California law gives to state courts some discretion in reviewing the determinations of administrative hearings—which includes campus sexual assault tribunals. As a result, some of the most pro-due process decisions (UC-San Diego, USC) have come from California state courts.

On October 12, Judge Joel Pressman’s important decision was reviewed by a three-judge appellate panel. While it’s always dangerous to predict an appeals outcome from oral argument, it was clear that all three justices (Richard Huffman, Joan Irion, and Gilbert Nares) had concerns about the fairness of the UCSD system.

A quick summary: in this case, the accuser made two charges—that the male student raped her, and then sexually assaulted her the following morning. A UCSD investigator spoke to 14 witnesses, but wasn’t able to corroborate the first claim. But even though something these 14 witnesses said caused the investigator to doubt the accuser’s credibility, notes of these interviews (and even the identity of the parties!) wasn’t shared with the accused student. Regarding the incident the following morning—to which there were no witnesses—both the investigator and a UCSD panel deemed it more likely than not the accuser was telling the truth. UCSD never gave the accusing student a copy of the accuser’s previous statements to UCSD. The panel chair also refused to ask 23 of the 32 questions the accused student submitted.

The hearing’s highlight came almost immediately. After a brief opening statement by Grant Davis-Denny, who represented the University of California system, Justice Huffman interrupted to express his concern with the basic unfairness of the UCSD system. The two other judges quickly chimed in their agreement. Then Huffman noted, “When I . . . finished reading all the briefs in this case, my comment was, ‘Where’s the kangaroo?’”

 

The judges repeatedly expressed specific concerns about the procedures UCSD used, and why any university interested in fairness would have employed them. After a bit of pushback, Justice Irion was able to extract from Davis-Denny that it was this public university’s responsibility to produce a fair hearing:

 

Justice Huffman reiterated the value of fairness:

 

And here’s Justice Huffman wondering why—in a case that solely came down to the credibility of the two students—UCSD wouldn’t have turned over the notes from interviews with the 14 witnesses that had led UCSD’s own investigator to conclude that regarding the first of her two allegations, the accuser was not sufficiently credible for the university to bring charges:

 

Justice Irion made a similar point about the university’s decision to withhold the identities and the notes from the witness interviews. She was flabbergasted when Davis-Denny argued that withholding this information was justified because there was “no evidence in the record” that this (obviously relevant) information was relevant:

 

Davis-Denny attempted to respond to this argument by claiming that granting the accused student’s request would require full-scale civil discovery (Justice Irion was incredulous)–and then suggesting that it was at least possible, if unlikely, UCSD’s investigator didn’t rely on the interview notes in preparing her report.

 

Justice Nares, meanwhile, was especially concerned by the unfairness of UCSD’s “indirect” cross-examination, in which the accused student has to produce written questions in advance, which the panel might (or, this case, mostly might not) ask:

 

And like his colleagues, he was concerned with UCSD’s withholding of the notes:

 

In strongly discouraging cross-examination of accusers, the Office for Civil Rights has implied—but never directly stated—that cross-examination (which the legal scholar John Henry Wigmore, described cross examination as the, “greatest legal engine ever invented for the discovery of truth”) is somehow harmful to the pursuit of truth in college sex tribunals. The UCSD attorney dropped any pretense, and made the argument openly:

 

Finally, UCSD (in a line of argument often heard in discussions about campus sexual assault claims) championed the idea that due process means the college doing the minimum legally possible. Davis-Denny’s implication that this minimum essentially removed any role for judicial oversight drew a sharp rebuke from Justice Irion:

 

The judges also had tough questions for the accused student’s lawyer, Andrew Chang—but the questions here dealt with specifics of the case, not the basic unfairness of the system.

The decision remains pending.