Earlier this week, a three-judge California appellate panel heard an appeal filed by former USC kicker Matthew Boermeester—at the center of one of the most troubling cases of university procedural unfairness in the post-Dear Colleague letter era. It appears as if the appeals court will side with Boermeester, though all three justices promised openness to USC’s arguments.
The specifics of the Boermeester case are, by this point, well-known. A report reached the university—third-hand—alleging intimate partner violence by Boermeester against his girlfriend, Zoe Katz. Katz was required by the Title IX office to speak to a USC Title IX investigator—and subsequently claimed, in multiple sworn affidavits, that USC misrepresented what she said in the interview. USC immediately suspended Boermeester, and ultimately found him guilty of an offense in which the “victim” said nothing untoward happened. He received no hearing, with no right to cross-examine either the third-hand witnesses the university had or to present his own witnesses. Nor did USC give him any chance to explain during its “investigation” what the university now sees as the key evidence in the case (a grainy security video of the incident).
The process was so unfair that Secretary Betsy DeVos highlighted it in her speech announcing the rescission of the Obama-era Title IX guidance. Terming USC’s treatment of Boermeester “disturbing,” the Secretary described “the story of an athlete, his girlfriend and the failed system. The couple was described as ‘playfully roughhousing,’ but a witness thought otherwise and the incident was reported to the university’s Title IX coordinator. The young woman repeatedly assured campus officials she had not been abused nor had any misconduct occurred. But because of the failed system, university administrators told her they knew better. They dismissed the young man, her boyfriend, from the football team and expelled him from school.”
DeVos concluded her recap of the case by quoting Katz: “’When I told the truth,’ the young woman said, ‘I was stereotyped and was told I must be a ‘battered’ woman, and that made me feel demeaned and absurdly profiled.’”
Boermeester sued USC in state court in 2017 (he also has filed a federal lawsuit, which currently is stayed), but drew a superior court judge, Amy Hogue, who has consistently sided with universities in accused student lawsuits. As he appealed, however, the law in California started to change. Several decisions from the California Court of Appeals, including two involving USC, made clear that an accused student needed to have some form of cross-examination, and cast doubt on the single investigator model that USC used. USC was even more vulnerable to these rulings in the Boermeester case because the single investigator was, in effect, the judge, jury, and police in a complaint filed by the institution that paid her check.
The appeal went before a three-justice panel of Tricia Bigelow, Maria Stratton, and John Wiley. As the hearing commenced, the judges put on record that they had issued a tentative ruling (which would the subject of the oral argument) indicating an intent to side with Boermeester. The tentative ruling suggested an agreement “with recent authorities that in a case such as this one, where a student faces a potentially severe sanction from a student disciplinary proceeding and the university’s decision depends on witness credibility, the accused student must be afforded an in person hearing in which he may cross-examine critical witnesses, directly or indirectly, to allow the adjudicator the ability to observe witness demeanor to decide credibility.” USC’s briefing had challenged the wave of recent precedents by suggesting that the case wasn’t about credibility, since the video was sufficient to confirm Boermeester’s guilt. But to the justices, “The surveillance video by itself is not conclusive. The picture is grainy and there is no audio.”
Representing USC, Julie Arias-Young opened her argument by claiming that the panel’s tentative ruling expanded the rights of students accused of Title IX offenses. Justice Bigelow, by far the most active of the panel members, seemed skeptical. She conceded that USC was in a “pickle” because of the wave of 2018 and 2019 decisions in favor of accused students (rulings that occurred after USC elected to deny Boemeester a hearing or any opportunity to confront his accusers). But, the justice noted, that’s the way the “cookie crumbles.”
USC offered two core arguments to try to persuade the panel to reverse its tentative ruling. First, Arias-Young claimed that the five pro-due process California appeals court decisions applied only to students accused of sexual misconduct, not intimate partner violence. No one in the panel seemed particularly persuaded by the first line of argument, although a bit later in the hearing, the justices toyed with limiting principles (which nonetheless would reverse USC’s discipline against Boermeester) in a potential ruling.
Second, Arias-Young suggested that credibility wasn’t key to the case—and, indeed, generally was not a key issues in allegations of intimate partner violence, period. Justice Bigelow seemed dubious.
The bulk of the oral argument revolved around the video, and USC’s claim that this piece of evidence justified the university’s decision to deny Boermeester a meaningful opportunity to defend himself. But the justices also had watched the video, and Justice Stratton remarked that she couldn’t deem the video decisive.
Arias-Young’s desperation to suggest that this case—where the alleged victim, it’s worth recalling, said under oath that nothing untoward happened, and that USC officials misrepresented what she told them—brought her very close to suggesting that because the “grainy” (Arias-Young’s word) video appeared to show Boemeester touching Katz’s neck, that fact and that fact alone was enough to expel him, regardless of his intent. All three justices seemed extremely skeptical of this line of argument—as, eventually, did Arias-Young, when she tried to parry hypotheticals offered by the panel by saying that they differed from the “facts of this case.”
Eventually, Arias-Young’s assertions that the university didn’t need to consider the context as long as it had a video collapsed under its own weight. Justice Bigelow asked if—as seemed to be the logical application of her argument—anytime one USC student placed his hand on another student’s neck in what might (or might not) have been a forceful manner, he’d have to be expelled. Arias-Young’s response? “I guess it would depend on what it is.” But she had spent the previous five minutes arguing exactly the opposite—that the context in such cases didn’t matter, and therefore Boermeester didn’t deserve hearing.
Arias-Young’s time at the podium concluded with a complement from Bigelow—the USC lawyer had argued a good case, but the university was in a tough position given the recognition by five state appellate courts as to what the law required when adjudicating Title IX allegations. As a result, Bigelow predicted, USC was “probably” going to lose.
That sense was reaffirmed when Boermeester’s lawyer, Mark Hathaway, had five minutes in rebuttal—and didn’t receive one question from the panel. (Hathaway had opened the oral argument by urging the court to heighten the rights of accused students facing indefinite interim suspensions, but the panel didn’t seem terribly interested in doing so.)
If the panel follows through with its tentative opinion—as, based on the oral argument, all three justices appeared inclined to do—this would be a major victory, both because of the high-profile coverage the expulsion received and because USC’s procedures are particularly egregious in this area. The decision, though, would only reverse Boermeester’s discipline. The court can’t negate the rumors and stigma that affected his reputation, or restore his senior season of eligibility, or his chance at playing in the NFL.
As Justice Bigelow stated at the hearing, Boermeester had “a bright future.” In this respect, Boermeester’s ongoing battle provides a reminder of the enduring effect that unfair Title IX tribunals can have on accused students.