LIKELY WIN for Matt Boermeester in Closely-Watched USC Case
Earlier this week, a three-judge California appellate panel heard an appeal filed by former USC kicker Matthew Boermeester—at the center of one of the most troubling cases of university procedural unfairness in the post-Dear Colleague letter era. It appears as if the appeals court will side with Boermeester, though all three justices promised openness to USC’s arguments.
The specifics of the Boermeester case are, by this point, well-known. A report reached the university—third-hand—alleging intimate partner violence by Boermeester against his girlfriend, Zoe Katz. Katz was required by the Title IX office to speak to a USC Title IX investigator—and subsequently claimed, in multiple sworn affidavits, that USC misrepresented what she said in the interview. USC immediately suspended Boermeester, and ultimately found him guilty of an offense in which the “victim” said nothing untoward happened. He received no hearing, with no right to cross-examine either the third-hand witnesses the university had or to present his own witnesses. Nor did USC give him any chance to explain during its “investigation” what the university now sees as the key evidence in the case (a grainy security video of the incident).
The process was so unfair that Secretary Betsy DeVos highlighted it in her speech announcing the rescission of the Obama-era Title IX guidance. Terming USC’s treatment of Boermeester “disturbing,” the Secretary described “the story of an athlete, his girlfriend and the failed system. DeVos concluded her recap of the case by quoting his girlfriend Zoe Katz: “’When I told the truth,’ the young woman said, ‘I was stereotyped and was told I must be a ‘battered’ woman, and that made me feel demeaned and absurdly profiled.’”
Boermeester sued USC in state court in 2017, but drew a superior court judge, Amy Hogue, who has consistently sided with universities in accused student lawsuits. As he appealed, however, the law in California started to change. Several decisions from the California Court of Appeals, including two involving USC, made clear that an accused student needed to have some form of cross-examination, and cast doubt on the single investigator model that USC used.
The appeal went before a three-justice panel of Tricia Bigelow, Maria Stratton, and John Wiley. As the hearing commenced, the judges put on record that they had issued a tentative ruling indicating an intent to side with Boermeester. USC offered two core arguments to try to persuade the panel to reverse its tentative ruling. First, claiming that the five pro-due process California appeals court decisions applied only to students accused of sexual misconduct, not intimate partner violence. No one in the panel seemed particularly persuaded by the first line of argument. Second, suggesting that credibility wasn’t key to the case and generally not a key issue in allegations of intimate partner violence, period. Justice Bigelow seemed dubious. If the panel follows through with its tentative opinion this would be a major victory, both because of the high-profile coverage the expulsion received and because USC’s procedures are particularly egregious in this area. The decision, though, would only reverse Boermeester’s discipline.
As Justice Bigelow stated at the hearing, Boermeester had “a bright future.” In this respect, Boermeester’s ongoing battle provides a reminder of the enduring effect that unfair Title IX tribunals can have on accused students.
academicwonderland-KC Johnson
