Doe v. Allee
242 Cal. Rptr. 3d 109
Cal. Ct. App. 5th2019Background
- Doe, a USC undergraduate, was investigated by Title IX investigator Dr. Kegan Allee for an alleged nonconsensual sexual encounter with student Roe on Oct. 24, 2014; Allee concluded, by preponderance, Doe committed sexual misconduct and recommended expulsion.
- USC's process: Title IX investigator conducts interviews, makes factual findings, and imposes sanctions in a written Summary Administrative Report (SAR); appeals are decided on the written record by an anonymous three‑member SBAP which may not reweigh credibility and forwards a recommendation to the Vice Provost whose decision is final.
- Doe appealed to the SBAP, asserting newly discovered evidence, procedural errors, investigative bias (Allee), and that the findings were unsupported; SBAP upheld the findings and recommended expulsion, which Vice Provost Carry adopted.
- Doe sought administrative mandamus in superior court under Cal. Code Civ. Proc. § 1094.5; the trial court denied relief; Doe appealed.
- The Court of Appeal rejected Doe’s claim of actual bias by the investigator but held USC’s disciplinary procedure denied fundamental fairness because (1) credibility was central, (2) witnesses were not cross‑examined live before a neutral factfinder, and (3) the investigator combined investigative and adjudicative roles with limited appellate review.
- Remedy: the court reversed and set aside USC’s findings of misconduct and remanded with directions to grant Doe’s petition to the extent of vacating the finding (reinstatement unavailable); court ordered costs to Doe.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether investigator bias invalidated the process | Doe: Allee’s prior advocacy for sexual‑assault survivors shows actual bias | Respondents: no evidence of actual bias; prior advocacy ≠ disqualification | Court: No proof of actual bias; Doe failed to meet burden |
| Whether USC’s procedure provided a fair hearing when credibility was central | Doe: No live hearing or cross‑examination; investigator acted as investigator and adjudicator; process denied meaningful opportunity to confront witnesses | USC: Procedure permissible; SBAP review on written record suffices; combining roles doesn’t automatically violate due process | Court: Where credibility is central and severe sanctions possible, fundamental fairness requires cross‑examination (direct or indirect) at a live hearing before a neutral factfinder; USC procedure failed |
| Scope of appellate review in university appeals | Doe: SBAP’s limited, document‑only review cannot cure defects of investigator’s process | USC: SBAP’s record review and deference to investigator are permitted under SCC | Court: Deference to investigator combined with absence of live fact‑finding amplifies unfairness; SBAP limited role insufficient to protect accused when credibility is pivotal |
| Remedy for procedural unfairness in private university discipline | Doe: Vacatur of findings and relief via administrative mandamus | USC: Proceedings were fair; no relief warranted | Court: Vacated findings and remanded to grant petition to the extent of setting aside the misconduct finding (no reinstatement ordered) |
Key Cases Cited
- Goss v. Lopez, 419 U.S. 565 (U.S. 1975) (notice and opportunity to be heard are minimal due‑process prerequisites in school discipline)
- Withrow v. Larkin, 421 U.S. 35 (U.S. 1975) (combining investigative and adjudicative functions not always fatal to due process but may raise concerns if nonadversarial findings foreclose fair adjudication)
- Pinsker v. Pacific Coast Society of Orthodontists, 12 Cal.3d 541 (Cal. 1974) (fair hearing requires meaningful opportunity to present defenses)
- Board of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78 (U.S. 1978) (Goss requires informal give‑and‑take, tailored to capacities and interests involved)
- Doe v. University of Southern California, 246 Cal.App.4th 221 (Cal. Ct. App.) (procedural fairness standards in private university Title IX disciplinary proceedings)
- Doe v. Claremont McKenna College, 25 Cal.App.5th 1055 (Cal. Ct. App.) (where credibility is outcome‑determinative, factfinder should see/hear accuser in person or by videoconference)
- Doe v. University of California, San Diego, 5 Cal.App.5th 1055 (Cal. Ct. App.) (disciplinary procedures must be tailored; accused needs meaningful opportunity to present defenses)
- Doe v. University of California, Santa Barbara, 28 Cal.App.5th 44 (Cal. Ct. App.) (lack of live hearing denied fair evaluation of witness credibility)
- Doe v. University of Cincinnati, 872 F.3d 393 (6th Cir.) (adversarial questioning is critical where credibility decides outcome)
- Doe v. Baum, 903 F.3d 575 (6th Cir.) (significant due‑process risk where university relied on written statements without live testimony and credibility was central)