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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. ...................................... 7
12
C. California Law Regarding Student Discipline. ........................................ 8
13
1. Access to Evidence ........................................................................ 9
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. ............... 11
20
F. The Stanford Swimmer Case. ................................................................ 13
21
22 G. Wrongful Reports Not Uncommon. ....................................................... 14

23 H. Campus Sex Police and Lack of Due Process in Title IX Cases. .......... 15
24
PROCEDURAL BACKGROUND ................................................................... 16
25
A. Summary of UC Irvine Title IX Investigation and Adjudication
26
Policies. .................................................................................................. 16
27
B. UC Irvine Title IX Investigators. ........................................................... 18
28
1. Single Investigator Model. .......................................................... 20
AMENDED PETITION FOR WRIT OF MANDAMUS
ii
2. Appeal from Investigators Opinion. .......................................... 21
1
2 3. Appeal Hearing. .......................................................................... 22

3 FACTUAL BACKGROUND ........................................................................... 24


4
A. The Sexual Activity................................................................................ 24
5
B. Procedural Error in the Title IX Process, based on lack of Due
6
Process. ................................................................................................... 26
7
1. Improper Character Evidence: ................................................... 26
8
2. Investigation Not Impartial:........................................................ 26
9
3. Withholding of Evidence from Respondent:................................ 27
10
4. Failure to weigh the evidence: .................................................... 27
11
12 5. The decision was unreasonable based on the evidence. ............. 28

13 6. Withheld Evidence. ...................................................................... 29


14 7. The disciplinary sanctions were disproportionate to
the findings; ................................................................................. 26
15
16 RESPONDENTS ACTIONS AND DECISION ARE INVALID ................... 30
17 A. Doctrine Of Judicial Non-Intervention Does Not Apply. ...................... 30
18
B. Respondents Administrative Action Affects Vested Fundamental
19 Rights. .................................................................................................... 31
20 C. Cumulative Impact of Unfairness. ......................................................... 32
21
D. Respondents Title IX Sexual Misconduct Process is Permeated with
22 Structural Error. ...................................................................................... 32
23 PRAYER FOR RELIEF ............................................................................................... 34
24
VERIFICATION .......................................................................................................... 36
25
26
27
28

AMENDED PETITION FOR WRIT OF MANDAMUS


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.................................................................................................... 33
4
Applebaum v. Board of Dirs. of Barton Mem. Hosp. (1980) 104 Cal.App.3d
5 648 ............................................................................................................................... 9
6 Banks v. Dominican College (1995) 35 Cal.App.4th 1545 .......................................... 30
7
Bixby v. Pierno (1971) 4 Cal.3d 130 ........................................................................ 8, 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 .. 9, 10, 32


15 Greenhill v. Bailey (8th Cir. 1975) 519 F.2d 5............................................................. 31
16 Gupta v. Stanford University (2004) 124 Cal.App.4th 407 ........................................... 3
17 In Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d
18 1058 ............................................................................................................................. 2

19 JKH Enters., Inc. v. Dept of Indus. Rels. (2006) 142 Cal.App.4th 1046 .................... 31

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


21 Johnson v. Superior Court (2008) 80 Cal.App.4th 1050 ............................................... 2
22 Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627......................... 8
23 Paulsen v. Golden Gate University (1979) 25 Cal.3d 803 ........................................... 30
24
People v. Anzalone (2013) 56 Cal.4th 545 ................................................................... 33
25
People v. Gamache (2010) 48 Cal.4th 347 .................................................................. 33
26
Poe v. Ullman (1961) 367 U.S. 497 ............................................................................... 2
27
Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716 .................................. 3
28
Roe v. Wade (1973) 410 U.S. 113 .................................................................................. 2
AMENDED PETITION FOR WRIT OF MANDAMUS
iv
Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208 .............................................. 31
1
2 Starbucks Corp. v. Superior Court (2008) 68 Cal.App.4th 1436................................... 2

3 United States v. Recio (9th Cir. 2004) 371 F.3d 1093 ................................................. 33

4
Statutes
5 20 U.S.C. 1092 ............................................................................................................ 7
6 20 U.S.C. 1681-1688 ................................................................................................. 4
7 5 U.S.C. 556(d) ............................................................................................................ 6
8 Cal. Const., art. VI, 10 ................................................................................................. 2
9
Code Civ. Proc. 1021.5 ............................................................................................. 34
10
Code Civ. Proc. 1084................................................................................................... 2
11
Code Civ. Proc. 1085............................................................................................. 2, 30
12
Code Civ. Proc. 1094.5 ........................................................................................... 2, 3
13
14 Code Civ. Proc. 395..................................................................................................... 3

15 Educ. Code 67386 ..................................................................................................... 10

16 Gov. Code 800 ........................................................................................................... 34


17
Regulations
18 34 C.F.R. 106.71.......................................................................................................... 6
19 34 C.F.R. 668.46.......................................................................................................... 7
20
21
22
23
24
25
26
27
28

AMENDED PETITION FOR WRIT OF MANDAMUS


v
1 INTRODUCTION
2 Petitioner JOHN DOE is a fourth-year student at University of California, Irvine
3 (hereinafter UC Irvine) and was improperly disciplined, including suspension for two
4 years and deprivation of access to his educational programs and activities, stemming
5 from a Title IX sexual misconduct disciplinary process that is unfair, lacks due process,
6 does not comply with the law or university policy, and where the charges are not
7 supported by the evidence.
8 John Doe petitions for writ of mandate under Code Civ. Proc. 1094.5, or in the
9 alternative under Code Civ. Proc. 1085, directed to Respondents in order to redress the
10 improper administration action, and by this Petition, Petitioner further alleges as follows:
11
12 THE PARTIES
13 1. Petitioner JOHN DOE was, at all times relevant, an undergraduate student at the
14 University of California, Irvine.
15 2. Respondent REGENTS OF THE UNIVERSITY OF CALIFORNIA (hereinafter
16 University of California or UC Regents), is the official name of the public
17 corporation that governs and operates the University of California as a public trust
18 through its 26-member board of Regents. UC IRVINE is one of the 10 campuses of the
19 University of California system.
20 3. Petitioner is ignorant of the true names and capacities of the Respondents named
21 herein as DOES 1 to 20 inclusive, and therefore names these Respondents by such
22 fictitious names and will amend when ascertained.
23 4. Non-party JANE ROE at all times relevant was an undergraduate student at the
24 University of California, Irvine and is the complainant in the underlying Title IX sexual
25 misconduct investigation process conducted on behalf of Respondents by UC Irvine.
26 5. Petitioner uses the pseudonyms of John Doe and Jane Roe in his Petition in
27 order to preserve privacy in a matter of sensitive and highly personal nature, which
28 outweighs the publics interest in knowing the parties identities. Use of the pseudonyms

AMENDED PETITION FOR WRIT OF MANDAMUS


1
1 does not prejudice Respondents because the identities of Petitioner and the Jane Roe are
2 known to Respondents. (See, Starbucks Corp. v. Superior Court (2008) 68 Cal.App.4th
3 1436 [The judicial use of Doe plaintiffs to protect legitimate privacy rights has gained
4 wide currency, particularly given the rapidity and ubiquity of disclosures over the World
5 Wide Web]; see also Doe v. City of Los Angeles (2007) 42 Cal.4th 531; Johnson v.
6 Superior Court (2008) 80 Cal.App.4th 1050; Roe v. Wade (1973) 410 U.S. 113; Doe v.
7 Bolton (1973) 410 U.S. 179; Poe v. Ullman (1961) 367 U.S. 497; In Does I thru XXIII v.
8 Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058.)
9
10 JURISDICTION AND VENUE
11 5. The Supreme Court, courts of appeal, superior courts, and their judges have
12 original jurisdiction in proceedings for extraordinary relief in the nature of mandamus
13 directed to any inferior tribunal, corporation, board, or person. (Cal. Const., art. VI, 10;
14 see Code Civ. Proc. 1084 [mandamus synonymous with mandate]; Code Civ. Proc.
15 1085.)
16 6. Petitioner, an aggrieved university student, seeks by this Petition to exhaust
17 judicial remedies through this petition for writ of mandate following the private
18 Universitys appeal process, which is now final.
19 7. The doctrine of exhaustion of judicial remedies precludes an action that
20 challenges the result of a quasi-judicial proceeding unless the plaintiff first challenges the
21 decision though a petition for writ of mandamus. (Johnson v. City of Loma Linda (2000)
22 24 Cal.4th 61, 70.) Administrative mandamus is available for review of any final
23 administrative order or decision made as the result of a proceeding in which by law a
24 hearing is required to be given, evidence required to be taken, and discretion in the
25 determination of facts is vested in the inferior tribunal, corporation, board, or officer . . .
26 (Code Civ. Proc. 1094.5, subd. (a).)
27 The remedy of administrative mandamus is not limited to
public agencies; rather it applies to private organizations that
28 provide for a formal evidentiary hearing. (Pomona College v.
AMENDED PETITION FOR WRIT OF MANDAMUS
2
Superior Court (1996) 45 Cal.App.4th 1716, 17221723 [
1 1094.5 applicable to private universities].) Moreover, failure
to exhaust administrative remedies is a proper basis for
2 demurrer. (Id. at pp. 17301731.)
3 (Gupta v. Stanford University (2004) 124 Cal.App.4th 407,
411 [Code of Civil Procedure section 1094.5 applied to the
4 case of a student who was subject to university disciplinary
proceedings].)
5
6 8. The Superior Court for Alameda County, the county where the Respondents are
7 located or employed, is the proper court for the hearing of this action. (Code Civ. Proc.
8 395.)
9 THE REGULATORY AND LEGAL FRAMEWORK
10 INTRODUCTION.
11 9. This case arises amidst the national controversy stemming from the U.S.
12 Department of Educations little-known Office for Civil Rights (OCR) 1 threatening to
13 withhold federal dollars in order to impose its guidance on colleges and universities as to
14 how to investigate and adjudicate allegations of sexual misconduct 2 in order to stem a
15 purported tide of sexual violence on American college campuses. 3 OCRs efforts affect
16 the rights of some 20.6 million undergraduate and graduate students in the United States
17
1
The Office for Civil Rights (OCR) is a sub-agency of the U.S. Department of Education and
18
enforces several Federal civil rights laws, including Title IX. On April 4, 2011, the Office for
19 Civil Rights issued a Dear Colleague Letter and in April 29, 2014, Questions and Answers on
Title IX and Sexual Violence. The U.S. Dept. of Education has determined to be significant
20 guidance document under the Office of Management and Budget's Final Bulletin for Agency
21 Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007).
2
See, David G. Savage and Timothy M. Phelps, How a Little-known Education Office Has
22 Forced Far-reaching Changes to Campus Sex Assault Investigations, (August 17, 2015) Los
Angeles Times.
23 3
This is an issue of political correctness run amok, according to Alan M. Dershowitz,
24 emeritus Harvard Law professor who was among twenty-eight Harvard Law School faculty
members asserting that new rules violate the due process rights of the accused. (See, Rethink
25 Harvards Sexual Harassment Policy (Oct. 15, 2014), The Boston Globe.) As teachers
responsible for educating our students about due process of law, the substantive law governing
26 discrimination and violence, appropriate administrative decision-making, and the rule of law
27 generally, we find the new sexual harassment policy inconsistent with many of the most basic
principles we teach. Id. See also, Richard Dorment, Occidental Justice, (April 2015) Esquire;
28 Teresa Watanabe, More College Men Are Fighting Back Against Sexual Misconduct Cases (June
7, 2014) Los Angeles Times.
AMENDED PETITION FOR WRIT OF MANDAMUS
3
1 as well as the distribution of more than $137 billion in federal education funds each
2 year. 4 OCRs threats to withhold funds puts immediate and tremendous pressure upon
3 universities, such as UC Irvine to (a) aggressively prosecute males accused of sexual
4 misconduct; (b) severely discipline male students alleged to have engaged in sexual
5 misconduct regardless of their innocence, 5 and (c) equate victim/complainants in
6 sexual misconduct proceedings as being female survivors who must receive
7 preferential treatment. 6
8 10. As discussed below, OCRs efforts to enforce Title IX compliance applies to all
9 public and private educational institutions that receive federal funds, including UC Irvine.
10 A. Title IX.
11 11. The issue of sexual assaults on college and university campuses is, at the federal
12 level, primarily addressed by an act of Congress known as Title IX of the Education
13 Amendments of 1972, 20 U.S.C. 1681-1688. From Title IXs enactment in 1972 until
14 1997, the Department of Education never asserted jurisdiction over student-on-student
15 rape or sexual assault. In 1997, however, the Department issued regulations that required
16 schools to have policies and procedures in place to deal with such conduct. 7
17 12. Title IX requires every college and university that receives federal funds to
18 establish policies and procedures to address sexual assault, including a system to
19 investigate and adjudicate charges of sexual assault by one student against another. A
20 school violates a student's rights under Title IX regarding student-on-student sexual
21 violence if: (1) the alleged conduct is sufficiently serious to limit or deny a student's
22
23
24 4
Source: https://studentaid.ed.gov/sa/about/data-center/student/title-iv.
5
25 A 2015 study examined why a high percentage of sexual assault allegations are falseand
the rationale behind many of these false allegations as being retribution for a real or perceived
26 wrong, rejection or betrayal. Reggie D. Yager, Whats Missing From Sexual Assault Prevention
27 and Response, (April 22, 2015), pgs.46-62 http: ssrn.com/abstract=2697788).
6
See, http://www.care.uci.edu/ and http://www.care.uci.edu/services/advocacy.html
7
28 See generally Stephen Henrick, A Hostile Environment for Student Defendants: Title IX and
Sexual Assault on College Campuses, 40 N. Ky. L. Rev. 49, 56-59 (2013).
AMENDED PETITION FOR WRIT OF MANDAMUS
4
1 ability to participate in or benefit from the school's educational programs; 8 and (2) the
2 school, upon notice, fails to take prompt and effective steps reasonably calculated to end
3 the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as
4 appropriate, remedy its effects. 9 The fundamental principle of such a system is that it be
5 prompt and equitable. 10 OCR, which is in charge of the administrative enforcement of
6 Title IX, has expanded on this basic mandate through (a) regulations promulgated
7 through notice-and-comment rule making 11 that have the force and effect of law; 12 and
8 (b) significant guidance documents like its April 2011 Dear Colleague Letter, 13 and
9 its April 2014 Questions and Answers on Title IX and Sexual Violence. A schools
10 procedures must, at a minimum, (1) ensure the Title IX rights of the complainant, but
11 accord due process to both parties involved, 14 a requirement applicable to both state
12 and private schools; 15 (2) provide an adequate, reliable, and impartial investigation; 16
13 (3) provide the complainant and the accused student an equal opportunity to present
14
15 8
OCR requires that the conduct be evaluated from the perspective of a reasonable person in
16 the alleged victim's position, considering all the circumstances.
9
April 2014 Questions and Answers on Title IX and Sexual Violence at A-2. (Questions
17 and Answers.)
10
34 C.F.R. 106.8 (b).
18 11
OCR, Revised Sexual Harassment Guidance: Harassment of Students by School
19 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)
20 (http://www.ed.gov/ocr/docs/shguide.html)
12
21 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
22 the force and effect of law). The same is true for the 2001 Guidance, an interpretation of the
regulations that was published in the Federal Register and was subject to public comment. 2001
23 Guidance at ii. As such, it is entitled to deference under the doctrine articulated in Chevron,
24 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
25 Bleiler v. College of the Holy Cross, 2013 WL 4717340, at *3, 5 (D. Mass. 2013) (holding that
the Dear Colleague Letter, as a guidance document, does not have independent force of law but
26 informs this Courts evaluation of whether the Colleges procedures were equitable).
14
27 2001 Guidance at p. 22.
15
E.g., OCR Ruling re Complaint #04-03-204 (Christian Brothers Univ.) (Mar. 26, 2004) at 7
28 (due process protections [are] inherent in the Title IX regulatory requirements).
16
2001 Guidance at p. 20.
AMENDED PETITION FOR WRIT OF MANDAMUS
5
1 relevant witnesses and other evidence; 17 (4) ensure that the factfinder and decision
2 maker . . . have adequate training or knowledge regarding sexual violence 18; and (5)
3 require documentation of all proceedings, which may include written findings of fact,
4 transcripts, or audio recordings. 19
5 13. When OCR set forth guidance that in order for a school's grievance procedures
6 to be consistent with Title IX standards, the school must use a preponderance of the
7 evidence standard. . . OCR also advised that Title IX has incorporated and adopted the
8 procedural provisions applicable to Title VI of the Civil Rights Act of 1964. (See 34
9 C.F.R. 106.71) The Title IX regulations, therefore, require that decisions be supported
10 by and in accordance with the reliable, probative and substantial evidence. See 5 U.S.C.
11 556(d). 5 U.S.C. 556(d) also provides in relevant part:
12 . . . A party is entitled to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to
13 conduct such cross-examination as may be required for a full
14 and true disclosure of the facts. . .
14. Title IXs regulations require a school receiving federal funds to designate an
15
employee to coordinate the schools compliance with Title IX. 20 OCR is in charge of the
16
administrative enforcement of Title IX and has identified the primary responsibilities of
17
the Title IX coordinator: (a) overseeing all Title IX complaints; (b) identifying and
18
addressing any patterns or systemic problems that arise during the review of such
19
complaints; (c) meet[ing] with students as needed, either directly or through a
20
designee; and (d) provid[ing] assistance to school law enforcement unit employees
21
regarding how to respond appropriately to reports of sexual violence. 21
22
15. OCR has emphasized that the Title IX Coordinator must be independent and free
23
of conflicts of interest that may be created by holding another position within the school:
24
25
26 17
Id.; Dear Colleague Letter at p. 11.
18
27 Id.; 2001 Guidance at p. 21.
19
Dear Colleague Letter at p. 12.
20
28 34 C.F.R. 106.8 subdivision (a).
21
Dear Colleague Letter at p. 7.
AMENDED PETITION FOR WRIT OF MANDAMUS
6
1 [E]mployees whose job responsibilities may conflict with a Title IX coordinators
2 responsibilities include . . . Deans of Students, and any employee who serves on the
3 judicial/hearing board or to whom an appeal might be made. 22
4 16. As a practical matter, therefore, a college student who claims to be the victim of
5 a sexual assault by a fellow student has three options: (1) go to the local
6 police/prosecutor; (2) use the colleges sexual assault disciplinary process; or (3) pursue
7 both. 23
8 B. Violence Against Women Reauthorization Act.
9 17. The Violence Against Women Reauthorization Act of 2013 amended, among
10 other provisions, 485 subdivision (f) of the Clery Act, 20 U.S.C. 1092 subdivision (f).
11 The amendments to 1092 subdivision (f) added new procedural protections for campus
12 sexual assault proceedings and strengthened other existing protections, including:
13
. . . requiring a prompt, fair, and impartial investigation and
14 resolution;
15 . . . requiring that campus sexual assault proceedings be
conducted by officials who receive annual training on the
16 issues related to domestic violence, dating violence, sexual
assault, stalking and how to conduct an investigation and
17 hearing process that protects the safety of victims and promotes
accountability;
18
guaranteeing that the accuser and the accused are entitled to
19 have others present during an institutional disciplinary
proceeding, including the opportunity to be accompanied to
20 any related meeting or proceeding by an advisor of their
21 choice. 24
18. The regulations issued by the Department of Education under the statute, which
22
have the force and effect of law, 25 make clear that an advisor of their choice includes
23
the right to have an attorney act as the advisor. 26
24
25
22
Questions and Answers at C-4.
26 23
See 20 U.S.C. 1092 subdivision (f)(8)(B)(iii)(III) (listing options).
24
27 20 U.S.C. 1092 subdivision (f)(8)(B)(iv)(I)-(II) (emphasis added).
25
The regulations, 34 C.F.R. 668.46, were promulgated pursuant to notice-and-comment
28 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
AMENDED PETITION FOR WRIT OF MANDAMUS
7
1 19. In addition to Title IX and other relevant federal law, a state may have laws that
2 govern campus sexual assault disciplinary proceedings, as California does.
3 C. California Law Regarding Student Discipline.
4 20. Californias procedural and substantive standards for student disciplinary
5 proceedings begin with Code Civ. Proc. 1094.5 subdivisions (b) and (c), which require
6 that (1) there be a fair trial, which means that there must have been a fair
7 administrative hearing 27; (2) the proceeding be conducted in the manner required by
8 law; (3) the decision be supported by the findings; and (4) the findings be supported
9 by the weight of the evidence, or where an administrative action does not affect vested
10 fundamental rights, the findings must be supported by substantial evidence in the light
11 of the whole record. 28 In addition, a reviewing court does not blindly seize any
12 evidence in support of the respondent in order to affirm the judgment. . . . It must be
13 reasonable, . . . credible, and of solid value. (Kuhn v. Department of General Services
14 (1994) 22 Cal.App.4th 1627, 1633.) The ultimate determination is whether a reasonable
15 trier of fact could have found for the respondent based on the whole record. (Id.)
16 21. Moreover, the fair hearing requirements of Code Civ. Proc. 1094.5 subdivision
17 (b) can only be satisfied in this context through adherence to principles of procedural due
18 process, which apply directly to public colleges and universities through the Fourteenth
19 Amendment, and to private colleges and universities by analogy. 29 (Doe v. University of
20 Southern California (2016) 246 Cal.App.4th 221.) Of course, [s]pecific requirements
21
22 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
23 supports the right of the accused and the accuser to be accompanied to any meeting or
24 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
25 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).
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.)
29
28 Courts in other jurisdictions have taken the same approach. (See, e.g., Doe v. Brandeis
Univ. (D. Mass. 2016) 2016 WL 1274533, at *33.)
AMENDED PETITION FOR WRIT OF MANDAMUS
8
1 for procedural due process vary depending upon the situation under consideration and the
2 interests involved. (Id. at 244 [quoting Applebaum v. Board of Dirs. of Barton Mem.
3 Hosp. (1980) 104 Cal.App.3d 648, 657].)
4 22. Due Process requires, inter alia, proper advance notice of the hearing
5 specifying the particular charges and suggesting that [the student] might wish to obtain
6 counsel. (Id. [quoting Goldberg v. Regents of University of California. (1967) 248
7 Cal.App.2d 867, 872].)
8
1. Access to Evidence
9
23. A fair process also requires the university to present the evidence to the
10
accused student so that the student has a reasonable opportunity to prepare a defense and
11
to respond to the accusation:
12
13 . . . USC argues the procedural protections required in Dixon
were in place here because John had access to information
14 submitted by the other witnesses and an opportunity to respond
15 to that evidencehad he requested it. But requiring John to
request access to the evidence against him does not comply
16 with the requirements of a fair hearing. (See, e.g., Goss, supra,
17 419 U.S. at p. 582.) (Doe v. University of Southern California
(2016) 246 Cal. App. 4th 221, 245-246.)
18
19
20 2. In a lawsuit the first to speak seems right, until someone comes
forward and cross-examines. Proverbs 18:17 (NIV)
21
24. As King Solomon in his wisdom recognized three thousand years ago, in matters
22
that turn on credibility of the accuser and the accused, the school must provide for the
23
questioning of the complainant, either directly or indirectly, by the accused student. See,
24
Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1084:
25
26 . . . in the instant matter, where the Panel's findings are likely
to turn on the credibility of the complainant, and respondent
27 faces very severe consequences if he is found to have violated
28 school rules, we determine that a fair procedure requires a

AMENDED PETITION FOR WRIT OF MANDAMUS


9
1 process by which the respondent may question, if even
indirectly, the complainant.
2
We note that John relies on Manufactured Homes
3 Communities, Inc. v. County of San Luis Obispo (2008) 167
4 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
5 he was entitled to directly cross-examine Jane during the
6 hearing. In both of those cases, cross-examination of witnesses
testifying against the party was completely prohibited. That is
7 not the case here where UCSD's policies provided John
8 with a mechanism by which to question Jane. Id. at fn 18.
(emphasis supplied)
9
25. In addition, students are to have ample opportunity to hear and observe the
10
witnesses against them. Doe v. University of Southern California (2106) 246 Cal. App.
11
4th 221, 246, citing Goldberg v. Regents of University of California (1967) 248
12
Cal.App.2d 867, 882.
13
14 3. Right to Impartial Adjudicators
15 26. The right to a fair procedure includes the right to impartial adjudicators.
16 (Applebaum v. Board of Directors, supra, 104 Cal.App.3d 648, 658.) Moreover,
17 "[f]airness requires a practical method of testing impartiality." (Hackethal v. California
18 Medical Assn., supra, 138 Cal.App.3d 435, 444.) (Rosenblit v. Superior Court (1991)
19 231 Cal.App.3d 1434, 1448.
20
21 D. Californias Affirmative Consent Law.
22 27. In 2015, the California legislature enacted legislation (effective January 1, 2016)

23 that required each postsecondary educational institution to adopt an affirmative consent

24 standard for sexual activity if the institution desired to remain eligible to receive state

25 funds for student financial assistance. (Cal. Educ. Code 67386(a).) This policy is

26 commonly referred to as yes means yes. 30

27
30
28 Keven de Len and Hannah-Beth Jackson, Why We Made Yes Means Yes California Law,
Washington Post, Oct. 13, 2015, https//www.washingtonpost.com/news/in-
AMENDED PETITION FOR WRIT OF MANDAMUS
10
1 28. The statute also provides that an accused students belief that the accuser
2 consented to sexual activity will not provide a defense if [t]he accused did not take
3 reasonable steps, in the circumstances known to the accused at the time, to ascertain
4 whether the [accuser] affirmatively consented. Id.(a)(2)(B).
5 E. Internal and External Pressure on Colleges and Universities.
6 29. One federal court recently held that [a]ccused students are entitled to have their
7 cases decided on the merits . . . and not according to the application of unfair
8 generalizations or stereotypes because of social or other pressures to reach a certain
9 result. (Doe v. Brandeis Univ. (D. Mass. 2016) 2016 WL 1274533, at *37.) This
10 recognition of the effect of outside pressures on campus administrators is crucial in order
11 to understand why the regulatory environment often plays a role in campus sexual assault
12 proceedings where the accused student is invariably male.
13 30. The role of OCR is paramount. The April 2011 Dear Colleague Letter contains
14 an explicit threat to colleges and universities:
15
When a recipient does not come into compliance voluntarily,
16 OCR may initiate proceedings to withdraw Federal funding by
the Department or refer the case to the U.S. Department of
17 Justice for litigation. Dear Colleague Letter at p. 16.
18 31. This portion of the Dear Colleague Letter has been described as the first

19 warning shot that OCR intended to punish those schools that failed to handle sexual

20 assault proceedings as OCR wanted, and the head of OCR has made clear that she will

21 go to enforcement, and [is] prepared to withhold federal funds. 31

22 32. In January of 2014, the White House put further pressure on colleges and

23 universities to prevent and to police sexual violence on their campuses by creating a task

24 force of senior administration officials, including the U.S. Attorney General and the

25 secretaries of the Departments of Education, Health and Human Services and Interior, to

26
27 theory/wp/2015/10/13/why-we-made-yes-means-yes-california-law/?utmterm=.0cc0af651234.
31
NPR, How Sexual Assaults Came to Command New Attention (Aug. 13, 2014),
28 http://www.npr.org/2014/08/12/339822696/how-campus-sexual-assaults-came-to-command-
new-attention.
AMENDED PETITION FOR WRIT OF MANDAMUS
11
1 coordinate federal enforcement efforts. 32 According to The Second Report of the White
2 House Task Force to Protect Students from Sexual Assault issued on January 5, 2017,
3 colleges and universities have a responsibility to protect the rights of accused students
4 and provide a balanced and fair process:
5
6 The procedures schools use to resolve complaints of sexual
assault must be fair so that everyone complainants,
7 respondents, and the entire school community is granted their
right to nondiscrimination and can have confidence in the
8 resolution. A balanced and fair process that provides the same
opportunities for both parties will lead to sound and reasonable
9 decisions. Schools must strike the correct balance between the
rights of the accused and the rights of everyone else on campus,
10 including the complainant and every other student who might
be at risk of harm. Properly designed procedures help ensure
11 that everyones rights are respected. They are important in
creating an academic community that respects the well-being
12 of all students and works for everyone.
13 (Second Task Force Report (January 5, 2017) at p. 16)
14
15 33. In February 2014, Catherine E. Lhamon, the Assistant Secretary of Education

16 who heads the OCR, told college officials attending a conference at the University of

17 Virginia that schools need to make radical change. According to the Chronicle of

18 Higher Education, college presidents suggested afterward that there were crisp marching

19 orders from Washington. 33 The Chronicle of Higher Education noted that Colleges

20 face increasing pressure from survivors and the federal government to improve the

21 campus climate. 34 In the same article, the Chronicle noted that different standards were

22 applied to men and women: Under current interpretations of colleges legal

23 responsibilities, if a female student alleges sexual assault by a male student after heavy

24
32
25 Jackie Calmes, Obama Seeks to Raise Awareness of Rape on Campus (January 22, 2014)
New York Times; Jason Felch and Larry Gordon, Federal Task Force to Target Campus Sexual
26 Assaults (January 22, 2014) Los Angeles Times.
33
27 Colleges Are Reminded of Federal Eye on Handling of Sexual-Assault Cases, Chronicle of
Higher Education, February 11, 2014.
34
28 Presumed Guilty: College men accused of rape say the scales are tipped against them,
Chronicle of Higher Education, September 1, 2014.
AMENDED PETITION FOR WRIT OF MANDAMUS
12
1 drinking, he may be suspended or expelled, even if she appeared to be a willing
2 participant and never said no. That is because in heterosexual cases, colleges typically see
3 the male student as the one physically able to initiate sex, and therefore responsible for
4 gaining the womans consent.
5 34. According to the Chronicle of Higher Education Colleges face increasing
6 pressure from survivors and the federal government to improve the campus climate. 35
7 The University of Maines dean of students has stated that, in the face of such pressure,
8 [s]ome rush to judgment is inevitable. 36 Institutions fear of an OCR investigation and
9 the loss of funding gives OCR considerable leverage and allows OCR to set standards for
10 sexual assault proceedings on nearly all college campuses.
11 35. There is non-governmental pressure as well. Victims advocacy groups have
12 made far more noise than groups advocating the rights of the accused and have, to date,
13 largely controlled the public debate. Again, there are financial considerations here. If a
14 school is perceived as being on the wrong side of the campus rape culture issuesuch
15 as at Stanford, Occidental, and the University of Virginiaapplications can be impacted,
16 alumni and donor giving can slow, reputations can experience harm, and the school
17 suffers. The bottom line is that in this highly politically-charged environment, a schools
18 safer course is to find accused students guilty when charged with sexual assault.
19 F. The Stanford Swimmer Case.
20 36. Another event of significance occurred after the reported incident, but before
21 Jane Roe made her Title IX report, on June 2, 2016, a Santa Clara County Superior Court
22 judge sentenced Brock Turnerthe Stanford swimmerto six months in the county
23 jail after his conviction on three counts of felony sexual assault. There was immediate
24
25
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.
AMENDED PETITION FOR WRIT OF MANDAMUS
13
1 local 37 and nationwide 38 public criticism of the sentence, and the judge was accused of
2 judicial bias in favor of male and class privilege, leading to campaigns for his recall or
3 resignation. A CNN anchor spent most of an hour reading the statement made by the
4 victim at the sentencing hearing. 39
5 G. Wrongful Reports Not Uncommon.
6 37. Not surprisingly, cases of false and wrongful sexual misconduct allegations have
7 been reported, such as Rolling Stones article on Jackie, an alleged rape victim at the
8 University of Virginia. 40 Also discredited, Columbia University student Emma
9 Sulkowicz, who spent her final year at Columbia toting a mattress to protest the
10 universitys supposed failure to punish her alleged rapist. 41 Ms. Sulkowicz even became
11 something of a spokesperson for rape victims and was invited to attend the State of the
12 Union address with Senator Kirsten Gillibrand (D-New York). Then there are the
13 discredited claims of Erica Kinsman and of Kamilah Willingham, who had been featured
14
15
37
16 E.g., Katy Murphy, Light Sentence in Stanford Sexual Assault Causes Outrage, Mercury
News, June 6, 2016, http://www.mercurynews.com/2016/06/06/light-sentence-in-stanford-
17 sexual-assault-causes-outrage/.
38
E.g., Liam Stack, Light Sentence for Brock Turner in Stanford Rape Case Draws Outrage,
18
N.Y. Times, June 6, 2016, http://www.nytimes.com/2016/06/07/us/outrage-in-stanford-rape-
19 caase-over-dueling-statements-of-victim-and-attackers-father.
39
Id.
20 40
A Rape on Campus by Sabrina Erdely was published in the December 4, 2014 issue of
21 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
22 multiple apologies for the story. Columbia Journalism Review featured the article in The Worst
Journalism of 2014.
23 41
Emma Sulkowicz waited seven months to report her allegations to Columbia University.
24 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
25 sexual assault, but Columbia University found him not responsible for those claims as well. On
April 23, 2015, Mr. Nungesser sued Columbia University for being complicit in allowing the
26 harassment from his accuser, which significantly damaged, if not effectively destroyed Paul
27 Nungessers college experience, his reputation, his emotional well-being and his future career
prospects. The lawsuit includes dozens of Facebook messages between the two former friends
28 and many declarations of Ms. Sulkowiczs love for Mr. Nungesser before and after the alleged
rape.
AMENDED PETITION FOR WRIT OF MANDAMUS
14
1 in the movie, The Hunting Ground. 42 In An Open Letter to Higher Education about
2 Sexual Violence from Brett A. Sokolow, Esq. and The NCHERM Group Partners, dated
3 May 27, 2014, Mr. Sokolow provides examples of sexual misconduct cases where the
4 college or university is holding the male student accountable in spite of the evidenceor
5 the lack thereofbecause they think they are supposed to, and that doing so is what
6 OCR wants. 43 Finally, numerous rights organizations have spoken out on the issue,
7 including the Foundation for Individual Freedom in Education, https://www.thefire.org/,
8 the National Coalition For Men Carolinas (NCFMC), http://www.ncfmcarolinas.com/,
9 Stop Abusive and Violent Environments (SAVE) http://www.saveservices.org/, and
10 twenty-eight Harvard Law School faculty members asserting that new rules violate the
11 due process rights of the accused. 44
12
H. Campus Sex Police and Lack of Due Process in Title IX Cases.
13
38. The pressure is so great on colleges and universities that the NCHERM Group
14
has issued their 2017 White Paper, referring to the current state of campus Title IX
15
investigations as Due Process and The Sex Police. NCHERM points out to college and
16
university Title IX personnel:
17
Maybe you wound up in this role as the result of political
18 pressures real or imagined that make you feel like you need
19 to be policing student sexual mores. Or, for some of you, you
took the 2011 DCL [Dear Colleague Letter] as a license to
20 become the sex police that you always wanted to be. Or, maybe
it has been a gradual and inadvertent shift for you. For
21
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.
AMENDED PETITION FOR WRIT OF MANDAMUS
15
whatever reason, if you have become the sex police, we want
1 you to know that The NCHERM Group condemns what you
are doing in the strongest possible terms and entreats you to
2 change your thinking and your practices. Our tone in this
3 section reflects the gravity and import of the situation.

4 Sex policing isnt working for you. The field is being


hammered by an unprecedented wave of litigation, and higher
5 education is losing! Do you remember the days when judges
were deferential to the internal disciplinary decisions of
6 college administrators? If those days are rapidly receding or
are gone, you have to ask yourselves what role you have played
7 in that. If you are the sex police, your overzealousness to
impose sexual correctness is causing a backlash that is going
8 to set back the entire consent movement.
9 If you dont know what we mean by sex policing, its
happening on two levels: the substantive and the procedural.
10 Procedurally, responding parties need to be accorded the full
measure of their rights. The courts are starting to smack
11 colleges down left and right when due process corners are cut,
bias is in play, and politics motivate the imposition of corrupt
12 outcomes. (NCHERM Due Process and The Sex Police, p.4.)
13
14 PROCEDURAL BACKGROUND
15
A. Summary of UC Irvine Title IX Investigation and Adjudication Policies.
16
39. For the 2016-2017 school year, the University had at least nine sources of
17
written policies and procedures for allegations of sexual assault and related offenses:
18
19 (1) University of California Policy PACAOS-170 Policies Applying to
Campus Activities, Organizations and Students (PACAOS)
20
21 (2) University of California Policy PACAOS-100, Policies Applying to
Campus Activities, Organizations and Students (PACAOS) (Revised
22 December 23, 2015);
23
(3) University of California Policy PACAOS-Appendix-E: Sexual
24 Violence and Sexual Harassment Student Adjudication Framework
(1/1/2016);
25
26 (4) UC Irvine Administrative Policies And Procedures, Sec. 700-17:
Guidelines for Reporting and Responding to Reports of Sex Offenses
27
28 (5) UC Irvine University of California, Irvine Student Adjudication Model
For Sex Offenses And Sexual Harassment (2/9/2016);
AMENDED PETITION FOR WRIT OF MANDAMUS
16
1 (6) University of California's Policy on Sexual Violence and Sexual
Harassment (SVSH Policy (2016)) (issued January 1, 2016, revised
2 11/7/2016);
3 (7) UC Irvine Campus Regulations (available at
4 http://www.policies.uci.edu/policies/index.html
5 (8) UC Irvine Student Code of Conduct available at
6 https://aisc.uci.edu/policies/pacaos/ ; and

7 (9) the UC Irvine website, including http://sexualviolence.uci.edu/faq.html


8
40. According to the University of California, Irvine, UC Irvine University of
9
California, Irvine Student Adjudication Model For Sex Offenses And Sexual Harassment
10
(2/9/2016):
11
The University of California, Irvine is committed to creating
12 and maintaining a community where all individuals who
participate in University programs and activities can work and
13 learn together in an atmosphere free of sexual violence and
sexual harassment. Consistent with its legal obligations under
14 Title IX of the Education Amendments of 1972, the Violence
Against Women Reauthorization Act of 2013, and California
15 Education Code section 67386, the University responds
16 promptly and effectively to reports of sexual violence and
sexual harassment, and takes appropriate action to prevent, to
17 correct, and when necessary, to discipline behavior that
violates the Universitys policy on Sexual Violence and Sexual
18 Harassment. http://www.oeod.uci.edu/policy.html

19 41. The applicable procedures followed by UC Irvine to adjudicate the allegations

20 against John Doe are those contained in University of California, Irvine, Notice of Rights

21 and Options in the Investigation and Adjudication of Sexual Violence and Sexual

22 Harassment Cases and in the University of California's Policy on Sexual Violence and

23 Sexual Harassment (issued January 1, 2016, revised 11/7/2016).

24 42. Respondents were bound to abide by the procedures laid down in the University

25 of California, Irvine policy and in the University of California's Policy on Sexual

26 Violence and Sexual Harassment (January 1, 2016, revised 11/7/2016) (SVSH Policy

27 (2016)).

28 43. The University is a recipient of federal funds and is bound by Title IX and its

AMENDED PETITION FOR WRIT OF MANDAMUS


17
1 regulations.
2 44. UC Irvine acts as a prosecuting agency, however, its policy and processes for
3 sexual misconduct investigation and adjudication do not provide for any presumption of
4 innocence, requiring the accused student to bear the burden to prove himself innocent of
5 the initial allegations.
6 45. The University represents that its grievance procedures and SVSH Policy
7 (2016) concerning sexual assault and related offenses comply with the universitys legal
8 obligations under Title IX of the Education Amendments of 1972, the Violence Against
9 Women Reauthorization Act of 2013, and California Education Code section 67386.
10 46. In addition, all University officials involved in the resolution process will be
11 trained to carry out their roles in an impartial manner in keeping with trauma-informed
12 practices. 45
13
14 B. UC Irvine Title IX Investigators.
15 47. UC Irvine does not rely upon sworn law enforcement officers or licensed private
16 investigators to investigate allegations of rape or other serious student-on-student sexual
17 violence and misconduct. However, California's statutory scheme for regulating the
18 conduct and qualifications of investigators requires licensing for "[A] personwho, for
19 any consideration whatsoever. . . engages in business or accepts employment to furnish,
20 or agrees to make, or makes, any investigation for the purpose of obtaining, information
21 with reference to:
22
23
45
24 See, PACAOS-Appendix-E: Sexual Violence and Sexual Harassment Student Adjudication
Framework, p. 5. Trauma-informed investigating and interviewing include the following key
25 components: 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
26 retraumatization; and 4) providing choice with a goal of empowerment. The Seven Deadly Sins
27 of Title IX Investigations, ATIXA (2016) Trauma-informed investigation practices presume that
the reporting party has actually suffered trauma from the reported event. Challenging or
28 questioning the reporting partys story, or giving negative or blaming responses may cause the
survivor to be re-traumatized and should be avoided.
AMENDED PETITION FOR WRIT OF MANDAMUS
18
(a) Crime or wrongs done or threatened against the United
1 States of America or any state or territory of the United States
of America.
2
3 (b) The identity, habits, conduct, business, occupation,
honesty, integrity, credibility, knowledge, trustworthiness,
4 efficiency, loyalty, activity, movement, whereabouts,
affiliations, associations, transactions, acts, reputation, or
5 character of any person.

6 (e) Securing evidence to be used before any court, board,


officer, or investigating committee.
7
8
48. No person shall engage in the business of a private investigator unless that
9
person has applied for and received a license to engage in that business pursuant to this
10
chapter. Bus. & Prof. Code 7523(a).
11
49. According to the State of Californias Bureau of Security and Investigative
12
Services, to be eligible to apply for licensure as a private investigator, applicants must
13
undergo a criminal history background check through the California Department of
14
Justice (DOJ) and the Federal Bureau of Investigation (FBI) and have at least three years
15
(2,000 hours each year, totaling 6,000 hours) of compensated experience in investigative
16
work, have a law degree or completed a four year course in police science plus two years
17
(4,000 hours) of experience; or have an associate's degree in police science, criminal law,
18
or justice and 2 years (5,000 hours) of experience. Applicants are also required to pass
19
a two-hour multiple-choice examination covering laws and regulations, terminology, civil
20
and criminal liability, evidence handling, undercover investigations and surveillance. 46
21
50. UC Irvine places the entire responsibility for the investigation, prosecution, fact-
22
finding, and adjudication in the hands of non-sworn, non-licensed individuals who act as
23
police, prosecutor, and judge without a hearing.
24
51. This dual or triple role of a single person investigating complaints and presenting
25
or prosecuting the case on behalf of the University and also adjudicating responsibility or
26
guilt, creates a potential conflict that can deprive complainants and respondents of an
27
28
46
http://www.bsis.ca.gov/forms pubs/pi fact.shtml
AMENDED PETITION FOR WRIT OF MANDAMUS
19
1 adequate, reliable, and impartial investigation. Such arrangements have been discouraged
2 by the U.S. Department of Education, Office for Civil Rights and the U.S. Department of
3 Justice Civil Rights Division. Colleges and university are to ensure that individuals who
4 play a role in receiving, investigating, and processing student complaints of sex-based
5 harassment do not have any actual or perceived conflicts of interest in the process. (See,
6 University of Montana, DOJ Case No. DJ 169-44-9, OCR Case No. 10126001, May 9,
7 2013.)
8 1. Single Investigator Model.
9 52. UCI follows the single investigator model in Title IX sexual assault
10 investigations, with one individual acting as detective, judge and jury by single-handedly
11
investigating, determining the facts, and forming an opinion as to whether the respondent
12
is guilty or not of violating the Universitys conduct policy.
13
53. By allowing one person to act in all of these roles, that individuals biases and
14
mistakes may persist in an investigation and adjudication unrestrained.
15
54. At UCI, the Title IX Officer oversees the investigation and designates an
16
investigator who is required to conduct a fair, thorough, and impartial investigation.
17
55. UCIs policies require that during an investigation, the complainant and
18
19 respondent must be provided an equal opportunity to meet with the investigator, submit

20 information, and identify witnesses who may have relevant information

21 56. After conducting a fair, thorough, and impartial investigation, the Title IX

22 investigator makes credibility assessments, analyzes disputed and undisputed facts and
23 other evidence, and recommends whether UCIs policies were violated, applying the
24 preponderance of the evidence standard.
25 57. Since UCIs Student Adjudication Model for Sex Offenses and Sexual
26 Harassment states that formal rules of evidence do not apply, the investigators
27 application of the preponderance of evidence standard is meaningless.
28 58. The investigator prepares a written report that includes a statement of the
AMENDED PETITION FOR WRIT OF MANDAMUS
20
1 allegations and issues, the positions of the parties, a summary of the evidence, findings of
2 fact, and a recommendation regarding whether there are any policy violations. If the
3 complainant or respondent offered witnesses or other evidence that was not considered by
4 the investigator, the investigation report will include an explanation why it was not
5 considered.
6
59. The investigation file must be retained and made available to the parties on
7
request, and may be redacted as necessary to protect student privacy rights.
8
60. Upon completion of the Title IX Investigation, the Title IX Officer and the
9
Office of Student Conduct jointly send to the complainant and the respondent written
10
notice of the investigation findings and the investigators recommended determinations,
11
and a copy of the investigation report.
12
61. Within ten (10) business days of the notice of findings and recommended
13
determinations, the Office of Student Conduct will send written notice to the complainant
14
and respondent setting forth the decision on the charges, policy violations, and sanctions
15
to be imposed.
16
62. If the Office of Student Conduct determines that disciplinary sanctions are
17
appropriate, the sanctions will be determined in accordance with the Universitys
18
19 sanctioning guidelines.

20 2. Appeal from Investigators Opinion.


21 63. The complainant and respondent may contest the decision and/or the sanctions
22 by submitting an appeal. The appeal process, including the appeal hearing should be
23 completed within 60 business days of the date of the notice of decision and sanctions.
24 64. An appeal must be submitted in writing to the designated campus office, as
25 designated in the written letter of notice from the Student Conduct officer within ten (10)
26 business days following written notice of the decision and disciplinary sanctions, if
27 imposed. The appeal must identify the grounds for appealing and contain a brief
28 statement of the reasons supporting each ground for appeal, based on one or more of the

AMENDED PETITION FOR WRIT OF MANDAMUS


21
1 following grounds:
2
i. There was a procedural error in the process that materially affected the
3 outcome, such as the investigation was not fair, thorough or impartial;
4
ii. The decision was unreasonable based on the evidence;
5
iii. There is new, material information that was unknown and/or unavailable
6
at the time the decision was made that should affect the outcome;
7
iv. The disciplinary sanctions were disproportionate to the findings.
8
9 65. If an appeal is submitted, any disciplinary sanctions ordinarily will not be
10 imposed until the appeal process is completed.
11 66. The appeal will be decided at a hearing by an Appeal Body composed of one to
12 three individuals who may be University staff or academic appointees, or non-University
13 officials, such as administrative law judges or experienced investigators.
14 67. Although the Universitys Student Adjudication Model for Sex Offenses and
15 Sexual Harassment explains that the Appeal Body will be appropriately trained, the
16 University does not provide information about what this training entails.
17 68. The Appeal Body will review the information and decide whether it contains
18 sufficient information concerning the grounds for appeal and the reasons related to those
19 grounds. The purpose of this review is not to decide the merits of the appeal but to
20 identify the nature and scope of the issues to be addressed in the hearing.
21
3. Appeal Hearing.
22
69. Not less than ten (10) business days before the appeal hearing, the Hearing
23
Coordinator sends written notice to the complainant and respondent of the hearing date,
24
time, location and procedures. The notice must include a copy of the appeal(s) to be
25
considered at the hearing.
26
70. Prior to the hearing, the complainant and respondent submit to the Appeal Body
27
the information they intend to present at the appeal, including all documents to be
28
presented, the names of all witnesses, and a brief summary of all witnesses expected
AMENDED PETITION FOR WRIT OF MANDAMUS
22
1 testimony. The Appeal Body has the right to call additional witnesses; the Respondent
2 does not.
3 71. During the hearing, the Appeal Body may question the investigator, the
4 complainant, the respondent, and any witnesses as may be appropriate. The investigation
5 report and any supporting documents or materials are entered as evidence at the appeal
6 hearing.
7 72. The complainant and respondent have the opportunity to present the information
8 they submitted prior to the hearing, unless the Appeal Body determines that the
9 information is irrelevant, not in dispute, or unduly repetitive.
10 73. The complainant and respondent have the right to hear all individuals who testify
11 at the hearing and to propose questions to be asked of all individuals who testify at the
12 hearing. The Appeal Body may exclude questions that are unduly repetitive, clearly not
13 relevant, or unduly time consuming.
14 74. The majority of the Appeal Body shall make the decision if consensus cannot be
15 reached.
16 75. The Appeal Body may make its own findings and credibility determinations
17 based on all of the evidence before it.
18 76. The Appeal Body may uphold the findings and disciplinary sanctions, overturn
19 the findings or sanctions, or modify the findings or sanctions.
20 77. If the findings and sanctions are upheld by the Appeal Body, the matter is closed
21 and there is no further right of appeal.
22 78. If, however, the Appeal Boy overturns or modifies the findings or sanctions, the
23 respondent and complainant of the right to submit a limited written appeal to the
24 Chancellor's designee within five (5) business days based on only two grounds:
25 i. Procedural error that materially affected the outcome, or
26 ii. A sanction that is disproportionate to the findings.
27 79. If an appeal is submitted, the other party will receive a copy of the written appeal
28 and may submit a written statement as well.

AMENDED PETITION FOR WRIT OF MANDAMUS


23
1 80. The Chancellors designee will issue a written decision to the complainant and
2 respondent, either granting or denying the appeal. After the Chancellors designee issues
3 their decision, normally within ten (10) business days, there is no further right to appeal.
4 FACTUAL BACKGROUND
5 A. The Sexual Activity
6 81. Jane Roe and John Doe are both undergraduate students at UC Irvine.
7 82. On the evening of March 20, 2016, John Doe met Jane Roe for the second time.
8 The first time Jane Roe and John Doe met was at a house party in the Cornell apartment
9 complex, where they were introduced to each other by another student.
10 83. John Doe thought Jane Roe was attractive and a lot of fun and he later heard
11 from the student who introduced them that Jane Roe said she thought John Doe was cute.
12 84. On March 20, 2016, when Ms. Roe arrived that night to attend a party at a
13 fraternity house she seemed very happy to see John Doe and he was happy to see her.
14 She was full of energy, talkative, very social, and actively participating in conversation.
15 Jane Roe and John Doe got along well that night and both Ms. Roe and Mr. Doe drank
16 alcohol that evening, however, neither of them were stumbling, staggering, slurring their
17 words, or unsteady. When they were leaving the party, Ms. Roe invited John Doe back to
18 her room.
19 85. In her room, Jane Roe and John Doe initially engaged in touching and kissing.
20 Ms. Roe eventually told John Doe directly that she wanted him to "fuck" her and directed
21 John Doe to her desk drawer for a supply of condoms. The couple engaged in sexual
22 activity, including sexual intercourse. Mr. Doe left Ms. Roe in her room early the next
23 morning for a pre-existing commitment. When Ms. Roe woke up at 5:00 a.m., Mr. Doe
24 had already left.
25 86. Facebook messages dated March 21, 2016, the following day, Ms. Roe wrote to
26 John Doe claiming that she could not remember anything. She asked John Doe, If you
27 could let me know everything that happened last night I would really appreciate it :).
28 Mr. Roe stated that she was "worried" her sexual performance had not been "good." She

AMENDED PETITION FOR WRIT OF MANDAMUS


24
1 also expressed satisfaction over a number of absent condoms from her desk drawer,
2 giving the emoticon showing a smiling face with open mouth and smiling eyes. Later
3 that day, Ms. Roe asked Mr. Doe if he knew anyone who could buy alcohol for her.
4 87. After March 20, 2016, Jane Roe and John Doe had no further significant
5 interactions. When they saw each other at a few parties, Ms. Roe gave Mr. Doe a hug
6 and asked him to take a shot of alcohol with her. Although John Doe enjoyed seeing her
7 and they seemed to be on friendly terms, Ms. Roe did not seem interested in a
8 relationship or hooking up again, and John Doe did not pursue her.
9 88. On October 24, 2016, UC Irvine Police Department (UCIPD) stopped Ms. Roe
10 while she was walking intoxicated to another fraternity party, and she told UCIPD that
11 she had been assaulted seven months before. Ms. Roe later stated that she reported John
12 Doe for sexual assault because one of his fraternity brothers had told her, Don't come to
13 parties and force boys to have sex with you. She believed that that John Doe had told
14 his fraternity "brothers" about having sex with her and she got upset.
15 89. On November 3, 2016, John Doe received a Notification Letter from Christopher
16 Coronel, Student Conduct Officer, Office of Academic Integrity and Student Conduct,
17 stating that:
18 This letter is to inform you that we have received allegations
that you may have violated the following University policy
19 specified in the University of California Policies Applying to
20 Campus Activities, Organizations, and Students and UC
Sexual Harassment and Sexual Violence Policy, as
21 implemented in the UCI Guidelines for Reporting and
Responding to Reports of Sex Offenses.
22
POLICY ALLEGATIONS
23
Student Conduct Policies/Sexual Assault - Contact (2016) -
24 "Without the consent of the Complainant, touching an intimate
body part (genitals, anus, groin, breast, or buttocks), unclothed
25 or clothed."
26 Student Conduct Policies/SVSH - Other Prohibited Behavior
(2016) - "a. Invasions of Sexual Privacy i. Without a persons
27 consent, watching or enabling others to watch that persons
nudity or sexual acts in a place where that person has a
28 reasonable expectation of privacy; ii. Without a persons
AMENDED PETITION FOR WRIT OF MANDAMUS
25
consent, making photographs (including videos) or audio
1 recordings, or posting, transmitting or distributing such
recorded material depicting that persons nudity or sexual acts
2 in a place where that person has a reasonable expectation of
3 privacy; or iii. Using depictions of nudity or sexual activity to
extort something of value from a person. b. Sexual intercourse
4 with a person under the age of 18. c. Exposing ones genitals
in a public place for the purpose of sexual gratification. d.
5 Failing to comply with the terms of a no-contact order, a
suspension of any length, or any order of exclusion issued
6 under this Policy."
7 Student Conduct Policies/Sexual Assault - Penetration (2016)
- "Without the consent of the Complainant, penetration, no
8 matter how slight, of the vagina, anus, or mouth by a penis; or
the vagina or anus by any body part or object."
9

10
Summary of Allegations: It is alleged that [John Doe] sexually
11 assaulted [Jane Roe] in her room in Mesa Court on March 20,
2016.
12
90. During the investigation, Mr. Doe learned for the first time that Ms. Roe, a
13
student in her third quarter of her freshman year, was a month shy of her 18th birthday at
14
the time of the encounter in March 20, 2016.
15
91. The Title IX report was investigated by OEOD, including Title IX investigator
16
Tierney Anderson, who issued an investigation report on January 27, 2017, concluding
17
that Mr. Doe was responsible for all three charge policy violations. 47
18
19 B. Procedural Error in the Title IX Process, based on lack of Due Process.
20 1. Improper Character Evidence:
21 92. In her report, Title IX investigator Tierney Anderson improperly included
22 character evidence against the accused student, but not against the complainant, including
23 hearsay statements from unidentified, secret Witness 4. The purpose of including these
24 anonymous statements is to improperly show the accused male student in a bad light.
25 2. Investigation Not Impartial:
26 93. A review of Title IX investigator Tierney Anderson shows that she challenges
27
47
28 2011 Dear Colleague Letter: Sexual Violence, p. 3; See also The 2017 NCHERM Group
Whitepaper, Due Process and the Sex Police, p. 2.
AMENDED PETITION FOR WRIT OF MANDAMUS
26
1 the accused male student to explain the purpose or intent behind Jane Roes allegations
2 and statements, but doesnt challenge the female complainant regarding inconsistencies
3 in her statements and behavior or challenge her to explain the purpose or intent behind
4 Mr. Does statements. This is consistent with the trauma informed training and
5 investigation practices required by the University. 48 The questioning is neither impartial
6 nor balanced, as if Title IX investigator Tierney Anderson assumes that the allegations
7 are true and that the accused male student is guilty, or responsible, unless he can prove
8 himself innocent to Ms. Anderson.
9 3. Withholding of Evidence from Respondent:
10 94. Title IX investigator Tierney Anderson made her decision based on hearsay
11 statements from unidentified witnesses. Due Process at a minimum must allow an
12 accused student a reasonable opportunity see the evidence in order to respond. No
13 student could possibly respond to charges, challenge the evidence, and present a defense
14 without knowing what the evidence is or the identity of the witnesses. Title IX
15 Investigator Tierney Andersons concealment of the identity of the witnesses deprived
16 Mr. Doe of Due Process and a reasonable opportunity to respond to the charges and
17 present his defenses. . . . requiring [the accused student] request access to the evidence
18 against him does not comply with the requirements of a fair hearing. Doe v. University
19 of Southern California, supra, 246 Cal.App.4th at 245-246, citing Goss v. Lopez (1975)
20 419 U.S. 565, 577 [for suspensions of less than ten days from high school, students are
21 not entitled to confront and cross-examine witnesses].)
22
4. Failure to weigh the evidence:
23
95. Investigator Tierney Anderson did not actually weigh reliable, probative, and
24
substantial evidence as required under Title IX, but rather selectively points only to the
25
evidence that tends to support the initial allegations of the survivor. This does not
26
27 48
The Seven Deadly Sins of Title IX Investigations, ATIXA (2016)
28 https://atixa.org/wordpress/wp-content/uploads/2012/01/7-Deadly-Sins_Short_with-
Teaser_Reduced-Size.pdf
AMENDED PETITION FOR WRIT OF MANDAMUS
27
1 satisfy the Universitys burden of going forward with the evidence and the burden of
2 proving the charges by the greater weight of the reliable, credible evidence. For instance,
3 Ms. Anderson dismisses that Jane Roe initiated the sexual activity in lifting up Mr. Does
4 shirt and saying, "I want you to fuck me" and telling Mr. Doe to use the condoms in the
5 top right drawer of her desk. Title IX investigator Tierney Anderson then requires Mr.
6 Doe to provide an explanation as to why Jane Roe would fabricate or not tell the truth
7 about her own actions and behavior. The accused students inability to explain to the
8 satisfaction of the investigator why a female student might embellish or fabricate
9 regarding her sexual activity to Ms. Andersons satisfaction is not evidence, yet Ms.
10 Anderson believes this to weigh heavily against Petitioner.
11 5. The decision was unreasonable based on the evidence.
12 96. Title IX investigator Tierney Andersons opinion as to the guilt of the accused
13 male student can only be based on reliable, probative and substantial evidence according
14 to OCR guidance and UC Irvine policy. Here, Ms. Anderson cannot rely on any
15 statements made by Jane Roe because Ms. Roe claims that she was "blacked out" from
16 drinking alcohol and claims not to remember anything. Ms. Anderson does not consider
17 that Ms. Roe may be trying to deflect or excuse her behavior and to assure that Mr. Doe
18 is to blame or was responsible for whatever occurred that night and that Ms. Roe is not
19 responsible for her own behavior. Even Ms. Roes messages the following day indicate
20 that she was more concerned with her sexual performance and Mr. Does opinion of her
21 sexual performance, not that any sexual activity was non-consensual. In fact, the most
22 reliable, probative, and substantial evidence is that Jane Roe initiated the sexual activity
23 when she lifted Mr. Does shirt and said, "I want you to fuck me" and then told Mr. Doe
24 to use the condoms in the top right drawer of her desk. Ms. Roe actively participated in
25 the sexual activity that night. On page 18 and 19 of her report, Ms. Anderson simply
26 adopts her own personal opinion that female complainants have no motive to fabricate,
27 exaggerate, or withhold information, and must be telling the truth, and that accused male
28 students have reason to lie because they will face University discipline. Since this is
AMENDED PETITION FOR WRIT OF MANDAMUS
28
1 always the case, -- that an accused male student will face discipline if found responsible,
2 -- Title IX investigator Tierney Anderson improperly starts with a presumption that the
3 accused male student is guilty, or responsible, and she does not consider statements and
4 evidence that are contrary to the female accusers initial allegations. This shows that: (1)
5 Title IX investigator Tierney Anderson is not an impartial investigator nor impartial
6 adjudicator; (2) that Title IX investigator Tierney Anderson failed to properly weigh the
7 evidence; (3) Title IX investigator Tierney Anderson believes that she is required to pick
8 one student over the other, not to determine if the charges are supported by reliable,
9 probative, and substantial evidence; (4) Title IX investigator Tierney Andersons
10 personal opinion is based on her speculation as to what she believes occurred, rather than
11 whether reliable, probative, and credible evidence supports the Universitys charges.
12 6. Withheld Evidence.
13 97. UCIPD Report #16-1657; UCIPR 16-1662, police reports and Jane Roes
14 statements to UC Irvine personnel in the UCPID. These statements have been requested,
15 but have not yet been provided by UC Irvine. Title IX investigator viewed the UCPID
16 report but did not provide the report to the accused student.
17 98. The records show that Jane Roe seeks through her personal appearance,
18 behavior, and conduct to pass as a person over the age of 18 and discusses drinking and
19 appears in photographs with alcoholic drinks in Mexico where the legal age is 18.
20 99. Respondents have not disclosed the unidentified witnesses interviewed by Title
21 IX investigator Tierney Anderson, nor have Respondents produced to Petitioner the
22 actual statements made by the witnesses, only the narrative summary of what the
23 witnesses said, as commented by the Title IX investigator.
24
7. The disciplinary sanctions were disproportionate to the findings;
25
100. The imposition of the lengthy two-years suspension is solely punitive and
26
deprives John Doe of access to his educational programs and activities, without
27
contributing in a positive way to the UC Irvine community. The impact is loss on income
28
and career advancement and further repercussions, causing damages in excess of
AMENDED PETITION FOR WRIT OF MANDAMUS
29
1 $120,000. With regards to accusations of sexual misconduct, sanctions are only
2 appropriate where the alleged conduct is sufficiently serious to limit or deny a student's
3 ability to participate in or benefit from the school's educational programs and then only to
4 the extent necessary to correct any hostile environment, prevent its recurrence, and
5 remedy its effects. There is no showing that the alleged conduct is sufficiently serious to
6 limit or deny a student's ability to participate in or benefit from the school's educational
7 programs and there are less drastic measures that would eliminate any hostile
8 environment, prevent its recurrence, and remedy its effects. Petitioner has remained on
9 campus with no adverse consequences for over a year since the incident. A sanction that
10 is educational and adds benefit to UC Irvine would better serve the purposes of Title IX
11 and UC Irvine policies.
12
RESPONDENTS ACTIONS AND DECISION ARE INVALID
13
101. On information and belief, Respondents actions, sanctions, and administrative
14
decision are invalid under Code Civ. Proc. 1094.5. and alternatively, Code Civ. Proc.
15
1085, for the following reasons:
16
17
a. Respondent failed to grant Petitioner a fair hearing, or any hearing at all;
18
b. Respondent committed a prejudicial abuse of discretion, in that
19 Respondent failed to proceed in the manner required by law;
20 c. Respondent's decision is not supported by the findings; and
21
d. Respondent's findings are not supported by the evidence.
22
A. Doctrine Of Judicial Non-Intervention Does Not Apply.
23
102. The doctrine of judicial nonintervention into the academic affairs of schools does
24
not apply in instances of non-academic affairs, such as this Title IX investigation and
25
hearing process for alleged violation of UC Irvines misconduct policy. (See Banks v.
26
Dominican College (1995) 35 Cal.App.4th 1545; Paulsen v. Golden Gate University
27
(1979) 25 Cal.3d 803.)
28

AMENDED PETITION FOR WRIT OF MANDAMUS


30
1 B. Respondents Administrative Action Affects Vested Fundamental
Rights.
2
103. Petitioner has a vested fundamental right under Title IX that Petitioner, as well
3
as any similarly situated student, may not be deprived of access to educational programs
4
and activities through an administrative process that does not afford due process, is not
5
fair, impartial, reliable, and equitable, or is overly punitive and not remedial. 49
6
104. UC Irvines administrative process affected Petitioner's right to complete his
7
degree without delay and his fundamental rights under Title IX for access to his
8
educational programs and activities.
9
105. California courts have undertaken to protect vested fundamental rights from
10
untoward intrusions by the massive apparatus of government. (Bixby v. Pierno (1971) 4
11
Cal.3d 130, 142-143.) Here, the massive apparatus is the intrusion and pressure
12
imposed on the University by the U.S. Dept. of Educations, Office of Civil Rights, and
13
since Respondents administrative action substantially affects Petitioners vested,
14
fundamental right to continue his education, the trial court not only examines the
15
administrative record for errors of law but also exercises its independent judgment based
16
upon the evidence disclosed in a limited trial de novo. (Id. at p. 143.) The Court must
17
exercise its independent judgment and find an abuse of discretion if the findings are not
18
supported by the weight of the evidence; in effect, a trial de novo. (Code Civ. Proc.
19
1094.5, subd. (c); Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 219, citing
20
Greenhill v. Bailey (8th Cir. 1975) 519 F.2d 5, 7.)
21
106. A court must determine on a case-by-case basis whether an administrative
22
decision affects a vested fundamental right. (Bixby v. Pierno, supra, 4 Cal.3d at p. 144.)
23
A right is deemed fundamental on either or both of two bases: (1) the character and
24
quality of its economic aspect; or (2) the character and quality of its human aspect.
25
(JKH Enters., Inc. v. Dept of Indus. Rels. (2006) 142 Cal.App.4th 1046, 1059.) Here,
26
Petitioner possesses a vested contractual right to continue to attend UC Irvine
27
28
49
See, Questions and Answers on Title IX and Sexual Violence, OCR, April 29, 2014, p. 29
AMENDED PETITION FOR WRIT OF MANDAMUS
31
1 uninterrupted, free from the reputational harm and stigmatization that inherently
2 accompanies sexual assault allegations and determination of responsibility. This
3 fundamental right is not diminished by Gurfinkel v. Los Angeles Community College
4 Dist. (1981) 121 Cal.App.3d 1, which held that the right to pursue a higher education is
5 not constitutionally protected, 50 this does not mean that the right to pursue a higher
6 education and subsequent career goals, and the liberty interest an individual has in
7 maintaining their reputation, cannot qualify as fundamental vested rights under Code Civ.
8 Proc. 1094.5. (See Goldberg v. Regents of University of California (1967) 248
9 Cal.App.2d 867, 877 (attendance at publicly financed institutions of higher education
10 should be regarded a benefit somewhat analogous to that of public employment.)
11 107. The Title IX administrative action against Petitioner was initiated solely by the
12 University.
13 108. The University and its administrators are solely responsible for any harm to
14 Petitioner caused by the Universitys administrative action.
15 C. Cumulative Impact of Unfairness.
16 In this case, the cumulative impact of the refusal and failure of the University to
17 disclose evidence, the lack of any opportunity to confront or challenge witnesses directly
18 or indirectly, and the absence of the weight of credible, substantial evidence supporting
19 the investigators opinions, have a cumulative effect and demonstrate a notable stench of
20 unfairness. (Rosenblit v. Superior Court, supra, 231 Cal.App.3d at 1445.)
21
D. Respondents Title IX Sexual Misconduct Process is Permeated with
22 Structural Error.
23 109. In maintaining policies and procedures that fail to afford accused students due
24
25
50
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).
AMENDED PETITION FOR WRIT OF MANDAMUS
32
1 process and fail to comply with OCR guidance and Title IX, Respondents Title IX
2 sexual misconduct policing process is permeated with structural error. Structural error
3 has been defined as an error that permeate[s] the entire conduct of the trial from
4 beginning to end, or affect[s] the framework within which the trial proceeds. (United
5 States v. Recio (9th Cir. 2004) 371 F.3d 1093, 1101, citing Rice v. Wood (9th Cir. 1996)
6 77 F.3d 1138, 1141.) Structural errors may go to the very construction of the trial
7 mechanism and include circumstances such as a biased judge, total absence of counsel
8 [or] the failure of a jury to reach any verdict on an essential element. (People v.
9 Anzalone (2013) 56 Cal.4th 545, 554.) Structural errors go to the very reliability of a
10 criminal trial as a vehicle for determining guilt or innocence and are reversible per
11 se. (Id., citing People v. Gamache (2010) 48 Cal.4th 347, 396; see Al Haramain Islamic
12 Foundation, Inc. v. U.S. Dept. of Treasury (9th Cir. 2012) 686 F.3d 965, 988-989 [We
13 do not hold that an error in a civil context can never be structural, but we do hold that the
14 errors here . . . do not undermine the proceedings so fundamentally that we cannot ask
15 whether the error was harmless.].) A structural error requires per se reversal because it
16 cannot be fairly determined how a trial would have been resolved if the grave error had
17 not occurred. (Id.)
18 110. Respondents Title IX sexual misconduct investigation process uses all the
19 nomenclature and has the outward appearance of a fair process, however, the outcome
20 depends entirely on the personal opinion of the sole investigator, based on their own
21 inquiry using trauma-informed investigating and interviewing techniques that assume the
22 survivor is a victim of sexual misconduct as the survivor reported. The Title IX
23 investigator simply highlights evidence that tends to support the initial allegations of the
24 survivor and disregards all contrary and exculpatory evidence, thus seeking to support
25 the survivors allegations with substantial evidence, but not by the weight or
26 preponderance of the evidence as required by Title IX.
27 111. Once the Title IX investigator offers their personal opinion of the accused
28 students guilt or responsibility for policy violations, which occurs before the accused

AMENDED PETITION FOR WRIT OF MANDAMUS


33
1 student is provided access to all the evidence, and without providing the accused student
2 a reasonable opportunity to question adverse witnesses, directly or indirectly, and without
3 any hearing before impartial adjudicators, the die is cast. The burden shifts to the
4 accused student to disprove the Title IX investigators personal opinion by a
5 preponderance of the evidence, an impossible task.
6
7 112. On information and belief, relevant evidence is available that was improperly
8 excluded or unavailable during UC Irvines Title IX disciplinary process. Petitioner will
9 seek leave to offer such evidence before the reviewing court at the hearing on this
10 Petition.
11 113. Petitioner has exhausted all administrative remedies available to him as of the
12 date of filing this Petition.
13 114. Petitioner has no plain, speedy and adequate remedy in the ordinary course of
14 law.
15 115. Petitioner is obligated to pay an attorney for legal services to prosecute this
16 action. Petitioner may be entitled to recover attorneys fees as provided in Code Civ.
17 Proc. 1021.5 and Gov. Code 800 if Petitioner prevails in the within action.
18 116. Petitioner has requested the Respondent prepare and produced the complete
19 administrative record, but Respondent has not yet complied with the request.
20 117. Petitioner will lodge Petitioners Administrative Record from documents
21 available to him and Petitioner reserves the right to supplement and augment his
22 Administrative Record before the time of the hearing on the Petition.
23
24 PRAYER FOR RELIEF
25 WHEREFORE, Petitioner prays the court for judgment as follows:
26 1. For an alternative writ of mandate directing Respondents to set aside the
27 findings and sanctions issued against Petitioner, or to show cause why a peremptory writ
28 of mandate to the same effect should not be issued;

AMENDED PETITION FOR WRIT OF MANDAMUS


34
1 2. For a peremptory writ of mandate directing Respondents to set aside their
2 findings and sanctions against Petitioner;
3 4. For reasonable attorneys fees and litigation expenses as permitted by
4 statute, in addition to any other relief granted or costs awarded;
5 5. For all costs of suit incurred in this proceeding; and
6 6. For such other and further relief as the court deems proper.
7
WERKSMAN JACKSON
8 HATHAWAY & QUINN LLP
9
10 DATED: May 31, 2017 By: ____________________________
Mark M. Hathaway
11
Attorneys for Petitioner
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

AMENDED PETITION FOR WRIT OF MANDAMUS


35