California law does not grant a former USC football player, when facing physical assault accusations from a female student, the right to face his accuser at a hearing, according to the California Supreme Court.
Matthew Boermeester sought legal recourse from USC and Ainsley Carry, the vice president of student affairs, after a two-month investigation resulted in his expulsion for allegedly violating the private school’s policy against intimate partner violence. Boermeester argued he was deprived of a fair trial because USC denied him “a meaningful opportunity to cross-examine critical witnesses at an in-person hearing.”
Boermeester was a place kicker, who played for the USC Trojans football team for two seasons from 2015-2016.
According to court records, which do not identify the female student, USC’s Title IX office received a report about an incident that occurred in January 2017. In addition to interviewing witnesses the office obtained surveillance video of a physical confrontation outside the woman’s apartment and relevant text messages.According to published reports, Boermeester was accused of pushing the female student against a wall and placing his hands around her neck.
The woman involved in the incident expressed concern about the investigation and attempted to recant statements made to investigators.
A misconduct panel recommended expulsion. An appeals panel agreed Boermeester physically harmed the woman, meeting the standard of intimate partner violence, but didn’t determine the harm was intentional and recommended a two-year suspension and yearlong intimate partner violence program. But Carry said intent wasn’t as much a factor as the nature of the harm inflicted and approved the expulsion.
Los Angeles County Superior Court Judge Amy Hogue denied Boermeester’s petition for writ of administrative mandate. A split California Second District Appellate Court panel reversed that ruling, as the majority found it was unfair to deny Boermeester the chance to question the woman or witnesses, directly or indirectly, in real time at a live hearing.
Justice Joshua Groban wrote the unanimous opinion on the California Supreme Court’s review of that ruling, filed July 31. The court said it had never applied the relevant statute to disciplinary decisions by a private university, but said its review of Boermeester’s case was appropriate because the common law doctrine of fair procedure “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.”
The court compared a student’s interest in completing a college degree to membership in a private, professional organization, to the extent each affects the ability to pursue a specific vocation. The justices said, although private bodies have to provide notice of charges and a meaningful opportunity to be heard, it has never held “any specific or baseline procedures must be followed to satisfy these requirements.”
While the court said private schools “generally know best how to manage their own operations,” it also acknowledged a California law that took effect Jan. 1, 2021, specifying procedures for addressing sexual violence incidents and applying to public and private schools alike. Although that bill postdates the Boermeester allegations, Groban wrote the court took note the law doesn’t make schools “conduct live hearings featuring cross-examination of the accuser and other witnesses.” It also noted 2020 Title IX regulations, while inapplicable to Boermeester, “may be trending towards providing private universities with more flexibility in determining whether to conduct a live hearing.”
The court said universities must balance an accused student’s right to be heard with concern that policies do not discourage victims from reporting incidents or witnesses from participating in disciplinary proceedings.
“There is no absolute right to a live hearing with cross-examination in administrative proceedings, even where constitutional due process applies,” Groban wrote. “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.”
The California Attorney General’s Office filed a support brief on behalf of USC, agreeing that forcing a school to follow criminal court procedural rules could be both impractical and a detriment to other, primary university functions. Groban wrote schools have to develop procedures ensuring an accused student has sufficient access to what accusers and witnesses report, but the court ruled they can meet that goal outside of lived hearings with cross examinations.
Groban said the third-party witnesses corroborated the accuser’s initial account, as does the video, albeit grainy and without sound. Some of Boermeester’s admissions also square with those accounts, all of which gave USC enough to determine a violation of its intimate partner violence policy. Boermeester had a chance to submit questions to his accuser, and USC was allowed to determine her “first statement was more credible than her later recantation.”
The court reversed the appellate ruling and remanded the complaint so that panel would consider Boermeester’s remaining claims regarding fairness, including whether USC should have its Title IX investigator also serve as adjudicator.
Boermeester is represented by attorneys Mark M. Hathaway and Jenna E. Parker, of Hathaway Parker.
Cynthia P. Garrett, for Families Advocating for Campus Equality, filed a support brief for Boermeester.
USC and Carry are represented by attorneys Beth J. Jay, Jeremy B. Rosen, Mark A. Kressel, Scott P. Dixler and Sarah E. Hamill, of Horvitz & Levy; and Julie Arias Young and Karen J. Pazzani, of Young & Zinn.
Several institutions filed support briefs on behalf of USC, including more than a dozen victims’ rights organizations, as well as five other private California universities and the California Hospital Association.