Cross-Examination Of Witnesses Not Always Required In Student Disciplinary Hearing

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Dec 30, 2021

UC Davis students Jane Roe and John Doe lived in a campus residence hall.  On December 2, 2017, Jane, John, and a group of students were socializing in Jane’s dorm room.  Jane became intoxicated, vomited, and fell asleep in the bathroom.  Later that evening, John and Jane had sex.  About two months later, Jane reported to the Title IX Office that John had nonconsensual sexual intercourse with her.

The 2016 UC Policy on Sexual Violence and Sexual Harassment requires “affirmative, conscious, voluntary, and revocable” consent.  Wendy Lilliedoll, Office of the Provost and Executive Vice Chancellor conducted an investigation in accordance with the UC policy.  She sent the parties a summary of the evidence gathered as part of the investigation.  In response, John made several written comments to Lilliedoll’s evidence summary and Lilliedoll followed up with the comments that she found were material.

Lilliedoll concluded that Jane was severely intoxicated, which affected her ability to recall and observe relevant events.  Lilliedoll also found John motivated to exaggerate events regarding the issue of consent because there were serious consequences for violating UC policy.  Lilliedoll recommended finding was that Jane did not provide consent, a reasonable person in John’s position should have understood her condition, and that John did not take reasonable steps to evaluate Jane’s consent.  John, therefore, violated the UC Policy when he had sex with Jane.  The Office of Student Support and Judicial Affairs, which decides whether any policy violations occurred, agreed with the investigator’s findings and expelled John.  He appealed.  Jane did not participate in the appeal as permitted by UC Policy.

The hearing officer upheld the findings but modified the sanction by setting aside the dismissal and imposing a two-year suspension and exclusion from university housing.  John submitted a second-level appeal to the Assistant Vice Chancellor of Student Affairs, who denied the appeal.

On February 21, 2019, John Doe filed a petition for writ of administrative mandate and declaratory relief.  John alleged Lilliedoll was biased and that substantial evidence did not support the finding that Jane was incapacitated.  He also argued the University denied him a fair process because he could not cross-examine Jane.

The Court of Appeal rejected John’s claim that Liliedoll was biased and that there was no substantial evidence that Jane was incapacitated.  Lilliedoll conducted a fair, thorough, and impartial investigation as required by UC policy.  She thoroughly considered all the evidence, including John’s own, a repeated account of the events, to reach her conclusion that Jane was incapacitated.  Liliedoll simply rejected his theory that Jane was motivated to fabricate her allegations.  The Court of Appeal also held that John received a fair process.  The Court of Appeal agreed with the university that John’s account of the events, along with those of eyewitnesses, established that Jane was unable to consent.  As a result, witness credibility was not central to the adjudication and therefore John did not have a right to cross-examine adverse witnesses.

Accordingly, the Court of Appeal denied John’s writ of the petition.

Doe v. Regents of the Univ. of California (2021) 70 Cal.App.5th 494.


This case involved a public college and arose in the context of Title IX.  Still, private K-12 schools, colleges, and universities in California – even where Title IX does not apply – must provide a fair process (i.e., fundamental fairness) to students who are accused of misconduct and facing disciplinary action.  This case highlights the necessity to investigate thoroughly, provide the accused the opportunity to respond to the allegations, and follow internal procedures.

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