[Update, 10-9: As expected, the three-judge panel unanimously ruled for the accused student.]
Last week, a three-judge California appellate panel heard the first of at least five appeals in campus due process cases. (A sixth appeal, against the University of California-Santa Barbara, settled on the eve of its scheduled oral argument.) This case also originated from UCSB; at one point, the hearing panel chair, Justice Arthur Gilbert, acknowledged that “we’ve really tipped our hand” in revealing the panel’s “serious, serious questions” about the due process given to the accused student.
Even in the annals of bizarre campus due process cases, this one was strange. In 2016, the accuser—who had consumed alcohol despite taking an anti-depressant, Vibryd, that discouraged alcohol use—claimed that she was violently sexually assaulted at a party. Her allegation was of a brutal rape, in which the attacker also photographed her during the assault. Yet two other students—including her best friend—were seated three feet away from her during the alleged assault, and told the hearing panel they saw nothing. A critical piece of evidence—the name of the anti-depressant—was provided to the accused student shortly before the hearing (the night before, according to his lawyer; a few days before, according to the university).
UCSB didn’t follow the criminal rules of evidence when it allowed testimony from a security officer describing contents of a sexual assault report that was mostly redacted for the accused student, but it did follow the rules of evidence in denying testimony from the accused student’s mother, an engineer who had contacted the drug company to find out the anti-depressant’s side effects when mixed with alcohol—a list that included hallucinations. The university counsel, present at the hearing, interjected: “You do not have the expertise to lay the foundation for this type of evidence. We appreciate you feel you wish you had more time on the SART [sexual assault] exam but you have (sic) the opportunity to look at it prior to the hearing, but you can’t backdoor this.” The accused student’s lawyer, by contrast, could not speak at the hearing.
The accused student was found guilty, largely on grounds of the emotional trauma of the accuser, who dropped out of school and went to counseling. after the alleged assault. The hearing panel said that, given the layout of the dorm room, it was possible for a violent assault to have occurred without the two other students, three feet away, noticing it. The panel dismissed results of a lie detector test, which the accused student passed, on grounds that he was drunk on the night of the incident and therefore his memory was unreliable. An appeal—to UCSB Margaret Klawunn, a figure well-known from various lawsuits against Brown dating from her time there—was denied.
The accused student sued but lost in superior court. Judge Donna Geck conceded that “the better practice may have been to find a way to let Doe see the SART report or exclude any reference to a small portion of the findings in the report given out of context,” but denied that the procedural error harmed the accused student. She noted that the hearing panel refused to hear testimony about Vibryd’s side effects, but likewise dismissed this concern as non-prejudicial, since “Viibryd and alcohol [do not] always result in hallucinations, night terrors, or nightmares.” Geck concluded that the hearing panel had reason to disbelieve the friend’s exculpatory testimony, since the friend said only that the bed was “often,” not “always,” in her peripheral vision. Finally, Geck acknowledged that there was “no evidence” to substantiate the hearing panel’s conclusion that the accused student’s medical condition (a form of palsy) “may have even exacerbated the physical sensations Complainant described and physical evidence described in relation to the incident.” But she argued that this evidence-free finding was not “crucial” to the evidence for guilt.
Oral argument came last Wednesday before Justices Arthur Gilbert, Steven Perren, and Kenneth Yegan, each of whom seemed dubious (to varying degrees) about UCSB’s handling of the case.
Justice Perren was the most skeptical of the university’s actions. He noted that, “I read this record, and I was stunned at a university procedure which purports to be fair and equitable puts a kid [the accused was a freshman] who’s attempting to get a college education in the position of, essentially, a lawyer in a major sexual assault case.”
UCSB’s lawyer pushed back on this point, claiming that Perren had minimized the trauma of the victim. This point brought a strong rejoinder from Perren, who noted that “your argument assumes its conclusion”—that the accuser was, in fact, a victim.
Much of the hearing focused on what would happen if the court sided with the accused student. Justice Arthur Gilbert raised this early on, wondering what would happen if the court just decided UCSB denied due process—and what occurred if the court found there was no substantial evidence of guilt at all.
Justice Yegan, meanwhile, focused on the appearance of unfairness—noting that the university was, in effect, investigating and judging itself, instead of choosing to have an outside adjudicator. He also worried about the unfairness of a process in which the accused student’s lawyer could not speak, but the university’s counsel could.
The university’s lawyer, Jonathan Miller, defended the procedures by repeatedly claiming that mandates from Title IX and OCR required the university to adjudicate sexual assault claims. But nothing from OCR requires (as happened here) the accused student to have a silent lawyer or not to be able to gather and present expert testimony.
At the end of the hearing, Gilbert cautioned that just because the panel asked all tough questions of the university, and none of the accused student’s lawyer, an outcome for the accused student wasn’t guaranteed. But it seemed more likely than not.
The full audio of the hearing is below.