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Electronically FILED by Superior Court of California, County of Los Angeles on 04/19/2019 10:24 AM Sherri R.

Carter, Executive Officer/Clerk of Court, by J. Lara,Deputy Clerk

1 ALEC SCOTT ROSE (II165983J


CERTIFIED CRIMINALLAW SPECIALIST
2 law office of alee rose, pc
12121 Wilshire Blvd. Suite 740
3 Los Angeles, CA 90025
(310) 877-5398
4 (866) 381-6839 fax
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5
Attorney for PETITIONER, JOHN DOE
6

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA


FOR THE COUNTY OF LOS ANGELES
STANLEY MOSK COURTHOUSE

10

11 JOHN DOE, an Individual, Case No.: BS171416

12 PETITIONER, PETITIONER'S OPENING BRIEF IN


SUPPORT OF PETITION FOR WRIT OF
13 Vs. MANDATE

14 CALIFORNIAINSTITUTE OF TECHNOLOGY, a TRIAL DATE: June 20, 2019


California Non-ProElt Corporation, TIME: 8:30 a.m.
15 DEPT.: 82
Respondent. JUDGE: Mary H. Strobel
16 ACTION FILED: 11/13/2017

17

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TABLE OF CONTENTS

I. INTRODUCTION ..

II. STATEMENT OF FACTS.

A. Caltech's Student Disciplinary Procedure.


6 B. Facts Concerning the Alleged Sexual Misconduct.
C. Caltech's Title IX Investigation... .14
7

8 Ill. STANDARD OF REVIEW. ..... 1 8

9 IV. CALTECH FAILED TO PROVIDE PETITIONER A FAIR PROCESS. 19

10 A. Legal Standard Regarding Fair Administrative Hearings. .19


B. Petitioner Was Entitled to A Live Hearing Before A Neutral Factfinder......................... 20
C. Petitioner Was Entitled to An Opportunity to Cross-Examine the Complainant and
Adverse Witnesses. .22
13 D. Petitioner Was Denied Fair, Reasonable, and Timely Access to Evidence..................... 25

V. PETITIONER IS EXCUSED FROM FAILINGTO EXHAUST ADMINISTRAITVEREMEDIES


BECAUSE AN ADMINISTRATIVEAPPEAL WOULD HAVE BEEN FUTILE.............................. 27
15
VI. THE FINDINGS ARE NOT SUPPORTED BY THE EVIDENCE .31
16
A. Caltech's Administrative Decision Substantially Affects a Vested Fundamental Right,
17
Implicating De Novo Review.. .31
18
B. IfAllUniversity Sexual Misconduct Decisions Are Reviewed for Substantial
19 Evidence, the Court Will Virtually Never Be in a Position to Set Aside a University's
Findings.. .... 32
20
C. Even Under A Substantial Evidence Standard, the Factual Findings are Not
21
Supported by the Evidence. 33
22
VII. CONCLUSION. .... 38
23

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TABLE OF AUTHORITIES

CASES

3 CALIFORNIA
Abelleira v. District Court ofAppeal (1941) 17 Ca!.2d 280,. .27
Andersen v. Regents of the University of California (1972) 22 Ca!.App.3d 763.............................24
5
Bixby v. Pierno (1971) 4 Ca!.3d 130.. 19
6 California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Ca!.4th 113 ..... 28
Clark v. City of Hermosa Beach (1996) 48 Ca!.App.4th 1152 .18
Doe v. Agee (2019) 30 Ca!.App.5th 1036 .. .18, 19, 20, 21, 22, 32
8
Doe v. Claremont McKenna College (2018) 25 Ca!.App.518 1055..................................................22, 23
9 Doe v. Regents of the University of California (UCSD) 5 Ca!.App.5th 1055 ................................19, 32
Doe v. Regents of University of California (Santa Barbara) (2018) 28 Ca!.App.5th 44..... 18, 23,
25, 31
11
Doe v. University ofSouthern California (2016) 246 Ca!.App.4th 221...............................18, 19, 25
12 Doe v. University ofSouthern California (2018) 19 Ca!.App.5th 1212...................................................6
Farmer v. City of Inglewood (1 982) 134 Ca! App3d 1 30 .28
13
Farmers lns. Exchange v. Superior Court (1992) 2 Ca!.4th 377. .....28
14
Goldberg v. Regents of University of California (1967) 248 Ca!.App.2d 867 .................................. 31
15 lmagistics Intern., inc. v. Department of General Services (2007) 150 Ca!.App.4th 581...........29
Parker v. City of Fountain Valley (1981) 127 Ca!.App.3d 99. 27
Public Employment Relations Bd. v. Superior Court (1993) 13 Cal.App.4th 1816....................... 28
17
Singh v, Davi (2012) 211 Ca!.App.4th 14, 19

FEDERAL

19 Doe v. Baum (6th Cir. 2018), 903 F.3d 575. ----21, 32

70
Doe v. University of Cincinnati (6th Cir. 2017) 872 F.3d 393 32
I/Vhitford v. Boglino (7th Cir. 1995) 63 F.3d 527. ..... 21
21
STATUTES
22
Code Civil Procedure section 1094.5. ....... 1 8, 2 5

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2 INTRODUCTION

3 This case arises amidst a growing national controversy about the response of

4 colleges and universities to alleged sexual harassment and alleged sexual violence on

5 college and university campuses. While Colleges and Universities have a responsibility to

6 investigate allegations of sexual harassment and sexual violence on campuses, they also

7 have a responsibility to provide the accused a fair hearing and an opportunity to be heard

8 prior to taking disciplinary action.

9 Respondent, California Institute of Technology (eCaltech"J is a Non-Profit

10 Corporation, established in 1891, operating as a private research university. At the time the

11 allegations came to light, Petitioner, John Doe, was a graduate student at Caltech with a

12 promising future. This case stems from allegations that Mr. Doe committed acts of sexual

13 misconduct between December 2014 - October 2016 with four Caltech students and a

14 Caltech employee.

15 During Caltech's Title IX investigation into the allegations, Caltech failed to afford

16 Petitioner a fair process. Caltech's Title IX investigation into the alleged acts of misconduct

17 was conducted by two Title IX investigators who conducted private interviews of witnesses

18 and made factual findings and determination that Petitioner had violated Caltech's Sexual

19 Misconduct Policy. Caltech's Dean of Graduate studies adopted the factual findings and

20 determinations made by the investigators and placed Petitioner on indefinite involuntary

21 suspension from school. Petitioner was not afforded a hearing and not provided the

22 opportunity to cross-examine his accusers before impartial factfinders. Petitioner

23

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1 additionally was not provided access to the evidence against him prior to the

2 determination that Petitioner violated Caltech's Sexual Misconduct Policy.

3 In addition to the due process concerns regarding Caltech's Title IX investigation,

4 Caltech's determination that Petitioner violated the Sexual Misconduct Policy was not

5 supported by substantial evidence.

6 Accordingly, Caltech's determination and sanction must be set aside.

STATEMENT OF FACTS

9 A. Caltech's Student Disciplinary Procedure

10 Caltech has a written policy and set of procedures for resolving complaints of sexual

11 violence. (AR 0003.) Upon receiving a complaint of sexual violence, Caltech's policy

12 provides that the university "will conduct a fair, timely and thorough investigation that

13 provides all parties with appropriate due process to ensure that the parties receive notice

14 and an opportunity to be heard." (AR0015.) Reports of sexual violence are forwarded to

15 the Caltech's Title IX Coordinator. The Caltech Title IX Coordinator will then perform an

16 initial assessment of the complaint. (AR00016.) When conducting the initial assessment,

17 the Coordinator is not required to meet with Respondent regarding the allegations.

18 (AR0017.)

19 After conducting an initial assessment, the Coordinator may refer the complaint for

20 formal investigation, administrative resolution, or other appropriate disposition. (AR0017.)

21 When a complaint is referred for formal resolution, Caltech's policy and procedures

22 provide that all participants involved in the investigation to be afforded "fair process and

23 be treated with dignity, care, and respect." (AR0018.)

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1 After a complaint is filed, Caltech is supposed to notify the Respondent "in writing of

2 the nature and alleged factual bases underlying the complaint." (AR0019.) "The

3 complainant and Respondent will be given equal opportunity to present their cases

4 separately to the investigator(s), to suggest others who might be interviewed and to

5 present other evidence." (AR0019.)

6 After the investigator(s) completes the investigation into the complaint, the

7 investigator(s) will report their findings and conclusions to the appropriate Caltech official

8 regarding the charges for decision. (AR0020.) The investigators'actual findings are

9 supposed to be based on the preponderance of the evidence standard. The parties are not

10 permitted to view the investigator(s) report, nor are they afforded the opportunity to

11 respond to the report. The investigator is not required to provide the accused student with

12 statements from any of his accusers or the witnesses, nor is the investigator required to

13 provide the accused with access to notes or other documentation the investigator(s) relied

14 upon in making the findings and conclusions.

15 After receiving the findings and conclusions of the investigator(s), the appropriate

16 Caltech official will make a decision concerning resolution of the complaint, including

17 imposing sanctions against Respondent. (AR0020.) A hearing is not held and neither party

18 has the right to question the other party or witnesses. The complaining witness is not

19 brought before the Caltech official either physically or through videoconference or like

20 technology for the Caltech official to independently assess the complaining witness's

21 credibility prior to making a decision on the complaint and/or the imposition of sanctions.'2

(AR0020-21.)

23
'ee contra, Doe v. University ofSouthern Caiifornio (2018) 19 Cal.App.516 1212, 1213.
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1 Caltech provides a limited right of appeaL Appeals are permitted on three grounds:

2 (1) Procedural error occurred that significantly affected the outcome of the investigation;

3 (2) There is new and relevant evidence that was unavailable at the time of the investigation

4 that could substantially impact the original findings; or, (3) The sanction is substantially

5 disproportionate to the findings. (AR0021.)

6 B. Facts Concerning the Alleged Sexual Misconduct

7 1. Student 1

8 Student 1 met Petitioner in 2014. At the time they met, Petitioner was Student 1's

9 teacher's assistant. In December 2014, Student 1 and Petitioner went to dinner. After final

10 exams, they commenced a dating relationship. Student 1 reported that beginning in January

11 2015, Petitioner started spending every night at her residence. In April, Student 1,

12 Petitioner and another student moved in together. Student 1 reported that she and

13 Petitioner engaged in consensual "rough sex". Student 1 reported that Petitioner engaged

14 in acts of sexual manipulation, in that Petitioner would be mean to Student 1 ifshe declined
15 sex. At the same time, Student 1 reported that she did not like it if Petitioner masturbated,

16 because it made Student 1 feel bad. (AR0040.)

17 In May or June of 2015, Student 1 suffered from depression, and had no sex drive.

18 Student 1 reported that Petitioner would grope her while she was sleeping. Student 1

19 additionally reported that Petitioner would attempt to engage in sex even after she had told

20 him no. During this same time period, Student 1 reported that she and Petitioner would

21 engage in "kinky" sex. (AR0040, 65.) During these sessions of "kinky" sex, Student 1

22 reported that there were times where she felt restrained, and she did not feel that the sex

23 was consensual. (Id.)

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1 Student 1 and Petitioner moved into a new apartment with no other roommates in

2 November 2015. Student 1 alleged that in December 2015, during a visit to Student 1's

3 family, Petitioner engaged in a violent outburst with Student 1's mother. (AR0040, 66.)

4 In January 2016, Student 1 and Petitioner ended their relationship. Student 1

5 remained in the apartment the couple shared, while Petitioner moved in with "Chance C."

6 (Id.)

7 Petitioner denied Student 1's accusations of sexual abuse, sexual violence, and

8 sexual harassment. Petitioner reported that he was bummed when he learned of Student

9 1's allegations. Petitioner reported that he was unaware of the allegations until just prior

10 to the Title IX investigation. Petitioner reported that he and Student 1 always had a verbal

11 agreement when they engaged in sexual activity. In fact, Petitioner reported that Student 1

12 was the one who initiated sexual activity until Student 1 began to experience depression

13 later in 2015. Petitioner denied committing non-consensual fondling or penetration with

14 Student 1. Petitioner additionally denied groping Student 1 while she was sleeping.

15 (AR0066.)

16 Petitioner advised the investigators that after the breakup of Petitioner and Student

17 1, Petitioner moved out of their shared apartment. Despite his move, Student 1 convinced

18 Petitioner to continue providing monthly payments of $ 400-$ 500 to help Student 1 pay her

19 rent. Petitioner continued to pay rent to Student 1 until July or August 2016. (AR0048-49,

20 67.) None of the witnesses interviewed by investigators reported seeing any threatening

21 physical behavior or nonconsensual sexual activity. (AR0067-68.)

22 Although Student 1 ended her relationship with Petitioner in January 2016, Student

23 1 did not voice any complaints about Petitioner until August 2016, after Petitioner stopped

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1 giving Student 1 money for rent on an apartment in which he no longer and after learning

2 about Petitioner's subsequent relationships with other Caltech Students. (AR0084.)

3 2. Student 4

4 Student 4 was a graduate student at Caltech and a close friend of Petitioner's. In

5 March 2016, Student 4 invited Petitioner to visit Student 4 because Student 4 was upset

6 about a recent breakup. Student 4 alleged that upon Petitioner's arrival, Petitioner

7 prepared an alcoholic drink for Student 4. After consuming the drink, Student 4 alleged that

8 he "started feeling weird" and then he went to bed and blacked out. When Student 4 awoke

9 the next day, he was naked with Petitioner was in bed next to him. Student 4 had no

10 memory of what may have occurred after going to bed. (AR0077-78.)

11 In September, Student 4 met with Dean Doug Rees to discuss emails Student 4 sent

12 to other students requesting help to end his friendship with Petitioner. During the meeting,

13 Student 4, told Dean Rees about the March incident. During that meeting, Student 4

14 reported to Dean Rees that he did not believe "anything had happened because he did not

15 feel sore." (AR0079.)

16 When Caltech investigators interviewed Student 4 in November 2016, Student 4

17 changed his account of the evening. At that time, Student 4 alleged that he believed

18 Petitioner engaged in sexual activity with him because Student 4 awoke the next morning

19 with bruises on his neck, shoulders, and thighs, and blood coming out of his anus. Student 4

20 did not provide the investigator with any photographs documenting the reported bruising

21 or medical records regarding the incident. The interview was not recorded. (AR0078.)

22 Petitioner was not questioned about Student 4's allegations until December 2016.

23 Petitioner reported to the investigators that he recalled spending the evening at Student 4's

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1 apartment in March. However, Petitioner denied pouring any drinks for Student 4.

2 Petitioner reported that Student 4 was intoxicated when Petitioner arrived at Student 4's

3 apartment. Petitioner intended to sleep on the couch that evening, but Student 4 invited

4 Petitioner to cuddle with him in bed. At one point during the night, Petitioner reported that

5 Student 4 grabbed Petitioner's penis. However, Petitioner refused to engage in sexual

6 activity with Student 4 and the two slept for the remainder of the evening. (AR0078.)

7 3. Student 3

8 When Petitioner and Student 3 first met in October 2015, Petitioner was a teacher'

9 assistant for Student 3's Physics class. In April 2016, a romantic relationship developed

10 after Petitioner and Student 3 saw each other a house party. The romantic relationship

11 continued until May 1, 2016. (AR0072.)

12 Student 3 reported that she and Petitioner agreed to not engage in sexual

13 intercourse. Student 3 reported to the investigator that Petitioner never physically forced

14 her to engage in any sexual activity. However, she described Petitioner as being "pushy"

15 and he would ask Student 3 ifthey could proceed further with their sexual activity.

16 However, Petitioner never physically forced her to do anything. Student 3 described the

17 relationship as emotional and intense. Student 3 reported that she would sometimes

18 consume alcohol before seeing Petitioner and would sometimes drink alcohol with

19 Petitioner. (Id.)

20 The relationship between Petitioner and Student 3 ended after Petitioner was

21 allegedly warned by the Associate Dean of Graduate Studies against dating undergraduate

22 students. (Id., AR0073.)

23

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1 After the relationship ended in May, Petitioner continued going to house parties

2 where Student 3 was also present. Student 3 reported that Petitioner would ask to speak

3 with her alone and that she felt uncomfortable attending parties where Petitioner was

4 present. (AR0072-3.) Although Student 3 never told Petitioner that his appearances at the

S house parties and efforts to speak with her were making Student 3 uncomfortable, Student

6 3's friends contacted Petitioner. (AR0073.) After speaking with Student 3's friends and

7 Petitioner's roommate, Petitioner sent Student 3 a text asking ifshe wanted Petitioner to

8 stop contacting her. When Student 3 responded oYes", Petitioner stopped all contact with

9 Student 3. (ld.)

10 After Student 3's relationship with Petitioner ended, Student 1 initiated contact with

11 Student 3 to discuss Petitioner and his conduct. (AR0024, AR0074.) While Student 3 did

12 not want to file a complaint against Petitioner, Student 3 reportedly told the Title IX

13 Coordinator that she felt Petitioner was coercive, manipulative and didn't observe good

14 boundaries. (AR0073.)

15 During his interview with the Caltech investigator, Petitioner admitted to having a

16 month-long relationship with Student 3. Petitioner reported that he was always respectful

17 of Student 3's sexual boundaries. Petitioner denied seeking Student 3 out at parties and

18 denied breaking in to any of the undergraduate houses. He admitted to contacting Student

19 3 a few times after they broke up but reported that when Student 3 stated that she did not

20 want to go out with him, he stopped reaching out. Petitioner reported that he felt sorry if

21 any of his contacts with Student 3 made her feel uncomfortable. (AR0073.)

22 4. Student 2

23

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1 Student 2 did not participate in the Title IX investigation. Student 2 did not want to

2 file a complaint, nor did she want to be a witness in the investigation. The Caltech

3 investigator did not obtain a written or verbal statement from Student 2. Based upon

4 statements Student 2 reportedly made to Student 1, her teacher and the Title IX

5 Coordinator, the Caltech investigators alleged the following:

6 In July 2016, Petitioner and Student 2 met at a party and began a dating

7 relationship. (AR0069.) During their relationship, Student 2 was frequently at Petitioner's

8 apartment. Petitioner's roommate reported that Petitioner appeared "clingy" and that

9 Student 2 stated that she felt pressured to be in a relationship with Petitioner. Student 2

10 never reported to the roommate that Petitioner engaged in nonconsensual activity. (Id.)

11 Three other students reportedly told investigators that Student 2 reported to them that

12 Petitioner was manipulative, controlling and that she was under the influence of alcohol

13 during her first sexual encounter with Petitioner. However, Student 2 did not tell these

14 students that any sexual activity with Petitioner was nonconsensual. (AR0069-70.)

15 The only accusations regarding nonconsensual sex came forward after Student 1

16 met with Student 2 to discuss their relationships with Petitioner in August 2016. During

17 that conversation, Student 2 reportedly told Student 1 that the first time she and Petitioner

18 had intercourse, it was nonconsensual, that Petitioner held her down and that Student 2

19 was too intoxicated to stop Petitioner. (AR0070.) After the two students met, Student 2 and

20 Student 1 met with Student 2's teacher, a mandatory Title IX reporter, to report Petitioner's

21 alleged misconduct. (AR0070, AR0083.)

22

23

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1 Petitioner denied having sexual intercourse with Student 2 while she was

2 intoxicated. He also denied holding Student 2 down, removing her clothing or engaging in

3 sexual acts against Student 2's will. (AR0070-71.)

4 5. Employee 1

5 Employee 1 and Petitioner began dating at the end of August 2016. Employee 1

6 alleged that she and Petitioner engaged in consensual rough sex. Employee 1 additionally

7 alleged that Petitioner became very needy and did not want Employee 1 to leave

8 Petitioner's apartment. Employee 1 claimed that Petitioner would pour her alcohol drinks

9 without her asking and would comment to Employee 1 that Petitioner would kill himself if

10 Employee 1 left him. (AR0075.)

11 Throughout most of September 2016, Petitioner was out of the country. When

12 Petitioner returned, they agreed that Employee 1 would go on birth control and that they

13 would wait 7 days before having unprotected sex. Employee 1 alleged that several days

14 later, she and Petitioner were making out and had unprotected sex. Despite being sober,

15 Employee 1 was unable to recall how that happened, (AR0075.]

16 In October, Employee 1 reported that Petitioner poured Employee 1 a mason jar full

17 of Jagermeister. Employee 1 drank the entire jar and then allegedly "blacked out". While

18 she was blacked out, Employee 1 alleged that Petitioner had sexual intercourse with her

19 based on the fact that Employee 1 claimed she was sore the next day. (Id.)

20 Several days later, Employee 1 alleged that while she was intoxicated and unable to

21 move, Petitioner asked permission to shave her pubic area. Despite having earlier

22 consented to Petitioner only "trimming" her pubic area, Employee 1 consented to the

23 shaving. (AR0075.) Employee 1 alleged that Petitioner had to maneuver Employee 1 into

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1 position for the shaving because she was so intoxicated. When she woke up the next day,

2 Employee 1 discovered that Petitioner had shaved off all of her pubic hair. Employee 1

3 assumed that she and Petitioner had sex and felt violated. (AR0076.) Employee 1 ended the

4 relationship with Petitioner several days later. (Id.)

5 Petitioner was questioned about his relationship with Employee 1 during his second

6 interview with the Caltech investigators. Petitioner admitted to engaging in rough sex with

7 Employee 1. Petitioner reported that he and Employee 1 had numerous conversations

8 about BDSM and what Employee 1 wanted. Petitioner reported that he always had

9 Employee 1's consent when they engaged in sex. Petitioner denied engaging in

10 nonconsensual sex with Employee 1 and denied having sex with Employee 1 when she was

11 drunk In regard to the shaving incident, Petitioner stated that Employee 1 was not drunk

12 at the time and was eager for Petitioner to shave her. He additionally denied having sex

13 with Employee 1 after shaving her.

14 C. Caltech's Title IX Investigation

15 On August 12, 2016, Student 1 and Student 2 attended a meeting with Student 2's

16 teacher, Sarah Gossan. During the meeting, Student 1 and Student 2 reportedly advised Ms.

17 Gossan that Petitioner had been emotionally abusing Student 2. Student 1 additionally

18 advised Ms. Gossan that Petitioner had been involved with other undergraduate students.

19 (AR0083.) On August 13, 2016, Ms. Gossan, contacted Caltech's Title IX Coordinator, Felicia

20 Hunt, to set up a meeting between Ms. Hunt, Ms. Gossan, Student 1 and Student 2, (Id.) The

21 meeting was scheduled to occur on August 15, 2016. (Id.)

22 On August 14, 2016, Student 1 sent out a group text message to an unknown

23 number of people wherein Student 1 described her meeting with Student 2, expressed

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1 dismay at the nature of Petitioner's relationship with both of them, and accused Petitioner

2 of having raped both students. (AR0023-24.) Student 1 additionally telephoned Petitioner

3 and yelled at Petitioner about his conduct. In response to Student 1's text message and

4 telephone call, Petitioner immediately sent an email to the Title IX Coordinator to request a

5 meeting regarding Student 1's accusations. (AR0084.)

6 The Title IX Coordinator meet with Student 1, Student 2, and Ms. Gossan on August

7 15, 2016. There is no video or audio recording of this meeting. The Title IX Coordinator

8 then met with Petitioner on August 16, 2016 and August 17, 2016. (AR0088.)

9 1. Initial Letter
10 On September 28, 2016, the Title IX Coordinator mailed Petitioner a letter. In the

11 letter, the Title IX Coordinator advised Petitioner that she had received va number of

12 concerning reports that implicates Title IX." The Title IX Coordinator acknowledged that no

13 one had made a formal complaint against Petitioner. Despite the lack of a formal complaint,

14 the Title IX Coordinator indicated that she was initiating a formal investigation to

15 determine is Petitioner violated any of Caltech's policies. (AR0025.) The Title IX

16 Coordinator advised Petitioner that two investigators would be interviewing students.

17 While the investigation was taking place, Petitioner was advised that Caltech was imposing

18 interim sanctions against Petitioner. Petitioner was prohibited from visiting any of the

19 undergraduate houses, Petitioner could not have undergraduates at his apartment, he was

20 not permitted to tutor undergraduates, and he was to have no contact with Student 1. (Id.)

21 The initial letter from the Title IX Coordinator did not provide any factual information

22 regarding the nature or extent of the "concerning reports" the Title IX Coordinator had

23 received.

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1 2. Second Letter

2 On October 25, 2016, the Title IX Coordinator sent Petitioner a second letter

3 advising Petitioner that the investigators had interviewed witnesses. The letter then

4 provided Petitioner with a very cursory summary of the investigators'indings. The letter

5 did not identify any of the accusers or witnesses against Petitioner. The letter provided

6 only generalized statements of the accusations. These statements were too unspecific to

7 provide Petitioner a basis to perform his own independent investigation into the

8 accusations. (AR0027-28.)

9 On October 26, 2016, Petitioner met with the Investigators and cooperated fully

10 with their interview. (AR0032.) At the interview, Petitioner was not provided with a copy

11 of any witness statements, the investigators note from their interviews or witness

12 identification.

13 3. Third Letter
14 On October 27, 2016, Petitioner received another letter from the Title IX

15 Coordinator. The letter acknowledged that Petitioner had participated in the investigators'6

interview and advised that further witnesses must be interviewed. The Coordinator then

17 imposed further interim sanctions. Petitioner was required to move offof campus and was

18 denied further entry to the campus. Petitioner was forbidden to engage in education and

19 research on campus but was permitted to engage in off-campus research. Petitioner was

20 further "prohibited from making physical contact with any member of the Caltech

21 community. Phone and electronic contact are permitted as long as they do not become

22 disruptive." (AR0032-33.)

23 4. Fourth Letter

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1 The Title IX Coordinator wrote again to Petitioner on November 21, 2016. This

2 letter rescinded the permission given in the October 27, 2016 letter to contact members of

3 the Caltech community by phone and electronic communication. Petitioner was now only

4 allowed to contact Petitioner's research advisor, the Graduate office, the Student

5 Counseling Center, and the Title IX office. (AR0034.)

6 5. Fifth Letter

7 On November 23, 2016, Petitioner received a letter from the Dean of Graduate

8 Students, stating that Petitioner was being placed on involuntary leave. (AR0035.)

9 6. Sixth Letter

10 On December 6, 2016, the coordinator again wrote to Petitioner, informing

11 Petitioner of Employee 1's and Student 4's accusations, which had not come to light earlier.

12 This letter again contained only generalized accusations. The letter did not provide

13 Petitioner with the names of the additional accusers or any witnesses. (AR0038-39.j

14 On December 8, 2016, Petitioner again met with the investigators and cooperated

15 fully in an interview concerning the accusations made by Employee 1 and Student 4.

16 Petitioner again was not provided with a copy of the investigator's report, witness

17 statements, or transcripts from any of the interviews.

18 7. Letter of Decision

19 On December 29, 2016, Petitioner received a letter from the Dean of Graduate

20 Studies informing him that, in essence, all of the accusations against Petitioner by Students

21 1-4 and Employee 1 had been found true. Petitioner was then placed on "Indefinite

22 Involuntary Leave," effective immediately. (AR0081-82.)

23

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1 Petitioner appeals both the findings and the sanctions imposed. Petitioner

2 respectfully requests this Court to dismiss the case in its entirety.

STANDARD OF REVIEW

5 Code Civil Procedure section 1094.5 subd. (b) authorizes a trial court to issue writ of

6 administrative mandate where an agency has deprived an appellant of a fair hearing. (Clark

7 v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152.) In determining whether an agency

8 provided a fair hearing, a reviewing court independently evaluates whether "the

9 administrative proceedings were conducted in a manner consistent with the minimal

10 requisites of fair procedure demanded by established common law principles." (Doe v.

11 Regents of University of California (Santa Barbara) (2018) 28 Cal.App.5th 44, 55.] The
12 procedural fairness of the administrative hearing is reviewed de novo. (Doe v. Allee (2019)

13 30 Cal.App.5th 1036, 1059; Doe v. University ofSouthern California (2016j 246 Cal.App.4th
14 221, 237, fn. 9, ["Doe v. USC(1] "].)

15 Ifthe trial court concludes the agency failed to provide a fair hearing, the court does

16 not need to evaluate the sufficiency of the evidence under either standard. (Doe v. Regents

17 of University of California, supra, 28 Cal.App.5th at p. 61.)

18 Ifthe trial court determines that the agency provided a fair hearing, then the court

19 conducts an inquiry into whether there was a prejudicial abuse of discretion in the

20 underlying administrative hearing. (Code. Civ. Proc., 5 Section 1094.5.) Subdivision (bj

21 "defines 'an abuse of discretion'o include instances in which the administrative order or

22 decision 'is not supported by the findings, or the findings are not supported by the

23 evidence."'Singh v. Davl (2012) 211 Cal.App.4th 141, 147; Code Civ. Proc. 5 1094.5, subd.

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1 (b).) Where an administrative agency's decision substantially affects a vested, fundamental

2 right, "the trial court not only examines the administrative record for errors of law but also

3 exercises its independent judgment based upon the evidence disclosed in a limited trial de

4 novo." (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Where an administrative agency's

5 decision does not substantially affect a fundamental vested right, the trial court reviews an

6 and administrative record for substantial evidence. (Code Civ. Proc. 5 1094.5, subd. (c).)

7 Here, as argued more fully in Section VI below, Caltech's administrative decision and

8 imposition of sanctions affected Petitioner's vested fundamental right implicating de novo

9 review.

10 IV.

CALTECH FAILED TO PROVIDE PETITIONER A FAIR PROCESS

12 A. Legal Standard Regarding Fair Administrative Hearings

13 As noted by the Court in Doe v. Alice, supra, 30 Cal.App.5th 1036, "until recently, few

14 cases had attempted to define 'fair hearing standards for student discipline at private

15 universities.'" (Id. at p. 1061; citing Doe v. USC(1), supra, 246 CaLApp.4th at p. 245.) In its

16 recent ruling in Alice, the Second District Court of Appeal, provided a well-reasoned

17 description of the general principles of fairness in a private university's student sexual

18 misconduct proceedings. (ld. at pp. 1062.) While fair hearing requirements must be

19 "flexible", "fundamental principles of fairness require, at a minimum, 'giving the accused

20 students notice of the charges and an opportunity to be heard in their own defense."'ibid.,

21 citing, Doe v. Regents of the University of California (UCSD) 5 Cal.App.5th 1055, 1104.)

22 In cases involving allegations of sexual misconduct, where determination pivots on

23 witness credibility and the accused student may face severe consequences, "fundamental

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1 fairness requires, at a minimum, that the university provide a mechanism by which the

2 accused may cross-examine those witnesses, directly or indirectly, at a hearing in which

3 the witnesses appear in person or by other means (e.gv videoconferencing) before a

4 neutral adjudicator with the power independently to find facts and make credibility

5 assessments." (Doe v. Al/ee, supra, 30 Cal.App.5th at p. 1069.)

6 Here, Caltech's sexual misconduct procedures failed to afford Petitioner a fair

7 hearing based upon three separate grounds: 1) Caltech did not provide for a live hearing

8 before a neutral factfinder; 2) Petitioner had no opportunity to cross-examine witnesses

9 when he was accused of sexual misconduct, faced a potential suspension or expulsion and,

10 where witness credibility was a critical factor in the ultimate findings; and, 3) Caltech

11 deprived Petitioner access to evidence necessary to mount a defense.

12 B. Petitioner Was Entitled to A Live Hearing Before A Neutral Factfinder

13 Here, the facts are undisputed that Caltech's Sexual Misconduct Policy failed to

14 afford students accused of sexual misconduct with a live hearing before neutral

15 factfinder(s). There is no opportunity for the parties to hear and observe witness

16 testimony, and no opportunity for adversarial cross-examination to asses witness

17 credibility. Rather, factual findings and determinations of responsibility are made by two

18 Caltech investigators who conduct witness interviews in secret and provide the Title IX

19 Coordinator and the Dean of Graduate Studies with written summaries of evidence only

20 after making conclusive factual findings. Because the investigators'nterviews with the

21 accused and witnesses are not videotaped or audiotaped, it is impossible for either the
22 Caltech Title lX Coordinator or the Dean of Graduate Studies to independently weigh

23 evidence and make credibility determinations.

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1 Furthermore, Caltech's process precludes cross-examination. Caltech's procedure

2 merely affords Petitioner the opportunity to meet with the investigators, hear the

3 investigators'ummaries of the interviews, and provide his response to the accusations.

4 Caltech's policy does not even afford the accused student the right to submit a list of

5 questions for the investigators to ask the accusers or witnesses. At Caltech, ifan accused

6 student were to think on his or her own to request to the investigators to ask follow-up

7 questions, any follow-up questions would be asked by the investigators in their discretion

8 and in secret, as Caltech has no procedural provision for the accused student to submit

9 questions through the investigator. Caltech's procedure, which merely affords an accused

10 student the opportunity to verbally respond to investigators'ummaries of witness

11 statements, is far from the adversarial cross-examination required of a fair process under

12 Doe v. Alice.

13 Additionally, Caltech's procedures ignore the fundamental nature of cross-

14 examination: adversarial questioning at an in-person hearing at which a neutral fact tinder

15 can observe and assess the witness'redibility. [See Doe v. Baum [6ce Cir. 2018), 903 F.3d

16 575, 586 ["Few procedures safeguard accuracy better than adversarial questioning"'7

through cross-examination]; cf., Whitford v. Bogiino [7th Cir. 1995) 63 F.3d 527, 534 [due

18 process forbids an officer who was substantially involved in the investigation of charges

19 against an inmate from also serving on the adjudicating committee].)

20 In sum, Caltech's procedures for adjudicating allegations of sexual misconduct are

21 unfair and unlawful on their face. A process by which two Title IX investigators conduct

22 private interviews, make factual findings, and decide the outcome of the investigation

23 based on a preponderance of evidence standard without a live hearing or opportunity for

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1 adversarial cross-examination to allow neutral factfinders to observe and assess witness

2 credibility under such questioning, is inconsistent with California law, and also with

3 proposed federal Title IX regulations, which require universities to hold live hearings

4 where the accused's advisor can cross-examine witnesses before neutral factfinder(s). (See

5 Doe v, Allee, supra, 30 Cal.App.Sth at p. 1063, fn. 31.)

6 C. Petitioner Was Entitled to An Opportunity to Cross-Examine the Complainant


and Adverse Witnesses.
7

8 As held by the Second District Court of Appeal in Doe v. Allee, Petitioner was entitled

9 to an opportunity to question the complainants and adverse witnesses at a hearing before

10 neutral factfinders who could independently judge credibility:

[W]here a student accused of sexual misconduct faces severe disciplinary


sanctions, and the credibility of witnesses (whether the accusing student,
12 other witnesses, or both) is central to the adjudication of the allegation,
fundamental fairness requires, at a minimum, that the university provide a
mechanism by which the accused may cross-examine those witnesses,
directly or indirectly, at a hearing in which the witnesses appear in person or
14 by other means (such as means provided by technology like
videoconferencing) before a neutral adjudicator with the power
15 independently to find facts and make credibility assessment.

16 (Doe v. Alice, supra, 30 Cal.App.Sih at p. 1039.)

17 Here, Petitioner faced severe disciplinary sanctions based upon accusations of

18 sexual misconduct. In fact, Petitioner was ultimately, essentially expelled from Caltech

19 based upon the allegations. (AR0081-82.) Based upon the nature of the allegations and the

20 severe consequences resulting from the allegations, Petitioner was entitled to cross-

21 examine the witnesses. (Doe v. Allee, supra, 30 Cal.App.5ih at p. 1039; see also, Doe v.

22 Claremont MCKenna College (2018) 25 Cal.App.Sih 1055, 1070 [one-year suspension]; Doe v.

23

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1 Regents of University of California (Santa Barbara), supra, 28 Cal.App.Sth at p. 46 [2-year

2 suspension].J

3 Furthermore, the administrative decision turned on witness credibility. Petitioner

4 denied the accusations of sexual misconduct. Petitioner denied that any of the sexual

5 activity between himself and the accusers was nonconsensual, he denied stalking Student

6 3, and attested that when Student 3 told him she wanted no further contact with Petitioner,

7 Petitioner stopped all contact. (AR0073.] There were no witnesses to the alleged

8 nonconsensual sexual activity and no documentation supporting the accusers'laims.

9 Accordingly, the Title IX investigators'actual findings and determinations turned on their

10 determination of the parties'redibility. (AR0063-80.) Without the witness statements,

11 there was no evidence to support the sexual misconduct, harassment and stalking claims.

12 In Doe v. Claremont MCKenna College, supra, 25 Cal.App.5th 1055, Doe was accused of

13 engaging in nonconsensual sexual intercourse without a condom. Jane and John were the

14 only witnesses to the incident, and without Jane's statements, there was no evidence that

15 she had not consented to sex without a condom. While Doe was afforded the opportunity to

16 appear before a committee, Jane did not attend the hearing. Thus, the case left the

17 Committee with "a choice between believing an accuser and an accused." (ld. at p. 1070.)

18 The reviewing court found that where "the accused student faces a severe penalty and the

19 school's determination turns on the complaining witness's credibility" fundamental

20 fairness requires that the "accused student is entitled to 'a process by which the

21 Respondent may question, ifeven indirectly, the complainant'" and "the complaining

22 witness must be before the finder of fact either physically or through videoconference or

23 like technology to enable the finder of fact to assess the complaining witness's credibility in

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1 responding to its own questions or those proposed by the accused student." (ld.) The

2 reviewing court held that the university's failure to provide a mechanism to permit John to

3 question Jane either directly or indirectly deprived John of a fair hearing. (Ibid.)

4 The facts in this case are similar to those presented in Doe v. Claremont McKenna

5 College. As detailed above, there were no witnesses to the alleged acts of sexual
6 misconduct. Accordingly, Caltech's findings of fact and decisions came down to a choice

7 between believing the allegations of the accusers or Petitioner's denials. Because the

8 credibility of the witnesses was crucial to the Caltech's determinations regarding Title IX

9 violations, due process required Caltech to provide a mechanism for cross-examination.

10 It is indisputable that Petitioner was not provided an opportunity to question the

11 accusers or adverse witnesses at a live hearing before neutral factfinders to test their

12 credibility. In fact, there was no hearing at all. Additionally, Caltech's sexual misconduct

13 procedures did not provide Petitioner the opportunity to submit written questions to the

14 Title IX investigators to pose to the accusers or witnesses. Even if Petitioner had, on his

15 own, asked the investigators to present questions to the accusers, it would have been up to

16 the discretion of the investigators whether they would ask any of the suggested questions.

17 Furthermore, because all of the witness interviews were completed by the two Title IX

18 investigators in private, Petitioner would never know which questions (ifany) were asked

19 or what answers were given.

20 By failing to provide Petitioner a full and fair opportunity to cross-examine the

21 accusers and witnesses, when credibility was a crucial factor in the investigation, Petitioner

22 was deprived of "a full opportunity to present his defense" and deprived of a fair hearing.

23 (Andersen v. Regents of the University of California (1972) 22 Cal.App.3d 763, 771.)

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1 D. Petitioner Was Denied Fair, Reasonable, and Timely Access to Evidence.

2 "The accused must be permitted to see the evidence against him. Need we say

3 more?" (Doe v. Regents of University of California (Santa Barbara), supra, 28 Cal.App.5th at


4 p. 57.) The "common law requirements for a fair hearing under [Code of Civil Procedure]

5 section 1094.5 do not allow an administrative board to rely on evidence that has never

6 been revealed to the accused." (Dae v. USC(1), supra, 246 Cal.App.4th at p. 247.) The burden

7 is on the University to provide the accused student with the names of the witnesses against

8 him and an oral or written report on which each witness testifies. Furthermore, any

9 findings made by the University should be presented in a report open to the student's

10 inspection. (Ibid) Here, Caltech failed to permit Petitioner to see the evidence against him

11 or to reasonably conduct and investigation in the allegations.

12 When Caltech initiated their formal investigation of Petitioner and imposed interim

13 sanctions, Petitioner was not provided with any information regarding the allegations

14 against him. (AR0025.) The initial letter from Caltech regarding the allegations contained

15 interim sanctions prohibiting Petitioner from visiting undergraduate houses and from

16 hosting undergraduates at his apartment. (Id.)

17 On October 25, 2016, after the formal investigation was underway, Petitioner met

18 with the Caltech Title IX investigator on October 26, 2016. Neither prior to, nor during, the

19 meeting was Petitioner provided a written report detailing each allegation of sexual

20 misconduct or the statements of the witnesses obtained by the investigators. Rather,

21 pursuant to Caltech policy, Petitioner was merely afforded an oral summary of the

22 allegations and given an opportunity to make an oral response to the investigators.

23 (AR0019, 32.)

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1 The day after learning more of the details of the allegations against Petitioner, he

2 received a letter from the Title IX coordinator advising Petitioner that the investigation was

3 ongoing that he was prohibited from being on campus and prohibited from making

4 physical contact with any member of the Caltech community. (ld.) These additional

5 limitations inhibited Petitioner's ability to independently investigate the allegations against

6 him or gather evidence.

7 Approximately a month later, Petitioner was advised that he was no longer able to

8 have any contact, including phone or email, with any member of the Caltech community.

9 (AR0034.) At this point, Petitioner was unable to independently investigate the allegations

10 against him, interview witnesses, or gather evidence in his support.

11 The formal investigation of Petitioner was completed by December 20, 2016. On

12 that date, the investigators submitted their report to the Dean of Graduate Studies.

13 Petitioner was not provided a copy of the investigator's report prior to the Dean of

14 Graduate Studies placing Petitioner on indefinite involuntary suspension. (AR0113.) Under

15 Caltech's policy, there is no provision permitting accused students to review the evidence

16 and witness statements prior to the investigators making conclusive factual findings and

17 determinations. (AR0020, 111.) Even after the investigators make conclusive factual

18 findings and determinations, the evidence is not provided to the student.

19 Here, the Dean of Graduate Studies confirmed that Petitioner was not offered a copy

20 of the investigation report prior to Petitioner being placed on indefinite involuntary

21 suspension. (AR0111, 113.) Thereafter, when Petitioner made efforts to view the report,

22 he was advised that he was only permitted to review a redacted copy of the report with

23 many of the witness names redacted. (AR0112.)

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1 Throughout the investigation, Petitioner was placed in an impossible position. He

2 was burdened with the task of trying to prove his innocence without access to the evidence

3 being presented against him. Petitioner was not provided witness information. He was not

4 provided witness statements. Petitioner did not receive the investigative reports. And,

5 Petitioner was prevented from communicating with many of the known accusers and

6 witnesses based upon the interim sanctions imposed by Caltech during the investigation.

7 Furthermore, because Caltech did not afford Petitioner a hearing on the accusations with

8 an opportunity for cross-examination, Petitioner had no chance of refuting the

9 investigators'redibility determinations or factual findings. The failure to afford Petitioner

10 access to evidence amounted to an unlawful shifting of the burden of proof, wherein the

11 accused must refute the investigator's findings and credibility determinations to prove

12 their innocence - an impossible task, particularly in the absence of cross-examination and a

13 live hearing. (Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 113 ("lt is
14 axiomatic, in disciplinary administrative proceedings, that the burden of proving the

15 charges rests upon the party making the charges.")

16 Caltech's procedure which afforded Petitioner only limited access to the evidence

17 and withholding evidence until after the factfinder had made determinations deprived

18 Petitioner the right to a fair hearing.

19

20 PETITIONER IS EXCUSED FROM FAILINGTO EXHAUST ADMINISTRAITVEREMEDIES

21 BECAUSE AN ADMINISTRATIVEAPPEAL WOULD HAVE BEEN FUTILE

22 In general, a party must exhaust administrative remedies before resorting to the

23 courts. (Abelleira v. District Court ofAppeal (1941) 17 Cal.2d 280, 292; see California

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1 Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1148.) Under

2 this rule, an administrative remedy is exhausted only upon "termination of all available,

3 nonduplicative administrative review procedures." (Callfornla Correctional Peace Officers

4 Assn. v. State Personnel Bdv supra, at p. 1151.) "The exhaustion doctrine is principally

5 grounded on concerns favoring administrative autonomy (i.e., courts should not interfere

6 with an agency determination until the agency has reached a final decision) and judicial

7 efficiency (i.ev overworked courts should decline to intervene in an administrative dispute

8 unless absolutely necessary).o (Farmers Ins, Exchange v. Superior Court (1992) 2 Cal.4th

9 377, 391.)

10 However, the doctrine requiring exhaustion of administrative remedies is subject to

11 exceptions. (Public Employment Relations Bd. v. Superior Court (1993) 13 Cal.App.4th

12 1816.) The failure to exhaust administrative remedies will not preclude resort to the

13 courts where pursuing administrative remedies would be futile such as where

14 administrative remedies are unavailable or inadequate. (Farmer v. City of lnglewood (1982)

15 134 Cal.App.3d 130, 137.) The futilityexception requires that the party invoking the

16 exception can positively state that the agency has declared what its ruling will be on a

17 particular case. (Ibid.)

18 Here, the futilityexception excuses Petitioner's failure to exhaust Caltech's limited

19 appeal because Caltech's limited right to appeal is inadequate and pursuing the appeal

20 would not have changed of Caltech's determinations and sanctions. Pursuant to Caltech'

21 policies, students have a very limited right to appeal following a determination that the

22 student violated Caltech's policy on sexual violence. An appeal of Caltech's administrative

23 decision must be based upon one of three grounds: "(a) a procedural error occurred that

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1 significantly affected the outcome of the investigation; (b) there is new and relevant

2 evidence that was unavailable at the time of the investigation that could substantially

3 impact the original findings; or (c) the sanction is substantially disproportionate to the

4 findings." (AR0081.)

5 As argued above, Petitioner contends that Caltech's policies for investigating Title IX

6 violations fails to afford the accused student a fair hearing based upon three separate

7 grounds: 1) Caltech does not provide for a live hearing before a neutral factfinder; 2) the

8 accused student has no opportunity to cross-examine witnesses; and, 3] Caltech

9 investigation and factual determinations deprives the accused student with access to

10 evidence necessary to mount a defense. Caltech's appellate procedure is similarly defective

11 and lacking in due process.

12 Pursuant to Caltech's policy, all appeals must be submitted in writing for decision by

13 a single Caltech official. Similar to the original proceedings, on appeal, the accused student

14 is not entitled to a live hearing. While a student may file an appeal based upon the grounds

15 that the administration committed a procedural error, Caltech's limited right to appeal

16 does not permit a student to file an appeal on the grounds that Caltech's entire policy and

17 procedure for investigating Title IX complaints deprives the accused of a fair hearing. The

18 failure to afford Petitioner the right to a hearing on appeal or the right to challenge

19 Caltech's policies fails to satisfy the standards of due process. "Ifan administrative remedy
20 fails to satisfy the standards of due process, the exhaustion requirement is excused."

21 (lmagistics Intern., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 591.]

22 Furthermore, a student asserting on appeal that there was a significant procedural

23 error in the process would have to state the appeal without access to the investigator's

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1 report or witness interview summaries, since none of these are ever provided to the

2 accused student. Making an appeal on the basis of procedural error with no means to refer
3 to the documents in the file and point out such errors is impossible and therefore futile.

4 Additionally, Caltech's appeal policy does not permit an accused student to submit

5 an appeal based upon a challenge to the sufficiency of the evidence in support of the factual

6 determinations. Rather, a student may only file an appeal ifthe student uncovers new

7 evidence that might substantially affect the findings. Requiring an appeal to be based upon

8 "new evidence" is especially problematic where Caltech's policies fail to provide the

9 accused student with access to the evidence that was considered by the Title IX

10 investigators. Throughout the investigation process, Petitioner was not permitted to

11 review witness statements obtained by investigators. Petitioner was not provided copies of

12 the investigators'eports or notes of the meetings the Title lX Coordinator had with

13 witnesses. (AR0019, 32.) Even after Caltech completed its investigation and issued its

14 determinations of fact, Petitioner was still not provided a copy of the investigation report.

15 (AR0111-113.) Without access to all of the evidence considered by the investigators in

16 formulating their findings, it was factually impossible for Petitioner to evaluate ifthere was

17 new evidence Caltech should have considered. Accordingly, any attempt to pursue an

18 appeal based upon new evidence would have been a futile exercise.

19 Furthermore, exhausting Caltech's appeal procedure would not have changed the

20 fact that the investigation process at Caltech does not afford the accused student an

21 opportunity to cross-examine witnesses and accusing parties. While failing to offer such an

22 opportunity violates California legal standards for this type of investigation, it does not

23 violate the Caltech policy, and therefore the appeal would not have changed the result.

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1 Petitioner must be excused from the exhaustion doctrine on the grounds that

2 Caltech's appeal procedure failed to satisfy due process and any attempt to bring an appeal

3 under Caltech's limited appeal procedure would have been futile.

VI.

THE FINDINGS ARE NOT SUPPORTED BY THE EVIDENCE

6 Ifthe process is unfair, the court need not reach the issue of whether the findings
7 are supported by the evidence, (Doe v. Regents of University of California (Santa Barbara),
8 supra, 28 Cal.App.5th at p. 61.)

9 A. Caltech's Administrative Decision Substantially Affects a Vested Fundamental


Right, Implicating De Novo Review.
10
Caltech's determination and sanctions substantially affected Petitioner's vested
11
fundamental right. Following its investigation, Caltech placed Petitioner on an indefinite
12
involuntary leave. (AR0082.) Student conduct sanctions may be disclosed to other college
13
personnel and become part of the student's conduct record. Such a finding and the ensuing
14
ramifications are compelling enough for this Court to determine that a vested, fundamental
15
right was substantially affected. California courts have described the value of higher
16
education as "an interest of almost incalculable value, especially to those students who
17
have already enrolled in the institution and begun the pursuit of their college training."
18
(Goldberg v. Regents of University of California (1967) 248 Cal.App.2d 867, 876.) In
19
Goldberg, the court explained that "attendance at publicly financed institutions of higher
20
education should be regarded a benefit somewhat analogous to that of public
21
employment." (ld. at 877.) The Sixth Circuit Court of Appeals previously determined that a
22
"[s]uspension 'clearly implicates' protected property interest, and allegations of sexual
23

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1 assault may 'impugn [a student's] reputation and integrity, thus implicating a protected

2 liberty interest." (Doe v. University of Cincinnati (6th Cir. 2017] 872 F3d 393,399]

"Being labeled a sex offender by a university has both an immediate and


lasting impact on a student's life.....The student may be forced to withdraw
from his classes and move out ofhis university housing... His personal
relationships might suffer..... And he could face difficultyobtaining
educational and employment opportunities down the road, especially ifhe is
expelled.
6
(Doe v. Baum, supra, 903 F.3d 575, 582 [internal citations omitted.)
7
Based on the forgoing, Caltech's actions substantially affected Petitioner's vested
8
fundamental right and interest in his reputation, his contractual interests with Caltech and
9
protected liberty interests. Consequently, the trial court should review whether the facts
10
support Caltech's findings under its independent judgment.
11
B. IfAll University Sexual Misconduct Decisions Are Reviewed for Substantial
12 Evidence, the Court WillVirtually Never Be in a Position to Set Aside a
University's Findings.
13

14 The substantial evidence standard of review is an "extremely deferential... standard

15 of review." (Doe v. UCSD, supra, 5 Cal.App.5th at 1073-1074.] "On substantial evidence

16 review, the court does not weigh the evidence, consider the credibility of witnesses, or

17 resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it."

18 (id] In Doe v. Alice, the Second District Court of Appeal pointed out that "[b]ecause a

19 version of events provided by a single witness (assuming it is not implausible on its face)

20 constitutes substantial evidence, the mere fact that the complainant's allegations of

21 misconduct are deemed credible by the investigator constitutes substantial evidence. Thus,

22 the SBAP will virtually never be in a position to set aside an investigator's factual findings."

23 (Doe v. Alice, supra, 30 Cal.App.518 1035.] The same logic applies here. Ifcourts

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1 indiscriminately apply the substantial evidence standard to all public and private

2 university sexual misconduct proceedings, courts will virtually never be in a position to set

3 aside a university's findings, even where the accusations lack corroboration and credibility.

4 A student's future, reputation and career could be destroyed by a mere allegation from

5 another student.

6 C, Even Under A Substantial Evidence Standard, the Factual Findings are Not
Supported by the Evidence.

8 In the December 20, 2016 Investigators'eport of Title IX Complaints, the

9 investigators made 10 factual findings and concluded that Petitioner engaged in multiple

10 acts of nonconsensual sexual behavior and sexual harassment. The investigators'1

interviews with witnesses do not support these conclusions.

12 1. Student 1

13 Student 1 alleged that Petitioner manipulated her to engage in sexual activity and

14 that Petitioner would "grope" her while she was sleeping. Student 1 further alleged that

15 Petitioner pressured her to stay in a relationship with him with threats of him committing

16 suicide. Student 1 did not present any claims of misconduct for until 8 months after the

17 relationship with Petitioner ended. Student 1's accusations only came forward after

18 Student 1 learned of Petitioner's subsequent relationships with other Caltech students and

19 after Petitioner stopped paying Student 1 money for her rent on the apartment he no

20 longer lived in.

21 There is no evidence that the Investigators ever questioned Student 1 regarding her

22 demands for money from Petitioner or her motives for contacting each of Petitioner's

23 subsequent girlfriends. Student 1 did not have any evidence to document her accusations.

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1 Petitioner denied each of Student 1's allegations. Student 1 was never questioned at a live

2 hearing or subject to cross-examination. In all, there was no more evidence in support of

3 Student 1's accusations than there was in support of Petitioner's denial.

4 2. Student 2

5 Caltech's Title IX investigators found that Petitioner engaged in nonconsensual sex

6 with Petitioner. However, the investigators never interviewed Student 2 after she declined

7 to participate in the investigation. All of the information received by the investigators

8 regarding Petitioner's alleged activity with Student 2 came from hearsay statements from

9 other parties. No party came forward to report that they witnessed any acts of sexual

10 misconduct. Additionally, Student 2 only came forward to voice concerns regarding her

11 relationship with Petitioner after Student 1 met with Student 2 and the pair "bonded"

12 regarding their shared stories of their relationships with Petitioner. (AR0023-24.)

13 There was no evidence to support the accusations that were presented to the Title

14 IX investigators on Student 2's behalf. There were no witnesses to any of the sexual
15 encounters between Student 2 and Petitioner. Student 1 was never questioned at a live

16 hearing or subject to cross-examination. There is no way to know if Student 1's report of

17 what Student 2 purportedly told her was truthful or accurate.

18 While admitting that he provided Student 2 alcohol when she was underage,

19 Petitioner denied the accusations that he engaged in nonconsensual activity with Student 2.

20 In all, there was as no more evidence in support of Student 1's accusations than there was

21 in support of Petitioner's denial.

22 3. Student 3

23

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1 Student 3 engaged in an approximately month-long relationship with Petitioner.

2 The couple agreed not to engage in sexual intercourse. However, Student 3, reported that

3 Petitioner repeatedly pushed to increase their sexual intimacy. Student 3 admitted

4 Petitioner ever physically forced her to engage in sex. After Student 3 and Petitioner ended

5 their relationship, Student 3 reported feeling uncomfortable when Petitioner would be

6 present at parties where Student 3 was also present. Student 3 also reported that she felt

7 uncomfortable with Petitioner's attempts to speak with her. Student 3 never told Petitioner

8 that his actions made her feel uncomfortable. In fact, when Petitioner questioned Student 3

9 regarding whether she wanted Petitioner to stop reaching out to her, Petitioner

10 immediately ceased all contact with Student 3.

11 There was no evidence to support the accusations that were presented to the Title

12 IX investigators on Student 3's behalf. There were no witnesses to any of the sexual
13 encounters between Student 3 and Petitioner. Student 3 was never questioned at a live

14 hearing or subject to cross-examination. In all, there was no more evidence in support of


15 Student 3's accusations than there was in support of Petitioner's denial.

16 4. Student 4

17 Student 4 was a good friend of Petitioner. Student 4 alleged that in March 2016,

18 Petitioner engaged in nonconsensual sexual activity with Student 4 after Student 4 passed

19 out from intoxication. Student 4 alleged that he awoke the following day feeling sore and

20 having bruises on his neck, shoulders, and thighs. Student 4 admitted to having no memory

21 of engaging in sexual intercourse with Petitioner. Student 4 also did not have photographs

22 or other evidence documenting the existence of bruising. (AR0077.)

23

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1 Over the course of the investigation, Student 4 gave varying and conflicting accounts

2 of the events that transpired on the night Petitioner allegedly engaged in nonconsensual

3 sex.

4 Student 4's allegations regarding sexual misconduct did not surface until September

5 2016, after Student 1 met with Student 4. During that meeting, Student 1 allegedly told

6 Student 4 about the allegations she and Student 2 were making against Petitioner along

7 with allegations that Petitioner had pressured and perhaps assaulted other undergraduate

8 students. (AR0043.)

9 Following the meeting, Student 4 sent an email the Title IX coordinator requesting

10 assistance to end his relationship with Petitioner. Student 4 then meet with the
11 Coordinator and Dean Doug Rees. During this meeting, in September 23, 2016, Student 4

12 reported that he had no memory of events after he went to bed. He reported that he woke

13 up the next day naked. However, Student 4 told the Dean that he "didn't think anything had

14 happened because he did not feel sore.'* There were no reports of bruising, anal bleeding or

15 allegations of rape. (AR0030; AR0079.)

16 While Student 4 was in mental health hospital, Student 4 allegedly spoke with Kate

17 McAnulty by phone wherein he claimed he had been drugged and raped by Petitioner.

18 However, after Student 4 was released from the hospital, Student 4 denied making these

19 allegations. (Id.)

20 When Student 4 met with Title IX investigators, on November 8, 2016, the focus of

21 the conversation was on Student 4's concerns regarding the allegations other'students

22 were making against Petitioner and Student 4's concerns for Petitioner's safety. Student 4

23 did not tell investigators that he had been sexually assaulted. (AR0077.)

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1 It was only during the second meeting with the Title IX investigators on November

2 16, 2016 that Student 4 reported believing he had been sexually assaulted. This interview

3 was the first time that Student 4 alleged he awoke with bruising and anal bleeding. (Id.)

4 While Petitioner admitted to cuddling with Student 4 on the night in question,

5 Petitioner denied engaging in any sexual activity with Student 4.

6 Apart from Student 4's statements to the Title IX investigators there was no

7 evidence in support of his claims. Student 4 was never questioned at a live hearing or

8 subject to cross-examination. Even without cross-examination, there is a substantial

9 inconsistency between Student 4's statements in the administrative record. In all, there

10 was no more evidence in support of Student 4's accusations than there was in support of

11 Petitioner's denial.

12 5. Employee 1

13 Employee 1 admitted that she and Petitioner were involved in a dating relationship

14 during the end of August 2016 through October 2016. Employee 1 reported that she and

15 Petitioner engaged in consensual rough sex. She also admitted that she drank alcohol with

16 Petitioner. In September, Employee 1 agreed that the couple could engage in unprotected

17 sex after she went on birth control and were tested for STD's. Employee 1 and Petitioner

18 agreed to wait 7 days after Employee 1 started taking birth control before engaging in

19 unprotected sex. Several days after Employee 1 began taking birth control, she and
20 Petitioner were "making out" when Employee 1 realized that she was having unprotected

21 sex with Petitioner. Employee 1 stated that she did not recall how the intercourse began.

22 Employee 1 reported that two weeks later she consumed a jar full of Jagermeister
23 and passed out. Despite having no memory of the evening, Employee 1 suspected that she

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1 and Petitioner had sex. A couple of nights later, Employee 1 was again intoxicated in

2 Petitioner's room. Petitioner asked to shave Employee 1's pubic area. Employee 1 reported

3 that she only agreed to let Petitioner "trim" her hair. The following day, Employee 1 found

4 that Petitioner shaved her entire pubic area. After Petitioner began mental health

5 treatment in an in-patient facility, Employee 1 broke up with Petitioner.

6 Petitioner denied engaging in any sexual acts with Employee 1 against her consent

7 or when Employee 1 was intoxicated to the extent that she was unable to extent. Petitioner

8 further reported that Employee 1 asked Petitioner to shave her pubic area.

9 As with the other accusers, apart from Employee 1's statements to the Title IX

10 investigators there was no evidence in support of her claims. There were no witnesses to

11 Petitioner engaging in any coercive behavior, no witnesses to the sexual activity between

12 Petitioner and Employee 1, and no other documentation in support of her claims. Employee

13 1was never questioned at a live hearing or subject to cross-examination. In all, there was

14 no more evidence in support of Employee 1's accusations than was in support of

15 Petitioner's denial.

16 VIL

17 CONCLUSION

18 Petitioner was effectively expelled from his graduate school based merely upon

19 allegations of other students. Petitioner was not afforded the fair process that is required in

20 Title IX investigations and related administrative proceedings where a student's

21 educational future and potential livelihood are at stake. The Title IX investigators arrived at

22 a determination that was not supported by factual evidence and upon evidence the

23 investigators received through an inherently unfair investigations and hearing process.

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1 Petitioner was depr ived of his rights to a fair hearing as he was not granted access to the

2 evidence against him and he was precluded from cross-examining witnesses at an in-

3 person hearing before an impartial finder of fact.

4 Petitioner respectfully requests this court issue a writ of mandate correcting the

5 outcome of the unfair and incorrect process that let to the deprivation of Petitioner's vested

6 educational interest.

LA

9
Dated: April /~ 2019 by:
10 ALEC ROSE
Attorney for PETITIONER, JOHN DOE

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