532 P.3d 1084
Cal.2023Background
- USC investigated a January 21, 2017 incident in which student Matthew Boermeester allegedly grabbed and pushed a former partner, Jane Roe; surveillance video (grainy) and multiple eyewitnesses corroborated aspects of Roe’s initial statement; Boermeester admitted having his hands on Roe’s neck but characterized it as "horsing around."
- USC’s Title IX process: intake, investigator interviews, parties given separate opportunities to review evidence, separate in-person "evidence hearings" with a Title IX coordinator, ability to submit questions for the other party, advisors (including attorneys) permitted, SAR prepared using preponderance standard, sanctioning panel and appellate review, final decision by VP for Student Affairs.
- Roe initially reported injury, later recanted and requested withdrawal; Boermeester declined to attend the evidence hearing and submitted a written statement instead; the SAR found a policy violation and recommended expulsion, which the VP upheld.
- Boermeester petitioned for a writ of administrative mandate under Code Civ. Proc. § 1094.5, arguing USC denied a "fair trial" by not providing a live hearing at which he (or his advisor) could directly or indirectly cross-examine Roe and third-party witnesses in real time.
- The Court of Appeal (majority) agreed and reversed; the California Supreme Court granted review and reversed the Court of Appeal, holding that private universities must provide notice and a meaningful opportunity to be heard but are not categorically required to provide live hearings with real-time cross-examination in the accused student’s presence.
- The Supreme Court remanded for the Court of Appeal to consider Boermeester’s remaining claims that it had not reached.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fair procedure requires a live hearing with direct or indirect cross-examination of the accuser/witnesses with the accused present | Boermeester: fair procedure (and related authority) requires ability to hear and contemporaneously cross-examine witnesses at a live hearing to meaningfully respond | USC: fair procedure requires notice and opportunity to be heard but does not mandate a specific hearing format; universities should have discretion | Held: No categorical requirement; private universities need only provide adequate notice and a meaningful opportunity to be heard; live, real-time cross-examination in the accused’s presence is not required |
| Whether § 1094.5/common‑law fair procedure applies to private university disciplinary decisions | Boermeester: common‑law fair procedure governs expulsions and thus § 1094.5 review applies | USC: § 1094.5 is a review vehicle but does not impose a single procedural standard; still accepts some fairness constraint | Held: § 1094.5 review is appropriate because common‑law fair procedure applies to private universities where they promise hearings and factual determinations; courts may review for a "fair trial" |
| Whether USC’s specific process (separate evidence hearings, review of evidence, ability to submit questions) was unfair here | Boermeester: USC’s process denied a meaningful opportunity to respond without live cross‑examination | USC: process provided multiple opportunities to review evidence, submit questions, attend hearings, and appeal | Held: USC’s process satisfied fair‑procedure baseline here; it was not required to hold the live cross‑examination hearing Boermeester sought |
| Whether failure to allow submission of questions to third‑party witnesses was prejudicial here | Boermeester: excluding indirect questioning of third‑party witnesses deprived him of meaningful response | USC: even if such questions were allowed, the outcome would not change given admissions, video, and corroboration | Held: If requirement existed, omission would be harmless here — evidence and admissions independently supported the finding of physical harm |
Key Cases Cited
- Pinsker v. Pacific Coast Soc. of Orthodontists, 12 Cal.3d 541 (1974) (fair‑procedure doctrine: no rigid procedures; private associations retain primary responsibility to design hearings)
- Pinsker v. Pacific Coast Soc. of Orthodontists, 1 Cal.3d 160 (1969) (membership exclusion may implicate substantial interests warranting fair procedure)
- Ezekial v. Winkley, 20 Cal.3d 267 (1977) (private orgs affecting professional practice subject to fair‑procedure protections)
- Anton v. San Antonio Community Hospital, 19 Cal.3d 802 (1977) (§ 1094.5 review may apply to private organizations when hearings, evidence, and fact discretion are required)
- Cason v. Glass Bottle Blowers Assn., 37 Cal.2d 134 (1951) (fair trial includes rights to hear evidence and refute charges)
- Potvin v. Metropolitan Life Ins. Co., 22 Cal.4th 1060 (2000) (removal from preferred provider list implicated substantial economic interests; fair procedure applies)
- Doe v. University of Southern California, 246 Cal.App.4th 221 (2016) (University I) (notice and opportunity to present objections satisfy fair procedure; full trial not required)
- Doe v. University of Southern California, 29 Cal.App.5th 1212 (2018) (University II) (remand guidance permitting question submission in some circumstances)
- Doe v. Claremont McKenna College, 25 Cal.App.5th 1055 (2018) (discussed indirect questioning when credibility central)
- Doe v. Westmont College, 34 Cal.App.5th 622 (2019) (discussed alternate methods to test credibility without live cross‑examination)
- Doe v. Allee, 30 Cal.App.5th 1036 (2019) (held live hearing with witnesses present required; disapproved to extent inconsistent with this opinion)
- Doe v. Regents of University of California, 5 Cal.App.5th 1055 (2016) (noted tradeoffs in university disciplinary procedures)
- People v. Louis, 42 Cal.3d 969 (1986) (criminal context: importance of adversarial cross‑examination)
- People v. Brown, 33 Cal.4th 892 (2004) (recantations are common in domestic/intimate‑partner cases)
- Goss v. Lopez, 419 U.S. 565 (1975) (imposing trial‑type procedures on administrative contexts may be impractical and harmful)