In Boermeester v. Carry, the Supreme Court today holds that a private university student did not have a right to cross-examine witnesses at a disciplinary hearing that preceded his expulsion from the school. The plaintiff in the case was expelled from the University of Southern California, where he was a member of the school’s football team, for physically assaulting a former girlfriend. Horvitz & Levy represents the defendants in the Supreme Court.
The court’s unanimous opinion by Justice Joshua Groban eschews application of the constitutional right to due process, which applies “to protect citizens from abuses of state power,” in favor of “a more flexible judicially created concept applicable to private organizations in limited situations.” This is one of those “limited situations,” the court says, because “a private university provides an important, quasi-public service — a postsecondary education — affecting the public interest” and because a student expelled for sexual misconduct or intimate partner violence “may find it especially difficult — if not impossible — to complete a postsecondary education elsewhere, thwarting the student’s ability to realize ‘the economic and professional benefits flowing’ from a college degree.”
The court concludes, “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.” The universities have “broad discretion” in devising an appropriate system, the court writes, while they “balance competing interests, including the accused student’s interests in a fair procedure and completing a postsecondary education, the accuser’s interest in not being retraumatized by the disciplinary process, and the private university’s interests in maintaining a safe campus and encouraging victims to report instances of sexual misconduct or intimate partner violence without having to divert too many resources from its main purpose of education.”
One issue the court specified after it granted review was whether the expelled student had waived or forfeited his right to cross-examination. The defendants essentially waived the waiver argument, asking the court to decide the merits. The court exercised its discretion to do so, because, it said, “the issues raised are important and recurring.”
The court also asked whether Senate Bill 493 (2020 Stats, ch. 303), which provides procedural protections relating to complaints of sexual harassment against students, but took effect after USC’s investigation of the plaintiff, affects the case. Agreeing with the parties, the court says the new law doesn’t apply retroactively and the court does “not opine on what the outcome of [the plaintiff’s] petition would have been had the statute applied to his claims.”
The court reverses a divided Second District, Division Eight, Court of Appeal, published opinion. It also disapproves the Second District, Division Four, decision in Doe v. Allee (2019) 30 Cal.App.5th 1036. There was no petition for review in Allee.
[August 2 update: Malcolm Maclachlan writes in the Daily Journal that the court’s opinion provides “some potent legal scaffolding” for President Joe Biden’s administration that is “expected to soon release new guidance for what Title IX requires of college and university disciplinary bodies adjudicating allegations of sexual violence.” The guidance as released in draft form would reverse the prior administration’s policy changes that said students should be allowed to question their accusers.]
