Boermeester v. Carry

IN THE SUPREME COURT OF
CALIFORNIA
MATTHEW BOERMEESTER,
Plaintiff and Appellant,
v.
AINSLEY CARRY et al.,
Defendants and Respondents.
S263180
Second Appellate District, Division Two
B290675
Los Angeles County Superior Court
BS170473
July 31, 2023
Justice Groban authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Jenkins, and Evans concurred.
BOERMEESTER v. CARRY
S263180
Opinion of the Court by Groban, J.
In recent years, courts in California and throughout the
nation, as well as the California Legislature and the United
States Department of Education’s Office for Civil Rights (OCR),
have attempted to determine the precise procedures
universities1 must utilize when investigating and disciplining
students accused of sexual misconduct or intimate partner
violence. This judicial and legislative activity likely began in
response to a “Dear Colleague” letter relating to title IX of the
Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) (Title
IX) that the OCR issued in 2011, which gave guidance on the
specific procedures federally funded universities should
implement when investigating sexual harassment allegations.
The letter sought to stymie the rising tide of sexual assault on
campuses by making it easier for victims to prove their claims
in university disciplinary actions. Though the letter was
rescinded in 2017, students accused of sexual misconduct or
intimate partner violence continue to challenge many of the
disciplinary procedures universities have since implemented,
asserting that these procedures create an unfair process which
may result in universities mistakenly imposing severe sanctions
upon accused students, including expulsion.
1
In this opinion, we use the term “universities” to refer to
all postsecondary educational institutions.
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Opinion of the Court by Groban, J.
In this case, respondents University of Southern
California and its Vice President of Student Affairs, Ainsley
Carry (collectively, USC) expelled appellant Matthew
Boermeester from the private university after conducting a two-
month investigation and determining that he violated USC’s
policy against engaging in intimate partner violence.
Boermeester filed a petition for a writ of administrative
mandate under Code of Civil Procedure section 1094.5 (section
1094.5), alleging that he was deprived of the “fair trial” required
by that section. A divided Court of Appeal agreed, with the
majority concluding that “USC’s disciplinary procedures . . .
were unfair because they denied Boermeester a meaningful
opportunity to cross-examine critical witnesses at an in-person
hearing.” (Boermeester v. Carry (June 4, 2020, B290675) review
granted and opn. ordered nonpub. Sept. 16, 2020, S263180.)
More specifically, the Court of Appeal majority determined that
USC’s disciplinary procedures were unfair because USC should
have afforded Boermeester the opportunity to attend a live
hearing at which he or his advisor-attorney would directly cross-
examine the alleged victim, Jane Roe,2 as well as the third party
witnesses, or indirectly cross-examine them by submitting
questions for USC’s adjudicators to ask them at the live hearing.
(Boermeester v. Carry, supra, B290675.) The Court of Appeal
majority made clear that the witnesses need not be “physically
present to allow the accused student to confront them” and could
instead appear “by videoconference, or by another method that
would facilitate the assessment of credibility.” (Ibid.)
2
Like the Court of Appeal, we refer to Roe and the other
witnesses in a manner that protects their privacy. (Cal. Rules
of Court, rule 8.90.)
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Opinion of the Court by Groban, J.
Nevertheless, the Court of Appeal majority believed that
accused students must be able to contemporaneously hear and
observe the real-time testimony of the accuser and other
witnesses at a live hearing to have a “meaningful opportunity to
respond to the evidence against [them]” and ask follow-up
questions. (Ibid.)
We hold that, though private universities are required to
comply with the common law doctrine of fair procedure by
providing accused students with notice of the charges and a
meaningful opportunity to be heard, they are not required to
provide accused students the opportunity to directly or
indirectly cross-examine the accuser and other witnesses at a
live hearing with the accused student in attendance, either in
person or virtually. Requiring private universities to conduct
the sort of hearing the Court of Appeal majority envisioned
would be contrary to our long-standing fair procedure
admonition that courts should not attempt to fix any rigid
procedures that private organizations must “invariably” adopt.
(Pinsker v. Pacific Coast Society of Orthodontists (1974)
12 Cal.3d 541, 555 (Pinsker II).) Instead, private organizations
should “retain the initial and primary responsibility for devising
a method” to ensure adequate notice and a meaningful
opportunity to be heard. (Ibid.) We accordingly reverse the
Court of Appeal’s judgment.
I. BACKGROUND
This matter comes to us on appeal from a judgment on a
petition for a writ of administrative mandate made pursuant to
section 1094.5. Our recitation of the facts is accordingly derived
solely from the administrative record. (Sierra Club v. California
Coastal Com. (2005) 35 Cal.4th 839, 864; accord, Pomona Valley
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Opinion of the Court by Groban, J.
Hospital Medical Center v. Superior Court (1997)
55 Cal.App.4th 93, 101.)
A. USC’s Policies
The USC student conduct code in effect at the time of the
incident in question prohibited students from engaging in
intimate partner violence, which it defined as “violence
committed against a person . . . with whom [the accused student
has] had a previous or current dating, romantic, intimate, or
sexual relationship.” Violence, in turn, was defined as “causing
physical harm to the person.” Upon receiving a report of
intimate partner violence or other prohibited conduct, USC’s
Title IX office would conduct an intake interview of the accuser
or alleged victim.3 If USC decided to open a formal
investigation, it would notify the accuser and the accused
student of the investigation and the alleged policy violations.
USC would also assign a Title IX investigator to the matter, who
would gather facts and interview witnesses. Upon completion
of the investigation, USC would provide the accuser and the
accused student “individual and separate” opportunities to
review the gathered evidence. After reviewing the evidence, the
accuser and the accused student would be given “individual and
separate” opportunities to respond to the evidence through an
“evidence hearing” held at the Title IX office and conducted by
3
All universities that receive federal financial assistance
must designate at least one employee, referred to as the Title IX
coordinator, as being responsible for ensuring compliance with
Title IX. (34 C.F.R. § 106.8(a) (2023).) At the time of the
incident in question, USC had a Title IX office consisting of a
Title IX coordinator, who oversaw the office, and Title IX
investigators, who investigated specific allegations of
misconduct.
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USC’s Title IX coordinator. USC would also provide the accuser
and the accused student the opportunity to submit questions for
the Title IX coordinator to ask one another at their separate
hearings. If either student shared new information during their
separate hearing, USC would provide the other student an
opportunity to review and respond to the new evidence.
At the conclusion of the evidence hearings, the Title IX
investigator would prepare a summary administrative review
(SAR) which, using a preponderance of the evidence standard,
would make factual findings and conclusions as to whether the
accused student violated one or more of USC’s policies. If the
SAR found that a policy was violated, the SAR would be
forwarded to a misconduct sanctioning panel, composed of one
undergraduate student and two staff designated by the provost
and senior vice president for academic affairs, to impose
sanctions. Either the accuser or the accused student could file
a written appeal. The appeal would be reviewed by an appellate
panel composed of three individuals appointed by the vice
president for student affairs. The vice president of student
affairs had the discretion to accept or reject the appellate panel’s
recommendations and made the final decision. Throughout the
process — from investigation to final adjudication — both the
accuser and accused student were allowed to receive support
and assistance from an advisor of their choice, who could be an
attorney.
B. The Incident
Boermeester and Roe were students at USC who had an
“ ‘on and off’ ” romantic relationship from approximately March
2016 to October 2016. Although they were no longer in a
relationship by January 21, 2017 — the date the incident
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occurred — the two often spent time together and Boermeester
regularly stayed the night at Roe’s apartment.
USC’s Title IX office received a report of an incident that
took place on January 21, 2017. The office assigned a Title IX
investigator to investigate the incident, who interviewed Roe
two days later. Roe explained that, on the night of the incident,
Boermeester called her and asked her to pick him up from a
party. He was the “ ‘drunkest’ ” she had ever seen him. Roe had
her dog with her, and when they arrived at Roe’s apartment and
exited the car, Boermeester instructed Roe to drop her dog’s
leash. She did not want to do so, so he grabbed the back of her
hair “ ‘hard’ ” and said “ ‘drop the fucking leash.’ ” Roe said
“ ‘No’ ” and Boermeester grabbed her harder, causing her to drop
the leash because it “ ‘hurt.’ ” Boermeester then grabbed the
front of Roe’s throat and neck, causing her to cough. She was
able to breathe but stated that the pressure “ ‘hurt.’ ”
Boermeester laughed and let go of her neck, but then grabbed
her by the neck again and pushed her “ ‘hard,’ ” forcing her head
against the concrete wall along the alley behind her apartment
duplex. Boermeester again let her go, but then grabbed her neck
once more and again hit her head against the wall. Roe’s head
hurt from the impact.
Roe also provided the Title IX investigator with a detailed
account of prior instances of physical violence perpetrated by
Boermeester. She described Boermeester as being “ ‘mean’ ”
and “ ‘always putting [her] down,’ ” and she read a list of
demeaning things he had said to her within a 24-hour period,
which she had catalogued on her phone. Roe requested an
avoidance of contact order prohibiting Boermeester from
contacting her and requested temporary emergency housing.
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There were two eyewitnesses to the incident. A student,
D.H., reported to the Title IX investigator that sometime after
midnight on January 21, 2017, he heard a male yelling loudly in
the alley next to the apartment duplex D.H. shared with Roe.
D.H. looked out the window and saw Boermeester pinning Roe
against a wall with his hand around her neck. He also saw Roe’s
dog running up and down the street, which D.H. perceived as a
problem because Roe never allowed her dog to run freely. He
awakened his roommate, T.S., who did not see the incident but
accompanied D.H. outside. D.H. and T.S. escorted Roe back to
their apartment. D.H. reported that Roe seemed “ ‘pretty
scared’ ” but she refused to sleep at their apartment because she
did not want to make Boermeester “ ‘more mad.’ ” Roe told the
investigator that she refused to spend the night at D.H.’s and
T.S.’s apartment because Boermeester “ ‘wouldn’t understand,’ ”
and so she returned to her own apartment to avoid “ ‘mak[ing]
it worse.’ ” Later the same day, D.H. reported the incident to
the men’s tennis coach, who in turn reported it to the Title IX
office.
A second eyewitness, M.B.2, was interviewed twice.
Initially, he told the Title IX investigator that he saw Roe
arguing with a male he did not recognize but did not see any
physical contact between the two. Later, however, he called the
Title IX investigator to report that he “ ‘saw everything’ ” and
wished to speak with the investigator again. During the second
interview, M.B.2 explained that he “ ‘tried to downplay’ the
incident” in his initial interview both because he believed Roe
was scared of Boermeester and because Roe had asked M.B.2 to
“ ‘keep it on the down low.’ ” M.B.2 reported during his second
interview that he, like D.H., heard screaming in the alley near
his residence on the night in question. He looked out the window
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and saw Boermeester standing in front of Roe with both hands
around her neck. Boermeester pushed Roe into the alley wall
and Roe made “ ‘gagging’ ” sounds. Based on his observations,
M.B.2 stated that Boermeester “ ‘is violent’ ” and “ ‘domestically
was abusing [Roe].’ ” M.B.2 grabbed a trash bag, went outside,
and asked Roe and Boermeester how things were going, which
“ ‘broke it up.’ ”
In his own interview with the Title IX investigator,
Boermeester admitted that he had instructed Roe to release her
dog, and then put his hand around her neck while she was
against the alleyway wall. But he insisted that the act
amounted to playful “ ‘horsing around’ ” or sexual foreplay —
not intimate partner violence.
USC’s Title IX office obtained surveillance video of the
incident. As the Court of Appeal majority observed, the video is
“grainy and there is no audio”; Boermeester and Roe “are small
figures in the frame of the video” since the camera “is positioned
approximately two buildings away from [them]”; and “the
interaction between Boermeester and Roe when they are near
the wall [is] barely visible.” (Boermeester v. Carry, supra,
B290675.) Nevertheless, the following events can be seen, as
described by both the superior court and the Court of Appeal
majority: “ ‘At 12:16:16 a.m., the video shows [Boermeester]
shoving Roe from the area adjacent to the house into the
alleyway. At 12:16:50, [Boermeester] appears to be holding
Roe’s neck or upper body area. At 12:17:12, [Boermeester] grabs
Roe by the neck and pushes her toward the wall of the alley. At
12:17:13 and 12:17:14, Roe’s head and body arch backwards.
Between 12:17:16 and 12:17:26, [Boermeester] and Roe are
against the wall and barely visible from the camera. At
12:17:26, [Boermeester] backs away from the wall and re-enters
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the camera’s view. At 12:17:28, Roe re-enters the camera’s view.
Roe and [Boermeester] proceed to push each other. At 12:17:38,
[Boermeester] 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 [Boermeester] and Roe. At that
moment, [Boermeester] 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.’ ” (Ibid.)
Over the course of USC’s investigation, the Title IX
investigator interviewed both parties (as noted) and 16
additional witnesses (including D.H., T.S., and M.B.2), and also
gathered documentary evidence including the video and text
messages. Roe did not want to participate in the investigation
and discouraged other witnesses from testifying against
Boermeester. Two days after her initial interview, she told the
Title IX investigator she was “ ‘freaked out’ ” that Boermeester
would learn of the investigation and she feared retaliation from
USC’s football team (Boermeester was a member of the team).
The next day, she reiterated that she was “freaked out” and
stressed that Boermeester “can’t know I made a statement” and
“can’t know I met with you guys.” After Boermeester was given
notice of the investigation, Roe stated that she no longer “ ‘fully
believe[d]’ ” the statements she made during her initial
interview and asked if she could withdraw her statement and
the avoidance of contact order, explaining she did not want
Boermeester to be “ ‘mad’ ” at her and she did not “ ‘trust’ ” that
it would be clearly conveyed to Boermeester that the
investigation was initiated by the Title IX office. Roe also
expressed concern that Boermeester would be punished too
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Opinion of the Court by Groban, J.
harshly. After the investigation was reported in the media, Roe
published a tweet on Twitter stating that “I am the one involved
in the investigation with Matt Boermeester. The report is false.”
At the conclusion of the investigation, Boermeester and
Roe separately reviewed the evidence with their advisor-
attorneys at the Title IX office. The parties declined to attend
their separate hearings or to submit questions for USC’s Title
IX coordinator to ask one another during their hearings.
Instead, they opted to submit separate written statements
responding to the evidence. In her written statement, Roe
recanted her initial statement and claimed the Title IX office
manipulated her into saying exaggerated or untrue things about
Boermeester and their relationship. Specifically, Roe explained
that she believed her initial discussion with the Title IX office
was a “counseling session where [she] was free to vent about
[her] relationship or blow off steam,” but she later felt that the
office was “trying to get [her] to say bad things about
[Boermeester] so that they could use those things against him.”
She further claimed that, had she understood the true nature of
the meeting, she “would not have said many of the things [she]
said and [she] would have made a greater effort to be accurate.”
Finally, she emphasized that Boermeester never “hit, choked,
kicked, pushed or otherwise physically abused” her. (Boldface
omitted.)
The Title IX investigator issued an SAR concluding that
Boermeester violated USC’s student conduct code by (1)
engaging in intimate partner violence and (2) violating the
interim avoidance of contact order. The SAR was forwarded to
a misconduct sanctioning panel, which recommended expulsion.
Boermeester appealed to an appellate panel, which agreed that
Boermeester physically harmed Roe — and thus engaged in
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Opinion of the Court by Groban, J.
intimate partner violence — but was “less certain as to whether
[Boermeester] intentionally physically harmed [Roe].” The
appellate panel acknowledged that intent “is not a required
element” for proving intimate partner violence as defined by
USC’s policy, but nevertheless felt that intent was relevant for
sanctioning purposes and accordingly recommended reducing
the sanction to a two-year suspension and completion of a 52-
week intimate partner violence program. The Vice President of
Student Affairs, respondent Carry, rejected the appellate
panel’s recommendation to reduce the sanction of expulsion.
She explained that, whether Boermeester intended to cause Roe
physical harm or did so recklessly, expulsion was appropriate
given the nature of the harm inflicted.
Boermeester filed a section 1094.5 petition for writ of
administrative mandate, which the superior court denied. A
divided Court of Appeal reversed, with the majority concluding
that USC’s disciplinary procedures were unfair because
Boermeester was unable to directly or indirectly question Roe
and the third party witnesses in real time at a live hearing.
(Boermeester v. Carry, supra, B290675.) The Court of Appeal
majority declined to reach Boermeester’s other claims regarding
fairness, including his assertion that USC’s disciplinary
procedures were unfair because USC’s Title IX investigator held
the dual roles of investigator and adjudicator. (Ibid.) We
granted review to determine whether the Court of Appeal
majority was correct in concluding that USC should have held a
live hearing featuring real-time direct or indirect cross-
examination of all parties and witnesses (whether conducted in-
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person or virtually) with an opportunity for Boermeester to ask
the witnesses follow-up questions.4
II. DISCUSSION
A. Writ of Administrative Review
A writ of administrative review brought pursuant to
section 1094.5 allows for judicial review of quasi-judicial
decisions that are made “as the result of a proceeding in which
by law a hearing is required to be given, evidence is required to
be taken, and discretion in the determination of facts is vested
in the inferior tribunal, corporation, board, or officer.” (§ 1094.5,
subd. (a).) Judicial review is limited to “whether the respondent
4
The Court of Appeal was split as to whether Boermeester
forfeited his right to challenge USC’s failure to provide him with
a live hearing featuring direct or indirect cross-examination of
Roe and the other witnesses. Justice Wiley emphasized in his
dissent that Boermeester did not submit cross-examination
questions for USC’s adjudicators to ask Roe and “never requested
live cross-examination” of Roe or the other witnesses.
(Boermeester v. Carry, supra, B290675 (dis. opn. of Wiley, J.).)
The Court of Appeal majority declined to find forfeiture,
deciding that it would have been futile for Boermeester to
request cross-examination at a live hearing since neither USC’s
policies nor the law at the time allowed for it. (Boermeester v.
Carry, supra, B290675.)
Neither party asks that we resolve this matter on
forfeiture grounds. USC instead urges us to resolve the issue on
the merits, noting the need for “clear guidance on what the
common law actually requires.” We find that the issues raised
are important and recurring, and accordingly exercise our
discretion to reach the merits without deciding whether
Boermeester forfeited his claims. (See Teacher v. California
Western School of Law (2022) 77 Cal.App.5th 111, 129; JMS Air
Conditioning & Appliance Service, Inc. v. Santa Monica
Community College Dist. (2018) 30 Cal.App.5th 945, 962, fn. 6.)
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has proceeded without, or in excess of, jurisdiction; whether
there was a fair trial; and whether there was any prejudicial
abuse of discretion.” (§ 1094.5, subd. (b).) “ ‘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.’ ” (Doe v.
University of Southern California (2016) 246 Cal.App.4th 221,
239 (University I); accord, Natarajan v. Dignity Health (2021)
11 Cal.5th 1095, 1111.)
Section 1094.5 review applies not only to the decisions of
governmental agencies but also to the decisions of private
organizations, so long as the private organization was legally
required to hold a hearing, take evidence, and make factual
determinations in coming to its decision. (Anton v. San Antonio
Community Hospital (1977) 19 Cal.3d 802, 815–817.) We have
never previously applied section 1094.5 to a private university’s
disciplinary decisions. We nevertheless find that section 1094.5
writ review is appropriate because, for the reasons more fully
explained below, the common law doctrine of fair procedure
applies in this context. Among other things, this doctrine, when
applicable, requires a private organization to comply with its
own procedural rules governing the expulsion of individuals
from the organization, and it permits courts to evaluate the
basic fairness of those procedural rules when the organization
seeks to exclude or expel an individual from its
membership. (Cason v. Glass Bottle Blowers Assn. (1951) 37
Cal.2d 134, 143 (Cason); accord, Otto v. Tailors’ P. & B. Union
(1888) 75 Cal. 308, 314–315.) Here, USC’s policies were subject
to the common law doctrine of fair procedure, and those policies
specified that the university would offer the accused student a
hearing, take evidence, and make factual determinations in a
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final adjudicatory decision issued by the vice president of
student affairs. Thus, the section 1094.5 “elements of hearing,
evidence, and discretion in the determination of facts are clearly
required by law” and section 1094.5 writ review applies. (Anton,
at p. 815; see also Bray v. International Molders & Allied
Workers Union (1984) 155 Cal.App.3d 608, 616 [courts “ ‘pay
proper respect’ ” to a private organization’s “ ‘quasi-judicial
procedure, precluding an aggrieved party from circumventing’ ”
section 1094.5 review].)
The parties do not dispute that section 1094.5 applies.
The parties’ dispute instead centers on the meaning of a “fair
trial” under section 1094.5, subdivision (b). Boermeester asserts
that section 1094.5’s fair trial component can only be satisfied
by adhering to principles established by the common law
doctrine of fair procedure which, in certain limited contexts,
requires a private organization to give an individual adequate
notice of the charges and a reasonable opportunity to respond
before expelling the individual from the organization’s
membership. (Pinsker II, supra, 12 Cal.3d at p. 555.)
Boermeester additionally urges us to rely on constitutional due
process principles, though he does not go so far as to suggest
that due process applies to private universities like USC. USC,
on the other hand, claims that “[s]ection 1094.5 is a procedural
vehicle for reviewing public and private administrative
decisions” and “does not impose any particular standards of fair
procedure.” Even so, USC does not dispute that some minimum
standard of procedural fairness is required in this context.
Moreover, USC relies on cases decided under the common law
doctrine of fair procedure in asserting that its disciplinary
process was fair.
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Neither we nor any other court has held that the fair trial
component of section 1094.5 is synonymous with either the
common law doctrine of fair procedure or with due process
principles, and we decline to do so here. Nevertheless, and as
explained more fully below, our fair procedure cases are
instructive because the membership-related decisions made by
the private organizations in those cases are similar in
significant respects to private universities’ student disciplinary
decisions.
The principles of common law fair procedure are similar to
those of constitutional due process in that they are flexible and
context specific. Under either concept, the precise procedures
necessary to provide a complainant with a meaningful
opportunity to be heard “depend[] largely on ‘the nature of the
tendered issue.’ ” (Ezekial v. Winkley (1977) 20 Cal.3d 267, 279
(Ezekial); accord, Saleeby v. State Bar (1985) 39 Cal.3d 547,
565.) This is not to say that fair procedure and due process are
identical. Due process is a constitutional right designed to
protect citizens from abuses of state power, and it does not apply
here since no state action is involved. Fair procedure, on the
other hand, is a more flexible judicially created concept
applicable to private organizations in limited situations. (See
Pinsker II, supra, 12 Cal.3d at p. 550, fn. 7 [distinguishing due
process and fair procedure]; Cotran v. Rollins Hudig Hall
Internat., Inc. (1998) 17 Cal.4th 93, 108, quoting Friendly,
“Some Kind of Hearing” (1975) 123 U. Pa. L.Rev. 1267, 1269–
1270, fn. 10 [“ ‘The precise content of the common law “fair
procedure” requirement is far more flexible than that which the
Supreme Court has found to be mandated by due process’ ”].)
Because this matter involves a private university, no
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constitutional rights are at stake and a greater degree of
flexibility is warranted. (See Pinsker II, at p. 555.)
With these considerations in mind, we next provide a
background on the common law doctrine of fair procedure and
discuss how it governs our inquiry.
B. The Common Law Doctrine of Fair Procedure
The common law doctrine of fair procedure originally
developed to prevent the arbitrary expulsion of individuals from
memberships in certain private organizations — such as mutual
aid societies, fraternities, or unions — where the expulsion
“adversely affected [property] rights in specified funds held for
the association’s members.” (Potvin v. Metropolitan Life Ins. Co.
(2000) 22 Cal.4th 1060, 1066 (Potvin).) The doctrine was
subsequently expanded to prevent the arbitrary expulsion or
exclusion of individuals from private organizations that “possess
substantial power either to thwart an individual’s pursuit of a
lawful trade or profession, or to control the terms and conditions
under which it is practiced.” (Ezekial, supra, 20 Cal.3d at
p. 272.) For the doctrine to apply, individuals need not show
that they would be fully unable to practice their chosen
profession absent membership in the organization; they can
instead show that “exclusion from membership . . . deprives
[them of] substantial . . . educational, financial, and professional
advantages.” (Pinsker v. Pacific Coast Soc. of Orthodontists
(1969) 1 Cal.3d 160, 164–165, italics omitted (Pinsker I).)
In Pinsker I, for example, we held that an orthodontics
association was subject to the doctrine of fair procedure,
explaining that while membership in the association was “not
economically necessary in the strict sense of the word,” it was a
“practical necessity for a dentist who wishes not only to make a
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good living as an orthodontist but also to realize maximum
potential achievement and recognition in such specialty.”
(Pinsker I, supra, 1 Cal.3d at p. 166.) Similarly, in Potvin, we
held that an insurer’s removal of a physician from its preferred
provider list was subject to the doctrine of fair procedure
because “the insurer possesses power so substantial that the
removal significantly impairs the ability of an ordinary,
competent physician to practice medicine or a medical specialty
in a particular geographic area, thereby affecting an important,
substantial economic interest.” (Potvin, supra, 22 Cal.4th at
p. 1071.) We also elaborated on our rationale for requiring
certain private organizations to apply fair procedure in their
membership decisions by observing that these organizations
“affect[] the public interest” and “ ‘are viewed by the courts as
quasi-public in nature’ ” which “ ‘lead courts to impose’ ” on
them certain obligations to the public and the individuals with
whom they deal. (Id. at p. 1070.) This rationale applied to the
insurer in Potvin since “ ‘[t]he public has a substantial interest
in the relationship between [insurers] and their preferred
provider physicians.’ ” (Ibid.)
Most notably, in Ezekial, we applied the fair procedure
doctrine to prevent an individual’s arbitrary expulsion from a
residency program at Kaiser, a private teaching hospital.
(Ezekial, supra, 20 Cal.3d 267.) We found that the plaintiff was
entitled to fair procedure because, by accepting him into its
residency program and later seeking to expel him from that
program, “Kaiser has assumed the power to permit or prevent
[the plaintiff’s] practice of a surgical specialty and to thwart the
enjoyment of the economic and professional benefits flowing
therefrom.” (Id. at p. 274.) We additionally reasoned that
“[d]ismissal from Kaiser will, as a practical matter and because
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of Kaiser’s close relationship with other teaching hospitals,
prevent plaintiff’s acceptance in any other surgical residency
program. Successful completion of an approved surgical
residency is a prerequisite to attainment of the status of a ‘board
certified general surgeon,’ without which plaintiff cannot
practice a surgical specialty in any accredited California
hospital.” (Id. at pp. 270–271.) Because “the right to practice a
lawful trade or profession is sufficiently ‘fundamental’ to require
substantial protection against arbitrary administrative
interference,” the doctrine of fair procedure applied. (Id. at
p. 272.)
Unlike in the above cases, this matter does not involve a
private entity with “a virtual monopoly” sufficient to impede an
individual’s pursuit of a particular trade or profession. (Pinsker
I, supra, 1 Cal.3d at p. 166; accord, Potvin, supra, 22 Cal.4th at
p. 1072 [fair procedure applied because “only a handful of health
care entities have a virtual monopoly on managed care” and
“removing individual physicians from preferred provider
networks controlled by these entities could significantly impair
those physicians’ practice of medicine”].) Nevertheless, a
private university provides an important, quasi-public
service — a postsecondary education — affecting the public
interest. “ ‘[E]ducation is vital and, indeed, basic to civilized
society. . . . [I]t is an interest of almost incalculable value,
especially to those students who have already enrolled in the
institution and begun the pursuit of their college training.’ ”
(Goldberg v. Regents of University of California (1967)
248 Cal.App.2d 867, 876 (Goldberg); accord, Doe v. University of
Cincinnati (6th Cir. 2017) 872 F.3d 393, 399 [expulsion from a
university “ ‘clearly implicates’ a protected property interest”
and may also involve a protected liberty interest].) Much like in
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Ezekial, this case involves “an important benefit or privilege,”
which was already conferred on Boermeester and which USC
took away from him by expelling him. (Ezekial, supra, 20 Cal.3d
at p. 273.) Given the seriousness of sexual misconduct or
intimate partner violence allegations, a student who is expelled
from a university for such conduct may find it especially
difficult — if not impossible — to complete a postsecondary
education elsewhere, thwarting the student’s ability to realize
“the economic and professional benefits flowing” from a college
degree. (Id. at p. 274.)5 For these reasons, we find that a
student’s interest in completing a postsecondary education at a
private university is analogous to an individual’s interest in
continuing membership in a private organization that impacts
the individual’s ability to practice his or her chosen profession.
Our common law doctrine of fair procedure therefore applies in
determining whether USC’s disciplinary procedures were fair.
Where it applies, the common law doctrine of fair
procedure requires private organizations to provide adequate
5
USC counters that expulsion will not “tarnish a student’s
reputation for life” because “federal law prohibits universities
from disclosing the findings of investigations into alleged
misconduct to unauthorized persons without the consent of the
student or, when applicable, his parent.” The statute to which
USC cites, the Family Educational Rights and Privacy Act of
1974, prohibits the federal funding of educational institutions
that have a policy or practice of releasing education records to
unauthorized persons. (20 U.S.C. § 1232g(b)(1).) It contains an
exception, however, that allows the release of a student’s records
to other schools at which the student is seeking admission.
(20 U.S.C. § 1232g(b)(1)(B).) It therefore does not alter our
observation that a student who is expelled from a university for
committing sexual misconduct or intimate partner violence may
find it difficult to complete his or her education elsewhere.
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notice of the charges and a meaningful opportunity to be heard.
(Pinsker II, supra, 12 Cal.3d at pp. 555–556; Ezekial, supra,
20 Cal.3d at p. 278.) We have never held, however, that any
specific or baseline procedures must be followed to satisfy these
requirements. Boermeester points to Cason, supra, 37 Cal.2d
134, where we observed in dicta that a “fair trial” “includes the
right . . . to confront and cross-examine the accusers” (id. at
pp. 143, 144), but we did not hold in Cason that the plaintiff was
denied a fair procedure on that ground. Instead, we held that
the plaintiff was denied a fair procedure because he was not
permitted to hear or review the accuser’s testimony or to refute
that testimony, nor was he allowed to examine the written
evidence submitted against him. (Id. at pp. 144–145.)
Moreover, we have since noted that “[t]he common law
requirement of a fair procedure does not compel formal
proceedings with all the embellishments of a court trial
[citation], nor adherence to a single mode of process. It may be
satisfied by any one of a variety of procedures which afford a fair
opportunity for an applicant to present his position.” (Pinsker
II, at p. 555.) In fact, we have observed that a formal hearing is
not required in all circumstances; at times, it may be sufficient
for a private organization to allow only a written response to the
charges. (Ezekial, at p. 279.) We have further emphasized that,
given “the practical limitations on the ability of private
institutions to provide for the full airing of disputed factual
issues” (id. at p. 278), courts “should not attempt to fix a rigid
procedure that must invariably be observed. Instead, the
associations themselves should retain the initial and primary
responsibility for devising a method which provides an applicant
adequate notice of the ‘charges’ against him [or her] and a
reasonable opportunity to respond” (Pinsker II, at p. 555).
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In short, though the fair procedure doctrine requires
adequate notice of the charges and a reasonable opportunity to
respond, applying the doctrine to this context requires us to give
private universities primary responsibility for crafting the
precise procedures meant to afford a student with notice and an
opportunity to respond. (Pinsker II, supra, 12 Cal.3d at p. 555.)
Private universities generally know best how to manage their
own operations, and requiring a fixed set of procedures they
must utilize in every situation when determining student
discipline would constitute an improper “ ‘intrusion into the[ir]
internal affairs.’ ” (Id. at p. 557; accord, Ezekial, supra,
20 Cal.3d at pp. 278–279.)
C. Recent Legislation
The Legislature recently enacted legislation setting forth
the precise procedures it felt were necessary to ensure fairness
to both the accused student and the accuser and to combat
sexual violence on university campuses. Senate Bill No. 493
(2019–2020 Reg. Sess.) (Senate Bill 493), which became effective
on January 1, 2021 (Stats. 2020, ch. 303), applies to public or
private universities that receive state financial assistance and
are not exempt from the statute. (Ed. Code, § 66281.8, subd.
(a)(1); id., § 66271.) It specifies the procedures universities
must implement on and after its effective date to address
incidents of sexual violence. (See generally id., § 66281.8.)
Senate Bill 493 does not apply here since the incident itself and
USC’s subsequent investigation of the incident occurred prior to
Senate Bill 493’s effective date. We nevertheless find it
noteworthy that the statute does not require universities to
conduct live hearings featuring cross-examination of the accuser
and other witnesses. (Cf. Nightlife Partners, Ltd. v. City of
Beverly Hills (2003) 108 Cal.App.4th 81, 91 [the Administrative
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Opinion of the Court by Groban, J.
Procedure Act (Gov. Code, § 11340 et seq.) was inapplicable but
was nonetheless “helpful as indicating what the Legislature
believes are the elements of a fair and carefully thought out
system of procedure for use in administrative hearings”].)
Senate Bill 493 is intended “to account for the significant
individual civil consequences faced by respondents alleged to
have committed sexual violence as well as the significant harm
to individual complainants and to education equity more
generally if sexual violence goes unaddressed.” (Stats. 2020, ch.
303, § 1, subd. (n).) As relevant here, it gives universities the
discretion to decide whether “a hearing is necessary to
determine whether any sexual violence more likely than not
occurred.” (Ed. Code, § 66281.8, subd. (b)(4)(A)(viii), added by
Stats. 2020, ch. 303, § 3.) It also instructs universities to
consider, “[i]n making this decision, . . . whether the parties
elected to participate in the investigation and whether each
party had the opportunity to suggest questions to be asked of
the other party or witnesses, or both, during the investigation.”
(Ibid.) Thus, universities are left to determine for themselves
whether to conduct a hearing, how to format it, and what rules
govern it.
Senate Bill 493 expressly provides that universities need
not comply with any of its provisions that conflict with federal
law. (Ed. Code, § 66281.8, subd. (f).) Federal law in this area is
still evolving. After the OCR rescinded its 2011 “Dear
Colleague” letter in 2017, it began a rulemaking process
culminating in Title IX regulations that went into effect on
August 14, 2020, three years after Boermeester’s expulsion from
USC. Though the 2020 Title IX regulations are inapplicable
here, it is worth observing that the Title IX regulations may be
trending towards providing private universities with more
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Opinion of the Court by Groban, J.
flexibility in determining whether to conduct a live hearing. To
explain, the 2020 Title IX regulations require universities
receiving federal funds to “provide for a live hearing” that allows
“each party’s advisor to ask the other party and any witnesses
all relevant questions and follow-up questions, including those
challenging credibility,” which “must be conducted directly,
orally, and in real time.” (34 C.F.R. § 106.45(b)(6)(i) (2023).) In
June 2022, however, the OCR proposed amendments to the 2020
regulations, which are not yet final. The proposed amendments
provide that universities may opt “to conduct live hearings with
cross-examination or have the parties meet separately with the
decisionmaker and answer questions submitted by the other
party when a credibility assessment is necessary.” (87 Fed. Reg.
41390, 41397 (July 12, 2022).) After reexamining its position
and evaluating relevant case law, the OCR determined that
“neither Title IX nor due process and fundamental fairness”
(87 Fed. Reg., supra, at p. 41505) requires universities “to
provide for a live hearing with advisor-conducted cross-
examination in all cases” (id. at p. 41507). The OCR further
justified the proposed amendments by stating that growing
evidence calls into question “whether adversarial cross-
examination is the most effective tool for truth-seeking in the
context of sex-based harassment complaints involving students
at postsecondary institutions” and shows that “information-
gathering approaches such as questions asked in individual
meetings instead of during a live hearing (sometimes described
as inquisitorial procedures) are more likely to produce the truth
than adversarial methods like cross-examination.” (Ibid.)
As stated above, we find it significant that Senate Bill 493
(as well as the OCR’s most recent proposed amendments to the
Title IX regulations) give universities wide latitude in
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Opinion of the Court by Groban, J.
determining the precise nature of their disciplinary proceedings.
But we also observe that the state of the law in this area is in
flux and is, therefore, subject to continued change and
development. We further emphasize that, because neither
Senate Bill 493 nor the current or proposed Title IX regulations
apply to this matter, they are not dispositive.6
D. Fair Procedure Does Not Require Live Hearings
with Cross-examination
We must decide whether fair procedure requires private
universities to provide accused students the opportunity to
directly or indirectly cross-examine the accuser and other
witnesses at a live hearing with the accused student in
attendance, either in person or virtually. Applying our fair
procedure precedent discussed above, we hold that it does not.
Requiring live hearings featuring real-time cross-examination
of witnesses in the accused student’s presence would be contrary
to our prior conclusion that “fair procedure does not compel
formal proceedings with all the embellishments of a court trial.”
(Pinsker II, supra, 12 Cal.3d at p. 555.) It would also be contrary
6
Going forward, all universities that receive state financial
assistance and are not exempt from Senate Bill 493 will need to
comply with Senate Bill 493 in any context in which the statute
applies. To the extent that our holding conflicts with any of the
provisions of Senate Bill 493, Senate Bill 493’s provisions
control. (Ed. Code, § 66281.8, subd. (g)(2) [“Any case law that
conflicts with the provisions of the act . . . shall be superseded
as of this statute’s effective date”]; see also Woods v. Young
(1991) 53 Cal.3d 315, 324 [“[A] later, more specific statute
controls over an earlier, general statute”].) The parties agree
that Senate Bill 493 does not apply retroactively to this matter,
and we accordingly do not opine on what the outcome of
Boermeester’s petition would have been had the statute applied
to his claims.
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Opinion of the Court by Groban, J.
to our admonition that courts must refrain from fixing rigid
trial-like procedures “that must invariably be observed.” (Ibid.)
As we have recognized, an accused student has a
significant interest in completing a postsecondary education.
For this reason, private universities must comply with the fair
procedure doctrine by affording accused students reasonable
notice of the charges and a meaningful opportunity to respond
before disciplining them. When crafting the precise procedures
necessary to provide a meaningful opportunity to respond,
however, a private university must balance competing interests,
including the accused student’s interests in a fair procedure and
completing a postsecondary education, the accuser’s interest in
not being retraumatized by the disciplinary process, and the
private university’s interests in maintaining a safe campus and
encouraging victims to report instances of sexual misconduct or
intimate partner violence without having to divert too many
resources from its main purpose of education. (See Ezekial,
supra, 20 Cal.3d at pp. 277–278 [weighing the plaintiff’s
economic interest in completing the residency program against
the private hospital’s interest in protecting itself from the
mistakes of incompetent physicians]; accord, Doe v. Westmont
College (2019) 34 Cal.App.5th 622, 634 (Westmont) [observing
that “[a] fair hearing strives to balance three competing
interests” among the accused student, the accuser, and the
university].) It is therefore appropriate to give private
universities broad discretion in formulating their disciplinary
processes to ensure that they not only provide the accused
student a meaningful opportunity to be heard, but also
embolden victims to report incidents of sexual misconduct or
intimate partner violence, encourage witnesses to participate in
the disciplinary process, and allow the private university to
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Opinion of the Court by Groban, J.
conserve its resources so that it can remain focused on its
primary mission of providing a postsecondary education.
The Court of Appeal majority reasoned that the accused
student must be able to engage in adversarial back-and-forth
questioning with the accuser and other witnesses at a live
hearing in order to assess witness credibility and to “fully
present his [or her] defense.” (Boermeester v. Carry, supra,
B290675.) While live adversarial questioning may be
considered essential in the context of a criminal trial (People v.
Louis (1986) 42 Cal.3d 969, 982–983), there is no absolute right
to a live hearing with cross-examination in administrative
proceedings, even where constitutional due process applies. As
courts have explained in other administrative contexts,
“ ‘[d]ifferences in the origin and function of administrative
agencies “preclude wholesale transplantation of the rules of
procedure, trial, and review which have evolved from the history
and experience of courts.” . . . The judicial model of an
evidentiary hearing is neither a required, nor even the most
effective, method of decisionmaking in all circumstances.’ ”
(Murden v. County of Sacramento (1984) 160 Cal.App.3d 302,
311.) The fair procedure doctrine similarly recognizes “the
practical limitations on the ability of private institutions to
provide for the full airing of disputed factual issues.” (Ezekial,
supra, 20 Cal.3d at p. 278.) Private universities are ill-equipped
to function as courts because they lack subpoena power to force
key witnesses to attend a hearing and be subject to cross-
examination. They must instead rely on the voluntary
participation of witnesses, which may prove more likely when
the disciplinary process allows witnesses to testify outside of the
context of a live hearing and outside the accused student’s
presence. As the Attorney General, appearing here as amicus
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Opinion of the Court by Groban, J.
curiae, observes, requiring live hearings featuring real-time
adversarial questioning “threatens to deter students from
participating and to traumatize those who do.” Furthermore,
such hearings would require private universities to make on-
the-fly rulings on objections to proposed questions and other
issues raised during the hearing, which university staff may not
be adequately trained to do. This would “divert both resources
and attention from a university’s main calling, that is
education.” (Doe v. Regents of University of California (2016)
5 Cal.App.5th 1055, 1078 (Regents I); accord, Goss v. Lopez
(1975) 419 U.S. 565, 583 [“To impose . . . even truncated trial-
type procedures might well overwhelm administrative facilities
in many places and, by diverting resources, cost more than it
would save in educational effectiveness”].) Simply put, the
“ ‘procedures for dismissing college students [are] not analogous
to criminal proceedings and could not be so without at the same
time being both impractical and detrimental to the educational
atmosphere and functions of a university.’ ” (Andersen v.
Regents of University of California (1972) 22 Cal.App.3d 763,
770, quoting Goldberg, supra, 248 Cal.App.2d at p. 881.)
In this case, USC provided Boermeester notice of the
allegations; the opportunity to provide his version of events in
his interview with the Title IX investigator; the opportunity to
independently review the testimonial and documentary
evidence with his attorney-advisor; the opportunity to submit
his own evidence and the names of potential witnesses to the
Title IX investigator; the opportunity to respond to the
testimonial and documentary evidence through an in-person
evidence hearing held at the Title IX office and conducted by the
Title IX coordinator (which he declined to attend in favor of
submitting a written response to the evidence); the opportunity
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Opinion of the Court by Groban, J.
to submit questions for the Title IX coordinator to ask Roe at her
own evidence hearing (which he also declined to do); and the
opportunity to appeal the misconduct sanctioning panel’s
decision to the appellate panel. USC was not required to have
gone further by conducting a live hearing with Boermeester in
attendance and with Boermeester directly or indirectly cross-
examining the witnesses and asking follow-up questions, either
in person or virtually.
Boermeester relies on recent appellate court decisions to
support his view that fair procedure requires live hearings at
which accused students are permitted to cross-examine
witnesses (in person or virtually), but most of these cases do not
help him. In University I, the first California appellate case to
analyze what procedures might be required in this context, the
court correctly observed that fair procedure requires only
“ ‘notice reasonably calculated to apprise interested parties of
the pendency of the action . . . and an opportunity to present
their objections’ ” (University I, supra, 246 Cal.App.4th at
p. 240) and concluded from this that “a full trial-like proceeding
with the right of cross-examination is not necessary” (id. at
p. 248). It is true that, subsequent to the University I decision,
some courts have held that private universities must allow the
accused student to indirectly cross-examine the accuser or third
party witnesses where the adjudication “turns on witness
credibility,” but most of these decisions have not specified that
the indirect cross-examination should occur within the context
of a live hearing. (Westmont, supra, 34 Cal.App.5th at p. 638;
accord, Doe v. Claremont McKenna College (2018)
25 Cal.App.5th 1055, 1070 (Claremont McKenna); Doe v.
University of Southern California (2018) 29 Cal.App.5th 1212,
1237 (University II); see also Regents I, supra, 5 Cal.App.5th at
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p. 1084.) In University II, for example, the court directed the
private university to give the accused student “an opportunity
to submit a list of questions” for the university’s adjudicators to
ask the accuser if it proceeded with a new disciplinary
proceeding upon remand (University II, at p. 1238), but it did
not direct the university to conduct a hearing — even after
acknowledging that the university’s policies did not allow for a
hearing (see id. at pp. 1235, 1238). Moreover, courts have been
careful to observe that there exist several “ ‘alternate ways of
providing accused students with the opportunity to hear the
evidence being presented against them’ ” and to rebut such
evidence, other than “permit[ting] [the accused student’s]
presence during the [witnesses’] testimony.” (Westmont, at
p. 638; accord, University I, at p. 245, fn. 12.)
Indeed, aside from the split opinion of the Court of Appeal
below, Doe v. Allee (2019) 30 Cal.App.5th 1036 is the only
decision to hold that a private university must allow an accused
student to indirectly cross-examine witnesses “at a hearing at
which the witnesses appear[] in person or by other means [e.g.,
videoconferencing],” even where the private university’s policies
do not provide a hearing. (Id. at p. 1071.) The Allee court
acknowledged that fair procedure “requirements are ‘flexible’
and entail no ‘rigid procedure’ ” (id. at p. 1062), yet it failed to
explain how its holding comports with these principles. We
accordingly disapprove of Doe v. Allee, supra, 30 Cal.App.5th
1036 to the extent it is inconsistent with our opinion.
At oral argument, Boermeester’s counsel asserted that
providing direct or indirect cross-examination of the accuser or
other witnesses outside of a live hearing attended by the accused
student is inadequate because the private university may
“filter” or misrepresent witnesses’ answers to the accused
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Opinion of the Court by Groban, J.
student’s questions. Of course, if universities choose to question
the accuser or other witnesses outside of the accused student’s
presence, they will need to conceive of a method by which to
meaningfully convey the responses to the accused student, such
as by providing the accused student with transcripts, video or
audio recordings, or reasonably detailed summaries of the
testimony. (See Westmont, supra, 34 Cal.App.5th at p. 638.) We
leave these specific procedures up to the university to
determine. But we see no reason to address the theoretical risk
that private universities may filter answers by, in response,
categorically requiring them to conduct a live hearing with the
accused student in attendance and at which the accused student
is allowed to directly or indirectly cross-examine witnesses.
We note that this is not a case in which the accused
student was given no hearing at all. As described above, the
parties agree that USC’s policies provided separate and
individual evidence hearings for both Boermeester and Roe, and
that USC complied with its policies by offering the parties the
opportunity to attend their separate evidence hearings.
Although Boermeester could not have cross-examined Roe or the
third party witnesses in real time at his hearing, he could have
responded to the evidence and presented his defense before
USC’s adjudicators had he chosen to attend his hearing. We do
not opine on whether and under what circumstances a private
university might properly choose to refrain from providing an
accused student with a hearing that gives the accused student
the opportunity to respond to the evidence before the
university’s adjudicators, since such a hearing was offered to the
accused student in this case.
We also do not opine on whether and under what
circumstances a private university might be required to allow
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the accused student to indirectly cross-examine the accuser by
submitting questions for the university’s adjudicators to ask the
accuser outside of the context of a live hearing or the accused
student’s presence, since USC afforded Boermeester the
opportunity to submit questions for the Title IX coordinator to
ask Roe at her separate evidence hearing. Similarly, we do not
opine on whether USC’s procedure was unfair because
Boermeester was not allowed to submit questions for USC’s
adjudicators to ask the third party witnesses during the Title IX
investigator’s interviews with those witnesses, since
Boermeester does not raise this claim.
Were we to assume, however, that a private university
must provide an accused student the opportunity to indirectly
cross-examine the accuser or third party witnesses outside of
the context of a live hearing when the credibility of the accuser
or third party witnesses is central to the adjudication, as some
lower courts have held (see Claremont McKenna, supra,
25 Cal.App.5th at p. 1070; University II, supra, 29 Cal.App.5th
at p. 1237; Westmont, supra, 34 Cal.App.5th at pp. 638–639; see
also Regents I, supra, 5 Cal.App.5th at p. 1084), we would find
USC’s failure to provide Boermeester the opportunity to submit
questions for the third party witnesses in this case to be
harmless. In this case, the accounts of the third party witnesses
merely corroborated Roe’s initial accusation that Boermeester
harmed her during the incident in question. Shortly after the
incident occurred, Roe told the Title IX investigator that
Boermeester had physically harmed her. Specifically, Roe said
that it “hurt” when Boermeester grabbed the back of her hair
“hard” and told her to drop her dog’s leash; that it “hurt” when
Boermeester grabbed the front of her throat and neck, causing
her to cough; and that her “head hurt” after Boermeester
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Opinion of the Court by Groban, J.
grabbed her by the neck again and pushed her head “hard,”
causing her head to hit the alleyway wall. The video of the
incident — though grainy and soundless — is consistent with
Roe’s initial account. (Boermeester v. Carry, supra, B290675.)
Boermeester himself admitted that he had his hands on Roe’s
neck and had her against the alleyway wall. In sum, even
without considering the third party eyewitness testimony, USC
could have concluded that Boermeester “caus[ed] physical
harm” to Roe and, thus, violated its policy against intimate
partner violence.
Boermeester maintained that the act was playful or sexual
in nature and amounted to mere “roughhousing.” USC
determined, however, that Boermeester’s intent was irrelevant.
Carry — who made the final decision per USC’s policy — found
that since “[i]ntent to cause physical harm is not a required
element” of USC’s policy against intimate partner violence,
Boermeester’s alleged lack of intent to cause Roe physical harm
was not a mitigating factor. She therefore concluded that,
“[w]hether [Boermeester] intended to cause [Roe] harm or did so
recklessly, expulsion [was] appropriate given the nature of the
harm inflicted.” Because intent was irrelevant under USC’s
policy against intimate partner violence, USC could have based
its decision to expel Boermeester exclusively on Roe’s initial
statement, the video consistent with that statement, and
Boermeester’s own admissions — all of which tended to show
that Boermeester caused Roe physical harm.
It is true that Roe later recanted her testimony and agreed
with Boermeester that the incident was playful in nature. But
even if Roe’s recantation put her initial testimony in doubt, USC
provided Boermeester the opportunity to indirectly cross-
examine Roe and explore any inconsistencies in her story.
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Boermeester thus had the opportunity to submit questions to be
asked of the most important witness — the person he allegedly
hurt. Moreover, USC, as the finder of fact, was entitled to
determine that Roe’s first statement was more credible than her
later recantation. Finally, we must acknowledge, as we did in
People v. Brown (2004) 33 Cal.4th 892, 899, that it is not
uncommon for victims of intimate partner violence to recant.
Roe’s post-incident communications with USC’s Title IX office
and her friends indicate that she feared retaliation and felt a
sense of loyalty towards Boermeester, either of which may have
motivated her later recantation.
In conclusion, USC was not required to provide
Boermeester the opportunity to directly or indirectly cross-
examine Roe and other witnesses at a live hearing with
Boermeester in attendance, whether in person or virtually.
III. DISPOSITION
We reverse the judgment of the Court of Appeal and
remand for it to determine in the first instance the remaining
claims Boermeester raised on appeal that the Court of Appeal
expressly declined to reach.
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
EVANS, J.
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See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Boermeester v. Carry
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Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 49 Cal.App.5th 682Review Granted (unpublished)
Rehearing Granted
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Opinion No. S263180
Date Filed: July 31, 2023
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Court: Superior
County: Los Angeles
Judge: Amy D. Hogue
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Counsel:
Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for
Plaintiff and Appellant.
Cynthia P. Garrett for Families Advocating for Campus Equality as
Amicus Curiae on behalf of Plaintiff and Appellant.
Horvitz & Levy, Beth J. Jay, Jeremy B. Rosen, Mark A. Kressel, Scott
P. Dixler, Sarah E. Hamill; Young & Zinn, Julie Arias Young and
Karen J. Pazzani for Defendants and Respondents.
Rob Bonta, Attorney General, Matthew Rodriquez, Chief Assistant
Attorney General, Michael L. Newman, Assistant Attorney General,
Sarah E. Belton and Alexis M. Piazza, Deputy Attorneys General, for
the Attorney General of California as Amicus Curiae on behalf of
Defendants and Respondents.
Gibson, Dunn & Crutcher, Theane Evangelis, Jeremy S. Smith,
Andrew M. Kasabian; Amy Porter; and Brenda Adams for California
Women’s Law Center, Equal Rights Advocates, Kylee O., Maryam I.,
Claudia R., Alliance for HOPE International, Atlanta Women for
Equality, Child Abuse Forensic Institute, Center for Community
Solutions, Community Legal Aid SoCal, Domestic Abuse Center,
Family Violence Appellate Project, Family Violence Law Center,
Feminist Majority Foundation, Law Foundation of Silicon Valley,
Legal Aid at Work, Legal Voice, Los Angeles Center for Law and
Justice, National Association of Women Lawyers, National Women’s
Law Center, Public Counsel, Rural Human Services/Harrington House,
San Diego Volunteer Lawyer Program, Southwest Women’s Law
Center, Texas Association Against Sexual Assault, Walnut Avenue
Family & Women’s Center, WEAVE, Inc., and Women’s Law Project
as Amici Curiae on behalf of Defendants and Respondents.
O’Melveny & Myers, Apalla U. Chopra, Marni Barta, Allan W. Gustin
and Anton Metlitsky for California Institute of Technology, Chapman
University, Claremont McKenna College, Occidental College and
Pepperdine University as Amici Curiae on behalf of Defendants and
Respondents.
Arent Fox, Lowell C. Brown and Candace C. Sandoval for California
Hospital Association as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Mark M. Hathaway
Hathaway Parker
445 South Figueroa Street, 31st Floor
Los Angeles, CA 90071
(213) 529-9000
Jeremy B. Rosen
Horvitz & Levy LLP
505 Sansome Street, Suite 375
San Francisco, CA 94111-3175
(818) 995-5838