Doe v. University of Southern Calif. ( 2018 )

Filed 12/11/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JOHN DOE, B271834
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS152306)
v.
UNIVERSITY OF SOUTHERN
CALIFORNIA,
Defendant and
Respondent.
APPEAL from the judgment of the Superior Court of Los
Angeles County, Joanne B. O’Donnell, Judge. Reversed and
remanded.
Werksman Jackson Hathaway & Quinn, Mark M.
Hathaway, Mark W. Allen and Jenna E. Eyrich for Plaintiff and
Appellant.
Gibson, Dunn & Crutcher, Theane Evangelis, Lauren M.
Blas and Gregory S. Bok for Defendant and Respondent.
______________
John Doe appeals from the trial court’s denial of his
petition for a writ of administrative mandamus to set aside his
expulsion from the University of Southern California (USC) for
unauthorized alcohol use, sexual misconduct, sexual assault, and
rape. USC student Jane Roe1 submitted a complaint to USC
alleging John had sexually assaulted her in Jane’s apartment
after they both attended a “paint” party, at which the students
splattered paint on each other. Dr. Kegan Allee, the Title IX2
1 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.
2 Title IX of the Education Amendments of 1972 (20 U.S.C.
§ 1681 et seq.) (Title IX), applicable to universities receiving any
federal financial assistance, requires institutions of higher
education to address discrimination on the basis of sex. These
requirements have been applied to require universities to
investigate allegations of sexual misconduct involving students.
A student may bring a Title IX claim against a school for sexual
harassment by another student where the harassment “is so
severe, pervasive, and objectively offensive that it effectively bars
the victim’s access to an educational opportunity or benefit,” and
“the funding recipient acts with deliberate indifference to known
acts of harassment in its programs or activities.” (Davis v.
Monroe County Bd. of Ed. (1999) 526 U.S. 629, 633; accord,
Gebser v. Lago Vista Independent School Dist. (1998) 524 U.S.
274, 283 [“sexual harassment can constitute discrimination on
the basis of sex under Title IX”].) Sexual assault “qualifies as
being severe, pervasive, and objectively offensive sexual
harassment that could deprive [plaintiff] of access to educational
opportunities provided by her school.” (Soper ex rel. Soper v.
Hoben (6th Cir. 1999) 195 F.3d 845, 855; accord, Lopez v. Regents
2
investigator, who served as the investigator and adjudicator of
the complaint pursuant to USC’s administrative guidelines,
found by a preponderance of the evidence John knew or should
have known Jane was too drunk to consent to sexual activity. In
addition, Dr. Allee concluded even if Jane had consented to
vaginal sex, she had not consented to anal sex, as evidenced by
blood observed in her apartment on the mattress, sheets, and
carpeting later that day by Jane and another student.
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 what 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 to allow her
to observe the students during the interview. This was especially
important here where there were inconsistencies in the testimony
and a dispute over whether the substances observed in Jane’s
apartment after the sexual encounter were blood or paint from
the paint party. In addition, USC did not comply with its own
procedures to conduct a fair and thorough investigation by failing
of the University of California (N.D.Cal. 2013) 5 F. Supp. 3d 1106,
1124.)
3
to request that Jane provide her clothes from the morning of the
incident and her consent to release her medical records from the
rape treatment center.
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.3 While they were at Jane’s apartment, they each
had one beer and possibly shared a second beer. Each of them
had one shot of alcohol at the first party. They then went to
Sarah’s apartment around 9:30 p.m., and Jane and Sarah began
drinking honey whiskey shots. Sarah reported she and Jane may
have had three shots each while at Sarah’s apartment. Jane
stated she did not drink more than two or three shots. Around
10:00 p.m. Carter arrived at Sarah’s apartment, followed by
John. John was Carter’s friend from the same hometown.
Around 11:00 p.m. Emily joined the group.
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
3 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.
4
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 drunk” because she was having difficulty walking, “[s]he
was hanging on people a lot,” sat on a strange male’s lap, and was
waving her drink around. But she spoke in full sentences and did
not have slurred speech. He did not see Jane fall down, although
he only saw her “at random times.” Carter described himself and
Emily as being only “tipsy.”
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 down three times towards the end of the
party: first when she threw buckets of paint on other people;
then when she was dancing with a group; and a third time when
she was outside on the street curb with two female friends.
Jane also described herself as intoxicated and falling down.
She told Dr. Allee, “I lost complete control of that 3rd eye that I
5
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.”4 At
2:04 a.m. she added, “Blackout [¶] Vance helped.” Then at
2:40 a.m. she texted, “Sort of [¶] He seems okay with i[t] all. . . .”
Vance later told Jane he remembered another male was with
Jane and Sarah, but he did not know who it was.
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 group. 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.5
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.
4 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.
5 The record does not reflect when Austin left the group.
6
B. The Incident
Emily and Sarah arrived at Jane’s apartment about
3:30 a.m. on April 13, 2014.6 Emily opened Jane’s apartment
door without knocking.7 When Emily and Sarah walked into the
apartment, Jane and John were naked on the air mattress in the
living room. Emily stated John did not cover himself; he
remained on the air mattress completely naked. Sarah saw “two
dark figures” on the air mattress, but she did not know the
second person was John. The lights were off, and Sarah did not
see paint around the air mattress. When Emily asked to use
Jane’s computer, Jane became “frantic” and could not find the
computer, even though it was in plain view. After Emily picked
up the computer, Jane guided her out the front door. Emily
heard the door locking and assumed Jane locked the door because
she had led Emily out. Jane told Dr. Allee that John had said,
“Lock the door.” Emily and Sarah sat outside Jane’s apartment
door trying to use the computer. At 3:36 a.m. Emily sent a text
message to Jane saying they had left the computer outside Jane’s
apartment. Emily and Sarah returned to Emily’s apartment.
Jane described the sexual encounter to Dr. Allee: “I
blacked out. My friends came to my apartment and found me
having sex with John. I was nervous. Agitated, but I can’t
remember why. He was having sex with me but I wasn’t
responding back. He flipped me over and pushed my head down.
6 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.
7 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.
7
He entered me from behind. That was really painful! The only
thing I remember saying was ‘condom’ because I was probably
really nervous he wasn’t using one. Pain pulled me out of the
black out. I was in so much pain.” Jane added, “The most vivid
memory is the pain from the anal intercourse. I shouted from
[the] pain. I’m pretty sure it was loud. There was aggression to
make him stop.” After the encounter Jane went to her bedroom
to hide. According to Jane, John came in and told her, “I crossed
a boundary,” and left the apartment. Security footage from the
elevator showed John entering the elevator from Jane’s floor at
3:57 a.m.
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 of the flipping me over. Most of the memories
come from Emily. Sarah wasn’t unconscious but behaving very
strangely, which is why Emily was focused on her.”
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:8 “[Jane] was crying when
8 J.D. told 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.
8
I picked up and she disclosed she had had a very bad sexual
encounter and she wasn’t really sure how everything had
happened. She said that it hurt a lot and she was still in pain.
She kept apologizing through tears and I told her that she had
nothing to apologize for and there was nothing she had done
wrong. She had met him at the party and she couldn’t remember
his name. . . . They had walked in on [her] and the guy having
sex, but they didn’t realize what was going on and she couldn’t
communicate it. She couldn’t remember if she had verbally
consented to anything or not and I said it didn’t matter because
she was obviously intoxicated and she had told me that she even
threw up before he hooked up with her. She was disoriented and
panicked and was embarrassed because she couldn’t really
remember what happened between the party and her apartment
or how the guy had come back with them. She had made him
leave the apartment some period of time prior to the
conversation, and she said she was really scared and had locked
the door of her apartment.”
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 mattress and they were freaking her out but she
wasn’t sure what to do about them. This alarmed me for obvious
reasons and I believe it was at this point she disclosed to me that
they had had anal intercourse. She was still in some
discomfort. . . . Later, [Jane] called me in a panic saying that she
had found the guy’s wallet in her apartment and was really
9
scared he was going to come back for it and she wasn’t sure what
to do or whether to bring it to the rape clinic. We decided she
should take it.”
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 of rice in the kitchen. Jane told
Dr. Allee she was covered in blood in her rectal area and on her
thighs. She put on a maxi dress to cover the blood and paint, and
wiped the paint off her face before she went outside. Jane found
a condom with fluids and put it in a bag, but she was concerned it
might have belonged to Andrew. Jane put all the clothes she had
been wearing into another bag.
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
10
up that morning, he saw text messages from John saying he was
worried because Jane “was freaking out.”9 John called Carter
later that day while Carter was on his way home. Carter told
Dr. Allee, “[John] told me that they got back to her apartment.
They were making out and she was like ‘do you have a condom?’
He didn’t know it would go that far. He asked if it was okay and
she said, ‘don’t ask, just do it.’ They started having sex, and I
don’t know why John did this. She flipped over so he thought she
wanted to have anal sex. So he did and she flipped out like any
girl would. She threw stuff at him and was yelling. He asked me
what he did wrong and I said, ‘of course you did something very
wrong.’ . . . He asked permission. He’s very polite.”
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.
C. Jane’s Visit to the Rape Treatment Center
About 11:00 a.m. on April 13 two USC Department of
Public Safety (DPS) officers drove Jane to the Santa Monica-
UCLA Medical Center, Rape Treatment Center (rape treatment
center). Jane told the officers she had been sexually assaulted by
an acquaintance around 2:00 a.m. that day, and she had been
drinking. When two Los Angeles Police Department (LAPD)
officers arrived at the rape treatment center, Jane told them she
did not want to speak about the incident or make a report. Jane
9 Carter told Dr. Allee he no longer had the text messages
because he got a new cell phone.
11
was seen by a psychologist and a nurse practitioner. The center
obtained a SART kit10 from the examination, but Jane did not
want to release the kit to the LAPD 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,
10 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) 162
Cal. App. 4th 1457, 1463.)
12
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.’”
Jane told Dr. Allee, “After speaking to the counselor at the
Rape Treatment Center I knew there wasn’t enough evidence for
a criminal case and I just couldn’t look at the blood. Andrew
threw the bloody sheets and air mattress down the trash chute.
I’m pretty sure there is still a blood stain on the carpet. I’d look
the other way while he threw the bloody sheets and mattress
away. . . . Maybe it was a bad idea to throw away the bloody
sheets, but I knew I didn’t want to go through an 18 month
investigation or have my name out there.”
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 Affairs and Community Standards
(SJACS) stating John had sexually assaulted her in the early
morning of April 13, 2014.11 Dr. Allee interviewed Jane by Skype
11 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
13
about the incident. Jen was present as a support person and
advisor for Jane during the interview; she was not affiliated with
the USC community.
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,[12] etc.). [¶] . . . [¶] I do have one request for you.
Yesterday you mentioned that there is someone in [Los Angeles]
who can get into your apartment. Jody [Shipper][13] and I would
like to get into there early tomorrow morning, or as soon as
possible to take photographs. Is this something that can be
arranged?” In response, Jane wrote, “My mom is sending photos
that my godsister took when she was getting some of my
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 director. (Guidebook,
§§ 17.02.D, 17.06.A.) Sanctions can include “expulsion,
suspension, revocation of degree and revocation of admission.”
(Guidebook, § 17.06.B.)
12 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.
13 Shipper was the Title IX coordinator at USC.
14
belongings to send back. Since I was in and out of my apartment
and cleaned up some things (threw away all the sheets) there
would not be much to see, but the pictures should be sufficient.
[¶] The blood soaked through a little on the mattress pad and
there’s stains on the living room floor. [¶] If it’s absolutely
mandatory after you view the photos, I can discuss getting a key.”
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).14 The letter identified the
date of the incident (4/13/2014), stated the location (off campus),
and provided definitions for the alleged violations.
The second letter requested John and Jane refrain from
any contact with each other. In the third letter, USC placed John
on interim suspension because Jane’s complaint indicated John’s
14 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.”
15
behavior “created a clear and present danger to the safety and
well-being of the university community and members thereof.”15
Dr. Allee was the initial Title IX investigator before she
was replaced in May 2014 by Mirkovich, an outside attorney.16
Mirkovich interviewed Emily on May 21, Andrew on May 23, and
Sarah on June 4, 2014. The case was transferred back to
Dr. Allee on June 5, 2014. Dr. Allee did not reinterview Emily,
Andrew, or Sarah. Dr. Allee conducted telephone interviews of
J.D., Vance, and Carter17 on May 6, August 14, and August 19,
2014, respectively.
On May 30, 2014 John’s attorney sent an e-mail to
Mirkovich and Shipper requesting “all documents and relevant
15 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.
16 According to Shipper, Mirkovich was hired as a Title IX
investigator to handle overflow cases from her office.
17 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.
16
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.18
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. Dr. Allee
wrote in her notes from the call, “[Dr. Allee] believes that [John]
would like to do this testing on his own in order to better respond
18 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.”
17
to the allegations. Therefore the request is coming from John
Doe rather than from [Dr. Allee] or USC.”
John never received Jane’s medical report or other evidence
from the rape treatment center, or Jane’s clothing from the night
of the incident. John also requested, but did not receive Jen’s last
name.
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.19 Dr. Allee
also wrote to Jane, “Is there a good time to speak with you
tomorrow? I just have a quick question that would be better
discussed on the phone.”
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
19 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.
18
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,20 the DPS and LAPD reports, and the
verification of services letter from the rape treatment center.
Dr. Allee summarized the witness statements and found John
violated the student conduct code.
Dr. Allee concluded, “After a thorough, neutral and
impartial investigation, I find Mr. Doe responsible for violating
the student code of conduct. This decision was reached after a
thorough review of all of the relevant evidence, as noted above. I
find it more likely than not that Mr. Doe knew or should have
known, regardless of his own intoxication, that the complainant
was too drunk to consent to sexual activity. Based on witness
statements, Mr. Doe was around the complainant at the party
and left the party with the complainant and her friends. I find it
more likely than not that he would have seen her having
difficulty walking and possibly falling down, especially given
[Carter’s] statement that she was hanging on [Mr. Doe] after they
left the party. Careful observation of the elevator footage also
reveals that the complainant pressed the wrong button in the
20 In response to our request, on October 4, 2018 USC lodged
the color photographs submitted by Jane and the security camera
footage from the elevator, which were part of the administrative
record.
19
elevator (on the wrong column of buttons, not simply the one
above or below), and that she seemed confused (looking around
on each floor as doors opened for other residents and appears to
start to exit three times before finding her floor). The
complainant also vomited rice in the kitchen before the alleged
assault occurred, and the vomit was visible when [Andrew]
walked into the apartment the next day (and therefore [Mr. Doe]
would more than likely have known she vomited). Although the
video footage shows the complainant walking on her own and
interacting with other people in the elevator, I find it more likely
than not that [Mr. Doe] would have seen her having difficulty
walking, pressing the wrong elevator buttons, and vomit, clear
indicators that she was too intoxicated to consent.[21] Therefore,
even if she did appear to consent to vaginal sex, she was too
incapacitated to understand who, what, where, when, and why
21 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.”
20
and thus could not properly consent (the university defines
sexual assault as any physical sexual act perpetrated upon a
person . . . where the ability to give or withhold consent is
impaired due to the influence of alcohol or other drugs).
Furthermore, she did not consent to anal sex. Moreover, the
evidence provided demonstrates that the complainant acted in
ways consistent with the belief that she had been sexually
assaulted, and that this behavior occurred immediately after the
incident. Mr. Doe also apologized twice, once verbally and again
in a text message, noting that he ‘had no right to do what (he)
did.’” (Fn. omitted.)
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 blue (in the order of prominence).”
Dr. Allee stated, “Mr. Doe has made no statements on his own
behalf, but presumably the photographs were offered to
demonstrate that there was paint on the sheets and mattress,
and that the pools of red and streaks of red seen on the carpet
and mattress the next day were not blood. Although it is possible
that some of the red substance on the sheets, air mattress, and
carpet was paint, the complainant and [Andrew] specifically
described blood. However there was no yellow or blue, only red,
and red was also seen as being a larger pool, which is
inconsistent with leftover dried paint transferred from clothing
and skin several hours later. Furthermore, the complainant
reported ‘I realized I was covered in blood in my rectum area and
on my thighs. I put on a maxi dress to cover the blood and paint.’
This statement indicates she made a distinction between the
blood and the paint. [Andrew] said there were puddles of blood
on the air mattress, ‘a lot of blood’ on the sheet, and that there
was blood on the carpet—which he stated does not show on the
21
photo. He described it as ‘very bloody.’ He also did not describe
yellow or blue, or the other paint colors that would also have
transferred.”
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).22 John
22 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 documentary 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:
22
contended he was not provided a fair hearing, the findings did
not support the decision, exculpatory evidence was destroyed or
not made available, Dr. Allee failed to follow USC rules and
regulations in her investigation, and the sanction imposed was
excessive. Jane responded to John’s appeal, stating there was no
new evidence, John had provided “a rather distorted view of the
facts that do exist,” and John “does not explain how the damage
done to my body demonstrates consent; he simply fails to discuss
it at all.”
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
“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.)
23
informed John that Carry had approved the Appeals Panel
decision, which became final.
H. The Trial Court Writ Proceeding
On January 22, 2015 John filed an amended petition for a
writ of administrative mandamus under Code of Civil
Procedure23 section 1094.5, raising procedural and substantive
challenges.24 In his opening brief John argued he was denied fair
process and USC’s findings were not supported by substantial
evidence. John contended the investigation was unfair because
“USC failed to provide exculpatory evidence of Ms. Roe’s [rape
treatment center] report, clothing from the date of the alleged
incident, and the condom(s) that were found in her apartment.”
John also argued he was not provided an “impartial hearing
panel or truly independent adjudicator.” In addition, “Dr. Allee
failed to conduct independent interviews” of Emily, Sarah, and
Andrew; instead, she relied on Mirkovich’s interview summaries.
John contended “USC deprived [him] of his right to cross-
examine witnesses, and instead relied on Dr. Allee to conduct her
self-proclaimed thorough and impartial investigation. Dr. Allee
failed to examine witnesses on weaknesses in their stories and
fill in gaps in other witnesses’ stories.” John also argued USC
failed to provide Jen’s last name or identify the members of the
23 Further undesignated statutory references are to the Code
of Civil Procedure.
24 As we noted in Doe v. University of Southern California
(2018) 28 Cal.App.5th 26, “The remedy of administrative
mandamus is available to review adjudicatory decisions of private
organizations, including universities.” (Id. at p. 31, fn. 9; accord,
Doe v. University of Southern California (2016) 246 Cal. App. 4th
221, 237 & fn. 9.)
24
Appeals Panel. Finally, John challenged the selective
enforcement of the unauthorized alcohol use provision of the
student conduct code because Jane was not disciplined for
violating it.
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 fair 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)
248 Cal. App. 2d 867].”
The trial court rejected John’s contention that due process
entitled him to cross-examination of witnesses and to learn the
25
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 that right. The trial court
concluded that in the absence of evidence rebutting the
presumption that a hearing officer is “an impartial arbiter,” there
was “nothing per se improper with Dr. Allee’s role as both an
investigator and adjudicator.” The court rejected John’s
contention he had a right to Jane’s medical records from the rape
treatment center, Jane’s clothing, or the condom, stating that
John “provides no authority for the proposition that [USC], a
private institution conducting a non-criminal disciplinary
proceeding, is required to provide him with ‘exculpatory’ evidence
that is protected by both federal medical privacy laws and the
official information privilege.”
The trial court entered judgment denying John’s writ
petition on February 29, 2016. John timely appealed.
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) 47 Cal. 4th
598, 603; Franz v. Board of Medical Quality Assurance (1982)
31 Cal. 3d 124, 143 [petitioner forfeited contention he was denied
a fair hearing because of a panel member’s bias where he did not
raise this issue before the agency or the trial court].) “‘“This rule
is based on fairness—it would be unfair, both to the trial court
and the opposing litigants, to permit a change of theory on
26
appeal . . . .”’” (American Indian Health & Services Corp. v. Kent
(2018) 24 Cal.App.5th 772, 789; accord, C9 Ventures v. SVC-West,
L.P. (2012) 202 Cal. App. 4th 1483, 1492 [“opposing party should
not be required to defend for the first time on appeal against a
new theory”].) Nevertheless, an appellate court has discretion to
consider an issue for the first time on appeal “‘where the relevant
facts are undisputed and could not have been altered by the
presentation of additional evidence.’” (American Indian Health &
Services Corp. v. Kent, at p. 789; accord, C9 Ventures v. SVC-
West, L.P., at p. 1492.)
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, 24 Cal.App.5th at p. 789.)
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,
28 Cal.App.5th at p. 34; accord, Doe v. Regents of University of
California (2018) 28 Cal.App.5th 44, 55 (UC Santa Barbara); Doe
v. Regents of University of California (2016) 5 Cal.App.5th 1055,
1072 (UC San Diego).) “Abuse of discretion is established if the
respondent has not proceeded in the manner required by law, the
27
order or decision is not supported by the findings, or the findings
are not supported by the evidence.” (§ 1094.5, subd. (b).)
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) 25 Cal.App.5th 1055, 1065 (Claremont McKenna);
Doe v. University of Southern California (2016) 246 Cal. App. 4th
221, 239 (University of Southern California).) We review USC’s
findings for substantial evidence in light of the whole record.
(§ 1094.5, subd. (c) [“abuse of discretion is established if the court
determines that the findings are not supported by substantial
evidence in the light of the whole record”]; UC Santa Barbara,
supra, 28 Cal.App.5th at p. 56; UC San Diego, supra,
5 Cal.App.5th at p. 1073.) However, we review the fairness of the
administrative proceeding de novo. (UC Santa Barbara, at p. 56;
Claremont McKenna, at p. 1065; UC San Diego, at p. 1073.)
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, supra, 25 Cal.App.5th at p. 1066;
UC San Diego, supra, 5 Cal.App.5th at pp. 1077-1078.) “With
respect to student discipline, ‘[t]he student’s interest is to avoid
unfair or mistaken exclusion from the educational process, with
all its unfortunate consequences. . . . Disciplinarians, although
proceeding in utmost good faith, frequently act on the reports and
advice of others; and the controlling facts and the nature of the
conduct under challenge are often disputed. The risk of error is
28
not at all trivial, and it should be guarded against if that may be
done without prohibitive cost or interference with the educational
process.’” (University of Southern California, supra,
246 Cal.App.4th at p. 240, quoting Goss v. Lopez (1975) 419 U.S.
565, 579-580 (Goss); accord, Claremont McKenna, at p. 1066;
UC San Diego, at p. 1077.) But courts also acknowledge that
“‘“[a] formalized hearing process would divert both resources and
attention from a university’s main calling, that is education.”’”
(Claremont McKenna, at p. 1066, quoting UC San Diego, at
p. 1078.) Moreover, “[d]isciplinary proceedings involving sexual
misconduct must also account for the well-being of the alleged
victim, who often ‘live[s], work[s], and stud[ies] on a shared
college campus’ with the alleged perpetrator.” (Claremont
McKenna, at p. 1066, quoting University of Southern California,
at p. 245.)
“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, 28 Cal.App.5th
at p. 56; see Goss, supra, 419 U.S. 565 at pp. 579, 581 [public high
school students facing suspension “must be given some kind of
notice and afforded some kind of hearing” under due process
clause].) “[A] student disciplinary proceeding at a university does
not provide the same due process protections afforded to a
defendant in a criminal trial.” (UC San Diego, supra,
5 Cal.App.5th at p. 1078; accord, Goldberg v. Regents of
University of California, supra, 248 Cal.App.2d at p. 881
(Goldberg) [“procedures for dismissing college students were not
analogous to criminal proceedings”].) “However, ‘to comport with
due process,’ the university’s procedures must ‘“be tailored, in
light of the decision to be made, to ‘the capacities and
29
circumstances of those who are to be heard,’ [citation] . . . to
insure that they are given a meaningful opportunity to present
their case.”’” (UC San Diego, at p. 1078.)25
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.26 We agree.
25 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, supra,
25 Cal.App.5th at p. 1067, fn. 8; accord, University of Southern
California, supra, 246 Cal.App.4th at p. 245.) However, it is not
the case that “the fair hearing requirements under section 1094.5
are in all ways equivalent to those under the federal and
California Constitutions . . . .” (Claremont McKenna, at p. 1067,
fn. 8.) As in Claremont McKenna, we need not address the
differences between the requirements for disciplinary proceedings
at public and private universities because we conclude the
process here did not provide John a fair hearing under section
1094.5.
26 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
30
As our colleagues in Division One concluded in Claremont
McKenna, “where the accused student faces a severe penalty and
the school’s determination turns on the complaining witness’s
credibility . . . the complaining witness must be before the finder
of fact either physically or through videoconference or like
technology to enable the finder of fact to assess the complaining
witness’s credibility in responding to its own questions or those
proposed by the accused student.” (Claremont McKenna, supra,
25 Cal.App.5th at p. 1070; accord, Doe v. Baum (6th Cir. 2018)
903 F.3d 575, 581-582 (Baum) [“if a university is faced with
competing narratives about potential misconduct,” some form of
in-person questioning is required to enable “the fact-finder [to]
observe the witness’s demeanor under that questioning”]; Doe v.
University of Cincinnati (6th Cir. 2017) 872 F.3d 393, 401
(Cincinnati) [“[T]he opportunity to question a witness and
observe her demeanor while being questioned can be just as
important to the trier of fact as it is to the accused.”].)27
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.
27 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, 5 Cal.App.5th at p. 1085; University of
Southern California, supra, 246 Cal.App.4th at p. 245.) On
September 22, 2017 OCR withdrew its 2011 Dear Colleague
letter and initiated a rulemaking process with public comment.
(OCR, Dear Colleague Letter (Sept. 22, 2017) 41 Cal. 4th 1337, in invalidating a local court rule
and trial scheduling order requiring parties in contested marital
dissolution trials to rely on written declarations instead of live
testimony, “Oral testimony of witnesses given in the presence of
the trier of fact is valued for its probative worth on the issue of
credibility, because such testimony affords the trier of fact an
opportunity to observe the demeanor of witnesses.” (Id. at
p. 1358.)
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
was central to the university’s determination. (Claremont
McKenna, supra, 25 Cal.App.5th at p. 1070; Cincinnati, supra,
872 F.3d at p. 401.)
In Baum, the Sixth Circuit extended this analysis to
questioning of witnesses other than the complainant where the
201709.pdf> [as of Dec. 7, 2018].) On November 15, 2018 OCR
proposed regulations modifying the minimum standards for a
Title IX investigation into alleged sexual misconduct. (OCR,
Title IX of the Education Amendments of 1972 Notice of Proposed
Rulemaking [as of Dec. 7, 2018] (Proposed Regulations).) Under
the Proposed Regulations, an investigator could not serve as the
adjudicator, universities would be required to hold a live hearing,
and the complainant and accused student would have an
opportunity for the student’s “advisor” to cross-examine the
complainant and all witnesses in person or through a
technological substitute. (Proposed Regulations, § 106.45, subd.
(b)(3), (4).)
32
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,
25 Cal.App.5th at p. 1070; Baum, supra, 903 F.3d at p. 581;
Cincinnati, supra, 872 F.3d at p. 402.) This will typically be the
case in disciplinary proceedings involving sexual misconduct
where there is no corroborating physical evidence to assist the
adjudicator in resolving conflicting accounts.28
In Claremont McKenna, the parties were the only witnesses
to the incident, and without the complaining witness’s statement,
28 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.
33
there was no corroborating evidence she did not consent to have
sex with the accused student. (Claremont McKenna, supra,
25 Cal.App.5th at p. 1070.) On these facts, Division One reversed
the trial court’s denial of the accused student’s petition for a writ
of administrative mandate, concluding fairness required all three
members of the adjudicatory committee hear the complaining
witness’s account of the incident before they decided to believe
her account over that of the accused student. (Id. at pp. 1072-
1073.)
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 observed, “Given the parties’ competing
claims, and the lack of corroborative evidence to support or refute
[the complainant’s] allegations, the present case left the [review]
panel with ‘a choice between believing an accuser and an
accused.’ [Citation.] Yet, the panel resolved this ‘problem of
credibility’ without assessing [the complainant’s] credibility.
[Citation.] In fact, it decided [the accused student’s] fate without
seeing or hearing from [the complainant] at all. That is
disturbing and, in this case, a denial of due process.” (Id. at
p. 402.) In Baum, the complainant and accused student provided
different accounts as to whether the complainant was too
intoxicated the evening of the incident to have the capacity to
consent to sex. (Baum, supra, 903 F.3d at pp. 578-579.) The
investigator interviewed 23 witnesses: the female witnesses
corroborated the complainant’s story; the male witnesses
34
corroborated the accused student’s story. (Id. at p. 579.) The
Sixth Circuit concluded the trial court erred in dismissing the
accused student’s due process claim, finding there was a
“significant risk” the university denied him due process by
relying on witness statements instead of live testimony where the
university’s determination turned on the credibility of the
complainant, the accused student, and the witnesses. (Id. at
pp. 581-582, 585.)
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.29 Although Jane
reported she blacked out after the paint party and spoke with
Emily, Sarah, and Andrew to reconstruct what happened
between 2:00 a.m. and 4:00 a.m. when the incident occurred,
Dr. Allee did not interview these critical witnesses, and instead
relied on Mirkovich’s summaries.
29 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 (1974) 421 U.S.
35, 58; accord, Griggs v. Board of Trustees (1964) 61 Cal. 2d 93, 98
[“the combination of adjudicating functions with prosecuting or
investigating functions will ordinarily not constitute a denial of
due process”]; Southern Cal. Underground Contractors, Inc. v.
City of San Diego (2003) 108 Cal. App. 4th 533, 548-549 [rejecting
contention that hearing was not before impartial tribunal
because city was both prosecutor and adjudicator]; Hongsathavij
v. Queen of Angels etc. Medical Center (1998) 62 Cal. App. 4th
1123, 1142 [“[o]verlapping investigatory, prosecutorial and
adjudicatory functions do not necessarily deny a fair hearing and
are common before most administrative boards”].)
35
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 were 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 five or 10 minutes, and did not recall seeing
blood or paint on the floor or mattress. Dr. Allee found Sarah’s
statement about the apartment and the absence of blood were not
“sufficiently reliable,” although she never interviewed Sarah to
inquire about any inconsistencies in her statement or to assess
her demeanor.30
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.”
30 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.
36
Emily’s statements were also central because 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.31
There is no question that expulsion from the university was
a severe sanction. Given the conflicting witness statements and
lack of corroborating evidence, a fair hearing required Dr. Allee
31 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.”
37
as the adjudicator to assess personally the credibility of critical
witnesses, including Sarah, Emily, and Andrew, in person or by
videoconference or other technological means, which would have
provided Dr. Allee an opportunity to observe the witnesses’
demeanor during the interview.32
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.33 (UC Santa Barbara,
32 At many universities, a hearing is provided at which an
adjudicative panel considers the testimony of the parties and
other witnesses. (See, e.g., UC Santa Barbara, supra,
28 Cal.App.5th at pp. 49-52, 57 [two-member committee hears
testimony from parties and other witnesses at hearing];
Claremont McKenna, supra, 25 Cal.App.5th at pp. 1062-1064
[three-member committee comprised of investigator and two
faculty or staff members holds hearing at which parties may
make oral statements]; UC San Diego, supra, 5 Cal.App.5th at
pp. 1080-1081 [three-member panel holds hearing with testimony
from parties and witnesses; parties may propose written
questions to ask parties and witnesses].) Where the
determination of sexual misconduct by the adjudicators turns on
witness credibility, the hearing panel likewise would need to
ensure the panel has an opportunity to assess the credibility of
critical witnesses in person or by videoconference.
33 Under USC’s procedures, the accused student does not
have “the right to confront accusers.” (Guidebook, § 17.03.)
38
supra, 28 Cal.App.5th at p. 60 [accused student was deprived of
right to cross-examine complainant and to present his defense
where committee allowed her to refuse to answer questions about
the side effects of an antidepressant medication she was taking at
the time of the alleged sexual assault on privacy grounds];
Claremont McKenna, supra, 25 Cal.App.5th at p. 1057 [college
should have required complainant to appear at hearing in person
or by videoconference to allow “the Committee[] [to ask] her
appropriate questions proposed by John or the Committee itself”];
Cincinnati, supra, 872 F.3d at p. 406 [accused student had a right
to question the complainant through the review committee where
the committee had to decide whether to believe the complainant
or accused student].)34
USC’s procedures do not provide an accused student the
right to submit a list of questions to ask the complainant, nor was
John given that opportunity here.35 If USC proceeds with a new
Thus, consistent with California law, John did not have a right
directly to question Jane or the other witnesses. (See UC San
Diego, supra, 5 Cal.App.5th at p. 1084 [“There is no requirement
under California law that, in an administrative hearing, an
accused is entitled to cross-examine witnesses.”]; University of
Southern California, supra, 246 Cal.App.4th at p. 245
[“‘[A]lthough we recognize the value of cross-examination as a
means of uncovering the truth [citation], we reject the notion that
as a matter of law every administrative appeal . . . must afford
the [accused] an opportunity to confront and cross-examine
witnesses.’”].)
34 On appeal, John does not address the right to 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.
35 Under USC’s procedures, the complainant and accused
students have certain procedural rights, including: “A. Written
39
disciplinary proceeding, it should afford John an opportunity to
submit a list of questions to ask Jane.36
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, 246 Cal.App.4th at p. 239; accord,
UC San Diego, supra, 5 Cal.App.5th at p. 1073.) John contends
USC violated its own procedures by failing to conduct “[a] fair,
thorough, neutral and impartial investigation of the incident.”
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.
36 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, supra, 903 F.3d
at p. 582 [accused student’s inability to cross-examine
complainant or her witnesses posed “a significant risk that the
university erroneously deprived [accused student] of his protected
interests”].)
40
(Guidebook, § 17.03.D.) Among other arguments, John contends
USC failed to obtain Jane’s clothes from the night of the party or
her medical records from the rape treatment center to help
resolve the conflict over whether substances on Jane’s body and
in her apartment were red paint or blood.37 We agree USC
violated its own procedures by failing to request that Jane provide
her clothes or consent to release her medical records.
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 Dr. Allee did not request Jane
provide her clothes as part of the investigation. Rather, she only
informed Jane that John had requested Jane’s clothes (and the
condom Jane found in the apartment) because John wanted “to
do [independent] testing on his own in order to better respond to
the allegations.” Further, by emphasizing “the request [was]
coming from John Doe rather than from [Dr. Allee] or USC,” this
made it easier for Jane to ignore the request, hampering John’s
ability to defend himself. (See UC Santa Barbara, supra,
37 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.
41
28 Cal.App.5th at p. 60 [by allowing complainant to decline to
answer accused student’s questions because it was her “‘private
medical information,’” the committee “impeded his ability to
present relevant evidence in support of his defense”].)
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, subpoena, or summons
signed by a judicial officer; a grand jury subpoena; or an
administrative subpoena, summons, or investigative demand
from law enforcement. (45 C.F.R. § 164.512(e)(1)(i) & (f)(1)(ii).)
Because none of the exceptions applies here, USC would need
Jane’s written authorization to obtain her medical records from
42
the rape treatment center. (45 C.F.R. § 164.508.)38 But this does
not mean USC was excused from requesting that Jane provide
consent to the release of her medical records, which she may well
have given in this case (subject to confidentiality protections).39
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.
FEUER, J.
WE CONCUR:
PERLUSS, P. J.
ZELON, J.
38 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);
34 C.F.R. § 99.30.)
39 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.
43