SAN FRANCISCO (Legal Newsline) - A former USC football kicker who was expelled over a charge he physically assaulted his sometime girlfriend had no right to confront his accuser in person or on video, the California Supreme Court said, overruling an appeals court decision that USC’s Title IX disciplinary process was unfair.
While private universities must provide a basic level of fairness, including notice and the opportunity to be heard, the California Supreme Court ruled, courts can’t compel them to adopt rigid procedures they must “invariably” follow. Instead, schools must have the flexibility to balance the competing interests of fairness to the defendant and protecting the privacy and emotional health of the accuser, the court said.
Matt Boermeester was brought under Title IX investigation for intimate partner violence in 2017 after a witness told school officials he saw the football player assaulting his on-and-off girlfriend in the alley behind their apartment. The woman, identified as Jane Roe, at first told investigators an intoxicated Boermeester had grabbed her throat and pushed her head against a wall after she refused to drop the leash to her dog. Roe later recanted, however, telling investigators she was “freaked out” and feared retaliation from the football team.
USC’s policy gave accuser and accused “individual and separate” opportunities to review the evidence and respond at hearings conducted by the university’s Title IX office. The Title IX investigator would then prepare a summary administrative review (SAR) for a misconduct panel of one undergraduate student and two staff.
Boermeester challenged his expulsion before an appeals court, which ruled the school should have given him the opportunity to cross-examine his accuser, in person or over video, in a live hearing. But that was a step too far, the California Supreme Court said in a July 31 decision.
“Though private universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, they are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing,” the court said. “Courts should not attempt to fix any rigid procedures that private organizations must `invariably’ adopt.”
The court acknowledged Title IX disciplinary procedures have been under fire since the Obama administration issued a “Dear Colleague” letter in 2011, instructing colleges to adopt procedures making it easier for accusers to prove sexual-assault claims in disciplinary proceedings. That led to a wave of lawsuits by students accusing the schools of unfairly disciplining or expelling them. The letter was rescinded in 2017 but students, including Boermeester, still challenge the Title IX process and several California courts have required schools to provide live cross-examination of witnesses, which the Supreme Court has now ruled is unnecessary.
In this case, two witnesses said they saw Roe arguing with a man in the alley. One reported it to the men’s tennis coach, who reported it to the Title IX office. The other witness said he originally downplayed the incident to investigators because Roe was afraid of Boermeester and had asked him to “keep it on the down low.” That witness later said he saw Boermeester with both hands around Roe’s neck and went out to ask them how things were going.
The Title IX office also obtained surveillance video from two buildings away showing Boermeester and Roe in a physical altercation that ends when a third person comes out.
Boermeester acknowledged he had put his hand around Roe’s next but said it was “horsing around” or sexual foreplay. Roe didn’t want to participate in the investigation and later said Boermeester was only engaging in horseplay with her.
“Because intent was irrelevant under USC’s policy against intimate partner violence, USC could have based its decision to expel Boermeester exclusively on Roe’s initial statement, the video consistent with that statement, and Boermeester’s own admissions — all of which tended to show that Boermeester caused Roe physical harm,” the high court ruled, however. “USC, as the finder of fact, was entitled to determine that Roe’s first statement was more credible than her later recantation.”