Due Process Lawsuit Against UC-Berkeley by Student Accused of Rape With No Hard Evidence

1 TABLE OF CONTENTS
2 TABLE OF CONTENTS ...............................................................................................ii

3 TABLE OF AUTHORITIES.........................................................................................iv
4
INTRODUCTION .......................................................................................................... 1
5
THE PARTIES ............................................................................................................... 1
6
JURISDICTION AND VENUE ..................................................................................... 2
7
THE REGULATORY AND LEGAL FRAMEWORK ................................................. 3
8
9 INTRODUCTION. .............................................................................................. 3
10 A. Title IX. .................................................................................................... 4
11
B. Violence Against Women Reauthorization Act. ...................................... 6
12
C. California Law Regarding Student Discipline. ........................................ 7
13
1. Access to Evidence ........................................................................ 8
14
15 2. In a lawsuit the first to speak seems right, until
someone comes forward and cross-examines.
16 Proverbs 18:17 (NIV).................................................................... 9
17 3. Right to Impartial Adjudicators .................................................. 10
18 D. Californias Affirmative Consent Law. .............................................. 10
19
E. Internal and External Pressure on Colleges and Universities. ............... 10
20
F. The Stanford Swimmer Case. ................................................................ 13
21
22 G. Wrongful Accusations Not Uncommon. ................................................ 13
23 H. Campus Sex Police and Corrupt Outcomes. .......................................... 14

24
PROCEDURAL BACKGROUND ................................................................... 15
25
A. Summary of UC Berkeley Title IX Investigation and Adjudication
26
Policies. .................................................................................................. 15
27
B. UC Berkeley Title IX Sexual Misconduct Investigation Process. ......... 17
28
1. Stage One: Investigation. ............................................................ 19
AMENDED PETITION FOR WRIT OF MANDAMUS
ii
2. Stage Two: Findings and Sanctions. ........................................... 20
1
2 3. Stage Three: Appeal. ................................................................... 20
3 FACTUAL BACKGROUND ........................................................................... 21

4
A. Jane Roes Birthday and the Sexual Activity......................................... 21
5
B. Jane Roes Report to UC Berkeley. ....................................................... 23
6
7 1. Stage One: The Title IX Investigation. ........................................ 24
8 2. Stage Two: Finding and Sanctions ............................................. 26
9 3. Stage Three: The Appeal. ............................................................ 27

10
RESPONDENTS ACTIONS AND DECISION ARE INVALID ................... 29
11
A. Doctrine Of Judicial Non-Intervention Does Not Apply. ...................... 30
12
13 B. Respondents Administrative Action Affects Vested Fundamental
Rights. .................................................................................................... 30
14
C. Cumulative Impact of Unfairness. ......................................................... 31
15
16 D. Respondents Title IX Sexual Misconduct Process is Permeated with
Structural Error. ...................................................................................... 32
17
PRAYER FOR RELIEF ............................................................................................... 33
18
VERIFICATION .......................................................................................................... 35
19
20
21
22
23
24
25
26
27
28

iii
1 TABLE OF AUTHORITIES
2 Cases
3 Al Haramain Islamic Foundation, Inc. v. U.S. Dept. of Treasury (9th Cir.
2012) 686 F.3d 965.................................................................................................... 32
4
Applebaum v. Board of Dirs. of Barton Mem. Hosp. (1980) 104 Cal.App.3d
5 648 ............................................................................................................................... 8
6 Banks v. Dominican College (1995) 35 Cal.App.4th 1545 .......................................... 30
7
Bixby v. Pierno (1971) 4 Cal.3d 130 .................................................................. 8, 30, 31
8
Doe v. Bolton (1973) 410 U.S. 179 ................................................................................ 2
9
Doe v. Brandeis Univ. (D. Mass. 2016) 2016 WL 1274533 .......................................... 8
10
Doe v. City of Los Angeles (2007) 42 Cal.4th 531 ......................................................... 2
11
Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055 ........................ 9
12
13 Doe v. University of Southern California (2016) 246 Cal.App.4th 221 .................... 8, 9
14 Goldberg v. Regents of University of California (1967) 248 Cal.App.2d 867 .... 8, 9, 31

15 Greenhill v. Bailey (8th Cir. 1975) 519 F.2d 5............................................................. 31
16 In Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d
1058 ............................................................................................................................. 2
17
18 JKH Enters., Inc. v. Dept of Indus. Rels. (2006) 142 Cal.App.4th 1046 .................... 31
19 Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70 .............................................. 2
20 Johnson v. Superior Court (2008) 80 Cal.App.4th 1050 ............................................... 2

21 Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627......................... 8
22 Paulsen v. Golden Gate University (1979) 25 Cal.3d 803 ........................................... 30
23 People v. Anzalone (2013) 56 Cal.4th 545 ................................................................... 32
24
People v. Gamache (2010) 48 Cal.4th 347 .................................................................. 32
25
Poe v. Ullman (1961) 367 U.S. 497 ............................................................................... 2
26
Roe v. Wade (1973) 410 U.S. 113 .................................................................................. 2
27
Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208 .............................................. 30
28
Starbucks Corp. v. Superior Court (2008) 68 Cal.App.4th 1436................................... 2
iv
United States v. Recio (9th Cir. 2004) 371 F.3d 1093 ................................................. 32
1
2 Statutes
3 20 U.S.C. 1092 ............................................................................................................ 7
4 20 U.S.C. 1681-1688 ................................................................................................. 4
5 5 U.S.C. 556(d) ............................................................................................................ 6

6 Cal. Const., art. VI, 10 ................................................................................................. 2
7 Code Civ. Proc. 1021.5 ............................................................................................. 33
8 Code Civ. Proc. 1084................................................................................................... 2
9
Code Civ. Proc. 1085......................................................................................... 1, 2, 29
10
Code Civ. Proc. 1094.5 ......................................................................................passim
11
Code Civ. Proc. 395..................................................................................................... 3
12
Educ. Code 67386 ..................................................................................................... 10
13
14 Gov. Code 800 ........................................................................................................... 33
15 Regulations
16 34 C.F.R. 106.71.......................................................................................................... 6
17 34 C.F.R. 668.46.......................................................................................................... 7
18
19
20
21
22
23
24
25
26
27
28

v
1 INTRODUCTION
2 Petitioner JOHN DOE is a first-year student at University of California, Berkeley
3 (hereinafter UC Berkeley) and was improperly disciplined, including suspension for
4 three years and deprivation of access to his educational programs and activities,
5 stemming from a Title IX sexual misconduct disciplinary process that is unfair, lacks due
6 process, does not comply with the law or university policy, and where the charges are not
7 supported by the evidence. John Doe petitions for writ of mandate under Code Civ.
8 Proc. 1094.5, or in the alternative under Code Civ. Proc. 1085, directed to
9 Respondents in order to redress the improper administration action, and by this Petition,
10 Petitioner further alleges as follows:
11
12 THE PARTIES
13 1. Petitioner JOHN DOE was, at all times relevant, an undergraduate student at the UC
14 Berkeley.
15 2. Respondent NICHOLAS B. DIRKS, as the Chancellor of UC Berkeley, is delegated
16 final authority by the Regents of the University of California for the administration of student
17 discipline at UC Berkeley, including the investigation and adjudication of Title IX sexual
18 misconduct matters, and the administration of the UC Berkeleys compliance with Title IX.
19 3. Respondent REGENTS OF THE UNIVERSITY OF CALIFORNIA (hereinafter
20 University of California or UC Regents), is the official name of the public corporation that
21 governs and operates the University of California as a public trust through its 26-member board
22 of Regents. UC Berkeley is one of the 10 campuses of the University of California system and is
23 located in Berkeley California, just east of San Francisco.
24 4. Petitioner is ignorant of the true names and capacities of the Respondents named herein
25 as DOES 1 to 20 inclusive, and therefore names these Respondents by such fictitious names and
26 will amend when ascertained.
27 5. Non-party JANE ROE at all times relevant was an undergraduate student at the
28 University of California, Berkeley and is the complainant in the underlying Title IX sexual

1
1 misconduct investigation process conducted by respondents Nicholas B. Dirks and the UC
2 Regents.
3 6. Petitioner uses the pseudonyms of John Doe and Jane Roe in his Petition in order
4 to preserve privacy in a matter of sensitive and highly personal nature, which outweighs the
5 publics interest in knowing the parties identities. Use of the pseudonyms does not prejudice
6 Respondents because the identities of Petitioner and the Reporting Party are known to
7 Respondents. (See, Starbucks Corp. v. Superior Court (2008) 68 Cal.App.4th 1436 [The
8 judicial use of Doe plaintiffs to protect legitimate privacy rights has gained wide currency,
9 particularly given the rapidity and ubiquity of disclosures over the World Wide Web]; see also
10 Doe v. City of Los Angeles (2007) 42 Cal.4th 531; Johnson v. Superior Court (2008) 80
11 Cal.App.4th 1050; Roe v. Wade (1973) 410 U.S. 113; Doe v. Bolton (1973) 410 U.S. 179; Poe v.
12 Ullman (1961) 367 U.S. 497; In Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214
13 F.3d 1058.)
14
15 JURISDICTION AND VENUE
16 7. The Supreme Court, courts of appeal, superior courts, and their judges have original
17 jurisdiction in proceedings for extraordinary relief in the nature of mandamus directed to any
18 inferior tribunal, corporation, board, or person. (Cal. Const., art. VI, 10; see Code Civ. Proc.
19 1084 [mandamus synonymous with mandate]; Code Civ. Proc. 1085.)
20 8. Petitioner, an aggrieved university student, seeks by this Petition to exhaust judicial
21 remedies through this petition for writ of mandate following the private Universitys appeal
22 process, which is now final.
23 9. The doctrine of exhaustion of judicial remedies precludes an action that challenges the
24 result of a quasi-judicial proceeding unless the plaintiff first challenges the decision though a
25 petition for writ of mandamus. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.)
26 Administrative mandamus is available for review of any final administrative order or decision
27 made as the result of a proceeding in which by law a hearing is required to be given, evidence
28 required to be taken, and discretion in the determination of facts is vested in the inferior tribunal,

2
1 corporation, board, or officer . . . (Code Civ. Proc. 1094.5, subd. (a).)
2 10. The Superior Court for Alameda County, the county where the Respondents are located
3 or employed, is the proper court for the hearing of this action. (Code Civ. Proc. 395.)
4
5 THE REGULATORY AND LEGAL FRAMEWORK
6 INTRODUCTION.
7 11. This case arises amidst the national controversy stemming from the U.S. Department of
8 Educations little-known Office for Civil Rights (OCR) 1 threatening to withhold federal
9 dollars in order to impose its guidance on colleges and universities as to how to investigate and
10 adjudicate allegations of sexual misconduct 2 in order to stem a purported tide of sexual violence
11 on American college campuses. 3 OCRs efforts affect the rights of some 20.6 million
12 undergraduate and graduate students in the United States as well as the distribution of more than
13 $137 billion in federal education funds each year. 4 OCRs threats to withhold funds puts
14 immediate and tremendous pressure upon universities, such as UC Berkeley to (a) aggressively
15 prosecute males accused of sexual misconduct; (b) severely discipline male students alleged to
16
17 1
The Office for Civil Rights (OCR) is a sub-agency of the U.S. Department of Education and
enforces several Federal civil rights laws, including Title IX. On April 4, 2011, the Office for
18
Civil Rights issued a Dear Colleague Letter and in April 29, 2014, Questions and Answers on
19 Title IX and Sexual Violence. The U.S. Dept. of Education has determined to be significant
guidance document under the Office of Management and Budget's Final Bulletin for Agency
20 Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007).
2
21 See, David G. Savage and Timothy M. Phelps, How a Little-known Education Office Has
Forced Far-reaching Changes to Campus Sex Assault Investigations, (August 17, 2015) Los
22 Angeles Times.
3
This is an issue of political correctness run amok, according to Alan M. Dershowitz,
23 emeritus Harvard Law professor who was among twenty-eight Harvard Law School faculty
24 members asserting that new rules violate the due process rights of the accused. (See, Rethink
Harvards Sexual Harassment Policy (Oct. 15, 2014), The Boston Globe.) As teachers
25 responsible for educating our students about due process of law, the substantive law governing
discrimination and violence, appropriate administrative decision-making, and the rule of law
26 generally, we find the new sexual harassment policy inconsistent with many of the most basic
27 principles we teach. Id. See also, Richard Dorment, Occidental Justice, (April 2015) Esquire;
Teresa Watanabe, More College Men Are Fighting Back Against Sexual Misconduct Cases (June
28 7, 2014) Los Angeles Times.
4
Source: https://studentaid.ed.gov/sa/about/data-center/student/title-iv.
3
1 have engaged in sexual misconduct regardless of their innocence, 5 and (c) equate
2 victim/complainants in sexual misconduct proceedings as being female survivors who must
3 receive preferential treatment. 6
4 12. As discussed below, OCRs efforts to enforce Title IX compliance applies to all public
5 and private educational institutions that receive federal funds, including UC Berkeley.
6 A. Title IX.
7 13. The issue of sexual assaults on college and university campuses is, at the federal level,
8 primarily addressed by an act of Congress known as Title IX of the Education Amendments of
9 1972, 20 U.S.C. 1681-1688. From Title IXs enactment in 1972 until 1997, the Department
10 of Education never asserted jurisdiction over student-on-student rape or sexual assault. In 1997,
11 however, the Department issued regulations that required schools to have policies and
12 procedures in place to deal with such conduct. 7
13 14. Title IX requires every college and university that receives federal funds to establish
14 policies and procedures to address sexual assault, including a system to investigate and
15 adjudicate charges of sexual assault by one student against another. A school violates a student's
16 rights under Title IX regarding student-on-student sexual violence if: (1) the alleged conduct is
17 sufficiently serious to limit or deny a student's ability to participate in or benefit from the
18 school's educational programs; 8 and (2) the school, upon notice, fails to take prompt and
19 effective steps reasonably calculated to end the sexual violence, eliminate the hostile
20 environment, prevent its recurrence, and, as appropriate, remedy its effects. 9 The fundamental
21
22
5
A 2015 study examined why a high percentage of sexual assault allegations are falseand
23 the rationale behind many of these false allegations as being retribution for a real or perceived
24 wrong, rejection or betrayal. Reggie D. Yager, Whats Missing From Sexual Assault Prevention
and Response, (April 22, 2015), pgs.46-62 http: ssrn.com/abstract=2697788).
6
25 http://survivorsupport.berkeley.edu/.
7
See generally Stephen Henrick, A Hostile Environment for Student Defendants: Title IX and
26 Sexual Assault on College Campuses, 40 N. Ky. L. Rev. 49, 56-59 (2013).
8
27 OCR requires that the conduct be evaluated from the perspective of a reasonable person in
the alleged victim's position, considering all the circumstances. (AR0039.)
28 9
April 2014 Questions and Answers on Title IX and Sexual Violence at A-2. (Questions
and Answers.) (AR0075.)
4
1 principle of such a system is that it be prompt and equitable. 10 OCR, which is in charge of the
2 administrative enforcement of Title IX, has expanded on this basic mandate through (a)
3 regulations promulgated through notice-and-comment rule making 11 that have the force and
4 effect of law; 12 and (b) significant guidance documents like its April 2011 Dear Colleague
5 Letter, 13 and its April 2014 Questions and Answers on Title IX and Sexual Violence. A
6 schools procedures must, at a minimum, (1) ensure the Title IX rights of the complainant, but
7 accord due process to both parties involved, 14 a requirement applicable to both state and
8 private schools; 15 (2) provide an adequate, reliable, and impartial investigation; 16 (3) provide
9 the complainant and the accused student an equal opportunity to present relevant witnesses and
10 other evidence; 17 (4) ensure that the factfinder and decision maker . . . have adequate training
11 or knowledge regarding sexual violence 18; and (5) require documentation of all proceedings,
12 which may include written findings of fact, transcripts, or audio recordings. 19
13 15. When OCR set forth guidance that in order for a school's grievance procedures to be
14 consistent with Title IX standards, the school must use a preponderance of the evidence standard.
15
10
16 34 C.F.R. 106.8 (b).
11
OCR, Revised Sexual Harassment Guidance: Harassment of Students by School
17 Employees, Other Students, or Third Parties Title IX (2001) at 36 n.98 (notice of publication at
66 Fed. Reg. 5512 (January 19, 2001) (2001 Guidance)
18
(http://www.ed.gov/ocr/docs/shguide.html)
12
19 Chrysler Corp. v. Brown (1979) 441 U.S. 281, 295, 301-02 (regulations promulgated
pursuant to notice-and-comment rulemaking that affect individual rights and obligations have
20 the force and effect of law). The same is true for the 2001 Guidance, an interpretation of the
21 regulations that was published in the Federal Register and was subject to public comment. 2001
Guidance at ii. As such, it is entitled to deference under the doctrine articulated in Chevron,
22 U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837, 842-43.
13
Available at http://www2.ed.gov/about/offices/list/ocr/letters/colleagues-201104.pdf. See
23 Bleiler v. College of the Holy Cross, 2013 WL 4717340, at *3, 5 (D. Mass. 2013) (holding that
24 the Dear Colleague Letter, as a guidance document, does not have independent force of law but
informs this Courts evaluation of whether the Colleges procedures were equitable).
14
25 2001 Guidance at p. 22. (AR0031.)
15
E.g., OCR Ruling re Complaint #04-03-204 (Christian Brothers Univ.) (Mar. 26, 2004) at 7
26 (due process protections [are] inherent in the Title IX regulatory requirements).
16
27 2001 Guidance at p. 20. (AR0029.)
17
Id.; Dear Colleague Letter at p. 11. (AR0059.)
28 18
Id.; 2001 Guidance at p. 21. (AR0030.)
19
Dear Colleague Letter at p. 12.
5
1 . . OCR also advised that Title IX has incorporated and adopted the procedural provisions
2 applicable to Title VI of the Civil Rights Act of 1964. (See 34 C.F.R. 106.71) The Title IX
3 regulations, therefore, require that decisions be supported by and in accordance with the
4 reliable, probative and substantial evidence. See 5 U.S.C. 556(d). 5 U.S.C. 556(d) also
5 provides in relevant part:
6 . . . A party is entitled to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct
7 such cross-examination as may be required for a full and true
disclosure of the facts. . .
8
16. Title IXs regulations require a school receiving federal funds to designate an employee
9
to coordinate the schools compliance with Title IX. 20 OCR is in charge of the administrative
10
enforcement of Title IX and has identified the primary responsibilities of the Title IX
11
coordinator: (a) overseeing all Title IX complaints; (b) identifying and addressing any
12
patterns or systemic problems that arise during the review of such complaints; (c) meet[ing]
13
with students as needed, either directly or through a designee; and (d) provid[ing] assistance to
14
school law enforcement unit employees regarding how to respond appropriately to reports of
15
sexual violence. 21
16
17. OCR has emphasized that the Title IX Coordinator must be independent and free of
17
conflicts of interest that may be created by holding another position within the school:
18
[E]mployees whose job responsibilities may conflict with a Title IX coordinators
19
responsibilities include . . . Deans of Students, and any employee who serves on the
20
judicial/hearing board or to whom an appeal might be made. 22
21
18. As a practical matter, therefore, a college student who claims to be the victim of a
22
sexual assault by a fellow student has three options: (1) go to the local police/prosecutor; (2) use
23
the colleges sexual assault disciplinary process; or (3) pursue both. 23
24
25 B. Violence Against Women Reauthorization Act.
26
20
27 34 C.F.R. 106.8 subdivision (a).
21
Dear Colleague Letter at p. 7. (AR0055.)
28 22
Questions and Answers at C-4. (AR0085-086.)
23
See 20 U.S.C. 1092 subdivision (f)(8)(B)(iii)(III) (listing options).
6
1 19. The Violence Against Women Reauthorization Act of 2013 amended, among other
2 provisions, 485 subdivision (f) of the Clery Act, 20 U.S.C. 1092 subdivision (f). The
3 amendments to 1092 subdivision (f) added new procedural protections for campus sexual
4 assault proceedings and strengthened other existing protections, including:
5 . . . requiring a prompt, fair, and impartial investigation and
resolution;
6
. . . requiring that campus sexual assault proceedings be conducted
7 by officials who receive annual training on the issues related to
8 domestic violence, dating violence, sexual assault, stalking and how
to conduct an investigation and hearing process that protects the
9 safety of victims and promotes accountability;
10 guaranteeing that the accuser and the accused are entitled to have
others present during an institutional disciplinary proceeding,
11 including the opportunity to be accompanied to any related
meeting or proceeding by an advisor of their choice. 24
12
20. The regulations issued by the Department of Education under the statute, which have
13
the force and effect of law, 25 make clear that an advisor of their choice includes the right to
14
have an attorney act as the advisor. 26
15
21. In addition to Title IX and other relevant federal law, a state may have laws that govern
16
campus sexual assault disciplinary proceedings, as California does.
17
C. California Law Regarding Student Discipline.
18
22. Californias procedural and substantive standards for student disciplinary proceedings
19
begin with Code Civ. Proc. 1094.5 subdivisions (b) and (c), which require that (1) there be a
20
21
22
24
20 U.S.C. 1092 subdivision (f)(8)(B)(iv)(I)-(II) (emphasis added).
23 25
The regulations, 34 C.F.R. 668.46, were promulgated pursuant to notice-and-comment
24 rulemaking. See 79 Fed. Reg. 35417 (June 20, 2014); 79 Fed. Reg. 62752 (October 20, 2014).
26
See 34 C.F.R. 668.46 subdivision (k)(2)(iv) (a school may [n]ot limit the choice of
25 advisor . . . for either the accuser or the accused in any meeting or institutional disciplinary
proceeding); 79 Fed. Reg. 62774 (the statutory amendment clearly and unambiguously
26 supports the right of the accused and the accuser to be accompanied to any meeting or
27 proceeding by an advisor of their choice, which includes an attorney). Although a school may
not prohibit attorneys from acting as advisors, it may establish restrictions regarding the extent
28 to which the advisor may participate in the proceedings, as long as the restrictions apply equally
to both parties . . . 34 C.F.R. 668.46 subdivision (k)(2)(iv).
7
1 fair trial, which means that there must have been a fair administrative hearing 27; (2) the
2 proceeding be conducted in the manner required by law; (3) the decision be supported by the
3 findings; and (4) the findings be supported by the weight of the evidence, or where an
4 administrative action does not affect vested fundamental rights, the findings must be supported
5 by substantial evidence in the light of the whole record. 28 In addition, a reviewing court does
6 not blindly seize any evidence in support of the respondent in order to affirm the judgment. . . .
7 It must be reasonable, . . . credible, and of solid value. (Kuhn v. Department of General
8 Services (1994) 22 Cal.App.4th 1627, 1633.) The ultimate determination is whether a
9 reasonable trier of fact could have found for the respondent based on the whole record. (Id.)
10 23. Moreover, the fair hearing requirements of Code Civ. Proc. 1094.5 subdivision (b)
11 can only be satisfied in this context through adherence to principles of procedural due process,
12 which apply directly to public colleges and universities through the Fourteenth Amendment, and
13 to private colleges and universities by analogy. 29 (Doe v. University of Southern California
14 (2016) 246 Cal.App.4th 221.) Of course, [s]pecific requirements for procedural due process
15 vary depending upon the situation under consideration and the interests involved. (Id. at 244
16 [quoting Applebaum v. Board of Dirs. of Barton Mem. Hosp. (1980) 104 Cal.App.3d 648, 657].)
17 24. Due Process requires, inter alia, proper advance notice of the hearing specifying the
18 particular charges and suggesting that [the student] might wish to obtain counsel. (Id. [quoting
19 Goldberg v. Regents of University of California. (1967) 248 Cal.App.2d 867, 872].)
20 1. Access to Evidence
21 25. A fair process also requires the university to present the evidence to the
22 accused student so that the student has a reasonable opportunity to prepare a defense and
23 to respond to the accusation:
24
25
26 27
USC, supra, 246 Cal.App.4th at 239 (citations omitted).
28
27 California has undertaken to protect vested fundamental rights from untoward intrusions
by the massive apparatus of government. (Bixby v. Pierno (1971) 4 Cal.3d 130, 142-143.)
28 29
Courts in other jurisdictions have taken the same approach. (See, e.g., Doe v. Brandeis
Univ. (D. Mass. 2016) 2016 WL 1274533, at *33.)
8
1 . . . USC argues the procedural protections required in Dixon
were in place here because John had access to information
2 submitted by the other witnesses and an opportunity to respond
to that evidencehad he requested it. But requiring John to
3
request access to the evidence against him does not comply
4 with the requirements of a fair hearing. (See, e.g., Goss, supra,
419 U.S. at p. 582.) (Doe v. University of Southern California
5
(2016) 246 Cal. App. 4th 221, 245-246.)
6
7 2. In a lawsuit the first to speak seems right, until someone comes
8 forward and cross-examines. Proverbs 18:17 (NIV)
9 26. As King Solomon in his wisdom recognized three thousand years ago, in matters
10 that turn on credibility of the accuser and the accused, the school must provide for the
11 questioning of the complainant, either directly or indirectly, by the accused student. See,
12 Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1084:
13 . . . in the instant matter, where the Panel's findings are likely
14 to turn on the credibility of the complainant, and respondent
faces very severe consequences if he is found to have violated
15 school rules, we determine that a fair procedure requires a
16 process by which the respondent may question, if even
indirectly, the complainant.
17
We note that John relies on Manufactured Homes
18
Communities, Inc. v. County of San Luis Obispo (2008) 167
19 Cal.App.4th 705 [84 Cal.Rptr.3d 367] and Doe v. Brandeis
University (D.Mass. 2016) 177 F.Supp.3d 561 as authority that
20
he was entitled to directly cross-examine Jane during the
21 hearing. In both of those cases, cross-examination of witnesses
testifying against the party was completely prohibited. That is
22
not the case here where UCSD's policies provided John
23 with a mechanism by which to question Jane. Id. at fn 18.
(emphasis supplied)
24
27. In addition, students are to have ample opportunity to hear and observe the
25
witnesses against them. Doe v. University of Southern California (2016) 246 Cal. App.
26
4th 221, 246, citing Goldberg v. Regents of University of California (1967) 248
27
Cal.App.2d 867, 882.
28

9
1 3. Right to Impartial Adjudicators
2 28. The right to a fair procedure includes the right to impartial adjudicators.
3 (Applebaum v. Board of Directors, supra, 104 Cal.App.3d 648, 658.) Moreover,
4 "[f]airness requires a practical method of testing impartiality." (Hackethal v. California
5 Medical Assn., supra, 138 Cal.App.3d 435, 444.) (Rosenblit v. Superior Court (1991)
6 231 Cal.App.3d 1434, 1448.
7
8 D. Californias Affirmative Consent Law.
9 29. In 2015, the California legislature enacted legislation (effective January 1, 2016) that
10 required each postsecondary educational institution to adopt an affirmative consent standard
11 for sexual activity if the institution desired to remain eligible to receive state funds for student
12 financial assistance. (Cal. Educ. Code 67386(a).) This policy is commonly referred to as
13 yes means yes. 30
14 30. The statute also provides that an accused students belief that the accuser consented to
15 sexual activity will not provide a defense if [t]he accused did not take reasonable steps, in the
16 circumstances known to the accused at the time, to ascertain whether the [accuser] affirmatively
17 consented. Id.(a)(2)(B).
18 E. Internal and External Pressure on Colleges and Universities.

19 31. One federal court recently held that [a]ccused students are entitled to have their cases
20 decided on the merits . . . and not according to the application of unfair generalizations or
21 stereotypes because of social or other pressures to reach a certain result. (Doe v. Brandeis Univ.
22 (D. Mass. 2016) 2016 WL 1274533, at *37.) This recognition of the effect of outside pressures
23 on campus administrators is crucial in order to understand why the regulatory environment often
24 plays a role in campus sexual assault proceedings where the accused student is invariably male.
25 32. The role of OCR is paramount. The April 2011 Dear Colleague Letter contains an
26
27 30
Keven de Len and Hannah-Beth Jackson, Why We Made Yes Means Yes California Law,
28 Washington Post, Oct. 13, 2015, https//www.washingtonpost.com/news/in-
theory/wp/2015/10/13/why-we-made-yes-means-yes-california-law/?utmterm=.0cc0af651234.
10
1 explicit threat to colleges and universities:
2 When a recipient does not come into compliance voluntarily, OCR
may initiate proceedings to withdraw Federal funding by the
3 Department or refer the case to the U.S. Department of Justice for
litigation. Dear Colleague Letter at p. 16.
4
33. This portion of the Dear Colleague Letter has been described as the first warning shot
5
that OCR intended to punish those schools that failed to handle sexual assault proceedings as
6
OCR wanted, and the head of OCR has made clear that she will go to enforcement, and [is]
7
prepared to withhold federal funds. 31
8
34. In January of 2014, the White House put further pressure on colleges and universities to
9
prevent and to police sexual violence on their campuses by creating a task force of senior
10
administration officials, including the U.S. Attorney General and the secretaries of the
11
Departments of Education, Health and Human Services and Interior, to coordinate federal
12
enforcement efforts. 32 According to The Second Report of the White House Task Force to
13
Protect Students from Sexual Assault issued on January 5, 2017, colleges and universities have a
14
responsibility to protect the rights of accused students and provide a balanced and fair process:
15
16 The procedures schools use to resolve complaints of sexual assault must be fair so
that everyone complainants, respondents, and the entire school community is
17 granted their right to nondiscrimination and can have confidence in the resolution.
18 A balanced and fair process that provides the same opportunities for both parties
will lead to sound and reasonable decisions. Schools must strike the correct balance
19 between the rights of the accused and the rights of everyone else on campus,
including the complainant and every other student who might be at risk of harm.
20 Properly designed procedures help ensure that everyones rights are respected.
21 They are important in creating an academic community that respects the well-being
of all students and works for everyone.
22 (Second Task Force Report (January 5, 2017) at p. 16)
23
35. In February 2014, Catherine E. Lhamon, the Assistant Secretary of Education who
24
25
31
NPR, How Sexual Assaults Came to Command New Attention (Aug. 13, 2014),
26 http://www.npr.org/2014/08/12/339822696/how-campus-sexual-assaults-came-to-command-
27 new-attention.
32
Jackie Calmes, Obama Seeks to Raise Awareness of Rape on Campus (January 22, 2014)
28 New York Times; Jason Felch and Larry Gordon, Federal Task Force to Target Campus Sexual
Assaults (January 22, 2014) Los Angeles Times.
11
1 heads the OCR, told college officials attending a conference at the University of Virginia that
2 schools need to make radical change. According to the Chronicle of Higher Education, college
3 presidents suggested afterward that there were crisp marching orders from Washington. 33 The
4 Chronicle of Higher Education noted that Colleges face increasing pressure from survivors and
5 the federal government to improve the campus climate. 34 In the same article, the Chronicle
6 noted that different standards were applied to men and women: Under current interpretations of
7 colleges legal responsibilities, if a female student alleges sexual assault by a male student after
8 heavy drinking, he may be suspended or expelled, even if she appeared to be a willing participant
9 and never said no. That is because in heterosexual cases, colleges typically see the male student
10 as the one physically able to initiate sex, and therefore responsible for gaining the womans
11 consent.
12 36. According to the Chronicle of Higher Education Colleges face increasing pressure
13 from survivors and the federal government to improve the campus climate. 35 The University of
14 Maines dean of students has stated that, in the face of such pressure, [s]ome rush to judgment
15 is inevitable. 36 Institutions fear of an OCR investigation and the loss of funding gives OCR
16 considerable leverage and allows OCR to set standards for sexual assault proceedings on nearly
17 all college campuses.
18 37. There is non-governmental pressure as well. Victims advocacy groups have made far
19 more noise than groups advocating the rights of the accused and have, to date, largely controlled
20 the public debate. Again, there are financial considerations here. If a school is perceived as
21 being on the wrong side of the campus rape culture issuesuch as at Stanford, Occidental, and
22
23 33
Colleges Are Reminded of Federal Eye on Handling of Sexual-Assault Cases, Chronicle of
24 Higher Education, February 11, 2014.
34
Presumed Guilty: College men accused of rape say the scales are tipped against them,
25 Chronicle of Higher Education, September 1, 2014.
35
Chron. of Higher Education, Presumed Guilty: College Men Accused of Rape Say the
26 Scales Are Tipped Against Them (Sept. 1, 2014), http://chronical.com/article/Presumed-
27 Guilty/1489529/.
36
NPR, Some Accused of Sexual Assault on Campus Say System Works Against Them (Sept.
28 3, 2014), http://www.npr.org/2014/09/03/345312997/some-accused-of-campus-assault-say-the-
system-works-against-them.
12
1 the University of Virginiaapplications can be impacted, alumni and donor giving can slow,
2 reputations can experience harm, and the school suffers. The bottom line is that in this highly
3 politically-charged environment, a schools safer course is to find accused students guilty when
4 charged with sexual assault.
5 F. The Stanford Swimmer Case.
6 38. Another event of significance occurred while the University was processing their
7 administrative action against Petitioner: on June 2, 2016, a Santa Clara County Superior Court
8 judge sentenced Brock Turnerthe Stanford swimmerto six months in the county jail after
9 his conviction on three counts of felony sexual assault. There was immediate local 37 and
10 nationwide 38 public criticism of the sentence, and the judge was accused of judicial bias in favor
11 of male and class privilege, leading to campaigns for his recall or resignation. A CNN anchor
12 spent most of an hour reading the statement made by the victim at the sentencing hearing. 39
13
G. Wrongful Accusations Not Uncommon.
14 39. Not surprisingly, cases of wrongful allegations of sexual misconduct have been
15 reported, such as Rolling Stones article on Jackie, an alleged rape victim at the University of
16 Virginia. 40 Also discredited, Columbia University student Emma Sulkowicz, who spent her final
17 year at Columbia toting a mattress to protest the universitys supposed failure to punish her
18 alleged rapist. 41 Ms. Sulkowicz even became something of a spokesperson for rape victims and
19
20 37
E.g., Katy Murphy, Light Sentence in Stanford Sexual Assault Causes Outrage, Mercury
21 News, June 6, 2016, http://www.mercurynews.com/2016/06/06/light-sentence-in-stanford-
sexual-assault-causes-outrage/.
38
22 E.g., Liam Stack, Light Sentence for Brock Turner in Stanford Rape Case Draws Outrage,
N.Y. Times, June 6, 2016, http://www.nytimes.com/2016/06/07/us/outrage-in-stanford-rape-
23 caase-over-dueling-statements-of-victim-and-attackers-father.
39
24 Id.
40
A Rape on Campus by Sabrina Erdely was published in the December 4, 2014 issue of
25 Rolling Stone. The article has since been retracted by the publisher. After other journalists
investigated the articles claims and found significant discrepancies, Rolling Stone issued
26 multiple apologies for the story. Columbia Journalism Review featured the article in The Worst
27 Journalism of 2014.
41
Emma Sulkowicz waited seven months to report her allegations to Columbia University.
28 After investigation by the university and law enforcement, Paul Nungesser, the accused student,
was cleared of the charges. Ms. Sulkowicz tried to get other women to accuse Mr. Nungesser of
13
1 was invited to attend the State of the Union address with Senator Kirsten Gillibrand (D-New
2 York). Then there are the discredited claims of Erica Kinsman and of Kamilah Willingham, who
3 had been featured in the movie, The Hunting Ground. 42 In An Open Letter to Higher
4 Education about Sexual Violence from Brett A. Sokolow, Esq. and The NCHERM Group
5 Partners, dated May 27, 2014, Mr. Sokolow provides examples of sexual misconduct cases
6 where the college or university is holding the male student accountable in spite of the evidence
7 or the lack thereofbecause they think they are supposed to, and that doing so is what OCR
8 wants. 43 Finally, numerous rights organizations have spoken out on the issue, including the
9 Foundation for Individual Freedom in Education, https://www.thefire.org/, the National
10 Coalition For Men Carolinas (NCFMC), http://www.ncfmcarolinas.com/, Stop Abusive and
11 Violent Environments (SAVE) http://www.saveservices.org/, and twenty-eight Harvard Law
12 School faculty members asserting that new rules violate the due process rights of the accused. 44
13
H. Campus Sex Police and Corrupt Outcomes.
14
40. The pressure is so great on colleges and universities that the NCHERM Group has
15
issued their 2017 White Paper, referring to the current state of campus Title IX investigations as
16
17
sexual assault, but Columbia University found him not responsible for those claims as well. On
18
April 23, 2015, Mr. Nungesser sued Columbia University for being complicit in allowing the
19 harassment from his accuser, which significantly damaged, if not effectively destroyed Paul
Nungessers college experience, his reputation, his emotional well-being and his future career
20 prospects. The lawsuit includes dozens of Facebook messages between the two former friends
21 and many declarations of Ms. Sulkowiczs love for Mr. Nungesser before and after the alleged
rape.
42
22 See, Ivan B. K. Levingston, Film The Hunting Ground Misrepresents Harvard Sexual
Assault Statistics (March 26, 2015), The Harvard Crimson; Emily Yoff, How The Hunting
23 Ground Blurs the Truth, (June 1, 2015) Slate; Asche Schow, The continuing collapse of 'The
24 Hunting Ground,' a campus sexual assault propaganda film, (June 3, 2015) Washington
Examiner.
43
25 The NCHERM Group, the largest higher education specific law practice in the country, has
worked with 3,000 higher education clients in the past 17 years, and frequently represents
26 universities being investigated by the Department of Education, Office for Civil Rights (OCR).
27 The NCHERM Group are the founders of ATIXA, a membership association of more than 1,400
campus Title IX coordinators and investigators, that produces training materials and seminars,
28 publications, and conferences.
44
Rethink Harvard's Sexual Harassment Policy (Oct. 15, 2014), The Boston Globe.
14
1 Due Process and The Sex Police. NCHERM points out to college and university Title IX
2 personnel:
3 Maybe you wound up in this role as the result of political pressures
real or imagined that make you feel like you need to be policing
4 student sexual mores. Or, for some of you, you took the 2011 DCL
[Dear Colleague Letter] as a license to become the sex police that
5 you always wanted to be. Or, maybe it has been a gradual and
6 inadvertent shift for you. For whatever reason, if you have become
the sex police, we want you to know that The NCHERM Group
7 condemns what you are doing in the strongest possible terms and
entreats you to change your thinking and your practices. Our tone in
8 this section reflects the gravity and import of the situation.
9 Sex policing isnt working for you. The field is being hammered by
an unprecedented wave of litigation, and higher education is losing!
10 Do you remember the days when judges were deferential to the
internal disciplinary decisions of college administrators? If those
11 days are rapidly receding or are gone, you have to ask yourselves
what role you have played in that. If you are the sex police, your
12 overzealousness to impose sexual correctness is causing a backlash
that is going to set back the entire consent movement.
13
If you dont know what we mean by sex policing, its happening on
14 two levels: the substantive and the procedural. Procedurally,
15 responding parties need to be accorded the full measure of their
rights. The courts are starting to smack colleges down left and right
16 when due process corners are cut, bias is in play, and politics
motivate the imposition of corrupt outcomes. (NCHERM Due
17 Process and The Sex Police, p.4.) (AR0390.)
18
19 PROCEDURAL BACKGROUND
20 A. Summary of UC Berkeley Title IX Investigation and Adjudication Policies.

21 41. For the 2016-2017 school year, UC Berkeley had at least twelve sources of written
22 policies and procedures for allegations of sexual assault and related offenses:
23
(1) University of California Policy PACAOS-Appendix-C (10/20/2008);
24
25 (2) Policies Applying to Campus Activities, Organizations and Students (PACAOS)
Berkeley Campus Code Of Student Conduct (Edited/Modified January 2012) (AR0121);
26
(3) University of California, Berkeley Procedures For Implementation Of The Student
27 Adjudication Model (December 18, 2015);
28 (4) University of California, Procedures For Implementation Of The Student
15
Adjudication Model (Copyright Pending and Final Version December 21, 2015);
1
2 (5) University of California Policy PACAOS-100, Policies Applying to Campus
Activities, Organizations and Students (PACAOS) (Revised December 23, 2015, Issued
3 1/1/2016) (AR0147);
4 (6) University of California's Policy on Sexual Harassment and Sexual Violence (SHSV
5 Policy (2015)) (issued December 18, 2015) (AR0161);
6 (7) University of California Policy PACAOS-Appendix-E: Sexual Violence and Sexual

Harassment Student Adjudication Framework (1/1/2016) (AR0184);
7
(8) University of California Student Adjudication Model For Sexual Violence & Sexual
8 Harassment Cases UC San Diego [sic] Implementing Procedures (Effective 1/4/2016)
9 (AR0204);
10 (9) University of California's Policy on Sexual Harassment and Sexual Violence (SHSV
Policy (2016)) (review date November 7, 2016) (AR0227);
11
12 (10) Code of Conduct, UC Berkeley: Division of Student Affairs 2017
http://sa.berkeley.edu/student-code-of-conduct (AR0284);
13
(11) UC Berkeley Campus Policies (http://sa.berkeley.edu/conduct/policies); and
14
15 (12) the UC Berkeley website https://ophd.berkeley.edu/ .
16
42. According to the Universitys Notice of Rights and Options in the Investigation and
17
Adjudication of Sexual Violence and Sexual Harassment Cases:
18
The University of California is committed to creating and
19 maintaining a community where all individuals who participate in
University programs and activities can work and learn together in
20 an atmosphere free of sexual violence and sexual harassment.
Consistent with its legal obligations under Title IX of the Education
21 Amendments of 1972, the Violence Against Women
Reauthorization Act of 2013, and California Education Code section
22 67386, the University responds promptly and effectively to reports
of sexual violence and sexual harassment, and takes appropriate
23 action to prevent, to correct, and when necessary, to discipline
behavior that violates the Universitys policy on Sexual Violence
24 and Sexual Harassment
25
The Universitys student disciplinary procedures emphasize
26 education, personal growth, accountability, and ethical behavior --
upholding standards of responsible conduct to protect the welfare of
27 the University community. When formal fact-finding procedures are
used, the procedures are designed to provide a prompt, fair, and
28 impartial resolution of the matter. (AR0204.)

16
1 43. Respondents are bound to abide by the procedures laid down in the University of
2 California Policy PACAOS-Appendix-E: Sexual Violence and Sexual Harassment Student
3 Adjudication Framework (1/1/2016) (AR0184), in the University of California's Policy on
4 Sexual Violence and Sexual Harassment (January 1, 2016, reviewed 11/7/2016) (SVSH Policy
5 (2016)), and the other policies of the University that were in force at the time of the alleged
6 incident.
7 44. The University is a recipient of federal funds and is bound by Title IX and its
8 regulations.
9 45. The University represents that its grievance procedures and SVSH Policy (2016)
10 concerning sexual assault and related offenses comply with the universitys legal obligations
11 under Title IX of the Education Amendments of 1972, the Violence Against Women
12 Reauthorization Act of 2013, and California Education Code section 67386. (AR0185.)
13 46. The authority to enforce the SVSH Policy and the UC Student Grievance Procedure,
14 which includes the Sexual Assault Policies and Procedures, is delegated by the UC Regents to
15 the University Chancellor and then to the Office for the Prevention of Harassment and
16 Discrimination (OPHD), which is responsible for ensuring the University provides an
17 environment for faculty, staff and students that is free from discrimination and harassment.
18 47. Complaints or reports of sexual misconduct are to be filed with the UC Berkeley OPHD
19 for investigation and all University officials involved in the resolution process will be trained to
20 carry out their roles in an impartial manner in keeping with trauma-informed practices. 45
21 (AR0206.)
22 B. UC Berkeley Title IX Sexual Misconduct Investigation Process.
23
24 45
Trauma-informed investigating and interviewing include the following key components:
25 1) understanding the impact of trauma on a neurological, physical, and emotional level; 2)
promoting safety and support; 3) knowing positive ways to respond that avoid retraumatization;
26 and 4) providing choice with a goal of empowerment. The Seven Deadly Sins of Title IX
27 Investigations, ATIXA (2016) Trauma-informed investigation practices presume that the
reporting party has actually suffered trauma from the reported event. Challenging or questioning
28 the reporting partys story, or giving negative or blaming responses may cause the survivor to
be re-traumatized and should be avoided.
17
1 48. UC Berkeley places the entire responsibility for the investigation, prosecution, fact-
2 finding, and adjudication of sexual misconduct claims in the hands of a single individual who act
3 as police, prosecutor, jury, and judge without a hearing.
4 49. This dual or triple role of a single person investigating complaints and presenting or
5 prosecuting the case on behalf of the University and also adjudicating responsibility or guilt,
6 creates a potential conflict that can deprive complainants and respondents of an adequate,
7 reliable, and impartial investigation. Such arrangements have been discouraged by the U.S.
8 Department of Education, Office for Civil Rights and the U.S. Department of Justice Civil
9 Rights Division. Colleges and university are to ensure that individuals who play a role in
10 receiving, investigating, and processing student complaints of sex-based harassment do not have
11 any actual or perceived conflicts of interest in the process. (See, University of Montana, DOJ
12 Case No. DJ 169-44-9, OCR Case No. 10126001, May 9, 2013.)
13 50. UC Berkeley does not rely upon sworn law enforcement officers or licensed private
14 investigators to investigate allegations of rape or other serious student-on-student sexual violence
15 and misconduct. However, California's statutory scheme for regulating the conduct and
16 qualifications of investigators requires licensing for "[A] personwho, for any consideration
17 whatsoever. . . engages in business or accepts employment to furnish, or agrees to make, or
18 makes, any investigation for the purpose of obtaining, information with reference to:
19 (a) Crime or wrongs done or threatened against the United States
of America or any state or territory of the United States of America.
20
(b) The identity, habits, conduct, business, occupation, honesty,
21 integrity, credibility, knowledge, trustworthiness, efficiency,
22 loyalty, activity, movement, whereabouts, affiliations, associations,
transactions, acts, reputation, or character of any person.
23
(e) Securing evidence to be used before any court, board,
24 officer, or investigating committee.
25
26 51. No person shall engage in the business of a private investigator unless that person
27 has applied for and received a license to engage in that business pursuant to this chapter. Bus.
28 & Prof. Code 7523(a).

18
1 52. According to the State of Californias Bureau of Security and Investigative Services, to
2 be eligible to apply for licensure as a private investigator, applicants must undergo a criminal
3 history background check through the California Department of Justice (DOJ) and the Federal
4 Bureau of Investigation (FBI) and have at least three years (2,000 hours each year, totaling 6,000
5 hours) of compensated experience in investigative work, have a law degree or completed a four
6 year course in police science plus two years (4,000 hours) of experience; or have an associate's
7 degree in police science, criminal law, or justice and 2 years (5,000 hours) of experience.
8 Applicants are also required to pass a two-hour multiple-choice examination covering laws and
9 regulations, terminology, civil and criminal liability, evidence handling, undercover
10 investigations and surveillance. 46
11 1. Stage One: Investigation.
53. Upon receipt of a report of or information about alleged sexual violence and/or sexual
12
harassment, the Title IX Officer for the campus is to determine whether an investigation should
13
be initiated.
14
54. The Title IX Officer is to oversee the investigation and will designate an investigator to
15
conduct a fair, thorough, and impartial investigation.
16
55. The Title IX investigator meets separately with the complainant, respondent, and other
17
witnesses who may have relevant information, and gathers relevant evidence and information.
18
The investigator may also follow up with the complainant or the respondent as needed to clarify
19
any inconsistencies or new information gathered during the course of the investigation. The
20
investigator also determines the relevance of any witness or other evidence to the findings and
21
may exclude certain types of evidence or information that is irrelevant or immaterial.
22
56. At the end of the investigation phase, the Title IX investigator makes findings of fact
23
and determines whether the accused student has violated the Universitys sexual misconduct
24
policies. Only after the investigator has formed their opinion and disclosed their findings, the
25
accused student is provided a copy of the investigation report.
26
57. The University refers to this phase of the Title IX adjudication process as Stage 1,
27
28
46
http://www.bsis.ca.gov/forms pubs/pi fact.shtml
19
1 Investigation.
2 2. Stage Two: Findings and Sanctions.
3 58. Once the Title IX investigator has formed the opinion that the accused student is
4 responsible or guilty of the policy violations, the Title IX Officer and Student Conduct office
5 send to the complainant and the respondent (a) written notice of the investigation findings and
6 the investigators recommended determinations, and (b) will provide a copy of the investigation
7 report.
8 59. The Director of Student Conduct is to review the Title IX investigators opinion and
9 recommendations and determine whether the charges have been substantiated, based on the Title
10 IX investigators written report and the opinions.
11 60. The accused student may meet with the Student Conduct Office to discuss an informal
12 resolution and the possible sanctions. The Student Conduct Officer then notifies the accused
13 student of the sanctions to be imposed.
14 61. The University refers to this phase of the Title IX adjudication process as Stage Two,
15 Findings and Sanctions.
16 3. Stage Three: Appeal.
17 62. After the Student Conduct Office notifies the complainant and respondent of the
18 decision and sanctions, both parties have the right to appeal the decision and sanctions within ten
19 business days based on one or more of the following grounds:
20 a. There was procedural error in the process that materially affected the
21 outcome, such as the investigation was not fair, thorough or impartial;
22 b. The decision was unreasonable based on the evidence;

23 c. There is new, material information that was unknown and/or unavailable
at the time the decision was made that should affect the outcome; and
24
25 d. The disciplinary sanctions were disproportionate to the findings;
26 63. The appeal is to be decided at a hearing by an Appeal Body composed of one to three
27 individuals who may be University staff or academic appointees, or non-University officials,
28 such as administrative law judges or experienced investigators.
20
1 64. An Appeal Hearing Officer is to review the appeal and determine the appropriate scope
2 and nature of a hearing to consider the matter.
3 65. Following the Appeal Hearing, the Appeal Hearing Officer may affirm the decision,
4 modify the decision or overturn the decision.
5 66. If the Appeal Hearing Officer affirms the decision, there are no further appeal rights. If
6 the Appeal Hearing Officer modifies or overturns the decision, either party will have an
7 opportunity for a written appeal on limited grounds.
8 67. The University refers to this phase of the Title IX adjudication process as Stage Three,
9 Appeal.
10 FACTUAL BACKGROUND
11 A. Jane Roes Birthday and the Sexual Activity.
12 68. As of October 15, 2016, Petitioner, 18, and Jane Roe, 18, were both undergraduate
13 students at UC Berkeley. John Doe was a first-year undergraduate student at the University of
14 California Berkeley. (AR0322.) During his high school years, John Doe was also enrolled at
15 Clovis Community College and the University of California Merced, where he completed 53
16 units and achieved a GPA of 3.9 before attending his first class at the University of California
17 Berkeley. (AR0467.) Jane Roe was an 18-year-old student at the University of California
18 Berkeley. (AR0323; AR0326.)
19 69. On October 15, 2016, Jane Roe celebrated her eighteenth birthday by consuming
20 alcohol with friends in various dorm rooms and attending three fraternity parties. (AR0326-
21 AR0328.) A witness who walked with Ms. Roe to the third of these parties (TKE) around
22 11:40 p.m. reported that Ms. Roe was fully functional and able to communicate perfectly at
23 that time. (AR0328.) A witness who saw Ms. Roe at the TKE party around 12:30 a.m. reported
24 Ms. Roe was stumbling a little, but not falling all over the place. (AR0329.) The witness
25 told Ms. Roe dance with a random man at the party, do a funny dance move, request the D.J. to
26 play a song and dance on a table next to the D.J. booth, which Ms. Roe was able to comply.
27 (AR0329.)
28 70. Ms. Roe met Mr. Doe at the TKE party around 12:45 or 1:00 a.m., when the pair
21
1 danced together, actively engaged in conversation, and made out on the dance floor. (AR0330.)
2 After they had been making out for several minutes, Ms. Roe asked Mr. Doe if he had a condom,
3 if he wanted to go to his dorm room, and explained that she had hooked up with men from
4 different fraternities, but not TKE. (AR0330.) Ms. Roe told Mr. Doe she did not want to go back
5 to her dorm room because her roommates were home, and further told Mr. Doe that, if his
6 roommates were home, she would go to a shower stall with Mr. Doe. (AR0330.)
7 71. Petitioner believed Ms. Roe was initiating and could consent to sexual activity at this
8 point because she did not appear too intoxicated, did not smell of alcohol, was not slurring her
9 words, and was engaging in fluent conversations. (AR0331.) A witness who spoke with Mr.
10 Doe and Ms. Roe as they walked from the TKE party to Mr. Does dorm indicated he warned
11 them of an active shooter situation near the Unit 2 dormitory complex, to which Ms. Roe
12 responded, No, no, no. We are going home. (AR0332.) 47
13 72. Ms. Roe reported she remembered walking with Mr. Doe to his dorm room. (AR0333.)
14 The pair engaged in small talk and held hands on their walk back to his dorm. (AR0332.)
15 According to Mr. Doe, Ms. Roe was walking straight, not stumbling, and appeared to be fine.
16 (AR0332.) Mr. Doe and Ms. Roe both live in the Unit 2 dormitory complex which is made up of
17 six different buildings. Ms. Roe resided in the Davidson Residence Hall whereas Mr. Doe
18 resided in the Ehrman Residence Hall. The Davidson Residence Hall comes before the Ehrman
19 Residence Hall on the walk home from the TKE fraternity house. Mr. Doe asked Ms. Roe, Are
20 you okay with what we are going to do? Are you sure you dont want to go home? to which Ms.
21 Roe responded, Yes, and repeatedly indicated she did not want to go to her dorm because her
22 roommates were home. (AR0332.)
23 73. When Jane Roe and John Doe arrived to Mr. Does building, he checked her into the
24
25
47
A UC Berkeley email alert sent out the following day reported that, Saturday, October
26 15th, 2016, at 11:08 p.m., (Berkeley Police Department) received several calls of shots fired in
27 the area of Dana Street and Haste Street, just south of the University of California campus.
When Officers arrived on scene, they found a 35 year old, mixed race male, laying in the middle
28 of the street, suffering from an apparent gunshot woundOfficers are clear of the crime scene
but the investigation remains ongoing,. (AR0221-222.)
22
1 building as a guest. (AR0332.)
2 74. When they went into John Does room, Mr. Doe sat on his bed and asked Ms. Roe,
3 Are you sure you are okay with this? Ms. Roe responded, Im fine. (AR0332.) Mr. Doe
4 asked Ms. Roe multiple times throughout the entire sexual encounter whether she was okay
5 with what they were doing, to which she responded to the effect, Yes, this is fine. (AR0332-
6 333.) Mr. Doe reported that, when they arrived at his dorm room, the pair engaged in kissing,
7 groping, and oral sex, but that he was unable to penetrate Ms. Roes vagina with his penis
8 because it was his first time having sex. (AR0332-333.) Jane Roe and John Doe changed
9 positions several times and eventually Jane Roe gave him a hand job and he ejaculated. Ms. Roe
10 reported later that she was unsure if any vaginal penetration occurred, but that her vagina was
11 sore the next day. (AR0333-334.) Immediately after their encounter, Ms. Roe took Mr. Does
12 cell phone and entered in her first name, her last name, and her phone number.
13 75. Ms. Roe recalled Mr. Doe walking her back to her dorm room around 2:55 a.m.
14 (AR0334) and then he returned home.
15 B. Jane Roes Report to UC Berkeley.
16 76. Ten days later, on October 26, 2016, Ms. Roe reported to Complaint Resolution
17 Officers Layma Ahmadzai and Elizabeth Rome that Mr. Doe sexually assaulted her in the early
18 morning hours of October 16, 2016. (AR0322.)
19 77. The two female Complaint Resolution Officers (CRO) are both licensed attorneys.
20 Ms. Layma Ahmadzai is admitted to practice in the State of California (SBN 278380) and Ms.
21 Elizabeth Rome is admitted to practice in the State of Minnesota (Lic. No. 0387998.) Among
22 other tasks, CROs at UC Berkeley:
23 Handle the assessment and response to complaints of discrimination
24 and harassment as defined in sections 1 and 2 above. Conduct highly
confidential investigations; produce summary of findings reports of
25 complaints brought forward by students, faculty or staff under the
University Sexual Harassment Policy and Procedures and other
26 applicable nondiscrimination policies. OPHD is the sole campus
office responsible for determining if violations of policies against
27 faculty, students and staff meet criteria stipulated in Title IX and
other applicable federal guidelines. Make recommendations for
28 appropriate discipline, sanctions and programmatic responses from
department administration. (UC Berkeley Job Description.)
23
1 78. In carrying out her assignments, CRO Ahmadzai acts as police, prosecutor, jury, and
2 judge in the universities Title IX process. Although UC Berkeley employs attorneys to prosecute
3 accused students, the University forbids the accused student from being represented by
4 counsel. 48
5 79. In speaking with CRO Ahmadzai and CRO Rome, Ms. Roe claimed that she had
6 consumed a significant amount of alcohol before the sexual activity and was therefore unable to
7 validly consent to sexual activity with Petitioner. Jane Roe texted to another student the
8 following day, Im just uncomfortable with how intoxicated I was. And the fact that its
9 something I would never do sober. (AR0338.)
10 80. Jane Roe, however, did not request any interim measures against John Doe, other than a
11 no contact directive. Jane Roe was fine remaining in the same class as Mr. Doe because the
12 class size was large (approximately 100 people were enrolled), and was fine with her living
13 arrangements, living in the same complex as John Doe, but in separate residential buildings. 49
14 1. Stage One: The Title IX Investigation.
15 81. On October 31, 2016, Mr. Doe was served a joint Notice of Allegation via email from
16 the Office for the Prevention of Harassment and Discrimination (OPHD), and the Center of
17 Student Conduct (CSC). (AR0223.) The Notice letter from CRO Layma Ahmadzai, began:
18 We hope that this email finds you well. You are receiving this letter
because our offices received information indicating that on or
19 around October 12, 2016 you may have been involved in an
incident(s) of concern. Specifically, it was alleged that on October
20 12, 2016 you subjected the complainant to sexual activity in your
21 on-campus dormitory room, including oral sex while the
complainant was incapacitated due to her consumption of alcohol.
22 Additionally, it was reported that you also consumed alcohol that
evening.
23 82. In her letter, CRO Ahmadzai wrote the date of October 12, 2016, and did not specify
24
25
48
Advisors and attorneys may provide assistance to the parties prior to and at a hearing, but
26 advisors are not to prepare or present the case for the parties nor take a direct part in hearings
27 without the approval of the panel or hearing officer.
49
Although Mr. Doe adhered to the no contact directive Ms. Roe eventually dropped out of
28 the class she shared with Mr. Doe on December 23, 2016, because she did not feel safe
(AR0205.)
24
1 the specific policy, only 102.27 Other Policies or Regulations. As a result, the wrong date and
2 the fact that the Notice of Allegations failed to inform Mr. Doe of what he was being accused of,
3 Mr. Doe was not aware of the factual basis for the alleged policy violations.
4 83. From October 26,2016 through January 27, 2017, CRO Ahmadzai interviewed Jane
5 Roe, John Doe and ten other witnesses, who are identified only by number in the investigation
6 report. (AR0325.) CRO Ahmadzai also reviewed ten items of documentary evidence.
7 (AR0341.)
8 84. CRO Ahmadzai does not record interviews, a standard investigation practice, but
9 instead summarizes the witness statements in a narrative summary report. Due to UC Berkeleys
10 investigation practice, there is no verbatim record of the questions asked or the responses, nor the
11 actual statements of witnesses.
12 85. Prior to meeting with CRO Ahmadzai on November 9, 2016, where he was expected to
13 respond to the allegations, Respondents did not provide John Doe with any of the evidence or
14 witness statements.
15 86. On January 27, 2017, CRO Ahmadzai issued her Report of Investigation and Findings,
16 (AR0322) in which she wrote:
17 Given the amount of alcohol Complainant consumed (see fact-
finding above) and the evidence gathered from witnesses regarding
18 Complainants demeanor in the minutes leading up to her encounter
with Respondent and Witness Ones interaction with Complainant
19 after the sexual activity, the preponderance of evidence supports that
20 Complainant was exhibiting outward signs of intoxication at the
TKE party and with Respondent. (AR0344.)
21 87. CRO Ahmadzai also formed the opinion that:
22
there is a preponderance of evidence to support:
23
Complainant telling Witness Seven that she wanted to
24 leave with Respondent after he warned them about an active
shooter;
25
Complainant expressing that she wanted to go back to
26 Respondents room and not hers;
27 Complainant stating that she was willing to have sex in the
shower stalls;
28

25
Respondent giving Complainant opportunities to leave;
1 and,
2 Respondent initiating some of the sexual activity on
September 16, 2016 [sic]. (AR0345.)
3
4
88. CRO Ahmadzai formulated the issue she was to resolve as follows:
5
6 Because, Complainant alleges that her memory was severely
impaired due to the amount of alcohol she consumed, it is possible
7 that Complainant may have consented to the sexual activity without
knowing that she did. Therefore, CRO must now analyze whether
8 the facts gathered in this evidence support a finding that: (a)
Complainant was incapacitated in that she was unable to understand
9 the fact, nature, or extent of the sexual activity; and that (b)
Respondent knew or a reasonable person would have known that
10 Complainant was incapacitated. (AR0346.)
11 89. In her report, CRO Ahmadzai resolved the two issues against John Doe and concluded
12 there is a preponderance of evidence to support that Mr. Doe was in violation of the University
13 of California Sexual Violence and Sexual Harassment Policy (Sexual Assault (Contact) and
14 Sexual Assault (Penetration)), as well as the University of California Berkeley Code of Student
15 Conduct (Sections 102.17 Other Policies and Regulations and Section 102.09 Harassment).
16 (AR0322; AR0349.)
17 2. Stage Two: Finding and Sanctions

18 90. On February 10, 2017, 50 Ben Fils, 51 SVSH Case Manager/Senior Conduct Coordinator
19 for the Center for Student Conduct issued his Case Outcome Letter reporting that Mr. Doe had
20 violated the Universitys Policy on Sexual Violence and Sexual Harassment, as well as the
21 University of California Berkeleys Code of Student Conduct. (AR0358.) Mr. Fils sanctioned
22 Mr. Doe with three-year suspension until May 15, 2020, exclusion from campus until May 15,
23 2020, required completion of a sexual misconduct educational program, a no contact directive as
24
50
25 On February 6, 2017, John Doe and his parent and an advisor met with Center for Student
Conduct Case Manager Ben Fils to discuss possible alternative resolutions. Ben Fils had talked
26 to Mr. Does advisor before the meeting to discuss this possibility. During the February 6th
27 meeting, however, Ben Fils said that he needed Jane Roes approval before considering an
alternative resolution.
28 51
Mr. Ben J. Fils graduated from the Temple University, Beasley School of Law in 2015, but
is not admitted to practice law in the State of California.
26
1 to Ms. Roe, a status of disciplinary probation for the remainder of his studies, and indefinite
2 exclusion from university housing. (AR0359-AR0361.)
3 91. Mr. Fils also notified Jane Roe and John Doe of their right to appeal:
4 Both the complainant and respondent may contest the decision
and/or sanctions stated in this letter by submitting a written appeal.
5 The appeal must identify the reason(s) why the complainant or
respondent is challenging this Case Outcome Letter under one or
6 more of the following grounds:
7
there was procedural error in the process that materially
8 affected the outcome, such as the investigation as not fair,
thorough or impartial,
9
the decision was unreasonable based on the evidence,
10
there is new, material information that was unknown
11 and/or unavailable at the time the decision was made that
should affect the outcome, and
12
the disciplinary sanctions were disproportionate to the
13 findings.
14
15 3. Stage Three: The Appeal.
92. John Doe timely filed an appeal on February 26, 2017. (AR0365-0378.)
16
93. Respondents hired attorney Jennifer Doughty 52 to serve as the Appeals Hearing Officer.
17
94. In his appeal, Petitioner argued (1) there was procedural error in the process that
18
materially affected the outcome, such as the investigation is not fair, thorough or impartial. (2)
19
the decision was unreasonable based on the evidence, and (3) there is new, material information
20
that was unknown and/or unavailable at the time the decision was made that should affect the
21
outcome. (AR0365.)
22
95. In the Appeal Hearing, Petitioner had the burden to persuade the Appeal Hearing
23
Officer by a preponderance of the evidence that the Universitys initial decision, i.e. the initial
24
opinion of the investigators without a hearing and no access to the evidence, was incorrect and/or
25
26
52
27 Ms. Jennifer Doughty, is a California attorney (SBN 275878) with Van Dermyden Maddux
Law Corporation. UC Regents hire Ms. Doughty to serve as hearing officer at other campuses.
28 See John Doe v.UC Davis et al., Yolo County Superior Court Case No. PT17-728 (May 15,
2017)
27
1 unreasonable. Thus, the accused student is required to establish by a preponderance of the
2 evidence, that the initial opinion or decision of the sole investigator is not supported by the
3 preponderance of the evidence. In other words, in order to prevail at the only hearing provided
4 by Respondents, the accused student bears the burden to prove their innocence by a
5 preponderance of the evidence.
6 96. Appeal Hearing Officer Jennifer Doughty initially only allowed Petitioners appeal to
7 move forward on the ground that CRO Ahmadzais opinion that a reasonable person should
8 have known that Complainant was incapacitated, was unreasonable based on the evidence.
9 One week prior to the Appeals Hearing, Appeal Hearing Officer Doughty also allowed Petitioner
10 to proceed on the grounds that there was procedural error in the process that materially affected
11 the outcome, such as the investigation is not fair, thorough or impartial. .
12 97. Appeal Hearing Officer Jennifer Doughty refused to allow John Doe to present new
13 material information that was unknown or unavailable at the time that would have affected the
14 outcome.
15 98. As to the new material information, Mr. Doe provided an interview with student David
16 Jin, who witnessed Mr. Doe and Ms. Roe at the TKE party. (AR0365-0366.) At the time of the
17 incident, Mr. Jin was executive Vice President for the Cal Greeks Alcohol Task Force (CAT),
18 and received approximately 10 hours of training that included how to identify students too
19 intoxicated to consent to sexual activity. (AR0366.) At the TKE party, Mr. Jin approached Mr.
20 Doe and Ms. Roe on the dance floor and noticed Ms. Roe did not display any of the signs of the
21 intoxication he was trained by CAT to spot. (AR0366.) Mr. Jin also witnessed Ms. Roe walked
22 with a normal gait, was not wobbling, and spoke coherently. (Id.)
23 99. Mr. Doe also submitted interviews and information on witnesses Andrew Lee, Cecilia
24 Li, and Delfino Varela, who could provide exculpatory evidence that would have materially
25 changed the investigation outcome, as the evidence establishes that immediately after the sexual
26 activity, Jane Roe was not incapacitated and no reasonable person could have concluded that she
27 was incapacitated.
28 100. The appeal hearing went forward on a hearing on April 25, 2017. Jane Roe was

28
1 present, however, she did not testify and did not make any statements. Jane Roe and John Doe
2 were separated by a screen, so that neither party could be seen by the other.
3 101. John Doe was not provided any opportunity to question Jane Roe directly or indirectly.
4 102. At the conclusion of the Appeal Hearing, attorney Jennifer Doughty denied Petitioners
5 appeal stating that:
6 . . . I find by a preponderance of the evidence that the investigative
finding related to whether a reasonable person should have known
7 of Complainants incapacitation was not unreasonable based on the
evidence contained within the Investigative Report. (AR0489.)
8
103. On May 2, 2017, Candace Witt, Conduct Coordinator at the Center for Student
9
Conduct, sent Petitioner a letter to notify him of the outcome of the conduct appeal, the Appeal
10
Hearing before Jennifer Doughty. (AR0491-AR0492.) Ms. Witt wrote in part:
11
12 On April 25, 2017 a hearing was held for the appeal you submitted
for case 01237-002-2016 to the Center for Student Conduct. As per
13 the University of California Sexual Violence and Sexual
Harassment policy, after the Appeal Hearing, the Appeal Hearing
14 Officer will deliberate in private and then render a decision to be
shared with all parties involved in the case.
15
After considering the documentary information admitted into
16 hearing, and the testimony offered at hearing, the Appeal Hearing
Officer decided to uphold the findings imposed by the University.
17
Under Ground 1, Respondent did not persuade AHO by a
18 preponderance of the evidence that there was procedural error in the
process that materially affected the outcome of the investigation.
19
Under Ground 2, Respondent did not persuade AHO by a
20 preponderance of the evidence that the investigative findings in this
21 matter were unreasonable, in light of the evidence contained in the
Investigation Report.
22 104. Ms. Candace Witt also notified Petitioner that there was no further avenue of
23 administrative appeal. (AR0491.)
24
25 RESPONDENTS ACTIONS AND DECISION ARE INVALID
26 105. On information and belief, Respondents actions, sanctions, and decision are invalid
27 under Code Civ. Proc. 1094.5. and alternatively, Code Civ. Proc. 1085, for the following
28 reasons:
29
a. Respondent failed to grant Petitioner a fair hearing, or any hearing at all;
1
2 b. Respondent committed a prejudicial abuse of discretion, in that
Respondent failed to proceed in the manner required by law;
3
c. Respondent's decision is not supported by the findings; and
4
d. Respondent's findings are not supported by the evidence.
5
6 A. Doctrine Of Judicial Non-Intervention Does Not Apply.
7 106. The doctrine of judicial nonintervention into the academic affairs of schools does not
8 apply in instances of non-academic affairs, such as this Title IX investigation and hearing
9 process for alleged violation of UC Berkeleys misconduct policy. (See Banks v. Dominican
10 College (1995) 35 Cal.App.4th 1545; Paulsen v. Golden Gate University (1979) 25 Cal.3d 803.)
11 B. Respondents Administrative Action Affects Vested Fundamental Rights.

12 107. Petitioner has a vested fundamental right under Title IX that Petitioner, as well as any
13 similarly situated student, may not be deprived of access to educational programs and activities
14 through an administrative process that does not afford due process, is not fair, impartial, reliable,
15 and equitable, or is overly punitive and not remedial. 53
16 108. UC Berkeleys administrative process affected Petitioner's right to complete his degree
17 without delay and his fundamental rights under Title IX for access to his educational programs
18 and activities.
19 109. California courts have undertaken to protect vested fundamental rights from untoward
20 intrusions by the massive apparatus of government. (Bixby v. Pierno (1971) 4 Cal.3d 130, 142-
21 143.) Here, the massive apparatus is the intrusion and pressure imposed on the University by
22 the U.S. Dept. of Educations, Office of Civil Rights, and since Respondents administrative
23 action substantially affects Petitioners vested, fundamental right to continue his education, the
24 trial court not only examines the administrative record for errors of law but also exercises its
25 independent judgment based upon the evidence disclosed in a limited trial de novo. (Id. at p.
26 143.) The Court must exercise its independent judgment and find an abuse of discretion if the
27 findings are not supported by the weight of the evidence; in effect, a trial de novo. (Code Civ.
28
53
See, Questions and Answers on Title IX and Sexual Violence, OCR, April 29, 2014, p. 29
30
1 Proc. 1094.5, subd. (c); Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 219, citing
2 Greenhill v. Bailey (8th Cir. 1975) 519 F.2d 5, 7.)
3 110. A court must determine on a case-by-case basis whether an administrative decision
4 affects a vested fundamental right. (Bixby v. Pierno, supra, 4 Cal.3d at p. 144.) A right is
5 deemed fundamental on either or both of two bases: (1) the character and quality of its economic
6 aspect; or (2) the character and quality of its human aspect. (JKH Enters., Inc. v. Dept of
7 Indus. Rels. (2006) 142 Cal.App.4th 1046, 1059.) Here, Petitioner possesses a vested contractual
8 right to continue to attend UC Berkeley uninterrupted, free from the reputational harm and
9 stigmatization that inherently accompanies sexual assault allegations and determination of
10 responsibility. This fundamental right is not diminished by Gurfinkel v. Los Angeles Community
11 College Dist. (1981) 121 Cal.App.3d 1, which held that the right to pursue a higher education is
12 not constitutionally protected, 54 this does not mean that the right to pursue a higher education
13 and subsequent career goals, and the liberty interest an individual has in maintaining their
14 reputation, cannot qualify as fundamental vested rights under Code Civ. Proc. 1094.5. (See
15 Goldberg v. Regents of University of California (1967) 248 Cal.App.2d 867, 877 (attendance at
16 publicly financed institutions of higher education should be regarded a benefit somewhat
17 analogous to that of public employment.)
18 C. Cumulative Impact of Unfairness.
19 In this case, the cumulative impact of the refusal and failure of the University to
20 disclose evidence, the lack of any opportunity to confront or challenge witnesses directly
21 or indirectly, no access to evidence and actual witness statements, and the absence of the
22 weight of credible, substantial evidence supporting the investigators opinions, have a
23
24
25
54
The plaintiff in Gurfinkel argued that an administrative decision denied her residency status
26 and placed an unconstitutional burden on the fundamental right to a college and community
27 college education. (Gurfinkel, 121 Cal.App.3d at 5.) No argument was asserted in Gurfinkel
that an administrative order substantially affected a petitioners fundamental vested right, nor
28 that the evidence should have been subject to independent judgment review under Code Civ.
Proc. 1094.5(c).
31
1 cumulative effect and demonstrate a notable stench of unfairness. (Rosenblit v.
2 Superior Court, supra, 231 Cal.App.3d at 1445.)
3 D. Respondents Title IX Sexual Misconduct Process is Permeated with
4 Structural Error.
5 111. In maintaining policies and procedures that fail to afford accused students due process
6 and fail to comply with OCR guidance and Title IX, Respondents Title IX sexual misconduct
7 policing process is permeated with structural error. Structural error has been defined as an
8 error that permeate[s] the entire conduct of the trial from beginning to end, or affect[s] the
9 framework within which the trial proceeds. (United States v. Recio (9th Cir. 2004) 371 F.3d
10 1093, 1101, citing Rice v. Wood (9th Cir. 1996) 77 F.3d 1138, 1141.) Structural errors may go
11 to the very construction of the trial mechanism and include circumstances such as a biased
12 judge, total absence of counsel [or] the failure of a jury to reach any verdict on an essential
13 element. (People v. Anzalone (2013) 56 Cal.4th 545, 554.) Structural errors go to the very
14 reliability of a criminal trial as a vehicle for determining guilt or innocence and are reversible per
15 se. (Id., citing People v. Gamache (2010) 48 Cal.4th 347, 396; see Al Haramain Islamic
16 Foundation, Inc. v. U.S. Dept. of Treasury (9th Cir. 2012) 686 F.3d 965, 988-989 [We do not
17 hold that an error in a civil context can never be structural, but we do hold that the errors here . . .
18 do not undermine the proceedings so fundamentally that we cannot ask whether the error was
19 harmless.].) A structural error requires per se reversal because it cannot be fairly determined
20 how a trial would have been resolved if the grave error had not occurred. (Id.)
21 112. Respondents Title IX sexual misconduct investigation process uses all the
22 nomenclature and has the outward appearance of a fair process, however, the outcome depends
23 entirely on the personal opinion of the sole investigator, based on their own inquiry using
24 trauma-informed investigating and interviewing techniques that assume the survivor is a
25 victim of sexual misconduct as the survivor reported. The Title IX investigator simply
26 highlights evidence that tends to support the initial allegations of the survivor and disregards
27 all contrary and exculpatory evidence, thus seeking to support the survivors allegations with
28 substantial evidence, but not by the weight or preponderance of the evidence as required by Title

32
1 IX.
2 113. Once the Title IX investigator offers their personal opinion of the accused students
3 guilt or responsibility for policy violations, which occurs before the accused student is provided
4 access to all the evidence, and without providing the accused student a reasonable opportunity to
5 question adverse witnesses, directly or indirectly, and without any hearing before impartial
6 adjudicators, the die is cast. The burden shifts to the accused student to disprove the Title IX
7 investigators personal opinion by a preponderance of the evidence, an impossible task.
8
9 114. On information and belief, relevant evidence is available that was improperly excluded
10 or unavailable during UC Berkeleys Title IX disciplinary process. Petitioner reserves the right
11 to offer such evidence before the reviewing court at the hearing on this Petition.
12 115. Petitioner has exhausted all administrative remedies available to him as of the date of
13 filing this Petition.
14 116. Petitioner has no plain, speedy and adequate remedy in the ordinary course of law.
15 117. Petitioner is obligated to pay an attorney for legal services to prosecute this action.
16 Petitioner may be entitled to recover attorneys fees as provided in Code Civ. Proc. 1021.5 and
17 Gov. Code 800 if Petitioner prevails in the within action.
18 118. Petitioner has requested the Respondent prepare and produced the complete
19 administrative record, but Respondent has not yet complied with the request.
20 119. Attached to this Petitioner is a true and correct copy of Petitioners Administrative
21 Record from documents available to him. The record is partially redacted by Respondents where
22 marked out in black and further redacted by Petitioner to grey out identifying information for
23 Jane Roe and John Doe. Petitioner reserves the right to supplement and augment his
24 Administrative Record before the time of the hearing on the Petition.
25
26 PRAYER FOR RELIEF
27 WHEREFORE, Petitioner prays the court for judgment as follows:
28 1. For an alternative writ of mandate directing Respondents to set aside the

33
1 findings and sanctions issued against Petitioner, or to show cause why a peremptory writ
2 of mandate to the same effect should not be issued;
3 2. For a peremptory writ of mandate directing Respondents to set aside their
4 findings and sanctions against Petitioner;
5 4. For reasonable attorneys fees and litigation expenses as permitted by
6 statute, in addition to any other relief granted or costs awarded;
7 5. For all costs of suit incurred in this proceeding; and
8 6. For such other and further relief as the court deems proper.
9
WERKSMAN JACKSON
10 HATHAWAY & QUINN LLP
11
12 DATED: May 31, 2017 By: ____________________________
Mark M. Hathaway
13
Attorneys for Petitioner
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

34

Due Process Lawsuit Against UC-Berkeley by Student Accused of Rape With No Hard Evidence

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Due Process Lawsuit Against UC-Berkeley by Student Accused of Rape With No Hard Evidence

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1 TABLE OF CONTENTS

2 TABLE OF CONTENTS ...............................................................................................ii

23 H. Campus Sex Police and Corrupt Outcomes. .......................................... 14

3 FACTUAL BACKGROUND ........................................................................... 21

8 2. Stage Two: Finding and Sanctions ............................................. 26

9 3. Stage Three: The Appeal. ............................................................ 27

AMENDED PETITION FOR WRIT OF MANDAMUS

14 Goldberg v. Regents of University of California (1967) 248 Cal.App.2d 867 .... 8, 9, 31

19 Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70 .............................................. 2

20 Johnson v. Superior Court (2008) 80 Cal.App.4th 1050 ............................................... 2

4 20 U.S.C. 1681-1688 ................................................................................................. 4

5 5 U.S.C. 556(d) ............................................................................................................ 6

AMENDED PETITION FOR WRIT OF MANDAMUS

AMENDED PETITION FOR WRIT OF MANDAMUS

AMENDED PETITION FOR WRIT OF MANDAMUS

AMENDED PETITION FOR WRIT OF MANDAMUS

10 required each postsecondary educational institution to adopt an affirmative consent standard

13 yes means yes. 30

18 E. Internal and External Pressure on Colleges and Universities.

20 A. Summary of UC Berkeley Title IX Investigation and Adjudication Policies.

6 (7) University of California Policy PACAOS-Appendix-E: Sexual Violence and Sexual

AMENDED PETITION FOR WRIT OF MANDAMUS

28 & Prof. Code 7523(a).

AMENDED PETITION FOR WRIT OF MANDAMUS

22 b. The decision was unreasonable based on the evidence;

AMENDED PETITION FOR WRIT OF MANDAMUS

17 2. Stage Two: Finding and Sanctions

23 2020, required completion of a sexual misconduct educational program, a no contact directive as

AMENDED PETITION FOR WRIT OF MANDAMUS

11 B. Respondents Administrative Action Affects Vested Fundamental Rights.

15 and equitable, or is overly punitive and not remedial. 53

24 trauma-informed investigating and interviewing techniques that assume the survivor is a

AMENDED PETITION FOR WRIT OF MANDAMUS

AMENDED PETITION FOR WRIT OF MANDAMUS

AMENDED PETITION FOR WRIT OF MANDAMUS

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