The California Court of Appeal for the Second District sided with a former University of South California (USC) student, "John Doe," who argued that his expulsion for sexual misconduct, after a female student accused him of rape, violated his due process rights.
Doe, a black male freshman on a football scholarship, filed suit against USC, alleging the administrators who handled his case were biased and provided him with no meaningful opportunity to prove his innocence. The court disagreed about administrators' bias, but agreed that Doe's due process rights were violated because he was never afforded the right to cross-examine his accuser: "Jane Roe," then a female senior and athletic trainer.
"We hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of that 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," wrote Presiding Judge Thomas Willhite in his opinion.
This cross-examination must take place at "a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments."
USC's procedures for adjudicating sexual misconduct in accordance with Title IX, the federal statute that obligates universities to investigate such matters, were severely lacking in necessary due process protections for the accused, according to Willhite. His decision blasted USC's single-investigator model, which entrusted a sole administrator with the authority to investigate accusations, choose which witnesses to interview, and ultimately determine guilt or innocence. This method, which became increasingly popular on campuses nationwide due to encouragement from the Obama administration, will no longer be permitted if Education Secretary Betsy DeVos's proposed revisions to Title IX enforcement go into effect.
This case reveals why the previous administration's strategy—which focused on pushing university administrators to neglect due process in order to expel more accused rapists—has been deeply counterproductive. The facts as summarized by Willhite might very well lead a reasonable person to conclude that Doe probably did commit sexual misconduct. Had USC employed due process, the adjudicator may have reached the very same decision, but without legally exposing the university to a lawsuit.
Around 11:30 p.m. on October 24, 2011, Roe texted Doe to see what he was doing. Roe had been drinking with her roommates, and agreed to come to Doe's apartment to smoke marijuana. By about 1:00 a.m., they had entered his bedroom for this purpose. They then had sex. According to Doe, the encounter was entirely consensual, and his roommate—a cousin—backed up his story, claiming that he heard Roe making noises that indicated pleasure.
But Roe would later tell the Title IX investigator that she did not consent, and Doe used his size and strength to overpower her. She said the encounter was rough and left her with bruises—Doe pulled her hair and stuck his fingers in her mouth, causing her to choke. He also did this to stop her verbal protestations, she said.
There is some evidence that makes Doe look bad, and also some evidence that makes Roe look bad. For one thing, Doe changed his story several times when he spoke with the investigator. For another, Doe told the investigator that he had digitally penetrated Roe on a prior occasion; but when the investigator asked Roe about it, she appeared to have no memory of the sexual portion of their previous encounter and burst into tears. The investigator was reasonably persuaded that Doe had engaged in sexual contact with Roe while she was too inebriated to recall what had happened. Doe then tried to change his story about whether he had digitally penetrated Roe.
On the other hand, Roe may have had ulterior motives: Sexual relationships between athletes and trainers are frowned upon, and some of her text messages indicate that Roe may have previously gotten in trouble for doing just this. She was also dating someone else—another male student and athlete—at the time when she texted Doe to hang out at his apartment late at night. Roe's boyfriend later claimed that when she told him what had happened, it sounded consensual. Before filing her Title IX complaint, Roe also asked several acquaintances whether they thought she would get in trouble for having sex with an athlete if it wasn't consensual.
None of these issues were addressed at a sexual misconduct hearing, because there was no hearing. Again, just one person reviewed these facts and made a determination. Whether or not that determination was correct, it was unfair to Doe, who was expelled because of it. Doe is currently serving a six-year-prison sentence for committing a series of assaults and robberies in January of 2016, after he was expelled.
The issue here is not that an innocent man was wrongfully convicted. The issue is that campus administrators who deprive accused students of due process rights will ultimately lose when the matter goes to court. That's why DeVos's new proposals, which would rectify some of the inadequacies of Title IX adjudication, should be welcomed as a policy based on the rule of law.