Boermeester v. Carry

IN THE SUPREME COURT OF

CALIFORNIA

MATTHEW BOERMEESTER,

Plaintiff and Appellant,

v.

AINSLEY CARRY et al.,

Defendants and Respondents.

S263180

Second Appellate District, Division Two

B290675

Los Angeles County Superior Court

BS170473

July 31, 2023

Justice Groban authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,

Jenkins, and Evans concurred.

BOERMEESTER v. CARRY

S263180

Opinion of the Court by Groban, J.

In recent years, courts in California and throughout the

nation, as well as the California Legislature and the United

States Department of Education’s Office for Civil Rights (OCR),

have attempted to determine the precise procedures

universities1 must utilize when investigating and disciplining

students accused of sexual misconduct or intimate partner

violence. This judicial and legislative activity likely began in

response to a “Dear Colleague” letter relating to title IX of the

Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) (Title

IX) that the OCR issued in 2011, which gave guidance on the

specific procedures federally funded universities should

implement when investigating sexual harassment allegations.

The letter sought to stymie the rising tide of sexual assault on

campuses by making it easier for victims to prove their claims

in university disciplinary actions. Though the letter was

rescinded in 2017, students accused of sexual misconduct or

intimate partner violence continue to challenge many of the

disciplinary procedures universities have since implemented,

asserting that these procedures create an unfair process which

may result in universities mistakenly imposing severe sanctions

upon accused students, including expulsion.

1

In this opinion, we use the term “universities” to refer to

all postsecondary educational institutions.

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In this case, respondents University of Southern

California and its Vice President of Student Affairs, Ainsley

Carry (collectively, USC) expelled appellant Matthew

Boermeester from the private university after conducting a two-

month investigation and determining that he violated USC’s

policy against engaging in intimate partner violence.

Boermeester filed a petition for a writ of administrative

mandate under Code of Civil Procedure section 1094.5 (section

1094.5), alleging that he was deprived of the “fair trial” required

by that section. A divided Court of Appeal agreed, with the

majority concluding that “USC’s disciplinary procedures . . .

were unfair because they denied Boermeester a meaningful

opportunity to cross-examine critical witnesses at an in-person

hearing.” (Boermeester v. Carry (June 4, 2020, B290675) review

granted and opn. ordered nonpub. Sept. 16, 2020, S263180.)

More specifically, the Court of Appeal majority determined that

USC’s disciplinary procedures were unfair because USC should

have afforded Boermeester the opportunity to attend a live

hearing at which he or his advisor-attorney would directly cross-

examine the alleged victim, Jane Roe,2 as well as the third party

witnesses, or indirectly cross-examine them by submitting

questions for USC’s adjudicators to ask them at the live hearing.

(Boermeester v. Carry, supra, B290675.) The Court of Appeal

majority made clear that the witnesses need not be “physically

present to allow the accused student to confront them” and could

instead appear “by videoconference, or by another method that

would facilitate the assessment of credibility.” (Ibid.)

2

Like the Court of Appeal, we refer to Roe and the other

witnesses in a manner that protects their privacy. (Cal. Rules

of Court, rule 8.90.)

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Nevertheless, the Court of Appeal majority believed that

accused students must be able to contemporaneously hear and

observe the real-time testimony of the accuser and other

witnesses at a live hearing to have a “meaningful opportunity to

respond to the evidence against [them]” and ask follow-up

questions. (Ibid.)

We hold that, 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. Requiring private universities to conduct

the sort of hearing the Court of Appeal majority envisioned

would be contrary to our long-standing fair procedure

admonition that courts should not attempt to fix any rigid

procedures that private organizations must “invariably” adopt.

(Pinsker v. Pacific Coast Society of Orthodontists (1974)

12 Cal.3d 541, 555 (Pinsker II).) Instead, private organizations

should “retain the initial and primary responsibility for devising

a method” to ensure adequate notice and a meaningful

opportunity to be heard. (Ibid.) We accordingly reverse the

Court of Appeal’s judgment.

I. BACKGROUND

This matter comes to us on appeal from a judgment on a

petition for a writ of administrative mandate made pursuant to

section 1094.5. Our recitation of the facts is accordingly derived

solely from the administrative record. (Sierra Club v. California

Coastal Com. (2005) 35 Cal.4th 839, 864; accord, Pomona Valley

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Hospital Medical Center v. Superior Court (1997)

55 Cal.App.4th 93, 101.)

A. USC’s Policies

The USC student conduct code in effect at the time of the

incident in question prohibited students from engaging in

intimate partner violence, which it defined as “violence

committed against a person . . . with whom [the accused student

has] had a previous or current dating, romantic, intimate, or

sexual relationship.” Violence, in turn, was defined as “causing

physical harm to the person.” Upon receiving a report of

intimate partner violence or other prohibited conduct, USC’s

Title IX office would conduct an intake interview of the accuser

or alleged victim.3 If USC decided to open a formal

investigation, it would notify the accuser and the accused

student of the investigation and the alleged policy violations.

USC would also assign a Title IX investigator to the matter, who

would gather facts and interview witnesses. Upon completion

of the investigation, USC would provide the accuser and the

accused student “individual and separate” opportunities to

review the gathered evidence. After reviewing the evidence, the

accuser and the accused student would be given “individual and

separate” opportunities to respond to the evidence through an

“evidence hearing” held at the Title IX office and conducted by

3

All universities that receive federal financial assistance

must designate at least one employee, referred to as the Title IX

coordinator, as being responsible for ensuring compliance with

Title IX. (34 C.F.R. § 106.8(a) (2023).) At the time of the

incident in question, USC had a Title IX office consisting of a

Title IX coordinator, who oversaw the office, and Title IX

investigators, who investigated specific allegations of

misconduct.

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USC’s Title IX coordinator. USC would also provide the accuser

and the accused student the opportunity to submit questions for

the Title IX coordinator to ask one another at their separate

hearings. If either student shared new information during their

separate hearing, USC would provide the other student an

opportunity to review and respond to the new evidence.

At the conclusion of the evidence hearings, the Title IX

investigator would prepare a summary administrative review

(SAR) which, using a preponderance of the evidence standard,

would make factual findings and conclusions as to whether the

accused student violated one or more of USC’s policies. If the

SAR found that a policy was violated, the SAR would be

forwarded to a misconduct sanctioning panel, composed of one

undergraduate student and two staff designated by the provost

and senior vice president for academic affairs, to impose

sanctions. Either the accuser or the accused student could file

a written appeal. The appeal would be reviewed by an appellate

panel composed of three individuals appointed by the vice

president for student affairs. The vice president of student

affairs had the discretion to accept or reject the appellate panel’s

recommendations and made the final decision. Throughout the

process — from investigation to final adjudication — both the

accuser and accused student were allowed to receive support

and assistance from an advisor of their choice, who could be an

attorney.

B. The Incident

Boermeester and Roe were students at USC who had an

“ ‘on and off’ ” romantic relationship from approximately March

2016 to October 2016. Although they were no longer in a

relationship by January 21, 2017 — the date the incident

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occurred — the two often spent time together and Boermeester

regularly stayed the night at Roe’s apartment.

USC’s Title IX office received a report of an incident that

took place on January 21, 2017. The office assigned a Title IX

investigator to investigate the incident, who interviewed Roe

two days later. Roe explained that, on the night of the incident,

Boermeester called her and asked her to pick him up from a

party. He was the “ ‘drunkest’ ” she had ever seen him. Roe had

her dog with her, and when they arrived at Roe’s apartment and

exited the car, Boermeester instructed Roe to drop her dog’s

leash. She did not want to do so, so he grabbed the back of her

hair “ ‘hard’ ” and said “ ‘drop the fucking leash.’ ” Roe said

“ ‘No’ ” and Boermeester grabbed her harder, causing her to drop

the leash because it “ ‘hurt.’ ” Boermeester then grabbed the

front of Roe’s throat and neck, causing her to cough. She was

able to breathe but stated that the pressure “ ‘hurt.’ ”

Boermeester laughed and let go of her neck, but then grabbed

her by the neck again and pushed her “ ‘hard,’ ” forcing her head

against the concrete wall along the alley behind her apartment

duplex. Boermeester again let her go, but then grabbed her neck

once more and again hit her head against the wall. Roe’s head

hurt from the impact.

Roe also provided the Title IX investigator with a detailed

account of prior instances of physical violence perpetrated by

Boermeester. She described Boermeester as being “ ‘mean’ ”

and “ ‘always putting [her] down,’ ” and she read a list of

demeaning things he had said to her within a 24-hour period,

which she had catalogued on her phone. Roe requested an

avoidance of contact order prohibiting Boermeester from

contacting her and requested temporary emergency housing.

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There were two eyewitnesses to the incident. A student,

D.H., reported to the Title IX investigator that sometime after

midnight on January 21, 2017, he heard a male yelling loudly in

the alley next to the apartment duplex D.H. shared with Roe.

D.H. looked out the window and saw Boermeester pinning Roe

against a wall with his hand around her neck. He also saw Roe’s

dog running up and down the street, which D.H. perceived as a

problem because Roe never allowed her dog to run freely. He

awakened his roommate, T.S., who did not see the incident but

accompanied D.H. outside. D.H. and T.S. escorted Roe back to

their apartment. D.H. reported that Roe seemed “ ‘pretty

scared’ ” but she refused to sleep at their apartment because she

did not want to make Boermeester “ ‘more mad.’ ” Roe told the

investigator that she refused to spend the night at D.H.’s and

T.S.’s apartment because Boermeester “ ‘wouldn’t understand,’ ”

and so she returned to her own apartment to avoid “ ‘mak[ing]

it worse.’ ” Later the same day, D.H. reported the incident to

the men’s tennis coach, who in turn reported it to the Title IX

office.

A second eyewitness, M.B.2, was interviewed twice.

Initially, he told the Title IX investigator that he saw Roe

arguing with a male he did not recognize but did not see any

physical contact between the two. Later, however, he called the

Title IX investigator to report that he “ ‘saw everything’ ” and

wished to speak with the investigator again. During the second

interview, M.B.2 explained that he “ ‘tried to downplay’ the

incident” in his initial interview both because he believed Roe

was scared of Boermeester and because Roe had asked M.B.2 to

“ ‘keep it on the down low.’ ” M.B.2 reported during his second

interview that he, like D.H., heard screaming in the alley near

his residence on the night in question. He looked out the window

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and saw Boermeester standing in front of Roe with both hands

around her neck. Boermeester pushed Roe into the alley wall

and Roe made “ ‘gagging’ ” sounds. Based on his observations,

M.B.2 stated that Boermeester “ ‘is violent’ ” and “ ‘domestically

was abusing [Roe].’ ” M.B.2 grabbed a trash bag, went outside,

and asked Roe and Boermeester how things were going, which

“ ‘broke it up.’ ”

In his own interview with the Title IX investigator,

Boermeester admitted that he had instructed Roe to release her

dog, and then put his hand around her neck while she was

against the alleyway wall. But he insisted that the act

amounted to playful “ ‘horsing around’ ” or sexual foreplay —

not intimate partner violence.

USC’s Title IX office obtained surveillance video of the

incident. As the Court of Appeal majority observed, the video is

“grainy and there is no audio”; Boermeester and Roe “are small

figures in the frame of the video” since the camera “is positioned

approximately two buildings away from [them]”; and “the

interaction between Boermeester and Roe when they are near

the wall [is] barely visible.” (Boermeester v. Carry, supra,

B290675.) Nevertheless, the following events can be seen, as

described by both the superior court and the Court of Appeal

majority: “ ‘At 12:16:16 a.m., the video shows [Boermeester]

shoving Roe from the area adjacent to the house into the

alleyway. At 12:16:50, [Boermeester] appears to be holding

Roe’s neck or upper body area. At 12:17:12, [Boermeester] grabs

Roe by the neck and pushes her toward the wall of the alley. At

12:17:13 and 12:17:14, Roe’s head and body arch backwards.

Between 12:17:16 and 12:17:26, [Boermeester] and Roe are

against the wall and barely visible from the camera. At

12:17:26, [Boermeester] backs away from the wall and re-enters

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the camera’s view. At 12:17:28, Roe re-enters the camera’s view.

Roe and [Boermeester] proceed to push each other. At 12:17:38,

[Boermeester] moves toward Roe and appears to be pushing her

against the wall. At 12:17:40, a dog can be seen running across

the alley. At 12:17:57, a third party enters the camera’s view

and walks in the direction of [Boermeester] and Roe. At that

moment, [Boermeester] and Roe walk away from the wall and

back towards the house. At 12:18:19, the third party walks over

to the dumpster, places a trash bag inside, and walks back

toward the house.’ ” (Ibid.)

Over the course of USC’s investigation, the Title IX

investigator interviewed both parties (as noted) and 16

additional witnesses (including D.H., T.S., and M.B.2), and also

gathered documentary evidence including the video and text

messages. Roe did not want to participate in the investigation

and discouraged other witnesses from testifying against

Boermeester. Two days after her initial interview, she told the

Title IX investigator she was “ ‘freaked out’ ” that Boermeester

would learn of the investigation and she feared retaliation from

USC’s football team (Boermeester was a member of the team).

The next day, she reiterated that she was “freaked out” and

stressed that Boermeester “can’t know I made a statement” and

“can’t know I met with you guys.” After Boermeester was given

notice of the investigation, Roe stated that she no longer “ ‘fully

believe[d]’ ” the statements she made during her initial

interview and asked if she could withdraw her statement and

the avoidance of contact order, explaining she did not want

Boermeester to be “ ‘mad’ ” at her and she did not “ ‘trust’ ” that

it would be clearly conveyed to Boermeester that the

investigation was initiated by the Title IX office. Roe also

expressed concern that Boermeester would be punished too

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harshly. After the investigation was reported in the media, Roe

published a tweet on Twitter stating that “I am the one involved

in the investigation with Matt Boermeester. The report is false.”

At the conclusion of the investigation, Boermeester and

Roe separately reviewed the evidence with their advisor-

attorneys at the Title IX office. The parties declined to attend

their separate hearings or to submit questions for USC’s Title

IX coordinator to ask one another during their hearings.

Instead, they opted to submit separate written statements

responding to the evidence. In her written statement, Roe

recanted her initial statement and claimed the Title IX office

manipulated her into saying exaggerated or untrue things about

Boermeester and their relationship. Specifically, Roe explained

that she believed her initial discussion with the Title IX office

was a “counseling session where [she] was free to vent about

[her] relationship or blow off steam,” but she later felt that the

office was “trying to get [her] to say bad things about

[Boermeester] so that they could use those things against him.”

She further claimed that, had she understood the true nature of

the meeting, she “would not have said many of the things [she]

said and [she] would have made a greater effort to be accurate.”

Finally, she emphasized that Boermeester never “hit, choked,

kicked, pushed or otherwise physically abused” her. (Boldface

omitted.)

The Title IX investigator issued an SAR concluding that

Boermeester violated USC’s student conduct code by (1)

engaging in intimate partner violence and (2) violating the

interim avoidance of contact order. The SAR was forwarded to

a misconduct sanctioning panel, which recommended expulsion.

Boermeester appealed to an appellate panel, which agreed that

Boermeester physically harmed Roe — and thus engaged in

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intimate partner violence — but was “less certain as to whether

[Boermeester] intentionally physically harmed [Roe].” The

appellate panel acknowledged that intent “is not a required

element” for proving intimate partner violence as defined by

USC’s policy, but nevertheless felt that intent was relevant for

sanctioning purposes and accordingly recommended reducing

the sanction to a two-year suspension and completion of a 52-

week intimate partner violence program. The Vice President of

Student Affairs, respondent Carry, rejected the appellate

panel’s recommendation to reduce the sanction of expulsion.

She explained that, whether Boermeester intended to cause Roe

physical harm or did so recklessly, expulsion was appropriate

given the nature of the harm inflicted.

Boermeester filed a section 1094.5 petition for writ of

administrative mandate, which the superior court denied. A

divided Court of Appeal reversed, with the majority concluding

that USC’s disciplinary procedures were unfair because

Boermeester was unable to directly or indirectly question Roe

and the third party witnesses in real time at a live hearing.

(Boermeester v. Carry, supra, B290675.) The Court of Appeal

majority declined to reach Boermeester’s other claims regarding

fairness, including his assertion that USC’s disciplinary

procedures were unfair because USC’s Title IX investigator held

the dual roles of investigator and adjudicator. (Ibid.) We

granted review to determine whether the Court of Appeal

majority was correct in concluding that USC should have held a

live hearing featuring real-time direct or indirect cross-

examination of all parties and witnesses (whether conducted in-

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person or virtually) with an opportunity for Boermeester to ask

the witnesses follow-up questions.4

II. DISCUSSION

A. Writ of Administrative Review

A writ of administrative review brought pursuant to

section 1094.5 allows for judicial review of quasi-judicial

decisions that are made “as the result of a proceeding in which

by law a hearing is required to be given, evidence is required to

be taken, and discretion in the determination of facts is vested

in the inferior tribunal, corporation, board, or officer.” (§ 1094.5,

subd. (a).) Judicial review is limited to “whether the respondent

4

The Court of Appeal was split as to whether Boermeester

forfeited his right to challenge USC’s failure to provide him with

a live hearing featuring direct or indirect cross-examination of

Roe and the other witnesses. Justice Wiley emphasized in his

dissent that Boermeester did not submit cross-examination

questions for USC’s adjudicators to ask Roe and “never requested

live cross-examination” of Roe or the other witnesses.

(Boermeester v. Carry, supra, B290675 (dis. opn. of Wiley, J.).)

The Court of Appeal majority declined to find forfeiture,

deciding that it would have been futile for Boermeester to

request cross-examination at a live hearing since neither USC’s

policies nor the law at the time allowed for it. (Boermeester v.

Carry, supra, B290675.)

Neither party asks that we resolve this matter on

forfeiture grounds. USC instead urges us to resolve the issue on

the merits, noting the need for “clear guidance on what the

common law actually requires.” We find that the issues raised

are important and recurring, and accordingly exercise our

discretion to reach the merits without deciding whether

Boermeester forfeited his claims. (See Teacher v. California

Western School of Law (2022) 77 Cal.App.5th 111, 129; JMS Air

Conditioning & Appliance Service, Inc. v. Santa Monica

Community College Dist. (2018) 30 Cal.App.5th 945, 962, fn. 6.)

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has proceeded without, or in excess of, jurisdiction; whether

there was a fair trial; and whether there was any prejudicial

abuse of discretion.” (§ 1094.5, subd. (b).) “ ‘A challenge to the

procedural fairness of the administrative hearing is reviewed de

novo on appeal because the ultimate determination of

procedural fairness amounts to a question of law.’ ” (Doe v.

University of Southern California (2016) 246 Cal.App.4th 221,

239 (University I); accord, Natarajan v. Dignity Health (2021)

11 Cal.5th 1095, 1111.)

Section 1094.5 review applies not only to the decisions of

governmental agencies but also to the decisions of private

organizations, so long as the private organization was legally

required to hold a hearing, take evidence, and make factual

determinations in coming to its decision. (Anton v. San Antonio

Community Hospital (1977) 19 Cal.3d 802, 815–817.) We have

never previously applied section 1094.5 to a private university’s

disciplinary decisions. We nevertheless find that section 1094.5

writ review is appropriate because, for the reasons more fully

explained below, the common law doctrine of fair procedure

applies in this context. Among other things, this doctrine, when

applicable, requires a private organization to comply with its

own procedural rules governing the expulsion of individuals

from the organization, and it permits courts to evaluate the

basic fairness of those procedural rules when the organization

seeks to exclude or expel an individual from its

membership. (Cason v. Glass Bottle Blowers Assn. (1951) 37

Cal.2d 134, 143 (Cason); accord, Otto v. Tailors’ P. & B. Union

(1888) 75 Cal. 308, 314–315.) Here, USC’s policies were subject

to the common law doctrine of fair procedure, and those policies

specified that the university would offer the accused student a

hearing, take evidence, and make factual determinations in a

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final adjudicatory decision issued by the vice president of

student affairs. Thus, the section 1094.5 “elements of hearing,

evidence, and discretion in the determination of facts are clearly

required by law” and section 1094.5 writ review applies. (Anton,

at p. 815; see also Bray v. International Molders & Allied

Workers Union (1984) 155 Cal.App.3d 608, 616 [courts “ ‘pay

proper respect’ ” to a private organization’s “ ‘quasi-judicial

procedure, precluding an aggrieved party from circumventing’ ”

section 1094.5 review].)

The parties do not dispute that section 1094.5 applies.

The parties’ dispute instead centers on the meaning of a “fair

trial” under section 1094.5, subdivision (b). Boermeester asserts

that section 1094.5’s fair trial component can only be satisfied

by adhering to principles established by the common law

doctrine of fair procedure which, in certain limited contexts,

requires a private organization to give an individual adequate

notice of the charges and a reasonable opportunity to respond

before expelling the individual from the organization’s

membership. (Pinsker II, supra, 12 Cal.3d at p. 555.)

Boermeester additionally urges us to rely on constitutional due

process principles, though he does not go so far as to suggest

that due process applies to private universities like USC. USC,

on the other hand, claims that “[s]ection 1094.5 is a procedural

vehicle for reviewing public and private administrative

decisions” and “does not impose any particular standards of fair

procedure.” Even so, USC does not dispute that some minimum

standard of procedural fairness is required in this context.

Moreover, USC relies on cases decided under the common law

doctrine of fair procedure in asserting that its disciplinary

process was fair.

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Neither we nor any other court has held that the fair trial

component of section 1094.5 is synonymous with either the

common law doctrine of fair procedure or with due process

principles, and we decline to do so here. Nevertheless, and as

explained more fully below, our fair procedure cases are

instructive because the membership-related decisions made by

the private organizations in those cases are similar in

significant respects to private universities’ student disciplinary

decisions.

The principles of common law fair procedure are similar to

those of constitutional due process in that they are flexible and

context specific. Under either concept, the precise procedures

necessary to provide a complainant with a meaningful

opportunity to be heard “depend[] largely on ‘the nature of the

tendered issue.’ ” (Ezekial v. Winkley (1977) 20 Cal.3d 267, 279

(Ezekial); accord, Saleeby v. State Bar (1985) 39 Cal.3d 547,

565.) This is not to say that fair procedure and due process are

identical. Due process is a constitutional right designed to

protect citizens from abuses of state power, and it does not apply

here since no state action is involved. Fair procedure, on the

other hand, is a more flexible judicially created concept

applicable to private organizations in limited situations. (See

Pinsker II, supra, 12 Cal.3d at p. 550, fn. 7 [distinguishing due

process and fair procedure]; Cotran v. Rollins Hudig Hall

Internat., Inc. (1998) 17 Cal.4th 93, 108, quoting Friendly,

“Some Kind of Hearing” (1975) 123 U. Pa. L.Rev. 1267, 1269–

1270, fn. 10 [“ ‘The precise content of the common law “fair

procedure” requirement is far more flexible than that which the

Supreme Court has found to be mandated by due process’ ”].)

Because this matter involves a private university, no

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constitutional rights are at stake and a greater degree of

flexibility is warranted. (See Pinsker II, at p. 555.)

With these considerations in mind, we next provide a

background on the common law doctrine of fair procedure and

discuss how it governs our inquiry.

B. The Common Law Doctrine of Fair Procedure

The common law doctrine of fair procedure originally

developed to prevent the arbitrary expulsion of individuals from

memberships in certain private organizations — such as mutual

aid societies, fraternities, or unions — where the expulsion

“adversely affected [property] rights in specified funds held for

the association’s members.” (Potvin v. Metropolitan Life Ins. Co.

(2000) 22 Cal.4th 1060, 1066 (Potvin).) The doctrine was

subsequently expanded to prevent the arbitrary expulsion or

exclusion of individuals from private organizations that “possess

substantial power either to thwart an individual’s pursuit of a

lawful trade or profession, or to control the terms and conditions

under which it is practiced.” (Ezekial, supra, 20 Cal.3d at

p. 272.) For the doctrine to apply, individuals need not show

that they would be fully unable to practice their chosen

profession absent membership in the organization; they can

instead show that “exclusion from membership . . . deprives

[them of] substantial . . . educational, financial, and professional

advantages.” (Pinsker v. Pacific Coast Soc. of Orthodontists

(1969) 1 Cal.3d 160, 164–165, italics omitted (Pinsker I).)

In Pinsker I, for example, we held that an orthodontics

association was subject to the doctrine of fair procedure,

explaining that while membership in the association was “not

economically necessary in the strict sense of the word,” it was a

“practical necessity for a dentist who wishes not only to make a

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good living as an orthodontist but also to realize maximum

potential achievement and recognition in such specialty.”

(Pinsker I, supra, 1 Cal.3d at p. 166.) Similarly, in Potvin, we

held that an insurer’s removal of a physician from its preferred

provider list was subject to the doctrine of fair procedure

because “the insurer possesses power so substantial that the

removal significantly impairs the ability of an ordinary,

competent physician to practice medicine or a medical specialty

in a particular geographic area, thereby affecting an important,

substantial economic interest.” (Potvin, supra, 22 Cal.4th at

p. 1071.) We also elaborated on our rationale for requiring

certain private organizations to apply fair procedure in their

membership decisions by observing that these organizations

“affect[] the public interest” and “ ‘are viewed by the courts as

quasi-public in nature’ ” which “ ‘lead courts to impose’ ” on

them certain obligations to the public and the individuals with

whom they deal. (Id. at p. 1070.) This rationale applied to the

insurer in Potvin since “ ‘[t]he public has a substantial interest

in the relationship between [insurers] and their preferred

provider physicians.’ ” (Ibid.)

Most notably, in Ezekial, we applied the fair procedure

doctrine to prevent an individual’s arbitrary expulsion from a

residency program at Kaiser, a private teaching hospital.

(Ezekial, supra, 20 Cal.3d 267.) We found that the plaintiff was

entitled to fair procedure because, by accepting him into its

residency program and later seeking to expel him from that

program, “Kaiser has assumed the power to permit or prevent

[the plaintiff’s] practice of a surgical specialty and to thwart the

enjoyment of the economic and professional benefits flowing

therefrom.” (Id. at p. 274.) We additionally reasoned that

“[d]ismissal from Kaiser will, as a practical matter and because

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of Kaiser’s close relationship with other teaching hospitals,

prevent plaintiff’s acceptance in any other surgical residency

program. Successful completion of an approved surgical

residency is a prerequisite to attainment of the status of a ‘board

certified general surgeon,’ without which plaintiff cannot

practice a surgical specialty in any accredited California

hospital.” (Id. at pp. 270–271.) Because “the right to practice a

lawful trade or profession is sufficiently ‘fundamental’ to require

substantial protection against arbitrary administrative

interference,” the doctrine of fair procedure applied. (Id. at

p. 272.)

Unlike in the above cases, this matter does not involve a

private entity with “a virtual monopoly” sufficient to impede an

individual’s pursuit of a particular trade or profession. (Pinsker

I, supra, 1 Cal.3d at p. 166; accord, Potvin, supra, 22 Cal.4th at

p. 1072 [fair procedure applied because “only a handful of health

care entities have a virtual monopoly on managed care” and

“removing individual physicians from preferred provider

networks controlled by these entities could significantly impair

those physicians’ practice of medicine”].) Nevertheless, a

private university provides an important, quasi-public

service — a postsecondary education — affecting the public

interest. “ ‘[E]ducation is vital and, indeed, basic to civilized

society. . . . [I]t is an interest of almost incalculable value,

especially to those students who have already enrolled in the

institution and begun the pursuit of their college training.’ ”

(Goldberg v. Regents of University of California (1967)

248 Cal.App.2d 867, 876 (Goldberg); accord, Doe v. University of

Cincinnati (6th Cir. 2017) 872 F.3d 393, 399 [expulsion from a

university “ ‘clearly implicates’ a protected property interest”

and may also involve a protected liberty interest].) Much like in

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Ezekial, this case involves “an important benefit or privilege,”

which was already conferred on Boermeester and which USC

took away from him by expelling him. (Ezekial, supra, 20 Cal.3d

at p. 273.) Given the seriousness of sexual misconduct or

intimate partner violence allegations, a student who is expelled

from a university for such conduct 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. (Id. at p. 274.)5 For these reasons, we find that a

student’s interest in completing a postsecondary education at a

private university is analogous to an individual’s interest in

continuing membership in a private organization that impacts

the individual’s ability to practice his or her chosen profession.

Our common law doctrine of fair procedure therefore applies in

determining whether USC’s disciplinary procedures were fair.

Where it applies, the common law doctrine of fair

procedure requires private organizations to provide adequate

5

USC counters that expulsion will not “tarnish a student’s

reputation for life” because “federal law prohibits universities

from disclosing the findings of investigations into alleged

misconduct to unauthorized persons without the consent of the

student or, when applicable, his parent.” The statute to which

USC cites, the Family Educational Rights and Privacy Act of

1974, prohibits the federal funding of educational institutions

that have a policy or practice of releasing education records to

unauthorized persons. (20 U.S.C. § 1232g(b)(1).) It contains an

exception, however, that allows the release of a student’s records

to other schools at which the student is seeking admission.

(20 U.S.C. § 1232g(b)(1)(B).) It therefore does not alter our

observation that a student who is expelled from a university for

committing sexual misconduct or intimate partner violence may

find it difficult to complete his or her education elsewhere.

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notice of the charges and a meaningful opportunity to be heard.

(Pinsker II, supra, 12 Cal.3d at pp. 555–556; Ezekial, supra,

20 Cal.3d at p. 278.) We have never held, however, that any

specific or baseline procedures must be followed to satisfy these

requirements. Boermeester points to Cason, supra, 37 Cal.2d

134, where we observed in dicta that a “fair trial” “includes the

right . . . to confront and cross-examine the accusers” (id. at

pp. 143, 144), but we did not hold in Cason that the plaintiff was

denied a fair procedure on that ground. Instead, we held that

the plaintiff was denied a fair procedure because he was not

permitted to hear or review the accuser’s testimony or to refute

that testimony, nor was he allowed to examine the written

evidence submitted against him. (Id. at pp. 144–145.)

Moreover, we have since noted that “[t]he common law

requirement of a fair procedure does not compel formal

proceedings with all the embellishments of a court trial

[citation], nor adherence to a single mode of process. It may be

satisfied by any one of a variety of procedures which afford a fair

opportunity for an applicant to present his position.” (Pinsker

II, at p. 555.) In fact, we have observed that a formal hearing is

not required in all circumstances; at times, it may be sufficient

for a private organization to allow only a written response to the

charges. (Ezekial, at p. 279.) We have further emphasized that,

given “the practical limitations on the ability of private

institutions to provide for the full airing of disputed factual

issues” (id. at p. 278), courts “should not attempt to fix a rigid

procedure that must invariably be observed. Instead, the

associations themselves should retain the initial and primary

responsibility for devising a method which provides an applicant

adequate notice of the ‘charges’ against him [or her] and a

reasonable opportunity to respond” (Pinsker II, at p. 555).

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In short, though the fair procedure doctrine requires

adequate notice of the charges and a reasonable opportunity to

respond, applying the doctrine to this context requires us to give

private universities primary responsibility for crafting the

precise procedures meant to afford a student with notice and an

opportunity to respond. (Pinsker II, supra, 12 Cal.3d at p. 555.)

Private universities generally know best how to manage their

own operations, and requiring a fixed set of procedures they

must utilize in every situation when determining student

discipline would constitute an improper “ ‘intrusion into the[ir]

internal affairs.’ ” (Id. at p. 557; accord, Ezekial, supra,

20 Cal.3d at pp. 278–279.)

C. Recent Legislation

The Legislature recently enacted legislation setting forth

the precise procedures it felt were necessary to ensure fairness

to both the accused student and the accuser and to combat

sexual violence on university campuses. Senate Bill No. 493

(2019–2020 Reg. Sess.) (Senate Bill 493), which became effective

on January 1, 2021 (Stats. 2020, ch. 303), applies to public or

private universities that receive state financial assistance and

are not exempt from the statute. (Ed. Code, § 66281.8, subd.

(a)(1); id., § 66271.) It specifies the procedures universities

must implement on and after its effective date to address

incidents of sexual violence. (See generally id., § 66281.8.)

Senate Bill 493 does not apply here since the incident itself and

USC’s subsequent investigation of the incident occurred prior to

Senate Bill 493’s effective date. We nevertheless find it

noteworthy that the statute does not require universities to

conduct live hearings featuring cross-examination of the accuser

and other witnesses. (Cf. Nightlife Partners, Ltd. v. City of

Beverly Hills (2003) 108 Cal.App.4th 81, 91 [the Administrative

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Procedure Act (Gov. Code, § 11340 et seq.) was inapplicable but

was nonetheless “helpful as indicating what the Legislature

believes are the elements of a fair and carefully thought out

system of procedure for use in administrative hearings”].)

Senate Bill 493 is intended “to account for the significant

individual civil consequences faced by respondents alleged to

have committed sexual violence as well as the significant harm

to individual complainants and to education equity more

generally if sexual violence goes unaddressed.” (Stats. 2020, ch.

303, § 1, subd. (n).) As relevant here, it gives universities the

discretion to decide whether “a hearing is necessary to

determine whether any sexual violence more likely than not

occurred.” (Ed. Code, § 66281.8, subd. (b)(4)(A)(viii), added by

Stats. 2020, ch. 303, § 3.) It also instructs universities to

consider, “[i]n making this decision, . . . whether the parties

elected to participate in the investigation and whether each

party had the opportunity to suggest questions to be asked of

the other party or witnesses, or both, during the investigation.”

(Ibid.) Thus, universities are left to determine for themselves

whether to conduct a hearing, how to format it, and what rules

govern it.

Senate Bill 493 expressly provides that universities need

not comply with any of its provisions that conflict with federal

law. (Ed. Code, § 66281.8, subd. (f).) Federal law in this area is

still evolving. After the OCR rescinded its 2011 “Dear

Colleague” letter in 2017, it began a rulemaking process

culminating in Title IX regulations that went into effect on

August 14, 2020, three years after Boermeester’s expulsion from

USC. Though the 2020 Title IX regulations are inapplicable

here, it is worth observing that the Title IX regulations may be

trending towards providing private universities with more

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flexibility in determining whether to conduct a live hearing. To

explain, the 2020 Title IX regulations require universities

receiving federal funds to “provide for a live hearing” that allows

“each party’s advisor to ask the other party and any witnesses

all relevant questions and follow-up questions, including those

challenging credibility,” which “must be conducted directly,

orally, and in real time.” (34 C.F.R. § 106.45(b)(6)(i) (2023).) In

June 2022, however, the OCR proposed amendments to the 2020

regulations, which are not yet final. The proposed amendments

provide that universities may opt “to conduct live hearings with

cross-examination or have the parties meet separately with the

decisionmaker and answer questions submitted by the other

party when a credibility assessment is necessary.” (87 Fed. Reg.

41390, 41397 (July 12, 2022).) After reexamining its position

and evaluating relevant case law, the OCR determined that

“neither Title IX nor due process and fundamental fairness”

(87 Fed. Reg., supra, at p. 41505) requires universities “to

provide for a live hearing with advisor-conducted cross-

examination in all cases” (id. at p. 41507). The OCR further

justified the proposed amendments by stating that growing

evidence calls into question “whether adversarial cross-

examination is the most effective tool for truth-seeking in the

context of sex-based harassment complaints involving students

at postsecondary institutions” and shows that “information-

gathering approaches such as questions asked in individual

meetings instead of during a live hearing (sometimes described

as inquisitorial procedures) are more likely to produce the truth

than adversarial methods like cross-examination.” (Ibid.)

As stated above, we find it significant that Senate Bill 493

(as well as the OCR’s most recent proposed amendments to the

Title IX regulations) give universities wide latitude in

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determining the precise nature of their disciplinary proceedings.

But we also observe that the state of the law in this area is in

flux and is, therefore, subject to continued change and

development. We further emphasize that, because neither

Senate Bill 493 nor the current or proposed Title IX regulations

apply to this matter, they are not dispositive.6

D. Fair Procedure Does Not Require Live Hearings

with Cross-examination

We must decide whether fair procedure requires private

universities 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. Applying our fair

procedure precedent discussed above, we hold that it does not.

Requiring live hearings featuring real-time cross-examination

of witnesses in the accused student’s presence would be contrary

to our prior conclusion that “fair procedure does not compel

formal proceedings with all the embellishments of a court trial.”

(Pinsker II, supra, 12 Cal.3d at p. 555.) It would also be contrary

6

Going forward, all universities that receive state financial

assistance and are not exempt from Senate Bill 493 will need to

comply with Senate Bill 493 in any context in which the statute

applies. To the extent that our holding conflicts with any of the

provisions of Senate Bill 493, Senate Bill 493’s provisions

control. (Ed. Code, § 66281.8, subd. (g)(2) [“Any case law that

conflicts with the provisions of the act . . . shall be superseded

as of this statute’s effective date”]; see also Woods v. Young

(1991) 53 Cal.3d 315, 324 [“[A] later, more specific statute

controls over an earlier, general statute”].) The parties agree

that Senate Bill 493 does not apply retroactively to this matter,

and we accordingly do not opine on what the outcome of

Boermeester’s petition would have been had the statute applied

to his claims.

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to our admonition that courts must refrain from fixing rigid

trial-like procedures “that must invariably be observed.” (Ibid.)

As we have recognized, an accused student has a

significant interest in completing a postsecondary education.

For this reason, private universities must comply with the fair

procedure doctrine by affording accused students reasonable

notice of the charges and a meaningful opportunity to respond

before disciplining them. When crafting the precise procedures

necessary to provide a meaningful opportunity to respond,

however, a private university must 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. (See Ezekial,

supra, 20 Cal.3d at pp. 277–278 [weighing the plaintiff’s

economic interest in completing the residency program against

the private hospital’s interest in protecting itself from the

mistakes of incompetent physicians]; accord, Doe v. Westmont

College (2019) 34 Cal.App.5th 622, 634 (Westmont) [observing

that “[a] fair hearing strives to balance three competing

interests” among the accused student, the accuser, and the

university].) It is therefore appropriate to give private

universities broad discretion in formulating their disciplinary

processes to ensure that they not only provide the accused

student a meaningful opportunity to be heard, but also

embolden victims to report incidents of sexual misconduct or

intimate partner violence, encourage witnesses to participate in

the disciplinary process, and allow the private university to

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conserve its resources so that it can remain focused on its

primary mission of providing a postsecondary education.

The Court of Appeal majority reasoned that the accused

student must be able to engage in adversarial back-and-forth

questioning with the accuser and other witnesses at a live

hearing in order to assess witness credibility and to “fully

present his [or her] defense.” (Boermeester v. Carry, supra,

B290675.) While live adversarial questioning may be

considered essential in the context of a criminal trial (People v.

Louis (1986) 42 Cal.3d 969, 982–983), there is no absolute right

to a live hearing with cross-examination in administrative

proceedings, even where constitutional due process applies. As

courts have explained in other administrative contexts,

“ ‘[d]ifferences in the origin and function of administrative

agencies “preclude wholesale transplantation of the rules of

procedure, trial, and review which have evolved from the history

and experience of courts.” . . . The judicial model of an

evidentiary hearing is neither a required, nor even the most

effective, method of decisionmaking in all circumstances.’ ”

(Murden v. County of Sacramento (1984) 160 Cal.App.3d 302,

311.) The fair procedure doctrine similarly recognizes “the

practical limitations on the ability of private institutions to

provide for the full airing of disputed factual issues.” (Ezekial,

supra, 20 Cal.3d at p. 278.) Private universities are ill-equipped

to function as courts because they lack subpoena power to force

key witnesses to attend a hearing and be subject to cross-

examination. They must instead rely on the voluntary

participation of witnesses, which may prove more likely when

the disciplinary process allows witnesses to testify outside of the

context of a live hearing and outside the accused student’s

presence. As the Attorney General, appearing here as amicus

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curiae, observes, requiring live hearings featuring real-time

adversarial questioning “threatens to deter students from

participating and to traumatize those who do.” Furthermore,

such hearings would require private universities to make on-

the-fly rulings on objections to proposed questions and other

issues raised during the hearing, which university staff may not

be adequately trained to do. This would “divert both resources

and attention from a university’s main calling, that is

education.” (Doe v. Regents of University of California (2016)

5 Cal.App.5th 1055, 1078 (Regents I); accord, Goss v. Lopez

(1975) 419 U.S. 565, 583 [“To impose . . . even truncated trial-

type procedures might well overwhelm administrative facilities

in many places and, by diverting resources, cost more than it

would save in educational effectiveness”].) Simply put, the

“ ‘procedures for dismissing college students [are] not analogous

to criminal proceedings and could not be so without at the same

time being both impractical and detrimental to the educational

atmosphere and functions of a university.’ ” (Andersen v.

Regents of University of California (1972) 22 Cal.App.3d 763,

770, quoting Goldberg, supra, 248 Cal.App.2d at p. 881.)

In this case, USC provided Boermeester notice of the

allegations; the opportunity to provide his version of events in

his interview with the Title IX investigator; the opportunity to

independently review the testimonial and documentary

evidence with his attorney-advisor; the opportunity to submit

his own evidence and the names of potential witnesses to the

Title IX investigator; the opportunity to respond to the

testimonial and documentary evidence through an in-person

evidence hearing held at the Title IX office and conducted by the

Title IX coordinator (which he declined to attend in favor of

submitting a written response to the evidence); the opportunity

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to submit questions for the Title IX coordinator to ask Roe at her

own evidence hearing (which he also declined to do); and the

opportunity to appeal the misconduct sanctioning panel’s

decision to the appellate panel. USC was not required to have

gone further by conducting a live hearing with Boermeester in

attendance and with Boermeester directly or indirectly cross-

examining the witnesses and asking follow-up questions, either

in person or virtually.

Boermeester relies on recent appellate court decisions to

support his view that fair procedure requires live hearings at

which accused students are permitted to cross-examine

witnesses (in person or virtually), but most of these cases do not

help him. In University I, the first California appellate case to

analyze what procedures might be required in this context, the

court correctly observed that fair procedure requires only

“ ‘notice reasonably calculated to apprise interested parties of

the pendency of the action . . . and an opportunity to present

their objections’ ” (University I, supra, 246 Cal.App.4th at

p. 240) and concluded from this that “a full trial-like proceeding

with the right of cross-examination is not necessary” (id. at

p. 248). It is true that, subsequent to the University I decision,

some courts have held that private universities must allow the

accused student to indirectly cross-examine the accuser or third

party witnesses where the adjudication “turns on witness

credibility,” but most of these decisions have not specified that

the indirect cross-examination should occur within the context

of a live hearing. (Westmont, supra, 34 Cal.App.5th at p. 638;

accord, Doe v. Claremont McKenna College (2018)

25 Cal.App.5th 1055, 1070 (Claremont McKenna); Doe v.

University of Southern California (2018) 29 Cal.App.5th 1212,

1237 (University II); see also Regents I, supra, 5 Cal.App.5th at

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p. 1084.) In University II, for example, the court directed the

private university to give the accused student “an opportunity

to submit a list of questions” for the university’s adjudicators to

ask the accuser if it proceeded with a new disciplinary

proceeding upon remand (University II, at p. 1238), but it did

not direct the university to conduct a hearing — even after

acknowledging that the university’s policies did not allow for a

hearing (see id. at pp. 1235, 1238). Moreover, courts have been

careful to observe that there exist several “ ‘alternate ways of

providing accused students with the opportunity to hear the

evidence being presented against them’ ” and to rebut such

evidence, other than “permit[ting] [the accused student’s]

presence during the [witnesses’] testimony.” (Westmont, at

p. 638; accord, University I, at p. 245, fn. 12.)

Indeed, aside from the split opinion of the Court of Appeal

below, Doe v. Allee (2019) 30 Cal.App.5th 1036 is the only

decision to hold that a private university must allow an accused

student to indirectly cross-examine witnesses “at a hearing at

which the witnesses appear[] in person or by other means [e.g.,

videoconferencing],” even where the private university’s policies

do not provide a hearing. (Id. at p. 1071.) The Allee court

acknowledged that fair procedure “requirements are ‘flexible’

and entail no ‘rigid procedure’ ” (id. at p. 1062), yet it failed to

explain how its holding comports with these principles. We

accordingly disapprove of Doe v. Allee, supra, 30 Cal.App.5th

1036 to the extent it is inconsistent with our opinion.

At oral argument, Boermeester’s counsel asserted that

providing direct or indirect cross-examination of the accuser or

other witnesses outside of a live hearing attended by the accused

student is inadequate because the private university may

“filter” or misrepresent witnesses’ answers to the accused

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student’s questions. Of course, if universities choose to question

the accuser or other witnesses outside of the accused student’s

presence, they will need to conceive of a method by which to

meaningfully convey the responses to the accused student, such

as by providing the accused student with transcripts, video or

audio recordings, or reasonably detailed summaries of the

testimony. (See Westmont, supra, 34 Cal.App.5th at p. 638.) We

leave these specific procedures up to the university to

determine. But we see no reason to address the theoretical risk

that private universities may filter answers by, in response,

categorically requiring them to conduct a live hearing with the

accused student in attendance and at which the accused student

is allowed to directly or indirectly cross-examine witnesses.

We note that this is not a case in which the accused

student was given no hearing at all. As described above, the

parties agree that USC’s policies provided separate and

individual evidence hearings for both Boermeester and Roe, and

that USC complied with its policies by offering the parties the

opportunity to attend their separate evidence hearings.

Although Boermeester could not have cross-examined Roe or the

third party witnesses in real time at his hearing, he could have

responded to the evidence and presented his defense before

USC’s adjudicators had he chosen to attend his hearing. We do

not opine on whether and under what circumstances a private

university might properly choose to refrain from providing an

accused student with a hearing that gives the accused student

the opportunity to respond to the evidence before the

university’s adjudicators, since such a hearing was offered to the

accused student in this case.

We also do not opine on whether and under what

circumstances a private university might be required to allow

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the accused student to indirectly cross-examine the accuser by

submitting questions for the university’s adjudicators to ask the

accuser outside of the context of a live hearing or the accused

student’s presence, since USC afforded Boermeester the

opportunity to submit questions for the Title IX coordinator to

ask Roe at her separate evidence hearing. Similarly, we do not

opine on whether USC’s procedure was unfair because

Boermeester was not allowed to submit questions for USC’s

adjudicators to ask the third party witnesses during the Title IX

investigator’s interviews with those witnesses, since

Boermeester does not raise this claim.

Were we to assume, however, that a private university

must provide an accused student the opportunity to indirectly

cross-examine the accuser or third party witnesses outside of

the context of a live hearing when the credibility of the accuser

or third party witnesses is central to the adjudication, as some

lower courts have held (see Claremont McKenna, supra,

25 Cal.App.5th at p. 1070; University II, supra, 29 Cal.App.5th

at p. 1237; Westmont, supra, 34 Cal.App.5th at pp. 638–639; see

also Regents I, supra, 5 Cal.App.5th at p. 1084), we would find

USC’s failure to provide Boermeester the opportunity to submit

questions for the third party witnesses in this case to be

harmless. In this case, the accounts of the third party witnesses

merely corroborated Roe’s initial accusation that Boermeester

harmed her during the incident in question. Shortly after the

incident occurred, Roe told the Title IX investigator that

Boermeester had physically harmed her. Specifically, Roe said

that it “hurt” when Boermeester grabbed the back of her hair

“hard” and told her to drop her dog’s leash; that it “hurt” when

Boermeester grabbed the front of her throat and neck, causing

her to cough; and that her “head hurt” after Boermeester

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grabbed her by the neck again and pushed her head “hard,”

causing her head to hit the alleyway wall. The video of the

incident — though grainy and soundless — is consistent with

Roe’s initial account. (Boermeester v. Carry, supra, B290675.)

Boermeester himself admitted that he had his hands on Roe’s

neck and had her against the alleyway wall. In sum, even

without considering the third party eyewitness testimony, USC

could have concluded that Boermeester “caus[ed] physical

harm” to Roe and, thus, violated its policy against intimate

partner violence.

Boermeester maintained that the act was playful or sexual

in nature and amounted to mere “roughhousing.” USC

determined, however, that Boermeester’s intent was irrelevant.

Carry — who made the final decision per USC’s policy — found

that since “[i]ntent to cause physical harm is not a required

element” of USC’s policy against intimate partner violence,

Boermeester’s alleged lack of intent to cause Roe physical harm

was not a mitigating factor. She therefore concluded that,

“[w]hether [Boermeester] intended to cause [Roe] harm or did so

recklessly, expulsion [was] appropriate given the nature of the

harm inflicted.” Because intent was irrelevant under USC’s

policy against intimate partner violence, USC could have based

its decision to expel Boermeester exclusively on Roe’s initial

statement, the video consistent with that statement, and

Boermeester’s own admissions — all of which tended to show

that Boermeester caused Roe physical harm.

It is true that Roe later recanted her testimony and agreed

with Boermeester that the incident was playful in nature. But

even if Roe’s recantation put her initial testimony in doubt, USC

provided Boermeester the opportunity to indirectly cross-

examine Roe and explore any inconsistencies in her story.

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Boermeester thus had the opportunity to submit questions to be

asked of the most important witness — the person he allegedly

hurt. Moreover, USC, as the finder of fact, was entitled to

determine that Roe’s first statement was more credible than her

later recantation. Finally, we must acknowledge, as we did in

People v. Brown (2004) 33 Cal.4th 892, 899, that it is not

uncommon for victims of intimate partner violence to recant.

Roe’s post-incident communications with USC’s Title IX office

and her friends indicate that she feared retaliation and felt a

sense of loyalty towards Boermeester, either of which may have

motivated her later recantation.

In conclusion, USC was not required to provide

Boermeester the opportunity to directly or indirectly cross-

examine Roe and other witnesses at a live hearing with

Boermeester in attendance, whether in person or virtually.

III. DISPOSITION

We reverse the judgment of the Court of Appeal and

remand for it to determine in the first instance the remaining

claims Boermeester raised on appeal that the Court of Appeal

expressly declined to reach.

GROBAN, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

JENKINS, J.

EVANS, J.

33

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion Boermeester v. Carry

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Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 49 Cal.App.5th 682

Review Granted (unpublished)

Rehearing Granted

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Opinion No. S263180

Date Filed: July 31, 2023

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Court: Superior

County: Los Angeles

Judge: Amy D. Hogue

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Counsel:

Hathaway Parker, Mark M. Hathaway and Jenna E. Parker for

Plaintiff and Appellant.

Cynthia P. Garrett for Families Advocating for Campus Equality as

Amicus Curiae on behalf of Plaintiff and Appellant.

Horvitz & Levy, Beth J. Jay, Jeremy B. Rosen, Mark A. Kressel, Scott

P. Dixler, Sarah E. Hamill; Young & Zinn, Julie Arias Young and

Karen J. Pazzani for Defendants and Respondents.

Rob Bonta, Attorney General, Matthew Rodriquez, Chief Assistant

Attorney General, Michael L. Newman, Assistant Attorney General,

Sarah E. Belton and Alexis M. Piazza, Deputy Attorneys General, for

the Attorney General of California as Amicus Curiae on behalf of

Defendants and Respondents.

Gibson, Dunn & Crutcher, Theane Evangelis, Jeremy S. Smith,

Andrew M. Kasabian; Amy Porter; and Brenda Adams for California

Women’s Law Center, Equal Rights Advocates, Kylee O., Maryam I.,

Claudia R., Alliance for HOPE International, Atlanta Women for

Equality, Child Abuse Forensic Institute, Center for Community

Solutions, Community Legal Aid SoCal, Domestic Abuse Center,

Family Violence Appellate Project, Family Violence Law Center,

Feminist Majority Foundation, Law Foundation of Silicon Valley,

Legal Aid at Work, Legal Voice, Los Angeles Center for Law and

Justice, National Association of Women Lawyers, National Women’s

Law Center, Public Counsel, Rural Human Services/Harrington House,

San Diego Volunteer Lawyer Program, Southwest Women’s Law

Center, Texas Association Against Sexual Assault, Walnut Avenue

Family & Women’s Center, WEAVE, Inc., and Women’s Law Project

as Amici Curiae on behalf of Defendants and Respondents.

O’Melveny & Myers, Apalla U. Chopra, Marni Barta, Allan W. Gustin

and Anton Metlitsky for California Institute of Technology, Chapman

University, Claremont McKenna College, Occidental College and

Pepperdine University as Amici Curiae on behalf of Defendants and

Respondents.

Arent Fox, Lowell C. Brown and Candace C. Sandoval for California

Hospital Association as Amicus Curiae.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Mark M. Hathaway

Hathaway Parker

445 South Figueroa Street, 31st Floor

Los Angeles, CA 90071

(213) 529-9000

Jeremy B. Rosen

Horvitz & Levy LLP

505 Sansome Street, Suite 375

San Francisco, CA 94111-3175

(818) 995-5838