Live Hearing With Cross-Examination Of Witnesses Was Not Required In Student Disciplinary Case Where Witness Credibility Was Not Central To Investigator’s Findings

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Dec 22, 2021

UC Davis student Jane Roe and her roommate shared a room in a residence hall, and John Doe lived on another floor of the same building. On December 2, 2017, a group of students including John, were socializing in Jane’s dorm room. Jane became intoxicated, vomited, and fell asleep in the residence hall bathroom. Later that evening, John and Jane had sex. On January 26, 2018, 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 prohibits sexual misconduct, including sexual assault. The policy also defines consent as “affirmative, conscious, voluntary, and revocable.” Wendy Lilliedoll, Office of the Provost and Executive Vice Chancellor conducted an investigation in accordance with the UC policy.

After her investigation was complete, Lilliedoll sent the parties a summary of the evidence gathered for 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 found 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.

The Office of Student Support and Judicial Affairs (OSSJA), which decides whether any policy violations occurred, agreed with the investigator’s findings.  OSSJA determined the appropriate sanction was dismissal. John requested an administrative appeal. Notices were sent to the parties about the hearing. Jane’s notice stated she did not have to attend the appeal hearing, and she did not.

After the appeal hearing, the hearing officer upheld the findings of the original decision and 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 argued the proceedings were unfair because a single person (Lilliedoll) investigated the allegations and made findings of fact. John also argued that he was denied fair process, relying on recent case law that held a fair process in university adjudication proceedings required a live hearing with cross-examination where witness credibility is at issue and the disciplinary sanction is severe. John also alleged Lilliedoll was biased and there was no substantial evidence that Jane was incapacitated.

The Court of Appeal rejected John’s claim that there was no substantial evidence that Jane was incapacitated due to alcohol and a reasonable person in John’s position should have known that. The Court of Appeal agreed with the university that John’s account of the events was sufficient enough to establish Jane was unable to consent. As a result, witness credibility was not central to the adjudication, and the procedures outlined in the recent case law of a live hearing with the opportunity to cross-examine adverse witnesses were not required. Additionally, the accounts of eyewitnesses provide substantial evidence that Jane lacked the capacity to consent.

The Court of Appeal also rejected John’s claim that Lilliedoll did not conduct a fair, thorough, and impartial investigation as required by UC policy because Lilliedoll rejected his theory that Jane was motivated to fabricate her allegations. The Court of Appeal held John had a right to an impartial investigator, not a right to have his theory that Jane fabricated her allegations accepted by the investigator.

The Court of Appeal also rejected John’s claim that Lilliedoll rejected evidence favorable to John. The Court of Appeal pointed to the appeal hearing officer’s findings that Lilliedoll thoroughly considered all the evidence, including John’s own account of the events, to reach her conclusion that Jane was incapacitated. John was also given several opportunities to explain his version of the events to Lilliedoll.

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.

View More News

Public Education Matters
Student Could Not Establish That Disciplinary Process For Dating Violence Was Unfair
Public Education Matters
Court Of Appeal Instructs Arbitrator To Terminate Faculty Member’s Employment