John contends on appeal he was denied a fair hearing. We agree. Dr. Allee did not interview three central witnesses, including the two witnesses who observed Jane's apartment after the sexual encounter-one described a large puddle of blood on the mattress and blood on the sheets and carpeting; another saw the apartment earlier that day and did not see any blood. Jane relied on the third witness to help her reconstruct whаt happened the morning of the incident. Instead, Dr. Allee relied on the summary of the interviews by another Title IX investigator, Marilou Mirkovich. Accordingly, Dr. Allee was not able to assess the credibility of these critical witnesses during the interviews.
Because Dr. Allee's investigative report and adjudication turned on witness credibility, Dr. Allee should have interviewed all critical witnesses in person or by videoconference
We reverse and remand to the trial court with directions to grant John's amended petition for a writ of administrative mandamus.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Prior to the Incident
On April 12, 2014 Jane and Sarah went to Jane's apartment to get ready for two parties they planned to attend that evening.
The group walked over to the paint party together. At the party, the attendees splattered each other with jugs of paint. Sarah stated there was a lot of red paint at the party, and she had red paint behind her ears and on her body for days after the party. Sarah reported the day after the party the red paint looked like "bruises and blood." Sarah and Jane shared a drink at the party. Emily observed Jane was "very flirty," putting her arms around young men and sitting on their laps. Jane sat on Austin's lap, which Sarah thought was "weird" because Austin was "creepy" and "older." Emily saw John with his arm around Jane. Jane told Dr. Allee, "[John] was apparently always around me all night. I remember there was a long-haired person always near me with a USC shirt."
Carter told Dr. Allee that John was with him at the party most of the night because John did not know the other students. Carter described Jane, John, and Sarah as "very drunk." Carter explained that before the party Jane "was very quiet and reserved, but later at the party she was doing stuff that was totally not like her." He said it would have been obvious she was "really
Vance was a friend of Andrew, whom Jane was dating. Vance told Dr. Allee that Jane "was very drunk" at the party. Jane tried to dance with Vance, but "[s]he fell down a couple of times." He saw Jane fall
Jane also described herself as intoxicated and falling down. She told Dr. Allee, "I lost complete control of that 3rd eye that I always [had] to be aware of how intoxicated I am." She added, "The next day my tailbone super hurt and my back felt thrown out."
At 1:49 a.m. the next day Jane sent a text to Andrew, stating, "Vance is helping me walk home [¶] Help."
At the end of the party, Jane, Sarah, Emily, Austin, Carter, and John left the party together. As they were leaving, Carter saw Jane "hanging on" to Sarah and John. Carter and Emily walked ahead of the grouр. Emily described Jane as "very drunk," but she was walking "ok." At some point Carter left to walk to his apartment, and Emily rejoined the group.
Jane walked back to her apartment with John. Emily and Sarah went to Sarah's apartment so Emily could charge her phone. At 2:14 and again at 2:55 a.m. Jane sent texts to Emily and Sarah to inquire whether they were coming back to her apartment. Emily responded that they were looking for Sarah's phone, and asked if Jane was with John. Jane responded that she was. Emily and Sarah later walked to Jane's apartment to use Jane's computer to track down Sarah's cell phone.
Emily and Sarah arrived at Jane's apartment about 3:30 a.m. on April 13, 2014.
Dr. Allee asked Jane if she had sensory memories from that night. Jane responded, "Yeah, I have a lot of those. I currently can't smell alcohol without throwing up. I can't be touched below my torso without freaking out. I have this terrible panic if someone hugs me without telling me. I remember the sensation of throwing up the rice, but not where or how. I remember the light when my friends opened the door to the apartment. I remember the pain
At 3:49 a.m., after John left the apartment, Jane sent a text message to Emily: "[I]s [Sarah] okay?!? [¶] Fuck [¶] I was so drunk [¶] Ow [¶] That wasn't what I wanted." Jane then texted, "I was taken advantage of but it's fine" and "It happens."
At 4:00 a.m. Jane called J.D., a high school friend who lived in a different state. J.D. provided Dr. Allee a written statement describing his conversation with Jane:
At 9:21 a.m. Jane called J.D. again after seeing his text message telling her to call him. J.D. stated, "When she called the next morning, she was really struggling to remember the chronology of events and had completely forgotten that she had thrown up. ... She still didn't remember his name and could only vaguely remember walking back, with no idea how he joined their party. She then disclosed to me that there was blood on the sheets and
Jane told Dr. Allee that when J.D. reminded her she had told him she threw up, she "remembered the feeling of throwing up the rice." Jane found a bowl
On the morning of April 13 Sarah went to Jane's apartment. When she arrived, Jane was on the phone, dressed in a maxi dress. Sarah did not remember seeing blood or paint on the floor or mattress, but thought the air mattress was gone and the apartment "looked really empty" and "seemed cleaner." Sarah collected her belongings from the night before and left the apartment after about five or 10 minutes.
Andrew did not attend the paint party. He fell asleep around 2:00 a.m., then woke up about 10:30 a.m. He had received text messages from Jane throughout the night. He spoke with Jane and deduced she had been assaulted after she told him she could not change her clothes or drink water. Later that day Andrew had a previously scheduled lunch with Vance. At lunch, Andrew asked Vance about the party and learned that someone was "hanging" around Jane. Vance told Andrew that Jane had been "unusually intoxicated" at the party and he had seen her fall down.
Although John did not provide a statement, Carter relayed to Dr. Allee what John told him on April 13. When Carter woke up that morning, he saw text messages from John saying he was worried because Jane "was freaking out."
Carter recounted that John asked permission to have sex, but not anal sex "because she seemed turned off when he asked the 1st time." John said he immediately stopped when Jane told him to, then left the apartment. Carter added, "[John] said he didn't see blood. He was very confused when he heard that." John told Carter Jane was never bleeding.
About 11:00 a.m. on April 13 two USC Department of Public Safety (DPS) officers
Jane told Dr. Allee she was "freaked out" by the DPS officers and was overwhelmed when the male LAPD officers came to the rape treatment center because she did not want to look at any males. Jane was at the rape treatment center from approximately 12:30 to 4:30 p.m. While Jane was there, John texted her at 3:38 p.m. and asked, "Hey I think I might've left my wallet at your place, have you seen it around?" Jane did not remember giving John her cell phone number and did not reply.
D. Subsequent Events
On the afternoon of April 13 Andrew picked Jane up from the rape treatment center. It was not until then that Jane opened John's wallet and saw his name. Andrew and Jane went to the police station, and Andrew dropped off the wallet, saying he found it on the street. At 4:25 p.m. Jane texted J.D. to say, "I look like a battered convict. Mostly because the paint looks like bruises. And I'm in [an] all grey sweatsuit."
Jane and Andrew next went to Jane's apartment. Only Andrew went inside; Jane waited in the hallway. Mirkovich summarized her interview with Andrew: "He stated that when he walked in, he 'realized that everything was disheveled'-there was a basket of clothes strewn about and 'throw-up.' Then he noticed that [there were] puddles of blood on the air mattress, which were about 6 inches in size, and a used condom. He stated that there was 'a lot of blood' on the sheet and that there was blood on the carpet-which he stated does not show on the photo. He described it as 'very bloody.' When he left the apartment, he told [Jane] that she 'probably [did not] want to go in there [her apartment].' " Jane asked Andrew to deflate the air mattress and throw away the sheets, so he "put the sheets down the 'garbage chute.' "
At 7:48 p.m. John texted Jane stating, "I am so sorry about last night. I made a drunken mistake and feel horrible about it. I had no right to do what I did and I'm so so sorry. I hope you can forgive me."
E. The Investigation
On April 30, 2014 Jane submitted a complaint to the USC Office of Student Judicial
On May 1, 2014 Dr. Allee sent Jane an e-mail stating in part, "I have already received [J.D.'s] written statement to add to the evidence gathered thus far (your screenshots, contact list, UCLA records,[
On May 3, 2014 DPS served John with three letters dated May 2, 2014. The first letter notified John that USC had received a complaint alleging he violated seven provisions of the student conduct code: section 11.32.B (endangering others); section 11.40 (unauthorized alcohol use); section 11.44.B (lewd or obscene behavior); section 11.51.A (harassing or threatening behavior); section 11.53.A (sexual misconduct); section 11.53.B (sexual assault); and section 11.53.C (rape).
Dr. Allee was the initial Title IX investigator before she was replaced in May 2014 by Mirkovich, an outside attorney.
On May 30, 2014 John's attorney sent an e-mail to Mirkovich and Shipper requesting "all documents and relevant information gathered to date as part of the investigation, including but not limited to the statements the complainant made to DPS personnel, to Los Angeles Police personnel, to Student Counseling, to personnel at the Rape Treatment Center, and any other witness statements. I would also like to arrange for independent laboratory testing of the condom and complainant's clothing that the complainant preserved from the alleged incident."
On June 3, 2014 and continuing through the course of the investigation, Shipper provided John with summaries of the witness interviews, the DPS and LAPD reports, text messages, call logs, and other information the investigators gathered.
Shipper contacted the rape treatment center and LAPD to inquire about the condom and Jane's clothing, but they would not confirm what they collected or release any evidence being held as property of law enforcement. John's attorney informed Shipper he learned the rape treatment center retained the condom from the sexual encounter, but not Jane's clothing. He asked USC to follow up with Jane to obtain the clothing.
On June 11, 2014 Dr. Allee notified Jane by telephone that John had requested "her clothing, if she still has it, and the condom (from SM/UCLA Rape Treatment Center) in order to do independent testing." Dr. Allee told Jane that John also requested the last name of Jane's support person.
On June 18, 2014 Dr. Allee met with John and his attorney. John provided two photographs of his shorts and shoes from the night of incident; they were stained with paint. He declined to provide a statement in light of the pending LAPD investigation. Dr. Allee inquired if John had any other witness names or information, and he responded he did not. Finally, Dr. Allee informed John she had a letter from the rape treatment center confirming the date Jane sought services from the center.
On August 14, 2014 Dr. Allee provided Jane and John with security camera footage of them in the elevator on the way to Jane's apartment. Dr. Allee asked Jane to confirm the footage showed Jane and John, and later Sarah and Emily.
F. Summary Administrative Review
On August 20, 2014 Dr. Allee concluded her investigation and issued her summary administrative review. Dr. Allee observed, "Although the complainant did not recall many of the events from approximately 2 am until 3:30 or 4 am, she stated that she had spoken to [Emily, Sarah, and Andrew] to help reconstruct that time." Dr. Allee noted Jane reported "there was a long-haired person always near me with a USC shirt," and Dr. Allee inferred that person was John because the elevator camera footage showed he "had long hair and was wearing a cardinal-colored USC t-shirt and khaki shorts." As part of the investigation, Dr. Allee considered the witness statements, the two photographs of John's clothing, records of Jane's phone calls and text messages, Jane's photographs of her apartment, elevator security camera footage,
Dr. Allee concluded, "After a thorough, neutral and impartial investigation, I find Mr. Doe responsible for viоlating the student code of conduct. This decision was reached after a thorough review of all of the relevant evidence,
Dr. Allee addressed the two photographs of John's khaki shorts and red shoes that showed "extensive paint stains in the colors of red, yellow, and
Dr. Allee found Sarah's conflicting statement-that there was no blood in Jane's apartment in the morning after the sexual encounter-was not "sufficiently reliable." Dr. Allee explained, "[Sarah's] statement contains several inconsistencies regarding the appearance of the complainant's apartment. She stated that on the one hand the complainant's apartment is always 'pretty messy,' and that she 'wouldn't have noticed a difference if it was messier' than earlier that day. She also stated that the next morning the apartment 'seemed cleaner.' Further, it is unclear how long she was at the complainant's apartment the next morning. She reported she grabbed her stuff and left, and then that she was there for five to ten minutes. Therefore, her observations on the appearance of the apartment are not considered sufficiently reliable."
Dr. Allee imposed the sanction of expulsion and prohibited John from having any contact with Jane. Dr. Allee advised the parties, "A permanent notation of expulsion will appear on the student's academic transcript ...."
G. John's Appeal to the Student Behavior Appeals Panel
On September 4, 2014 John appealed Dr. Allee's decision to the Student Behavior Appeals Panel (Appeals Panel).
The Appeals Panel denied John's appeal, noting John had failed to address the three grounds set forth in the USC guidelines. The Appeals Panel concluded there was "significant eyewitness testimony that Ms. Roe was severely intoxicated" and unable to consent. Further, even if she consented to sexual activity, the "evidence does not support Mr. Doe's contention that he stopped all physical activity once he realized that he did not have consent to perform anal intercourse. Rather, the evidence indicates that Mr. Doe continued performing anal intercourse with Ms. Roe despite that it was causing her physical injury, including a significant amount of bleeding." The Appeals Panel recommended immediate expulsion and avoidance of all contact with Jane. On November 12, 2014 vice provost Ainsley Carry informed John that Carry had approved the Appeals Panel decision, which became final.
On January 22, 2015 John filed an amended petition for a writ of administrative mandamus under Code of Civil Procedure
In its opposition USC argued John had been provided a fair hearing and Dr. Allee's findings were supported by substantial evidence. As to the evidence, USC asserted it had requested, but was not able to obtain, the condom, Jane's clothes from the night of the incident, and Jane's private medical records from the rape treatment center.
After taking the case under submission, on February 8, 2016 the trial court issued a 40-page ruling denying John's petition. The trial court found there was substantial evidence to support USC's decision. The trial court deferred to USC's finding that Jane's testimony was credible that she lacked the capacity to consent and did not consent to the sexual activity, and noted her testimony was corroborated by Andrew and J.D.
As to John's fаir hearing claim, the trial court found John did not adequately present his contentions because his "bullet-points contain[ed] no citations" to case law or the administrative record. Nonetheless, the court found the USC procedures provided John notice of the charges, "a 'fair, thorough, neutral and impartial investigation,' " the right to inspect documents and information, the right to present witnesses and information, the right to a written decision by the investigator, and the right to appeal the decision, and therefore satisfied "the due process requirements for post-secondary expulsion hearings set forth in Goldberg [v. Regents of University of California (1967)
The trial court rejected John's contention that due process entitled him to cross-examination of witnesses and to learn the identities of Jane's advisor and the Appeals Panel members. In addition, while John had "[t]he right to a neutral adjudicator," he failed to demonstrate he was denied
DISCUSSION
A. John Did Not Forfeit His Unfair Hearing Contentions
USC contends John forfeited the argument he was denied a fair hearing because he did not properly raise a challenge to USC's procedures in the trial court. Generally, a party cannot raise new issues or change the theory of a cause of action for the first time on appeal. ( Johnson v. Greenelsh (2009)
Here, although John's arguments did not cite to case law or the administrative record, the trial court proceeded to address John's contentions, including whether he had a right to cross-examination and exculpatory evidence. Further, USC responded to John's arguments. Moreover, the facts are not in dispute. Under these circumstances, John did not forfeit his fair hearing contentions on appeal. (See American Indian Health & Services Corp. v. Kent , supra ,
B. Standard of Review
"The question presented by a petition for writ of administrative mandate is whether the agency or tribunal that issued the decision being challenged 'proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.' ( § 1094.5, subd. (b).)" ( Doe v. University of Southern California, supra ,
A university disciplinary proceeding concerning sexual misconduct does not involve a fundamental vested right; thus, we review the administrative decision applying the same standard of review applicable in the trial court. ( Doe v. Claremont McKenna College (2018)
C. John Was Denied a Fair Hearing
1. General principles of fairness
In evaluating the fairness of a student disciplinary proceeding, courts have recognized the competing interests of the university, the complaining student, and the accused student. (See Claremont McKenna,
"In disciplining college students, the fundamental principles of fairness require, at a minimum, 'giving the accused students notice of the charges and an opportunity to be heard in their own defense.' " ( UC Santa Barbara, supra,
2. Where a university's determination turns on witness credibility, the adjudicator must have an opportunity to assess personally the credibility of critical witnesses
John contends he was denied a fair hearing because Dr. Allee did not reinterview critical witnesses who had been interviewed by Mirkovich, including Sarah, Emily, and Andrew, to enable Dr. Allee to assess their credibility.
As the Supreme Court explained in Elkins v. Superior Court (2007)
In Claremont McKenna and Cincinnati , the courts addressed whether a student accused of sexual misconduct had a right to question the complainant, either directly or indirectly, to enable the trier of fact to assess her credibility. Both courts concluded the accused student had this right where credibility
In Baum , the Sixth Circuit extended this analysis to questioning of witnesses other than the complainant where the fact-finder found the complainant and witnesses who corroborated the complainant's version of events more credible than the accused student and witnesses who corroborated his side of the story. ( Baum, supra , 903 F.3d at pp. 582-583.)
The same considerations underlying the holdings in Claremont McKenna, Baum , and Cincinnati apply here. Where a student faces a potentially severe sanction from a student disciplinary decision and the university's determination depends on witness credibility, the adjudicator must have the ability to observe the demeanor of those witnesses in deciding which witnesses are more credible. ( Claremont McKenna , supra ,
In Cincinnati , the Sixth Circuit similarly held the accused student showed a likelihood of success on the merits that he was denied a fair hearing where the review panel relied on the investigator's written report of the complaining witness's statement to find her account, that she had not consented to sex, more believable than that of the accused student, who asserted the encounter was consensual. ( Cincinnati , supra , 872 F.3d at pp. 402, 407.) The court
Under USC's sexual misconduct review procedures, John was not entitled to a hearing. Instead, the Title IX investigator served as both the investigator and adjudicator.
Andrew and Sarah gave conflicting accounts as to the condition of the apartment and whether there was blood in the apartment on the morning of the incident. Andrew described Jane's apartment as "disheveled," with "puddles of blood on the air mattress, which wеre about 6 inches in size," as well as "a lot of blood" on the sheets and blood on the carpet. Yet Sarah stated when she returned to Jane's apartment on the morning of April 13, it "seemed cleaner" and looked "really empty." She was in the apartment for
Further, it is undisputed red paint was used at the party. Sarah told Mirkovich she had red paint behind her ears and on her body for days after the party and the red paint looked like "bruises and blood." Jane similarly texted J.D. to say she looked like a "battered convict" because "the paint looks like bruises." Jane recalled she put on a maxi dress before going to the rape treatment center "to cover the blood and paint." Thus, determination of whether there was blood or red paint (or neither) in the apartment after the incident was important to the university's determination. Indeed, in Dr. Allee's report she noted "it is possible that some of the red substance on the sheets, air mattress, and carpet was paint," but pointed out that Jane and Andrew "specifically described blood."
Emily's statements were also central becаuse Jane reported to Dr. Allee that she blacked out, and "[m]ost of the memories come from Emily."
In addition, as in Claremont McKenna , Cincinnati , and Baum , there was no physical evidence showing there was blood on Jane's body or in the apartment after the incident. It is undisputed that Andrew, at Jane's direction, threw out the sheets and deflated the air mattress. Andrew acknowledged the color photographs provided by Jane did not show any blood in the apartment. This was contrary to Jane's statement that the blood soaked through the mattress pad, and there were stains on the living room floor that were reflected in the photographs. Jane's clothing from the evening and the SART rape treatment kit might have revealed whether there was blood or red paint on Jane, but neither was obtained by Dr. Allee as part of her investigation. Thus, Dr. Allee was left to rely on the conflicting statements of witnesses as to whether the alleged nonconsensual anal sex caused Jane to bleed.
3. If USC conducts a new disciplinary proceeding, it should allow John to submit questions for the adjudicator to ask Jane
We have concluded John was deprived of a fair hearing because Dr. Allee as the adjudicator had no opportunity to assess personally the credibility of the critical witnesses-Sarah, Emily, and Andrew. In addition, as part of the adjudicator's assessment of credibility, an accused student must have the opportunity indirectly to question the complainant.
4. The investigator did not conduct a fair and thorough investigation, as required by USC's procedures
"Where student discipline is at issue, the university must comply with its own policies and procedures." ( University of Southern California, supra ,
Jane told Dr. Allee that Andrew threw away the sheets at her request, but Jane had collected the clothes she wore the night of the party as evidence. Yet
In addition, John requested the medical report and other evidence from the rape treatment center, but Dr. Allee never asked Jane if she would consent to release of this information. In Jane's e-mail to Dr. Allee in response to Carter's witness statement, Jane stated, "[S]ince forensic evidence was not requested for the investigation, it was not provided, but if we were not thorough enough please let me know, as I would be more than willing to provide further clarification." Jane appeared willing to provide additional "forensic evidence," but Dr. Allee never followed up with Jane to obtain her consent to release her medical records.
We recognize Jane's medical records are protected by federal privacy laws, and USC would have to obtain Jane's consent before it could release the records to John. Under the Health Insurance Portability and Accountability Act of 1996 ( 42 U.S.C. § 1320d et seq. ) privacy rules, a healthcare provider (such as the rape treatment center) cannot disclose protected health information without the consent of the patient, unless the provider receives an order, warrant, subpoenа, or summons signed by a judicial officer; a grand jury subpoena; or an administrative subpoena, summons, or investigative demand from law enforcement. (
DISPOSITION
The judgment is reversed and the matter remanded to the trial court with directions to grant John's writ of administrative mandamus. John is awarded his costs on appeal.
WE CONCUR:
PERLUSS, P. J.
ZELON, J.
Notes
We identify the parties by the pseudonyms "John Doe" and "Jane Roe," as used by the parties, to protect their privacy. For ease of reference, we refer to John Doe and Jane Roe in this opinion as John and Jane, and refer to the student witnesses by their first names to protect their identities.
Title IX of the Education Amendments of 1972 (
We summarize the facts from the administrative record, including the interview summaries prepared by the Title IX investigators, the cell phone records submitted by Jane, the written statement provided by Jane's friend J.D., the USC Department of Public Safety report, and the Los Angeles Police Department investigative report.
According to Vance, he offered to walk Jane home, but Sarah told him firmly he was not needed. Although Jane texted Andrew that Vance walked her home, it is undisputed John walked Jane to her apartment.
The record does not reflect when Austin left the group.
Security video footage from the elevator showed Emily and Sarah exiting the elevator to Jane's floor at 3:31 a.m., then reentering the elevator from Jane's floor at 3:38 a.m.
Jane kept her door unlocked because she lived at the end of a hallway, and it was not apparent there was an apartment there. Sarah stated it was normal for Emily and her to walk into Jane's apartment without knocking.
J.D. tоld Dr. Allee he wrote the statement the same morning after he spoke with Jane a second time and realized she did not remember their 4:00 a.m. conversation.
Carter told Dr. Allee he no longer had the text messages because he got a new cell phone.
A sexual assault response team (SART) kit is collected by a medical practitioner and typically contains the results of a sexual assault examination or evidence collected in response to an alleged sexual assault. (See People v. Uribe (2008)
USC's 2013/2014 SCampus Student Guidebook (Guidebook) provides that a student who alleges sexual misconduct can file a formal report with SJACS. (Guidebook, § 17.01.A.) The Guidebook provides further that as part of the investigation into a complaint, "the investigator will ask for all information relevant to the allegations. For both parties, this is their opportunity to present any information regarding the incident, including names of witnesses, the existence of documents or videotapes, or any other information the parties feel may be relevant. Both parties may also present supplemental information during the course of the investigation, until the investigator makes findings." (Guidebook, § 17.02.C.) Following the investigation, the investigator makes findings of fact as to whether by a preponderance of the evidence there has been a violation of the student conduct code, and can impose sanctions after consultation with the SJACS direсtor. (Guidebook, §§ 17.02.D, 17.06.A.) Sanctions can include "expulsion, suspension, revocation of degree and revocation of admission." (Guidebook, § 17.06.B.)
The rape treatment center sent Dr. Allee a letter confirming Jane was seen at the center on April 13, 2014 for an emergency medical-forensic examination following her report of a sexual assault.
Shipper was the Title IX coordinator at USC.
The Guidebook section 11.40 defines "unauthorized alcohol use" as "[u]nauthorized use, possession or dissemination of alcohol in the university community or at university-sponsored activities." Section 11.53.A defines "sexual misconduct" as "[e]ngaging in non-consensual sexual conduct or lewd, indecent or obscene behavior, which is sexual in nature, within the university community or at university-sponsored activities." Section 11.53.B defines "sexual assault" as "[n]on-consensual actual or attempted intercourse, sexual touching, fondling and/or groping." Under section 11.53.C, "[a] sexual assault is classified as rape when vaginal, anal or oral penetration, with a body part or object, takes place without the meaningful consent of the person penetrated."
USC suspended John because Jane told Dr. Allee "she may have been 'roofied' " and John had been "hanging around" her while she was drinking. Dr. Allee later determined there was insufficient evidence to conclude John drugged Jane.
According to Shipper, Mirkovich was hired as a Title IX investigator to handle overflow cases from her office.
Dr. Allee invited the parties to provide comments on Carter's statement by noon of the next day. In response, Jane e-mailed Dr. Allee later that evening, expressing her concern that Carter was offering opinions on John's "conduct without witnessing it" and recounting John's "stories." Jane also stated, "Regarding the 'gap in story' about the blood; since forensic evidence was not requested for the investigation, it was not provided, but if we were not thorough enough please let me know, as I would be more than willing to provide further clarification. I did the best I could to express over the phone and by providing evidence to the clinic hours following the incident, just how much emergency medical attention was required." John's counsel also provided a written response to Carter's interview on August 20, 2014, contending both John and Jane were inebriated but voluntarily consented to the sexual contact.
In response to a request from John's attorneys for interview notes and audio of video recordings of interviews, Shipper stated, "Neither party gets the notes from interviews, but is instead provided with the transcribed interview notes. The university does not use audio recordings for interviews."
Although the record does not indicate whether Jane provided any additional information, Dr. Allee's report reflects that the elevator footage shows Jane, John, Sarah, and Emily.
In response to our request, on October 4, 2018 USC lodged the color phоtographs submitted by Jane and the security camera footage from the elevator, which were part of the administrative record.
The Guidebook states, "Consent is defined as positive cooperation . Consent is informed, knowing and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. When people consent to sexual activity, they will have indicated, verbally or otherwise, that they are participating willingly, freely and voluntarily. Consent is an ongoing process in any sexual interaction. Consent may be withdrawn at any time during a sexual interaction. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent. [¶] If you have sexual activity with someone you know to be-or should know to be-mentally or physically incapacitated (by alcohol or other drug use, unconsciousness or passed out), you are in violation of this policy. Incapacitation is a state where one cannot make a rational, reasonable decision because he or she lacks the ability to understand the who, what, when, where, why or how of the sexual interaction."
USC provides for an appeal from the investigator's decision to a three-member Appeals Panel. (Guidebook, §§ 17.07.A, 17.07.F.) The Appeals Panel does not provide for an in-person hearing; instead, "all appeals are doсumentary reviews in which no oral testimony is taken and no oral argument takes place." (Guidebook, § 17.07.C.) USC limits an appeal to three grounds: "1. That new evidence has become available which is sufficient to alter the decision and which the appellant was not aware of or which could not have been reasonably obtained at the time of the original review. [¶] 2. That the sanction imposed is excessive, insufficient or inappropriate. [¶] 3. That the investigator failed to follow university rules while reviewing the cited behavior." (Guidebook, § 17.07.D.) The Appeals Panel drafts a recommended decision, which the vice provost of student affairs may modify before it becomes final. (Guidebook, § 17.07.F.)
Further undesignated statutory references are to the Code of Civil Procedure.
As we noted in Doe v. University of Southern California (2018)
Many of the opinions addressing student disciplinary proceedings, including UC San Diego , UC Santa Barbara and Goldberg , concerned public universities subject to federal constitutional guarantees not applicable to private colleges. As the court in Claremont McKenna recognized, "Due process jurisprudence nevertheless may be 'instructive' in cases determining fair hearing standards for student disciplinary proceedings at private schools." (Claremont McKenna,
John also contends Dr. Allee "possibly" failed to interview J.D. Although Dr. Allee principally relied on J.D.'s written statement, she also interviewed him by telephone. A telephone interview would not provide an opportunity for Dr. Allee to assess J.D.'s demeanor during the interview, raising some of the same concerns for evaluating credibility. Because we conclude the failure to interview Sarah, Emily, and Andrew denied John a fair hearing, we do not reach whether Dr. Allee should have interviewed J.D. or other witnesses, including Vance and Carter, in person or by videoconference.
On April 4, 2011 the United States Department of Education Office for Civil Rights (OCR) issued a "Dear Colleague" letter, in which it provided guidance on how universities should investigate and resolve complaints of student sexual misconduct. (UC San Diego, supra ,
We recognize the added burden on the university and the witnesses that would result from requiring an in-person or videoconference interview. However, given the available videoconference technologies like Skype, the additional burden is not significant and must be weighed against the importance of the determination, especially where the accused student faces a severe sanction. We do not suggest that all witnesses must be interviewed in this manner. However, where the witness accounts are in conflict and the adjudicator must determine which account to believe, or the adjudicator otherwise questions the veracity of a witness's account, it is essential for the adjudicator to have an opportunity to observe the demeanor of those witnesses where the determination turns on their credibility.
Although the Title IX investigator held dual roles as the investigator and adjudicator, "the combination of investigative and adjudicative functions does not, without more, constitute a due process violation ...." (Withrow v. Larkin (1975)
Evaluation of Andrew's credibility would also have been important in light of the fact he was dating Jane at the time of the incident and disposed of the asserted bloody sheets.
Although Dr. Allee could have based her finding of a lack of consent solely on Jane's level of intoxication, both she and the Appeals Panel pointed to the evidence of blood on Jane's body and in the apartment in reaching the conclusion Jane did not consent to anal sex. In addition, the evidence of a forced sexual encounter, resulting in bleeding, could have impacted the imposition of the severe sanction of expulsion. The Appeals Panel stated, "[T]he evidence indicates that [John] continued performing anal intercourse with [Jane] despite that it was causing her physical injury, including a significant amount of bleeding."
At many universities, а hearing is provided at which an adjudicative panel considers the testimony of the parties and other witnesses. (See, e.g., UC Santa Barbara,
Under USC's procedures, the accused student does not have "the right to confront accusers." (Guidebook, § 17.03.) Thus, consistent with California law, John did not have a right directly to question Jane or the other witnesses. (See UC San Diego, supra ,
On appeal, John does not address the right tо submit a list of questions, but in the trial court he contended he was deprived of the right to cross-examine Jane and the other witnesses.
Under USC's procedures, the complainant and accused students have certain procedural rights, including: "A. Written notice of the incident report that specifies the nature of the alleged violation and the basis for the charge including the date or period of time and location regarding the alleged incident"; "D. A fair, thorough, neutral and impartial investigation of the incident"; and "E. At the start of the investigation, a summary of rights, investigation procedures and avenue of appeal." (Guidebook, § 17.03.A, D, E.) In addition, "[b]oth parties have the right to inspect documents and/or relevant information gathered as part of the investigation (though medical information may be kept confidential)." (Id ., § 17.03.F.) The list of procedural rights does not include a right to submit a list of questions for the investigator to ask the complainant or other witnesses.
Although it would be a better practice to allow the complainant and accused student to submit a list of questions to ask witnesses for whom the fact-finder needs to make a credibility determination, we do not reach whether John's inability indirectly to ask questions of Sarah, Emily, and Andrew violated his right to a fair hearing. (See Baum,
John contends Dr. Allee withheld Jane's medical records, pointing to a May 1, 2014 e-mail from Dr. Allee to Jane stating she had obtained "UCLA records." However, there is no evidence in the administrative record that USC obtained Jane's medical records from the rape treatment center. Instead, in her summary administrative review Dr. Allee only references the "verification of services letter" from the rape treatment center. John also contends Dr. Allee "engaged in willful ignorance by apparently failing to observe the 'bloodied' carpet in [Jane's] apartment first-hand." But when Dr. Allee asked Jane for access to the apartment to take photographs on May 1, 2014, it was already 18 days after the April 13, 2014 incident. Dr. Allee could reasonably have concluded the photographs Jane e-mailed her were sufficient, especially given that Jane was no longer at USC or in California.
In addition, even if USC were able to obtain Jane's medical records, they were subject to the Family Educational Rights and Privacy Act, which generally prohibits the disclosure of "personally identifiable information" in student education records without the student's written consent. (20 U.S.C. § 1232g(b) ;
Because we conclude John was denied a fair hearing, we do not reach John's other contentions, including whether substantial evidence supported USC's decision to expel John for violations of the student conduct code and other grounds John asserts to support his claim he was denied a fair hearing.