49 Cal.App.5th 682
Cal. Ct. App.2020Background
- In January 2017 USC student Matthew Boermeester (USC football player) and student Jane Roe had an alleyway encounter in which Boermeester put his hand on Roe’s neck and pushed her against a concrete wall; multiple USC students witnessed the incident and grainy surveillance video captured portions of it.
- Roe initially reported the incident to USC Title IX on January 23, 2017 (and sought an Avoidance-of-Contact order and emergency housing), but later recanted some of her statements and publicly denied the report; several third-party witnesses gave varying accounts, and one witness admitted initially minimizing his statement.
- USC’s Title IX investigator interviewed many witnesses, prepared a Summary Administrative Review finding Boermeester violated the intimate partner violence and AOC rules; a Misconduct Sanctioning Panel imposed expulsion, an appellate panel recommended a two-year suspension, but the Vice President for Student Affairs affirmed expulsion.
- Boermeester petitioned for writ of administrative mandate under Code Civ. Proc. § 1094.5; the superior court denied the petition and Boermeester appealed to the Court of Appeal, which reviewed procedural fairness de novo and factual findings for substantial evidence.
- The Court of Appeal reversed and remanded, holding USC’s 2017 disciplinary procedures denied Boermeester a fair hearing because he lacked a meaningful opportunity to cross-examine critical witnesses at an in-person (or equivalent) hearing; the court directed the superior court to grant the writ and, if USC proceeds, to provide direct or indirect cross-examination at an in-person hearing.
Issues
| Issue | Boermeester's Argument | USC's Argument | Held |
|---|---|---|---|
| Notice of allegations / scope of investigation | Insufficient notice that investigation would probe relationship history and pattern evidence | USC gave written notice of the specific January 21 incident and later AOC-contact allegation | Held: Notice was sufficient; Boermeester had meaningful opportunity to review and respond to evidence |
| Interim suspension / procedural fairness of interim measures | Interim suspension was imposed without adequate hearing or evidence | Interim suspension permitted where student poses ongoing danger; USC followed its policy and provided review | Held: Interim suspension lawful; USC provided notice and review consistent with Goss |
| Right to cross-examine and in-person hearing | Denial of meaningful cross-examination and an in-person hearing (witnesses testified outside respondent’s presence) violated fair procedure | Policy permitted separate evidence hearings and questions submitted in writing; live cross-examination not required under USC policy | Held: Reversed — where credibility is central and sanction severe, accused must have opportunity for direct or indirect cross-examination at an in-person (or equivalent) hearing |
| Forfeiture / waiver of cross-examination claim | Issue preserved; counsel reasonably declined certain procedures when they were futile or not permitted by policy | Boermeester forfeited or waived the right by not requesting live cross-examination or by refusing to submit questions | Held: No forfeiture or waiver — objections would have been futile under then-existing law and USC procedures; appellate review allowed |
Key Cases Cited
- Doe v. Allee, 30 Cal.App.5th 1036 (Cal. Ct. App. 2019) (when credibility is central and sanction severe, accused must be allowed a mechanism for cross-examination at a live hearing)
- Doe v. Westmont College, 34 Cal.App.5th 622 (Cal. Ct. App. 2019) (panel must hear testimony from critical witnesses in person or by videoconference before assessing credibility)
- Doe v. Occidental College, 40 Cal.App.5th 208 (Cal. Ct. App. 2019) (procedures satisfied where live testimony and cross-examination or equivalents allowed and adjudicator could assess credibility)
- Doe v. University of Southern California, 246 Cal.App.4th 221 (Cal. Ct. App. 2016) (student-discipline fairness standards; notice and opportunity to be heard)
- Goss v. Lopez, 419 U.S. 565 (U.S. 1975) (schools may impose interim removal for safety but must provide notice and some kind of hearing)
- Doe v. Regents of University of California, 28 Cal.App.5th 44 (Cal. Ct. App. 2018) (access to evidence is required in disciplinary proceedings)
- Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017) (administrative procedures must provide a means to evaluate complainant credibility; cross-examination or equivalent may be necessary)