New Suit Alleging Procedural Deficincies Filed Against USC

Ilana Linder, Fraternal Law Partners, Ilana.Linder@manleyburke.com

On January 4, 2023, an unidentified Petitioner, who was the former president of his fraternity at the University of Southern California (“USC” or the “University”), filed a Petition for Writ of Administrative Mandate (“Petition”) against the University and some of its employees, alleging that he was improperly expelled following the University’s mishandling of its Title IX investigation.[1]

The Title IX investigation began after the University received a formal complaint from a female student with whom the male student claims he had consensual sexual relations in October 2021. No criminal charges were ever filed against the Petitioner, but USC nonetheless expelled him after finding him responsible for engaging in “multiple instances of non-consensual anal penetration.”[2] Although the male student sought to appeal the University’s findings, his appeal was denied by the University’s Interim Vice President of Student Affairs, who is also named as a Defendant in the Petition.

A single Clery Act report was sent out to the entire USC community about both the allegations of sexual assault against an (unnamed) individual member of a fraternity, and the fraternity’s alleged misconduct (unrelated to the sexual misconduct by the former president). The Petition alleges that this prompted significant backlash from the media and community, including the publication of a statement by the University’s Undergraduate Student Government calling upon the University to take significant action against the male student and the fraternity as a whole. This backlash included “protests, vandalism, and open destruction of [Petitioner’s] reputation.”[3] However, despite claiming that the University failed to protect the Petitioner during this backlash, the Petitioner does not also allege that he ever requested from the University any supportive measures, which both parties are entitled to request under the current Title IX regulations.[4]Because neither the Clery Report nor any subsequent statements by University representatives mentioned the Petitioner’s individual name, it is unclear from the Petition how Petitioner plans to establish that the University’s own conduct resulted in reputational harm.

However, the Petition does present sufficient facts which, if proven true, would likely result in a court ruling in Petitioner’s favor on his general concerns regarding procedural irregularities in the disciplinary proceedings. The Petition describes USC’s process as “utterly lacking in due process,” and specifically alleges that the University’s “process failed to follow procedures provided for in the code, failed to allow and properly consider mitigating evidence…and allowed for media bias to pressure a decision that was not supported by substantial evidence.”[5]

It claims Petitioner was denied a fair hearing by virtue of the University’s failure to provide all relevant evidence to him prior the hearing, refusal to allow the presentation of certain impeachment evidence during the initial disciplinary hearing, denial of a request to postpone the hearing due to new evidence and/or unavailability of critical witnesses, and biased treatment of the parties by virtue of the University’s willingness to allow delays in the proceedings at the female accuser’s request.

Although this case is in its very early stages of legal proceedings, similar allegations have been successful in other cases over the last few years. For example, in 2018, the California Court of Appeals took issue with the University of California, Santa Barbara’s (UCSB) untimely disclosure of relevant evidence and selective application of evidentiary rules during its disciplinary proceedings of a student who was seeking to overturn his suspension from the school.[6]Ruling in the suspended student’s favor, that appellate court confirmed that schools must comply with their own policies and procedures, and that students at public colleges and universities are entitled to certain constitutional guarantees, including due process and fundamental fairness in disciplinary proceedings.

The UCSB case was decided in 2018, a few years before the current Title IX regulations took effect. Today, as set forth in the recently-filed Petition, students sanctioned by schools for sexual misconduct are entitled to assert claims for violations of not only their constitutional due process rights under the Fourteenth Amendment and state law, but also of the procedural safeguards set forth under Title IX. It does not sound like USC complied with procedural requirements, which may be sufficient for a court to vacate the current expulsion and reinstate the student.

We will continue to monitor this case and report on any interesting developments as it proceeds.  

[1] Petition, Doe v. Univ. of S. Cal., et al, No. 23STCP00014 (Sup. Ct. Los Angeles Cty., Jan. 4, 2023).

[2] Id. at ¶ 46.

[3] Id. at ¶ 47.

[4] Interestingly, supportive measures are mentioned in several of the materials Petitioner attached to his filing.

[5] Id. at *1.

[6] See generally, Doe v. Regents of Univ. of Cal., 28 Cal.App.5th 44 (2018).