Filed 4/23/19
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


JOHN DOE,                                    2d Civil No. B287799
                                         (Super. Ct. No. 17CV00188)
     Plaintiff and Respondent,             (Santa Barbara County)

v.

WESTMONT COLLEGE,

     Defendant and Appellant.


           Jane Roe accused John Doe1 of sexual assault while
the two were students at Westmont College. Westmont’s Student
Conduct Panel (the Panel) determined that the evidence
supported Jane’s accusation. It suspended John for two years.
           John challenged the Panel’s decision in a petition for
writ of administrative mandate. (Code Civ. Proc.,2 § 1094.5.)
The trial court determined that Westmont did not provide John a
fair hearing, and granted his petition. Westmont contends: (1)

        1 The
          parties refer to the individuals involved in this case
by pseudonyms. We do the same.

        2 All   unlabeled statutory references are to the Code of Civil
Procedure.
John received a fair hearing, and (2) substantial evidence
supports the Panel’s decision. Because we disagree with
Westmont’s first contention, we do not reach its second.
             Westmont’s investigation and adjudication of Jane’s
accusation was fatally flawed. Westmont did not provide John
with a fair hearing; indeed, it did not comply with its own policies
and procedures. The Panel did not hear testimony from critical
witnesses, yet relied on these witnesses’ prior statements to
corroborate Jane’s account or to impeach John’s credibility. The
Panel withheld material evidence from John, which its policies
required it to turn over. As a result, John was denied a
meaningful opportunity to pose questions to Jane and other
witnesses on material disputed facts. We affirm.
            FACTUAL AND PROCEDURAL HISTORY
        Westmont’s sexual assault policies and procedures
             Westmont is a small private college located in
Montecito. The college’s sexual assault policies and procedures
are included in the student handbook. The handbook defines
“Sexual Assault–Category I” as “engaging in sexual intercourse
with any person without that person’s consent.” It defines
“Sexual Assault–Category II” as “the act of making sexual contact
with the intimate body part of another person without that
person’s consent.”
             When Westmont receives a report of a violation of its
sexual assault policy, the Associate Dean for Residence Life
begins a preliminary investigation. The dean meets separately
with the alleged victim and accused student, explains the
charge(s) and investigation process, and obtains a written
statement and list of witnesses from each party. If the dean




                                 2
determines that the evidence warrants further proceedings, all
relevant information is forwarded to the Panel for adjudication.
             Members of the Panel include the dean who
conducted the investigation and two additional staff members.
During the adjudication process, the alleged victim and accused
student each has the right to provide witnesses and information
about the case, the right to an advisor, and the right to legal
counsel. Neither the advisor nor counsel may speak or advocate
during the proceedings.
             The handbook provides that the parties have the
right to confront opposing information. This does not permit
them to question witnesses directly, but does allow them to view
each other’s written statements and all “documents or materials
discovered or developed by the investigator during the course of
the investigation that [are] provided to the [Panel] as part of the
conduct process.” The parties also have the right to be “verbally
informed . . . of relevant and material[] opposing information
communicated by any witness during the conduct meeting.”
             All parties and witnesses must be given advance
notice of Panel meetings. Students are expected, but not
required, to meet with the Panel. The Panel meets first with the
alleged victim, then the accused student, then any other
witnesses the Panel requests. All witnesses must be available for
follow-up questioning. After hearing from the witnesses, the
Panel may recall the accused for follow-up questions and to make
a final statement. The alleged victim then answers follow-up
questions and makes a final statement. The meetings are not
recorded or transcribed, but a Westmont staff member who does
not serve on the Panel may take notes of the Panel’s questions,
the witnesses’ answers, and the parties’ final statements.




                                 3
             At the conclusion of proceedings, the Panel
deliberates privately. It weighs all available information and
determines, by a majority vote, “whether it is more likely than
not that a sexual assault . . . occurred.” It then determines what
sanctions, if any, to impose. The chair of the Panel
communicates its decision to the alleged victim and the accused
student.
             Either party may appeal the Panel’s decision to the
Vice President for Student Life. The vice president first
determines whether the appeal demonstrates procedural errors,
the availability of new information, or the imposition of excessive
sanctions. If it does not, the vice president summarily denies
review. If it does, the vice president reviews the Panel’s decision.
The vice president then either decides the appeal or refers it back
to the Panel for resolution.
                          Jane’s allegations
             On February 1, 2016, Jane’s mother reported to
Westmont that her daughter had been raped at an off-campus
party two weeks earlier. The Associate Dean for Resident Life,
Stu Cleek, began a preliminary investigation. Jane told Cleek
that she went to a party around 10:30 p.m. on January 15.
Thirty to 40 people were there, including her roommates, M.H.
and M.W. Jane believed M.H. and M.W. were intoxicated. Jane
said she did not drink alcohol that night.
             John was also at the party. Jane told Cleek that she
went out to the backyard around 10:45 p.m. and saw John sitting
with a group of people. John had a beer and one or two small jars
of marijuana. Jane went back inside.
             When Jane rejoined the group around 11:00 or 11:15
p.m., John packed a pipe with marijuana and passed it around




                                 4
the group. John said that since it was his marijuana, Jane had to
kiss him each time she took a hit. Jane thought John was joking
and did not kiss him. She took seven or eight hits off the pipe,
and felt “very giggly and super sleepy.”
             Once everyone else went inside, John asked Jane if
she wanted to go for a walk and continue smoking marijuana.
The two left the backyard between 11:30 and 11:40 p.m. After
they had passed by one house, John grabbed Jane and kissed her.
Jane told John she did not want to kiss him. She believed he was
“pretty wasted” based on his slurred speech, half-closed eyes, and
unstable gait.
             John said he wanted to have sex. When they had
walked past two or three more houses, John grabbed at Jane’s
pants. Jane told him to stop. John said, “I want to have sex with
you.” Jane replied that she did not want to have sex. John said
that it would be “really quick.” He then reached inside Jane’s
pants and put his finger in her vagina. Jane grabbed John’s arm
and again told him to stop. John replied, “I want to do this.”
Jane believed John would not stop no matter how many times she
asked.
             Jane told Cleek that John then turned her around,
pulled down her pants, and told her to get on her knees. When
she did, John put his penis inside her vagina. Jane estimated the
penetration lasted 45 seconds to one minute. Afterward, John
told Jane not to tell anyone what happened. “If anyone asks,
deny, deny, deny everything.”
             As they walked back to the party, John told Jane to
enter the house through a different entrance than he used. He
went inside through the back gate, Jane through the front door.
The two did not speak the rest of the night.




                                5
            Once inside, Jane told M.H. that she had had sex
with John. Jane asked M.H. not to tell M.W. Jane said she knew
that John and M.W. had “hooked up” previously and that M.W.
“continued to have feelings” for him.
            Jane left the party and returned to Westmont
between 12:50 and 1:00 a.m. M.H. and M.W. were in her room
when she got home. M.W. was upset and asked Jane about the
incident with John. Jane said, “I am so sorry. I don’t know what
I was thinking. I told him ‘no.’ I didn’t want to do it.”
                          John’s response
            John denied Jane’s allegations. He said he never had
sex with Jane and was never alone with her. He did not have her
phone number, and had no contact with her over social media.
            John said he arrived at the January 15 party around
9:45 p.m. with his friends C.B. and M.M. About 30 other people,
including his friends J.E. and N.K., were already there. John did
not drink alcohol that evening and did not smoke marijuana.3 He
did not take marijuana to the party.
            After about an hour, John went out to the backyard
with J.E., M.M., and another friend, M.C. John saw Jane
standing with a group of people outside. He did not see Jane
smoke marijuana, but did see her drink tequila. Both M.H. and
M.W. told John that Jane was drunk. John said M.H. and M.W.
also consumed alcohol. M.M. did not.
            After 20 or 30 minutes in the backyard, John went
inside with M.M. to use the bathroom. He then returned to the



     3 Johntold Cleek that he had consumed alcohol and
smoked marijuana on other occasions, but not since he arrived at
Westmont.


                                6
backyard. M.H., M.W., and Jane went back in the house. John
did not see Jane again that night.
             M.W. later returned to the backyard and asked John
if he had had sex with Jane. He laughed and said he had not.
M.W. said Jane was telling people otherwise. John was annoyed
that Jane would tell people that they had sex. K.S. and M.B.
were nearby during John’s interaction with M.W. J.E. and M.M.
may have also been present.
             Later, M.H. asked John if he had sex with Jane. He
replied, “[T]hat’s not fucking funny, stop saying that.” M.W. sent
a text message asking the same thing, which John again denied.
John left the party around 12:15 a.m.
             John told Cleek that he spoke with M.H., M.W., and
Jane’s other roommate, K.B., a few days later. They told him
that Jane was telling people that she did not have sex with John,
or that they had consensual sex, or that John took advantage of
her. John did not ask Jane about the rumors because he did not
have her contact information.
             Cleek asked John why Jane would spread rumors
about sex that had not occurred. John said he believed it was
because he ignored a text message Jane sent asking him to go to
the beach to “hook up.” John said he showed the message to J.E.
before he deleted it.
                         Witness statements
             Both Jane and John identified K.B., M.H., and M.W.
as witnesses. Jane also identified another friend she told about
the incident the day after the party, B.R. John identified J.E.,
M.B., M.M., and K.S.
             K.B. told Cleek she was asleep when M.H. and M.W.
arrived home after the party. M.H. said that Jane told her that




                                7
she kissed and had sex with John. When Jane arrived home, she
“started blaming what happened on her having mental health
issues.” Jane also said she had been drinking. Later, M.H. and
M.W. told K.B. that Jane commented that “the sex [with John]
wasn’t that good.” K.B. thought Jane’s “behavior ha[d] been ‘off’”
in the weeks prior to the party, and that she had “engaged in a
lot of lying[,] even in little things [that] don’t matter.”
              M.H. told Cleek she was Jane’s close friend and
roommate. She arrived at the party with M.W. between 9:00 and
9:30 p.m. She briefly spoke with John, but did not interact with
him outside. She said Jane arrived at the party around 10:30
p.m. She appeared to be under the influence. About a half-hour
later, Jane told M.H. that she had “done something really bad”
and kissed John. Ten minutes later, Jane told M.H. that she had
“d[one] something worse. [She] had sex with [John].” M.H. told
M.W. what Jane said. M.W. became upset. M.H. and M.W. left
the party.
              When Cleek asked, M.H. did not recall confronting
John at the party about having sex with Jane. She told Cleek
that Jane is a “compulsive liar” and that she “wouldn’t believe
anything she says.” M.H. denied drinking at the party.
              M.H. told Cleek that she and M.W. told K.B. what
happened after the party. When Jane got home, she apologized
and said, “You know I make bad decisions when I’m drunk.”
M.H. later heard Jane tell M.W., “[I]f it makes you feel better, he
wasn’t any good.” M.H. believed Jane had consensual sex with
John.
              M.W. told Cleek she “was one of [Jane’s] best friends
prior to the alleged incident.” M.W. arrived at the party around
9:45 p.m. and spent most of the night inside with M.H. After




                                 8
Jane arrived around 10:30 p.m., she went to the backyard with
M.H. Jane and John were both smoking marijuana.
             M.W. went inside with M.H. Fifteen to 30 minutes
later, Jane came in and told M.H. she had sex with John. M.H.
told M.W. M.W. asked John, and he laughed and said he did not
have sex with Jane. M.W. did not know who to believe. She was
upset and left the party with M.H. Neither she nor M.H.
consumed alcohol that evening.
             When they got home, M.H. and M.W. told K.B. what
had happened. Jane arrived later and apologized to M.W. She
said that she “acts on impulse when she is drunk[] and that she
had really been having a hard time with depression and anxiety
and her medications.” M.H. yelled at Jane for blaming her
behavior on her mental health or intoxication. She said Jane
needed to take responsibility for her actions.
             A few days later, Jane apologized again to M.W. for
having sex with John. She told M.W. she “had sex in a front yard
down the street” with John when they went to smoke marijuana.
Jane did not mention that she asked John to stop or that she did
not want to have sex with him. If she had, M.W. would have
responded differently.
             B.R. told Cleek she is Jane’s “really close friend.” She
was not at the party, but talked to Jane the next day. Jane told
B.R. that she and John were smoking marijuana at the party and
were both “cross faded.” John suggested that they go for a walk.
During their walk, they had sex. Jane said she didn’t want to do
anything because of John’s previous relationship with M.W. She
said she asked M.H. not tell M.W. that she had sex with John.
             B.R. said that Jane later told her that she had been
raped. It was only after M.W. told her to move out that Jane said




                                 9
that. B.R. was surprised by Jane’s allegation. She noted that
Jane originally said that she was drunk the night of the alleged
incident, but later said she clearly remembered that she was
raped. B.R. spoke with M.H., who said Jane had “boast[ed] about
how she had sex with [John]” during the party. M.W. and M.H.
told B.R. they did not believe Jane and John had sex.
             J.E. is John’s roommate and “very good friend.” J.E.
told Cleek that he arrived at the party around 10:00 or 10:30 p.m.
and was with John in the backyard for the next hour and a half.
At some point Jane approached John and then went back inside.
John told J.E. that he had received a text message from Jane
earlier in the evening inviting him to have sex with her, but J.E.
did not see it.
             J.E. did not hear John mention any sexual
interaction with Jane. He did not remember Jane and John
being alone together at the party. He did not see either Jane or
John consume alcohol or smoke marijuana.
             M.B. told Cleek that he is John’s “really good friend.”
He and John were together at the party “pretty much . . . the
whole time.” At one point he saw John back away when Jane
tried to kiss him. Later, he heard M.W. ask John if he liked
Jane. John said he did not. M.B. did not hear if M.W. asked
John if he had sex with Jane. He said no one in their group
drank alcohol or smoked marijuana that evening.
             M.M. is John’s “pretty good friend.” M.M. told Cleek
he was with John the “entire night of the party.” He saw John
interact with Jane, M.H., and M.W. for a few minutes in the
backyard. He did not recall whether M.W. asked if Jane and
John had sex. He said neither he nor John consumed alcohol or
smoked marijuana that night.




                                10
             K.S. told Cleek that she arrived at the party around
10:00 p.m. She was outside with John when Jane approached
them “wobbly and unsteady.” Jane “appeared to have been
drinking by her behavior.” She stayed outside for about 10
minutes before she went back into the house. K.S. did not see
John with M.B. or M.M. at the party.
            The conduct meeting and subsequent appeal
             Cleek completed his preliminary investigation and
determined that the information warranted a student conduct
meeting. He compiled all notices, summaries of witness
statements and interviews, and other documentary evidence, and
provided copies to Jane, John, and his fellow Panel members.
The summaries omitted some of Cleek’s questions and witnesses’
answers. Jane and John were allowed to submit statements that
addressed the evidence packages they received.
             At its first meeting, the Panel interviewed Jane. A
Westmont staff member who did not serve on the Panel took
detailed notes of the Panel’s questions and Jane’s responses, a
procedure replicated with all subsequent witnesses. Jane also
gave the Panel a written statement.
             The Panel then interviewed John. It provided John
and his attorney with Jane’s written statement and an oral
summary of what was said during her interview. John submitted
additional documents.
             The Panel interviewed B.R., C.B., J.E., M.B., and
M.M., and a sixth witness, S.M. Despite John’s request, the
Panel did not interview K.B., K.S., M.H., or M.W. The Panel
recalled Jane twice and John once. During these follow-up
sessions, the Panel asked some questions Jane and John had
suggested. It also provided them with oral summaries of other




                               11
witnesses’ testimony. After hearing these summaries, John
alleged several errors in the witnesses’ testimony. He submitted
additional documents at the meeting, and later e-mailed several
additional points. The Panel did not accept the additional
information John e-mailed after the meeting.
             The Panel found that a preponderance of the
evidence showed that John committed Sexual Assault–Category I
when he inserted his finger and penis into Jane’s vagina, and
Sexual Assault–Category II when he touched Jane’s vagina. The
Panel based its decision on Jane’s account of the incident, which
it deemed credible and consistent throughout the proceedings. It
also found corroboration for Jane’s account: M.H. said Jane told
her that she and John engaged in sexual activity. M.H. also told
that information to M.W., who said she confronted John about it
later at the party.
             The Panel concluded that Jane’s initial reluctance to
refer to the incident with John as “rape” or “sexual assault” did
not render her account incredible. Victims often feel shame after
an assault, and may even take responsibility for it. And as
evidenced by her request to M.H. to not tell M.W. about what had
happened, Jane was concerned about how the incident might
impact her relationship with M.W.
             The Panel did not find John credible. When M.W.
asked him about his encounter with Jane after hearing about it
from M.H., John did not tell M.W. that he could not have had sex
with Jane because they were never alone. John did not dispute
the timeline Jane provided, which showed a window where the
two could have been alone together. Nor did he confront Jane
about her statements that they had engaged in sexual activity.




                               12
             Moreover, John’s witnesses did not corroborate his
account of the evening. J.E. was not with John during the entire
party. He did not see a text message in which Jane allegedly
asked John to “hook up.” He said that John only spoke about
that message after his meeting with Cleek.
             M.M.’s statement that he was with John during the
entire party was not believable. K.S. saw both of them at the
party, but did not see them together. M.M. was also unaware
that M.W. asked John about having sex with Jane while they
were at the party, even though they were purportedly together.
             Finally, John’s denials of having a sexual encounter
with Jane were inconsistent. Initially he said he did not want to
ruin his relationship with his girlfriend. Later he said he and
Jane were never alone.
             The Panel suspended John through the end of the
spring 2018 semester. John appealed, alleging procedural errors
and excessive sanctions. The Vice President for Student Life
summarily denied John’s appeal.
                       Trial court proceedings
             John challenged the Panel’s decision in a petition for
writ of administrative mandate. He claimed Westmont did not
provide a fair hearing and substantial evidence did not support
the Panel’s decision.
             The trial court granted John’s petition, concluding
that Westmont denied him a fair hearing. The Panel had access
to more information bearing on witness credibility than was
provided to John, especially with respect to those witnesses
interviewed by Cleek who did not testify. The Panel did not give
John the notes recording the Panel’s questions and witnesses’
responses, impeding his ability to respond to the evidence against




                                13
him. And John had no ability to question the details of witnesses’
testimony, even indirectly.
             The trial court did not reach the issue of whether
substantial evidence supported the Panel’s substantive decision.
It ordered the Panel to set aside its decision and vacate the
sanctions imposed. It ordered Westmont to conduct a new
hearing in which John could “hear the evidence presented against
him in some appropriate manner that [John] would be able
adequately to respond,” and to “permit [John] to participate, at
least indirectly, in the questioning of witnesses.” It also barred
Cleek from participating as an adjudicator.
                            DISCUSSION
                    Scope and standard of review
             If a private college has a procedure for conducting
sexual misconduct disciplinary proceedings, an accused student
may challenge the outcome of the proceedings in a petition for
writ of administrative mandate. (Doe v. University of Southern
California (2016) 246 Cal.App.4th 221, 237, fn. 9 (USC I); see
§ 1094.5.) The scope of our review from the judgment on the
petition is the same as that of the trial court. (USC I, at p. 239.)
We review the adjudicatory body’s decision directly, and
independently determine whether the college provided the
accused with a fair hearing. (Ibid.; see § 1094.5, subd. (b).)
                       Fair hearing standards
             A college’s procedure for investigating and
adjudicating student sexual misconduct allegations is not
analogous to a criminal proceeding. (Doe v. Regents of University
of California (2016) 5 Cal.App.5th 1055, 1078 (UCSD).) The
college must nevertheless give the accused student notice of the
allegations against them and a fair hearing at which they may




                                14
attempt to rebut those allegations. (USC I, supra, 246
Cal.App.4th at p. 240.) The common law requirements for a fair
hearing at a private college “mirror the due process protections at
public universities.” (Doe v. Allee (2019) 30 Cal.App.5th 1036,
1061 (Allee).) These requirements are “‘flexible’ and entail no
‘rigid procedure.’” (Id. at p. 1062.)
               A fair hearing strives to balance three competing
interests: The accused student seeks “‘“to avoid unfair or
mistaken exclusion from the educational process.”’” (Doe v.
Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1066
(CMC).) The college tries to provide a safe environment for all of
its students. (Allee, supra, 30 Cal.App.5th at p. 1063.) The
alleged victim—who often “‘lives, works, and studies on a shared
college campus’” with the accused—wants to safeguard their own
well-being. (CMC, at p. 1066, alterations omitted.)
               These competing interests “must be addressed in
light of the nature of a [college] and the limits of its resources.”
(Allee, supra, 30 Cal.App.5th at p. 1063.) A college’s primary
purpose is education. (UCSD, supra, 5 Cal.App.5th at p. 1078.)
Hearing requirements that are too formal and rigid divert
resources and attention from that purpose. (Ibid.) Accordingly,
“all the safeguards and formalities of a criminal trial” are not
required. (Ibid.) “‘Although [a college] must treat students
fairly, it is not required to convert its classrooms into
courtrooms.’ [Citation.]” (Ibid.)
               “[N]o particular form of student disciplinary hearing
is required under California law.” (UCSD, supra, 5 Cal.App.5th
at p. 1078.) Recent cases have described the contours of what a
fair hearing requires where, as here, the case turns on witness
credibility: At a minimum, the college must comply with its own




                                15
policies and procedures. (Ibid.) Those procedures must provide
the accused student with a hearing before a neutral adjudicatory
body. (Allee, supra, 30 Cal.App.5th at p. 1069.) The accused
must be permitted to respond to the evidence against them. (Id.
at p. 1062; Doe v. Regents of University of California (2018) 28
Cal.App.5th 44, 57-59 (UCSB); USC I, supra, 246 Cal.App.4th at
p. 246.) The alleged victim and other critical witnesses must
appear before the adjudicatory body in some form—in person, by
video conference, or by some other means—so the body can
observe their demeanor. (Allee, at p. 1069; Doe v. University of
Southern California (2018) 29 Cal.App.5th 1212, 1232-1237 (USC
II); CMC, supra, 25 Cal.App.5th at pp. 1070-1073.) This is
because “‘the opportunity to question a witness and observe
[their] demeanor while being questioned can be just as important
to the trier of fact as it is to the accused.’ [Citation.]” (CMC, at p.
1069.) “Recognizing the risk that an accusing witness may suffer
trauma if personally confronted by an alleged assailant at a
hearing, [the USC I court observed] 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.’ [Citation.]” (Allee, at p. 1066.) It is not necessary to
place the alleged victim and the accused in the same room.
(CMC, at p. 1073.)
             The college must provide the accused student with
the names of witnesses and the facts to which each testifies.
(UCSB, supra, 28 Cal.App.5th at pp. 57-59; UCSD, supra, 5
Cal.App.5th at pp. 1102-1103; USC I, supra, 246 Cal.App.4th at
pp. 247-248.) The accused must be able to pose questions to the
witnesses in some manner, either directly or indirectly, such as




                                  16
through the adjudicatory body. (Allee, supra, 30 Cal.App.5th at
p. 1069; USC II, supra, 29 Cal.App.5th at pp. 1237-1238; UCSB,
at pp. 57, 60; CMC, supra, 25 Cal.App.5th at p. 1070; UCSD, at p.
1084.) The body need not ask every question proposed by the
accused. (CMC, at p. 1073.)
                The Panel denied John a fair hearing
             The procedure Westmont employed here violated its
own internal policies and denied John the opportunity to fully
respond to the evidence against him. First, the Panel did not
hear testimony from three critical witnesses—K.S., M.H., and
M.W.—yet it relied on portions of their statements to corroborate
Jane’s account or to impeach the credibility of John and his
supporting witnesses. Second, the information and documents
the Panel disseminated—Cleek’s investigative reports and oral
summaries of witness testimony—did not adequately appraise
John of the evidence against him. Finally, John had little
opportunity to pose questions for Jane or other witnesses because
the Panel withheld information from him and did not recall
witnesses for follow-up questions.
                         1. Critical witnesses
             “‘Oral testimony of witnesses given in the presence of
[an adjudicatory body] is valued for its probative worth on the
issue of credibility, because such testimony affords the [body] an
opportunity to observe the demeanor of witnesses.’ [Citation.]”
(USC II, supra, 29 Cal.App.5th at p. 1233.) Thus, “‘“some form of
presence”’” is required to enable the body to determine whether a
witness is “‘“worthy of belief.”’ [Citation.]” (CMC, supra, 25
Cal.App.5th at p. 1069.) This is especially true where, as here,
“there is no corroborating physical evidence to assist the [body] in
resolving conflicting accounts.” (USC II, at p. 1234.)




                                17
             Here, the Panel relied on K.S.’s statement to Cleek
that she did not see John and M.M. together at the party to
refute M.M.’s testimony that he was with John the entire
evening. It relied on M.H.’s statement to Cleek that Jane told
her of the alleged sexual encounter with John to bolster Jane’s
testimony that the encounter occurred. It relied on M.W.’s
statement to Cleek that she confronted John about the alleged
encounter at the party to highlight John’s failure to tell her he
was never alone with Jane. It also relied on M.W.’s statement to
refute M.M.’s testimony, concluding that he would have
overheard M.W. confront John if he were with him the entire
evening. Why the Panel deemed the nontestifying witnesses
more credible than their testifying counterparts—without
observing their demeanor—is not clear from the record.
             Nor is it clear why the Panel relied on selected
portions of the nontestifying witnesses’ statements while
rejecting or ignoring other portions. For example, despite
crediting other portions of their statements, the Panel apparently
rejected K.S.’s, M.H.’s, and M.W.’s statements that Jane
appeared to have been under the influence of alcohol at the
party—statements that contradicted Jane’s testimony. We
highlight these portions of the nontestifying witnesses’
statements not to impugn Jane’s credibility or discredit her
accusation, but to underscore the seemingly arbitrary method by
which the Panel selected which nontestifying witnesses’
statements it deemed credible—despite its members’ inability to
observe these witnesses to assess their credibility on disputed
factual issues.
             Cleek’s dual roles as an investigator and adjudicator
compounds our concerns with the Panel’s credibility




                               18
determinations. “‘[T]he combination of investigative and
adjudicative functions does not, without more,’” deprive a student
accused of sexual misconduct of a fair hearing. (USC II, supra,
29 Cal.App.5th at p. 1235, fn. 29.) But where critical witnesses
provide inconsistent accounts of an alleged incident, independent
evaluation of witness credibility is “pivotal to a fair adjudication.”
(Allee, supra, 30 Cal.App.5th at p. 1069.)
             Here, all three Panel members were finders of fact.
All three were thus required to hear from critical witnesses
before choosing to credit certain accounts over others. (CMC,
supra, 25 Cal.App.5th at pp. 1072-1073.) That did not happen.
Instead, it appears that the Panel “simply approve[d] the
credibility determinations of one [Panel] member who was also
the investigator”—Cleek. (Id. at p. 1073.)
             We conclude that the Panel deprived John of a fair
hearing when it credited certain portions of nontestifying
witnesses’ statements based solely on Cleek’s investigative
reports. (CMC, supra, 25 Cal.App.5th at pp. 1072-1073.) Which
parts of the nontestifying witnesses’ statements are more worthy
of belief than other parts and which of those witnesses are more
worthy of belief than those who testify cannot be determined on a
cold record. (Fitch v. Commission on Judicial Performance (1995)
9 Cal.4th 552, 556 [noting difficulties in evaluating witness
credibility on a cold record].) Rather, each adjudicator must hear
from critical witnesses—in person, by videoconference, or by some
other method—before assessing credibility. (USC II, supra, 29
Cal.App.5th at pp. 1232-1237.) That principle was violated here.
                  2. Information provided to John
             “There is no formal right to discovery in student
conduct review hearings.” (UCSD, supra, 5 Cal.App.5th at p.




                                 19
1095.) But Westmont’s sexual assault policies and procedures
required it to turn over Cleek’s interview notes. The policies
permitted John to access all evidence Cleek discovered or
developed during his investigation, yet Cleek omitted some of his
questions and the witnesses’ answers from his reports. This
limited the scope of questions John could propose for the
witnesses. Cleek, in contrast, knew the full scope of information
available from the witnesses. That enabled him—and through
him, the Panel—to assess credibility based on a fuller array of
information than was available to John. Those credibility
determinations were especially significant here, where multiple
witnesses contradicted each other on material points.
             John’s information deficit grew as the student
conduct meeting progressed. A Westmont staff member took
detailed notes that recorded the Panel’s questions and witnesses’
responses, but the Panel did not provide these to John. Instead,
it gave John oral summaries which were significantly less
detailed than the recorded notes, restricting his ability to respond
to the testimony and propose follow-up questions for Jane and
other witnesses.
             Fair hearing requirements “do not allow [a college’s
adjudicatory body] to rely on evidence that has never been
revealed to the accused” student when it assesses witness
credibility. (USC I, supra, 246 Cal.App.4th at p. 247.) But the
Panel did just that. It had access to Cleek’s interviews and the
more detailed notes of witnesses’ testimony, neither of which was
made available to John. That information imbalance hindered
John’s ability to respond to the evidence against him.
             We do not suggest that the Panel was required to
record witness testimony verbatim or permit John’s presence




                                20
during the testimony; “there are alternate ways of providing
accused students with the opportunity to hear the evidence being
presented against them.” (USC I, supra, 246 Cal.App.4th at p.
245, fn. 12.) Nor do we believe that fairness principles absolutely
bar Cleek from serving on the Panel. (USC II, supra, 29
Cal.App.5th at p. 1235, fn. 29; see CMC, supra, 25 Cal.App.5th at
pp. 1072-1073 [impliedly approving the investigator serving as
one of several adjudicators].) We simply hold that where the
outcome of a sexual misconduct disciplinary proceeding turns on
witness credibility, an adjudicatory body cannot base its
credibility determinations on information in its possession that is
not made available to the accused. (UCSB, supra, 28 Cal.App.5th
at p. 59.)
                3. Opportunity to question witnesses
             A student accused of sexual misconduct is not
entitled to directly cross-examine the alleged victim or other
witnesses who testify at a sexual misconduct hearing. (UCSD,
supra, 5 Cal.App.5th at p. 1084; USC I, supra, 246 Cal.App.4th at
p. 245.) Cross-examination is “fraught with potential
drawbacks,” including traumatizing or intimidating the alleged
victim and “‘escalating or perpetuating a hostile environment.’
[Citation.]” (USC I, at p. 245, fn. omitted.) Nevertheless, where
a college’s decision hinges on witness credibility, the accused
must be permitted to pose questions to the alleged victim and
other witnesses, even if indirectly. (Allee, supra, 30 Cal.App.5th
at p. 1066; USC II, supra, 29 Cal.App.5th at p. 1237; CMC, supra,
25 Cal.App.5th at p. 1070; UCSD, at p. 1084.)
             The Panel denied John that right. First, John could
not propose questions for certain critical witnesses relied on by
the Panel for its decision because they did not testify at the




                                21
conduct meeting. (See Allee, supra, 30 Cal.App.5th at p. 1066
[right to question witnesses other than alleged victim].) Second,
John was unable to challenge the discrepancies he saw in the
testifying witnesses’ responses to the Panel’s questions. (Ibid.)
None of them, other than Jane, was recalled—notwithstanding
Westmont’s policy requiring witnesses to submit to follow-up
questions. And third, as set forth above, John did not have access
to Cleek’s interview notes or the notes taken during witnesses’
testimony—notwithstanding Westmont’s policy providing for
access to all evidence Cleek discovered during the investigation.
That impeded John’s ability to suggest questions that may have
impacted the Panel’s credibility determinations. (UCSB, supra,
28 Cal.App.5th at p. 58.)
             If Westmont proceeds with a new disciplinary
proceeding, it must: (1) allow John to access Cleek’s notes, as
required by its policies and procedures; (2) provide him with any
notes recording the Panel’s questions and witnesses’ responses
during the student conduct meeting; and then (3) either permit
him to submit a list of questions for the witnesses (USC II, supra,
29 Cal.App.5th at p. 1238; UCSD, supra, 5 Cal.App.5th at p.
1085) or fashion some other mechanism for him to suggest
questions the Panel can ask (Allee, supra, 30 Cal.App.5th at p.
1069; CMC, supra, 25 Cal.App.5th at p. 1070). This does not
require Westmont to allow John, his attorney, or his advisor to
cross-examine Jane or any other witness directly. (Allee, at p.
1066 [highlighting alternative mechanisms]; CMC, at p. 1070
[same]; USC I, supra, 246 Cal.App.4th at p. 245, fn. 12 [same].)
Nor does it require the Panel to ask all of the questions John
suggests. (CMC, at p. 1073 [the Panel may “exclude or rephrase
questions as appropriate and ask its own questions”].) Fairness




                                22
simply requires John’s material participation in submitting
proposals for the questioning of critical witnesses.
                             Conclusion
             We are mindful that sexual assaults are prevalent on
college campuses, and that many victims are reluctant to report
those assaults to college officials. (See, e.g., Behre, Ensuring
Choice and Voice for Campus Sexual Assault Victims: A Call for
Victims’ Attorneys (2017) 65 Drake L.Rev. 293, 316-319;
DeMatteo et al., Sexual Assault on College Campuses: A 50-State
Survey of Criminal Sexual Assault Statutes and Their Relevance
to Campus Sexual Assault (2015) 21 Psych. Pub. Pol. & L. 227,
228-229.) And burdensome hearing processes can “‘“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.)
             Like our colleagues in Division One, “we do not wish
to limit the universe of ideas on how to accomplish” fair hearings
to accommodate the competing interests of accused students,
victims, and colleges. (CMC, supra, 25 Cal.App.5th at p. 1073.)
But compelling colleges to adhere to basic principles of fair
hearings—and their own written policies—will lead to an
increasing number of decisions upheld by the courts—
particularly when the required procedures are not “excessively
burdensome.” (Ibid.) That benefits students accused of sexual
misconduct, victims, and colleges alike.
                           DISPOSITION
             The judgment setting aside Westmont’s
determination and sanctions against John and directing
Westmont to conduct further proceedings is affirmed. Cleek shall




                               23
not be prohibited from acting as an adjudicator so long as John is
provided with fair hearing proceedings consistent with the views
expressed herein. John Doe shall recover his costs on appeal.
            CERTIFIED FOR PUBLICATION.




                                     TANGEMAN, J.
We concur:



             GILBERT, P. J.



             PERREN, J.




                                24
                Thomas Pearce Anderle, Judge

           Superior Court County of Santa Barbara

               ______________________________

           Musick, Peeler & Garrett and Adam L. Johnson, for
Defendant and Appellant.

            Hathaway Parker, Mark M. Hathaway and Jenna E.
Parker, Plaintiff and Respondent.
