29 Cal.App.5th 1212
Cal. Ct. App.2018Background
- John Doe (student) was expelled by USC after a Title IX investigator/adjudicator (Dr. Kegan Allee) found, by a preponderance of the evidence, he engaged in sexual activity with Jane Roe while she was too intoxicated to consent and that she did not consent to anal sex. Expulsion was imposed and upheld on appeal within USC.
- The central factual disputes concerned (a) whether Jane was incapacitated, and (b) whether red stains in her apartment and on her person were blood (consistent with nonconsensual anal intercourse) or residue from a prior paint party.
- Key witnesses (Emily, Sarah, Andrew) gave conflicting accounts about Jane’s condition and whether there was blood in the apartment the next morning. Dr. Allee relied on written summaries of interviews prepared by an outside investigator (Marilou Mirkovich) rather than reinterviewing those witnesses herself in person or by videoconference.
- Critical physical evidence (Jane’s clothing and the SART/rape-treatment records and kit) was not produced to John; Dr. Allee did not obtain Jane’s consent to release medical records or affirmatively request Jane’s clothes for testing.
- John petitioned for writ of administrative mandamus under CCP §1094.5; the trial court denied relief, reasoning procedures satisfied fairness standards and there was substantial evidence. The Court of Appeal reversed and remanded, directing the trial court to grant the writ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether John was denied a fair hearing because the adjudicator did not personally observe critical witnesses (no live/videoconference interviews) | Dr. Allee did not reinterview key witnesses (Emily, Sarah, Andrew) and instead relied on summaries, depriving adjudicator of ability to assess demeanor and credibility | USC argued its documentary-review process complied with its Guidebook and provided adequate notice and opportunity; investigator/adjudicator dual role was permissible | Reversed: where credibility is central and sanction severe, adjudicator must observe critical witnesses in person or by videoconference; failure to do so denied a fair hearing |
| Whether John had a right to cross-examine or otherwise submit questions for the adjudicator to ask the complainant/witnesses | John argued he was deprived of cross-examination and ability to test witness credibility | USC argued no constitutional or procedural requirement for cross-examination in its administrative process | Held: No right to direct cross-examination, but where credibility is central the accused must be allowed indirectly to submit questions for the adjudicator to ask the complainant; court recommended USC allow John to submit questions if a new proceeding is held |
| Whether USC complied with its own procedures by failing to obtain/disclose potentially exculpatory forensic evidence (Jane’s clothes; rape-treatment records/kit) | John argued USC failed to request Jane’s clothes and to seek her consent to release medical records, impairing his defense | USC said it requested evidence but medical privacy and law-enforcement custody limited disclosure; thus no obligation to produce protected records without consent | Held: USC violated its own Guidebook by failing to request Jane’s clothing and failing to ask Jane for consent to release rape-treatment records; investigator’s framing of the request as coming from John (not USC) was improper |
| Whether the administrative findings were supported by substantial evidence and should be upheld | John argued findings were unsupported given procedural defects and missing evidence | USC argued abundant witness testimony and corroboration supported findings | Held: Court did not resolve sufficiency of evidence; reversed on procedural/fairness grounds and remanded for new proceedings to allow fair assessment of credibility and to address evidentiary requests |
Key Cases Cited
- Claremont McKenna Coll. v. Superior Court, 25 Cal. App. 5th 1055 (Cal. Ct. App.) (where credibility is central, complainant should be before factfinder in person or by videoconference)
- Baum v. Plaintiff, 903 F.3d 575 (6th Cir.) (reliance on written witness statements without live assessment can deny due process where credibility determines outcome)
- Univ. of Cincinnati v. Plaintiff, 872 F.3d 393 (6th Cir.) (panel may need to hear live testimony so it can observe demeanor when choosing between competing accounts)
- Elkins v. Superior Court, 41 Cal.4th 1337 (Cal. 2007) (oral testimony before trier valued for credibility assessment)
- UC San Diego decisions and similar California appellate authorities summarized in this opinion include Doe v. Regents of University of California, 28 Cal. App. 5th 44 (Cal. Ct. App.) (procedural fairness review de novo) and Doe v. Univ. of Southern California, 246 Cal. App. 4th 221 (Cal. Ct. App.) (student-discipline fairness principles)
- Goss v. Lopez, 419 U.S. 565 (U.S. 1975) (students entitled to notice and some kind of hearing)
- Goldberg v. Regents of Univ. of California, 248 Cal. App. 2d 867 (Cal. Ct. App.) (administrative procedures for student dismissal need not mirror criminal trials)