Judge Curtis A. Kin, Case Number: 23STCP00821, Date: 2023-08-08 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Petitioner John Doe petitions for a writ of mandate directing respondent California Institute of the Arts to set aside a decision finding that petitioner engaged in sexual misconduct and suspending petitioner for one and a half years. For the reasons that follow, the petitioner is GRANTED IN PART.

Petitioner John Doe and third-party complainant Jane Roe (“Roe”) were students at respondent California Institute of the Arts (“CalArts”). (AR 219.) Petitioner and Roe had a romantic relationship from April 2021 until September or October 2021. (AR 219, 227-28.)

On May 1, 2022, Roe filed a Title IX complaint against petitioner, pursuant to respondent CalArts’ Sexual Harassment Policy (“Policy”). (AR 56-62, 151-54.) On June 20, 2022, respondent emailed petitioner a Notice of Investigation and Allegations. (AR 56.) The Notice indicated that petitioner was alleged to have violated policies against sexual harassment; forcible rape, sodomy, and fondling; and dating violence. (AR 58-60.)

The complaint was based on three instances of alleged sexual harassment by petitioner against Roe. (AR 57-60, 153-54.)

In mid-April 2021, Roe first met petitioner in person at a hotel room. (AR 58, 154.) Prior to meeting, Roe and petitioner had a conversation about “breath play.” (AR 414.) Roe indicated that they were comfortable with petitioner putting one hand on their neck if it was the non-dominant hand and “not a lot of pressure” was applied. (AR 414.)

In the hotel, while engaging in consensual sexual acts, petitioner asked Roe if they would be okay with him putting one hand on their throat. (AR 414.) Based on Roe and petitioner’s prior discussion, Roe responded, “Yeah, for sure.” (AR 414.) Instead of only using the one, non-dominant hand, petitioner applied both hands to Roe’s throat and caused them to lose consciousness. (AR 414-15.) Upon waking up, Roe expressed discomfort that they did not know for how long they were unconscious and that they did not know what petitioner did to them while unconscious, but petitioner assured Roe that passing out was normal and safe. (AR 154, 415.) Roe told petitioner, “Please don’t do it again.” (AR 415.) During the weeklong stay, petitioner strangled Roe to the point of unconsciousness at least one more time and possibly twice during consensual vaginal sex. (AR 154, 416.) After one instance of strangulation by which Roe was rendered unconscious longer than usual, petitioner never choked Roe again. (AR 58, 154, 416.)

In early August 2021, while petitioner and Roe were in a relationship, petitioner lived with Roe and Roe’s sister in Rhode Island. (AR 58, 153, 420.) According to Roe, they and petitioner had an understanding that, if either wanted to engage in anal sex with the other, the interested party would obtain consent from the other one approximately 24 hours beforehand and then before the anal sex to confirm that the other party still consented. (AR 420-21.) While petitioner and Roe engaged in consensual vaginal sex, petitioner allegedly engaged in anal sex without discussing with Roe beforehand. (AR 58, 153, 421.) Roe screamed, but petitioner forcibly held Roe’s hips and continued to have anal sex. (AR 153, 421.) Roe asked petitioner, “Did you just rape me?” (AR 422.) According to Roe, petitioner responded, “I think so. I’m sorry. I didn’t mean to. It was a total accident. You know I wouldn’t mean to do that.” (AR 422.) Roe alleged that they experienced pain and bleeding from the incident. (AR 153, 422.)

In mid-November 2021, after the relationship between petitioner and Roe had ended, petitioner allegedly began kissing Roe in their dormitory room, to which Roe consented so long as it do not go further. (AR 153, 429-30.) Petitioner then allegedly forcefully grabbed Roe’s chest. (AR 57, 153, 430.) Roe responded, “Please don’t touch me there, I don’t want you to touch me like that.” (AR 153.) Petitioner began kissing Roe again. (AR 57-58, 153.) Petitioner then allegedly grabbed Roe’s chest again and forcefully pulled on the waistband of their pants. (AR 58, 153.) Roe demanded that petitioner leave their dorm room immediately. (AR 153.) Roe later added to their complaint that petitioner grabbed their buttocks. (AR 82.)

CalArts assigned the investigation of the matter to Alison Nygard of Grand River Solutions, Inc. (AR 61.) Nygard interviewed Roe and witnesses who Nygard deemed had relevant testimony. (AR 410-11.) Based on advice of counsel, petitioner declined to be interviewed. (AR 95, 410.)

On July 26, 2022, Dionne Simmons, CalArts’ Title IX Coordinator, provided the preliminary investigation report to petitioner. (AR 99-103.) On August 15, 2022, petitioner responded to the report by submitting a written statement, requesting additional evidence from Roe and other witnesses, setting forth questions to be answered by Roe and their sister, and identifying other witnesses. (AR 210-17, 280.) Nygard obtained written responses to petitioner’s questions from Roe and their sister and interviewed witnesses identified by petitioner. (AR 280, 282.) On October 3, 2022, Nygard provided petitioner with documentation concerning the further investigation. (AR 278.) On October 10, 2022, Petitioner provided a written response to the additional evidence. (AR 393-97.)

Nygard prepared a final investigation report. (AR 402-04.) On November 26, 2022, Simmons provided the final investigation report to petitioner. (AR 405-463.) On December 9, 2022, petitioner provided a written response to the final investigation report. (AR 701-713.)

The hearing was scheduled for December 19, 2022. (AR 695, 772.) After petitioner expressed concerns regarding CalArts’ initially assigned hearing officer, the matter was reassigned to Brett Sokolow, J.D. (“Hearing Officer”). (AR 759-760, 765-67.) The Hearing Officer heard testimony from Roe, petitioner, Witness 1 (Roe’s sister), Witness 7 (petitioner’s friend), and Witness 8 (petitioner’s roommate). (AR 782-869.)

During the hearing, Roe admitted to having post-traumatic stress disorder prior to meeting petitioner. (AR 798; see also AR 327 [Roe’s response to petitioner’s written question during investigation].) Petitioner’s counsel attempted to cross-examine Roe with respect to a prior sexual assault that Roe experienced in high school. (AR 220, 222, 798.) The Hearing Officer disallowed petitioner’s questions regarding the prior sexual assault. (AR 797-98.) Roe refused to answer petitioner’s questions regarding the effect of PTSD on their memory. (AR 799-800.)

With respect to the April 2021 incident regarding the strangulation of Roe, petitioner stated that he caused Roe to pass out only once and that he used one hand. (AR 819-20, 824-25.)

With respect to the August 2021 incident regarding the forcible anal sex against Roe, petitioner stated that, as soon as his penis touched Roe’s anus, Roe pulled away and said “no.” (AR 820.) Petitioner insisted that he did not penetrate Roe’s anus with his penis. (AR 820.) Petitioner admitted that, during prior instances of anal sex with Roe, there was usually a “slight form of communication” but that his “verbal communication absolutely could have been better” in this instance. (AR 831, 833-34.) Witness 7 testified to a conversation that she had with petitioner in which petitioner admitted that the protocol before having anal sex with Roe was to ask first but that petitioner admitted not having done so in this instance. (AR 863.) Witness 8 testified that petitioner told him that, with respect to the August 2021 incident, “it was, like, just the tip.” (AR 859.) Witness 8 indicated that he understood petitioner’s statement to mean that petitioner’s penis was on Roe’s anus, but that there was no penetration. (AR 860.)

With respect to the November 2021 incident regarding the fondling of Roe, petitioner indicated his understand that Roe did not want to have sex. (AR 821.) Because Roe was kissing petitioner, as well as straddling and grinding on petitioner, petitioner believed that he could touch Roe if they did not have sex. (AR 821.) Roe testified that Roe was sitting on petitioner’s lap while kissing petitioner and that they would not dispute that they were grinding on him. (AR 792.) Roe testified that Roe asked him to stop touching their chest, but he continued. (AR 793.)

On January 11, 2023, the Hearing Officer issued his decision. (AR 902-918.) With respect to the April 2021 strangulation incident, the Hearing Officer determined that the preponderance of the evidence showed that petitioner strangled Roe with two hands on two occasions for the purpose of enhancing sexual arousal. (AR 909.) The Hearing Officer found that petitioner committed dating violence against Roe but did not rape them, as rape is defined in the Sexual Harassment Policy. (AR 909-912.)

With respect to the August 2021 incident concerning forcible anal sex, the Hearing Officer found that the preponderance of the evidence demonstrated that petitioner attempted to penetrate and penetrated Roe’s anus after applying saliva to the external area of Roe’s anus. (AR 912.) Petitioner had testified that he perceived consent to anal sex because as he was spreading lubricant on Roe’s anus, they were “kind of leaning into it” and he previously initiated anal sex in the same manner. (AR 831-32.) However, the Hearing Officer noted the Policy stated, “Even in the context of a relationship, there must be mutually understandable communication that clearly and unambiguously indicates a willingness to engage in sexual activity.” (AR 913.) The Policy also stated, “Consent may not be inferred from silence, passivity, lack of resistance, or lack of an active response alone. (AR 913.) The Hearing Officer noted petitioner’s testimony that he should have been clearer in his request for anal sex. (AR 913.) The Hearing Officer also noted Witness 8’s testimony that petitioner said “it was like just the tip” and that petitioner admitted that he did not ask for consent before having anal sex with Roe. (AR 912, 914.) The Hearing Officer found that petitioner committed domestic violence against Roe but not dating violence, as petitioner and Roe were cohabitating, and federal regulations preclude a party from being found in violation of both domestic violence and dating violence. (AR 914-15.) The Hearing Officer also found that petitioner committed rape and sodomy against Roe. (AR 912-14.)

With respect to the November 2021 fondling incident, the Hearing Officer found that Roe consented to having their buttocks touched because a reasonable person would have perceived Roe as grinding on petitioner. (AR 916.) The Hearing Officer found that it was reasonable for petitioner to believe that he could fondle Roe’s chest because Roe was fondling petitioner’s chest. (AR 916.) The Hearing Officer found that petitioner was not responsible for fondling. (AR 917.)

With respect to sanctions, the Hearing Officer determined that suspension was more appropriate than expulsion because petitioner’s intent was sexual pleasure, not harm, even though harm resulted. (AR 917.) The Hearing Officer suspended petitioner for at least the spring 2023 semester and as long as Roe was enrolled at CalArts as a full-time undergraduate student. (AR 917.) If petitioner returns to CalArts after having served his suspension, the Hearing Officer determined that the suspension will not be disclosed to external third parties without petitioner’s permission and will not appear on petitioner’s transcript. (AR 917.)

On January 23, 2023, petitioner appealed the decision of the Hearing Officer. (AR 1161.) Petitioner argued that the Hearing Officer applied the wrong standard of proof (AR 1166-68), that petitioner was prevented from investigating a prior sexual assault on Roe which may have affected their perception of the incidents at issue (AR 1168-69), and that the Hearing Officer made determinations not supported by the evidence (AR 1169-1177.) Petitioner also argued that the sanction imposed by the Hearing Officer was indefinite, as petitioner would remain suspended so long as Roe was a student at CalArts. (AR 1180-81.) Roe did not appeal. (AR 1199.)

On February 2, 2023, Simmons informed petitioner that the appeal was assigned to Elizabeth Abdnour (“Appeals Officer”). (AR 1199.) The Appeals Officer reviewed petitioner’s appeal and determined that it was based on procedural irregularities that affected the outcome of the matter and purported conflict of interest or bias. (AR 1202.) The Appeals Officer determined that the appeal did not contain any information or argument based on new evidence that was not reasonably available at the time of the Hearing Officer’s determination. (AR 1202.)

On February 26, 2023, the Appeals Officer requested Simmons provide “general information (no identifying details) as to what the sanctions have been in other Title IX cases where there has been a finding against a respondent at Cal Arts over the last two years.” (AR 1208.) The Appeals Officer “wanted to ensure that the decision [she] issue[s] is within the normal range of the school.” (AR 1208.)

On March 13, 2023, the Appeals Officer affirmed the findings of responsibility by the Hearing Officer. (AR 1229-30.) However, the Appeals Officer determined that the Hearing Officer did not consider previous allegations and/or allegations involving similar conduct, as the Policy required. (AR 1225-26.) Based on the information provided by Simmons, the Appeals Officer determined that more severe sanctions were warranted in the matter. (AR 1230.) The Appeals Officer suspended petitioner from the spring 2023 semester up to the summer 2024 semester. (AR 1231.) The Appeals Officer found that, “based upon a review of previous CalArts responses to similar misconduct, a suspension potentially lasting as short as two months is inequitable given the specific findings against Respondent….” (AR 1232.) The Appeals Officer also indicated that the discipline should be noted on petitioner’s transcript. (AR 1232-33.)

On March 15, 2023, petitioner filed a Petition for Writ of Mandate. On March 17, 2023, the Court (Hon. Mary H. Strobel) stayed the administrative decision for the spring 2023 semester but not for the fall 2023 semester.

On June 13, 2023, petitioner filed an opening brief. On July 7, 2023, respondent filed an opposition. On July 24, 2023, petitioner filed a reply.

The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Numerous Court of Appeal cases have affirmed that student sexual misconduct proceedings at public and private universities do not involve a fundamental vested right, and that the substantial evidence standard applies in the trial court. (See, e.g., Doe v. Occidental College (2019) 40 Cal.App.5th 208, 220-221; Doe v. Allee (2019) 30 Cal.App.5th 1036, 1060; Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 238, 239, 248-49; Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1073-74; see also Gurfinkel v. Los Angeles Community College Dist. (1981) 121 Cal.App.3d 1, 6 [no fundamental right to a public college education].)

Substantial evidence is “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-85), or evidence of ponderable legal significance which is reasonable, credible and of solid value (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633). “Courts may reverse an [administrative] decision only if, based on the evidence…a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

“On substantial evidence review, [the court] do[es] not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. The administrative agency’s findings come before [the court] with a strong presumption as to their correctness and regularity. [The court] do[es] not substitute [its] own judgment if the agency’s decision is one which could have been made by reasonable people. Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency’s findings are not supported by substantial evidence. (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1073, citations and quotations omitted.)

Petitioner argues that the Hearing Officer shifted the burden of proof onto him instead of onto CalArts. The Policy provides that the standard of proof is a preponderance of the evidence, which means that “a decision of responsibility for a policy violation will be made on whether it is more likely than not that the respondent violated the policy based on the totality of information gathered during the investigation.” (AR 26.) “The Institute and not the Parties, has the burden of proof and the burden of gathering evidence, i.e. the responsibility of showing a violation of this Policy has occurred.” (AR 30-31.)

Petitioner argues that the Hearing Officer required him to disprove Roe’s claims. In support of this assertion, petitioner notes the Hearing Officer’s refusal to rely on evidence of Roe’s mental health and PTSD and statement that petitioner failed to prove that Roe’s mental health caused them to misperceive events. (AR 907.) Petitioner also argues that the Hearing Officer found that Roe was more credible than petitioner based on their restraint in asserting wrongdoing by petitioner. (AR 909, 914.) Petitioner maintains that the Hearing Officer chose to believe Roe over petitioner, which does not support his determination of responsibility for rape, sodomy, and dating/domestic violence without corroborating evidence.

Under the substantial evidence standard of review, the reviewing court “accept[s] all evidence which supports the successful party, disregard[s] the contrary evidence, and draw all reasonable inferences to uphold the verdict.” (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1074.) “Credibility is an issue of fact for the finder of fact to resolve, and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact.” (Ibid., internal citations omitted.)

With respect to the April 2021 strangulation incidents, the Hearing Officer was entitled to find that petitioner was responsible for dating violence based on the testimony of Roe. Roe testified that, before engaging in breath play, they set a condition that petitioner use only one, non-dominant hand. (AR 784-85.) Petitioner exceeded the scope of consent by using two hands. (AR 786.)

The Hearing Officer found that Roe’s allegation that petitioner strangled them without consent twice was credible because Roe could have lied that petitioner strangled them a third time but instead stated that they were unclear. (AR 909.) Contrasted against the finding that Roe was credible, the Hearing Officer indicated that petitioner’s assertion during the investigation that he was not really into choking was undermined by his testimony at the hearing. (AR 417.) Specifically, petitioner testified that he was the one who suggested breath play to Roe. (AR 825-26.) Petitioner also testified that he was careful with his strangulation technique, which he learned about online, and that he engaged in sexual choking with a previous partner. (AR 825-27.)

Petitioner testified that he used only one hand and that he engaged in breath play with Roe only once. (AR 819-20.) Based on the inconsistency in petitioner’s testimony, however, the Hearing Officer was entitled to find that petitioner was not credible. (See CACI 107 [“[I]f you decide that a witness did not tell the truth about something important, you may choose not to believe anything that witness said”].)

Roe’s testimony, standing alone, is sufficient to support the Hearing Officer’s determination of responsibility against petitioner. (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1074.) That other evidence may support a finding that petitioner was not responsible is insufficient to overturn the finding. (Ibid.; see OB at 15:8-13.) Based on the totality of evidence, substantial evidence supports that petitioner engaged in dating violence against Roe in April 2021 by strangling them with both hands twice without their consent.

With respect to the August 2021 incident regarding forcible anal sex, the Hearing Officer was entitled to find that petitioner was responsible for rape, sodomy, and domestic violence based on the testimony of Roe and other corroborating evidence. Roe testified that the protocol for anal sex with a penis was expressed interest beforehand, time to prepare for sanitary reasons, and lubrication. (AR 788; see also AR 420-21 [summary of Roe’s interview concerning August 2021 incident].)

Petitioner maintained that, based on past instances of consensual anal sex where petitioner rubbed lubricant on Roe’s anus and Roe’s leaning into petitioner while he applied saliva on their anus, petitioner perceived that he had consent to have anal sex in this instance. (AR 820.) However, the Policy required that consent be demonstrated through “mutually understandable words and/or clear, unambiguous actions that indicate a willingness to engage freely in sexual activity.” (AR 17.) “Each participant in a sexual encounter is expected to obtain consent to each act of sexual activity. This requires participants to continuously check in and communicate with each other or others to ensure that consent is given knowingly, voluntarily, and affirmatively.” (AR 17.) “Consent may not be inferred from silence, passivity, lack of resistance, or lack of an active response alone.” (AR 17.)

During the hearing, petitioner admitted that his communication regarding his intent to have anal sex could have been better. (AR 831, 833-34.) Witness 7 also testified that petitioner admitted that the protocol to have anal sex with Roe was to ask first but he did not do so. (AR 863.) Based on these admissions, the Hearing Officer was entitled to find that Roe did not provide unambiguous consent to anal sex, as required under the Policy.

Petitioner maintains that there is no independent evidence that he penetrated or attempted to penetrate Roe’s anus with his penis. However, Witness 8 testified that with respect to the August 2021 incident, petitioner stated that “it was, like, just the tip.” (AR 859.) While Witness 8 indicated that he interpreted petitioner’s statement to mean that there was no penetration (AR 860), the Hearing Officer was entitled to find that “[j]ust the tip suggests penetration, however slight, per Policy.” (AR 912.) Even if there were no penetration, the Policy includes “attempted penetration, however slightly, of a person, forcibly and/or against that person’s will” in the definition of sexual harassment, which includes sexual assault, and rape. (AR 13-14.) At the very least, “just the tip” suggests that petitioner attempted to penetrate with his penis. Petitioner admitted to Witness 7 that there was a protocol of asking Roe before engaging in anal sex, but he did not ask in this instance. (AR 863.)

Based on the foregoing, the Hearing Officer did not rely just on Roe’s testimony but also on corroborating evidence. Substantial evidence supported the Hearing Officer’s determination of responsibility as to the allegations of rape, sodomy, and domestic violence against petitioner.

In summary, there is no indication that the Hearing Officer shifted the burden of proof onto petitioner. Substantial evidence supported the Hearing Officer’s determinations of liability against petition.

In reviewing a matter for substantial evidence, the reviewing court may not give the prevailing party the benefit of a reasonable inference when the “inference is rebutted by clear, positive and uncontradicted evidence of such a nature that it is not subject to doubt in the minds of reasonable men.” (Gaffney v. Downey Savings & Loan Assn. (1988) 200 Cal.App.3d 1154, 1168.)

Petitioner asserts four instances where the Hearing Officer misstated the evidence. With respect to the April 2021 strangulation incidents, petitioner maintains that it was physically impossible for him to have strangled Roe with two hands, as Roe had testified that petitioner’s elbows were propped by their head during the strangulation. (AR 786.) However, Roe did not testify how close petitioner’s elbows were to their head. Petitioner could have had his elbows level to Roe’s head such that his elbows were “by” Roe’s head, but at a far enough distance for his hands to reach Roe’s neck. The Hearing Officer was entitled to find that petitioner’s strangulation of Roe with two hands was physically possible. (AR 909-910.)

Petitioner also maintains that he never testified that he was into kink behaviors, as the Hearing Officer stated in his decision. (AR 810.) While petitioner may not have used the phrase “kink behaviors” in his testimony, petitioner did state in writing that he was not into sexual choking (AR 417) and that he only slapped petitioner in the face during sex to please Roe, even though he was uncomfortable with so doing. (AR 716, 826). The reference in the Hearing Officer’s decision to petitioner’s denial of engaging in “kink behaviors” is merely reference to petitioner’s statements about his interest (or lack thereof) in choking and slapping during sex.

With respect to August 2021 incident regarding forcible anal sex, petitioner contends that the Hearing Officer’s finding that the phrase “just the tip” suggests penetration contradicts Witness 8’s interpretation of the phrase. The Hearing Officer was entitled to reach his own conclusion about the meaning of petitioner’s “just the tip” statement. But, even if Witness 8’s interpretation were true, the Hearing Officer was still entitled to find that the phrase indicates an attempt to engage in forcible anal sex, which is also prohibited by the Policy.

Petitioner also contends that the Hearing Officer falsely stated that Roe’s actions while petitioner applied saliva to their anus were passive. (AR 913.) Even if Roe were pushing back into petitioner during the act of lubrication, the Hearing Officer was entitled to find that such an act was not unambiguous consent, as required under the Policy. (See AR 17 [“Relying on non-verbal communication can lead to misunderstandings”].) Roe had testified that petitioner had placed saliva on their anus when petitioner used a finger or a butt plug but that anal penetration with a penis had a different protocol requiring advanced notice. (AR 788.) Based on the different protocols between various types of anal penetration, the Hearing Officer was entitled to find that Roe did not provide the necessary active consent for anal penetration with a penis.

Petitioner contends that he did not receive a fair hearing because the Hearing Officer did not allow petitioner to examine Roe regarding a prior sexual assault. (AR 797-98.) Petitioner also contends that Nygard, the investigator, refused to gather Roe’s personal leave of absence documents, as petitioner requested. (AR 133, 281.) Roe also refused to answer questions during the hearing respect to how other sexual assaults may have affected their memory. (AR 799-800.) Petitioner maintains that information concerning a prior sexual assault against Roe in high school and a sexual assault in November 2021 by a different perpetrator may have affected Roe’s perception of the incidents at issue with petitioner. Petitioner maintains that he was unable to fully test Roe’s credibility.

Under federal regulation, “Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant's prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.” (34 C.F.R. § 106.45(b)(6).) Petitioner does not seek to inquire into other sexual assaults for any purpose permitted by the regulations. Rather, petitioner seeks to use the prior sexual assaults to attack Roe’s perception of the incidents at issue. This is not an allowable exception to inquire into past sexual behavior under 34 C.F.R. § 106.45(b)(6).

“Where student discipline is at issue, the university must comply with its own policies and procedures.” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 239.) Petitioner contends that the Appeals Officer had no authority to increase the severity of the sanctions in connection with petitioner’s appeal. The Court agrees.

Based on sanctions imposed for conduct similar to petitioner in the past three years, which the Appeals Officer obtained from the Title IX Coordinator, the Appeals Officer determined that petitioner should be suspended up to the summer 2024 semester. (AR 1226-27, 1231.) The Hearing Officer determined that petitioner could return in the fall 2023 semester if Roe were not a full-time undergraduate student. (AR 917.) The Appeals Officer determined that the Hearing Officer did not consider “[p]revious allegations and/or allegations involving similar conduct” in determining the appropriate sanction, as purportedly required under the Policy.

Under the Policy, however, a party may appeal on the following limited grounds: (1) procedural irregularity; (2) new evidence not reasonably available at the time of the determination of responsibility; and (3) conflict of interest or bias. (AR 39.) Modification of the sanctions is not a ground upon which petitioner could appeal. Here, the only grounds for petitioner’s appeal which the Appeals Officer recognized were procedural irregularity with respect to the purported misapplication of the standard of proof, and conflict of interest or bias. (AR 1202.) Notably, the Appeals Officer acknowledged: “Respondent is correct that the Policy does not permit an appeal based upon an excessive sanction, and the undersigned has no authority to deviate from the Policy or analyze an appeal beyond the provisions identified in the Policy.” (AR 1225.) Nonetheless, despite conceding that the Policy only permits an appeal based on the above-listed enumerated grounds for appeal, the Appeals Officer violated the Policy and exceeded her authority when she modified the sanction imposed.[1] (See AR 39 [‘If any of the grounds in the Request for Appeal do not meet the grounds outlined in this Policy, the request will be denied . . .”].)

Moreover, even if the Policy did permit an appeal of the sanction imposed, the Appeals Officer still failed to abide by the Policy. In deciding to modify the sanction, the Appeals Officer relied on information obtained from Simmons with respect to sanctions imposed for similar conduct. However, on its face, such information was “reasonably available at the time the determination regarding responsibility or dismissal was made,” such that it cannot be considered new evidence for the purposes of appeal. Further, even if the Appeals Officer had been permitted to consider information regarding sanctions imposed in comparable matters, petitioner here was impermissibly deprived of any opportunity to review such information. (See Doe v. Regents of University of California (2018) 28 Cal.App.5th 44, 57 [The accused must be permitted to see the evidence against him. Need we say more?].) In other words, petitioner was not provided an opportunity to argue why his case was dissimilar from other cases where more severe sanctions were imposed. “To comport with due process…university procedures must be tailored in light of the matters at issue, to ensure that parties have a meaningful opportunity to present their case.” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1063-64.)

Lastly, the Court rejects respondent’s contention that the Appeals Officer acted within her authority because the Policy required the Hearing Officer to consider “[p]revious allegations and/or allegations involving similar conduct.” (AR 37.) To the contrary, previous allegations or allegations involving similar conduct are only one factor that the Hearing Officer “may” include when determining a sanction. Such consideration is not necessarily required and the purported failure to do so cannot support the Appeals Officer’s decision to modify the sanction imposed.

Accordingly, petitioner sufficiently demonstrates that the increase in severity of sanctions against him by the Appeals Officer cannot stand.

For the foregoing reasons, the petition for writ of mandate is GRANTED IN PART. The findings of the Hearing Officer are affirmed, but the matter is remanded for respondent to reverse the sanctions imposed by the Appeals Officer and to impose the sanctions issued initially by the Hearing Officer.

[1] It is thus irrelevant that petitioner argued the imposed sanctions were disproportionate to the severity of the violation. (AR 1180-81.) By so doing, petitioner could not have expanded the grounds for appeal to include evaluation of the sanction imposed.