Sadly, some men continue to sexually assault and batter women. Such outrageous conduct subjects those men to criminal liability and puts their freedom at stake. When it happens on a college campus, it subjects those men to other sanctions, as well, including expulsion. In a recent case involving a student at the University of Southern California who was accused of battering another student in violation of a school policy, the California Supreme Court was tasked with deciding whether the student's disciplinary hearing was fair, such that his expulsion should be upheld.
A male USC student was accused of choking his ex-girlfriend and banging her head against a wall, conduct that was witnessed by two independent witnesses and was caught in a grainy surveillance video. Such conduct, if found to be true, would violate USC's policy against sexual misconduct and intimate partner violence. Following its own policies and procedures, USC provided the accused student with notice of the allegations against him; provided him with the opportunity to speak with a Title IX investigator; permitted him to review the evidence against him; permitted him to submit his own evidence; invited him to attend an in-person evidence hearing (that he declined to attend); permitted him to submit questions for the Title IX coordinator to ask of his accuser at her own evidence hearing (which he declined to do); and provided him an opportunity to appeal the expulsion ruling to an administrative appellate panel.
At the end of the two-month investigation, the school found that the accused student had violated the policy and he was expelled. He claimed that his expulsion was unfair because USC refused to permit his attorney to cross-examine his accuser and the third-party witnesses against him at a live hearing. To that end, he asked a court to overturn USC's decision, relying on Code of Civil Procedure § 1094.5, a procedural law that allows a trial court to review the procedural fairness of decisions of not only government agencies, but also of private organizations when they are made after a hearing during which evidence is taken and factual determinations are made.
After the trial court ruled against the accused student, he appealed. The California Court of Appeal, in a 2-1 decision, reversed and sided with the accused student, concluding that the lack of an adversarial back-and-forth cross-examination in a live setting had deprived the student of a fair hearing. USC then asked the California Supreme Court to weigh in. The Supreme Court exercised its discretion to do so in order to clarify the level of fairness that an accused student in a private college or university is entitled to in circumstances like these.
In reversing the decision of the Court of Appeal, the Supreme Court held that a private university's expulsion procedure may still be fair even if it does not provide a live hearing with an opportunity for the accused to cross-examine his accuser or third-party witnesses. Rather, a private university must only provide adequate notice of the charges against the accused individual and a meaningful opportunity for that individual to be heard. The court found that USC's actions, discussed above, had in fact provided a meaningful opportunity for the accused to be heard. To require a full-blown court-like trial would intrude into a private university's internal affairs. Such affairs are matters about which the universities know best, said the high court. More importantly, permitting the accused in a private setting to cross-examine his accuser and third-party witnesses would likely discourage victims from reporting sexual assaults and other violent acts; would likely discourage witnesses from participating in the disciplinary process (because private universities lack subpoena power to compel the appearance and testimony of witnesses); and would likely cause universities to spend time and money on matters other than their primary mission, which is to provide a postsecondary education. Further, the court noted that a university's hearing officers might not be trained to make on-the-fly rulings on objections of the type that would be made during cross-examination at a live hearing.
There are three key takeaways from this case. First is that the rights of an accused may differ depending on the forum. The accused may have fewer rights in a private forum so long as the process itself is generally fair. The accused student in this case was given a fair chance to defend himself, even though he wasn't given the same rights a criminal defendant would have had in a criminal proceeding.
Second, the decision helps keep college campuses safer. It encourages victims and witnesses to continue reporting such assaults and to continue cooperating with investigators without fear of being subjected to cross-examination, the type of attack that should be reserved for civil and criminal proceedings.
Finally, the decision supports the principle of personal accountability for one's actions. Would-be perpetrators of these assaults are once again put on notice that their actions will have serious consequences. Hopefully this will help them think twice before doing something that will not only affect someone else's life, but also their own.
The case is Boermeester v. Carry et al., decided on July 31, 2023. The full opinion can be found here.
