Uncertain Outcome in Critical Occidental Case

In the early stages of the campus due process crisis, three cases in particular generated national attention—due to a combination of outrageous facts and a member of the national media choosing to examine the case in greater detail. One was Amherst, in which the college found an innocent student—and a possible victim of sexual assault—guilty. Another was the University of Michigan, in which the school utilized an almost hopelessly unfair process to reach a guilty finding despite strong exculpatory evidence and the accuser’s clear motive to lie.

The third case was Occidental, subject of this lengthy profile from Richard Dorment in Esquire. Amidst a campus environment as extreme on this issue as any in the country at any point since the Dear Colleague letter, Occidental returned a guilty finding despite an almost unprecedented occurrence—contemporaneous text messages from the accuser indicating that she had consented. The accuser herself said she was influenced to file charges by an activist Occidental professor, Danielle Dirks, who allegedly told her that the accused student “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and ‘from a good family.’”

The accused student sued, both in state and federal court, in autumn 2015. The federal lawsuit was stayed, while state litigation proceeded at a glacial pace. In June 2017, Superior Court Judge Mary Strobel ruled in Occidental’s favor, but in an almost apologetic fashion. “Exercising its independent judgment,” Strobel wrote (with a touch of understatement), “this court nay have reached a different result than the external adjudicator based on Roe’s text messages with Petitioner and other evidence suggesting she had capacity to consent to sex.” Strobel concluded, “Given the severe consequences of the administrative decision, it may be appropriate for the Court of Appeal to provide additional guidance on the standard of mandamus review for student discipline proceedings involving charges of sexual misconduct.”

Since Strobel issued her opinion, the Court of Appeal has issued an array of decisions bolstering the procedural rights of accused students. But it largely has steered clear of the issue raised by Judge Strobel. The one exception was a recent Court of Appeal decision in another Occidental case, where the accused student appeared to have been guilty. There, the Court avoided the type of reconsideration of the standard that Judge Strobel seemed to want: “Our substantial evidence standard is extremely deferential. We do 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 us ‘with a strong presumption as to their correctness and regularity. We do not substitute our 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. We are required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict.” [cleaned up]

Last week, the Occidental case finally reached the Court of Appeal. The oral argument, however, revealed few clues about a potential outcome. Doe’s lawyer, Mark Hathaway, effectively illustrated the absurdity of a scheme of absolute deference to the substance of decisions by a private institution—especially, as in a case like this, by a single person (the external adjudicator) hired by a private institution.

The three judges on the panel asked Hathaway only one, non-substantive question.

Two of the three judges had questions for Occidental’s lawyer, but they raised somewhat extraneous issues.

First, Justice John Segal explored the disparate (and, presumably, gender-biased) manner through which Occidental handled the case. Two heavily intoxicated students had sex. But only one—the male—was punished. Either both should have been, or neither.

Occidental’s lawyer attempted to parry by blaming Doe for not filing a complaint himself, but Segal seemed unpersuaded.

Then, at the tail end of the oral argument, Justice Dennis Perluss raised an intriguing question about Occidental’s odd definition of sexual assault, which, as written, prohibited both sexual contact without “effective consent,” but also while incapacitated. Perluss seemed puzzled by the superfluous language.

Either of these questions, in theory, could form the basis for a win for Doe. Justice Segal’s questions pointed to the gender-biased assumptions behind Occidental’s adjudication of the case. Justice Perluss’ question opened up the possibility that the Court could consider the fairness of Occidental’s illogical definition—which, in this case, provided an opening for the school to say that someone who had consented nonetheless was a victim of sexual assault.

The resulting decision will be of unusual importance. Of the more than 500 lawsuits since the Dear Colleague letter, only the Amherst accused student had clearer evidence that the accuser had actually consented. If the Court says that Occidental had “substantial evidence” for its finding in this case, the standard would basically translate into a rubber stamp.

The audio of the entire oral argument is here.