Cal Poly must overturn the expulsion of a student accused of a March 2016 sexual assault and allow that student to graduate, a Los Angeles County Superior Court Judge ordered July 12.
Judge James C. Chalfant’s decision comes after a two-year battle between the accused student, named in the complaint under the alias John Doe, Cal Poly and the California State University system, both of which Doe accused of depriving him of his due process rights.
According to his attorney Mark Hathaway, Doe was “a graduating senior with two credits left to complete his bachelor’s degree when (CSU) Chancellor (Timothy) White and the university ordered him expelled.”
Hathaway, a partner with the Los Angeles-based firm Werkman Jackson Hathaway & Quinn, “has assisted dozens of students and faculty in Title IX sexual misconduct investigations,” according to his profile on the firm’s website.
The decision comes as Cal Poly and the CSU’s Title IX office falls under continued criticism for its lack of transparency and sexual assault investigation process. Many of those protesting have been sexual assault survivors or victim advocates.
Though false sexual assault reports are rare — the National Sexual Violence Resource Center estimates between 2 and 10 percent — Doe’s case and the judge’s ruling raises new concern in Cal Poly’s Title IX sexual assault investigation process when it comes to rights of the accused.
Allegations of assault
The incident occurred March 5, 2016, at a party taking place at the Delta Chi fraternity house, 1236 Monte Vista Pl.
The alleged assailant was a member of the fraternity, while the alleged victim — named in the complaint under the alias Jane Roe — was one of an estimated 300 guests at the party.
Doe and Roe allegedly “danced together and kissed while dancing” before Roe asked to use the bathroom, according to a case summary filed by Hathaway. Doe allegedly took Roe to the bedroom of a fellow fraternity member and allowed her to use the attached bathroom.
What happened next is unclear.
Hathaway’s summary alleged that “after Roe exited the restroom, she and Doe continued kissing in (the bedroom).”
A fellow fraternity member allegedly witnessed Doe and Roe in his room and reported that the interaction “appeared consensual” but that after he walked in Roe “became flustered, grabbed her belongings and insisted on leaving,” according to Hathaway’s summary.
The alleged victim did not make a police report, and the incident allegedly was reported by her roommate to a resident assistant in their dorm on March 6, 2016.
The RA spoke with Roe, who repeated her story and showed the RA a text message she sent her roommate. The RA then informed then-Coordinator of Student Development Jillian Rounds, with Roe’s consent.
“Roe declined to provide Doe’s name but instead asked if the fraternity could be put on notice of the incident,” according to Hathaway’s case summary.
On March 7, Assistant Dean of Students Stephanie Jarrett and Assistant Vice Provost Tera Bisbee began an investigation into the alleged assault. The university also issued an emergency alert about the incident.
After contacting Roe a number of times, she declined to participate in the process or further discuss the incident.
Bisbee allegedly told Roe “that the campus would nonetheless conduct a confidential investigation of the incident,” according to Hathaway’s report.
Investigators interviewed 10 witnesses, including Doe. Only Doe and a fellow Delta Chi fraternity member provided eye-witness accounts of the alleged incident.
The investigation concluded July 27, 2016, with Jarrett and Bisbee concluding that Doe’s account of what happened “was undermined by the fact that he could not furnish a credible motive why Roe would completely fabricate a story,” and that Doe “had a powerful motive to cast doubt on a version of events framing him as the responsible party.”
They ruled Roe “was probably telling the truth” because of how quickly the report was made, because of her split lip — allegedly inflicted by Doe — “corroborated her story” and because her roommate “confirmed Roe’s condition.”
A day later, Title IX Coordinator Brian Gnandt issued a report detailing the investigation findings. On Aug. 8, 2016, Doe appealed. White’s office referred the appeal to special consultant Marcie Gardner. On Sept. 20, 2016, Gardner rejected the appeal.
Cal Poly Associate Dean Joy Pederson presided over a Nov. 29, 2016, sanction hearing, during which Doe submitted a written statement denying the allegations “and outlining the unfairness in (Cal Poly’s) Title IX investigation process.”
On Dec. 9, 2016, Pederson submitted her decision to expel Doe, which was reviewed and upheld by Keith Humphrey, Cal Poly vice president of student affairs.
Again Doe appealed to the chancellor’s office; on Jan. 18, 2017, that appeal was denied.
As Doe took the CSU and Cal Poly to court, he alleged that, in addition to a lack of evidence, university investigators failed to properly inform him of the allegations and evidence against him, preventing him from being able to respond.
Doe also argued the university denied him the opportunity to question key witnesses, including the alleged victim. Finally, he argued investigators were biased against him, alleging they “rolled their eyes when he denied the allegations.”
The judge agreed that investigators failed to provide Doe “the specific rules that Doe was alleged to have violated” and “failed to disclose all evidence on which (they) relied for (their) finding of guilt.”
Further, the judge ruled that it was Cal Poly’s responsibility “to enable Doe to question these witnesses directly or indirectly in this credibility case where Roe was unwilling to participate.”
The judge also found that Cal Poly’s findings against Doe were “not supported by substantial evidence.”
However, the judge found Doe’s argument of a biased investigation to be unpersuasive.
As a result of the judge’s findings, Doe will be reinstated and allowed to graduate, Cal Poly spokeswoman Cynthia Lambert said.
“The university stands by its finding that Doe more likely than not engaged in misconduct; however, the court disagreed, and we respect the court’s decision,” she said.
Lambert said Cal Poly has a legal obligation, under state and federal law, “to investigate reports of sexual misconduct and violence even when the complainant is unwilling to participate.”
She said confidentiality laws prevented her from discussing whether any disciplinary or corrective action was taken toward any of the university personnel named in the report.
This article has been updated to reflect that Cynthia Lambert was speaking on behalf of both Cal Poly and the CSU Chancellor’s Office. An earlier version misstated Brian Gnandt’s role in the initial investigation.