Doe v. Allee ( 2019 )

Filed 1/4/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JOHN DOE, B283406
Petitioner and Appellant, (Los Angeles County
Super. Ct. No. BS157112)
v.
KEGAN ALLEE, Ph.D., et al.,
Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Howard L. Halm, Judge. Reversed.
Hathaway Parker, Jenna E. Parker and Mark M. Hathaway for
Petitioner and Appellant.
Young & Zinn, Julie Arias Young, Karen J. Pazzani; Cole Pedroza,
Kenneth R. Pedroza and Cassidy C. Davenport for Respondents.
John Doe, formerly an undergraduate student at the University of
Southern California (USC), appeals from the trial court’s denial of his
petition for writ of administrative mandate, by which Doe sought to set aside
his expulsion. (Code Civ. Proc., § 1094.5 (§ 1094.5).) Doe was expelled after
respondents Kegan Allee, Ph.D., sued in her official capacity as Title IX
1
Investigator for USC, and, ultimately, Ainsley Carry, Ed.D., in his official
capacity as USC’s Vice Provost for Student Affairs, found that Doe engaged
2
in nonconsensual sex with another USC student, Jane Roe, in violation of
the university’s Student Conduct Code.
Doe argues that he was denied a fair hearing because respondents
(principally Dr. Allee) were biased, and because USC’s student disciplinary
procedure is fundamentally flawed, in that it provides no mechanism for a
party accused of sexual misconduct to question witnesses before a neutral
fact finder vested with power to make credibility determinations. While we
conclude that Doe failed to meet his burden of proving respondents were
actually biased against him, we nonetheless conclude that USC’s disciplinary
procedure failed to provide a fair hearing, In that regard, we hold that when
1
Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et
seq.) (Title IX), forbids sex-based discrimination in all schools, colleges and
universities that receive federal funding. (See 20 U.S.C. §§ 1681–1688.) Title
IX does not specifically address sexual assault, but the United States
Supreme Court has held that a school may be liable for discrimination and
face, among other things, a loss of federal funding, if it mishandles a
student’s sexual assault claim. (See Davis v. Monroe County Bd. of Educ.
(1999) 526 U.S. 629, 633, 647–648.)
2
To preserve privacy, we refer to the accused and accusing students as
Doe, and Roe, respectively, and to witnesses by their initials or first name.
2
a student accused of sexual misconduct faces severe disciplinary sanctions,
and the credibility of witnesses (whether the accusing student, other
witnesses, or both) is central to the adjudication of the allegation,
fundamental fairness requires, at a minimum, that the university provide a
mechanism by which the accused may cross–examine those witnesses,
directly or indirectly, at a hearing in which the witnesses appear in person or
by other means (such as means provided by technology like
videoconferencing) before a neutral adjudicator with the power independently
to find facts and make credibility assessments. USC’s disciplinary review
process failed to provide these protections and, as a result, denied Doe a fair
3
hearing. On that basis, we reverse.
BACKGROUND
I. USC’s Sexual Misconduct Policy
4
USC’s Student Conduct Code (SCC) , prohibits nonconsensual “sexual
5
misconduct.” The SCC prohibits sexual activity if “[t]here is no affirmative,
3
Because we reverse on this ground, we do not consider Doe’s other
challenges to the judgment.
4
The record contains two (slightly different) versions of pertinent
disciplinary provisions of the SCC. We refer to the version contained in the
administrative record.
5
Sexual misconduct is broadly defined as (1) “Engaging in any
unwelcome sexual advance . . . or other unwanted . . . non-consensual sexual
conduct”; (2) “Sexual touching, fondling and/or groping, including intentional
contact with the intimate parts of another, causing another to touch one’s
intimate parts, or disrobing or exposure of another without permission[;]”
(3) “Attempted intercourse, sexual contact, sexual touching, fondling and/or
3
conscious and voluntary consent, or consent is not freely given.” (§ E.2.III.)
“Affirmative consent” means a conscious and voluntary agreement to engage
in sexual activity. It requires each party “to ensure that he or she has the
affirmative consent of the other or others to engage in the sexual activity.
Lack of protest or resistance does not mean consent, nor does silence. . . .
Affirmative consent must be ongoing throughout a sexual activity and can be
revoked at any time. . . . [T]he fact of past sexual relations between [the
persons involved], should never by itself be assumed to be an indicator of
consent.” Finally, it is not a valid excuse that the accused believed the
complainant affirmatively consented to the sexual activity if that belief “arose
from the . . . recklessness of the accused,” or the accused failed to “take
reasonable steps, in the circumstances known to the accused at the time, to
ascertain whether the complainant affirmatively consented.” (§ E.2 III.4.)
II. Investigations and Discipline in Cases Involving Allegations of Student
Sexual Misconduct
Student sexual misconduct complaints are directed to USC’s Title IX
Office. If a student chooses to proceed with an investigation, a trained Title
IX investigator is assigned to investigate.
1. Investigation and Adjudication
The SCC guarantees students a “fair, thorough, neutral and impartial
investigation of the incident.” Both the student who reports misconduct and
the accused student have equal rights throughout the investigation and
groping[; and]” (4) “Non-consensual vaginal or anal penetration . . . with a
body part (e.g., penis, tongue, finger, hand, etc.) or object, or oral penetration
involving mouth to genital contact.”
4
appeal process. (§§ 17.03(D), (M).) The burden of proof rests at all times with
the reporting party to show, by a preponderance of evidence, a violation of the
SCC. (§ 17.04(D).)
At the outset of a Title IX investigation, the accused student is given
written notice that a complaint has been filed, specifying the alleged violation
and the basis for the charge. (§ 17.03(A).) The investigator meets separately
with the reporting student and the accused student, to explain their rights,
the investigative and appeals processes, and to identify available resources.
(§§ 17.02(B), 17.03(E).) At these meetings each party may present relevant
information, including the names of witnesses and video or documentary
evidence, and any information a party believes is relevant. (§ 17.02(C).) The
parties may read the investigator’s summaries of interviews and respond to
that information. (§§ 17.03(F), (G).) Each party may bring an advisor to the
meetings to serve in a solely supportive role (i.e., the advisor may not speak
or disrupt the party’s meeting with the investigator). (§ 17.02(F).) The
parties may provide the investigator with “supplemental information” up to
the point at which the investigator’s findings have been made. They may
also, upon request, inspect documents and information gathered during the
investigation. (§§ 17.02(C), 17.03(F).) The investigator may conduct
additional investigation and witness interviews “as appropriate,” and review
available pertinent evidence. (§ 17.02(D).) No in person hearing is conducted
and the accused student has no right to confront his or her accuser. (§ 17.03.)
Once the investigation is complete, the Title IX investigator makes findings
of fact and concludes, based on a preponderance of evidence, whether the
accused student violated the SCC. If so, in consultation with the Title IX
Coordinator, the investigator imposes the sanction that he or she deems
appropriate. (§§ 17.02(D), 17.06(A).) Sanctions for sexual misconduct range
5
from disciplinary warnings to suspension, expulsion or revocation of a degree.
(§§ 17.06(E)(1)–(16).)
2. Appeal
Either party may appeal the result of the Title IX investigation within
two weeks of receipt of the investigator’s written decision. (§ 17.07(A),(F),
(I).) Appeals are reviewed by the Student Behavior Appeals Panel (SBAP),
an anonymous three-member panel appointed by the Vice Provost for Student
Affairs (Vice Provost), trained to hear sexual misconduct cases, at least one
member of which is a faculty member. (§ 17.07(G).) The SBAP is advised by
a non-voting individual trained in USC’s procedures and Title IX
requirements. (§ 17.07(I).) Appeals are decided solely on the basis of
6
documents. No oral argument is permitted. (§ 17.07(A), (E).) The SBAP
may exclude from consideration any evidence it deems inadmissible,
including character evidence. (§ 17.07(G).)
On appeal, the SBAP may: uphold the Title IX investigator’s decision;
remand for further investigation; reverse specific factual findings which are
6
The SCC identifies four grounds for appeal: (1) new evidence has
become available which is sufficient to alter the decision and which the
appellant was not aware of or could not reasonably have been obtained at the
time of the original review; (2) the sanction imposed is grossly
disproportionate to the violation found; (3) procedural errors occurred which
had a material impact on the fairness of the investigation; and (4) the
conclusion and sanction are not supported by the findings, or the findings are
not supported by the evidence in light of the whole record. (§ 17.07(E).)
However, the “Appeal Request Cover Sheet” that Doe submitted with his
appeal provided only three grounds for appeal. Two are identical to numbers
(1) and (2) above. The third states: “That the investigator failed to follow
university rules or regulations while reviewing the cited behavior.”
(§§ 17.07D–1, 17.07D–2 & 17.07D–3.)
6
not supported by the evidence in light of the whole record; reverse the
investigator’s conclusions regarding policy violations, if not supported by the
findings; or increase or decrease a sanction. If new evidence has been
submitted which the SBAP determines should be considered, it may return
the matter to the investigator for reconsideration in light of that evidence. If
the SBAP determines that procedural errors occurred that materially
impacted the fairness of the investigation, it may return the matter to the
investigator with instructions to remedy the error. (§ 17.07 (K).) The SBAP
may not substitute its opinion as to credibility for that of the investigator, nor
may it make new factual findings. (§ 17.07(L).) The SBAP may not reweigh
evidence and, if the record contains substantial evidence to support a finding
of fact, must defer to that finding. The SBAP may not change a sanction
unless it is unsupported by the findings or grossly disproportionate to the
violation committed. The SBAP may not substitute its judgment for that of
the investigator because it disagrees with the investigator’s findings or the
sanction imposed. (Ibid.)
Once the SBAP concludes its review, its recommendation is forwarded
to the Vice Provost, who has unfettered discretion to accept or modify that
recommendation based on his or her review of the record. The Vice Provost’s
decision is final. (§ 17.07(H), (M).)
7
III. The Factual Background
7
1. The October 24, 2014 Incident and Roe’s Report
Shortly after midnight on October 24, 2014, Doe, a freshman attending
USC on a football scholarship, and Roe, a senior and student athletic trainer,
engaged in sexual intercourse in Doe’s campus apartment. Doe believed the
8
encounter was consensual. Roe claimed it was not. On November 5, Roe
made a report of sexual misconduct to USC’s Title IX Office, and met with
respondent Kegan Allee, Ph.D., the Title IX investigator assigned to the
investigation.
Roe reported that, on the evening of October 23, she had planned to
attend a party with her roommates, and had a couple of mixed drinks with a
roommate. At 11:30 p.m., after plans to attend the party fell through, Roe
sent Doe, an acquaintance, a text asking what he was “up to,” and agreed to
go to his place to smoke marijuana. She was “tipsy” when she arrived at
9
Doe’s place at about midnight, and she and Doe walked to a taco stand. Roe
said Doe was “aggressively touchy,” i.e., “grabbing [her breasts] from behind
[her] or grabbing at [her] crotch” over her shorts while they walked, and she
“push[ed] him away.”
7
Our recitation is drawn from Dr. Allee’s Summary Administrative
Report (SAR) of her investigation, her notes of interviews with Roe, Doe and
witnesses, and documentary and photographic evidence collected during the
investigation.
8
Unspecified date references are to calendar year 2014.
9
Roe and Doe disagree about whether she went briefly into his
apartment before they walked to the taco stand.
8
Roe and Doe returned to his apartment to smoke some weed. Witness
D.N., Doe’s cousin and roommate, was in the living room with his girlfriend
while Roe was at the apartment, although it was dark and D.N. did not
believe that Roe saw him. D.N. told Dr. Allee that Roe was “in a good mood”
when she and Doe returned to the apartment at about 1:00 a.m. and went
into Doe’s bedroom.
Roe told Dr. Allee that she went over to Doe’s “just to smoke.” “[She]
was somewhat tipsy and high, so cross–faded. [She] wasn’t hammered, but
[she] was not sober. [Roe] was at the foot of the bed when [they] were
smoking and [Doe] was up by the pillows. After [they] smoked [Doe] got
touchy again. It’s kind of a blur. [Roe] remember[s] certain details that
frighten [her]. At some point [Doe] just pulled down his sweatpants and put
[Roe’s] hand on his penis. [Roe] pulled [her] hand away. [She] was really
confused and disturbed. Then [Doe] grabbed onto [Roe’s breast] again and
[she] couldn’t pull his hand away” because Doe is “a football player, so he’s
really strong.” Roe told Dr. Allee that she “mentally gave up” when she was
unable to remove Doe’s hand from her breast. Dr. Allee asked if it was
“painful,” and Roe said she “had some bruising” on her breast.
Roe reported that Doe committed forcible sexual acts, including
nonconsensual vaginal penetration with his penis. He ripped off her shorts
(but left all her other clothes on). She tried to pull herself away by holding
onto the headboard, but Doe pulled her hands down. Roe tried to push
against his chest, but could not push him away. Doe pulled Roe’s hands
down over her head, using one hand to hold them down. Roe told Dr. Allee
that “throughout the entire thing it was easier to say ‘I can’t’ because I know
I’m not allowed to for job purposes.’” In response, Doe placed his hand
“aggressively” over her mouth, “shush[ing]” her, and said, “[n]o one has to
9
know.” This frightened Roe because she was not worried about people
knowing, but that she did not want to be engaging in this conduct.
Doe flipped Roe over onto her stomach and continued to have sex with
her from behind. He pulled her head back by the hair, which “really hurt[]”
10
and caused her to say “Ow.” He stuck several fingers in her mouth. It had
not hurt when Doe put his hand over her mouth, but it “wasn’t gentle.” She
was unsure whether he did it to keep her quiet. He told her to suck on his
fingers or maybe to get them wet. She was gagging because he was hurting
her, and then his fingers were in her mouth. Doe pulled out to finish and it
looked like he planned to ejaculate on her face or torso. When he let go of
her, Roe “freaked out [and] went between his legs, scooting out quickly.” Doe
11
ejaculated on the sheets.
Afterwards, Roe quickly put on her shorts, and grabbed her phone from
the floor. Doe asked why she had moved, and she said “Because I didn’t want
it.” Doe told her they “should do this again or [she] should come over again
soon, and [Roe] left.”
10
Doe disputed Roe’s claim that he placed her hand on his penis against
her will, or took her hands off the headboard and held them down. He
acknowledged putting his hand over her mouth, but said he did it in a non–
aggressive manner and because she was “moaning loud,” and he did not want
to wake up D.N.’s girlfriend, asleep in the living room. Doe acknowledged
having put his fingers in Roe’s mouth, and said Roe “willingly sucked on
them like a penis.” He agreed he had pulled Roe’s hair during sex, and said
she “moan[ed]” pleasurably in response.
11
Roe told Dr. Allee that some ejaculate landed on her shirt, which she
saved as evidence. Dr. Allee told her to how to preserve the evidence. Roe
did not produce the evidence during the investigation.
10
Roe told Dr. Allee that she was “just repulsed.” There had been no
kissing or foreplay, and her thong underwear never came off; Doe simply
pushed it aside. Doe “never bothered” to use the condom Roe had seen when
she first entered his room. Roe believed that “if [the sexual encounter] was
consensual, he could have taken the time to pick it up and put it on.” She
said that Doe had used force: “When he yanked my hair that hurt, but even
before I wasn’t able to push him off, and I was trying. I remember feeling
like I was pushing a boulder. I don’t remember some parts because I was
laying there in my own head sometimes asking, ‘Is this actually happening?’
I was very confused.”
Roe went to bed when she got home. That afternoon, she called K.J.,
12
whom she was dating and told him what had happened the night before. At
first, K.J. said it was “rape and [Roe] should report it,” but as the
conversation went on, he changed his mind, and said her account of the
sexual activity “sounded consensual.” Roe then called an ex–boyfriend,
13
B.H.
12
Roe did not identify this witness, and there is no indication that Dr.
Allee asked her to. Doe subsequently identified him as K.J., a USC student
and member of the track and field team. In a witness statement submitted
on Doe’s behalf during the appeal, K.J. said he “questioned the veracity of
whether the incident was non–consensual based on the questions and
answers [he] exchange[d] with [Roe] as it seemed to be consensual.”
13
Dr. Allee contacted B.H. as part of her investigation. In response, he
sent her an email stating, “My former girlfriend [Roe] called me on October
25 for emotional support, telling me she was the victim of sexual assault. I
am sorry that I have nothing further to add to your investigation.”
11
Roe, who was crying and upset, told her roommates, E.C., H.M. and
H.D. what had happened with Doe. H.M., took photos of “small little bruises”
she saw on Roe’s thighs, chest and arm (Roe gave the photos to Dr. Allee).
Roe told Dr. Allee her roommates knew she wasn’t interested in Doe. E.C.
had specifically asked Roe the night before “if she’d hook up with [Doe].” Roe
said “no.” The roommates teased her before she went over about hooking up
with Doe. To prove that she had not, Roe texted H.M. regularly while she
was with Doe, until “everything happened and [she] couldn’t text anymore.”
Roe gave screenshots of those texts to Dr. Allee. None of Roe’s texts
expressed discomfort about the way Doe touched her.
Dr. Allee interviewed all of Roe’s roommates. E.C. said Roe “seemed
really upset” on the afternoon of October 24. Roe had told her she had gone
to hang out at Doe’s apartment, and had not planned to hook up. She was
14
“drinking and smoking weed” on the couch, when Doe “got on top of her.”
Roe’s roommates encouraged her to report the sexual assault, but Roe was
“concerned about ruining [Doe’s] life or getting him kicked off the [football]
15
team.”
H.M. said Roe was “rambling” and “really upset” on October 24. She
told H.M. that Doe “held her down and against her will.” H.M. said, “That’s
14
No one else told Dr. Allee that Roe drank while at Doe’s house.
15
E.C. and Roe were college roommates for three years. A redacted
portion of Dr. Allee’s summary of notes from her interview with E.C. states
that E.C. had asked Roe if she planned to “hook up” with Doe, because Roe
had “hooked up with multiple football players,” before and been
“reprimanded for unprofessional conduct.” Roe and other trainers had had to
sign a contract agreeing not to “hook up” with football players.
12
called rape.’” Roe had “small little bruises” inside the thigh and on her arm.
H.M. and H.D. each told Dr. Allee they would have noticed the bruises on
Roe’s arm had the bruises been present on October 23. H.M. encouraged Roe
to go to the hospital, “but she wasn’t ready.”
On October 28, Roe went to the Student Health Center to be tested for
sexually transmitted diseases. After Roe explained what happened, medical
staff contacted the Los Angeles Police Department, who wrote a report. Roe
declined to participate in a criminal investigation.
2. Doe Is Informed of Roe’s Allegations of Sexual Misconduct and
Immediately Subjected to Interim Sanctions
On November 7, Doe was notified of a report of sexual misconduct made
against him regarding an incident at his apartment on October 24. As a
result of that incident, Doe was alleged to have violated numerous provisions
16
of the SCC, including prohibitions against sexual misconduct.
16
Specifically, Doe was alleged to have violated sections:
11.32.B (Endangering Others): “Conducting oneself in a manner that
endangers the health or safety of other members . . . within the university
community.”
11.36.A (Physical Harm): “Causing physical harm to any person in the
university community.”
11.36.B (Apprehension of Harm): “Causing reasonable apprehension of harm
to any person in the university community.”
11.41 (Illegal Use of Narcotics or Paraphernalia): “Use, possession or
dissemination of illegal drugs or drug-related paraphernalia in the university
community.”
11.51.A (Harassing or Threatening Behavior): “Comments or actions which
are individually directed and which are harassing, intimidating or
threatening or interfere with work or learning, for the person at which they
are directed and for a reasonable person.”
11.53.A (Sexual Misconduct 1): “Engaging in any unwelcome sexual advance,
request for sexual favors, or other unwanted verbal or non-consensual sexual
13
Doe was instructed to meet with Dr. Allee by November 14, with or
without an advisor, and told he could make a written request to review the
report against him, provided he gave at least 24 hours advance notice. Also
on November 7, respondent Ainsley Carry, Ed.D., USC’s Vice Provost,
notified Doe that, effective immediately, USC was taking interim action
against him because the allegations described conduct that endangered the
safety and well being of the USC community. Doe was permitted only to
attend classes in which he was enrolled and to use campus dining facilities.
He was prohibited from having visitors at his housing assignment, and from
attending any USC–sponsored event. Further, Doe, who was attending
college on an athletic scholarship, was prohibited from any involvement with
the USC football team, except on the practice field and in the locker room; he
could not participate in any game.
conduct . . . within the university community . . . , when the conduct, has the
effect of unreasonably interfering with an individual’s academic or work
performance or creating an intimidating, hostile or offensive academic, work
or student living environment.”
11.53.B (Sexual Misconduct 2): “Sexual touching, fondling and/or groping,
including intentional contact with the intimate parts of another, causing
another to touch one’s intimate parts, or disrobing or exposure of another
without permission. Intimate parts? [sic] may include the breasts, genitals,
buttocks, groin, mouth, or any other part of the body that is touched in a
sexual manner.”
11.53.C (Sexual Misconduct 3): “Attempted intercourse, sexual contact,
sexual touching, fondling and/or groping.”
11.53.D (Sexual Misconduct 4): “Non-consensual vaginal or anal penetration,
however slight, with a body part (e.g., penis, tongue, finger, hand, etc.) or
object, or oral penetration involving mouth to genital contact.”
14
3. Doe’s First Interview with Dr. Allee
a. The October 9 Incident
On November 11, Doe met alone with Dr. Allee. When asked if he
knew what the meeting was about, Doe said “With [Roe], right?” Doe asked
to read Roe’s statement, but before doing so began to describe an encounter
he had with Roe on October 9. Roe and her friends had approached him on
fraternity row, and she invited him to go swimming. Doe had gone with Roe
to her apartment while the women changed, because he needed to charge his
phone.
At Roe’s apartment, Doe went with Roe into her room to charge his
phone. He “hugged [Roe] and started kissing her neck and grabbin’ on her
[as she sat on his lap] and she was grabbin’ on [him].” Roe did not tell him to
“stop” or move his hands away, so he kissed her neck and touched her inner
thighs. Roe left for about 10 minutes, and when she returned, said they were
no longer going swimming.
Doe and Roe laid down on her bed. She wore a bikini bottom and a T–
17
shirt. He removed his shirt and pants and started “fingering” Roe for a
couple of minutes. Roe was moaning, which made Doe believe he would “get
some play.” However, when Roe abruptly said she did not feel well, Doe
stopped. Roe told Doe he “could stay the night,” but he declined and left. Doe
had smelled alcohol on Roe’s breath on October 9, but she had not “seem[ed]
17
Dr. Allee did not ask Doe to clarify what he meant by “fingering,” which
she defined as “digital penetration.” In his appeal, Doe denied having
digitally penetrated Roe on October 9, and said Dr. Allee misconstrued his
words. He also said Roe fondled his penis on that occasion, which made him
believe she consented to sexual touching.
15
faded.” Roe sent Doe a text on October 10. She said she had “blacked” out,
but had a vague memory of him being at her house, and asked “what
happened last night?” In response, Doe said, among other things, that Roe
had been “faded” and they “mess[ed] around” in her room, but did not have
intercourse or kiss. He said he had left when she started feeling sick. Doe
gave Dr. Allee screen shots of his text exchange with Roe.
b. The October 24 Incident
With regard to the October 24 encounter, Doe told Dr. Allee that, after
the party plans fell through, Roe come over to smoke a blunt. When she
arrived, D.N. and his girlfriend were in the living room, so Roe and Doe went
into his room. Roe chose not to smoke. Doe smoked a little, then they walked
to a taco stand. Doe had been “feelin’ [Roe],” as they walked, by which he
meant grabbing her breasts and rubbing her thighs. Roe did not push his
hands away.
When Doe and Roe returned to Doe’s bedroom, they lay down and
talked. He removed her clothes until she was “completely naked,” then took
off his clothes. Doe “[f]inger[ed]” Roe and grabbed her breasts while she
fondled his penis. He got on top of Roe, and she said “No, you don’t have a
condom.” Doe stopped the sexual activity to put on a condom. He had placed
a condom nearby earlier, believing he would “get hit” that night, since he and
Roe had “messed around before.” As Doe retrieved the condom Roe remained
naked on his bed, with her legs spread. After Doe put on the condom, he and
Roe had consensual sex in different positions, including with her on top. Roe
seemed to be “enjoying [herself] facially,” and was “[l]ip biting, moaning,
kissing [his] neck,” and scratching his back during the sexual encounter. Doe
ejaculated inside Roe while wearing a condom. Afterward, he helped Roe find
her clothes, gave her a hug and she left.
16
Dr. Allee invited Doe to read Roe’s differing account of the October 24
sexual encounter. He did, and took issue with several points. He disputed
that Roe said “no,” and said if she had done so he would “get off and leave.”
The only time she said “no” was because he was not wearing a condom, and
she could have left when he stopped to put one on. She did not. Doe denied
that Roe had smoked any marijuana at his house, and denied pulling down
his pants to place Roe’s hand on his penis. He described Roe’s report as
“crazy!” As for whether he used a condom, after reading Roe’s account, Doe
said “Oh, that’s right. My fault. I did take the condom off. I pulled out and
took the condom off, but it wasn’t [as Roe described it].” He explained that he
tried to ejaculate on her face and have her swallow it, but she moved and told
him she did not want him to ejaculate on her face. They laughed about it,
and “[she] wasn’t scared for her life.” According to Doe, “[i]t was a funny
18
thing to us.”
Doe said Roe may have held on to the bed frame, but denied taking her
hands off of it or holding them down. He said she probably held on during
intercourse because his bed slides. He also acknowledged placing a hand
over Roe’s mouth. He had not done so aggressively, only to say “‘be quiet’”
because Roe was moaning loudly and he did not want to wake D.N. or his
girlfriend, who were asleep in the living room. Doe put his fingers in Roe’s
18
During a second interview on January 22, 2015, Doe explained that,
although he first said he had ejaculated inside Roe, he later recalled standing
on his bed after taking off the condom and throwing it away, to ejaculate on
Roe’s face. Later still, after reviewing a statement in which D.N. said he had
seen a used condom in Doe’s room, Doe explained that he did not know where
the condom was thrown when he took it off, but was certain he wore one and
that he threw it away.
17
mouth, and she willingly sucked on them. He admitted pulling her hair,
using it to hold her and thrust from behind. He did not flip Roe over; she
willingly assumed that position. Doe did not remember her complaining of
any pain or saying “ow,” only moaning and possibly saying “uh.”
When asked what Roe said or did to make him believe she wanted to
have sex, Doe said, “When I was fingering her she was grabbin’ on my [penis].
I thought that was clear.” She also told him he wasn’t wearing a condom,
and was kissing his neck and scratching his back. Doe also emphasized that
he felt “like the last time [the two] hung out [they] were past flirting. Past
messin’ around. Two weeks later she’s comin’ over at [12:30] in the morning.”
Dr. Allee showed Doe a file of additional information she had gathered,
which included screen shots of (1) texts between Roe and someone named
“Mia.” Doe believed these texts confirmed his theory that Roe was afraid she
19
would be fired if it became known that she had engaged in sex with him;
(2) texts between Roe and someone named “Julia”; (3) texts between Roe and
H.M.; (4) texts between Roe and Doe from October 21-24; (5) texts between
Roe and Doe’s teammate, S.V.; (6) photographs of the police report; and (7)
photographs of bruises on Roe’s legs, arm and breast. Dr. Allee asked if there
were any witnesses Doe wanted her to talk to. He said “nobody was in the
19
The SAR does not reflect that Doe raised this theory during his meeting
with Dr. Allee on November 11. However, Dr. Allee’s notes from that
meeting state that, after reading Roe’s texts to Mia, Doe expressed his belief
that Roe “got scared that she had sex with [Doe] and was going to get fired
because [he knew he] didn’t force her to have sex.” Several lines of redacted
material follow this statement in Dr. Allee’s notes. Dr. Allee does specifically
mention–and reject–this theory in explaining her reasons for finding Roe
more credible than Doe.
18
room[,]” but, after asking Dr. Allee for examples of people who might be
helpful, indicated that she should talk to Roe’s roommates and to D.N. Doe
provided Dr. Allee screenshots of his text exchanges with Roe.
4. Dr. Allee’s Subsequent Meetings With Roe and Doe
Dr. Allee had a second meeting with Roe (and an advisor) on January
15, 2015 and questioned her about the interaction with Doe on October 9.
Roe told her, “I was pretty drunk. I don’t fully remember. I was leaving a
party at ZBT and I ran into him and his friends on the sidewalk. Collectively
we all decided to go swimming. . . . So we all go back to my apartment so the
girls could get bathing suits. My memory is pretty blurry. I remember
feeling sick and throwing up in my bathroom and we never went swimming.”
Roe remembered Doe was at her apartment, but knew they “didn’t hook up
because [she had] confirmed that the next day.” Doe told her they “‘messed
around,” which she assumed meant he “was just flirting with [her].” Roe
showed Dr. Allee the same text exchange as Doe had shown the investigator.
Dr. Allee told Roe that Doe claimed to have “digitally penetrated [her]
that night [October 9].” In reaction to this news, Roe’s “chest, throat, and
face flushed bright red with splotches of white; her whole body started visibly
shaking; she started sobbing,” and cried for several minutes. When Roe
regained her composure, she told Dr. Allee she “didn’t remember any of that.”
With Roe’s consent, Dr. Allee opened a second case against Doe regarding the
20
incident on October 9.
20
Although the question of Roe’s capacity to consent was at issue, Dr.
Allee did not ask Roe or anyone to quantify how much alcohol Roe consumed
on October 9. The only witnesses Dr. Allee questioned on this point were
Doe, who was asked only if Roe had been drinking on October 9, and Roe’s
roommate, H.D., who provided no details about Roe’s state of intoxication.
19
During the January 15, 2015 meeting, Roe was adamant that Doe had
not used a condom on October 24, and said she “wouldn’t have . . . had a
million tests done if” he had. She denied scratching Doe’s back during sex,
kissing him, grabbing his penis or being on top of him. She disputed Doe’s
account that she went inside his apartment before they walked to get food, as
well as his claim that she had not smoked any marijuana. She took four or
five hits while in Doe’s bedroom. Roe denied sucking Doe’s fingers. Instead,
she claimed he put his hand over her mouth when she said “ow,” and she “felt
like [she] was gagging.” She also denied willingly flipping over. She never
wanted to engage in sex in the first place, but Doe was strong and able to
turn her over. Roe denied that she made up the sexual assault because she
feared she would be fired. She told Dr. Allee that she knew several “trainers
[who] have hooked up with athletes and are fine.”
On January 22, 2015, Doe (and an advisor) had a second and final
meeting with Dr. Allee. Doe was told Roe had initiated a second case against
him regarding the incident on October 9, and claimed that she had no
“knowledge about that incident because she was drunk.” Doe told Dr. Allee
that, when they were in Roe’s apartment on October 9, Roe was “grabbin’ on
[his] penis so of course [he] start[ed] fingering her[,]” and “got on top of her.”
However, when Roe told him she felt unwell, he said “it’s cool,” got off, kissed
her forehead and left.
Regarding the October 24 sexual encounter, Dr. Allee asked how Doe
knew Roe wanted him to pull her hair, to which Doe responded, “I didn’t. We
were in doggy position. I just assumed she’d like it.” Similarly, when asked
how he knew Roe wanted to swallow his ejaculate or to have him ejaculate on
20
her face, Doe said, “I didn’t, but if she didn’t want to she could get out of the
way and she did.”
Doe reiterated that Roe did not smoke at his apartment. He first said
he remembered smoking a blunt before going out for food, later said he did
not smoke until he and Roe returned, and ultimately decided he smoked
before going for food because he was not “sober” when walking to the taco
stand.
5. Additional Witnesses
Around October 28, Roe texted a witness identified only as “Mia,”
asking what might happen to an athletic trainer who reported a sexual
assault perpetrated by a student athlete. Roe described her alleged sexual
assault in details consistent with her report to Dr. Allee. Roe told Mia she
was “afraid [Doe]’s going to tell someone we hooked up and then it’ll get back
to the trainers.” Although this is not mentioned in the SAR, Roe’s text
exchange with Mia also indicates that Roe was worried she might be fired, or
be unable to attend graduate school, because she might be unable to get
letters of recommendation if the incident became known. There is no
indication that Dr. Allee tried to identify or contact Mia.
Doe also sent a text to someone identified only as “Julia,” a friend of
H.M.’s who had gone through a “similar situation.” There is no indication
that Dr. Allee tried to identify or contact Julia.
21
A few days later, Roe sent a text to S.V., a football player. She asked
how he would “respond if one of [his] teammates raped someone?”, and
21
described a series of events similar to those she had described to Mia.
On November 17, Dr. Allee interviewed D.N., who was with his
girlfriend in the living room of the Doe’s apartment when the sexual activity
between Doe and Roe occurred on October 24. D.N. saw Roe and Doe come
into the apartment at about 1:00 a.m., and Roe appeared to be in a good
mood. D.N. and his girlfriend heard Roe “moaning,” which sounded to him
like “normal sex sounds,” “pleasure” and “[l]ike somebody enjoying it.” D.N.’s
girlfriend had asked him if this was an “everyday thing.” D.N. told Dr. Allee
that the sex and moaning went on for “a while” and, at some point he fell
asleep. Later, he “woke up to go to the bathroom and heard [Roe and Doe]
talking.” D.N. did not see Roe leave the apartment.
D.N. was not surprised the next day when Doe said he and Roe had had
sex, because Roe had come to the apartment in the middle of the night, and
the prior interactions D.N. had witnessed between the two were flirtatious
and sexual in nature. Indeed, D.N. had moved his bed into the living room on
October 23 because his girlfriend was spending the night and he knew Doe
had a girl coming over. D.N.’s girlfriend was still at the apartment the next
morning when Doe and D.N. briefly discussed Doe’s sexual encounter with
Roe. D.N. saw a “nasty” used condom on Doe’s desk, and told him to throw it
away. The record does not reflect that Dr. Allee asked D.N. to identify his
girlfriend, or that she attempted to interview her.
21
On November 6, Dr. Allee had contact with S.V., but the notes from
that meeting are incomplete (page 1 of 2 missing), partially redacted and the
relevance, if any, of information Dr. Allee obtained from S.V. is unclear.
22
Dr. Allee had brief telephonic conversations with Roe on February 9
and 10, 2015, to ask Roe “a few last questions.” At Dr. Allee’s request, Roe
emailed photographs of her bathing suits. Dr. Allee contacted all individuals
the parties had identified as potential witnesses, but did not attempt to
contact anyone who had been mentioned during the investigation but not
fully identified.
On February 10, 2015, Dr. Allee permitted the parties to view the most
recent information she had gathered during the interviews on a secure portal.
The investigation was closed on February 11, 2015.
6. Findings and Determinations from the Title IX Investigation
Under the university’s Sexual Misconduct Policy, the Title IX
investigator alone makes findings of fact and, using a preponderance of the
evidence standard, determines whether the SCC has been violated. The
investigator’s written decision, and the reasons for that decision, are
contained in a SAR.
In her SAR, Dr. Allee concluded, based on her investigation and review
of all evidence she deemed relevant, and taking into account her
determination as to the parties’ credibility, that Doe violated the SCC and
“more likely than not, engaged in unwanted sexual conduct that ranged from
fondling to vaginal penetration.” With respect to the October 24 incident, Dr.
Allee determined that the parties’ conflicting accounts could not be
reconciled, and found Roe’s account more credible for several reasons.
First, Dr. Allee found that more evidence corroborated Roe’s account of
the October 24 incident. Statements made by Roe’s three roommates were
largely consistent with her account, and Roe told her roommates before going
to Doe’s apartment that she did not intend to have sex with him. Second, Roe
lacked any memory of sexual conduct with Doe on October 9, so she could not
23
have known that Doe would assume they would have more sexual contact on
22
October 24. Roe told her roommates the sex was nonconsensual. Two
roommates saw bruises on Roe on October 24 that they had not seen and
would have noticed the night before. Third, text messages sent by Roe to
third-party witnesses corroborated her report to Dr. Allee.
Dr. Allee rejected Doe’s theory that Roe was motivated to fabricate a
claim of sexual assault because she was worried she would be fired as an
athletic trainer if it became known she had consensual sex with a student
athlete. Dr. Allee found “nothing” to support this theory, and observed that
USC “would not retaliate against a student who had experienced non–
consensual sexual acts.” Dr. Allee also made the unattributed assertion that
“USC Athletic Training has had knowledge of athletic trainers engaging in
consensual sexual activity with athletes and trainers [who] were not fired
despite their employment contract . . . prohibit[ing] fraternizing with
athletes.”
Dr. Allee was struck by Roe’s demeanor and physical reaction upon
hearing about the October 9 incident. That reaction “effectively convinced”
22
In the SAR, Dr. Allee did not mention that, in a series of flirtatious
texts between Doe and Roe on October 23, when they were discussing
whether to go and what to wear to the party, Doe told Roe, alternatively, that
she “should wear nothing and come to [his] house and smoke [a] blunt,”
should “come over naked,” and asked if the “night [would] end[] up being at
[his] house.” Roe responded, “Hahaha no I’m not going over to your place
naked” and said she “[couldn’t] guarantee anything.” After Doe told Roe “it’s
late:/ I just wanted u before u left,” Roe responded: “You wanted me?
Haha:p,” to which Doe responded, “badly.”
24
Dr. Allee that Roe had not previously known about Doe’s claim to have
23
“digitally penetrated” her, and “was in distress upon learning about it.”
Dr. Allee found Doe’s credibility was diminished because his
statements “were inconsistent over time and he several times corrected his
statements only after reviewing other statements.” For example, Doe’s
explanations differed regarding when he had smoked, where he ejaculated
and what he did with the condom.
Dr. Allee also noted that Doe made assumptions about Roe’s sexual
consent which were inconsistent with USC’s policy. Specifically, when Roe
came to his house on October 24, he assumed they would have sex because of
24
what had transpired on October 9. Additionally, Doe “just assumed” Roe
would like him to pull her hair. Similarly, he had not asked if Roe wanted
him to ejaculate on her face (or to swallow his ejaculate), but proceeded to do
so anyway, saying, “if she didn’t want to she could get out of the way and she
did.”
Further, although Doe described behavior that made him believe he
had Roe’s affirmative consent on October 9 and 24 (e.g., lip biting, moaning,
23
Later, in his appeal, Doe explained that, when he said he and Roe were
“messing around” on October 9, he “want[ed] to be clear that [he] never
digitally penetrated [Roe] as [Dr. Allee] claim[ed] [he] did. [Dr. Allee] was
making assumptions, and never asked for any clarification of [his] wording.”
24
Under the SCC, the accuser’s sexual history is not relevant and may
not be used as evidence. However, if here is a sexual history between the
parties, and respondent claims consent, the parties’ sexual history may be
relevant to assess the manner of consent. The mere fact of a current or
previous sexual relationship, by itself, is insufficient to constitute consent.
(§ 17.04(G).)
25
kissing and scratching him on his back), Dr. Allee found Roe more credible,
and concluded it more likely than not that the sexual activity on October 24
was “forcible and non–consensual.” Dr. Allee found that Doe violated sections
11.36.B, 11.41, and 11.53.A–11.53.D of the SCC, but did not commit the other
alleged violations. However, as to the incident on October 9, Dr. Allee found
that Doe did not violate the SCC. Although Dr. Allee found “Roe[’s] distress
upon learning of the sexual activity [on October 9] . . . believable,” she also
found there was insufficient evidence to indicate that “[Doe] knew or should
have known [Roe] lacked the capacity to consent to sexual activities.”
Dr. Allee determined that expulsion and an order prohibiting Doe from
contact with Roe were appropriate sanctions. The parties were notified of Dr.
Allee’s findings and conclusions, and their right to appeal.
IV. Doe’s Appeal
On April 3, 2015, Doe submitted an appeal from the SAR. The stated
grounds for his appeal were that: (1) new evidence had become available
which was sufficient to alter the decision and about which Doe was not aware
and could not reasonably have obtained at the time of Dr. Allee’s original
investigation; (2) procedural errors were committed that materially impacted
the fairness of the investigation; and (3) the investigator’s conclusions and
sanctions were not supported by the findings, and were not supported by the
evidence in light of the whole record.
1. New Evidence
Doe submitted or identified several items of “new evidence” in support
of his appeal. The first was a signed witness statement from K.J., the USC
athlete Roe was dating at the time of the October 24 incident, but had not
identified to Dr. Allee. K.J. stated that when Roe told him on the afternoon
26
of October 24 what had happened with an unnamed perpetrator, he
“questioned the veracity of whether the incident was non–consensual.” K.J.
thought the encounter sounded “consensual.” Consistent with Doe’s theory
that Roe had a motive to lie, and potentially corroborating information that
Dr. Allee had redacted from E.C.’s witness statement, K.J. represented that a
previous sexual encounter between Roe and a USC athlete, was the reason
“she [was] no longer doing training for the USC football team.” Doe did not
specify when he learned K.J.’s identity, or why he was unable to obtain that
information during the investigation.
Two items of new evidence related to the bruises on Roe’s arm, thighs
and breast. First, Doe noted that, in a text exchange on October 28, Roe told
S.V. her bruises were “pretty much gone.” Doe observed that four days was a
surprisingly short amount of time for bruises to heal. Second, Doe submitted
an unsigned “Expert Witness Statement” from a registered nurse. The nurse
had 18 years of experience, but did not specify whether she had any expertise
in sexual assault. The nurse had reviewed the photographs of Roe’s bruises,
and opined that none was consistent with bruising one would expect to see
one day after a forceful sexual assault.
Third, Doe identified L.W. as a witness he could produce. L.W. was the
first person, other than D.N., to whom Doe revealed (on October 27) his
sexual encounter with Roe on October 24. Doe had not previously identified
this witness because he never considered the encounter nonconsensual. L.W.
was being belatedly identified because comments made by Roe’s witnesses
merely regurgitated what Roe told them, and were not investigated fully by
Dr. Allee, who accorded them undue weight. In addition, L.W. could reaffirm
what K.J. said about Roe having lost her job as a trainer for the football team
after having sex with a player.
27
Fourth, Doe claimed that Roe purposefully had not identified two
individuals whom she knew (but Doe did not) who saw her walking with Doe
to the taco stand on October 23, and whom Roe tried to avoid. Doe
maintained that these individuals would have seen him grope Roe, and
claimed that Roe chose not to identify them as witnesses because it would
have been detrimental to her story.
Finally, although the Title IX investigator had not found the sexual
assault allegations as to the October 9 incident substantiated, Doe identified
several items of evidence related to that incident to demonstrate that Roe
was not credible, and that Dr. Allee had misconstrued his words. First, he
claimed to have given Dr. Allee a detailed description of the bathing suit Roe
wore on October 9. (This information is not contained in the SAR.) Although
Roe purported to have given photos to Dr. Allee of all her bathing suits, Doe
had discovered that, in an effort to discredit him, Roe excluded a photo of the
suit he had described to Dr. Allee, and that she had worn on October 9. Doe
submitted a photograph of a bathing suit bottom he claimed Roe purposefully
hid.
Second, Doe explained that, when he said he and Roe were “messing
around,” he “never digitally penetrated [Roe] as [Dr. Allee] claim[ed] [he]
did.” Rather, Dr. Allee misconstrued what he said and never asked for
clarification.
Third, Doe took aim at Roe’s credibility, arguing she was not as
incapacitated as she claimed on October 9. That was evident because E.C.
came into the bedroom when Roe and Doe were “messing around,” and said “I
28
25
knew it” when she saw Roe and Doe on the bed. Roe had quickly left the
room for about 10 minutes to talk to E.C. (so she had not been “blacked out”
the whole time, nor as drunk as she implied). Due to the press of time, and
having “just” received E.C.’s information, Doe had not had sufficient time to
contact her to obtain evidence that Roe was “fine” when they spoke on
October 9. Nor had Roe been asleep when Doe left. After Doe turned Roe on
her side, she said “thank you” and invited him to stay. Doe also provided a
statement from D.N., who was with Doe on October 9 when Roe invited them
to go swimming. D.N. said Roe had not seemed “drunk or out of it.”
2. Unfair Hearing and Title IX Investigator’s Failure to Conduct a
Thorough Investigation
Doe argued that Dr. Allee was “biased,” “determined to substantiate
the most serious . . . allegations, [and had] failed to properly investigate the
incident and develop the record with respect to the most critical points. This
flaw infected the entire adjudication process.”
Doe also argued there were several fundamental problems with the
disciplinary procedures themselves. Given the serious nature of charges
25
E.C. denied having been present when Doe was at the apartment on
October 9. A substantial portion of Dr. Allee’s notes from her interview of
E.C. were redacted. That redacted material (revealed to the SBAP at an
unknown time) includes E.C.’s statement regarding Roe’s sexual history with
multiple football players. E.C. said that, following some “inappropriate
behaviors” between student trainers and football players, the student
trainers had received a group text and been or “were told” that a trainer had
“a list and . . . all trainers should come speak to him if they wanted to keep
their jobs.” All the trainers signed a contract that they would not “hook up”
with players. Doe requested to see the redacted information, but the SBAP
denied his request on the ground that it was irrelevant.
29
levied against him and the severe consequences he faced if those charges
were sustained, his case should have been be decided by an impartial panel,
not by Dr. Allee as both sole investigator and decision maker. Doe had been
denied any hearing or opportunity to challenge the veracity of any witness
against him. Instead, Dr. Allee, who, he argued. acted more like an advocate
26
than an impartial investigator, chose to credit Roe’s evidence over his, and
failed to conduct a thorough investigation or contact other witnesses in an
effort to ferret out the truth. Further, Dr. Allee did not record interviews, but
merely took notes which she summarized in the SAR. Doe argued that Dr.
Allee chose to redact potentially material information, and mischaracterized
things he said, crafting the SAR to reflect “what she thought was said,” and,
in that process, make Roe’s account sound more favorable. In sum, Dr. Allee
had inappropriately occupied the roles of “investigator, . . . judge, jury, and
executioner in conducting this investigation, assessing guilt or responsibility,
and issuing sanctions in a closed [SAR] process.” Doe was “given . . . no
reasonable opportunity to be heard, and never had an opportunity to
examine, confront, or challenge the witnesses against [him].”
Doe also claimed he was denied equal time during the investigation,
and lacked sufficient time to interview all the witnesses (particularly one
unidentified witness he discovered just days before filing his appeal), or to
investigate and rebut evidence against him. In addition, after he produced
photographic evidence of the bathing suit he claimed Roe hid to discredit him,
Dr. Allee never questioned Roe about that withheld evidence. Instead, Dr.
26
Doe claimed that he sometimes felt that he was “being attacked” during
meetings with Dr. Allee when he tried to question things Roe or her
witnesses said.
30
Allee closed the investigation without “giving [Doe] time to respond [to] new
[unidentified] evidence . . . sent to the investigator without [his] knowledge.”
3. Unfounded Findings, Conclusions and Sanctions
In support of the third basis for his appeal, Doe argued the investigator
failed adequately to explore material contradictions or incongruities in Roe’s
story, such as, (1) claiming she came to his house solely to smoke marijuana,
but had not smoked; (2) concealing the identity of her then–boyfriend from
Dr. Allee, because he was a USC athlete; (3) manufacturing text exchanges to
make it appear that she had not gone to Doe’s house for sex, so she would not
lose her job; (4) returning with Doe to his apartment after going for food,
despite the fact that he had just engaged in an aggressive, unwelcome public
groping of her; and (5) waiting an inordinate amount of time to be tested for
STD’s, given her claim that Doe wore no condom. Doe also argued that he
was given insufficient time to prepare a defense and had limited resources to
gather materials to pursue his appeal.
V. The SBAP and Dr. Carry Uphold Dr. Allee’s Findings; Doe is Expelled
and is Not Successful in His Effort to Obtain a Writ of Mandate
On April 24, 2015, the anonymous SBAP met to review the case file,
rejected Doe’s contentions, and upheld the sanction of expulsion. The panel
27
affirmed Dr. Allee’s findings as to five of six charged SCC violations.
27
As to the remaining count, the SBAP recommended that Doe not be
held responsible for attempted nonconsensual intercourse, as it was “not
possible to be found responsible for both an attempted act and the completed
act.”
31
As for Doe’s contentions regarding newly discovered evidence, the
SBAP agreed with Doe that Dr. Allee should have contacted at least the
newly identified witness, and should have followed up with the Athletics
Department to ascertain its rules and practices regarding sexual
relationships between trainers and athletes. However, the SBAP also found
that new evidence identified or produced was, in some instances, irrelevant to
the Title IX investigation and, in others, would not have changed the result
had it been considered. The panel rejected Doe’s assertions that Dr. Allee
was biased, and had placed unwarranted emphasis on Roe’s statements to
witnesses before and after the sexual activity on October 24. In conclusion,
the SBAP found no investigatory flaw sufficient to affect the outcome of the
investigation, and agreed that expulsion was the appropriate sanction.
On May 12, 2015, four days after receiving the SBAP’s
recommendations, Dr. Ainsley Carry, the Vice Provost, accepted the SBAP’s
recommended sanction of expulsion, and Doe was expelled, effective
immediately.
Doe filed a petition seeking a writ of administrative mandate against
respondents (§ 1094.5). The trial court rejected Doe’s contentions that he was
denied due process, that Allee or Dr. Carry were biased, and that there was
insufficient evidence to support the SAR’s findings. The petition was denied.
This timely appeal followed entry of judgment.
DISCUSSION
1. A Justiciable Controversy Exists
Before we consider the merits of Doe’s challenges to the judgment, we
decide a preliminary issue: whether a justiciable controversy exists.
Respondents insist this matter is moot. They allege that, in January 2016,
32
while the writ was pending, Doe was charged with committing several
felonies near USC, and, in April 2016, sentenced to six years in state prison,
a sentence he was serving when the petition was heard. In August 2016, Doe
was expelled for independent violations of the SCC. As a result, respondents
argue that, regardless of this Court’s decision, Doe is no longer eligible to
return to USC. We note that the record does not contain evidence of Doe’s
conviction, but does show that he was expelled in August 2016.
We agree with the trial court. The matter is not moot: “Being labeled a
sex offender by a university has both an immediate and lasting impact on a
student’s life. [Citation.] . . . . [The student’s] personal relationships might
suffer. [Citation.] And he could face difficulty obtaining educational and
employment opportunities down the road, especially if he is expelled.” (Doe v.
Baum (6th. Cir. 2018) 903 F.3d 575, 582 (Baum); Doe v. University of
Cincinnati (6th Cir. 2017) 872 F.3d 393, 400 [a student’s expulsion for a
sexual offense can have a lasting impact on his personal life and educational
and employment opportunities] (Cincinnati).) As the trial court stated, Doe’s
eligibility to return to USC is not “the only ‘effectual relief’ that [he] can
obtain in this action. . . . [E]xpungment of an expulsion mark for sexual
misconduct on [Doe’s] USC transcript would make it far easier for him to
transfer to a different university to continue his education. Expungement
could also have a tendency to restore [Doe’s] reputation, at least to some
degree, in the public eye.”
We proceed to consider Doe’s challenges to the judgment.
2. The Standard of Review
“‘The remedy of administrative mandamus . . . applies to private
organizations that provide for a formal evidentiary hearing.’” (Doe v.
University of Southern California (2016) 246 Cal.App.4th 221, 237, fn. 9 (Doe
33
v. USC(1).) As relevant here, the question presented by a petition for writ of
administrative mandate is whether there was a fair trial. (§ 1094.5, subd.
(b); Doe v. Regents of University of California (Santa Barbara) (2018) 28
Cal.App.5th 44, 55 (UCSB).) “We review the fairness of the administrative
proceeding de novo[,] . . . ‘because the ultimate determination of procedural
fairness amounts to a question of law.’ [Citation.] . . . ‘[A] “‘fair trial’” means
. . . “a fair administrative hearing.”’ [Citations.]” (Doe v. USC(1), supra, 246
Cal.App.4th at p. 239; accord, UCSB, supra, 28 Cal.App.5th at p. 55; Doe v.
Regents of University of California (San Diego) (2016) 5 Cal.App.5th 1055,
1072 (UCSD).)
“The scope of our review from a judgment on a petition for writ of
mandate is the same as that of the trial court. [Citation.] ‘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.’ [Citation.]” (Doe v. USC(1), supra, 246
Cal.App.4th at p. 239.) This and numerous courts have applied this standard
to disciplinary decisions involving sexual misconduct at private and public
universities. (Ibid.; UCSD, supra, 5 Cal.App.5th at p. 1072; Doe v. Claremont
McKenna College (2018) 25 Cal.App.5th 1055, 1065 (CMC); UCSB, supra, 28
Cal.App.5th at p. 56; Doe v. University of Southern California (Dec. 11, 2018)
___ Cal.App.5th ___, ___ [2018 WL6499696] (Doe v. USC(2).)
3. Doe Has Not Shown that Respondents Harbored Bias Against Him
Initially, Doe contends that respondents–principally Dr. Allee–were
biased against him, resulting in an incomplete and unfair investigation and
adjudication. Doe argues that information gleaned after the disciplinary
proceeding revealed that Dr. Allee conducted extensive work as an advocate
34
for victims of sexual assault prior to her employment by USC. According to
Doe, that evidence demonstrates that Dr. Allee could not conduct a fair
disciplinary investigation and was necessarily biased in favor of alleged
28
victims of sexual assault.
While we understand why Doe believes Dr. Allee might harbor an
inherent bias against someone accused of sexual assault, Doe’s obligation on
appeal is to demonstrate actual bias. A disciplinary decision may not be
invalidated solely on the basis of an inference or appearance of bias. (See Gai
v. City of Selma (1998) 68 Cal.App.4th 213, 219; cf., BreakZone Billiards v.
City of Torrance (2000) 81 Cal.App.4th 1205, 1236 [“A mere suggestion of bias
is not sufficient to overcome the presumption of integrity and honesty” in a
hearing officer].) We agree with the trial court’s analysis: “[t]he fact that,
before her employment at USC, Dr. Allee did some work as a victims’
advocate, . . . and gave presentations regarding preventing sexual assault,
does not establish that Dr. Allee is likely biased against all men . . . accused
of sexual assault.” Doe has not provided evidence to demonstrate that Dr.
Allee’s findings and conclusions were premised on actual bias against him or
generally against anyone accused of sexual assault, or that there is a high
probability of such bias. Doe’s “mere belief that [a school official] acted with
. . . ulterior motives is insufficient to state a claim for relief.” (Doe v. Univ. of
28
Prior to her employment at USC, Dr. Allee worked at the University of
California, Santa Barbara (UCSB), directing outreach and services for female
survivors of interpersonal violence, harassment, and for a Rape Prevention
Education Program. She has made presentations on gender-based violence,
focused on the rights of alleged victims, and received an award for her service
as an “exemplary advocate for survivors of sexual assault.”
35
Cincinnati (S.D. Ohio 2016) 173 F.Supp.3d 586, 602, fn. omitted (Univ. of
29
Cincinnati).)
4. Fair Hearing Requirements
Although we conclude that Doe failed to prove actual bias in USC’s
disciplinary process, we conclude on other grounds that USC’s process is
fundamentally flawed. As we explain in more detail below, we hold that in a
case such as Doe’s, in which a student faces serious discipline for alleged
sexual misconduct, and the credibility of witnesses is central to the
adjudication of the charge, fundamental fairness requires that the university
must at least permit cross-examination of adverse witnesses at a hearing in
which the witnesses appear in person or by some other means (such as means
provided by technology like videoconferencing) before one or more neutral
adjudicator(s) with the power independently to judge credibility and find
facts. The factfinder may not be a single individual with the divided and
inconsistent roles occupied here by the Title IX investigator in the USC
system.
a. General Principles of Fundamental Fairness
Until recently, few cases had attempted to define “fair hearing
standards for student discipline at private universities.” (Doe v. USC(1),
supra, 246 Cal.App.4th at p. 245.) For practical purposes, common law
requirements for a fair disciplinary hearing at a private university mirror the
29
We also reject Doe’s assertion that the members of “the anonymous
SBAP panel . . . were not impartial adjudicators.” Neither the SBAP itself,
nor any individual panel member, is a party to this action.
36
due process protections at public universities. (Id. at pp. 245–247; see CMC,
supra, 25 Cal.App.5th at p. 1067, fn. 8; accord, Doe v. USC(2), supra,
___Cal.App.5th at p. ___, (2018WL6499696), fn. 25; cf., Doe v. Trustees of the
University of Penn. (E.D. Pa. (2017) 270 F.Supp.3d 799, 813 [student at
private university was not entitled to the same due process protections as
student at a state university, but due process protections applied in contract
action in which private university agreed to provide a “fundamentally fair”
30
disciplinary process].)
Fair hearing requirements are “flexible” and entail no “rigid
procedure.” (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1807;
Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555
(Pinsker).) Disciplinary hearings “need not include all the safeguards and
formalities of a criminal trial.” (UCSD, supra, 5 Cal.App.5th at p. 1078.)
“‘[T]he formal rules of evidence do not apply . . . .’ [Citation.]” (UCSB, supra,
28 Cal.App.5th at p. 56; Univ. of Cincinnati, supra, 173 F.Supp.3d at p. 602
[there is “no prohibition against the use of hearsay evidence in school
disciplinary hearings”].) Historically, all that was required for a student
30
We acknowledge that, unlike public universities, which are “‘“subject to
federal constitutional guarantees,”’ [citation] . . . private college[s], generally
[are] not subject to the constitutional requirements of procedural due
process.” (CMC, supra, 25 Cal.App.5th at p. 1067, fn. 8.) Nevertheless,
“[d]ue process jurisprudence . . . may be ‘instructive’ in cases determining fair
hearing standards for student disciplinary proceedings at private schools.”
(Ibid., citing Doe v. USC(1), supra, 246 Cal.App.4th at p. 245; accord, Doe v.
USC(2), supra, ___ Cal.App.5th at p. ___, fn. 25 [2018WL6499696].) We do
not, however, necessarily conclude that the requirements for a fair hearing
for a private university are identical to state and federal constitutional
requirements. (See CMC, at p. 1067, fn. 8.) We need not address that
question to resolve this appeal.
37
facing discipline was that he or she “be given some kind of notice and
afforded some kind of hearing.” (Goss v. Lopez (1975) 419 U.S. 565, 579
(Goss); see Board of Curators of Univ. of Missouri v. Horowitz (1978) 435 U.S.
78, 85–86 [Goss requires only an informal “give and take” between the
student and administrative body that, at least, gives the student an
opportunity to place his conduct in what he believes is the proper context].)
Nonetheless, fundamental fairness requires that a disciplinary
proceeding afford an accused student “‘a full opportunity to present his
defenses.’” (UCSD, supra, 5 Cal.App.5th at p. 1104; Pinsker, supra, 12 Cal.3d
at p. 555 [fair hearing requires that accused be given a “meaningful
opportunity to be heard in his defense”].) “‘[T]o comport with due process,’
the university’s procedures should ‘“be tailored, in light of the decision to be
made, to ‘the capacities and circumstances of those who are to be heard,’
[citation] . . . to insure that they are given a meaningful opportunity to
present their case.”’” (UCSD, supra, 5 Cal.App.5th at p. 1078.)
b. Fair Disciplinary Process in Cases Involving Sexual Misconduct,
Where Determination Pivots on Witness Credibility
A spate of recent cases has attempted more clearly to delineate the
contours of a “fair hearing” in university disciplinary proceedings involving
allegations of sexual misconduct, where the resolution of conflicting accounts
31
turns on witness credibility. These decisions have wrestled with the
31
Much of this litigation arose in the wake of the so-called 2011 “Dear
Colleague Letter,” issued by the U.S. Department of Education’s Office for
Civil Rights (OCR). Among other things, the 2011 Dear Colleague Letter
demanded that academic institutions employ procedures to make it easier for
victims of sexual assault to prove their claims in disciplinary actions
involving sexual misconduct. It also required schools to adopt measures in
38
inherent quandaries in evaluating university disciplinary proceedings so as
to be fair to both the accused and accusing student, without placing
unnecessary burdens on academic institutions. Such situations require
recognition of significant competing concerns. There is the accused student’s
interest in “‘avoid[ing] unfair or mistaken exclusion from the educational
process, with all of its unfortunate consequences. . . . Disciplinarians,
response, or risk losing federal funding. (See Russlynn Ali, OCR, U.S. Dept.
of Educ., Dear Colleague Letter: Sexual Violence (Apr. 4, 2011),
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.)
Questions have been raised about whether disciplinary procedures,
implemented in response to the 2011 Dear Colleague letter, in cases alleging
sexual assault and discrimination, went too far. (See e.g., Doe v. Brandeis
University (D.C. Mass. 2016) 177 F.Supp.3d 561, 572 (Brandeis); Doe v.
Brown University (D.C.R.I. 2016) 166 F.Supp.3d 177, 181.) “The goal of
reducing sexual assault, and providing appropriate discipline for offenders, is
certainly laudable. Whether the elimination of basic procedural protections—
and the substantially increased risk that innocent students will be
punished—is a fair price to achieve that goal is another question altogether.”
(Brandeis, supra, 177 F.Supp.3d at p. 572; see Doe v. Marymount University
(E.D. Va. 2018) 297 F.Supp.3d 573, 583, fn. 14, citing Brandeis, supra, 177
F.Supp.3d at p. 572.)
In September 2017, OCR withdrew the 2011 Dear Colleague Letter.
OCR, Dear Colleague Letter (Sept. 22, 2017)
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-
201709.pdf> [as of Jan. 3, 2019].) On November 15, 2018, OCR issued
proposed regulations modifying the minimum standards for a Title IX
investigation of allegations of sexual misconduct. (OCR, Title IX of the
Education Amendments of 1972 Notice of Proposed Rulemaking
[as of
Jan. 3, 2019] (Proposed Regulations).) Under the Proposed Regulations, on
track to become final by February 2019, an investigator also may not serve as
adjudicator, universities must hold live hearings, and accused students may
have an “advisor” cross-examine the accuser and witnesses, either in person
or through a technological medium. (Proposed Regulations, § 106.45, subd.
(b)(3), (4).)
39
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.”’ (Doe v. USC(1), supra, 246
Cal.App.4th at p. 240; see UCSD, supra, 5 Cal.App.5th at p. 1078; CMC,
supra, 25 Cal.App.5th at p. 1066.) At the same time, it is vital that
universities aim to provide safe environments for their students.
“Disciplinary 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. [Citations.]”
(CMC, supra, 25 Cal.App.5th at p. 1066.)
Further, these concerns must be addressed in light of the nature of a
university and the limits of its resources. “‘“A formalized hearing process
would divert both resources and attention from a university’s main calling,
that is education. Although a university must treat students fairly, it is not
required to convert its classrooms into courtrooms.’” [Citation.]” (CMC,
supra, 25 Cal.App.5th at p. 1066.) To comport with due process and address
these concerns, university procedures must be tailored in light of the matters
at issue, to ensure that parties have a meaningful opportunity to present
their case. (UCSD, supra, 5 Cal.App.5th at p. 1078.)
Recent cases have grappled with these concerns in the context of an
accused student’s right to confront adverse witnesses. In CMC, supra, 25
Cal.App.5th 1055, a student at a private college faced suspension after being
accused of engaging in nonconsensual sex with another student. He claimed
the sex was consensual. Only the two students witnessed the incident.
(CMC, supra, 25 Cal.App.5th at p. 1070.) The results of an investigation
40
conducted by an outside investigator were referred to a committee consisting
of that investigator and two CMC representatives. The committee was
charged with the responsibility to meet in order to evaluate the evidence, and
decide by majority vote whether the accused student committed sexual
misconduct. (Id. at pp. 1062–1063.) CMC’s procedures permitted, but did not
require, the parties to appear at the meeting to make an oral statement.
Each student submitted a written statement to the committee in advance of
the hearing, but only the accused student appeared and spoke at the hearing.
(Id. at p. 1063.) The committee found his accuser more credible. (Id. at p.
1064.)
Our colleagues in Division One found that CMC denied the accused
student a fair hearing, given the accuser’s failure to appear at the hearing to
permit the committee to assess her credibility. Fairness required that
committee members hear from her directly before choosing to credit her
account. (CMC, supra, 25 Cal.App.5th at pp. 1072–1073.) The court held
“that where . . . [an accused student] was facing potentially severe
consequences and the [review] Committee’s decision against him turned on
believing [his accuser], the Committee’s procedures should have included an
opportunity for the Committee to assess [the accuser’s] credibility by her
appearing at the hearing in person or by videoconference or similar
technology, and by the Committee’s asking her appropriate questions
proposed by [the accused] or the Committee itself.” (Id. at p. 1057.)
In Cincinnati, university procedures permitted an accused student to
question witnesses indirectly by submitting questions to a factfinding panel
at a live hearing. (Cincinnati, supra, 872 F.3d at p. 396.) However, the
complaining witness chose not to appear, and the accused student had no
opportunity to question her, indirectly or otherwise. (Id. at p. 397.)
41
Nevertheless, the review panel relied on an investigator’s written report to
find the accusing student’s statement that she had not consented to sex more
credible than the accused’s, who claimed the sexual encounter was
consensual. (Id. at pp. 402, 407.) In light of the directly conflicting claims,
and an absence of corroborative evidence to either support or refute the
allegations, the review panel was forced to choose whom to believe. “[T]he
panel resolved this ‘problem of credibility’ without assessing [the
complainant’s] credibility. [Citation.]” (Id. at p. 402.) Indeed, “it decided
[the accused student’s] fate without seeing or hearing from [the complainant]
at all.” (Ibid.) That result was not merely “disturbing”; it was “a denial of
due process.” (Ibid.)
In UCSB, our colleagues in Division Six similarly found that neither an
accused student nor his accuser received a fair hearing in a case that “turned
on the [fact finder’s] determination of the credibility of the witnesses.
Credibility cannot be properly decided until the accused is given the
opportunity to adequately respond to the accusation. The lack of due process
in the hearing . . . precluded a fair evaluation of the witnesses’ credibility.”
(UCSB, supra, 28 Cal.App.5th at p. 61.) “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.’” (Id. at p. 56.)
In Baum, two students gave inconsistent accounts as to whether the
accusing student had been so drunk she lacked the capacity to consent.
(Baum, supra, 903 F.3d at pp. 578-579.) An investigator interviewed 23
witnesses: statements from female witnesses corroborated the accuser; those
from male witnesses corroborated the accused’s account. (Id. at p. 579.) The
court found there was a “significant risk” that the accused was denied due
42
process because the ultimate determination turned on credibility, and the
university relied on witness statements rather than receiving live testimony
from the accuser, the accused or witnesses. (Id. at pp. 581–582, 585.)
“‘A decision relating to the misconduct of a student requires a factual
determination as to whether the conduct took place or not.’ [Citation.] ‘The
accuracy of that determination can be safeguarded by the sorts of procedural
protections traditionally imposed under the Due Process Clause.’ [Citation.]
Few procedures safeguard accuracy better than adversarial questioning. In
the case of competing narratives, ‘cross–examination has always been
considered a most effective way to ascertain truth.’ [Citations.] [¶] ‘The
ability to cross–examine is most critical when the issue is the credibility of
the accuser.’ [Citation.] Cross–examination takes aim at credibility like no
other procedural device. [Citations.] A cross-examiner may ‘delve into the
witness’ story to test the witness’ perceptions and memory.’ [Citation.] He
may ‘expose testimonial infirmities such as forgetfulness, confusion, or
evasion . . . thereby calling to the attention of the factfinder the reasons for
giving scant weight to the witness’ testimony.’ [Citation.] He may ‘reveal[]
possible biases, prejudices, or ulterior motives’ that color the witness’s
testimony. [Citation.] His strategy may also backfire, provoking the kind of
confident response that makes the witness appear more believable to the fact
finder than he intended. [Citations.] Whatever the outcome, ‘the greatest
legal engine ever invented for the discovery of truth’ will do what it is meant
to: ‘permit[] the [fact finder] that is to decide the [litigant]’s fate to observe
the demeanor of the witness in making his statement, thus aiding the [fact
finder] in assessing his credibility.’ [Citation.]’” (Cincinnati, supra, 872 F.3d
at pp. 401–402.)
43
We agree with CMC, Cincinnati and UCSB, that, where credibility is
central to a university’s determination, a student accused of sexual
misconduct has a right to cross-examine his accuser, directly or indirectly, so
the fact finder can assess the accuser’s credibility. (CMC, supra, 25
Cal.App.5th at p. 1070; Cincinnati, supra, 872 F.3d at p. 401 [“[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”]; UCSB, supra, 28 Cal.App.5th at p. 60.) Recognizing the risk that
an accusing witness may suffer trauma if personally confronted by an alleged
assailant at a hearing, we observed in Doe v. USC(1), supra, 246 Cal.App.4th
221, that mechanisms can readily be fashioned to “provid[e] accused students
with the opportunity to hear the evidence being presented against them
without subjecting alleged victims to direct cross-examination by the
accused.” (Id. at p. 245, fn. 12.) For instance, the court in CMC noted that an
accuser could be present “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.” (CMC, supra, 25 Cal.App.5th at p. 1070; accord, UCSD,
supra, 5 Cal.App.4th at pp. 1103–1104.) In Baum, the Sixth Circuit agreed,
observing that “if the university does not want the accused to cross–examine
the accuser under any scenario, then it must allow a representative to do so.”
(Baum, supra, 903 F.3d at p. 583, fn. 3.)
We also agree with Baum’s holding extending the right of cross-
examination to the questioning of witnesses other than the complainant
where their credibility is critical to the fact-finder’s determination. “[I]f a
university is faced with competing narratives about potential misconduct,”
some form of in–person questioning is required to enable “the fact-finder [to]
44
observe the witness’s demeanor under that questioning.” (Baum, supra, 903
F.3d at pp. 581-582.)
Doe v. USC(2), supra, __ Cal.App.5th ___ [2018 WL 6499696] is the
most recent addition to this growing body of law. In Doe v. USC(2), our
colleagues in Division Seven found a denial of due process in a case involving
allegations of sexual misconduct resolved under the same student
disciplinary procedure at issue here. The court found that a USC student
accused of sexual assault and rape, and facing expulsion, was denied a fair
hearing when, among other things, USC’s Title IX investigator failed
personally to interview critical witnesses to observe their demeanor and
assess credibility. (Id. at pp. *14-16.) The determination whether expulsion
was appropriate turned on the credibility of several inconsistent witness
accounts, and the investigator bore responsibility to determine credibility.
(Ibid.) The court held that the investigator could not make a credibility
determination based on a cold record, i.e., written witness statements
prepared by a different investigator who had actually conducted the witness
interviews. (Id. at pp. *13-14.)
The court reversed and remanded the matter to permit USC to conduct
a new disciplinary hearing. In the event the university chose to reopen the
investigation, it was instructed that providing the “accused student . . . the
opportunity indirectly to question the complainant” would be part of the
investigator’s obligation to assess credibility. (Id. at p. *17.) Although USC’s
procedures do not provide an accused student the right to submit questions to
be asked of the complainant, the court required that the university do so.
The court specifically declined to reach the question whether USC’s failure to
provide a procedure to permit an accused student indirectly to question
witnesses against him violated his right to a fair hearing. (Id. at p. *17, fn.
45
36.) In the course of its discussion, the court observed in a footnote:
“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 . . . .’ [Citations.]” (Id. at
pp. *35-36, fn. 29.)
In our view, the analysis in USC v. Doe(2) did not fully consider a key
question: whether the right to a fair hearing, and in particular the right to
cross–examination, has any practical efficacy without structural procedural
changes in a procedure such as that used by USC. It is true that an
administrative procedure in which a single individual or body investigates
and adjudicates does not, “without more,” violate due process. In Doe v.
USC(1), supra, 246 Cal.App.4th 221, we recognized “‘the value of cross-
examination as a means of uncovering the truth [citation], [but] reject[ed] the
notion that as a matter of law every administrative appeal . . . must afford
the [accused] an opportunity to confront and cross-examine witnesses.’” (Id.
at p. 245.) We adhere to that view. However, as we also observed, the
“‘[s]pecific requirements for procedural due process vary depending upon the
situation under consideration and the interests involved.’ [Citation.]” (Id. at
p. 244.) When credibility of witnesses is essential to a finding of sexual
misconduct, the stakes at issue in the adjudication are high, the interests are
significant, and the accused’s opportunity to confront adverse witnesses in
the face of competing narratives is key. “Cross-examination takes aim at
credibility like no other procedural device.” (Cincinnati, supra, 872 F.3d at p.
401.) Under such circumstances, the performance of this key function is
simply too important to entrust to the Title IX investigator in USC’s
procedure.
46
As we have explained, in USC’s system, no in–person hearing is ever
held, nor is one required. Instead, the Title IX investigator interviews
witnesses, gathers other evidence, and prepares a written report in which the
investigator acts as prosecutor and tribunal, making factual findings,
deciding credibility, and imposing discipline. The notion that a single
individual, acting in these overlapping and conflicting capacities, is capable of
effectively implementing an accused student’s right of cross–examination by
posing prepared questions to witnesses in the course of the investigation
ignores the fundamental nature of cross–examination: adversarial
questioning at an in–person hearing at which a neutral fact finder can
observe and assess the witness’ credibility. (See Baum, supra, 903 F.3d at p.
586 [“‘Few procedures safeguard accuracy better than adversarial
questioning’” through cross-examination]; cf., Whitford v. Boglino (7th Cir.
1995) 63 F.3d 527, 534 [due process forbids an officer who was substantially
involved in the investigation of charges against an inmate from also serving
on the adjudicating committee].) At bottom, assessing what is necessary to
conduct meaningful cross–examination depends on a common sense
evaluation of the procedure at issue in the context of the decision to be made.
From that prospective, a right of “cross–examination” implemented by a
single individual acting as investigator, prosecutor, factfinder and sentencer,
is incompatible with adversarial questioning designed to uncover the truth.
32
It is simply an extension of the investigation and prosecution itself.
32
In noting that combining the roles of investigator and adjudicator does
not without more violate due process, the court in USC v. Doe(2) cited several
cases, none of which are inconsistent with our conclusion that USC’s system
is fundamentally unfair because the Title IX investigator is incapable of
effectively implementing the accused’s student’s right to cross-examine
47
Moreover, the harm to fundamental fairness created by USC’s system
is amplified by the limited review of the investigator’s factual findings
available in the university’s appellate process. As we have explained, the
SBAP’s review relies wholly on the SAR, plus any additional written
materials accepted on appeal, and is limited to review for substantial
evidence. The SBAP may not substitute its credibility findings for those
made by the investigator, and may not make new factual findings. Because a
version of events provided by a single witness (assuming it is not implausible
on its face) constitutes substantial evidence, the mere fact that the
complainant’s allegations of misconduct are deemed credible by the
investigator constitutes substantial evidence. Thus, the SBAP will virtually
never be in a position to set aside an investigator’s factual findings.
witnesses. Southern Cal. Underground Contractors, Inc. v. City of San Diego
(2003) 108 Cal.App.4th 533, 548-549 stands for the proposition that a party
must show actual bias on the part of a decisionmaker, not merely the
appearance of bias, to establish a denial of due process. (Id. at pp. 548–549.)
In Withrow v. Larkin (1975) 421 U.S. 35, the Court observed that a
licensing board’s initial determination of probable cause, and its ultimate
adjudication rested on different bases and had different purposes. Thus, the
fact that the same agency made them and they related to the same issues
would not ordinarily constitute a procedural due process violation. (Id. at p.
58.) Similarly, Griggs v. Board of Trustees (1964) 61 Cal.2d 93, and
Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th
1123, agreed that the mere combination of investigative and adjudicative
functions in an agency do not necessarily constitute denial of a fair hearing.
(Griggs v. Board of Trustees, supra, 61 Cal.2d at p. 98; Hongsathavij v. Queen
of Angels etc. Medical Center, supra, 62 Cal.App.4th at p. 1142.) However, as
the Court cautioned in Withrow v. Larkin, a substantial due process question
is clearly raised “if the initial view of the facts based on the evidence derived
from nonadversarial processes . . . foreclosed fair and effective consideration
at a subsequent adversary hearing leading to ultimate decision.” (Withrow v.
Larkin, supra, 421 U.S. at p. 58.)
48
Moreover, because the SBAP cannot modify a sanction imposed by the
investigator unless it is unsupported by the investigator’s factual findings or
is grossly disproportionate to the violation shown by those findings, the
sanction imposed by the investigator will rarely, if ever, be modified.
In light of these concerns, we hold that when a student accused of
sexual misconduct faces severe disciplinary sanctions, and the credibility of
witnesses (whether the accusing student, other witnesses, or both) is central
to the adjudication of the allegation, fundamental fairness requires, at a
minimum, that the university provide a mechanism by which the accused
may cross–examine those witnesses, directly or indirectly, at a hearing in
which the witnesses appear in person or by other means (e.g.,
videoconferencing) before a neutral adjudicator with the power independently
to find facts and make credibility assessments. That factfinder cannot be a
single individual with the divided and inconsistent roles occupied by the Title
IX investigator in the USC system.
5. Doe Was Denied a Fair Hearing
The flaws in Dr. Allee’s investigation, which formed the basis of her
factual findings, illustrate well the significant dangers created by USC’s
system. This case turned on witness credibility. There are inconsistent
accounts from Roe and Doe about whether their sexual encounter was
consensual. The only physical evidence is photographs of small bruises on
Roe’ arms, breast and thigh. That evidence could support either Doe’s claim
of vigorous consensual sex, or Roe’s charge of sexual assault. Evaluation of
the credibility of the only witnesses to the event was pivotal to a fair
adjudication.
49
Dr. Allee had unfettered discretion to chart the course and scope of her
investigation and to determine credibility, and exercised that discretion in
questionable ways. In his first meeting with Dr. Allee, Doe articulated his
theory that Roe had a strong motive to fabricate a charge of rape. Dr. Allee
seems to have rejected that theory almost immediately, despite investigative
leads–such as statements by E.C. and K.J., and Roe’s texts to Mia–that, if
pursued, would lend support to Doe’s theory, and weaken Roe’s credibility.
This was symptomatic of a larger problem with Dr. Allee’s investigation. She
did not follow up with presumably identifiable and available witnesses (such
as D.N.’s girlfriend, Mia, K.J. or the women who saw Roe and Doe walking
together on October 23), who might have filled in holes in the investigation,
thus providing a fuller picture from which to make the all-important
credibility determination.
In addition, E.C., Roe’s long-term roommate at USC, specifically
informed the investigator that Roe had been disciplined for having sex with a
football player, had agreed in writing not to do so, and could lose her job if
she did so again. Roe herself told Mia she was worried about her job and
ability to obtain recommendations for graduate school if her sexual encounter
with Doe became known. Inexplicably, Dr. Allee failed to check with the
Athletic Department to determine its policies and practices regarding sexual
relations between student trainers and athletes, let alone ascertain the
existence of the agreement Roe purportedly signed. Instead, Dr. Allee
accepted at face value Roe’s claim that she knew several “trainers [who had]
hooked up with athletes and [were] fine.” Dr. Allee also made the
unattributed, unequivocal pronouncement that “USC’s Athletic Training
[Department] has had knowledge of athletic trainers engaging in consensual
sexual activity with athletes and trainers [who] were not fired despite their
50
33
employment contract . . . prohibit[ing] fraternizing with athletes.” Finally,
in the SAR, Dr. Allee stated that USC “would not retaliate against a student
who had experienced non-consensual sexual acts.” (Italics added.) This, of
course, does not address Doe’s theory that Roe manufactured the charge
against him for fear she would suffer negative consequences if her consensual
sex acts with a football player became known, and suggests, at a minimum,
that Dr. Allee may have been confused.
Deficiencies such as these are virtually unavoidable in USC’s system,
which places in a single individual the overlapping and inconsistent roles of
investigator, prosecutor, factfinder, and sentencer. While providing a hearing
at which the witnesses appear and are cross-examined before a neutral
factfinder cannot ensure that such flaws do not occur, such a procedure at
least provides an accused student with a fair and meaningful opportunity to
confront the adverse witnesses in an attempt to expose weaknesses in the
evidence. In Doe’s case, he was accused of sexual misconduct for which he
faced serious disciplinary sanctions, and the credibility of witnesses was
central to the adjudication of the allegations against him. In those
circumstances, he was entitled to a procedure in which he could cross-
examine witnesses, directly or indirectly, at a hearing at which the witnesses
appeared in person or by other means before a neutral adjudicator with the
power to make finding of credibility and facts. Because USC failed to provide
such a procedure, the adjudication findings that he committed sexual
33
Although the SBAP specifically questioned Dr. Allee’s failure to follow
up with the Athletic Department, and observed that she should have
contacted at least one of Doe’s new witnesses, there remained sufficient (a
preponderance of ) evidence to sustain the SAR’s findings.
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misconduct in violation of the SCC cannot stand. (UCSD, supra, 5
Cal.App.5th at p. 1084.)
DISPOSITION
The judgment is reversed and the matter remanded to the trial court
with directions to grant Doe’s petition for writ of administrative mandate
insofar as it seeks to set aside the findings that he violated USC’s student
conduct code. Because Doe is no longer eligible for reinstatement, he is not
entitled to that relief. Doe is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
DUNNING, J.*
*Judge of the Orange County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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