Appeals court revives Claremont McKenna College student’s Title IX lawsuit

A California appeals court has revived a Claremont McKenna College student’s Title IX lawsuit against the college, ruling that the lack of cross examination resulted in an unfair hearing.

The decision, which came in August 2018, aligns with a ruling by the same court last month that found the University of Southern California at fault for not giving a student accused of sexual assault the opportunity to cross-examine the student accusing him. That ruling set a precedent for other colleges to update their policies to comply with the court’s ruling.

Following the Title IX investigation in 2015, CMC found its student, called “John Doe” in court documents, responsible for sexually assaulting a Scripps College student, referred to as “Jane Roe.” Doe was suspended for a year, placed on probation for an additional year and banned from setting foot on Scripps’ campus without explicit permission from Scripps’ and CMC’s Title IX coordinators.

Under CMC’s policy at the time, an investigator examined the case before bringing the evidence to a hearing, court documents from the lawsuit show. There, the investigator and two CMC faculty members who had not been part of the investigative process decided Doe was responsible for the assault.

Roe was not required to and did not show up or verbally testify at the final committee hearing, documents show. However, both Doe and Roe submitted written statements, and Doe testified verbally at the committee meeting.

Doe filed a petition for a writ of administrative mandate, a request for a judge to review CMC’s decision. But his request was denied by a trial court in 2016.

Doe appealed, and in 2018, California’s 2nd District Court of Appeals reversed the lower court’s decision, instructing the lower court to grant Doe his writ of administrative mandate.

“We agree that [Roe’s] not appearing at the hearing either in person or via videoconference or other means deprived [Doe] of a fair hearing where [Doe] faced potentially serious consequences, and the case against him turned on the committee’s finding [Roe] credible,” the court documents state.

CMC argued that Roe provided more corroborated facts and was indirectly questioned with written questions. But the appellate court concluded that the investigator and student accused of sexual assault “is entitled to ‘a process by which the [accused] may question, if even indirectly, the [accuser]” in person, on a video-conference or using another method that would allow the hearing committee to assess the accuser’s credibility.

CMC and its Title IX office declined to comment. The law firms representing CMC and Doe did not respond to a request for comment.

CMC’s Title IX policy has changed since the incident in question and is expected to change again this month, CMC spokesperson Peter Hong said.

If the policy, which has yet to be published, complies with the recent ruling against USC, it will likely include a hearing at which the accused student and accuser can cross-examine each other in front of a panel that issues a finding of responsibility.