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MARK M. HATHAWAY, ESQ.

(CA 151332; DC 437335; NY 2431682)
JENNA E. EYRICH, ESQ. (CA 303560).
WERKSMAN JACKSON

FILED

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AU 131'2017



HATHAWAY QUINN LLP
888 West Sixth Street, Fourth Floor
Los Angeles, California 90017

E-Mail: mhathawav@werksmaniacksoncom

Attorneys for Petitioner



SUPERIOR COURT OF THE STATE 0 CALIFORNIA

FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT

MATTHEW BOERMEESTER, an Case No.:   7 0 4 7 3

 

individual,
Petitioner, PETITION FOR WRIT OF
MANDAMUS
v.
AINSLEY CARRY, an individual in his
of?cial capacit as Assistant Vice Provost
for Student Af airs; THE UNIVERSITY
OF SOUTHERN CALIFORNIA, a .
Califomla corporation; and DOES 1 to 20
inclusive,
Respondents.

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I?TABLE OF CONTENTS

TABLE OF CONTENTS .. ii
TABLE OF AUTHORITIES .. iv
INTRODUCTION .. 1
THE PARTIES .. .. 2
JURISDICTION AND VENUE .. 2
THE REGULATORY AND LEGAL FRAMEWORK .. 3
I. INTRODUCTION. .. 3
A. Title IX .. 4
B. Violence Against Women Reauthorization Act. .. 7
C. California Law Regarding Student Discipline .. 8
1. Access to Evidence .. 9

2. ?In a lawsuit the first to speak seems right, until

someone comes forward and cross-examines. 

Proverbs 18Right to Impartial .. 10
D. Internal and External Pressure on Colleges and Universities 11
I . The Stanford Swimmer Case .. I 3
2 Wrongful Accusations Not Uncommon .. I4
3. Campus Sex Police and Corrupt Outcomes. .. 15
4 Trauma Informed Investigation. .. I 6
II. FACTURAL AND PROCEDURAL BACKGROUND .. 17
A. Summary of Investigation and Adjudication Process. .. 17
I. Title IX Investigations ?if .. I7
2. General Principles of Investigation and Adjudication. .. 19
B. Summary Of Events. .. 20
1. January 21, 2017. .. 20

 

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2. The Report to USC Title IX O??ice. .. 21
3. The Title IX Investigation.? .. 22
4. The Evidence Hearing. Findings of act, and Guilt. .. 24
5. USC ?3 Anonymous Misconduct Sanctioning Panel. .. 25
6. USC ?5 Anonymous Appellate Panel. .. 26
7. Final Decision by Respondent Ainsley Carry .. 26 I
PROCEDURAL ERRORS .. 27
A. Doctrine Of Judicial Non-Intervention Does Not Apply .. 27
B. Respondent?s Administrative Action Affects Vested Fundamental
Rights. .. 28
C. Cumulative Impact of Unfairness. .. 28
1V. ACTIONS AND DECISION ARE INVALID .. 28
PRAYER FOR RELIEF .. 30
VERIFICATION .. 3 1

 

 

 

PETITION FOR WRIT OF MANDAMUS


 

 



hTABLE OF AUTHORITIES
Cases

Andersen v. Regents of Univ. of Cal. (1972) 22 Cal.App.3d 763 .. 24
Alz?lgebaum v. Board of Dirs. of Barton Mem. Hosp. (1980) 104 Cal.App.3d 9
Banks v. Dominican College (Cal. App. Dist. 1995) 35 Cal. App. 4th

1545 .. 28
Bixby v. Pierno (1971) 4 Cal. 3d 130, .. 8-
Doe v. Brandeis Univ. (D. Mass. 2016) 2016 WL 1274533 .. 9
Doe v. Regents of University of California (2016) 5 Ca1.App.5th 1055 .. 10
Doe v. University of Southern California (2016) 246 Ca1.App.4th 221 .. 9
Goldberg v. Regents of University of California (1967) 248 Cal.App.2d 867 .. 9, 10,
v. Stanford University (Cal. App. 6th Dist. 2004) 124 Cal. App. 4th 3
Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70 .. 3
Kuhn v. Department of General Services (1994) 22 Ca1.App.4th 1627 .. 9
Paulsen v. Golden Gate University (1979) 25 Cal. 3d 803 .. 28
Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716  .. 3

Statutes

20 U.S.C. 1092 ..7
20 U.S.C. 1681-1688 ..5
5 U.S.C. 556(d) .. 6
Cal. Const., art. VI, 10 .. 2
Code Civ. Proc. 1021.5 ..29
Code Civ. Proc. 1084 .. 2
Code Civ. Proc. 1085 .. 1, 2, 28
Code Civ. Proc. 1094.5 ..passim
Code Civ. Proc. 395 .. 3

 

 

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Regulations
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INTRODUCTION

As of January 21, 2017, Petitioner Matthew Boermeester, 22?, was a senior at USC
and kicker on football team. On January 26, 2017, Mr. Boermeester was
recovering from knee surgery and was two classes shy of graduation when he was
summarily suspended by Title IX Of?ce, escorted off campus, and banned from
all university activities for alleged ?intimate partner violence? with his girlfriend Zoe
Katz, which Ms: Katz denies ever occurred.

Zoe Katz, 22, captain of the USC women?s tennis team and a nationally ranked 
singles player, had been dating Mr. Boermeester for well over a year. Both Ms. Katz and
Mr. Boermeester assert that after returning to Ms. Katz?s residence after getting french
fries at McDonalds, the two were brie?y engaged in loud, consensual horseplay and
laughing in the alley before going into Ms. Katz? residence. Ms. Katz?a insistence that no
prohibited conduct occurred is con?rmed by a security video that USC refuses to turn
over, but did allow Ms. Katz and Petitioner to view at the University.

Ms. Katz never made any report to rather another student looking out a
window thought he saw a physical altercation, told another student about what he thought
he saw, and that student told his father, who then contacted the USC Title IX Of?ce. I

Although USC refers to Ms. Katz as the ?Reporting Party,?' Ms. Katz reported
repeatedly to USC that she did not experience any prohibited conduct.

The sole complainant against Petitioner is the University itself, through the
University?s Title IX Coordinator Gretchen Dahlinger Means, and the University?s Title
IX investigator Lauren Elan Helsper, who investigated and prosecuted Mr. Boermeester
without substantial evidence that prohibited conduct ever occurred. Following their five-
month Title IX investigation process, Petitioner was ordered expelled.

Matthew Boermeester now petitions for writ of mandate under Code Civ. Proc. 

1094.5, or in the alternative under Code Civ. Proc. 1085, directed to Respondents in

 

Policy states, ?For the purposes of this policy, the individual who is reported to have
experienced prohibited conduct is referred to as the Reporting Party. The Respondent is the
individual who is reported to have committed the prohibited conduct.? (PT0223)

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order to redress his improper expulsion on the grounds that Respondents failed to grant
Petitioner a fair hearing, failed to proceed in the manner required by law, and committed
a prejudicial abuse of discretion in that Respondents? decision is not supported by the
?ndings, and the ?ndings are not supported by the evidence.

By this veri?ed Petition, Petitioner further alleges as follows:

THE PARTIES

1. Petitioner MATTHEW BOERMEESTER, was, at all times relevant, a senior
undergraduate student at the University of Southern California. 

2. Respondent AINSLEY is the Vice President for Student Affairs, and
is delegated responsibility for student discipline by USC's governing board of trustees
and named herein is his of?cial capacity.

3. Respondent THE UNIVERSITY OF SOUTHERN CALIFORNIA (hereinafter
or ?University?), is the of?cial name of the private research university founded in

1880 with its main campus in Los Angeles, California.

JURISDICTION AND VENUE
4. The Supreme Court, courts of appeal, superior courts, and their judges have
original jurisdiction in proceedings for extraordinary relief in the nature of mandamus
directed to any inferior tribunal, corporation, board, or person. (Cal. Const., art. VI, 10;
see Code Civ. Proc. 1084 [?mandamus? synonymous with ?mandate?]; Code Civ. Proc.

1085.)

5. Petitioner, an aggrieved university student, seeks by this Petition to exhaust

 

2 Prior to USC, Dr. Ainsley Carry was Vice President for Student Affairs at Auburn
University where he was responsible for the wrong?il expulsion of Joshua Strange, a falsely
accused male student who was later cleared of sexual misconduct. (See James Taranto, An
Education in College Justice, under Pressure from the Obama Administration, a University
Tramples the Rights of the Accused (Dec. 6, 2013) The Wall Street Journal; Nick Anderson, Men
punished in sexual misconduct cases on colleges campuses are ?ghting back. (August 20, 2014)
The Washington Post.)

PETITION FOR WRIT OF MANDAMUS
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judicial remedies through this petition for writ of mandate following the private
University?s Title IX appeal process, which is now ?nal.

6. The doctrine of exhaustion of judicial remedies precludes an action that
challenges the result of a quasi-judicial proceeding unless the plaintiff ?rst challenges the
decision though a petition for writ of mandamus. (Johnson v. City of Loma Linda (2000)
24 Cal.4th 61, 70.) Administrative mandamus is available for review of ?any ?nal
administrative order or decision made as the result of a proceeding in which by law a
hearing is required to be given, evidence required to be taken, and discretion in the
determination of facts is vested in the inferior tribunal, corporation, board, or of?cer . . 

(Code Civ. Proc. 1094.5, subd. 

The remedy of administrative mandamus is not limited to
public agencies; rather it applies to private organizations that
provide for a formal evidentlar hearing. (Pomona College v.
Superior Court (1996) 45 Ca .App.4th 1716, 1722?1723 
1094.5 applicable to private universities].) Moreover, failure
to exhaust administrative remedies is a proper basis for
demurrer. (Id. at pp. 1730?1731.) (Gupta v. Stanford
University (2004) 124 Cal.A p.4th 407, 411 [Code of Civil
Procedure section 1094.5 app ied to the case of a student who
was subject to university disciplinary proceedings].)

7. The Superior Court for the County of Los Angeles, the county where the

Respondents are located or employed, is the proper court for the hearing of this action.

(Code Civ. Proc. 395.)

THE REGULATORY AND LEGAL FRAMEWORK
I. INTRODUCTION.
8. This case arises amidst the national controversy stemming from the US.

Department of Education?s little-known Of?ce for Civil Rights threatening to

 

3 The Of?ce for Civil Rights (OCR) is a sub-agency of the US. Department of Education and
enforces several Federal civil rights laws, including Title IX. On April 4, 2011, the Of?ce for
Civil Rights issued a ?Dear Colleague Letter? and in April 29, 2014, ?Questions and Answers on
Title IX and Sexual Violence.? The US. Dept. of Education has determined to be ?signi?cant
guidance document? under the Of?ce of Management and Budget?s Final Bulletin for Agency

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withhold federal dollars in order to impose its guidance on colleges and universities as to
how to investigate and adjudicate allegations of sexual misconduct4 in order to stem a
purported tide of sexual violence on American college campuses.5 efforts affect
the rights of some 20.6 million undergraduate and graduate students in the United States
aswell as the distribution of more than $137 billion in federal education funds each year.6
USC alone receives some $500 Million annually in federal dollars.7 threats to
withhold funds puts immediate and tremendous pressure upon universities, such as USC
to aggressively prosecute males accused of sexual misconduct; severely discipline
male students alleged to have engaged in sexual misconduct regardless of their
innocence,8 and equate ?victim/complainants? in Sexual misconduct proceedings as

being female ?survivors?9

who must receive preferential treatment.
9. As discussed below, efforts to enforce Title IX compliance applies to all

public and private educational institutions that receive federal funds, including USC.

A. Title IX.

10. The issue of sexual assaults on college and university campuses is, at the federal

 

Good Guidance Practices, 72 Fed. Reg. 3432 (J an. 25, 2007).

4 See, David G. Savage and Timothy M. Phelps, How a Little-known Education Of?ce Has
Forced Far-reaching Changes to Campus Sex Assault Investigations, (August 17, 2015) Los
Angeles Times.

5 ?This is an issue of political correctness run amok,? according to Alan M. Dershowitz,
emeritus Harvard Law professor who was among twenty?eight Harvard Law School faculty
members asserting that new rules violate the due process rights of the accused. (See, Rethink
Harvard?s Sexual Harassment Policy (Oct. 15, 2014), The Boston Globe.) ?As teachers
responsible for educating our students about due process of law, the substantive law governing
discrimination and violence, appropriate administrative decision-making, and the rule of law
generally, we ?nd the new sexual harassment policy inconsistent with many of the most basic
principles we teach.? Id. See also, Richard Dorment, Occidental Justice, (April 2015) Esquire;
Teresa Watanabe, More College Men Are Fighting Back Against Sexual Misconduct Cases (June
7, 2014) Los Angeles Times.

6 Source: 

7 Source: 

8 A 2015 study examined why a high ?percentage of sexual assault allegations are false? and
the rationale behind many of these false allegations as being ?retribution for a real or perceived
wrong, rejection or betrayal.? Reggie D. Yager, What?s Missing From SexualtAssault Prevention
and Response, (April 22, 2015), pgs.46-62 http: 

9 

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level, primarily addressed by an act of Congress known as Title IX of the Education
Amendments of 1972, 20 U.S.C. 1681-1688. From Title enactment in 1972 until
1997, the Department of Education never asserted jurisdiction over student-on-student
rape or sexual assault. In 1997, however, the Department issued regulations that required
schools to have policies and procedures in place to deal with such conduct.'0

11. Title IX requires every college and university that receives; federal funds to
establish policies and procedures to address sexual assault, including a system to
investigate and adjudicate charges of sexual assault by one student against another. A
school violates a student's rights under Title IX regarding student-on-student sexual
violence if: (1) the alleged conduct is suf?ciently serious to limit or deny a student's
ability to participate in or bene?t from the school's educational programs;ll and (2) the
school, upon notice, fails to take prompt and effective steps reasonably calculated to end
the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as
appropriate, remedy its effects.12 The fundamental principle of such a system is that it be
?prompt and OCR, which is in charge of the administrative enforcement of
Title IX, has expanded on this basic mandate through regulations promulgated

through notice-and-comment rule making14 that ?have the force and effect of and

 

?0 See generally Stephen Henrick, A Hostile Environment for Student Defendants: Title IX and
Sexual Assault on College Campuses, 40 N. Ky. L. Rev. 49, 56-59 (2013).

OCR requires that the conduct be evaluated from the perspective of a reasonable person in
the alleged victim's position, considering all the circumstances.

'2 April 2014 ?Questions and Answers on Title IX and Sexual Violence? at A2 (?Questions
and Answers?)

'3 34 CPR 106.8 

'4 OCR, Revised Sexual Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties Title IX (2001) at 36 n.98 (notice of publication at
66 Fed. Reg. 5512 (January 19, 2001) (?2001 Guidance?)


?5 Corp. v. Brown (1.979) 441 US. 281, 295, 301-02 (regulations promulgated
pursuant to notice-and-comment rulemaking that affect individual rights and obligations ?have
the force and effect of law?). The same is true for the 2001 Guidance, an interpretation of the
regulations that was published in the Federal Register and was subject to public comment. 2001
Guidance at ii. As such, it is entitled to deference under the doctrine articulated in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 US. 837, 842-43.

PETITION FOR WRIT OF MANDAMUS
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?signi?cant guidance documents? like its April 2011 ?Dear Colleague Letter,?l6 and
its April 2014 ?Questions and Answers on Title IX and Sexual Violence.? A school?s
procedures must, at a minimum, (1) ?ensure the Title IX rights of the complainant,? but
?accord due process to both parties a requirement applicable to both state
and private schools;'8 (2) provide an ?adequate, reliable, and impartial investigation,?19
(3) provide the complainant and the accused student ?an equal opportunity to present
relevant witnesses and other evidence,?20 (4) ensure that the ?fact?nder and decision
maker . . . have adequate training or knowledge regarding sexual violence?2'; and (5)
require ?documentation of all proceedings, which may include written ?ndings of fact,
transcripts, or audio recordings.?22

12. When OCR set forth guidance that ?in order for a school's grievance procedures
to be consistent with Title IX standards, the school must use a preponderance of the
evidence standard. . . also advised that Title IX has incorporated and adopted the
procedural provisions applicable to Title VI of the Civil Rights Act of 1964. (See 34
C.F.R. 106.71.) The Title IX regulations, therefore, require that decisions be

?supported by and in accordance with the reliable, probative and substantial evidence.?

(See 5 U.S.C. 5 U.S.C. 556(d) also provides in relevant part:

. . . A party is entitled to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to
conduct such cross-examination as may be required for a full
and true disclosure of the facts. . .

13. Title regulations require a school receiving federal funds to designate an

 

'6 Available at 104.pdf. See
Bleiler v. College of the Holy Cross, 2013 WL 4717340, at 5 (D. Mass. 2013) (holding that
the Dear Colleague Letter, as a guidance document, ?does not have independent force of law but
informs this Court?s evaluation of whether the College?s procedures were ?equitable??).

'7 2001 Guidance at p. 22.

'8 E. g, OCR Ruling re Complaint #04-03-204 (Christian Brothers Univ.) (Mar. 26, 2004) at 7
(?dUe process protections [are] inherent in the Title IX regulatory requirements?).

'9 2001 Guidance at p. 20.

20 Id; Dear Colleague Letter at p. 11. 

2' Id; 2001 Guidance at p. 21.

22 Dear Colleague Letter at p. 12.

PETITION FOR WRIT OF MANDAMUS
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employee to coordinate the school?s compliance with Title IX.23 OCR is in charge of the
administrative enforcement of Title IX and has identi?ed the primary responsibilities of
the Title IX coordinator: ?overseeing all Title IX complaints?; ?identifying and 
addressing any patterns or systemic problems that arise during the review of such
complaints?; (0) ?meet[ing] with students as needed,? either directly or through a
designee; and ?providiing] assistance to school law enforcement unit employees
regarding how to respond appropriately to reports of sexual violence.?24

14. OCR has emphasized that the Title IX Coordinator must be independent and free
of con?icts of interest that may be created by holding another position within the school:
?[E]mployees whose job/ responsibilities may con?ict with a Title IX coordinator?s
responsibilities include . . Deans of Students, and any employee who serves on the
judicial/hearing board or to whom an appeal might be made.?25

15. As a practical matter, therefore, a college student who claims to be the victim of
a sexual assault by a fellow student has three options: (I) go to the local
police/prosecutor; (2) use the college?s sexual assault disciplinary process; or pursue

both.26

R. Violence Against Women Reauthorization Act.

16. The Violence Against Women Reauthorization Act of 2013 amended, among
other provisions, 485 subdivision of the Clery Act, 20 U.S.C. 1092 subdivision 
The amendments to 1092 subdivision added new procedural protections for campus

sexual assault proceedings and strengthened other existing protections, including:


. . . requiring ?a prompt, fair, and impartial investigation and
resolutlon;?

. . requiring thafcampus sexual assault proceedings ?be
conducted by of?01als who receive annual training on the
lssues related to domestic violence, dating violence, sexual

 

23 34 C.F.R. 106.8 subdivision 
24 Dear Colleague Letter at p. 7.
25 Questions and Answers at C-4.
26 See 20 U.S.C. 1092 subdivision (listing options).
PETITION FOR WRIT OF MANDAMUS
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assault, stalking and how to conduct an investigation and
hearing process that protects the safety of victims and promotes
accountability;?

guaranteeing that ?the accuser and the accused are entitled to
have others present during an institutional disciplinary
proceeding, including the opportunity to be accompanied to

any related meeting or proceeding by an advisor of their
choice??

17. The regulations issued by the Department of Education under the statute, which
have the force and effect of law,28 make clear that ?an advisor of their choice? includes
the right to have an attorney act as the advisor.29

18. In addition to Title IX and other relevant federal law, a state may have laws that

govern campus sexual assault disciplinary proceedings, as California does.

C. California Law Regarding Student Discipline.

19. California?s procedural and substantive standards for student disciplinary
proceedings begin with Code Civ. Proc. 1094.5 subdivisions and which require
that (1) there be ?a fair trial,? which ?means that there must have been ?a fair
administrative hearing??3?; (2) the proceeding be conducted ?in the manner required by
law?; (3) the decision be ?supported by the findings?; and (4) the ?ndings be ?supported
by the weight of the evidence,? or where an administrative action does not affect vested
fundamental rights, the ?ndings must be ?supported by substantial evidence in the light

of the whole record.?31 In addition, a reviewing court doesnot ?blindly Seize any

 

27 20 U.S.C. 1092 subdivision (emphasis added).
28 The regulations, 34 CPR. 668.46, were promulgated pursuant to notice-and-comment I
rulemaking. See 79 Fed. Reg. 35417 (June 20, 2014); 79 Fed. Reg. 62752 (October 20, 2014).
29 See 34 CPR. 668.46 subdivision (a school may ?[n]ot limit the choice of
advisor . . . for either the accuser or the accused in any meeting or institutional disciplinary
proceeding?); 79 Fed. Reg. 62774 (the statutory amendment ?clearly and unambiguously
supports the right of the accused and the accuser to be accompanied to any meeting or
proceeding by ?an advisor of their choice,? which includes and attorney?). Although a school
may not prohibit attorneys from acting as advisors, it may ?establish restrictions regarding the
extent to which the advisor may participate in the proceedings, as long as the restrictions apply
equally to both parties . . 34 C.F.R. 668.46 subdivision 

30 USC, supra, 246 Ca1.App.4th at 239 (citations omitted).

3' California has undertaken to protect vested fundamental rights ?from untoward intrusions
by the massive apparatus of government.? (Bixby v. Pierno (1971) 4 Cal.3d 130, 142-143.)

PETITION FOR WRIT OF MANDAMUS
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evidence in support of the. respondent in order to affirm the judgment. . . . It must be
reasonable, . . . credible, and of solid value.? (Kuhn v. Department of General Services
(1994) 22 Cal.App.4th 1627, 1633.) ?The ultimate determination is whether a reasonable
trier of fact could have found for the respondent based on the whole record.? 

20. Moreover, the fair hearing requirements of Code Civ. Proc. 1094.5 subdivision
can only be satis?ed in this context through adherence to principles of procedural due
process, which apply directly to public colleges and universities through the Fourteenth
Amendment, and to private colleges and universities by analogy.32 (Doe v. University of
Southern California (2016) 246 Cal.App.4th 221.) Of course, requirements
for procedural due process vary depending upon the situation under consideration and the
interests involved.? (Id. at 244 [quoting Applebaum v. Board of Dirs. of Barton Mem.
Hosp. (1980) 104 Cal.App.3d 648, 657].)

21. Due Process requires, inter alia, ?proper advance notice of the hearing
specifying the particular charges and suggesting that [the student] might wish to obtain
counsel.? (Id. [quoting Goldberg v. Regents of University of California. (1967) 248
Cal.App.2d 867, 872].)

1. Access to vidence,

22. A fair process also requires the university to present the evidence to the
accused student so that the student has a reasonable opportunity to prepare a defense and
to respond to the accusation: . . requiring John to request access to the evidence against
him does not comply with the requirements of a fair hearing. (See, e. Goss, supra, 419
US. at p. 582.)? (Doe v. University of Southern California, supra, 246 Cal.App.4th at
245-246.)

. . . USC argues the procedural protections required in Dixon
were in place here because John had access to information
submitted by the other witnesses and an opportunity to respond
to that evidence?had he requested it. But requiring John to

 

32 Courts in other jurisdictions have taken the same approach. (See, Doe v. Brandeis
Univ. (D. Mass. 2016) 2016 WL 1274533, at 
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request access to the evidence against him does not comply
with the requirements of a fair hearing. (See, e. Goss, supra,
419 US. atp. 582.) Id.

2. ?In a lawsuit the ?rst to speak seems right, until someone comes
forward and cross-examines. Proverbs 18:1 7 (N1 V)

23. As King Solomon in his wisdom recognized three thousand years ago, in matters
that turn on credibility of the accuser and the accused, the school must provide for the
questioning of the complainant, either directly or indirectly, by the accused student. See,

Doe v. Regents of University of California (2016) 5 Cal.App.5th 105 5, 1084:

. . . in the instant matter, where the Panel's ?ndings 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.

We note that John relies on Manufactured Homes
Communities, Inc. v. County of San Luis Obispo (2008) 167
Cal.App.4th 705 [84 Cal.Rptr.3d 367] and Doe v. Brandeis
University (D.Mass. 2016) 177 F.Supp.3d 561 as authority that
he was entitled to directly cross-examine Jane during the
hearing. In both of those cases, cross-examination of witnesses
testifying against the party was completely prohibited. That is
not the case here where UCSD's policies provided John

with a mechanism by which to question Jane. (Id. at fn 18.
(emphasis added).)

24. In addition, students are to have ?ample opportunity to hear and observe the
witnesses against them.? (Doe v. University of Southern California (2016) 246
Cal.App.4th 221, 246, citing Goldberg v. Regents of University of California (1967) 248
Cal.App.2d 867, 882.) 

3. Right to Impartial Adindicators

25. ?The right to a fair procedure includes the right to impartial adjudicators.
(Applebaum v. Board of Directors, supra, 104 Cal.App.3d 648, 658.) Moreover,
"[f]aimess requires a practical method of testing impartiality." (Hacker/ml v. California

Medical Assn, supra, 138 Cal.App.3d 435, 444.)? (Rosenblit v. Superior Court (1991)

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D. Internal and External Pressure on Colleges and Universities.

26. One federal court recently held that ?[a]ccused students are entitled to have their
cases decided on the merits . . . and not accOrding to the application of unfair.
generalizations or stereotypes because of social or other pressures to reach a certain
result.? (Doe v. Brandeis Univ. (D. Mass. 2016) 2016 WL 1274533, at This
recognition of the effect of outside pressures on campus administrators is crucial in order
to understand why the regulatory environment often plays a?role in campus sexual assault
proceedings where the accused student is invariably male.

27. The role of OCR is paramount. The April 2011 Dear Colleague Letter contains

an explicit threat to colleges and universities:



When a reci ient does not come into compliance voluntarily,
OCR may initiate proceedings to withdraw Federal funding by
the Department or refer the case to the US. Department of
Justice for litigation. Dear Colleague Letter at p. 16.

28. This portion of the Dear Colleague Letter has been described as the ??rst
warning shot? that OCR intended to punish those schools that failed to handle sexual
assault proceedings wanted, and the head of OCR has made clear that she ?will
go to enforcement, and [is] prepared to withhold federal funds.?33

29. In January of 2014, the White House put further pressure on colleges and
universities to prevent and to police sexual violence on their campuses by creating a task
force of senior administration of?cials, including the US. Attorney General and the
secretaries of the Departments of Education, Health and Human Seivices and Interior, to

coordinate federal enforcement efforts.34 According to The Second Report of the White

 

33 NPR, How Sexual Assaults Came to Command New Attention (Aug. 13, 2014),

new-attention.

34 Jackie Calmes, Obarna Seeks to Raise Awareness of Rape on Campus (January 22, 2014)
New York Times; Jason elch and Larry Gordon, Federal Task Force to Target Campus Sexual
Assaults (January 22, 2014) Los Angeles Times.

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House Task Force to Protect Students from Sexual Assault issued on January 5, 2017,
colleges and universities have a responsibility to protect the rights of accused students

and provide a balanced and fair process:

The procedures schools use to resolve complaints of sexual
assault must be fair so that everyone complainants,
res ondents, and the entire school community is ranted their
rig to nondiscrimination and can have con?. ence in the
resolution. A balanced and fair process that prov1des the same
opportunities for both parties will lead to sound and reasonable
decisions. Schools must strike the correct balance between the
rights of the accused and the ri of everyone else on campus,
including the complainant an every other student who might
be at ris of harm. Properly designed procedures help ensure
that everyone?s rights are respected. They are important in
creating an academic community that respects the well-being
of all students and works for everyone. (Second Task Force
Report (January 5, 2017) at p. 16)

30. In February 2014, Catherine E. Lhamon, the Assistant Secretary of Education 
who heads the OCR, told college of?cials attending a conference at the University of
Virginia that schools need to make ?radical? change. According to the Chronicle of
Higher Education, college presidents suggested afterward that there were ?crisp marching
orders from Washington.?35 In the same article, the Chronicle noted that different
standards were applied to men and women: ?Under current interpretations of colleges?
legal responsibilities, if a female student alleges sexual assault by a male student after
heavy drinking, he may be suspended or expelled, even if she appeared to be a willing
participant and never said no. That is because in heterosexual cases, colleges typically see
the male student as the one physically able to initiate sex, and therefore responsible for
gaining the woman?s consent.?

31. According to the Chronicle of Higher Education ?Colleges face increasing

pressure from survivors and the federal government to improve the campus climate.?36

 

35 Colleges Are Reminded of Federal on Handling of Sexual-Assault Cases, Chronicle of
Higher Education, February 11, 2014.
3?6 Chron. of Higher Education, Presumed Guilty: College Men Accused of Rape Say the
Scales Are Tipped Against Them (Sept. 1, 2014), 
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The University. of Maine?s dean of students has stated that, in the face of such pressure,
?[s]ome rush to judgment is inevitable.?37 Institutions? fear of an OCR investigation and
the loss of funding gives OCR considerable leverage and allows OCR to set standards for
sexual assault proceedings on nearly all college campuses.

32. There is non-governmental pressure as well. Victims? advocacy groups have
made far more noise than groups advocating the rights of the accused and have, to date,
largely controlled the public debate. Again, there are ?nancial considerations here. i If a
school is perceived as being on the wrong side of the ?campus rape culture? issue?such
as at Stanford, Occidental, and the University of Virginia?applications can be impacted,
alumni and donor giving can slow, reputations can experience harm, and the school
suffers. The bottom line is that in this highly politically-charged environment, a school?s
safer course is to find accused students guilty when charged with sexual assault.

1. The Stanford Swimmer Case.

33. Another event of signi?cance affecting Title IX sexual misconduct cases, a
Santa Clara County Superior Court judge sentenced Brock Tumer?uthe ?Stanford
swimmer??to six months in the county jail after his conviction on three counts of felony
sexual assault. There was immediate local38 and nationwide39 public criticism of the
sentence, and the judge was accused of judicial bias in favor of male and class privilege,
leading to campaigns for his recall or resignation. A CNN anchor spent most of an hour,

reading the statement made by the victim at the sentencing hearing. 40

 

Guilty/1489529l.

37 NPR, Some Accused of Sexual Assault on Campus Say System Works Against Them (Sept.
3, 2014), 

system-works-against-them. 

38 Katy Murphy, Light Sentence in Stanford Sexual Assault Causes Outrage, Mercury
News, June 6, 2016, 


39 Liam Stack, Light Sentence for Brock Turner in Stanford Rape Case Draws Outrage,
NY. Times, June 6, 2016, 


Id.

 

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2. Wrongful Accusations Not Uncommon.

34. Not surprisingly, cases of wrongful allegations of sexual misconduct have been
reported, such as Rolling Stone?s article on ?Jackie,? an alleged rape victim at the
University of Virginia.? Also discredited, Columbia University student Emma
Sulkowicz, who spent her ?nal year at Columbia toting a mattress to protest the
university?s supposed failure to punish her alleged rapist.42 Ms. Sulkowicz even became
something of a spokesperson for rape victims and was invited to attend the State of the
Union address with Senator Kirsten Gillibrand (D-New York). Then there are the
discredited claims of Erica Kinsman and of Kamilah Willingham, who had been featured
in the movie, ?The Hunting Ground.?43 In ?An Open Letter to Higher Education about
Sexual Violence? from Brett A. Sokolow, Esq. and The NCHERM Group Partners, dated
May 27, 2014, Mr. Sokolow provides examples of sexual misconduct cases where the
college or university is holding the male student accountable in spite of the evidence?0r
the lack thereof??because they think they are supposed to, and that doing so is what

OCR wants.?44 Finally, numerous rights organizations have spoken out on the issue,

 

4' A Rape on Campus by Sabrina Erdely was published in the December 4, 2014 issue of
Rolling Stone. The article has since been retracted by the publisher. After other journalists
investigated the article?s claims and found signi?cant discrepancies, Rolling Stone issued
multiple apologies for the story. Columbia Journalism Review featured the article in ?The Worst
Journalism of 2014.? 

42 Emma Sulkowicz waited seven months to report her allegations to Columbia University.
After investigation by the university and law enforcement, Paul Nungesser, the accused student,
was cleared of the charges. Ms. Sulkowicz tried to get other women to accuse Mr. Nungesser of
sexual assault, but Columbia University found him not responsible for those claims as well. On
April 23, 2015, Mr. Nungesser sued Columbia University for being complicit in allowing the
harassment from his accuser, which ?signi?cantly damaged, if not effectively destroyed Paul
Nungesser?s college experience, his reputation, his emotional well-being and his future career
prOSpects.? The lawsuit includes dozens of Facebook messages between the two former friends
and many declarations of Ms. Sulkowicz?s love for Mr. Nungesser before and after the alleged
rape.

43 See, Ivan B. K. Levingston, Film ?The Hunting Ground? Misrepresents Harvard Sexual
Assault Statistics (March 26, 2015), The Harvard Crimson; Emily Yoff, How The Hunting
Ground Blurs the Truth, (June 1, 2015) Slate; Asche Schow, The continuing collapse of 'The
Hunting Ground,? a campus sexual assault propaganda ?lm, (June 3, 2015) Washington
Examiner. I

44 The NCHERM Group, the largest higher education speci?c law practice in the country, has

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including the Foundation for Individual Freedom in Education, 
the National Coalition For Men Carolinas (N CFMC), 
Stop Abusive and Violent Environments (SAVE) and
twenty-eight Harvard Law School faculty members asserting that new rules violate the
due process rights of the accused.45
3. Campus Sex Police and Corrupt Outcomes.

35. The pressure is so great on colleges and universities that the NCHERM Group
has issued their 2017 White Paper, referring to the current state of campus Title IX
investigations as ?Due Process and The Sex Police.? NCHERM points out to college and

university Title IX personnel:

Maybe you wound up in this role as the result of political
pressures real or imagined that make you feel like you need
to be policing student sexual mores. Or, for some of you, you
took the 2011 DCL [Dear Colleague Letter] as a license to
become the sex police that you always wanted to be. Or, maybe
it has been a gradual and inadvertent shift for you. For
whatever reason, if ou have become the sex olice, we want
you to know that The NCHERM Group condemns what you
are doing in the strongest possible terms and entreats you to
change your thinking and your practices. Our tone in this
section re?ects the gravity and import of the situation.

Sex policing isn?t working for you. The ?eld is being
hammered by an unprecedented wave of litigation, and higher
education is. losing! Do you remember the days when judges

were deferential to the internal disciplinary decisions of
college administrators? If those days are rapidly receding or
are one, you have to ask yourselves what role you have played
in at. If you are the sex police, your overzealousness to
impose sexual correctness is causing a backlash that is going
to set back the entire consent movement.

If you don?t know what we mean by sex policing, it?s
happening on two levels: the substantive and the rocedural.
Procedural] responding parties need to be accor ed the full
measure 0 their rights. The courts are starting to smack

 

worked with 3,000 higher education clients in the past 17 years, and frequently represents
universities being investigated by the Department of Education, Of?ce fOr Civil Rights (OCR).
The NCHERM Group are the founders of ATIXA, a membership association of more than 1,400
campus Title IX coordinators and investigators, that produces training materials and seminars,
publications, and conferences.
45 Rethink Harvard's Sexual Harassment Policy (Oct. 15, 2014), The Boston Globe.
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colleges down left and right when due process corners are cut,
bias is in play, and politics motivate the imposition of corrupt
outcomes. (N CHERM ?Due Process and The Sex Police,? 
(PT0091.)

4. Trauma Informed Investigation.

36. In addition, under current Title IX standard practices, colleges and universities .
are encouraged to provide training and have practices that employ trauma-informed
investigation techniques. ?Trauma-informed investigating and interviewing include the
following key components: 1) understanding the impact of trauma on a neurological,
physical, and emotional level; 2) promoting safety and support; 3) knowing positive ways
to respond that avoid retraumatization; and 4) providing choice with a goal of
empowerment.? (The Seven Deadly Sins of Title IX Investigations, ATIXA (2016)
Trauma-informed investigation practices presume that the Reporting Party
has actually suffered trauma as a result of the reported event. Challenging or questioning
the Reporting Party?s story, or giving negative or blaming responses, may cause the
?survivor? to be re-traumatized and should be avoided. In addition, advocates of trauma-
informed practices assert that victim responses to sexual assault, or other traumatic
events, are uniquely individual and extremely varied. The responses may include
continued contact with perpetrators, delayed responses, ?at affect (severely reduced
emotional expressiveness), or use of humor. Advocates contend that victims or
?survivors? act in ways that may be counterintuitive and contrary to expectations while
processing and in order to cope with a traumatic event.

37. Under the trauma-informed approach, the Title IX investigator presumes that the

alleged prohibited conduct has occurred and that any response from the survivor, intuitive

or counterintuitive, is evidence that the prohibited conduct actually occurred, even if the
survivor says that it did not occur. This shifts the burden of proof to the accused student
to prove his innocence?Le, to prove to the Title IX investigator that the prohibited 

conduct did not occur when the Title IX investigator believes that it did.

 

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II. FACTURAL AND PROCEDURAL BACKGROUND

A. Summary of Investigation and Adjudication Process.

38. USC implements its procedures for student misconduct through the SCampus
Handbook (?SCampus?) 2016-2017, and through the Policy and Procedures on Student
Sexual, Interpersonal, and Protected Class Misconduct (?Policy?) 

39. USC represented in the Policy that it ?seeks compliance with . . . Title 

1. Title IX Investigations.

40. The Policy provides for fair, thorough, reliable, neutral and impartial
investigation by a trained and experienced investigator.? USC, however, provides no
information regarding the training and experience of its investigators, or evidenceof their
neutrality or impartiality.

41. USC does not rely upon sworn law enforcement of?cers or licensed private
investigators to investigate allegations of rape or other serious student-on-student sexual
violence ?and misconduct. However, California's statutory scheme for regulating the
conduct and quali?cations of investigators requires licensing for person. . .who, for
any consideration whatsoever. . . engages in business or accepts employment to furnish, 
or agrees to make, or makes, any investigation for the purpose of obtaining, information

with reference to:

Crime or wrongs done or threatened against the United
States of America or any state or terrltory of the United States
of Amerlca.

The identity, habits, conduct, business, occu ation,
honesty, integrity, credibility, knowledge, trustwort iness,
ef?ciency, loyalty, activity, movement, whereabouts,
af?liations, associations, transactions, acts, reputation, or
character of any person.

Securing evidence to be used before any court, board,
of?cer, or investlgatmg committee.?

Bus. Prof. Code 7521.
42. ?No person shall engage in the business of a private unless that

person has applied for and received a license to engage in that business pursuant to this

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chapter}; (Bus. Prof. Code 

43. According to the State of Califomia?s Bureau of Security and Investigative
Services, to be eligible to apply for licensure as a private investigator, applicants must
undergo a criminal history background check through the California Department of
Justice (DOJ) and the Federal Bureau of Investigation (FBI) and have at least three years
(2,000 hours each year, totaling 6,000 hours) of compensated experience in investigative
work, have a law degree or completed a four year course in police science plus two years
(4,000 hours) of experience; or have an associate's degree in police science, criminal law,
or justice and 2 1/.2 years (5,000 hours) of experience. Applicants are also required to pass
a two-hour multiple-choice examination covering laws and regulations, terminology, civil
and criminal liability, evidence handling, undercover investigations and surveillance.46

44. The requirements for university Title IX investigators are far less stringent.
ATIXA provides certi?cation training courses for ?civil rights investigators? that can be
completed in just two days.47 And the due process aspects of university Title IX
investigations are not addressed until the more advanced ATIXA Level Four Certi?cation
Courses. (Id)

45. USC places the entire responsibility for the investigation, prosecution, fact-
?nding, and adjudication in the hands of non-swom, non-licensed individuals who act as
police, prosecutor, and judge without an evidentiary hearing.

46. This dual or triple role of a single person investigating complaints and presenting
or prosecuting the case on behalf of?the University and also adjudicating responsibility or
guilt, creates a potential con?ict that can deprive complainants and respondents of an

adequate, reliable, and impartial investigation. Such arrangements have been discouraged

by the US. Department of Education, Of?ce for CivillRights and the US. Department of 

Justice Civil Rights Division. Colleges and university are to ensure that individuals-who

play a role in receiving, investigating, and processing student complaints of sex-based

 

46 
47 
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harassment do not have any actual or perceived con?icts of interest in the process. (See,
University of Montana, DOJ Case No. DJ 169-44-9, OCR Case No. 10126001, May 9,
2013.) By allowing one person to act in all of these roles, that individual?s biases and
mistakes may persist in an investigation and adjudication unrestrained.

47. Under the Policy, an accused student has the right to: a summary of rights,
investigation procedures, and an avenue of appeal; equal treatment; a fair, thorough,

reliable, neutral and impartial investigation by a trained and experienced investigator;

written notice of the alleged policy violation including the speci?c acts, the date/period of 

time, and location; written notice of the requirement to meet with the investigator; the
opportunity to provide relevant information and names of relevant witnesses; the

opportunity to inspect documents and/or relevant information gathered during the

Title IX Of?ce and any sanctions imposed by the Misconduct Sanctioning Panel; and the

opportunity to appeal the ?ndings of the Title IX Of?ce or the Misconduct Conduct

Sanctioning Panel.

2. General Principles of Investigation and Adjudication.

48. SCampus 2016-2017 provides that USC is ?committed to the timely and fair
resolution of disciplinary problems in an adjudicatory process? and that both parties are
entitled to, fair and impartial review of the incident.?

49. The Policy provides that respondents are presumed not responsible; however, a
Complainant?s report is concurrently presumed to be made in good faith. In short, USC
must con?ictineg presume that both parties are telling the truth.

50. The presumption of a respondent?s non-responsibility is overcome only ?when a
preponderance of the evidence establishes that the Respondent committed the prohibited
conduct charged.?

51. According to Policy, ?The investigation will consider information that is

relevant, material, and temporally proximate to the conduct at issue; in other words,

 

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Forinformation that makes the existence of a fact or inference more or less likely. The Title
IX Coordinator may exclude information that is not relevant or is not considered credible
or reliable in the investigatory process.?

52. Under the Policy and Title IX, fact-finders and decision-makers may not
conclude that a student is responsible for violating the Policy based on the lesser standard
that the accusation is Supported by substantial evidence.

53. If the evidence is so evenly balanced that the investigator is unable to say that
the evidence on either side of an issue preponderates, the investigator?s ?nding on that
issue must be against the party who had the burden of proving it?in this case, the
University.

B. Summary Of Events.
1. Januarv 21, 2017. 

54. As of January 21, 2017, Zoe Katz, 22, was captain of the USC women?s tennis
team, was a nationally ranked singles player, and had been dating Matthew Boermeester
for well over a year. Mr. Boermeester, then 22, a kicker on football team, was
limping with a knee brace, due to recent knee surgery on January 10, 2017.

55. Around midnight on January 21, 2017, Ms. Katz and Mr. Boermeester returned
to Ms. Katz?s residence after getting french fries at McDonalds. The two were brie?y
engaged in loud, consensual horseplay and laughing in the alley before going into Ms.
Katz? residence. At one point, Max Brenner, another USC student, walked past Ms. Katz
and Mr. Boermeester to put his garbage in the dumpster and then walked back inside
without ever turning his head towards the two of them. As they entered her building,
Dylan Holt, 48 another USC student who had apparently seen part of their interaction from
a window, approached Ms. Katz and Mr. Boermeester and to see if Ms. Katz was alright.

Ms. Katz said she was fine.

 

43 Dylan Holt later told the Title IX Of?ce that he did not want to participate in the -
investigation and that he had not seen the entire interaction between Ms. Katz and Mr.
Boermeester in the alley. 

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2. The Report to USC Title IX Of?ce.

56. Ms. Zoe Katz never made any report to USC concerning Petitioner.

57. Dylan Holt, who had asked Ms: Katz if she was alright, told his roommate
Tanner Smith what Dylan thought he saw going on in the alley from his window.

58. Tanner Smith also approached Ms. Katz that night and noticed that Ms. Katz did
not seem upset by her interaction with Petitioner in the alley.

59. Tanner Smith, however, later spoke to his father Peter Smith, the USC Men?s
Tennis Coach, about what Dylan had told him. As a Responsible Employee, tennis coach
Peter Smith was required to report to the USC Title IX Of?ce whathe had been told by
his son, Tanner Smith, who had relayed to his father what Tanner had heard from Dylan
Holt.

60. Policy states:

Responsible Employees must immediately report all known
information about suspected prohibited conduct to the Title IX
Of?ce. This includes the name of the parties and known details
of the conduct. This duty applies no matter how the
information is learned; whether from direct report from an
affected party, from social media, or from a concerned third
party. Fallure by a Res onsible Employee to make a timely
report of prohibited con uct may be subject to discipline, up to
and including removal from their position.? (PT0230)

61. Although the USC Title IX investigation refers to Zoe Katz as the ?Reporting
Party,?49 Ms. Katz repeatedly told USC that she had not experienced any prohibited
conduct by Petitioner. 

62. On or about January 26, 2017, Lynette S. Merriman, Assistant Vice
Provost for Student Affairs, noti?ed Petitioner that ?[t]he Of?ce of the Vice President for
Student Affairs has placed you on interim suspension pending administrative review of a
Title, IX investigation.? Mr. Boermeester was escorted off campus on January 26, 2016

and was excluded from all classes, seminars and university programs, not permitted any

 

49 Policy states, ?For the purposes of this policy, the individual who is reported to have
experienced prohibited conduct is referred to as the Reporting Party. The Respondent is the
individual who is reported to have committed the prohibited conduct.? (PT0230)

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involvement with organized football team functions including practice, games, or
training, and was banned from all University sponsored activities.

63. Assistant Vice Provost Merriman also noti?ed Mr. Boermeester, ?You may have
no contact with Z.K. [Zoe Katz], directly or indirectly by any means.?

64. Neither Zoe Katz nor Matthew Boermeester?two adults in a consensual,
private, romantic relationship?had any interest in remaining apart.

65. USCIlater charged Petitioner with violating the interim measure because Ms.
Katz and Petitioner continued their private relationship, which should be of no concern to
the University.

3. The Title IX Investigation.

66. From approximately January 22, 2017, through March 22, 2017, Title IX
Investigator Lauren Elan Helsper50 conducted her investigation, interviewing Matthew
Boermeester, Zoe Katz, Dylan Holt, Max Brenner, as well as fourteen other witnesses
who had no ?rst-hand knowledge of any of the events of January 21, 2017. Title IX 
investigator Helsper also collected screenshots of text messages, emails, an audio
recording, and security video footage from the alley on January 21, 2017.

67. Title IX Investigator Lauren Elan Helsper does not audio record or otherwise
make a transcription of her witness interviews. There is no verbatim record of the
questions that the Title IX Of?ce asks witnesses, nor the response from the witness. The
record of witness interviews consists of notations and summaries prepared by Title IX
investigator Helsper.

68. USC also does not provide the accused student with the evidence. The evidence
can only be viewed in person at the Title IX Of?ce, or, under certain circumstances,

viewed online via a web-based service called OneHub, which does not allow for

 

50 According to website, ?Lauren began working at USC in 2011 as student crisis case
manager in Student Affairs. She transitioned to Equity and Diversity in 2014 as an investigator
and project specialist before joining the Title IX Of?ce. Lauren earned her master?s degree in
postsecondary education and student affairs at USC and earned her bachelor?s degree from
UCLA. She is currently working on her doctorate at USC in higher education administration.?

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documents to be downloaded, saved, or printed.
69. USC prohibits the accused student from having a copy of the actual documents
or evidence. According to Policy:
Evidence Review occurs at the Title IX Office. Witness
statements, physical and documentary ev1dence, and
audio/visual material is provided for review. Parties are not

provided copies or allowed to take photographs. Parties may
take notes. (PT0246.)

70. Zoe Katz? insistence that no prohibited conduct occurred in the alley on January
21, 2017 is con?rmed by the security video footage from the alley, which USC refuses to
turn over but did allow Ms. Katz, Petitioner, and their advisors to view in the Title IX
Of?ce.

71. USC prohibits students from being represented by an attorney in the Title IX
process. As mandated by federal law, USC Policy provides that an attorney may serve as
an advisor, however, the advisor is only ?to provide support and assistance in
understanding and navigating the investigation process . . . The advisor is not an
advocate.? (PT0240.)

72. Title IX investigator Helsper was supervised by USC's Title IX Coordinator-
Gretchen Dahlinger Means,5  who also participated in at least some investigation

interviews.

 

5' According to website, Gretchen Dahlinger Means was a prosecutor with the San
Diego District Attomey?s Of?ce from 2000 to 2007, where she was assigned to the Sex Crimes
Unit and prosecuted cases involving sexual assaults, Sexually Violent Predator commitments,
sex-based homicides, and criminal sexual exploitation. Ms. Means also participated on a variety
of state and federal task forces dedicated to combating criminal sexual exploitation and helped
form a county-wide, multi-disciplinary group on the topic. She provided 24?hour support to law
enforcement in the San Diego region and developed and facilitated annual training on sexual
assault prosecution, and taught internationally on sexual assault and criminal sexual exploitation.

In 2013, Gretchen was recruited by the US. Marine Corps and became a Highly Quali?ed
Expert in Sexual Assault and Complex Litigation. She developed sexual assault protocol, and
trained and mentored prosecutors on ?ve west coast installations.

In another Title IX case, Title IX Coordinator Gretchen Dahlinger Means acknowledged that
she and USC Title IX investigator Patrick Noonan referred to an accused male student and his I
advisor as ?motherfuckers.? See, John Doe v. Ainsley Carry, er al., Los Angeles Superior Court
Case B8163 736; See 

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73. After the Title IX Of?ce completes the investigation, USC does not conduct an
evidentiary hearing before a neutral or impartial panel or adjudicator.

74. Instead of an evidentiary hearing, Policy provides for what it calls an
?Evidence Hearing,? where Title IX Coordinator Gretchen Dahlinger Means and Title IX.
investigator Lauren Elan Helsper meet with the Respondent and with the Reporting Party
separately. In the Evidence Hearing, the students may respond orally or in writing to the
evidence that they were permitted to View in Title IX Of?ce. Title IX Coordinator
Gretchen Dahlinger Means may also ask each party questions that have been submitted
by the other party.

75. USC provided no process for Matthew Boermeester to question, if even
indirectly with, the witnesses against him. In failing to provide this
requirement of a fair process, USC improperly deprived Mr. Boermeester of ?a full
opportunity to present his defense.? (Andersen v. Regents of Univ. of Cal. (1972) 22
Cal.App.3d 763, 771.)

76. For the Evidence Hearing, Zoe Katz submitted her written statement that denied
that any prohibited conduct occurred on January 21, 2017, or at any time.

77. For his Evidence Hearing, Matthew Boermeester submitted his written
statements that showed the prohibited conduct that USC alleges took place on January 21,
2017 did not occur. 

78. Given that no one actually saw the interaction in the alley other than Zoe Katz
and Matthew Boermeester, and that the video does not depict any prohibited conduct, and
there is no physical or direct evidence of any prohibited conduct, Matthew Boermeester
expected to be cleared by ?fair, thorough, reliable, neutral and impartial
investigation by a trained and experienced investigator.?

79. Under policy, the Title IX investigation is to consider only information
that is relevant, material, and temporally proximate to the conduct at issue. (PT0238.)

Character evidence is not admissible and will not be considered. (PT0238.) However,

 

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the Policy also provides that Title IX investigator Helsper will decide what evidence she
wants to cOnsider in forming her personal opinions about ?ndings of fact. (PT0247.)

80. After Title IX investigator Helsper decides the facts, based on her own
investigation and what evidence she wishes to consider, Ms. Helsper and Title IX
Coordinator Gretchen Dahlinger Means decide whether the Respondent violated the
Policy based on Ms. Helsper?s opinion regarding the facts. (PT0247.)

81. In this case, Title IX investigator Helsper and Title IX Coordinator Gretchen
Dahlinger Means decided that Petitioner had violated the Policy sections VI.E., Intimate
partner violence, and VI.G., Violation of an interim measure (in that Ms. Katz and Mr.
Boermeester had continued their relationship.)

5. Anonymous Misconduct SanctioningJ?anel.

82. After Ms. Helsper and Ms. Means found Petitioner responsible for violating
the Policy, the Title IX Of?ce forwarded its Summary Administrative Report to the
Misconduct Sanctioning Panel. The role of the Misconduct Sanctioning Panel is to
determine what sanction is appropriate based on the conclusions of the Title IX Of?ce.
(PT0248.) .

83. The Misconduct Sanctioning Panel is composed of three unidenti?ed
individuals, two of whom are staff or faculty designated by Michael Quick,52 the Provost
and Senior Vice President for Academic Affairs, and the third member is an
undergraduate or graduate student, depending on the standing of the Respondent.
(PT0248.)

84. Title IX Coordinator Gretchen Dahlinger Means trains the members of the

 

52 According to website, Dr. Michael Quick has held this position since April 1, 2015,
and was also responsible for overseeing the Keck School of Medicine and some 17 other
professional schools. In response to the recently reported misconduct by USC medical school
dean Dr. Carmen A. Pulia?to, Dr. Quick explained delay in taking action in his letter to
faculty, ?1 know many people wanted us to act on allegations and hearsay, but we needed actual
facts.? See, Paul Pringle, Adam Elmahrek, Matt Hamilton and Sarah Parvini, received
more than a year of questions about former medical school dean ?s conduct before scandal
broke? (July 23, 2017) Los Angeles Times. 


 

PETITION FOR WRIT OF MANDAMUS
25

 

 

 

 

00 O\.kh DJ u?i

.- .n  
r?n i?Misconduct Sanctioning Panel twice each year and the panelists serve terms of two
school-years. (PT0248.)

85. Title IX Coordinator Gretchen Dahlinger Means attends the meetings and
deliberations of the Misconduct Sanctioning Panel, but does not have a vote in
determining the speci?c sanctions. (PT0248.)

86. In this case, the Misconduct Sanction Panel met on May 2, 2017, and decided
that Petitioner should be enpelled. A

6. Anonymous Appellate Panel.

87. Under Policy, after the Misconduct Sanctioning Panel?s sanctioning
decision, either the Reporting Party or the Respondent, or both, may ?le a written appeal
to the Appellate Pane]. (PT0249.) The Appellate Panel is composed of three unidenti?ed
individuals, at least one of whom is a faculty member, appointed by Respondent Ainsley
Carry, the Vice President for Student Affairs. (PT0249.) 

88. Title IX Coordinator Gretchen Dahlinger Means is also responsible for the
training of the Appellate Panel members. (PT0249.)

89. As to the appeal, the Policy provides:

A review by the Appellate Panel is narrowly-tailored to the
provisions of this policy and relevant reasons for appeal.

Appeals are not a full rehearing of the facts or findings.
(PT0250.) ..

90. Appellate Panel decisions.?are to defer to the Title IX Of?ce and the Misconduct
Sanctioning Panel? and make recommendations to Respondent Ainsley Carry, Vice
President for Student Affairs, who may modify or accept the recommendation at his sole
discretion. (PT0253.)

91. In this case, the Appellate Panel denied Petitioner?s appeal but recommended a
2-year suspension instead of expulsion. 

7. Final/Decision bv RespondentAinslev Carry.
92. Under Policy, Dr. Ainsley Carry, Vice President for Student Affairs,

makes the ?nal decision on appeal and, once made, Dr. Carry?s decision is ?nal and

 

PETITION FOR WRIT OF MANDAMUS
26

 

 

binding upon all parties. (PT0253.)

93. On July 7, 2017, Ainsley Carry approved the conclusions reached by the Title IX
Investigator and the Appellate Panel regarding the two Policy violations, however, Dr.
Carry did not accept the recommendation of the Appellate Panel to two-year suspension,

and increased the sanction to expulsion:

Whether you intended to cause the Reporting Party harm or did
so recklessly, expulsion is appropriate given the nature of the
harm in?icted upon the Party,? as well as your
violation of the University's Avoidance of Contact order.
(PT0255.)

94. Once Respondent Dr. Carry issued his ?nal decision in Title IX Case 20170003,
Petitioner had no further avenue of appeal. (PT0255.)
95. Shortly thereafter, USC announced publicly:

Placekicker Matt Boermeester, whose -18 ?eld goals last
year?including a 46-yarder at?the gun to win the Rose Bowl?-
were 1 shy of the school record, won?t return because of a
student code of conduct issue.

PROCEDURAL ERRORS.

96. At a minimum USC was required to 1) ?ensure the Title IX rights of the
complainant,? but ?accord due process to both parties involved,? a requirement
applicable to both state and private schools; (2) provide an ?adequate, reliable, and
impartial investigation? (3) provide the complainant and the accused student ?an equal
opportunity to present relevant witnesses and other evidence?; (4) ensure that the -
?fact?nder and decision maker . . . have adequate training or knowledge regarding sexual
violence? and (5) require ?documentation of all proceedings, which may include written
?ndings of fact, transcripts, or audio recordings.? The University has failed on almost

every point.

A. Doctrine Of Judicial Non?Intervention Does Not Apply.

 

53 Zoe Katz denies she was ever harmed, there was no physical evidence of any harm, and Ms.
Zatz repeatedly told USC that there was no prohibited conduct.
PETITION FOR WRIT OF MANDAMUS
27

 

 

 



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97. The doctrine of judicial nonintervention into the academic affairs of schools does
not apply in instances of non-academic affairs, such as this Title IX investigation and
hearing process for alleged violation of misconduct policy. (See Banks v.
Dominican College (1995) 35 Cal.App.4th 1545; Paulsen v. Golden Gate University

(1979) 25 Cal.3d 803.)

B. Respondent?s Administrative Action Affects Vested Fundamental
Rights.

98. Petitioner has a vested fundamental right under Title IX, that Petitioner, as well
as any similarly situated student, may not be deprived of access to educational programs
and activities through an administrative process that does not afford due process, is not
fair, impartial, reliable, and equitable or is overly punitive and not remedial.54

99. administrative process affected Petitioner's right to complete his degree
and his fundamental rights under Title IX.

100. The Title IX administrative action against Petitioner was initiated and
maintained solely by the University.

101. The University is solely responsible for any harm to Petitioner caused .by the

University?s administrative action.

C. Cumulative Impact of Unfairness.

In this case, the ?cumulative impact? of the refusal and failure of the University to
disclose evidence, the lack of any opportunity to confront or challenge witnesses directly
or indirectly, the absence of the weight of credible, substantial evidence supporting the
investigators? opinions, the reliance by the Chancellor on evidence not disclosed to
Petitioner to deny his appeal, have a cumulative effect and demonstrate a ?notable stench

of unfairness.? (Rosenblit v. Superior Court, supra, 231 Cal.App.3d at 1445.)

IV. ACTIONS AND DECISION ARE INVALID

102. On information and belief, Respondents? actions, sanctions, and decisions are

 

54 See, Questions and Answers on Title IX and Sexual Violence, OCR, April 29, 2014, p. 29
PETITION FOR WRIT OF MANDAMUS
28

 




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invalid under Code Civ. Proc. 1094.5. and alternatively, Code Civ. Proc. 1085, for the

following reasons:
a. Respondent failed to grant Petitioner a fair hearing, or any hearing at all;

b. Respondent committed a prejudicial abuse of discretion, in that
Respondent failed to proceed in the manner required by law;

c. Respondent's decision is not supported by the ?ndings; and

d. Respondent's ?ndings are not supported by the evidence.

103. Respondents? actions and decision deprive Petitioner of fundamental vested
rights; therefore, the reviewing court must exercise its independent judgment to reweigh

the evidence pursuant to Code Civ. Proc. 1094.5, subd. 

104. On information and belief, relevant evidence is available that was improperly
excluded or unavailable during Title IX disciplinary process. Petitioner will seek
leave to offer such evidence before the reviewing court at the hearing on this Petition.

105. Petitioner has exhausted all administrative remedies available to him as of the
date of ?ling this Petition.

106. Petitioner has no plain, speedy and adequate remedy in the ordinary course of
law. .

107. Petitioner brings this action not only to enforce his own rights, but in the
enforcement of important rights affecting the public interest and the due process rights of
college and university students who participate in Title IX disciplinary proceedings at
universities and colleges throughout the State of California, including the approximately
44,000 students attending USC.

108. Petitioner is obligated to pay an attorney for legal services to prosecute! this
action. Petitioner may be entitled to recover attorney?s fees as provided in Code Civ.
Proc. 1021.5 if Petitioner prevails in the within action.

109. Petitioner intends that this Petitioner serve as a request for Respondents to 

produce the complete Administrative Record of its Title IX investigative process against

PETITION FOR WRIT OF MANDAMUS
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(5.5
13Petitioner. Petitioner reserves the right to augment, supplement, and modify this Petition

when he is able to review the Administrative Record.

PRAYER FOR RELIEF
WHEREFORE, Petitioner prays the court for judgment as follows:

1. For an alternative writ of mandate directing Respondents to set aside the 
?ndings and interim suspension issued against Petitioner, or to show cause why a
peremptory writ of mandate to the same effect should'not be issued;

2. For a peremptory writ of mandate directing Respondents to set aside their
?ndings and sanctions against. Petitioner;

. 3. . For reasonable attorney?s fees and litigation expenses? as permitted by

statute, in addition to any other relief granted or costs awarded;

4. For all costs of suit incurred in this proceeding; and
5. For such other and further relief as the court deems proper.
WERKSMAN JACKSON

    

 AugUSt 11,   A f: 7  
 .  . 
Attorneys for Petitioner

   
 

 

 

 

PETITION FOR WRIT OF MANDAMUS

30

 

 

 

VERIFICATION

I am Matthew Boermeester, the petitioner in'this action. I-have read the foregoing I

petition and know the contents thereof. The same is true of my. own-knowledge, except
as to those matters which are therein alleged on informationand belief, and as to those
matters, I believe it to be true. 

I declare under'penalty of perjury under the laws of the State of California that the

foregoing is true and correct. Signed on the date below at San Diego, California.

at

Petitioner, Matthew Boermeester

Date: August 11, 2017

 

 

PETITION FOR WRIT OF MANDAMUS
31