California Supreme Court: No Right to In-Person Cross-Examination of Accuser During Campus Sexual Assault Proceedings
The court highlighted the need to keep the accuser from ‘being retraumatized by the disciplinary process.’ Critics challenged this reasoning, arguing a Title IX proceeding exists to determine whether trauma occurred in the first place.
The California Supreme Court unanimously sided with the University of Southern California in a dispute over in-person questioning of an accuser and witnesses during Title IX proceedings at private universities.
USC expelled Matthew Boermeester for alleged intimate partner violence after a two-month Title IX investigation without allowing live cross-examination of his accuser and witnesses against him, either by Boermeester or a third party. The California Court of Appeal ruled against USC, which appealed.
At the time of Title IX proceedings against Boermeester, USC allowed individuals subject to a Title IX investigation to question the accuser in writing only. The Title IX investigator would then ask the accuser these questions outside the accused’s presence.
“This is a deeply troubling decision,” Justin Dillon, counsel for Families Advocating for Campus Equality, told Legal Insurrection. FACE, which “support[s] and advocate[s] for equal treatment and due process for those affected by inequitable Title IX campus disciplinary processes,” submitted a brief supporting Boermeester.
Boermeester asked the court to apply California’s doctrine of fair procedure to private university disciplinary proceedings, find that USC had failed to observe that doctrine by refusing to allow live questioning of the accuser and witnesses, and reverse his expulsion. The court declined, in a decision praised by USC.
“The university is pleased with the decision and the California Supreme Court’s clarification of the law on this important issue,” USC representative Lauren Bartlett told Legal Insurrection.
“The university will continue to put its students first by using a comprehensive disciplinary process that protects the rights and interests of all students.”
By refusing to allow live questioning, Boermeester argued, USC denied him a fair Title IX hearing because live questioning better allows for credibility determinations. The court disagreed, citing competing interests.
The court noted the balance universities must achieve when crafting disciplinary proceedings, a balance the court declined to upset by requiring live questioning in Title IX proceedings:
When crafting the precise procedures necessary to provide a meaningful opportunity to respond, however, a private university must balance competing interests, including the accused student’s interests in a fair procedure and completing a postsecondary education, the accuser’s interest in not being retraumatized by the disciplinary process, and the private university’s interests in maintaining a safe campus and encouraging victims to report instances of sexual misconduct or intimate partner violence without having to divert too many resources from its main purpose of education. (citations omitted)
“The court justified its ruling against live hearings and against even indirect cross-examination in part on” preventing retraumatization of the accuser, Dillon told Legal Insurrection.
“But the whole point of such a process is to decide whether there was even trauma in the first place. Assuming the conclusion and working backwards from that isn’t how either courts or colleges are supposed to do things.”
Brooklyn College history professor KC Johnson echoed these concerns:
CA Supreme Court: acc’d student’s right to fair procedure balanced against univ’s interest in encouraging more reporting and “the accuser’s interest in not being retraumatized by the disciplinary process.”
But if the allegation is false, how is the “accuser” “retrauamatized”? pic.twitter.com/mCpVo65IxK
— KC Johnson (@kcjohnson9) July 31, 2023
The court agreed that the doctrine of fair procedure applies to private university disciplinary proceedings but still found against Boermeester:
We hold that, though private universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, they are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually.
The court elaborated that the doctrine of “fair procedure does not compel formal proceedings with all the embellishments of a court trial.”
“When sensitive, consequential matters are at stake such as the outcome of an allegation of sexual misconduct, formality and transparency – that is, a recorded, live hearing – are necessary to ensure a reliable outcome,” Teresa Manning of the National Association of Scholars told Legal Insurrection.
The court, citing “long-standing” precedent, reasoned private institutions were owed substantial deference in crafting disciplinary procedures:
Requiring private universities to conduct the sort of hearing the Court of Appeal majority envisioned would be contrary to our long-standing fair procedure admonition that courts should not attempt to fix any rigid procedures that private organizations must “invariably” adopt. Instead, private organizations should “retain the initial and primary responsibility for devising a method” to ensure adequate notice and a meaningful opportunity to be heard. (citations omitted)
The California Hospital Association submitted a brief supporting USC on narrow grounds. “CHA’s interest in this lawsuit was narrowly focused on the possible impact the Court of Appeal’s decision could have on medical staff peer review proceedings,” CHA representative Jan Emerson-Shea told Legal Insurrection.
CHA praised the decision and noted “that hospitals will continue to afford such physicians [fair procedure] without the chilling effect on whistleblowers and the additional burdens on the hearing process that the Court of Appeal’s decision, if it had been allowed to stand, would have imposed.”
The California attorney general submitted a brief supporting USC but declined to comment on the decision.DONATE
Donations tax deductible
to the full extent allowed by law.