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Date: 06-01-2020
Case Style:
Matthew Boermeester v. Ainsley Carry
Case Number: B290675
Judge: Bigelow, P.J.
Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney: Mark M. Hathaway and Jenna E. Parker
Defendant's Attorney: Julie Arias and Karen J. Pazzani
Description: Matthew Boermeester was expelled from the University of
Southern California (USC) for committing intimate partner violence
against Jane Roe.1 The superior court denied his petition for writ of
administrative mandate to set aside the expulsion. He appeals,
contending, among other things, that the process leading to his
expulsion violated his right to a fair hearing. We conclude USC’s
disciplinary procedures at the time were unfair because they denied
Boermeester a meaningful opportunity to cross-examine critical
witnesses at an in-person hearing. We thus reverse and remand
with directions to the superior court to grant the petition for writ of
administrative mandate.
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FACTUAL AND PROCEDURAL BACKGROUND2
Boermeester was a member of the USC football team, who
kicked the game-winning field goal for USC at the 2017 Rose Bowl.
Roe was also a student-athlete who played tennis for USC.
Boermeester and Roe dated from March 2016 to approximately
October 2016. On January 21, 2017, two USC students observed
Boermeester put his hand on Roe’s neck and push her against a
wall. They reported this incident to the USC men’s tennis coach,
which resulted in the initiation of an investigation. Boermeester did
not deny he put his hand on Roe’s neck and that she had her back
1 Although Jane Roe has identified herself to the public in the
events at issue, we will continue to use a pseudonym or initials to
refer to Roe and other witnesses in this opinion. (Cal. Rules of
Court, rule 8.90.)
2 Our recitation of facts is derived solely from the evidence in
the administrative record, and not the declarations submitted by
Boermeester that were not made part of the record.
3
against a wall while he did so. He contends, however, he did not
intend to harm her and they were merely “horsing around.”
Initial Interview with Jane Roe
Roe agreed to meet with USC’s Title IX office3 on January 23,
two days after the incident. Roe’s advisor was present.
Roe reported she spent the day with Boermeester on Friday,
January 20, 2017. He called to ask her to pick him up from a party
at approximately 12:30 or 1:00 a.m. on January 21, 2017. She did,
and they returned to her home after getting food. Boermeester was
the drunkest she had ever seen. He yelled in the alley behind her
house, trying to be funny.
Roe had her dog, Ziggy, with her. Boermeester wanted her to
drop Ziggy’s leash to allow him to run in the alley. He grabbed the
back of Roe’s hair hard and said “drop the fucking leash.” Roe
refused. Boermeester responded by increasing his hold on Roe’s
hair, causing her to drop the leash because it “hurt.”
Boermeester then grabbed Roe “tight” by the neck, causing her
to cough. He laughed and let go. He grabbed her by the neck twice
more and pushed her hard against a concrete wall that ran along the
alley behind her duplex. Roe’s head hurt after she hit the wall.
Three USC students, DH, TS, and MB2, exited their
apartments. Roe believed they were woken up by the loud yelling.
When they asked after Roe, Boermeester told them that he and Roe
3 The University’s Policy and Procedures on Student Sexual,
Interpersonal, and Protected Class Misconduct (sexual misconduct
policy) prohibits conduct such as intimate partner violence. It is
intended to comply with statutes prohibiting discrimination in
education, including Title IX of the Education Amendments of 1972
(20 U.S.C. § 1681 et seq.) (Title IX). As a result, the office which
implements the sexual misconduct policy is known as the Title IX
office.
4
were just “playing around.” DH and TS, who lived on the other side
of Roe in the duplex, took her into their apartment. Boermeester
was asleep when she got back to her room.
The next day, Roe told Boermeester that he scared DH and TS
because “it looked really bad when you pushed me and it looked
really bad with your hand around my neck.” He replied, “it was a
joke, we were messing around, tell them to calm down” and added,
“tell them you’re into that,” implying that it was foreplay. When
Roe asked him, “what if you hurt me bad? Would you feel bad?
If you were playing around and it hurt?” Boermeester told her,
“no” because it would have been “brought on by” her.
The Title IX coordinator explained Roe had the option to
request an avoidance of contact order (AOC) prohibiting
Boermeester from contacting her. Roe indicated she wanted the
AOC as well as temporary emergency housing because Boermeester
had a key to her house. The investigator noted Roe was crying
throughout the meeting.
Roe acknowledged she was in a “bad situation” but was
conflicted about what to do because she still cared for Boermeester.
Roe indicated she did not want to participate in an investigation and
did not want Boermeester to be charged with anything other than
the January 21, 2017 incident. She was informed the Title IX office
was obligated to investigate and could proceed without her consent.
Boermeester was charged with the January 21, 2017 incident of
intimate partner violence4 for which there were eyewitnesses.
4 USC’s sexual misconduct policy defines intimate partner
violence as violence committed against a person with whom the
accused student has a previous or current dating, romantic,
intimate, or sexual relationship. “Violence means causing physical
harm to the person or to their possessions. Intimate partner
5
Boermeester is Notified of the Investigation
On January 26, 2017, USC notified Boermeester of an
investigation into the events of January 21 and that he may have
violated USC’s sexual misconduct policy by committing intimate
partner violence. He was placed on interim suspension and received
an AOC letter.
That day, Roe exchanged a series of text messages with the
investigator stating, I am “pretty freaked out about today. I know
I’ve said this a lot but I really can’t emphasis [sic] enough that you
guys please please make it clear that I did not bring this forward
that I want nothing to do with it and I’m not pressing any charges.”
She further stated, “He can’t know I made a statement. Can you not
tell him I made a statement[?] Like he can’t know I met with you
guys.” The investigator assured her Boermeester would be advised
the investigation was initiated by the Title IX office and he would
not be made aware of her statement until the time of the evidence
review.
Jane Roe Recants
Roe and her advisor met with the investigator on January 30,
2017. Roe indicated she had reservations about the investigation
because she felt as though her voice was not heard and that it was
more about “burning him” than her wellbeing. Roe explained she
thought she was in a supportive environment when she initially met
with the Title IX office and so she freely shared her story. Although
she understood the Title IX office was “trying to do the right thing,”
violence may also include non-physical conduct that would cause a
reasonable person to be fearful for their safety; examples include
economic abuse and behavior that intimidates, frightens, or isolates.
It may also include sexual assault, sexual misconduct, or stalking.
Intimate partner violence can be a single act or a pattern of
conduct.”
6
it has made things for her more “difficult.” Roe felt bullied by the
process and no longer “fully believe[d]” many of the statements she
initially made to the Title IX office.
Roe also requested the AOC be lifted because she had changed
her mind. She requested the AOC during her first meeting because
she did not “trust” that it would be clearly conveyed to Boermeester
that the investigation was initiated by the Title IX office, not her.
She did not want Boermeester to be “mad” at her. She remarked
“at the end of the day, he is like my best friend so it is like you are
taking that away too.” She explained, “you think this is to protect
me. Feels like I lost control on everything and I feel like you are
controlling who I can talk to.” Roe stated that she did not feel she
was in danger. She was upset they could not speak. She believed
that the investigation was too harsh and that instead, Boermeester
should be mandated to go to counseling and be placed on probation.
The next day, Roe texted the investigator, “Will I know
tomorrow if I can get rid of my statement because I really don’t want
it used and I don’t even think it is fair because I still disagree with
somethings I said so to use it wouldn’t be accurate and I just have
been stressing about if it’s being used or not so will [the coordinator]
have an answer for me tomorrow?”
Meanwhile, media attention surrounding the suspension had
begun. Roe’s roommate reported Roe was worried about the impact
the publicity would have on Boermeester’s future career and NFL
prospects. On February 8, Roe tweeted in response to media reports
about Boermeester: “I am the one involved in the investigation with
Matt Boermeester. The report is false. @Deadspin @latimes
@ReignofTroy.”
7
Boermeester’s Statement
On January 30, 2017, Boermeester was interviewed by the
investigator with a USC administrative assistant present.
Boermeester’s mother attended as his advisor. Boermeester
generally confirmed the events of January 21 as Roe had described
them; however, he denied intending to hurt her.
He reported he and Roe ate at the Cheesecake Factory at
approximately 4:00 p.m. Later that night, he text messaged Roe to
pick him up from a party because he was unable to drive. He had
three glasses of wine at the restaurant and four to five beers at the
party. When they arrived at Roe’s home after picking up food, they
began playfully throwing french fries at one another.
Boermeester wanted to watch Roe’s dog run around so he
asked her to let the dog go. They were standing by a wall when he
instructed her to release the dog. He acknowledged he put his hand
around her neck while she stood against the wall, but denied they
were arguing or that he was angry. He also denied choking her or
slamming her head against the wall. He believed Roe felt safe with
him. He asserted he did not have a tight grip on her.
Boermeester reported he and Roe spent the next three nights
together and were sexually intimate. They saw each other every day
until she left for a tennis match on January 26, 2017. Boermeester
recalled he and Roe laughed about TS and DH assuming it was “real
violence.”
Boermeester believed the eyewitnesses misinterpreted what
they saw. Although he understood how it looked to them, he
thought it was ridiculous they wanted her to spend the night over at
their home rather than sleep with him.
8
He explained he and Roe sometimes put their hands on each
other’s necks during sex. When asked what impact this has had on
him, he stated, “I know to never do anything that resembles
domestic violence in public again. To be aware of my surroundings.”
The investigator asked, “just in public?” He responded, “Well no,
just to never give the impression of domestic violence.” Boermeester
stated, “I feel like a monster even though I didn’t do anything. I
can’t go to class, rehab, etc. I’m kinda sleeping, it’s on my mind all of
the time.”5
On February 14, 2017, the Title IX office notified Boermeester
he would also be investigated for violating the AOC. He provided a
written response by email denying contact with Roe in any format.
He asserted he had moved home to San Diego and had remained
there aside from meeting with his lawyer.
Additional Witness Statements
USC’s Title IX investigator interviewed over a dozen people,
including Roe, Boermeester, the eyewitnesses, Roe’s roommates and
friends, and Boermeester’s ex-girlfriend. The investigator made it a
general practice to re-read the statement to the person after the
interview to confirm accuracy.
MB2 is Roe’s neighbor. He initially reported he did not see
any physical contact between Roe and Boermeester. He explained
he heard an argument between a man and a woman about a dog.
When he walked outside to take out his trash and see what was
happening, “it kinda settled a little bit.” Roe approached him a few
days later to ensure he did not get the wrong impression.
5 Boermeester had knee surgery in early January 2017 and was
scheduled to receive rehabilitation and physical therapy from USC
staff. The Title IX office noted his treatment at USC facilities was
not prohibited by the interim suspension.
9
One month later, MB2 called the investigator to admit he had
not been truthful in his initial statement because he was trying to
“protect” Roe’s wishes to “keep it on the down low” and “downplay”
the incident. He explained Boermeester’s attorney attempted to
speak with him at his home in March 2017. He told the attorney
what he initially told the Title IX investigator. However, he decided,
“the lawyer coming to speak to me, finding my apartment, I don’t
want to keep this any longer, perpetuating this lie.”
During a second interview, MB2 reported he heard laughing
and screaming sounds coming from the alley by his home, which
initially seemed playful. The noise then changed to what sounded
like a male trying to “assert his dominance” over a female. MB2
looked into the alley and saw Boermeester standing in front of Roe
with both hands around her neck. He then pushed her into the alley
wall and she began to make “gagging” noises. MB2 added, “once he
put his arms around her the first time she wasn’t saying anything.”
MB2 believed, “this guy is violent. He domestically was abusing
her.” He stated, “truth is I really wanted to beat the shit out of this
guy.” Because of what he saw, MB2 grabbed a trash bag and went
outside. He asked them how things were going, which “broke it up.”
Afterwards, Boermeester and Roe walked back to her apartment.
DH is a member of the USC men’s tennis team and Roe’s
neighbor. He was reluctant to participate in the investigation but
described what he saw on the night of January 21, 2017.
He reported he heard screaming. He heard a male voice yelling
loudly and a female voice talking but could not make out what they
were saying. He looked outside and saw Roe and Boermeester
standing by the wall. He noticed Roe’s dog running in the alley,
which made him realize something was wrong because Roe did not
allow her dog to run freely. He saw Roe pinned against the wall by
10
Boermeester, who had his hand around her chest/neck. DH did not
see or hear Roe hit the wall.
TS is also a member of the USC men’s tennis team and is DH’s
roommate. He reported DH woke him up, urgently stating, “we
gotta go downstairs, [Boermeester] is hitting [Roe].” When they got
downstairs, DH asked to speak to Roe. Boermeester walked back to
Roe’s house. DH tried to convince her to spend the night at their
apartment. DH observed Roe was “playing casual at first” and tried
to “downplay it.” When DH confronted her about Boermeester’s arm
around her throat, she rationalized it by saying, “he’s just drunk.”
About 15 to 20 minutes later, Roe returned home, crying. She then
texted that Boermeester was asleep and stated, “I am safe. Thanks
for looking out for me.” TS and DH reported the incident the next
day to the men’s tennis coach.
Roe’s roommates and friends uniformly reported that Roe and
Boermeester’s relationship was volatile, but they did not personally
witness any physical violence between them. Most of them did not
believe Roe was in any physical danger. Instead, they often heard
Roe and Boermeester demean one another by calling each other
names. As the investigation progressed, Roe indicated to her friends
she did not want them to participate in the investigation.
Roe stated in a text message to TS, “Look what I want to say
is I’m helping Matt. I know you won’t agree with it but he’s already
gotten a shit ton of punishment for something I didn’t want to
happen in the first place. I wanted non[e] of this to take place at all.
He’s already suspended for probably two months and will be kicked
off the team and has a restraining order from me. I literally wanted
non[e] of it so what I’m asking as a friend is don’t say much. Please
don’t fuck him over more. I’m not in danger at all I trust him I trust
11
that he won’t ever hurt me again. I just hate that any of this is
going on. So I’m begging you.”
Roe confided in a few friends that Boermeester had given her
bruises. A text message from Roe to GO also indicated Roe may
have been in contact with Boermeester while the AOC was in place.
Boermeester’s ex-girlfriend, AB, dated him for almost three
years. She reported she and Boermeester would wrestle and joke
around. It sometimes started as tickling but would end in him
placing her in a “chokehold.” She would tell him to stop and he did.
She estimated he had his hands around her neck five to ten times.
When Boermeester placed his hands around her neck, “it crossed the
line from being joking and then it would be too much.” On two
occasions, he shoved her during an argument.
AB’s mother thought their rough housing was “always [going]
too far.” She “freaked out” when she saw Boermeester with his
hands around AB’s neck and screamed, “get your arms off [my]
daughter right now!” Boermeester apologized, but AB did not think
he realized he was “definitely too rough.” Nevertheless, AB did not
believe her parents were concerned about her safety when she was
dating Boermeester.
Surveillance Video
The investigator retrieved surveillance video of the incident
from a camera located in the alley approximately two buildings
away from Roe’s duplex. The recording does not contain audio and
is grainy. It is undisputed the video depicts Boermeester and Roe
interacting in the alley after midnight on January 21, 2017. The
video supports the trial court’s description of the events as follows:
“At 12:16:16 a.m., the video shows Petitioner shoving Roe from
the area adjacent to the house into the alleyway. At 12:16:50,
Petitioner appears to be holding Roe’s neck or upper body area.
12
At 12:17:12, Petitioner grabs Roe by the neck and pushes her toward
the wall of the alley. At 12:17:13 and 112:17:14, Roe’s head and
body arch backwards. Between 12:17:16 and 12:17:26, Petitioner
and Roe are against the wall and barely visible from the camera.
At 12:17:26, Petitioner backs away from the wall and re-enters the
camera’s view. At 12:17:28, Roe re-enters the camera’s view. Roe
and Petitioner proceed to push each other. At 12:17:38, Petitioner
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
Petitioner and Roe. At that moment, Petitioner 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.”
USC’s Findings and Disciplinary Action
Based on the evidence obtained, the investigator found
Boermeester violated USC’s misconduct policy by engaging in
intimate partner violence and violating the AOC. The investigator
submitted her findings to the Misconduct Sanctioning Panel, which
is comprised of two staff or faculty members and an undergraduate
student. The panel decided upon a sanction of expulsion.
Boermeester appealed the findings of fact and determination
of violation to the Vice President for Student Affairs. An appellate
panel found the evidence supported the findings, but recommended
a two-year suspension because Boermeester’s conduct could have
been “reckless” rather than intentional. The Vice President for
Student Affairs rejected the appellate panel’s recommendation and
affirmed the decision to expel Boermeester, reasoning the sanction
was appropriate under the sexual misconduct policy regardless of
whether Boermeester intended to harm Roe or not.
13
Proceedings in the Superior Court
Boermeester filed a petition for writ of mandate in the
Superior Court under Code of Civil Procedure section 1094.5.
The court denied the petition for writ of mandate. Boermeester
appealed.
DISCUSSION
Boermeester contends he was denied notice of the allegations
against him and that interim measures were improperly imposed.
We find these contentions meritless.6 Boermeester also contends he
was entitled to a live evidentiary hearing where he can crossexamine witnesses. We find Boermeester’s fair hearing argument
supported by caselaw and thus reverse and remand.
Because we conclude Boermeester was deprived of a fair
hearing for lack of a meaningful opportunity to cross-examine
critical witnesses at an in-person hearing, we decline to address
whether USC’s policy was also unfair because the Title IX
investigator held the dual roles of investigator and adjudicator.
We also need not address Boermeester’s other claims of error,
including whether substantial evidence supported USC’s findings.
6 To the extent Boermeester argues USC’s Title IX office was
biased against him, an argument that appears throughout his
appellate briefs, he has presented no legal or factual basis to support
this argument other than to say its decisions were not in his favor.
Boermeester has failed to meet his burden to demonstrate
prejudicial error in this regard. (In re Marriage of McLaughlin
(2000) 82 Cal.App.4th 327, 337.) Boermeester also complains Roe
was not provided proper notice she was a suspected victim and
intended reporting party in the proceedings. Boermeester lacks
standing to assert Roe’s rights in this matter. (Angelucci v. Century
Supper Club (2007) 41 Cal.4th 160, 175; see Code Civ. Proc., § 367.)
14
I. Standards of Review
In an appeal from a judgment on a petition for writ of
mandate, the scope of our review is the same as that of the Superior
Court, that is, we review the agency’s decision rather than the
Superior Court’s decision. (Doe v. University of Southern California
(2016) 246 Cal.App.4th 221, 239 (USC I).) We determine “whether
the respondent has 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 required by law, the order or decision is
not supported by the findings, or the findings are not supported by
the evidence.” (Ibid.)
“The statute’s requirement of a ‘ “fair trial” ’ means that there
must have been ‘a fair administrative hearing.’ ” (Gonzalez v. Santa
Clara County Department of Social Services (2014) 223 Cal.App.4th
72, 96.) “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.” (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470,
482.) However, we review for substantial evidence USC’s
substantive decisions and factual findings. (USC I, supra, 246
Cal.App.4th at p. 239; Code Civ. Proc., § 1094.5, subd. (c).)
II. Boermeester Received Sufficient Notice
Boermeester complains he was not provided full notice that
the Title IX investigation would “extend to his entire relationship
history with [Roe], nor his relationship history with a previous
girlfriend who did not attend USC.” Thus, he claims he was
unaware the investigator was “collecting evidence to support her
opinion about an alleged ‘pattern’ of intimate partner violence, nor
15
that he needed to produce evidence to combat [the investigator’s]
preconceived notions about domestic violence.” We disagree.
“Generally, a fair procedure requires ‘notice reasonably
calculated to apprise interested parties of the pendency of the
action . . . and an opportunity to present their objections.’
[Citations.] With respect to student discipline, ‘[t]he student’s
interest is to avoid unfair or mistaken exclusion from the
educational process, with all of its unfortunate
consequences . . . Disciplinarians, although proceeding in utmost
good faith, frequently act on the reports and advice of others; and
the controlling facts and the nature of the conduct under challenge
are often disputed. The risk of error is not at all trivial, and it
should be guarded against if that may be done without prohibitive
cost or interference with the educational process.’ [Citation.] [¶]
‘At the very minimum, therefore, students facing
suspension . . . must be given some kind of notice and afforded some
kind of hearing.’ [Citation.] The hearing need not be formal, but ‘in
being given an opportunity to explain his version of the facts at this
discussion, the student [must] first be told what he is accused of
doing and what the basis of the accusation is.’ [Citation.]” (USC I,
supra, 246 Cal.App.4th at p. 240, quoting Goss v. Lopez (1975) 419
U.S. 565, 579–580 (Goss).)
Here, USC’s misconduct policy provides that an accused
student be given “[w]ritten notice of the alleged policy violation
including the specific acts, the date/period of time, and [the] location
[where the act allegedly occurred].” Boermeester acknowledges USC
complied with this policy. Indeed, USC informed him on January
26, 2017, that it was investigating a report he committed intimate
partner violence, “specifically, grabbing Jane Roe by the neck, and
pushing her head into a cinder block wall multiple times on/or about
16
January 21, 2017.” He was later notified of a second policy violation,
“specifically, contacting and communicating with [Roe] via text,
phone call, social media, and in-person since the issuance of the
Avoidance of Contact Order issued by Dr. Lynette Merriman and
served on you January 26, 2017.”
Boermeester reviewed the evidence compiled by the
investigator and responded to both allegations by written statement.
In his response, he complained about the interview with his exgirlfriend and contended her statement was “completely irrelevant
to the evidence relating to what happened on January 21, 2017.”
Boermeester also viewed text messages from Roe to GO in which she
indicated she had been in contact with him after issuance of the
AOC. After reviewing the evidence related to the AOC violation,
Boermeester responded by denying he had contact with Roe.
Boermeester’s written statements belie his contention that he
did not get notice of the extent of the investigation into his actions.
Boermeester was not only provided notice of the factual basis of the
allegations against him, he was also provided with a meaningful
opportunity to respond to them. We find that is sufficient notice of
the violations with which he was charged. (USC I, supra, 246
Cal.App.4th at pp. 240–241.)
III. The Interim Suspension Was Not Unfair
Boermeester next argues his interim suspension was “patently
unfair” because it was imposed without a hearing and he was not
provided with the evidence supporting it. In his reply brief,
Boermeester asserts the evidence was insufficient to support the
interim suspension. We are not persuaded.
Goss, supra, 419 U.S. 565, cited by Boermeester, supports our
conclusion. Goss recognized the need for interim measures, allowing
for the immediate removal of a student without notice or hearing if
17
the student “poses a continuing danger to persons or property or an
ongoing threat of disrupting the academic process . . .” (Id. at p.
582.) It held an accused student must be given “some kind of notice
and afforded some kind of hearing” when faced with disciplinary
proceedings. Goss did not hold a student was entitled to two
different notices and two different hearings if interim measures
were also imposed. (Id. at pp. 579–580.)
USC’s policy comports with Goss. It states that interim
protective measures, including interim suspension, may be imposed
when there is information the accused student poses a substantial
threat to the safety or well-being of anyone in the university
community. In deciding whether to impose interim protective
measures, the policy sets forth specific factors for consideration,
including whether the reported behavior involved the use of a
weapon or force, the risk of additional violence or significant
disruption of university life or function, whether there have been
other reports of prohibited conduct by the respondent, and the
university’s obligation to provide a safe and non-discriminatory
environment. It further states, “[a] student or organization subject
to interim protective measures is [to be] given prompt written notice
of the charges and the interim measure. An opportunity for review
of the measure is provided within 15 days of the notice by the Vice
President for Student Affairs or designee.”
Consistent with its policy, USC provided Boermeester with
notice of the charges against him and a review of the interim
suspension. Boermeester was notified of the charges against him,
the interim suspension, and the AOC, by letter dated January 26.
The letter advised him to schedule a meeting with the Title IX
investigator, at which time he would be able to “review the basis for
the investigation,” review his procedural rights, ask questions,
18
provide a statement, and submit relevant information or the identity
of potential witnesses. Thereafter, on January 30, Boermeester met
with the investigator. The record shows USC reviewed the basis for
the investigation with him at the meeting. On the same day,
Boermeester requested the interim suspension be discontinued or
modified because two witnesses “misinterpreted” the incident and
because it placed an undue burden on him. The request was denied
by USC’s Vice President of Student Affairs on January 31. In sum,
Boermeester was informed of the evidentiary basis for the interim
suspension and was provided with a hearing. His contentions to the
contrary are thus meritless.
It appears Boermeester is actually asserting USC should have
provided him with a preliminary hearing prior to the full
evidentiary hearing. However, Boermeester presents no authority
for this proposition. Nor does he present any authority for the
proposition USC was required to share its ongoing investigation
with him.
In his reply brief, Boermeester asserts there was insufficient
evidence he posed a threat to Roe or any other student to support
the interim suspension. As an initial matter, we may disregard
arguments raised for the first time in a reply brief. (WorldMark,
The Cloud v. Wyndham Resort Development Corp. (2010) 187
Cal.App.4th 1017, 1030, fn. 7.) In any case, sufficient evidence
supported the interim suspension. Roe stated Boermeester pulled
her hair, pushed her against a wall, and put his hand on her neck.
DH’s statements supported Roe’s version of the events. Further,
Boermeester admitted he had his hand on her neck and she was
against a wall. While there was also evidence Boermeester did not
pose a threat to Roe, we decline to reweigh the evidence.
19
IV. Fair Procedure Requires Boermeester Be Given the
Opportunity to Cross-Examine Critical Witnesses at An
In-Person Hearing
We find meritorious Boermeester’s contention that he should
have had the right to cross-examine the witnesses against him at an
in-person hearing. In reaching this conclusion, we reject a number
of forfeiture-related arguments advanced by USC and the dissent.
We also find the errors identified are not harmless. We thus reverse
and remand.
A. Relevant Legal Authorities
California has long recognized a common law right to
“fair procedure” when certain private organizations have rendered a
decision harmful to an individual. (Doe v. Allee (2019) 30
Cal.App.5th 1036, 1061 (Allee); Doe v. University of Southern
California (2018) 29 Cal.App.5th 1212, 1232, n. 25; Doe v. Regents of
University of California (2018) 28 Cal.App.5th 44, 56 (UC Santa
Barbara); Pomona College v. Superior Court (1996) 45 Cal.App.4th
1716, 1729–1730.) Courts have applied the right to fair procedure to
disciplinary proceedings involving sexual misconduct by students at
private universities.7 These opinions uniformly hold the disciplinary
7 Unlike private universities, the requirements for disciplinary
hearings at public universities are grounded in constitutional due
process principles. (Allee, supra, 30 Cal.App.5th at p. 1061.) Some
courts have observed that the common law requirements for a fair
disciplinary hearing at a private university “mirror” the due process
protections that must be afforded a student at a public university.
(Ibid.) Other courts merely find due process jurisprudence
“instructive” in cases involving private universities. (Claremont
McKenna, supra, 25 Cal.App.5th at p. 1067, fn. 8.) In either case,
we may rely on cases involving public university disciplinary
proceedings.
20
proceedings need not include all of the safeguards and formalities of
a criminal trial and the formal rules of evidence do not apply.
(Allee, supra, 30 Cal.App.5th at p. 1062; UC Santa Barbara, supra,
28 Cal.App.5th at p. 56.) Instead, fair hearing requirements are
“ ‘flexible,’ ” and do not mandate any “ ‘rigid procedure.’ ” (Allee,
supra, 30 Cal.App.5th at p. 1062.)
Courts also agree fundamental fairness requires the accused
be given “ ‘ “a full opportunity to present his defenses.” ’ ” (Allee,
supra, 30 Cal.App.5th at p. 1062, quoting Doe v. Regents of
University of California (2016) 5 Cal.App.5th 1104 (UC San Diego).)
A university must balance its desire to protect victims of sexual
misconduct with an accused’s need to adequately defend himself or
herself. Added to these competing interests is the university’s desire
to avoid diverting its resources and attention from its main calling,
which is education. (Doe v. Claremont McKenna College (2018) 25
Cal.App.5th 1055, 1066 (Claremont McKenna).) “ “Although a
university must treat students fairly, it is not required to convert its
classrooms into courtrooms.’ ” (UC San Diego, supra, 5 Cal.App.5th
at p. 1078.)
In examining what kind of hearing comports with fair
procedure, California courts have concluded a university must
provide the following to the parties involved in a sexual misconduct
disciplinary proceeding: notice of the charges and the university’s
policies and procedures (USC I, supra, 246 Cal.App.4th at p. 241);
compliance with those policies and procedures (UC San Diego,
supra, 5 Cal.App.5th at p. 1078); access to the evidence (UC Santa
Barbara, supra, 28 Cal.App.5th at pp. 57–59); an in-person hearing
that includes testimony from critical witnesses and written reports
of witness interviews (Doe v. Westmont College (2019) 34
Cal.App.5th 622, 637 (Westmont College); and direct or indirect
21
cross-examination of critical witnesses in cases where credibility of
the witnesses is central to a determination of misconduct (Doe v.
Occidental College (2019) 40 Cal.App.5th 208, 224 (Occidental
College); Allee, supra, 30 Cal.App.5th at p. 1039).
B. USC’s Sexual Misconduct Policy in 2017
USC’s student handbook includes its policies and procedures
governing investigations into student sexual misconduct.8 Stalking
and intimate partner violence were identified as some of the
prohibited conduct. USC’s policy dictated an investigation was to be
a “neutral, fact-finding process. Reports [were] presumed to be
made in good faith. Further, Respondents [were] presumed not
responsible.” The presumption of non-responsibility was overcome
when a preponderance of evidence established the respondent
committed the prohibited conduct.
The handbook required the Title IX office to contact the
reporting party and the respondent at the initiation of an
investigation to explain their rights and to schedule a meeting.9
An investigator was assigned to the matter and interviewed
witnesses and assembled other evidence.
The rules of evidence and discovery generally did not apply.
Sexual history was relevant “[w]hen there [was] evidence of
substantially similar conduct by a Respondent, regardless of a
finding of responsibility.” The sexual history evidence could be used
8 USC’s sexual misconduct policy has been amended since 2017.
However, we review the policy as it existed at the time of the
disciplinary proceedings against Boermeester.
9 Regardless of who reported the student misconduct, USC
designated the individual who experienced the prohibited conduct as
the “reporting party.” The “respondent” was the individual accused
of committing the misconduct.
22
“in determining the Respondent’s knowledge, intent, motive,
absence of mistake, or modus operandi[.]”
After the investigation, the parties could review the evidence
in a process known as “Evidence Review.” Once the parties
completed Evidence Review, the Title IX coordinator and assigned
investigator conducted separate hearings, known as “Evidence
Hearings,” where each party could present a statement or evidence
at the Title IX offices. Each party was permitted to submit
questions to be asked by the Title IX coordinator at the other party’s
Evidence Hearing. The Title IX coordinator had discretion to
exclude inflammatory, argumentative, or irrelevant questions. Any
“new information” shared by a party during the Evidence Hearing
was relayed to the other party for a response.
After the Evidence Hearing, the Title IX office prepared a
Summary Administrative Review (SAR), which presented and
analyzed the information collected. The investigator made findings
of fact in consultation with the Title IX coordinator and using a
preponderance of the evidence standard, determined whether a
violation occurred.
A “Misconduct Sanctioning Panel,” comprised of three
members of the USC community, determined the appropriate
discipline after review of the SAR. The parties could appeal the
disciplinary action to USC’s Vice President for Student Affairs.
An appellate panel, comprised of three anonymous individuals from
the USC community, reviewed the appeal and made a
recommendation to the Vice President for Student Affairs, who could
accept or reject the recommendation.
C. Forfeiture
We address the threshold issue of whether Boermeester has
preserved his right to assert on appeal that he was improperly
23
denied cross-examination of witnesses at a live evidentiary hearing.
We find he has.
USC contends Boermeester forfeited the issue when he failed
to request cross-examination of third-party witnesses and waived it
when he refused to submit written questions for Roe. We decline to
fault Boermeester for failing to request cross-examination of other
witnesses because such an objection was not supported by the law at
the time and would have been futile in any case. (People v. Brooks
(2017) 3 Cal.5th 1, 92 [“ ‘Reviewing courts have traditionally excused
parties for failing to raise an issue at trial where an objection would
have been futile or wholly unsupported by substantive law then in
existence.’ ”]; see also Corenbaum v. Lampkin (2013) 215
Cal.App.4th 1308, 1334 [“An appellant may challenge the admission
of evidence for the first time on appeal despite his or her failure to
object in the trial court if the challenge is based on a change in the
law that the appellant could not reasonably have been expected to
foresee.”].)
At the time of these disciplinary proceedings in 2017, neither
the law nor USC’s sexual misconduct policy contemplated crossexamination of third-party witnesses at an in-person hearing. Allee,
which extends cross-examination rights to third-party witnesses,
was not published until January 4, 2019. In 2016, the existing law
on this point was set forth in USC I, which cited with approval a
case that held, “ ‘[a]lthough we recognize the value of crossexamination as a means of uncovering the truth [citation], we reject
the notion that as a matter of law every administrative
appeal . . . must afford the [accused] an opportunity to confront and
cross-examine witnesses.’ ” (USC I, supra, 246 Cal.App.4th at
24
p. 245.) Under these circumstances, Boermeester could not
reasonably have been expected to foresee Allee’s holding.
10
Moreover, any objection would have been futile because the
Title IX office had made it clear they were not going to deviate from
USC’s sexual misconduct policy and procedures. This is
demonstrated by USC’s denial of Boermeester’s request that Roe’s
answers to his questions at the Evidentiary Hearing be transmitted
to him “unfiltered,” meaning verbatim, and prior to the SAR. The
Title IX coordinator replied, “The process does not afford that.
Please review our policy.” It is reasonable to conclude a request to
question other witnesses would likewise have been denied and an
objection is futile under such circumstances. (See People v. Hopkins
(1992) 10 Cal.App.4th 1699, 1702 [after mistrial objection overruled
on a legal ground, defense counsel could reasonably have believed
further objections would be fruitless]; In re Antonio C. (2000) 83
Cal.App.4th 1029, 1033 [“[W]here an objection would have been
futile, the claim is not waived.”].)
Because we conclude Boermeester did not forfeit his right to
cross-examine third-party witnesses, we likewise conclude there was
no waiver of his right to an in-person hearing.
10 The dissent asserts Boermeester could have foreseen Allee
because his attorney also represented the accused student in Allee.
In 2019, Boermeester’s attorney persuaded the Allee court to rely on
Doe v. University of Cincinnati (S.D. OH 2016) 223 F.Supp.3d 704,
711, which held that cross-examination was essential in student
disciplinary proceedings. As discussed above, however, California
authority was to the contrary when Boermeester’s proceedings
occurred. (USC I, supra, 246 Cal.App.4th at p. 245.) Boermeester’s
attorney in 2017 could not have foreseen that California law would
change in 2019 as a result of an Ohio case. We decline to charge
attorneys with such foresight.
25
We also decline to find forfeiture based on Boermeester’s
refusal to submit questions for Roe. The record shows Boermeester
did object to the process by which Roe would be questioned.
Specifically, he asked for Roe’s answers to be relayed to him
“unfiltered” or word-for-word so he could use them in his formal
statement to USC. He explained, “The failure to record or
transcribe any of the interviews and the admission by at least one
witness that he lied during his initial interview [referring to MB2]
have shaken our confidence in the accuracy of this investigation.”
Boermeester declined to submit questions for Roe only after his
request was rejected.
Given these circumstances, Boermeester did not waive the
right to raise the issue of Roe’s cross-examination on appeal.
(See Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285,
299–300, fn. 17 [no waiver where objection was overruled and
objecting party attempted to minimize impact of admission of
evidence].) To the extent USC contends Boermeester’s objection was
insufficiently specific, that is, he failed to object on the ground he
could not question Roe at an in-person hearing, we conclude that
objection was not supported by the law at the time and would have
been futile for the same reasons specified above.
We do not find persuasive the dissent’s invited error analysis.
An error is invited when a party purposefully induces the
commission of error. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,
403.) The doctrine of invited error bars review on appeal based on
the principle of estoppel. (Ibid.) The doctrine is intended to prevent
a party from misleading a trial court to make a ruling, and then
profit from it in the appellate court. (Ibid.)
The dissent accuses Boermeester of making a tactical decision
when he refused to submit questions for Roe. The record shows
26
Boermeester only declined to question Roe further after his request
to receive verbatim answers before the SAR was denied. The record
does not demonstrate it was a tactical decision designed to induce
USC to make an erroneous decision that Boermeester could then
challenge on appeal. Instead, the record demonstrates a
disagreement about the process by which Roe would be questioned.
It is clear Boermeester merely abided by USC’s established
rules and procedures. USC’s policy did not allow for Roe to be
questioned at an in-person hearing that Boermeester could attend.
Neither did it contemplate questioning third party witnesses at an
in-person hearing. The doctrine of invited error does not apply when
a party, while making the appropriate objections, acquiesces to an
established procedure such as this one. (See K. G. v. County of
Riverside (2003) 106 Cal.App.4th 1374, 1379 [“ ‘ “ ‘An attorney who
submits to the authority of an erroneous, adverse ruling after
making appropriate objections or motions, does not waive the error
in the ruling by proceeding in accordance therewith and endeavoring
to make the best of a bad situation for which he was not
responsible.’ ” [Citations.]’ ”].) Here, Boermeester objected to the
format of his questions to Roe and we find that any request to
question third party witnesses would have been futile. Boermeester
did not invite the error by acquiescing to USC’s sexual misconduct
procedure.
Finally, we reject the contention Boermeester forfeited this
issue when he failed to raise it in his administrative appeal.
Boermeester was prohibited from arguing the proceedings were
unfair in his administrative appeal. An appeal on this basis would
have been futile. (In re Antonio C., supra, 83 Cal.App.4th at
p. 1033.)
27
D. Merits
We now reach the merits of Boermeester’s challenge to the
fairness of the disciplinary proceedings against him. Relying on
Allee, supra, 30 Cal.App.5th at page 1039, he primarily takes issue
with the investigator’s “overlapping and conflicting” roles in the
proceedings and the denial of his right to cross-examine witnesses.
(Id. at p. 1069.)
Allee involved a student’s expulsion from USC for
nonconsensual sex with another student. Division 4 of this court
concluded USC’s disciplinary procedure failed to provide the accused
student with a fair hearing. (Allee, supra, 30 Cal.App.5th at 1039.)
The Allee court held that “when a student . . . faces severe
disciplinary sanctions, and the credibility of witnesses (whether the
accusing student, other witnesses, or both) is central to the
adjudication of the 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, at
a hearing at which the witnesses appear in person or by other
means (e.g., videoconferencing) before a neutral adjudicator with the
power independently to find facts and make credibility
assessments.” (Id. at p. 1069.)
At the time of the disciplinary proceedings in Allee, USC’s
sexual misconduct policy did not require an in-person hearing and
the Title IX investigator served multiple roles in the proceedings.
(Allee, supra, 30 Cal.App.5th at p. 1069.) The Allee court found fault
with the investigator’s “unfettered” discretion to conduct the
investigation, determine credibility, make findings of fact, and
impose discipline. (Id. at p. 1070.)
The court reasoned, “The notion that a single individual,
acting in these overlapping and conflicting capacities, is capable of
28
effectively implementing an accused student’s right of cross–
examination by posing prepared questions to witnesses in the course
of the investigation ignores the fundamental nature of crossexamination: adversarial questioning at an in person hearing at
which a neutral fact finder can observe and assess the witness’
credibility.” (Allee, supra, 30 Cal.App.5th at p. 1068.) The court
concluded, “a right of ‘cross-examination’ implemented by a single
individual acting as investigator, prosecutor, factfinder and
sentencer, is incompatible with adversarial questioning designed to
uncover the truth. It is simply an extension of the investigation and
prosecution itself.” (Ibid.)
Since Allee, Divisions 6 and 7 of this court have reached
similar conclusions regarding the need for some form of crossexamination at a live hearing. In Westmont College, supra, 34
Cal.App.5th 622, a student was suspended after a three-member
panel determined the evidence supported an accusation he sexually
assaulted another student. The trial court granted the accused
student’s petition for a writ of administrative mandamus on the
ground the college did not give him a fair hearing. (Id. at p. 625.)
Division 6 affirmed, finding the college’s investigation and
adjudication of the complainant’s accusation “was fatally flawed.”
(Westmont College, supra, 34 Cal.App.5th at p. 625.) The Court of
Appeal found fault with the panel’s failure to hear testimony from
critical witnesses, even though it relied on their prior statements to
corroborate the complainant’s account and to impeach the accused’s
credibility. It also found the panel improperly withheld material
evidence from the accused that its own policies required it to turn
over and did not give the accused the opportunity to propose
questions to be asked of the complainant and other witnesses. (Id.
at pp. 625–626, 636–639.) Because the record indicated two panel
29
members relied on the credibility determination of the investigator,
who was the third panel member, the court also held each member
of the panel must hear from the critical witnesses—in person, by
videoconference, or some other method—before assessing credibility.
(Id. at p. 637.)
In Occidental College, supra, 40 Cal.App.5th 208, Division 7
applied the holding in Westmont and found a student expelled for
sexual assault had received a fair hearing. In Occidental College, an
external adjudicator heard testimony from the parties, the
investigator, and five witnesses during a live hearing. The
adjudicator recommended disciplinary action after considering the
testimony, summaries of witness interviews, and the investigative
report. (Occidental College, supra, at p. 219.) The court found
“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.” (Id. at p. 224; accord Claremont McKenna, supra, 25
Cal.App.5th at p. 1070 [“where the accused student faces a severe
penalty and the school’s determination turns on the complaining
witness’s credibility . . . the complaining witness must be before the
finder of fact either physically or through videoconference or like
technology to enable the finder of fact to assess the complaining
witness’s credibility in responding to its own questions or those
proposed by the accused student”].)
30
We agree with the above authorities: In a case such as this
one, where a student faces a severe sanction in a disciplinary
proceeding and the university’s decision depends on witness
credibility, the accused student must be afforded an in-person
hearing in which he may cross-examine critical witnesses to ensure
the adjudicator has the ability to observe the witnesses’ demeanor
and properly decide credibility. (Occidental College, supra, 40
Cal.App.5th at p. 224; Claremont McKenna, supra, 25 Cal.App.5th
at p. 1070; Allee, supra, 30 Cal.App.5th at p. 1066.) In reaching this
conclusion, we agree with the prevailing case authority that crossexamination of witnesses may be conducted directly by the accused
student or his representative, or indirectly by the adjudicator or by
someone else. (Ibid.) We further agree the cross-examiner has
discretion to omit questions that are irrelevant, inflammatory, or
argumentative. (UC San Diego, supra, 5 Cal.App.5th at pp. 1086–
1087.)
Although we refer to an “in-person hearing,” we do not mean
to say that the witnesses must be physically present to allow the
accused student to confront them. Instead, the witnesses may
appear in person, by videoconference, or by another method that
would facilitate the assessment of credibility. (Claremont McKenna,
supra, 25 Cal.App.5th at p. 1070; Doe v. Univ. of Cincinnati (6th Cir.
2017) 872 F.3d 393, 406 (Univ. of Cincinnati) [university’s
procedures need only provide “a means for the [review] panel to
evaluate an alleged victim’s credibility, not for the accused to
physically confront his accuser.”].)
Boermeester did not receive this type of hearing under USC’s
2017 sexual misconduct policy. USC’s policy to hold separate
Evidentiary Hearings and limit cross-examination does not meet the
31
fair procedure requirements identified in Allee, Westmont College,
Occidental College, and Claremont McKenna.
Under the separate Evidentiary Hearing procedure, the
reporting party could respond to the evidence collected and answer
any questions submitted by the respondent without the respondent’s
presence. This procedure effectively denied Boermeester a hearing.
An accused student is not given a meaningful opportunity to
respond to the evidence against him if he is not allowed to attend
the very hearing at which the evidence is presented. (Goldberg v.
Regents of University of Cal. (1967) 248 Cal.App.2d 867, 882 [due
process requires students be “given ample opportunity to hear and
observe the witnesses against them”].)
Even if the Evidence Hearings were not separate and
Boermeester was allowed to attend, the limited cross-examination
afforded by USC prevented him from fully presenting his defense, as
required by fair procedure. (UC San Diego, supra, 5 Cal.App.5th at
p. 1104.) Under the sexual misconduct policy, Boermeester could
only submit questions for Roe to be asked by the Title IX coordinator
at the Evidence Hearing. Boermeester had no opportunity to
question any other witness or ask follow-up questions of Roe.
These limitations prevented Boermeester from fully presenting his
defense, which was that the eyewitnesses misunderstood what
happened between him and Roe on January 21, 2017. Allowing
Boermeester to submit questions for critical witnesses, such as AB,
MB2, DH, and TS, at a live hearing would further truth finding by
allowing him to test their recollection, their ability to observe the
incident, and any biases they may have. It is well established
“ ‘cross-examination has always been considered a most effective
way to ascertain truth.’ ” (Univ. of Cincinnati, supra, 872 F.3d at
pp. 401–402.)
32
In short, an in-person hearing coupled with indirect or direct
cross-examination would enable the adjudicator to better assess
witness credibility in a case where credibility is central to a
determination of sexual misconduct. (Univ. of Cincinnati, supra,
872 F.3d at pp. 401–402; Elkins v. Superior Court (2007) 41 Cal.4th
1337, 1358 [“Oral testimony of witnesses given in the presence of the
trier of fact is valued for its probative worth on the issue of
credibility, because such testimony affords the trier of fact an
opportunity to observe the demeanor of witnesses.”]; Doe v. Baum
(6th Cir. 2018) 903 F.3d 575, 586.)
USC contends the holdings in Allee and the other university
sexual misconduct cases should not be extended to an intimate
partner violence case on the ground those cases only apply to sexual
assault or similar sexual misconduct. According to USC, crossexamination is required in sexual misconduct cases because the
misconduct takes “place behind closed doors, with no witnesses
other than the parties, and the key issue in dispute [is] consent.”
USC claims the situation is different here because the misconduct
“took place in public, was witnessed by at least two individuals, and
was captured on video.”
The dissent similarly distinguishes a university sexual
misconduct case from an intimate partner violence case. In a sexual
misconduct case, according to the dissent, the accused seeks crossexamination to “shake” the accuser’s story that their sexual
encounter was not consensual. The dissent asserts the sexual
misconduct case is different because it does not involve a domestic
relationship and the victim does not recant.
We disagree. Sexual misconduct cases may also arise from
domestic relationships and victims also recant in such cases.
Further, from a procedural standpoint, we see little difference
33
between a sexual misconduct case such as that described by USC
and the dissent and an intimate partner violence case such as this
one. Both cases require the university to make credibility
determinations based on conflicting statements. It is irrelevant to
us whether the conflict exists because the man and the woman have
competing narratives or the man and woman’s narrative competes
with that of third party witnesses.
USC was presented with two versions of the January 21
incident. On the one hand, Roe and Boermeester claimed it was
playful and not violent. On the other hand, the third party
witnesses and Roe, in her initial statement, claimed it was violent
and not playful. Given this conflict, “the credibility of witnesses
(whether the accusing student, other witnesses, or both) is central to
the adjudication of the allegation” in this case, just as it was in Allee
and the other university sexual misconduct cases. (Allee, supra, 30
Cal.App.5th at p. 1069; see also Claremont McKenna, supra, 25
Cal.App.5th at p. 1070.)
We acknowledge the dissent’s point that Roe had recanted and
it may or may not have benefitted Boermeester to question her
further. However, as USC indicates, it was not Roe, but the
eyewitnesses, who were pivotal to USC’s decision. According to
USC, they provided the necessary support for Roe’s initial account.
Thus, even absent cross-examination of Roe, Boermeester should
have been able to cross-examine the third-party witnesses to test
their recollection, their ability to observe the incident, and any
biases they may have had against him.
USC claims credibility of witnesses was not central to the
adjudication in this case due to the extensive corroborating evidence,
including the video tape. USC overstates the evidence. The
surveillance video is not conclusive. The picture is grainy and there
34
is no audio. The video camera is positioned approximately two
buildings away from Roe and Boermeester. They are small figures
in the frame of the video. Additionally, there is a light on the left
side of the frame, which renders the interaction between
Boermeester and Roe when they are near the wall barely visible. At
best, the video corroborates Roe’s initial statement, MB2’s second
statement, and DH’s statement of what occurred on January 21,
2017. However, both Roe and MB2 recanted their initial statements
to the investigator. Contrary to USC’s assertion, adjudication of this
matter rests on a determination of the credibility of inconsistent
witnesses, just as in Allee, Occidental College, and Westmont
College. Accordingly, these authorities apply to this intimate
partner violence case.
We likewise find unpersuasive USC’s argument that sexual
assault and other sexual misconduct violations are different from
violations involving intimate partner violence and thus should be
treated differently. USC’s own student handbook describes only
four “categories” of student misconduct: (1) non-academic violations;
(2) academic integrity violations; (3) admissions violations; and (4)
sexual, interpersonal, and protected class misconduct cases. Under
the “University’s Policy and Procedures on Student Sexual,
Interpersonal, and Protected Class Misconduct,” the same
investigative and adjudicative procedure applies to each violation,
including “sexual assault and non-consensual sexual contact,”
harassment, stalking, and intimate partner violence. In short, USC
does not treat sexual misconduct and intimate partner violence
cases differently. Neither does fair procedure.
E. Harmless Error
Lastly, USC asserts any error was harmless, arguing,
“[n]o amount of additional process would change what can be plainly
35
observed on the security footage and confirmed in Boermeester’s
own statements.” We are not convinced. As we have discussed,
USC overstates what the surveillance video shows. At best, it
corroborates Roe’s initial statement. Moreover, although
Boermeester admits he put hands on Roe’s neck while she was
positioned against the wall, he asserts it was playful. This is hardly
a confession to intimate partner violence.
At bottom, this case rests on witness credibility. Even if Roe
had not recanted, USC was still faced with conflicting accounts of
the incident: Boermeester disputed the characterization of the
incident as violent, contending they were merely “horsing around.”
MB2, an eyewitness to the incident, admitted he lied in his initial
statement. Given these conflicting statements, we cannot say the
record contains such overwhelming evidence as to render harmless
the errors identified in this case.
Outcome: The judgment is reversed and the matter remanded to the superior court with directions to grant Boermeester’s petition for writ of administrative mandate. Should USC choose to proceed with a new disciplinary hearing, it should afford Boermeester the opportunity to directly or indirectly cross-examine witnesses at an in-person hearing. Each party to bear his or its own costs on appeal.
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