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Appeals Court: USC Violated Due Process Rights of Male Student Expelled for Sexual Misconduct

Universities must allow students to cross-examine accusers and witnesses, the ruling states.

USCBobak Ha'Eri / Wikimedia CommonsThe 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.

Photo Credit: Bobak Ha'Eri / Wikimedia Commons

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  • Calidissident||

    Robby, this happened in 2014, not 2011. I'm a USC grad and football fan and am familiar with this case (no inside info, just what's been reported), which is why I was surprised when I saw the 2011 date since I knew that was too early for that case. I checked the linked document and it does say 2014.

  • Crusty Juggler||

    Check out Danny Details over here.

  • Quo Usque Tandem||

    Good to see you back Crusty. So were you really living in a Chinchilla cage in the back of a pet shop all this time?

  • Fist of Etiquette||

    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.

    At which time it will become the Red Hour at public universities.

  • Pro Libertate||

    FESTIVAL!

  • Ray McKigney||

    FOE, guide us!

  • Fist of Etiquette||

    Joy to you, friends. [half-assedly puts hand over heart in mimic of apparent local greeting]

  • SIV||

    Fist is not of the Body

    Sign in to confirm your age
    This video may be inappropriate for some users.
  • sharmota4zeb||

    The video doesn't have any sex. It looks like your standard SJW protest in New York City.

  • Ray McKigney||

    A hearing is like assaulting the woman all over again! Victims deserve to be believed!

  • SIV||

  • Ray McKigney||

    It's a known fact that a guy wasn't wrongly convicted if he later committed a different crime.

  • SIV||

    Black man denies, white woman accuses, physical size differential...

  • ||

    physical size differential...

    Between black man & white woman's partner?

  • Rich||

    "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.

    What's magic about "university" here? Must, say, Starbucks provide such a mechanism if it kicks somebody out?

  • Ray McKigney||

    Starbucks isn't covered by Title IX (yet).

  • Jerryskids||

    Starbucks isn't a governmental entity. Yet.

  • Ray McKigney||

    True, but I think the notorious "Dear Colleague" letter purported to set policy for all schools that receive federal financial assistance, as a condition of continuing to receive the assistance.

  • Unicorn Abattoir||

    USC is a state university and thus students have due process rights.

  • jph12||

    No, the California version of USC a private university that sounds like a public one. The opposite of Rutgers.

  • Rossami||

    1. Starbucks doesn't have a contract with their customer.
    2. Getting kicked out of a Starbucks doesn't get you blacklisted at every other coffee shop in the country. It doesn't even get you blacklisted at other Starbucks.
    3. Getting kicked out of a Starbucks once doesn't get you permanently banned even just from that one shop.
    4. Even if you did get permanently banned from all coffee shops everywhere, there's rather a large difference between not being able to get you preferred daily dose of overpriced caffeine and not being able to get into any career requiring an education.
    5. And most importantly, Starbucks is not a public entity. That is, they are not an arm of the government so they are not bound by Constitutional restrictions the same way that publicly-funded universities are.

  • jph12||

    This case is explicitly about the standards at private universities where the constitutional requirement for procedural due process does not apply.

  • Rossami||

    Interesting. I'd missed that USC is a private institution. I wonder if they waived that defense by arguing that they were subject to Title IX.

  • Chili Dogg||

    What's the deal with regular people getting arrested and tried in court for alleged sex crimes, but college students not having to face the legal system when charged with similar crimes? Yeah, the University like punish you but it cannot put you in jail for 20 years.

  • sharmota4zeb||

    It is a matter of procedure, not punishment. Colleges violate due process more severely than our criminal courts do. Legislators can lower the punishment for sexual assault, and yes, our criminal court system needs to be improved too. The NJ Libertarian Party is starting to address the due process violations here after a few high profile party members were targeted. Enough is enough. When entire neighborhoods don't believe in snitching, we need to overhaul the system.

  • jph12||

    College students can still be charged with crimes. But somebody has to actually go to the police. In many (most?) of these college cases, the alleged victim chooses not to contact the police.

  • sharmota4zeb||

    Starbucks doesn't have a policy of kicking out men whom women consider icky in order to prove that they don't discriminate against women. ... Modern feminists are fighting to lay the groundwork for some good old fashioned polygyny.

  • Bubba Jones||

    When will these standards be applied to corporate HR witch hunts?

  • Quo Usque Tandem||

    In my experience with corporate witch hunts, never.

  • SIV||

  • SIV||

    Robby Soave

    Verified account

    @robbysoave
    1h1 hour ago
    More
    USC court of appeals decision finds that students accused of sexual misconduct deserve cross-examination and hearings--exactly what the DeVos Title IX reforms would restore. Important decision in an interesting case. (IMO the student was likely guilty.)
  • GILMORE™||

    19th Century Robbby: "To be sure, sheriff, i had no idea they were going to lynch that boy simply after i published his name, address, the lurid details of his violation of a white woman. Why, i'm going to write a column just this minute about how i feel those tactics are regrettable, tho their motivation is surely noble."

  • Longtobefree||

    But that damned constitution is - so inconvenient!
    First cross examinations; next will be free speech, and keeping and bearing arms, and God knows what else!;

  • Diane Reynolds (Paul.)||

    Toxic Femininity.

  • Rob Misek||

    How can someone's rights be violated without bias?

    I don't think that ignoring criminal action was the intent of justice being blind.

    Supporting due process is lip service if violators aren't found guilty.

  • Eddy||

    Huh?

  • sharmota4zeb||

    Rob, what's in my pocket?

  • TangoDelta||

    Is this the same Roe that was vs Wade? Asking for a deer friend.

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