Doe v. Allee
This text of 242 Cal. Rptr. 3d 109 (Doe v. Allee) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
WILLHITE, Acting P. J.
*1039John Doe, formerly an undergraduate student at the University of Southern California (USC), appeals from the trial court's denial of his petition for writ of administrative mandate, by which Doe sought to set aside his expulsion. ( *113Code Civ. Proc., § 1094.5 ( § 1094.5 ).) Doe was expelled after respondents Kegan Allee, Ph.D., sued in her official capacity as Title IX Investigator for USC,1 and, ultimately, Ainsley Carry, Ed.D., in his official capacity as USC's Vice Provost for Student Affairs, found that Doe engaged in nonconsensual sex with another USC student, Jane Roe,2 in violation of the university's Student Conduct Code.
Doe argues that he was denied a fair hearing because respondents (principally Dr. Allee) were biased, and because USC's student disciplinary procedure is fundamentally flawed, in that it provides no mechanism for a party accused of sexual misconduct to question witnesses before a neutral fact finder vested with power to make credibility determinations. While we conclude that Doe failed to meet his burden of proving respondents were actually biased against him, we nonetheless conclude that USC's disciplinary procedure failed to provide a fair hearing, In that regard, we hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments. USC's disciplinary review process failed to provide these protections and, as a result, denied Doe a fair hearing. On that basis, we reverse.3
*1040BACKGROUND
I. USC's Sexual Misconduct Policy
USC's Student Conduct Code (SCC)4 , prohibits nonconsensual "sexual misconduct."5 The SCC prohibits sexual activity if "[t]here is no affirmative, conscious and voluntary consent, or consent is not freely given." (§ E.2.III.) "Affirmative consent" means a conscious and voluntary agreement *114to engage in sexual activity. It requires each party "to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence.... Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.... [T]he fact of past sexual relations between [the persons involved], should never by itself be assumed to be an indicator of consent." Finally, it is not a valid excuse that the accused believed the complainant affirmatively consented to the sexual activity if that belief "arose from the ... recklessness of the accused," or the accused failed to "take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented." (§ E.2 III.4.)
II. Investigations and Discipline in Cases Involving Allegations of Student Sexual Misconduct
Student sexual misconduct complaints are directed to USC's Title IX Office. If a student chooses to proceed with an investigation, a trained Title IX investigator is assigned to investigate.
1. Investigation and Adjudication
The SCC guarantees students a "fair, thorough, neutral and impartial investigation of the incident." Both the student who reports misconduct and the accused student have equal rights throughout the investigation and appeal process. (§§ 17.03(D), (M).) The burden of proof rests at all *1041times with the reporting party to show, by a preponderance of evidence, a violation of the SCC. (§ 17.04(D).)
At the outset of a Title IX investigation, the accused student is given written notice that a complaint has been filed, specifying the alleged violation and the basis for the charge. (§ 17.03(A).) The investigator meets separately with the reporting student and the accused student, to explain their rights, the investigative and appeals processes, and to identify available resources. (§§ 17.02(B), 17.03(E).) At these meetings each party may present relevant information, including the names of witnesses and video or documentary evidence, and any information a party believes is relevant. (§ 17.02(C).) The parties may read the investigator's summaries of interviews and respond to that information. (§§ 17.03(F), (G).) Each party may bring an advisor to the meetings to serve in a solely supportive role (i.e., the advisor may not speak or disrupt the party's meeting with the investigator). (§ 17.02(F).) The parties may provide the investigator with "supplemental information" up to the point at which the investigator's findings have been made. They may also, upon request, inspect documents and information gathered during the investigation. (§§ 17.02(C), 17.03(F).) The investigator may conduct additional investigation and witness interviews "as appropriate," and review available pertinent evidence. (§ 17.02(D).) No in person hearing is conducted and the accused student has no right to confront his or her accuser. (§ 17.03.) Once the investigation is complete, the Title IX investigator makes findings of fact and concludes, based on a preponderance of evidence, whether the accused student violated the SCC. If so, in consultation with the Title IX Coordinator, the investigator imposes the sanction that he or she deems appropriate. (§§ 17.02(D), 17.06(A).) Sanctions for sexual misconduct range from disciplinary warnings to suspension, expulsion or revocation of a degree. (§§ 17.06(E)(1)-(16).)
2. Appeal
Either party may appeal the result of the Title IX investigation within two weeks *115of receipt of the investigator's written decision. (§ 17.07(A),(F), (I).) Appeals are reviewed by the Student Behavior Appeals Panel (SBAP), an anonymous three-member panel appointed by the Vice Provost for Student Affairs (Vice Provost), trained to hear sexual misconduct cases, at least one member of which is a faculty member. *1042(§ 17.07(G).) The SBAP is advised by a non-voting individual trained in USC's procedures and Title IX requirements. (§ 17.07(I).) Appeals are decided solely on the basis of documents. No oral argument is permitted.6 (§ 17.07(A), (E).) The SBAP may exclude from consideration any evidence it deems inadmissible, including character evidence. (§ 17.07(G).)
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WILLHITE, Acting P. J.
*1039John Doe, formerly an undergraduate student at the University of Southern California (USC), appeals from the trial court's denial of his petition for writ of administrative mandate, by which Doe sought to set aside his expulsion. ( *113Code Civ. Proc., § 1094.5 ( § 1094.5 ).) Doe was expelled after respondents Kegan Allee, Ph.D., sued in her official capacity as Title IX Investigator for USC,1 and, ultimately, Ainsley Carry, Ed.D., in his official capacity as USC's Vice Provost for Student Affairs, found that Doe engaged in nonconsensual sex with another USC student, Jane Roe,2 in violation of the university's Student Conduct Code.
Doe argues that he was denied a fair hearing because respondents (principally Dr. Allee) were biased, and because USC's student disciplinary procedure is fundamentally flawed, in that it provides no mechanism for a party accused of sexual misconduct to question witnesses before a neutral fact finder vested with power to make credibility determinations. While we conclude that Doe failed to meet his burden of proving respondents were actually biased against him, we nonetheless conclude that USC's disciplinary procedure failed to provide a fair hearing, In that regard, we hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments. USC's disciplinary review process failed to provide these protections and, as a result, denied Doe a fair hearing. On that basis, we reverse.3
*1040BACKGROUND
I. USC's Sexual Misconduct Policy
USC's Student Conduct Code (SCC)4 , prohibits nonconsensual "sexual misconduct."5 The SCC prohibits sexual activity if "[t]here is no affirmative, conscious and voluntary consent, or consent is not freely given." (§ E.2.III.) "Affirmative consent" means a conscious and voluntary agreement *114to engage in sexual activity. It requires each party "to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence.... Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.... [T]he fact of past sexual relations between [the persons involved], should never by itself be assumed to be an indicator of consent." Finally, it is not a valid excuse that the accused believed the complainant affirmatively consented to the sexual activity if that belief "arose from the ... recklessness of the accused," or the accused failed to "take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented." (§ E.2 III.4.)
II. Investigations and Discipline in Cases Involving Allegations of Student Sexual Misconduct
Student sexual misconduct complaints are directed to USC's Title IX Office. If a student chooses to proceed with an investigation, a trained Title IX investigator is assigned to investigate.
1. Investigation and Adjudication
The SCC guarantees students a "fair, thorough, neutral and impartial investigation of the incident." Both the student who reports misconduct and the accused student have equal rights throughout the investigation and appeal process. (§§ 17.03(D), (M).) The burden of proof rests at all *1041times with the reporting party to show, by a preponderance of evidence, a violation of the SCC. (§ 17.04(D).)
At the outset of a Title IX investigation, the accused student is given written notice that a complaint has been filed, specifying the alleged violation and the basis for the charge. (§ 17.03(A).) The investigator meets separately with the reporting student and the accused student, to explain their rights, the investigative and appeals processes, and to identify available resources. (§§ 17.02(B), 17.03(E).) At these meetings each party may present relevant information, including the names of witnesses and video or documentary evidence, and any information a party believes is relevant. (§ 17.02(C).) The parties may read the investigator's summaries of interviews and respond to that information. (§§ 17.03(F), (G).) Each party may bring an advisor to the meetings to serve in a solely supportive role (i.e., the advisor may not speak or disrupt the party's meeting with the investigator). (§ 17.02(F).) The parties may provide the investigator with "supplemental information" up to the point at which the investigator's findings have been made. They may also, upon request, inspect documents and information gathered during the investigation. (§§ 17.02(C), 17.03(F).) The investigator may conduct additional investigation and witness interviews "as appropriate," and review available pertinent evidence. (§ 17.02(D).) No in person hearing is conducted and the accused student has no right to confront his or her accuser. (§ 17.03.) Once the investigation is complete, the Title IX investigator makes findings of fact and concludes, based on a preponderance of evidence, whether the accused student violated the SCC. If so, in consultation with the Title IX Coordinator, the investigator imposes the sanction that he or she deems appropriate. (§§ 17.02(D), 17.06(A).) Sanctions for sexual misconduct range from disciplinary warnings to suspension, expulsion or revocation of a degree. (§§ 17.06(E)(1)-(16).)
2. Appeal
Either party may appeal the result of the Title IX investigation within two weeks *115of receipt of the investigator's written decision. (§ 17.07(A),(F), (I).) Appeals are reviewed by the Student Behavior Appeals Panel (SBAP), an anonymous three-member panel appointed by the Vice Provost for Student Affairs (Vice Provost), trained to hear sexual misconduct cases, at least one member of which is a faculty member. *1042(§ 17.07(G).) The SBAP is advised by a non-voting individual trained in USC's procedures and Title IX requirements. (§ 17.07(I).) Appeals are decided solely on the basis of documents. No oral argument is permitted.6 (§ 17.07(A), (E).) The SBAP may exclude from consideration any evidence it deems inadmissible, including character evidence. (§ 17.07(G).)
On appeal, the SBAP may: uphold the Title IX investigator's decision; remand for further investigation; reverse specific factual findings which are not supported by the evidence in light of the whole record; reverse the investigator's conclusions regarding policy violations, if not supported by the findings; or increase or decrease a sanction. If new evidence has been submitted which the SBAP determines should be considered, it may return the matter to the investigator for reconsideration in light of that evidence. If the SBAP determines that procedural errors occurred that materially impacted the fairness of the investigation, it may return the matter to the investigator with instructions to remedy the error. (§ 17.07 (K).) The SBAP may not substitute its opinion as to credibility for that of the investigator, nor may it make new factual findings. (§ 17.07(L).) The SBAP may not reweigh evidence and, if the record contains substantial evidence to support a finding of fact, must defer to that finding. The SBAP may not change a sanction unless it is unsupported by the findings or grossly disproportionate to the violation committed. The SBAP may not substitute its judgment for that of the investigator because it disagrees with the investigator's findings or the sanction imposed. (Ibid .)
Once the SBAP concludes its review, its recommendation is forwarded to the Vice Provost, who has unfettered discretion to accept or modify that recommendation based on his or her review of the record. The Vice Provost's decision is final. (§ 17.07(H), (M).)
*1043III. The Factual Background
1. The October 24, 2014 Incident and Roe's Report7
Shortly after midnight on October 24, 2014, Doe, a freshman attending USC on a football scholarship, and Roe, a senior and student athletic trainer, engaged in sexual intercourse in Doe's campus apartment. Doe believed the encounter was consensual. Roe claimed it was not. On November *1165,8 Roe made a report of sexual misconduct to USC's Title IX Office, and met with respondent Kegan Allee, Ph.D., the Title IX investigator assigned to the investigation.
Roe reported that, on the evening of October 23, she had planned to attend a party with her roommates, and had a couple of mixed drinks with a roommate. At 11:30 p.m., after plans to attend the party fell through, Roe sent Doe, an acquaintance, a text asking what he was "up to," and agreed to go to his place to smoke marijuana. She was "tipsy" when she arrived at Doe's place at about midnight, and she and Doe walked to a taco stand.9 Roe said Doe was "aggressively touchy," i.e., "grabbing [her breasts] from behind [her] or grabbing at [her] crotch" over her shorts while they walked, and she "push[ed] him away."
Roe and Doe returned to his apartment to smoke some weed. Witness D.N., Doe's cousin and roommate, was in the living room with his girlfriend while Roe was at the apartment, although it was dark and D.N. did not believe that Roe saw him. D.N. told Dr. Allee that Roe was "in a good mood" when she and Doe returned to the apartment at about 1:00 a.m. and went into Doe's bedroom.
Roe told Dr. Allee that she went over to Doe's "just to smoke." "[She] was somewhat tipsy and high, so cross-faded. [She] wasn't hammered, but [she] was not sober. [Roe] was at the foot of the bed when [they] were smoking and [Doe] was up by the pillows. After [they] smoked [Doe] got touchy again. It's kind of a blur. [Roe] remember[s] certain details that frighten [her]. At some point [Doe] just pulled down his sweatpants and put [Roe's] hand on his penis. [Roe] pulled [her] hand away. [She] was really confused and disturbed. Then [Doe] grabbed onto [Roe's breast] again and [she] couldn't pull his hand away" because Doe is "a football player, so he's really strong."
*1044Roe told Dr. Allee that she "mentally gave up" when she was unable to remove Doe's hand from her breast. Dr. Allee asked if it was "painful," and Roe said she "had some bruising" on her breast.
Roe reported that Doe committed forcible sexual acts, including nonconsensual vaginal penetration with his penis. He ripped off her shorts (but left all her other clothes on). She tried to pull herself away by holding onto the headboard, but Doe pulled her hands down. Roe tried to push against his chest, but could not push him away. Doe pulled Roe's hands down over her head, using one hand to hold them down. Roe told Dr. Allee that "throughout the entire thing it was easier to say 'I can't' because I know I'm not allowed to for job purposes.' " In response, Doe placed his hand "aggressively" over her mouth, "shush[ing]" her, and said, "[n]o one has to know." This frightened Roe because she was not worried about people knowing, but that she did not want to be engaging in this conduct.
Doe flipped Roe over onto her stomach and continued to have sex with her from behind. He pulled her head back by the hair, which "really hurt[ ]" and caused her to say "Ow." He stuck several fingers in her mouth.10 It had not hurt when Doe put *117his hand over her mouth, but it "wasn't gentle." She was unsure whether he did it to keep her quiet. He told her to suck on his fingers or maybe to get them wet. She was gagging because he was hurting her, and then his fingers were in her mouth. Doe pulled out to finish and it looked like he planned to ejaculate on her face or torso. When he let go of her, Roe "freaked out [and] went between his legs, scooting out quickly." Doe ejaculated on the sheets.11
Afterwards, Roe quickly put on her shorts, and grabbed her phone from the floor. Doe asked why she had moved, and she said "Because I didn't want it." Doe told her they "should do this again or [she] should come over again soon, and [Roe] left."
Roe told Dr. Allee that she was "just repulsed." There had been no kissing or foreplay, and her thong underwear never came off; Doe simply pushed it aside. Doe "never bothered" to use the condom Roe had seen when she first *1045entered his room. Roe believed that "if [the sexual encounter] was consensual, he could have taken the time to pick it up and put it on." She said that Doe had used force: "When he yanked my hair that hurt, but even before I wasn't able to push him off, and I was trying. I remember feeling like I was pushing a boulder. I don't remember some parts because I was laying there in my own head sometimes asking, 'Is this actually happening?' I was very confused."
Roe went to bed when she got home. That afternoon, she called K.J., whom she was dating and told him what had happened the night before.12 At first, K.J. said it was "rape and [Roe] should report it," but as the conversation went on, he changed his mind, and said her account of the sexual activity "sounded consensual." Roe then called an ex-boyfriend, B.H.13
Roe, who was crying and upset, told her roommates, E.C., H.M. and H.D. what had happened with Doe. H.M., took photos of "small little bruises" she saw on Roe's thighs, chest and arm (Roe gave the photos to Dr. Allee). Roe told Dr. Allee her roommates knew she wasn't interested in Doe. E.C. had specifically asked Roe the night before "if she'd hook up with [Doe]." Roe said "no." The roommates teased her before she went over about hooking up with Doe. To prove that she had not, Roe texted H.M. regularly while she was with Doe, until "everything happened and [she] couldn't text anymore." Roe gave screenshots of those texts to Dr. Allee. None of Roe's texts expressed discomfort about the way Doe touched her.
Dr. Allee interviewed all of Roe's roommates. E.C. said Roe "seemed really upset" on the afternoon of October 24. Roe *118had told her she had gone to hang out at Doe's apartment, and had not planned to hook up. She was "drinking and smoking weed" on the couch, when Doe "got on top of her."14 Roe's roommates encouraged her to report the sexual assault, but Roe was "concerned about ruining [Doe's] life or getting him kicked off the [football] team."15 *1046H.M. said Roe was "rambling" and "really upset" on October 24. She told H.M. that Doe "held her down and against her will." H.M. said, "That's called rape.' " Roe had "small little bruises" inside the thigh and on her arm. H.M. and H.D. each told Dr. Allee they would have noticed the bruises on Roe's arm had the bruises been present on October 23. H.M. encouraged Roe to go to the hospital, "but she wasn't ready."
On October 28, Roe went to the Student Health Center to be tested for sexually transmitted diseases. After Roe explained what happened, medical staff contacted the Los Angeles Police Department, who wrote a report. Roe declined to participate in a criminal investigation.
2. Doe Is Informed of Roe's Allegations of Sexual Misconduct and Immediately Subjected to Interim Sanctions
On November 7, Doe was notified of a report of sexual misconduct made against him regarding an incident at his apartment on October 24. As a result of that incident, Doe was alleged to have violated numerous provisions of the SCC, including prohibitions against sexual misconduct.16
*119*1047Doe was instructed to meet with Dr. Allee by November 14, with or without an advisor, and told he could make a written request to review the report against him, provided he gave at least 24 hours advance notice. Also on November 7, respondent Ainsley Carry, Ed.D., USC's Vice Provost, notified Doe that, effective immediately, USC was taking interim action against him because the allegations described conduct that endangered the safety and well being of the USC community. Doe was permitted only to attend classes in which he was enrolled and to use campus dining facilities. He was prohibited from having visitors at his housing assignment, and from attending any USC-sponsored event. Further, Doe, who was attending college on an athletic scholarship, was prohibited from any involvement with the USC football team, except on the practice field and in the locker room; he could not participate in any game.
3. Doe's First Interview with Dr. Allee
a. The October 9 Incident
On November 11, Doe met alone with Dr. Allee. When asked if he knew what the meeting was about, Doe said "With [Roe], right?" Doe asked to read Roe's statement, but before doing so began to describe an encounter he had with Roe on October 9. Roe and her friends had approached him on fraternity row, and she invited him to go swimming. Doe had gone with Roe to her apartment while the women changed, because he needed to charge his phone.
At Roe's apartment, Doe went with Roe into her room to charge his phone. He "hugged [Roe] and started kissing her neck and grabbin' on her [as she sat on his lap] and she was grabbin' on [him]." Roe did not tell him to "stop" or move his hands away, so he kissed her neck and touched her inner thighs. Roe left for about 10 minutes, and when she returned, said they were no longer going swimming.
Doe and Roe laid down on her bed. She wore a bikini bottom and a T-shirt. He removed his shirt and pants and started "fingering"17 Roe for a couple of minutes. Roe was moaning, which made Doe believe he would "get some play." However, when Roe abruptly said she did not feel well, Doe stopped. Roe told Doe he "could stay the night," but he declined and left. Doe had smelled alcohol on Roe's breath on October 9, but she had not "seem[ed] faded." Roe sent Doe a text on October 10. She said she had "blacked" out, *1048but had a vague memory of him being at her house, and asked "what happened last night?" In response, Doe said, among other things, that Roe had been "faded" and they "mess[ed] around" in her room, but did not have intercourse or kiss. He said he had left when she started feeling sick. Doe gave Dr. Allee screen shots of his text exchange with Roe.
b. The October 24 Incident
With regard to the October 24 encounter, Doe told Dr. Allee that, after the party plans fell through, Roe come over to smoke a blunt. When she arrived, D.N. and his girlfriend were in the living room, so Roe and Doe went into his room. Roe chose not to smoke. Doe smoked a little, then they walked to a taco stand. Doe had been "feelin' [Roe]," as they walked, by which he meant grabbing her breasts and rubbing her thighs. Roe did not push his hands away.
*120When Doe and Roe returned to Doe's bedroom, they lay down and talked. He removed her clothes until she was "completely naked," then took off his clothes. Doe "[f]inger[ed]" Roe and grabbed her breasts while she fondled his penis. He got on top of Roe, and she said "No, you don't have a condom." Doe stopped the sexual activity to put on a condom. He had placed a condom nearby earlier, believing he would "get hit" that night, since he and Roe had "messed around before." As Doe retrieved the condom Roe remained naked on his bed, with her legs spread. After Doe put on the condom, he and Roe had consensual sex in different positions, including with her on top. Roe seemed to be "enjoying [herself] facially," and was "[l]ip biting, moaning, kissing [his] neck," and scratching his back during the sexual encounter. Doe ejaculated inside Roe while wearing a condom. Afterward, he helped Roe find her clothes, gave her a hug and she left.
Dr. Allee invited Doe to read Roe's differing account of the October 24 sexual encounter. He did, and took issue with several points. He disputed that Roe said "no," and said if she had done so he would "get off and leave." The only time she said "no" was because he was not wearing a condom, and she could have left when he stopped to put one on. She did not. Doe denied that Roe had smoked any marijuana at his house, and denied pulling down his pants to place Roe's hand on his penis. He described Roe's report as "crazy!" As for whether he used a condom, after reading Roe's account, Doe said "Oh, that's right. My fault. I did take the condom off. I pulled out and took the condom off, but it wasn't [as Roe described it]." He explained that he tried to ejaculate on her face and have her swallow it, but she moved and told him *1049she did not want him to ejaculate on her face. They laughed about it, and "[she] wasn't scared for her life." According to Doe, "[i]t was a funny thing to us."18
Doe said Roe may have held on to the bed frame, but denied taking her hands off of it or holding them down. He said she probably held on during intercourse because his bed slides. He also acknowledged placing a hand over Roe's mouth. He had not done so aggressively, only to say " 'be quiet' " because Roe was moaning loudly and he did not want to wake D.N. or his girlfriend, who were asleep in the living room. Doe put his fingers in Roe's mouth, and she willingly sucked on them. He admitted pulling her hair, using it to hold her and thrust from behind. He did not flip Roe over; she willingly assumed that position. Doe did not remember her complaining of any pain or saying "ow," only moaning and possibly saying "uh."
When asked what Roe said or did to make him believe she wanted to have sex, Doe said, "When I was fingering her she was grabbin' on my [penis]. I thought that was clear." She also told him he wasn't wearing a condom, and was kissing his neck and scratching his back. Doe also emphasized that he felt "like the last time [the two] hung out [they] were past flirting. Past messin' around. Two weeks later she's comin' over at [12:30] in the morning."
Dr. Allee showed Doe a file of additional information she had gathered, which included screen shots of (1) texts between Roe and someone named "Mia." Doe believed *121these texts confirmed his theory that Roe was afraid she would be fired if it became known that she had engaged in sex with him;19 (2) texts between Roe and someone named "Julia"; (3) texts between Roe and H.M.; (4) texts between Roe and Doe from October 21-24; (5) texts between Roe and Doe's teammate, S.V.; (6) photographs of the police report; and (7) photographs of bruises on Roe's legs, arm and breast. Dr. Allee asked if there were any witnesses Doe wanted her to talk to. He said "nobody was *1050in the room[,]" but, after asking Dr. Allee for examples of people who might be helpful, indicated that she should talk to Roe's roommates and to D.N. Doe provided Dr. Allee screenshots of his text exchanges with Roe.
4. Dr. Allee's Subsequent Meetings With Roe and Doe
Dr. Allee had a second meeting with Roe (and an advisor) on January 15, 2015 and questioned her about the interaction with Doe on October 9. Roe told her, "I was pretty drunk. I don't fully remember. I was leaving a party at ZBT and I ran into him and his friends on the sidewalk. Collectively we all decided to go swimming.... So we all go back to my apartment so the girls could get bathing suits. My memory is pretty blurry. I remember feeling sick and throwing up in my bathroom and we never went swimming." Roe remembered Doe was at her apartment, but knew they "didn't hook up because [she had] confirmed that the next day." Doe told her they " 'messed around,' " which she assumed meant he "was just flirting with [her]." Roe showed Dr. Allee the same text exchange as Doe had shown the investigator.
Dr. Allee told Roe that Doe claimed to have "digitally penetrated [her] that night [October 9]." In reaction to this news, Roe's "chest, throat, and face flushed bright red with splotches of white; her whole body started visibly shaking; she started sobbing," and cried for several minutes. When Roe regained her composure, she told Dr. Allee she "didn't remember any of that." With Roe's consent, Dr. Allee opened a second case against Doe regarding the incident on October 9.20
During the January 15, 2015 meeting, Roe was adamant that Doe had not used a condom on October 24, and said she "wouldn't have ... had a million tests done if" he had. She denied scratching Doe's back during sex, kissing him, grabbing his penis or being on top of him. She disputed Doe's account that she went inside his apartment before they walked to get food, as well as his claim that she had not smoked any marijuana. She took four or five hits while in Doe's bedroom. Roe denied sucking Doe's fingers. Instead, she claimed he put his hand over her mouth when she said "ow," and she "felt like [she] was gagging." She also denied willingly *122flipping over. She never wanted to engage in sex in the first place, but Doe was strong and able to turn her over. Roe denied that she made up the sexual assault because she feared she would be fired. She told Dr. Allee that she knew several "trainers [who] have hooked up with athletes and are fine." *1051On January 22, 2015, Doe (and an advisor) had a second and final meeting with Dr. Allee. Doe was told Roe had initiated a second case against him regarding the incident on October 9, and claimed that she had no "knowledge about that incident because she was drunk." Doe told Dr. Allee that, when they were in Roe's apartment on October 9, Roe was "grabbin' on [his] penis so of course [he] start[ed] fingering her[,]" and "got on top of her." However, when Roe told him she felt unwell, he said "it's cool," got off, kissed her forehead and left.
Regarding the October 24 sexual encounter, Dr. Allee asked how Doe knew Roe wanted him to pull her hair, to which Doe responded, "I didn't. We were in doggy position. I just assumed she'd like it." Similarly, when asked how he knew Roe wanted to swallow his ejaculate or to have him ejaculate on her face, Doe said, "I didn't, but if she didn't want to she could get out of the way and she did."
Doe reiterated that Roe did not smoke at his apartment. He first said he remembered smoking a blunt before going out for food, later said he did not smoke until he and Roe returned, and ultimately decided he smoked before going for food because he was not "sober" when walking to the taco stand.
5. Additional Witnesses
Around October 28, Roe texted a witness identified only as "Mia," asking what might happen to an athletic trainer who reported a sexual assault perpetrated by a student athlete. Roe described her alleged sexual assault in details consistent with her report to Dr. Allee. Roe told Mia she was "afraid [Doe]'s going to tell someone we hooked up and then it'll get back to the trainers." Although this is not mentioned in the SAR, Roe's text exchange with Mia also indicates that Roe was worried she might be fired, or be unable to attend graduate school, because she might be unable to get letters of recommendation if the incident became known. There is no indication that Dr. Allee tried to identify or contact Mia.
Doe also sent a text to someone identified only as "Julia," a friend of H.M.'s who had gone through a "similar situation." There is no indication that Dr. Allee tried to identify or contact Julia.
A few days later, Roe sent a text to S.V., a football player. She asked how he would "respond if one of [his] teammates raped someone?", and described a series of events similar to those she had described to Mia.21
*1052On November 17, Dr. Allee interviewed D.N., who was with his girlfriend in the living room of the Doe's apartment when the sexual activity between Doe and Roe occurred on October 24. D.N. saw Roe and Doe come into the apartment at about 1:00 a.m., and Roe appeared to be in a good mood. D.N. and his girlfriend heard Roe "moaning," which sounded to him like "normal sex sounds," "pleasure" and "[l]ike somebody enjoying it." D.N.'s girlfriend had asked him if this was an "everyday *123thing." D.N. told Dr. Allee that the sex and moaning went on for "a while" and, at some point he fell asleep. Later, he "woke up to go to the bathroom and heard [Roe and Doe] talking." D.N. did not see Roe leave the apartment.
D.N. was not surprised the next day when Doe said he and Roe had had sex, because Roe had come to the apartment in the middle of the night, and the prior interactions D.N. had witnessed between the two were flirtatious and sexual in nature. Indeed, D.N. had moved his bed into the living room on October 23 because his girlfriend was spending the night and he knew Doe had a girl coming over. D.N.'s girlfriend was still at the apartment the next morning when Doe and D.N. briefly discussed Doe's sexual encounter with Roe. D.N. saw a "nasty" used condom on Doe's desk, and told him to throw it away. The record does not reflect that Dr. Allee asked D.N. to identify his girlfriend, or that she attempted to interview her.
Dr. Allee had brief telephonic conversations with Roe on February 9 and 10, 2015, to ask Roe "a few last questions." At Dr. Allee's request, Roe emailed photographs of her bathing suits. Dr. Allee contacted all individuals the parties had identified as potential witnesses, but did not attempt to contact anyone who had been mentioned during the investigation but not fully identified.
On February 10, 2015, Dr. Allee permitted the parties to view the most recent information she had gathered during the interviews on a secure portal. The investigation was closed on February 11, 2015.
6. Findings and Determinations from the Title IX Investigation
Under the university's Sexual Misconduct Policy, the Title IX investigator alone makes findings of fact and, using a preponderance of the evidence standard, determines whether the SCC has been violated. The investigator's written decision, and the reasons for that decision, are contained in a SAR.
In her SAR, Dr. Allee concluded, based on her investigation and review of all evidence she deemed relevant, and taking into account her determination as to the parties' credibility, that Doe violated the SCC and "more likely than not, engaged in unwanted sexual conduct that ranged from fondling to *1053vaginal penetration." With respect to the October 24 incident, Dr. Allee determined that the parties' conflicting accounts could not be reconciled, and found Roe's account more credible for several reasons.
First, Dr. Allee found that more evidence corroborated Roe's account of the October 24 incident. Statements made by Roe's three roommates were largely consistent with her account, and Roe told her roommates before going to Doe's apartment that she did not intend to have sex with him. Second, Roe lacked any memory of sexual conduct with Doe on October 9, so she could not have known that Doe would assume they would have more sexual contact on October 24.22 Roe told her roommates the sex was nonconsensual. Two roommates saw bruises on Roe on *124October 24 that they had not seen and would have noticed the night before. Third, text messages sent by Roe to third-party witnesses corroborated her report to Dr. Allee.
Dr. Allee rejected Doe's theory that Roe was motivated to fabricate a claim of sexual assault because she was worried she would be fired as an athletic trainer if it became known she had consensual sex with a student athlete. Dr. Allee found "nothing" to support this theory, and observed that USC "would not retaliate against a student who had experienced non-consensual sexual acts." Dr. Allee also made the unattributed assertion that "USC Athletic Training has had knowledge of athletic trainers engaging in consensual sexual activity with athletes and trainers [who] were not fired despite their employment contract ... prohibit[ing] fraternizing with athletes."
Dr. Allee was struck by Roe's demeanor and physical reaction upon hearing about the October 9 incident. That reaction "effectively convinced" Dr. Allee that Roe had not previously known about Doe's claim to have "digitally penetrated" her,23 and "was in distress upon learning about it."
Dr. Allee found Doe's credibility was diminished because his statements "were inconsistent over time and he several times corrected his statements only after reviewing other statements." For example, Doe's explanations differed regarding when he had smoked, where he ejaculated and what he did with the condom.
*1054Dr. Allee also noted that Doe made assumptions about Roe's sexual consent which were inconsistent with USC's policy. Specifically, when Roe came to his house on October 24, he assumed they would have sex because of what had transpired on October 9.24 Additionally, Doe "just assumed" Roe would like him to pull her hair. Similarly, he had not asked if Roe wanted him to ejaculate on her face (or to swallow his ejaculate), but proceeded to do so anyway, saying, "if she didn't want to she could get out of the way and she did."
Further, although Doe described behavior that made him believe he had Roe's affirmative consent on October 9 and 24 (e.g., lip biting, moaning, kissing and scratching him on his back), Dr. Allee found Roe more credible, and concluded it more likely than not that the sexual activity on October 24 was "forcible and non-consensual." Dr. Allee found that Doe violated sections 11.36.B, 11.41, and 11.53.A-11.53.D of the SCC, but did not commit the other alleged violations. However, as to the incident on October 9, Dr. Allee found that Doe did not violate the SCC. Although Dr. Allee found "Roe['s] distress upon learning of the sexual activity [on October 9] ... believable," she also found there was insufficient evidence to indicate that "[Doe] knew or should have known [Roe] lacked the capacity to consent to sexual activities."
Dr. Allee determined that expulsion and an order prohibiting Doe from contact with Roe were appropriate sanctions. The parties *125were notified of Dr. Allee's findings and conclusions, and their right to appeal.
IV. Doe's Appeal
On April 3, 2015, Doe submitted an appeal from the SAR. The stated grounds for his appeal were that: (1) new evidence had become available which was sufficient to alter the decision and about which Doe was not aware and could not reasonably have obtained at the time of Dr. Allee's original investigation; (2) procedural errors were committed that materially impacted the fairness of the investigation; and (3) the investigator's conclusions and sanctions were not supported by the findings, and were not supported by the evidence in light of the whole record.
1. New Evidence
Doe submitted or identified several items of "new evidence" in support of his appeal. The first was a signed witness statement from K.J., the USC
*1055athlete Roe was dating at the time of the October 24 incident, but had not identified to Dr. Allee. K.J. stated that when Roe told him on the afternoon of October 24 what had happened with an unnamed perpetrator, he "questioned the veracity of whether the incident was non-consensual." K.J. thought the encounter sounded "consensual." Consistent with Doe's theory that Roe had a motive to lie, and potentially corroborating information that Dr. Allee had redacted from E.C.'s witness statement, K.J. represented that a previous sexual encounter between Roe and a USC athlete, was the reason "she [was] no longer doing training for the USC football team." Doe did not specify when he learned K.J.'s identity, or why he was unable to obtain that information during the investigation.
Two items of new evidence related to the bruises on Roe's arm, thighs and breast. First, Doe noted that, in a text exchange on October 28, Roe told S.V. her bruises were "pretty much gone." Doe observed that four days was a surprisingly short amount of time for bruises to heal. Second, Doe submitted an unsigned "Expert Witness Statement" from a registered nurse. The nurse had 18 years of experience, but did not specify whether she had any expertise in sexual assault. The nurse had reviewed the photographs of Roe's bruises, and opined that none was consistent with bruising one would expect to see one day after a forceful sexual assault.
Third, Doe identified L.W. as a witness he could produce. L.W. was the first person, other than D.N., to whom Doe revealed (on October 27) his sexual encounter with Roe on October 24. Doe had not previously identified this witness because he never considered the encounter nonconsensual. L.W. was being belatedly identified because comments made by Roe's witnesses merely regurgitated what Roe told them, and were not investigated fully by Dr. Allee, who accorded them undue weight. In addition, L.W. could reaffirm what K.J. said about Roe having lost her job as a trainer for the football team after having sex with a player.
Fourth, Doe claimed that Roe purposefully had not identified two individuals whom she knew (but Doe did not) who saw her walking with Doe to the taco stand on October 23, and whom Roe tried to avoid. Doe maintained that these individuals would have seen him grope Roe, and claimed that Roe chose not to identify them as witnesses because it would have been detrimental to her story.
Finally, although the Title IX investigator had not found the sexual assault allegations as to the October 9 incident substantiated, Doe identified several items of evidence related to that incident to demonstrate that Roe was not credible, and that Dr. Allee had misconstrued his words.
*126First, he claimed to have given Dr. Allee a detailed description of the bathing suit Roe wore on *1056October 9. (This information is not contained in the SAR.) Although Roe purported to have given photos to Dr. Allee of all her bathing suits, Doe had discovered that, in an effort to discredit him, Roe excluded a photo of the suit he had described to Dr. Allee, and that she had worn on October 9. Doe submitted a photograph of a bathing suit bottom he claimed Roe purposefully hid.
Second, Doe explained that, when he said he and Roe were "messing around," he "never digitally penetrated [Roe] as [Dr. Allee] claim[ed] [he] did." Rather, Dr. Allee misconstrued what he said and never asked for clarification.
Third, Doe took aim at Roe's credibility, arguing she was not as incapacitated as she claimed on October 9. That was evident because E.C. came into the bedroom when Roe and Doe were "messing around," and said "I knew it" when she saw Roe and Doe on the bed.25 Roe had quickly left the room for about 10 minutes to talk to E.C. (so she had not been "blacked out" the whole time, nor as drunk as she implied). Due to the press of time, and having "just" received E.C.'s information, Doe had not had sufficient time to contact her to obtain evidence that Roe was "fine" when they spoke on October 9. Nor had Roe been asleep when Doe left. After Doe turned Roe on her side, she said "thank you" and invited him to stay. Doe also provided a statement from D.N., who was with Doe on October 9 when Roe invited them to go swimming. D.N. said Roe had not seemed "drunk or out of it."
2. Unfair Hearing and Title IX Investigator's Failure to Conduct a Thorough Investigation
Doe argued that Dr. Allee was "biased," "determined to substantiate the most serious ... allegations, [and had] failed to properly investigate the incident and develop the record with respect to the most critical points. This flaw infected the entire adjudication process."
Doe also argued there were several fundamental problems with the disciplinary procedures themselves. Given the serious nature of charges levied against him and the severe consequences he faced if those charges were *1057sustained, his case should have been be decided by an impartial panel, not by Dr. Allee as both sole investigator and decision maker. Doe had been denied any hearing or opportunity to challenge the veracity of any witness against him. Instead, Dr. Allee, who, he argued. acted more like an advocate than an impartial investigator,26 chose to credit Roe's evidence over his, and failed to conduct a thorough investigation or contact other witnesses in an effort to ferret out the truth. Further, Dr. Allee did not record interviews, but merely took notes which she summarized in the SAR. Doe argued *127that Dr. Allee chose to redact potentially material information, and mischaracterized things he said, crafting the SAR to reflect "what she thought was said," and, in that process, make Roe's account sound more favorable. In sum, Dr. Allee had inappropriately occupied the roles of "investigator, ... judge, jury, and executioner in conducting this investigation, assessing guilt or responsibility, and issuing sanctions in a closed [SAR] process." Doe was "given ... no reasonable opportunity to be heard, and never had an opportunity to examine, confront, or challenge the witnesses against [him]."
Doe also claimed he was denied equal time during the investigation, and lacked sufficient time to interview all the witnesses (particularly one unidentified witness he discovered just days before filing his appeal), or to investigate and rebut evidence against him. In addition, after he produced photographic evidence of the bathing suit he claimed Roe hid to discredit him, Dr. Allee never questioned Roe about that withheld evidence. Instead, Dr. Allee closed the investigation without "giving [Doe] time to respond [to] new [unidentified] evidence ... sent to the investigator without [his] knowledge."
3. Unfounded Findings, Conclusions and Sanctions
In support of the third basis for his appeal, Doe argued the investigator failed adequately to explore material contradictions or incongruities in Roe's story, such as, (1) claiming she came to his house solely to smoke marijuana, but had not smoked; (2) concealing the identity of her then-boyfriend from Dr. Allee, because he was a USC athlete; (3) manufacturing text exchanges to make it appear that she had not gone to Doe's house for sex, so she would not lose her job; (4) returning with Doe to his apartment after going for food, despite the fact that he had just engaged in an aggressive, unwelcome public groping of her; and (5) waiting an inordinate amount of time to be tested for STD's, given her claim that Doe wore no condom. Doe also argued that he was given insufficient time to prepare a defense and had limited resources to gather materials to pursue his appeal.
*1058V. The SBAP and Dr. Carry Uphold Dr. Allee's Findings; Doe is Expelled and is Not Successful in His Effort to Obtain a Writ of Mandate
On April 24, 2015, the anonymous SBAP met to review the case file, rejected Doe's contentions, and upheld the sanction of expulsion. The panel affirmed Dr. Allee's findings as to five of six charged SCC violations.27
As for Doe's contentions regarding newly discovered evidence, the SBAP agreed with Doe that Dr. Allee should have contacted at least the newly identified witness, and should have followed up with the Athletics Department to ascertain its rules and practices regarding sexual relationships between trainers and athletes. However, the SBAP also found that new evidence identified or produced was, in some instances, irrelevant to the Title IX investigation and, in others, would not have changed the result had it been considered. The panel rejected Doe's assertions that Dr. Allee was biased, and had placed unwarranted emphasis on Roe's statements to witnesses before and after the sexual activity on October 24. In conclusion, the SBAP found no investigatory flaw sufficient to affect the outcome of the investigation, *128and agreed that expulsion was the appropriate sanction.
On May 12, 2015, four days after receiving the SBAP's recommendations, Dr. Ainsley Carry, the Vice Provost, accepted the SBAP's recommended sanction of expulsion, and Doe was expelled, effective immediately.
Doe filed a petition seeking a writ of administrative mandate against respondents ( § 1094.5 ). The trial court rejected Doe's contentions that he was denied due process, that Allee or Dr. Carry were biased, and that there was insufficient evidence to support the SAR's findings. The petition was denied. This timely appeal followed entry of judgment.
DISCUSSION
1. A Justiciable Controversy Exists
Before we consider the merits of Doe's challenges to the judgment, we decide a preliminary issue: whether a justiciable controversy exists. Respondents insist this matter is moot. They allege that, in January 2016, while the writ was pending, Doe was charged with committing several felonies near USC, and, in April 2016, sentenced to six years in state prison, a sentence he was serving when the petition was heard. In August 2016, Doe was expelled *1059for independent violations of the SCC. As a result, respondents argue that, regardless of this Court's decision, Doe is no longer eligible to return to USC. We note that the record does not contain evidence of Doe's conviction, but does show that he was expelled in August 2016.
We agree with the trial court. The matter is not moot: "Being labeled a sex offender by a university has both an immediate and lasting impact on a student's life. [Citation.].... [The student's] personal relationships might suffer. [Citation.] And he could face difficulty obtaining educational and employment opportunities down the road, especially if he is expelled." ( Doe v. Baum (6th. Cir. 2018)
We proceed to consider Doe's challenges to the judgment.
2. The Standard of Review
" 'The remedy of administrative mandamus ... applies to private organizations that provide for a formal evidentiary hearing.' " ( Doe v. University of Southern California (2016)
*129Doe v. Regents of University of California (San Diego ) (2016)
"The scope of our review from a judgment on a petition for writ of mandate is the same as that of the trial court. [Citation.] 'An appellate court in a case not involving a fundamental vested right reviews the agency's *1060decision, rather than the trial court's decision, applying the same standard of review applicable in the trial court.' [Citation.]" ( Doe v. USC(1), supra, 246 Cal.App.4th at p. 239,
3. Doe Has Not Shown that Respondents Harbored Bias Against Him
Initially, Doe contends that respondents-principally Dr. Allee-were biased against him, resulting in an incomplete and unfair investigation and adjudication. Doe argues that information gleaned after the disciplinary proceeding revealed that Dr. Allee conducted extensive work as an advocate for victims of sexual assault prior to her employment by USC. According to Doe, that evidence demonstrates that Dr. Allee could not conduct a fair disciplinary investigation and was necessarily biased in favor of alleged victims of sexual assault.28
While we understand why Doe believes Dr. Allee might harbor an inherent bias against someone accused of sexual assault, Doe's obligation on appeal is to demonstrate actual bias. A disciplinary decision may not be invalidated solely on the basis of an inference or appearance of bias. (See Gai v. City of Selma (1998)
4. Fair Hearing Requirements
Although we conclude that Doe failed to prove actual bias in USC's disciplinary *130process, we conclude on other grounds that USC's process is fundamentally flawed. As we explain in more detail below, we hold that in a case such as Doe's, in which a student faces serious discipline for alleged sexual misconduct, and the credibility of witnesses is central to the adjudication of the charge, fundamental fairness requires that the university must at least permit cross-examination of adverse witnesses at a hearing in which the witnesses appear in person or by some other means (such as means provided by technology like videoconferencing) before one or more neutral adjudicator(s) with the power independently to judge credibility and find facts. The factfinder may not be a single individual with the divided and inconsistent roles occupied here by the Title IX investigator in the USC system.
a. General Principles of Fundamental Fairness
Until recently, few cases had attempted to define "fair hearing standards for student discipline at private universities." ( Doe v. USC(1), supra, 246 Cal.App.4th at p. 245,
*1062Fair hearing requirements are "flexible" and entail no "rigid procedure." ( Binkley v. City of Long Beach (1993)
Nonetheless, fundamental fairness requires that a disciplinary proceeding afford an accused student " 'a full opportunity to present his defenses.' " ( UCSD, supra, 5 Cal.App.5th at p. 1104,
b. Fair Disciplinary Process in Cases Involving Sexual Misconduct, Where Determination Pivots on Witness Credibility
A spate of recent cases has attempted more clearly to delineate the contours of a "fair hearing" in university disciplinary proceedings involving allegations of sexual misconduct, where the resolution of conflicting accounts turns on witness credibility.31 These decisions have wrestled with the inherent *1063quandaries in evaluating university disciplinary proceedings so as to be fair to both the accused and accusing student, without placing unnecessary burdens on academic institutions. Such situations require recognition of significant competing concerns. There is the accused student's interest in *132" 'avoid[ing] unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences.... Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.' " ( Doe v. USC(1), supra, 246 Cal.App.4th at p. 240,
Further, these concerns must be addressed in light of the nature of a university and the limits of its resources. " ' "A formalized hearing process would divert both resources and attention from a university's main calling, that is education. Although a university must treat students fairly, it is not required to convert its classrooms into courtrooms." ' [Citation.]" ( CMC, supra, 25 Cal.App.5th at p. 1066,
Recent cases have grappled with these concerns in the context of an accused student's right to confront adverse witnesses. In CMC,
Our colleagues in Division One found that CMC denied the accused student a fair hearing, given the accuser's failure to appear at the hearing to permit the committee to assess her credibility. Fairness required that committee members hear from her directly before choosing to credit her account. ( CMC,
In Cincinnati , university procedures permitted an accused student to question witnesses indirectly by submitting questions to a factfinding panel at a live hearing. ( Cincinnati, supra , 872 F.3d at p. 396.) However, the complaining witness chose not to appear, and the accused student had no opportunity to question her, indirectly or otherwise. ( Id . at p. 397.) Nevertheless, the review panel relied on an investigator's written report to find the accusing student's statement that she had not consented to sex more credible than the accused's, who claimed the sexual encounter was consensual. ( Id . at pp. 402, 407.) In light of the directly conflicting claims, and an absence of corroborative evidence to either support or refute the allegations, the review panel was *1065forced to choose whom to believe. "[T]he panel resolved this 'problem of credibility' without assessing [the complainant's] credibility. [Citation.]" ( Id . at p. 402.) Indeed, "it decided [the accused student's] fate without seeing or hearing from [the complainant] at all." ( Ibid . ) That result was not merely "disturbing"; it was "a denial of due process." ( Ibid . )
In UCSB , our colleagues in Division Six similarly found that neither an accused student nor his accuser received a fair hearing in a case that "turned on the [fact finder's] determination of the credibility of the witnesses. Credibility cannot be properly decided until the accused is given the opportunity to adequately respond to the accusation. The lack of due process in the hearing ... precluded a fair evaluation of the witnesses' credibility." ( UCSB, supra , 28 Cal.App.5th at p. 61,
In Baum , two students gave inconsistent accounts as to whether the accusing student had been so drunk she lacked the capacity to consent. ( Baum,
" 'A decision relating to the misconduct of a student requires a factual determination as to whether the conduct took place or not.' [Citation.] 'The accuracy of that determination can be safeguarded by the sorts of procedural protections traditionally imposed under the Due Process Clause.' [Citation.] Few procedures safeguard accuracy better than adversarial questioning. In the case of competing narratives, 'cross-examination has always been considered a most effective way to ascertain truth.' [Citations.] [¶] 'The ability to cross-examine is most critical when the issue is the credibility of the accuser.' [Citation.] Cross-examination takes aim at credibility like no other procedural device. [Citations.] A cross-examiner may 'delve into the witness' story to test the witness' perceptions and memory.' [Citation.] He may 'expose testimonial infirmities such as forgetfulness, confusion, or evasion ... thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.' [Citation.] He *134may 'reveal[ ] possible biases, prejudices, or ulterior motives' that color the witness's testimony. [Citation.] His strategy may also backfire, provoking the kind of confident response that makes the witness appear more believable to the fact finder than *1066he intended. [Citations.] Whatever the outcome, 'the greatest legal engine ever invented for the discovery of truth' will do what it is meant to: 'permit[ ] the [fact finder] that is to decide the [litigant]'s fate to observe the demeanor of the witness in making his statement, thus aiding the [fact finder] in assessing his credibility.' [Citation.]" ( Cincinnati, supra, 872 F.3d at pp. 401-402.)
We agree with CMC , Cincinnati and UCSB , that, where credibility is central to a university's determination, a student accused of sexual misconduct has a right to cross-examine his accuser, directly or indirectly, so the fact finder can assess the accuser's credibility. ( CMC,
We also agree with Baum's holding extending the right of cross-examination to the questioning of witnesses other than the complainant where their credibility is critical to the fact-finder's determination. "[I]f a university is faced with competing narratives about potential misconduct," some form of in-person questioning is required to enable "the fact-finder [to] observe the witness's demeanor under that questioning." ( Baum, supra , 903 F.3d at pp. 581-582.)
Doe v. USC(2), supra ,
The court reversed and remanded the matter to permit USC to conduct a new disciplinary hearing. In the event the university chose to reopen the investigation, it was instructed that providing the "accused student ... the opportunity indirectly to question the complainant" would be part of the investigator's obligation to assess credibility. ( Id . at p. ----,
In our view, the analysis in USC v. Doe(2) did not fully consider a key question: whether the right to a fair hearing, and in particular the right to cross-examination, has any practical efficacy without structural procedural changes in a procedure such as that used by USC. It is true that an administrative procedure in which a single individual or body investigates and adjudicates does not, "without more," violate due process. In Doe v. USC(1), supra ,
As we have explained, in USC's system, no in-person hearing is ever held, nor is one required. Instead, the Title IX investigator interviews witnesses, gathers other evidence, and prepares a written report in which the investigator acts as prosecutor and tribunal, making factual findings, deciding credibility, and imposing discipline. The notion that a single individual, acting in these overlapping and conflicting capacities, is capable of effectively implementing an accused student's right of cross-examination by posing prepared questions to witnesses in the course of the investigation ignores the fundamental nature of cross-examination: adversarial questioning at an *136in-person hearing at which a neutral fact finder can observe and assess the witness' credibility. (See Baum,
In light of these concerns, we hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, *137and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (e.g., videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments. That factfinder cannot be a single individual with the divided and inconsistent roles occupied by the Title IX investigator in the USC system.
5. Doe Was Denied a Fair Hearing
The flaws in Dr. Allee's investigation, which formed the basis of her factual findings, illustrate well the significant dangers created by USC's system. This case turned on witness credibility. There are inconsistent accounts from Roe and Doe about whether their sexual encounter was consensual. The only physical evidence is photographs of small bruises on Roe's arms, breast and thigh. That evidence could support either Doe's claim of vigorous consensual sex, or Roe's charge of sexual assault. Evaluation of the credibility of the only witnesses to the event was pivotal to a fair adjudication.
*1070Dr. Allee had unfettered discretion to chart the course and scope of her investigation and to determine credibility, and exercised that discretion in questionable ways. In his first meeting with Dr. Allee, Doe articulated his theory that Roe had a strong motive to fabricate a charge of rape. Dr. Allee seems to have rejected that theory almost immediately, despite investigative leads-such as statements by E.C. and K.J., and Roe's texts to Mia-that, if pursued, would lend support to Doe's theory, and weaken Roe's credibility. This was symptomatic of a larger problem with Dr. Allee's investigation. She did not follow up with presumably identifiable and available witnesses (such as D.N.'s girlfriend, Mia, K.J. or the women who saw Roe and Doe walking together on October 23), who might have filled in holes in the investigation, thus providing a fuller picture from which to make the all-important credibility determination.
In addition, E.C., Roe's long-term roommate at USC, specifically informed the investigator that Roe had been disciplined for having sex with a football player, had agreed in writing not to do so, and could lose her job if she did so again. Roe herself told Mia she was worried about her job and ability to obtain recommendations for graduate school if her sexual encounter with Doe became known. Inexplicably, Dr. Allee failed to check with the Athletic Department to determine its policies and practices regarding sexual relations between student trainers and athletes, let alone ascertain the existence of the agreement Roe purportedly signed. Instead, Dr. Allee accepted at face value Roe's claim that she knew several "trainers [who had] hooked up with athletes and [were] fine." Dr. Allee also made the unattributed, unequivocal pronouncement that "USC's Athletic Training [Department] has had knowledge of athletic trainers engaging in consensual sexual activity with athletes and trainers [who] were not fired despite their employment contract ... prohibit[ing] fraternizing with athletes."33 Finally, in the SAR, Dr. Allee stated that USC "would not retaliate against a student who *138had experienced non-consensual sexual acts." (Italics added.) This, of course, does not address Doe's theory that Roe manufactured the charge against him for fear she would suffer negative consequences if her consensual sex acts with a football player became known, and suggests, at a minimum, that Dr. Allee may have been confused.
Deficiencies such as these are virtually unavoidable in USC's system, which places in a single individual the overlapping and inconsistent roles of investigator, prosecutor, factfinder, and sentencer. While providing a hearing at which the witnesses appear and are cross-examined before a neutral factfinder *1071cannot ensure that such flaws do not occur, such a procedure at least provides an accused student with a fair and meaningful opportunity to confront the adverse witnesses in an attempt to expose weaknesses in the evidence. In Doe's case, he was accused of sexual misconduct for which he faced serious disciplinary sanctions, and the credibility of witnesses was central to the adjudication of the allegations against him. In those circumstances, he was entitled to a procedure in which he could cross-examine witnesses, directly or indirectly, at a hearing at which the witnesses appeared in person or by other means before a neutral adjudicator with the power to make finding of credibility and facts. Because USC failed to provide such a procedure, the adjudication findings that he committed sexual misconduct in violation of the SCC cannot stand. ( UCSD , supra , 5 Cal.App.5th at p. 1084,
DISPOSITION
The judgment is reversed and the matter remanded to the trial court with directions to grant Doe's petition for writ of administrative mandate insofar as it seeks to set aside the findings that he violated USC's student conduct code. Because Doe is no longer eligible for reinstatement, he is not entitled to that relief. Doe is awarded his costs on appeal.
We concur:
COLLINS, J.
DUNNING, J.
Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Related
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242 Cal. Rptr. 3d 109, 30 Cal. App. 5th 1036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-allee-calctapp5d-2019.