California Court of Appeal Finds for UCSD in Sexual Misconduct Due Process Litigation

Category: Education Matters
Date: Dec 19, 2016 11:38 AM

We recently reported developments in due process litigation related to sexual misconduct on campus.  Among those cases was John Doe v. Regents of the University of California (U.C. San Diego).  As we noted, the case was on appeal.  Last month, the Court of Appeal overturned the trial court’s decision.

The case involved a student, "Jane Roe," at the University of California San Diego ("USCD"), who alleged that student "John Doe" ignored her objections to sexual activity on the morning of February 1, 2014, in violation of the Student Sex Offense Policy.  The UCSD Office for the Prevention of Harassment & Discrimination (OPDH) conducted an investigation and found that it was more likely than not that Jane’s allegation was true.  Following OPDH's investigation, UCSD provided John with a formal hearing under the UCSD Hearing Procedures for Alleged Sex Offense, Harassment or Discrimination ("Hearing Procedures") to determine whether he had violated the Student Sex Offense Policy.

Under the Hearing Procedures, a University Representative and the accused student present information and evidence, including witnesses, to the Hearing Panel.  The Hearing Panel asks questions of parties and witnesses during the hearing, though parties are allowed to provide written questions to the Chair of the panel to be asked at the Chair's discretion.  Following these guidelines, John submitted 32 questions to be asked of Jane.  The Chair asked nine of these submitted questions.

As allowed by the Hearing Procedures, Jane was placed behind a barrier so that she and John could not see each other during the hearing.  John made a statement that he did not touch Jane as she alleged, but declined to provide additional information regarding the incident citing his Fifth Amendment privilege against self-incrimination.  Neither the OPDH employee who investigated John’s allegation nor the underlying 14 interviewed witnesses testified about the OPDH investigation report, which the University Representative only referred to in his closing remarks.  Despite this, the Hearing Panel still relied on the investigation report to make certain of its findings and cited to the report in the findings.  Jane was the only witness at the hearing.

The Hearing Panel issued a Student Conduct Review Report, which made several findings supporting the conclusion that John violated the Student Sex Offense Policy.  Based on this report, the Hearing Panel recommended suspending John for one-quarter in addition to other sanctions.  The reviewing Dean affirmed the decision, but increased the suspension to one year (requiring John to reapply to be readmitted to UCSD) in addition to prescribing other sanctions.  John appealed to the Council of Provosts, which affirmed the decisions, and increased the suspension to one year and one-quarter.

John then filed a challenge to UCSD's proceedings in state court.  The trial court found that the university had infringed the accused student’s due process and other rights in the course of his administrative hearing.  First, the court found fault in the university’s screening cross-examination questions posed to the Jane and declining to ask her a number of questions proposed by John relating to his communications with her.  Second, the trial court found it improper for the UCSD to have placed a partition that blocked John from seeing Jane as she testified, so that there was no ability for John to confront this witness against him.  Third, the trial court pointed out that John was not provided the alleged victim’s statement or other witness statements before the hearing in order to help him formulate a defense.

UCSD argued to the Court of Appeal that under well-established law, due process does not require a full judicial hearing with right to cross-examine witnesses in order for the university to discipline a student.  Accordingly, it argued that the trial court erred in finding due process principles had been violated.

The appellate court acknowledged that there are few cases defining fair hearing standards for student discipline at private universities.  It then relied heavily on a Fifth Circuit decision, which provides comprehensive parameters in the event a student is facing disciplinary sanctions:

[T]he student should be given the names of the witnesses against him and an oral or written report on the facts to which each witness testifies.  He should also be given the opportunity to present to the Board [of Education], or at least to an administrative official of the college, his own defense against the charges and to produce either oral testimony or written affidavits of witnesses in his behalf.  If the hearing is not before the Board directly, the results and findings of the hearing should be presented in a report open to the student’s inspection.  If these rudimentary elements of fair play are followed in a case of misconduct of this particular type, we feel that the requirements of due process of law will have been fulfilled.

The Court noted that it had concerns that UCSD’s procedure has great potential to be unfair to a student accused of violating the Sex Offense Policy.  It was most troubled by the limits placed on the respondent’s opportunity to cross-examine the complainant, especially in response to the complainant’s hearing testimony as well as by a procedure that prohibits a respondent from receiving all information that may have a bearing on the complainant’s credibility. 

However, the Court found that while UCSD’s procedures were not perfect, UCSD provided John with a full opportunity to present his defenses, but he chose not to utilize the opportunities he was provided.  Specifically, he declined the opportunity to present information through his own testimony at the hearing, declined to call any witnesses, declined the opportunity to submit additional questions at the hearing after being invited to do so, and declined to give a closing statement.  According to the Court, the fact that John’s strategy did not prove successful does not undermine the fairness of the hearing, especially where he did not take advantage of the opportunities presented to him.

Finally, the Court found that UCSD’s sanctioning of John was not an abuse of discretion.  The Panel was not authorized to sanction John and merely made a recommendation to the relevant Dean.  That Dean sanctioned John in the first instance and did so per the applicable sanctioning guidelines, which required a minimum one-year suspension for his violation.   The slight increase (one-quarter) in the length of that suspension levied by the Council of Provosts after John’s appeal was also not an abuse of discretion.

John Doe v. Regents of the University of California (2016) __Cal.Rptr.3d__ [2016 WL 6879293].  

Note: There is some tension between due process litigation in sexual misconduct cases and the U.S. Department of Education’s guidance regarding Title IX as set out in its Dear Colleague Letters.  For example, the trial court in this case disagreed with UCSD’s procedures for cross-examination of the complainant while the Department of Education has issued specific guidance cautioning against allowing a respondent to directly cross-examine a potential victim.  The appellate court acknowledged that UCSD employed the very cross-examination technique (questions from the respondent to the complainant directed through the panel) suggested in a prior federal district court case.  Yet, it was still troubled by the limits placed on the respondent’s opportunity to cross-examine the complainant.  This area is quickly evolving and will likely continue to do so given the anticipated shift in the Department of Education’s policies during the next administration.  We will continue to keep you updated on these developments.

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