California’s Second District Court of Appeal found that USC’s Title IX investigator Dr. Kegan Allee, held the “roles of investigator, prosecutor, factfinder, and sentencer” in a case where a student was accused of sexual misconduct. In an opinion published Friday, the three-judge panel ordered a lower court to remove USC’s findings against “John Doe” from his record, and awarded him his costs on appeal. The university will also have to create procedures to allow accused students to cross-examine both their accusers and witnesses in some form. This went even further than the previous appeals panel in the December ruling against USC. “When credibility of witnesses is essential to a finding of sexual misconduct, the stakes at issue in the adjudication are high, the interests are significant, and the accused’s opportunity to confront adverse witnesses in the face of competing narratives is key,” wrote Justice Thomas L. Willhite Jr.  “The notion that a single individual, acting in these overlapping and conflicting capacities, is capable of effectively implementing an accused student’s right of cross–examination by posing prepared questions to witnesses in the course of the investigation ignores the fundamental nature of cross–examination: adversarial questioning at an in–person hearing at which a neutral fact finder can observe and assess the witness’ credibility,” Willhite wrote. “At bottom, assessing what is necessary to conduct meaningful cross–examination depends on a common sense evaluation of the procedure at issue in the context of the decision to be made. From that prospective, a right of ‘cross–examination’ implemented by a single individual acting as investigator, prosecutor, factfinder and sentencer, is incompatible with adversarial questioning designed to uncover the truth.”

Though the accused student is identified pseudonymously in Friday’s ruling, he has been previously identified as former USC football player Bryce Dixon. Dixon was a freshman on a football scholarship when he had sex with Roe, a senior and student athletic trainer. Trainers had been warned not to “hook up” with athletes or they would lose their jobs. But according to Roe’s roommate of three years, Roe had a history of sleeping with football players and had been “reprimanded for unprofessional conduct” before her encounter with Dixon. A key dispute that Allee played down was whether Roe had motive to falsely accuse Dixon. Dixon said she might have accused him so she wouldn’t get fired as a trainer. The judges again scolded Keegan Allee for “inexplicably” failing to check with the athletics department on its policies for trainer-athlete sexual relations, “let alone ascertain the existence of the agreement Roe purportedly signed” promising not to hook up with athletes.

USC’s entire sexual misconduct process is “fundamentally flawed” when serious punishments are on the line, the judges said. The right to cross-examination is hollow in the single-investigator model used by USC and embodied by Allee, who plays “divided and inconsistent roles” in proceedings. Such a person acts as “investigator, prosecutor, factfinder [sic] and sentencer,” a jumble of roles that is “incompatible with adversarial questioning designed to uncover the truth,” according to the opinion: “It is simply an extension of the investigation and prosecution itself.” Allee’s flawed judgments show the danger of the system. Allee was given “unfettered discretion” and used it in “questionable ways,” dismissing Dixon’s theory that Roe had motive to invent rape “almost immediately,” even though Allee had multiple “investigative leads” along those lines. (Allee is now listed as assistant director of the Title IX office. Two officials caught calling an accused student “motherfucker” – Gretchen Dahlinger Means and Patrick Noonan – still have their title.)

The judges noted that other California appeals courts, as well as federal courts, have reached similar conclusions in sexual-misconduct cases that turn on the credibility of witnesses and accusers. Colleges from the private Claremont McKenna to the public University of California-Santa Barbara have been ordered to dump procedures that allow credibility determinations to be made based on written statements, rather than visual assessments of a party’s live answers in response to questions.

law.com By R.Todd thecollegefix By G.Piper

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