*** Victory! Update!*** On July 31, 2023, the Supreme Court of California held that in disciplinary proceedings, private universities are not required to provide respondents with the opportunity to directly or indirectly cross-examine complainants and other witnesses at a live hearing with the respondent in attendance, either in person or virtually.
On July 2, 2021, NWLC joined an amicus brief, led by the California Women’s Law Center and Equal Rights Advocates and three student survivors of gender-based violence, to the Supreme Court of California in support of the University of Southern California in Boermeester v. USC. The case was brought by a Title IX respondent whom USC had investigated and ultimately expelled for engaging in dating violence. Although the respondent admitted to the violence and declined to cross-examine his victim during USC’s investigation, a state appellate court reversed the expulsion, holding that USC was required to provide all respondents in dating violence investigations with live cross-examination of witnesses. The amicus brief explains that over the past few years, California courts have created an inequitable two-track system that requires public and private universities to provide an opportunity for live cross-examination of witnesses only in investigations of gender-based violence and not of other incidents, such as physical violence between friends. This requirement is a form of sex discrimination and rooted in harmful and false stereotypes concerning survivors of gender-based violence, particularly women and girls. The brief also cites empirical research, survivor testimony, and alternative investigation models to explain that live cross-examination is both retraumatizing to survivors (at times, more traumatizing than the underlying assault) and unnecessary to determining truth and credibility in school disciplinary proceedings.