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California Supreme Court:
Accused Student Has No Right of Cross-Examination
Groban’s Opinion Reverses Court of Appeal Decision Mandating Opportunity for Live Questioning of Witnesses At Disciplinary Hearing of Student Accused of Grabbing, Shoving Girlfriend
By a MetNews Staff Writer
A student at a private university accused of intimate partner violence does not have a right to confrontation at an administrative hearing by the alleged victim and other witnesses, the California Supreme Court held yesterday in a unanimous opinion.
Justice Joshua P. Groban wrote:
“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.”
He continued:
“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.”
2020 Decision
The opinion reverses a May 28, 2020 decision by Div. Eight of this district’s Court of Appeal. There, then-Presiding Justice Tricia A. Bigelow (now retired), wrote for the majority in reversing Los Angeles Superior Court Judge Amy D. Hogue’s denial of a petition for a writ of administrative mandamus sought by expelled University of Southern California (“USC”) student Matthew Boermeester.
Boermeester was accused of shoving and grabbing a female student with whom he had an “on and off” romantic relationship. The defense was that the two were merely “roughhousing.”
“We conclude USC’s disciplinary procedures at the time were unfair because they denied Boermeester a meaningful opportunity to cross-examine critical witnesses at an in-person hearing,” Bigelow wrote, saying that such a right is “supported by caselaw.” She elaborated:
“…In a case such as this one, where a student faces a severe sanction in a disciplinary proceeding and the university’s decision depends on witness credibility, the accused student must be afforded an in-person hearing in which he may cross-examine critical witnesses to ensure the adjudicator has the ability to observe the witnesses’ demeanor and properly decide credibility.”
Justice John Shepard Wiley Jr. protested in his dissent:
“I would not intrude on USC’s decision making, which was procedurally proper and is supported by substantial evidence.”
Legislation Noted
In yesterday’s opinion, Groban noted that Senate Bill No. 493 was enacted, creating legislation that went into effect on Jan. 1, 2021. It spells out procedures to be utilized both by public universities (subject to due-process requirements) and private ones that receive state funds (which are bound by the common-law doctrine of fair procedure) in conducting hearings relating to sexual violence or harassment.
The jurist remarked:
“Senate Bill 493 does not apply here since the incident itself and USC’s subsequent investigation of the incident occurred prior to Senate Bill 493’s effective date. We nevertheless find it noteworthy that the statute does not require universities to conduct live hearings featuring cross-examination of the accuser and other witnesses.”
He pointed out that both SB 493 and federal Title IX regulations “give universities wide latitude in determining the precise nature of their disciplinary proceedings.”
(Title IX of the Education Amendments of 1972 applies to educational institutions receiving federal funds, prohibiting those institutions from permitting gender discrimination).
“We… emphasize that, because neither Senate Bill 493 nor the current or proposed Title IX regulations apply to this matter, they are not dispositive,” Groban said.
1974 Decision
He said that judicially mandating live cross-examination (in-person or by videoconferencing) would contravene the state Supreme Court’s 1974 pronouncement in Pinsker v. Pacific Coast Society of Orthodontists that “fair procedure does not compel formal proceedings with all the embellishments of a court trial” and that courts must avoid creating fixed procedures to be followed in all instances.
The justice declared:
“[P]rivate universities must comply with the fair procedure doctrine by affording accused students reasonable notice of the charges and a meaningful opportunity to respond before disciplining them. When crafting the precise procedures necessary to provide a meaningful opportunity to respond, however, a private university must balance competing interests, including the accused student’s interests in a fair procedure and completing a postsecondary education, 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 sexual misconduct or intimate partner violence without having to divert too many resources from its main purpose of education.”
He added:
“It is therefore appropriate to give private universities broad discretion in formulating their disciplinary processes to ensure that they not only provide the accused student a meaningful opportunity to be heard, but also embolden victims to report incidents of sexual misconduct or intimate partner violence, encourage witnesses to participate in the disciplinary process, and allow the private university to conserve its resources so that it can remain focused on its primary mission of providing a postsecondary education.”
Anonymity Accorded
Bigelow identified Boermeester as “a member of the USC football team, who kicked the game-winning field goal for USC at the 2017 Rose Bowl” and Groban noted he was “a member of” USC’s football team. Neither jurist identified the alleged victim other than by the pseudonym “Jane Roe.”
The Court of Appeal’s opinion says in a footnote:
“Although Jane Roe has identified herself to the public in the events at issue, we will continue to use a pseudonym or initials to refer to Roe and other witnesses in this opinion. (Cal. Rules of Court, rule 8.90.)” Groban echoed, in a footnote:
“Like the Court of Appeal, we refer to Roe and the other witnesses in a manner that protects their privacy. (Cal. Rules of Court, rule 8.90.)”
Neither Bigelow nor Groban explained how the alleged victim, Zoe Katz, retains a privacy interest given that she has been widely identified in news accounts and made public statements.
Times Report
Among such reports is that appearing in the July 30, 2017 issue of the Los Angeles Times, saying:
“The girlfriend of former USC kicker Matt Boermeester said Sunday that the Title IX investigation that led to his removal from the school’s football team was ‘horrible and unjust’ to her and Boermeester.
“Zoe Katz, 22, a senior, said in a two-page statement her attorney emailed to The Times that Boermeester ‘has been falsely accused of conduct involving me.’ Katz confirmed that the statement was hers.”
The article goes on to quote Katz as saying:
“When I told the truth about Matt, in repeated interrogations, I was stereotyped and was told I must be a ‘battered’ woman, and that made me feel demeaned and absurdly profiled. I understand that domestic violence is a terrible problem, but in no way does that apply to Matt and me.”
Rule 890 says that it is intended to provide “guidance on the use of names in appellate court opinions,” setting forth instances where “the reviewing court should consider” using pseudonyms, and containing a catch-all provision.
The case is Boermeester v. Carry, 2023 S.O.S. 2766.
A spokesperson for USC said yesterday:
“The university is pleased with the decision and the California Supreme Court’s clarification of the law on this important issue. The university will continue to put its students first by using a comprehensive disciplinary process that protects the rights and interests of all students.”
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