In Boermeester v. Carry, a case involving former USC kicker Matt Boermeester who was expelled from the university in 2017 because of an intimate partner violence charge, the California Court of Appeal found that USC did not provide “a meaningful opportunity to cross-examine critical witnesses at an in-person hearing” as recognized under the new Title IX regulations. Accordingly, the court reversed the trial court opinion and remanded with additional directions to the Superior Court of Los Angeles County.
In his dissent, Associate Justice John Shepard Wiley Jr. referenced Principles of the Law, Student Sexual Misconduct: Procedural Frameworks for Colleges and Universities, one of ALI’s current projects, when commenting on the complex and ongoing debate on how to best handle student misconduct claims.
“In sum, there is a nationwide legal debate about the right way to investigate claims of student misconduct. There is little consensus.
The facts are in ferment. At this moment there is considerable procedural experimentation. On hundreds or thousands of campuses across the land, informed and thoughtful people are discussing the right way to handle these cases. This discussion is in good faith and is wide open. There is ongoing innovation and little consensus.
The American Law Institute (ALI) launched a project in 2015 to evaluate this debate and to advise school decisionmakers. By design, the ALI’s process is deliberate and thoughtful. The project remains in process.
At this moment of discussion, a grave concern is the effect of mandatory cross-examination on the willingness of victims to report abuse. We are learning a lot recently about why abuse victims may be reluctant to report abuse and to trigger a process leading to more abuse.
Being cross-examined is an unattractive prospect. Skilled cross-examiners take pride in being fearsome. We often say a good cross-examination “destroyed” a witness, that the cross-examination was “scathing.” These words are accurate. They are telling.
The prospect of being destroyed by a scathing cross-examination can deter reporting. Fine words in opinions somewhere about all the possible procedural adjustments may mean little to a lonely and traumatized woman anguishing over her options.
Striking the right balance is a challenge. It would be beneficial to tap the ongoing national debate and experimentation before promulgating some mandatory constitutional code of campus procedures. Judge Henry Friendly praised the wisdom of Justice Harlan and quoted his words: “I seriously doubt the wisdom of these ‘guideline’ decisions. They suffer the danger of pitfalls that usually go with judging in a vacuum. However carefully written, they are apt in their application to carry unintended consequences which once accomplished are not always easy to repair.” (Henry Friendly, Some Kind of Hearing (1975) 123 U.Penn. L.Rev. 1267, 1302, quoting Sanders v. United States (1963) 373 U.S. 1, 32 (dis. Opn. of Harlan, J.).)”