterioration of many beneficial aspects of the faculty-student relationship.” (Ibid.) How much procedural due process is a university student entitled to before dismissal for academic reasons?

The United States Supreme Court has established a student is not entitled to a formal hearing.

The Supreme Court concluded Horowitz had been afforded “at least as much due process as the Fourteenth Amendment requires” because “[t]he school fully informed [Horowitz] of the faculty’s dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment” and “[t]he ultimate decision to dismiss [Horowitz] was careful and deliberate.” (Horowitz, supra, 435 U.S. at p. 85.) Thus, under Horowitz, a university satisfies the demands of procedural due process if it informs the student of its dissatisfaction with the student’s academic performance, it informs the student of the consequences of deficient performance, and a decision regarding the student’s academic progress is careful and deliberate. (E.g., Fenje v.

Feld (7th Cir. 2005) 398 F.3d 620, 626 [“In an academic dismissal it is sufficient that the student was informed of the nature of the faculty’s dissatisfaction and that the ultimate decision to dismiss was ‘careful and deliberate’ ”]; Schuler v. University of Minnesota (8th Cir. 1986) 788 F.2d 510, 514 [“Dismissal of a student for academic reasons comports with the requirements of procedural due process if the student had prior notice of faculty dissatisfaction with his or her performance and of the possibility of dismissal, and if the decision to dismiss the student was careful and deliberate”]; Harris v.

Blake (10th Cir. 1986) 798 F.2d 419, 422 [same].) The procedures approved in Horowitz were sufficient, but not necessary. (Horowitz, supra, 435 U.S. at p. 85.) In light of the need for flexibility and the limitations on judicial review of academic decisions, less protection might be sufficient under the particular circumstances of a case. (Id. at pp. 86, 90.) Here, the University satisfied procedural due process by informing Lachtman of the deficiencies of his performance and the consequences they posed to his advancement, and by making a considered, deliberate decision.

Lachtman received a first-year review in June 2002. Professor Kenneth Pomeranz, the chair of the History Department, explained in his declaration that, as a result of the first-year review, the History Department could recommend (1) the student continue in the program, (2) the student withdraw from the program, (3) the student not continue in the program but elect to pursue a terminal master’s degree, or (4) the student be disqualified from the program.

In Lachtman’s case, the first-year review committee evaluated Lachtman’s academic performance and informed him: “Based on our overall assessment of your performance in your first-year classes, we see little prospect of your successfully completing the doctoral program, and thus we do not recommend your continuation in the [Ph.D.] program.” The committee informed Lachtman he could apply for a candidacy for a terminal master’s degree. Lachtman disputed the first-year review committee’s decision and the UCI ombudsman intervened.

The History Department agreed to give him another chance to advance to the Ph.D. program by fulfilling the requirements outlined in the October 28, 2002 letter from Pomeranz. That letter stated that for Lachtman to advance to the Ph.D. program, he had to raise his grade point average in the fall quarter to 3.59 overall and to 3.58 in history courses, demonstrate significant improvement in his writing as certified by the graduate program committee, and present a plan to complete History 260A or an approved substitute course. Pomeranz made it clear to Lachtman these conditions were not negotiable.

Lachtman’s cumulative grade point average improved and at the end of the winter quarter of 2003 was 3.577. He petitioned for and was granted permission to substitute UCLA History 246A for UCI History 260A. He submitted two writing samples that were evaluated by three History Department professors—Professors Michael Davis, Dave Bruce, and Jon Wiener. However, these three professors reviewed Lachtman’s writing samples and concluded they did not provide “convincing evidence” he could perform competent work outside of his narrow field of interest and failed to demonstrate his writing had improved.

Professor Pomeranz stated in a declaration, “[t]he Department’s written orientation materials and oral comments at the compulsory orientation explained that the History Department looks for a minimum GPA of 3.6.” Lachtman contends he was not given notice of the History Department grade point average requirement and relied on the Handbook, which states that a grade point average of 3.0 is satisfactory. The History Department decided, however, to “overlook” Lachtman’s cumulative grade point average of 3.577 because it was so close to the History Department’s required minimum of 3.6.

Thus, the ultimate decision to dismiss Lachtman from the Ph.D. program was based on an evaluation of his writing samples and assessment of his breadth of intellectual interest, not on his grade point average. Lachtman asserts there is a factual dispute over who served on the first-year review committee, arguing professors holding favorable opinions of him were excluded from it. The dispute, if real, is immaterial because, as noted ante, the History Department granted Lachtman an opportunity after his first-year review to advance in the Ph.D. program by fulfilling certain requirements.

According to Lachtman, the History Department had predetermined to dismiss him from the Ph.D. program and the second chance to stay in the program was illusory. In particular, he relies on an e-mail sent by Carol Sokolov, the graduate academic affairs coordinator in the office of research and graduate studies, to Ellen Burt, the interim associate dean of graduate study. Lachtman focuses on the following passage from the e-mail, in which Sokolov stated: “I’m not naive.

I realize it is always possible that Shane will still contest any grades he will get this quarter if they are not what he thinks they should be, but my hope is that in the end he will come to realize that the only way he can ‘win’ is to accept a terminal master’s, and leave without a bitter taste.

In any case, if during this quarter his grades are not up to Ph.D. standards, and if he does not accept the master’s degree offer, the department will have followed the due process required for notification of disqualification based on academic criteria.” The passage Lachtman relies on was only one part of a lengthy e-mail outlining and clarifying the procedures to be followed to resolve the difficult issue of his academic standing.

The e-mail cannot be read to reflect the subjective intent and motives of the History Department faculty members because there was no evidence Sokolov or Burt had any influence in the decision to deny Lachtman advancement to the Ph.D. program. Neither Sokolov nor Burt was a faculty member of the History Department, neither was a member of the History Department’s graduate program committee, and neither was one of Lachtman’s instructors. There is no evidence Sokolov or Burt communicated with Professors Davis, Bruce, or Wiener in an attempt to influence their assessments of Lachtman’s writing samples.

Denial of Lachtman’s advancement in the Ph.D. program fully comported with procedural due process. Lachtman received notice of faculty dissatisfaction of his performance in the History Department Ph.D. program from the first-year review committee, then, after his appeal, in Pomeranz’s October 28, 2002 letter. That letter informed Lachtman of the requirements he had to meet to advance to the Ph.D. program in history.

Three of the History Department faculty members evaluated his writing, and decision makers in the History Department made a “careful and deliberate” decision (Horowitz, supra, 435 U.S. at p. 85) to offer him a terminal master’s degree rather than advancement to the Ph.D. program. Procedural due process was satisfied and required no more. 3. Substantive Due Process In deciding whether a student’s substantive due process rights have been violated, we start with the “widely accepted rule of judicial nonintervention into the academic affairs of schools.” (Paulsen v.

Golden Gate University (1979) 25 Cal.3d 803, 808 [159 Cal.Rptr. 858, 602 P.2d 778] (Paulsen).) “ ‘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.’ ” (Ewing, supra, 474 U.S. at p. 225, fn. 11.) Judicial review of a university’s academic decision is a “narrow avenue” restrained by “[considerations of profound importance.” (Id. at pp. 227, 225.) In Ewing, supra, 474 U.S. 214, the Supreme Court defined the scope of substantive due process review of a university’s academic decisions.

In that case, the university’s promotion and review board dismissed Ewing from a joint undergraduate-medical school program after he received a low score on a required written examination. (Ewing, supra, 474 U.S. at pp. 215-216.) In response to Ewing’s written request, the board reconvened and allowed Ewing to appear in person to explain his low score. (Id. at p. 216.) After reconsidering the matter, the board reaffirmed its prior decision to dismiss Ewing from the program. (Ibid.) The medical school executive committee denied Ewing’s appeal for a leave of absence to retake the examination, and denied his two later requests for readmission to the medical school. (Id. at pp. 216-217.) The Supreme Court assumed Ewing had a protectable property right in continued enrollment, but held his dismissal did not violate his substantive due process rights. (Ewing, supra, 474 U.S. at p. 223.) The court explained the scope of such substantive due process review: “When judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the faculty’s professional judgment.

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.” (Id. at p. 225, fn. omitted.) The court reasoned the lack of substantive due process standards, the judiciary’s responsibility to safeguard academic freedom, and the court’s limited expertise in the area “counsel restrained judicial review of the substance of academic decisions.” (Id. at pp. 225-226; see also Gossett v.

Board of Regents for Langston Univ., supra, 245 F.3d at p. 1182 [“Under Supreme Court authority, a plaintiff asserting a substantive due process claim based on an academic decision must show that the decision was the product of arbitrary state action rather than a conscientious, careful and deliberate exercise of professional judgment”].) California cases have phrased the standard for judicial review of academic decisions somewhat differently than has the United States Supreme Court.

In Paulsen, supra, 25 Cal.3d at page 808, the California Supreme Court held a private law school did not act arbitrarily or capriciously when it imposed a no-degree condition on the readmission of an academically disqualified student.

The court recognized an exception to the rule against judicial intervention in a university’s academic affairs “whenever it is alleged that a university or college has acted arbitrarily or in bad faith.” (Ibid.) Since the university granted the student a fair hearing and there was no evidence of arbitrariness or bad faith, the California Supreme Court affirmed a declaratory judgment in the university’s favor. (Id. at pp. 809, 811.) In Banks v. Dominican College (1995) 35 Cal.App.4th 1545, 1551 [42 Cal.Rptr.2d 110] (Banks), the Court of Appeal affirmed

summary judgment in favor of a university, upholding its decision to dismiss the plaintiff from a teaching credential program. Citing Paulsen, the Banks court concluded a court may overturn a university’s decision to dismiss a student for academic reasons only “if we find it to be arbitrary and capricious, not based upon academic criteria, and the result of irrelevant or discriminatory factors.” (Banks, supra, 35 Cal.App.4th at p. 1551, italics added.) “In keeping with this highly deferential standard of review,” the Banks court stated, “cases challenging academic dismissals often will appropriately be resolved as a matter of law on

summary judgment: ‘In cases involving academic dismissal, educational institutions have the right to receive

summary judgment unless there is evidence from which a jury could conclude that there was no rational basis for the decision or that it was motivated by bad faith or ill will unrelated to academic performance.’ ” (Ibid., quoting Clements v. Nassau County (2d Cir. 1987) 835 F.2d 1000, 1004.) The decision to deny Lachtman advancement to the Ph.D. program comported with substantive due process requirements as phrased in Ewing, Paulsen, or Banks. The graduate program committee agreed unanimously to deny Lachtman advancement to the history Ph.D. program.

The committee informed Lachtman its decision was based on “whether significant improvement had been made in your writing to compensate for the deficiencies noted in the departmental evaluation conducted at the end of your first year of graduate study.” Those deficiencies included “ ‘serious writing problems, a narrow intellectual focus (essentially limited to the subject of race and baseball in American culture), and limited engagement with other topics that form an essential part of any program in American history.’ ” The three professors who evaluated Lachtman’s writing samples found one sample to be “uneven” and the other to be “ ‘competent but fairly predictable and superficial.’ ” The professors concluded the writing samples did not provide “ ‘convincing evidence’ ” that Lachtman could perform “good, competent work” other than in the “narrow field of racism in baseball” and did not demonstrate improvement in his writing.

The “narrow avenue for judicial review” (Ewing, supra, 474 U.S. at p. 227) limits our inquiry to whether those reasons were a substantial departure from academic norms. Quality of writing and range of intellectual interest are solid academic criteria highly relevant to performance in a history Ph.D. program. The three professors who evaluated Lachtman’s writing determined it was not good enough for the Ph.D. program and did not demonstrate improvement, and concluded Lachtman displayed limited interest in essential areas of American history that were outside of his narrow field of interest.

Because those reasons were not a departure, substantial or otherwise, from accepted academic norms, it is immaterial whether the history professors’ professional evaluation of Lachtman’s writing and perception of his academic interests were correct. Lachtman asserts the three professors who evaluated his writing— Professors Michael Davis, Dave Bruce, and Jon Wiener—were chosen in bad faith in that two did not share Lachtman’s academic interests and a third (Wiener) had already advised Lachtman to leave the Ph.D. program.

In a letter reporting the results of the writing evaluation to Lachtman, the chair of the History Department graduate program committee wrote: “I selected these three faculty because they are the senior members of the department in U.S. history. Bruce and Wiener have had many years experience working with graduate students; Davis is the professor with whom you have done the most work.” Those reasons are neither arbitrary nor capricious and reflected professional judgment.

Davis testified in his deposition that in retrospect he could not “in good faith tell you . . . that [Lachtman] was incapable of doing Ph.D. work,” he was “wrong to be so angry at [Lachtman],” and his initial, favorable impression of Lachtman was correct. Davis added: “I don’t think that my conduct in the course of all this met the standards that you would expect from a tenured senior professor. At some point I wanted to wash my hands of it.” Davis’s testimony does not create a triable issue of material fact as to bad faith or improper motive.

Davis did not testify his evaluation of Lachtman’s writing substantially departed from accepted academic norms, was inaccurate, or was made in bad faith. Davis testified he was not “blaming my colleagues” for his decision and “[t]here was no serious attempt to intimidate or threaten me.” Even if Davis had supported Lachtman’s advancement to the Ph.D. program, Lachtman produced no evidence that Davis would or could have persuaded Bruce or Wiener to change their assessments of Lachtman’s writing, or that Davis could have changed the decision of the History Department graduate program committee.

Under the undisputed facts, the decision denying Lachtman advancement to the Ph.D. program was not “such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” (Ewing, supra, 474 U.S. at p. 225.) That decision therefore did not deny Lachtman substantive due process. II. Contract Claims (Causes of Action 2, 5, 6, and 7) A.

Graduate Student Researcher Contract In causes of action 2 and 5—for breach of contract and breach of the implied covenant of good faith and fair dealing—Lachtman alleged the University breached his contract for employment as a graduate student researcher by withdrawing the offer of employment on learning he was not a Ph.D. student.

On appeal, Lachtman argues the University breached the contract “as it only paid [him] $880 in tuition, while the contract required that [he] receive $33,396.” As a matter of law, Lachtman cannot prevail on a claim for breach of contract or breach of the implied covenant of good faith and fair dealing under either theory. Public employment in the State of California is held by statute, not by contract. (Miller v.

State of California (1977) 18 Cal.3d 808, 813 [135 Cal.Rptr. 386, 557 P.2d 970].) A California public employee, whether civil service or not, cannot state a cause of action for breach of contract or breach of the implied covenant of good faith and fair dealing arising out of the public employment relationship. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 23-24 [276 Cal.Rptr. 303, 801 P.2d 1054]; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1690 [40 Cal.Rptr.2d 125].) The public employee’s remedies are limited to those provided by statute or ordinance. (Hill v.

City of Long Beach, supra, 33 Cal.App.4th at p. 1690.) Employees of the University of California are state employees, and, therefore, hold their employment by statute, not by contract. (Kim, supra, 80 Cal.App.4th at p. 165.) The Regents of the University of California have rulemaking and policymaking power, and their policies and procedures have the force and effect of statute. (Ibid.) Since Lachtman was an employee of the University of California, his employment was held by statute, not by contract, and his remedies for breach were limited to those afforded by statute and the University’s rules and policy.

Lachtman did not bring a statutory cause of action. Indeed, he specifically alleged that “[u]nlike most contracts with public entities, [graduate student researcher] positions are not held by statute or governed by a collective bargaining agreement” but “are held exclusively by contract.” In support of the argument that graduate student researcher positions are held by contract, Lachtman relies on Association of Graduate Student Employees v. Public Employment Relations Bd. (1992) 6 Cal.App.4th 1133, 1135-1136 [8 Cal.Rptr.2d 275] (Association of Graduate Student Employees).

In that case, the Public Employment Relations Board determined that graduate student researchers were not employees for the purpose of obtaining collective bargaining rights under the Higher Education Employer-Employee Relations Act (HEERA) (Gov.

Code, § 3560 et seq.). (Association of Graduate Student Employees, supra, 6 Cal.App.4th at p. 1135.) The appellate court affirmed, upholding the Public Employment Relations Board’s finding that treating graduate student researchers as employees under HEERA would not further its purposes. (6 Cal.App.4th at pp. 1144-1146.) Contrary to Lachtman’s argument, Association of Graduate Student Employees did not create a narrow exception for graduate student researchers to the general rule that the employment of state public employees is held by statute rather than by contract.

In Association of Graduate Student Employees, the court held only that graduate student researchers are employees who are not entitled to collective bargaining rights under HEERA. The Court of Appeal in that case did not address whether graduate student researchers hold their employment by statute or by contract. Nor did the Court of Appeal in Association of Graduate Student Employees conclude that graduate student researchers are not employees for any purpose—a proposition HEERA would not support.

HEERA defines an “employee” for purposes of its reach as: “[A]ny employee of the Regents of the University of California, the Directors of the Hastings College of the Law, or the Trustees of the California State University. However, managerial and confidential employees and employees whose principal place of employment is outside the State of California at a worksite with 100 or fewer employees shall be excluded from coverage under this chapter.

The board may find student employees whose employment is contingent on their status as students are employees only if the services they provide are unrelated to their educational objectives, or that those educational objectives are subordinate to the services they perform and that coverage under this

chapter would further the purposes of this chapter.” (Gov. Code, § 3562, subd. (e).) Under that definition, a student employee, such as a graduate student researcher, can be a public employee yet not be an employee within the meaning of, and subject to, HEERA. Thus, whether a graduate student researcher is an employee for the purpose of determining collective bargaining rights, the issue resolved in Association of Graduate Student Employees, is not relevant to whether a graduate student researcher can state a cause of action for breach of contract. B.

Diversity Fellowship In causes of action 6 and 7, Lachtman alleged the University breached a contract for a diversity fellowship, and breached the implied covenant of good faith and fair dealing with regard to that contract. He claimed the University breached the contract not only by failing to pay his stipend after he received his master’s degree, but also by failing to pay his stipend during his second academic year, when he was still a graduate student in good standing. We conclude the University failed to meet its

summary adjudication burden on causes of action 6 and 7. Lachtman received a diversity fellowship totaling $40,000. According to the offer letter, Lachtman was to receive a stipend of $10,000 from “Graduate Division Funding” plus “All Fees paid” during the 2001-2002 academic year. For the following three academic years (2002-2005), he was to receive a total of $30,000 from “Department Funding,” described in the offer letter as “2-qtr TAship 50% + Partial Fees.” The offer letter refers to “[fellowship guidelines and procedures that pertain to [the] award,” but that document is not included in the record.

The offer letter states: “Fellowship holders must remain in good academic standing during the tenure of the award.” The University argues the diversity fellowship did not create a contractual relationship, but if it did, the contract was fully performed. No California case addresses whether an academic fellowship is a contract. In one case, a New York court concluded “the granting of a scholarship or fellowship is not contractual in nature.” (Ewing v.

State of New York (N.Y.Ct.Cl. 1972) 69 Misc.2d 923, 924 [331 N.Y.S.2d 287].) In some cases, courts have accepted athletic scholarships as creating a contractual relationship. (E.g., Begley v. Corporation of Mercer University (E.D.Tenn. 1973) 367 F.Supp. 908, 910.) Here, the University failed to meet its burden of making a prima facie showing Lachtman’s diversity fellowship did not create a contractual relationship. We have reviewed the diversity fellowship offer, the fellowship acceptance form signed by Lachtman, and the Handbook provisions pertaining to fellowships.

We cannot say, as a matter of law, whether or not these documents create a contractual relationship. The University also failed to meet its burden of showing the terms of the diversity fellowship were performed. It is undisputed the University paid Lachtman nothing from the diversity fellowship after May 31, 2002, the end of his first academic year in the History Department’s graduate program. It is also undisputed Lachtman was not on academic probation during his second academic year in the History Department’s graduate program.

Although Lachtman would not have been entitled to receive fellowship money after graduating with a master’s degree, the University failed to show he was not entitled to receive fellowship money during his second academic year. The acceptance form states the diversity fellowship for the second, third, and fourth academic years would be funded, at least in part, from Lachtman serving as a teaching assistant.

The University does not argue the diversity fellowship thus created an employment relationship subject to university grievance procedures, nor does the University argue Lachtman failed to satisfy the teaching assistant requirement. III. Violation of Privacy Rights (Cause of Action 1) Lachtman argues the trial court erred by ruling against him on his claim for violation of privacy rights under the California Constitution and the Information Practices Act of 1977 (IPA) (Civ. Code, § 1798 et seq.).

In cause of action 1, Lachtman alleged his privacy rights were violated when (1) persons in the History Department disclosed his personal information to staff members in other departments at UCI and at UCLA; (2) a UCI administrator informed a member of the graduate program committee that Lachtman had spoken to her about problems in the History Department; (3) the graduate program committee member wrote a letter, which was distributed to other faculty in the History Department and placed in Lachtman’s file, regarding her conversation with the UCI administrator;

(4) Lachtman’s records were not maintained accurately or completely; and

(5) Lachtman was not given access to his complete files. A. IPA The IPA prohibits a state agency from disclosing personal information (Civ. Code, § 1798.3), except if “the disclosure is relevant and necessary in the ordinary course of the performance of . . . official duties and is related to the purpose for which the information was acquired” (id., § 1798.24, subd. (d)). The IPA creates a private right of action if the state agency’s failure to maintain the plaintiff’s personal information has an “adverse effect” on him or her. (Id., § 1798.45, subd. (c).) The University argues student records are exempt from the IPA, pursuant to Civil Code

section 1798.74, which provides: “The provisions of

Chapter 13 (commencing with

Section 67110) of

Part 40 of the Education Code shall, with regard to student records, prevail over the provisions of this chapter.”

Chapter 13 applied to postsecondary education. Education Code

section 67110 was repealed in 1995. The University argues the repeal is irrelevant because the Legislature nonetheless intended the IPA not apply to student records. The flaw in this argument is the Legislature did not state the IPA was inapplicable to student records; instead, the Legislature stated the provisions of

chapter 13 of the Education Code “prevail” over the IPA. This conclusion begs the question, however, whether the University of California is an agency within the meaning of the IPA. The IPA defines “agency” to mean “every state office, officer, department, division, bureau, board, commission, or other state agency” except for the California Legislature, and any agency established under California Constitution,

article VI, the State Compensation Insurance Fund, and local agencies. (Civ. Code, § 1798.3, subd. (b).) The California Constitution establishes the University of California as a “public trust. . . with full powers of organization and government.” (Cal. Const., art. IX, § 9, subd. (a).) The California Supreme Court has observed that “ ‘Article IX,

section 9, grants the [RJegents broad powers to organize and govern the university and limits the Legislature’s power to regulate either the university or the [Rjegents. This contrasts with the comprehensive power of regulation the Legislature possesses over other state agencies.’ ” (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320 [25 Cal.Rptr.3d 320, 106 P.3d 976].) The University of California has adopted policies applying to disclosure of information from student records (the UC Disclosure Policies).

Section 130.11 of the UC Disclosure Policies states their purpose is “to provide reasonable

interpretations of the Federal Family Educational Rights and Privacy Act and to protect the student’s right of privacy as guaranteed by the Constitution of the State of California and the Information Practices Act.” Accordingly, the UC Disclosure Policies state, “[w]hen the law is silent, the campuses shall be guided by two principles: (1) the privacy of an individual is of great weight, and (2) the information in a student’s file should be disclosed to the student on request.” Do these policies reflect a recognition the University of California is an agency under the IPA, or do they reflect a desire to provide privacy protection otherwise lacking because the University of California is not an agency under the IPA?

We need not decide whether the University of California is an agency under the IPA, or whether the IPA applies to University of California student records via the UC Disclosure Policies. Even if the IPA applied to Lachtman’s student records, the University met its burden of establishing the disclosure of Lachtman’s personal information was relevant and necessary. The University established that communication between the History Department and the professor with whom Lachtman would have been working as a graduate student researcher was relevant and necessary before he could begin that assignment.

Communication between the History Department and faculty at UCLA and faculty in other departments at UCI from whom Lachtman was receiving instruction was relevant and necessary to make decisions about Lachtman’s continuation as a Ph.D. student. Additionally, it was necessary for a university administrator to communicate Lachtman’s complaints about the History Department to department faculty members. In addition, an essential element of a claim under the IPA is proof that as a proximate result of the agency’s failure to comply with the IPA there was an “adverse effect” on the plaintiff. (Civ.

Code, § 1798.45, subd. (c); Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 446 [78 Cal.Rptr.2d 913].) Lachtman failed to rebut the University’s showing that any purported disclosure of his student records to other students had an adverse effect on him. In opposition to the motion for

summary judgment, Lachtman submitted a copy of an e-mail he claims was sent to other UCI students about his grades and other academic matters. Lachtman has not identified the recipients of the e-mail and therefore has failed to show the e-mail was sent to anybody who did not have the right to see it. Moreover, the personal information conveyed in this e-mail was limited, and Lachtman fails to identify what, if any, harm he suffered as a result of its purported distribution.

Regarding the alleged inaccurate and incomplete records, there are discrepancies between the versions of Lachtman’s academic transcript submitted by the parties. The transcript submitted by the University reflects a grade of B+ in one fall quarter 2001 history class, while the transcript submitted by Lachtman reflects a grade of A- in that class. In addition, the University’s transcript shows Lachtman received an “I” in a sociology class in the winter 2003 quarter, while Lachtman’s copy of the transcript shows he received an A- in that course.

Lachtman, however, offered no evidence showing which transcript was correct and did not show how any inaccuracy in the transcripts affected his status in the Ph.D. program. Lachtman also failed to show that any inaccuracies in his student records caused him to lose his position as a graduate student researcher. Lachtman did provide evidence his file incorrectly reflected he was not a full-time graduate student and had not paid his fees for the fall 2002 quarter.

However, the University provided evidence Professor David Goldberg, who offered Lachtman the job as a graduate student researcher, did not rely on the information in Lachtman’s file in subsequently withdrawing that offer. Since Lachtman’s graduate student researcher position was reinstated, and he held the position to the termination date, inaccuracies in his student record could not have caused him to lose the researcher position. B. Constitutional Violation of Privacy

Article I,

section 1 of the California Constitution establishes the state constitutional right to privacy. The “principal ‘mischiefs’ ” it intends to prevent are: “(1) ‘government snooping’ and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records.” (White v.

Davis (1975) 13 Cal.3d 757, 775 [120 Cal.Rptr. 94, 533 P.2d 222].) It is the last two of these “mischiefs” of which Lachtman argues he was the victim. A plaintiff alleging a violation of a privacy interest under the California Constitution must establish (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct by the defendant constituting a serious invasion of that privacy interest. (Hill v.

National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 [26 Cal.Rptr.2d 834, 865 P.2d 633].) A defendant challenging the privacy claim may do so either by negating one of the three elements or by proving the invasion of privacy is justified “because it substantively furthers one or more countervailing interests.” (Id. at p. 40.) If the defendant establishes that defense, the plaintiff may rebut it by “showing there are feasible and effective alternatives to defendant’s conduct which have a lesser impact on privacy interests.” (Ibid.) The University met its burden of proof by establishing either that Lachtman did not suffer a serious invasion of privacy, or that any such invasion of privacy was justified.

As discussed ante, members of the History Department faculty were justified in communicating with faculty in other departments and at other University of California campuses to properly consider Lachtman’s candidacy in the Ph.D. program. To the extent Lachtman’s personal information was shared with other students or other faculty or staff members, the limited nature of the information is such that it was not a serious invasion of privacy. Lachtman did not offer evidence rebutting the University’s evidence in this regard. The trial court properly granted the motion for

summary judgment with respect to the first cause of action. IV. Free Speech Rights/Retaliation (Cause of Action 8) In cause of action 8, Lachtman alleged his expression of opinion in Professor Block’s class that a reading assignment was anti-Semitic cost him his graduate student researcher position and resulted in the termination of his Ph.D. candidacy. (Lachtman also alleged the retaliation against his expression of opinion in Block’s class resulted in the denial of his due process rights. This argument has been addressed, ante, in pt.

I.) A claim for retaliation for engaging in protected speech under the First Amendment requires proof that (1) the person was subjected to an adverse action; (2) the person had engaged in speech that was constitutionally protected because it touched on a matter of public concern; and (3) the protected speech was a substantial motivating factor for the adverse action. (Ulrich v.

City and County of San Francisco (9th Cir. 2002) 308 F.3d 968, 976.) We do not address the first two elements of Lachtman’s retaliation claim because, we conclude, Lachtman’s statements made in Block’s class were not a substantial motivating factor in the decision to deny him advancement in the history Ph.D. program. Lachtman alleged in his third amended complaint that, in retaliation for his comments in Professor Block’s class, he was denied advancement to the Ph.D. program and his graduate student researcher position was withdrawn.

Lachtman enrolled in Block’s course for the fall quarter of 2001 and dropped the course after attending two class sessions. The University offered uncontradicted evidence that there was no direct retaliation as a result of Lachtman’s comments: Lachtman dropped the course with no adverse effect on his grade and successfully petitioned to take a comparable course at UCLA. Lachtman failed to offer any evidence that his comments in Block’s course were a substantial motivating factor, or any factor, for denying his advancement to the Ph.D. program eight or nine months after he dropped the course.

No evidence was presented of any connection between Lachtman’s disagreement with Professor Block and Lachtman’s temporary loss of the graduate student researcher position over a year later. Professor Goldberg, who made and withdrew and then reinstated the offer of the graduate student researcher job to Lachtman, was not aware of Lachtman’s comments in Block’s class from a year earlier.

Goldberg testified in his deposition he withdrew the offer of the researcher position because “according to the records to which we were privy through the UC system to which we had access for, he seemed at the time not to be a full-time graduate student[] in the University of California.” Goldberg testified he then contacted Pomeranz and was told Lachtman was not a student in good standing and “there was some difficulty regarding his status in the department.” Nevertheless, Goldberg reinstated Lachtman to the graduate student researcher position in November 2002. Disposition The judgment is reversed.

The matter is remanded to the trial court with directions to (1) vacate its order granting

summary judgment, and (2) enter an order granting

summary adjudication as to the first, second, third, fourth, fifth, and eighth causes of action and denying

summary adjudication as to the sixth and seventh causes of action. In the interests of justice, and because both parties prevailed in part, each party shall bear his or its own costs on appeal. Aronson, J., concurred. In light of the standard of review we apply to a judgment entered on an order granting

summary judgment, we set forth the material facts relating to the issues raised by the pleadings. A memo dated February 22, 2001, regarding the nominations for graduate opportunity fellowships says of Lachtman: “This is an outstanding student who graduated with a BA in History from the University of California Berkeley. He has had to overcome the obstacle of a hearing disability, which requires continued attention. His performance at the University of California, Berkeley was outstanding with a 3.6 GPA. His letters of recommendation are excellent.

He is interested in studying 20th century U.S. history, with a focus on cultural, intellectual and racial history. He has shown resourcefulness in conducting an independent research project, dealing with the question of race in baseball (which he seeks to publish). His interests in studying ethnic minorities stems from his disability.” In Horowitz, supra, 435 U.S. at pages 91-92, the Supreme Court assumed that courts can review a public university’s academic decision for substantive due process violations under an arbitrary and capricious standard.

The Supreme Court, warning against “judicial intrusion into academic decisionmaking,” concluded “no showing of arbitrariness or capriciousness has been made in this case.” (Id. at p. 92.) In his third amended complaint, Lachtman asserted a violation of a privacy right under the United States Constitution. He does not address a federal constitutional claim in his appellate briefs, and therefore we deem the issue waived. (Sole Energy Co. v.

Petrominerals Corp. (2005) 128 Cal.App.4th 212, 240 [26 Cal.Rptr.3d 798].) In his opening brief, Lachtman argues the confidentiality of his student records was protected by Education Code

section 76200 et seq. and by the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. § 1232g). Lachtman never asserted a claim under the Education Code and, in the separate statement filed in opposition to the University’s motion for

summary judgment, stated he did not intend to pursue any claim under the Family Educational Rights and Privacy Act of 1974. In any event, the Family Educational Rights and Privacy Act of 1974 does not create a private right of action for improper disclosure of student records. (Gonzaga Univ. v. Doe (2002) 536 U.S. 273, 287 [153 L.Ed.2d 309, 122 S.Ct. 2268].) In his opening brief, Lachtman argues he also had a protected First Amendment right in “petitioning to drop Block’s course . . . which is in fact speaking out against her to her colleagues.” In contrast, Lachtman alleged in his third amended complaint only that his opinions and speech expressed in the course were protected.