California Court of Appeal Instructs on What Constitutes Minimum Due Process

Tim Burke, Manley Burke LPA, tburke@manleyburke.com

It is understandable that colleges and universities are taking far more seriously issues related to sexual assault on campus than was historically the case. But, one court after another has found that far too frequently the disciplinary process fails to be conducted fairly. When that happens, it is a major disservice to both the individual who complains of sexual assault and to the accused.

Such was the case in the very recent decision by California Court of Appeal in a matter involving an allegation of sexual assault involving students at Westmont College¹. John Doe, who was accused of sexual assault, sued Westmont after he was suspended for two years following a college disciplinary panel’s conclusion that the preponderance of the evidence showed he had committed sexual assault. The appellate court upheld the trial court’s decision that Westmont “did not provide John a fair hearing.” The appellate court summarized its decision this way:

Westmont’s investigation and adjudication of Jane’s accusation was fatally flawed. Westmont did not provide John with a fair hearing; indeed, it did not comply with its own policy and procedures. The panel did not hear testimony from critical witnesses, yet relied on these witnesses prior statement to corroborate Jane’s account or to impeach John’s credibility. The panel withheld material evidence from John, which its policies required it to turn over. As a result, John was denied a meaningful opportunity to pose questions to Jane and other witnesses on material disputed facts .

The Court was also concerned that the University administrator who investigated the complaint and prepared a report of the investigation was also a member of the three person panel that conducted the hearing.

While noting that a college disciplinary hearing is not the same as a criminal proceeding, the Court did an excellent job of summarizing the minimal standards that should apply at such a hearing:

At a minimum, the college must comply with its own policies and procedures. Those procedures must provide the accused student with a hearing before a neutral adjudicatory body. The accused must be permitted to respond to the evidence against them. The alleged victim and other critical witnesses must appear before the adjudicatory body in some form—in person, by video conference, or some other means—so the body can observe their demeanor. This is because ‘the opportunity to question a witness and observe [their] demeanor while being questioned can be just as important to the trier of fact as it is to the accused.’ The college must provide the accused student with the names of witness and the facts to which each testifies. The accused must be able to pose questions to the witnesses in some manor either, directly or indirectly, such as through the adjudicatory body. The body need not ask every question posed by the accused (internal citations omitted).

It should be noted that this Court was applying California Law and that Westmont College is a private institution, which, in other states, may not be held to constitutional due process standards except perhaps in Title IX sexual assault matters. But federal courts and other states courts have reached similar conclusions, as have been reported in prior issues of Fraternal Law.

¹Doe v. Westmont Coll., No. B287799, 2019 WL 1771631 (Cal. Ct. App. Apr. 23, 2019).