Doe v. University of Southern California , 200 Cal. Rptr. 3d 851 ( 2016 )

Filed 4/5/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JOHN DOE, B262917
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS148077)
v.
UNIVERSITY OF SOUTHERN
CALIFORNIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert
H. O‟Brien, Judge. Affirmed in part. Reversed and remanded in part.
Scheper Kim & Harris, David C. Scheper, Marc S. Harris and Amos A. Lowder
for Plaintiff and Appellant.
Paul Hastings, J. Al Latham Jr., and Felicia A. Davis for Defendant and Appellant.
INTRODUCTION
University of Southern California (USC) found that student “John Doe”1 violated
USC‟s student conduct code as a result of his participation in a group sexual encounter at
a fraternity party. Another student, “Jane,” alleged she had been sexually assaulted by a
group of men at the party. She reported that her sexual contact with John was
consensual, but certain contact with the other men was not. USC‟s office of Student
Judicial Affairs and Community Standards (SJACS) investigated Jane‟s allegation and
found that John violated nine sections of the student conduct code, including the section
prohibiting sexual assault. John appealed to USC‟s Student Behavior Appeals Panel
(Appeals Panel), which found that there was insufficient evidence of any sexual assault.
The Appeals Panel nonetheless held that John violated two sections of the student
conduct code: He “encouraged or permitted” other students to slap Jane on the buttocks
during the sexual activity, which the parties agree was not consensual, in violation of
Student Conduct Code section 11.44C (section 11.44C), and he endangered Jane by
leaving her alone in the bedroom when the involved parties dispersed in violation of
Student Conduct Code section 11.32 (section 11.32).
John petitioned for a writ of mandate in the superior court, arguing that he was not
afforded a fair hearing and that there was insufficient evidence to support the Appeals
Panel‟s finding that he violated the Student Conduct Code. The court rejected John‟s fair
hearing challenge. It also held that there was substantial evidence to support the Appeals
Panel‟s finding that John violated section 11.44C by encouraging and permitting the
other students‟ behavior, but that there was not sufficient evidence to support the finding
that John violated section 11.32 by endangering Jane.
John appeals on both procedural and substantive grounds. USC cross-appeals the
trial court‟s ruling granting John‟s petition as to section 11.32.
1
The names of appellant and all students involved have been changed or
abbreviated in this opinion, as they were in the trial court below.
2
John argues that he was denied a fair hearing. We agree. Although SJACS gave
John a list of Student Conduct Code sections he allegedly violated, SJACS did not
provide John with any notice of the factual basis for these charges. The SJACS
investigation and report focused on alleged sexual assault and whether Jane consented to
sexual contact. The Appeals Panel, on the other hand, suspended John for encouraging
other students to slap Jane and for endangering Jane after all sexual contact had ended.
Because John never received notice of the factual basis of the allegations and the SJACS
investigation focused on Jane‟s consent to sexual activity, John was not afforded an
adequate opportunity to defend his actions relating to the slaps or leaving the bedroom.
USC therefore failed to provide John fair notice of the allegations that resulted in
suspension, or an adequate hearing on those allegations.
John also argues there was insufficient evidence to support the Appeals Panel‟s
finding that he violated section 11.44C. USC argues on cross-appeal that the Appeals
Panel‟s finding that John violated section 11.32 should be reinstated; John argues there is
insufficient evidence of this violation as well. We agree with John that the evidence does
not support the Appeals Panel‟s findings as to either violation. There is no substantial
evidence that John encouraged or permitted other students to slap Jane on the buttocks in
violation of section 11.44C, because the evidence does not demonstrate that John knew
they would slap Jane nor that John was in a position to prevent them from doing so.
There is also no evidence to support a violation of section 11.32, because the Appeals
Panel‟s finding that John endangered Jane by leaving the bedroom contradicts both
John‟s and Jane‟s recollection of relevant events. The trial court‟s judgment is therefore
affirmed in part and reversed in part.
FACTUAL AND PROCEDURAL BACKGROUND
A. The incident
The following facts are taken from the administrative record. The basic facts are
undisputed, although there are some inconsistencies in the details. Relevant factual
discrepancies are discussed in the following section relating to the investigation.
3
Jane, who was a student and athlete at USC, and a group of her friends attended a
fraternity party in January 2013 at a large, off-campus house in the hills near Los
Angeles. Jane and her friends caught a bus from the fraternity house to the party
location. John, a member of the USC football team, was on the same bus. Also attending
the party were two male students from an out-of-state university, “Student 1” and
“Student 2,” who were friends of John‟s teammate.
At some point in the evening Jane began to dance, and John began dancing with
her. John said that he and Student 1 were both dancing with Jane, “sandwiching” her
between them. When asked about this, Jane did not remember whether it had occurred.2
After dancing together for a few minutes, John pushed Jane onto a couch and gave her a
provocative “lap dance,” which John characterized as “flirtatious” and “silly,” and Jane
characterized as somewhat “uncomfortable” because people were watching. After the
dance, John, Jane, and Student 1 went to a bedroom together. John had vaginal
intercourse with Jane while Jane performed oral sex on Student 1. During the sexual
activity, John and Student 1 made comments to each other about Jane‟s body. All parties
agree that the entirety of this encounter was consensual. Jane returned to her group of
friends and told them she had sex with John; she seemed happy and excited about it.
Approximately 45 minutes later, Jane and John returned to the bedroom a second
time. There were multiple men in the room, and people were continually entering and
exiting the room. Jane could not remember if she had vaginal intercourse with John
again. She performed oral sex on John for about 15-30 seconds while lying on her
stomach and elbows. As she did this, Jane was either completely undressed or her dress
was pulled up over her hips. Someone behind Jane pulled her to her knees, and she felt
her vagina being penetrated intermittently with penises and fingers.
2
Both Jane and John consumed alcohol that night, but at no point was either of
them incoherent or passed out. Jane repeatedly told investigators that her memory was
“blurry,” “foggy,” and “patchy” as a result of her alcohol consumption. The parties‟
ability to consent as a result of intoxication is not at issue in this appeal.
4
At some point during this encounter, the other men present in the room—not
including John—exceeded the scope of Jane‟s consent. One man began getting rough
and hurting Jane by “forcefully finger[ing]” her. The men were also talking to each other
about Jane. Jane recognized the voice of Student 1 saying, “How do you like that?” as
she was being penetrated roughly. John was also saying “dirty things” about Jane and
making “comments about my body.” Jane perceived these comments as degrading and
demoralizing. Student 1 slapped Jane hard on the buttocks. Someone else, possibly
Student 2, slapped Jane again.
This interaction lasted for one to two minutes. Jane did not say anything to John
or the other men, nor did she ask them to stop.3 Jane told interviewers that when the men
“got rough” she thought she might cry; despite trying not to, she did begin to cry. John
said out loud, “Is she crying?” and “I can‟t believe she‟s crying.” Jane perceived his
statements as mocking or ridiculing rather than compassionate.
All physical contact ceased “immediately” or “instantly” upon John‟s observation
that Jane was upset and crying. John pulled away from Jane and according to Jane he
“jumped, like not jumped up, but sped off the bed.” Once John got up, John and the other
men dressed and left the room within 20 seconds. John estimated that the entire second
encounter in the bedroom lasted five minutes or less. Jane‟s friend witnessed Jane
emerge from the bedroom; Jane was crying and clearly upset.
After the students returned to campus, John approached Jane and apologized for
the other men, saying “I don‟t know why they smacked you.” Later, Jane texted to John,
“Thanks for a good night. Your friends suck though.” A week or two later, Jane
approached John at another party and tried to dance with him or talk to him; she thought
she might “still have a chance with him.” John either ignored Jane or declined to dance
with her.
3
We recognize that Jane‟s lack of verbalization at the time was not an indication
of Jane‟s consent. Given the posture of the case before us, however, this fact is relevant
to what John knew about Jane‟s situation, when he knew it, and how he acted upon that
knowledge.
5
B. The investigation
The incident happened in January 2013. Jane reported it to SJACS in August
2013.4 She told SJACS representatives that in mid-February her athletic coach suggested
that she had confidence issues, and therefore recommended that she see an athletics
counselor. When the counselor asked Jane if she had ever been sexually assaulted, “it
dawned on me and I connected it.” She then reported to the counselor that she was
assaulted by John and several other men at the party. She told her parents about the
incident in July of that year, and reported the incident to the school in August.
The progression of the investigation, as included in the administrative record, is
set forth sequentially below. The administrative record contains written reports detailing
four interviews with Jane, two interviews with John, and interviews with several
additional witnesses.5 The interview reports do not contain recordings or transcripts.
The interviews were conducted by USC employees who were a part of SJACS and other
USC administrative bodies. The main investigator was Donna Turner, Assistant Director
of SJACS, who was present each of Jane‟s and John‟s interviews; each interview
included a second USC representative as well.
Turner and La Shonda Blunt Coleman, who is identified as the Director of the
Center for Women and Men, first interviewed Jane on August 30, 2013. Jane reported
that her memories of the night were foggy as a result of her intoxication. She said her
memory of the first and second encounter blurred together. She told investigators about
the lap dance, and said that her memory began to get “jumbled” starting from the first
time she went into the bedroom with John and Student 1. She said she was “more drunk”
the second time they went to the bedroom. She knew other men were in the room at the
time, but she thought John would kick them out. Jane reported that she did not consent to
4
The role of SJACS is not entirely clear in the record on appeal. It appears that
SJACS receives reports of misconduct, investigates the alleged incident, determines
whether discipline is warranted, and either recommends or directly imposes disciplinary
action.
5
A number of interviews with fraternity representatives and other witnesses who
had no knowledge of the events concerning Jane and John are not discussed here.
6
sexual activity with anyone other than John the second time they were in the bedroom
together.
The interview notes reflect Jane‟s statement that during the second encounter,
“„One guy starts to forcefully finger me.‟ She recognized the voice as that of [John‟s]
friend from the first incident. He was saying „How do you like that‟ and making other
comments in a degrading and demoralizing manner.” The interview notes say that John
was also “„saying stuff; dirty things about me,‟” and John and the other men were
“prompting and urging each other on in the activity.” Jane did not verbalize anything
when the other men began to touch her, but the men were hurting her. Importantly, Jane
did not mention anything about being slapped in this interview.
The interview notes state, “She was being hurt and started crying.” As soon as
John observed out loud that Jane was crying, John and the other men stopped, quickly
dressed, and left the room within 20 seconds, leaving Jane on the bed. One man who was
not involved in the incident remained in the room. Jane said she crawled off the bed,
found her clothes, and went into the bathroom attached to the bedroom to “pull[ ] herself
together” before leaving the room.
On September 4, USC sent a letter to John stating, “A report has been received in
this office that you allegedly have violated the University Student Conduct Code.” It
included the date of the incident, and the location as an off-campus fraternity event. The
letter set out eleven different sections of the Student Conduct Code that John allegedly
violated:
Section 11.32: “Conducting oneself in a manner that endangers the health or
safety of oneself, other members or visitors within the university community or at
university sponsored or related events.”
Section 11.36A: “Causing physical harm to any person in the university
community or at university-sponsored activities.”
Section 11.36B: “Causing reasonable apprehension of harm to any person in the
university community or at university-sponsored activities.”
7
Section 11.38: “Behavior which disrupts or interferes with normal university or
university-sponsored activities . . . .”
Section 11.40: “Unauthorized use, possession or dissemination of alcohol in the
university community or at university-sponsored activities.”
Section 11.44A: “Engaging in disruptive or disorderly conduct in the university
community or at university-sponsored activities.”
Section 11.44B: “Engaging in a [sic] lewd, indecent or obscene behavior in the
university community or at university-sponsored activities.”
Section 11.44C: “Encouraging or permitting others to engage in misconduct
prohibited within the university community. Failing to confront and prevent the
misconduct, notify an appropriate university official of the misconduct, or remove
oneself from the situation.”
Section 11.53A: “Engaging 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 11.53B: “Non-consensual actual or attempted intercourse, sexual
touching, fondling and/or groping.”
Section 11.53C: “A sexual assault is classified as rape when vaginal, anal, or oral
penetration takes place without the consent of the person penetrated.”
The September 4 letter included no factual information about the incident that led
to the alleged violations. The only hint that the accusation involved John‟s contact with
Jane is that the letter instructed John to refrain from contacting or communicating with
Jane. The letter also stated, “If you wish to inspect the report cited in this letter, you must
make a written request to do so 24 hours in advance of the day you wish to review the
report.” It went on to say, “A summary of the procedures for this process is enclosed.”
No summary of procedures is included with the letter in the record on appeal.
On September 5, Blunt Coleman signed a single-page form titled “Report of
Alleged Violations to the USC Student Conduct Code.” It stated that the named student
8
(John) was aware of the report. It included Jane‟s name as the “individual affected,” but
contained no information about the nature of the alleged violations.
On September 6, SJACS interviewers met with “B,” one of Jane‟s friends who
attended the party. B reported that she and other friends were in the hallway of the house
when she saw Jane in a bedroom with multiple men. They asked if she was okay, Jane
said she was fine, and someone closed the bedroom door. The friends later witnessed
Jane emerge from the bedroom upset. Jane told B that at least one person other than John
had sex with her. On September 10, SJACS interviewers met with “S,” another of Jane‟s
friends who attended the party. S saw Jane go into the bedroom with John and “2-3 other
guys.” The interview notes state, “[Jane] told [S], „I‟m OK‟ and told them to go, so they
left.” S did not witness Jane emerge from the room, but later witnessed Jane crying on a
couch in the hallway. Jane never told S what happened.
On September 16, Turner of SJACS interviewed Jane a second time. Blunt
Coleman was present, and is identified as Jane‟s advocate. The facts Jane relayed were
largely consistent with her first interview. The interview notes say that after John asked
if she was crying, “[t]he men stopped immediately, they dressed and they all left.” Jane
reiterated that her memory of the night was “spotty” as a result of her intoxication. Jane
also said the alcohol affected her judgment; had she been sober, she would not have
“gone in a room with a bunch of guys.” Again, Jane mentioned nothing about being
slapped.
On September 17, SJACS interviewers met with John for the first time. The
interview notes state that “RTR[6] explained the Student Conduct Code Review Process,
confirmed student‟s receipt of written notice of allegations, SJACS hearing officers [sic]
role as non-biased third party to review information, standard of proof used to decide
cases. . . . RTR explained the rights of both parties to submit and review information I
[sic] the case. . . . RTR explained that both parties have a right to inspect records with 24
hour notice. . . . RTR discussed students‟ right to have an advisor, access to informatiou
6
It appears from the record that this may be Raquel Torres-Retana, who signed the
September 4 letter to John setting out the sections of the Student Conduct Code at issue.
9
[sic], the standard of proof to decide the case, sanctions, appeals, and discussed
admonition re retaliation and harassment.”
When discussing the incident, John emphasized that all of his contact with Jane
was consensual. This interview contains the first mention of anyone slapping Jane on the
buttocks. John told interviewers that during the second sexual encounter, Student 1
slapped Jane‟s buttocks hard. The slap was “[h]ard, not cool by the sound.” Then
Student 2, who was not initially in the room but entered after the sexual activity began,
slapped Jane‟s buttocks hard a second time. John said, “It happened so fast I couldn‟t
stop them.” John emphasized, “By no means did I put hands on her like that or have
unconsensual conduct with her.” At one point in the interview John indicated that he got
dressed quickly after the slaps occurred; he said at another point that he was already
getting dressed when the slaps occurred. He stated, “I didn‟t leave her there (with the
guys). She was alert. Not passed out. I made sure those two guys left” before he left the
room. The notes also state, “I got dressed. I had them leave. They said, Are you
kidding? [John] had them leave then he left the room.” When asked if he checked on
Jane afterward, John responded, “I watched her pull her dress down and walked out. I
should have checked on her at the time. I didn‟t know she was upset about it.”
The same day, interviewers met with “Y,” another of Jane‟s friends who attended
the party. Y witnessed Jane emerge from the bedroom crying. The interview notes state,
“[Jane] told them that while she was in there she only thought she was going to give
[John] a blow job. Then other guys came up behind her. She didn‟t know how many
people she had sex with.” Y was also with Jane when John approached her after the party
and apologized for the other students‟ behavior.
On October 1, interviewers met with the man the parties refer to as “Witness 6,”
John‟s friend who also attended the party. Witness 6 saw John and Jane dancing
together, and then noticed that John disappeared. Witness 6 reported that when John
returned, he told Witness 6 that he had sex with the girl he danced with (Jane) and that
she was still in the room with Student 1 and Student 2. According to Witness 6, John
said that they were attempting to engage in a “threesome,” but they were drunk and
10
started smacking Jane‟s butt so John left. Witness 6 said Jane later “started trying to
dance with me like she was dancing with [John], bending over. [John] gave [Witness 6]
a „no‟ sign (drawing his finger across his throat). Not going to dance with her.” Witness
6 walked away to join his friends. He also saw John approach Jane after the students
returned to campus.
Also on October 1, interviewers met with Jane for a third time. The interview
notes state that the purpose of the meeting was to determine “which of [John‟s] behaviors
[Jane] was ok with and those which made her feel uncomfortable; which were consensual
and which were not consensual.” Jane confirmed that the first sexual encounter with
John and Student 1 was consensual in its entirety. She said that during the second
encounter she was aware other people were in the room with her and John. The notes
state that “someone got rough and [Jane] thought she would cry.” Then Jane mentioned
for the first time that someone “slappe[d] her on the butt, hard.”7 She said that there were
at least two slaps. The interview notes state, “Fair to say you don‟t know who slapped
you? [Jane]: [Jane] affirmed that she doesn‟t actually know who slapped her.” When the
interviewer asked Jane if the men had intercourse with her or just digitally penetrated her,
Jane stated, “Pretty sure it was both but the digital (penetration) set me off.” (Parentheses
in interview notes.) Jane confirmed that all contact “stopped instantly” when John
observed that she was crying. She said again that her memory of the night was “patchy”
from intoxication. She stated that she did not know if all the men left the room together
because she went into the bathroom, which differed slightly from her earlier statement
that after the men left, she crawled off the bed and then went to the bathroom.
On October 3, interviewers met with John a second time to “try to fill in gaps now
that information has been gathered from other witnesses.” In the meeting notes, there is
no indication that they discussed the investigation procedure or John‟s rights again. The
notes show that interviewers asked, “Part of what she‟s saying is one or more people had
rough sex with her that she didn‟t consent to the second time. Looking into if you had
7
Due to the nature of the interview notes, it is not clear whether interviewers
asked Jane about this or whether Jane offered this information.
11
any role in that by encouraging it. [John] stated that he did not (and shook his head in the
negative). [¶] [Interviewer]: We are not so much interested in the first incident, but
whether the second incident could be considered a gang rape. We are looking into this to
see if she was or was not in a position to consent” due to her intoxication. John said that
Jane did not seem excessively intoxicated.
John said Jane was the one who suggested the second encounter in the bedroom
with him and Student 1. He also stated that besides the three of them, no one else was in
the bedroom except for a man who was passed out on a couch. He said Student 2 entered
the room while the three were engaged in sexual activity, and the two slaps occurred
shortly thereafter. John did not remember any conversation between the men during the
incident. John “scooted back to remove himself (after the first slap). (The second slap
came quickly thereafter.)” After the second slap, John “pulled away, pulled his leg
around,” Jane “pulled her dress back down” and the men walked out. Within an hour
they took a bus back to school, and John apologized for the other students‟ behavior once
they had returned.
On October 4 interviewers met with “C,” another friend of John‟s who also
attended the party. Student 1 and Student 2 were his friends from high school. C said he
witnessed John, Jane, and Student 1 dance together before disappearing down the hallway
together. He said he saw John, Student 1, and Student 2 emerge from the bedroom
together.
On October 22 interviewers met with Jane a fourth time. Blunt Coleman also
attended as Jane‟s advocate. The interview notes state, “[Turner] asked [Jane] if she has
received all the statements she sent to her. [Jane] replied that she had.” The interviewers
also stated that notes for the most recent interviews needed to be sent to Jane, and they
showed Jane notes from other recent witnesses interviews during Jane‟s interview.
Jane reiterated at several points in this interview that she was “drunk” while she
and John were interacting. Jane said the men‟s comments started when the other men
began touching her; she did not know when John started making comments.
Investigators asked, “Did [John] or anyone tell anyone to do something to you? Were
12
there any directive comments?” Jane replied, “I don‟t think so.” Later investigators
asked, “Did anyone tell them to hit you?” Jane replied, “No.” The interview notes state,
“[Turner] said I know it is hard, but can you tell me what [John] was saying?” [Jane]
replied, “How do you like that?” [Turner] asked if John was saying that. [Jane] said,
„They were all saying it. Like, “Look at her! Oh my god!” When asked when John
started saying these things, Jane replied that she did not know. She also said, “They
would say how do you like that? whenever anything was being done—fingering me
violently and hitting me.” She added, “[T]hey were all kind of feeding off each other.”
Later in the interview when asked specifically what John said, Jane replied that he made
“[c]omments about my body.” Jane also said that during the first encounter John and
Student 1 made “comments to each other about my body” that she did not find offensive.
Jane thought the abusive conduct with commentary lasted about a minute or two
before she began crying. Within this time frame, she was slapped “[t]owards the middle
and then the end. There were at least three hits,” which contrasted with her earlier
statement that there were at least two hits (and her first two interviews, which did not
mention any slaps). She also said, “[T]hree hits. I don‟t know how many comments.”
Although she said in her third interview that she did not know who slapped her, in her
fourth interview Jane said Student 1 was the first person who slapped her. An
investigator asked Jane how much time passed between slaps. Jane replied that she did
not know. When pressed for more information, Jane replied that perhaps ten seconds
passed between slaps.
On October 24, SJACS representatives met with Y again, and on October 25, they
met with B again. Neither added significant facts to her earlier accounts.
C. Results of the SJACS investigation
SJACS completed its investigation on October 29, 2013 and generated a
“Summary Administrative Review” (SJACS report). The SJACS report notes that the
investigation and report were completed by Turner and the other administrators who
conducted the interviews. The report concluded that John violated nine different sections
of the USC Student Conduct Code—all of the sections cited in the September 4 letter,
13
except sections 11.38 (disruption of “normal university or university-sponsored
activities”) and 11.40 (“Unauthorized use, possession or dissemination of alcohol”).
In explaining its findings, two pages of the report criticize John‟s recollection of
the story as “contradicted not only by credible information as provided by other
witnesses, including [John‟s] own friends who attended the party, but also by [John‟s]
own statements when asked to provide further detail.” Despite Jane‟s repeated
characterization of her memory as patchy and spotty as a result of her intoxication, the
report summarily stated that “[Jane] was found to be a credible witness on the most
important contested points.” The report concluded, “[O]n the second sexual encounter,
[Jane] did not consent to sexual intercourse, oral sex, assault, or any form of vaginal
penetration with anyone other than [John.]” It found that John “had control over the
number of individuals in the room” and therefore “he was the one who allowed men,
other than himself, to remain in the room, unbeknownst to [Jane].” The report went on to
say, “Given [Jane‟s] credibility and [John‟s] lack of credibility (and distortions of the
facts), we find more credible than not [Jane‟s] assertion that [John] encouraged the other
men to assault and penetrate [Jane].” Despite Jane‟s clear affirmation that the first group
sexual encounter was consensual, with respect to the second encounter, the report stated,
“SJACS does not find it credible that [Jane] consented to sex with two or more men . . . .”
The report concluded, “[John] actively participated, in concert with [Student 1],
[Student 2], and the other men who touched or sexually penetrated [Jane], in the sexual
assault of [Jane] by allowing and encouraging the group assault. Through his actions and
comments, [John] encouraged and assisted in the sexual assault that [Jane] suffered.
[John] thereby violated the above listed sections of the Student Conduct Code.” The
SJACS report does not connect any of John‟s actions to specific Student Conduct Code
sections.
John was suspended for more than two years, effective immediately. During that
time, he would not be allowed to complete any work toward a USC degree. Once the
suspension period was complete, he would be required to demonstrate his “preparedness”
to re-enroll to the Associate Vice Provost of Student Affairs; otherwise he would not be
14
allowed to re-enroll.8 If he were to re-enroll, he would automatically be placed on
“deferred expulsion,” so that if he was “responsible for any further violation of the
Student Conduct Code” he would be subject to immediate expulsion. The report stated
that sanctions against John were imposed “to educate [John] and further his personal
development” and to “protect the University community.”
John was informed of the SJACS decision in a long letter that reiterated SJCAS‟s
findings. The letter stated, “[John] actively participated, in concert with [Student 1],
[Student 2] and the other men who touched or sexually penetrated [Jane], in the sexual
assault of [Jane] by allowing and encouraging the assault. Through his actions and
comments, [John] encouraged and assisted in the sexual assault that [Jane] suffered.”
The letter imposed the same penalties as the SJACS report, with an added requirement
that John “must provide proof of counseling regarding the issues raised by the January
26, 2013 incident including alcohol use/abuse. Verification of counseling from a licensed
therapist or counselor” was required to be submitted to the school prior to re-enrollment.
The letter provided John with information about how to appeal the decision.
D. John’s appeal
John retained counsel and appealed to USC‟s Student Behavior Appeals Panel.
He pointed out in his appeal letter that despite minor discrepancies in the various
accounts of the evening, the major facts were not in dispute: Jane engaged in consensual
sexual activity with John and Student 1 at least once; Jane and John engaged in
consensual sexual activity twice; Student 1 and Student 2 exceeded the scope of Jane‟s
consent by slapping her; and John terminated the second sexual encounter immediately
upon discovering that Jane was upset. The letter highlighted numerous inconsistencies in
the evidence, argued that there was bias in the investigation (such as providing Jane, but
not John, with all witness statements, and meeting with Jane, but not John, multiple times
to “clarify” inconsistencies), and objected that SJACS credited Jane‟s version of events,
even when contradicted by multiple other witnesses. John also argued that the
8
There is no indication in the record of what a demonstration of preparedness
would entail.
15
investigative process was unfair because there was no evidentiary hearing, and the onus
was put on John to prove his innocence rather than the other way around.
No response to John‟s appeal letter from SJACS or any other USC administrative
body appears in the record. Jane submitted a letter detailing the difficulties she had
experienced after the incident, which she characterized as a rape. She also stated that she
is uncomfortable on campus knowing that John was still there, and concluded, “I do not
believe that the University is enforcing its Title IX responsibilities for responding
effectively and immediately to reports of sexual harassment, or quelling what is currently
a hostile environment. I expect that the University will hold [sic] its original decision for
my case in order to ensure my safety, comfort, and peace on this campus.”
The Appeals Panel issued its decision in March 2014. The Appeals Panel opined
that the procedural process was fair and that an evidentiary hearing was not required.
The written decision stated, “[T]he questions presented for this panel‟s review are
whether the investigator failed to follow university rules while reviewing the cited
behavior and whether the sanction imposed is excessive or inappropriate. Our decision is
subject to review and approval by the Vice Provost, Student Affairs, and once approved
is a final decision without further appeal.” Because John argued in his appeal letter that
the investigation was biased, the Appeals Panel “examined particularly carefully whether
the evidence supports each finding and whether the findings support the conclusion as to
each of the specific violations cited.”
The Appeals Panel disagreed with SJACS on several important points. The
Appeals Panel held that the second sexual encounter could not support a finding that John
encouraged or participated in a sexual assault. The panel noted that John, Jane, and
Student 1 engaged in consensual group sex once, and that the second interaction
“involved sexual behavior with the same two people in the same place only 45 minutes
apart. Thus it was reasonable for the accused to believe that the complainant‟s consent
for sexual activity with [Student 1] was ongoing from the first encounter until the
complainant signaled otherwise by word or deed.” The Appeals Panel found, however,
that there was no “reasonable basis for the accused to believe the complainant consented
16
to being struck by anyone.” The Appeals Panel therefore found that Student 1 and
Student 2 improperly slapped Jane, John encouraged or permitted the slaps, and John
endangered Jane by leaving the bedroom while Jane was still in the bedroom with
Student 1 and Student 2.
The Appeals Panel overturned the SJACS decision with respect to seven of the
nine Student Conduct Code sections John was accused of violating, but held that John
violated two sections of the Student Conduct Code. First, the Appeals Panel held that
John violated Student Conduct Code section 11.44C, which prohibits, in part,
“[e]ncouraging or permitting others to engage in misconduct prohibited within the
university community.” Quoting Jane‟s statements from both her first and third
interviews, the Appeals Panel held that John violated section 11.44C because when
Student 1 and Student 2 slapped Jane, “at each blow one of the men including the
accused made taunting and aggressive comments about what she was experiencing.” As
a result, the Appeals Panel concluded, “[T]he accused permitted the assault.” The
Appeals Panel also held that John failed to comply with the second phrase of section
11.44C, “[F]ailing to confront and prevent the misconduct, notify an appropriate
university official of the misconduct, or remove [one]self from the situation.”
Second, the Appeals Panel found that John violated Student Conduct Code section
11.32, which prohibits “[c]onducting oneself in a manner that endangers the health or
safety of other members. . .within the university community.” The Appeals Panel
credited Witness 6‟s statement, holding that SJACS “reasonably read the evidence as
showing it was more likely than not that the accused exited the room before [Student 1
and Student 2], leaving the complainant in the room with the two men.” As a result, “the
accused abandoned the complainant by leaving the room before the two men who had
accosted her, and thus endangered her safety.”
The Appeals Panel reduced John‟s suspension from two years to one year. It
upheld the remaining restrictions and conditions.
17
E. Writ proceedings in the trial court
John challenged the Appeals Panel‟s decision in a petition for writ of mandate
under Code of Civil Procedure, section 1094.5 filed in the superior court.9 He applied ex
parte for a stay of the Appeals Panel‟s decision. The trial court denied the initial request
and a renewed request days later, stating that there was an insufficient factual showing of
irreparable harm.
In his writ petition, John argued that the investigation and hearing process were
unfair in that he was deprived of an adversarial proceeding in which he could challenge
the evidence presented against him. He also argued that he was not provided with
adequate notice, because the Appeals Panel‟s rationale for the violations of the Student
Conduct Code was based on an entirely different theory than the one pursued by SJACS.
John also argued that the Appeals Panel‟s decision that he violated two sections of the
Student Conduct Code was not supported by substantial evidence. USC opposed the
petition, arguing that the procedure was fair, and that substantial evidence supported the
Appeals Panel‟s decision.
The trial court held that USC‟s procedure was fair because John had the
opportunity to tell his side of the story in his two interviews, and he had the right to
request any materials collected in the investigation. The court also held that John‟s
“argument that he was denied fair notice of the issues being considered at the hearing is a
non-starter. While he claims that he was not informed of the charges against him until
the Appeal Panel rendered its decision, the record clearly shows that he was informed of
all the charges against him from the outset. SJACS sent Petitioner a letter on September
4, 2013, that quoted each of the alleged violations, including the two he was eventually
found guilty of, and stated the investigation was in connection with Jane Doe.” In
9
“The remedy of administrative mandamus . . . applies to private organizations
that provide for a formal evidentiary hearing.” (Gupta v. Stanford University (2004) 124
Cal. App. 4th 407, 411; see also Pomona College v. Superior Court (1996) 45 Cal. App. 4th
1716, 1722-1723.)
18
addition, “The Appeals Board [sic] decision did apply the code provisions to the facts in a
systematic and thorough manner.”
The trial court also held that substantial evidence supported the Appeals Panel‟s
determination that John violated section 11.44C. Noting that John and other men were
“encouraging each other,” the court said, “[O]nly when Jane started crying did Petitioner
make a ridiculing (or incredulous) comment „is she crying?‟, and stop the encounter.”
The court went on to say, “The argument that everything was consensual does not
automatically provide immunity. . . . [¶] Petitioner allowed Jane Doe to be sexually
abused in the primal sense. She chose to be with him albeit in a drunken state. That he
invited another so called drunken man to also engage in sex with her in a drunken state is
a phenomenon that the word „consensual‟ does not apply to in a civilized society. [¶]
Given her condition, what would a civilized, rational person do? [¶] He would protect
her.” The court concluded, “The Appeals Board [sic] was justified in finding that
Petitioner violated this section by not taking some affirmative step to prevent the
misconduct that his acquaintances were committing right in front of him.”
However, the trial court held that substantial evidence did not support the Appeals
Panel‟s decision that John violated section 11.32. The court noted that both Jane and
John stated that the men left together, and held that the Appeals Panel erred by relying on
the less-reliable testimony of Witness 6. The court therefore granted John‟s petition with
respect to the violation of section 11.32, and denied the remainder of the petition.
John timely appealed and USC cross-appealed.
STANDARD OF REVIEW
The scope of our review from a judgment on a petition for writ of mandate is the
same as that of the trial court. (California Department of Corrections and Rehabilitation
v. California State Personnel Board (2015) 238 Cal. App. 4th 710, 716.) “An appellate
court in a case not involving a fundamental vested right reviews the agency‟s decision,
rather than the trial court‟s decision, applying the same standard of review applicable in
the trial court.” (Schafer v. City of Los Angeles (2015) 237 Cal. App. 4th 1250, 1261.)
19
With respect to a petition for writ of mandate, we determine “whether the
respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair
trial; and whether there was any prejudicial abuse of discretion.” (Code Civ. Proc., §
1094.5, subd. (b).) “Abuse of discretion is established if the respondent has not
proceeded in the manner required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.” (Ibid.)
We review the fairness of the administrative proceeding de novo. “A challenge to
the procedural fairness of the administrative hearing is reviewed de novo on appeal
because the ultimate determination of procedural fairness amounts to a question of law.”
(Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal. App. 4th 470, 482.) “The statute‟s
requirement of a „fair trial‟ means that there must have been „a fair administrative
hearing.‟” (Gonzalez v. Santa Clara County Department of Social Services (2014) 223
Cal. App. 4th 72, 96; Pomona College v. Superior Court, supra, 45 Cal.App.4th at p.
1730.) Where student discipline is at issue, the university must comply with its own
policies and procedures. (Berman v. Regents of University of California (2014) 229
Cal. App. 4th 1265, 1271.)
We review the Appeals Panel‟s substantive decision for substantial evidence.
(Code Civ. Proc., § 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.”].)
DISCUSSION
A. Fair hearing
John argues that he was not provided sufficient notice of the charges that were
ultimately imposed, because the Appeals Panel relied on an entirely different theory to
justify sanctions against John compared to that relied upon by SJACS. He also argues
that he was not afforded a fair hearing at any stage of the proceedings, because he did not
have “an opportunity to test and rebut the evidence against him.” John also contends he
should have been allowed to cross-examine witnesses or otherwise test the credibility,
knowledge, and recollection of the witnesses against him.
20
Section 17.03 of the Student Guidebook states that one of the “procedural
protections” granted to accused students is “[w]ritten notice of the incident report that
specifies the nature of the alleged violation and the basis for the charge including the date
and period of time and location of the alleged incident.” USC provided John notice of
the code sections he allegedly violated, but it did not provide any information at any stage
about what activity ultimately would form the basis for those violations and related
penalties. There was also no hearing, as that term is commonly understood. Instead,
SJACS did its investigation by interviewing witnesses and writing its report
recommending penalties, which John appealed to the Appeals Board.
Generally, a fair procedure requires “notice reasonably calculated to apprise
interested parties of the pendency of the action . . . and an opportunity to present their
objections.” (Bergeron v. Department of Health Services (1999) 71 Cal. App. 4th 17, 24;
see also Rosenblit v. Superior Court (1991) 231 Cal. App. 3d 1434, 1445 [“Notice of the
charges sufficient to provide a reasonable opportunity to respond is basic to the
constitutional right to due process and the common law right to a fair procedure.”].)
With respect to student discipline, “[t]he student‟s interest is to avoid unfair or mistaken
exclusion from the educational process, with all of 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 not at all trivial, and it should be
guarded against if that may be done without prohibitive cost or interference with the
educational process.” (Goss v. Lopez (1975) 419 U.S. 565, 579-580 (Goss).)
“At the very minimum, therefore, students facing suspension . . . must be given
some kind of notice and afforded some kind of hearing.” (Goss, supra, 419 U.S. at p.
579.) The hearing need not be formal, but “in being given an opportunity to explain his
version of the facts at this discussion, the student [must] first be told what he is accused
of doing and what the basis of the accusation is.” (Id. at p. 582.)
Here, both the notice and the hearing were insufficient.
21
1. Notice
In the initial letter from SJACS, John was not apprised of the factual basis of the
accusations against him; he was given only a list of code sections, a date, and Jane‟s
name. After its investigation, SJACS found that sanctions were warranted because John
participated in a group sexual assault. The Appeals Panel, on the other hand, found that
sanctions for sexual assault could not be supported on the record. Instead, the Appeals
Panel found that John violated section 11.44C because John encouraged or permitted the
other students to slap Jane. John was never provided notice or an opportunity to respond
to the theory that his actions in relationship to the other students‟ slaps, separated from
the remaining activity, could result in his suspension. The Appeals Panel also found that
John violated section 11.32 because he endangered Jane when he left the bedroom. The
factual basis for this finding is troubling, because the SJACS report does not even suggest
that Jane was in danger when John left the room, or that John endangered Jane by his
actions after the group activity ceased. Because John had no notice that such allegations
were at issue, he had no opportunity to defend himself.
Moreover, in the only times when John did have an opportunity to explain his
actions—during the SJACS interviews—the SJACS investigators led John to believe that
the only issue was whether sexual contact with Jane was consensual. They did not
inform him that they were investigating whether John encouraged the other students‟
slaps or if Jane was in danger after John left the room. The notes for John‟s second
interview state, “[Interviewer]: Part of what she‟s saying is one or more people had
rough sex with her that she didn‟t consent to the second time. Looking into if you had
any role in that by encouraging it. [John] stated that he did not (and shook his head in the
negative). [¶] [Interviewer]: We are not so much interested in the first incident, but
whether the second incident could be considered a gang rape. We are looking into this to
see if she was or was not in a position to consent” due to her intoxication. John also
stated at this interview, “The only thing I‟m upset about . . . the only thing I did with her
was completely consensual. I feel I was completely respectful. I was so shocked that my
name came up.” The investigator‟s statements, John‟s comments, and John‟s emphasis
22
on Jane‟s consent through both interviews indicate that the investigation focused on
whether John‟s and Student 1‟s sexual contact with Jane was consensual. There is no
indication from either John or the investigators in any of the interviews that John was
informed that he could be penalized based on other students slapping Jane, or because of
the manner in which John left the bedroom afterward.
In support of his argument that notice was lacking, John cites In re Ruffalo (1968)
390 U.S. 544, in which an Ohio attorney challenged a decision disbarring him for
misconduct. The Ohio Board of Commissioners on Grievances and Discipline originally
charged the attorney with twelve counts of misconduct. After the attorney and a witness
testified at a hearing about the alleged misconduct, the board added another charge based
on the attorney‟s testimony; the additional charge eventually served as the basis for the
attorney‟s disbarment. The Supreme Court held that the process deprived the attorney of
due process: “These are adversary proceedings of a quasi-criminal nature. [Citation.]
The charge must be known before the proceedings commence. They become a trap
when, after they are underway, the charges are amended on the basis of testimony of the
accused. He can then be given no opportunity to expunge the earlier statements and start
afresh. [¶] . . . [¶] This absence of fair notice as to the reach of the grievance procedure
and the precise nature of the charges deprived petitioner of procedural due process.” (In
re Ruffalo, 390 U.S. at pp. 551-552.)
USC is correct that In re Ruffalo is distinguishable because the attorney there did
not have notice of the additional charge or its basis at the outset of the case, and here
John knew which Student Conduct Code sections were at issue. However, the
comparison to In re Ruffalo is apt in that a disciplinary penalty based on testimony given
while defending against a different charge smacks of unfairness. The comparison is
especially compelling here in that Jane never mentioned the slaps in her first two
interviews. Therefore, the slaps clearly did not serve as the basis for Jane‟s complaint to
SJACS, nor could they have been the basis of the SJACS letter accusing John of violating
the Student Conduct Code—yet the slaps ultimately provided the basis for John‟s
suspension. In addition, the Appeals Panel used statements from Jane‟s first interview—
23
before anyone ever mentioned slaps—to support their finding that John encouraged the
slaps.
Moreover, the attorney in In re Ruffalo was afforded a continuance to address the
new allegation, and the Supreme Court found the process to be unfair nonetheless. Here,
John was not afforded any opportunity to address the Appeals Panel‟s new theory. No
further investigation was done once the Appeals Panel rendered its decision, John was not
provided any opportunity to be heard on the specific allegations that he permitted the
slaps or that he endangered Jane by leaving the bedroom, and the order suspending him
from school was effective immediately. This process does not pass muster under In re
Ruffalo.
John also cites Wheeler v. State Bd. of Forestry (1983) 144 Cal. App. 3d 522
(Wheeler), where a professional forester‟s license was revoked after the State Board of
Forestry found him guilty of “gross incompetence” under Public Resources Code section
778, subdivision (b). The forester was not initially charged with gross incompetence,
however; “rather, the error was charged as a „deceit, misrepresentation, or fraud in his
practice,‟ separate grounds of discipline under Public Resources Code section 778,
subdivision (b), and on these charges Wheeler was exonerated.” (Id. at p. 526.) The
court, applying Administrative Procedure Act (APA)10 guidelines, held that the
uncharged allegation could not be sustained: “An accusation is required to initiate the
proceeding and must specify „the statutes and rules which the respondent is alleged to
have violated . . . .‟ (Gov. Code, § 11503.) The fulfillment of this requirement is a
statutory predicate for disciplinary action. It follows that the finding must be based upon
the accusation. Here it was not. Disciplinary action cannot be founded upon a charge not
made.” (Wheeler, supra, 144 Cal.App.3d at p. 527.) The court also held that the
standardless term “gross incompetence” could not support the revocation of the forester‟s
license: “[T]he APA requires, as a predicate to disciplinary action, that the accusation
specify „the statutes and rules which the respondent is alleged to have violated.‟ (Gov.
10
Gov. Code, § 11501; Pub. Resources Code, § 776.
24
Code, § 11503.) This provides a constitutionally required notice to the accused of the
standards by which his conduct is to be measured. [Citations.] It permits discipline to be
imposed only for violation of an ascertainable standard of conduct.” (Wheeler, supra,
144 Cal.App.3d at p. 527.)
Wheeler also indicates that the procedures here were insufficient. Although John
was provided notice of the Student Conduct Code sections he allegedly violated, USC
began its investigation by pursuing one theory of discipline (sexual assault), but imposed
discipline based on a wholly different theory (encouraging or permitting battery and
endangering a student by abandonment). USC argues that unlike the “gross
incompetence” in Wheeler, “encouraging or permitting others to engage in misconduct”
is not standardless. In the context of the case before us, we disagree. That SJACS and
the Appeals Panel could interpret the term to censure multiple facets of John‟s conduct
shows that the standards were extremely malleable. We recognize that universities need
adequate tools to address the very serious and sensitive problem of sexual assault on
campus. But it is not too heavy a burden to require that students facing disciplinary
action be informed of the factual basis for the charges against them. A charge of
“encouraging or permitting others to engage in misconduct” that can penalize completely
different behavior based on the decision-maker (SJACS versus the Appeals Panel),
without notice to the student, is indeed as standardless as the undefined “gross
incompetence” in Wheeler.
Because John was not informed of the factual basis of the allegations at the outset,
SJACS told John that they were investigating his involvement in a sexual assault, and the
sanction John appealed was based primarily on a finding of sexual assault, John was
never afforded notice or a meaningful opportunity to address whether he “encouraged or
permitted” the slaps, or whether his departure from the bedroom endangered Jane. If
notice is to be meaningful, it must include information about the basis of the
accusation—not just a list of Student Conduct Code sections that can be interpreted to
encompass any activity SJACS or the Appeals Panel finds to be inappropriate. Because
John was sanctioned based on activities that he was never informed might be the cause
25
for sanctions, John was not provided with sufficient notice required of a fair hearing
under Code of Civil Procedure, section 1094.5, subdivision (b).
2. Lack of a hearing
The lack of a hearing that would have allowed John to respond to the evidence
presented against him compounded the problems arising from the lack of sufficient
notice. The notes from Jane‟s fourth interview make clear that Jane had been provided
copies of SJACS‟s notes relating to every witness, including those who had very little
relevant knowledge. John, on the other hand, did not receive any information regarding
the other witnesses‟ testimony. USC argues that John did not have that information
because he “did not avail himself of the right to inspect records until after he filed his
administrative appeal.” In addition, USC argues that the SJACS investigation, decision,
and Appeals Panel process constituted a sufficiently fair hearing: “The accused also has
the right to know the charges against him, to see the evidence against him, upon request,
and to respond fully to the charges, both orally and in writing. The accused also has the
right to appeal the initial findings to a three-member panel. This is a hearing.”
Under the circumstances of this case, we disagree that this hearing meets the fair
hearing requirements of Code of Civil Procedure, section 1094.5, subdivision (b). As
noted above, John was not informed about the factual basis for the charges for which he
was ultimately sanctioned. He therefore never had a sufficient hearing affording him the
opportunity to respond fully to those charges.
We recognize that “the pure adversary model is not entitled to constitutionally
enshrined exclusivity as the means for resolving disputes in „[t]he incredible variety of
administrative mechanisms [utilized] in this country. . . .‟” (Howitt v. Superior Court
(1992) 3 Cal. App. 4th 1575, 1581, quoting Withrow v. Larkin (1975) 421 U.S. 35, 52.)
Rather, “[s]pecific requirements for procedural due process vary depending upon the
situation under consideration and the interests involved.” (Applebaum v. Board of
Directors (1980) 104 Cal. App. 3d 648, 657.)
For example, “[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
26
administrative appeal . . . must afford the [accused] an opportunity to confront and cross-
examine witnesses.” (James v. City of Coronado (2003) 106 Cal. App. 4th 905, 912
[discussing disciplinary actions involving police officers under Gov. Code § 3304, subd.
(b)].) In administrative cases addressing sexual assault involving students who live,
work, and study on a shared college campus, cross-examination is especially fraught with
potential drawbacks. The United States Department of Education Office for Civil Rights
(OCR) addressed this issue in its April 4, 2011 “Dear Colleague” letter, intended as a
guidance document regarding sexual violence on college campuses.11 It stated, “OCR
strongly discourages schools from allowing the parties personally to question or cross-
examine each other during the hearing. Allowing an alleged perpetrator to question an
alleged victim directly may be traumatic or intimidating, thereby possibly escalating or
perpetuating a hostile environment.”12 (OCR Dear Colleague letter, p. 12.)
There are few cases defining fair hearing standards for student discipline at private
universities.13 Cases involving procedural due process requirements under similar
circumstances, however, may be instructive. (See BreakZone Billiards v. City of
11
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.
12
We note that there are alternate ways of providing accused students with the
opportunity to hear the evidence being presented against them without subjecting alleged
victims to direct cross-examination by the accused. (See, e.g., Doe v. University of the
Pacific (E.D. Cal., Dec. 8, 2010, CIV. S-09-764) 2010 WL 5135360, at *4 [the accusing
student‟s “testimony was not presented live to Respondent Students but instead was tape
recorded and played for Respondent Students immediately following the completion of
her testimony”]; Gomes v. University of Maine System (D. Me. 2005) 365 F. Supp. 2d 6,
27 [placing a screen between the accuser and the accused]; Columbia University, Gender-
Based Misconduct Policies for Students, August 2013, p. 15, available at
http://ssgbsm.columbia.edu/files/gbsm/content/Gender-
Based_Misconduct_Policies_Students.pdf [providing that witnesses will provide
testimony directly to the hearing panel while other parties view live testimony from a
separate room via closed-circuit television].)
13
The hearing standards required for student discipline are not necessarily the
same as those required for academic purposes. “[T]here are distinct differences between
decisions to suspend or dismiss a student for disciplinary purposes and similar actions
taken for academic reasons which may call for hearings in connection with the former but
not the latter.” (Board of Curators of University of Missouri v. Horowitz (1978) 435 U.S.
78, 87.)
27
Torrance (2000) 81 Cal. App. 4th 1205, 1236, fn. 24.) As noted above, for example, Goss
held that in student disciplinary proceedings, due process requires “an „informal give-
and-take‟ between the student and the administrative body dismissing him that would, at
least, give the student „the opportunity to characterize his conduct and put it in what he
deems the proper context.‟” (Horowitz, supra, 435 U.S. at p. 86, quoting Goss, 419 U.S.
at p. 584.)
The parties reply in part on Dixon v. Alabama State Bd. of Ed. (5th Cir. 1961) 294
F.2d 150, 159 (Dixon), which held that when a student is facing disciplinary sanctions,
“the student should be given the names of the witnesses against him and an oral or
written report on the facts to which each witness testifies. He should also be given the
opportunity to present to the Board [of Education], or at least to an administrative official
of the college, his own defense against the charges and to produce either oral testimony
or written affidavits of witnesses in his behalf. If the hearing is not before the Board
directly, the results and findings of the hearing should be presented in a report open to the
student‟s inspection. If these rudimentary elements of fair play are followed in a case of
misconduct of this particular type, we feel that the requirements of due process of law
will have been fulfilled.” (See also Andersen v. Regents of University of California
(1972) 22 Cal. App. 3d 763, 771 (Anderson) [“As said in Dixon, supra, the student is
entitled to (1) a notice containing a statement of the specific charges against him, the
names of the witnesses and a statement of the gist of their proposed testimony, and (2) a
hearing the scope and nature of which should vary according to the circumstances of the
particular case. The hearing need not be a full dress judicial hearing but one giving the
student a full opportunity to present his defenses.”]; Goldberg v. Regents of University of
Cal. (1967) 248 Cal. App. 2d 867, 882 (Goldberg) [due process requirements were met
where the student plaintiffs “received a proper advance notice of the hearing specifying
the particular charges and suggesting that they might wish to obtain counsel,” and
“[p]laintiffs were represented by counsel and given ample opportunity to hear and
observe the witnesses against them and to present their own defense.”].)
28
USC argues the procedural protections required in Dixon were in place here
because John had access to information submitted by the other witnesses and an
opportunity to respond to that evidence—had he requested it. But requiring John to
request access to the evidence against him does not comply with the requirements of a
fair hearing. (See, e.g., Goss, supra, 419 U.S. at p. 582 [“in being given an opportunity
to explain his version of the facts . . . the student [must] first be told what he is accused of
doing and what the basis of the accusation is”]; Dixon, supra, 294 F.2d at p. 159 [“the
student should be given the names of the witnesses against him and an oral or written
report on the facts to which each witness testifies”]; Andersen, supra, 22 Cal.App.3d at
p. 771 [“the student is entitled to . . . the names of the witnesses and a statement of the
gist of their proposed testimony”]; Goldberg, supra, 248 Cal.App.2d at p. 882 [students
should be “given ample opportunity to hear and observe the witnesses against them ”].)
Even where constitutional due process protections do not apply, common law
requirements for a fair hearing under section 1094.5 do not allow an administrative board
to rely on evidence that has never been revealed to the accused. For example, in Pinsker
v. Pacific Coast Society of Orthodontists (1974) 12 Cal. 3d 541 (Pinsker), an orthodontist,
Pinsker, was rejected from a professional association. He argued that the association‟s
process for denying his membership did not afford him a fair hearing. The association
argued, as USC does here, that they provided Pinsker a fair hearing by “conducting an
investigation into Pinsker‟s case and by resting their rejection of this application on the
information disclosed by that investigation.” (Id. at p. 555.) The Supreme Court rejected
this argument: “Although the trial court apparently agreed with this contention, we
conclude that the procedure followed in the instant case does not meet minimal common
law standards.” (Ibid.) The Court said that although “[t]he common law requirement of
a fair procedure does not compel formal proceedings with all the embellishments of a
court trial,” private associations “retain the initial and primary responsibility for devising
a method which provides an applicant adequate notice of the „charges‟ against him and
reasonable opportunity to respond. In drafting such procedure, and determining, for
example, whether an applicant is to be given an opportunity to respond in writing or by
29
personal appearance, the organization should consider the nature of the tendered issue
and should fashion its procedure to insure a fair opportunity for an applicant to present
his position.” (Id. at pp. 555-556.) Pinsker, like John, was unaware that certain issues
would be considered by the association, and therefore never had the opportunity to
respond to those issues. The Court held, “Under these circumstances, we conclude that
the procedure followed by the defendant association did not meet the minimum standards
required under the common law.” (Id. at p. 556.)
A similar procedure was also rejected by the Supreme Court in English v. City of
Long Beach (1950) 35 Cal. 2d 155. There, the civil service board was considering
whether a police officer‟s physical limitations interfered with his ability to perform his
duties. Before the required employment hearing, “[m]embers of the board took evidence
outside the hearing and outside the presence of [the officer] or his attorney. Some of
them talked to one of the examining doctors, and one member questioned his personal
physician concerning the relation of [the officer‟s] asserted disability to the performance
of the duties of his position.” (Id. at p. 157.) The officer was afforded a hearing, but the
board members relied in part on the evidence they had gathered before the hearing in
determining that the officer‟s employment should be terminated. On appeal, the Supreme
Court held that the officer was denied a fair hearing. “The action of such an
administrative board exercising adjudicatory functions when based upon information of
which the parties were not apprised and which they had no opportunity to controvert
amounts to a denial of a hearing. [Citations.] Administrative tribunals which are
required to make a determination after a hearing cannot act upon their own information,
and nothing can be considered as evidence that was not introduced at a hearing of which
the parties had notice or at which they were present. [Citations.] . . . [T]he right of a
hearing before an administrative tribunal would be meaningless if the tribunal were
permitted to base its determination upon information received without the knowledge of
the parties. A hearing requires that the party be apprised of the evidence against him so
that he may have an opportunity to refute, test, and explain it, and the requirement of a
30
hearing necessarily contemplates a decision in light of the evidence there introduced.
[Citations.]” (Id. at pp. 158-159.)
Here, SJACS relied on information never revealed to John, and the Appeals Panel
suspended John on a different theory than SJACS. John was not provided any
information about the factual basis of the charges against him, he was not allowed to
access any evidence used to support those accusations unless he actively sought it
through a written request, and he was not provided with any opportunity to appear
directly before the decision-making panel to rebut the evidence presented against him.
While a full trial-like proceeding with the right of cross-examination is not necessary for
administrative proceedings, we cannot agree with USC that the process afforded to John
met the standards of a fair hearing under section 1094.5.14
B. Substantial evidence
John argues that even if we find that the hearing was fair, the decision of the
Appeals Panel should nonetheless be overturned because any finding that John violated
section 11.44C was not supported by substantial evidence. USC argues in its cross-
appeal that the Appeals Panel‟s finding that John violated section 11.32 is supported by
substantial evidence, and therefore that finding should be reinstated.
When reviewing a university‟s disciplinary actions, “„[t]he power of an appellate
court begins and ends with the determination as to whether there is any substantial
evidence, contradicted or uncontradicted, that will support the finding.‟ [Citation.]”
(Perlman v. Shasta Joint Jr. College Dist. Bd. of Trustees (1970) 9 Cal. App. 3d 873, 882.)
“While it is commonly stated that our „power‟ begins and ends with a determination that
there is substantial evidence [citation], this does not mean we must blindly seize any
14
The SJACS report states that it was prepared by Turner and other interviewers,
“with oversight by Jody Shipper, Title IX Coordinator.” Shipper also participated in one
interview with Jane and one interview with John. OCR‟s Dear Colleague letter cautions
that “serving as the Title IX coordinator and a disciplinary hearing board member . . .
may create a conflict of interest.” (OCR Dear Colleague letter, p. 7.) Because the exact
composition of SJACS is never explained in the record before us, it is unclear whether
such a conflict occurred here.
31
evidence in support of the respondent in order to affirm the judgment. . . . „[I]f the word
“substantial” [is to mean] anything at all, it clearly implies that such evidence must be of
ponderable legal significance. Obviously the word cannot be deemed synonymous with
„any‟ evidence. It must be reasonable . . . , credible, and of solid value. . . .‟ [Citation.]
The ultimate determination is whether a reasonable trier of fact could have found for the
respondent based on the whole record. [Citation.]” (Kuhn v. Department of General
Services (1994) 22 Cal. App. 4th 1627, 1633 [emphasis in original].)
1. Section 11.44C
Section 11.44C prohibits “[e]ncouraging or permitting others to engage in
misconduct prohibited within the university community. Failing to confront and prevent
the misconduct, notify an appropriate university official of the misconduct, or remove
oneself from the situation.” John argues that there is insufficient evidence to support the
Appeals Panel‟s conclusion that John “encouraged” or “permitted” Student 1 or Student 2
to slap Jane.
The Appeals Panel adopted a conclusion from the SJACS report stating that “each
time a blow was delivered, one of the men, including [John], made taunting and
aggressive comments about what she was experiencing.” USC quotes this statement no
fewer than six times in its briefs in support of the argument that the Appeals Panel‟s
decision was supported by substantial evidence. We find this characterization of events
to be unsupported by the record.
First, there are only two accounts of what occurred in the bedroom: John‟s and
Jane‟s. John stated that two slaps occurred in quick succession, and all contact with Jane
ceased very quickly thereafter. Jane‟s first two interviews do not include any discussion
of slaps, and therefore cannot support the Appeals Panel‟s finding that John permitted or
encouraged the slaps.
Second, Jane‟s accounts were extremely vague about what John actually said.
When asked specifically what John said, Jane replied that he made “[c]omments about
my body.” Interviewers asked Jane again what John said, and Jane replied, “How do you
like that?” But this is the comment Jane attributed to Student 1—not John—in her first
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interview, before any slaps were mentioned. When asked for clarification about whether
John said that (as opposed to the other men), Jane was vague: “They were all saying it.
Like, Look at her! Oh my god!” Jane did not know when John started saying these
things. This does not support a finding that John permitted or encouraged the other men
to slap Jane.
Third, Jane was very clear that John did not tell the other men to do anything.
When asked, “Did [John] or anyone tell anyone to do something to you? Were there any
directive comments?” Jane replied, “I don‟t think so.” And later in the same interview:
“Did anyone tell them to hit you? [Jane] replied No.”
The Appeals Panel held that while “there is no evidence that the accused directed
the activity, SJACS was reasonable in concluding that he encouraged it.” The Appeals
Panel partially relied on Jane‟s statement that the men were “prompting and urging each
other on in the activity.” But Jane said that in her first interview when discussing the
rough digital penetration, before she ever mentioned that she was slapped. That comment
therefore cannot support a finding that John encouraged or permitted the others to slap
Jane. The Appeals Panel also credited Jane‟s statement that the men were “all kind of
feeding off each other,” but that statement also did not implicate anything that John may
have said relating to Student 1 and Student 2 slapping Jane. In short, we find no support
for the assertion that John made taunting and aggressive comments in relationship to the
slaps. No substantial evidence supports a conclusion that John “encouraged . . . others to
engage in misconduct.”
As to whether John “permitted” the misconduct, the Appeals Panel held that John
said he saw Student 1 and Student 2 “smack the complainant several times.” Without
citing any evidence or support, the Appeals Panel concluded that if John tried to stop the
nonconsensual conduct, “it is more than likely than not that he did so, if at all, only after
the complainant began crying.” John told interviewers that the slaps occurred “so fast I
couldn‟t stop them.” Jane said there may have been as much as 20 seconds between the
first and third slaps. The question therefore is whether there is substantial evidence to
33
determine that John “permitted” the other students to slap Jane within the time frame
between the first and last slap.
In the six interviews discussing what occurred in the bedroom (two interviews
with John and four interviews with Jane), none of the information demonstrates that John,
by his words or actions, permitted Student 1 and Student 2 to slap Jane. To conclude that
John could have or should have done something to control the other men‟s behavior
necessarily requires an assumption that John knew that Student 1 would slap Jane, and
then that Student 2 would follow up with another slap (or, in the case of Jane‟s fourth
interview, that he was aware a third slap would occur). There is nothing in the record to
support such a finding. John could not prevent activity he did not know was about to
occur, and therefore the evidence demonstrating John‟s 20 to 30 seconds of inaction,
without more, cannot be fairly characterized as “permitting” Student 1‟s and Student 2‟s
misconduct.
USC argues that even if we do not find that John violated the first sentence of
section 11.44C by “[e]ncouraging or permitting others to engage in misconduct
prohibited within the university community,” we should find that John nonetheless
violated the second sentence of section 11.44C because he “[f]ail[ed] to confront and
prevent the misconduct, notify an appropriate university official of the misconduct, or
remove [himself] from the situation.” USC acknowledges that the “or” in this sentence is
disjunctive, so a student may choose any one of the three actions to comply with the code
section.
The evidence unquestionably shows that John complied with the third option—he
removed himself from the situation. The nonconsensual activity lasted, at most, 20
seconds (assuming 10 seconds after the first and second slaps). Jane was unequivocal in
her statement that as soon as she started crying, all contact ended and the men left within
20 seconds. John therefore left within one minute of the first slap. There is no
substantial evidence supporting a conclusion that John failed to remove himself from the
situation.
34
The Appeals Panel held that the way John removed himself from the situation was
insufficient to comply with section 11.44C because he “was abandoning the complainant
in a situation endangering her, and also because he was fleeing after the misconduct
occurred.” There is no evidence in the record to support these conclusions. As discussed
more fully below, there is no evidence that Jane was in danger after John and the other
men left; she told interviewers that she immediately went to the bathroom to collect
herself and then returned to her friends. Moreover, the Appeals Panel‟s interpretation
places John in a Catch-22: The language of 11.44C permitted John to remove himself
from the situation to comply with its requirements, but the Appeals Panel held that he
violated 11.44C by doing so.15 Such a ruling cannot be sustained.
An “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.” (Code Civ. Proc.,
§ 1094.5, subd. (c).) Here, substantial evidence does not support the Appeals Panel‟s
conclusion that John either encouraged or permitted Student 1 or Student 2 to slap Jane,
or that John failed to remove himself from the situation. In light of the entire record, the
Appeals Panel‟s finding that John violated section 11.44C is not supported by substantial
evidence.
2. Section 11.32
USC argues in its cross-appeal that substantial evidence supports the Appeals
Panel‟s conclusion that John violated Section 11.32, and therefore that violation should
be reinstated.16 Section 11.32 prohibits “[c]onducting oneself in a manner that endangers
15
As discussed in the following section, USC furthers the nature of the Catch-22
by arguing that John also violated 11.32 by removing himself from the situation. Under
this logic, by complying with the mandate of 11.44C, John necessarily violated 11.32.
16
In its cross-appellant‟s reply brief, USC goes far beyond the scope of its opening
brief and argues additional points relating to John‟s appeal. When a party is both an
appellant and respondent, as is the case here, “[a] party must confine a reply brief, or the
reply portion of a combined brief, to points raised in its appeal.” (Cal. Rules of Court,
rule 8.216(b)(3).) We therefore have not considered any arguments from the reply brief
that extend beyond the scope of USC‟s opening brief relating to John‟s alleged violation
35
the health or safety of other members or visitors within the university community or at
university sponsored or related events.” According to USC, there is substantial evidence
that “Petitioner endangered Jane‟s safety by abandoning her in the bedroom,” or phrased
another way, “abandoning a vulnerable student, exposed, on a bed, where other
partygoers had full access, would support a violation of Section 11.32.”
This argument is unpersuasive. USC‟s suggestion that John endangered Jane‟s
safety simply because she was “in a rented house in Hollywood, far from the USC
campus, and full of college students, many of whom had been drinking” is purely
speculative. There is no evidence in the record that Jane‟s health and safety were in any
danger after John left the bedroom. There is therefore no evidence that John violated
section 11.32 by leaving Jane in the bedroom.
The Appeals Panel concluded that John violated 11.32, but it reached that decision
by disregarding both Jane‟s and John‟s accounts of what occurred, and instead relying on
the report of John‟s friend, Witness 6. Witness 6 reported that during the party, John said
he left Jane in the bedroom with the other men. The six interviews of Jane and John
made clear that this was not correct. Jane said in her first interview that after she cried,
John, Student 1, and Student 2 stopped, quickly dressed, and left the room within 20
seconds. In her second interview, she said when she started crying, “they dressed and
they all left.” In her third interview, Jane said she was not sure if all the men left
together, because she went into the bathroom, and nothing about John‟s departure was
mentioned in the fourth interview. John told investigators in his first interview that when
he left the bedroom he ensured Student 1 and Student 2 also left, and he said in his
second interview that when he walked out, Student 1 and Student 2 were with him.
John‟s friend C also told interviewers that he saw John, Student 1, and Student 2 emerge
from the bedroom together.
Hearsay evidence that contradicts all firsthand accounts of what occurred is not
substantial evidence sufficient to support a finding that John endangered Jane‟s health or
of section 11.32. (Cal. Rules of Court, rule 8.204(e)(2); Hawran v. Hixson (2012) 209
Cal. App. 4th 256, 267-268.)
36
safety when he walked out of the bedroom. Under the substantial evidence test, the
quality of the evidence is important. (Roddenberry v. Roddenberry (1996) 44
Cal. App. 4th 634, 651.) “„Substantial evidence‟ is evidence of ponderable legal
significance, evidence that is reasonable, credible and of solid value.” (Ibid.) The
hearsay recounted by Witness 6, which directly contradicts the accounts of percipient
witnesses John (the alleged source of Witness 6‟s information), Jane, and C, does not
meet this standard. The Appeals Panel‟s finding that John violated section 11.32 was
therefore not supported by substantial evidence.
Because John was denied a fair hearing as required by Code of Civil Procedure
section 1094.5, and substantial evidence does not support the Appeals Panel‟s findings,
John‟s petition for writ of mandate should have been granted.
DISPOSITION
The judgment is affirmed to the extent that it sets aside USC‟s decision that John
violated Student Conduct Code section 11.32. The judgment is reversed in all other
respects, and the matter is remanded to the trial court with directions to grant John‟s
petition for writ of mandate. John shall recover his costs on appeal.
CERTIFIED FOR PUBLICATION
COLLINS, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
37