Boermeester v. Carry

• Docket Number: S263180
• Decision Date: 31 July 2023
• Citation: Boermeester v. Carry, 15 Cal.5th 72, 532 P.3d 1084, 311 Cal.Rptr.3d 24 (Cal. 2023)
• Parties: Matthew BOERMEESTER, Plaintiff and Appellant, v. Ainsley CARRY et al., Defendants and Respondents.
• Court: California Supreme Court

15 Cal.5th 72

532 P.3d 1084

311 Cal.Rptr.3d 24

Matthew BOERMEESTER, Plaintiff and Appellant,

v.Ainsley CARRY et al., Defendants and Respondents.

S263180

Supreme Court of California.

July 31, 2023

Hathaway Parker, Mark M. Hathaway and Jenna E. Parker, Los Angeles, for Plaintiff and Appellant.

Cynthia P. Garrett for Families Advocating for Campus Equality as Amicus Curiae on behalf of Plaintiff and Appellant.

Horvitz & Levy, Beth J. Jay, San Francisco, Jeremy B. Rosen, Burbank, Mark A. Kressel, Encino, Scott P. Dixler, Sarah E. Hamill; Young & Zinn, Julie Arias Young and Karen J. Pazzani, Los Angeles, for Defendants and Respondents.

Rob Bonta, Attorney General, Matthew Rodriquez, Chief Assistant Attorney General, Michael L. Newman, Assistant Attorney General, Sarah E. Belton and Alexis M. Piazza, Deputy Attorneys General, for the Attorney General of California as Amicus Curiae on behalf of Defendants and Respondents.

Gibson, Dunn & Crutcher, Theane Evangelis, Jeremy S. Smith, Los Angeles, Andrew M. Kasabian; Amy Porter ; and Brenda Adams for California Women's Law Center, Equal Rights Advocates, Kylee O., Maryam I., Claudia R., Alliance for HOPE International, Atlanta Women for Equality, Child Abuse Forensic Institute, Center for Community Solutions, Community Legal Aid SoCal, Domestic Abuse Center, Family Violence Appellate Project, Family Violence Law Center, Feminist Majority Foundation, Law Foundation of Silicon Valley, Legal Aid at Work, Legal Voice, Los Angeles Center for Law and Justice, National Association of Women Lawyers, National Women's Law Center, Public Counsel, Rural Human Services/Harrington House, San Diego Volunteer Lawyer Program, Southwest Women's Law Center, Texas Association Against Sexual Assault, Walnut Avenue Family & Women's Center, WEAVE, Inc., and Women's Law Project as Amici Curiae on behalf of Defendants and Respondents.

O'Melveny & Myers, Apalla U. Chopra, Los Angeles, Marni Barta, Allan W. Gustin, Newport Beach, and Anton Metlitsky for California Institute of Technology, Chapman University, Claremont McKenna College, Occidental College and Pepperdine University as Amici Curiae on behalf of Defendants and Respondents.

Arent Fox, Lowell C. Brown and Candace C. Sandoval, Los Angeles, for California Hospital Association as Amicus Curiae.

Opinion of the Court by Groban, J.

In recent years, courts in California and throughout the nation, as well as the California Legislature and the United States Department of Education's Office for Civil Rights(OCR), have attempted to determine the precise procedures universities¹ must utilize when investigating and disciplining students accused of sexual misconduct or intimate partner violence.This judicial and legislative activity likely began in response to a "Dear Colleague" letter relating to title IX of the Education Amendments of 1972( 20 U.S.C. § 1681 et seq. )(Title IX) that the OCR issued in 2011, which gave guidance on the specific procedures federally funded universities should implement when investigating sexual harassment allegations.The letter sought to stymie the rising tide of sexual assault on campuses by making it easier for victims to prove their claims in university disciplinary actions.Though the letter was rescinded in 2017, students accused of sexual misconduct or intimate partner violence continue to challenge many of the disciplinary procedures universities have since implemented, asserting that these procedures create an unfair process which may result in universities mistakenly imposing severe sanctions upon accused students, including expulsion.

In this case, respondents University of Southern California and its Vice President of Student Affairs, Ainsley Carry(collectively, USC) expelled appellantMatthew Boermeester from the private university after conducting a two-month investigation and determining that he violated USC's policy against engaging in intimate partner violence.Boermeester filed a petition for a writ of administrative mandate under Code of Civil Procedure section 1094.5( section 1094.5 ), alleging that he was deprived of the "fair trial" required by that section.A divided Court of Appeal agreed, with the majority concluding that "USC's disciplinary procedures ... were unfair because they denied Boermeester a meaningful opportunity to cross-examine critical witnesses at an in-person hearing."(Boermeester v. Carry(June 4, 2020, B290675)review granted and opn. ordered nonpub.Sept. 16, 2020, S263180.)More specifically, the Court of Appeal majority determined that USC's disciplinary procedures were unfair because USC should have afforded Boermeester the opportunity to attend a live hearing at which he or his advisor-attorney would directly cross-examine the alleged victim, Jane Roe,² as well as the third party witnesses, or indirectly cross-examine them by submitting questions for USC's adjudicators to ask them at the live hearing.(Boermeester v. Carry , supra , B290675.)The Court of Appeal majority made clear that the witnesses need not be "physically present to allow the accused student to confront them" and could instead appear "by videoconference, or by another method that would facilitate the assessment of credibility."(Ibid .)Nevertheless, the Court of Appeal majority believed that accused students must be able to contemporaneously hear and observe the real-time testimony of the accuser and other witnesses at a live hearing to have a "meaningful opportunity to respond to the evidence against [them]" and ask follow-up questions.(Ibid .)

We hold that, though private universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, they are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually.Requiring private universities to conduct the sort of hearing the Court of Appeal majority envisioned would be contrary to our long-standing fair procedure admonition that courts should not attempt to fix any rigid procedures that private organizations must "invariably" adopt.( Pinsker v. Pacific Coast Society of Orthodontists(1974)12 Cal.3d 541, 555, 116 Cal.Rptr. 245, 526 P.2d 253( Pinsker II ).)Instead, private organizations should "retain the initial and primary responsibility for devising a method" to ensure adequate notice and a meaningful opportunity to be heard.( Ibid. )We accordingly reverse the Court of Appeal's judgment.

I.BACKGROUND

This matter comes to us on appeal from a judgment on a petition for a writ of administrative mandate made pursuant to section 1094.5.Our recitation of the facts is accordingly derived solely from the administrative record.( Sierra Club v. California Coastal Com.(2005)35 Cal.4th 839, 864, 28 Cal.Rptr.3d 316, 111 P.3d 294;accord, Pomona Valley Hospital Medical Center v. Superior Court(1997)55 Cal.App.4th 93, 101, 63 Cal.Rptr.2d 743.)

A. USC's Policies

The USC student conduct code in effect at the time of the incident in question prohibited students from engaging in intimate partner violence, which it defined as "violence committed against a person ... with whom [the accused student has] had a previous or current dating, romantic, intimate, or sexual relationship."Violence, in turn, was defined as "causing physical harm to the person."Upon receiving a report of intimate partner violence or other prohibited conduct, USC's Title IX office would conduct an intake interview of the accuser or alleged victim.³If USC decided to open a formal investigation, it would notify the accuser and the accused student of the investigation and the alleged policy violations.USC would also assign a Title IX investigator to the matter, who would gather facts and interview witnesses.Upon completion of the investigation, USC would provide the accuser and the accused student "individual and separate" opportunities to review the gathered evidence.After reviewing the evidence, the accuser and the accused student would be given "individual and separate" opportunities to respond to the evidence through an "evidence hearing" held at the Title IX office and conducted by USC's Title IX coordinator.USC would also provide the accuser and the accused student the opportunity to submit questions for the Title IX coordinator to ask one another at their separate hearings.If either student shared new information during their separate hearing, USC would provide the other student an opportunity to review and respond to the new evidence.

At the conclusion of the evidence hearings, the Title IX investigator would prepare a summary administrative review (SAR) which, using a preponderance of the evidence standard, would make factual findings and conclusions as to whether the accused student violated one or more of USC's policies.If the SAR found that a policy was violated, the SAR would be forwarded to a misconduct sanctioning panel, composed of one undergraduate student and two staff designated by the provost and senior vice president for academic affairs, to impose sanctions.Either the accuser or the accused student could file a written appeal.The appeal would be reviewed by an appellate panel composed of three individuals appointed by the vice president for student affairs.The vice president of student affairs had the discretion to accept or reject the appellate panel's recommendations and made the final decision.Throughout the process — from investigation to final adjudication — both the accuser and accused student were allowed to receive support and assistance from an advisor of their choice, who could be an attorney.

B.The Incident

Boermeester and Roe were students at USC who had an " ‘on and off’ " romantic relationship from approximately March 2016 to October 2016.Although they were no longer in a...