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Date: 09-24-2019
Case Style:
John Doe v. Occidental College
Case Number: B284707
Judge: Segal, J.
Court: California Court of Appeals Second Appellate District, Division Seven on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney:
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Defendant's Attorney: Cynthia P. Garrett, Jonathan M. Brenner and Susan Graham
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Occidental College expelled John Doe for violating its
sexual misconduct policy after he sexually assaulted Jane Doe.
An external adjudicator found Jane was incapacitated within the
meaning of the policy because she was intoxicated and unable to
make “an informed and rational decision to engage in sexual
activity.” The adjudicator found John was also intoxicated; in
fact, so intoxicated he did not know Jane was incapacitated.
Under Occidental’s policy, however, John’s intoxication did not
diminish his responsibility to obtain Jane’s consent, and John
violated the policy because he should have known Jane was
incapacitated. The adjudicator concluded a sober person in
John’s position should have known Jane was too drunk to
consent.1
After unsuccessfully appealing within the college, John
filed a petition for writ of administrative mandate in the trial
court. The trial court denied the petition and entered judgment
in favor of Occidental. John argues on appeal that he did not
have a fair disciplinary hearing and that the evidence did not
support the adjudicator’s findings. We affirm.
1 We refer to Occidental’s sexual misconduct policy in effect
when Jane accused John of violating it. As of January 22, 2019
Occidental revised its policy and issued a new interim sexual
misconduct policy. (See https://www.oxy.edu/sexual-respect-titleix>
[as of Aug. 9, 2019], archived at < https://perma.cc/JDZ7-
ETZP>.)
3
FACTUAL AND PROCEDURAL BACKGROUND
A. Occidental’s Sexual Misconduct Policy
Two weeks before their sexual encounter, John and Jane
both attended freshman orientation sessions on sexual
misconduct and Occidental’s sexual misconduct policy.
Occidental’s policy prohibits sexual assault, which it defines as
“[h]aving or attempting to have sexual intercourse with another
individual . . . [b]y force or threat of force,” “[w]ithout effective
consent,” or “[w]here [the other] individual is incapacitated.” The
policy also prohibits non-consensual sexual contact, which it
defines as “[h]aving sexual contact with another individual . . .
[b]y force or threat of force, “[w]ithout effective consent,” or
“[w]here that individual is incapacitated.”
The policy defines “incapacitation” as “a state where an
individual cannot make an informed and rational decision to
engage in sexual activity because s/he lacks conscious knowledge
of the nature of the act (e.g., to understand the who, what, when,
where, why or how of the sexual interaction) and/or is physically
helpless. An individual is incapacitated, and therefore unable to
give consent, if s/he is asleep, unconscious, or otherwise unaware
that sexual activity is occurring.”
The policy discusses the relationship between alcohol use
and incapacitation. The language we italicize was central to the
adjudicator’s decision here: “Incapacitation may result from the
use of alcohol and/or drugs. Consumption of alcohol or other
drugs alone is insufficient to establish incapacitation. The
impact of alcohol and drugs varies from person to person, and
evaluating incapacitation requires an assessment of how the
consumption of alcohol and/or drugs impacts an individual’s: [¶]
4
decision-making ability; [¶] awareness of consequences; [¶]
ability to make informed judgments; or [¶] capacity to appreciate
the nature and the quality of the act. [¶] Evaluating
incapacitation also requires an assessment of whether a
Respondent knew or should have known, that the Complainant
was incapacitated. [¶] . . . In general, sexual contact while
under the influence of alcohol or other drugs poses a risk to all
parties. Alcohol and drugs impair a person’s decision-making
capacity, awareness of the consequences, and ability to make
informed judgments. It is especially important, therefore, that
anyone engaging in sexual activity be aware of the other person’s
level of intoxication. If there is any doubt as to the level or extent
of the other individual’s intoxication or impairment, the prudent
course of action is to forgo or cease any sexual contact or activity.
[¶] Being intoxicated or impaired by drugs or alcohol . . . does not
diminish one’s responsibility to obtain consent.”
B. Saturday Night and Sunday Morning, September 7-8,
2013
Jane and John knew each other, but not well. They lived
on different floors of the same dormitory and had one class
together. John was 18, and Jane was one month shy of 18.
Multiple witnesses told Occidental’s investigators or testified at
the disciplinary hearing that, during the hours before John and
Jane had sexual intercourse, Jane drank large quantities of
vodka and became extremely intoxicated. The investigation
report, witness interview summaries, and testimony at the
hearing described the following events.
5
1. 9:15 p.m.-11:30 p.m.: Jane Gets Drunk
Jane began drinking alcohol in her dormmate Liam’s room
at approximately 9:15 Saturday evening. Jane drank orange
juice mixed with vodka and several shots of straight vodka.
Jane’s friend Angela said Jane was “drinking heavily.” Other
witnesses described Jane as “a little bit drunk, but still in
control,” and “buzzed.” Jane described herself as “tipsy.”
At 9:45 p.m. Jane and others decided to go to a fraternity
party. Jane went to her room to change clothes. Jane’s
roommate Genevieve recalled Jane was drinking orange juice
mixed with alcohol, but was “pretty lucid” and “talking and
walking normally.”
After leaving the dormitory, Jane became “more and more
drunk.” She could not walk straight. She stumbled and scraped
her knee but could not feel it. She testified, “[T]hat’s how drunk I
was.” Angela testified, “[I]t seemed like [Jane] became more . . .
out of touch with . . . what was going on with her . . . .” Other
witnesses observed Jane “could not walk a straight line and . . .
was ‘getting loud.’”
When Genevieve encountered Jane at 11:30 p.m., Jane was
“visibly more intoxicated” than she had been earlier in the
evening. She was stumbling and spoke in a “high-pitched” voice.
Genevieve believed Jane’s “decision-making capacity” was “hazy.”
She testified: “I wouldn’t trust Jane to make sound . . . decisions
that she would make while sober when I saw her then,” and even
“[m]ore so later [that evening].”
Jane decided to return to the dormitory. She told her
friends, “I can’t walk anymore. I’m just going to go back to [the
dormitory].” According to Chloe, who met Jane at orientation,
6
Jane had obviously been drinking and “was not able to walk very
well.” Angela told Jamison, another friend of Jane, they “needed
‘to take care of Jane.’” Angela later told investigators: “During
freshmen orientation . . . [we] were told [we] were supposed to
watch out for . . . friends when they were partying. I know it
sounds corny . . . but I was trying to be a good person and be
there for Jane as much as I could.”
2. 7:00 p.m.-11:00 p.m.: John Gets Drunk
Liam saw “a lot of alcohol,” including vodka, rum, and beer
in John’s room after 7:00 p.m. John was “‘exuberant,’ as if he had
been drinking ‘a good amount.’” He had a bottle of alcohol in his
hand and was dancing around the room. Liam said John was
“not sloppy but a shot or two past tipsy.” Another resident of the
dormitory, Aidan, also stopped by John’s room at 7:00 p.m.
John’s friends told Aidan that John was “really drunk.” Aidan
described John as “[k]ind of clumsy” and having “slow speech.”
At 11:00 p.m. John’s roommate, Gavin, was getting ready to
leave when John walked into the room. John was stumbling,
slurring his words, and speaking in a loud voice. After observing
John for an hour, Gavin “decided not to go out, so that he could
‘keep an eye’ on John.” Aidan, who was also in John’s room at the
time, described John’s “level of intoxication” as “a ‘shit show.’”
John “was slurring his words [and] stumbl[ing] . . . .” Aidan
estimated “that on a 0 to 10 scale, with 10 being inebriated to the
point of not being able to function, John was ‘maybe a 7.’”
3. 11:30 p.m.: Jane Goes to John’s Room
Jane returned to her room on the third floor of the
dormitory at 11:30 p.m., but did not stay there. She was “bored,”
7
“wired with energy,” and “drunk.” She went to the second floor
“because there were usually people there.” John’s roommate
Gavin saw Jane leaning against the hallway wall and heard her
slurring her words. Jane followed Gavin to John’s room, where
she embraced John and started dancing with him. It seemed
“kind of intense,” so Gavin left.
Angela and Jamison lost track of Jane and were worried.
Angela called Jane, who said she was in John’s room. Angela and
Jamison found Jane and John dancing and kissing and drinking
vodka from a bottle. Angela estimated Jane drank three or four
more shots. Jane was stumbling and leaning on things to
support herself. Later, Jane and John embraced on John’s bed
and were “getting really physical.” Angela was concerned that
Jane “was not fully aware of what she was doing” and that Jane
“did not seem to know where she was or what was going to
happen next.” Angela “wasn’t sure how [Jane] would feel about”
kissing John. Angela told Jane she should stop drinking and
tried repeatedly to take away the vodka bottle. Angela believed
John heard her: “Yeah. I’m sure he could have . . . heard [me tell
Jane to stop drinking].” John appeared “very intoxicated” and
“really drunk.” John told Jamison he had been drinking since
1:00 p.m.
At midnight, Angela and Jamison took Jane to her room.
By then, Jane was “super drunk” and “incoherent.” Angela put
Jane in bed, closed the door, and left. Jamison waited outside
Jane’s room briefly before he also left.
8
4. 12:20 a.m. -12:45 a.m.: Jane and John
Exchange Text Messages
At 12:20 a.m. Jane sent a text message to her best friend
from home saying, “I’m wasted.” Between 12:31 and 12:45 a.m.,
Jane and John exchanged text messages, including these:
John: “The second that you’re away from [Angela and
Jamison] come back.”
Jane: “Okay.”
John: “Get the fuck back here. Get the fuck back here.”
Jane: “They’re still with me . . . .”
John: “Make them leave. Tell them yo[u] want to
sleep. . . . Just get back here.”
Jane: “Okay do you have a condom.”
John: “Yes.”
Jane: “Good give me two minutes.”
John: “Come here.”
Jane: “Coming.”
John: “Good girl. Knock when you’re here.”
Jane: “[Jamison is] out ride [sic] my door.”
John: “What.
Jane: “[Jamison] is outside my door.”
John: “Wtf.”
Jane: “Right.”
John: “Get him to leave.”
Jane: “Working on [i]t.”
. . . .
John: “Leave. Say you’re going to the bathroom.”
Jane: “Okay.”
9
Before leaving her room, Jane texted her friend from home
again at 12:40 a.m. and said, “The worlds moving.
I’mgoingtohave sex now.”
5. 12:45 a.m.-2:00 a.m.: Jane Goes to John’s Room
Again
Gavin saw Jane on the second floor stumbling in the
hallway and vomiting in a trash can. He helped her into a
bathroom where she vomited again. When Jane said she felt
better, Gavin left. Jane went to John’s room and told him she
had just vomited. (John testified he had no memory of Jane
vomiting.)
At 2:00 a.m. Gavin told Aidan that Jane had been drinking,
had thrown up, and was alone with John in John’s room. Aidan
was concerned. He testified: “I was worried . . . if she was
intoxicated, that she shouldn’t be . . . alone in a room with
someone else [because] she’s not in the right mind to, like, make
decisions like that[.]” Aidan also knew John had been “very
drunk earlier.” Aidan expressed his concern to Gavin, who gave
him a key to the room. Aidan found John sitting on the bed
naked with Jane under the covers. John said, “Yo, get the fuck
out.” Minutes later, John came out of the room and walked “in a
normal gait” toward the bathroom. Aidan knocked on the door
and asked three times if Jane was okay. Jane said, “Yeah, I’m
fine.”
Gavin also walked in on John and Jane. It was “obvious” to
him that they were “having sex.” Gavin believed Jane was
conscious because he saw her legs moving. He quickly closed the
door and left. He later told investigators he “had attended sexual
assault prevention training during orientation, and had been told
10
what to do if he witnessed a sexual assault. ‘This didn’t look like
one to me[.]’” After Gavin entered the room, John told Jane he
thought she should leave, and she did.
6. 2:00 a.m.: Jane Returns to Her Room but
Leaves Again
Angela found Jane in the hallway after 2:00 a.m. “a lot less
steady on her feet than she had been earlier” and slurring her
words. Genevieve was there when Angela “ushered” Jane into
their room. According to Genevieve, Jane was “very
incapacitated,” “very obviously drunk,” even “past drunk.” Jane’s
words were “excessive[ly] slurr[ed]” and she was incoherent.
Jane tried to undress but could not undo her buttons. When
Genevieve gave Jane water, “it dribbled out of her mouth.”
Genevieve “check[ed] [Jane] for the signs of alcohol poisoning.”
Genevieve left briefly to take a shower, and Jane disappeared.
Genevieve found Jane in the lobby of the dormitory next
door. Jane was “wearing her pajamas, ‘sitting on a couch on
some guy’s lap.’” Jamison, who was also present, said Jane was
“extremely drunk,” even more so than when they were together in
John’s room. Jamison told the investigators, “I didn’t know it
was possible to be more drunk than she was [earlier].” Jane
could not walk without reaching out to balance herself. When
Genevieve tried to help Jane up, Jane “buckled under her own
weight.” Genevieve needed help to get Jane back to their room.
She testified, “I was pretty sure that if we weren’t supporting her
and keeping her upright, she would not be able to stay upright.”
Maddie, whose room was next door to Jane’s room, saw
Genevieve and Jane in the hallway. Jane was “pretty
11
intoxicated” and was “slurring her words and stumbling.”
Maddie helped Genevieve get Jane into bed.
7. Later Sunday Morning: Jane Learns She Had
Sex with John
Angela woke at 10:00 a.m. to a text message. Jane told
Angela “I think I had sex with John last night.” Jane had seen
her text conversation with John but did not remember sending or
receiving the messages. Jane subsequently asked Gavin what
had happened. Gavin told her he had seen her having sex with
John. Jane told Aidan “she did not remember much of anything,”
was “not sure what exactly had happened,” and was “trying to
piece together what had happened.” Aidan told Jane, “Well, we
think that . . . you and John might have had sex.” And Jane said,
“Yeah. I was worried that that might have been what happened.”
Genevieve testified Jane told her “she couldn’t believe that it had
happened. She didn’t remember it. She didn’t know if there was
protection used or not.”
C. Occidental Investigates and Conducts a Hearing
1. The Investigation
Jane submitted a complaint against John for sexual
misconduct. When Occidental receives a sexual misconduct
complaint, its “Title IX team”2 conducts an initial assessment “to
2 Title IX of the Education Amendments of 1972 (20 U.S.C.
§ 1681 et seq.) is a federal civil rights law that prohibits
discrimination based on gender in education programs or
activities that receive federal funding. (See 34 C.F.R. § 106.1 et
12
provide an integrated and coordinated response.” Following the
assessment, the college decides whether to resolve the matter
informally or refer it for investigation. When the college decides
to investigate, it designates one or more trained employees or
external investigators to conduct a “thorough, impartial and fair”
investigation that is “appropriate in light of the circumstances of
the case” and “respectful of individual privacy concerns.” The
investigators “are not charged with reaching a determination as
to responsibility.” During the investigation, the complainant and
respondent have an “equal opportunity to be heard, to submit
evidence, and to identify witnesses who may have relevant
information.” When the investigation is complete, the
investigators prepare and submit a written report. The college
notifies the parties the investigation is complete and provides
them with information about the next step.
Occidental appointed independent investigators to
investigate Jane’s complaint. The investigators interviewed Jane
and nine other witnesses. Jane told the investigators “there
[was] a ‘big hole’ in her memory of the evening.” She
remembered drinking vodka from a bottle and dancing with
John. She said the vodka did not burn her throat “because she
was already so intoxicated.” She also remembered feeling hot
and taking off her shirt. She put her shirt back on after Angela
“flip[ped] out.” According to Jane, John “pushed her onto the bed,
and they ‘ma[d]e out for a while.’” John told Jane “to get rid of
[Angela] and [Jamison].” He told her to let them take her up to
her room and then come back to his room. John asked for Jane’s
seq.) Occidental’s Title IX coordinator “oversees the College’s
overall compliance with Title IX.”
13
cell phone number so he could text her to come back to his room
and he could “fuck” her. (John’s subsequent testimony at the
disciplinary hearing was consistent to the extent he remembered
talking to Jane about “having her leave with her friends so she
could come back down so [they] could have sex.”)
Jane said she remembered that, after returning to John’s
room, she asked him if he had a condom. She remembered
“performing oral sex on him,” but did not remember “having
sexual intercourse.” Jane also remembered that John briefly left
the room and that she heard a knock at the door and voices
asking if she was okay. She remembered John telling her his
roommate had come into the room.
On his attorney’s advice, John declined to allow the
investigators to interview him. The investigators issued a
written report with a summary of each witness interview.
Consistent with Occidental’s policy, the investigators did not
“reach[ ] a determination as to responsibility.”
2. The Threshold Determination
After Occidental receives the investigation report, it
designates a hearing coordinator who, in consultation with the
Title IX team, reviews the report and makes “a threshold
determination as to whether there is sufficient information upon
which an adjudicator could find a violation of this policy. This
threshold determination does not involve making a determination
of responsibility, nor does it involve a credibility assessment. If
the threshold has been established, the Hearing Coordinator will
issue a Notification Letter to the [parties] and refer the report for
Pre-Hearing Procedures.” The notification letter “provides each
party with a brief summary of the conduct at issue and the
14
specific provision of the [alleged] policy violation(s) . . . .” The
parties may consult attorneys, but the attorneys may not
participate in the proceedings. The parties, however, may have
an advisor assist them, and they have the right to review
investigative documents and call witnesses.
Occidental appointed a hearing coordinator who made a
threshold determination there was sufficient evidence to support
a finding John violated the college’s sexual misconduct policy.
The hearing coordinator notified Jane and John in writing that
“[g]iven the nature and severity of the allegations” there would be
a formal hearing.
3. The Disciplinary Hearing
Following a threshold determination, Occidental holds a
disciplinary hearing before a three-member panel or, at the
hearing coordinator’s discretion, an external adjudicator. The
hearing is “not intended to be adversarial” and is “not comparable
to a criminal trial.” The complainant and respondent are not
permitted to question each other directly. Instead, “the parties
may submit questions to the hearing panel [or adjudicator] in
writing [both prior to and during the hearing], which may be
posed at the discretion of the hearing panel [or adjudicator].” The
parties “may . . . request alternative testimony options that
would not require physical proximity to the other party.” The
hearing panel or adjudicator determines the respondent’s
responsibility by a preponderance of the evidence and documents
its findings in writing. If the hearing panel or adjudicator finds
the respondent violated the sexual misconduct policy, it
recommends an appropriate sanction to the hearing coordinator.
“The Hearing Coordinator, in consultation with the Title IX
15
Coordinator, will review the recommendations and impose an
appropriate sanction.” When the panel or adjudicator concludes
the respondent committed a sexual assault, the student “may
receive a sanction ranging from suspension to expulsion.” Either
party may appeal the decision.
Jane, John, the lead investigator, and five freshman
students—Gavin, Angela, Aidan, Genevieve, and Chloe—testified
during a one-day hearing before the external adjudicator. Jane
testified her memory of the incident was “foggy.” She
remembered some details days and weeks later, after she had
spoken with others. She did not remember having intercourse
with John, but a few days after their encounter she remembered
she had oral sex with him. She did not remember sending the
text messages.
John testified there was no alcohol in his room, he did not
see Jane drink any alcohol, and he did not hear Angela express
concern about Jane’s drinking. He also testified, somewhat
inconsistently: “I knew [Jane] was drunk. I did not know—I
didn’t really know she was drunk. I knew she’d been drinking. I
didn’t know to what level of impairment she was at. But we were
. . . conversing normally and having relatively normal
interactions for an hour or so, in that window before she left [my
room] and came back. In no way did I think or was she
incapacitated during that time.”
Based on the investigative report, the summaries of the
witness interviews, and the testimony of the witnesses at the
hearing, the adjudicator found by a preponderance of the
evidence John violated Occidental’s sexual misconduct policy by
sexually assaulting Jane and having non-consensual sexual
contact with her. The adjudicator found that Jane’s text
16
messages, “coupled with her actions in returning to [John’s] room
after that exchange of text messages[,] are conduct and
statements that would indicate that she consented to sexual
intercourse with [John],” but that Jane was incapacitated when
she engaged in the conduct. The adjudicator also found that
John, who “was more intoxicated than he had ever been,” “did not
have actual knowledge of [Jane’s] incapacitation,” but that a
sober person in John’s position should have known Jane was
incapacitated and could not consent.3 The adjudicator issued a
written decision, and Occidental expelled John.
D. John Files an Administrative Appeal and a Petition
for Writ of Mandate
As authorized by Occidental’s sexual misconduct policy,
John appealed in writing to the hearing coordinator. John had
the “burden of proof . . . as the original determination and
sanction are presumed to have been decided reasonably and
appropriately.” Counsel for Jane submitted a written response to
John’s appeal. The hearing coordinator asked the assistant
director for housing services to act as the appeals officer and
review the appeal. The assistant director conducted a
“deferential” review for “clear error” and found “no basis for
overturning the external adjudicator’s decision.”
John filed a petition for administrative mandate under
Code of Civil Procedure section 1094.5 in the trial court.4 John
3 John does not challenge the sober person standard in
Occidental’s policy.
4 “If a private college has a procedure for conducting sexual
misconduct disciplinary proceedings, an accused student may
17
argued the hearing was unfair because the proceedings were
“typified by [a] lack of impartiality,” the adjudicator
“purposefully” failed to ask questions that John had proposed and
that were “critical” to his defense, and the hearing coordinator
denied John “reasonable access to evidence.” John also asserted
the evidence did not support the adjudicator’s findings. The trial
court denied the petition and entered a judgment in favor of
Occidental. John timely appealed.
DISCUSSION
A. Standard of Review
“A university disciplinary proceeding concerning sexual
misconduct does not involve a fundamental vested right; thus, we
review the administrative decision applying the same standard of
review applicable in the trial court.” (Doe v. University of
Southern California (2018) 29 Cal.App.5th 1212, 1231 (USC III);
accord, Doe v. Occidental College (2019) 37 Cal.App.5th 1003,
1013 (Occidental); Doe v. Allee (2019) 30 Cal.App.5th 1036, 1060
(Allee).) “The question presented by a petition for writ of
administrative mandate is whether the agency or tribunal that
issued the decision being challenged ‘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
challenge the outcome of the proceedings in a petition for a writ
of administrative mandate.” (Doe v. Westmount College (2019) 34
Cal.App.5th 622, 634.)
18
required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.’” (Doe
v. University of Southern California (2018) 28 Cal.App.5th 26, 34
(USC II); accord, Occidental, at p. 1014; USC III, at p. 1230.)
However, “[w]e review the fairness of the administrative
proceeding de novo. ‘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.’ [Citation.]” (Doe v. University of Southern
California (2016) 246 Cal.App.4th 221, 239 (USC I); see
Occidental, at p. 1014 [“we review the fairness of the proceedings
de novo, and the substantive decision for substantial evidence”].)
B. The Disciplinary Hearing Was Fair
1. The Hearing Requirements in Private College
Sexual Misconduct Proceedings
In several recent cases, California courts have found fault
with the procedures in private university sexual misconduct
disciplinary proceedings. These deficiencies include failing to
interview or hear testimony from and assess the credibility of
critical witnesses (Doe v. Westmont College (2019) 34 Cal.App.5th
622, 636-637 (Westmont); USC III, supra, 29 Cal.App.5th at pp.
1215-1216, 1232-1237), failing to give the respondent notice of
the factual basis for the charges or access to evidence (Westmont,
at pp. 637-638; Doe v. Regents of University of California (2018)
28 Cal.App.5th 44, 46, 58-59 (UCSB);5 USC I, supra, 246
5 The UCSB case concerns a public university, which is
subject to federal constitutional guarantees not applicable to
private colleges and universities. Nevertheless, the case is
19
Cal.App.4th at pp. 241-244), not allowing the respondent to
submit questions for the panel or adjudicator to ask the
complainant and other witnesses (Westmont, at pp. 638-639; USC
III, at pp. 1237-1238; UCSB, at pp. 46, 60; Doe v. Claremont
McKenna College (2018) 25 Cal.App.5th 1055, 1057-1058
(Claremont)), and failing to ensure witnesses appear, directly or
indirectly, for cross-examination (Allee, supra, 30 Cal.App.5th at
p. 1039; USC III, at pp. 1215-1216, 1237-1238; Claremont, at pp.
1057-1058, 1070).
In Westmont, supra, 34 Cal.App.5th 622 the court
summarized the requirements for a fair hearing. The court
emphasized that a college disciplinary proceeding is not like a
criminal proceeding: “A college’s procedure for investigating and
adjudicating student sexual misconduct allegations is not
analogous to a criminal proceeding. [Citation.] . . . [¶] A fair
hearing strives to balance three competing interests: The
accused student seeks ‘“‘to avoid unfair or mistaken exclusion
from the educational process.’”’ [Citation.] The college tries to
provide a safe environment for all of its students. [Citation.] The
alleged victim—who often ‘“live[s], work[s], and stud[ies] on a
instructive. (See Westmont, supra, 34 Cal.App.5th at p. 634
[“[t]he common law requirements for a fair hearing at a private
college ‘mirror the due process protections at public
universities’”]; USC III, supra, 29 Cal.App.5th at p. 1232, fn. 25
[public university “‘[d]ue process jurisprudence may be
“instructive” in cases determining fair hearing standards for
student disciplinary proceedings at private schools’”]; Doe v.
Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1057-
1058, 1067, fn. 8 [“[federal] [d]ue process jurisprudence . . . may
be ‘instructive’ in cases determining fair hearing standards for
student disciplinary proceedings at private schools”].)
20
shared college campus”’ with the accused—wants to safeguard his
or her own well-being. [Citation.] [¶] These competing interests
‘must be addressed in light of the nature of a [college] and the
limits of its resources.’ [Citation.] A college’s primary purpose is
education. [Citation.] Hearing requirements that are too formal
and rigid divert resources and attention from that purpose.
[Citation.] Accordingly, ‘all the safeguards and formalities of a
criminal trial’ are not required. [Citation.] ‘Although [a college]
must treat students fairly, it is not required to convert its
classrooms into courtrooms.’” (Westmont, at pp. 634-635; see Doe
v. Regents of University of California (2016) 5 Cal.App.5th 1055,
1078 (UCSD) [“‘“[p]rocedures 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”’”];
Doe v. University of Kentucky (6th Cir. 2017) 860 F.3d 365, 370
[“school disciplinary proceedings, while requiring some level of
due process, need not reach the same level of protection that
would be present in a criminal prosecution”].)
The court in Westmont explained: “‘[N]o particular form of
student disciplinary hearing is required under California law.’
[Citation.] . . . At a minimum, the college must comply with its
own policies and procedures. [Citation.] Those procedures must
provide the accused student with a hearing before a neutral
adjudicatory body. [Citation.] The accused must be permitted to
respond to the evidence against him or her. [Citations.] The
alleged victim and other critical witnesses must appear before
the adjudicatory body in some form—in person, by video
conference, or by some other means—so the body can observe
their demeanor. [Citations.] This is because ‘“the opportunity to
21
question a witness and observe [his or her] demeanor while being
questioned can be just as important to the trier of fact as it is to
the accused.” [Citation.]’ [Citation.] ‘Recognizing the risk that
an accusing witness may suffer trauma if personally confronted
by an alleged assailant at a hearing, [the USC I court observed]
that mechanisms can readily be fashioned to “provid[e] accused
students with the opportunity to hear the evidence being
presented against them without subjecting alleged victims to
direct cross-examination by the accused.” [Citation.]’ [Citation.]
It is not necessary to place the alleged victim and the accused in
the same room. [Citation.] [¶] The college must provide the
accused student with the names of witnesses and the facts to
which each testifies. [Citations.] The accused must be able to
pose questions to the witnesses in some manner, either directly
or indirectly, such as through the adjudicatory body. [Citations.]
The body need not ask every question proposed by the accused.”
(Westmont, supra, 34 Cal.App.5th at p. 635.)
In particular, direct cross-examination of a complainant by
a respondent is not only not required, it is inappropriate. “In
administrative cases addressing sexual assault involving
students who live, work, and study on a shared college campus,
cross-examination is especially fraught with potential
drawbacks.” (USC I, supra, 246 Cal.App.4th at p. 245; accord,
Claremont, supra, 25 Cal.App.5th at p. 1067.) As the United
States Department of Education Office for Civil Rights once
observed, “Allowing an alleged perpetrator to question an alleged
victim directly may be traumatic or intimidating, thereby
possibly escalating or perpetrating a hostile environment.” (U.S.
Dept. of Ed., Off. for Civil Rights, “Dear Colleague” letter, Apr. 4,
2011, p. 12 < https://www2.ed.gov/about/offices/list/ocr/letters/
22
colleague-201104.pdf > [as of Aug. 9, 2019], archived at
; withdrawn by U.S. Dept. of Ed.,
Off. for Civil Rights, “Dear Colleague” letter, Sept. 22, 2017,
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-
201709.pdf> [as of Aug. 9, 2019], archived at
8YTD-59M8>.)6
2. John’s Hearing Was Fair
Occidental hired independent investigators to investigate
Jane’s complaint. As prescribed by Occidental’s policy, the
investigators did not determine responsibility. The hearing
coordinator made a threshold determination the evidence
warranted a hearing and informed John and Jane of that
determination. She also gave them written notice of the conduct
underlying the alleged policy violations. In doing so, the hearing
coordinator did not assess credibility or determine responsibility.
Jane and John each had an opportunity to review the
investigation report and the witness interview summaries.
Advisors assisted Jane and John and attended the hearing with
them. The witnesses, including Jane, appeared in person. John
proposed questions before and during the hearing for the
adjudicator to ask Jane, and the adjudicator asked some of them.
6 In November 2018 the Department of Education Office for
Civil Rights issued proposed Title IX regulations pursuant to
which, among other things: a person may not serve as both
investigator and adjudicator; live hearings are required; and an
accused student’s advisor may cross-examine the accuser and
other witnesses, either in person or with technology that allows
the decision-maker and the parties to simultaneously see and
hear the witness. (Proposed Regulations, § 106.45, subds. (b)(3),
(b)(4) (2018).)
23
The adjudicator heard the evidence and determined by a
preponderance of the evidence John had violated the policy.
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. (See generally Westmont, supra, 34
Cal.App.5th at p. 635.)
3. John’s Contentions the Hearing Was Unfair Are
Meritless
John argues his hearing was unfair because the hearing
coordinator excluded a “charge evaluation worksheet” indicating
the Los Angeles County District Attorney’s Office had declined to
prosecute John criminally. John also argues the hearing
coordinator and the independent adjudicator were biased. Each
of these arguments lacks merit.
a. John’s arguments concerning the charge
evaluation worksheet are forfeited and do
not support mandamus relief
The district attorney’s office gave counsel for John a copy of
a “charge evaluation worksheet” reflecting the district attorney’s
decision not to prosecute John. Counsel forwarded the worksheet
to Occidental’s investigators. The investigators commented in
their report that counsel for John had sent them the worksheet.
24
The investigators attached the worksheet as an exhibit, but they
did not discuss it in their report.7 Someone, presumably the
hearing coordinator, later redacted the exhibit from the
investigator’s report.8
John argues the adjudicator precluded him from using the
worksheet to impeach witnesses at the disciplinary hearing. In
particular, John contends he wanted to use this statement in the
worksheet: “Witnesses were interviewed and agreed that the
victim and suspect were both drunk, however, that they were
both willing participants exercising bad judgment.” John
contends the adjudicator “effectively precluded [him] from
impeaching any witness who spoke with [police] investigators
and later told [Occidental’s] investigators that Jane was not a
willing participant.”
There is nothing in the record of the disciplinary hearing,
however, reflecting John ever sought to use the worksheet at the
hearing or to question any witness about what he or she told the
police. Nor is there any record the hearing adjudicator or
7 The copy counsel for John gave the investigators was
heavily redacted. The record does not show whether someone
redacted it before or after counsel for John received it from the
district attorney’s office.
8 Occidental’s sexual misconduct policy authorized the
hearing coordinator to “review the investigative report, any
witness statements[,] and any other documentary evidence” and
to “redact information that is irrelevant, more prejudicial than
probative, or immaterial,” “statements of personal opinion, rather
than direct observations or reasonable inferences from the facts,
and statements as to general reputation for any character trait,
including honesty.”
25
coordinator ever precluded John from impeaching any of the
witnesses with the worksheet. John did not argue at the
disciplinary hearing, in his administrative appeal, or in the trial
court he wanted to use or was precluded from using the
worksheet for impeachment purposes.9 By failing to make the
argument until his appeal to this court, John forfeited it. (See
USC III, supra, 29 Cal.App.5th at p. 1230 [“[g]enerally, a party
cannot raise new issues . . . for the first time on appeal”]; USC II,
supra, 28 Cal.App.5th at p. 37 [“[b]ecause this issue was not
raised during the administrative proceedings or in the superior
court, . . . [the university] did not have an opportunity to address
it; and it would normally be deemed forfeited”]; id. at p. 41
[appellant forfeited the argument the university compromised his
ability to gather evidence to defend himself by not raising the
issue in his administrative appeal and raising it “only . . . in
passing” in the trial court].)
In any event, even if John had sought to impeach someone
with the worksheet and the adjudicator had precluded him from
doing so, any error in such a ruling would have been harmless.
(See Thornbrough v. Western Placer Unified School Dist. (2013)
223 Cal.App.4th 169, 200 [“it is well settled that the improper
admission or rejection of evidence at an administrative hearing
does not provide ‘grounds for reversal unless the error has
resulted in a miscarriage of justice”’ and it is “‘reasonably
probable a more favorable result would have been reached absent
the error’”]; McCoy v. Board of Retirement (1986) 183 Cal.App.3d
9 John briefly argued in his administrative appeal the
worksheet was new evidence that was unavailable during the
disciplinary hearing because it was redacted from the
investigation report.
26
1044, 1054 [“[a]n administrative agency is not required to observe
the strict rules of evidence enforced in the courts, and the
admission or rejection of evidence is not ground for reversal
unless there has been a denial of justice”].) Whether one of the
witnesses at the hearing had made a prior inconsistent statement
about Jane’s willingness to engage in sexual activity with John
would have had little if any impact on the adjudicator’s
conclusions Jane was, and John should have known she was,
incapacitated due to intoxication. The question the adjudicator
decided was not whether witnesses thought Jane was willing, but
whether Jane was able to make “an informed and rational
decision to engage in sexual activity.” Thus, even if John had
attempted to impeach one or more of the witnesses with the
worksheet, there is no reasonable likelihood the result would
have been any different.
b. The hearing coordinator was not biased
John argues the hearing coordinator was, or appeared to
be, biased against him because she made a post-investigation
threshold determination there was sufficient information from
which an adjudicator could find John violated Occidental’s sexual
misconduct policy and she released information to be considered
at the hearing only five days prior to the hearing. John also
complains that the hearing coordinator was “vested with the
opportunity to ‘impose an appropriate sanction’ in consultation
with the Title IX Coordinator” and that the policy required the
hearing coordinator to attend all meetings with the adjudicator
and to advise the adjudicator on policy and procedure.
John’s obligation “is to demonstrate actual bias. A
disciplinary decision may not be invalidated solely on the basis of
27
an inference or appearance of bias.” (Allee, supra, 30 Cal.App.5th
at p. 1060; see Occidental, supra, 37 Cal.App.5th at p. 1018 [“‘A
party seeking to show bias or prejudice on the part of an
administrative decision maker is required to prove the same
“with concrete facts: ‘“[b]ias and prejudice are never implied and
must be established by clear averments.”’”’”]; Gai v. City of Selma
(1998) 68 Cal.App.4th 213, 220 [same].) A “‘mere belief that [a
school official] acted with . . . ulterior motives is insufficient to
state a claim for relief.’” (Allee, at pp. 1060-1061.)
John has not shown actual bias. Unlike the policies of
some colleges and universities, Occidental’s policy does not have
a college or university official serving in a dual role as both
investigator and adjudicator. (See Allee, supra, 30 Cal.App.5th at
p. 1061 [“[t]he fact finder may not be a single individual with the
divided and inconsistent roles [of investigator and adjudicator]”.)
And even if Occidental’s policy had such a feature, that without
more would not be sufficient to show actual bias. (See Westmont,
supra, 34 Cal.App.5th at p. 637 [“‘“[t]he combination of
investigative and adjudicative functions does not, without more,”’
deprive a student accused of sexual misconduct of a fair
hearing”]; USC III, supra, 29 Cal.App.5th at p. 1235, fn. 29
[“[a]lthough the Title IX 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’”].) Moreover, in making her threshold
determination, the hearing coordinator here played no role in
determining whether John violated the sexual misconduct policy,
did not make any findings on credibility or recommendations
regarding responsibility, and did not participate in the
adjudicator’s decision. The hearing coordinator attended
28
pre-resolution meetings and the disciplinary hearing only “to
serve as a resource for the [adjudicator] on issues of policy and
procedure, and to ensure that policy and procedure [were]
appropriately followed throughout the hearing.”10 And the
hearing coordinator participated in the sanction decision only
after the adjudicator concluded John had violated the policy.11
The coordinator’s participation in that decision did not reflect any
bias that negatively affected John or influenced the adjudicator’s
decision.
John argues the hearing coordinator “unfairly released
information that was to be used at the hearing . . . just five days
before [the hearing]—knowing that [John], an 18-year-old
freshman without any legal background—bore the responsibility
of defending himself in [Occidental’s] process.” But when the
hearing coordinator released the investigation report and
summaries of witness statements to John and Jane, she was not
10 Occidental’s policy provides: “The Hearing Panel [or single
adjudicator as here] is supported by the Hearing Coordinator,
who is present at hearing panel meetings, but is not . . . a voting
member of the panel. He or she will meet with all involved
parties prior to the hearing, be present during the hearing to
serve as a resource for the hearing panel on issues of policy and
procedure, and to ensure that policy and procedure are
appropriately followed throughout the hearing.”
11 The policy states: “If the [hearing] panel [or adjudicator]
finds the Respondent responsible, the panel will then recommend
appropriate sanctions to the Hearing Coordinator. The Hearing
Coordinator, in consultation with the Title IX Coordinator, will
review the recommendations and impose an appropriate
sanction.”
29
exhibiting bias, she was complying with the policy to release this
information “at least five (5) business days prior to the hearing.”
12
John has not cited any authority holding that five business days
is insufficient or unfair. Nor is it accurate to say John was
“defending himself.” John was represented by counsel (although
not at the hearing), who was able to assist John and his advisor
to prepare for the hearing. Finally, John does not identify any
prejudice he suffered by not having the information from the
hearing coordinator any sooner, nor does he argue what, if
anything, he would have done differently with additional time to
prepare for the hearing. (See USC II, supra, 28 Cal.App.5th at p.
40 [“Doe does not indicate how his delay in reviewing” the
information showing his academic dishonesty “prejudiced his
case”].)
Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108
Cal.App.4th 81, on which John relies, is distinguishable. In that
case an assistant city attorney advocated for the city in
connection with the plaintiff’s attempts to renew a permit to
operate a cabaret. After the city denied the plaintiff’s permit
application, the same assistant city attorney advised the
decisionmaker on the plaintiff’s administrative appeal of the
decision to deny the permit. (Id. at pp. 84-86, 96.) The court held
the assistant city attorney’s dual role as advocate and adjudicator
violated the plaintiff’s due process rights. (Id. at pp. 86, 97-98.)
Here, in contrast, the hearing coordinator did not act as an
advocate or adjudicate John’s responsibility. As discussed, in
making her threshold determination the investigation report
12 The hearing coordinator made the relevant materials
available to Jane and John on Sunday, December 1, 2013 at
9:00 p.m. The hearing was on Saturday, December 7, 2013.
30
contained “sufficient information upon which an adjudicator
could find a violation of the [sexual misconduct] policy,” the
hearing coordinator did not make findings on credibility or fault.
c. The independent adjudicator was not
biased
John argues the adjudicator was biased and “antagonistic”
toward him because she refused to ask Jane 29 of the 38 written
questions he submitted.13 John asserts the unasked questions
“were designed to illustrate for the adjudicator that [Jane] had
made statements indicating her consciousness and awareness
before, during, and after the sexual activity, undermining her
claim of incapacitation.” John concludes that, “[h]ad [these]
additional 29 questions been posed to [Jane], the frailty of her
tenuous claim, and her dubious credibility, would have become
more apparent [to the adjudicator]. Specifically, [the adjudicator]
would have been exposed to evidence demonstrating that [Jane]
was able to recall extensively the events that occurred,
undermining [Jane’s] claim that she had experienced ‘blackouts’
and incapacitation.”
John has again failed to show bias. Under Occidental’s
policy, the adjudicator had the discretion not to ask questions
that were inappropriate, irrelevant, or cumulative.14 There is
13 John also proposed questions for the adjudicator to ask
several of the witnesses, but he does not argue the adjudicator
evidenced any bias in asking or not asking any of those questions.
14 Occidental’s policy provides that “the parties may submit
questions to the hearing panel [or, as here, the adjudicator] in
writing, which may be posed at the discretion of the hearing
panel [or adjudicator].”
31
nothing unfair about granting the adjudicator this kind of
discretion. (See Westmont, supra, 34 Cal.App.5th at p. 635 [“[t]he
[adjudicatory] body need not ask every question proposed by the
accused”]; Claremont, supra, 25 Cal.App.5th at p. 1073 [“granting
the fact finder discretion to exclude or rephrase [proposed]
questions” is appropriate and “strikes a fair balance among the
interests of the school, the accused student, and the
complainant”]; UCSD, supra, 5 Cal.App.5th at p. 1085
[permitting the hearing panel chair to screen the accused’s
written questions and ask only those questions that are not
repetitive or irrelevant did not, “as a procedural concern,” render
the hearing unfair].)
Nor has John shown the adjudicator’s failure to ask all of
the questions he proposed caused him prejudice. (See UCSD,
supra, 5 Cal.App.5th at p. 1086 [adjudicator’s failure to ask or
paraphrase certain questions did not prejudice the appellant]; id.
at p. 1088 [adjudicator’s “decision not to ask Jane question No. 4
did not prejudice John whatsoever”].) Only five of John’s
proposed questions concerned statements Jane made about what
she remembered. Four of those five questions concerned what
Jane told the investigators, and the fifth was whether Jane told
people the day after the incident she had a hard time
remembering what had occurred.15 Jane’s responses to those
15 (1) “Did you tell the investigators that John told you to
come back down ‘so he can fuck you?[’]” (2) “The next day,
Sunday, did you tell people that you had a difficult time
remembering what happened that night?” (3) “But in your
statement, you told the investigators about a number of things
that you do remember happening about that time, correct?” (4)
“You told the investigators that you remembered asking John if
32
questions would have been cumulative or, as the trial court
found, “duplicative of evidence already in the record.” The
investigation report, the investigators’ summary of Jane’s
interview, the lead investigator’s testimony at the hearing, Jane’s
testimony, and the testimony of the five students, all included
statements about what Jane said she remembered. The
adjudicator knew what Jane told the investigators and other
students about what she remembered. The adjudicator
considered the extent to which Jane did or did not remember her
encounter with John and the surrounding events. The
adjudicator found: “[Jane] states, and the external adjudicator
believes, she has no recollection of having sexual intercourse with
[John].”16
John also asserts the adjudicator “demonstrated curt and
contentious reactions to [him].” He relies solely on the following
exchange, which occurred during his opening statement: “[John:]
So, to reiterate again, I didn’t sexually assault Jane Doe. I would
never and could never do something like that. And the police
he had a condom because you had not used any birth control, is
that right?” (5) “You told the investigators that you remembered
performing oral sex on John when you were in his room, correct?”
16 Eleven additional questions John proposed asked whether
Jane remembered specific events, for example, “You remember
giving John your cell phone number . . . .” Five questions asked
whether Jane had sent specific text messages.
*
And one question
asked Jane to draw a legal conclusion: “So even if you don’t
remember now, or have blocked it out, at the time you and John
had sex in his room, you were conscious and aware, isn’t that
right?”
* As stated, Jane testified she did not remember sending
any text messages.
33
investigation agrees. [¶] [The Adjudicator]: I’d like to stop you
from any reference to the police investigation, please.” Of course,
a hearing transcript does not convey the speaker’s tone of voice.
But there was nothing inherently curt or contentious about the
adjudicator’s statement. Nor does the hearing transcript contain
any evidence the adjudicator was curt to or contentious with John
at any other time during the proceeding. To the contrary, the
record reflects the adjudicator was consistently polite to all
participants.
d. There was no “cumulative impact”
John contends “this Court should find that the cumulative
impact of how [Occidental] conducted its disciplinary proceeding
against [him] contains a notable stench of unfairness.” As
discussed, there was no instance of unfairness, let alone
cumulative unfairness.
C. There Was Substantial Evidence John Should Have
Known Jane Was Incapacitated
“When reviewing a university’s disciplinary actions, ‘“[t]he
power of an appellate court begins and ends with the
determination as to whether there is any substantial evidence,
contradicted or uncontradicted, that will support the finding.”
[Citation.]’ [Citation.] . . . ‘[T]his does not mean we must blindly
seize any evidence in support of the [determination] in order to
affirm the judgment . . . . “[I]f the word ‘substantial’ [is to mean]
anything at all, it clearly implies that such evidence must
be . . . reasonable . . . , credible, and of solid value . . . .”
[Citation.] The ultimate determination is whether a reasonable
trier of fact could have [made the findings] based on the whole
34
record.’” (USC I, supra, 246 Cal.App.4th at pp. 248-249; see M.N.
v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607,
616 [“[t]he court must ‘accept all evidence which supports the
successful party, disregard the contrary evidence, and draw all
reasonable inferences to uphold the [administrative decision’”].)
“‘Credibility is an issue of fact for the finder of fact to resolve
. . . .’” (M.N., at p. 616; accord, Occidental, supra, 37 Cal.App.5th
at p. 1019.)
There was substantial evidence that Jane was
incapacitated and that, despite her possible apparent assent, a
sober person in John’s position should have known she was
incapacitated. Jane was extremely intoxicated. In John’s
presence, Jane drank at least three or four shots of vodka and
was stumbling and leaning on walls and furniture for support.
Angela, in John’s presence, told Jane to stop drinking, and
Angela repeatedly tried to take the vodka bottle away from Jane.
According to Angela, Jane was too drunk to know what she was
doing, where she was, or where she was going. When Jane
returned alone to John’s room, she told him she had just vomited.
Jane’s intoxication increased while she was alone with John.
When she left John’s room, Jane was, according to her roommate,
“past drunk.” The next morning, Jane suspected but did not
know whether she had sex with John. The adjudicator
reasonably concluded that Jane was unable to make “an informed
and rational decision to engage in sexual activity” and that John,
had he been sober, should have known it.
Outcome: The order denying John’s petition for a writ of mandate is affirmed. Occidental is to recover its costs on appeal.
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Defendant's Experts:
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