The Volokh Conspiracy
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From Tuesday's California Court of Appeal decision in Doe v. USC, one of several recent California appellate cases reaffirming student due process rights (which, under California law, apply in some measure even at private universities):
John Doe appeals from the trial court's denial of his petition for a writ of administrative mandamus to set aside his expulsion from the University of Southern California (USC) for unauthorized alcohol use, sexual misconduct, sexual assault, and rape.
USC student Jane Roe submitted a complaint to USC alleging John had sexually assaulted her in Jane's apartment after they both attended a "paint" party, at which the students splattered paint on each other. Dr. Kegan Allee, the Title IX investigator, who served as the investigator and adjudicator of the complaint pursuant to USC's administrative guidelines, found by a preponderance of the evidence John knew or should have known Jane was too drunk to consent to sexual activity. In addition, Dr. Allee concluded even if Jane had consented to vaginal sex, she had not consented to anal sex, as evidenced by blood observed in her apartment on the mattress, sheets, and carpeting later that day by Jane and another student.
John contends on appeal he was denied a fair hearing. We agree. Dr. Allee did not interview three central witnesses, including the two witnesses who observed Jane's apartment after the sexual encounter—one described a large puddle of blood on the mattress and blood on the sheets and carpeting; another saw the apartment earlier that day and did not see any blood. Jane relied on the third witness to help her reconstruct what happened the morning of the incident. Instead, Dr. Allee relied on the summary of the interviews by another Title IX investigator, Marilou Mirkovich. Accordingly, Dr. Allee was not able to assess the credibility of these critical witnesses during the interviews.
Because Dr. Allee's investigative report and adjudication turned on witness credibility, Dr. Allee should have interviewed all critical witnesses in person or by videoconference to allow her to observe the students during the interview. This was especially important here where there were inconsistencies in the testimony and a dispute over whether the substances observed in Jane's apartment after the sexual encounter were blood or paint from the paint party.
In addition, USC did not comply with its own procedures to conduct a fair and thorough investigation by failing to request that Jane provide her clothes from the morning of the incident and her consent to release her medical records from the rape treatment center….
[Finally], as part of the adjudicator's assessment of credibility, an accused student must have the opportunity indirectly to question the complainant. (UC Santa Barbara, supra, 28 Cal.App.5th at p. 60 [accused student was deprived of right to cross-examine complainant and to present his defense where committee allowed her to refuse to answer questions about the side effects of an antidepressant medication she was taking at the time of the alleged sexual assault on privacy grounds]; Claremont McKenna, supra, 25 Cal.App.5th at p. 1057 [college should have required complainant to appear at hearing in person or by videoconference to allow "the Committee [to ask] her appropriate questions proposed by John or the Committee itself"]; Cincinnati, supra, 872 F.3d at p. 406 [accused student had a right to question the complainant through the review committee where the committee had to decide whether to believe the complainant or accused student].) USC's procedures do not provide an accused student the right to submit a list of questions to ask the complainant, nor was John given that opportunity here. If USC proceeds with a new disciplinary proceeding, it should afford John an opportunity to submit a list of questions to ask Jane….
The judgment is reversed and the matter remanded to the trial court with directions to grant John's writ of administrative mandamus….
The opinion is by Judge Gail Ruderman Feuer, who was just appointed to the Court of Appeal by Governor Brown, and, as it happens, is the wife of L.A. City Attorney Mike Feuer (just a fun tidbit; the City wasn't at all involved here, of course). Thanks to Bruce Wessel for the pointer.