30 Cal.App.5th 1036
Cal. Ct. App.2019Background
- John Doe, a USC undergraduate, was investigated by USC Title IX investigator Kegan Allee for an October 24, 2014 sexual encounter with Jane Roe; Allee concluded Doe more likely than not committed nonconsensual sexual conduct and recommended expulsion.
- USC’s procedure (SCC) had the Title IX investigator conduct interviews, make factual findings, determine credibility, and impose sanctions; appeals to an anonymous SBAP are document-only and defer to the investigator’s credibility findings; the Vice Provost made final decisions.
- Doe appealed administratively (arguing new evidence, procedural errors, and unsupported findings); SBAP and Vice Provost upheld expulsion; Doe petitioned for writ of administrative mandate under Code Civ. Proc. § 1094.5; trial court denied the writ.
- On appeal, Doe argued investigator bias and that the disciplinary process was fundamentally unfair because it provided no mechanism for cross-examination before a neutral factfinder when credibility was central.
- The Court of Appeal held Doe did not prove actual bias, but concluded USC’s procedure was fundamentally flawed: where credibility is central and severe sanctions are possible, due fairness requires live or equivalent witness testimony with cross-examination before a neutral adjudicator (not the same person who investigates and prosecutes).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Investigator bias | Allee’s background as a victims’ advocate shows actual bias against Doe | Prior advocacy/appearance of bias does not prove actual bias in this case | Doe failed to prove actual bias; appearance alone insufficient |
| Fundamental fairness / cross-examination | Where credibility is central, Doe lacked the opportunity to cross-examine Roe or other witnesses before a neutral factfinder | USC procedure (investigator decision + document-only appeal) satisfied fairness; investigator role combination permissible | Procedures were fundamentally flawed: accused must have mechanism to cross-examine adverse witnesses (directly or indirectly) at a hearing where witnesses appear before a neutral adjudicator with independent factfinding power |
| Role combination (investigator as adjudicator) | Combining investigative and adjudicative roles prevented meaningful cross-examination and impartial factfinding | Combining roles does not automatically violate fairness; many precedents permit it absent other problems | Combination is permissible in general, but here it undermined fairness because it left no real way to test credibility; thus unacceptable in cases hinging on credibility and severe sanctions |
| Justiciability / mootness | Relief (expungement, reputational restoration) remains meaningful despite later unrelated expulsion/conviction | Respondents argued later events rendered appeal moot | Case not moot; appellate relief (e.g., expungement) remains materially relevant |
Key Cases Cited
- Davis v. Monroe County Board of Education, 526 U.S. 629 (U.S. 1999) (schools may be liable under Title IX for mishandling sexual assault claims)
- Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) (credibility centrality requires live testimony or similar procedures; risk of due process violation)
- Doe v. University of Cincinnati, 872 F.3d 393 (6th Cir. 2017) (holding denial of opportunity to assess accuser’s credibility can deny due process)
- Doe v. Claremont McKenna College, 25 Cal.App.5th 1055 (Cal. Ct. App.) (where decision hinges on accuser’s credibility, hearing should permit the factfinder to assess the accuser in person or via video)
- Doe v. University of Southern California, 246 Cal.App.4th 221 (Cal. Ct. App.) (discussing fair-hearing standards at private universities and limits on cross-examination requirement)
- Doe v. Regents of the University of California (San Diego), 5 Cal.App.5th 1055 (Cal. Ct. App.) (university procedures must give accused a meaningful opportunity to present defenses)
- Doe v. University of California (Santa Barbara), 28 Cal.App.5th 44 (Cal. Ct. App.) (credibility determinations require due process protections including live assessment of witnesses)
- Withrow v. Larkin, 421 U.S. 35 (U.S. 1975) (combining investigative and adjudicative functions does not automatically violate due process, but can where initial nonadversarial processes foreclose fair subsequent consideration)
- Goss v. Lopez, 419 U.S. 565 (U.S. 1975) (basic notice and some kind of hearing required for student discipline)