State high court to reconsider expelled male student’s appellate win against USC

The state Supreme Court has granted USC's petition for review in a case in which an appellate panel ruled the university violated an expelled student's right to cross-examine witnesses during a disciplinary hearing over alleged domestic violence against an ex-girlfriend.

On Wednesday, the high court also ordered the 2nd District Court of Appeal's decision in favor of former USC student Matthew Boermeester, a former kicker on the football team, depublished while they decide the case. Boermeester v. Carry et al., S263180 (Cal. Supreme Ct., filed July 6, 2020).

The appellate court majority reversed the judgment against Boermeester because USC denied him the right to cross-examine witnesses during the administrative hearing.

"At the time of these disciplinary proceedings in 2017, neither the law nor USC's sexual misconduct policy contemplated cross-examination of third-party witnesses at an in-person hearing," Justice Tricia A. Bigelow wrote. "Moreover, any objection would have been futile because the Title IX office had made it clear they were not going to deviate from USC's sexual misconduct policy and procedures."

Justice Maria E. Stratton concurred.

The ruling drew a fierce dissent from Justice John S. Wiley Jr., who maintained Boermeester was denied no rights because he never requested the witnesses be called for tactical reasons, and had no reason to do so because the woman, Jane Roe, subsequently recanted her allegations.

"Boermeester's counsel has manufactured this cross-examination issue," Wiley wrote in a dissent that included the woman's intake interview in January 2017, during which she described being grabbed by the neck by Boermeester and slammed against a wall outside the apartment building. "He has done so because he hopes someone will accept his construct, not because cross-examination was anything he sought at the time," Wiley wrote.

In USC's petition, attorneys with Horvitz & Levy LLP and Young & Zinn LLP argued not only that cross-examination during disciplinary hearings should not be required in domestic violence cases but also whether private universities are obligated to provide the "elaborate and burdensome" procedures.

"Requiring cross-examination in university domestic violence cases is also likely to have a particularly severe chilling effect on the reporting of such abuse, because survivors of domestic violence are vulnerable to retaliation by their abusers, with whom they have an ongoing relationship," Horvitz & Levy attorney Scott P. Dixler wrote.

"That chilling effect is likely to be even more pronounced in the university setting, where victims may fear humiliation in front of classmates and peers with whom they must continue to live and study for the duration of their education," he said.

Mark M. Hathaway of Hathaway Parker Inc., who represents Boermeester, said there is no difference in the obligations of private and public universities when holding disciplinary proceedings for domestic violence. And he said Title IX hearings for alleged off-campus actions should be handled by the courts.

"You're either going to have to treat these students like adults or you're going to have a hearing with cross-examination," he said Thursday in a telephone interview.

Boermeester has filed a federal lawsuit against USC and former university officials over the disciplinary action against him. The complaint in the Central District of California is pending. Boermeester v. University of Southern California et al., 19-CV02137 (C.D. Cal., filed March 21, 2019).

USC released a statement praising the state Supreme Court's decision to take the case: "New procedural requirements are inconsistent and too extensive for the vast majority of student infractions."