Opinion
A155425
05-08-2020
JOHN DOE, Plaintiff and Appellant, v. SAINT MARY'S COLLEGE OF CALIFORNIA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSN16-1949)
In 2016, John Doe was expelled from Saint Mary's College of California (Saint Mary's or the College) because its Disciplinary Hearing Board (DHB) concluded he violated the school's policy against sexual assault by briefly continuing to engage in intercourse with another student, Sally Roe, after she withdrew her consent and asked him to stop. John petitioned the trial court for a writ of administrative mandate to overturn the DHB's decision. In this appeal from the judgment upholding his expulsion, John contends that the DHB's decision lacks substantial evidence and he was denied due process and a fair hearing. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Saint Mary's Policies
The relevant policies are contained in Saint Mary's 2015-2016 Undergraduate Student Handbook (Handbook). The primary policy at issue—the Sexual Assault and Sexual Misconduct Policy (Sexual Assault Policy)—applies when a student is accused of sexual misbehavior. It defines "Sexual Assault" as "engaging in sexual intercourse with any person without that person's consent. Sexual intercourse is the penetration, however slight, of the vagina, or anus with any object or body part and of the mouth with a sexual body part or sexual object." The Policy states that a student who engages in sexual assault will be expelled. The Policy also discusses the concept of "Consent," stating that "[r]efusal to consent does not have to be verbal; it can be expressed with gestures, body language or attitude. A prior sexual history between the complainant"—the accuser—"and respondent"—the accused student—"does not constitute consent."
The policies explain the procedures that are to be followed when a student is accused of sexual misbehavior. Upon receiving a report of such misconduct, the Dean of Students or designee conducts a preliminary investigation, including separate meetings with the complainant and respondent, to determine if a disciplinary hearing is warranted. At these meetings, the discipline process is explained, and the complainant and respondent may submit a written statement and list of witnesses who may have relevant information. Both parties are entitled to choose "an advisor who will assist the individual through the student discipline process." If a hearing is deemed appropriate, the respondent has "[t]he right to receive written notice of charges accepted by the Office of Community Life."
The Dean of Students or designee is responsible for "prepar[ing] the case to be heard by a [DHB]." The DHB is composed of three members picked from a larger pool of people, appointed by the Dean of Students, "who have been trained to hear" cases involving sexual misbehavior. The Dean of Students or designee acts as a "facilitator" at the hearing. Although the DHB relies primarily on the investigation and witness interviews, it has the opportunity to ask "clarifying questions" of the complainant and respondent. The complainant and respondent are entitled to present a "closing statement," whose "purpose . . . is to provide the DHB with information that the complainant or respondent would like the DHB to consider in making its decision regarding responsibility."
After the hearing, the DHB meets privately to determine whether, "[u]sing a preponderance of the evidence standard, it is more likely than not that the alleged conduct did occur and the respondent is responsible for a violation of the Code or College policy." If so, the "minimum sanctions" for such a violation—here, expulsion—must be imposed, although the DHB is authorized to impose "more severe" sanctions "depending on the circumstances of a particular case."
The respondent may appeal an adverse DHB decision to an Appeal Board on the grounds that (1) a "significantly prejudicial" procedural error occurred; (2) new evidence is available that "may materially alter the outcome"; or (3) the sanction imposed is too severe. The Appeal Board is composed of the Dean of Students as chair and two members of the DHB pool who did not sit on the original panel. The respondent may submit a written statement, but the Appeal Board does not reconsider the DHB's credibility determinations.
B. Sally's Complaint and the College's Investigation
In spring 2016, John and Sally began what both agreed was a "sexual, romantic" relationship, and the two had sexual intercourse on three occasions in late April of that year. Only the last occasion, on April 25, is at issue in this appeal.
In addition to finding that John committed sexual assault in violation of the Sexual Assault Policy, the DHB also found that he engaged in sexual misconduct and dating violence based on separate acts with Sally. The trial court concluded that insufficient evidence supported the latter two findings and issued a writ directing Saint Mary's to set them aside, although it recognized "this [was] a fairly hollow 'victory' for John," since the sexual-assault finding independently required his expulsion. Saint Mary's did not appeal from this aspect of the court's decision, and we do not discuss the two underlying incidents.
While talking to a friend on April 29, Sally realized that she had been assaulted by John during their April 25 sexual encounter. On May 2, Sally reported John to a college administrator. Sally told the administrator that she and John began to have intercourse, "and at some point, [she] said, '[S]top, ouch, it hurts,' and John continued to engaged in sexual intercourse with [her]." Sally also said "that at some other point, John 'pulled out' and [she] was bleeding vaginally. Sally reported that John continued to engage in sexual intercourse with [her] at that point."
Sally's complaint was escalated to Megan Karbley, the Director of Community Life, who reported to the Dean of Students, Dr. Evette Castillo Clark. Karbley was the member of the Office of the Dean of Students responsible for overseeing Title IX student sexual-assault complaints, which she was certified to investigate. On May 3, the day after Sally reported John, Karbley sent him a letter stating that her office had received a report of "inappropriate physical and/or verbal contact" between him and Sally. Karbley notified John that she had scheduled a meeting so they could "review this letter, its parameters, and discuss next steps," and referred him to the Handbook for more information.
"Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) is a federal civil rights law that prohibits discrimination based on gender in education programs or activities that receive federal funding. (See 34 C.F.R. § 106.1 et seq. (2019).)" (Doe v. Occidental College (2019) 40 Cal.App.5th 208, 217, fn. 2 (Occidental II).) The law "does not specifically address sexual assault, but the United States Supreme Court has held that a school may be liable for discrimination . . . if it mishandles a student's sexual assault claim." (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1039, fn. 1 (Allee).)
On May 5, John signed and dated two documents in connection with this initial meeting with Karbley. In the first document, entitled "Initial Meeting with Respondent," he initialed several statements indicating his "understand[ing] and accept[ing] the conditions of [each] statement," including that (1) he had notice of the complaint, which alleged sexual assault in violation of the Sexual Assault Policy; (2) the student discipline process was reviewed with him and he had a copy of the Handbook outlining that process; (3) he could "have an advisor of [his] choosing to assist [him] during the student discipline process"; and (4) he "had an opportunity to ask questions about the student discipline process and [he would] promptly contact the Dean of Students or designee" if he had other questions.
The second document, entitled "Role of an Advisor in the Student Discipline Process," detailed the responsibilities of an advisor, explaining that both complainants and respondents were entitled to an advisor to "assist them through the discipline process, specifically the [DHB]. An advisor may be a faculty, staff[,] or student member of the Saint Mary's community, or anyone of [the student's] choosing." This document was signed by John as well as Sule Anibaba, who was trained as an administrative hearing officer and whom John agreed to have serve as his advisor at Karbley's suggestion.
Karbley conducted her investigation over the next few weeks, meeting with John on May 18 and 24 and June 3, and meeting with Sally on May 19 and 23 and June 3. John and Sally submitted written statements setting forth their version of events, and both were able to respond to the other's statement, including by giving their written comments on specific contentions.
John also provided screen shots of text messages between him and Sally during the relevant period, which do not suggest that she was upset or uncomfortable with him. For example, on the night of April 26, John asked if he could come over to Sally's room, and Sally agreed. And around 4:30 p.m. on April 29, the day she realized she had been assaulted by John, Sally asked him if she could hang out with him because her roommate and the roommate's boyfriend were "having sex in [her] room," and John agreed. John later sent Sally a text telling her to "[t]ry to have fun tonight," and around 6:30 p.m. she responded, "Thanks dude." He texted her again that night and the next evening, but she did not respond.
John's petition and opening brief both quote Sally as then texting, "Feel free to come back whenever :)." In fact, Sally said, "Feel free to come by whenever :)." (Italics added.)
On May 26, Karbley sent John a letter notifying him that he was "charged with violating the following section(s) of the Student Code of Conduct," which were listed as the prohibitions against "Sexual Assault," "Sexual Misconduct," and "Dating Violence." Again, the letter directed John to the Handbook for further information, and it stated he could contact Karbley with any questions.
After concluding her investigation, Karbley prepared a report dated June 6 in which she found John and Sally both credible and highlighted the undisputed and disputed facts. As relevant here, the report stated that both students "agree[d] that, during the April 25 incident, [Sally] said, 'ouch, stop, that hurts,' and [John] continued engaging in sexual intercourse with [Sally]," and that "at least once during the April 25 incident, [Sally] was . . . 'hesitant.' " Summarizing the information relating to the alleged sexual assault, the report stated: "[Sally's] and [John's] statements differ regarding the presence of consent for vaginal penetration during all three (3) reported incidents. [Sally] reports being and feeling coerced into continuing vaginal intercourse and touching [John's] penis. [John] denies this." John signed the report, indicating he had "read and reviewed" it.
C. The Hearing and Decision to Expel John
The DHB hearing was held on June 20, 2016. In addition to the three DHB members, Karbley and another subordinate of Clark's, acting as the facilitator, were present throughout the hearing. John and Sally appeared separately, without the other in the room, with John going first and Sally going second. Anibaba did not attend the hearing, but Sally's advisor was present. No audio record of the hearing was made, although a "recorder" took rough notes of what the various parties said.
John confirmed that the facts Karbley's report characterized as undisputed were correct. The DHB members asked him several questions, most dealing with his understanding of Sally's consent at various points during his sexual activities with her. Explaining his reaction when Sally said, "Ouch, stop," John stated, "I thrusted two more times[,] my body had to catch up with my mind[,] then stopped, then I said let's try again and we did[,] then she said stop[] and I stopped." He did not remember Sally "placing her hand on [his] chest as a way of telling [him] stop," however, as she had claimed during an interview with Karbley. He also testified that when Sally said she was bleeding, he got a flashlight but did not see any blood on either her or himself. John gave a closing statement in which he expressed chagrin that Sally had not conveyed her discomfort to him, concluding, "Regardless of the outcome[,] I just want to bring awareness to other people that this could happen to you and just want to emphasize the importance of communication between parties."
During her appearance, Sally also confirmed that Karbley's report's list of the undisputed facts was accurate. The DHB again focused on the issue of consent in questioning her about her sexual interactions with John. Sally stated that during the April 25 incident she was in physical pain and told John to stop, but he kept going for around "20 seconds." She ultimately had to push him away to get him off her. She also affirmed that she had bled. At the end of the hearing, Sally's advisor read Sally's closing statement, in which Sally discussed the ongoing trauma she experienced.
On July 7, John was notified of the DHB's determination that he had committed sexual assault, sexual misconduct, and dating violence in violation of the Sexual Assault Policy. In support of its determination that John committed sexual assault under the Policy, the DHB observed that the parties did not dispute that during the April 25 incident Sally said, "[O]uch, stop, that hurts," yet John continued to engage in sexual intercourse with her. The DHB also determined that Sally pushed John away while they were having sexual intercourse. The DHB found that Sally withdrew consent when she told John to stop and when she pushed him away, and it concluded that his continued penetration afterward constituted a "nonconsensual 'penetration, however slight, of the vagina' with any object or body part" under the Sexual Assault Policy. John was informed he would be expelled within a week unless he appealed.
John internally appealed the DHB's decision on the ground that "[a] process or procedural error was made that was significantly prejudicial to the outcome of the hearing." He claimed that his acts had been "unjustly and illegitimately" interpreted, as he never intended to harm Sally. John also suggested that the DHB was biased, because "with the media broadcasting the widely controversial 'Stanford Rape' case, . . . it would have been extremely difficult for anyone to look at the facts of [his] case without [a] preconceived opinion on the situation."
In the trial court's words, "during the investigation of this case there was a national controversy about what many perceived to be unduly lenient sentencing of a Stanford student who had been convicted of sexual assault." The Stanford student, Brock Turner, was sentenced a few weeks before the DHB hearing, and John and Sally both mentioned the Stanford case in their closing statements.
The Appeal Board, chaired by Clark, denied the appeal. It explained that "[h]aving good intentions is not an oversight of the DHB and is also not a process or procedural error," emphasizing that the DHB's decision was based on "actual behaviors" to which he admitted. It also concluded that John had not "prove[n] in [his] appeals statement that there was any actual bias of the DHB against [him]" in regard to "the 'Stanford rape case.' "
D. Proceedings in the Trial Court
In October 2016, John filed a petition for a writ of administrative mandate under Code of Civil Procedure section 1094.5. He argued that the College's procedures violated due process, precluding a fair hearing, and that the DHB's decision lacked substantial evidence. The trial court rejected the fair-hearing claim and concluded that sufficient evidence supported the finding of sexual assault but not the findings of sexual misconduct and dating violence. It issued a writ of administrative mandate directing Saint Mary's to vacate its findings of sexual misconduct and dating violence and entered a judgment that otherwise denied John's petition.
All further statutory references are to the Code of Civil Procedure.
II.
DISCUSSION
A. The Standards of Review
"The remedy of administrative mandamus under . . . section 1094.5 ' " 'applies to private organizations that provide for a formal evidentiary hearing.' " ' " (Doe v. Occidental College (2019) 37 Cal.App.5th 1003, 1013 (Occidental I).) Where, as here, a case does not implicate " ' " 'a fundamental vested right,' " we review the [organization's] decision . . . rather than the trial court's decision, " 'applying the same standard of review applicable in the trial court.' " ' " (Ibid.; Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, 1231 (USC II).)
John seeks to overturn the DHB's decision on two grounds under section 1094.5. First, he claims the decision constituted "a prejudicial abuse of discretion" because it rested on an incomplete definition of the offense of sexual assault and lacked substantial evidence. (§ 1094.5, subd. (b).) "Abuse of discretion is established if the [organization] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Ibid.) We review a school's disciplinary decision for substantial evidence (Occidental I, supra, 37 Cal.App.5th at p. 1014), though our review is de novo to the extent John raises legal issues about the interpretation of the governing policies. (See Berman v. Regents of University of California (2014) 229 Cal.App.4th 1265, 1271-1272.)
Second, John claims he was denied "a fair trial." (§ 1094.5, subd. (b).) Although he argues that section 1094.5's requirements "can only be satisfied through adherence to principles of due process," "[t]he ' "fair trial" ' requirement of section 1094.5 is not synonymous with constitutional due process and does not mandate 'a formal hearing under the due process clause.' [Citation.] What is required is simply a 'fair administrative hearing' [citation], which affords the appellant a ' " ' "reasonable opportunity to be heard." ' " ' " (Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1463; see Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1078 (UCSD) ["it is clear that the hearing need not include all the safeguards and formalities of a criminal trial"].) In the context of student discipline, procedural fairness requires that the institution "comply with its own policies and procedures." (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 239 (USC I).) Where, as here, "the evidence is substantially undisputed and the fair trial issue presents a question of law," our review is de novo. (Pinheiro, at p. 1464; see Occidental I, supra, 37 Cal.App.5th at p. 1014.)
B. Substantial Evidence Supports the Finding that John Violated the College's Sexual Assault Policy.
John claims that the finding he committed sexual assault under the Sexual Assault Policy lacks substantial evidence because "(1) the DHB used an incomplete, incorrect definition of the offense; and (2) the definition aside, there was a failure of proof." These arguments lack merit.
As set forth above, the Sexual Assault Policy defines "Sexual Assault" as "engaging in sexual intercourse with any person without that person's consent. Sexual intercourse is the penetration, however slight, of the vagina, or anus with any object or body part and of the mouth with a sexual body part or sexual object." John claims that this provision "defines the wrongful act that comprises the physical components of the offense, or actus reus," and is not, standing alone, a complete definition of the offense. He argues that instead, it must be read in conjunction with the Undergraduate Student Code of Conduct (Conduct Code), which is the first of the three primary sections of the Handbook, the others being "College and Student Life Policies" (which contains the Sexual Assault Policy) and "Academic Policies." Specifically, John claims that the following Code provision "defines the mental state, or mens rea, required for sexual assault" (fn. omitted): " 'Sexual Assault' means an act of hostility, power, control, degradation, and violence . . . not passion. They are attempts to control and degrade others using sex and sexual acts as weapons." (Ellipsis in original.)
Other provisions of the Conduct Code establish that the Sexual Assault Policy, not the Code, governs the determination whether a student has committed sexual assault. First, the Code lists various examples of misconduct and specifically states that the "list does not define misconduct in exhaustive terms and may not describe all potential violations." The Code goes on to describe the listed example of "Non-Consensual Sexual Conduct" as "[e]ngaging in non-consensual sexual conduct with another person as defined in the [Sexual Assault Policy] and in the College's Policy Prohibiting Discrimination, Harassment, including Sexual, and Retaliation." Second, under the heading "Code of Conduct Procedures," the Conduct Code describes the treatment of violations, including the hearing process. In a prefatory paragraph, the Code explains, "The student discipline process governing reports of conduct that is alleged to or may be violations of the [Sexual Assault Policy] and/or violations of the sexual harassment section of the Policy Prohibiting Discrimination, Harassment, including Sexual, and Retaliation can be found in this Handbook." Thus, the Conduct Code clearly conveys that the more specific Sexual Assault Policy (and to the extent applicable, the policy prohibiting various forms of discrimination) governs the definition of sexual assault and the College's procedures for addressing that offense.
In resisting this conclusion, John relies on the principle of statutory interpretation that "provisions must be read together in order to make them 'reasonable and workable' and to avoid making certain provisions a nullity." (Quoting Hoitt v. Department of Rehabilitation (2012) 207 Cal.App.4th 513, 523.) If anything, this principle argues against importing the Conduct Code's definition of sexual assault into the Sexual Assault Policy's definition of that term. Were we to accept John's position that he could not be held responsible absent a showing of "an intent that reflected 'hostility, power, control, degradation, and violence' as well as the use of 'sex and sexual acts as weapons' " (italics in original), the Policy's prohibition of sexual assault would effectively be unenforceable: In most cases, it would be impossible to prove that a student consciously acted with all these objectives.
John also argues that even if the Conduct Code's definition of "Sexual Assault" does not apply, "there was nevertheless a failure of proof." According to him, even under the Sexual Assault Policy's definition, "a student must commit a deliberate act that requires both volition and knowledge," meaning there must be sufficient evidence that he "knowingly and intentionally [engaged in vaginal intercourse with Sally] without her consent." He derives this language from state criminal law governing mens rea, but he provides no authority for the proposition that violations of school conduct policies are subject to the same intent requirements that govern criminal offenses.
Even if we were to assume that the College's definition of sexual assault for purposes of the Sexual Assault Policy requires proof, as would a criminal charge, that a student "knowingly and intentionally" had sexual intercourse without the victim's consent, there was substantial evidence to sustain the DHB's finding. John admitted that he continued to have sexual intercourse with Sally after she told him to stop. He nevertheless complains that the DHB "impose[d] a strict liability standard on [him]," shown by its failure to make a factual finding about the amount of time—two thrusts or 20 seconds—he continued having sex with Sally after she told him to stop. According to him, by not making a finding on this point, the DHB conveyed that all that mattered was that "he did not stop instantaneously (something that would have been physically impossible)." It is true that the DHB did not explicitly reject John's two-thrusts testimony, but that does not alter the fact that Sally's testimony constitutes substantial evidence that John took 20 seconds to stop after she told him to do so. Moreover, John ignores the DHB's finding that he kept having sex with Sally after she "attempted to push [him] off of her," which also supports the conclusion that he knew she no longer consented but intentionally continued to penetrate her anyway.
Finally, John claims that there was insufficient evidence "as to the actus reus element" because "an expression of discomfort followed by [a] pause in the activity is a 'sequence of events' commonly associated with consensual sex[,] . . . not the type of purposeful, non-consensual conduct required for a finding of sexual assault as defined in the Student Code." While we may agree that the evidence did not compel a finding that John committed sexual assault, the possibility that a reasonable factfinder could have interpreted the events at issue differently does not change the fact that substantial evidence supports the DHB's conclusion.
In rejecting John's claim, we recognize that the Sexual Assault Policy is strict and that serious penalties flow from violations, regardless of their degree. But it is meant to protect students, many of whom—like John and Sally—are young and inexperienced. Although the wisdom of the Policy is not before us, we cannot say that Saint Mary's was precluded from insisting that asking one's sexual partner to stop means stop now, not stop soon. On this record, there was more than enough evidence to support the DHB's determination that John engaged in prohibited behavior justifying his expulsion.
C. Saint Mary's Did Not Deny John a Fair Hearing.
John also claims that the College's procedure in this case was fundamentally unfair in five respects. We discuss each in turn.
1. The notice of the charges and allegations
According to John, Saint Mary's provided him with insufficient notice of Sally's allegations and the charges against him. We disagree.
"Generally, a fair procedure requires 'notice reasonably calculated to apprise interested parties of the pendency of the action . . . and an opportunity to present their objections.' " (USC I, supra, 246 Cal.App.4th at p. 240.) This principle requires that " '[a]t the very minimum, . . . students facing suspension . . . must be given some kind of notice and afforded some kind of hearing.' " (Ibid.) Although "[t]he hearing need not be formal," a student must " 'be told what he [or she] is accused of doing and what the basis of the accusation is' " to enable the student " 'to explain his [or her] version of the facts at this discussion.' " (Ibid.)
First, John complains that he was denied "timely and meaningful notice" of Sally's specific allegations because he was required to prepare his initial written statement before he knew exactly what they were. The parties agree that at John's initial meeting with Karbley, Karbley told him Sally had accused him of "sexual assault" and directed him to prepare a statement. The parties also agree that Karbley's next meeting with John, on May 18, occurred the day before Karbley received Sally's written statement, and that at this meeting Karbley questioned John based on his initial draft. But John claims that on May 18 neither he nor Karbley even knew that Sally's claim was based on the April 25 " 'ouch stop' incident," and it was unfair to use his written statement against him when he was "forc[ed] . . . to prepare [it] in a vacuum" without knowledge of the allegations against him.
The record contradicts John's position. His writ petition alleges that the draft statement Karbley used to question him on May 18 contained the following sentence: " 'At one point [on April 25], as we were having sex, [Sally] said "ouch stop" and I then thrusted two more times before my brain caught up with my body and then I immediately stopped.' " Thus, even before the May 18 meeting, John correctly anticipated that he needed to address the April 25 incident, including Sally's "Ouch, stop" statement. In turn, having reviewed John's draft statement, Karbley knew about the April 25 incident when she questioned John on May 18. Indeed, according to her report, she asked John "what was going through his head when he heard [Sally] say, 'Ouch, stop.' [John] replied, 'At that moment, I remember being caught up in my body, what that felt like. I remember asking if, "you are okay?" and she said I was too much to handle—referring to my genitalia.' "
Moreover, even if John was not informed that the April 25 incident was at issue when he prepared his initial draft statement, he fails to demonstrate how this rendered the process unfair. As Saint Mary's points out, John had and exercised the opportunity to review Sally's written statement and provide his own written comments on it. He also had the opportunity to incorporate his response to Sally's statement into his revised written statement, which he did not submit to Karbley until June 2, and he had and exercised the opportunity to submit a written response to Karbley's report. In light of these circumstances, we reject his conclusory assertion that the fact he "was later given a copy of Sally's written statement does not cure the prejudice" he faced from having to prepare his initial draft without it.
Second, John claims that the May 26 letter from Karbley gave insufficient notice of the charges against him, violating his right to fair process. He relies on USC I, which held in favor of a student suspended after an incident of group sexual assault. (USC I, supra, 246 Cal.App.4th at pp. 224-225, 235.) The student was originally found to have violated the school's policies by committing sexual assault. (Id. at p. 224.) The school's appeals panel determined there was insufficient evidence he committed sexual assault himself, but it also concluded that he had separately violated the student code by enabling the sexual assault of the victim by others—a factual theory to which he never had the opportunity to respond. (Id. at pp. 224-225, 241.) The Court of Appeal held that, even though the student was given notice of the provisions he was ultimately found to have violated, his suspension could not stand because he received insufficient notice of "the factual basis of the allegations against him." (Id. at p. 241.)
John also claims that the May 26 letter "violated the College's own procedures, which guarantee the accused student '[t]he right to receive written notice of the charges accepted by the Office of Community Life.' " He does not explain why he believes the letter was inadequate on this basis, however, except to say that "Karbley's apparent belief that the College's obligation under this provision was satisfied by a terse reference to the accuser's written statement betrays a fundamental misunderstanding of the sexual assault disciplinary process as governed by due process and [section] 1094.5." Thus, beyond addressing the fair-process issue, we do not separately evaluate whether the letter was insufficient under the College's own procedures.
This case bears little resemblance to USC I. The three specific provisions of the Sexual Assault Policy identified in the May 26 letter were the three John was ultimately found to have violated. Moreover, John does not claim that the factual theories for his liability shifted or that he had no opportunity to respond to those theories. Instead, he claims that after receiving the May 26 letter he "was left to guess at what Karbley believed he had done that violated each provision." As discussed above, however, John had notice of the April 25 "Ouch, stop" incident before May 26, as Karbley questioned him about it on May 18. And again, he does not show how the letter's alleged lack of specificity rendered the process unfair, given that he ultimately had numerous opportunities to respond to Sally's version of the April 25 incident. In short, John is not entitled to relief based on any alleged deficiencies in the notice he received of the allegations against him.
2. The right to an advisor
John next claims that Saint Mary's "deprived him of both (1) the advisor of his choice, including an attorney; and (2) a trained, competent advisor." Neither contention is persuasive.
As mentioned above, the Handbook provides that the complainant and respondent have "[t]he right to an advisor who will assist the individual through the student discipline process." It explains that "[t]he advisor is not an advocate for the student in the proceedings and may not address the DHB or speak on behalf of the student." It also states that "[a] list of individuals who have volunteered and have been trained to serve as advisors in sexual assault, sexual misconduct[,] and sexual harassment cases is available from the Dean of Students, or designee, to both the complainant and the respondent. Students are not limited to this list and may be accompanied by an advisor of their own choice."
On the form John filled out after his initial meeting with Karbley, he initialed the following statement: "I understand that I may have an advisor of my choosing to assist me during the student discipline process. I also understand that I can choose an advisor from a list of individuals who have volunteered to be an advisor. This list can be obtained from the Dean of Students or designee. I received a copy of the 'Role of the Advisor' and a list of trained Saint Mary's College advisors." That "Role of the Advisor" form reiterated that "[a]n advisor may be a faculty, staff[,] or student member of the Saint Mary's community, or anyone of [the student's] choosing. It is the student's sole responsibility to choose an advisor."
John argues that even though he was told he was entitled to an advisor of his choice, he was never informed that he could choose an attorney in particular. He claims that Karbley's silence about this option, coupled with the forms' description of the advisor's role in a way "contrary to the commonly[]understood role of an attorney," effectively denied him "his right to an attorney at every stage of the process in violation of federal law." We agree with John that he did have a right to select an attorney as an advisor, though he did not have a right to have an attorney participate in the hearing process to the same extent that attorneys might commonly represent clients in other contexts. (See UCSD, supra, 5 Cal.App.5th at p. 1082 [no right "to have counsel actively participate at [the] hearing"].) In any event, we cannot conclude that John was denied fair process merely because, having told him he could choose anyone as an advisor, Saint Mary's did not also explicitly inform him that he could choose an attorney as one.
John also argues that he was "deprived of an advisor throughout the process as guaranteed by the College." Specifically, he claims that Anibaba "abandoned [him] midway through the process," apparently referring to the fact that Anibaba was not at John's last meeting with Karbley or at the DHB hearing. John argues that once "it became clear that Anibaba was not willing or able to advise [him] through the process, Anibaba had an obligation to inform [him] that he should use another advisor," and that "Karbley had a corresponding obligation as the official in charge of the process to arrange for a new advisor, particularly when she all but insisted that John select [Anibaba] as an advisor." John cites no authority establishing such obligations. For all we know, John no longer wanted Anibaba's assistance, as John does not claim that he complained about Anibaba to Saint Mary's or took any other action to obtain a new advisor. In the face of such silence, a school has no ongoing duty to ensure that a student's advisor is satisfactory.
Finally, John claims that Anibaba "was not an appropriate advisor" because Saint Mary's "never trained Anibaba to serve as an advisor in cases involving sexual assault and related offenses" but only "to be an administrative hearing officer or to serve on the DHB." Even assuming that Anibaba's training was somehow inadequate, John does not identify any resulting prejudice. Again, it is hardly clear that John continued to want Anibaba's assistance, and John does not identify any ways in which Anibaba's supposed deficiencies negatively impacted the process. John's claims involving his right to an advisor fail.
3. The investigation
John claims that the College's investigation "violated due process and foreclosed fair consideration of the merits by the DHB." (Some capitalization omitted.) Specifically, he argues that Karbley (1) violated the College's policies by "determin[ing] disputed facts [and] assess[ing] credibility"; and (2) failed to interview key witnesses and obtain physical evidence. We are not persuaded.
John also argues that Karbley had a conflict of interest preventing an impartial investigation, which we address in part II.C.5. below.
a. Allegedly improper determinations
John contends that even though the Handbook provides that "[t]he power to find facts and determine credibility rests solely with the DHB," Karbley violated the College's policies by doing both in her investigation report. We disagree with John's description of the Handbook on this point. The DHB is responsible for determining, based on the preponderance of the evidence, whether the alleged conduct occurred and the respondent thereby violated the school's policies. Of course, the DHB is empowered to make the factual and credibility determinations necessary to arrive at its ultimate conclusion, but John points to nothing in the Handbook suggesting that the investigator is thereby barred from offering his or her own initial assessments of the evidence.
John also argues that Karbley's determinations were unlawful based on the principle that "a substantial due process question is clearly raised 'if the initial view of the facts based on the evidence derived from nonadversarial processes . . . foreclosed fair and effective consideration at a subsequent adversary hearing leading to ultimate decision.' " (Allee, supra, 30 Cal.App.5th at p. 1068, fn. 32, quoting Withrow v. Larkin (1975) 421 U.S. 35, 58.) Allee and Withrow addressed the constitutional issues that arise when the same person or body acts as both investigator and adjudicator (Withrow, at pp. 46, 58; Allee, at pp. 1057, 1068 & fn. 32), which in and of itself does not violate due process. (USC II, supra, 29 Cal.App.5th at p. 1235, fn. 29.) Here, however, Karbley did not sit on either the DHB or the Appeal Board, and John does not cite any authority suggesting that due process bars an investigator from making initial factual and credibility determinations.
Specifically, we reject John's argument that Karbley's determinations "foreclosed fair, independent consideration of the merits by the DHB." As to credibility determinations, Karbley found both Sally and John "credible in demeanor with no motivation to falsify information." We cannot agree with John that the DHB was thereby "deprived . . . of the fair opportunity to find Sally not believable," particularly given that it had an independent opportunity at the hearing to assess Sally's credibility and reach its own conclusion.
As to factual determinations, it is hardly clear that Karbley made any at all. Although her report said she was making findings of fact, the "Findings of Fact and Analysis" section comprises only (1) a list of "Undisputed Facts"—including that John continued to have sex with Sally after she said, "Ouch, stop"; and (2) a list of "Disputed Facts/Discrepancies" that merely highlights the points on which John and Sally disagreed without determining whose version was accurate. In short, Karbley concluded that both parties were credible and did not make any findings of fact resolving disputed issues. This neither violated the College's policies nor otherwise denied John a fair hearing.
b. Karbley's alleged incompetence
John also argues that the investigation was deficient because Karbley did not interview key witnesses or obtain a bloody towel from the April 25 incident that Sally claimed to have. We disagree.
According to John, "Karbley failed to interview the most important witness of all: the 'outcry' or 'first complaint' witness," the friend who helped Sally realize she had been sexually assaulted. He argues that this person's version of his or her April 29 conversation with Sally "would have been particularly probative of Sally's state of mind and demeanor," especially if that version differed from Sally's version of the conversation. We agree with the trial court, however, that any information this witness had was unlikely to help John's case.
John argues that "[i]nformation from such witnesses is often crucial and, if appropriate, admitted into evidence in California under an exception to the hearsay rule called the 'fresh-complaint doctrine.' " That doctrine, which has evolved from the "outdated notions" on which it was originally based—"that it is natural for the victim of a sexual offense promptly to disclose the incident if it actually occurred"—recognizes that the circumstances of a victim's complaint may in some cases be relevant to the issue whether the offense actually occurred. (People v. Brown (1994) 8 Cal.4th 746, 749-750.) But John's explanation of how such information would have been relevant here amounts to no more than speculation about what the unknown person might have said, such as that "Sally expressed a desire for revenge" against John. The theoretical possibility that the witness might cast a negative light on Sally's story falls far short of establishing that Karbley's investigation was unfairly incomplete.
John also takes issue with Karbley's failure to interview his roommates, who spent time with him and Sally on April 29. His petition alleges that he "suggested that Karbley interview his roommates because he had discussed Sally's allegations with them, and they told him that they sensed nothing wrong or out of the ordinary when they spent time with her." But as the trial court observed, the text messages from Sally that John provided already demonstrated that she "was acting normal and untroubled while speaking directly to John," and the roommates' corroboration of that fact would have added little. John does not explain why this information was nevertheless important, except to say that "each event that day [April 29] is critical, including the time of Sally's 'realization' conversation, which is not disclosed in the record." As discussed in part II.C.4. below, if anything the record suggests that Sally hung out with John and his roommates before the conversation with her friend. Even if Sally was behaving normally with John after she realized he had sexually assaulted her, we fail to see how this would substantially undermine her credibility, at least as to an incident that John admitted occurred.
Finally, John objects to Karbley's failure to obtain or verify the existence of a bloody towel Sally reportedly retained. As mentioned above, Sally said that at one point during the April 25 incident John " 'pulled out' " and she noticed she was bleeding vaginally, but he continued to have sex with her. During an interview, Sally told Karbley that she had a bloody towel from that incident. The investigative report indicates that Karbley told her she "could take a photo of the towel, or bring it in," but Sally never produced such proof.
Relying on USC II, John contends that "Karbley's failure to obtain physical evidence is itself a basis for setting aside the DHB's decision." In that case, among other circumstances the Court of Appeal found justified overturning the university's decision was the investigator's failure to ask the complainant to provide clothes she wore the night of the alleged sexual assault. (USC II, supra, 29 Cal.App.5th at pp. 1215-1216, 1238.) A key disputed issue was whether a red substance observed in the complainant's apartment was blood, supporting her claim of rape, or red paint from "a 'paint' party, at which the students splattered paint on each other," that both she and the respondent attended earlier that night. (Id. at pp. 1215-1216.) Even though the respondent asked for the complainant's clothes so he could do his own testing on them, the investigator "did not request [the complainant] provide her clothes as part of the investigation" but merely informed her that the accused student had asked for them. (Id. at pp. 1238-1239.) The Court of Appeal concluded that this violated the school's own policy of conducting " '[a] fair, thorough, neutral[,] and impartial investigation of the incident.' " (Id. at p. 1238.)
Here, in contrast, whether Sally bled during the April 25 incident was not a crucial issue, as John admitted that he continued to have sex with Sally after she told him to stop. To be sure, whether Sally bled was relevant, but John fails to demonstrate that further efforts to obtain the bloody towel would have made a difference to the DHB's decision. John claims that "the DHB was told that Sally's story was supported by physical evidence even though Karbley had no proof that such evidence ever existed," but Karbley merely reported what Sally had said without ever suggesting there was any independent proof the towel existed. Moreover, the DHB's decision does not even mention Sally's claim that she bled, much less find it true, further establishing the relative unimportance of the issue. In sum, John has not demonstrated any substantial flaws in Karbley's investigation that rendered the process unfair.
4. The rights to confrontation and cross-examination
John next contends that Saint Mary's "deprived [him] of his rights to confront and cross-examine his accuser." (Capitalization omitted.) We reject the claim.
The Confrontation Clause of the Sixth Amendment "guarantees the right of an accused in a criminal prosecution ' "to be confronted with the witnesses against him [or her]." ' " (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1137.) " ' " '[T]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross- examination,' " ' " although the right also includes the opportunity " ' "to confront the witness physically." ' " (Ibid., italics omitted.)
a. The right to respond to evidence
John separately discusses his "right to confrontation" and his "right to cross-examination." This is somewhat confusing, because although he cites the Confrontation Clause in discussing the former right, he elsewhere makes clear that he is not asserting "a right to 'physically confront' Sally when she gave her testimony or even be in the same room when she testified." Rather, he characterizes this right as "the right to hear all the evidence against him," which he claims was violated because he did not hear Sally's hearing testimony. Thus, as to this portion of his claim, it appears John relies on his due process and fair hearing right to have the opportunity to respond to the evidence against him, not any Sixth Amendment right to confront witnesses. (See generally USC I, supra, 246 Cal.App.4th at pp. 244-248.)
John claims that he was unable to respond to all the evidence against him because at the hearing Sally testified "to 'facts' not found in any of her pre-hearing statements." Specifically, he contends that she stated for the first time "that it took 'closer to 20 seconds' for [him] to stop rather than 'two thrusts' " and made "an entirely new allegation that after [she] said 'ouch[,] stop,' [he] 'coerced [her] into more penetrative sex.' " John argues that "there is no question" that his inability "to respond in any way" to this evidence was prejudicial, because "it would be impossible to conclude that the testimony withheld from [him] did not affect the decisions of the DHB or Appeal Board." We disagree.
First, Sally's "20 seconds" testimony did not directly contradict John's "two thrusts" claim. She testified, "He says two thrusts, I remember it being closer to 20 seconds[,] it was long enough." John does not explain what additional information he would have offered, other than reaffirming his claim of two thrusts, had he known that Sally believed it took him closer to 20 seconds to respond. In addition, we agree with Saint Mary's that the length of time it took John to stop "was not determinative for the DHB." The crucial fact was that John admitted that he did not immediately stop once Sally told him to do so, not any difference between "two thrusts" and 20 seconds. Therefore, even if John had an inadequate opportunity to respond to the "20 seconds" testimony, no prejudice resulted.
Second, Sally testified about "coercive sex" in response to information John himself provided. Sally indicated in her written statement that she refused to have sexual intercourse a second time on April 25, after John initially stopped at her request. John, however, said in his written statement that he asked Sally if they could have sex again, she agreed, and sexual intercourse resumed until "Sally started saying that she couldn't handle it any more," at which point he "immediately" stopped. At the hearing, John reiterated that he "said let's try again and [they] did[,] then [Sally] said stop[] and [he] stopped." Then, when asked at the hearing whether she remembered this second instance on April 25, Sally said, "I didn't remember that second time around until just now[;] I think what happened, because I didn't want to do [a] hand job, he was like let's just try penetrative sex again and at this point I just wanted to get him finished and I want[ed] him to leave, I think I said if you want to finish just take care of yourself and I do believe he coerced me into more penetrative sex. I was just trying to get him out of there[,] I was in survival mode."
Thus, far from being "an entirely new allegation," Sally's testimony about this second instance was merely her version of an event John was the first to describe. Accordingly, it is simply untrue for John to say that the fact he did not hear this testimony "made him impossible for him to respond in any way." His version of the interaction was already before the DHB, and he does not hint at what more he might have said that could have affected the outcome.
b. The right to cross-examination
As to John's claim involving a right to cross-examination, California courts have generally " 'reject[ed] the notion that as a matter of law every administrative [proceeding] . . . must afford the [accused] an opportunity to confront and cross-examine witnesses.' " (UCSD, supra, 5 Cal.App.5th at p. 1084; see USC II, supra, 29 Cal.App.5th at p. 1237, fn. 33.) Thus, an accused student does not have the right to cross-examine witnesses directly. (USC II, at p. 1237, fn. 33.) "In particular, direct cross-examination of a complainant by a respondent is not only not required, it is inappropriate. . . . 'Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetrating a hostile environment.' " (Occidental II, supra, 40 Cal.App.5th at p. 223.) Where credibility is a key issue, however, courts have held that "an accused student must have the opportunity indirectly to question the complainant" and other witnesses, which may be accomplished by allowing the student to submit questions. (USC II, at pp. 1233-1234, 1237-1238; UCSD, at pp. 1084-1085.)
The quoted language is from the April 4, 2011 "Dear Colleague" letter issued by the United States Department of Education Office for Civil Rights (OCR). (Occidental II, supra, 40 Cal.App.5th at p. 223.) That letter was withdrawn in September 2017, after the events in this case, and in November 2018 OCR "issued proposed [T]itle IX regulations pursuant to which, among other things: a person may not serve as both investigator and adjudicator; live hearings are required; and an accused student's adviser may cross-examine the accuser and other witnesses, either in person or with technology that allows the decision maker and the parties to simultaneously see and hear the witness." (Id. at p. 223, fn. 6.) On May 6, 2020, after notice-and-comment rulemaking, OCR issued revised, final regulations. (U.S. Dept. of Education, Press Release (May 6, 2020) <https://www.ed.gov/news/press-releases/secretary-devos-takes-historic-action-strengthen-title-ix-protections-all-students> [as of May 7, 2020].)
The final regulations do not go into effect until August 14, 2020, and they do not govern our evaluation of the investigatory and disciplinary-hearing procedures Saint Mary's used in this case. That said, we recognize that the applicable law is in flux, and our conclusion that John's expulsion must be upheld should not be interpreted as an endorsement of those procedures.
To begin with, John never asked to question Sally, so his claim is forfeited. (See JMS Air Conditioning & Appliance Service, Inc. v. Santa Monica Community College Dist. (2018) 30 Cal.App.5th 945, 962 & fn. 6 [failure to object to lack of cross-examination at administrative hearing forfeited claim on appeal].) But even if the claim were preserved, we would agree with the trial court that this case does not fall within the category of cases hinging on credibility, because John admitted to the key conduct on which his expulsion was based. John insists that "[i]t is a gross mischaracterization of the record to portray [the] disputed factual issue" of whether he stopped after two thrusts or 20 seconds "as an admission by [him] that he willfully continued to have intercourse with Sally after she made it clear she wanted him to stop." We agree with the trial court, however, that whether it took two thrusts or 20 seconds for John to stop, "[t]he critical fact is that he didn't stop"—a fact that he did admit. Accordingly, the case law recognizing a right to indirect cross-examination does not govern here.
Finally, even if John should have been permitted to ask Sally questions, he fails to demonstrate prejudice. The only topic John suggests he would have asked Sally about were her text messages, which were already before the DHB. He characterizes them as "very strong, probative impeachment material: contemporaneous written statements contradicting her story," but we agree with the trial court that they "are very far from the [silver] bullet" that John wants them to be:
"True, they seem to reflect Sally Roe's favorable view of their sexual interludes, and receptiveness to more of the same; there is nothing (other than ambiguous complaints of pain, with no blame cast) suggesting that Sally Roe had any problem with what had occurred. But that hardly proves that [her] consistent statements to the contrary must therefore just be lies. There is nothing novel or startling in the hypothesis that one sex partner, talking with the other partner, might pretend to have enjoyed sex when she didn't really, or pretend that all is cool with the relationship when she is actually troubled by some aspect of it."John's argument that Sally's "texts could not be more in conflict with" her claims of physical pain, threats, and coercion and "put the lie to these assertions" is, to put it charitably, out of touch with reality.
Specifically, we disagree that whether Sally hung out with John and his roommates on April 29 before or after she realized she was assaulted was a missing fact that cross-examination could have uncovered. In her written statement, Sally said, "I did not put together that what happened was rape until April 29th and I filed a report . . . on the next possible business day. [¶] I tried my best to avoid contact with him between the Friday that I came to the realization that I had been raped and the Monday that I filed the report." Sally also told Karbley that she "[i]gnored [John] from the evening of April 29-May 1. He called 7-8 times. [She] did not answer." In our view, this strongly suggests that Sally did not realize she had been sexually assaulted until after she hung out with John on April 29. The fact that she was not questioned about the April 29 timing issue or other aspects in which the tone of her text messages might be inconsistent with her allegations was harmless.
5. Actual bias
Finally, John claims that he was denied due process and a fair hearing because there was an " 'intolerably high risk of actual bias,' " based on (1) a contemporaneous investigation of Saint Mary's for compliance with Title IX; and (2) conflicts of interest arising from roles and relationships of various participants in the disciplinary process, including Clark and Karbley. Neither contention is persuasive.
To obtain relief on this basis, John must " 'demonstrate actual bias. A disciplinary decision may not be invalidated solely on the basis of an inference or appearance of bias.' [Citations.] A ' "mere belief that [a school official] acted with . . . ulterior motives is insufficient to state a claim for relief." ' " (Occidental II, supra, 40 Cal.App.5th at p. 226.) Instead, absent at least "a high probability of such bias," the school's decision must be affirmed. (Allee, supra, 30 Cal.App.5th at p. 1060; see UCSD, supra, 5 Cal.App.5th at p. 1083 [no showing of any "circumstance ' " 'in which experience teaches that the probability of actual bias on the part of the . . . decisionmaker is too high to be constitutionally tolerable' " ' "].)
a. The OCR investigation and Stanford case
John argues that there was a high probability of actual bias because at the time of the investigation in this case, Saint Mary's was aware that the OCR was investigating it for a violation of Title IX. He also posits that "[a] related factor that compounded the effect of the OCR investigation was the notoriety of the Stanford swimmer case."
On May 19, 2016, around the time Karbley's investigation began, the president of Saint Mary's received a letter from OCR. The letter stated that OCR was opening an investigation of Saint Mary's under Title IX, based on a student's complaint about the College's response to her claim of sexual assault. Specifically, the student complained the College failed to take "appropriate interim measures" after her report and did not investigate using a preponderance-of-the-evidence standard.
John's briefing goes on at length about how the OCR investigation supposedly influenced Clark and Karbley. He does not provide any record citations to support his claims, however, and they amount to nothing more than speculation. For example, his opening brief's paragraph about Clark states:
"As a member of the College administration and serving at the pleasure of the President, Clark works in a political environment and needs to keep her boss happy. It was, therefore, in Clark's interest to convict John. By doing so, she would ensure that the College would avoid further antagonizing OCR; the College's federal funding would be preserved; and her own position would be secure. Clark was Chair of the Appeal Board and in a position to direct the result that would benefit the College."
Similarly, John characterizes Karbley as being "subject to the same pressures as Clark: the need to place the College's interests first and avoid the possible loss of federal funds . . . . Karbley assigned the investigation to herself and had every interest in achieving a result that would please Clark and protect the College." These suppositions lack factual support and fail to establish a high probability of actual bias.
The Stanford case does not establish actual bias in the proceeding either. As mentioned above, John and Sally both addressed the Stanford case in their closing statements at the DHB hearing. John called it "truly disheartening and degrading" to be "placed in the same box as the guy at Stanford or what is happening across college campuses," and Sally said she had reached "the harsh realization that Brock Turner and John Doe are no different. Their victims did not consent." But while the Stanford case was clearly on the minds of John and Sally, there is nothing in the record to suggest it played a role in the DHB's decision. We agree with the trial court that to conclude Saint Mary's could not provide John with fair process merely because the Stanford case was in the news would be akin to accepting that John could not obtain fair process from anyone aware of the case. Without more, John cannot demonstrate a high probability of actual bias.
b. Conflicts of interest held by specific people
John also claims that Clark, Karbley, the DHB members, and the other members of the Appeal Board all had conflicts of interest arising from their respective roles and relationships. We are not persuaded.
First, John claims that Clark's role as "Chief Prosecutor" and Karbley's role as "Line Prosecutor" in his case conflicted with their respective roles in the Title IX process. John bases these characterizations on the women's role in enforcing the College's policies, but we agree with Saint Mary's that neither Clark nor Karbley can be accurately categorized as a prosecutor. Clark had almost no direct involvement in the case aside from her service on the Appeal Board, and while Karbley conducted the investigation, she had no adjudicative role. "[T]his was not a classic adversarial hearing, with a prosecutor and a defendant," and neither Clark nor Karbley was charged with seeking to hold John responsible for violating the College's policies. (Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 205, 223 [rejecting claim that county counsel acted as prosecutor in proceeding to revoke school's charter].)
In particular, John's reliance on Allee to highlight Karbley's supposedly conflicting roles is unavailing. Under the university's procedure in Allee, "no in-person hearing [was] ever held, nor [was] one required. Instead, the Title IX investigator interview[ed] witnesses, gather[ed] other evidence, and prepare[d] a written report in which the investigator act[ed] as prosecutor and tribunal, making factual findings, deciding credibility, and imposing discipline." (Allee, supra, 30 Cal.App.5th at p. 1068.) The Court of Appeal held that there was no fair hearing because the university failed to provide an opportunity to cross-examine witnesses "before a neutral adjudicator with the power independently to find facts and make credibility assessments." (Id. at p. 1069.) Here, however, Karbley did not determine whether John had violated the College's policies or impose discipline. And to the extent she made preliminary credibility and factual findings, as discussed above they were not binding on the DHB.
John claims Clark's role as chair of the Appeal Board created another conflict of interest. He says that because Clark "led the body that determined whether there were any procedural irregularities in the process that Karbley, her direct subordinate and chosen delegate, employed," Clark " ' "was in the position of judging the correctness of [her] own decision," ' " a " 'transparent due process violation.' " (Quoting Today's Fresh Start, Inc. v. Los Angeles County Office of Education, supra, 57 Cal.4th at p. 223.) Again, John's argument rests on a mischaracterization. Clark did not serve on the DHB, and thus her role on the Appeal Board clearly did not require her to review her own decision.
Finally, John claims there was "an intolerably high risk of actual bias on the part of [certain] adjudicators" because of their relationships with Clark and Karbley. John points out that one of the DHB members, Victoria Gonzalez, was Clark's administrative assistant until the summer of 2016, when Clark promoted her. In her new position, Gonzalez reported to Karbley. Although the exact timing of the promotion is unclear, Gonzalez was in the new position by the time that the DHB finalized its decision. John also points out that the two members of the Appeal Board other than Clark were both in Clark's chain of command.
According to John, by virtue of these relationships, Gonzalez and the two Appeal Board members had a strong incentive to find him responsible. He claims that Gonzalez "plainly possessed a financial interest" in the proceeding's outcome and that "[i]t would have taken an incredible exercise of will for [her] to ignore her professional interests, reject Karbley's view of the case, and vote for [his] acquittal." Similarly, he argues that the Appeal Board members "had their respective professional interests at risk," which "made it highly unlikely that [they] would take a different view of the case [than did] Clark." But John does not identify any evidence that Clark and Karbley actually harbored biases, much less that Gonzalez or the Appeal Board members knew of those biases and therefore had an interest in reaching a particular result.
John also observes that Karbley trained Gonzalez, the other two DHB members, and the two members of the Appeal Board on the College's disciplinary process. Characterizing the DHB's decision as "largely based on Karbley's [report]," he argues that "it was highly unlikely that Karbley's trainees would seriously question a decision based on her investigation." Again, however, John offers no more than speculation to support his position. His claim of actual bias fails.
III.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
/s/_________
Humes, P.J. WE CONCUR: /s/_________
Margulies, J. /s/_________
Banke, J.
CONCURRING OPINION OF BANKE, J.
I agree that, on this record, John Doe's challenge to the disciplinary action that resulted in his expulsion was properly rejected and the trial court's judgment must be affirmed. I write separately to make the following observations.
Four points, regardless of any other consideration, dictate affirmance:
One, Saint Mary's "Undergraduate Student Handbook" includes a "Sexual Assault and Sexual Misconduct Policy." This policy defines "Sexual Assault" as follows: "[E]ngaging in sexual intercourse with any person without that person's consent. . . . [It] is the penetration, however, slight, of the vagina, or anus with any object or body part and of the mouth with a sexual body part or sexual object."
Two, there is no intent requirement. Under the "Sexual Assault and Sexual Misconduct Policy," sexual intercourse is either consensual or it is not. The policy states, by way of example, consent has not been given where one of the participants "has acted or spoken in a manner which expresses he or she refuses to give consent," and "prior sexual history . . . does not constitute consent." In short, if one participant hears the other say "stop," intercourse must stop—immediately. If intercourse nevertheless continues, for even the briefest period, why it does so is, under the policy, immaterial. Thus, whether a participant fails to cease intercourse immediately out of self-absorption or insensitivity, as opposed to deliberate viciousness, for example, is immaterial.
Three, there is no gradation in punishment; a student who commits "sexual assault" as defined by the policy must be expelled. The particular circumstances of the case do not matter. Failure to stop immediately in the midst of what started as consensual sex, carries the same penalty as intercourse accomplished through deliberately lacing a drink with Rohypnol.
Four, at the outset of the investigation, Doe was asked, in accordance with the disciplinary procedures set forth in the Undergraduate Student Handbook, to prepare a "written statement and list of witnesses, if any, who have information pertinent to the incident." The handbook emphasizes students are "to tell the full and complete truth in all disciplinary matters." Doe, a freshman, prepared a single-spaced, two-plus page statement recounting in considerable, and quite graphic, detail his recollection of the three sexual encounters in which he and Sally Roe engaged. Doe described the first two as consensual. He also described the third as consensual. But he also said, "At one point, as we were having sex, Sally said 'ouch stop' and I then thrusted two more times before my brain caught up with my body and then I immediately stopped. I ask[ed] if she was okay." Roe never disagreed that she did not expressly say "no" during the first two encounters, and did not initially say "no" to intercourse the third time. She recalled (later at the disciplinary hearing) saying during the third encounter "please stop this hurts." She described (at the disciplinary hearing) the continued intercourse as follows: Doe "says two thrusts, I remember it being closer to 20 seconds[,] it was long enough."
Doe also stated, "at some point" after Roe said " 'ouch stop' " and the intercourse had ceased, he asked "if it was okay if we could try sex again, she then responded with yes. . . . [Then] Sally started saying that she couldn't handle it anymore, I then immediately stop[ped]." Roe later stated (at the disciplinary hearing) she had not remembered "that second time," and she thought what had happened was she "didn't want to do a hand job," so Doe asked for "penetrative sex again and at this point [she] just wanted to get him finished." She thought she "said if you want to finish just take care of yourself, and "[did] believe he coerced [her] into more penetrative sex. I was just trying to get him out of there . . . ." She did not describe, nor was she asked to describe, what Doe's actions were, or what he said, at that point.
Doe and Roe engaged in text messages after each of the three encounters. Their exchange following the second encounter described a particularly enthusiastic evening and both punctuated their texts with "happy" emojis.
However, Sally described the three encounters in entirely differently terms throughout the disciplinary proceedings. She stated, among other things, Doe expected sex and it "didn't matter" if she "was in the mood for it," he would ask " 'wasn't that the best . . . sex' " ever and she would reply " 'yes' " because she "didn't want him to know [she] received absolutely zero pleasure from it," she "legitimately had feelings for him" and "had an extremely hard time understanding why [her] body was not receptive to what was happening," "it didn't make sense" that she "was so tense and pained during each occasion," she would tell him she "was in pain" and he would tell her " 'Shhhh it[']s fine,' " she "gave him pointers as to what kinds of things [she] liked" and "he would do those things for a period of time, but inevitably it progressed past [her] personal boundaries," he "repeatedly coerced [her] into doing more/going further than [she] was comfortable with" such as oral sex, she would "ask him to go slower because he was so aggressive during penetrative sex", but he would "either ignore [her] or go harder."
Given Saint Mary's definition of "sexual assault" and the specified punishment, and Doe's statement that he heard Roe say "stop" but did not do so immediately, the outcome in this case was inevitable, as is the result on appeal—Doe violated the college's "sexual assault" policy and had to be expelled.
Accordingly, the procedural and due process issues Doe has raised on appeal are, as the majority opinion ultimately concludes, beside the point. This does not mean, however, that Saint Mary's should construe the required result in this case as an endorsement of its policies and procedures in place at the time, or its investigation in this case.
As the trial court cogently explained, Saint Mary's Undergraduate Student Handbook is hardly a paragon of clarity when it comes to defining "sexual assault." The 100-plus page handbook is organized into three separate sections—the "Undergraduate Student Code of Conduct," "College and Student Life Policies," and "Academic Policies." The first section is a comprehensive list of do's and don'ts on campus and includes a set of procedural rules for the adjudication of student offenses. Article I, entitled "Definitions," includes a lengthy list of defined terms, including " 'Sexual Assault,' " which is defined as "an act of hostility, power, control, degradation, and violence . . . not passion. They are attempts to control and degrade others using sex and sexual acts as weapons." Article III, entitled "Conduct—Rules and Regulations," states as to "Non-Consensual Sexual Conduct," "[e]ngaging in non-consensual sexual conduct with another person is defined in the Student Sexual Assault and Sexual Misconduct Policy in the College's Policy Prohibiting Discrimination, Harassment, including Sexual, and Retaliation. Such non-consensual sexual conduct (which can be verbal, visual or physical) is a form of discrimination prohibited by not only these policies, but, also, by law." (Boldface omitted.)
The "Student Sexual Assault and Sexual Misconduct Policy" referenced in Article III of the first section of the handbook, is set forth in the second section, "College and Student Life Policies." This section was aptly described by the trial court as a "mélange of different kinds of content. It addresses several dozen topics in alphabetical order, with no effort to relate any one topic to the other. . . . Little of it appears on its face to constitute anything like a formal definition of disciplinable offenses." A like "mixture of different kinds of content" appears in the Title IX section of the second section. It is within the Title IX section, after numerous other provisions which the trial observed do "not read like a set of specific prohibitions," that the "Sexual Assault and Sexual Misconduct Policy" finally appears. It is within this policy that "sexual assault" is defined as intercourse without consent, including any penetration however slight. It is also here that the required penalty, expulsion, is set forth. Five pages later, the disciplinary procedure for "sexual assault" and "sexual misconduct" cases is set forth, largely duplicating the disciplinary procedures set forth in the first section of the handbook.
In short, while careful and thorough reading of the Undergraduate Student Handbook demonstrates the operative definition of "sexual assault" is that appearing within the Title IX section of the "College and Student Life Policies" section of the handbook, the handbook is, as the trial court stated, "unnecessarily confusing." And while the definition of "sexual assault" in the first section of the handbook suggests a mental state beyond, say, bumbling self-absorption, the more specific definition in the "Sexual Assault and Sexual Misconduct Policy" in the second section, does not.
Whether Saint Mary's should have specifically advised Doe he could have retained an attorney as an "Advisor" during the disciplinary process also bears serious thought. While Saint Mary's says its policy statements on "Advisors" made clear students had that choice, again its various statements, appearing in various documents and locations, are not entirely clear on this point. The "Sexual Assault and Sexual Misconduct Policy" in place at the time states, in pertinent part, that both complainant and respondent "have the option of choosing an advisor to accompany them through the process." Neither members of the disciplinary board nor witnesses may serve as an advisor. "A list of individuals who have volunteered and have been trained to serve as advisors in sexual assault, sexual misconduct and sexual harassment cases is available from the Dean of Students, or designee, to both the complainant and respondent. Students are not limited to this list and may be accompanied by an advisor of their own choice." The form "initial meeting" list of procedures presented to complainants and respondents similarly states: "I understand that I may have an advisor of my choosing to assist me during the student discipline process. I also understand that I can choose an advisor from a list of individuals who have volunteered to be an advisor. This list can be obtained from the Dean of Students or designee. I received a copy of the 'Role of the Advisor' and a list of trained Saint Mary's College advisors." The one-page description of the "Role of An Advisor In The Student Disciplinary Process" also provided to complainants and respondents states, "An advisor may be a faculty, staff or student member of the Saint Mary's community, or anyone of my choosing. It is the student's sole responsibility to choose an advisor." Among other things, the advisor is to advise "the student of support resources available to him/her" through the college and "off-campus resources, such as the Rape Crisis Center." The Advisor is "obligated to maintain confidentiality" as to the complaint and disciplinary proceedings, and "[f]ailure to maintain such confidentiality is a violation of College policy and subjects one to disciplinary action."
But the on-line student resources "FAQ's" state, in regard to whether a student may have someone with him or her during a disciplinary hearing, "A student involved in a hearing has the option of choosing a member of the College community (faculty, staff, or student) to serve as an advisor to accompany them through the discipline process. The advisor may not be a parent, relative, an attorney or a representative of an attorney." In regard to what a student should do if accused of sexual misconduct, the FAQ's state, "The Office of Community Life staff will explain the College's procedures for addressing sexual misconduct complaints and provide an option to select an Advisor from the list of trained Advisors, explain the rights and responsibilities of the Complainant and Respondent, explain the prohibition against retaliation, and explain the Hearing Board process." While the on-line FAQ's were not part of the administrative record before the Disciplinary Hearing Board and therefore were not included in the administrative record considered by the trial court, their existence was never disputed and Saint Mary's cannot pretend otherwise. Thus, at the very least, students either have been, or continue to be, given mixed signals as to whether an Advisor can be an attorney.
It is also of considerable concern that where, as here, a student potentially faces criminal prosecution, he or she is not specifically advised they may have an attorney as an advisor, since what they say during the disciplinary proceedings potentially could be used against them in a subsequent criminal proceeding. (See Gabrilowitz v. Newman (1st Cir. 1978) 582 F.2d 100, 103 ["Were the appellee to testify in the disciplinary proceeding, his statement could be used as evidence in the criminal case either to impeach or as an admission if he did not choose to testify."].) In fact, the Undergraduate Student Handbook specifically states a complainant has "[t]he right to file a police report and take legal action separate from and/or in addition to student discipline" and that the college "will provide assistance in contacting the police and accompanying her/him to the . . . police station." While historically, colleges have not been expected to afford students the kind of "due process" rights afforded criminal defendants, as the gravity of student misconduct charges and correlative severity of punishment has evolved to embrace conduct far different in tenor than cheating on an exam punishable by a suspension, questions are legitimately being raised as to the need to commensurately increase due process protections. (See Doe v. Allee (2019) 30 Cal.App.5th 1036, 1061-1069 (Allee).)
In Allee, the court specifically held 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 (e.g., videoconferencing) before a neutral adjudicator with power independently to find facts and make credibility assessments." (Allee, supra, 30 Cal.App.5th at p. 1069; see Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1084 [student charged with sexual misconduct "was afforded the opportunity to question [the complainant] by submitting written questions before the hearing as well as being given the opportunity to submit additional questions at the conclusion of [the complainant's] testimony"].)
Saint Mary's hearing procedures, at least as reflected in the record before us, do not comply with Allee and Doe. The "Sexual Assault and Sexual Misconduct Policy" contains a 12-point "Outline" of the disciplinary hearing process. Points 7 and 8 concern questioning. The hearing "facilitator" first "ask[s] the [hearing] panel if they have any additional questions of the investigator." Next, if the panel "is interested in asking the complainant/respondent clarifying questions," the facilitator will ask the student if he or she is "comfortable responding directly" to the panel or would "prefer to defer to the investigator." Finally, "[a]s the [hearing board] panel deems appropriate to the case, the panel may invite and ask clarifying questions of witnesses identified by either the complainant and/or respondent." "After all questions have been asked by the [hearing board] panel, and if the party chooses, the complainant and the respondent may each make a closing statement to the [] panel." There is, in short, no provision, regardless of the nature of the misconduct charge and the potential disciplinary action, for the complainant and respondent to hear the other's testimony before the hearing panel and no provision for either to conduct any form of cross-examination.
While the majority opinion observes Doe did not ask to submit any questions directed to Roe, it is hardly surprising given the specificity of the hearing procedures and the clear assignation of roles to the complainant and respondent, to the investigator, and to the hearing board panel—none of which suggest questions could, or would, be asked by anyone other than the hearing panel.
As the majority opinion notes, proposed Title IX regulatory changes address due process and fairness concerns arising from any inability to conduct cross-examination.
Finally, the sufficiency of the pre-hearing investigation is of concern. While the investigator met with Doe and Roe several times, and obtained statements from both and responses thereto, she did not interview any other witness. Seemingly, a thorough investigation would have included interviewing the student with whom Roe spoke shortly after the third encounter, and during which conversation, according to Roe, Roe came "to the realization" she "had been raped." It also would have included following up on Roe's statement during her third interview that she had a towel she had used to wipe blood from her legs after the third encounter. While it is true that as to the "sexual assault" charge, the die was cast by Doe's own statement as to what occurred during the final third encounter, Doe was also charged with "sexual misconduct" and "dating violence" based on alleged conduct other than his failure to immediately cease intercourse after Roe said "ouch, stop, that hurts." As to this other conduct, much of the evidence was ambiguous or sharply disputed, and adjudication of these charges would involve credibility determinations. (Indeed, as the trial court ruled, these charges were ultimately not supported by any substantial evidence.) Accordingly, the investigator's failure to go beyond what Roe and Doe told her is certainly problematic.