This article originally appeared in the Daily Journal on October 22, 2018.

The 2nd District of California’s Court of Appeal published two opinions on the same day earlier this month that both involved John Doe plaintiffs who sought to overturn university disciplinary sanctions. In both cases, the accused was notified of the charges against him and the process for administrative review. In both cases, the accused had an informal hearing/meeting with an administrator from the university’s student judicial affairs office. In both cases, the review officer spoke to other witnesses before making a final decision. And in both cases, the accused was then provided with a formal hearing in front of a two or three-person panel. 

But the two opinions — both published — reached directly opposite results. 

In Doe v. University of Southern California (USC), Division 7 found that Doe had received a fair hearing and due process and affirmed the university’s disciplinary sanction. In Doe v. The Regents of the University of California (at Santa Barbara) (UCSB), Division 6 found that Doe was denied a fair hearing and due process and reversed the university’s disciplinary sanction. 

Although the penalties weren’t identical, they were relatively comparable: a 1-year suspension plus a permanent F grade for the course in USC versus a 2-year suspension in UCSB. Instead, the main difference between the two cases: USC involved an allegation of cheating, and UCSB involved an allegation of sexual assault. A closer look at the two cases leads to the disturbing possibility that the court reached different results about due process only because of the different types of misconduct alleged. 

In USC, the school charged Doe with cheating based on the fact that he and the adjacent student (Student B) had the same version of the final exam, both students had written possible answers in the margin of their exam booklets, and they answered 46 of 50 questions the same. Faculty conducted a statistical comparison of the two exams and determined Doe had cheated. There was no evidence about how the two students had the same version of the exam, and no eyewitness statements that the two looked at each other’s exams or otherwise behaved inappropriately. There was also no evidence as to why Doe would have cheated when his performance on the final exam was consistent with his prior exams. 

Prior to the hearing, USC provided Doe with the faculty report with the statistical analysis, and Doe was permitted to review the exam booklets and answer sheets. Doe testified on his own behalf and submitted character references from two professors, statements from students confirming he had studied for the exam alone, and results of a polygraph exam indicating he had been truthful. He was not, however, allowed to question the faculty who prepared the report alleging cheating, was not permitted to introduce evidence that he had also written proposed answers in the margins of his two midterm exam booklets, and was not permitted to question Student B at the hearing. In addition, Doe established that the faculty report contained two versions of one page of his exam booklet with at least three material differences, calling into question the authenticity of all the pages of his exam booklet and the reliability of the faculty’s conclusion. Nevertheless, the USC court determined that Doe had received a fair hearing.

In UCSB, the university charged John Doe with sexual assault based on allegations that he had crawled into a bed where Jane Roe was sleeping, removed her pajama bottoms, groped her, and penetrated her. Jane was able to get the attention of one of her friends who was sitting on a nearby couch talking (witness one), and John stopped the assault. Witness one confirmed that Jane’s pajama bottoms had been removed and that Jane told her about the assault when she walked Jane home. Jane also reported the assault to campus police and had a medical exam. The medical report confirmed bruising/lacerations consistent with her allegations. USC’s Title IX office investigated and issued a report that substantiated Jane’s claims. Although John took a polygraph test indicating his denial of the allegations was truthful, the examiner could not say whether the test would be reliable if the person was intoxicated at the time of the events in question (which John admitted he was). 

Prior to the formal hearing, UCSB provided John with the initial incident report by the campus police, the Title IX office investigation notes and report, the university’s internal notes and correspondence, and two pages of the medical report. Although John never obtained the entire medical report, one of the pages in evidence indicated Jane had discomfort consistent with a sexual assault, and the detective testified that the medical examiner reported bruising and lacerations consistent with Jane’s allegations. John testified on his own behalf at the hearing and provided live testimony or declarations from three witnesses supporting his denial. John also introduced photographs of the room and testimony from the polygraph examiner. Nevertheless, the UCSB court concluded John was deprived of a fair hearing and due process.

The UCSB court based its conclusion on the fact that the entire medical report was not admitted into the record or provided to John, and the two pages that were submitted did not contain the language about bruising and lacerations. As a result, the court found that “the trier of fact was left to rely on the detective’s recollection and veracity” concerning the report and held that this error alone was prejudicial and required reversal. Additionally, the UCSB court found John was deprived a fair hearing because the medical report pages that were produced shortly before the hearing revealed that Jane was taking an anti-depressant, but it was too late to hire an expert to testify about supposed side effects of the drug when taken with alcohol, and the university refused to allow John’s mother to testify that she was informed the side effects included hallucinations and sleep paralysis. 

Considering that formal rules of evidence do not apply in university disciplinary proceedings, it seems strange that the court found a detective’s testimony about her review of the medical report deprived John of due process, given that the pages of the report that were admitted were entirely consistent with the detective’s testimony and Jane’s allegations about the assault. 

It also seems strange that the court would find it unfair and prejudicial to allow the detective to testify about a medical report she had read and investigated but at the same time find it was unfair and prejudicial not to allow the mother to testify about alleged side effects that she learned of from an unknown source. Finally, leaving aside whether a layperson should be allowed to testify about supposed side effects of a medicine she had possibly learned about through Google, it seems odd that the UCSB court found John “should have been allowed to introduce evidence of the side effects” of Jane’s medications at all when the objective evidence supported Jane’s version of events, as the university hearing panel expressly found. Is that error really prejudicial?

Ultimately, given how much more substantial the evidence and thorough the procedures seemed in UCSB than in USC, it is hard to square the reversal on due process grounds in UCSB with the affirmance on due process grounds in USC. That tension leaves open an implication that greater protections are being required against accusations of wrongdoing in sexual assault cases than in other cases of student misconduct such as cheating. 

But since the penalty can be equally severe, the courts should want to resist that trend. Whether due process protections should be heightened in all scholastic wrongdoing cases, or should be deemed broadly sufficient as long as a modicum of procedural process is met, consistency in standards is essential. Otherwise, the public will not be able to have confidence that sexual assault allegations are being addressed as dispassionately and fairly for both the alleged victim and alleged wrongdoer as any other type of allegation of serious misconduct.

Kelly Woodruff is of counsel with the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. Kelly has clerked in both the 9th Circuit and the U.S. District Court for the District of Hawaii. Find out more about Kelly and the California Appellate Law Group LLP at Appellate Zealots is a monthly column on recent appellate decisions and appellate issues written by the attorneys of the California Appellate Law Group LLP.

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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