Filed 1/4/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JOHN DOE,

Petitioner and Appellant,

v.

KEGAN ALLEE, Ph.D., et al., 

Respondents.

 B283406

 (Los Angeles County

 Super. Ct. No. BS157112)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Howard L. Halm, Judge. Reversed.

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

Petitioner and Appellant.

Young & Zinn, Julie Arias Young, Karen J. Pazzani; Cole Pedroza, 

Kenneth R. Pedroza and Cassidy C. Davenport for Respondents.
2

John 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. (Code 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,1and, 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,2in 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 

 

1

Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et 

seq.) (Title IX), forbids sex-based discrimination in all schools, colleges and 

universities that receive federal funding. (See 20 U.S.C. §§ 1681–1688.) Title 

IX does not specifically address sexual assault, but the United States 

Supreme Court has held that a school may be liable for discrimination and 

face, among other things, a loss of federal funding, if it mishandles a 

student’s sexual assault claim. (See Davis v. Monroe County Bd. of Educ. 

(1999) 526 U.S. 629, 633, 647–648.)

2

To preserve privacy, we refer to the accused and accusing students as 

Doe, and Roe, respectively, and to witnesses by their initials or first name.
3

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 

BACKGROUND

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, 

 

3

Because we reverse on this ground, we do not consider Doe’s other 

challenges to the judgment.

4

The record contains two (slightly different) versions of pertinent 

disciplinary provisions of the SCC. We refer to the version contained in the 

administrative record. 

5

Sexual misconduct is broadly defined as (1) “Engaging in any 

unwelcome sexual advance . . . or other unwanted . . . non-consensual sexual 

conduct”; (2) “Sexual touching, fondling and/or groping, including intentional 

contact with the intimate parts of another, causing another to touch one’s 

intimate parts, or disrobing or exposure of another without permission[;]” 

(3) “Attempted intercourse, sexual contact, sexual touching, fondling and/or 
4

conscious and voluntary consent, or consent is not freely given.” (§ E.2.III.) 

“Affirmative consent” means a conscious and voluntary agreement to 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 

 

groping[; and]” (4) “Non-consensual vaginal or anal penetration . . . with a 

body part (e.g., penis, tongue, finger, hand, etc.) or object, or oral penetration 

involving mouth to genital contact.” 
5

appeal process. (§§ 17.03(D), (M).) The burden of proof rests at all times 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 
6

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 of 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. (§ 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 

 

6

The SCC identifies four grounds for appeal: (1) new evidence has 

become available which is sufficient to alter the decision and which the 

appellant was not aware of or could not reasonably have been obtained at the 

time of the original review; (2) the sanction imposed is grossly 

disproportionate to the violation found; (3) procedural errors occurred which 

had a material impact on the fairness of the investigation; and (4) the 

conclusion and sanction are not supported by the findings, or the findings are 

not supported by the evidence in light of the whole record. (§ 17.07(E).) 

However, the “Appeal Request Cover Sheet” that Doe submitted with his 

appeal provided only three grounds for appeal. Two are identical to numbers 

(1) and (2) above. The third states: “That the investigator failed to follow 

university rules or regulations while reviewing the cited behavior.” 

(§§ 17.07D–1, 17.07D–2 & 17.07D–3.) 
7

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).) 
8

III. 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 5,8Roe 

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.” 

 

7 Our recitation is drawn from Dr. Allee’s Summary Administrative 

Report (SAR) of her investigation, her notes of interviews with Roe, Doe and 

witnesses, and documentary and photographic evidence collected during the 

investigation. 

8 Unspecified date references are to calendar year 2014. 

9

Roe and Doe disagree about whether she went briefly into his 

apartment before they walked to the taco stand. 
9

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.” Roe 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 
10

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 his 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.” 

 

10 Doe disputed Roe’s claim that he placed her hand on his penis against 

her will, or took her hands off the headboard and held them down. He 

acknowledged putting his hand over her mouth, but said he did it in a non–

aggressive manner and because she was “moaning loud,” and he did not want 

to wake up D.N.’s girlfriend, asleep in the living room. Doe acknowledged 

having put his fingers in Roe’s mouth, and said Roe “willingly sucked on 

them like a penis.” He agreed he had pulled Roe’s hair during sex, and said 

she “moan[ed]” pleasurably in response. 

11 Roe told Dr. Allee that some ejaculate landed on her shirt, which she 

saved as evidence. Dr. Allee told her to how to preserve the evidence. Roe 

did not produce the evidence during the investigation. 
11

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 entered 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 

 

12 Roe did not identify this witness, and there is no indication that Dr. 

Allee asked her to. Doe subsequently identified him as K.J., a USC student 

and member of the track and field team. In a witness statement submitted 

on Doe’s behalf during the appeal, K.J. said he “questioned the veracity of 

whether the incident was non–consensual based on the questions and 

answers [he] exchange[d] with [Roe] as it seemed to be consensual.” 

13 Dr. Allee contacted B.H. as part of her investigation. In response, he 

sent her an email stating, “My former girlfriend [Roe] called me on October 

25 for emotional support, telling me she was the victim of sexual assault. I 

am sorry that I have nothing further to add to your investigation.” 
12

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 had 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 

H.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 

 

14 No one else told Dr. Allee that Roe drank while at Doe’s house. 

15 E.C. and Roe were college roommates for three years. A redacted 

portion of Dr. Allee’s summary of notes from her interview with E.C. states

that E.C. had asked Roe if she planned to “hook up” with Doe, because Roe 

had “hooked up with multiple football players,” before and been 

“reprimanded for unprofessional conduct.” Roe and other trainers had had to 

sign a contract agreeing not to “hook up” with football players. 
13

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 

 

16 Specifically, Doe was alleged to have violated sections:

11.32.B (Endangering Others): “Conducting oneself in a manner that 

endangers the health or safety of other members . . . within the university

community.”

11.36.A (Physical Harm): “Causing physical harm to any person in the 

university community.”

11.36.B (Apprehension of Harm): “Causing reasonable apprehension of harm 

to any person in the university community.”

11.41 (Illegal Use of Narcotics or Paraphernalia): “Use, possession or 

dissemination of illegal drugs or drug-related paraphernalia in the university 

community.” 

11.51.A (Harassing or Threatening Behavior): “Comments or actions which 

are individually directed and which are harassing, intimidating or 

threatening or interfere with work or learning, for the person at which they 

are directed and for a reasonable person.”

11.53.A (Sexual Misconduct 1): “Engaging in any unwelcome sexual advance, 

request for sexual favors, or other unwanted verbal or non-consensual sexual 
14

Doe 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. 

 

conduct . . . within the university community . . . , when the conduct, has the 

effect of unreasonably interfering with an individual’s academic or work 

performance or creating an intimidating, hostile or offensive academic, work 

or student living environment.”

11.53.B (Sexual Misconduct 2): “Sexual touching, fondling and/or groping, 

including intentional contact with the intimate parts of another, causing 

another to touch one’s intimate parts, or disrobing or exposure of another 

without permission. Intimate parts? [sic] may include the breasts, genitals, 

buttocks, groin, mouth, or any other part of the body that is touched in a 

sexual manner.”

11.53.C (Sexual Misconduct 3): “Attempted intercourse, sexual contact, 

sexual touching, fondling and/or groping.”

11.53.D (Sexual Misconduct 4): “Non-consensual vaginal or anal penetration, 

however slight, with a body part (e.g., penis, tongue, finger, hand, etc.) or 

object, or oral penetration involving mouth to genital contact.” 
15

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] 

 

17 Dr. Allee did not ask Doe to clarify what he meant by “fingering,” which 

she defined as “digital penetration.” In his appeal, Doe denied having 

digitally penetrated Roe on October 9, and said Dr. Allee misconstrued his 

words. He also said Roe fondled his penis on that occasion, which made him 

believe she consented to sexual touching. 
16

faded.” Roe sent Doe a text on October 10. She said she had “blacked” out, 

but 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. 

When 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. 
17

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 she 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 

 

18 During a second interview on January 22, 2015, Doe explained that, 

although he first said he had ejaculated inside Roe, he later recalled standing 

on his bed after taking off the condom and throwing it away, to ejaculate on 

Roe’s face. Later still, after reviewing a statement in which D.N. said he had 

seen a used condom in Doe’s room, Doe explained that he did not know where 

the condom was thrown when he took it off, but was certain he wore one and 

that he threw it away. 
18

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 these 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 in the 

 

19 The SAR does not reflect that Doe raised this theory during his meeting 

with Dr. Allee on November 11. However, Dr. Allee’s notes from that 

meeting state that, after reading Roe’s texts to Mia, Doe expressed his belief 

that Roe “got scared that she had sex with [Doe] and was going to get fired 

because [he knew he] didn’t force her to have sex.” Several lines of redacted 

material follow this statement in Dr. Allee’s notes. Dr. Allee does specifically 

mention–and reject–this theory in explaining her reasons for finding Roe 

more credible than Doe. 
19

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

 

20 Although the question of Roe’s capacity to consent was at issue, Dr. 

Allee did not ask Roe or anyone to quantify how much alcohol Roe consumed 

on October 9. The only witnesses Dr. Allee questioned on this point were 

Doe, who was asked only if Roe had been drinking on October 9, and Roe’s 

roommate, H.D., who provided no details about Roe’s state of intoxication. 
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 flipping 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.” 

On 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 

 
21

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. 
22

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 

On 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 thing.” 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. 

 

21 On November 6, Dr. Allee had contact with S.V., but the notes from 

that meeting are incomplete (page 1 of 2 missing), partially redacted and the 

relevance, if any, of information Dr. Allee obtained from S.V. is unclear. 
23

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 vaginal 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 
24

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 October 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” 

 

22 In the SAR, Dr. Allee did not mention that, in a series of flirtatious 

texts between Doe and Roe on October 23, when they were discussing 

whether to go and what to wear to the party, Doe told Roe, alternatively, that 

she “should wear nothing and come to [his] house and smoke [a] blunt,” 

should “come over naked,” and asked if the “night [would] end[] up being at 

[his] house.” Roe responded, “Hahaha no I’m not going over to your place 

naked” and said she “[couldn’t] guarantee anything.” After Doe told Roe “it’s 

late:/ I just wanted u before u left,” Roe responded: “You wanted me? 

Haha:p,” to which Doe responded, “badly.”
25

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. 

Dr. 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, 

 

23 Later, in his appeal, Doe explained that, when he said he and Roe were 

“messing around” on October 9, he “want[ed] to be clear that [he] never 

digitally penetrated [Roe] as [Dr. Allee] claim[ed] [he] did. [Dr. Allee] was 

making assumptions, and never asked for any clarification of [his] wording.” 

24 Under the SCC, the accuser’s sexual history is not relevant and may 

not be used as evidence. However, if here is a sexual history between the 

parties, and respondent claims consent, the parties’ sexual history may be 

relevant to assess the manner of consent. The mere fact of a current or 

previous sexual relationship, by itself, is insufficient to constitute consent. 

(§ 17.04(G).)
26

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 were 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 

athlete 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 
27

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. 
28

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. First, he 

claimed to have given Dr. Allee a detailed description of the bathing suit Roe 

wore on October 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 
29

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 

 

25 E.C. denied having been present when Doe was at the apartment on 

October 9. A substantial portion of Dr. Allee’s notes from her interview of 

E.C. were redacted. That redacted material (revealed to the SBAP at an 

unknown time) includes E.C.’s statement regarding Roe’s sexual history with 

multiple football players. E.C. said that, following some “inappropriate 

behaviors” between student trainers and football players, the student 

trainers had received a group text and been or “were told” that a trainer had 

“a list and . . . all trainers should come speak to him if they wanted to keep 

their jobs.” All the trainers signed a contract that they would not “hook up” 

with players. Doe requested to see the redacted information, but the SBAP 

denied his request on the ground that it was irrelevant. 
30

levied against him and the severe consequences he faced if those charges 

were sustained, 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 that 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. 

 

26 Doe claimed that he sometimes felt that he was “being attacked” during 

meetings with Dr. Allee when he tried to question things Roe or her 

witnesses said. 
31

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. 

V. 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

 

27 As to the remaining count, the SBAP recommended that Doe not be 

held responsible for attempted nonconsensual intercourse, as it was “not 

possible to be found responsible for both an attempted act and the completed 

act.”
32

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, and 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, 
33

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 for 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) 903 F.3d 575, 582 (Baum); Doe v. University of 

Cincinnati (6th Cir. 2017) 872 F.3d 393, 400 [a student’s expulsion for a 

sexual offense can have a lasting impact on his personal life and educational 

and employment opportunities] (Cincinnati).) As the trial court stated, Doe’s 

eligibility to return to USC is not “the only ‘effectual relief’ that [he] can 

obtain in this action. . . . [E]xpungment of an expulsion mark for sexual 

misconduct on [Doe’s] USC transcript would make it far easier for him to 

transfer to a different university to continue his education. Expungement 

could also have a tendency to restore [Doe’s] reputation, at least to some 

degree, in the public eye.” 

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) 246 Cal.App.4th 221, 237, fn. 9 (Doe 
34

v. USC(1).) As relevant here, the question presented by a petition for writ of 

administrative mandate is whether there was a fair trial. (§ 1094.5, subd. 

(b); Doe v. Regents of University of California (Santa Barbara) (2018) 28 

Cal.App.5th 44, 55 (UCSB).) “We review the fairness of the administrative 

proceeding de novo[,] . . . ‘because the ultimate determination of procedural 

fairness amounts to a question of law.’ [Citation.] . . . ‘[A] “‘fair trial’” means 

. . . “a fair administrative hearing.”’ [Citations.]” (Doe v. USC(1), supra, 246 

Cal.App.4th at p. 239; accord, UCSB, supra, 28 Cal.App.5th at p. 55; Doe v. 

Regents of University of California (San Diego) (2016) 5 Cal.App.5th 1055, 

1072 (UCSD).) 

“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 

decision, 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.) This and numerous courts have applied this standard 

to disciplinary decisions involving sexual misconduct at private and public 

universities. (Ibid.; UCSD, supra, 5 Cal.App.5th at p. 1072; Doe v. Claremont 

McKenna College (2018) 25 Cal.App.5th 1055, 1065 (CMC); UCSB, supra, 28 

Cal.App.5th at p. 56; Doe v. University of Southern California (Dec. 11, 2018) 

___ Cal.App.5th ___, ___ [2018 WL6499696] (Doe v. USC(2).)

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 
35

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) 68 Cal.App.4th 213, 219; cf., BreakZone Billiards v. 

City of Torrance (2000) 81 Cal.App.4th 1205, 1236 [“A mere suggestion of bias 

is not sufficient to overcome the presumption of integrity and honesty” in a 

hearing officer].) We agree with the trial court’s analysis: “[t]he fact that, 

before her employment at USC, Dr. Allee did some work as a victims’ 

advocate, . . . and gave presentations regarding preventing sexual assault, 

does not establish that Dr. Allee is likely biased against all men . . . accused 

of sexual assault.” Doe has not provided evidence to demonstrate that Dr. 

Allee’s findings and conclusions were premised on actual bias against him or 

generally against anyone accused of sexual assault, or that there is a high 

probability of such bias. Doe’s “mere belief that [a school official] acted with 

. . . ulterior motives is insufficient to state a claim for relief.” (Doe v. Univ. of 

 

28 Prior to her employment at USC, Dr. Allee worked at the University of 

California, Santa Barbara (UCSB), directing outreach and services for female 

survivors of interpersonal violence, harassment, and for a Rape Prevention 

Education Program. She has made presentations on gender-based violence, 

focused on the rights of alleged victims, and received an award for her service 

as an “exemplary advocate for survivors of sexual assault.” 
36

Cincinnati (S.D. Ohio 2016) 173 F.Supp.3d 586, 602, fn. omitted (Univ. of 

Cincinnati).)29 

4. Fair Hearing Requirements

Although we conclude that Doe failed to prove actual bias in USC’s 

disciplinary process, 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.) For practical purposes, common law 

requirements for a fair disciplinary hearing at a private university mirror the 

 

29 We also reject Doe’s assertion that the members of “the anonymous 

SBAP panel . . . were not impartial adjudicators.” Neither the SBAP itself, 

nor any individual panel member, is a party to this action. 
37

due process protections at public universities. (Id. at pp. 245–247; see CMC, 

supra, 25 Cal.App.5th at p. 1067, fn. 8; accord, Doe v. USC(2), supra, 

___Cal.App.5th at p. ___, (2018WL6499696), fn. 25; cf., Doe v. Trustees of the 

University of Penn. (E.D. Pa. (2017) 270 F.Supp.3d 799, 813 [student at 

private university was not entitled to the same due process protections as 

student at a state university, but due process protections applied in contract 

action in which private university agreed to provide a “fundamentally fair” 

disciplinary process].)30 

Fair hearing requirements are “flexible” and entail no “rigid 

procedure.” (Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1807; 

Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 555 

(Pinsker).) Disciplinary hearings “need not include all the safeguards and 

formalities of a criminal trial.” (UCSD, supra, 5 Cal.App.5th at p. 1078.) 

“‘[T]he formal rules of evidence do not apply . . . .’ [Citation.]” (UCSB, supra, 

28 Cal.App.5th at p. 56; Univ. of Cincinnati, supra, 173 F.Supp.3d at p. 602 

[there is “no prohibition against the use of hearsay evidence in school 

disciplinary hearings”].) Historically, all that was required for a student 

 

30 We acknowledge that, unlike public universities, which are “‘“subject to 

federal constitutional guarantees,”’ [citation] . . . private college[s], generally 

[are] not subject to the constitutional requirements of procedural due 

process.” (CMC, supra, 25 Cal.App.5th at p. 1067, fn. 8.) Nevertheless, 

“[d]ue process jurisprudence . . . may be ‘instructive’ in cases determining fair 

hearing standards for student disciplinary proceedings at private schools.” 

(Ibid., citing Doe v. USC(1), supra, 246 Cal.App.4th at p. 245; accord, Doe v. 

USC(2), supra, ___ Cal.App.5th at p. ___, fn. 25 [2018WL6499696].) We do 

not, however, necessarily conclude that the requirements for a fair hearing 

for a private university are identical to state and federal constitutional 

requirements. (See CMC, at p. 1067, fn. 8.) We need not address that 

question to resolve this appeal. 
38

facing discipline was that he or she “be given some kind of notice and 

afforded some kind of hearing.” (Goss v. Lopez (1975) 419 U.S. 565, 579 

(Goss); see Board of Curators of Univ. of Missouri v. Horowitz (1978) 435 U.S. 

78, 85–86 [Goss requires only an informal “give and take” between the 

student and administrative body that, at least, gives the student an 

opportunity to place his conduct in what he believes is the proper context].) 

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; Pinsker, supra, 12 Cal.3d 

at p. 555 [fair hearing requires that accused be given a “meaningful 

opportunity to be heard in his defense”].) “‘[T]o comport with due process,’ 

the university’s procedures should ‘“be tailored, in light of the decision to be 

made, to ‘the capacities and circumstances of those who are to be heard,’ 

[citation] . . . to insure that they are given a meaningful opportunity to 

present their case.”’” (UCSD, supra, 5 Cal.App.5th at p. 1078.) 

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 

 

31 Much of this litigation arose in the wake of the so-called 2011 “Dear 

Colleague Letter,” issued by the U.S. Department of Education’s Office for 

Civil Rights (OCR). Among other things, the 2011 Dear Colleague Letter 

demanded that academic institutions employ procedures to make it easier for 

victims of sexual assault to prove their claims in disciplinary actions 

involving sexual misconduct. It also required schools to adopt measures in 
39

inherent quandaries 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 “‘avoid[ing] unfair or mistaken exclusion from the educational 

process, with all of its unfortunate consequences. . . . Disciplinarians, 

 

response, or risk losing federal funding. (See Russlynn Ali, OCR, U.S. Dept. 

of Educ., Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), 

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.) 

Questions have been raised about whether disciplinary procedures, 

implemented in response to the 2011 Dear Colleague letter, in cases alleging 

sexual assault and discrimination, went too far. (See e.g., Doe v. Brandeis 

University (D.C. Mass. 2016) 177 F.Supp.3d 561, 572 (Brandeis); Doe v. 

Brown University (D.C.R.I. 2016) 166 F.Supp.3d 177, 181.) “The goal of 

reducing sexual assault, and providing appropriate discipline for offenders, is 

certainly laudable. Whether the elimination of basic procedural protections—

and the substantially increased risk that innocent students will be 

punished—is a fair price to achieve that goal is another question altogether.” 

(Brandeis, supra, 177 F.Supp.3d at p. 572; see Doe v. Marymount University

(E.D. Va. 2018) 297 F.Supp.3d 573, 583, fn. 14, citing Brandeis, supra, 177 

F.Supp.3d at p. 572.)

In September 2017, OCR withdrew the 2011 Dear Colleague Letter. 

OCR, Dear Colleague Letter (Sept. 22, 2017) 

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix201709.pdf> [as of Jan. 3, 2019].) On November 15, 2018, OCR issued 

proposed regulations modifying the minimum standards for a Title IX 

investigation of allegations of sexual misconduct. (OCR, Title IX of the 

Education Amendments of 1972 Notice of Proposed Rulemaking 

<https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf> [as of 

Jan. 3, 2019] (Proposed Regulations).) Under the Proposed Regulations, on 

track to become final by February 2019, an investigator also may not serve as 

adjudicator, universities must hold live hearings, and accused students may 

have an “advisor” cross-examine the accuser and witnesses, either in person 

or through a technological medium. (Proposed Regulations, § 106.45, subd. 

(b)(3), (4).)
40

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; see UCSD, supra, 5 Cal.App.5th at p. 1078; CMC, 

supra, 25 Cal.App.5th at p. 1066.) At the same time, it is vital that 

universities aim to provide safe environments for their students. 

“Disciplinary proceedings involving sexual misconduct must also account for 

the well-being of the alleged victim, who often ‘live[s], work[s], and stud[ies] 

on a shared college campus’ with the alleged perpetrator. [Citations.]” 

(CMC, supra, 25 Cal.App.5th at p. 1066.)

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.) To comport with due process and address 

these concerns, university procedures must be tailored in light of the matters 

at issue, to ensure that parties have a meaningful opportunity to present 

their case. (UCSD, supra, 5 Cal.App.5th at p. 1078.) 

Recent cases have grappled with these concerns in the context of an 

accused student’s right to confront adverse witnesses. In CMC, supra, 25 

Cal.App.5th 1055, a student at a private college faced suspension after being 

accused of engaging in nonconsensual sex with another student. He claimed 

the sex was consensual. Only the two students witnessed the incident. 

(CMC, supra, 25 Cal.App.5th at p. 1070.) The results of an investigation 
41

conducted by an outside investigator were referred to a committee consisting 

of that investigator and two CMC representatives. The committee was 

charged with the responsibility to meet in order to evaluate the evidence, and 

decide by majority vote whether the accused student committed sexual 

misconduct. (Id. at pp. 1062–1063.) CMC’s procedures permitted, but did not 

require, the parties to appear at the meeting to make an oral statement. 

Each student submitted a written statement to the committee in advance of 

the hearing, but only the accused student appeared and spoke at the hearing. 

(Id. at p. 1063.) The committee found his accuser more credible. (Id. at p. 

1064.)

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, supra, 25 Cal.App.5th at pp. 1072–1073.) The court held 

“that where . . . [an accused student] was facing potentially severe 

consequences and the [review] Committee’s decision against him turned on 

believing [his accuser], the Committee’s procedures should have included an 

opportunity for the Committee to assess [the accuser’s] credibility by her 

appearing at the hearing in person or by videoconference or similar 

technology, and by the Committee’s asking her appropriate questions 

proposed by [the accused] or the Committee itself.” (Id. at p. 1057.) 

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.) 
42

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 forced 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 disciplining college students, the 

fundamental principles of fairness require, at a minimum, ‘giving the accused 

students notice of the charges and an opportunity to be heard in their own 

defense.’” (Id. at p. 56.)

In Baum, two students gave inconsistent accounts as to whether the 

accusing student had been so drunk she lacked the capacity to consent. 

(Baum, supra, 903 F.3d at pp. 578-579.) An investigator interviewed 23 

witnesses: statements from female witnesses corroborated the accuser; those 

from male witnesses corroborated the accused’s account. (Id. at p. 579.) The 

court found there was a “significant risk” that the accused was denied due 
43

process because the ultimate determination turned on credibility, and the 

university relied on witness statements rather than receiving live testimony

from the accuser, the accused or witnesses. (Id. at pp. 581–582, 585.)

“‘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 may ‘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 he 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.)
44

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, supra, 25 

Cal.App.5th at p. 1070; Cincinnati, supra, 872 F.3d at p. 401 [“[T]he 

opportunity to question a witness and observe her demeanor while being 

questioned can be just as important to the trier of fact as it is to the 

accused”]; UCSB, supra, 28 Cal.App.5th at p. 60.) Recognizing the risk that 

an accusing witness may suffer trauma if personally confronted by an alleged 

assailant at a hearing, we observed in Doe v. USC(1), supra, 246 Cal.App.4th 

221, that mechanisms can readily be fashioned to “provid[e] accused students 

with the opportunity to hear the evidence being presented against them 

without subjecting alleged victims to direct cross-examination by the 

accused.” (Id. at p. 245, fn. 12.) For instance, the court in CMC noted that an 

accuser could be present “either physically or through videoconference or like 

technology to enable the finder of fact to assess the complaining witness’s 

credibility in responding to its own questions or those proposed by the 

accused student.” (CMC, supra, 25 Cal.App.5th at p. 1070; accord, UCSD, 

supra, 5 Cal.App.4th at pp. 1103–1104.) In Baum, the Sixth Circuit agreed, 

observing that “if the university does not want the accused to cross–examine 

the accuser under any scenario, then it must allow a representative to do so.” 

(Baum, supra, 903 F.3d at p. 583, fn. 3.)

We also agree with Baum’s holding extending the right of crossexamination 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] 
45

observe the witness’s demeanor under that questioning.” (Baum, supra, 903 

F.3d at pp. 581-582.) 

Doe v. USC(2), supra, __ Cal.App.5th ___ [2018 WL 6499696] is the 

most recent addition to this growing body of law. In Doe v. USC(2), our 

colleagues in Division Seven found a denial of due process in a case involving 

allegations of sexual misconduct resolved under the same student 

disciplinary procedure at issue here. The court found that a USC student 

accused of sexual assault and rape, and facing expulsion, was denied a fair 

hearing when, among other things, USC’s Title IX investigator failed 

personally to interview critical witnesses to observe their demeanor and 

assess credibility. (Id. at pp. *14-16.) The determination whether expulsion 

was appropriate turned on the credibility of several inconsistent witness 

accounts, and the investigator bore responsibility to determine credibility. 

(Ibid.) The court held that the investigator could not make a credibility 

determination based on a cold record, i.e., written witness statements 

prepared by a different investigator who had actually conducted the witness 

interviews. (Id. at pp. *13-14.) 

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. *17.) Although USC’s 

procedures do not provide an accused student the right to submit questions to 

be asked of the complainant, the court required that the university do so. 

The court specifically declined to reach the question whether USC’s failure to 

provide a procedure to permit an accused student indirectly to question 

witnesses against him violated his right to a fair hearing. (Id. at p. *17, fn. 
46

36.) In the course of its discussion, the court observed in a footnote: 

“Although the Title IX investigator held dual roles as the investigator and 

adjudicator, ‘the combination of investigative and adjudicative functions does 

not, without more, constitute a due process violation . . . .’ [Citations.]” (Id. at 

pp. *35-36, fn. 29.) 

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, 246 Cal.App.4th 221, we recognized “‘the value of crossexamination as a means of uncovering the truth [citation], [but] reject[ed] the 

notion that as a matter of law every administrative appeal . . . must afford 

the [accused] an opportunity to confront and cross-examine witnesses.’” (Id.

at p. 245.) We adhere to that view. However, as we also observed, the 

“‘[s]pecific requirements for procedural due process vary depending upon the 

situation under consideration and the interests involved.’ [Citation.]” (Id. at 

p. 244.) When credibility of witnesses is essential to a finding of sexual 

misconduct, the stakes at issue in the adjudication are high, the interests are 

significant, and the accused’s opportunity to confront adverse witnesses in 

the face of competing narratives is key. “Cross-examination takes aim at 

credibility like no other procedural device.” (Cincinnati, supra, 872 F.3d at p. 

401.) Under such circumstances, the performance of this key function is 

simply too important to entrust to the Title IX investigator in USC’s 

procedure. 
47

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 in–person hearing at which a neutral fact finder can 

observe and assess the witness’ credibility. (See Baum, supra, 903 F.3d at p. 

586 [“‘Few procedures safeguard accuracy better than adversarial 

questioning’” through cross-examination]; cf., Whitford v. Boglino (7th Cir. 

1995) 63 F.3d 527, 534 [due process forbids an officer who was substantially 

involved in the investigation of charges against an inmate from also serving 

on the adjudicating committee].) At bottom, assessing what is necessary to 

conduct meaningful cross–examination depends on a common sense 

evaluation of the procedure at issue in the context of the decision to be made. 

From that prospective, a right of “cross–examination” implemented by a 

single individual acting as investigator, prosecutor, factfinder and sentencer, 

is incompatible with adversarial questioning designed to uncover the truth. 

It is simply an extension of the investigation and prosecution itself.32

 

32 In noting that combining the roles of investigator and adjudicator does 

not without more violate due process, the court in USC v. Doe(2) cited several 

cases, none of which are inconsistent with our conclusion that USC’s system 

is fundamentally unfair because the Title IX investigator is incapable of 

effectively implementing the accused’s student’s right to cross-examine 
48

Moreover, the harm to fundamental fairness created by USC’s system 

is amplified by the limited review of the investigator’s factual findings 

available in the university’s appellate process. As we have explained, the 

SBAP’s review relies wholly on the SAR, plus any additional written 

materials accepted on appeal, and is limited to review for substantial 

evidence. The SBAP may not substitute its credibility findings for those 

made by the investigator, and may not make new factual findings. Because a 

version of events provided by a single witness (assuming it is not implausible 

on its face) constitutes substantial evidence, the mere fact that the 

complainant’s allegations of misconduct are deemed credible by the 

investigator constitutes substantial evidence. Thus, the SBAP will virtually 

never be in a position to set aside an investigator’s factual findings. 

 

witnesses. Southern Cal. Underground Contractors, Inc. v. City of San Diego

(2003) 108 Cal.App.4th 533, 548-549 stands for the proposition that a party 

must show actual bias on the part of a decisionmaker, not merely the 

appearance of bias, to establish a denial of due process. (Id. at pp. 548–549.)

In Withrow v. Larkin (1975) 421 U.S. 35, the Court observed that a 

licensing board’s initial determination of probable cause, and its ultimate 

adjudication rested on different bases and had different purposes. Thus, the 

fact that the same agency made them and they related to the same issues 

would not ordinarily constitute a procedural due process violation. (Id. at p. 

58.) Similarly, Griggs v. Board of Trustees (1964) 61 Cal.2d 93, and 

Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th 

1123, agreed that the mere combination of investigative and adjudicative 

functions in an agency do not necessarily constitute denial of a fair hearing. 

(Griggs v. Board of Trustees, supra, 61 Cal.2d at p. 98; Hongsathavij v. Queen 

of Angels etc. Medical Center, supra, 62 Cal.App.4th at p. 1142.) However, as 

the Court cautioned in Withrow v. Larkin, a substantial due process question 

is clearly raised “if the initial view of the facts based on the evidence derived 

from nonadversarial processes . . . foreclosed fair and effective consideration 

at a subsequent adversary hearing leading to ultimate decision.” (Withrow v. 

Larkin, supra, 421 U.S. at p. 58.) 
49

Moreover, because the SBAP cannot modify a sanction imposed by the 

investigator unless it is unsupported by the investigator’s factual findings or 

is grossly disproportionate to the violation shown by those findings, the 

sanction imposed by the investigator will rarely, if ever, be modified. 

In light of these concerns, 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 (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’ 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.
50

Dr. 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 
51

employment contract . . . prohibit[ing] fraternizing with athletes.”33 Finally, 

in the SAR, Dr. Allee stated that USC “would not retaliate against a student 

who had 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 cannot 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 crossexamine 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 

 

33 Although the SBAP specifically questioned Dr. Allee’s failure to follow 

up with the Athletic Department, and observed that she should have 

contacted at least one of Doe’s new witnesses, there remained sufficient (a 

preponderance of ) evidence to sustain the SAR’s findings. 
52

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. 

CERTIFIED FOR PUBLICATION

WILLHITE, Acting P. J.

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.