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California Court Says There’s No Right to Cross-Examine Accusers in Title IX Cases

Not long after Connecticut’s highest court emphasized the problems caused by the lack of opportunity to meaningfully cross-examine adverse witnesses in a Title IX case, the highest court in California has reached a somewhat different conclusion. In Boermeester v. Carry, the California Supreme Court reversed a lower court ruling and declared that private universities are not required to provide students with an opportunity to cross-examine either their accuser or witnesses at a live hearing.

If you have a pending case and want to know more about how this decision could impact your situation, the experienced Title IX attorneys at Duffy Law would be happy to talk to you about it.

Background on the Case

The case gained more attention than usual initially because the student accused of a Title IX violation was a USC football player famous for scoring the game-winning field goal in the 2017 Rose Bowl. Unlike many prominent Title IX cases, the incident in this case did not center on whether sexual activity was consensual. Instead, the case involved allegations of intimate partner violence unrelated to sexual activity.  

The complainant, referred to as Jane Roe in the lawsuit, alleged that after she picked up Boermeester from a party, he yanked her hair so hard that it hurt and then grabbed her neck and throat with enough force that it hurt and caused her to cough. She said he later grabbed her neck again and banged her head against a concrete wall. Video from a surveillance camera, although recorded from a distance, appeared to confirm much of her report.

A student who witnessed some of the actions reported it to the men’s tennis coach who then reported it to the school’s Title IX Coordinator. Roe reported that she did not want to participate in an investigation because she feared retaliation from the football team. She later asked if she could withdraw her statements fearing anger from Boermeester and concern that he would be “punished too harshly.”

At the end of the investigation, both students reviewed the evidence with their attorneys. Instead of attending each other’s hearings or submitting questions to be posed by the Title IX Coordinator, both students submitted written statements. Roe reported that the Title IX office manipulated her into exaggerations and that Boermeester had not physically abused her in any way. Boermeester did not deny putting his hands on her throat but said it was done as a joke or a form of sexual foreplay.

The university found Boermeester responsible for intimate partner violence and expelled him. He filed a petition in court, and while the superior court denied his petition, a divided panel on the Court of Appeal reversed the decision on the grounds that the disciplinary proceedings at USC denied Boermeester the opportunity to question Roe or witnesses in real-time at a live hearing. A dissenting Justice noted that Boermeester forfeited his right to appeal on this ground because he never requested the opportunity to cross-examine Roe or the other witnesses.

Fair Procedure to be Determined by University

The Supreme reversed this decision, finding that Boermeester had no right to a live cross-examination. Justice Joshua Groban, writing for the Court, observed that the fair procedure doctrine requires “adequate notice of the charges and a reasonable opportunity to respond” but that when the doctrine is applied in the context of Title IX proceedings, private universities hold the primary responsibility for developing procedures that give students notice and an opportunity to respond.

The court concluded that establishing a specific set of procedures to be used in student disciplinary hearings would improperly intrude into the internal affairs of a private university. It is worth noting that in 2017, Title IX did not require schools to provide hearings or cross examination; it was only after the release of new rules in August 2020 that Title IX required colleges and universities to provide a hearing with cross examination.

No Requirement for Live Hearings with Cross-Examination

Looking back to an earlier decision, Justice Groban reaffirmed that “[f]air procedure does not compel formal proceedings with all the embellishments of a court trial.” Therefore, the Court held that fair procedure does not require private universities to give students an opportunity to cross-examine witnesses at a live hearing where the accused student is in attendance.

The Court explained that universities need to balance competing interests when they develop their procedures for hearings. These interests include a respondent’s right to fair procedures and interest in completing their education, but also the complainant’s interest in avoiding traumatization from the disciplinary process as well as the university’s interests in campus safety. Additionally, the court notes that the university should be able to encourage reporting of sexual misconduct “without having to divert too many resources from its main purpose of education.”

Justice Groban further explained that while the ability to engage in back-and-forth questioning with adversarial witnesses may be essential in a criminal trial, “there is no absolute right to a live hearing with cross-examination in administrative proceedings, even where constitutional due process applies.” Universities, the Court observes, are not equipped to operate like courts since they do not have the power to subpoena key witnesses and force them to attend, relying instead on voluntary witnesses.

The Court concluded that the opportunities Boermeester received were sufficient, noting that the school provided him with an opportunity for a hearing that he declined.

Effects of this Decision

Given that Title IX regulations are about to undergo yet another reformulation, it is hard to accurately predict the effect of the decision in the Boermeester Case. Judicially, it only directly affects the state of California, but given the nature of persuasive authority, it could provide grounds for other courts to follow suit.

If, as anticipated, the new regulations give universities more flexibility in deciding whether to offer students the opportunity of a live hearing, then questions about cross-examination become irrelevant in many cases. However, educational institutions may retain the option to hold hearings even if not required as a way to prevent additional judicial challenges to the sufficiency of their campus proceedings.

To discuss the impact of this decision or other issues involving a Title IX case, we invite you to contact Duffy Law for a confidential consultation.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.