COLLINS, J. —
University of Southern California (USC) found that student "John Doe"
John petitioned for a writ of mandate in the superior court, arguing that he was not afforded a fair hearing and that there was insufficient evidence to support the Appeals Panel's finding that he violated the Student Conduct Code. The court rejected John's fair hearing challenge. It also held that there was substantial evidence to support the Appeals Panel's finding that John violated section 11.44C by encouraging and permitting the other students' behavior, but that there was not sufficient evidence to support the finding that John violated section 11.32 by endangering Jane.
John appeals on both procedural and substantive grounds. USC cross-appeals the trial court's ruling granting John's petition as to section 11.32.
John argues that he was denied a fair hearing. We agree. Although SJACS gave John a list of Student Conduct Code sections he allegedly violated, SJACS did not provide John with any notice of the factual basis for these charges. The SJACS investigation and report focused on alleged sexual assault and whether Jane consented to sexual contact. The Appeals Panel, on the other hand, suspended John for encouraging other students to slap Jane and for endangering Jane after all sexual contact had ended. Because John never received notice of the factual basis of the allegations and the SJACS investigation focused on Jane's consent to sexual activity, John was not afforded an adequate opportunity to defend his actions relating to the slaps or leaving the bedroom. USC therefore failed to provide John fair notice of the allegations that resulted in suspension, or an adequate hearing on those allegations.
John also argues there was insufficient evidence to support the Appeals Panel's finding that he violated section 11.44C. USC argues on cross-appeal that the Appeals Panel's finding that John violated section 11.32 should be reinstated; John argues there is insufficient evidence of this violation as well. We agree with John that the evidence does not support the Appeals Panel's findings as to either violation. There is no substantial evidence that John encouraged or permitted other students to slap Jane on the buttocks in violation of section 11.44C, because the evidence does not demonstrate that John knew they would slap Jane or that John was in a position to prevent them from doing so. There is also no evidence to support a violation of section 11.32, because the Appeals Panel's finding that John endangered Jane by leaving the bedroom contradicts both John's and Jane's recollections of relevant events. The trial court's judgment is therefore affirmed in part and reversed in part.
The following facts are taken from the administrative record. The basic facts are undisputed, although there are some inconsistencies in the details. Relevant factual discrepancies are discussed in the following section relating to the investigation.
Jane, who was a student and athlete at USC, and a group of her friends attended a fraternity party in January 2013 at a large, off-campus house in the hills near Los Angeles. Jane and her friends caught a bus from the fraternity house to the party location. John, a member of the USC football team, was on the same bus. Also attending the party were two male students from an out-of-state university, "Student 1" and "Student 2," who were friends of John's teammate.
At some point in the evening Jane began to dance, and John began dancing with her. John said that he and Student 1 were both dancing with Jane, "sandwiching" her between them. When asked about this, Jane did not remember whether it had occurred.
Approximately 45 minutes later, Jane and John returned to the bedroom a second time. There were multiple men in the room, and people were continually entering and exiting the room. Jane could not remember if she had vaginal intercourse with John again. She performed oral sex on John for about 15 to 30 seconds while lying on her stomach and elbows. As she did this, Jane was either completely undressed or her dress was pulled up over her hips. Someone behind Jane pulled her to her knees, and she felt her vagina being penetrated intermittently with penises and fingers.
This interaction lasted for one to two minutes. Jane did not say anything to John or the other men, or did she ask them to stop.
All physical contact ceased "immediately" or "instantly" upon John's observation that Jane was upset and crying. John pulled away from Jane and according to Jane he "jumped, like not jumped up, but sped off the bed." Once John got up, John and the other men dressed and left the room within 20 seconds. John estimated that the entire second encounter in the bedroom lasted five minutes or less. Jane's friend witnessed Jane emerge from the bedroom; Jane was crying and clearly upset.
After the students returned to campus, John approached Jane and apologized for the other men, saying, "I don't know why they smacked you." Later, Jane texted to John, "Thanks for a good night. Your friends suck though." A week or two later, Jane approached John at another party and tried to dance with him or talk to him; she thought she might "still have a chance with him." John either ignored Jane or declined to dance with her.
The incident happened in January 2013. Jane reported it to SJACS in August 2013.
The progression of the investigation, as included in the administrative record, is set forth sequentially below. The administrative record contains written reports detailing four interviews with Jane, two interviews with John, and interviews with several additional witnesses.
Turner and La Shonda Blunt Coleman, who is identified as the director of the center for women and men, first interviewed Jane on August 30, 2013. Jane reported that her memories of the night were foggy as a result of her intoxication. She said her memory of the first and second encounter blurred together. She told investigators about the lap dance, and said that her memory began to get "jumbled" starting from the first time she went into the bedroom with John and Student 1. She said she was "more drunk" the second time they went to the bedroom. She knew other men were in the room at the time, but she thought John would kick them out. Jane reported that she did not consent to sexual activity with anyone other than John the second time they were in the bedroom together.
The interview notes reflect Jane's statement that during the second encounter, "`One guy starts to forcefully finger me.' She recognized the voice as that of [John's] friend from the first incident. He was saying `How do you like that' and making other comments in a degrading and demoralizing manner." The interview notes say that John was also "`saying stuff; dirty things about me,'" and John and the other men were "prompting and urging each other on in the activity." Jane did not verbalize anything when the other men began to touch her, but the men were hurting her. Importantly, Jane did not mention anything about being slapped in this interview.
The interview notes state, "She was being hurt and started crying." As soon as John observed out loud that Jane was crying, John and the other men stopped, quickly dressed, and left the room within 20 seconds, leaving Jane on the bed. One man who was not involved in the incident remained in the
On September 4, USC sent a letter to John stating, "A report has been received in this office that you allegedly have violated the University Student Conduct Code." It included the date of the incident, and the location as an off-campus fraternity event. The letter set out 11 different sections of the Student Conduct Code that John allegedly violated:
The September 4 letter included no factual information about the incident that led to the alleged violations. The only hint that the accusation involved John's contact with Jane is that the letter instructed John to refrain from contacting or communicating with Jane. The letter also stated, "If you wish to inspect the report cited in this letter, you must make a written request to do so 24 hours in advance of the day you wish to review the report." It went on to say, "A summary of the procedures for this process is enclosed." No summary of procedures is included with the letter in the record on appeal.
On September 5, Blunt Coleman signed a single-page form titled "Report of Alleged Violations to the USC Student Conduct Code." It stated that the named student (John) was aware of the report. It included Jane's name as the "individual affected," but contained no information about the nature of the alleged violations.
On September 6, SJACS interviewers met with "B," one of Jane's friends who attended the party. B reported that she and other friends were in the hallway of the house when she saw Jane in a bedroom with multiple men. They asked if she was okay, Jane said she was fine, and someone closed the bedroom door. The friends later witnessed Jane emerge from the bedroom upset. Jane told B that at least one person other than John had sex with her. On September 10, SJACS interviewers met with "S," another of Jane's friends who attended the party. S saw Jane go into the bedroom with John and "2-3 other guys." The interview notes state, "[Jane] told [S], `I'm OK' and told them to go, so they left." S did not witness Jane emerge from the room, but later witnessed Jane crying on a couch in the hallway. Jane never told S what happened.
On September 16, Turner of SJACS interviewed Jane a second time. Blunt Coleman was present, and is identified as Jane's advocate. The facts Jane relayed were largely consistent with her first interview. The interview notes say that after John asked if she was crying, "[t]he men stopped immediately, they dressed and they all left." Jane reiterated that her memory of the night was "spotty" as a result of her intoxication. Jane also said the alcohol affected her judgment; had she been sober, she would not have "gone in a room with a bunch of guys." Again, Jane mentioned nothing about being slapped.
When discussing the incident, John emphasized that all of his contact with Jane was consensual. This interview contains the first mention of anyone slapping Jane on the buttocks. John told interviewers that during the second sexual encounter, Student 1 slapped Jane's buttocks hard. The slap was "[h]ard, not cool by the sound." Then Student 2, who was not initially in the room but entered after the sexual activity began, slapped Jane's buttocks hard a second time. John said, "It happened so fast I couldn't stop them." John emphasized, "By no means did I put hands on her like that or have unconsensual conduct with her." At one point in the interview John indicated that he got dressed quickly after the slaps occurred; he said at another point that he was already getting dressed when the slaps occurred. He stated, "I didn't leave her there (with the guys). She was alert. Not passed out. I made sure those two guys left" before he left the room. The notes also state, "I got dressed. I had them leave. They said, Are you kidding? [John] had them leave then he left the room." When asked if he checked on Jane afterward, John responded, "I watched her pull her dress down and walked out. I should have checked on her at the time. I didn't know she was upset about it."
The same day, interviewers met with "Y," another of Jane's friends who attended the party. Y witnessed Jane emerge from the bedroom crying. The interview notes state, "[Jane] told them that while she was in there she only thought she was going to give [John] a blow job. Then other guys came up behind her. She didn't know how many people she had sex with." Y was also with Jane when John approached her after the party and apologized for the other students' behavior.
On October 1, interviewers met with the man the parties refer to as "Witness 6," John's friend who also attended the party. Witness 6 saw John and Jane dancing together, and then noticed that John disappeared. Witness 6 reported that when John returned, he told Witness 6 that he had sex with the girl he danced with (Jane) and that she was still in the room with Student 1
Also on October 1, interviewers met with Jane for a third time. The interview notes state that the purpose of the meeting was to determine "which of [John's] behaviors [Jane] was ok with and those which made her feel uncomfortable; which were consensual and which were not consensual." Jane confirmed that the first sexual encounter with John and Student 1 was consensual in its entirety. She said that during the second encounter she was aware other people were in the room with her and John. The notes state that "someone got rough and [Jane] thought she would cry." Then Jane mentioned for the first time that someone "slappe[d] her on the butt, hard."
On October 3, interviewers met with John a second time to "try to fill in gaps now that information has been gathered from other witnesses." In the meeting notes, there is no indication that they discussed the investigation procedure or John's rights again. The notes show that interviewers asked, "Part of what she's saying is one or more people had rough sex with her that she didn't consent to the second time. Looking into if you had any role in that by encouraging it. [John] stated that he did not (and shook his head in the negative). [¶] [Interviewer]: We are not so much interested in the first incident, but whether the second incident could be considered a gang rape. We are looking into this to see if she was or was not in a position to consent" due to her intoxication. John said that Jane did not seem excessively intoxicated.
On October 4 interviewers met with "C," another friend of John's who also attended the party. Student 1 and Student 2 were his friends from high school. C said he witnessed John, Jane, and Student 1 dance together before disappearing down the hallway together. He said he saw John, Student 1, and Student 2 emerge from the bedroom together.
On October 22 interviewers met with Jane a fourth time. Blunt Coleman also attended as Jane's advocate. The interview notes state, "[Turner] asked [Jane] if she has received all the statements she sent to her. [Jane] replied that she had." The interviewers also stated that notes for the most recent interviews needed to be sent to Jane, and they showed Jane notes from other recent witnesses' interviews during Jane's interview.
Jane reiterated at several points in this interview that she was "drunk" while she and John were interacting. Jane said the men's comments started when the other men began touching her; she did not know when John started making comments. Investigators asked, "Did [John] or anyone tell anyone to do something to you? Were there any directive comments?" Jane replied, "I don't think so." Later investigators asked, "Did anyone tell them to hit you?" Jane replied, "No." The interview notes state, "[Turner] said I know it is hard, but can you tell me what [John] was saying? [Jane] replied, `How do you like that?' [Turner] asked if John was saying that. [Jane] said, `They were all saying it. Like, "Look at her! Oh my god!"'" When asked when John started saying these things, Jane replied that she did not know. She also said, "They would say how do you like that? whenever anything was being done — fingering me violently and hitting me." She added, "[T]hey were all kind of feeding off each other." Later in the interview when asked specifically what John said, Jane replied that he made "[c]omments about my body." Jane also said that during the first encounter John and Student 1 made "comments to each other about my body" that she did not find offensive.
Jane thought the abusive conduct with commentary lasted about a minute or two before she began crying. Within this time frame, she was slapped
On October 24, SJACS representatives met with Y again, and on October 25, they met with B again. Neither added significant facts to her earlier accounts.
SJACS completed its investigation on October 29, 2013, and generated a "Summary Administrative Review" (SJACS report). The SJACS report notes that the investigation and report were completed by Turner and the other administrators who conducted the interviews. The report concluded that John violated nine different sections of the USC Student Conduct Code — all of the sections cited in the September 4 letter, except sections 11.38 (disruption of "normal university or university-sponsored activities") and 11.40 ("Unauthorized use, possession or dissemination of alcohol").
In explaining its findings, two pages of the report criticize John's recollection of the story as "contradicted not only by credible information as provided by other witnesses, including [John's] own friends who attended the party, but also by [John's] own statements when asked to provide further detail." Despite Jane's repeated characterization of her memory as patchy and spotty as a result of her intoxication, the report summarily stated that "[Jane] was found to be a credible witness on the most important contested points." The report concluded, "[O]n the second sexual encounter, [Jane] did not consent to sexual intercourse, oral sex, assault, or any form of vaginal penetration with anyone other than [John.]" It found that John "had control over the number of individuals in the room" and therefore "he was the one who allowed men, other than himself, to remain in the room, unbeknownst to [Jane]." The report went on to say, "Given [Jane's] credibility and [John's] lack of credibility (and distortions of the facts), we find more credible than not [Jane's] assertion that [John] encouraged the other men to assault and penetrate [Jane]." Despite Jane's clear affirmation that the first group sexual encounter was consensual, with respect to the second encounter, the report stated, "SJACS does not find it credible that [Jane] consented to sex with two or more men...."
John was suspended for more than two years, effective immediately. During that time, he would not be allowed to complete any work toward a USC degree. Once the suspension period was complete, he would be required to demonstrate his "preparedness" to re-enroll to the associate vice-provost of student affairs; otherwise he would not be allowed to re-enroll.
John was informed of the SJACS decision in a long letter that reiterated SJCAS's findings. The letter stated, "[John] actively participated, in concert with [Student 1], [Student 2] and the other men who touched or sexually penetrated [Jane], in the sexual assault of [Jane] by allowing and encouraging the assault. Through his actions and comments, [John] encouraged and assisted in the sexual assault that [Jane] suffered." The letter imposed the same penalties as the SJACS report, with an added requirement that John "must provide proof of counseling regarding the issues raised by the January 26, 2013 incident including alcohol use/abuse. Verification of counseling from a licensed therapist or counselor" was required to be submitted to the school prior to re-enrollment. The letter provided John with information about how to appeal the decision.
John retained counsel and appealed to USC's Appeals Panel. He pointed out in his appeal letter that despite minor discrepancies in the various accounts of the evening, the major facts were not in dispute: Jane engaged in consensual sexual activity with John and Student 1 at least once; Jane and John engaged in consensual sexual activity twice; Student 1 and Student 2 exceeded the scope of Jane's consent by slapping her; and John terminated the second sexual encounter immediately upon discovering that Jane was upset. The letter highlighted numerous inconsistencies in the evidence, argued
No response to John's appeal letter from SJACS or any other USC administrative body appears in the record. Jane submitted a letter detailing the difficulties she had experienced after the incident, which she characterized as a rape. She also stated that she is uncomfortable on campus knowing that John is still there, and concluded, "I do not believe that the University is enforcing its Title IX responsibilities for responding effectively and immediately to reports of sexual harassment, or quelling what is currently a hostile environment. I expect that the University will hold [sic] its original decision for my case in order to ensure my safety, comfort, and peace on this campus."
The Appeals Panel issued its decision in March 2014. The Appeals Panel opined that the procedural process was fair and that an evidentiary hearing was not required. The written decision stated, "[T]he questions presented for this panel's review are whether the investigator failed to follow university rules while reviewing the cited behavior and whether the sanction imposed is excessive or inappropriate. Our decision is subject to review and approval by the Vice Provost, Student Affairs, and once approved is a final decision without further appeal." Because John argued in his appeal letter that the investigation was biased, the Appeals Panel "examined particularly carefully whether the evidence supports each finding and whether the findings support the conclusion as to each of the specific violations cited."
The Appeals Panel disagreed with SJACS on several important points. The Appeals Panel held that the second sexual encounter could not support a finding that John encouraged or participated in a sexual assault. The panel noted that John, Jane, and Student 1 engaged in consensual group sex once, and that the second interaction "involved sexual behavior with the same two people in the same place only 45 minutes apart. Thus it was reasonable for the accused to believe that the complainant's consent for sexual activity with [Student 1] was ongoing from the first encounter until the complainant signaled otherwise by word or deed." The Appeals Panel found, however, that there was no "reasonable basis for the accused to believe the complainant consented to being struck by anyone." The Appeals Panel therefore found that Student 1 and Student 2 improperly slapped Jane, John encouraged or permitted the slaps, and John endangered Jane by leaving the bedroom while Jane was still in the bedroom with Student 1 and Student 2.
Second, the Appeals Panel found that John violated Student Conduct Code section 11.32B, which prohibits "[c]onducting oneself in a manner that endangers the health or safety of other members ... within the university community." The Appeals Panel credited Witness 6's statement, holding that SJACS "reasonably read the evidence as showing it was more likely than not that the accused exited the room before [Student 1 and Student 2], leaving the complainant in the room with the two men." As a result, "the accused abandoned the complainant by leaving the room before the two men who had accosted her, and thus endangered her safety."
The Appeals Panel reduced John's suspension from two years to one year. It upheld the remaining restrictions and conditions.
John challenged the Appeals Panel's decision in a petition for writ of mandate under Code of Civil Procedure, section 1094.5 filed in the superior court.
In his writ petition, John argued that the investigation and hearing process were unfair in that he was deprived of an adversarial proceeding in which he could challenge the evidence presented against him. He also argued that he
The trial court held that USC's procedure was fair because John had the opportunity to tell his side of the story in his two interviews, and he had the right to request any materials collected in the investigation. The court also held that John's "argument that he was denied fair notice of the issues being considered at the hearing is a non-starter. While he claims that he was not informed of the charges against him until the Appeal Panel rendered its decision, the record clearly shows that he was informed of all the charges against him from the outset. SJACS sent Petitioner a letter on September 4, 2013, that quoted each of the alleged violations, including the two he was eventually found guilty of, and stated the investigation was in connection with Jane Doe." In addition, "The Appeals Board [sic] decision did apply the code provisions to the facts in a systematic and thorough manner."
The trial court also held that substantial evidence supported the Appeals Panel's determination that John violated section 11.44C. Noting that John and other men were "encouraging each other," the court said, "[O]nly when Jane started crying did Petitioner make a ridiculing (or incredulous) comment `is she crying?' ... and stop the encounter." The court went on to say, "The argument that everything was consensual does not automatically provide immunity.... [¶] Petitioner allowed Jane Doe to be sexually abused in the primal sense. She chose to be with him albeit in a drunken state. That he invited another so called drunken man to also engage in sex with her in a drunken state is a phenomenon that the word `consensual' does not apply to in a civilized society. [¶] Given her condition, what would a civilized, rational person do? [¶] He would protect her." The court concluded, "The Appeals Board [sic] was justified in finding that Petitioner violated this section by not taking some affirmative step to prevent the misconduct that his acquaintances were committing right in front of him."
However, the trial court held that substantial evidence did not support the Appeals Panel's decision that John violated section 11.32. The court noted that both Jane and John stated that the men left together, and held that the Appeals Panel erred by relying on the less reliable testimony of Witness 6. The court therefore granted John's petition with respect to the violation of section 11.32, and denied the remainder of the petition.
John timely appealed and USC cross-appealed.
The scope of our review from a judgment on a petition for writ of mandate is the same as that of the trial court. (Department of Corrections & Rehabilitation v. State Personnel Bd. (2015) 238 Cal.App.4th 710, 716 [189 Cal.Rptr.3d 619].) "An appellate court in a case not involving a fundamental vested right reviews the agency's decision, rather than the trial court's decision, applying the same standard of review applicable in the trial court." (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261 [188 Cal.Rptr.3d 655].)
With respect to a petition for writ of mandate, we determine "whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion." (Code Civ. Proc., § 1094.5, subd. (b).) "Abuse of discretion is established if the respondent 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 the fairness of the administrative proceeding de novo. "A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law." (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482 [22 Cal.Rptr.3d 772].) "The statute's requirement of a `"fair trial"' means that there must have been `a fair administrative hearing.'" (Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 96 [167 Cal.Rptr.3d 148]; see Pomona College v. Superior Court, supra, 45 Cal.App.4th at p. 1730.) Where student discipline is at issue, the university must comply with its own policies and procedures. (Berman v. Regents of University of California (2014) 229 Cal.App.4th 1265, 1271 [178 Cal.Rptr.3d 62].)
We review the Appeals Panel's substantive decision for substantial evidence. (Code Civ. Proc., § 1094.5, subd. (c) ["abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record"].)
John argues that he was not provided sufficient notice of the charges that were ultimately imposed, because the Appeals Panel relied on an entirely different theory to justify sanctions against John compared to that relied upon
Section 17.03 of the student guidebook states that one of the "procedural protections" granted to accused students is "[w]ritten notice of the incident report that specifies the nature of the alleged violation and the basis for the charge including the date and period of time and location of the alleged incident." USC provided John notice of the code sections he allegedly violated, but it did not provide any information at any stage about what activity ultimately would form the basis for those violations and related penalties. There was also no hearing, as that term is commonly understood. Instead, SJACS did its investigation by interviewing witnesses and writing its report recommending penalties, which John appealed to the Appeals Panel.
"At the very minimum, therefore, students facing suspension ... must be given some kind of notice and afforded some kind of hearing." (Goss, supra, 419 U.S. at p. 579, italics omitted.) The hearing need not be formal, but "in being given an opportunity to explain his version of the facts at this discussion, the student [must] first be told what he is accused of doing and what the basis of the accusation is." (Id. at p. 582.)
Here, both the notice and the hearing were insufficient.
In the initial letter from SJACS, John was not apprised of the factual basis of the accusations against him; he was given only a list of code sections, a date, and Jane's name. After its investigation, SJACS found that sanctions were warranted because John participated in a group sexual assault. The Appeals Panel, on the other hand, found that sanctions for sexual assault could not be supported on the record. Instead, the Appeals Panel found that John violated section 11.44C because John encouraged or permitted the other students to slap Jane. John was never provided notice or an opportunity to respond to the theory that his actions in relationship to the other students' slaps, separated from the remaining activity, could result in his suspension. The Appeals Panel also found that John violated section 11.32 because he endangered Jane when he left the bedroom. The factual basis for this finding is troubling, because the SJACS report does not even suggest that Jane was in danger when John left the room, or that John endangered Jane by his actions after the group activity ceased. Because John had no notice that such allegations were at issue, he had no opportunity to defend himself.
Moreover, in the only times when John did have an opportunity to explain his actions — during the SJACS interviews — the SJACS investigators led John to believe that the only issue was whether sexual contact with Jane was consensual. They did not inform him that they were investigating whether John encouraged the other students' slaps or if Jane was in danger after John left the room. The notes for John's second interview state, "[Interviewer]: Part of what she's saying is one or more people had rough sex with her that she didn't consent to the second time. Looking into if you had any role in that by encouraging it. [John] stated that he did not (and shook his head in the negative). [¶] [Interviewer]: We are not so much interested in the first incident, but whether the second incident could be considered a gang rape. We are looking into this to see if she was or was not in a position to consent" due to her intoxication. John also stated at this interview, "The only thing I'm upset about ... the only thing I did with her was completely consensual. I feel I was completely respectful. I was so shocked that my name came up." The investigator's statements, John's comments, and John's emphasis on Jane's consent through both interviews indicate that the investigation focused on whether John's and Student 1's sexual contact with Jane was consensual. There is no indication from either John or the investigators in any of the interviews that John was informed that he could be penalized based on other students slapping Jane, or because of the manner in which John left the bedroom afterward.
In support of his argument that notice was lacking, John cites In re Ruffalo (1968) 390 U.S. 544 [20 L.Ed.2d 117, 88 S.Ct. 1222], in which an Ohio
Moreover, the attorney in In re Ruffalo was afforded a continuance to address the new allegation, and the Supreme Court found the process to be unfair nonetheless. Here, John was not afforded any opportunity to address the Appeals Panel's new theory. No further investigation was done once the Appeals Panel rendered its decision, John was not provided any opportunity to be heard on the specific allegations that he permitted the slaps or that he endangered Jane by leaving the bedroom, and the order suspending him from school was effective immediately. This process does not pass muster under In re Ruffalo.
Wheeler also indicates that the procedures here were insufficient. Although John was provided notice of the Student Conduct Code sections he allegedly violated, USC began its investigation by pursuing one theory of discipline (sexual assault), but imposed discipline based on a wholly different theory (encouraging or permitting battery and endangering a student by abandonment). USC argues that unlike the "gross incompetence" in Wheeler, "[e]ncouraging or permitting others to engage in misconduct" is not standardless. In the context of the case before us, we disagree. That SJACS and the Appeals Panel could interpret the term to censure multiple facets of John's conduct shows that the standards were extremely malleable. We recognize that universities need adequate tools to address the very serious and sensitive problem of sexual assault on campus. But it is not too heavy a burden to require that students facing disciplinary action be informed of the factual basis for the charges against them. A charge of "[e]ncouraging or permitting others to engage in misconduct" that can penalize completely different behavior based on the decision maker (SJACS versus the Appeals Panel), without notice to the student, is indeed as standardless as the undefined "gross incompetence" in Wheeler.
The lack of a hearing that would have allowed John to respond to the evidence presented against him compounded the problems arising from the lack of sufficient notice. The notes from Jane's fourth interview make clear that Jane had been provided copies of SJACS's notes relating to every witness, including those who had very little relevant knowledge. John, on the other hand, did not receive any information regarding the other witnesses' testimony. USC argues that John did not have that information because he "did not avail himself of the right to inspect records until after he filed his administrative appeal." In addition, USC argues that the SJACS investigation, decision, and Appeals Panel process constituted a sufficiently fair hearing: "The accused also has the right to know the charges against him, to see the evidence against him, upon request, and to respond fully to the charges, both orally and in writing. The accused also has the right to appeal the initial findings to a three-member panel. This is a hearing."
Under the circumstances of this case, we disagree that this hearing meets the fair hearing requirements of Code of Civil Procedure, section 1094.5, subdivision (b). As noted above, John was not informed about the factual basis for the charges for which he was ultimately sanctioned. He therefore never had a sufficient hearing affording him the opportunity to respond fully to those charges.
We recognize that "the pure adversary model is not entitled to constitutionally enshrined exclusivity as the means for resolving disputes in `[t]he incredible variety of administrative mechanisms [utilized] in this country....'" (Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1581 [5 Cal.Rptr.2d 196], quoting Withrow v. Larkin (1975) 421 U.S. 35, 52 [43 L.Ed.2d 712, 95 S.Ct. 1456].) Rather, "[s]pecific requirements for procedural due process vary depending upon the situation under consideration and the interests involved." (Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 657 [163 Cal.Rptr. 831].)
There are few cases defining fair hearing standards for student discipline at private universities.
The parties reply in part on Dixon v. Alabama State Bd. of Education (5th Cir. 1961) 294 F.2d 150, 159 (Dixon), which held that when a student is facing disciplinary sanctions, "the student should be given the names of the witnesses against him and an oral or written report on the facts to which each witness testifies. He should also be given the opportunity to present to the Board [of Education], or at least to an administrative official of the college, his own defense against the charges and to produce either oral testimony or written affidavits of witnesses in his behalf. If the hearing is not before the Board directly, the results and findings of the hearing should be presented in a report open to the student's inspection. If these rudimentary elements of fair play are followed in a case of misconduct of this particular type, we feel that the requirements of due process of law will have been fulfilled." (See also Andersen v. Regents of University of California (1972) 22 Cal.App.3d 763, 771 [99 Cal.Rptr. 531] (Andersen) ["As said in Dixon, supra, the student is entitled to (1) a notice containing a statement of the specific charges against him, the names of the witnesses and a statement of the gist of their proposed testimony, and (2) a hearing the scope and nature of which should vary according to the circumstances of the particular case. The hearing need not be a full dress judicial hearing but one giving the student a full opportunity to present his defenses."]; Goldberg v. Regents of University of Cal. (1967) 248 Cal.App.2d 867, 882 [57 Cal.Rptr. 463] (Goldberg) [due process requirements were met where the student plaintiffs "received a proper advance notice of the hearing specifying the particular charges and suggesting that they might wish to obtain counsel," and "[p]laintiffs were represented by counsel and given ample opportunity to hear and observe the witnesses against them and to present their own defense"].)
USC argues the procedural protections required in Dixon were in place here because John had access to information submitted by the other witnesses and an opportunity to respond to that evidence — had he requested it. But requiring John to request access to the evidence against him does not comply with the requirements of a fair hearing. (See, e.g., Goss, supra, 419 U.S. at p. 582 ["in being given an opportunity to explain his version of the facts ... the student [must] first be told what he is accused of doing and what the basis of the accusation is"]; Dixon, supra, 294 F.2d at p. 159 ["the student should be given the names of the witnesses against him and an oral or written report on the facts to which each witness testifies"]; Andersen, supra, 22 Cal.App.3d at p. 771 ["the student is entitled to ... the names of the witnesses and a statement of the gist of their proposed testimony..."]; Goldberg, supra, 248 Cal.App.2d at p. 882 [students should be "given ample opportunity to hear and observe the witnesses against them"].)
A similar procedure was also rejected by the Supreme Court in English v. City of Long Beach (1950) 35 Cal.2d 155 [217 P.2d 22]. There, the civil service board was considering whether a police officer's physical limitations interfered with his ability to perform his duties. Before the required employment hearing, "[m]embers of the board took evidence outside the hearing and outside the presence of [the officer] or his attorney. Some of them talked to one of the examining doctors, and one member questioned his personal physician concerning the relation of [the officer's] asserted disability to the performance of the duties of his position." (Id. at p. 157.) The officer was afforded a hearing, but the board members relied in part on the evidence they had gathered before the hearing in determining that the officer's employment should be terminated. On appeal, the Supreme Court held that the officer was denied a fair hearing. "The action of such an administrative board exercising adjudicatory functions when based upon information of which the parties
Here, SJACS relied on information never revealed to John, and the Appeals Panel suspended John on a different theory than SJACS. John was not provided any information about the factual basis of the charges against him, he was not allowed to access any evidence used to support those accusations unless he actively sought it through a written request, and he was not provided with any opportunity to appear directly before the decisionmaking panel to rebut the evidence presented against him. While a full trial-like proceeding with the right of cross-examination is not necessary for administrative proceedings, we cannot agree with USC that the process afforded to John met the standards of a fair hearing under Code of Civil Procedure section 1094.5.
John argues that even if we find that the hearing was fair, the decision of the Appeals Panel should nonetheless be overturned because any finding that John violated section 11.44C was not supported by substantial evidence. USC argues in its cross-appeal that the Appeals Panel's finding that John violated section 11.32 is supported by substantial evidence, and therefore that finding should be reinstated.
When reviewing a university's disciplinary actions, "`[t]he power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, that will support the
Section 11.44C prohibits "[e]ncouraging or permitting others to engage in misconduct prohibited within the university community, failing to confront and prevent the misconduct, notify an appropriate university official of the misconduct, or remove oneself from the situation." John argues that there is insufficient evidence to support the Appeals Panel's conclusion that John "encouraged" or "permitted" Student 1 or Student 2 to slap Jane.
The Appeals Panel adopted a conclusion from the SJACS report stating that "each time a blow was delivered, one of the men, including [John], made taunting and aggressive comments about what she was experiencing." USC quotes this statement no fewer than six times in its briefs in support of the argument that the Appeals Panel's decision was supported by substantial evidence. We find this characterization of events to be unsupported by the record.
First, there are only two accounts of what occurred in the bedroom: John's and Jane's. John stated that two slaps occurred in quick succession, and all contact with Jane ceased very quickly thereafter. Jane's first two interviews do not include any discussion of slaps, and therefore cannot support the Appeals Panel's finding that John permitted or encouraged the slaps.
Second, Jane's accounts were extremely vague about what John actually said. When asked specifically what John said, Jane replied that he made "[c]omments about my body." Interviewers asked Jane again what John said, and Jane replied, "How do you like that?" But this is the comment Jane attributed to Student 1 — not John — in her first interview, before any slaps were mentioned. When asked for clarification about whether John said that (as opposed to the other men), Jane was vague: "They were all saying it.
Third, Jane was very clear that John did not tell the other men to do anything. When asked, "Did [John] or anyone tell anyone to do something to you? Were there any directive comments?" Jane replied, "I don't think so." And later in the same interview: "Did anyone tell them to hit you?" Jane replied, "No."
The Appeals Panel held that while "there is no evidence that the accused directed the activity, SJACS was reasonable in concluding that he encouraged it." The Appeals Panel partially relied on Jane's statement that the men were "prompting and urging each other on in the activity." But Jane said that in her first interview when discussing the rough digital penetration, before she ever mentioned that she was slapped. That comment therefore cannot support a finding that John encouraged or permitted the others to slap Jane. The Appeals Panel also credited Jane's statement that the men were "all kind of feeding off each other," but that statement also did not implicate anything that John may have said relating to Student 1 and Student 2 slapping Jane. In short, we find no support for the assertion that John made taunting and aggressive comments in relationship to the slaps. No substantial evidence supports a conclusion that John "[e]ncourag[ed] ... others to engage in misconduct."
As to whether John "permitted" the misconduct, the Appeals Panel held that John said he saw Student 1 and Student 2 "smack the complainant several times." Without citing any evidence or support, the Appeals Panel concluded that if John tried to stop the nonconsensual conduct, "it is more likely than not that he did so, if at all, only after the complainant began crying." John told interviewers that the slaps occurred "so fast I couldn't stop them." Jane said there may have been as much as 20 seconds between the first and third slaps. The question therefore is whether there is substantial evidence to determine that John "permitted" the other students to slap Jane within the time frame between the first and last slap.
In the six interviews discussing what occurred in the bedroom (two interviews with John and four interviews with Jane), none of the information demonstrates that John, by his words or actions, permitted Student 1 and Student 2 to slap Jane. To conclude that John could have or should have done something to control the other men's behavior necessarily requires an assumption that John knew that Student 1 would slap Jane, and then that Student 2 would follow up with another slap (or, in the case of Jane's fourth interview, that he was aware a third slap would occur). There is nothing in the
USC argues that even if we do not find that John violated the first phrase of section 11.44C by "[e]ncouraging or permitting others to engage in misconduct prohibited within the university community," we should find that John nonetheless violated the second sentence of section 11.44C because he "fail[ed] to confront and prevent the misconduct, notify an appropriate university official of the misconduct, or remove [himself] from the situation." USC acknowledges that the "or" in this phrase is disjunctive, so a student may choose any one of the three actions to comply with the code section.
The evidence unquestionably shows that John complied with the third option — he removed himself from the situation. The nonconsensual activity lasted, at most, 20 seconds (assuming 10 seconds after the first and second slaps). Jane was unequivocal in her statement that as soon as she started crying, all contact ended and the men left within 20 seconds. John therefore left within one minute of the first slap. There is no substantial evidence supporting a conclusion that John failed to remove himself from the situation.
The Appeals Panel held that the way John removed himself from the situation was insufficient to comply with section 11.44C because he "was abandoning the complainant in a situation endangering her, and also because he was fleeing after the misconduct occurred." There is no evidence in the record to support these conclusions. As discussed more fully below, there is no evidence that Jane was in danger after John and the other men left; she told interviewers that she immediately went to the bathroom to collect herself and then returned to her friends. Moreover, the Appeals Panel's interpretation places John in a Catch-22: The language of 11.44C permitted John to remove himself from the situation to comply with its requirements, but the Appeals Panel held that he violated 11.44C by doing so.
An "abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (Code Civ. Proc., § 1094.5, subd. (c).) Here, substantial evidence does not support the Appeals Panel's conclusion that John either encouraged or permitted Student 1 or Student 2 to slap Jane, or that John failed to remove
USC argues in its cross-appeal that substantial evidence supports the Appeals Panel's conclusion that John violated section 11.32, and therefore that violation should be reinstated.
This argument is unpersuasive. USC's suggestion that John endangered Jane's safety simply because she was "in a rented house in Hollywood, far from the USC campus, and full of college students, many of whom had been drinking" is purely speculative. There is no evidence in the record that Jane's health and safety were in any danger after John left the bedroom. There is therefore no evidence that John violated section 11.32 by leaving Jane in the bedroom.
The Appeals Panel concluded that John violated section 11.32, but it reached that decision by disregarding both Jane's and John's accounts of what occurred, and instead relying on the report of John's friend, Witness 6. Witness 6 reported that during the party, John said he left Jane in the bedroom with the other men. The six interviews of Jane and John made clear that this was not correct. Jane said in her first interview that after she cried, John, Student 1, and Student 2 stopped, quickly dressed, and left the room within 20 seconds. In her second interview, she said when she started crying, "they dressed and they all left." In her third interview, Jane said she was not sure if all the men left together, because she went into the bathroom, and nothing about John's departure was mentioned in the fourth interview. John told investigators in his first interview that when he left the bedroom he
Hearsay evidence that contradicts all firsthand accounts of what occurred is not substantial evidence sufficient to support a finding that John endangered Jane's health or safety when he walked out of the bedroom. Under the substantial evidence test, the quality of the evidence is important. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 [51 Cal.Rptr.2d 907].) "`Substantial evidence' is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value." (Ibid.) The hearsay recounted by Witness 6, which directly contradicts the accounts of percipient witnesses John (the alleged source of Witness 6's information), Jane, and C, does not meet this standard. The Appeals Panel's finding that John violated section 11.32 was therefore not supported by substantial evidence.
Because John was denied a fair hearing as required by Code of Civil Procedure section 1094.5, and substantial evidence does not support the Appeals Panel's findings, John's petition for writ of mandate should have been granted.
The judgment is affirmed to the extent that it sets aside USC's decision that John violated Student Conduct Code section 11.32. The judgment is reversed in all other respects, and the matter is remanded to the trial court with directions to grant John's petition for writ of mandate. John shall recover his costs on appeal.
Epstein, P. J., and Willhite, J., concurred.
