SAN FRANCISCO (CN) — Reversing an appellate panel, the California Supreme Court on Monday ruled students at private universities have no right to cross-examine witnesses at disciplinary hearings.
However, private universities do have a responsibility for creating a method to ensure proper notice and opportunity for people to be heard in sexual misconduct and intimate partner violence matters.
“We hold that, though private universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, they are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually,” Associate Justice Joshua Groban, a Jerry Brown appointee, wrote in the unanimous decision.
The case stemmed from Matthew Boermeester’s 2017 expulsion from the University of Southern California after Boermeester was accused of grabbing a woman’s throat and pushing her into a wall. He faced an evidentiary hearing that led to a recommendation of expulsion from a misconduct sanctioning panel.
An appellate panel recommended reducing the penalty to two years’ suspension and a year in an intimate partner violence program. The vice president of student affairs declined that recommendation, saying expulsion was appropriate.
Boermeester filed a petition for writ of administrative mandate, which was denied by a Los Angeles Superior Court judge. However, the Second Appellate District reversed, finding the university’s disciplinary procedures were unfair because Boermeester couldn’t question his accuser, either directly or indirectly, along with other witnesses at a live hearing.
The California Supreme Court justices disagreed. Groban cited Senate Bill 493, from the 2019-2020 legislative session, which details procedures universities must use when dealing with sexual violence incidents.
“Senate Bill 493 does not apply here since the incident itself and USC’s subsequent investigation of the incident occurred prior to Senate Bill 493’s effective date,” Groban wrote for the court. “We nevertheless find it noteworthy that the statute does not require universities to conduct live hearings featuring cross-examination of the accuser and other witnesses.”
Private universities should have “broad discretion” when creating their disciplinary procedures. Those processes should give the accused a chance to be heard, but also give victims an impetus to report incidents, encourage witnesses to participate and provide for a private institution to focus its resources on the main mission of providing education.
Moreover, while the appellate panel found students should have a “back-and-forth questioning” in a live hearing to properly present a defense, the high court ruled that private universities aren’t properly equipped to act as courts. They lack subpoena power and depend instead on the willing participation of witnesses.
Boermeester and the accuser had separate evidence hearings and both had the opportunity to attend their respective hearings. While Boermeester couldn’t cross-examine witnesses in real time, he could have given a defense at his hearing if he’d opted to attend.
The accuser later recanted her testimony, agreeing with Boermeester the incident was playful. However, Boermeester still had the chance to indirectly cross-examine the accuser about any inconsistencies and that was sufficient, the high court ruled.
“Boermeester thus had the opportunity to submit questions to be asked of the most important witness — the person he allegedly hurt,” Groban wrote. “Moreover, USC, as the finder of fact, was entitled to determine that (the accuser's) first statement was more credible than her later recantation.
“In conclusion, USC was not required to provide Boermeester the opportunity to directly or indirectly cross-examine (the accuser) and other witnesses at a live hearing with Boermeester in attendance, whether in person or virtually.”
The panel reached no decision on Boermeester’s other claims about fairness, including whether other university processes were unfair because its investigator both investigated and adjudicated the case. The high court remanded those issues to the Second Appellate District.
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