Boermeester v. Carry ( 2020 )

Filed 5/28/20
CERTIFIED FOR PUBLICATION
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MATTHEW BOERMEESTER, B290675
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS170473)
v.
AINSLEY CARRY et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Amy D. Hogue, Judge. Reversed and remanded
with directions.
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker
for Plaintiff and Appellant.
Young & Zinn, Julie Arias and Karen J. Pazzani for
Defendants and Respondents.
_____________________________
Matthew Boermeester was expelled from the University of
Southern California (USC) for committing intimate partner violence
against Jane Roe.1 The superior court denied his petition for writ of
administrative mandate to set aside the expulsion. He appeals,
contending, among other things, that the process leading to his
expulsion violated his right to a fair hearing. We conclude USC’s
disciplinary procedures at the time were unfair because they denied
Boermeester a meaningful opportunity to cross-examine critical
witnesses at an in-person hearing. We thus reverse and remand
with directions to the superior court to grant the petition for writ of
administrative mandate.
FACTUAL AND PROCEDURAL BACKGROUND2
Boermeester was a member of the USC football team, who
kicked the game-winning field goal for USC at the 2017 Rose Bowl.
Roe was also a student-athlete who played tennis for USC.
Boermeester and Roe dated from March 2016 to approximately
October 2016. On January 21, 2017, two USC students observed
Boermeester put his hand on Roe’s neck and push her against a
wall. They reported this incident to the USC men’s tennis coach,
which resulted in the initiation of an investigation. Boermeester did
not deny he put his hand on Roe’s neck and that she had her back
1 Although Jane Roe has identified herself to the public in the
events at issue, we will continue to use a pseudonym or initials to
refer to Roe and other witnesses in this opinion. (Cal. Rules of
Court, rule 8.90.)
2 Our recitation of facts is derived solely from the evidence in
the administrative record, and not the declarations submitted by
Boermeester that were not made part of the record.
2
against a wall while he did so. He contends, however, he did not
intend to harm her and they were merely “horsing around.”
Initial Interview with Jane Roe
Roe agreed to meet with USC’s Title IX office3 on January 23,
two days after the incident. Roe’s advisor was present.
Roe reported she spent the day with Boermeester on Friday,
January 20, 2017. He called to ask her to pick him up from a party
at approximately 12:30 or 1:00 a.m. on January 21, 2017. She did,
and they returned to her home after getting food. Boermeester was
the drunkest she had ever seen. He yelled in the alley behind her
house, trying to be funny.
Roe had her dog, Ziggy, with her. Boermeester wanted her to
drop Ziggy’s leash to allow him to run in the alley. He grabbed the
back of Roe’s hair hard and said “drop the fucking leash.” Roe
refused. Boermeester responded by increasing his hold on Roe’s
hair, causing her to drop the leash because it “hurt.”
Boermeester then grabbed Roe “tight” by the neck, causing her
to cough. He laughed and let go. He grabbed her by the neck twice
more and pushed her hard against a concrete wall that ran along the
alley behind her duplex. Roe’s head hurt after she hit the wall.
Three USC students, DH, TS, and MB2, exited their
apartments. Roe believed they were woken up by the loud yelling.
When they asked after Roe, Boermeester told them that he and Roe
3 The University’s Policy and Procedures on Student Sexual,
Interpersonal, and Protected Class Misconduct (sexual misconduct
policy) prohibits conduct such as intimate partner violence. It is
intended to comply with statutes prohibiting discrimination in
education, including Title IX of the Education Amendments of 1972
(20 U.S.C. § 1681 et seq.) (Title IX). As a result, the office which
implements the sexual misconduct policy is known as the Title IX
office.
3
were just “playing around.” DH and TS, who lived on the other side
of Roe in the duplex, took her into their apartment. Boermeester
was asleep when she got back to her room.
The next day, Roe told Boermeester that he scared DH and TS
because “it looked really bad when you pushed me and it looked
really bad with your hand around my neck.” He replied, “it was a
joke, we were messing around, tell them to calm down” and added,
“tell them you’re into that,” implying that it was foreplay. When
Roe asked him, “what if you hurt me bad? Would you feel bad?
If you were playing around and it hurt?” Boermeester told her,
“no” because it would have been “brought on by” her.
The Title IX coordinator explained Roe had the option to
request an avoidance of contact order (AOC) prohibiting
Boermeester from contacting her. Roe indicated she wanted the
AOC as well as temporary emergency housing because Boermeester
had a key to her house. The investigator noted Roe was crying
throughout the meeting.
Roe acknowledged she was in a “bad situation” but was
conflicted about what to do because she still cared for Boermeester.
Roe indicated she did not want to participate in an investigation and
did not want Boermeester to be charged with anything other than
the January 21, 2017 incident. She was informed the Title IX office
was obligated to investigate and could proceed without her consent.
Boermeester was charged with the January 21, 2017 incident of
intimate partner violence4 for which there were eyewitnesses.
4 USC’s sexual misconduct policy defines intimate partner
violence as violence committed against a person with whom the
accused student has a previous or current dating, romantic,
intimate, or sexual relationship. “Violence means causing physical
harm to the person or to their possessions. Intimate partner
4
Boermeester is Notified of the Investigation
On January 26, 2017, USC notified Boermeester of an
investigation into the events of January 21 and that he may have
violated USC’s sexual misconduct policy by committing intimate
partner violence. He was placed on interim suspension and received
an AOC letter.
That day, Roe exchanged a series of text messages with the
investigator stating, I am “pretty freaked out about today. I know
I’ve said this a lot but I really can’t emphasis [sic] enough that you
guys please please make it clear that I did not bring this forward
that I want nothing to do with it and I’m not pressing any charges.”
She further stated, “He can’t know I made a statement. Can you not
tell him I made a statement[?] Like he can’t know I met with you
guys.” The investigator assured her Boermeester would be advised
the investigation was initiated by the Title IX office and he would
not be made aware of her statement until the time of the evidence
review.
Jane Roe Recants
Roe and her advisor met with the investigator on January 30,
2017. Roe indicated she had reservations about the investigation
because she felt as though her voice was not heard and that it was
more about “burning him” than her wellbeing. Roe explained she
thought she was in a supportive environment when she initially met
with the Title IX office and so she freely shared her story. Although
she understood the Title IX office was “trying to do the right thing,”
violence may also include non-physical conduct that would cause a
reasonable person to be fearful for their safety; examples include
economic abuse and behavior that intimidates, frightens, or isolates.
It may also include sexual assault, sexual misconduct, or stalking.
Intimate partner violence can be a single act or a pattern of
conduct.”
5
it has made things for her more “difficult.” Roe felt bullied by the
process and no longer “fully believe[d]” many of the statements she
initially made to the Title IX office.
Roe also requested the AOC be lifted because she had changed
her mind. She requested the AOC during her first meeting because
she did not “trust” that it would be clearly conveyed to Boermeester
that the investigation was initiated by the Title IX office, not her.
She did not want Boermeester to be “mad” at her. She remarked
“at the end of the day, he is like my best friend so it is like you are
taking that away too.” She explained, “you think this is to protect
me. Feels like I lost control on everything and I feel like you are
controlling who I can talk to.” Roe stated that she did not feel she
was in danger. She was upset they could not speak. She believed
that the investigation was too harsh and that instead, Boermeester
should be mandated to go to counseling and be placed on probation.
The next day, Roe texted the investigator, “Will I know
tomorrow if I can get rid of my statement because I really don’t want
it used and I don’t even think it is fair because I still disagree with
somethings I said so to use it wouldn’t be accurate and I just have
been stressing about if it’s being used or not so will [the coordinator]
have an answer for me tomorrow?”
Meanwhile, media attention surrounding the suspension had
begun. Roe’s roommate reported Roe was worried about the impact
the publicity would have on Boermeester’s future career and NFL
prospects. On February 8, Roe tweeted in response to media reports
about Boermeester: “I am the one involved in the investigation with
Matt Boermeester. The report is false. @Deadspin @latimes
@ReignofTroy.”
6
Boermeester’s Statement
On January 30, 2017, Boermeester was interviewed by the
investigator with a USC administrative assistant present.
Boermeester’s mother attended as his advisor. Boermeester
generally confirmed the events of January 21 as Roe had described
them; however, he denied intending to hurt her.
He reported he and Roe ate at the Cheesecake Factory at
approximately 4:00 p.m. Later that night, he text messaged Roe to
pick him up from a party because he was unable to drive. He had
three glasses of wine at the restaurant and four to five beers at the
party. When they arrived at Roe’s home after picking up food, they
began playfully throwing french fries at one another.
Boermeester wanted to watch Roe’s dog run around so he
asked her to let the dog go. They were standing by a wall when he
instructed her to release the dog. He acknowledged he put his hand
around her neck while she stood against the wall, but denied they
were arguing or that he was angry. He also denied choking her or
slamming her head against the wall. He believed Roe felt safe with
him. He asserted he did not have a tight grip on her.
Boermeester reported he and Roe spent the next three nights
together and were sexually intimate. They saw each other every day
until she left for a tennis match on January 26, 2017. Boermeester
recalled he and Roe laughed about TS and DH assuming it was “real
violence.”
Boermeester believed the eyewitnesses misinterpreted what
they saw. Although he understood how it looked to them, he
thought it was ridiculous they wanted her to spend the night over at
their home rather than sleep with him.
7
He explained he and Roe sometimes put their hands on each
other’s necks during sex. When asked what impact this has had on
him, he stated, “I know to never do anything that resembles
domestic violence in public again. To be aware of my surroundings.”
The investigator asked, “just in public?” He responded, “Well no,
just to never give the impression of domestic violence.” Boermeester
stated, “I feel like a monster even though I didn’t do anything. I
can’t go to class, rehab, etc. I’m kinda sleeping, it’s on my mind all of
the time.”5
On February 14, 2017, the Title IX office notified Boermeester
he would also be investigated for violating the AOC. He provided a
written response by email denying contact with Roe in any format.
He asserted he had moved home to San Diego and had remained
there aside from meeting with his lawyer.
Additional Witness Statements
USC’s Title IX investigator interviewed over a dozen people,
including Roe, Boermeester, the eyewitnesses, Roe’s roommates and
friends, and Boermeester’s ex-girlfriend. The investigator made it a
general practice to re-read the statement to the person after the
interview to confirm accuracy.
MB2 is Roe’s neighbor. He initially reported he did not see
any physical contact between Roe and Boermeester. He explained
he heard an argument between a man and a woman about a dog.
When he walked outside to take out his trash and see what was
happening, “it kinda settled a little bit.” Roe approached him a few
days later to ensure he did not get the wrong impression.
5 Boermeester had knee surgery in early January 2017 and was
scheduled to receive rehabilitation and physical therapy from USC
staff. The Title IX office noted his treatment at USC facilities was
not prohibited by the interim suspension.
8
One month later, MB2 called the investigator to admit he had
not been truthful in his initial statement because he was trying to
“protect” Roe’s wishes to “keep it on the down low” and “downplay”
the incident. He explained Boermeester’s attorney attempted to
speak with him at his home in March 2017. He told the attorney
what he initially told the Title IX investigator. However, he decided,
“the lawyer coming to speak to me, finding my apartment, I don’t
want to keep this any longer, perpetuating this lie.”
During a second interview, MB2 reported he heard laughing
and screaming sounds coming from the alley by his home, which
initially seemed playful. The noise then changed to what sounded
like a male trying to “assert his dominance” over a female. MB2
looked into the alley and saw Boermeester standing in front of Roe
with both hands around her neck. He then pushed her into the alley
wall and she began to make “gagging” noises. MB2 added, “once he
put his arms around her the first time she wasn’t saying anything.”
MB2 believed, “this guy is violent. He domestically was abusing
her.” He stated, “truth is I really wanted to beat the shit out of this
guy.” Because of what he saw, MB2 grabbed a trash bag and went
outside. He asked them how things were going, which “broke it up.”
Afterwards, Boermeester and Roe walked back to her apartment.
DH is a member of the USC men’s tennis team and Roe’s
neighbor. He was reluctant to participate in the investigation but
described what he saw on the night of January 21, 2017.
He reported he heard screaming. He heard a male voice yelling
loudly and a female voice talking but could not make out what they
were saying. He looked outside and saw Roe and Boermeester
standing by the wall. He noticed Roe’s dog running in the alley,
which made him realize something was wrong because Roe did not
allow her dog to run freely. He saw Roe pinned against the wall by
9
Boermeester, who had his hand around her chest/neck. DH did not
see or hear Roe hit the wall.
TS is also a member of the USC men’s tennis team and is DH’s
roommate. He reported DH woke him up, urgently stating, “we
gotta go downstairs, [Boermeester] is hitting [Roe].” When they got
downstairs, DH asked to speak to Roe. Boermeester walked back to
Roe’s house. DH tried to convince her to spend the night at their
apartment. DH observed Roe was “playing casual at first” and tried
to “downplay it.” When DH confronted her about Boermeester’s arm
around her throat, she rationalized it by saying, “he’s just drunk.”
About 15 to 20 minutes later, Roe returned home, crying. She then
texted that Boermeester was asleep and stated, “I am safe. Thanks
for looking out for me.” TS and DH reported the incident the next
day to the men’s tennis coach.
Roe’s roommates and friends uniformly reported that Roe and
Boermeester’s relationship was volatile, but they did not personally
witness any physical violence between them. Most of them did not
believe Roe was in any physical danger. Instead, they often heard
Roe and Boermeester demean one another by calling each other
names. As the investigation progressed, Roe indicated to her friends
she did not want them to participate in the investigation.
Roe stated in a text message to TS, “Look what I want to say
is I’m helping Matt. I know you won’t agree with it but he’s already
gotten a shit ton of punishment for something I didn’t want to
happen in the first place. I wanted non[e] of this to take place at all.
He’s already suspended for probably two months and will be kicked
off the team and has a restraining order from me. I literally wanted
non[e] of it so what I’m asking as a friend is don’t say much. Please
don’t fuck him over more. I’m not in danger at all I trust him I trust
10
that he won’t ever hurt me again. I just hate that any of this is
going on. So I’m begging you.”
Roe confided in a few friends that Boermeester had given her
bruises. A text message from Roe to GO also indicated Roe may
have been in contact with Boermeester while the AOC was in place.
Boermeester’s ex-girlfriend, AB, dated him for almost three
years. She reported she and Boermeester would wrestle and joke
around. It sometimes started as tickling but would end in him
placing her in a “chokehold.” She would tell him to stop and he did.
She estimated he had his hands around her neck five to ten times.
When Boermeester placed his hands around her neck, “it crossed the
line from being joking and then it would be too much.” On two
occasions, he shoved her during an argument.
AB’s mother thought their rough housing was “always [going]
too far.” She “freaked out” when she saw Boermeester with his
hands around AB’s neck and screamed, “get your arms off [my]
daughter right now!” Boermeester apologized, but AB did not think
he realized he was “definitely too rough.” Nevertheless, AB did not
believe her parents were concerned about her safety when she was
dating Boermeester.
Surveillance Video
The investigator retrieved surveillance video of the incident
from a camera located in the alley approximately two buildings
away from Roe’s duplex. The recording does not contain audio and
is grainy. It is undisputed the video depicts Boermeester and Roe
interacting in the alley after midnight on January 21, 2017. The
video supports the trial court’s description of the events as follows:
“At 12:16:16 a.m., the video shows Petitioner shoving Roe from
the area adjacent to the house into the alleyway. At 12:16:50,
Petitioner appears to be holding Roe’s neck or upper body area.
11
At 12:17:12, Petitioner grabs Roe by the neck and pushes her toward
the wall of the alley. At 12:17:13 and 112:17:14, Roe’s head and
body arch backwards. Between 12:17:16 and 12:17:26, Petitioner
and Roe are against the wall and barely visible from the camera.
At 12:17:26, Petitioner backs away from the wall and re-enters the
camera’s view. At 12:17:28, Roe re-enters the camera’s view. Roe
and Petitioner proceed to push each other. At 12:17:38, Petitioner
moves toward Roe and appears to be pushing her against the wall.
At 12:17:40, a dog can be seen running across the alley. At 12:17:57,
a third party enters the camera’s view and walks in the direction of
Petitioner and Roe. At that moment, Petitioner and Roe walk away
from the wall and back towards the house. At 12:18:19, the third
party walks over to the dumpster, places a trash bag inside, and
walks back toward the house.”
USC’s Findings and Disciplinary Action
Based on the evidence obtained, the investigator found
Boermeester violated USC’s misconduct policy by engaging in
intimate partner violence and violating the AOC. The investigator
submitted her findings to the Misconduct Sanctioning Panel, which
is comprised of two staff or faculty members and an undergraduate
student. The panel decided upon a sanction of expulsion.
Boermeester appealed the findings of fact and determination
of violation to the Vice President for Student Affairs. An appellate
panel found the evidence supported the findings, but recommended
a two-year suspension because Boermeester’s conduct could have
been “reckless” rather than intentional. The Vice President for
Student Affairs rejected the appellate panel’s recommendation and
affirmed the decision to expel Boermeester, reasoning the sanction
was appropriate under the sexual misconduct policy regardless of
whether Boermeester intended to harm Roe or not.
12
Proceedings in the Superior Court
Boermeester filed a petition for writ of mandate in the
Superior Court under Code of Civil Procedure section 1094.5.
The court denied the petition for writ of mandate. Boermeester
appealed.
DISCUSSION
Boermeester contends he was denied notice of the allegations
against him and that interim measures were improperly imposed.
We find these contentions meritless.6 Boermeester also contends he
was entitled to a live evidentiary hearing where he can cross-
examine witnesses. We find Boermeester’s fair hearing argument
supported by caselaw and thus reverse and remand.
Because we conclude Boermeester was deprived of a fair
hearing for lack of a meaningful opportunity to cross-examine
critical witnesses at an in-person hearing, we decline to address
whether USC’s policy was also unfair because the Title IX
investigator held the dual roles of investigator and adjudicator.
We also need not address Boermeester’s other claims of error,
including whether substantial evidence supported USC’s findings.
6 To the extent Boermeester argues USC’s Title IX office was
biased against him, an argument that appears throughout his
appellate briefs, he has presented no legal or factual basis to support
this argument other than to say its decisions were not in his favor.
Boermeester has failed to meet his burden to demonstrate
prejudicial error in this regard. (In re Marriage of McLaughlin
(2000) 82 Cal. App. 4th 327, 337.) Boermeester also complains Roe
was not provided proper notice she was a suspected victim and
intended reporting party in the proceedings. Boermeester lacks
standing to assert Roe’s rights in this matter. (Angelucci v. Century
Supper Club (2007) 41 Cal. 4th 160, 175; see Code Civ. Proc., § 367.)
13
I. Standards of Review
In an appeal from a judgment on a petition for writ of
mandate, the scope of our review is the same as that of the Superior
Court, that is, we review the agency’s decision rather than the
Superior Court’s decision. (Doe v. University of Southern California
(2016) 246 Cal. App. 4th 221, 239 (USC I).) We determine “whether
the respondent has proceeded without, or in excess of, jurisdiction;
whether there was a fair trial; and whether there was any
prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd.
(b).) “Abuse of discretion is established if the respondent has not
proceeded in the manner required by law, the order or decision is
not supported by the findings, or the findings are not supported by
the evidence.” (Ibid.)
“The statute’s requirement of a ‘ “fair trial” ’ means that there
must have been ‘a fair administrative hearing.’ ” (Gonzalez v. Santa
Clara County Department of Social Services (2014) 223 Cal. App. 4th
72, 96.) “A challenge to the procedural fairness of the
administrative hearing is reviewed de novo on appeal because the
ultimate determination of procedural fairness amounts to a question
of law.” (Nasha v. City of Los Angeles (2004) 125 Cal. App. 4th 470,
482.) However, we review for substantial evidence USC’s
substantive decisions and factual findings. (USC I, supra, 246
Cal.App.4th at p. 239; Code Civ. Proc., § 1094.5, subd. (c).)
II. Boermeester Received Sufficient Notice
Boermeester complains he was not provided full notice that
the Title IX investigation would “extend to his entire relationship
history with [Roe], nor his relationship history with a previous
girlfriend who did not attend USC.” Thus, he claims he was
unaware the investigator was “collecting evidence to support her
opinion about an alleged ‘pattern’ of intimate partner violence, nor
14
that he needed to produce evidence to combat [the investigator’s]
preconceived notions about domestic violence.” We disagree.
“Generally, a fair procedure requires ‘notice reasonably
calculated to apprise interested parties of the pendency of the
action . . . and an opportunity to present their objections.’
[Citations.] With respect to student discipline, ‘[t]he student’s
interest is to avoid unfair or mistaken exclusion from the
educational process, with all of its unfortunate
consequences . . . Disciplinarians, although proceeding in utmost
good faith, frequently act on the reports and advice of others; and
the controlling facts and the nature of the conduct under challenge
are often disputed. The risk of error is not at all trivial, and it
should be guarded against if that may be done without prohibitive
cost or interference with the educational process.’ [Citation.] [¶]
‘At the very minimum, therefore, students facing
suspension . . . must be given some kind of notice and afforded some
kind of hearing.’ [Citation.] The hearing need not be formal, but ‘in
being given an opportunity to explain his version of the facts at this
discussion, the student [must] first be told what he is accused of
doing and what the basis of the accusation is.’ [Citation.]” (USC I,
supra, 246 Cal.App.4th at p. 240, quoting Goss v. Lopez (1975) 419
U.S. 565, 579–580 (Goss).)
Here, USC’s misconduct policy provides that an accused
student be given “[w]ritten notice of the alleged policy violation
including the specific acts, the date/period of time, and [the] location
[where the act allegedly occurred].” Boermeester acknowledges USC
complied with this policy. Indeed, USC informed him on January
26, 2017, that it was investigating a report he committed intimate
partner violence, “specifically, grabbing Jane Roe by the neck, and
pushing her head into a cinder block wall multiple times on/or about
15
January 21, 2017.” He was later notified of a second policy violation,
“specifically, contacting and communicating with [Roe] via text,
phone call, social media, and in-person since the issuance of the
Avoidance of Contact Order issued by Dr. Lynette Merriman and
served on you January 26, 2017.”
Boermeester reviewed the evidence compiled by the
investigator and responded to both allegations by written statement.
In his response, he complained about the interview with his ex-
girlfriend and contended her statement was “completely irrelevant
to the evidence relating to what happened on January 21, 2017.”
Boermeester also viewed text messages from Roe to GO in which she
indicated she had been in contact with him after issuance of the
AOC. After reviewing the evidence related to the AOC violation,
Boermeester responded by denying he had contact with Roe.
Boermeester’s written statements belie his contention that he
did not get notice of the extent of the investigation into his actions.
Boermeester was not only provided notice of the factual basis of the
allegations against him, he was also provided with a meaningful
opportunity to respond to them. We find that is sufficient notice of
the violations with which he was charged. (USC I, supra, 246
Cal.App.4th at pp. 240–241.)
III. The Interim Suspension Was Not Unfair
Boermeester next argues his interim suspension was “patently
unfair” because it was imposed without a hearing and he was not
provided with the evidence supporting it. In his reply brief,
Boermeester asserts the evidence was insufficient to support the
interim suspension. We are not persuaded.
Goss, supra, 419 U.S. 565, cited by Boermeester, supports our
conclusion. Goss recognized the need for interim measures, allowing
for the immediate removal of a student without notice or hearing if
16
the student “poses a continuing danger to persons or property or an
ongoing threat of disrupting the academic process . . .” (Id. at p.
582.) It held an accused student must be given “some kind of notice
and afforded some kind of hearing” when faced with disciplinary
proceedings. Goss did not hold a student was entitled to two
different notices and two different hearings if interim measures
were also imposed. (Id. at pp. 579–580.)
USC’s policy comports with Goss. It states that interim
protective measures, including interim suspension, may be imposed
when there is information the accused student poses a substantial
threat to the safety or well-being of anyone in the university
community. In deciding whether to impose interim protective
measures, the policy sets forth specific factors for consideration,
including whether the reported behavior involved the use of a
weapon or force, the risk of additional violence or significant
disruption of university life or function, whether there have been
other reports of prohibited conduct by the respondent, and the
university’s obligation to provide a safe and non-discriminatory
environment. It further states, “[a] student or organization subject
to interim protective measures is [to be] given prompt written notice
of the charges and the interim measure. An opportunity for review
of the measure is provided within 15 days of the notice by the Vice
President for Student Affairs or designee.”
Consistent with its policy, USC provided Boermeester with
notice of the charges against him and a review of the interim
suspension. Boermeester was notified of the charges against him,
the interim suspension, and the AOC, by letter dated January 26.
The letter advised him to schedule a meeting with the Title IX
investigator, at which time he would be able to “review the basis for
the investigation,” review his procedural rights, ask questions,
17
provide a statement, and submit relevant information or the identity
of potential witnesses. Thereafter, on January 30, Boermeester met
with the investigator. The record shows USC reviewed the basis for
the investigation with him at the meeting. On the same day,
Boermeester requested the interim suspension be discontinued or
modified because two witnesses “misinterpreted” the incident and
because it placed an undue burden on him. The request was denied
by USC’s Vice President of Student Affairs on January 31. In sum,
Boermeester was informed of the evidentiary basis for the interim
suspension and was provided with a hearing. His contentions to the
contrary are thus meritless.
It appears Boermeester is actually asserting USC should have
provided him with a preliminary hearing prior to the full
evidentiary hearing. However, Boermeester presents no authority
for this proposition. Nor does he present any authority for the
proposition USC was required to share its ongoing investigation
with him.
In his reply brief, Boermeester asserts there was insufficient
evidence he posed a threat to Roe or any other student to support
the interim suspension. As an initial matter, we may disregard
arguments raised for the first time in a reply brief. (WorldMark,
The Cloud v. Wyndham Resort Development Corp. (2010) 187
Cal. App. 4th 1017, 1030, fn. 7.) In any case, sufficient evidence
supported the interim suspension. Roe stated Boermeester pulled
her hair, pushed her against a wall, and put his hand on her neck.
DH’s statements supported Roe’s version of the events. Further,
Boermeester admitted he had his hand on her neck and she was
against a wall. While there was also evidence Boermeester did not
pose a threat to Roe, we decline to reweigh the evidence.
18
IV. Fair Procedure Requires Boermeester Be Given the
Opportunity to Cross-Examine Critical Witnesses at An
In-Person Hearing
We find meritorious Boermeester’s contention that he should
have had the right to cross-examine the witnesses against him at an
in-person hearing. In reaching this conclusion, we reject a number
of forfeiture-related arguments advanced by USC and the dissent.
We also find the errors identified are not harmless. We thus reverse
and remand.
A. Relevant Legal Authorities
California has long recognized a common law right to
“fair procedure” when certain private organizations have rendered a
decision harmful to an individual. (Doe v. Allee (2019) 30
Cal. App. 5th 1036, 1061 (Allee); Doe v. University of Southern
California (2018) 29 Cal. App. 5th 1212, 1232, n. 25; Doe v. Regents of
University of California (2018) 28 Cal. App. 5th 44, 56 (UC Santa
Barbara); Pomona College v. Superior Court (1996) 45 Cal. App. 4th
1716, 1729–1730.) Courts have applied the right to fair procedure to
disciplinary proceedings involving sexual misconduct by students at
private universities.7 These opinions uniformly hold the disciplinary
7 Unlike private universities, the requirements for disciplinary
hearings at public universities are grounded in constitutional due
process principles. (Allee, supra, 30 Cal.App.5th at p. 1061.) Some
courts have observed that the common law requirements for a fair
disciplinary hearing at a private university “mirror” the due process
protections that must be afforded a student at a public university.
(Ibid.) Other courts merely find due process jurisprudence
“instructive” in cases involving private universities. (Claremont
McKenna, supra, 25 Cal.App.5th at p. 1067, fn. 8.) In either case,
we may rely on cases involving public university disciplinary
proceedings.
19
proceedings need not include all of the safeguards and formalities of
a criminal trial and the formal rules of evidence do not apply.
(Allee, supra, 30 Cal.App.5th at p. 1062; UC Santa Barbara, supra,
28 Cal.App.5th at p. 56.) Instead, fair hearing requirements are
“ ‘flexible,’ ” and do not mandate any “ ‘rigid procedure.’ ” (Allee,
supra, 30 Cal.App.5th at p. 1062.)
Courts also agree fundamental fairness requires the accused
be given “ ‘ “a full opportunity to present his defenses.” ’ ” (Allee,
supra, 30 Cal.App.5th at p. 1062, quoting Doe v. Regents of
University of California (2016) 5 Cal. App. 5th 1104 (UC San Diego).)
A university must balance its desire to protect victims of sexual
misconduct with an accused’s need to adequately defend himself or
herself. Added to these competing interests is the university’s desire
to avoid diverting its resources and attention from its main calling,
which is education. (Doe v. Claremont McKenna College (2018) 25
Cal. App. 5th 1055, 1066 (Claremont McKenna).) “ “Although a
university must treat students fairly, it is not required to convert its
classrooms into courtrooms.’ ” (UC San Diego, supra, 5 Cal.App.5th
at p. 1078.)
In examining what kind of hearing comports with fair
procedure, California courts have concluded a university must
provide the following to the parties involved in a sexual misconduct
disciplinary proceeding: notice of the charges and the university’s
policies and procedures (USC I, supra, 246 Cal.App.4th at p. 241);
compliance with those policies and procedures (UC San Diego,
supra, 5 Cal.App.5th at p. 1078); access to the evidence (UC Santa
Barbara, supra, 28 Cal.App.5th at pp. 57–59); an in-person hearing
that includes testimony from critical witnesses and written reports
of witness interviews (Doe v. Westmont College (2019) 34
Cal. App. 5th 622, 637 (Westmont College); and direct or indirect
20
cross-examination of critical witnesses in cases where credibility of
the witnesses is central to a determination of misconduct (Doe v.
Occidental College (2019) 40 Cal. App. 5th 208, 224 (Occidental
College); Allee, supra, 30 Cal.App.5th at p. 1039).
B. USC’s Sexual Misconduct Policy in 2017
USC’s student handbook includes its policies and procedures
governing investigations into student sexual misconduct.8 Stalking
and intimate partner violence were identified as some of the
prohibited conduct. USC’s policy dictated an investigation was to be
a “neutral, fact-finding process. Reports [were] presumed to be
made in good faith. Further, Respondents [were] presumed not
responsible.” The presumption of non-responsibility was overcome
when a preponderance of evidence established the respondent
committed the prohibited conduct.
The handbook required the Title IX office to contact the
reporting party and the respondent at the initiation of an
investigation to explain their rights and to schedule a meeting.9
An investigator was assigned to the matter and interviewed
witnesses and assembled other evidence.
The rules of evidence and discovery generally did not apply.
Sexual history was relevant “[w]hen there [was] evidence of
substantially similar conduct by a Respondent, regardless of a
finding of responsibility.” The sexual history evidence could be used
8 USC’s sexual misconduct policy has been amended since 2017.
However, we review the policy as it existed at the time of the
disciplinary proceedings against Boermeester.
9 Regardless of who reported the student misconduct, USC
designated the individual who experienced the prohibited conduct as
the “reporting party.” The “respondent” was the individual accused
of committing the misconduct.
21
“in determining the Respondent’s knowledge, intent, motive,
absence of mistake, or modus operandi[.]”
After the investigation, the parties could review the evidence
in a process known as “Evidence Review.” Once the parties
completed Evidence Review, the Title IX coordinator and assigned
investigator conducted separate hearings, known as “Evidence
Hearings,” where each party could present a statement or evidence
at the Title IX offices. Each party was permitted to submit
questions to be asked by the Title IX coordinator at the other party’s
Evidence Hearing. The Title IX coordinator had discretion to
exclude inflammatory, argumentative, or irrelevant questions. Any
“new information” shared by a party during the Evidence Hearing
was relayed to the other party for a response.
After the Evidence Hearing, the Title IX office prepared a
Summary Administrative Review (SAR), which presented and
analyzed the information collected. The investigator made findings
of fact in consultation with the Title IX coordinator and using a
preponderance of the evidence standard, determined whether a
violation occurred.
A “Misconduct Sanctioning Panel,” comprised of three
members of the USC community, determined the appropriate
discipline after review of the SAR. The parties could appeal the
disciplinary action to USC’s Vice President for Student Affairs.
An appellate panel, comprised of three anonymous individuals from
the USC community, reviewed the appeal and made a
recommendation to the Vice President for Student Affairs, who could
accept or reject the recommendation.
C. Forfeiture
We address the threshold issue of whether Boermeester has
preserved his right to assert on appeal that he was improperly
22
denied cross-examination of witnesses at a live evidentiary hearing.
We find he has.
USC contends Boermeester forfeited the issue when he failed
to request cross-examination of third-party witnesses and waived it
when he refused to submit written questions for Roe. We decline to
fault Boermeester for failing to request cross-examination of other
witnesses because such an objection was not supported by the law at
the time and would have been futile in any case. (People v. Brooks
(2017) 3 Cal. 5th 1, 92 [“ ‘Reviewing courts have traditionally excused
parties for failing to raise an issue at trial where an objection would
have been futile or wholly unsupported by substantive law then in
existence.’ ”]; see also Corenbaum v. Lampkin (2013) 215
Cal. App. 4th 1308, 1334 [“An appellant may challenge the admission
of evidence for the first time on appeal despite his or her failure to
object in the trial court if the challenge is based on a change in the
law that the appellant could not reasonably have been expected to
foresee.”].)
At the time of these disciplinary proceedings in 2017, neither
the law nor USC’s sexual misconduct policy contemplated cross-
examination of third-party witnesses at an in-person hearing. Allee,
which extends cross-examination rights to third-party witnesses,
was not published until January 4, 2019. In 2016, the existing law
on this point was set forth in USC I, which cited with approval a
case that held, “ ‘[a]lthough we recognize the value of cross-
examination as a means of uncovering the truth [citation], we reject
the notion that as a matter of law every administrative
appeal . . . must afford the [accused] an opportunity to confront and
cross-examine witnesses.’ ” (USC I, supra, 246 Cal.App.4th at
23
p. 245.) Under these circumstances, Boermeester could not
reasonably have been expected to foresee Allee’s holding.10
Moreover, any objection would have been futile because the
Title IX office had made it clear they were not going to deviate from
USC’s sexual misconduct policy and procedures. This is
demonstrated by USC’s denial of Boermeester’s request that Roe’s
answers to his questions at the Evidentiary Hearing be transmitted
to him “unfiltered,” meaning verbatim, and prior to the SAR. The
Title IX coordinator replied, “The process does not afford that.
Please review our policy.” It is reasonable to conclude a request to
question other witnesses would likewise have been denied and an
objection is futile under such circumstances. (See People v. Hopkins
(1992) 10 Cal. App. 4th 1699, 1702 [after mistrial objection overruled
on a legal ground, defense counsel could reasonably have believed
further objections would be fruitless]; In re Antonio C. (2000) 83
Cal. App. 4th 1029, 1033 [“[W]here an objection would have been
futile, the claim is not waived.”].)
Because we conclude Boermeester did not forfeit his right to
cross-examine third-party witnesses, we likewise conclude there was
no waiver of his right to an in-person hearing.
10 The dissent asserts Boermeester could have foreseen Allee
because his attorney also represented the accused student in Allee.
In 2019, Boermeester’s attorney persuaded the Allee court to rely on
Doe v. University of Cincinnati (S.D. OH 2016) 223 F. Supp. 3d 704,
711, which held that cross-examination was essential in student
disciplinary proceedings. As discussed above, however, California
authority was to the contrary when Boermeester’s proceedings
occurred. (USC I, supra, 246 Cal.App.4th at p. 245.) Boermeester’s
attorney in 2017 could not have foreseen that California law would
change in 2019 as a result of an Ohio case. We decline to charge
attorneys with such foresight.
24
We also decline to find forfeiture based on Boermeester’s
refusal to submit questions for Roe. The record shows Boermeester
did object to the process by which Roe would be questioned.
Specifically, he asked for Roe’s answers to be relayed to him
“unfiltered” or word-for-word so he could use them in his formal
statement to USC. He explained, “The failure to record or
transcribe any of the interviews and the admission by at least one
witness that he lied during his initial interview [referring to MB2]
have shaken our confidence in the accuracy of this investigation.”
Boermeester declined to submit questions for Roe only after his
request was rejected.
Given these circumstances, Boermeester did not waive the
right to raise the issue of Roe’s cross-examination on appeal.
(See Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal. 3d 285,
299–300, fn. 17 [no waiver where objection was overruled and
objecting party attempted to minimize impact of admission of
evidence].) To the extent USC contends Boermeester’s objection was
insufficiently specific, that is, he failed to object on the ground he
could not question Roe at an in-person hearing, we conclude that
objection was not supported by the law at the time and would have
been futile for the same reasons specified above.
We do not find persuasive the dissent’s invited error analysis.
An error is invited when a party purposefully induces the
commission of error. (Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383,
403.) The doctrine of invited error bars review on appeal based on
the principle of estoppel. (Ibid.) The doctrine is intended to prevent
a party from misleading a trial court to make a ruling, and then
profit from it in the appellate court. (Ibid.)
The dissent accuses Boermeester of making a tactical decision
when he refused to submit questions for Roe. The record shows
25
Boermeester only declined to question Roe further after his request
to receive verbatim answers before the SAR was denied. The record
does not demonstrate it was a tactical decision designed to induce
USC to make an erroneous decision that Boermeester could then
challenge on appeal. Instead, the record demonstrates a
disagreement about the process by which Roe would be questioned.
It is clear Boermeester merely abided by USC’s established
rules and procedures. USC’s policy did not allow for Roe to be
questioned at an in-person hearing that Boermeester could attend.
Neither did it contemplate questioning third party witnesses at an
in-person hearing. The doctrine of invited error does not apply when
a party, while making the appropriate objections, acquiesces to an
established procedure such as this one. (See K. G. v. County of
Riverside (2003) 106 Cal. App. 4th 1374, 1379 [“ ‘ “ ‘An attorney who
submits to the authority of an erroneous, adverse ruling after
making appropriate objections or motions, does not waive the error
in the ruling by proceeding in accordance therewith and endeavoring
to make the best of a bad situation for which he was not
responsible.’ ” [Citations.]’ ”].) Here, Boermeester objected to the
format of his questions to Roe and we find that any request to
question third party witnesses would have been futile. Boermeester
did not invite the error by acquiescing to USC’s sexual misconduct
procedure.
Finally, we reject the contention Boermeester forfeited this
issue when he failed to raise it in his administrative appeal.
Boermeester was prohibited from arguing the proceedings were
unfair in his administrative appeal. An appeal on this basis would
have been futile. (In re Antonio C., supra, 83 Cal.App.4th at
p. 1033.)
26
D. Merits
We now reach the merits of Boermeester’s challenge to the
fairness of the disciplinary proceedings against him. Relying on
Allee, supra, 30 Cal.App.5th at page 1039, he primarily takes issue
with the investigator’s “overlapping and conflicting” roles in the
proceedings and the denial of his right to cross-examine witnesses.
(Id. at p. 1069.)
Allee involved a student’s expulsion from USC for
nonconsensual sex with another student. Division 4 of this court
concluded USC’s disciplinary procedure failed to provide the accused
student with a fair hearing. (Allee, supra, 30 Cal.App.5th at 1039.)
The Allee court held that “when a student . . . 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 at 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.” (Id. at p. 1069.)
At the time of the disciplinary proceedings in Allee, USC’s
sexual misconduct policy did not require an in-person hearing and
the Title IX investigator served multiple roles in the proceedings.
(Allee, supra, 30 Cal.App.5th at p. 1069.) The Allee court found fault
with the investigator’s “unfettered” discretion to conduct the
investigation, determine credibility, make findings of fact, and
impose discipline. (Id. at p. 1070.)
The court reasoned, “The notion that a single individual,
acting in these overlapping and conflicting capacities, is capable of
27
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.” (Allee, supra, 30 Cal.App.5th at p. 1068.) The court
concluded, “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. It is simply an extension of the investigation and
prosecution itself.” (Ibid.)
Since Allee, Divisions 6 and 7 of this court have reached
similar conclusions regarding the need for some form of cross-
examination at a live hearing. In Westmont College, supra, 34
Cal. App. 5th 622, a student was suspended after a three-member
panel determined the evidence supported an accusation he sexually
assaulted another student. The trial court granted the accused
student’s petition for a writ of administrative mandamus on the
ground the college did not give him a fair hearing. (Id. at p. 625.)
Division 6 affirmed, finding the college’s investigation and
adjudication of the complainant’s accusation “was fatally flawed.”
(Westmont College, supra, 34 Cal.App.5th at p. 625.) The Court of
Appeal found fault with the panel’s failure to hear testimony from
critical witnesses, even though it relied on their prior statements to
corroborate the complainant’s account and to impeach the accused’s
credibility. It also found the panel improperly withheld material
evidence from the accused that its own policies required it to turn
over and did not give the accused the opportunity to propose
questions to be asked of the complainant and other witnesses. (Id.
at pp. 625–626, 636–639.) Because the record indicated two panel
28
members relied on the credibility determination of the investigator,
who was the third panel member, the court also held each member
of the panel must hear from the critical witnesses—in person, by
videoconference, or some other method—before assessing credibility.
(Id. at p. 637.)
In Occidental College, supra, 40 Cal. App. 5th 208, Division 7
applied the holding in Westmont and found a student expelled for
sexual assault had received a fair hearing. In Occidental College, an
external adjudicator heard testimony from the parties, the
investigator, and five witnesses during a live hearing. The
adjudicator recommended disciplinary action after considering the
testimony, summaries of witness interviews, and the investigative
report. (Occidental College, supra, at p. 219.) The court found
“Occidental’s policy complied with all the procedural requirements
identified by California cases dealing with sexual misconduct
disciplinary proceedings: both sides had notice of the charges and
hearing and had access to the evidence, the hearing included live
testimony and written reports of witness interviews, the critical
witnesses appeared in person at the hearing so that the adjudicator
could evaluate their credibility, and the respondent had an
opportunity to propose questions for the adjudicator to ask the
complainant.” (Id. at p. 224; accord Claremont McKenna, supra, 25
Cal.App.5th at p. 1070 [“where the accused student faces a severe
penalty and the school’s determination turns on the complaining
witness’s credibility . . . the complaining witness must be before the
finder of fact either physically or through videoconference or like
technology to enable the finder of fact to assess the complaining
witness’s credibility in responding to its own questions or those
proposed by the accused student”].)
29
We agree with the above authorities: In a case such as this
one, where a student faces a severe sanction in a disciplinary
proceeding and the university’s decision depends on witness
credibility, the accused student must be afforded an in-person
hearing in which he may cross-examine critical witnesses to ensure
the adjudicator has the ability to observe the witnesses’ demeanor
and properly decide credibility. (Occidental College, supra, 40
Cal.App.5th at p. 224; Claremont McKenna, supra, 25 Cal.App.5th
at p. 1070; Allee, supra, 30 Cal.App.5th at p. 1066.) In reaching this
conclusion, we agree with the prevailing case authority that cross-
examination of witnesses may be conducted directly by the accused
student or his representative, or indirectly by the adjudicator or by
someone else. (Ibid.) We further agree the cross-examiner has
discretion to omit questions that are irrelevant, inflammatory, or
argumentative. (UC San Diego, supra, 5 Cal.App.5th at pp. 1086–
1087.)
Although we refer to an “in-person hearing,” we do not mean
to say that the witnesses must be physically present to allow the
accused student to confront them. Instead, the witnesses may
appear in person, by videoconference, or by another method that
would facilitate the assessment of credibility. (Claremont McKenna,
supra, 25 Cal.App.5th at p. 1070; Doe v. Univ. of Cincinnati (6th Cir.
2017) 872 F.3d 393, 406 (Univ. of Cincinnati) [university’s
procedures need only provide “a means for the [review] panel to
evaluate an alleged victim’s credibility, not for the accused to
physically confront his accuser.”].)
Boermeester did not receive this type of hearing under USC’s
2017 sexual misconduct policy. USC’s policy to hold separate
Evidentiary Hearings and limit cross-examination does not meet the
30
fair procedure requirements identified in Allee, Westmont College,
Occidental College, and Claremont McKenna.
Under the separate Evidentiary Hearing procedure, the
reporting party could respond to the evidence collected and answer
any questions submitted by the respondent without the respondent’s
presence. This procedure effectively denied Boermeester a hearing.
An accused student is not given a meaningful opportunity to
respond to the evidence against him if he is not allowed to attend
the very hearing at which the evidence is presented. (Goldberg v.
Regents of University of Cal. (1967) 248 Cal. App. 2d 867, 882 [due
process requires students be “given ample opportunity to hear and
observe the witnesses against them”].)
Even if the Evidence Hearings were not separate and
Boermeester was allowed to attend, the limited cross-examination
afforded by USC prevented him from fully presenting his defense, as
required by fair procedure. (UC San Diego, supra, 5 Cal.App.5th at
p. 1104.) Under the sexual misconduct policy, Boermeester could
only submit questions for Roe to be asked by the Title IX coordinator
at the Evidence Hearing. Boermeester had no opportunity to
question any other witness or ask follow-up questions of Roe.
These limitations prevented Boermeester from fully presenting his
defense, which was that the eyewitnesses misunderstood what
happened between him and Roe on January 21, 2017. Allowing
Boermeester to submit questions for critical witnesses, such as AB,
MB2, DH, and TS, at a live hearing would further truth finding by
allowing him to test their recollection, their ability to observe the
incident, and any biases they may have. It is well established
“ ‘cross-examination has always been considered a most effective
way to ascertain truth.’ ” (Univ. of Cincinnati, supra, 872 F.3d at
pp. 401–402.)
31
In short, an in-person hearing coupled with indirect or direct
cross-examination would enable the adjudicator to better assess
witness credibility in a case where credibility is central to a
determination of sexual misconduct. (Univ. of Cincinnati, supra,
872 F.3d at pp. 401–402; Elkins v. Superior Court (2007) 41 Cal. 4th
1337, 1358 [“Oral testimony of witnesses given in the presence of the
trier of fact is valued for its probative worth on the issue of
credibility, because such testimony affords the trier of fact an
opportunity to observe the demeanor of witnesses.”]; Doe v. Baum
(6th Cir. 2018) 903 F.3d 575, 586.)
USC contends the holdings in Allee and the other university
sexual misconduct cases should not be extended to an intimate
partner violence case on the ground those cases only apply to sexual
assault or similar sexual misconduct. According to USC, cross-
examination is required in sexual misconduct cases because the
misconduct takes “place behind closed doors, with no witnesses
other than the parties, and the key issue in dispute [is] consent.”
USC claims the situation is different here because the misconduct
“took place in public, was witnessed by at least two individuals, and
was captured on video.”
The dissent similarly distinguishes a university sexual
misconduct case from an intimate partner violence case. In a sexual
misconduct case, according to the dissent, the accused seeks cross-
examination to “shake” the accuser’s story that their sexual
encounter was not consensual. The dissent asserts the sexual
misconduct case is different because it does not involve a domestic
relationship and the victim does not recant.
We disagree. Sexual misconduct cases may also arise from
domestic relationships and victims also recant in such cases.
Further, from a procedural standpoint, we see little difference
32
between a sexual misconduct case such as that described by USC
and the dissent and an intimate partner violence case such as this
one. Both cases require the university to make credibility
determinations based on conflicting statements. It is irrelevant to
us whether the conflict exists because the man and the woman have
competing narratives or the man and woman’s narrative competes
with that of third party witnesses.
USC was presented with two versions of the January 21
incident. On the one hand, Roe and Boermeester claimed it was
playful and not violent. On the other hand, the third party
witnesses and Roe, in her initial statement, claimed it was violent
and not playful. Given this conflict, “the credibility of witnesses
(whether the accusing student, other witnesses, or both) is central to
the adjudication of the allegation” in this case, just as it was in Allee
and the other university sexual misconduct cases. (Allee, supra, 30
Cal.App.5th at p. 1069; see also Claremont McKenna, supra, 25
Cal.App.5th at p. 1070.)
We acknowledge the dissent’s point that Roe had recanted and
it may or may not have benefitted Boermeester to question her
further. However, as USC indicates, it was not Roe, but the
eyewitnesses, who were pivotal to USC’s decision. According to
USC, they provided the necessary support for Roe’s initial account.
Thus, even absent cross-examination of Roe, Boermeester should
have been able to cross-examine the third-party witnesses to test
their recollection, their ability to observe the incident, and any
biases they may have had against him.
USC claims credibility of witnesses was not central to the
adjudication in this case due to the extensive corroborating evidence,
including the video tape. USC overstates the evidence. The
surveillance video is not conclusive. The picture is grainy and there
33
is no audio. The video camera is positioned approximately two
buildings away from Roe and Boermeester. They are small figures
in the frame of the video. Additionally, there is a light on the left
side of the frame, which renders the interaction between
Boermeester and Roe when they are near the wall barely visible. At
best, the video corroborates Roe’s initial statement, MB2’s second
statement, and DH’s statement of what occurred on January 21,
2017. However, both Roe and MB2 recanted their initial statements
to the investigator. Contrary to USC’s assertion, adjudication of this
matter rests on a determination of the credibility of inconsistent
witnesses, just as in Allee, Occidental College, and Westmont
College. Accordingly, these authorities apply to this intimate
partner violence case.
We likewise find unpersuasive USC’s argument that sexual
assault and other sexual misconduct violations are different from
violations involving intimate partner violence and thus should be
treated differently. USC’s own student handbook describes only
four “categories” of student misconduct: (1) non-academic violations;
(2) academic integrity violations; (3) admissions violations; and (4)
sexual, interpersonal, and protected class misconduct cases. Under
the “University’s Policy and Procedures on Student Sexual,
Interpersonal, and Protected Class Misconduct,” the same
investigative and adjudicative procedure applies to each violation,
including “sexual assault and non-consensual sexual contact,”
harassment, stalking, and intimate partner violence. In short, USC
does not treat sexual misconduct and intimate partner violence
cases differently. Neither does fair procedure.
E. Harmless Error
Lastly, USC asserts any error was harmless, arguing,
“[n]o amount of additional process would change what can be plainly
34
observed on the security footage and confirmed in Boermeester’s
own statements.” We are not convinced. As we have discussed,
USC overstates what the surveillance video shows. At best, it
corroborates Roe’s initial statement. Moreover, although
Boermeester admits he put hands on Roe’s neck while she was
positioned against the wall, he asserts it was playful. This is hardly
a confession to intimate partner violence.
At bottom, this case rests on witness credibility. Even if Roe
had not recanted, USC was still faced with conflicting accounts of
the incident: Boermeester disputed the characterization of the
incident as violent, contending they were merely “horsing around.”
MB2, an eyewitness to the incident, admitted he lied in his initial
statement. Given these conflicting statements, we cannot say the
record contains such overwhelming evidence as to render harmless
the errors identified in this case.
DISPOSITION
The judgment is reversed and the matter remanded to the
superior court with directions to grant Boermeester’s petition for
writ of administrative mandate. Should USC choose to proceed with
a new disciplinary hearing, it should afford Boermeester the
opportunity to directly or indirectly cross-examine witnesses at an
in-person hearing. Each party to bear his or its own costs on appeal.
CERTIFIED FOR PUBLICATION
BIGELOW, P. J.
I Concur:
STRATTON, J.
35
Boermeester v. Carry et al.
B290675
WILEY, J., Dissenting.
Unaccountably, in California’s first appellate student
discipline case about domestic violence, the aggressor emerges as
the victim. But the university was right to discipline this man.
Substantial evidence shows he committed domestic violence. All
procedures were fair. Overturning this discipline is
unwarranted.
I
Substantial evidence reveals a textbook case of domestic
violence. I append the victim witness interview and invite
readers to examine it. (See appendix, post, pp. 24–37.)
A
I summarize the victim’s interview.
After midnight, a drunken man called the woman he lived
with. It was in the early hours of Saturday, January 21, 2017.
He wanted her to come get him at a party and drive him home.
She obeyed.
He was the drunkest she had seen him. She brought her
dog Ziggy along in a cage in the car. The man was mean to Ziggy,
and the dog was shaking. The man yelled at the dog, which
cowered in the cage.
They got home and went to the alley. He wanted her to
drop Ziggy’s leash but she did not want to. The man wanted to
see Ziggy running off the leash. The woman did not want Ziggy
off the leash.
1
The man grabbed the back of the woman’s hair hard and
said “drop the fucking leash.” She said no. The man grabbed the
woman harder. It hurt, so she dropped the leash.
The man grabbed the woman by the front of her neck. He
had done this before. He did it to “freeze her” when he wanted to
stop her. When he did this, it sometimes scared her.
When he grabbed her by the throat this time, it was harder.
His grip was tight. She could breathe but it hurt and she
coughed.
He let go and laughed.
The man chose this moment to comment about Westworld.
This sci-fi show is about a theme park where robots look like
humans. Humans pay to enter and do as they please to the
robots. The humans can be violent and abusive without
consequences because the robots’ programming forbids harm to
humans.
The man told the woman about Westworld: “you can hurt
the robots because they aren’t well.”
The man took her by the neck and pushed her hard against
the concrete wall. Her head hit the wall. He let go and then did
it again.
A neighbor came into the alley. The man told the neighbor
they were just playing around.
B
The man and the woman were students at the University of
Southern California. The man is Matthew Boermeester. The
woman is Jane Roe.
USC has student conduct rules. One USC rule prohibits
intimate partner violence. The rule says intimate partner
2
violence is also known as domestic violence and includes causing
physical harm to another person.
USC’s rule against violence does not contain a playing
around defense.
Witnesses reported Boermeester’s treatment of Roe to USC,
which promptly launched an investigation. On Monday, January
23, 2017, accompanied by her adviser Nohelani Lawrence, Roe
met with a USC investigator and spoke at length. Roe cried
throughout this interview.
C
California law is familiar with domestic violence. USC is
too. USC is an established institution of higher education that
has promulgated rules about domestic violence and has hired
professionals to investigate these cases. These trained
professionals work daily in this specialized world. Their
firsthand experience supplements their training. It is reasonable
and procedurally customary to ascribe expertise about domestic
violence to USC and to its campus specialists.
Boermeester says we should assume USC is ignorant. But
he gives neither reason nor legal authority for his self-serving
and illogical suggestion.
D
Domestic violence is violence between people living
together in an intimate relationship. (People v. Brown (2004) 33
Cal. 4th 892, 895, fn. 1 (Brown).) USC refers to this type of
violence more generally as intimate partner violence.
Domestic violence is a serious social and legal problem in
the United States, occurring in every economic, racial, and ethnic
group. Compared to other crimes, domestic violence is vastly
underreported. Until recent decades, it was largely hidden from
3
public examination. A fundamental difference between domestic
violence and other violence (like street violence) is domestic
violence happens within ongoing relationships expected to be
protective, supportive, and nurturing. The ties between victim
and abuser often are strong emotional bonds, and victims
frequently feel a sense of loyalty to their abusers. (Brown, supra,
33 Cal.4th at pp. 898–899.) Often abusers use psychological,
emotional, or verbal abuse to control their victims. (Id. at p. 907.)
Victims who report abuse to authorities may later protect
the abuser by recanting their own reports. This presents an
exceptional challenge for authorities. (Brown, supra, 33 Cal.4th
at p. 899.)
In the Brown case, an expert explained domestic violence
victims, after describing the violence to police, often later
repudiate their descriptions. There is typically “anywhere
between 24 and 48 hours where victims will be truthful about
what occurred because they're still angry, they're still scared.”
But after they have had time to think about it, they commonly
change their minds. About 80 to 85 percent of victims recant at
some point in the process. Some victims will say they lied to
authorities; almost all will attempt to minimize their experience.
(Brown, supra, 33 Cal.4th at p. 897; see also id. at p. 903 [quoting
another expert who testified that, about 80 percent of the time, a
woman who has been assaulted by a boyfriend, husband, or lover
will recant, change, or minimize her story].)
Recanting is common because it is logical. The victim may
still care for the abuser and may be hoping he will not do it again.
(Brown, supra, 33 Cal.4th at p. 897.) The abuser or the abuser’s
family may be pressuring or threatening the victim. (Ibid.)
4
Professionals familiar with domestic violence understand
victims logically may recant to protect themselves because
recanting can appease the abuser.
The Brown opinion held expert testimony about recanting
was admissible for the purpose of disabusing jurors of common
misconceptions about how victims behave. (Brown, supra, 33
Cal.4th at pp. 905–908.) Part of the court’s logic was, “when the
victim’s trial testimony supports the defendant or minimizes the
violence of his actions, the jurors may assume that if there really
had been abusive behavior, the victim would not be testifying in
the defendant’s favor.” (Id. at p. 906.) In many or even most
cases, however, that assumption would be incorrect.
USC presumably knows all this. There is no basis for
presuming it is ignorant.
E
Substantial evidence permitted the USC investigator to
understand Roe’s account as a classic case of domestic violence.
Roe’s lengthy interview record, which appears at the end of this
dissent, is substantial evidence.
Roe’s account revealed Boermeester stayed at her
apartment for a semester. Boermeester controlled her. He told
her when she could speak and when she was too close to him. He
used physical abuse when she did not obey. He poked and hit
her, causing bruising. He told her to shut up. He kicked her
when she got too close. He took her by the neck to “freeze her”
when he wanted to stop her.
Boermeester made Roe feel worthless. He told her she was
stupid and a lousy tennis player. (Roe was a nationally ranked
member of the USC tennis team.) He was rude to her parents
5
and her friends, thus undermining her emotional support system
and imposing a me-or-them choice.
Boermeester punished Roe if she misbehaved and made her
feel as though problems were her fault, not his. He refused to
return her apartment key, despite paying no rent and having no
right to be there. He never apologized or took responsibility.
When she asked if he would feel bad or sorry if he hurt her, he
said no, because she brought it on herself.
In this domestic relationship, Boermeester grabbed Roe by
the neck on January 21, 2017. He pushed her hard against a
concrete wall, she hit her head, he let go, and then he did it
again. He did not stop until a neighbor appeared, and then
Boermeester said they were just playing around.
On January 23, 2017, Roe asked USC for an Avoidance Of
Contact order against Boermeester. She requested emergency
housing. The implication is unmistakable: she was scared of
Boermeester and wanted to get away from him.
F
The domestic violence victim recanted. On Tuesday,
January 24, 2017, Roe began recanting, and she continued in the
following days. On February 7, 2017, Roe tweeted to the media
that the charges against Boermeester were false. Roe became
increasingly extensive in her recantation, through to the end of
USC’s investigation.
II
USC’s investigation was thorough and fair.
The investigator interviewed 18 witnesses and wrote a 78-
page single-spaced report. The report included lengthy
statements from Boermeester and from Roe that vigorously
asserted his innocence.
6
The amount of process was considerable. Accompanied by
his mother, who is an attorney, Boermeester gave his side of the
story during the investigation. Boermeester retained a law firm.
On March 10 and 22, 2017—twice—he had the opportunity to
review all information and documents the investigator gathered.
Boermeester and his retained attorney reviewed this evidentiary
record. Boermeester then had the opportunity to submit
questions for Roe, but (through his attorney) he declined to do so.
After reviewing the evidence, Boermeester had the opportunity to
respond to the evidence, to answer questions posed by Roe, and to
submit new information. Neither Boermeester nor Roe
submitted questions for each other or for anyone else. Both opted
to skip their hearings and to submit written statements in lieu of
meeting.
USC’s process involved four layers of review.
First was the investigation. Upon concluding the extensive
investigation, the investigator determined Boermeester was
responsible for intimate partner violence.
The second layer was a separate panel. The sanctions
panel reviewed the record and decided to expel Boermeester.
The third layer was the Misconduct Appellate Panel.
Boermeester appealed to this separate panel. Pages 494 and 495
of the Administrative Record spell out the duties of this
Misconduct Appellate Panel. These rules empowered the
Misconduct Appellate Panel to decide whether substantial
evidence supported the investigator’s fact finding. The
Misconduct Appellate Panel also was to determine whether this
fact finding supported the investigator’s conclusions about policy
violations.
7
This Misconduct Appellate Panel exercised independent
judgment. It recommended a two-year suspension rather than
expulsion for Boermeester.
The fourth layer was USC’s Vice President for Student
Affairs, who was USC’s final decisionmaker on student discipline.
This USC Vice President overruled the Misconduct Appellate
Panel’s recommendation and determined the appropriate
sanction was expulsion.
Boermeester applied for a fifth layer of review by filing in
the Superior Court. On March 21, 2018, the trial judge rendered
a comprehensive and thoughtful 22-page opinion rejecting
Boermeester’s claims.
The trial court found substantial evidence supported USC’s
decision to discipline Boermeester.
The trial court emphasized the contemporaneous nature of
Roe’s initial statement on January 23, 2017, noting the law
ascribes more reliability to statements made right after a
stressful event than to statements made only after witnesses
have had time to ponder the consequences of their words.
The judge quoted from the Brown case, reciting the
established tendency of domestic violence victims to recant as
part of the behavior patterns common in abusive relations. The
judge wrote the “tendency is so well established that it is
admissible, in the form of expert testimony, in prosecutions of
domestic violence cases.”
The judge canvassed California law and rejected
Boermeester’s claim that USC had denied him due process. The
court found USC accorded Boermeester ample process.
In sum, Boermeester got full notice of the charges and the
evidence against him. He had multiple opportunities to respond.
8
The process took more than a year and generated a record
exceeding 2,000 pages.
The process’s conclusion was Boermeester took Roe by the
throat and shoved her against a concrete wall, which was
intimate partner violence. USC deliberated about the penalty
and decided to expel Boermeester.
USC’s process was careful and fair. Its conclusion was
straightforward: Boermeester should be disciplined for his
domestic violence.
III
Boermeester’s least specious argument about his
supposedly unfair treatment concerns live witness cross-
examination. (I agree Boermeester’s notice was ample and his
suspension was proper.) But Boermeester refused to submit
cross-examination questions for Roe. No wonder. His tactical
reason was that questioning Roe was the last thing Boermeester
wanted, now that she had recanted completely and had come over
to his side in a public way, on Twitter and all the rest.
Questioning Roe—chancing any opportunity for her to modify or
to contradict her recantation—offered Boermeester only peril.
From Boermeester’s perspective, Roe’s recantation was perfect as
it stood. Additional questioning could only spoil a good thing. So
naturally Boermeester’s lawyer refused to submit questions for
Roe.
That means the cross-examination issue on appeal is
entirely manufactured. It is not unfair to deny someone
something they did not want.
Lest there be doubt, study the exact words in the record.
USC asked Boermeester’s attorney to submit questions for Roe
and, through counsel, Boermeester refused. In response to USC’s
9
invitation to propose questions for Roe, Boermeester’s lawyer told
USC “I am not interested in having [Roe] come in and being put
on the spot yet again.” The italics are mine.
Boermeester and his lawyer were free to ask for anything
they wanted because the USC investigator created a continuously
productive and collegial working relationship during the
investigation. When Boermeester’s lawyer peppered USC with e-
mail questions, USC responded promptly and professionally.
For example, Boermeester’s lawyer e-mailed USC that he
could not access a document from his desktop computer. USC
wrote back within five minutes: “I just checked and you were
granted access. I went ahead and re-invited you. Let me know if
it works.”
Sometimes USC did not grant Boermeester and his lawyer
everything they wanted. But other times USC did accommodate
Boermeester and his lawyer. USC’s written rules did not
mandate or require these accommodations. USC gave them
anyway, because it was behaving fairly and reasonably.
For instance, USC offered Boermeester and his lawyer a
second time to examine the evidentiary record—an invitation
Boermeester and his lawyer accepted. No USC rule required
this.
In another situation, Boermeester’s lawyer asked USC to
give Boermeester access to a telephone while examining evidence
because the lawyer had “run into a serious snag here.” USC
granted his request: “No problem.”
It was 4:59 p.m. when Boermeester’s lawyer e-mailed this
request for a favor. It was 8:09 p.m. that same day when USC
granted the favor Boermeester’s lawyer requested.
10
USC literally was working overtime to be responsive to
Boermeester and his lawyer.
Through all this free give and take, Boermeester’s lawyer
never requested live cross-examination. Rather, he expressly
disavowed it and instead asked that USC e-mail questions to Roe.
USC agreed to do that. USC’s response was: “You send me the
questions and we will ask them of [Jane Roe].”
Boermeester’s lawyer wrote “We would want to have
questions sent to [Jane Roe] to respond and answers sent to us
unfiltered.”
USC said it indeed would not filter. It would provide the
answers verbatim, and he would get them before any Summary
Administrative Review.
The sole difference between Boermeester’s lawyer and USC
during this e-mail exchange was whether Boermeester would or
would not get Roe’s answers that same afternoon—an immaterial
timing detail Boermeester never mentions in briefing to this
court.
Boermeester claims this one exchange about filtering shows
he adequately preserved for appeal all issues regarding cross-
examination. This is incorrect. USC told Boermeester it would
give him Roe’s unfiltered answers. True, there was an issue
about timing, but Boermeester has abandoned this timing issue.
He has never raised it in this appeal. His issue now is cross-
examination. But Boermeester wrote USC “I am not interested
in having [Roe] come in and being put on the spot yet again.”
Grasp the strangeness of this situation. To USC in 2017,
Boermeester’s lawyer said he did not want Roe to come in and be
put on the spot again. On appeal in 2020, Boermeester’s lawyer
11
now says it is reversible error because Roe did not come in and
was not put on the spot again.
To rule for Boermeester on this issue in this situation is
unusual. Accepting such an argument in this context is
unprecedented.
The same goes for witnesses besides Roe. Boermeester
never sought those cross-examinations, and for good reason.
These witnesses offered Boermeester nothing but danger.
Recall the context. The looming problem was Roe’s detailed
and damning original statement, the one appended to this
opinion. An objective reading of that statement reveals it as the
most powerful evidence in the case.
Boermeester admitted the basic physical facts. He told
USC “[m]y hand was on her neck, but it was normal.” When
asked whether Roe made contact with the alley wall,
Boermeester responded, “I mean, we were standing next to it. It
was a sexual thing.”
Given that Boermeester’s defense was his actions were
mere horseplay—horseplay that Roe understood and accepted—
there was no point in cross-examining witnesses besides Roe.
Cross-examining DH could not matter. DH saw Roe pinned
against the wall by Boermeester, who had his hand on her. DH
did not see or hear Roe hit the wall. DH’s account was consistent
with Boermeester’s version of events.
Cross-examining TS could not matter. TS did not report
seeing Boermeester put hands on Roe. TS arrived in the alley
after the event. He was not an eyewitness to the disputed event.
Cross-examining MB2 was like cross-examining Roe: a
good thing for Boermeester to avoid. MB2 initially minimized
having seen much in the alley. Then his guilty conscience made
12
MB2 contact USC on his own initiative. MB2 had initially
minimized because Roe asked him to protect Boermeester and to
downplay the event. But MB2 confessed his initial lie was
bothering him. What he had actually seen, he now revealed, was
that Boermeester “domestically was abusing [Roe].” He said the
“truth is I really wanted to beat the shit out of this guy
[Boermeester].”
Cross-examining a witness like that is playing with fire.
Boermeester sensibly passed on this opportunity to play Russian
roulette. Boermeester’s reasonable litigation strategy was to
disparage MB2’s second statement as a contradiction and to
avoid giving MB2 a soapbox on which to vent.
In sum, there is good reason why Boermeester never asked
to cross-examine witnesses other than Roe. These witnesses
either did not matter or were hazardous to question further.
Boermeester sensibly avoided further questions to these
witnesses.
There was no deprivation of a right to confrontation.
Rather, there was no request for it. This was a thoughtful
litigation strategy by competent counsel to avoid confrontation
and to leave the record as it stood. As it stood, the record was not
pretty, but defense counsel had to play the hand his client dealt
him. Adding questioning—adding confrontation—was not going
to help. It was likely to backfire. The choice was to argue the
case as it stood or to risk making the record worse. Counsel
chose to steer clear of the risk. That was reasonable. But that
also should have shut off any appeal on the topic.
Boermeester claims futility. He says it would have been
futile to ask for what he now says was indispensable. That is
incorrect. His attorney was vigilant and aggressive. When he
13
wanted something, he asked for it. Sometimes USC
accommodated him; sometimes not. Every institution is free to
depart from written procedures when both sides agree that is the
fair and reasonable thing to do. Nothing barred Boermeester
from asking for further questions for any witness.
Boermeester did not ask for questions, not because it was
futile to do so, but because he did not want further questions. As
we have seen, the record contradicts his claim it was futile for
him to request questioning.
Boermeester cites In re Antonio C. (2000) 83 Cal. App. 4th
1029, 1033, but there the prosecution conceded futility. That also
is true of People v. Hopkins (1992) 10 Cal. App. 4th 1699, 1702,
where there is no sign the parties contested the issue of futility
and consequently no analysis of the issue. These cases are
irrelevant.
To show it is futile to object, counsel generally must show it
is costly to assert your rights. (E.g., People v. Hill (1998) 17
Cal. 4th 800, 820.) There was nothing like that in the civil and
productive working relationship between Boermeester and USC.
To reverse USC for failing to grant Boermeester something he
never requested is unwarranted. It would be unprecedented, and
an unwise retreat from the usual rule.
The usual rule is you must ask for something you later
claim on appeal was vital, so the school can know what you want
and can resolve your issue short of litigation. (Doe v. Occidental
College (2019) 37 Cal. App. 5th 1003, 1018 (Occidental I) [issue
must be raised in the first instance at the hearing or appellant
forfeits it]; Doe v. Occidental College (2019) 40 Cal. App. 5th 208,
225 (Occidental II) [“By failing to make the argument until his
14
appeal to this court, [the complaining student] forfeited it.”]
[collecting forfeiture authorities].)
The rationale for this rule is fairness and efficiency. A
school is entitled to learn the contentions of interested parties
before litigation is instituted so it can gain the opportunity to act
and to render litigation unnecessary. (See Sierra Club v. City of
Orange (2008) 163 Cal. App. 4th 523, 535.)
Boermeester asks to be excused from this rule of fairness
and efficiency, so on appeal he can get what he never requested
during the school’s proceedings.
I would stick with the usual rule: if you want something,
ask for it. Stockpiling secret grievances should not be acceptable.
Boermeester also makes a different argument than futility.
This argument is unforseeability. Boermeester now claims he
could not reasonably have been expected to foresee the holding in
Doe v. Allee (2019) 30 Cal. App. 5th 1036 (Allee) requiring cross-
examination. Boermeester makes this unforseeability argument
as another excuse for attacking USC about the cross-
examinations he never asked USC to give him.
Boermeester’s unforseeability argument is insupportable.
In 2016, before the events in Boermeester’s case, a court already
had held “cross-examination was essential to due process” in a
student discipline case. (Doe v. University of Cincinnati
(S.D.Ohio 2016) 223 F. Supp. 3d 704, 711.) This ruling was
affirmed on appeal. Represented by the same lawyer now
representing Boermeester, student Doe in the Allee case relied
heavily on this University of Cincinnati precedent. The Allee
court followed this lawyer’s lead, repeatedly citing and discussing
both the trial and appellate rulings in the University of
15
Cincinnati case. (Allee, supra, 30 Cal.App.5th at pp. 1059, 1061,
1062, 1064, 1066, 1068.)
In short, Boermeester’s lawyer in 2017 indeed could have
foreseen something written into law in 2016.
So the strangeness remains. Boermeester’s lawyer was
comfortable asking USC for favors because USC was responsive
and professional. Boermeester’s lawyer had legal authority for
demanding cross-examination. Yet this lawyer never requested
cross-examination. It was the opposite: Boermeester’s lawyer
wrote he did not want it. But now Boermeester’s lawyer says
USC treated him unfairly for not giving him what he did not
want. That is strange.
IV
Boermeester seeks to import precedents into this domestic
violence setting from outside it, but his suggestion is unsound.
These precedents involve cross-examination when a woman and a
man tell conflicting stories: he said nothing bad happened; she
said oh yes it did. In those cases, disciplinarians had to decide
which speaker to believe. The accused man wanted cross-
examination to shake the woman’s story. Here, by contrast, the
two versions came from one witness: Roe’s witness statement
close to the event versus Roe’s later recantations. Boermeester
did not want to cross-examine Roe because that tactic could only
harm him.
Boermeester cites precedents, but they never deal with a
victim of domestic violence who recants. His citations do not
apply here, because the worth of cross-examination to an accused
changes fundamentally when the victim recants. An accused
wants to confront accusers steadfast in their accusations to shake
the force of their accusations. But when a domestic violence
16
victim has publicly recanted, the accused already has all he
wants. Further questioning offers him only hazard.
Boermeester’s precedents follow a common fact pattern
inapplicable to this case. The common fact pattern involves two
people who do not live together: they are not cohabitants. They
are not in a domestic relationship. And there is no domestic
violence. Rather, there is some short-lived and unhappy sexual
encounter, with the woman and the man maintaining different
versions afterwards about what happened. There is never
recantation. Thus there is never the situation where the accused
wants to sustain, not to shake, the recantation.
There are 11 such cases.
1. Occidental II, supra, 40 Cal.App.5th at pages 211–220
[woman and man lived separately and disagreed
about whether she was too incapacitated to consent to
sexual relations after a fraternity party; no mention of
domestic violence or a recanting witness];
2. Occidental I, supra, 37 Cal.App.5th at pages 1006–
1013 [woman and man lived separately; sexual
penetration after a party; man said woman consented;
woman said she did not consent; no mention of
domestic violence or a recanting witness];
3. Doe v. Westmont College (2019) 34 Cal. App. 5th 622,
627–629 (Westmont) [woman and man lived
separately and disagreed about whether they had
intercourse during a college party; no mention of
domestic violence or a recanting witness];
4. Allee, supra, 30 Cal.App.5th at pages 1043–1053
[woman and man lived separately; one episode of
intercourse; man said woman consented; woman said
17
she did not consent; no mention of domestic violence
or a recanting witness];
5. Doe v. University of Southern California (2018) 29
Cal. App. 5th 1212, 1216–1229 (USC 2018) [woman and
man lived separately and disagreed about whether the
woman was too drunk to consent to a night of sexual
activity; no mention of domestic violence or a
recanting witness];
6. Doe v. Regents of University of California (2018) 28
Cal. App. 5th 44, 46–55 [woman and man lived
separately and disagreed about whether they had
sexual relations during a birthday party; no mention
of domestic violence or a recanting witness];
7. Doe v. Claremont McKenna College (2018) 25
Cal. App. 5th 1055, 1058–1064 [woman and man lived
separately and disagreed about whether the woman
consented to intercourse; no mention of domestic
violence or a recanting witness];
8. Doe v. Regents of University of California (2016) 5
Cal. App. 5th 1055, 1058–1072 [woman and man lived
separately and disagreed about whether they had
consensual sexual relations; no mention of domestic
violence or a recanting witness];
9. Doe v. University of Southern California (2016) 246
Cal. App. 4th 221, 224–238 [woman and man lived
separately and disagreed about whether the man
failed to protect the woman from sexual assault by
other men at a fraternity party; no mention of
domestic violence or a recanting witness];
18
10. Doe v. Baum (6th Cir. 2018) 903 F.3d 575, 578–580
(Baum) [woman and man lived separately and
disagreed about whether she was too incapacitated to
consent to sexual relations at a fraternity party; no
mention of domestic violence or a recanting witness];
11. Doe v. University of Cincinnati (6th Cir. 2017) 872
F.3d 393, 396–399 [woman and man lived separately
and disagreed about whether their one episode of
sexual relations was consensual; no mention of
domestic violence or a recanting witness].
In sum, Boermeester asks this court to do what no court
has done: overturn student discipline because the accused
student did not get a chance to question a recanter, which is
something the accused said he did not want and something that
could have done him no good.
The same is true for Boermeester’s new theory that the real
problem was his inability to cross-examine secondary witnesses
like MB2 and DH. If Boermeester has cited holdings to that
effect, I have missed them. I am not familiar with a holding that
discipline will be overturned when a school does not entertain
cross-examination that is never requested.
The cases to date all concern the right of confrontation
when it could possibly have done the man some good. No
precedent deals with a situation where the man wanted to avoid
confrontation because it offered him only peril.
V
It mystifies me how California Courts of Appeal have
concluded the federal due process clause applies when there is no
state action. Intermediate appellate courts have announced a
state common law rule that procedures in private schools should
19
mirror the federal constitution. That is a leap. State law
governing private schools can depart from constitutional rules
that govern state institutions. (E.g., Doe v. Trustees of Boston
College (1st Cir. 2019) 942 F.3d 527, 533–534.)
Someday the California Supreme Court may choose to trace
and to evaluate this rule’s rise in the lower California courts.
If this happens, it may be notable that the present is a time
of ferment in the field of student misconduct discipline.
A
The law is in ferment.
Boermeester contends it is unconstitutional for schools to
use a disciplinary process departing from a fully adversarial
model. USC designed a less adversarial model we can call an
investigatory, as opposed to an adversarial, approach.
It may be some esteemed institutions of higher education
prefer an investigatory approach to an adversarial one. (See
Tamara Rice Lave, A Critical Look at How Top Colleges and
Universities Are Adjudicating Sexual Assault (2017) 71 U.Miami
L.Rev. 377, 393–394.)
Perhaps there are good reasons why.
Some courts condemn the investigatory approach. (See
Baum, supra, 903 F.3d at pp. 581–585; Allee, supra, 30
Cal.App.5th at pp. 1067–1069 [citing Baum].)
But this position is controversial. (See Haidak v.
University of Massachusetts-Amherst (1st Cir. 2019) 933 F.3d 56,
68–71 [criticizing Baum; U.S. law considers the inquisitorial or
investigatory model “fair enough for critical administrative
decisions like whether to award or terminate disability benefits.
See Sims v. Apfel [(2000)] 530 U.S. 103, 110–[1]11 . . . (explaining
that Social Security proceedings are inquisitorial rather than
20
adversarial).”]; Westmont, supra, 34 Cal.App.5th at p. 637
[combining investigative and adjudicative functions does not,
without more, deprive a student accused of sexual misconduct of
a fair hearing]; USC 2018, supra, 29 Cal.App.5th at p. 1235, fn.
29 [although 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].)
In sum, there is a nationwide legal debate about the right
way to investigate claims of student misconduct. There is little
consensus.
B
The facts are in ferment. At this moment there is
considerable procedural experimentation. On hundreds or
thousands of campuses across the land, informed and thoughtful
people are discussing the right way to handle these cases. This
discussion is in good faith and is wide open. There is ongoing
innovation and little consensus.
The American Law Institute (ALI) launched a project in
2015 to evaluate this debate and to advise school decisionmakers.
By design, the ALI’s process is deliberate and thoughtful. The
project remains in process.
C
At this moment of discussion, a grave concern is the effect
of mandatory cross-examination on the willingness of victims to
report abuse.
We are learning a lot recently about why abuse victims
may be reluctant to report abuse and to trigger a process leading
to more abuse.
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Being cross-examined is an unattractive prospect. Skilled
cross-examiners take pride in being fearsome. We often say a
good cross-examination “destroyed” a witness, that the cross-
examination was “scathing.” These words are accurate. They are
telling.
The prospect of being destroyed by a scathing cross-
examination can deter reporting. Fine words in opinions
somewhere about all the possible procedural adjustments may
mean little to a lonely and traumatized woman anguishing over
her options.
Striking the right balance is a challenge. It would be
beneficial to tap the ongoing national debate and
experimentation before promulgating some mandatory
constitutional code of campus procedures. Judge Henry Friendly
praised the wisdom of Justice Harlan and quoted his words: “I
seriously doubt the wisdom of these ‘guideline’ decisions. They
suffer the danger of pitfalls that usually go with judging in a
vacuum. However carefully written, they are apt in their
application to carry unintended consequences which once
accomplished are not always easy to repair.” (Henry Friendly,
Some Kind of Hearing (1975) 123 U.Penn. L.Rev. 1267, 1302,
quoting Sanders v. United States (1963) 373 U.S. 1, 32 (dis. opn.
of Harlan, J.).)
D
Striking the right balance ought to concern courts, but not
in this case. This case was never about a denial of cross-
examination—not until now, at any rate. At the university level,
Boermeester disavowed interest in “putting Roe on the spot
again” because his litigation strategy was to sustain her
recantation and to avoid roiling it. Nor did Boermeester lift a
22
finger to try to cross-examine other witnesses during USC’s
process.
Boermeester’s counsel has manufactured this cross-
examination issue. He has done so because he hopes someone
will accept his construct, not because cross-examination was
anything he sought at the time. His construct makes
Boermeester the victim. USC is the perpetrator.
This is awry. I would not intrude on USC’s
decisionmaking, which was procedurally proper and is supported
by substantial evidence.
WILEY, J.
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APPENDIX
Jane Roe Intake Interview
Source: Administrative Record pp. 183–189
Word count: 3404
Notes: “T9” presumably means Title IX
MB presumably means Matthew Boermeester
Jane Roe Intake – (JR)
Date: January 23, 2017
Location: CUB
Advisor: Lani Lawrence
Interviewers: Lauren Elan Helsper (LEH) and Gretchen Means
(GM)
JR has been dating Matt since March 2016. Their relationship
was on and off for a while but that is when they started seriously
seeing each other.
Why are you here today?
- JR knows this is a “bad situation” but she hasn’t told
anyone. “This is the worst one, the one people know”
(regarding the incident over the weekend which prompted
her coming to the office)
- “I still care about him”
At the beginning of the relationship JR had bruises on her arm
from Matt and her dad found out and wanted her to get a
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restraining order against him. JR told her father that the bruise
was “circumstantial” and his concern died down. Her parents
don’t like him.
She doesn’t know what to do or if she wants to do anything. She
knows he can’t be in her life
Matt lived with her all fall semester. He got “screwed out” of his
rent situation in August and it fell through. He presented it to
JR as, “I am here all the time, I am going to live with ‘CT’ and
pay a little there” but stay with JR really. He told her about
living with CT and paying money there so they weren’t moving in
together. He wasn’t paying rent to JR or to CT. Matt moved his
stuff into her apartment and he was living with her. He never
presented it to her though as he was going to move in. He never
left. They broke up and he would stay or they would fight and he
wouldn’t leave.
Now he has his own apartment since Christmas break but he has
still been at her apartment.
Matt tells JR that he hates her and is mad at her and when she
asks “Why are you here?” He said, “I can do whatever the fuck I
want” and tells her to “Shut up.”
“There is no arguing with him. He doesn’t think he is doing
anything wrong.” Matt thinks JR deserves it. They broke up
because JR went to dinner with her ex and lied about it to Matt
and so he sees it as her fault. The other day, JR asked Matt,
“What if you hurt me bad. Would you feel bad? If you were
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playing around and it hurt?” Matt told her “no,” because it would
have been brought on by her. He gets mad at her if she doesn’t
back away or stop talking when he tells her too [sic].
JR acknowledges that she knows that this is not her fault.
Matt was not nice to her roommates so they didn’t like him. One
of her roommates tried to get her evicted because he was there.
This was in end of October. The roommate went to the landlord
instead of talking to JR. The roommate didn’t realize that Matt
doesn’t listen to JR when she tells him to leave and instead tells
her that she can leave but it is her house.
She is 5”4-5”’5 [sic] and she weighs 130. He is stronger than she
is but she doesn’t factor that into things.
On Friday they spent the day together. They are not together
and haven’t been together for a while but he still is at her house
often. They had a “good day.” MB went to party and was
drinking a lot. He called her at 12:30–1am to pick him up so she
did. (He often goes out, parties, and calls her to pick him up).
They went to get food and came back to her place. He was the
drunkest she has ever seen him. He was yelling at people and
tried to be funny. There is an alley behind the house and he was
yelling in the alley.
They got out of the car and he wanted her to drop Ziggy’s leash
but she didn’t want to. (He is mean to Ziggy and she was shaking
in the floor. He yells at her and she cowers in the cage). He
grabbed the back of JR’s hair hard and said “drop the fucking
26
leash” and she said no. Matt grabbed JR harder and then she
dropped the leash because it “hurt.” DH heard them yelling.
Matt grabbed JR by the neck (which he has done before but this
time it was harder). She was coughing and he let go and
laughed. He made a comment about the show “west world” and
how you can hurt the robots because they aren’t well. JR didn’t
really understand it). He grabbed her by the neck, pushed her
hard against the [concrete] wall, she hit her head, he let go and
then did it again. DH and TS saw and another neighbor came
out. He said that they were just “playing around.”
DH and TS took her into their apartment and Matt was asleep
when she got back to her room.
(Regarding holding her by the neck) - Matt grabbed her from the
front. He was holding “tight.” She could still breathe but it hurt
and she coughed. He has done this before. But he says that he is
“messing around.” He does it when he is rough housing (not
sexually) or to “freeze me” when he wants to stop her. The times
they were “messing around” she was sometimes scared.
He hits her or does something to egg her on and tries to get her to
play and then he grabs her by the neck to stop her.
This Friday was the “worst.” Her head hurt for a little after she
hit the wall.
She often has bruises on her legs or arms because “he is always
doing something.”
27
If JR didn’t stay with Matt after the incident, “he wouldn’t
understand.” For example, the next day he slept all day in her
bed. She went to speak to DH and Matt said don’t go over there,
“tell him to deal with his shit” and Matt was “freaking out” and
said, “what the fuck? Why are you taking that long?” (when it
was only 30 minutes)[.] Matt just yells at her. She didn’t want to
make it worse and so she just does what he says to avoid yelling
and conflict.
Bruises on arms – When JR doesn’t do what Matt wants she gets
bruised. That is a more recent thing (when they were together,
he would grab her arm too tight). Recently Matt is “more angry,”
“I am too close to him or I don’t get away fast enough or if I don’t
stop talking” then he hits her with a pointed finger so she gets
bruises. He does that to her arm, leg, lower back, stomach.
Sometimes he laughs. She feels like she doesn’t respond as
“severely” as she should. She says ouch but doesn’t laugh, but
she “downplays it” and is not firm. She does this to keep it light
and because she is uncomfortable. She tried yesterday to be more
serious and he said, “stop, I don’t care.” He didn’t take her
seriously.
Matt has pulled her hair more than once. He gives her a dead
arm/leg (punches in a certain spot so the body goes numb and it
hurts but it goes limp). It is a hard hit. He does this when she
doesn’t do what he wants her to do.
He thinks it is fun to “fight” and wants her to engage and eggs
her on or when she doesn’t do what he wants. Even when she
does engage. (He slaps her 15 times to egg her on and then
28
finally she does it back and says stop and he says stop and then
he will do it again and say, he had to get her back). “It is to get
her going.” JR thinks he thinks it is having fun.
He did it yesterday when they were just watching TV and he
started (she doesn’t know what starts it) and he starts messing
with her, hitting her and she says stop and he will keep going.
“It feels too painful for it to just be playful but the attitude
behind it is just being playful.” She is not sure if this is what he
is used to from his brothers or is not realizing enough is enough.
When Matt first started hurting her, it was not often and it has
gotten worse. “I was kind of taken aback.” The first time she
was scared of him was when they got into a fight at the beginning
of the relationship. He was yelling, and “shook me really hard”
and threatened to hit her. This was the first time she was
scared. This was a while ago. She thought about it like just a
fight. “He said that he is only like this because she made him do
this, or he can’t trust her or they weren’t actually together and
that “he will get better.”
“It then started playful and it hurt but his attitude was confusing
and it just got worse and worse and then I was like in it.”
Before Matt, JR was with someone else that was a really good
guy. They were together for about 2 years. Matt came into her
life. He is very manipulative and she believed that she wanted to
be with Matt instead. “[T]he highs are very high and the lows
are very lows [sic].” At that point her relationship with the other
29
guy was “very solid.” “Matt was flashy” and took her on crazy
dates that the other guy couldn’t give her. She drifted to Matt.
He said that at first, he couldn’t be nice to her because she was
with the other guy and that made sense to her at the time.
They had problems in the relationship. He was mean and always
putting her down. He told her how stupid she is. Recently for a
24 hour period she decided to write down every mean thing he
said to her on her phone. She read a long list of things. After
hearing how dumb she is, how bad she is at tennis, and always
being put down, she started to believe it.
JR did not cheat on Matt but “when things got bad” (her ex was
always sweet) [s]he sometimes would go to dinner with the other
guy because “it was really bad” (with Matt). She slept over her
exes [sic] house but didn’t do anything. She knew it would
sabotage the relationship with Matt. The next day, she told Matt
and he shook her, Matt was so “mad” and somehow convinced JR
that she needed to fix it. He made her feel bad and that she was
imagining these problems. “So he would give me one more
chance.” “[B]ut already then I was on his leash.” The whole time
she had to prove herself.
In the end of October, her ex said that he had to go back to Brazil
and that he wanted to go to dinner with her first. She went
without telling Matt but he found out. Matt broke up with her.
He told her that she deserved it. He told her that she could still
prove her worth and “get me back.” He would go out nightly and
come back to JR’s place and yell at her nightly and she would cry
and it was “very intense.”
30
When they broke up (and in her prove herself phase) she hooked
up with someone and he was nice to her. Matt found out and
thought that, “I did so much wrong that I deserve this.”
He still lived in her room and slept in the same bed as JR even
though they were broken up. That is when her roommate tried to
evict her.
They didn’t talk for a week over New Years and then he was at
his apartment for a week. He had surgery on his knee, he got
sick and came back to JR’s because he said, “closer to walk
there.” Matt told her that he came to stay with her because “You
do what I say, I hate you but it is easier.” “I need to take care of
him he says.”
His ego is “through the roof” since the Rose Bowl.
She spent a lot of time over the summer with his family. His dad
is super sweet and submissive, his mom runs the family. Mom is
a lawyer, she is very nice but in charge of the family.
JR gave a timeline of events:
December 2015–April 2016 Matt was in her life (seeing each
other but not dating)
April 2016–end of October 2016 – they were dating
June 2016 (early) – shaking incident
1st August – he officially moved into her house
End of October 2016 – they broke up but he was still at her
house. He was going on dates with girls and talking to girls
while living with her
31
Matt moved out the first week of spring 2017
From April to June – there were no physical incidents
The shaking incident was in June because she went to dinner
with her ex
June to when Matt moved-in to her place in August – the
physical contact was not very often maybe once a week if not less.
“It was playful but it wasn’t that bad. It has gotten stronger. It
didn’t hurt like now.”
Her parents noticed the bruising before the June incident – Matt
kicked her when she was in bed because she was coming closer to
him and her kicked her arm to get her away. Her parents found
out because she was crying and told her ex that she was scared of
Matt and he called her parents and told them
Shaking incident – “he was mad because I didn’t want to show
him my phone so he took it, threw it out the door” and then shook
her.
The physical contact “became more often and more hurtful” – “I
think it is longer than I really want to remember. In my mind I
think it was really recently. But then I had the bruise on [my]
arm in May.” It has been more often since they broke up if not
before then and probably something every day but the degree
varies if they spend solid hours together in privacy.
- He did these things privately. She doesn’t think anyone
knew.
- Her roommates knew but her voice didn’t get the urgency
to make them think it was bad. They knew he was verbally
abusive.
32
The next day (after the weekend incident) she tried to talk to
Matt and she said that he scared DH and TS and they heard him
yelling and “it looked really bad when you pushed me and it
looked really bad with your hand around my neck.” Matt said “it
was a joke, we were messing around, tell them to calm down.” He
said, “tell them you’re into that” and he implied that it was
foreplay.
Matt is the star child and is very spoiled but if his parents knew
they would be very mad. Matt does not talk to her nicely
Mom – [name redacted] (lawyer)
He never forced her during sex or hurt her during sex.
On Saturday he was yelling which got DH and TS’s attention, He
was just being a loud drunk person. DH at first thought it was a
loud drunk person and then he heard JR’s voice. At first she was
laughing, probably they heard her say no to drop the leash. He
woke them up and then they heard her.
He wanted to “toughen me up.” He wanted me to call him names
back or hit him back. He thought [she] was too submissive
because she didn’t want to.
Looking back how do you think your roommates might describe
you as they thought something was going on?
- Her best friend wanted her out of the relationship for a
long time. She was strong and told JR she was “weak.”
33
- DH would say she has been very “preoccupied” she can’t do
what she wants. She is very controlled.
- People didn’t understand the severity but knew that he was
treating her badly. They thought she was being weak or
stupid. She was she knew because it is hard.
- “He is very good at making me feel like I need him.”
He has torn her down so she has become dependent
on him.
- Throughout the time, her ex was supportive and telling her
she was the best and trying to lift her up but it wouldn’t
register because Matt was saying negative things to her
- She still had feelings for Matt and she didn’t know why.
She has been “holding onto the highs even though it has
been low for a really long time.”
A week before they broke up she went to him to break up because
he was mean and disrespecting her parents and but [sic] he told
her “no, we aren’t breaking up.” He said “every time we get into
a fight, you are going to run? No, we are going to work this out.”
He always said that he was the best thing that she was going to
get. She started to believe it and she couldn’t go anywhere.
Now she is starting to realize how bad it was. She became numb
that he treats her bad and isn’t worked up like she was in the
past. ([T]his is after the break). She made him soup because he
told her he was sick and she offered toast. He was so mean about
the toast that she cried. But in the past week, she is stronger.
34
Last night, he said that he is done and that he won’t come over
anymore. But in the past, she would say, “no, don’t go” but she
“still can’t say get the fuck out.” She is less madly in love with
him than she was before.
Her best friend is dating RP and he is a great guy. RP told her
Matt is ‘bad news.’ RP asked MB for JR’s key back over break
and Matt said no.
GM explained her options regarding moving forward:
1. Avoidance of Contact – and we will try to get the key back
from him
2. GM explained that we have to investigate what happened on
Friday even without her because of the witnesses and the
neighbor
a. This afternoon there is a panel regarding an interim
suspension
i. Clay already knows
She is scared because she didn’t want “to burn him.” She knows
that she didn’t bring it to us. GM explained that people are very
scared for her. GM said that it will be clear it was made by T9
and not her.
She graduates in December 2017 and he has one more year at
USC.
DH told JR that he is not going to participate.
35
GM offered emergency housing. She wants it to feel safe. She
wants it tonight and tomorrow night and then Sunday and
Monday when she returns from her team tennis trip.
GM explained:
1. The panel will meet re: to discuss whether interim action is
necessary to protect JR and restrict him
2. AOC will be served from T9 and Matt will not be allowed to
contact apartment – mates (JR stated that she wants the AOC)
3. He will be served with the charge letter for IPV
4. He will be served with everything at once – on Thursday
after she goes to Auburn
JR’s dad is a professor and if he calls we can explain the process
and [what] we are doing.
Matt has the password for her computer and she is going to
change it.
She has a hard time relating to the severity for herself and for his
consequences
Witness – Best friend is an alum (GO);
She is going to get us the name of the neighbor – MB2
{REDACTED}
Lani’s number – GM has
JR is not participating in the investigation. JR and LL completed
the FERPA form and the confidentiality agreement
36
GM explained academic accommodations
Investigator Notes: JR was crying throughout the meeting. She
offered information regarding her entire history with MB. After
GM told her that T9 was forced to go through an investigation on
the Friday incident as there are witnesses, JR said that she
understand[s]. JR does not want to participate in the
investigation and did not want T9 to charge on the conduct that
she divulged other than the Friday incident.
37