MoreLaw Legal Marketing Services

The Better Way To Market Your Services On The Internet

Call: 888-354-4592 Today!

Occidental College expelled John Doe for violating its

sexual misconduct policy after he sexually assaulted Jane Doe.

An external adjudicator found Jane was incapacitated within the

meaning of the policy because she was intoxicated and unable to

make “an informed and rational decision to engage in sexual

activity.” The adjudicator found John was also intoxicated; in

fact, so intoxicated he did not know Jane was incapacitated.

Under Occidental’s policy, however, John’s intoxication did not

diminish his responsibility to obtain Jane’s consent, and John

violated the policy because he should have known Jane was

incapacitated. The adjudicator concluded a sober person in

John’s position should have known Jane was too drunk to

consent.1

After unsuccessfully appealing within the college, John

filed a petition for writ of administrative mandate in the trial

court. The trial court denied the petition and entered judgment

in favor of Occidental. John argues on appeal that he did not

have a fair disciplinary hearing and that the evidence did not

support the adjudicator’s findings. We affirm.



1 We refer to Occidental’s sexual misconduct policy in effect

when Jane accused John of violating it. As of January 22, 2019

Occidental revised its policy and issued a new interim sexual

misconduct policy. (See https://www.oxy.edu/sexual-respect-titleix>

[as of Aug. 9, 2019], archived at < https://perma.cc/JDZ7-

ETZP>.)

3

FACTUAL AND PROCEDURAL BACKGROUND

A. Occidental’s Sexual Misconduct Policy

Two weeks before their sexual encounter, John and Jane

both attended freshman orientation sessions on sexual

misconduct and Occidental’s sexual misconduct policy.

Occidental’s policy prohibits sexual assault, which it defines as

“[h]aving or attempting to have sexual intercourse with another

individual . . . [b]y force or threat of force,” “[w]ithout effective

consent,” or “[w]here [the other] individual is incapacitated.” The

policy also prohibits non-consensual sexual contact, which it

defines as “[h]aving sexual contact with another individual . . .

[b]y force or threat of force, “[w]ithout effective consent,” or

“[w]here that individual is incapacitated.”

The policy defines “incapacitation” as “a state where an

individual cannot make an informed and rational decision to

engage in sexual activity because s/he lacks conscious knowledge

of the nature of the act (e.g., to understand the who, what, when,

where, why or how of the sexual interaction) and/or is physically

helpless. An individual is incapacitated, and therefore unable to

give consent, if s/he is asleep, unconscious, or otherwise unaware

that sexual activity is occurring.”

The policy discusses the relationship between alcohol use

and incapacitation. The language we italicize was central to the

adjudicator’s decision here: “Incapacitation may result from the

use of alcohol and/or drugs. Consumption of alcohol or other

drugs alone is insufficient to establish incapacitation. The

impact of alcohol and drugs varies from person to person, and

evaluating incapacitation requires an assessment of how the

consumption of alcohol and/or drugs impacts an individual’s: [¶]

4

decision-making ability; [¶] awareness of consequences; [¶]

ability to make informed judgments; or [¶] capacity to appreciate

the nature and the quality of the act. [¶] Evaluating

incapacitation also requires an assessment of whether a

Respondent knew or should have known, that the Complainant

was incapacitated. [¶] . . . In general, sexual contact while

under the influence of alcohol or other drugs poses a risk to all

parties. Alcohol and drugs impair a person’s decision-making

capacity, awareness of the consequences, and ability to make

informed judgments. It is especially important, therefore, that

anyone engaging in sexual activity be aware of the other person’s

level of intoxication. If there is any doubt as to the level or extent

of the other individual’s intoxication or impairment, the prudent

course of action is to forgo or cease any sexual contact or activity.

[¶] Being intoxicated or impaired by drugs or alcohol . . . does not

diminish one’s responsibility to obtain consent.”

B. Saturday Night and Sunday Morning, September 7-8,

2013

Jane and John knew each other, but not well. They lived

on different floors of the same dormitory and had one class

together. John was 18, and Jane was one month shy of 18.

Multiple witnesses told Occidental’s investigators or testified at

the disciplinary hearing that, during the hours before John and

Jane had sexual intercourse, Jane drank large quantities of

vodka and became extremely intoxicated. The investigation

report, witness interview summaries, and testimony at the

hearing described the following events.

5

1. 9:15 p.m.-11:30 p.m.: Jane Gets Drunk

Jane began drinking alcohol in her dormmate Liam’s room

at approximately 9:15 Saturday evening. Jane drank orange

juice mixed with vodka and several shots of straight vodka.

Jane’s friend Angela said Jane was “drinking heavily.” Other

witnesses described Jane as “a little bit drunk, but still in

control,” and “buzzed.” Jane described herself as “tipsy.”

At 9:45 p.m. Jane and others decided to go to a fraternity

party. Jane went to her room to change clothes. Jane’s

roommate Genevieve recalled Jane was drinking orange juice

mixed with alcohol, but was “pretty lucid” and “talking and

walking normally.”

After leaving the dormitory, Jane became “more and more

drunk.” She could not walk straight. She stumbled and scraped

her knee but could not feel it. She testified, “[T]hat’s how drunk I

was.” Angela testified, “[I]t seemed like [Jane] became more . . .

out of touch with . . . what was going on with her . . . .” Other

witnesses observed Jane “could not walk a straight line and . . .

was ‘getting loud.’”

When Genevieve encountered Jane at 11:30 p.m., Jane was

“visibly more intoxicated” than she had been earlier in the

evening. She was stumbling and spoke in a “high-pitched” voice.

Genevieve believed Jane’s “decision-making capacity” was “hazy.”

She testified: “I wouldn’t trust Jane to make sound . . . decisions

that she would make while sober when I saw her then,” and even

“[m]ore so later [that evening].”

Jane decided to return to the dormitory. She told her

friends, “I can’t walk anymore. I’m just going to go back to [the

dormitory].” According to Chloe, who met Jane at orientation,

6

Jane had obviously been drinking and “was not able to walk very

well.” Angela told Jamison, another friend of Jane, they “needed

‘to take care of Jane.’” Angela later told investigators: “During

freshmen orientation . . . [we] were told [we] were supposed to

watch out for . . . friends when they were partying. I know it

sounds corny . . . but I was trying to be a good person and be

there for Jane as much as I could.”

2. 7:00 p.m.-11:00 p.m.: John Gets Drunk

Liam saw “a lot of alcohol,” including vodka, rum, and beer

in John’s room after 7:00 p.m. John was “‘exuberant,’ as if he had

been drinking ‘a good amount.’” He had a bottle of alcohol in his

hand and was dancing around the room. Liam said John was

“not sloppy but a shot or two past tipsy.” Another resident of the

dormitory, Aidan, also stopped by John’s room at 7:00 p.m.

John’s friends told Aidan that John was “really drunk.” Aidan

described John as “[k]ind of clumsy” and having “slow speech.”

At 11:00 p.m. John’s roommate, Gavin, was getting ready to

leave when John walked into the room. John was stumbling,

slurring his words, and speaking in a loud voice. After observing

John for an hour, Gavin “decided not to go out, so that he could

‘keep an eye’ on John.” Aidan, who was also in John’s room at the

time, described John’s “level of intoxication” as “a ‘shit show.’”

John “was slurring his words [and] stumbl[ing] . . . .” Aidan

estimated “that on a 0 to 10 scale, with 10 being inebriated to the

point of not being able to function, John was ‘maybe a 7.’”

3. 11:30 p.m.: Jane Goes to John’s Room

Jane returned to her room on the third floor of the

dormitory at 11:30 p.m., but did not stay there. She was “bored,”

7

“wired with energy,” and “drunk.” She went to the second floor

“because there were usually people there.” John’s roommate

Gavin saw Jane leaning against the hallway wall and heard her

slurring her words. Jane followed Gavin to John’s room, where

she embraced John and started dancing with him. It seemed

“kind of intense,” so Gavin left.

Angela and Jamison lost track of Jane and were worried.

Angela called Jane, who said she was in John’s room. Angela and

Jamison found Jane and John dancing and kissing and drinking

vodka from a bottle. Angela estimated Jane drank three or four

more shots. Jane was stumbling and leaning on things to

support herself. Later, Jane and John embraced on John’s bed

and were “getting really physical.” Angela was concerned that

Jane “was not fully aware of what she was doing” and that Jane

“did not seem to know where she was or what was going to

happen next.” Angela “wasn’t sure how [Jane] would feel about”

kissing John. Angela told Jane she should stop drinking and

tried repeatedly to take away the vodka bottle. Angela believed

John heard her: “Yeah. I’m sure he could have . . . heard [me tell

Jane to stop drinking].” John appeared “very intoxicated” and

“really drunk.” John told Jamison he had been drinking since

1:00 p.m.

At midnight, Angela and Jamison took Jane to her room.

By then, Jane was “super drunk” and “incoherent.” Angela put

Jane in bed, closed the door, and left. Jamison waited outside

Jane’s room briefly before he also left.

8

4. 12:20 a.m. -12:45 a.m.: Jane and John

Exchange Text Messages

At 12:20 a.m. Jane sent a text message to her best friend

from home saying, “I’m wasted.” Between 12:31 and 12:45 a.m.,

Jane and John exchanged text messages, including these:

John: “The second that you’re away from [Angela and

Jamison] come back.”

Jane: “Okay.”

John: “Get the fuck back here. Get the fuck back here.”

Jane: “They’re still with me . . . .”

John: “Make them leave. Tell them yo[u] want to

sleep. . . . Just get back here.”

Jane: “Okay do you have a condom.”

John: “Yes.”

Jane: “Good give me two minutes.”

John: “Come here.”

Jane: “Coming.”

John: “Good girl. Knock when you’re here.”

Jane: “[Jamison is] out ride [sic] my door.”

John: “What.

Jane: “[Jamison] is outside my door.”

John: “Wtf.”

Jane: “Right.”

John: “Get him to leave.”

Jane: “Working on [i]t.”

. . . .

John: “Leave. Say you’re going to the bathroom.”

Jane: “Okay.”

9

Before leaving her room, Jane texted her friend from home

again at 12:40 a.m. and said, “The worlds moving.

I’mgoingtohave sex now.”

5. 12:45 a.m.-2:00 a.m.: Jane Goes to John’s Room

Again

Gavin saw Jane on the second floor stumbling in the

hallway and vomiting in a trash can. He helped her into a

bathroom where she vomited again. When Jane said she felt

better, Gavin left. Jane went to John’s room and told him she

had just vomited. (John testified he had no memory of Jane

vomiting.)

At 2:00 a.m. Gavin told Aidan that Jane had been drinking,

had thrown up, and was alone with John in John’s room. Aidan

was concerned. He testified: “I was worried . . . if she was

intoxicated, that she shouldn’t be . . . alone in a room with

someone else [because] she’s not in the right mind to, like, make

decisions like that[.]” Aidan also knew John had been “very

drunk earlier.” Aidan expressed his concern to Gavin, who gave

him a key to the room. Aidan found John sitting on the bed

naked with Jane under the covers. John said, “Yo, get the fuck

out.” Minutes later, John came out of the room and walked “in a

normal gait” toward the bathroom. Aidan knocked on the door

and asked three times if Jane was okay. Jane said, “Yeah, I’m

fine.”

Gavin also walked in on John and Jane. It was “obvious” to

him that they were “having sex.” Gavin believed Jane was

conscious because he saw her legs moving. He quickly closed the

door and left. He later told investigators he “had attended sexual

assault prevention training during orientation, and had been told

10

what to do if he witnessed a sexual assault. ‘This didn’t look like

one to me[.]’” After Gavin entered the room, John told Jane he

thought she should leave, and she did.

6. 2:00 a.m.: Jane Returns to Her Room but

Leaves Again

Angela found Jane in the hallway after 2:00 a.m. “a lot less

steady on her feet than she had been earlier” and slurring her

words. Genevieve was there when Angela “ushered” Jane into

their room. According to Genevieve, Jane was “very

incapacitated,” “very obviously drunk,” even “past drunk.” Jane’s

words were “excessive[ly] slurr[ed]” and she was incoherent.

Jane tried to undress but could not undo her buttons. When

Genevieve gave Jane water, “it dribbled out of her mouth.”

Genevieve “check[ed] [Jane] for the signs of alcohol poisoning.”

Genevieve left briefly to take a shower, and Jane disappeared.

Genevieve found Jane in the lobby of the dormitory next

door. Jane was “wearing her pajamas, ‘sitting on a couch on

some guy’s lap.’” Jamison, who was also present, said Jane was

“extremely drunk,” even more so than when they were together in

John’s room. Jamison told the investigators, “I didn’t know it

was possible to be more drunk than she was [earlier].” Jane

could not walk without reaching out to balance herself. When

Genevieve tried to help Jane up, Jane “buckled under her own

weight.” Genevieve needed help to get Jane back to their room.

She testified, “I was pretty sure that if we weren’t supporting her

and keeping her upright, she would not be able to stay upright.”

Maddie, whose room was next door to Jane’s room, saw

Genevieve and Jane in the hallway. Jane was “pretty

11

intoxicated” and was “slurring her words and stumbling.”

Maddie helped Genevieve get Jane into bed.

7. Later Sunday Morning: Jane Learns She Had

Sex with John

Angela woke at 10:00 a.m. to a text message. Jane told

Angela “I think I had sex with John last night.” Jane had seen

her text conversation with John but did not remember sending or

receiving the messages. Jane subsequently asked Gavin what

had happened. Gavin told her he had seen her having sex with

John. Jane told Aidan “she did not remember much of anything,”

was “not sure what exactly had happened,” and was “trying to

piece together what had happened.” Aidan told Jane, “Well, we

think that . . . you and John might have had sex.” And Jane said,

“Yeah. I was worried that that might have been what happened.”

Genevieve testified Jane told her “she couldn’t believe that it had

happened. She didn’t remember it. She didn’t know if there was

protection used or not.”

C. Occidental Investigates and Conducts a Hearing

1. The Investigation

Jane submitted a complaint against John for sexual

misconduct. When Occidental receives a sexual misconduct

complaint, its “Title IX team”2 conducts an initial assessment “to



2 Title IX of the Education Amendments of 1972 (20 U.S.C.

§ 1681 et seq.) is a federal civil rights law that prohibits

discrimination based on gender in education programs or

activities that receive federal funding. (See 34 C.F.R. § 106.1 et

12

provide an integrated and coordinated response.” Following the

assessment, the college decides whether to resolve the matter

informally or refer it for investigation. When the college decides

to investigate, it designates one or more trained employees or

external investigators to conduct a “thorough, impartial and fair”

investigation that is “appropriate in light of the circumstances of

the case” and “respectful of individual privacy concerns.” The

investigators “are not charged with reaching a determination as

to responsibility.” During the investigation, the complainant and

respondent have an “equal opportunity to be heard, to submit

evidence, and to identify witnesses who may have relevant

information.” When the investigation is complete, the

investigators prepare and submit a written report. The college

notifies the parties the investigation is complete and provides

them with information about the next step.

Occidental appointed independent investigators to

investigate Jane’s complaint. The investigators interviewed Jane

and nine other witnesses. Jane told the investigators “there

[was] a ‘big hole’ in her memory of the evening.” She

remembered drinking vodka from a bottle and dancing with

John. She said the vodka did not burn her throat “because she

was already so intoxicated.” She also remembered feeling hot

and taking off her shirt. She put her shirt back on after Angela

“flip[ped] out.” According to Jane, John “pushed her onto the bed,

and they ‘ma[d]e out for a while.’” John told Jane “to get rid of

[Angela] and [Jamison].” He told her to let them take her up to

her room and then come back to his room. John asked for Jane’s



seq.) Occidental’s Title IX coordinator “oversees the College’s

overall compliance with Title IX.”

13

cell phone number so he could text her to come back to his room

and he could “fuck” her. (John’s subsequent testimony at the

disciplinary hearing was consistent to the extent he remembered

talking to Jane about “having her leave with her friends so she

could come back down so [they] could have sex.”)

Jane said she remembered that, after returning to John’s

room, she asked him if he had a condom. She remembered

“performing oral sex on him,” but did not remember “having

sexual intercourse.” Jane also remembered that John briefly left

the room and that she heard a knock at the door and voices

asking if she was okay. She remembered John telling her his

roommate had come into the room.

On his attorney’s advice, John declined to allow the

investigators to interview him. The investigators issued a

written report with a summary of each witness interview.

Consistent with Occidental’s policy, the investigators did not

“reach[ ] a determination as to responsibility.”

2. The Threshold Determination

After Occidental receives the investigation report, it

designates a hearing coordinator who, in consultation with the

Title IX team, reviews the report and makes “a threshold

determination as to whether there is sufficient information upon

which an adjudicator could find a violation of this policy. This

threshold determination does not involve making a determination

of responsibility, nor does it involve a credibility assessment. If

the threshold has been established, the Hearing Coordinator will

issue a Notification Letter to the [parties] and refer the report for

Pre-Hearing Procedures.” The notification letter “provides each

party with a brief summary of the conduct at issue and the

14

specific provision of the [alleged] policy violation(s) . . . .” The

parties may consult attorneys, but the attorneys may not

participate in the proceedings. The parties, however, may have

an advisor assist them, and they have the right to review

investigative documents and call witnesses.

Occidental appointed a hearing coordinator who made a

threshold determination there was sufficient evidence to support

a finding John violated the college’s sexual misconduct policy.

The hearing coordinator notified Jane and John in writing that

“[g]iven the nature and severity of the allegations” there would be

a formal hearing.

3. The Disciplinary Hearing

Following a threshold determination, Occidental holds a

disciplinary hearing before a three-member panel or, at the

hearing coordinator’s discretion, an external adjudicator. The

hearing is “not intended to be adversarial” and is “not comparable

to a criminal trial.” The complainant and respondent are not

permitted to question each other directly. Instead, “the parties

may submit questions to the hearing panel [or adjudicator] in

writing [both prior to and during the hearing], which may be

posed at the discretion of the hearing panel [or adjudicator].” The

parties “may . . . request alternative testimony options that

would not require physical proximity to the other party.” The

hearing panel or adjudicator determines the respondent’s

responsibility by a preponderance of the evidence and documents

its findings in writing. If the hearing panel or adjudicator finds

the respondent violated the sexual misconduct policy, it

recommends an appropriate sanction to the hearing coordinator.

“The Hearing Coordinator, in consultation with the Title IX

15

Coordinator, will review the recommendations and impose an

appropriate sanction.” When the panel or adjudicator concludes

the respondent committed a sexual assault, the student “may

receive a sanction ranging from suspension to expulsion.” Either

party may appeal the decision.

Jane, John, the lead investigator, and five freshman

students—Gavin, Angela, Aidan, Genevieve, and Chloe—testified

during a one-day hearing before the external adjudicator. Jane

testified her memory of the incident was “foggy.” She

remembered some details days and weeks later, after she had

spoken with others. She did not remember having intercourse

with John, but a few days after their encounter she remembered

she had oral sex with him. She did not remember sending the

text messages.

John testified there was no alcohol in his room, he did not

see Jane drink any alcohol, and he did not hear Angela express

concern about Jane’s drinking. He also testified, somewhat

inconsistently: “I knew [Jane] was drunk. I did not know—I

didn’t really know she was drunk. I knew she’d been drinking. I

didn’t know to what level of impairment she was at. But we were

. . . conversing normally and having relatively normal

interactions for an hour or so, in that window before she left [my

room] and came back. In no way did I think or was she

incapacitated during that time.”

Based on the investigative report, the summaries of the

witness interviews, and the testimony of the witnesses at the

hearing, the adjudicator found by a preponderance of the

evidence John violated Occidental’s sexual misconduct policy by

sexually assaulting Jane and having non-consensual sexual

contact with her. The adjudicator found that Jane’s text

16

messages, “coupled with her actions in returning to [John’s] room

after that exchange of text messages[,] are conduct and

statements that would indicate that she consented to sexual

intercourse with [John],” but that Jane was incapacitated when

she engaged in the conduct. The adjudicator also found that

John, who “was more intoxicated than he had ever been,” “did not

have actual knowledge of [Jane’s] incapacitation,” but that a

sober person in John’s position should have known Jane was

incapacitated and could not consent.3 The adjudicator issued a

written decision, and Occidental expelled John.

D. John Files an Administrative Appeal and a Petition

for Writ of Mandate

As authorized by Occidental’s sexual misconduct policy,

John appealed in writing to the hearing coordinator. John had

the “burden of proof . . . as the original determination and

sanction are presumed to have been decided reasonably and

appropriately.” Counsel for Jane submitted a written response to

John’s appeal. The hearing coordinator asked the assistant

director for housing services to act as the appeals officer and

review the appeal. The assistant director conducted a

“deferential” review for “clear error” and found “no basis for

overturning the external adjudicator’s decision.”

John filed a petition for administrative mandate under

Code of Civil Procedure section 1094.5 in the trial court.4 John



3 John does not challenge the sober person standard in

Occidental’s policy.

4 “If a private college has a procedure for conducting sexual

misconduct disciplinary proceedings, an accused student may

17

argued the hearing was unfair because the proceedings were

“typified by [a] lack of impartiality,” the adjudicator

“purposefully” failed to ask questions that John had proposed and

that were “critical” to his defense, and the hearing coordinator

denied John “reasonable access to evidence.” John also asserted

the evidence did not support the adjudicator’s findings. The trial

court denied the petition and entered a judgment in favor of

Occidental. John timely appealed.

DISCUSSION

A. Standard of Review

“A university disciplinary proceeding concerning sexual

misconduct does not involve a fundamental vested right; thus, we

review the administrative decision applying the same standard of

review applicable in the trial court.” (Doe v. University of

Southern California (2018) 29 Cal.App.5th 1212, 1231 (USC III);

accord, Doe v. Occidental College (2019) 37 Cal.App.5th 1003,

1013 (Occidental); Doe v. Allee (2019) 30 Cal.App.5th 1036, 1060

(Allee).) “The question presented by a petition for writ of

administrative mandate is whether the agency or tribunal that

issued the decision being challenged ‘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).) ‘Abuse of discretion is

established if the respondent has not proceeded in the manner



challenge the outcome of the proceedings in a petition for a writ

of administrative mandate.” (Doe v. Westmount College (2019) 34

Cal.App.5th 622, 634.)

18

required by law, the order or decision is not supported by the

findings, or the findings are not supported by the evidence.’” (Doe

v. University of Southern California (2018) 28 Cal.App.5th 26, 34

(USC II); accord, Occidental, at p. 1014; USC III, at p. 1230.)

However, “[w]e review the fairness of the administrative

proceeding de novo. ‘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.’ [Citation.]” (Doe v. University of Southern

California (2016) 246 Cal.App.4th 221, 239 (USC I); see

Occidental, at p. 1014 [“we review the fairness of the proceedings

de novo, and the substantive decision for substantial evidence”].)

B. The Disciplinary Hearing Was Fair

1. The Hearing Requirements in Private College

Sexual Misconduct Proceedings

In several recent cases, California courts have found fault

with the procedures in private university sexual misconduct

disciplinary proceedings. These deficiencies include failing to

interview or hear testimony from and assess the credibility of

critical witnesses (Doe v. Westmont College (2019) 34 Cal.App.5th

622, 636-637 (Westmont); USC III, supra, 29 Cal.App.5th at pp.

1215-1216, 1232-1237), failing to give the respondent notice of

the factual basis for the charges or access to evidence (Westmont,

at pp. 637-638; Doe v. Regents of University of California (2018)

28 Cal.App.5th 44, 46, 58-59 (UCSB);5 USC I, supra, 246



5 The UCSB case concerns a public university, which is

subject to federal constitutional guarantees not applicable to

private colleges and universities. Nevertheless, the case is

19

Cal.App.4th at pp. 241-244), not allowing the respondent to

submit questions for the panel or adjudicator to ask the

complainant and other witnesses (Westmont, at pp. 638-639; USC

III, at pp. 1237-1238; UCSB, at pp. 46, 60; Doe v. Claremont

McKenna College (2018) 25 Cal.App.5th 1055, 1057-1058

(Claremont)), and failing to ensure witnesses appear, directly or

indirectly, for cross-examination (Allee, supra, 30 Cal.App.5th at

p. 1039; USC III, at pp. 1215-1216, 1237-1238; Claremont, at pp.

1057-1058, 1070).

In Westmont, supra, 34 Cal.App.5th 622 the court

summarized the requirements for a fair hearing. The court

emphasized that a college disciplinary proceeding is not like a

criminal proceeding: “A college’s procedure for investigating and

adjudicating student sexual misconduct allegations is not

analogous to a criminal proceeding. [Citation.] . . . [¶] A fair

hearing strives to balance three competing interests: The

accused student seeks ‘“‘to avoid unfair or mistaken exclusion

from the educational process.’”’ [Citation.] The college tries to

provide a safe environment for all of its students. [Citation.] The

alleged victim—who often ‘“live[s], work[s], and stud[ies] on a



instructive. (See Westmont, supra, 34 Cal.App.5th at p. 634

[“[t]he common law requirements for a fair hearing at a private

college ‘mirror the due process protections at public

universities’”]; USC III, supra, 29 Cal.App.5th at p. 1232, fn. 25

[public university “‘[d]ue process jurisprudence may be

“instructive” in cases determining fair hearing standards for

student disciplinary proceedings at private schools’”]; Doe v.

Claremont McKenna College (2018) 25 Cal.App.5th 1055, 1057-

1058, 1067, fn. 8 [“[federal] [d]ue process jurisprudence . . . may

be ‘instructive’ in cases determining fair hearing standards for

student disciplinary proceedings at private schools”].)

20

shared college campus”’ with the accused—wants to safeguard his

or her own well-being. [Citation.] [¶] These competing interests

‘must be addressed in light of the nature of a [college] and the

limits of its resources.’ [Citation.] A college’s primary purpose is

education. [Citation.] Hearing requirements that are too formal

and rigid divert resources and attention from that purpose.

[Citation.] Accordingly, ‘all the safeguards and formalities of a

criminal trial’ are not required. [Citation.] ‘Although [a college]

must treat students fairly, it is not required to convert its

classrooms into courtrooms.’” (Westmont, at pp. 634-635; see Doe

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

1078 (UCSD) [“‘“[p]rocedures 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”’”];

Doe v. University of Kentucky (6th Cir. 2017) 860 F.3d 365, 370

[“school disciplinary proceedings, while requiring some level of

due process, need not reach the same level of protection that

would be present in a criminal prosecution”].)

The court in Westmont explained: “‘[N]o particular form of

student disciplinary hearing is required under California law.’

[Citation.] . . . At a minimum, the college must comply with its

own policies and procedures. [Citation.] Those procedures must

provide the accused student with a hearing before a neutral

adjudicatory body. [Citation.] The accused must be permitted to

respond to the evidence against him or her. [Citations.] 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. [Citations.] This is because ‘“the opportunity to

21

question a witness and observe [his or her] demeanor while being

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

the accused.” [Citation.]’ [Citation.] ‘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.]’ [Citation.]

It is not necessary to place the alleged victim and the accused in

the same room. [Citation.] [¶] The college must provide the

accused student with the names of witnesses and the facts to

which each testifies. [Citations.] The accused must be able to

pose questions to the witnesses in some manner, either directly

or indirectly, such as through the adjudicatory body. [Citations.]

The body need not ask every question proposed by the accused.”

(Westmont, supra, 34 Cal.App.5th at p. 635.)

In particular, direct cross-examination of a complainant by

a respondent is not only not required, it is inappropriate. “In

administrative cases addressing sexual assault involving

students who live, work, and study on a shared college campus,

cross-examination is especially fraught with potential

drawbacks.” (USC I, supra, 246 Cal.App.4th at p. 245; accord,

Claremont, supra, 25 Cal.App.5th at p. 1067.) As the United

States Department of Education Office for Civil Rights once

observed, “Allowing an alleged perpetrator to question an alleged

victim directly may be traumatic or intimidating, thereby

possibly escalating or perpetrating a hostile environment.” (U.S.

Dept. of Ed., Off. for Civil Rights, “Dear Colleague” letter, Apr. 4,

2011, p. 12 < https://www2.ed.gov/about/offices/list/ocr/letters/

22

colleague-201104.pdf > [as of Aug. 9, 2019], archived at

; withdrawn by U.S. Dept. of Ed.,

Off. for Civil Rights, “Dear Colleague” letter, Sept. 22, 2017,

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-

201709.pdf> [as of Aug. 9, 2019], archived at .)6

2. John’s Hearing Was Fair

Occidental hired independent investigators to investigate

Jane’s complaint. As prescribed by Occidental’s policy, the

investigators did not determine responsibility. The hearing

coordinator made a threshold determination the evidence

warranted a hearing and informed John and Jane of that

determination. She also gave them written notice of the conduct

underlying the alleged policy violations. In doing so, the hearing

coordinator did not assess credibility or determine responsibility.

Jane and John each had an opportunity to review the

investigation report and the witness interview summaries.

Advisors assisted Jane and John and attended the hearing with

them. The witnesses, including Jane, appeared in person. John

proposed questions before and during the hearing for the

adjudicator to ask Jane, and the adjudicator asked some of them.



6 In November 2018 the Department of Education Office for

Civil Rights issued proposed Title IX regulations pursuant to

which, among other things: a person may not serve as both

investigator and adjudicator; live hearings are required; and an

accused student’s advisor may cross-examine the accuser and

other witnesses, either in person or with technology that allows

the decision-maker and the parties to simultaneously see and

hear the witness. (Proposed Regulations, § 106.45, subds. (b)(3),

(b)(4) (2018).)

23

The adjudicator heard the evidence and determined by a

preponderance of the evidence John had violated the policy.

Occidental’s policy complied with all the procedural requirements

identified by California cases dealing with sexual misconduct

disciplinary proceedings: both sides had notice of the charges and

hearing and had access to the evidence, the hearing included live

testimony and written reports of witness interviews, the critical

witnesses appeared in person at the hearing so that the

adjudicator could evaluate their credibility, and the respondent

had an opportunity to propose questions for the adjudicator to

ask the complainant. (See generally Westmont, supra, 34

Cal.App.5th at p. 635.)

3. John’s Contentions the Hearing Was Unfair Are

Meritless

John argues his hearing was unfair because the hearing

coordinator excluded a “charge evaluation worksheet” indicating

the Los Angeles County District Attorney’s Office had declined to

prosecute John criminally. John also argues the hearing

coordinator and the independent adjudicator were biased. Each

of these arguments lacks merit.

a. John’s arguments concerning the charge

evaluation worksheet are forfeited and do

not support mandamus relief

The district attorney’s office gave counsel for John a copy of

a “charge evaluation worksheet” reflecting the district attorney’s

decision not to prosecute John. Counsel forwarded the worksheet

to Occidental’s investigators. The investigators commented in

their report that counsel for John had sent them the worksheet.

24

The investigators attached the worksheet as an exhibit, but they

did not discuss it in their report.7 Someone, presumably the

hearing coordinator, later redacted the exhibit from the

investigator’s report.8

John argues the adjudicator precluded him from using the

worksheet to impeach witnesses at the disciplinary hearing. In

particular, John contends he wanted to use this statement in the

worksheet: “Witnesses were interviewed and agreed that the

victim and suspect were both drunk, however, that they were

both willing participants exercising bad judgment.” John

contends the adjudicator “effectively precluded [him] from

impeaching any witness who spoke with [police] investigators

and later told [Occidental’s] investigators that Jane was not a

willing participant.”

There is nothing in the record of the disciplinary hearing,

however, reflecting John ever sought to use the worksheet at the

hearing or to question any witness about what he or she told the

police. Nor is there any record the hearing adjudicator or



7 The copy counsel for John gave the investigators was

heavily redacted. The record does not show whether someone

redacted it before or after counsel for John received it from the

district attorney’s office.

8 Occidental’s sexual misconduct policy authorized the

hearing coordinator to “review the investigative report, any

witness statements[,] and any other documentary evidence” and

to “redact information that is irrelevant, more prejudicial than

probative, or immaterial,” “statements of personal opinion, rather

than direct observations or reasonable inferences from the facts,

and statements as to general reputation for any character trait,

including honesty.”

25

coordinator ever precluded John from impeaching any of the

witnesses with the worksheet. John did not argue at the

disciplinary hearing, in his administrative appeal, or in the trial

court he wanted to use or was precluded from using the

worksheet for impeachment purposes.9 By failing to make the

argument until his appeal to this court, John forfeited it. (See

USC III, supra, 29 Cal.App.5th at p. 1230 [“[g]enerally, a party

cannot raise new issues . . . for the first time on appeal”]; USC II,

supra, 28 Cal.App.5th at p. 37 [“[b]ecause this issue was not

raised during the administrative proceedings or in the superior

court, . . . [the university] did not have an opportunity to address

it; and it would normally be deemed forfeited”]; id. at p. 41

[appellant forfeited the argument the university compromised his

ability to gather evidence to defend himself by not raising the

issue in his administrative appeal and raising it “only . . . in

passing” in the trial court].)

In any event, even if John had sought to impeach someone

with the worksheet and the adjudicator had precluded him from

doing so, any error in such a ruling would have been harmless.

(See Thornbrough v. Western Placer Unified School Dist. (2013)

223 Cal.App.4th 169, 200 [“it is well settled that the improper

admission or rejection of evidence at an administrative hearing

does not provide ‘grounds for reversal unless the error has

resulted in a miscarriage of justice”’ and it is “‘reasonably

probable a more favorable result would have been reached absent

the error’”]; McCoy v. Board of Retirement (1986) 183 Cal.App.3d



9 John briefly argued in his administrative appeal the

worksheet was new evidence that was unavailable during the

disciplinary hearing because it was redacted from the

investigation report.

26

1044, 1054 [“[a]n administrative agency is not required to observe

the strict rules of evidence enforced in the courts, and the

admission or rejection of evidence is not ground for reversal

unless there has been a denial of justice”].) Whether one of the

witnesses at the hearing had made a prior inconsistent statement

about Jane’s willingness to engage in sexual activity with John

would have had little if any impact on the adjudicator’s

conclusions Jane was, and John should have known she was,

incapacitated due to intoxication. The question the adjudicator

decided was not whether witnesses thought Jane was willing, but

whether Jane was able to make “an informed and rational

decision to engage in sexual activity.” Thus, even if John had

attempted to impeach one or more of the witnesses with the

worksheet, there is no reasonable likelihood the result would

have been any different.



b. The hearing coordinator was not biased

John argues the hearing coordinator was, or appeared to

be, biased against him because she made a post-investigation

threshold determination there was sufficient information from

which an adjudicator could find John violated Occidental’s sexual

misconduct policy and she released information to be considered

at the hearing only five days prior to the hearing. John also

complains that the hearing coordinator was “vested with the

opportunity to ‘impose an appropriate sanction’ in consultation

with the Title IX Coordinator” and that the policy required the

hearing coordinator to attend all meetings with the adjudicator

and to advise the adjudicator on policy and procedure.

John’s obligation “is to demonstrate actual bias. A

disciplinary decision may not be invalidated solely on the basis of

27

an inference or appearance of bias.” (Allee, supra, 30 Cal.App.5th

at p. 1060; see Occidental, supra, 37 Cal.App.5th at p. 1018 [“‘A

party seeking to show bias or prejudice on the part of an

administrative decision maker is required to prove the same

“with concrete facts: ‘“[b]ias and prejudice are never implied and

must be established by clear averments.”’”’”]; Gai v. City of Selma

(1998) 68 Cal.App.4th 213, 220 [same].) A “‘mere belief that [a

school official] acted with . . . ulterior motives is insufficient to

state a claim for relief.’” (Allee, at pp. 1060-1061.)

John has not shown actual bias. Unlike the policies of

some colleges and universities, Occidental’s policy does not have

a college or university official serving in a dual role as both

investigator and adjudicator. (See Allee, supra, 30 Cal.App.5th at

p. 1061 [“[t]he fact finder may not be a single individual with the

divided and inconsistent roles [of investigator and adjudicator]”.)

And even if Occidental’s policy had such a feature, that without

more would not be sufficient to show actual bias. (See Westmont,

supra, 34 Cal.App.5th at p. 637 [“‘“[t]he combination of

investigative and adjudicative functions does not, without more,”’

deprive a student accused of sexual misconduct of a fair

hearing”]; USC III, supra, 29 Cal.App.5th at p. 1235, fn. 29

[“[a]lthough the Title IX investigator held dual roles as the

investigator and adjudicator, ‘the combination of investigative

and adjudicative functions does not, without more, constitute a

due process violation’”].) Moreover, in making her threshold

determination, the hearing coordinator here played no role in

determining whether John violated the sexual misconduct policy,

did not make any findings on credibility or recommendations

regarding responsibility, and did not participate in the

adjudicator’s decision. The hearing coordinator attended

28

pre-resolution meetings and the disciplinary hearing only “to

serve as a resource for the [adjudicator] on issues of policy and

procedure, and to ensure that policy and procedure [were]

appropriately followed throughout the hearing.”10 And the

hearing coordinator participated in the sanction decision only

after the adjudicator concluded John had violated the policy.11

The coordinator’s participation in that decision did not reflect any

bias that negatively affected John or influenced the adjudicator’s

decision.

John argues the hearing coordinator “unfairly released

information that was to be used at the hearing . . . just five days

before [the hearing]—knowing that [John], an 18-year-old

freshman without any legal background—bore the responsibility

of defending himself in [Occidental’s] process.” But when the

hearing coordinator released the investigation report and

summaries of witness statements to John and Jane, she was not



10 Occidental’s policy provides: “The Hearing Panel [or single

adjudicator as here] is supported by the Hearing Coordinator,

who is present at hearing panel meetings, but is not . . . a voting

member of the panel. He or she will meet with all involved

parties prior to the hearing, be present during the hearing to

serve as a resource for the hearing panel on issues of policy and

procedure, and to ensure that policy and procedure are

appropriately followed throughout the hearing.”

11 The policy states: “If the [hearing] panel [or adjudicator]

finds the Respondent responsible, the panel will then recommend

appropriate sanctions to the Hearing Coordinator. The Hearing

Coordinator, in consultation with the Title IX Coordinator, will

review the recommendations and impose an appropriate

sanction.”

29

exhibiting bias, she was complying with the policy to release this

information “at least five (5) business days prior to the hearing.”

12

John has not cited any authority holding that five business days

is insufficient or unfair. Nor is it accurate to say John was

“defending himself.” John was represented by counsel (although

not at the hearing), who was able to assist John and his advisor

to prepare for the hearing. Finally, John does not identify any

prejudice he suffered by not having the information from the

hearing coordinator any sooner, nor does he argue what, if

anything, he would have done differently with additional time to

prepare for the hearing. (See USC II, supra, 28 Cal.App.5th at p.

40 [“Doe does not indicate how his delay in reviewing” the

information showing his academic dishonesty “prejudiced his

case”].)

Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108

Cal.App.4th 81, on which John relies, is distinguishable. In that

case an assistant city attorney advocated for the city in

connection with the plaintiff’s attempts to renew a permit to

operate a cabaret. After the city denied the plaintiff’s permit

application, the same assistant city attorney advised the

decisionmaker on the plaintiff’s administrative appeal of the

decision to deny the permit. (Id. at pp. 84-86, 96.) The court held

the assistant city attorney’s dual role as advocate and adjudicator

violated the plaintiff’s due process rights. (Id. at pp. 86, 97-98.)

Here, in contrast, the hearing coordinator did not act as an

advocate or adjudicate John’s responsibility. As discussed, in

making her threshold determination the investigation report



12 The hearing coordinator made the relevant materials

available to Jane and John on Sunday, December 1, 2013 at

9:00 p.m. The hearing was on Saturday, December 7, 2013.

30

contained “sufficient information upon which an adjudicator

could find a violation of the [sexual misconduct] policy,” the

hearing coordinator did not make findings on credibility or fault.

c. The independent adjudicator was not

biased

John argues the adjudicator was biased and “antagonistic”

toward him because she refused to ask Jane 29 of the 38 written

questions he submitted.13 John asserts the unasked questions

“were designed to illustrate for the adjudicator that [Jane] had

made statements indicating her consciousness and awareness

before, during, and after the sexual activity, undermining her

claim of incapacitation.” John concludes that, “[h]ad [these]

additional 29 questions been posed to [Jane], the frailty of her

tenuous claim, and her dubious credibility, would have become

more apparent [to the adjudicator]. Specifically, [the adjudicator]

would have been exposed to evidence demonstrating that [Jane]

was able to recall extensively the events that occurred,

undermining [Jane’s] claim that she had experienced ‘blackouts’

and incapacitation.”

John has again failed to show bias. Under Occidental’s

policy, the adjudicator had the discretion not to ask questions

that were inappropriate, irrelevant, or cumulative.14 There is



13 John also proposed questions for the adjudicator to ask

several of the witnesses, but he does not argue the adjudicator

evidenced any bias in asking or not asking any of those questions.

14 Occidental’s policy provides that “the parties may submit

questions to the hearing panel [or, as here, the adjudicator] in

writing, which may be posed at the discretion of the hearing

panel [or adjudicator].”

31

nothing unfair about granting the adjudicator this kind of

discretion. (See Westmont, supra, 34 Cal.App.5th at p. 635 [“[t]he

[adjudicatory] body need not ask every question proposed by the

accused”]; Claremont, supra, 25 Cal.App.5th at p. 1073 [“granting

the fact finder discretion to exclude or rephrase [proposed]

questions” is appropriate and “strikes a fair balance among the

interests of the school, the accused student, and the

complainant”]; UCSD, supra, 5 Cal.App.5th at p. 1085

[permitting the hearing panel chair to screen the accused’s

written questions and ask only those questions that are not

repetitive or irrelevant did not, “as a procedural concern,” render

the hearing unfair].)

Nor has John shown the adjudicator’s failure to ask all of

the questions he proposed caused him prejudice. (See UCSD,

supra, 5 Cal.App.5th at p. 1086 [adjudicator’s failure to ask or

paraphrase certain questions did not prejudice the appellant]; id.

at p. 1088 [adjudicator’s “decision not to ask Jane question No. 4

did not prejudice John whatsoever”].) Only five of John’s

proposed questions concerned statements Jane made about what

she remembered. Four of those five questions concerned what

Jane told the investigators, and the fifth was whether Jane told

people the day after the incident she had a hard time

remembering what had occurred.15 Jane’s responses to those



15 (1) “Did you tell the investigators that John told you to

come back down ‘so he can fuck you?[’]” (2) “The next day,

Sunday, did you tell people that you had a difficult time

remembering what happened that night?” (3) “But in your

statement, you told the investigators about a number of things

that you do remember happening about that time, correct?” (4)

“You told the investigators that you remembered asking John if

32

questions would have been cumulative or, as the trial court

found, “duplicative of evidence already in the record.” The

investigation report, the investigators’ summary of Jane’s

interview, the lead investigator’s testimony at the hearing, Jane’s

testimony, and the testimony of the five students, all included

statements about what Jane said she remembered. The

adjudicator knew what Jane told the investigators and other

students about what she remembered. The adjudicator

considered the extent to which Jane did or did not remember her

encounter with John and the surrounding events. The

adjudicator found: “[Jane] states, and the external adjudicator

believes, she has no recollection of having sexual intercourse with

[John].”16

John also asserts the adjudicator “demonstrated curt and

contentious reactions to [him].” He relies solely on the following

exchange, which occurred during his opening statement: “[John:]

So, to reiterate again, I didn’t sexually assault Jane Doe. I would

never and could never do something like that. And the police



he had a condom because you had not used any birth control, is

that right?” (5) “You told the investigators that you remembered

performing oral sex on John when you were in his room, correct?”

16 Eleven additional questions John proposed asked whether

Jane remembered specific events, for example, “You remember

giving John your cell phone number . . . .” Five questions asked

whether Jane had sent specific text messages.

*

And one question

asked Jane to draw a legal conclusion: “So even if you don’t

remember now, or have blocked it out, at the time you and John

had sex in his room, you were conscious and aware, isn’t that

right?”

* As stated, Jane testified she did not remember sending

any text messages.

33

investigation agrees. [¶] [The Adjudicator]: I’d like to stop you

from any reference to the police investigation, please.” Of course,

a hearing transcript does not convey the speaker’s tone of voice.

But there was nothing inherently curt or contentious about the

adjudicator’s statement. Nor does the hearing transcript contain

any evidence the adjudicator was curt to or contentious with John

at any other time during the proceeding. To the contrary, the

record reflects the adjudicator was consistently polite to all

participants.

d. There was no “cumulative impact”

John contends “this Court should find that the cumulative

impact of how [Occidental] conducted its disciplinary proceeding

against [him] contains a notable stench of unfairness.” As

discussed, there was no instance of unfairness, let alone

cumulative unfairness.

C. There Was Substantial Evidence John Should Have

Known Jane Was Incapacitated

“When reviewing a university’s disciplinary actions, ‘“[t]he

power of an appellate court begins and ends with the

determination as to whether there is any substantial evidence,

contradicted or uncontradicted, that will support the finding.”

[Citation.]’ [Citation.] . . . ‘[T]his does not mean we must blindly

seize any evidence in support of the [determination] in order to

affirm the judgment . . . . “[I]f the word ‘substantial’ [is to mean]

anything at all, it clearly implies that such evidence must

be . . . reasonable . . . , credible, and of solid value . . . .”

[Citation.] The ultimate determination is whether a reasonable

trier of fact could have [made the findings] based on the whole

34

record.’” (USC I, supra, 246 Cal.App.4th at pp. 248-249; see M.N.

v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607,

616 [“[t]he court must ‘accept all evidence which supports the

successful party, disregard the contrary evidence, and draw all

reasonable inferences to uphold the [administrative decision’”].)

“‘Credibility is an issue of fact for the finder of fact to resolve

. . . .’” (M.N., at p. 616; accord, Occidental, supra, 37 Cal.App.5th

at p. 1019.)

There was substantial evidence that Jane was

incapacitated and that, despite her possible apparent assent, a

sober person in John’s position should have known she was

incapacitated. Jane was extremely intoxicated. In John’s

presence, Jane drank at least three or four shots of vodka and

was stumbling and leaning on walls and furniture for support.

Angela, in John’s presence, told Jane to stop drinking, and

Angela repeatedly tried to take the vodka bottle away from Jane.

According to Angela, Jane was too drunk to know what she was

doing, where she was, or where she was going. When Jane

returned alone to John’s room, she told him she had just vomited.

Jane’s intoxication increased while she was alone with John.

When she left John’s room, Jane was, according to her roommate,

“past drunk.” The next morning, Jane suspected but did not

know whether she had sex with John. The adjudicator

reasonably concluded that Jane was unable to make “an informed

and rational decision to engage in sexual activity” and that John,

had he been sober, should have known it.

The order denying John’s petition for a writ of mandate is affirmed. Occidental is to recover its costs on appeal.