Doe v. Allee, 010419 CAAPP2, B283406

Docket Nº:B283406
Opinion Judge:WILLHITE, Acting P. J.
Party Name:JOHN DOE, Petitioner and Appellant, v. KEGAN ALLEE, Ph.D., et al., Respondents.
Attorney:Hathaway Parker, Jenna E. Parker and Mark M. Hathaway for Petitioner and Appellant. Young & Zinn, Julie Arias Young, Karen J. Pazzani; Cole Pedroza, Kenneth R. Pedroza and Cassidy C. Davenport for Respondents.
Judge Panel:We concur: COLLINS, J., DUNNING, J.
Case Date:January 04, 2019
Court:California Court of Appeals

JOHN DOE, Petitioner and Appellant,


KEGAN ALLEE, Ph.D., et al., Respondents.


California Court of Appeals, Second District, Fourth Division

January 4, 2019

APPEAL from a judgment of the Superior Court of Los Angeles County No. BS157112, Howard L. Halm, Judge. Reversed.

Hathaway Parker, Jenna E. Parker and Mark M. Hathaway for Petitioner and Appellant.

Young & Zinn, Julie Arias Young, Karen J. Pazzani; Cole Pedroza, Kenneth R. Pedroza and Cassidy C. Davenport for Respondents.

WILLHITE, Acting P. J.

John Doe, formerly an undergraduate student at the University of Southern California (USC), appeals from the trial court's denial of his petition for writ of administrative mandate, by which Doe sought to set aside his expulsion. (Code Civ. Proc., § 1094.5 (§ 1094.5).) Doe was expelled after respondents Kegan Allee, Ph.D., sued in her official capacity as Title IX Investigator for USC, 1 and, ultimately, Ainsley Carry, Ed.D., in his official capacity as USC's Vice Provost for Student Affairs, found that Doe engaged in nonconsensual sex with another USC student, Jane Roe, 2 in violation of the university's Student Conduct Code.

Doe argues that he was denied a fair hearing because respondents (principally Dr. Allee) were biased, and because USC's student disciplinary procedure is fundamentally flawed, in that it provides no mechanism for a party accused of sexual misconduct to question witnesses before a neutral fact finder vested with power to make credibility determinations. While we conclude that Doe failed to meet his burden of proving respondents were actually biased against him, we nonetheless conclude that USC's disciplinary procedure failed to provide a fair hearing, In that regard, we hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments. USC's disciplinary review process failed to provide these protections and, as a result, denied Doe a fair hearing. On that basis, we reverse.3


I. USC's Sexual Misconduct Policy

USC's Student Conduct Code (SCC)4, prohibits nonconsensual “sexual misconduct.”5 The SCC prohibits sexual activity if “[t]here is no affirmative, conscious and voluntary consent, or consent is not freely given.” (§ E.2.III.) “Affirmative consent” means a conscious and voluntary agreement to engage in sexual activity. It requires each party “to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence.... Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.... [T]he fact of past sexual relations between [the persons involved], should never by itself be assumed to be an indicator of consent.” Finally, it is not a valid excuse that the accused believed the complainant affirmatively consented to the sexual activity if that belief “arose from the... recklessness of the accused, ” or the accused failed to “take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.” (§ E.2 III.4.)

II. Investigations and Discipline in Cases Involving Allegations of Student Sexual Misconduct

Student sexual misconduct complaints are directed to USC's Title IX Office. If a student chooses to proceed with an investigation, a trained Title IX investigator is assigned to investigate.

1. Investigation and Adjudication

The SCC guarantees students a “fair, thorough, neutral and impartial investigation of the incident.” Both the student who reports misconduct and the accused student have equal rights throughout the investigation and appeal process. (§§ 17.03(D), (M).) The burden of proof rests at all times with the reporting party to show, by a preponderance of evidence, a violation of the SCC. (§ 17.04(D).)

At the outset of a Title IX investigation, the accused student is given written notice that a complaint has been filed, specifying the alleged violation and the basis for the charge. (§ 17.03(A).) The investigator meets separately with the reporting student and the accused student, to explain their rights, the investigative and appeals processes, and to identify available resources. (§§ 17.02(B), 17.03(E).) At these meetings each party may present relevant information, including the names of witnesses and video or documentary evidence, and any information a party believes is relevant. (§ 17.02(C).) The parties may read the investigator's summaries of interviews and respond to that information. (§§ 17.03(F), (G).) Each party may bring an advisor to the meetings to serve in a solely supportive role (i.e., the advisor may not speak or disrupt the party's meeting with the investigator). (§ 17.02(F).) The parties may provide the investigator with “supplemental information” up to the point at which the investigator's findings have been made. They may also, upon request, inspect documents and information gathered during the investigation. (§§ 17.02(C), 17.03(F).) The investigator may conduct additional investigation and witness interviews “as appropriate, ” and review available pertinent evidence. (§ 17.02(D).) No in person hearing is conducted and the accused student has no right to confront his or her accuser. (§ 17.03.) Once the investigation is complete, the Title IX investigator makes findings of fact and concludes, based on a preponderance of evidence, whether the accused student violated the SCC. If so, in consultation with the Title IX Coordinator, the investigator imposes the sanction that he or she deems appropriate. (§§ 17.02(D), 17.06(A).) Sanctions for sexual misconduct range from disciplinary warnings to suspension, expulsion or revocation of a degree. (§§ 17.06(E)(1)-(16).)

2. Appeal

Either party may appeal the result of the Title IX investigation within two weeks of receipt of the investigator's written decision. (§ 17.07(A), (F), (I).) Appeals are reviewed by the Student Behavior Appeals Panel (SBAP), an anonymous three-member panel appointed by the Vice Provost for Student Affairs (Vice Provost), trained to hear sexual misconduct cases, at least one member of which is a faculty member. (§ 17.07(G).) The SBAP is advised by a non-voting individual trained in USC's procedures and Title IX requirements. (§ 17.07(I).) Appeals are decided solely on the basis of documents. No oral argument is permitted.6 (§ 17.07(A), (E).) The SBAP may exclude from consideration any evidence it deems inadmissible, including character evidence. (§ 17.07(G).)

On appeal, the SBAP may: uphold the Title IX investigator's decision; remand for further investigation; reverse specific factual findings which are not supported by the evidence in light of the whole record; reverse the investigator's conclusions regarding policy violations, if not supported by the findings; or increase or decrease a sanction. If new evidence has been submitted which the SBAP determines should be considered, it may return the matter to the investigator for reconsideration in light of that evidence. If the SBAP determines that procedural errors occurred that materially impacted the fairness of the investigation, it may return the matter to the investigator with instructions to remedy the error. (§ 17.07 (K).) The SBAP may not substitute its opinion as to credibility for that of the investigator, nor may it make new factual findings. (§ 17.07(L).) The SBAP may not reweigh evidence and, if the record contains substantial evidence to support a finding of fact, must defer to that finding. The SBAP may not change a sanction unless it is unsupported by the findings or grossly disproportionate to the violation committed. The SBAP may not substitute its judgment for that of the investigator because it disagrees with the investigator's findings or the sanction imposed. (Ibid.)

Once the SBAP concludes its review, its recommendation is forwarded to the Vice Provost, who has unfettered discretion to accept or modify that recommendation based on his or her review of the record. The Vice Provost's decision is final. (§ 17.07(H), (M).)

III. The Factual Background

1. The October 24, 2014 Incident and Roe's Report7

Shortly after midnight on October 24, 2014, Doe, a...

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