A California court has ruled that the University of California, San Diego (UCSD) acted improperly by using a deeply flawed system to adjudicate a sexual assault allegation and sanctioning the accused based on a process that violated his rights.
On July 10, 2015, Judge Joel M. Pressman of the Superior Court of California, County of San Diego, ruled UCSD’s procedures violated the student’s due process rights and that the evidence did not support the university’s finding of responsibility.
A detailed account of the underlying facts of the case was provided in The Washington Post today.
The ruling is the latest in the increasing trend of sexual assault allegations against college students (and universities’ responses to those claims) resulting in administrative complaints with the Department of Education’s Office for Civil Rights (OCR) and lawsuits by accused students.
This case, Doe v. Regents of the University of California, San Diego, was filed after the university found the petitioner, pseudonymously known as John Doe, responsible for sexual assault after a hearing in December of 2014. Doe was initially suspended for one quarter, subjected to a permanent no-contact order with the complainant, ordered to attend a two-hour sex offense/sexual harassment training, and required to submit to a counseling assessment. Without any explanation, on appeal, his penalty was increased to a suspension for a full year, which required him to reapply to be readmitted. In addition, he was placed on non-academic probation and ordered to attend ethics workshops.
The court ordered UCSD to set aside its factual findings and sanctions because the procedures UCSD used in Doe’s case violated his due process rights in several significant respects.
One key failure was that the university did not adequately allow Doe to cross-examine his accuser. The court took into account several factors in reaching this conclusion. First:
The university unfairly limited petitioner’s right to cross-examine the primary witness against him, Ms. Roe … . [O]nly nine of Petitioner’s thirty-two questions were actually asked by the Panel Chair.
Compounding this unfairness, the record showed that although the hearing panel declined to pose a substantial majority of the questions Doe wanted to ask his accuser, it did not screen any of the questions posed by the university’s representatives. The university also allowed the accuser to testify from behind a barrier during the proceedings. Explaining why this was a problem, Judge Pressman wrote:
The Court does not see the necessity of the screen between Ms. Roe and Petitioner. The Court also notes the importance demeanor and non-verbal communication in order to properly evaluate credibility. This is especially true given that the panel made findings in this case from Ms. Roe’s testimony and her credibility.
Doe’s right of confrontation was also determined to have been violated when the hearing panel relied on evidence that he was not permitted to challenge during the hearing. For example, the hearing panel relied heavily on the findings of a report by the university’s Office for the Prevention of Harassment and Discrimination (OPHD), despite not making the report’s author available for cross-examination or discussing the report at all until closing arguments at the hearing. Explaining why this was unfair to Doe, the court explained:
First, the Panel relied on evidence that was outside the hearing. Ms. Dalcourt [the author of the report] did not testify. While the technical rule of hearsay is not applicable to the hearing, the hearing did not allow petitioner any opportunity to refute Ms. Dalcourt’s findings. Ms. Dalcourt’s conclusions were crucial to the findings, but petitioner was denied his right of confrontation. Second, the right of confrontation was compounded because petitioner was not given any of the underlying 14 witnesses interviewed by Officer Dalcourt nor was petitioner provided with Ms. Roe’s interview statements on June 12 and July 29. By doing so, the hearing deprived petitioner the opportunity to examine anything about the summary conclusions relied upon by the hearing panel. At no time is Petitioner given the opportunity to confront the OPHD report or Ms. Dalcourt because she was not present at the hearing.
By relying on the OPHD’s report, the court found the hearing panel inappropriately delegated its fact-finding responsibility:
[I]t was the panel’s responsibility to determine whether it was more likely than not that petitioner violated the policy and not defer to an investigator who was not even present to testify at the hearing. “Due process requires that a hearing . . . ‘be a real one, not a sham or a pretense.[’]” Ciechon v. City of Chicago (7th Cir. 1982) 686 F.2d 511, 517.
FIRE has long argued that too many campus sexual assault proceedings involve inadequate procedural protections and that this practice creates injustices for both accused parties and complainants. Procedural protections are not just technicalities—they are crucial to ensuring a fair hearing.
The court also concluded the panel improperly held the accused’s silence against him as a sign of his guilt, in violation of the Fifth Amendment:
A basic principle of fairness is that a trier of fact may not draw any inference from a witness’s invocation of a privilege. The Panel’s findings state: “While John stated during the hearing that he did not digitally penetrate Jane’s vagina, he abstained from providing additional information regarding the incident and what occurred around the time of the incident and the panel would have liked to hear more information from him.” This finding indicates weight given to John’s assertion of the 5th Amendment privilege.
[Citations and exhibits omitted.]
While the Fifth Amendment’s right against self-incrimination applies specifically in the criminal law context, it is clear from this decision that the same principles of fairness are at stake when a person’s silence is used against him or her in a campus proceeding. This is especially true since statements made by accused students in these campus proceedings are often admitted against them in subsequent criminal trials.
The court ultimately concluded that these shortcomings prevented Doe from getting a fair hearing and that the evidence properly before the campus panel did not justify its finding that Doe had sexually assaulted his accuser. It also concluded that UCSD abused its discretion when it increased Doe’s penalties on appeal without any explanation.
The decision in Doe v. UCSD is important because it demonstrates that when courts subject campus proceedings to scrutiny, the ugly truth of their shortcomings is glaring. This is a particularly important ruling in California, where legislators have undermined the due process rights of accused students further by requiring them to prove they obtained affirmative consent in the school disciplinary hearings. Hopefully, more courts will weigh in to restore some semblance of balance so that all students’ rights are respected.