YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 Los ANGELES. CALIFORNIA 90015 sYOUNG, ZINN BATE LLP JULIE ARIAS YOUNG (State Bar No. 168664) jyoung@yzblaw.com KAREN J. PAZZANI (State Bar No. 252133) kpazzani@yzblaw.corn 1150 South Olive Street, Suite 1800 Los Angeles, California 90015 Telephone: (213) 362-1860 Facsimile: (213) 362?1861 Attorneys for Respondent AUG 31 291; Babe"! R. patter, Exec vs Officer/Clerk .112 Karl rarlan ,Daputy UNIVERSITY OF SOUTHERN CALIFORNIA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES MATTHEW BOERMEESTER, an individual, Petitioner, v. AINSLEY CARRY, an individual in his of?cial capacity as Vice President for Student Affairs; THE UNIVERSITY OF SOUTHERN CALIFORNIA, a California Corporation; and DOES 1 to 20 inclusive Respondent. Case No. BS170473 UNIVERSITY OF SOUTHERN MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE [Filed concurrently with Declarations of Karen J. Pazzani and Gretchen Dahlinger Means and Notice of Lodging Pursuant To Cal. R. Ct., Rule Date: September 8, 2017 Time: 9:30 am. Dept: 86 MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET, SUITE 1800 Los ANGELES. CALEFORNEA 90015 II. IV. TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF ARGUMENT 1 STATEMENT OF FACTS 3 A. Jane Roe?s Initial Statement About January 21, 2017. 3 B. Two Witnesses Observed the Assault. 4 C. Jane Roe?s Description Of The January 21, 2017 Assault To Friends Corroborates Her Initial Statement To The Title IX Of?ce 5 D. The Surveillance Video Con?rms The Witnesses? And Jane Roe?s Initial Account Of The Assault And Disproves Petitioner?s Account and Jane Roe?s Subsequent Denials. 6 ARGUMENT 7 A. Granting A Stay Would Undermine Process, Contravene The Public Interest In Providing An Educational Environment Free From Domestic Violence And Sexual Harassment, And Dissuade Other Victims and Witnesses From Accurately Reporting Misconduct. 8 B. Granting A Stay Would Undermine Title IX Process In Contravention Of The Deference Afforded To Student Disciplinary Decisions. 10 CONCLUSION 14 i MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN 8. BATE LLP 1 150 SOUTH OLIVE STREET SUETE 1800 Los ANGELES. CALIFORNIA 9001 5 mammamuucwmqam-Awuwc TABLE OF AUTHORITIES gagged California Cases Desmond v. County of Contra Costa, 21 Cal. App. 4th 330 (1993) 13 Doe v. Regents of the University of California, 5 Cal. App. 5th 1055 (2016) 12, 13 Doe v. University of Southern California, 246 Cal. App. 4th 221 (2016) 13 Granowitz v. Redlands Unified School Dist, 105 Cal. App. 4th 349 (2003) 11 Great Am. Ins. Co. v. Superior Court, 178 Cal. App. 4th 221 (2009) 8 Nathan G. v. Clovis Uni?ed School District, 224 Cal. App. 4th 1393 (2014) 11 Pomona College v. Superior Court, 45 Cal. App. 4th 1716 (1996) 10 Non-California Cases C. R. v. Eugene School District 4J, 835 F.3d 1142 (9th Cir. 2016) 11 Doe v. St. Francis Sch. Dist, 694 F.3d 869 (7th Cir. 2012) 11 Havlik v. Johnson Wales University, 509 F.3d 25 (5th Cir. 2007) 11, 12 Schaer v. Brandeis University, 432 Mass. 474 (2000) 11, 12 Sweezy v. New Hampshire, 354 US. 234 (1957) 10 Statutes 20 U.S.C. 1232g 1 Cal. Civ. Proc. Code 1094.5(g) 7 Cal. Educ. Code 67386 8, 10 Rules California Rule of Court 2.550 1 California Rule of Court 2.551 1, 2 ii - MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 Los ANGELES. CALIFORNIA 90015 ooqaxmauNr?nakcooqcnmAMNT??c Reference Materials Cal. Admin. Mandamus 11.08 - 8 Cal. Admin. Mandamus 11.11 8 1 MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET, SUITE 1800 Los ANGELES, CALIFORNIA 90015 I. INTRODUCTION AND SUMMARY OF ARGUMENT At the hearing on Petitioner?s ex parte application for a stay of his expulsion, the Court requested additional brie?ng regarding: (1) what Jane Roe and the witnesses said occurred on January 21 2017; and (2) whether a stay is against the public interest. In response, Petitioner?s counsel asked Respondent?s counsel on the record to provide him with the witness interview notes and the surveillance Video of the January 21, 2017 assault to assist him in preparing his supplemental brief. Respondent?s counsel agreed but stated that the notes were con?dential and would need to be redacted prior to production. In response, Petitioner?s counsel stated on the record that, in lieu of redaction, he would agree to treat the documents as con?dential and abide by the Los Angeles Superior Court Model Protective Order. The Court agreed that it would sign a protective order submitted by the parties. At Petitioner?s request, the Court also conditionally sealed a document USC ?led -- a redacted version of Summary Administrative Review, which included a detailed summary of the evidence supporting decision to expel Petitioner. Petitioner?s counsel asserted that Petitioner has a privacy interest in the document pursuant to the Family EducatiOn Rights Privacy Act 20 U.S.C. 1232g and stated that he would ?le a motion to seal the document. He has not ?led such a motion and the time to do so pursuant to California Rule of Court has expired. On August 18, 2017, shortly after the hearing, the parties entered into a Stipulated Protective Order (based on the Los Angeles Superior Court model). The Court entered the Stipulated Protective Order, and Respondent produced all of the documents Petitioner?s counsel requested, along with the surveillance video of the assault, subject to the Stipulated Protective Order. On August 21, 2017, Petitioner violated the Protective Order by publicly ?ling a supplemental brief that directly quotes con?dential documents without redacting the witnesses? names or providing Respondent with an opportunity to ?le a motion to seal.1 Petitioner?s 1 Paragraph 17 of the Protective Order states: ?Where any Con?dential Materials, or Information derived from Con?dential Materials, is included in any motion or other proceeding governed by California Rules of Court, Rule 2.550 and 2.551, the party shali follow those rules.? California Rules of Court, Rule states that a party who intends to ?le records subject to a protective order who does not intend to request to have those records sealed must ?le a redacted version of the document, removing the con?dential information, and lodge the unredacted records 1 MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET SUITE 1800 Los ANGELES, CALIFORNIA 90015 co 4 a OJ supplemental brief further includes allegations about one witness that, if true, would unnecessarily divulge private information. Petitioner?s ?agrant disregard for the privacy of the witnesses, while strategically seeking to seal documents that do not support his own narrative, is gamesmanship at its worst. Based on Petitioner?s decision to ?le this matter without using a pseudonym and his decision to speak to the press about his request for a stay, this matter has become public and it appears Petitioner is using his public ?lings to embarrass the witnesses who spoke out against him while using his alleged privacy rights as a shield to prevent USC from publicly responding to his allegations. Leaving Petitioner?s gamesmanship aside, his supplemental brief fails to address the issues on which the Court requested further brie?ng. Petitioner?s summary of the facts is a cherry-picked version of the witnesses? statements and entirely ignores Jane Roe?s initial statements to the Title IX Investigator. As described below, decision to expel Petitioner is supported by the statements of two Witnesses to the January 21, 2017 assault, a surveillance video corroborating the witnesses? accounts, the victim?s own initial statements to the Title IX Investigator, and text messages that Jane Roe sent to the Title IX Investigator and her friends. Because decision is supported by the weight of the evidence, a highly public stay would undermine the public interest in providing an educational environment free from domestic Violence, sexual harassment, and sex-based discrimination. It would unjusti?ably tarnish . Title IX process without a full review of the evidence and have a chilling effect on other victims and Witnesses, dissuading them from reporting domestic violence and sexual assault in contravention of the public and government interest in increased reporting and increased support for victims. Additionally, a stay would undermine the speci?c deference afforded to student disciplinary decisions. The Court should therefore deny Petitioner?s request for a stay in its entirety. conditionally under seal. Rule further states the party must give notice to the party that produced the records that the documents lodged under seal will be placed in the public court ?le unless a motion to seai is ?led within 10 days. Petitioner failed to foilow these procedures. 2 MEMORANDUM To snow CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET SUITE 1800 Los ANGELES, CALIFORNIA 90015 In recognition of Petitioner?s interest in seeing this matter resolved quickly, however, USC has no objection to the Court setting an expedited schedule for a hearing on the merits. Spring 2018 semester begins on January 8, 2018. Subject to the Court?s and Petitioner?s counsel?s schedule, USC believes this matter can be fully adjudicated by that time. This schedule would accommodate Petitioner?s interest in adjudication of this matter prior to the start of the Spring semester without undermining process and the strong public interest in preventing partner violence on college campuses espoused in state and federal law that would occur if a stay is issued. II. STATEMENT OF FACTS A. Jane Roe?s Initial Statement About January _21, 2017. Jane Roe initially confirmed that Petitioner assaulted her on January 21, 2017. She informed Title IX Investigator that the assault began when Petitioner grabbed the back of her hair ?hard? in the alley by her apartment and told her to ?drop the fucking leash,? instructing her to release her dog in the alley. (Declaration of Gretchen Dahlinger Means, (?Means Exh. 1, p. 2.) Jane Roe said Petitioner then grabbed her hair harder, which ?hurt? and caused her to release the dog?s leash. (Id) According to Jane Roe, Petitioner then grabbed her by her neck, holding ?tight? and causing her to cough. He let her go, laughed, and made a comment about the television show ?Westworld,? ?and how you can hurt the robots because they aren?t well.? (Id) He then grabbed her by the neck again and pushed her ?hard? against a concrete wall. (Id) She hit her head on the wall, which hurt her. (Id) Jane Roe explained that Petitioner then let her go and did it again, grabbing her neck and pushing her into the wall. (Id) Jane Roe reported seeing three of her neighbors immediately after the assault DH, TS, and M82. DH and TS took her into their apartment, however Jane Roe told the Title IX Investigator she returned'to her apartment because Petitioner ?wouldn?t understand,? if she was gone. (Id) Jane Roe was crying throughout the interview with the Title IX Investigator. (161., p. 7.) She asked for an avoidance of contact order directing Petitioner not to contact her and emergency housing when Petitioner was noti?ed of the investigation because she was afraid of how Petitioner 3 MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 Los ANGELES, CALIFORNIA 90015 would respond. p. 6.) In fact, following Jane Roe?s interview with the Title IX Of?ce, she sent the Title IX Investigator several text messages expressing concern about Petitioner?s reaction to the investigation, writing: ?He can?t know I made a statement. Can you not tell him I made a statement. Like he can?t know I met with you guys.? (Id, Exh. 2.) The Title IX Of?ce made every effort to support Jane Roe, providing her with emergency housing when she was in town between January 24 and 30, 2017. (Means Decl. ISO Opposition to Ex Parte Application, Exh. I, p. 12, fn. 18.) Consistent with her request, Jane Roe availed herself of the emergency housing. B. Two Witnesses Observed the Assault. DH and MB2 each separately observed the January 21 2017 assault. DH reported that he heard a male yelling loudly and a woman talking. He looked out his window to see what was happening and saw that ?[Petitioner] had pinned [Jane Roe] against the wall with his hand on her chest/neck.? (Means Deck, Exh. 3, p. 1.) Jane Roe?s dog was running around the street, which is ?when DH knew that there was an issue because she doesn?t let her dog run around.? (161.) DH grabbed his roommate, TS, who was asleep, telling him ?[Jane Roe] and [Petitioner] are fighting,? and went outside. MB2 initially reported that he heard an argument, which may have been about a dog, but did not see anything. Exh. 4.) About a month later, while the investigation was still ongoing, he contacted the Title IX Investigator to explain that, despite his earlier statement, he actually ?saw everything.? Exh. 5, p. 1.) He explained that he initially told the Title IX Investigator that he had not seen anything out of respect for Jane Roe and her desire to ?keep it on the down low.? He then explained that on the night of January 21, 2017, he heard laughing and then screaming sounds in the alley. The sounds were playful at ?rst, but then the male was ?asserting his dominance? over the female. (1d) MB2 then saw a man standing with ?both of his hands? around Jane Roe?s neck, pushing her against a wall. (Id) He heard Jane Roe ?gagging.? Based on what he observed, MB2 believed that the man?s behavior was ?violent? and that he was ?domestically abusing [Jane Roe].? He went downstairs with his trash bag and asked how things were going, which ?broke it up.? (161.) He believed Jane Roe was scared and ?could see in her eyes, she was very scared.? (Id) 4 MEMORANDUM TO snow CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, SUITE 1800 LOS ANGELES, 90015 co -l A DJ NI couchm-thh-LcwoechUIAmNr-aa C. Jane Rae?s Description Of The January 21, 2017 Assault To Friends Corroborates Her Initial Statement To The Title IX foice. DH and TS2 interacted with Jane Roe immediately after the January 21, 2017 assault. They encountered her as she was returning to her apartment and asked her to speak with them in their apartment. (Id, Exhs. 3, 6.) They tried to convince her to stay in their apartment. DH reported that Jane Roe ?seemed pretty scared,? but said ?No, it?s going to be ?ne, I don?t want to make him more mad, I will go back there.? (Id, Exh. 3, p. 1.) TS reported that Jane Roe was ?crying and tried to wipe away the tears. She didn?t want [Petitioner] to know and said that he was going to be suspicious that she was there for so long.? (Id, Exh. 6, p. 3.) Other witnesses GO, GS, SS, and Coach Smith interacted with Jane Roe shortly after the assault. They reported the following regarding their interactions with Jane Roe: - According to GO, Jane Roe said Petitioner ?came home very drunk and threw her against the wall of the apartment.? (Id, Exh. 7, p. 1.) GO reported that Jane Roe was on the verge of tears or crying when she said this. (Id) According to G0, Jane Roe also said it ?hurt? when Petitioner ?hit her head against the wall? and she had ?bruises to prove something really did happen.? (Id, 8, p. 0 Jane Roe?s description to SS was similar. SS said Jane Roe told her Petitioner ?got drunk at a party and they got in an argument outside the apartment and he grabbed her by the throat and threw her against the wall.? (Id, Exh. 9, p. 2.) Ac'cording to SS, Jane Roe said she was scared when it was happening but now ?wants to take that back? because she feels bad that Petitioner was suspended. (Id) 0 GS reported that Jane Roe said she had bruising on her arm after the assault. (Id, Exh. 10, p. 1.) 0 Coach Smith told the Title IX Investigator that when he told Jane Roe that he had reported the assault, Jane Roe was emotional and crying. Coach Smith stated that Jane Roe said, ?yea, you know, I am afraid of him, I am ashamed because I haven?t left but I 2 USC is not aware of any evidence suggesting that TS regularly consults with or has a professionai relationship with Dr. Lani Lawrence. Rather, TS reported that he called Dr. Lawrence to seek advice about what to do about what he witnessed between Petitioner and Jane Roe. 5 MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 LOS ANGELES, 90015 on ON 0] A b) am afraid if I do leave, it will be much worse.? Exh. 11, p. 1.) Jane Roe?s text messages to her friends following the altercation also corroborate her initial report that the January 21, 2017 assault was not consensual horseplay, as she later claimed. For example: 0 Jane Roe texted GO around the time Petitioner was noti?ed of the investigation and wrote: know you don?t understand really why I?m being lenient about this but I don?t want anything else bad happening to (161., Exh. 12, p. 2.) (Emphasis added.) Notably, Jane Roe did not state that Petitioner?s conduct was consensual. Rather, she indicated she was ?being lenient? because she wanted to protect him from further consequences. 0 Jane Roe texted TS before his interview with the Title IX Investigator and told him that she knew he would not agree, but she had decided to help Petitioner. Regarding interview, she said ?Please don?t him over more. I?m not in danger at all I trust him I trust that he won ?t ever hurt me again.? (Id, Exh. 13, p. 2.) (Emphasis added.) Again, in her text message to TS, Jane Roe did not deny that Petitioner hurt her in the ?rst place (indeed, she admitted he did), nor did she claim that the altercation that TS reported was consensual or just ?rough housing.? D. The Surveillance Video Con?rms The Witnesses? And Jane Roe?s Initial Account Of 'The Assault And Disproves Petitioner?sAccount and Jane Rae?s Subsequent Denials. In his initial interview with the Title IX Investigator, Petitioner stated that he put his hands around Jane Roe?s neck while they were standing next to a wall - describing it variously as a ?joke? or ?a sexual thing.? Exh. 14, pp. 2?3, 9.) A surveillance video con?rms that, among other things, Petitioner did put his hands around Jane Roe?s neck on several occasions, but is inconsistent with Petitioner?s characterization that it was ?joke.? The video of the altercation shows Petitioner pushing Jane Roe hard at 12:16:16 am. on January 21, 2017 .3 She stumbles 3 The surveillance video is being concurrently iodged with the Court and will be made available for review at the hearing. 6 MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOTISSUE YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET SUITE: 1800 LOS ANGELES, CALIFORNIA 90015 backward for several steps. Petitioner then walks away. Jane Roe brie?y stands still and then walks toward Petitioner. When he turns toward her again, she runs from him. Petitioner walks toward her and then the two can be seen standing face-to-face and possibly touching. At approximately 12:16:49 am, Petitioner can be seen with his arms on or near the front of Jane Roe?s neck. The two are facing one another and he pushes her back several steps and then drops his arms. The two stand close to one another and Petitioner appears to have his hands on ane Roe?s neck at various times. At 12:17:12 am, Petitioner grabs Jane Roe by the front of the neck while facing her and forcefully pushes her backwards for approximately seven steps. He pushes her into a wall and out of the camera?s view. Jane Roe?s head and body lean backward from the force of Petitioner?s movement. Petitioner makes forceful, rapid steps and pushes Jane Roe backwards while holding her by the neck.4 At 12: 17:26 am, Petitioner and Jane Roe re?enter the camera?s view. Jane Roe appears to be pushing Petitioner off of her. At 12:17:38 am, Petitioner moves toward Jane Roe again, puts his hands around her neck again, and pushes her toward the wall, where she is again out of the camera?s view. The surveillance video is entirely consistent with Jane Roe?s initial statement to the Title IX Investigators, where she described Petitioner grabbing her by the neck at least three times. Jane Roe?s dog can also be seen running in the alley near the street at various times, consistent . with Jane Roe?s and statements that the dog was running loose during the altercation. It also contradicts Jane Roe?s later claim that Petitioner hit, choked, kicked, pushed or otherwise physically abused [herJanuary 21, 2017.? (Means Decl. ISO Opposition to Ex Parte Application, Exh. 1, p. 67.) The video shows Petitioner making aggressive physical contact Iwith Jane Roe, including pushing her and grabbing her by the neck. ARGUMENT On a petition for writ of administrative mandamus, the court is expressly precluded from granting a stay if it would be ?against the public interest.? Cal. Civ. Proc. Code As the moving party, it is Petitioner?s burden to demonstrate by ?a factual showing that the public 4 Thus, the surveillance video refutes Petitioner?s allegation (made for the ?rst time in his Writ) that he was iimping due to a recent knee surgery. (Pet. 11 54). 7 MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT issu'E' YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, SUITE 1800 LOS ANGELES, CALIFORNIA 90015 00 -l A 00 will not be harmed if the stay is granted.?5 See Cal. Admin. Mandamus 11.11, 11.08. This is not a balancing test. Thus, the relevant inquiry is whether a stay is against the public interest; not whether the failure to grant a stay will harm Petitioner. Here, Petitioner has not met his burden of demonstrating that a stay will not harm the public interest. In fact, his request should be denied because granting a stay would harm the public interest in providing an educational environment free from domestic violence and undermine the deference afforded to university disciplinary decisions. A. Granting A Stav Would Undermine Process, Contravene The Public Interest In Providing An Educational Environment Free From Domestic Violence And Sexual Harassment, AndTDissuade Other Victims and Witnesses From Accurately Reporting Misconduct. State and federal law confirm the strong public interest in preventing domestic violenCe, sexual harassment, and discrimination based on sex on university campuses. California Education Code 67386 requires colleges and universities that receive state funds to adopt policies to address ?sexual assault, domestic violence, dating violence, and stalking? and requires them to use the preponderance of the evidence standard (the same standard utilized in most civil cases) to assess whether the accused student violated the school?s policy. Likewise, Title IX and the guidance promulgated thereunder require colleges and universities to investigate and remedy complaints relating to sexual misconduct and domestic violence. A stay in this case would subvert that public interest by openly undermining process which complies with and was adopted in furtherance of state and federal law without a full review of the merits. The harm of a public stay cannot be undone even if USC ultimately prevails on the merits of the case. Indeed, a stay of carefully reasoned decision will only dissuade victims and witnesses from coming forward and reporting acts of domestic violence and sexual harassment. 5 This is consistent with the burden of proof applicable to a motion to stay in other contexts. See, Great Am. Ins. Co. v. Superior Court, 178 Cal. App. 4th 221, 240-41 (2009) (?As movants on the motion to stay, the insured bore the burden of proof that a stay was necessary?). 8 MEMORANDUM To snow A STAY SHOULD Nor ISSUE YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, SUITE 1800 LOS ANGELES, CALIFORNIA 90015 This harm is not hypothetical. In this case, many witnesses came forward to do what they thought was right despite fear that their truthful statements could put them at risk. (Means Decl., Exhs. 6, 8.) If the court grants a stay here and returns Petitioner to the university community without a full review of the record, the witnesses in this matter, understandably, will be afraid that they will suffer retaliation because they participated in a Title IX investigation. Indeed, Petitioner has already unnecessarily publicly identi?ed the witnesses (by name) and appears to be making an effort to use his public ?lings to expose and embarrass them in retribution for their participation in the process. Returning Petitioner to campus would put the witnesses at risk and deprive them of educational bene?ts and opportunities, which is against the public interest. Ordering Petitioner to stay away from the witnesses cannot alleviate this problem because it is the fear of encountering Petitioner that deprives witnesses of a safe educational environment. Even if Petitioner makes an effort to avoid the witnesses, they will not feel safe walking around campus and attending classes because they will be concerned that Petitioner may be nearby and they may encounter him at any corner they turn or at any USC program or activity they attend. Moreover, if a stay is issued in this case, it would have a chilling effect on other victims and witnesses in and outside the USC community. Victims and witnesses will not risk providing truthful statements in Title IX investigations due to unwarranted distrust of the process and fear of public ridicule in its aftermath. Based on the stay here, future Victims and witnesses will also reasonably fear that if they report misconduct and provide truthful statements, the process will be undone on an ex parte basis, even where the school has made a ?nding and, accordingly, disciplined the accused student, creating a chilling effect. The Bryce Dixon (?Dixon?) case, which is being compared to this matter in the press, provides a real world example of the longevity of the harm caused by a stay. Notwithstanding the fact that the Court ultimately denied Dixon?s Petition for Writ of Administrative Mandamus on the merits and upheld his expulsion ?nding both that process afforded Dixon a fair trial and decision was supported by substantial evidence6 in articles regarding this matter, it 6 Dixon ?led a notice of appeal on June 21, 2017. No appellate brie?ng has been ?led to date. 9 MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 LOS ANGELES, CALIFORNIA 90015 WOO-JGNUI-BOJNH but Inn r?t I??continues to be incorrectly reported that 2015, Dixon was reinstated to the university as a student after a Title IX investigation previously led to his expulsion.? (Declaration of Karen J. Pazzani, Exh. 1.) Thus, even though not the intent of the court, the very fact of a stay unjustifiably damages the reputation of Title IX process and, even if USC ultimately prevails on the merits here, will continue to dissuade other victims and witnesses from coming forward with truthful statements. A stay is against the public interest because, as described above, it would have serious consequences for the witnesses here and have a chilling effect in other matters. This would frustrate the public interest in increased reporting of domestic violence and other sexual misconduct, as espoused in state and federal law, and impede the school?s process for investigating such misconduct as required by law. To the extent Petitioner disputes the public policy supporting California Education Code 67386 and Title IX guidance, his remedy lies with the legislature, whose duty it is to set policy, not with the Court, whose duty it is to uphold the law and the legislature?s policy decisions. B. Granting A StavVWould Undermine Title Process In Contravention Of The Deference Afforded To Student Disciplinary Decisions. Petitioner?s request for a stay should be denied for the additional reason that it would undermine the judicially-recognized deference to student disciplinary decisions. As described in Memorandum In Opposition To Petitioner?s Ex Parte Application For Stay Of Administrative Action, which is incorporated herein by reference, a stay would effectively force USC to award Petitioner a degree before the Court is likely to have an opportunity to review the merits of the case. One of the ?essential freedoms? of a university is to determine for itself ?who may be admitted to study,? and by extension, who may obtain a degree. Pomona College v. Superior Court, 45 Cal. App. 4th 1716, 1722 (1996), quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957). Forcing USC to award Petitioner a USC degree and allowing him to hold himself out as a USC alumni, notwithstanding detailed and well-reasoned decision that his misconduct justi?ed expulsion, would usurp essential freedom in that regard. 10 MEMORANDUM TO snow CAUSE WHY A STAY SHOULD YOUNG, ZINN BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 LOS ANGELES, 90015 A stay that would allow Petitioner to return to classes but not receive a degree until this matter is fully adjudicated is no better. It would still undermine the judicially-recognized deference that should be provided to university disciplinary decisions. One of the key functions of education in America is to enable our nation?s youth to become responsible participants in society. To allow school administrators to perform this critical ?inction, Courts across the country have recognized that deference should be accorded to administrators Who are tasked with making disciplinary decisions that are in the best interest of the entire student body and the school?s educational mission. See, e. Granowitz v. Redlands Unified School Dist, 105 Cal. App. 4th 349, 354 (2003) (?We recognize the deference we must accord to an administrator?s decision to discipline a studen Nathan G. v. Clovis Unified School District, 224 Cal. App. 4th 1393, 1405 (2014) (?Nathan contends that judicial oversight via the independent judgment test is necessary because ?bureaucratic inertia? leads school administrators to issue arbitrary, inconsistent, and unjust disciplinary decisions. His contention fails to recognize the deference to be accorded to a school administrator's decision to discipline a student?); CR. v. Eugene School District 835 F.3d 1142, 1148 (9th Cir. 2016) (?courts owe signi?cant deference to a school?s interpretation of its own rules and policies. We uphold a school?s disciplinary determinations so long as the school?s interpretation of its rules and policies is reasonable, and there is evidence to support the charge?); Havlik v. Johnson Wales University, 509 F.3d 25, 35 (5th Cir. 2007) (?courts must accord a school some measure of deference in matters of discipline?); Doe v. St. Francis Sch. Dist, 694 F.3d 869, 873 (7th Cir. 2012) (?Judges must be sensitive to the effects on education of heavy- handed judicial intrusion into school disciplinary issues?); Schaer v. Brandeis University, 432 Mass. 474, 481 (2000) (in student disciplinary matters, is not the business of lawyers and judges to tell universities what statements they may consider and what statements they must rej Havlik and Schaer are particularly instructive in this matter. In Schaer, a private university suspended a student for sexually assaulting a fellow student. The suspended student sought injunctive relief and compensatory damages. lnjunctive relief was denied by the Massachusetts Superior Court. The Supreme Judicial Court of Massachusetts affirmed the dismissal of the 11 MEMORANDUM TO snow CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN 8: BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 LOS ANGELES, CALIFORNIA 90015 ooquI-thh?t?wcoqcxm-RUJNH? student?s remaining claims, stating: ourts are chary about interfering with academic and disciplinary decisions made by private colleges and universities. A university is not required to adhere to the standards of due process guaranteed to criminal defendants or to abide by rules of evidence adopted by courts. A college must have broad discretion in determining appropriate sanctions for violations of its policies. Schaer, 432 Mass. at 482 (citations and quotations omitted). In Havlz?k, a private university expelled a student for physically assaulting a fellow student. The expelled student brought suit for, among other things, breach of the covenant of good faith and fair dealing, alleging the university?s appeals process was unfair. In dismissing the student?s claim, the United States Court of Appeals for the First Circuit held good faith and fair dealing ?cannot be separated from context . . . and in evaluating those covenants in the educational milieu, courts must accord a school some measure of deference in matters of discipline.? Havlik, 509 F.3d at 35. As in Havlik and Schaer, the Court here should give deference to decision to discipline Petitioner for violating its policies, particularly because those policies were adopted in compliance with and in furtherance of state and federal law. Importantly, administrators who participated in the decision to expel Petitioner are in the best position to evaluate the appropriate sanction for Petitioner?s misconduct and the impact Petitioner?s misconduct is likely to have on the campus environment and educational mission. Additionally, the Title IX Investigator?s on~the-ground assessment of the credibility of Jane Roe?s and Petitioner?s statements regarding the assault cannot be substituted for a cold read of the record. The Title IX Investigator had the opportunity to observe Jane Roe shortly after the assault and again after she changed her statement. The Title IX Investigator?s evaluation of that change should be given extreme deference. See Doe v. Regents of the University of California, 5 Cal. App. 5th 1055, 1073 (2016) (?Credibility is an issue of fact for the ?nder of fact to resolve, and the testimony of a single witness, even that of a party, is suf?cient to provide substantial evidence to support a finding of fact?). 12 MEMORANDUM TO snow CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET, SUITE 1800 Los ANGELES, CALIFORNIA 90015 Where, as here, decision is supported by the weight of the evidence including two eye-witness statements, a surveillance video, Jane Roe?s initial statements, and Jane Roe?s text messages to the Title IX Investigator and her friends a stay would undermine the deference that should be given to disciplinary decision.7 Additionally, it would seriously impair ability to regulate its students? conduct during and after Title IX investigations. If every disciplinary decision USC makes can be stayed based solely on the ?ling of a Petition for Writ of Administrative Mandamus, disciplinary process would be brought to a near halt. It would need to wait for the Court to review the merits of each decision it makes before disciplining its students, which would both undermine the strong public interest in preventing partner violence, sexual harassment, and sex-based discrimination on college campuses espoused in state and federal law, and contravene the extensive body of case law recognizing that school administrators should have the authority to discipline students in real time and that those decisions should be given deference. 7 Petitioner?s argument that the of?cial duty presumption does not apply to decision is a red-herring. The deference accorded to private university disciplinary decisions is not derived from the of?cial duty presumption but from the fact that professional educators are in the best position to evaluate student misconduct and the impact of that misconduct on the school?s educational environment. Further, deference is built into the substantial evidence standard that applies here. See Doe v. Regents of the University of California, 5 Cal. App. 5th 1055, 1073 (2016) (?We review the Panel?s substantive decision for substantial evidence?); Doe v. University of Southern California, 246 Cal. App. 4th 221, 239 (2016) (?We review substantive decision [suspending a student for sexual misconduct] for substantial evidence. . . [a]n appellate court in a case not involving a fundamental vested right reviews the agency?s decision, rather than the trial court?s decision, applying the same standard of review applicable in the trial court?); Desmond v. County of Contra Costa, 21 Cal. App. 4th 330, 335 (1993) (?When the standard of review is the substantial evidence test it is presumed that the ?ndings and actions of the administrative agency were supported by substantial evidence?). While the presumption of correctness applicable under the independent judgment standard may initially have been rooted in the of?cial duty presumption, Petitioner has not cited a single case where the substantial evidence standard was utilized without the presumption that the underlying decision was supported by the substantial evidence simply because the decision was made a private entity rather than a public agency. 13 MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, ZINN BATE LLP 1 150 SOUTH OLIVE STREET SUITE 1800 LOS ANGELES, CALIFORNIA 90015 rhuaN l?I CD IV. CONCLUSION I For all of the foregoing reasons, Respondent respectfully requests that Petitioner?s ex parte application for a stay pending petition for writ of administrative mandamus be denied in its entirety. DATED: August 31, 2017 YOUNG, ZINN BATE LLP JULIE ARIAS YOUNG KAREN J. PAZZANI Attorneys for Respondent - UNIVERSITY OF SOUTHERN CALIFORNIA I4 MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE YOUNG, BATE LLP 1150 SOUTH OLIVE STREET SUITE 1800 LOS ANGELES, CALIFORNIA 90015 PROOF OF SERVICE STATE OF CALIFORNIA ss COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 1150 S. Olive Street, Suite 1800, Los Angeles, California 90015. On August 31, 2017, I served the foregoing documents described as UNIVERSITY OF SOUTHERN MEMORANDUM TO SHOW CAUSE WHY A STAY SHOULD NOT ISSUE on the interested parties in this action by sending a true copy thereof to: Mark M, Hathaway, Esq. Representing Petitioner I Jenna E. Eyrich, Esq. MATTHEW BOERMEESTER Werksman Jackson Hathaway Quinn 888 West Sixth Street, Fourth Floor Los Angeles, CA 90017 Tel: (213) 688-0460 Fax: (213) 624-1942 Email: mhathawav@werksmaniacksoncom Email: BY OVERNIGHT DELIVERY SERVICE as follows: I caused such envelope to be delivered by overnight courier service to the of?ces of the addressee(s). The envelope was deposited in or with a facility regularly maintained by the overnight courier service with delivery fees paid or provided for. I declare under penalty of perjury under the laws of the state of California that the above is true and correct. Executed on August 31, 2017, at Los Angeles, California. Patty Flores I 15 PROOF OF SERVICE