IN THE SUPREME COURT OF 

CALIFORNIA

MATTHEW BOERMEESTER,

Plaintiff and Appellant,

v.

AINSLEY CARRY et al.,

Defendants and Respondents.

S263180

Second Appellate District, Division Two

B290675

Los Angeles County Superior Court

BS170473

July 31, 2023

Justice Groban authored the opinion of the Court, in which 

Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, 

Jenkins, and Evans concurred.
1

BOERMEESTER v. CARRY

S263180

Opinion of the Court by Groban, J.

In recent years, courts in California and throughout the 

nation, as well as the California Legislature and the United 

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

have attempted to determine the precise procedures 

universities1 must utilize when investigating and disciplining 

students accused of sexual misconduct or intimate partner 

violence. This judicial and legislative activity likely began in 

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

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

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

specific procedures federally funded universities should 

implement when investigating sexual harassment allegations. 

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

campuses by making it easier for victims to prove their claims 

in university disciplinary actions. Though the letter was 

rescinded in 2017, students accused of sexual misconduct or 

intimate partner violence continue to challenge many of the 

disciplinary procedures universities have since implemented, 

asserting that these procedures create an unfair process which 

may result in universities mistakenly imposing severe sanctions 

upon accused students, including expulsion.

1

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

all postsecondary educational institutions. 
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Opinion of the Court by Groban, J.

2

In this case, respondents University of Southern 

California and its Vice President of Student Affairs, Ainsley 

Carry (collectively, USC) expelled appellant Matthew 

Boermeester from the private university after conducting a twomonth investigation and determining that he violated USC’s

policy against engaging in intimate partner violence. 

Boermeester filed a petition for a writ of administrative 

mandate under Code of Civil Procedure section 1094.5 (section 

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

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

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

were unfair because they denied Boermeester a meaningful 

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

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

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

More specifically, the Court of Appeal majority determined that 

USC’s disciplinary procedures were unfair because USC should 

have afforded Boermeester the opportunity to attend a live 

hearing at which he or his advisor-attorney would directly crossexamine the alleged victim, Jane Roe,2 as well as the third party 

witnesses, or indirectly cross-examine them by submitting 

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

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

majority made clear that the witnesses need not be “physically 

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

instead appear “by videoconference, or by another method that 

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

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

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

of Court, rule 8.90.)
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Opinion of the Court by Groban, J.

3

Nevertheless, the Court of Appeal majority believed that 

accused students must be able to contemporaneously hear and

observe the real-time testimony of the accuser and other 

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

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

questions. (Ibid.)

We hold that, though private universities are required to 

comply with the common law doctrine of fair procedure by 

providing accused students with notice of the charges and a 

meaningful opportunity to be heard, they are not required to 

provide accused students the opportunity to directly or 

indirectly cross-examine the accuser and other witnesses at a 

live hearing with the accused student in attendance, either in 

person or virtually. Requiring private universities to conduct 

the sort of hearing the Court of Appeal majority envisioned 

would be contrary to our long-standing fair procedure 

admonition that courts should not attempt to fix any rigid 

procedures that private organizations must “invariably” adopt. 

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

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

should “retain the initial and primary responsibility for devising 

a method” to ensure adequate notice and a meaningful 

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

Court of Appeal’s judgment.

I. BACKGROUND

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

petition for a writ of administrative mandate made pursuant to 

section 1094.5. Our recitation of the facts is accordingly derived 

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

Coastal Com. (2005) 35 Cal.4th 839, 864; accord, Pomona Valley 
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Opinion of the Court by Groban, J.

4

Hospital Medical Center v. Superior Court (1997) 

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

A. USC’s Policies

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

incident in question prohibited students from engaging in 

intimate partner violence, which it defined as “violence 

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

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

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

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

intimate partner violence or other prohibited conduct, USC’s 

Title IX office would conduct an intake interview of the accuser 

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

investigation, it would notify the accuser and the accused 

student of the investigation and the alleged policy violations. 

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

would gather facts and interview witnesses. Upon completion 

of the investigation, USC would provide the accuser and the 

accused student “individual and separate” opportunities to 

review the gathered evidence. After reviewing the evidence, the 

accuser and the accused student would be given “individual and 

separate” opportunities to respond to the evidence through an 

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

3 All universities that receive federal financial assistance 

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

coordinator, as being responsible for ensuring compliance with 

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

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

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

investigators, who investigated specific allegations of 

misconduct. 
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Opinion of the Court by Groban, J.

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

and the accused student the opportunity to submit questions for 

the Title IX coordinator to ask one another at their separate 

hearings. If either student shared new information during their 

separate hearing, USC would provide the other student an 

opportunity to review and respond to the new evidence.

At the conclusion of the evidence hearings, the Title IX 

investigator would prepare a summary administrative review 

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

would make factual findings and conclusions as to whether the 

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

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

forwarded to a misconduct sanctioning panel, composed of one 

undergraduate student and two staff designated by the provost 

and senior vice president for academic affairs, to impose 

sanctions. Either the accuser or the accused student could file 

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

panel composed of three individuals appointed by the vice 

president for student affairs. The vice president of student 

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

recommendations and made the final decision. Throughout the 

process — from investigation to final adjudication — both the 

accuser and accused student were allowed to receive support 

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

attorney.

B. The Incident

Boermeester and Roe were students at USC who had an 

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

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

relationship by January 21, 2017 — the date the incident 
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Opinion of the Court by Groban, J.

6

occurred — the two often spent time together and Boermeester 

regularly stayed the night at Roe’s apartment. 

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

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

investigator to investigate the incident, who interviewed Roe 

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

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

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

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

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

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

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

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

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

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

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

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

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

against the concrete wall along the alley behind her apartment 

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

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

hurt from the impact. 

Roe also provided the Title IX investigator with a detailed 

account of prior instances of physical violence perpetrated by 

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

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

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

which she had catalogued on her phone. Roe requested an 

avoidance of contact order prohibiting Boermeester from 

contacting her and requested temporary emergency housing. 
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There were two eyewitnesses to the incident. A student, 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

office. 

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

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

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

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

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

wished to speak with the investigator again. During the second 

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

incident” in his initial interview both because he believed Roe 

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

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

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

his residence on the night in question. He looked out the window 
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Opinion of the Court by Groban, J.

8

and saw Boermeester standing in front of Roe with both hands 

around her neck. Boermeester pushed Roe into the alley wall 

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

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

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

and asked Roe and Boermeester how things were going, which 

“ ‘broke it up.’ ” 

In his own interview with the Title IX investigator, 

Boermeester admitted that he had instructed Roe to release her 

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

against the alleyway wall. But he insisted that the act 

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

not intimate partner violence. 

USC’s Title IX office obtained surveillance video of the 

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

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

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

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

interaction between Boermeester and Roe when they are near 

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

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

described by both the superior court and the Court of Appeal

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

shoving Roe from the area adjacent to the house into the 

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

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

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

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

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

against the wall and barely visible from the camera. At 

12:17:26, [Boermeester] backs away from the wall and re-enters 
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Opinion of the Court by Groban, J.

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

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

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

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

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

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

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

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

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

toward the house.’ ” (Ibid.) 

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

investigator interviewed both parties (as noted) and 16

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

gathered documentary evidence including the video and text 

messages. Roe did not want to participate in the investigation 

and discouraged other witnesses from testifying against 

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

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

would learn of the investigation and she feared retaliation from 

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

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

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

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

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

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

interview and asked if she could withdraw her statement and 

the avoidance of contact order, explaining she did not want 

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

it would be clearly conveyed to Boermeester that the 

investigation was initiated by the Title IX office. Roe also 

expressed concern that Boermeester would be punished too 
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Opinion of the Court by Groban, J.

10

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

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

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

At the conclusion of the investigation, Boermeester and 

Roe separately reviewed the evidence with their advisorattorneys at the Title IX office. The parties declined to attend 

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

IX coordinator to ask one another during their hearings. 

Instead, they opted to submit separate written statements 

responding to the evidence. In her written statement, Roe

recanted her initial statement and claimed the Title IX office 

manipulated her into saying exaggerated or untrue things about 

Boermeester and their relationship. Specifically, Roe explained 

that she believed her initial discussion with the Title IX office 

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

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

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

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

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

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

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

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

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

omitted.) 

The Title IX investigator issued an SAR concluding that 

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

engaging in intimate partner violence and (2) violating the 

interim avoidance of contact order. The SAR was forwarded to 

a misconduct sanctioning panel, which recommended expulsion. 

Boermeester appealed to an appellate panel, which agreed that 

Boermeester physically harmed Roe — and thus engaged in 
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Opinion of the Court by Groban, J.

11

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

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

appellate panel acknowledged that intent “is not a required 

element” for proving intimate partner violence as defined by 

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

sanctioning purposes and accordingly recommended reducing 

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

week intimate partner violence program. The Vice President of 

Student Affairs, respondent Carry, rejected the appellate 

panel’s recommendation to reduce the sanction of expulsion. 

She explained that, whether Boermeester intended to cause Roe 

physical harm or did so recklessly, expulsion was appropriate 

given the nature of the harm inflicted. 

Boermeester filed a section 1094.5 petition for writ of 

administrative mandate, which the superior court denied. A 

divided Court of Appeal reversed, with the majority concluding 

that USC’s disciplinary procedures were unfair because 

Boermeester was unable to directly or indirectly question Roe 

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

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

majority declined to reach Boermeester’s other claims regarding 

fairness, including his assertion that USC’s disciplinary 

procedures were unfair because USC’s Title IX investigator held 

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

granted review to determine whether the Court of Appeal 

majority was correct in concluding that USC should have held a 

live hearing featuring real-time direct or indirect crossexamination of all parties and witnesses (whether conducted in-
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Opinion of the Court by Groban, J.

12

person or virtually) with an opportunity for Boermeester to ask 

the witnesses follow-up questions.4

II. DISCUSSION

A. Writ of Administrative Review 

A writ of administrative review brought pursuant to 

section 1094.5 allows for judicial review of quasi-judicial 

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

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

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

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

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

4 The Court of Appeal was split as to whether Boermeester 

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

a live hearing featuring direct or indirect cross-examination of 

Roe and the other witnesses. Justice Wiley emphasized in his 

dissent that Boermeester did not submit cross-examination 

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

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

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

The Court of Appeal majority declined to find forfeiture, 

deciding that it would have been futile for Boermeester to 

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

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

Carry, supra, B290675.) 

Neither party asks that we resolve this matter on 

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

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

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

are important and recurring, and accordingly exercise our 

discretion to reach the merits without deciding whether 

Boermeester forfeited his claims. (See Teacher v. California 

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

Conditioning & Appliance Service, Inc. v. Santa Monica 

Community College Dist. (2018) 30 Cal.App.5th 945, 962, fn. 6.) 
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Opinion of the Court by Groban, J.

13

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

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

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

procedural fairness of the administrative hearing is reviewed de 

novo on appeal because the ultimate determination of 

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

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

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

11 Cal.5th 1095, 1111.)

Section 1094.5 review applies not only to the decisions of 

governmental agencies but also to the decisions of private 

organizations, so long as the private organization was legally 

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

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

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

never previously applied section 1094.5 to a private university’s 

disciplinary decisions. We nevertheless find that section 1094.5 

writ review is appropriate because, for the reasons more fully 

explained below, the common law doctrine of fair procedure 

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

applicable, requires a private organization to comply with its

own procedural rules governing the expulsion of individuals 

from the organization, and it permits courts to evaluate the 

basic fairness of those procedural rules when the organization 

seeks to exclude or expel an individual from its 

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

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

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

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

specified that the university would offer the accused student a 

hearing, take evidence, and make factual determinations in a 
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Opinion of the Court by Groban, J.

14

final adjudicatory decision issued by the vice president of 

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

evidence, and discretion in the determination of facts are clearly 

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

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

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

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

procedure, precluding an aggrieved party from circumventing’ ” 

section 1094.5 review].)

The parties do not dispute that section 1094.5 applies. 

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

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

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

by adhering to principles established by the common law 

doctrine of fair procedure which, in certain limited contexts, 

requires a private organization to give an individual adequate 

notice of the charges and a reasonable opportunity to respond 

before expelling the individual from the organization’s 

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

Boermeester additionally urges us to rely on constitutional due 

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

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

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

vehicle for reviewing public and private administrative 

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

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

standard of procedural fairness is required in this context. 

Moreover, USC relies on cases decided under the common law 

doctrine of fair procedure in asserting that its disciplinary 

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

component of section 1094.5 is synonymous with either the 

common law doctrine of fair procedure or with due process 

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

explained more fully below, our fair procedure cases are 

instructive because the membership-related decisions made by 

the private organizations in those cases are similar in 

significant respects to private universities’ student disciplinary 

decisions. 

The principles of common law fair procedure are similar to 

those of constitutional due process in that they are flexible and 

context specific. Under either concept, the precise procedures 

necessary to provide a complainant with a meaningful 

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

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

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

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

identical. Due process is a constitutional right designed to 

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

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

other hand, is a more flexible judicially created concept 

applicable to private organizations in limited situations. (See 

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

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

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

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

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

procedure” requirement is far more flexible than that which the 

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

Because this matter involves a private university, no 
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Opinion of the Court by Groban, J.

16

constitutional rights are at stake and a greater degree of 

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

With these considerations in mind, we next provide a 

background on the common law doctrine of fair procedure and 

discuss how it governs our inquiry. 

B. The Common Law Doctrine of Fair Procedure

The common law doctrine of fair procedure originally 

developed to prevent the arbitrary expulsion of individuals from 

memberships in certain private organizations — such as mutual 

aid societies, fraternities, or unions — where the expulsion 

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

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

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

subsequently expanded to prevent the arbitrary expulsion or 

exclusion of individuals from private organizations that “possess 

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

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

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

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

that they would be fully unable to practice their chosen 

profession absent membership in the organization; they can 

instead show that “exclusion from membership . . . deprives 

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

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

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

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

association was subject to the doctrine of fair procedure, 

explaining that while membership in the association was “not 

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

“practical necessity for a dentist who wishes not only to make a 
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good living as an orthodontist but also to realize maximum 

potential achievement and recognition in such specialty.” 

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

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

provider list was subject to the doctrine of fair procedure 

because “the insurer possesses power so substantial that the 

removal significantly impairs the ability of an ordinary, 

competent physician to practice medicine or a medical specialty 

in a particular geographic area, thereby affecting an important, 

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

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

certain private organizations to apply fair procedure in their 

membership decisions by observing that these organizations 

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

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

them certain obligations to the public and the individuals with 

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

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

in the relationship between [insurers] and their preferred 

provider physicians.’ ” (Ibid.) 

Most notably, in Ezekial, we applied the fair procedure 

doctrine to prevent an individual’s arbitrary expulsion from a 

residency program at Kaiser, a private teaching hospital. 

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

entitled to fair procedure because, by accepting him into its 

residency program and later seeking to expel him from that 

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

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

enjoyment of the economic and professional benefits flowing 

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

“[d]ismissal from Kaiser will, as a practical matter and because 
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Opinion of the Court by Groban, J.

18

of Kaiser’s close relationship with other teaching hospitals, 

prevent plaintiff’s acceptance in any other surgical residency 

program. Successful completion of an approved surgical 

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

certified general surgeon,’ without which plaintiff cannot 

practice a surgical specialty in any accredited California 

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

lawful trade or profession is sufficiently ‘fundamental’ to require 

substantial protection against arbitrary administrative 

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

p. 272.) 

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

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

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

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

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

care entities have a virtual monopoly on managed care” and 

“removing individual physicians from preferred provider 

networks controlled by these entities could significantly impair 

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

private university provides an important, quasi-public 

service — a postsecondary education — affecting the public 

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

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

especially to those students who have already enrolled in the 

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

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

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

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

university “ ‘clearly implicates’ a protected property interest” 

and may also involve a protected liberty interest].) Much like in 
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Opinion of the Court by Groban, J.

19

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

which was already conferred on Boermeester and which USC 

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

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

intimate partner violence allegations, a student who is expelled 

from a university for such conduct may find it especially 

difficult — if not impossible — to complete a postsecondary 

education elsewhere, thwarting the student’s ability to realize 

“the economic and professional benefits flowing” from a college 

degree. (Id. at p. 274.)5 For these reasons, we find that a 

student’s interest in completing a postsecondary education at a 

private university is analogous to an individual’s interest in 

continuing membership in a private organization that impacts 

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

Our common law doctrine of fair procedure therefore applies in

determining whether USC’s disciplinary procedures were fair. 

Where it applies, the common law doctrine of fair 

procedure requires private organizations to provide adequate 

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

reputation for life” because “federal law prohibits universities 

from disclosing the findings of investigations into alleged 

misconduct to unauthorized persons without the consent of the 

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

USC cites, the Family Educational Rights and Privacy Act of 

1974, prohibits the federal funding of educational institutions 

that have a policy or practice of releasing education records to 

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

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

to other schools at which the student is seeking admission. 

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

observation that a student who is expelled from a university for 

committing sexual misconduct or intimate partner violence may 

find it difficult to complete his or her education elsewhere. 
BOERMEESTER v. CARRY

Opinion of the Court by Groban, J.

20

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

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

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

specific or baseline procedures must be followed to satisfy these 

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

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

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

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

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

the plaintiff was denied a fair procedure because he was not 

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

that testimony, nor was he allowed to examine the written 

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

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

requirement of a fair procedure does not compel formal 

proceedings with all the embellishments of a court trial 

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

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

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

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

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

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

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

given “the practical limitations on the ability of private 

institutions to provide for the full airing of disputed factual 

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

procedure that must invariably be observed. Instead, the 

associations themselves should retain the initial and primary 

responsibility for devising a method which provides an applicant 

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

reasonable opportunity to respond” (Pinsker II, at p. 555). 
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Opinion of the Court by Groban, J.

21

In short, though the fair procedure doctrine requires

adequate notice of the charges and a reasonable opportunity to 

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

private universities primary responsibility for crafting the 

precise procedures meant to afford a student with notice and an 

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

Private universities generally know best how to manage their 

own operations, and requiring a fixed set of procedures they 

must utilize in every situation when determining student 

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

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

20 Cal.3d at pp. 278–279.)

C. Recent Legislation

The Legislature recently enacted legislation setting forth 

the precise procedures it felt were necessary to ensure fairness 

to both the accused student and the accuser and to combat 

sexual violence on university campuses. Senate Bill No. 493 

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

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

private universities that receive state financial assistance and 

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

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

must implement on and after its effective date to address 

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

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

USC’s subsequent investigation of the incident occurred prior to 

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

noteworthy that the statute does not require universities to 

conduct live hearings featuring cross-examination of the accuser 

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

Beverly Hills (2003) 108 Cal.App.4th 81, 91 [the Administrative 
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Opinion of the Court by Groban, J.

22

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

was nonetheless “helpful as indicating what the Legislature 

believes are the elements of a fair and carefully thought out 

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

Senate Bill 493 is intended “to account for the significant 

individual civil consequences faced by respondents alleged to 

have committed sexual violence as well as the significant harm 

to individual complainants and to education equity more 

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

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

discretion to decide whether “a hearing is necessary to 

determine whether any sexual violence more likely than not 

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

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

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

elected to participate in the investigation and whether each 

party had the opportunity to suggest questions to be asked of 

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

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

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

govern it. 

Senate Bill 493 expressly provides that universities need 

not comply with any of its provisions that conflict with federal 

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

still evolving. After the OCR rescinded its 2011 “Dear 

Colleague” letter in 2017, it began a rulemaking process 

culminating in Title IX regulations that went into effect on 

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

USC. Though the 2020 Title IX regulations are inapplicable 

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

trending towards providing private universities with more 
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Opinion of the Court by Groban, J.

23

flexibility in determining whether to conduct a live hearing. To 

explain, the 2020 Title IX regulations require universities 

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

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

all relevant questions and follow-up questions, including those 

challenging credibility,” which “must be conducted directly, 

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

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

regulations, which are not yet final. The proposed amendments 

provide that universities may opt “to conduct live hearings with 

cross-examination or have the parties meet separately with the 

decisionmaker and answer questions submitted by the other 

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

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

and evaluating relevant case law, the OCR determined that 

“neither Title IX nor due process and fundamental fairness” 

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

provide for a live hearing with advisor-conducted crossexamination in all cases” (id. at p. 41507). The OCR further 

justified the proposed amendments by stating that growing 

evidence calls into question “whether adversarial crossexamination is the most effective tool for truth-seeking in the 

context of sex-based harassment complaints involving students 

at postsecondary institutions” and shows that “informationgathering approaches such as questions asked in individual 

meetings instead of during a live hearing (sometimes described 

as inquisitorial procedures) are more likely to produce the truth 

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

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

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

Title IX regulations) give universities wide latitude in 
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Opinion of the Court by Groban, J.

24

determining the precise nature of their disciplinary proceedings. 

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

flux and is, therefore, subject to continued change and 

development. We further emphasize that, because neither 

Senate Bill 493 nor the current or proposed Title IX regulations

apply to this matter, they are not dispositive.6 

D. Fair Procedure Does Not Require Live Hearings

with Cross-examination 

We must decide whether fair procedure requires private 

universities to provide accused students the opportunity to 

directly or indirectly cross-examine the accuser and other 

witnesses at a live hearing with the accused student in 

attendance, either in person or virtually. Applying our fair 

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

Requiring live hearings featuring real-time cross-examination 

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

to our prior conclusion that “fair procedure does not compel 

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

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

6 Going forward, all universities that receive state financial 

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

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

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

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

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

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

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

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

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

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

and we accordingly do not opine on what the outcome of 

Boermeester’s petition would have been had the statute applied 

to his claims.
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Opinion of the Court by Groban, J.

25

to our admonition that courts must refrain from fixing rigid 

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

As we have recognized, an accused student has a 

significant interest in completing a postsecondary education. 

For this reason, private universities must comply with the fair 

procedure doctrine by affording accused students reasonable 

notice of the charges and a meaningful opportunity to respond 

before disciplining them. When crafting the precise procedures

necessary to provide a meaningful opportunity to respond, 

however, a private university must balance competing interests, 

including the accused student’s interests in a fair procedure and 

completing a postsecondary education, the accuser’s interest in

not being retraumatized by the disciplinary process, and the 

private university’s interests in maintaining a safe campus and 

encouraging victims to report instances of sexual misconduct or 

intimate partner violence without having to divert too many 

resources from its main purpose of education. (See Ezekial,

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

economic interest in completing the residency program against 

the private hospital’s interest in protecting itself from the 

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

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

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

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

university].) It is therefore appropriate to give private 

universities broad discretion in formulating their disciplinary 

processes to ensure that they not only provide the accused 

student a meaningful opportunity to be heard, but also 

embolden victims to report incidents of sexual misconduct or 

intimate partner violence, encourage witnesses to participate in 

the disciplinary process, and allow the private university to 
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Opinion of the Court by Groban, J.

26

conserve its resources so that it can remain focused on its 

primary mission of providing a postsecondary education. 

The Court of Appeal majority reasoned that the accused 

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

questioning with the accuser and other witnesses at a live 

hearing in order to assess witness credibility and to “fully 

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

B290675.) While live adversarial questioning may be 

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

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

to a live hearing with cross-examination in administrative 

proceedings, even where constitutional due process applies. As 

courts have explained in other administrative contexts, 

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

agencies “preclude wholesale transplantation of the rules of 

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

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

evidentiary hearing is neither a required, nor even the most 

effective, method of decisionmaking in all circumstances.’ ” 

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

311.) The fair procedure doctrine similarly recognizes “the 

practical limitations on the ability of private institutions to 

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

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

to function as courts because they lack subpoena power to force 

key witnesses to attend a hearing and be subject to crossexamination. They must instead rely on the voluntary 

participation of witnesses, which may prove more likely when 

the disciplinary process allows witnesses to testify outside of the 

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

presence. As the Attorney General, appearing here as amicus 
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Opinion of the Court by Groban, J.

27

curiae, observes, requiring live hearings featuring real-time 

adversarial questioning “threatens to deter students from 

participating and to traumatize those who do.” Furthermore, 

such hearings would require private universities to make onthe-fly rulings on objections to proposed questions and other 

issues raised during the hearing, which university staff may not 

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

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

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

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

(1975) 419 U.S. 565, 583 [“To impose . . . even truncated trialtype procedures might well overwhelm administrative facilities 

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

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

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

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

time being both impractical and detrimental to the educational 

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

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

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

In this case, USC provided Boermeester notice of the 

allegations; the opportunity to provide his version of events in 

his interview with the Title IX investigator; the opportunity to 

independently review the testimonial and documentary 

evidence with his attorney-advisor; the opportunity to submit 

his own evidence and the names of potential witnesses to the 

Title IX investigator; the opportunity to respond to the 

testimonial and documentary evidence through an in-person 

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

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

submitting a written response to the evidence); the opportunity 
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Opinion of the Court by Groban, J.

28

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

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

opportunity to appeal the misconduct sanctioning panel’s 

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

gone further by conducting a live hearing with Boermeester in 

attendance and with Boermeester directly or indirectly crossexamining the witnesses and asking follow-up questions, either 

in person or virtually. 

Boermeester relies on recent appellate court decisions to 

support his view that fair procedure requires live hearings at 

which accused students are permitted to cross-examine 

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

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

analyze what procedures might be required in this context, the 

court correctly observed that fair procedure requires only 

“ ‘notice reasonably calculated to apprise interested parties of 

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

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

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

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

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

some courts have held that private universities must allow the 

accused student to indirectly cross-examine the accuser or third

party witnesses where the adjudication “turns on witness 

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

the indirect cross-examination should occur within the context 

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

accord, Doe v. Claremont McKenna College (2018) 

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

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

1237 (University II); see also Regents I, supra, 5 Cal.App.5th at 
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Opinion of the Court by Groban, J.

29

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

private university to give the accused student “an opportunity 

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

ask the accuser if it proceeded with a new disciplinary 

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

not direct the university to conduct a hearing — even after 

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

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

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

providing accused students with the opportunity to hear the 

evidence being presented against them’ ” and to rebut such 

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

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

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

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

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

decision to hold that a private university must allow an accused 

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

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

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

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

acknowledged that fair procedure “requirements are ‘flexible’ 

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

explain how its holding comports with these principles. We 

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

1036 to the extent it is inconsistent with our opinion. 

At oral argument, Boermeester’s counsel asserted that

providing direct or indirect cross-examination of the accuser or 

other witnesses outside of a live hearing attended by the accused 

student is inadequate because the private university may 

“filter” or misrepresent witnesses’ answers to the accused 
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Opinion of the Court by Groban, J.

30

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

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

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

meaningfully convey the responses to the accused student, such 

as by providing the accused student with transcripts, video or 

audio recordings, or reasonably detailed summaries of the 

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

leave these specific procedures up to the university to 

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

that private universities may filter answers by, in response,

categorically requiring them to conduct a live hearing with the 

accused student in attendance and at which the accused student 

is allowed to directly or indirectly cross-examine witnesses. 

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

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

parties agree that USC’s policies provided separate and 

individual evidence hearings for both Boermeester and Roe, and 

that USC complied with its policies by offering the parties the 

opportunity to attend their separate evidence hearings. 

Although Boermeester could not have cross-examined Roe or the 

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

responded to the evidence and presented his defense before 

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

not opine on whether and under what circumstances a private 

university might properly choose to refrain from providing an 

accused student with a hearing that gives the accused student 

the opportunity to respond to the evidence before the 

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

accused student in this case. 

We also do not opine on whether and under what 

circumstances a private university might be required to allow 
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Opinion of the Court by Groban, J.

31

the accused student to indirectly cross-examine the accuser by 

submitting questions for the university’s adjudicators to ask the 

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

student’s presence, since USC afforded Boermeester the 

opportunity to submit questions for the Title IX coordinator to 

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

opine on whether USC’s procedure was unfair because 

Boermeester was not allowed to submit questions for USC’s 

adjudicators to ask the third party witnesses during the Title IX 

investigator’s interviews with those witnesses, since 

Boermeester does not raise this claim. 

Were we to assume, however, that a private university 

must provide an accused student the opportunity to indirectly 

cross-examine the accuser or third party witnesses outside of 

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

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

lower courts have held (see Claremont McKenna, supra, 

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

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

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

USC’s failure to provide Boermeester the opportunity to submit 

questions for the third party witnesses in this case to be 

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

merely corroborated Roe’s initial accusation that Boermeester 

harmed her during the incident in question. Shortly after the 

incident occurred, Roe told the Title IX investigator that 

Boermeester had physically harmed her. Specifically, Roe said 

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

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

Boermeester grabbed the front of her throat and neck, causing 

her to cough; and that her “head hurt” after Boermeester 
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Opinion of the Court by Groban, J.

32

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

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

incident — though grainy and soundless — is consistent with 

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

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

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

without considering the third party eyewitness testimony, USC 

could have concluded that Boermeester “caus[ed] physical 

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

partner violence. 

Boermeester maintained that the act was playful or sexual 

in nature and amounted to mere “roughhousing.” USC 

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

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

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

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

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

was not a mitigating factor. She therefore concluded that, 

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

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

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

policy against intimate partner violence, USC could have based 

its decision to expel Boermeester exclusively on Roe’s initial 

statement, the video consistent with that statement, and 

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

that Boermeester caused Roe physical harm.

It is true that Roe later recanted her testimony and agreed

with Boermeester that the incident was playful in nature. But 

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

provided Boermeester the opportunity to indirectly crossexamine Roe and explore any inconsistencies in her story. 
BOERMEESTER v. CARRY

Opinion of the Court by Groban, J.

33

Boermeester thus had the opportunity to submit questions to be 

asked of the most important witness — the person he allegedly 

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

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

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

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

uncommon for victims of intimate partner violence to recant. 

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

and her friends indicate that she feared retaliation and felt a 

sense of loyalty towards Boermeester, either of which may have 

motivated her later recantation. 

In conclusion, USC was not required to provide 

Boermeester the opportunity to directly or indirectly crossexamine Roe and other witnesses at a live hearing with

Boermeester in attendance, whether in person or virtually. 

III. DISPOSITION

We reverse the judgment of the Court of Appeal and 

remand for it to determine in the first instance the remaining 

claims Boermeester raised on appeal that the Court of Appeal 

expressly declined to reach. 

GROBAN, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

JENKINS, J.

EVANS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion Boermeester v. Carry

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

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

Review Granted (unpublished) 

Rehearing Granted

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Opinion No. S263180

Date Filed: July 31, 2023

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Court: Superior

County: Los Angeles

Judge: Amy D. Hogue

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Counsel:

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

Plaintiff and Appellant.

Cynthia P. Garrett for Families Advocating for Campus Equality as 

Amicus Curiae on behalf of Plaintiff and Appellant.

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

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

Karen J. Pazzani for Defendants and Respondents. 

Rob Bonta, Attorney General, Matthew Rodriquez, Chief Assistant 

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

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

the Attorney General of California as Amicus Curiae on behalf of 

Defendants and Respondents.

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

Andrew M. Kasabian; Amy Porter; and Brenda Adams for California 
Women’s Law Center, Equal Rights Advocates, Kylee O., Maryam I.,

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

Equality, Child Abuse Forensic Institute, Center for Community 

Solutions, Community Legal Aid SoCal, Domestic Abuse Center, 

Family Violence Appellate Project, Family Violence Law Center, 

Feminist Majority Foundation, Law Foundation of Silicon Valley, 

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

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

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

San Diego Volunteer Lawyer Program, Southwest Women’s Law 

Center, Texas Association Against Sexual Assault, Walnut Avenue

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

as Amici Curiae on behalf of Defendants and Respondents.

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

and Anton Metlitsky for California Institute of Technology, Chapman 

University, Claremont McKenna College, Occidental College and 

Pepperdine University as Amici Curiae on behalf of Defendants and 

Respondents.

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

Hospital Association as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Mark M. Hathaway

Hathaway Parker

445 South Figueroa Street, 31st Floor

Los Angeles, CA 90071

(213) 529-9000

Jeremy B. Rosen

Horvitz & Levy LLP

505 Sansome Street, Suite 375

San Francisco, CA 94111-3175

(818) 995-5838