On September 16, 2020, the California Supreme Court granted review of Boermeester v. Carry, a case involving the expulsion of student Matthew Boermeester from the University of Southern California (“USC”) for intimate partner violence in violation of USC policy after an investigation and a hearing. The California Supreme Court’s review of the case is expected to provide long-awaited clarity on a key issue involving the student disciplinary process — namely, the extent of an accused student’s right to receive the opportunity to cross-examine critical witnesses at an in-person hearing when facing disciplinary action.
It is well established that public educational institutions, as state actors, must afford due process to students who are accused of misconduct and facing disciplinary action. While due process requirements do not apply to private educational institutions because they are not state actors, private schools must provide a fair process (i.e., fundamental fairness) to students who are accused of misconduct and facing disciplinary action. Due process and/or fair process, at minimum, entitle students facing serious disciplinary action to some kind of notice of the accusations against them and the basis for those accusations, and some kind of hearing in which they receive the opportunity to explain their version of the facts. Additionally, educational institutions that receive federal funds must also comply with the detailed investigation, hearing, and disciplinary process requirements under the implementing regulations of Title IX of the Education Amendments of 1972 (“Title IX”).
With regard to student discipline at educational institutions, courts have applied the principles of “due process” and “fair process” interchangeably to apply cases involving due process at public schools to cases involving fair process at private schools, and vice versa. As such, cases addressing these topics are equally important to both public and private educational institutions, and the California Supreme Court’s upcoming review of Boermeester v. Carry will be no exception.
Background on Boermeester v. Carry
Boermeester was a student at USC and a member of USC’s football and tennis teams. After two USC students observed Boermeester put his hand on Jane Roe’s neck and push her against a wall, the two students reported the incident to the USC men’s tennis coach. USC’s Title IX office began an investigation into the alleged incident. During Roe’s interview, she described the following: Boermeester had grabbed the back of her hair hard, which “hurt,” and then grabbed her “tight” by the neck, which caused her to cough. Boermeester then laughed and let go. Thereafter, Boermeester grabbed Roe by the neck twice more and pushed her hard against a concrete wall, which caused her head to hurt. Following her interview, Roe accepted the interim protective measures offered by the Title IX Coordinator.
Thereafter, Boermeester was notified of the charges against him, of the interim protective measures in place, which prohibited him from contacting Roe, and that he was placed on an interim suspension. Roe then asked USC to lift the interim protective measures, recanted her statement, and asked the Title IX Coordinator to dispose of her statement. When Boermeester was interviewed by the investigator, he generally confirmed the events as Roe described them, but denied intending to hurt her. The investigator also interviewed students who heard and/or saw the incident between Roe and Boermeester, friends of Roe and Boermeester, and Boermeester’s ex-girlfriend. Grainy surveillance camera footage of the incident showed Boermeester grabbing Roe by the neck and pushing her against the wall.
The investigator determined that Boermeester violated USC’s misconduct policy by engaging in intimate partner violence. The Title IX Coordinator held separate hearings for the parties, known at USC as an “Evidence Hearing,” where each party receives the opportunity to present a statement or evidence and to submit questions for the Title IX Coordinator to ask the other party. The Title IX coordinator has discretion to exclude inflammatory, argumentative, or irrelevant questions. The parties could also present “new information,” which would be shared with the other party for a response.
USC’s Misconduct Sanctioning Panel, which was composed of two staff or faculty members and undergraduate students, reviewed the investigator’s findings and decided upon expulsion. Boermeester appealed to the Vice President of Student Affairs, but the decision to expel him was ultimately upheld.
Proceedings in the Superior Court and Court of Appeal
Boermeester filed a petition for writ of mandate in the Superior Court, which the Superior Court denied. Boermeester then appealed, and the California Court of Appeal for the Second District reversed, remanding the matter back to the trial court. Although the appellate court agreed with the trial court on many points, as described below, it took issue with how the trial court treated the issue of Boermeester’s rights of cross-examination at the disciplinary hearing.
Boermeester’s basis for seeking relief from the courts was the contention that he did not receive sufficient notice of the allegations against him, that his interim suspension was unfair because it was imposed without a hearing and the evidence was insufficient to support it, and that the disciplinary proceedings against him were unfair.
First, the court held that Boermeester received sufficient notice of the factual basis of the allegations against him, and a meaningful opportunity to respond to those allegations. USC provided Boermeester notice of the allegations against him, the alleged policy violation, and the specific acts, date/time, and location where the alleged conduct occurred. USC also provided Boermeester the evidence compiled by the investigator and the opportunity to provide written statements regarding the evidence.
Second, the court held that Boermeester was informed of the evidentiary basis for the interim suspension and there was sufficient evidence to support the interim suspension. USC policy allows for interim protective measures to be imposed when there is information that the accused student poses a substantial threat to the safety or well-being of anyone in the university community, which is determined by weighing specific factors. USC policy also provides the accused student 15 days to request that the Vice President of Student Affairs review the interim measure. Boermeester requested that the interim suspension be discontinued or modified, but the Vice President of Student Affairs denied the request. Also, the court held that students are not entitled to a hearing before interim measures are imposed.
Finally, the court held that nevertheless Boermeester’s hearing did not meet the requirements of fair process. The court explained that “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.” To facilitate the assessment of credibility, the cross-examination of witnesses may be conducted directly by the accused student or his representative, or indirectly by the adjudicator or by someone else, and that witnesses may appear in person, by videoconference, or by another method. The court also explained that the cross-examiner has discretion to omit questions posed by the parties that are irrelevant, inflammatory, or argumentative.
The court reversed the matter and remanded it to the superior court with directions to grant Boermeester’s petition for writ of administrative mandate. The court further noted that “[s]hould USC choose to proceed with a new disciplinary hearing, it should afford Boermeester the opportunity to directly or indirectly cross-examine witnesses at an in-person hearing.”
California Supreme Court’s Upcoming Review
USC filed a petition for review in the California Supreme Court and the Court granted the petition, agreeing to decide certain issues in the case. It has de-published the Court of Appeal opinion in light of this grant of review, so that the opinion no longer has precedential effect.
The California Supreme Court will weigh in on certain questions regarding the cross-examination issue, including:
- Under what circumstances, if any, does the common law right to fair procedure require a private university to afford a student who is the subject of a disciplinary proceeding with the opportunity to utilize certain procedural processes, such as cross-examination of witnesses at a live hearing?
- Did the student who was the subject of the disciplinary proceeding in this matter waive or forfeit any right he may have had to cross-examine witnesses at a live hearing?
- Assuming it was error for the university to fail to provide the accused student with the opportunity to cross-examine witnesses at a live hearing in this matter, was the error harmless?
The Supreme Court’s findings on these questions will be significant for public and private educational institutions alike.
Boermeester v. Carry (2020) 49 Cal.App.5th 682, as modified (June 4, 2020), reh’g denied (June 18, 2020), review granted and ordered not to be published (Cal. 2020) 268 Cal.Rptr.3d 688.