Filed 8/8/18
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION ONE


 JOHN DOE,                            B281722

         Plaintiff and Appellant,     (Los Angeles County
                                      Super. Ct. No. BS158692)
         v.

 CLAREMONT MCKENNA
 COLLEGE,

         Defendant and Respondent.


     APPEAL from a judgment of the Superior Court of
Los Angeles County, Mary H. Strobel, Judge. Reversed and
remanded with directions.
     Scheper Kim & Harris, Marc S. Harris and
Alexander H. Cote for Plaintiff and Appellant.
     O’Melveny & Myers, Apalla U. Chopra, Jason A. Orr,
and Daniel J. Tully for Defendant and Respondent.
                      ____________________
       John Doe appeals from the trial court’s denial of his
petition for a writ of administrative mandate. John sought to set
aside his one-year suspension and other discipline imposed by
respondent Claremont McKenna College (CMC) after a CMC
review committee (the Committee) found that John had
nonconsensual sex with Jane Roe, a student at a neighboring
college.1 John argues that he was deprived of a fair hearing
because Jane did not appear, thus denying John and the
Committee an opportunity to question her and assess her
credibility. John further claims that CMC did not provide
adequate notice, CMC’s investigator failed to interview a witness
identified by John, and the Committee’s decision was not
supported by substantial evidence.
       We hold that where, as here, John was facing potentially
severe consequences and the Committee’s decision against him
turned on believing Jane, the Committee’s procedures should
have included an opportunity for the Committee to assess Jane’s
credibility by her appearing at the hearing in person or by
videoconference or similar technology, and by the Committee’s
asking her appropriate questions proposed by John or the
Committee itself. That opportunity did not exist here.
Accordingly, we reverse the judgment. We do not reach John’s
other challenges to the fairness of the hearing or the judgment.




     1 The parties refer to the individuals involved by the
pseudonyms “John Doe” and “Jane Roe,” and we shall do the
same. For clarity, we use “John” and “Jane” throughout the
remainder of the opinion.



                                2
                  FACTUAL BACKGROUND

      1.    CMC’s sexual misconduct policy
       CMC’s “Discrimination, Harassment, Sexual Harassment,
and Sexual Misconduct Policy” prohibits “sexual assault,” which
is defined as “any sexual intercourse, however slight, . . . that is
without consent or by force.” Under this policy, “[e]ffective
consent consists of an affirmative, conscious decision by each
participant to engage in mutually agreed-upon (and the
conditions of ) sexual activity.” Consent requires the parties to
“demonstrate a clear and mutual understanding of the nature
and scope of the act to which they are consenting and a
willingness to do the same thing, at the same time, in the same
way.” Consent is invalid “[i]n the absence of clear communication
or outward demonstration, . . . . Consent may not be inferred
from silence, passivity, lack of resistance, or lack of active
response.” Also, “[c]onsent may be withdrawn by any party at
any time,” and therefore “individuals choosing to engage in
sexual activity must evaluate [c]onsent in an ongoing manner
and communicate clearly throughout all stages of sexual activity.
Withdrawal of [c]onsent can be an expressed ‘no’ or can be based
on an outward demonstration that conveys that an individual is
hesitant, confused, uncertain, or is no longer a mutual
participant.”

      2.    The incident
       The following information is derived from the investigator’s
final report, the summaries of her interviews with John, Jane,
and various witnesses, and documentary evidence collected by
the investigator.




                                 3
       In the fall of 2014, John was a freshman at CMC and Jane
was a freshman at neighboring Scripps College. They had met
through a mutual friend and were casual acquaintances. During
a party at CMC on October 4, 2014, Jane called John and asked
him to meet her by a fountain, which he did. Both John and Jane
were drunk; according to Jane, John had encouraged her to drink
shots of vodka earlier in the evening, but John denied seeing
Jane that day before meeting her at the fountain. After talking
for a few minutes by the fountain, John and Jane began kissing,
and John invited Jane back to his dorm room.
       Once there, John and Jane kissed and undressed each
other. At some point John left the room to get condoms from
outside the resident advisor’s room. John and Jane attempted
sexual intercourse using a condom, but John could not maintain
an erection and the condom slipped off. Jane performed oral sex
to restore John’s erection. He put on another condom and they
tried again. They repeated this cycle several times, with John
losing his erection, the condom falling off, and Jane performing
oral sex to restore the erection. According to John, this continued
for about an hour; Jane estimated two hours.2
       The parties dispute what happened next. According to
Jane, John started getting rough and slamming his groin into
hers. She asked him to stop because it was painful. John
removed the condom and continued to penetrate her. Jane


      2  There is conflicting evidence as to how many times John
and Jane attempted sex. John told the investigator they had
used 10 condoms, and Jane texted John the day after the incident
stating that they had attempted intercourse more than 10 times.
But Jane later told the investigator they had only tried three
times, at which point they ran out of condoms.



                                 4
struggled to get out from under him but could not. She begged
him to stop, but John pinned her down and continued to have sex.
Finally he passed out on top of her, at which point she got out
from under him and left the room.
       According to John, he and Jane mutually agreed to proceed
without a condom because of the difficulty he was having
maintaining an erection. John asked Jane if she wanted to try
having sex without a condom and she said, “ ‘yes, we might as
well, just don’t come inside me,’ ” although John told the
investigator he could not recall the specific words. They tried
numerous sexual positions without the condom. Jane never
objected, although John thought she seemed tired and not “super
into it” because she had been making most of the effort to
maintain his erection. When they finished, Jane performed oral
sex again; John stopped her because he could not get an erection.
Jane asked John if they were going to be “ ‘friends with benefits’ ”
and he said yes. She got dressed and left.

      3.    Jane’s and John’s post-incident conduct
       Immediately after leaving John’s room, Jane contacted
several schoolmates to go with her to purchase a Plan B
contraceptive. The investigator interviewed several of those
schoolmates, who reported that Jane was “distraught,” “freaking
out,” “panicked,” “distressed,” and “worried.” Jane told them she
had made a mistake by having unprotected sex. Jane did not tell
them that she had been sexually assaulted.
       The next day, October 5, 2014, John and Jane exchanged
text messages. John claimed not to remember what had
happened the night before, asking if Jane had come back to his
room with him. Jane said yes, and “we should probably talk
about that at some point today.” John asked, “Did I assault you?”



                                 5
Jane said “No haha you did not” but said they had not used a
condom. John offered to buy her a pregnancy test. John told the
investigator he did in fact remember the previous night, but
pretended not to in order to “distance himself from having sex
with” Jane so as to avoid forming a bond with her.
      John and Jane met later that day. John gave Jane
pregnancy tests and she gave him a comic book as a gift. Later
on they exchanged further texts; they discussed comic books, and
Jane said they had had sex more than 10 times the night before
and she was bruised and sore. At 1:30 the next morning, Jane
texted John again saying she could not walk and needed to go to
the campus medical center. John asked if he had hit her, and she
replied he was “a bit rough.” When the investigator later asked
John about Jane’s injuries, he admitted that she was hurt but did
not know for certain how it had happened. He “d[id] not think he
was aggressive,” but thought perhaps he had gotten too rough
when performing oral sex or “fingering her.”
      On October 6, 2014, Jane went to the campus medical
center. Jane submitted a form stating that the cause of her
injury was “excessive sex over prolonged period of [time] in a
dorm room at CMC.” According to Jane, the doctors asked her if
she had been sexually assaulted but she denied it. The medical
center referred her to urgent care. Jane said the doctor at urgent
care told her she had vaginal bleeding due to friction and it
appeared the sex had been rough. Jane did not tell the doctor she
had been assaulted. The doctor told her to stay in bed. Jane’s
written “Patient Plan” from this visit assessed her with a




                                6
“Menstrual disorder NEC (626.8).”3 The document stated, “Exam
is unremarkable. [¶] Recommend pelvic rest until symptoms
resolve.”
      Jane later texted a friend that “[T]his is gonna ma[k]e a
[g]ood story one da[y].” She then texted, “[I] just want John.”
Then, “Haha but I really don’t know if that’s gonna happen. I can
hope but I don’t want to get my hopes up. Hope for the best but
expect the worst.”
      After returning from urgent care, Jane texted John and
asked him to come over so she could “explain everything.” Jane
did not tell John at that meeting that he assaulted her. On
October 7, they exchanged more texts discussing superhero
movies and television programs. Also that day, Jane exchanged
texts with a schoolmate who commented that John was cute, to
which Jane responded “[H]e’s so HOT.” Jane told the
investigator she was pretending to be romantically interested in
John so her friends would not think she had been promiscuous for
“hook[ing] up without emotions.”
      On October 9, 2014, Jane tried to meet up with John at a
party but he left and did not return. She texted him about
meeting the next day but he asked for a rain check. Jane told the
investigator this upset her.
      Later that month, John told a group of friends about Jane
seeking medical treatment after they had had sex, and jokingly


      3  This appears to be a reference to the International
Classification of Diseases, Ninth Revision, Clinical Modification,
6th Edition (ICD-9-CM). Section 626 covers “Disorders of
menstruation and other abnormal bleeding from female genital
tract.” (1 ICD-9-CM Table of Diseases and Injuries, § 626.)
626.8 is the diagnosis code for “Other.” (Ibid.)



                                 7
referred to himself as “bone hammer.” At some point he told
friends that he “ ‘literally fucked [Jane] so hard that he put her in
the hospital.’ ” Jane heard about the “bone hammer” nickname
sometime in late October, including from John himself. Mutual
friends continued to use the nickname around her.
       In January 2015, John texted Jane and asked if she could
send him the form she had filled out at the medical center
indicating that she had been injured from excessive sex. John
said his friends had not believed him when he told them. Jane
sent an image of the form to him. John and Jane both
commented to each other that it was “hilarious.”
       Jane told the investigator she did not want to return to
school after winter break, and stayed in bed for weeks after
arriving.
       Around Valentine’s Day 2015, two of John’s schoolmates
sent him a fake Valentine’s gram purportedly signed with Jane’s
name. The poem on the card read “Roses are red, Violets are
blue, You broke my vagina, so FUCK YOU.” John forwarded the
gram to Jane, thinking she had sent it. Jane was very upset, and
told two of her friends what had happened with John on October
4, including that John had continued to have sex with her after
she had told him to stop. One of the friends encouraged Jane to
report the incident, but she did not at that time. Instead, Jane
wanted to talk to John and his schoolmates who sent the
Valentine’s gram.
       On March 4, 2015, Jane texted John and asked to meet
with him the next day at 6:30 p.m. John asked if they could meet
in the morning instead because he was busy later and would
“rather talk when I’m fresh.” This further upset Jane. On




                                 8
March 5, 2015, she reported John to the Scripps College Deputy
Title IX Coordinator.

               PROCEDURAL BACKGROUND

     1.    The investigation
       On March 10, 2015, CMC in conjunction with Scripps
initiated an investigation pursuant to CMC’s “Civil Rights
Grievance Procedures.” CMC and Scripps retained a third-party
investigator, Katherine J. Edwards. CMC notified John in a
letter that Jane had alleged that he had committed sexual
assault. The letter included links to CMC’s “Discrimination,
Harassment, Sexual Harassment, and Sexual Misconduct Policy”
and its grievance procedures.
       The investigator interviewed Jane on March 18, 2015, for
two hours and 40 minutes, and John on March 23 for
approximately two hours. John was accompanied by his
attorney. The investigator conducted multiple follow-up
interviews of John and Jane. The investigator also interviewed
13 other witnesses, all schoolmates of John or Jane. Each
witness reviewed the investigator’s written summary of his or her
interview and was permitted to make corrections; those
corrections were noted in the original summary so a reader could
see what had been changed. In addition to the interviews, the
investigator gathered approximately 85 pages of documents,
including copies of text messages, from John, Jane, and other
witnesses. John also provided a four-page timeline of his
interactions with Jane.
       On May 2, 2015, the investigator provided the parties with
a preliminary investigative report (PIR) along with the interview
summaries and documentary evidence. Pursuant to CMC’s




                               9
grievance procedures, on May 8, John submitted a “Written
Request for Additional Investigation Steps.” (Boldface and some
capitalization omitted.) In the request he listed additional
questions for witnesses already interviewed, including Jane, and
asked that several new witnesses be interviewed, explaining the
relevance of each. John also asked that the investigator
interview him again on several topics, and requested additional
documentary evidence including Jane’s medical reports. Jane
submitted a response to the PIR correcting and clarifying certain
points but not requesting further investigative steps.
      In response to John’s requests, the investigator interviewed
one new witness and clarified a point raised by one of the 13
original witnesses, but did not grant any of the other requests.
The investigator did not ask Jane any of John’s questions. John
was granted an extension of time to submit additional evidence,
which he provided. CMC’s Chief Civil Rights Officer and Title IX
Coordinator then concluded that the investigation was complete,
and the investigator provided the parties with a final
investigative report (FIR) dated May 19, 2015. Apart from
describing the procedural steps that took place after the PIR was
issued, adding a slightly expanded summary of the parties’
claims, and attaching the new or updated interview summaries
resulting from John’s request for additional investigation, the
FIR was largely identical to the PIR.

      2.    CMC’s decision
       An “Investigation Findings and Review” meeting was
scheduled for May 22, 2015. Per CMC’s grievance procedures, at
this meeting a committee consisting of the investigator and two
“Community Representatives” selected from CMC’s faculty and
staff would evaluate the evidence and decide by majority vote



                               10
whether John had violated CMC’s sexual misconduct policy,
applying a preponderance-of-evidence standard. The procedures
allowed but did not require the parties to appear at the meeting
and make an oral statement to the Committee. The procedures
did not provide for any questioning by the Committee or the
parties.
      John and Jane both submitted written statements in
advance of the meeting. John also appeared before the
Committee at the meeting and gave an oral statement. Jane did
not appear at the meeting.
      Following the meeting, the Committee issued a written
decision finding that John had violated CMC’s sexual misconduct
policy by “engaging in non-consensual intercourse.” The
Committee found that John and Jane initially had engaged in
consensual sex using a condom,4 that Jane’s “words and actions”
indicated she did not wish to have sex without a condom, and
John “continued to penetrate [Jane] without protection in spite of
her objection.”
      The Committee stated that it “saw inconsistencies in the
words and actions of both parties,” and that “both parties
engaged in conduct that did not support their respective
positions.” The Committee therefore “gave more focus and
credence to the information that was consistent between both
parties and the information that directly related to what
transpired between the two parties during their sexual
encounter.” Ultimately, the Committee found “that the evidence


      4  The Committee concluded that John had not provided
Jane with alcohol “in order to facilitate a forced sexual encounter”
or that Jane was so intoxicated as to lack capacity to consent.



                                11
presented corroborated [Jane’s] allegations more than [John’s],”
and identified “several statements” made by John that the
Committee concluded “corroborated” Jane’s account. The
Committee found that John’s statement that he left the room to
obtain condoms from the resident advisor’s room “support[ed] the
assertion of a mutual agreement to engage in protected sex.” The
Committee noted that both parties stated that Jane had
performed oral sex to maintain John’s erection so they could
continue to engage in protected sex. The Committee found it
significant that John “could not clearly recall the words that
demonstrated the ‘mutual decision’ [to proceed without a condom]
nor could he describe [Jane’s] physical actions that supported
continuous consent.” The Committee also noted that John had
said he did not think Jane was “ ‘super into it’ ” which, the
Committee concluded, did not support John’s claim that Jane was
“actively engaged in the sexual activity.” Finally, the Committee
found that John’s later statement to friends that “ ‘he literally
fucked [Jane] so hard that he put her in the hospital’ ” supported
Jane’s allegation “that [John’s] conduct was rough.”
       The Committee addressed some further points in response
to John’s written statement. The Committee acknowledged that
“the medical reports do not fully corroborate [Jane’s] allegations
as to aspects of her injuries,” but found that her “attempt to seek
medical treatment” combined with John’s statement about
putting her into the hospital sufficiently “corroborated” her
account. As to Jane’s post-incident interactions with John, which
John argued were inconsistent with someone who had been
assaulted, the Committee did not feel these interactions “were of
such significance” to “negate[ ]” her claim that she withdrew
consent. The Committee acknowledged that the Valentine’s Day




                                12
prank “may have been an impetus in [Jane’s] decision to file her
grievance,” but this was not inconsistent with her claim that she
did not consent to unprotected sex.
      John appealed the decision under CMC’s procedures. His
appeal was denied. John was suspended from CMC for one year
and placed on probation for an additional year. He was ordered
to undergo psychological counseling, prohibited from consuming
alcohol at CMC until his 21st birthday, and barred from the
Scripps campus unless granted permission by the Title IX
coordinators at CMC and Scripps. He was instructed to have no
contact with Jane until his graduation or permanent separation
from CMC.

      3.    Petition for writ of administrative mandate
      John filed a petition for a writ of administrative mandate in
the superior court seeking to set aside CMC’s sanctions against
him. The trial court denied the petition. The trial court found
that John had received a fair hearing. The trial court found that
notice was adequate, John had no right to cross-examine
witnesses, John had an opportunity to review and respond to the
witness statements and other evidence, and he failed to show
prejudice from the investigator’s decision not to grant his
requests for additional investigative steps. The trial court
rejected the argument that the investigator was biased by being a
member of the Committee as well as an investigator. The trial
court also found the Committee’s decision was supported by
substantial evidence, including Jane’s statements and other
evidence tending to support her version of events while
discrediting John’s.
      The trial court entered judgment on December 15, 2016.
John filed a motion for a new trial in light of the Fourth District



                                13
Court of Appeal’s decision in Doe v. Regents of University of
California (2016) 5 Cal.App.5th 1055 (Regents), issued after the
trial court had denied John’s writ.5 The trial court denied the
motion. The court concluded that, under Regents, “procedural
fairness . . . required an opportunity for [John] to directly or
indirectly question Jane,” and CMC provided such an opportunity
by allowing John to submit questions for Jane to the investigator.
Although the investigator had exercised her discretion not to ask
any of the questions, the trial court found that John had failed to
show any prejudice because the questions were irrelevant, of
marginal value, or concerned issues already addressed
adequately in the record.
       John timely appealed.

                    STANDARD OF REVIEW
       “ ‘The remedy of administrative mandamus . . . applies to
private organizations that provide for a formal evidentiary
hearing.’ ” (Doe v. University of Southern California (2016)
246 Cal.App.4th 221, 237, fn. 9 (USC).) In cases that do not
“ ‘involv[e] a fundamental vested right,’ ” we review the
administrative decision (in this case, the Committee’s decision)
rather than the trial court’s decision, “ ‘applying the same
standard of review applicable in the trial court.’ ” (Id. at p. 239.)
This standard has been applied to college disciplinary decisions
involving sexual misconduct. (See ibid.; Regents, supra,
5 Cal.App.5th at p. 1072.)



      5  John also filed a motion for reconsideration, which the
trial court denied as untimely because judgment had already
been entered.



                                 14
       When reviewing the denial of a petition for writ of
administrative mandate, we determine “whether the [Committee]
has proceeded without, or in excess of, jurisdiction; whether there
was a fair trial; and whether there was any prejudicial abuse of
discretion.” (Code Civ. Proc., § 1094.5, subd. (b)6; USC, supra,
246 Cal.App.4th at p. 239.) In this context, “fair trial” refers to a
fair administrative hearing. (Regents, supra, 5 Cal.App.5th at
p. 1073.) We review the fairness of the proceedings de novo, and
the substantive decision for substantial evidence. (Ibid.)

                          DISCUSSION
      John argues that he was denied a fair hearing because
“neither John nor the Committee [was] able to ask any questions
of Jane, and therefore, the Committee had no basis for evaluating
her credibility.” We agree that Jane’s not appearing at the
hearing either in person or via videoconference or other means
deprived John of a fair hearing where John faced potentially
serious consequences and the case against him turned on the
Committee’s finding Jane credible.7 Because this issue is
determinative, we do not reach John’s other challenges to the
fairness of the hearing or the judgment.




      6 Further unspecified statutory references are to the
Code of Civil Procedure.
      7  CMC argues that John forfeited this issue by not raising
it in the trial court. John did raise it in his motion for a new
trial. Regardless, it is a purely legal question that may be
raised for the first time on appeal. (People v. Shrier (2010)
190 Cal.App.4th 400, 419.)



                                 15
   I.    Relevant Case Law
       “[C]ase law does not plainly elucidate the specific
components of a fair hearing” in a student disciplinary
proceeding. (Regents, supra, 5 Cal.App.5th at p. 1078.)
In determining those components, courts have recognized
competing concerns. On the one hand, an accused student
has an interest “ ‘to avoid unfair or mistaken exclusion from
the educational process, with all of its unfortunate
consequences. . . . Disciplinarians, although proceeding in utmost
good faith, frequently act on the reports and advice of others; and
the controlling facts and the nature of the conduct under
challenge are often disputed. The risk of error is not trivial, and
it should be guarded against if that may be done without
prohibitive cost or interference with the educational process.’ ”
(USC, supra, 246 Cal.App.4th at p. 240.) On the other hand, “ ‘[a]
formalized hearing process would divert both resources and
attention from a university’s main calling, that is education.
Although a university must treat students fairly, it is not
required to convert its classrooms into courtrooms.’ ” (Regents,
supra, at p. 1078.) Disciplinary proceedings involving sexual
misconduct must also account for the wellbeing of the alleged
victim, who often “live[s], work[s], and stud[ies] on a shared
college campus” with the alleged perpetrator. (USC, supra,
at p. 245; see also Regents, supra, at p. 1085 [analyzing
disciplinary procedures by “[b]alancing [the university’s] desire to
protect victims of sexual misconduct with the accused’s need to
adequately defend himself or herself ”].)
       These competing concerns have shaped the jurisprudence
addressing an accused student’s ability to confront and question a
complaining witness in university sexual misconduct proceedings.




                                16
       The first California case to discuss it was USC, in which a
student disciplined by a university for sexual assault challenged
the proceedings under section 1094.5 on a number of bases,
including that he was not “allowed to cross-examine witnesses or
otherwise test the credibility, knowledge, and recollection of the
witnesses against him.” (USC, supra, 246 Cal.App.4th at p. 240.)
In that case, the university had not provided a hearing at all, but
instead conducted an “investigation by interviewing witnesses
and writing its report recommending penalties,” which the
student then appealed to an “Appeals Panel.” (Ibid.)
       The court “ ‘reject[ed] the notion that as a matter of law
every administrative appeal . . . must afford the [accused] an
opportunity to confront and cross-examine witnesses.’ ” (USC,
supra, 246 Cal.App.4th at p. 245.) In cases “addressing sexual
assault involving students who live, work, and study on a shared
college campus, cross-examination is especially fraught with
potential drawbacks,” including the concern that “ ‘[a]llowing an
alleged perpetrator to question an alleged victim directly may be
traumatic or intimidating, thereby possibly escalating or
perpetuating a hostile environment.’ ” (Ibid.)
       In a footnote, the USC court noted “alternate ways of
providing accused students with the opportunity to hear the
evidence being presented against them without subjecting alleged
victims to direct cross-examination by the accused,” such as
“placing a screen between the accuser and the accused,” or having
the parties hear witness testimony over closed-circuit television
in a separate room or on a recorded tape. (Id. at p. 245, fn. 12.)
But the court ultimately did not rule on the question of cross-
examination, instead holding that the student was entitled to
writ relief because the university failed to provide adequate




                                17
notice of the charges, had denied him access to the evidence
against him unless he affirmatively requested it in writing, and
had not provided the student “any opportunity to appear directly
before the decisionmaking panel to rebut” that evidence; further,
the disciplinary decision was not supported by substantial
evidence. (Id. at pp. 248, 253.)
      Regents is the second and, as far as we have discovered, the
only other California case addressing whether a fair hearing
includes the ability of a student accused of sexual misconduct to
question the complaining witness.8 In Regents, the university
held a hearing at which both the accused student and the
complaining witness appeared, although they were separated by
a screen and could not see one another. (Regents, supra,
5 Cal.App.5th at pp. 1081, 1093.) The university’s procedures
allowed the parties to “provide written questions to the review
panel chair or review officer to be asked of the other party or
witnesses at the chair’s or review officer’s discretion.” (Id. at


      8  Regents concerned a public university “ ‘subject to federal
constitutional guarantees,’ ” (Regents, supra, 5 Cal.App.5th at
p. 1078), whereas CMC, as a private college, generally is not
subject to the constitutional requirements of procedural due
process. (See Shoemaker v. County of Los Angeles (1995)
37 Cal.App.4th 618, 632.) Due process jurisprudence
nevertheless may be “instructive” in cases determining fair
hearing standards for student disciplinary proceedings at private
schools. (USC, supra, 246 Cal.App.4th at p. 245.) In citing to
such jurisprudence, however, we do not intend to suggest that the
fair hearing requirements under section 1094.5 are in all ways
equivalent to those under the federal and California
Constitutions, a question we need not address to resolve this
appeal.



                                18
p. 1081.) The accused student submitted 32 written questions for
the complaining witness, of which the panel chair asked nine.
(Id. at p. 1067.) On appeal, the student argued that the
university’s procedures “ ‘completely eliminated [his]
significant right’ ” to cross-examine the complaining witness.9
(Id. at p. 1084.) He also “implie[d] his ability to cross-examine
[the complaining witness] was unfairly hampered” by the
separating screen, which the student claimed prevented him
and the panel from viewing the witness during her testimony.
(Id. at p. 1093.)
       The court concluded that requiring the student to question
the complainant indirectly through the panel did not render the
hearing unfair. The court noted that “[t]here is no requirement
under California law that, in an administrative hearing, an
accused is entitled to cross-examine witnesses,” but “in the
instant matter, where the Panel’s findings are likely to turn on
the credibility of the complainant, and respondent faces very
severe consequences if he is found to have violated school rules,
we determine that a fair procedure requires a process by which
the respondent may question, if even indirectly, the
complainant.” (Regents, supra, 5 Cal.App.5th at p. 1084.) The
court repeated the concern in USC that direct cross-examination
could be traumatic or intimidating for the complaining witness;
given the need to “[b]alanc[e] [the university’s] desire to protect
victims of sexual misconduct with the accused’s need to



      9  In Regents, the trial court granted the student’s writ
petition, so the university was the appellant with the student
arguing in defense of the trial court’s granting of the writ.
(Regents, supra, 5 Cal.App.5th at pp. 1058-1059.)



                                19
adequately defend himself or herself,” the court concluded that
“the mechanism [the university] provided [the accused student]
here, does not, simply as a procedural concern, cause us to
question the fairness of the hearing.” (Id. at p. 1085.) The court
then analyzed whether the panel chair’s decision not to ask all of
the student’s requested questions was prejudicial and concluded
it was not. (Id. at pp. 1084-1093.)
       The court also rejected the claim that the screen concealing
the parties from one another made the hearing unfair, noting
that such a method “limit[ed] the potential of trauma to the
complainant” and “did not prejudice or otherwise hamper [the
student’s] ability to cross-examine [the complainant] to the point
that it made the hearing unfair.” (Regents, supra, 5 Cal.App.5th
at p. 1093.) Although the student claimed the screen also
concealed the complainant from the review panel, the court found
no support for this in the record. (Ibid.)
       The United States Court of Appeals for the Sixth Circuit
addressed the question of cross-examination in university sexual
misconduct proceedings in Doe v. University of Cincinnati
(6th Cir. 2017) 872 F.3d 393 (Cincinnati). As in Regents, the
university’s procedures permitted the accused student to question
witnesses indirectly by submitting questions to the hearing
panel. (Cincinnati, at p. 396.) The complaining witness chose
not to appear, however, which the accused student did not know
in advance of the hearing. (Id. at p. 397.) Thus the accused
student had no opportunity to question her, indirectly or
otherwise. (Ibid.) The review panel nonetheless found the
accused student culpable based on the complaining witness’s
previous statements to investigators, which were summarized in
a written report presented to the panel. (Id. at pp. 396-397.)




                                20
       The Sixth Circuit held that the proceedings did not comport
with due process. While acknowledging that cross-examination
“ ‘generally has not been considered an essential requirement of
due process in school disciplinary proceedings,’ ” (Cincinnati,
supra, 872 F.3d at p. 400), the court stated that “ ‘[t]he ability to
cross-examine is most critical when the issue is the credibility of
the accuser.’ ” (Id. at p. 401.) In contrast, a university might not
have to permit witness questioning if the case against the
accused student “ ‘d[oes] not rely on testimonial evidence’ ” from
the complainant, or when the accused student “admits the
‘critical fact[s]’ against him.” (Id. at p. 405.)
       The court concluded that the case presented a “credibility
contest” in which one party claimed the sex was consensual
while the other claimed it was not. (Cincinnati, supra, 872 F.3d
at p. 401.) “Given the parties’ competing claims, and the lack of
corroborative evidence to support or refute [the complaining
witness’s] allegations, the present case left the [review] panel
with ‘a choice between believing an accuser and an accused.’ ”
(Id. at p. 402.) Under those circumstances, “[a]llowing [the
accused student] to confront and question [the complaining
witness] through the panel would have undoubtedly aided the
truth-seeking process and reduced the likelihood of an erroneous
deprivation.” (Id. at p. 404.)
       The court rejected the university’s argument that the
accused student had sufficient opportunity to challenge the
complaining witness’s credibility by disputing her claims and
drawing attention to inconsistencies in her statements to the
investigators: “[The university] assumes cross-examination is of
benefit only to [the accused student]. In truth, the opportunity to
question a witness and observe her demeanor while being




                                 21
questioned can be just as important to the trier of fact as it is to
the accused.” (Cincinnati, supra, 872 F.3d at p. 401.)
“Evaluation of a witness’s credibility cannot be had without some
form of presence, some method of compelling a witness ‘to stand
face to face with the [fact finder] in order that it may look at him,
and judge by his demeanor upon the stand and the manner in
which he gives his testimony whether he is worthy of belief.’ ”
(Id. at p. 402, alteration in original.)
        The court recognized that university administrators are
“ ‘ill-equipped’ ” to oversee traditional cross-examination, which
“justifie[d] the requirement for written preapproved questions.”
(Cincinnati, supra, 872 F.3d at pp. 404-405.) Also, because
“[a]rranging for witness questioning might . . . pose unique
challenges given a victim’s potential reluctance to interact with
the accused student,” the court emphasized that the university’s
procedures must only provide “a means for the [review] panel to
evaluate an alleged victim’s credibility, not for the accused to
physically confront his accuser.” (Id. at p. 406.) Thus, for
example, it would be acceptable for a witness to appear via Skype
rather than in person: “Indisputably, demeanor can be assessed
by the trier of fact without physical presence, especially when
facilitated by modern technology.” (Ibid.)




                                 22
   II.   Analysis
       We conclude that these cases distill to a set of core
principles applicable to cases where the accused student faces a
severe penalty and the school’s determination turns on the
complaining witness’s credibility. First, the accused student is
entitled to “a process by which the respondent may question, if
even indirectly, the complainant.” (Regents, supra, 5 Cal.App.5th
at p. 1084.) Second, the complaining witness must be before the
finder of fact either physically or through videoconference or like
technology to enable the finder of fact to assess the complaining
witness’s credibility in responding to its own questions or those
proposed by the accused student. (See Cincinnati, supra,
872 F.3d at pp. 401-402.)
       These principles apply here. The “very severe
consequences” in Regents primarily consisted of a suspension
for a year and a quarter (Regents, supra, 5 Cal.App.5th at
pp. 1058, 1084); this is analogous to the one-year suspension
imposed on John. Also, the Committee’s findings were “likely to
turn on the credibility of the complainant” (id. at p. 1084) because
(1) Jane and John were the only witnesses to the incident, and (2)
without Jane’s statements, there was no evidence that she had
not consented to sex without a condom.
       Thus, the “case left the [Committee] with ‘a choice between
believing an accuser and an accused.’ ” (Cincinnati, supra,
872 F.3d at p. 402.) A mechanism that would have permitted
John to question Jane indirectly through the Committee “would
have undoubtedly aided the truth-seeking process and reduced
the likelihood of an erroneous deprivation.” (Id. at p. 404.)
       CMC claims that Regents and Cincinnati are inapplicable
because this case does not present “a true he-said-she-said




                                23
credibility contest.” Instead, CMC argues, the Committee “based
its decision . . . on undisputed facts and facts corroborated by
multiple witnesses.” CMC identifies several facts that the
Committee relied on that “ ‘corroborated [Jane’s] allegations more
than [John’s].’ ” (Quoting the Committee’s written decision.)
       First, CMC argues that “the fact that [John] and [Jane
initially] took pains to have protected sex,” at least initially,
“corroborated [Jane’s] stated position that she did not want to
have unprotected sex with [John].” Second, “the fact that [Jane]
sustained serious injuries during the sexual
encounter . . . corroborated [Jane’s] testimony that [John] became
rough during sex, that it hurt her, and that she protested and
struggled to break free.” Third, CMC argues that John’s “own
words and actions . . . undermined [John’s] credibility, and in
some instances directly supported [Jane’s] allegations,” such as
John’s statement that Jane was “ ‘not super into’ having
unprotected sex with him” or John’s admission that he could not
recall Jane’s specific words or actions evidencing consent. CMC
also refers to John’s claim to Jane and others that he had no
memory of the incident, and his asking Jane, “Did I assault you?”
CMC contends that John’s “revealing words and actions, and his
implausible post-hoc justifications for those words and actions,
gave the Committee sufficient reason to credit [Jane’s] account
over his.”
       CMC, however, does not contend that the above evidence by
itself supported a finding that Jane withdrew consent, just that it
“corroborated” or “supported” Jane’s allegations that she
withdrew consent. In other words, Jane’s allegations were still
crucial to the Committee’s determination of misconduct, even if
the Committee relied on other evidence to “corroborate” those




                                24
allegations. The Committee said so itself when it “determined
that the evidence presented corroborated [Jane’s] allegations
more than [John’s].” The investigator also emphasized in the FIR
that, because “there [were] no first-hand witnesses to the alleged
sexual assault,” “determining [John’s and Jane’s] respective
credibility . . . is critical.” Simply put, this was not a case that
“ ‘d[oes] not rely on testimonial evidence’ ” from the complaining
witness (Cincinnati, supra, 872 F.3d at p. 405) and was certainly
one “likely to turn on the credibility of the complainant.”
(Regents, supra, 5 Cal.App.5th at p. 1084.)
       CMC argues in the alternative that, even if under Regents
John was entitled to question Jane indirectly, this was satisfied
by CMC’s procedures “allowing [John] to submit questions for the
Investigator to ask witnesses based on the PIR.” Setting aside
the issue that the investigator did not in fact ask any of John’s
proposed questions to Jane, CMC’s argument ignores the
Committee’s own need to assess Jane’s demeanor in responding
to questions generated by the Committee or, indirectly, by John.
This was the very benefit to oral testimony underlying the
holding of Cincinnati. (Cincinnati, supra, 872 F.3d at p. 401.)
       Our Supreme Court acknowledged the importance of
the ability to assess witness credibility in student
disciplinary proceedings, albeit in the context of suspensions
and expulsions from public primary and secondary schools. In
John A. v. San Bernardino City Unified School Dist. (1982)
33 Cal.3d 301 (John A.), the court interpreted the Education
Code’s requirement that evidence in expulsion proceedings “ ‘may
be admitted and given probative effect only if it is the kind of
evidence upon which reasonable persons are accustomed to rely




                                25
in the conduct of serious affairs.’ ” (John A., supra, at p. 307,
quoting Educ. Code, former § 48914, subd. (f).)10
       The Supreme Court held that “a reasonable person in the
conduct of serious affairs will not rely solely on written
statements but will demand that witnesses be produced so that
their credibility may be tested and their testimony weighed
against conflicting evidence when their testimony appears readily
available and there is no substantial reason why their testimony
may not be produced.” (John A., supra, 33 Cal.3d at pp. 307-308.)
Although John A. addressed a provision of the Education Code
rather than the “fair trial” requirements of section 1094.5, it
lends support to the principles expressed in Cincinnati.
       CMC contends that “the Committee was able to assess the
respective credibility of both parties because the Investigator—
who conducted each of the witness interviews—was a voting
member of the Committee and could answer other Committee
members’ questions regarding the witnesses’ demeanors.”
However, CMC’s grievance procedures state that “the
Investigator and Community Representatives will
make . . . findings of fact by majority vote and by a
preponderance of the evidence.” (Emphasis added.) All three
members of the Committee are finders of fact, each with an equal
vote. Indeed, CMC emphasized this in denying John’s
administrative appeal, stating that “[t]he investigator does not
lead the Investigation and Review Committee meeting, nor does
the investigator draft the Findings Report. [¶] . . . Each member
of the committee has an equal vote.” Thus, all must make


     10 This language appears in the current version of the
Education Code under section 48918, subdivision (h)(1).



                               26
credibility determinations, and not simply approve the credibility
determinations of the one Committee member who was also the
investigator. Fairness required, therefore, that all three hear
from Jane before choosing to believe her account over John’s.
Even if CMC’s procedures permitted or required the investigator
to make an initial credibility finding, we note that in Regents the
investigator expressly did so in a report presented to the review
panel (Regents, supra, 5 Cal.App.5th at p. 1064), yet the court
nonetheless held that the accused student was entitled to
question the complainant indirectly before the review panel at
the hearing.11 (Id. at pp. 1084-1085.)
      CMC does not argue that allowing indirect questioning at
the hearing would unduly burden the college or Jane. We are
mindful, however, of the concerns raised in USC and Regents that
a complainant’s participation in the hearing may be traumatic or
intimidating for him or her. (USC, supra, 246 Cal.App.4th at
p. 245; Regents, supra, 5 Cal.App.5th at p. 1085.) We also
acknowledge, as did Cincinnati, the burden of added procedures
on the college, as well as the fact that a college, unlike a court,
cannot compel a witness to appear. (Cincinnati, supra, 872 F.3d
at pp. 404-405.)
      In light of these concerns we emphasize, as did Cincinnati,
that the school’s obligation in a case turning on the complaining
witness’s credibility is to “provide a means for the [fact finder] to
evaluate an alleged victim’s credibility, not for the accused to



      11 In Regents, the review panel could hear testimony from
witnesses, including the accused student and complainant, and
thus also served a fact-finding function. (Regents, supra,
5 Cal.App.5th at p. 1080.)



                                 27
physically confront his accuser.” (Cincinnati, supra, 872 F.3d
at p. 406.) While we do not wish to limit the universe of ideas of
how to accomplish this, we note that the mechanism for indirect
questioning in Regents, including granting the fact finder
discretion to exclude or rephrase questions as appropriate and
ask its own questions, strikes a fair balance among the interests
of the school, the accused student, and the complainant. We have
also discussed mechanisms by which the parties may be
physically separate, including one or both parties appearing
remotely via appropriate technology.
       These procedures do not appear to be excessively
burdensome; indeed, CMC’s procedures already provide that the
hearing format may be structured “to minimize or avoid any
undue stress or burden” by permitting “participation by Skype or
other means.” Today’s technology also simplifies witness
appearances when witnesses may no longer be at, or near the
school.




                               28
                         DISPOSITION
       The judgment is reversed and the matter remanded to the
trial court with directions to grant John’s writ of administrative
mandate. John is awarded his costs on appeal.
       CERTIFIED FOR PUBLICATION.




                                                 BENDIX, J.




      We concur:




                   CHANEY, Acting P. J.




                   ZELON, J.*




      * Associate Justice of the Court of Appeal,
Second Appellate District, Division Seven, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.



                                 29
