California Supreme Court Clarifies “Fair Procedure” Required for Student Discipline at Private Educational Institutions

CATEGORY: Special Bulletins
CLIENT TYPE: Private Education
PUBLICATION: LCW Special Bulletin
DATE: Aug 01, 2023

Yesterday the California Supreme Court issued its decision in Boermeester v. Carry, a case involving the expulsion of a student from the University of Southern California (“USC”).  The Court unanimously held that private universities are not required to provide students accused of serious misconduct court-like evidentiary hearings.  Rather, a private educational institution must simply comply with its own procedural rules and, at a minimum, provide students accused of serious misconduct with notice of the allegations and a meaningful opportunity to be heard.

This decision provides long-awaited clarity on key issues involving the student disciplinary process at California private educational institutions.  Public educational institutions, as state actors, must provide due process, a constitutional right, to students who are accused of misconduct and facing disciplinary action.  Private educational institutions must simply provide fair procedure, a more flexible judicially created concept, to students accused of misconduct and facing disciplinary action.


Boermeester was a student at USC and a member of USC’s football and tennis teams.  Jane Roe, who used a pseudonym throughout this case to protect her privacy, was also a student-athlete at USC.  After two USC students observed Boermeester put his hand on Jane Roe’s neck and push her against a wall, they reported the incident to the USC men’s tennis coach.  USC’s Title IX office began an investigation into the alleged incident.  It alerted Boermeester to the allegations and provided him with an opportunity to respond.  However, USC did not allow Boermeester to cross-examine his accuser.  (We previously reported on this matter with a more detailed review of the facts, which can be found here).

USC ultimately expelled Boermeester.  He appealed to the Vice President of Student Affairs, who upheld the decision.  Boermeester then filed suit, alleging, among other claims, that the disciplinary proceedings against him were unfair.

The California Court of Appeal agreed.  It determined that in a situation involving a serious claim of student misconduct, where witness credibility was an issue, a fair procedure demanded the opportunity for cross-examination.  The process need not be the same as in court, but the accused had a right to question witnesses either directly or through counsel.  USC appealed to the California Supreme Court, which agreed to hear the case.

California Supreme Court’s Ruling

The California Supreme Court reversed the Court of Appeal.  It ruled that fair procedure does not obligate cross-examination.  Rather, it requires a private educational institution to afford a student accused of serious misconduct with notice of the charges and a meaningful opportunity to be heard.

The Court explained that requiring private educational institutions to conduct a quasi-judicial hearing with specific procedural requirements would be contrary to the notion of fair procedure, which is flexible.  The Court noted, for example, that private educational institutions must balance competing interests when providing the appropriate fair procedure to student discipline matters.  Those are:

the accused student’s interests in a fair procedure … 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 [misconduct] without having to divert too many resources from its main purpose of education.

Permitting cross-examination in every situation would not always appropriately balance these opposing factors.

The Court also considered that the California legislature recently enacted Senate Bill 493, which sets forth procedures to ensure fairness to both the accused student and the accuser in instances of sexual violence on university campuses. This bill applies to both public and private universities that receive state funding.  Notably, SB 493 does not require cross-examination of the accuser and other witnesses.

Note: The case did not specifically address California private K-12 schools.  However, “fair procedure,” the process at issue in this case, has long been the standard for California private K-12 schools. In light of this decision, all private educational institutions should therefore consider reviewing and updating their student disciplinary procedures.

LCW is well suited to help our clients navigate student disciplinary procedures. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.

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