California Appellate Court Clarifies Fair Hearing Requirements in Student Sexual Assault Case

Category: Education Matters
Date: Jun 2, 2016 02:04 PM

The University of Southern California found that student "John Doe" violated USC's student conduct code as a result of his participation in a group sexual encounter at a fraternity party.  Another student, "Jane," alleged she had been sexually assaulted by a group of men at the party.  She reported that her sexual contact with John was consensual, but certain contact with other men was not.  USC's Office of Student Judicial Affairs and Community Standards (SJACS) investigated Jane's allegation and found that John violated nine sections of the student conduct code, including the section prohibiting sexual assault.  John was suspended for more than two years, effective immediately.

John appealed to the student Behavior Appeals Panel, which found insufficient evidence of any sexual assault.  The Appeals Panel nonetheless held that John violated two sections of the student conduct code: he "encouraged or permitted" other students to slap Jane on the buttocks during sexual activity, which the parties agree was not consensual, in violation of Student Conduct Code section 11.44C, and he endangered Jane by leaving her alone in the bedroom when the involved parties dispersed, in violation of Student Conduct Code section 11.32.

John petitioned for a writ of mandate in superior court, arguing that he was not afforded a fair hearing and there was insufficient evidence to support the Appeals Panel's finding that he violated the Student Conduct Code.  The trial court rejected John's fair hearing challenge.  It also held that there was substantial evidence to support the finding that John violated Section 11.44C by encouraging and permitting the other students' behavior, but that there was not sufficient evidence to support the finding that John violated section 11.32 by endangering Jane.  Both parties appealed.

The appellate court found that John was denied a fair hearing under Code of Civil Procedure section 1094.5, subdivision (b).  It disagreed with the trial court's finding that USC's procedure was fair because John had the opportunity to tell his side of the story in two interviews, and he had the right to request any materials collected in the investigation.  It also disagreed with the trial court's finding that the procedure was fair because John was informed of all the charges against him from the outset when SJACS sent him a letter listing provisions of the Student Conduct Code that he allegedly violated. 

The appellate court first outlined the standard for a fair procedure.  Generally, it requires "notice reasonably calculated to apprise interested parties of the pendency of the action…and an opportunity to present their objections."  At the very minimum, students facing suspension must be given some kind of notice and afforded some kind of hearing.  The hearing need not be formal, but in being given an opportunity to explain his version of the facts, the student must first be told what he is accused of doing and what the basis of the accusation is.

The Court found that the notice John received was insufficient.  SJACS provided John with a list of Student Conduct Code sections he allegedly violated, but did not provide John with any notice of the factual basis for these charges.  The SJACS investigation and report focused on alleged sexual assault and whether Jane consented to sexual contact.  Moreover, during John's interviews, SJACS investigators led John to believe that the only issue was whether sexual contact with Jane was consensual.  The Appeals Panel, on the other hand, suspended John for encouraging other students to slap Jane and for endangering Jane.  John was therefore not provided notice or an opportunity to defend himself against those allegations.  The Court concluded that if notice is to be meaningful, it must include information about the basis of the accusation—not just a list of Student Conduct Code sections that can be interpreted to encompass any activity the university finds to be inappropriate. 

In addition, the Court determined that the hearing was insufficient and compounded the problems arising from the lack of sufficient notice provided to John.  First, Jane was provided with copies of SJAC's notes relating to every witness, while John was only allowed to see the evidence against him upon request.  The Court concluded that common law requirements for a fair hearing under Section 1094.5, subdivision (b) do not allow an administrative board to rely on evidence that has never been revealed to the accused and, therefore, requiring John to request access did not comply with the requirements of a fair hearing.  In addition, while the Court recognized that a full trial-like proceeding is not necessary in administrative proceedings, John was not provided with an opportunity to appear directly before the decision-making panel to rebut the evidence presented against him, which the Court determined did not comply with the standards of a fair hearing.  Moreover, because John was not informed of the factual basis for the charges for which he was ultimately sanctioned, he never had a sufficient hearing affording him the opportunity to respond to those charges under Section 1094.5, subdivision (b). 

Finally, the Court held that there was insufficient evidence to support the Appeals Panel's findings as to either violation of the Student Conduct Code.  There was no substantial evidence that John encouraged or permitted other students to slap Jane on the buttocks because the evidence did not demonstrate that John knew they would slap Jane or that John was in a position to prevent them from doing so.  There was also no evidence that John endangered Jane by leaving the bedroom because the finding contradicted both John's and Jane's recollection of events. 

Note:

This decision analyzes the common law requirements for a fair hearing under Code of Civil Procedure section 1094.5, subdivision (b).  While the Court drew from case law analyzing procedural due process requirements, the Court did not consider them here. In addition, schools and universities must meet the requirements for hearings under Title IX of the Education Amendments of 1972 as well as the Department of Education's Title IX guidance, which prohibits discrimination on the basis of sex and reaches institutions' sexual assault and sexual violence investigations and hearing procedures.  For more information on these requirements, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento offices.

Doe v. University of Southern California (2016) 246 Cal.App.4th 221.

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