S263180
IN THE SUPREME COURT OF CALIFORNIA
July 31, 2023
Second Appellate District, Division Two B290675; Los Angeles County Superior Court BS170473
Justice Groban authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, Jenkins, and Evans concurred.
Opinion of the Court by Groban, J.
In recent years, courts in California and throughout the nation, as well as the California Legislature and the United States Department of Education‘s Office for Civil Rights (OCR), have attempted to determine the precise procedures universities1 must utilize when investigating and disciplining students accused of sexual misconduct or intimate partner violence. This judicial and legislative activity likely began in response to a “Dear Colleague” letter relating to title IX of the Education Amendments of 1972 (
In this case, respondents University of Southern California and its Vice President of Student Affairs, Ainsley Carry (collectively, USC) expelled appellant Matthew Boermeester from the private university after conducting a two-month investigation and determining that he violated USC‘s policy against engaging in intimate partner violence. Boermeester filed a petition for a writ of administrative mandate under
Nevertheless, the Court of Appeal majority believed that accused students must be able to contemporaneously hear and observe the real-time testimony of the accuser and other witnesses at a live hearing to have a “meaningful opportunity to respond to the evidence against [them]” and ask follow-up questions. (Ibid.)
We hold that, though private universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, they are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually. Requiring private universities to conduct the sort of hearing the Court of Appeal majority envisioned would be contrary to our long-standing fair procedure
I. BACKGROUND
This matter comes to us on appeal from a judgment on a petition for a writ of administrative mandate made pursuant to section 1094.5. Our recitation of the facts is accordingly derived solely from the administrative record. (Sierra Club v. California Coastal Com. (2005) 35 Cal.4th 839, 864; accord, Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.)
A. USC‘s Policies
The USC student conduct code in effect at the time of the incident in question prohibited students from engaging in intimate partner violence, which it defined as “violence committed against a person . . . with whom [the accused student has] had a previous or current dating, romantic, intimate, or sexual relationship.” Violence, in turn, was defined as “causing physical harm to the person.” Upon receiving a report of intimate partner violence or other prohibited conduct, USC‘s Title IX office would conduct an intake interview of the accuser or alleged victim.3 If USC decided to open a formal investigation, it would notify the accuser and the accused student of the investigation and the alleged policy violations. USC would also assign a Title IX investigator to the matter, who would gather facts and interview witnesses. Upon completion of the investigation, USC would provide the accuser and the accused student “individual and separate” opportunities to review the gathered evidence. After reviewing the evidence, the accuser and the accused student would be given “individual and separate” opportunities to respond to the evidence through an “evidence hearing” held at the Title IX office and conducted by
USC‘s Title IX coordinator. USC would also provide the accuser and the accused student the opportunity to submit questions for the Title IX coordinator to ask one another at their separate hearings. If either
At the conclusion of the evidence hearings, the Title IX investigator would prepare a summary administrative review (SAR) which, using a preponderance of the evidence standard, would make factual findings and conclusions as to whether the accused student violated one or more of USC‘s policies. If the SAR found that a policy was violated, the SAR would be forwarded to a misconduct sanctioning panel, composed of one undergraduate student and two staff designated by the provost and senior vice president for academic affairs, to impose sanctions. Either the accuser or the accused student could file a written appeal. The appeal would be reviewed by an appellate panel composed of three individuals appointed by the vice president for student affairs. The vice president of student affairs had the discretion to accept or reject the appellate panel‘s recommendations and made the final decision. Throughout the process—from investigation to final adjudication—both the accuser and accused student were allowed to receivе support and assistance from an advisor of their choice, who could be an attorney.
B. The Incident
Boermeester and Roe were students at USC who had an “on and off” romantic relationship from approximately March 2016 to October 2016. Although they were no longer in a relationship by January 21, 2017—the date the incident occurred—the two often spent time together and Boermeester regularly stayed the night at Roe‘s apartment.
USC‘s Title IX office received a report of an incident that took place on January 21, 2017. The office assigned a Title IX investigator to investigate the incident, who interviewed Roe two days later. Roe explained that, on the night of the incident, Boermeester called her and asked her to pick him up from a party. He was the “‘drunkest‘” she had ever seen him. Roe had her dog with her, and when they arrived at Roe‘s apartment and exited the car, Boermeester instructed Roe to drop her dog‘s leash. She did not want to do so, so he grabbed the back of her hair “hard” and said “‘drop the fucking leash.‘” Roe said “No” and Boermeester grabbed her harder, causing her to drop the leash because it “‘hurt.‘” Boermeester then grabbed the front of Roe‘s throat and neck, causing her to cough. She was able to breathe but stated that the pressure “‘hurt.‘” Boermeester laughed and let go of her neck, but then grabbed her by the neck again and pushed her “hard,” forcing her head against the concrete wall along the alley behind her apartment duplex. Boermeester again let her go, but then grabbed her neck once more and again hit her head against the wall. Roe‘s head hurt from the impact.
There were two eyewitnesses to the incident. A student, D.H., reported to the Title IX investigator that sometime after midnight on January 21, 2017, he heard a male yelling loudly in the alley next to the apartment duplex D.H. shared with Roe. D.H. loоked out the window and saw Boermeester pinning Roe against a wall with his hand around her neck. He also saw Roe‘s dog running up and down the street, which D.H. perceived as a problem because Roe never allowed her dog to run freely. He awakened his roommate, T.S., who did not see the incident but accompanied D.H. outside. D.H. and T.S. escorted Roe back to their apartment. D.H. reported that Roe seemed “‘pretty scared‘” but she refused to sleep at their apartment because she did not want to make Boermeester “‘more mad.‘” Roe told the investigator that she refused to spend the night at D.H.‘s and T.S.‘s apartment because Boermeester “wouldn‘t understand,” and so she returned to her own apartment to avoid “‘mak[ing] it worse.‘” Later the same day, D.H. reported the incident to the men‘s tennis coach, who in turn reported it to the Title IX office.
A second eyewitness, M.B.2, was interviewed twice. Initially, he told the Title IX investigator that he saw Roe arguing with a male he did not recognize but did not see any physical contact between the two. Later, however, he called the Title IX investigator to report that he “‘saw everything‘” and wished to speak with the investigator again. During the second interview, M.B.2 explained that he “‘tried to downplay’ the incident” in his initial interview both because he believed Roe was scared of Boermeester and because Roe had asked M.B.2 to “‘keep it on the down low.‘” M.B.2 reported during his second interview that he, like D.H., heard screaming in the alley near his residence on the night in question. He looked out the window and saw Boermeester standing in front of Roe with both hands around her neck. Boermeester pushed Roe into the alley wall and Roe made “‘gagging‘” sounds. Based on his observations, M.B.2 stated that Boermeester “is violent” and “domestically was abusing [Roe].” M.B.2 grabbed a trash bag, went outside, and asked Roe and Boermeester how things were going, which “‘broke it up.‘”
In his own interview with the Title IX investigator, Boermeester admitted that he had instructed Roe to release her dog, and then put his hand around
USC‘s Title IX office obtained surveillance video of the incident. As the Court of Appeal majority observed, the video is “grainy and there is no audio“; Boermeester and Roe “arе small figures in the frame of the video” since the camera “is positioned approximately two buildings away from [them]“; and “the interaction between Boermeester and Roe when they are near the wall [is] barely visible.” (Boermeester v. Carry, supra, B290675.) Nevertheless, the following events can be seen, as described by both the superior court and the Court of Appeal majority: “At 12:16:16 a.m., the video shows [Boermeester] shoving Roe from the area adjacent to the house into the alleyway. At 12:16:50, [Boermeester] appears to be holding Roe‘s neck or upper body area. At 12:17:12, [Boermeester] grabs Roe by the neck and pushes her toward the wall of the alley. At 12:17:13 and 12:17:14, Roe‘s head and body arch backwards. Between 12:17:16 and 12:17:26, [Boermeester] and Roe are against the wall and barely visible from the camera. At 12:17:26, [Boermeester] backs away from the wall and re-enters the camera‘s view. At 12:17:28, Roe re-enters the camera‘s view. Roe and [Boermeester] proceed to push each other. At 12:17:38, [Boermeester] moves toward Roe and appears to be pushing her against the wall. At 12:17:40, a dog can be seen running across the alley. At 12:17:57, a third party enters the camera‘s view and walks in the direction of [Boermeester] and Roe. At that moment, [Boermeester] and Roe walk away from the wall and back towards the house. At 12:18:19, the third party walks over to the dumpster, places a trash bag inside, and walks back toward the house.” (Ibid.)
Over the course of USC‘s investigation, the Title IX investigator interviewed both parties (as noted) and 16 additional witnesses (including D.H., T.S., and M.B.2), and also gathered documentary evidence including the video and text messages. Roe did not want to participate in the investigation and discouraged other witnesses from testifying against Boermeester. Two days after her initial interview, she told the Title IX investigator she was “‘freaked out‘” that Boermeester would learn of the investigation and she feared retaliation from USC‘s football team (Boermeester was a member of the team). The next day, she reiterated that she was “freaked out” and stressed that Boermeester “can‘t know I made a statement” and “can‘t know I met with you guys.” After Boermeester was given notice of the investigation, Roe stated that she no longer “‘fully believe[d]‘” the statements she made during her initial interview and asked if she could withdraw her statement and the avoidance of contact order, explaining she did not want Boermeester to be “‘mad‘” at her and she did not “‘trust‘” that it would be clearly conveyed to Boermeester that the investigation was initiated by the Title IX office. Roe also expressed concern that Boermeester would be
At the conclusion of the investigation, Boermeester and Roe separately reviewed the evidence with their advisor-attorneys at the Title IX office. The parties declined to attend their separate hearings or to submit questions for USC‘s Title IX coordinator to ask one another during their hearings. Instead, they opted to submit separate written statements responding to the evidence. In her written statement, Roe recanted her initial statement and claimed the Title IX office manipulated her into saying exaggerated or untrue things about Boermeester and their relationship. Specifically, Roe explained that she believed her initial discussion with the Title IX office was a “counseling session where [she] was free to vent about [her] relationship or blow off steam,” but she later felt that the office was “trying to get [her] to say bad things about [Boermeester] so that they could use those things against him.” She further claimed that, had she understood the true nature of the meeting, she “would not have said many of the things [she] said and [she] would have made a greater effort to be accurate.” Finally, she emphasized that Boermeester never “hit, choked, kicked, pushed or otherwise physically abused” her. (Boldface omitted.)
The Title IX investigator issued an SAR concluding that Boermeester violated USC‘s student conduct code by (1) engaging in intimate partner violence and (2) violating the interim avoidance of contact order. The SAR was forwarded to a misconduct sanctioning panel, which recommended expulsion. Boermeester appealed to an appellate panel, which agreed that Boermeester physically harmed Roe—and thus engaged in intimate partner violence—but was “less certain as to whether [Boermeester] intentionally physically harmed [Roe].” The appellate panel acknowledged that intent “is not a required element” for proving intimate partner violence as defined by USC‘s policy, but nevertheless felt that intent was relevant for sanctioning purposes and accordingly recommended reducing the sanction to a two-year suspension and completion of a 52-week intimate partner violence program. The Vice President of Student Affairs, respondent Carry, rejected the appellate panel‘s recommendation to reduce the sanction of expulsion. She explained that, whether Boermeester intended to cause Roe physical harm or did so recklessly, expulsion was appropriate given the nature of the harm inflicted.
Boermeester filed a section 1094.5 petition for writ of administrative mandate, which the superior court denied. A divided Court of Appeal reversed, with the majority concluding that USC‘s disciplinary procedures were unfair because Boermeester was unable to directly or indirectly question Roe and the third party witnesses in real time at a live hearing. ( Boermeester v. Carry, supra, B290675.) The Court of Appeal majority declined to reach Boermeester‘s other claims regarding fairness, including his assertion that USC‘s disciplinary procedures were unfair because USC‘s Title IX investigator held the dual roles of investigator and adjudicator. (Ibid.) We granted review to determine whether the Court of Appeal majority was correct in concluding that USC should have held a live hearing featuring real-time direct or indirect cross-examination of all parties and witnesses (whether conducted in-person or virtually) with an opportunity for Boermeester to ask the witnesses follow-up questions.4
II. DISCUSSION
A. Writ of Administrative Review
A writ of administrative review brought pursuant to section 1094.5 allows for judicial review of quasi-judicial decisions that are made “as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer.” (
Section 1094.5 review applies not only to the decisions of governmental аgencies but also to the decisions of private organizations, so long as
The parties do not dispute that section 1094.5 applies. The parties’ dispute instead centers on the meaning of a “fair trial” under
The principles of common law fair procedure are similar to those of constitutional due process in that they are flexible and context specific. Under either concept, the precise procedures necessary to provide a сomplainant with a meaningful opportunity to be heard “depend[] largely on ‘the nature of the tendered issue.‘” (Ezekial v. Winkley (1977) 20 Cal.3d 267, 279 (Ezekial); accord, Saleeby v. State Bar (1985) 39 Cal.3d 547, 565.) This is not to say that fair procedure and due process are identical. Due process is a constitutional right designed to protect citizens from abuses of state power, and it does not apply here since no state action is involved. Fair procedure, on the other hand, is a more flexible judicially created concept applicable to private organizations in limited situations. (See Pinsker II, supra, 12 Cal.3d at p. 550, fn. 7 [distinguishing due process and fair procedure]; Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 108, quoting Friendly, “Some Kind of Hearing” (1975) 123 U. Pa. L.Rev. 1267, 1269-1270, fn. 10 [“The precise content of the common law ‘fair procedure’ requirement is far more flexible than that which the Supreme Court has found to be mandated by due process‘“].) Because this matter involves a private university, no constitutional rights are at stake and a greater degree of flexibility is warranted. (See Pinsker II, at p. 555.)
With these considerations in mind, we next provide a background on the common law doctrine of fair procedure and discuss how it governs our inquiry.
B. The Common Law Doctrine of Fair Procedure
The common law doctrine of fair procedure originally developed to prevent the arbitrary expulsion of individuals from memberships in certain private organizations—such as mutual aid societies, fraternities, or unions—where the expulsion “adversely affected [property] rights in specified funds held for the association‘s members.” (Potvin v. Metropolitan Life Ins. Co. (2000) 22 Cal.4th 1060, 1066 (Potvin).) The doctrine was subsequently expanded to prevent the arbitrary expulsion or exclusion of individuals from private organizations that “possess substantial power either to thwart an individual‘s pursuit of a lawful trade or profession,
In Pinsker I, for example, we held that an orthodontics association was subject to the doctrine of fair procedure, explaining that while membership in the association was “not economically necessary in the strict sense of the word,” it was a “practical necessity for a dentist who wishes not only to make a good living as an orthodontist but also to realize maximum potential achievement and recognition in such specialty.” (Pinsker I, supra, 1 Cal.3d at p. 166.) Similarly, in Potvin, we held that an insurer‘s removal of a physician from its preferred provider list was subject to the doctrine of fair procedure because “the insurer possesses power so substantial that the removal significantly impairs the ability of an ordinary, competent physician to practice medicine or a medical specialty in a particular geographic area, thereby affecting an important, substantial economic interest.” (Potvin, supra, 22 Cal.4th at p. 1071.) We also elaborated on our rationale for requiring certain private organizations to apply fair procedure in their membership decisions by observing that these organizations “affect[] the public interest” and “‘are viewed by the courts as quasi-public in nature‘” which “‘lead courts to impose‘” on them certain obligations to the public and the individuals with whom they deal. (Id. at p. 1070.) This rationale applied to the insurer in Potvin since “[t]he public has a substantial interest in the relationship between [insurers] and their preferred provider physicians.‘” (Ibid.)
Most notably, in Ezekial, we applied the fair procedure doctrine to prevent an individual‘s arbitrary expulsion from a residency program at Kaiser, a private teaching hospital. (Ezekial, supra, 20 Cal.3d 267.) We found that the plaintiff was entitled to fаir procedure because, by accepting him into its residency program and later seeking to expel him from that program, “Kaiser has assumed the power to permit or prevent [the plaintiff‘s] practice of a surgical specialty and to thwart the enjoyment of the economic and professional benefits flowing therefrom.” (Id. at p. 274.) We additionally reasoned that “[d]ismissal from Kaiser will, as a practical matter and because of Kaiser‘s close relationship with other teaching hospitals, prevent plaintiff‘s acceptance in any other surgical residency program. Successful completion of an approved surgical residency is a prerequisite to attainment of the status of a ‘board certified general surgeon,’ without which plaintiff cannot practice a surgical specialty in any accredited California hospital.” (Id. at pp. 270-271.) Because “the right to practice a lawful trade or profession is sufficiently
Unlike in the above cases, this matter does not involve a private entity with “а virtual monopoly” sufficient to impede an individual‘s pursuit of a particular trade or profession. (Pinsker I, supra, 1 Cal.3d at p. 166; accord, Potvin, supra, 22 Cal.4th at p. 1072 [fair procedure applied because “only a handful of health care entities have a virtual monopoly on managed care” and “removing individual physicians from preferred provider networks controlled by these entities could significantly impair those physicians’ practice of medicine“].) Nevertheless, a private university provides an important, quasi-public service—a postsecondary education—affecting the public interest. “‘[E]ducation is vital and, indeed, basic to civilized society. . . . [I]t is an interest of almost incalculable value, especially to those students who have already enrolled in the institution and begun the pursuit of their college training.‘” (Goldberg v. Regents of University of California (1967) 248 Cal.App.2d 867, 876 (Goldberg); accord, Doe v. University of Cincinnati (6th Cir. 2017) 872 F.3d 393, 399 [expulsion from a university “‘clearly implicates’ a protected property interest” and may also involve a protected liberty interest].) Much like in Ezekial, this case involves “an important benefit or privilege,” which was already conferred on Boermeester and which USC took away from him by expelling him. (Ezekial, supra, 20 Cal.3d at p. 273.) Given the seriousness of sexual misconduct or intimate partner violence allegations, а student who is expelled from a university for such conduct may find it especially difficult—if not impossible—to complete a postsecondary education elsewhere, thwarting the student‘s ability to realize “the economic and professional benefits flowing” from a college degree. (Id. at p. 274.)5 For these reasons, we find that a student‘s interest in completing a postsecondary education at a private university is analogous to an individual‘s interest in continuing membership in a private organization that impacts the individual‘s ability to practice his or her chosen profession. Our common law doctrine of fair procedure therefore applies in determining whether USC‘s disciplinary procedures were fair.
notice of the charges and a meaningful opportunity to be heard. (Pinsker II, supra, 12 Cal.3d at pp. 555–556; Ezekial, supra, 20 Cal.3d at p. 278.) We have never held, however, that any specific or baseline procedures must be followed to satisfy these requirements. Boermeester points to Cason, supra, 37 Cal.2d 134, where we observed in dicta that a “fair trial” “includes the right . . . to confront and cross-examine the аccusers” (id. at pp. 143, 144), but we did not hold in Cason that the plaintiff was denied a fair procedure on that ground. Instead, we held that the plaintiff was denied a fair procedure because he was not permitted to hear or review the accuser‘s testimony or to refute that testimony, nor was he allowed to examine the written evidence submitted against him. (Id. at pp. 144–145.) Moreover, we have since noted that “[t]he common law requirement of a fair procedure does not compel formal proceedings with all the embellishments of a court trial [citation], nor adherence to a single mode of process. It may be satisfied by any one of a variety of procedures which afford a fair opportunity for an applicant to present his position.” (Pinsker II, at p. 555.) In fact, we have observed that a formal hearing is not required in all circumstances; at times, it may be sufficient for a private organization to allow only a written response to the charges. (Ezekial, at p. 279.) We have further emphasized that, given “the practical limitations on the ability of private institutions to provide for the full airing of disputed factual issues” (id. at p. 278), courts “should not attempt to fix a rigid procedure that must invariably be observed. Instead, the associations themselves should retain the initial and primary responsibility for devising a method which provides an applicant adequate notice of the ‘charges’ against him [or her] and a reasonable opportunity to respond” (Pinsker II, at p. 555).
In short, though the fair procedure doctrine requires adequate notice of the charges and a reasonable opportunity to respond, applying the doctrine to this context requires us to give private universities primary responsibility for crafting the precise procedures meant to afford a student with notice and an opportunity to respond. (Pinsker II, supra, 12 Cal.3d at p. 555.) Private universities generally know best how to manage their own operations, and requiring a fixed set of procedures they must utilize in every situation when determining student discipline would constitute an improper ” ‘intrusion into the[ir] internal affairs.’ ” (Id. at p. 557; accord, Ezekial, supra, 20 Cal.3d at pp. 278–279.)
C. Recent Legislation
The Legislature recently enacted legislation setting forth the precise procedures it felt were necessary to ensure fairness to both the accused student and the accuser and to combat sexual violence on university campuses. Senate
Senate Bill 493 is intended “to account for the significant individual civil consequences faced by respondents alleged to have committed sexual violence as well as the significant harm to individual complainants and to education equity more generally if sexual violence goes unaddressed.” (Stats. 2020, ch. 303, § 1, subd. (n).) As relevant here, it gives universities the discretion to decide whether “a hearing is neсessary to determine whether any sexual violence more likely than not occurred.” (
Senate Bill 493 expressly provides that universities need not comply with any of its provisions that conflict with federal law. (
As stated above, we find it significant that Senate Bill 493 (as well as the OCR‘s most recent proposed amendments to the Title IX regulations) give universities wide latitude in determining the precise nature of their disciplinary proceedings. But we also observe that the state of the law in this area is in flux and is, therefore, subject to continued change and development. We further emphasize that, because neither Senate Bill 493 nor the current or proposed Title IX regulations apply to this matter, they are not dispositive.6
D. Fair Procedure Does Not Require Live Hearings with Cross-examination
We must decide whether fair procedure requires private universities to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually. Applying our fair procedure precedent discussed above, we hold that it does not. Requiring live
As we have recognized, an accused student has a significant interest in completing a postsecondary education. For this reason, private universities must comply with the fair procedure doctrine by affording accused students reasonable notice of the charges and a meaningful opportunity to respond before disciplining them. When crafting the precise procedures necessary to provide a meaningful opportunity to respond, however, a private university must balance competing interests, including the accused student‘s interests in a fair procedure and completing a postsecondary education, the accuser‘s interest in not being retraumatized by the disciplinary process, and the private university‘s interests in maintaining a safe campus and encouraging victims to report instances of sexual misconduct or intimate partner violence without having to divert too many resources from its main purpose of education. (See Ezekial, supra, 20 Cal.3d at pp. 277–278 [weighing the plaintiff‘s economic interest in completing the residency program against the private hospital‘s interest in protecting itself from the mistakes of incompetent physicians]; accord, Doe v. Westmont College (2019) 34 Cal.App.5th 622, 634 (Westmont) [observing that “[a] fair hearing strives to balance three competing interests” among the accused student, the accuser, and the university].) It is therefore appropriate to give private universities broad discretion in formulating their disciplinary processes to ensure that they not only provide the accused student a meaningful opportunity to be heard, but also embolden victims to report incidents of sexual misconduct or intimate partner violence, encourage witnesses to participate in the disciplinary process, and allow the private university to conserve its resources so that it can remain focused on its primary mission of providing a postsecondary education.
The Court of Appeal majority reasoned that the accused student must be able to engage in adversarial back-and-forth questioning with the accuser and other witnesses at a live hearing in order to assess witness credibility and to “fully present his [or her] defense.” (Boermeester v. Carry, supra, B290675.) While live adversarial questioning may be considered essential in the context of a criminal trial (People v. Louis (1986) 42 Cal.3d 969, 982–983), there is no absolute right to a live hearing with cross-examination in administrative proceedings, even where constitutional due process applies. As courts have explained in other administrative contexts, ” ‘[d]ifferences in the origin and function of administrative agencies “preclude wholesale transplantation of the rules of procedure,
In this case, USC provided Boermeester notice of the allegations; the opportunity to provide his version of events in his interview with the Title IX investigator; the opportunity to independently review the testimonial and documentary evidence with his attorney-advisor; the opportunity to submit his own evidence and the names of potential witnesses to the Title IX investigator; the opportunity to respond to the testimonial and documentary evidence through an in-person evidence hearing held at the Title IX office and conducted by the Title IX coordinator (which he declined to attend in favor of submitting a written response to the evidence); the opportunity to submit questions for the Title IX coordinator to ask Roe at her own evidence hearing (which he also declined to do); and the opportunity to appeal the misconduct sanctioning panel‘s decision to the appellate panel. USC was not required to
Boermeester relies on recent appellate court decisions to support his view that fair prоcedure requires live hearings at which accused students are permitted to cross-examine witnesses (in person or virtually), but most of these cases do not help him. In University I, the first California appellate case to analyze what procedures might be required in this context, the court correctly observed that fair procedure requires only ” ‘notice reasonably calculated to apprise interested parties of the pendency of the action . . . and an opportunity to present their objections’ ” (University I, supra, 246 Cal.App.4th at p. 240) and concluded from this that “a full trial-like proceeding with the right of cross-examination is not necessary” (id. at p. 248). It is true that, subsequent to the University I decision, some courts have held that private universities must allow the accused student to indirectly cross-examine the accuser or third party witnesses where the adjudication “turns on witness credibility,” but most of these decisions have not specified that the indirect cross-examination should occur within the context of a live hearing. (Westmont, supra, 34 Cal.App.5th at p. 638; accord, Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1070 (Claremont McKenna); Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, 1237 (University II); see also Regents I, supra, 5 Cal.App.5th at p. 1084.) In University II, for example, the court directed the private university to give the accused student “an opportunity to submit a list of questions” for the university‘s adjudicators to ask the accuser if it proceeded with a new disciplinary рroceeding upon remand (University II, at p. 1238), but it did not direct the university to conduct a hearing — even after acknowledging that the university‘s policies did not allow for a hearing (see id. at pp. 1235, 1238). Moreover, courts have been careful to observe that there exist several ” ‘alternate ways of providing accused students with the opportunity to hear the evidence being presented against them’ ” and to rebut such evidence, other than ” ‘permit[ting] [the accused student‘s] presence during the [witnesses‘] testimony.’ ” (Westmont, at p. 638; accord, University I, at p. 245, fn. 12.)
Indeed, aside from the split opinion of the Court of Appeal below, Doe v. Allee (2019) 30 Cal.App.5th 1036 is the only decision to hold that a private university must allow an accused student to indirectly cross-examine witnesses “at a hearing at which the witnesses appear[] in person or by other means [e.g., videoconferencing],” even where the private university‘s policies do not provide a hearing. (Id. at p. 1071.) The Allee court acknowledged that fair procedure “requirements are ‘flexible’ and entail no ‘rigid procedure’ ” (id. at p. 1062), yet it failed to explain how its holding
At oral argument, Boermeester‘s counsel asserted that providing direct or indirect cross-examination of the accuser or other witnesses outside of a live hearing attended by the accused student is inadequate because the private university may “filter” or misrepresent witnesses’ answers to the accused student‘s questions. Of course, if universities choose to question the accuser or other witnesses outside of the accused student‘s presence, they will need to conceive of a method by which to meaningfully convey the responses to the accused student, such as by providing the accused student with transcripts, video or audio recordings, or reasonably detailed summaries of the testimony. (See Westmont, supra, 34 Cal.App.5th at p. 638.) We leave these specific procedures up to the university to determine. But we see no reason to address the theoretical risk that private universities may filter answers by, in response, categorically requiring them to conduct a live hearing with the accused student in attendance and at which the accused student is allowed to directly or indirectly cross-examine witnesses.
We note that this is not a case in which the accused student was given no hearing at all. As described above, the parties agree that USC‘s policies provided separate and individual evidence hearings fоr both Boermeester and Roe, and that USC complied with its policies by offering the parties the opportunity to attend their separate evidence hearings. Although Boermeester could not have cross-examined Roe or the third party witnesses in real time at his hearing, he could have responded to the evidence and presented his defense before USC‘s adjudicators had he chosen to attend his hearing. We do not opine on whether and under what circumstances a private university might properly choose to refrain from providing an accused student with a hearing that gives the accused student the opportunity to respond to the evidence before the university‘s adjudicators, since such a hearing was offered to the accused student in this case.
We also do not opine on whether and under what circumstances a private university might be required to allow the accused student to indirectly cross-examine the accuser by submitting questions for the university‘s adjudicators to ask the accuser outside of the context of a live hearing or the accused student‘s presence, since USC afforded Boermeester the opportunity to submit questions for the Title IX coordinator to ask Roe at her separate evidence hearing. Similarly, we do not opine on whether USC‘s procedure was unfair because Boermeester was not allowed to submit questions for USC‘s adjudicators to ask the third party witnesses during the Title IX investigator‘s interviews with those witnesses, since Boermeester does not raise this claim.
Boermeester maintained that the act was playful or sexual in nature and amounted to mere “roughhousing.” USC determined, however, that Boermeester‘s intent was irrelevant. Carry — who made the final decision per USC‘s policy — found that since “[i]ntent to cause physical harm is not a required element” of USC‘s policy against intimate partner violence, Boermeester‘s alleged lack of intent to cause Roe physical harm was not a mitigating factor. She therefore concluded that, “[w]hether [Boermeester] intеnded to cause [Roe] harm or did so recklessly, expulsion [was] appropriate given the nature of the harm inflicted.” Because intent was irrelevant under USC‘s policy against intimate partner violence, USC could have based its decision to expel Boermeester exclusively on Roe‘s initial statement, the video consistent with that statement, and Boermeester‘s own admissions — all of which tended to show that Boermeester caused Roe physical harm.
It is true that Roe later recanted her testimony and agreed with Boermeester that the incident was playful in nature. But even if Roe‘s recantation put her initial testimony in doubt, USC provided Boermeester the opportunity to indirectly cross-examine Roe and explore any inconsistencies in her story. Boermeester thus had the opportunity to submit questions to be asked of the most important witness — the person he allegedly hurt. Moreover, USC, as the
In conclusion, USC was not required to provide Boermeester the opportunity to directly or indirectly cross-examine Roe and other witnesses at a live hearing with Boermeester in attendance, whether in person or virtually.
III. DISPOSITION
We reverse the judgment of the Court of Appeal and remand for it to determine in the first instance the remaining claims Boermeester raised on appeal that the Court of Appeal expressly declined to reach.
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
EVANS, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Boermeester v. Carry
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 49 Cal.App.5th 682
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S263180
Date Filed: July 31, 2023
__________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Amy D. Hogue
__________________________________________________________________
Counsel:
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for Plaintiff and Appellant.
Cynthia P. Garrett for Families Advocating for Campus Equality as Amicus Curiae on behalf of Plaintiff and Appellant.
Horvitz & Levy, Beth J. Jay, Jeremy B. Rosen, Mark A. Kressel, Scott P. Dixler, Sarah E. Hamill; Young & Zinn, Julie Arias Young and Karen J. Pazzani for Defendants and Respondents.
Rob Bonta, Attorney General, Matthew Rodriquez, Chief Assistant Attorney General, Michael L. Newman, Assistant Attorney General, Sarah E. Belton and Alexis M. Piazza, Deputy Attorneys General, for the Attorney General of California as Amicus Curiae on behalf of Defendants and Respondents.
Gibson, Dunn & Crutcher, Theane Evangelis, Jeremy S. Smith, Andrew M. Kasabian; Amy Porter; and Brenda Adams for California Women‘s Law Center, Equal Rights Advocates, Kylee O., Maryam I., Claudia R., Alliance for HOPE International, Atlanta Women for Equality, Child Abuse Forensic Institute, Center for Community Solutions, Community Legal Aid SoCal, Domestic Abuse Center, Family Violence Appellate Project, Family Violence Law Center, Feminist Majority Foundation, Law Foundation of Silicon Valley, Legal Aid at Work, Legal Voice, Los Angeles Center for Law and Justice, National Association of Women Lawyers, National Women‘s Law Center, Public Counsel, Rural Human Services/Harrington House, San Diego Volunteer Lawyer Program, Southwest Women‘s Law Center, Texas Association Against Sexual Assault, Walnut Avenue Family & Women‘s Center, WEAVE, Inc., and Women‘s Law Project as Amici Curiae on behalf of Defendants and Respondents.
O‘Melveny & Myers, Apalla U. Chopra, Marni Barta, Allan W. Gustin and Anton Metlitsky for California Institute of Technology, Chapman University, Claremont McKenna College, Occidental College and Pepperdine University as Amici Curiae on behalf of Defеndants and Respondents.
Arent Fox, Lowell C. Brown and Candace C. Sandoval for California Hospital Association as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Mark M. Hathaway
Hathaway Parker
445 South Figueroa Street, 31st Floor
Los Angeles, CA 90071
(213) 529-9000
Jeremy B. Rosen
Horvitz & Levy LLP
505 Sansome Street, Suite 375
San Francisco, CA 94111-3175
(818) 995-5838
Notes
Neither party asks that we resolve this matter on forfeiture grounds. USC instead urges us to resolve the issue on the merits, noting the need for “clear guidance on what the common law actually requires.” We find that the issues raised are important and recurring, and accordingly exercise our discretion to reach the merits without deciding whether Boermeester forfeited his claims. (See Teacher v. California Western School of Law (2022) 77 Cal.App.5th 111, 129; JMS Air Conditioning & Appliance Service, Inc. v. Santa Monica Community College Dist. (2018) 30 Cal.App.5th 945, 962, fn. 6.)