                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0059
                              Filed August 21, 2019


PENGZHEN YIN,
    Plaintiff-Appellee,

vs.

IOWA BOARD OF REGENTS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      The Iowa Board of Regents appeals the district court order reversing its

decision to expel a student. REVERSED AND REMANDED.



      Thomas J. Miller, Attorney General, and George A. Carroll, Assistant

Attorney General, for appellant.

      Jonathan M. Causey of Causey & Ye Law, P.L.L.C., Des Moines, for

appellee.



      Considered by Potterfield, P.J., Greer, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                          2


SCOTT, Senior Judge.

        The Iowa Board of Regents (Board) appeals the district court order

reversing its decision to expel a student for academic misconduct. The Board’s

decision is supported by substantial evidence. We reverse the district court’s

decision and remand for an order affirming the Board’s decision.

        I.     Background Facts & Proceedings

        Pengzhen Yin is a student in the Tippee College of Business (TCB) at the

University of Iowa (UI). Yin was involved in an incident of academic misconduct

on December 11, 2015, while taking an English proficiency exam. Although the

students taking the test were told to move to a new section and no longer work on

previous sections, Yin was observed working on a previous section of the test. As

a sanction for his conduct, Yin received no points for the section of the test that he

improperly went back to work on, thereby reducing his overall grade. Yin did not

appeal the finding he engaged in academic misconduct.

        Yin was involved in a second incident of academic misconduct on March 30,

2016. In the class, “ESL Academic Reading Skills,”1 the instructor noticed Yin’s

answers in a quiz were “eerily similar” to those of another student.            When

questioned, Yin stated “he had copied some answers.” As a sanction for this

incident, Yin’s grade on the quiz was cut in half. Yin also did not appeal this finding

he engaged in academic misconduct. Yin was informed by Kenneth Brown, the

Associate Dean of TCB, a second violation was “a serious matter.”




1
    ESL stands for English as a Second Language.
                                            3


         A third incident of academic misconduct occurred on December 15, 2017.

Yin was assigned to write a four-page paper for “Asian Humanities: China.” Yin

submitted a paper titled, “Confucianism: Struggles in the Modern World.” The

instructor, Cuma Ozkan, stated Yin’s paper was “so perfect that I could not

compare this paper with the student’s other writings. It is quite obvious that this

paper is written from a very professional writer.” Ozkan also noted the paper

contained no references to personal experiences. Yin was given an “F” for the

paper.

         Brown informed Yin on January 8, 2018, TCB was recommending Yin be

expelled from UI, “[b]ecause of the severity of this incident, and your prior

offenses.” Lon Moeller, Associate Provost, interviewed Yin and Ozkan. Moeller

concluded Yin did not write the paper. He accepted TCB’s recommendation Yin

should be expelled from UI. Yin appealed to the Board. On June 11, 2018, the

Board affirmed the final decision of UI.

         Yin filed a petition for judicial review, challenging the decision of the Board.

The court issued a decision on December 6, 2018, stating:

                The court finds the Board’s decision was not supported by
         substantial evidence. Throughout its investigation the University was
         never able to provide any solid evidence the paper had been written
         by anyone other than Yin. Yin’s expulsion was based merely on “a
         suspicion” the paper may have been written by someone other than
         Yin. The University could not identify who that person may be or
         produce any written source that contained the same information as
         Yin’s paper. Yin explained his writing process and provided a written
         statement detailing his decisions for each section of the paper. The
         professor seemed primarily to base his suspicion on a comparison
         between Yin’s former writing in the class and his writing style in the
         paper. As Yin noted, however, he had the opportunity to revise his
         paper multiple times over the course of the semester whereas the
         other writing was done during the time constraints of a class period.
                                           4


The court concluded the Board’s decision was not supported by substantial

evidence and reversed its decision expelling Yin.

       The Board filed a motion to reconsider, stating it was informed on

December 7, 2018, the day after the district court’s decision, of new evidence

showing Yin admitted to the third incident of academic misconduct. The evidence

showed on April 22, 2018, Yin emailed Moeller, stating, “In fact, I didn’t write the

paper.” Also, on May 3, 2018, Yin emailed the Provost, Kevin Kregel, and stated,

“At this point I will not, and am not challenging the incidents of academic

misconduct.” Counsel for the Board and Yin stated they were previously not aware

of the statements. Yin was aware of the emails, as he sent them, and he stated

UI should have been aware of the emails because they had been received by

members of UI administration.

       The district court denied the motion for reconsideration. The court found:

       Thus, the evidence attached to the Motion to Reconsider is newly
       discovered and is material. However, this evidence existed and was
       in the hands of the University’s office of General Counsel and with
       reasonable diligence could have been discovered and produced to
       the Board of Regents and/or the court in the judicial review
       proceeding.

The court concluded there was no legal authority to reconsider or remand the case

because the evidence was available and could have been provided to the Board.

The Board appealed the decision of the district court.

       II.    Standard of Review

       Our review in this administrative action is governed by Iowa Code chapter

17A (2018).    We apply the standards of section 17A.19(10) to the agency’s

decision and decide whether the district court correctly applied the law in its judicial
                                          5

review. Des Moines Area Reg’l Transit Auth. v. Young, 867 N.W.2d 839, 842 (Iowa

2015).      “If we reach the same conclusions as the district court, ‘we affirm;

otherwise, we reverse.’” Id. (citation omitted).

         III.   Substantial Evidence

         The Board claims its decision is supported by substantial evidence and the

district court improperly reversed its decision. We will reverse the agency’s factual

findings only if they are not supported by substantial evidence when the record is

viewed as a whole. Coffey v. Mid Seven Transp. Co., 831 N.W.2d 81, 89 (Iowa

2013). “Evidence is substantial if a reasonable mind would find it adequate to

reach the same conclusion.” 2800 Corp. v. Fernandez, 528 N.W.2d 124, 126 (Iowa

1995). “‘Substantial evidence’ need not be a preponderance, but a mere scintilla

will not suffice.” Elliot v. Iowa Dep’t of Transp., 377 N.W.2d 250, 256 (Iowa Ct.

App. 1985).

         “In assessing evidentiary support for the agency’s factual determinations,”

we give “deference to credibility determinations” of the agency. Nance v. Iowa

Dep’t of Revenue, 908 N.W.2d 261, 267 (Iowa 2018). “It is the agency’s duty as

the trier of fact, not the reviewing court, to determine the credibility of witnesses,

to weigh the evidence, and to decide the facts in issue.” Taylor v. Iowa Dep’t of

Human Servs., 870 N.W.2d 262, 266 (Iowa Ct. App. 2015).

         “We do not consider the evidence insubstantial merely because we may

draw different conclusions from the record.” Coffey, 831 N.W.2d at 89. “Just

because the interpretation of the evidence is open to a fair difference of opinion

does not mean the [agency’s] decision is not supported by substantial evidence.”

Arndt v. City of Le Claire, 728 N.W.2d 389, 393 (Iowa 2007). “On appeal, our task
                                          6


is not to determine whether the evidence supports a different finding; rather, our

task ‘is to determine whether substantial evidence . . . supports the findings

actually made.’” Mike Brooks, Inc. v. House, 843 N.W.2d 885, 889 (Iowa 2014)

(citation omitted).

       Ozkan, Yin’s instructor for the class, “Asian Humanities: China,” believed

Yin did not write the paper he submitted, “Confucianism: Struggles in the Modern

World.” Ozkan stated Yin’s paper was “so perfect that I could not compare this

paper with the student’s other writings. It is quite obvious that this paper is written

from a very professional writer.” Ozkan also noted, unlike other students, the

paper contained no references to Yin’s personal experiences.

       Brown recommended Yin be expelled and referred the matter to Moeller.

Yin met with Moeller and explained his process in writing the paper. Yin stated he

used research articles and rewrote the paper several times.            He stated the

research articles were “really hard” to understand. He explained how he picked

the topic. Yin denied paying someone to write the paper for him.

       Ozkan separately met with Moeller. Ozkan stated the paper appeared to

be written by a “native speaker” of English. He stated he was familiar with Yin’s

writing style from other assignments. Ozkan also noted the paper used internet

citations, which was not necessary, and used an additional citation beyond those

provided to students by the instructor.       At the meeting, Ozkan “affirmed his

judgment, that the paper did not reflect [Yin’s] writing style, and was not something

[he] wrote by [himself].”

       We find there is substantial evidence in the record to support the findings of

the Board. Ozkan was familiar with Yin’s writing style from other class assignments
                                          7


and believed the paper was written in a more “perfect writing style” than Yin’s other

written submissions. Ozkan also noted the paper contained extra citations, which

were not necessary.       Additionally, the paper did not include any personal

experiences. Ozkan concluded Yin did not write the paper himself. Ozkan’s

statements provide more than a scintilla of evidence to support a finding Yin

engaged in academic misconduct by submitting a paper he did not write himself.

The Board could find Ozkan’s statements more credible than Yin’s explanations

about the paper, and we give deference to the Board’s credibility determinations.

See Nance, 908 N.W.2d at 267.

         Contrary to the district court’s findings, UI was not required to show who

actually wrote the paper; the academic misconduct occurred because Yin did not

write the paper he submitted for class. Also, the evidence of academic misconduct

was not insubstantial merely because different conclusions could be drawn from

the record. See Arndt, 728 N.W.2d at 393. We do not consider “whether the

evidence supports a different finding; rather, our task is to determine whether

substantial evidence, viewing the record as a whole, supports the findings actually

made.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa

2011).

         IV.   Motion to Reconsider

         The Board asserts the district court should have granted its motion to

reconsider or remanded the matter for further agency action based on its claim of

newly discovered evidence. We have already determined there is substantial

evidence to support the Board’s findings based on the evidence originally

presented to the Board. For this reason, we conclude the additional evidence
                                          8


sought to be presented by the Board would not further inform our decision and we

do not consider the issue.2

       We reverse the decision of the district court that reversed the order of the

Board. We determine the Board’s decision is supported by substantial evidence

and should be affirmed. We remand to the district court for an order affirming the

Board’s decision.

       REVERSED AND REMANDED.




2
    Yin should not be able to benefit from his pleadings where mistruths provide the
foundation of his claim for relief. See Iowa R. Civ. P. 1004(2). We disapprove of Yin’s
dishonesty, and find this misconduct could have been the grounds for a new trial.
