Supreme Court will review campus disciplinary procedures for domestic violence incidents [Updated]

The Supreme Court today granted review in Boermeester v. Carry, where a divided Second District, Division Eight, Court of Appeal, opinion held to be unfair University of Southern California disciplinary procedures that led to the expulsion of one of the school’s football players for intimate partner violence.

The majority said the unfairness resulted from the player being denied “a meaningful opportunity to cross-examine critical witnesses at an in-person hearing.”  It rejected or didn’t decide other procedural arguments he made.  The dissent argued that USC’s procedures were fair and that, “[u]naccountably, in California’s first appellate student discipline case about domestic violence, the aggressor emerges as the victim.”

The Supreme Court also depublished the Court of Appeal’s opinion, meaning that it can no longer be cited at all, not even for its “persuasive value.”  (Rule 8.1115(a), (e)(1).)  Normally, a published opinion retains its citability pending review, albeit only for its potential persuasiveness, not as binding precedent.  (Rule 8.1115(e)(1); see here.)  A grant/depublication combo order happens only occasionally.  (See, e.g., here and here.)

Horvitz & Levy filed the petition for review and depublication request.

[October 2 update:  The court this week limited the issues to:  “1. Under what circumstances, if any, does the common law right to fair procedure require a private university to afford a student who is the subject of a disciplinary proceeding with the opportunity to utilize certain procedural processes, such as cross-examination of witnesses at a live hearing?  2. Did the student who was the subject of the disciplinary proceeding in this matter waive or forfeit any right he may have had to cross-examine witnesses at a live hearing?  3. Assuming it was error for the university to fail to provide the accused student with the opportunity to cross-examine witnesses at a live hearing in this matter, was the error harmless?”]