Female Foreign National Sues UC-Berkeley For Due Process Violations in Title IX Case

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KEKER, VAN NEST & PETERS LLP

MICHELLE S. YBARRA - # 260697
2 mybarra@keker.com
KATIE LYNN JOYCE- # 308263 . FILED
3 kjoyce@keker.com ALAMEOAjCOUNTV
ANDREWS. BRUNS - # 315040
4 abn11;is@keker.com FEB 2 J Z019
5
JOSE L. MARTINEZ-# 318540
jmartinez@keker.com CL~RK CJ THE S~,J1RIO~ co~~
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6
ANNA PORTO - # 319903
aporto@keker.com
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. 633 Battery Street
San Francisco, CA 941 11-1809 I
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Telephone: · 415 391 5400
8 Facsimile: 41 5 397 7188
)> 9 Attorneys for Petitioner JANE DOE I
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11 SUPERIOR COURT OF THE STATE OF CALIFOR.i~A
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12 IN AND FOR THE COUNTY OF ALAMEDA !

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13 JANE DOE, an individual, CaseNo. RGl,~09614
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14 Petitioner, VERIFIED PETITION FOR WRIT OF

ADMINISTRATivE MANDAMUS (CCP
15 v. § 1094.5) !.
16 REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
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Respondent.
Daie Filed: Febru~ 27, 2019
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PUBLIC- Redacts Materials From Conditionally S~aled Record
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VERIFIED PETITION FOR WRIT OF ADMINIS1RATIVE MANJDAMUS

Case No.
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• TABLE OF CONTENTS
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2 . I Page
3 INTRODUCTION ....................................................................................... r.................................. l
4 THE PARTIES .............................................................................................. i...................................2
5 JURISDICTION AND VENUE ...................................................................:.................................. .3
6 FACTUAL HISTORY ..................................................................................:................................... 5
7 A. petltloner
.. . h'1p wit. h Jarnes ..................................
' s. Relatlons TI ..................................6
8 B. Petitioner's Relationship with John ..................................... j...................................6
!I
9 PROCEDURAL HISTORY ......................................................................... :................................... 7
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10 A. The Investigations and the CSC's Decisions ....................... J................................... 8
11 B. The Appeals ........................................................................ .J ................................. 11
12 C. . . m
Defi1c1enc1es . the umvers1ty
. . 's Investigahon I
. . ..................... i............................... .. 14
13
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FIRST CAUSE OF ACTION-WRIT OF ADMINSTRATIVE MANDAMUS AGAINST
UC REGENTS ................................................................................. 1................................. 19
14 . I
PRAYER ...................................................................................................... 1................................. 21
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VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

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• TABLE OF AUTHORITIES
•
2 Page(s)
3 State Cases
4 I
Doe v. Allee, [
242 Cal. Rptr. 3d 109 (Ct. App. 2019) ....................................................,...................... 14, 15, 16
5
t
6 Doe v. Claremont McKenna Coll., i
I
25 Cal. App. 5th 1055, 1057-58 (2018) ................................................. .................................. 15
1
7
Doe v. Lincoln Unified Sch. Dist., I
8 188 Cal. App. 4th 758 (2010) ................................................................. :.................................... 1
iI
9 Doe v. Regents of Univ. of Cal., !
5 Cal. App. 5th 1055, 1078 (2016) ......................................................... :.................................. 17
10
Doe v. Univ. of S. Cal.,
11
236 Cal. App. 4th 221 (2016) ................................................................. :.................................. 17
12
Does I thru XXIII v. Advanced Textile Corp., I
I
13 214 F.3d 1058, 1067 (9th Cir. 2000) ..................................................... L ................................. l
14 Regents of Univ. of Cal. v. Superior Court, ~

3 Cal. 3d 529 (1970) ............................................................................... 1................................... 4
15
!
16
Starbucks Corp. v. Superior Court, l
168 Cal. App. 4th 1436 (2008) ............................................................... \................................... 1
17
State Statutes
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Civ. Proc. Code§ 393(b) .............................................................................. J. .................................. 4
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Civ. Proc. Code§ 1094.5 ............................................................................. ..1. .................. 2, 3. 19, 21
20
Federal Statutes
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42 U.S.C § 1983, Title VI ............................................................................. .1................................... 5
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42 ·u.s.c § 1983, Title IX ............................................................................ ..1. .................................. 5
23 1
24 Constitutional Provisions
25 California Constitution Article IX, § 9 ..........................................................i.................................. 3

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26 California Constitution Article VI, § 10 ........................................................1................................... 3
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VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MAND'AMuS I
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INTRODUCTION
2 Petitioner Jane Doe ("Petitioner") 1 seeks a writ of administrative andamus to reverse a
3 groundless two-year suspension imposed by the University of California, erkeley ("the
4 University" or "UC Berkeley") that will have severe repercussions on her 'mmigration status and
5 could lead to her deportation. For 18 months, the University subjected Pe itioner to a biased,
6
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improper Title IX investigative process that it has since revoked in the wtof recent California
7 Court of Appeals cases deeming similar procedures unlawful. As was tru in those analogous
8 cases, the University's procedures violated Petitioner's due process rights I der California law
9 because they failed to provide her with an evidentiary hearing or a neutral, independent
10 factfinder. As a result, she may now lose her immigration status, be force to leave the country,
11 and lose her ability to provide for her family.
12 Petitioner is a foreign national who enrolled
13
14 - after a brief relationship with John Roe ("John"), a classmate. t fter Petitioner
15 infonned John
16 -retaliated with baseless accusations that he had sexually
17 assaulted him. The University responded by opening Title IX investigatiof5 into Petitioner's
18 relationship with John, as well as her relationship with John's friend, James Coe ("James"), who
19 served as a witness in John's investigation.
20 The University's investigations dragged on for more than 18 mont sand were plagued by
21 bias, procedural errors, and misapplications of the Jaw. Petitioner was cleared of any wrongdoing
22
1
23 Petitioner uses the pseudonyms of "Jane Doe," "John Roe," and "James oe" in her Petition "to
preserve privacy in a matter of sensitive and highly personal nature," whic "outweighs prejudice
24 to [the UC Regents]"-who already know Petitioner's identity-and outw ighs "the public's
interest in knowing [Petitioner's] identity." See Doe v. Lincoln Unified Sc~ Dist., 188 Cal. App.
25 4th 758, 767 (2010) (quoting Does I thru XXIII v. Advanced Textile Corp., l4 F.3d 1058, 1067
(9th Cir. 2000)); see also Starbucks Corp. v. Superior Court, 168 Cal. App 4th 1436, 1452 n.7
26 (2008) ("The judicial use of 'Doe plaintiffs' to protect legitimate privacy r~hts has gained wide
currency, particularly given the rapidity and ubiquity of disclosures over t~e World Wide Web.")
27 (citation omitted); Lincoln Unified Sch. Dist., 188 Cal. App. 4th at 766-67 ('The United States
Supreme Court has also implicitly endorsed the use of pseudonyms to prot ct a plaintifrs
28 privacy.") (citing Supreme Court authorities).
VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MA AMUS

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related to the most serious allegations against her, including sexual assault But the University
2 ultimately found Petitioner had violated several of its policies-a conclus~on that was only
3 possible because of numerous material flaws in its handling of these cases! For instance,
I
4 University officials concluded that Petitioner "stalked" John
6 . Throughout the
7 course of the investigations and disciplinary process, the University refus I
8 Petitioner's language limitations and documented health challenges. The University ultimately
9 imposed a two-year suspension (among other sanctions) on Petitioner. BJ because she has
10 already completed the coursework necessary to obtain her degree
11 , the sole effect ofthe suspension is to delay receipt ofPetitioner's
12 diploma u11til May 22, 2020.
13 The effect on Petitioner's life, livelihood, and family is much more serious. Petitioner
14 faces an HlB immigration visa application deadline of April 1, 2019, for hich sh:e must submit
15 proof of her degree. Without her diploma-and without this Court's immediate intervention-
16 she will not qualify for an HIB visa, without which she will lose the emplJyment that is the sole
17 source of income for herself and her family. As for the University, its priJary justification for
18 the two-year suspension remains based on the notion that Petitioner poses! "risk to (the)
19 Berkeley community"-notwithstanding the fact that Petitioner has compl ted her coursework I
20 .and could no longer pose any such risk.
21 By this verified Petition, Petitioner seeks a peremptory writ of adm nistrative mandamus
22 pursuant to Civil Procedure Code§ 1094.5 to compel Respondent Regents of the University of
23 California ("UC Regents") to set aside Petitioner's two-year suspension an immediately issue
24 her diploma. 2 In support, Petitioner fi.trther alleges as follows:
25 THE PARTIES
26 1. Petitioner Jane Doe is a resident of Alameda County and w s at all relevant times a
27 2
In the alternative, Petitioner seeks an alternative writ of administrative m ndamus under Civil
28 Procedure Code § l 094. 5.
2
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student- On April 23, 2018, the University detennined by a prepo derance of the
2 evidence that Petitioner had violated the University of California's Policy on Sexual Violence and
3 Sexual Harassment ("SVSH Policy") and the UC Berkeley Code of Cond ct ("Code of
4 Conduct"). As a result, the University imposed several sanctions, includi g the withholding of
5 Petitioner's diploma through May 22, 2020. Petitioner completed the co+work required to
6 earn her degree , and has a beneficial interest in and is aggrieved by the .
7 University's decision to withhold it.
8 2. Respondent UC Regents is a corporation established by icle IX, section 9 of the
9 California Constitution that governs and operates the Univ·ersity of Califo ia system as a public
10 trust. UC Berkeley is one often University of California campuses, and i1 located in Alameda
11 County. 3
12 3. Non·party John Roe was a classmate of Petitioner's and has since

13 graduated. He was the Complainant in the underlying Title IX investigati n that commenced on
14 August 22, 2017, which is at issue in this writ proceeding.4
15 4. Non·party James Coe was a classmate of Petitioner's and J. hn's-, and has
16 since graduated. He was the Complainant in the underlying Title IX inve igation that
17 commenced on September 19, 2017, which is also at issue in this writ pro eeding. 5
18 JURISDICTION AND VENUE

19 5. This Court has jurisdiction to issue a writ of administrative andamus under Civil
20 Procedure Code§ 1094.5 and article VI, section lO of the California Cons itution.
21 6. Petitioner seeks relief from the UC Regents' imposition of auctions, including its
22 decision to suspend her through May 22, 2020, resulting in the withholdin of her diploma.
23 Because this decision arose at the University, which is located in Alameda County, venue is
24
3
25 For purposes of this Petition, the terms "UC Regents," "UC Berkeley" a d "the University" are
interchangeable.
26 4
The University's investigation as to John's allegations is OPHD Case N . 17-177 and CSC Case
No. 00741-001·2017.
27 5
The University's investigation as to James' allegations is OPHD Case N . l 7· 112 and CSC
28 Case No. 00961·001·2017.
3
VERIFIED PETITION FOR WRIT OF ADMJNISTRATIVE MA •AMUS
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proper in the Superior Court for the County of Alameda. See Civ. Proc. ode§ 393(b); Regents
2 of Univ. ofCal. v. Superior Court, 3 Cal. 3d 529, 537 (1970) (applying se ·lion 393(b)'s venue
3 provision regarding "public officer[s]" to the UC Regents).
4 7. As explained below, Petitioner has exhausted all available dministrative
5 remedies, as detailed in the University's Student Adjudication Model:
6 a. At the conclusion of two Title IX investigations reg ding the allegations
7 against Petitioner, the University's Center for Stude t Conduct ("CSC")

8 issued two Case Outcome Letters, each of which fo nd that Petitioner was
9 in violation of specific provisions of the SVSH Poli y and the Code of

10 C9nduct. In those letters, the CSC imposed sanctio s against Petitioner,
11 which included the withholding of her diploma unti May 22, 2020.
12 b. Petitioner then submitted an appeal of both Case Outcome Letters to an
13 Appeal Hearing Officer, who upheld the CSC's fin togs as to John,
14 reversed-in-part the CSC's findings regarding Jame , and upheld the
15 sanction in both cases.
16 c. Petitioner exercised the last administrative remedy ailable to her when

17 she submitted an appeal of the Appeal Hearing Offi er's decision regarding
18 James to the University's Chancellor.6 Under the U iversity's Student
19 Adjudication Model, the Chancellor's decision shou d have issued within

20 ten business days (i.e., no later than _February 15, 20 9). Instead, on
21 February 15, 2019, the University's Assistant Vice hancellor informed
22 Petitioner that"[d]ue to recent changes in case law, he review of your
23 appeal will take additional time," and that the Unive sity would issue a
24
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Petitioner was not permitted to appeal the Appeal Hearing Officer's deci 'on in John's case
27 because under the University's Student Adjudication Model, where "the fi clings and the
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sanctions are upheld" by an Appeal Hearing Officer, "the matter is closed itb no further right to
28 appeal."
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VERJFIED PETITION FOR WRlT OF ADMINISTRATIVE MANO S
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decision by March 30, 2019. 7 After Petitioner prot sted, the University
2 indicated that the additional six-week delay was "to allow UC to issue a
3 revised interim student adjudication framework"- hich does not yet
4 exist-to which Petitioner reiterated her request for immediate issuance of
5 the Chancellor's decision. See Ex. 15 (Letter from iebylski to Petitioner
6 dated February 21, 2019).
7 8. Petitioner further seeks by this Petition to exhaust her judic al remedies following
8 the University's improper suspension before bringing an action in federal ·ourt for damages and
9 other relief under 42 U.S.C § 1983, Title VI, and Title IX.
10 9. Petitioner seeks a writ of administrative mandamus directing the UC Regents to set
11 aside the University's sanction, resulting in the immediate issuance of her riploma, for which she
12 has already completed the required coursework. Because Petitioner has no plain, speedy, and
13 adequate remedy at law, she requires this Court's intervention.
14 FACTUAL HISTORY
15 10. Petitioner, a foreign national, enrolled- inll. While-, Petitioner

16 lived in the United States pursuant to an Fl visa.
17 11. It is undisputed that Petitioner has completed the coursewo k and other
18 requirements necessary to obtain her degree. But the University is withho ding Petitioner's
19 diploma until May 22, 2020 as a sanction for what it determined-in an a inistrative process
20 riddled with procedural and substantive errors-were violations of the SV · H Policy and the Code
21 of Conduct.
22 12. Petitioner committed no sexual misconduct. The University's errant determination
23 to the contrary not only deprives Petitioner of her rightfully-earned diploml, but will ultimately
24 deprive her of the ability to work and remain in the United States. In orde to stay in the United
25 States after her Fl visa expires in July 2019, Petitioner must apply for an 1B visa before the
26
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27 If the University adheres to this timeline, exhaustion of the University's 1dministrative remedies
would be futile because Petitioner must submit her diploma as part of a vi~~ application no later
28 than April l, 2019---<ine day after the University:s March 30, 2019 dead!,.. See supra ~ 12.

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April 1, 2019 application deadline. In order to qualify for an HlB visa, P titioner must provide
2 proof that she has obtained her degree. If the University does not lift the Jtanction and release her
3 diploma by mid-March, Petitioner will be unable to submit a visa applicat on.
4 13. Without a visa, Petitioner will be forced to leave the count . She will lose her
5 job, and with it, the ability to support herself and her family. She will al4 lose her access to
6 health care, which would preclude her from receiving treatment for a painful chronic health
7 condition.
8 A. Petitioner's Relationship with James

9 14. Petitioner and James met in December 2016 and began dat' g shortly thereafter.
10 On February 13, 2017, they made a mutual decision to end their relations
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21 After that, she ceased communication with him.
22 B. Petitioner's Relationship with John

23 18. Petitioner first met John, another classmate, on . They became close
24 and eventually began dating.
25 19. The couple spent a significant amount of time together in t e final weeks of the
26 2016-17 school year. They frequently slept at each other's apartments and were in near-constant
27 contact via text messages and various messaging apps. During this period, they had sexual
28 intercourse on several occasions, most recently in mid-May 2017. Petition rand John continued
VERIFIED PETITION FOR WRIT O~ ADMINISTRATIVE MAjAMUS

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to conununicate regularly over the sununer, but their relationship began to suffer when Petitioner
2 learned John was also seeing other women. j

3 20. On June 10, 2017, Petitioner and John spoke in his apartm nt building. John
4 invited Petitioner to stay in his apartment that night because she had forgJ en the key to her own,
5 new place. On the way up to his room, they had an argument. Petitioner lepton John's couch
6 that night and left in the morning. This was the end of their relationship. ohn initially accused
7 Petitioner of arriving at his apartment uninvited, sleeping on his couch wi out his pennission,
8 and knocking on his door throughout the night-but subsequently admittei:l that he had invited
9 Petitioner to stay.
10 21. . Thetwo
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17 23. On July 25, 2017, John filed a complaint against Petitione with the University, in
18 which he accused her of sexually assaulting him in April. John had never efore accused
19 Petitioner of sexual assault, and did so only after
20 While investigating John's allegations, the University interviewed James a witness at John's
21 request. After receiving James' testimony, the University sua sponte elect to open a second
22 investigation of Petitioner-despite the fact that James did.not request suer an investigation.
23 PROCEDURAL IDSTORY
24 24. The University's case against Petitioner began on July 25, 1017 with John's
25 allegation of sexual assault, which the University later dismissed as baseler As described
26 below, the University's subsequent investigations lasted more than 18 mo ths.
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VERIFIED PETITION ~OR WRIT OF ADMINISTRATIVE MA AMUS
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A. The Investigations and the CSC's Decisions
2 25. On August 22, 2017, the University issued a Notice of Allegations infonning
3 Petitioner of John's allegations. The same day, the CSC suspended Petiti ner on an interim basis,
4 restricting some of her school-related activities, but allowing her to conti e attending her classes
5 either remotely or in-person. An independent hearing officer upheld the · terim suspension on
6 September 5, 201 7. The University issued an Amended Notice of Allegat ons as to John on
7 September 19, 2017.
8 26. Also on September 19, 2017, the University issued a Notic of Allegations
9 infonning Petitioner of James' allegations. Despite the Code of Conduct' requirement that
10 interim suspensions be crafted such that a student is "restricted only to the minimum extent
11 necessary," the CSC modified Petitioner's ongoing interim suspension to 1among other things)
12 bar Petitioner from attending her classes, even remotely.
13 27. On October 4, 2017, the University held a hearing on the Jdified interim
14 suspension. Ben Fils-a case manager and conduct coordinator with the SC-argued on behalf
15 of the University that the suspension should be upheld. An independent h.aring officer upheld
16 the modified interim suspension on October 6, 2017.
17 28. On January 24, 2018, after repeated requests by Petitioner' counsel, the
18 University's independent hearing officer again modified Petitioner's interi suspension, allowing
19 her to resume attending some classes.

20 29. During this time, Chris Carrubba-Katz, the principal Title investigator for the
21 University of California's Office of the President, conducted the investiga ions as to both Notices
22 of Allegations. The University tasked her with finding facts, evaluating th credibility of
23 witnesses, and reaching conclusions as to whether Petitioner had violated e SVSH Policy and
24 the Code of Conduct. But as detailed below, Ms. Carrubba-Katz declined o ask many of the
25 investigative questions submitted by Petitioner, and failed to follow up wit certain investigative
26 leads. Moreover, throughout the investigations, the University imposed ar itrary restrictions on
27 Petitioner's ability to review documentary evidence collected by Ms. Ca bba-Katz. See, e.g.,
28 supra~ 62. Ms. Carrubba-Katz issued her reports on February 27, 2018 w thout holding an
8
VERIFIED PETITION FOR WRlT OF ADMINISTRATIVE MA
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evidentiary hearing. See Ex. l (Investigative Report re: John Roe case); x. 2 (Investigative
2 Report re: James Coe case).
3 30. As.to John, Ms. Carrubba-Katz found by a preponderance · f evidence that

4 Petitioner violated the SVSH Policy due to sexual harassment, stalking, d violation of a no-
5 contact directive. She also found that Petitioner violated the harassment p, ovision of the Code of
6 Conduct. She recommended that the CSC evaluate whether Petitioner ha · violated the stalking
7 and "failwe to comply" provisions of the Code of Conduct.
8 31. As to James, Ms. Carrubba-Katz found by a preponderanc of evidence that
9 Petitioner violated the SVSH Policy due to sexual harassment, stalking, a d dating violence, and
10 recommended that the CSC evaluate whether Petitioner had violated wea ns and stalking
11 provisions of the Code of Conduct.
12 32. In accordance with the University's Student Adjudication rodel, Petitioner
13 requested a meeting with Mr. Fils to lodge her objections to Ms. Carrubb,-Katz's reports, but
14 subsequently sought extensions of the deadline for the meeting due to midtenns, a death in the
15 family, and acute health issues that forced her hospitalization. The Unive sity nevertheless
16 insisted on scheduling Petitioner's meeting with Mr. Fils only a week afte her release from the
17 hospital. The meeting took place on April 18, 2018. Because Petitioner l:legan speaking English
18 just one-and-a-half years before matriculating- she offered to brink a skilled translator
19 provided by her counsel. The University refused to allow her chosen ~lator to aqend because
20 the translator was also an attorney, though the University could not identir any written policy in
21 support of that position. As a result, Petitioner was accom[panied by a friend-who is conversant
22 but not proficient in--who acted as a translator-for the meeting ith Mr. Fils.
23 33. On April 23, 2018, 166 business days (and 244 calendar d ys) after the
24 investigations commenced, Mr. Fils issued the University's decision in o Case Outcome Letters
25 based on his review of Ms. Carrubba-Katz's reports. See Ex. 3 (Case Outcome Letter re: John
26 Roe case); Ex. 4 (Case Outcome Letter re: James Coe case). He reached Iis decision without
27 holding an evidentiary hearing. As to both John and James, Mr. Fils dete ined by a
28 preponderance of the evidence that Petitioner violated the SVSH Policy a ainst stalking and
9
VERIFIED PETITION FOR WRIT OF ADMJNISTRATIVE
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sexual harassment, as well as provisions in the Code of Conduct related ti harassment.
2 Additionally, in John's case, Mr. Fils determined that Petitioner was resprsible for violating a
3 no-contact directive that issued on July 27, 2017. Mr. Fils reached this co clusion despite
4 acknowledging that Petitioner had no notice of the directive at the time of the purported violation.
5 For each of the substantiated charges, Mr. Fils adopted Ms. Carrubba-Kat 's factual findings.
6 34. Mr. Fils also found several charges unsubstantiated by a pr ponderance-of-
7 evidence standard, including allegations of stalking under the Code of Co duct, in addition to
8 other baseless claims.
9 35. Based on those determinations, Mr. Fils imposed sanctions on Petitioner, including
10 a two-year suspension through May 22, 2020 "to address the behavior an to limit the potential of
11 [Petitioner] subjecting any other members of the current ... student body o a similar hostile
12 environment." But because Petitioner has already completed the coursewtrk required to earn her
13 degree, the sole University-related effect of this sanction is to delay Petitioner's receipt of her
14 . diploma until the end of the sanction period. The University's delay in issLng her diploma also
15 denied Petitioner the ability to walk with her class at commencement.

16 36. The University's Student Adjudication Model states that"[ ]his entire process,
17 beginning with the Title IX investigation through [the CSC's] issuance of he Case Outcome
18 Letter will be completed within 60 business days from [the Office for the lrevention of
19 Harassment & Discrimination, or] OPHD's initiation of the investigation bsent an extension for
20 good cause." The University's investigations related to John and James l+ed 166 and 147
21 business days, respectively (i.e., 244 and 218 calendar days). The Universrty offered no
22 legitimate explanation, let alone "good cause," for these extreme delays. or instance,
23 Ms. Carrubba-Katz unilaterally extended the deadline for her investigation reports from
24 December 1, 2017 to February 27, 2018 based on her own assessment that "good cause" existed
25 for the delay. She identified two justifications for this two-month delay, w ich she deemed
26 sufficient to satisfy the "good cause" standard: James' international vacati ·n plans, and "the fact
27 that [she was] juggling competing priorities, as [was] OPHD."
28
10
VERJFIED PETITION FOR WRIT OF ADMINTSTRATIVE MANDAMUS
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1 B.
•
The Appeals
•
2 37. Under the University's Student Adjudication Model, Petiti ner was entitled to
3 appeal the CSC's decisions to Appeal Hearing Officer Barbara Dalton. P .titioner submitted her
4 appeal, pertaining to both cases, on May 21, 2018. See Ex. 6 (Petitioner's Appeal as to John Roe
5 case); Ex. 7 (Petitioner's Appeal as to James Coe case). As with the inves~igation process, the
6 Student Adjudication Model states that "[t]he appeal process ... includin . the appeal hearing and
7 any appeal to the Chancellor's designee, normally will be completed with' 60 business days."
8 Moreover, the University of California represents that it "will aim to cornp,lete the entire
9 process-investigation, adjudication, and appeal-within 120 business dals from the date the
10 Title IX office receives the report of sexual violence." 8
11 38. For each appeal, Petitioner contested the CSC's findings a~(l sanctions on the four
12 grounds permitted under the University's Student Adjudication Model. Srcifically, she
13 contended that: (1) the investigations were marred by procedural errors thjt materially affected
14 the outcome; (2) the CSC's decision was unreasonable based on the evideTe; (3) the investigator
15 was unaware of new, mitigating evidence; and (4) the sanctions were dispJportionate to the
16 findings. Ms. Dalton, however, rejected most of Petitioner's arguments frJm the outset and
17 permitted only limited arguments regarding certain procedural errors, certain aspects of the
I
18 unreasonableness of the CSC's decision, and a single piece of new mitigat1ng evidence.
19 39. Petitioner made multiple requests to the CSC for her appeal to be expedited due to
20 the extremely time-sensitive nature of her legal status in the country (amo~g other factors).
21 Despite assurances that her appeal would be prioritized, the hearings for thb appeal did not take
22 f
place until more than 150 business days (and 220 calendar days) after the ase Outcome Letters
23 issued. The first hearing took place on November 28, 2018 (for James), a~Cl the second on
24 December 7, 2018 (for John). Ms. Dalton presided over both hearings, ancl neither she nor the
25 CSC offered any justification for this delay.
26
8
27 See University of California, "FAQ: Investigation and Adjudication Mod l for Cases Involving
Students," available at http://sexualviolence.universityofcalifomia.edu/faq lstudent-
28 adj udicati on.html.
11
VERJFIED PETITION FOR WRIT OF ADMINISTRATIVE MAND MUS
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40.
·• •
During the hearings, Ms. Dalton required that Petitioner te tify about complex
2 legal issues without any assistance from her counsel and refused to hear testimony from the
3 expert witness Petitioner had retained.
4 41. Moreover, the University required Petitioner to use unrelia le telephonic
5 translational services during the hearing. These translators repeatedly h g up during the hearing,
6 ignored guidance from Ms. Dalton and Petitioner, and provided incomple e and inaccurate
7 translations. Petitioner was ultimately forced to proceed without a transla or while discussing
8 complex legal topics.
9 42. Another two months passed before Ms. Dalton rendered h decisions on
10 January 28, 2019-192 business days (and 281 calendar days) after Mr. F ls issued his Case
11 Outcome Letters. With respect to John's allegations, Ms. Dalton upheld Nfr. Fils' findings and
12 sanctions in their entirety. See Ex. 8 (Appeal Hearing Officer's decision J John Roe case). In
13 accordance with the University's Student Adjudication Model, Ms. Daltolldeclared the appeals
14 process as to John complete. 9
15 43. With respect to James' allegations, however, Ms. Dalton rel ersed Mr. Fils' finding
16 insofar as he found that Petitioner had violated the SVSH Policy by sexuaJly harassing James.
17 See Ex. 9 (Appeal Hearing Officer's decision re: James Coe case). Even sr, she upheld the
18 sanction based on her determination that it related to other violations that rmained unchanged by
19 her decision. Ms. Dalton declared the appeals process as to James complete. But in an email
20 dated January 29, 2018, Candace Witt, the assistant director for the CSC, ~fom1ed Petitioner that
21 she had a right to submit a written appeal as to James to the Chancellor's designee under the
22 University's Student Adjudication Model.
23 44. Accordingly, on February 1, 2019, Petitioner submitted her appeal of Ms. Dalton's
24 decision regarding James' case to the University's Chancellor. See Ex. 10 (Petitioner's Appeal to
25 Chancellor re: James Coe case); see also Ex. 11 (Letter from Petitioner's lounsel to University's
26 General Counsel re: Appeal to Chancellor dated February 7, 2019). Petitirer submitted a
27
9
28 John also appealed Mr. Fils' decision. Ms. Dalton denied his appeal in it entirety.
12
VERIFlED PETITION FOR WRIT OF ADMINISTRATIVE MA
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• •
request for the administrative record from the University that same day. he administrative
2 record will be submitted and made part of this Petition as soon as the Uni ersity provides it.
3 45. The University's Student Adjudication Model represents t at the Chancellor "will
4 issue a written decision to the complainant, respondent, CSC and OPHD onnally within ten (10)
5 business days.'; But on February 15, 2019- ten business days (and two eeks) after Petitioner
6 submitted her appeal-the University's Assistant Vice Chancellor Anne J nes sent Petitioner an
7 email acknowledging receipt of her appeal, and stating that "[d]ue to rece t changes in case law,
8 the review of your appeal will take additional time." See Ex. 13 (Email fr m Petitioner to
9 University's Assistant Vice Chancellor); see also Ex. 12 (Letter from Peti ioner's Counsel to
10 University's General Counsel re: Appeal to Chancellor dated February 19E2019) at Ex. A (email
11 communication from University's Assistant Vice Chancellor). Ms. Jones her stated that the
12 University would issue a decision by March 30, 2019-more than six wee after the initial ten
13 business days had elapsed. Petitioner replied the same day, reiterating thal she faces an April I,
14 2019 deadline to file her HlB visa application, and that the·sole reason sh was in this time-
15 sensitive circumstance was the University's extreme delay in handling he investigations. See Ex.
16 13.
17 46. On February 19, 2019, Ms. Witt emailed Petitioner and infi nned her that the
18 "University is currently revising its Sexual Violence and Sexual Harassm t Student
19 Adjudication Framework ... in response to recent legal developments." reEx. 14. Noting that
20 "[t]he changes may affect your appeal," Ms. Witt stated that the University was putting
21 Petitioner's appeal to the Chancellor on "pause ... until the revisions are nal." Petitioner
22 replied the following day and, as she did with Ms. Jones, reiterated that sh faces a looming visa
23 application deadline for which she needs her diploma immediately. Id.
24 47. On February 21, 2019, the Assistant Dean of Students and irector of the CSC,
25 Erin Niebylski, infonned Petitioner for a third time that the University's d cision on her appeal to
26 the Chancellor "would take more time than usual" in order "to allow [the niversity] to issue a
27 revised interim student adjudication framework (which is imminent) and t . implement new
28 procedures to carry out the interim framework." See Ex. 15. Ms. Niebyls ·· further stated that the
13
VERIFIED PETITION FOR WRIT OF ADMINlSTRATIVE
1317568
1
• •
forthcoming "revised framework will provide the benefit of a fuller evide tiary hearing in cases
2 such as yours"-a hearing that Petitioner should have been provided at th outset, before findings
3 were already made and a sanction was· already imposed.
4 48. On February 26, 2019, Petitioner reiterated her request for an immediate decision
5 on her appeal to the Chancellor, which should have issued before or on Fjbruary 15, 2019 under
6 the University's Student Adjudication Model.
7 49. The University received John's false sexual assault allegaf on on July 25, 2017.
8 Despite the University's policy of resolving Title IX investigations and a peals within 120
9 business days, and Petitioner's repeated requests that the Chancellor imm diately issue a decision
10 on her appeal, the Chancellor still had not done so as of the filing of this Jetition on February 27,
11 2019-399 business days (and 583 calendar days) after OPHD received J. hn's complaint.
12 C. Deficiencies in the University's Investigation

13 50. The University's administrative process was replete with p ejudicial procedural
14 and substantive errors that deprived Petitioner of fundamental due proces protections. The
15 California Court of Appeal recently underscored the importance of such ~ otections in the Title
16 IX process. See Doe v. Allee, 242 Cal. Rptr. 3d 109, 129 (Ct. App. 2019) Recent press reports
17 have further detailed inconsistencies and flaws in Title IX investigations It California colleges
18 and universities. See, e.g., Exs. 16-19 (articles from the New York Time , Los Angeles Times,
19 and Daily Journal).
20 51. Most glaringly, the University failed to provide Petitioner ith an in-person
21 evidentiary hearing altogether, in a case where the credibility of the partiJs was paramount. See
22 Allee, 242 Cal. Rptr. Jd at 129. On three separate occasions, the Universt recognized that the
23 procedures which had resulted in Petitioner's two-year suspension were lawful. See infra 11
24 45-47. Yet the University continued to withhold Petitioner's diploma- decision at which it
25 arrived through an ad hoc process marred by demonstrable bias against P titioner and a lack of
26 investigative diligence.
27 52. As a result of its failure to provide Petitioner with an evid ntiary hearing, the
28 University also violated its obligation to facilitate a process in which Peti ioner couldpross-
14
VERIFIED PETITION FOR WRJT OF ADMINISTRATIVE AMUS
1317568
• •
examine adverse witnesses who appear in person (or by video) before a n~utral factfinder. See
2 Allee, 242 Cal. Rptr. 3d at 129; Doe v. Claremont McKenna Coll., 25 Cat.: App. 5th 1055, 1057-
3 58 (2018). Moreover, Ms. Carrubba-Katz did not permit Petitioner to adequately question
'
4 adverse witnesses, even through written questions. For example, Petition+r submitted 32
5 questions for Ms. Carrubba-Katz to ask James. Ms. Carrubba-Katz refus, d to ask 28 of those
6 questions, because she mistakenly characterized them as repetitive or not relevant. Ms. Carrubba-
7 Katz also refused to follow up with certain witnesses or on certain theorie~, despite several
8 f
entreaties by Petitioner for her to do so. She also omitted highly relevant estimony from her
9 investigation reports that contained exculpatory evidence as to Petitioner. i Ms. Carrubba-Katz's

!
10 actions left Petitioner powerless to build her defense against the allegatio~s.
11 53. The University also failed to comply with California law bfcause its Title IX
12 system conflates the roles of investigator, prosecutor, and tribunal. The Court of Appeal recently
13 identified due process failures in the Title IX system at the University of Southern California
14 (USC), whose procedures are substantively identical to UC Berkeley's. S?e Allee, 242 Cal. Rptr.
15 3d at 13 7. Like USC, UC Berkeley tasks a single individual with perfom#ng the investigation,
16 making findings of fact, making credibility determinations, and reaching t1 ultimate conclusion
17 as to whether the student violated the school 's code of conduct. Here, the.University designated
18 Ms. Carrubba-Katz as the investigator of Petitioner's cases for the purpose of finding facts- but
19 also charged her with evaluating the credibility of Petitioner, her accusers~ and any witnesses, and
i
20 reaching legal conclusions as to whether Petitioner had violated the SVSI{ Policy and the Code of
I
21 Conduct. Petitioner had the right to lodge objections to Ms. Carrubba-Kaf's findings with
22 Mr. Fils, but that on its own was insufficient to resolve the University's conflation of the roles of
23 investigator, prosecutor, and tribunal.
24 54. The University also imposed undue burdens on Petitioner'~ April 18, 2018
25 meeting with Mr. Fils, during which she registered her objections to Ms. ~arrubba-Katz's reports.
26 Petitioner requested three extensions of the meeting deadline: the first, because she needed more
27 time to review the lengthy reports during midterms; the second, because hb
"
i
28 • to Petitioner- passed away; and the third, because she was hospital!zed
15 ;
1317568
• •
. The University granted the third extension only after Pe itioner provided a
2 medical provider's note, and insisted on rescheduling the meeting for the eek after Petitioner
3 was released from the hospital-despite its awareness that her health problems would prevent her
4 meaningful participation in the meeting. Following the meeting, Mr. Fils 'mposed the two-year
5 suspension at issue in this Petition, based on his unreasonable adoption of Ms. Carrubba-Katz's
6 flawed findings and conclusions.

7 55. The University's investigations of Petitioner were also frau ht with bias, thus
8 depriving Petitioner of a neutral factfinder. See Allee, 242 Cal. Rptr. 3d a 136-37. Several
9 witnesses expressed both racial animus and misogynistic sentiment towar Petitioner throughout
l0 the course of the investigation. Ms. Carrubba-Katz contributed to the pro ,lem by amplifying
11 these sentiments in her handling of the investigation. For example, in dra ing an initial summary
12 of evidence, she dedicated numerous pages to witnesses who offered !en y, offensive, and
13 baseless diatribes about
14
15 56. At the same time, Ms. Carrubba-Katz also excluded highly robative evidence
16 from her investigation reports that would have been favorable to Petitione ,_ One such example is
17 an October 2017 email from John's ex-girlfriend, who explained to Ms. C rrubba-Katz that John
18 "exaggerate[s] his emotions" and is "committed to the notion that as a whte male he is victimized
19 by society." Ms. Carrubba-Katz chose not to include this information in her report because she
20 deemed it "irrelevant."
21 57. Ms. Carrubba-Katz also repeatedly conducted the investiga ions in a mannerll
22 . She sought to humiliate Petitiorr by asking invasive,

23 irrelevant questions about her sexual history under the guise of carrying or an official university
24 investigation. As one example, Ms. Carrubba-Katz interviewed a sexual partner of Petitioner' s
25 about his consensual sexual contact with Petitioner, despite the clear lack ·f relevance to the
26 investigation. Ms. Carrubba-Katz specifically asked this man what sexual positions the two used
27 during intercourse and whether Petitioner had performed oral sex. Over P titioner's objections,
28 Ms. Carrubba-Katz then published these irrelevant and invasive details in vidence summaries
16
VERIFIED PETITION FOR WRJT OF ADMINISTRATIVE MA AMUS
1317568
1
•
she sent to Petitioner's accusers and their advisors.
•
2 58. Ms. Carrubba-Katz's biases plainly affected the outcome 0 1 her investigations. As
3 just one example, based on James' testimony in John's case, Ms. Carrubb -Katz opened a new,
4 separate investigation against Petitioner-despite James' testimony that h did not wish to
5 independently pursue charges. Mr. Fils only compounded the problem because he did nothing to
6 counteract Mr. Carrubba-Katz's bias, despite Petitioner's objections.
7 59. The University also repeatedly failed to comply with its o internal rules and
8 policies as required by law. Doe v. Regents of Univ. of Cal., 5 Cal. App.
9 For example, as detailed above, it invariably failed to abide by its own ti elines with respect to
10 the investigation and appeals process, which unreasonably prolonged an a ready inadequate and
11 burdensome administrative process.

12 60. The University also failed to correctly apply its own SVS
13 imposed a disproportionate two-year suspension. The University's polici s state that suspensions
14 are appropriate only in cases of "extraordinarily serious first-time violatio sand for subsequent
15 violations of a serious degree after a warning or disciplinary probation h been administered."
16 Prior to these cases, Petitioner had no disciplinary issues - or elsew ere. Mr. Fils justified
17 the two-year sanction based on tl).e notion that Petitioner posed a "risk to [ he] Berkeley
18 community," disregarding the fact that Petitioner had completed her cours work and degree
19 requirements and would no longer be part of the Berkeley community reg rd less of the sanction
20 he imposed. Furthermore, Ms. Dalton, in upholding the two-year suspens on, inaccurately stated
21 that Mr. Fils had imposed the sanction based on a finding that Petitioner's conduct had invol.ved
22 "force, violence, menace, or duress." Neither Mr. Fils nor any other Univ rsity official made any
23 such finding.
24 61. Moreover, at the initial stages of the administrative process the University failed
25 to provide Petitioner with adequate notice of the allegations against her as equired by law. See
26 Doe v. Univ. ofS. Cal., 236 Cal. App. 4th 221 , 248 (2016)_ The Universi 's notices simply
27 alleged a hodgepodge of facts, and then listed the policies that Petitioner ay have violated-
28 leaving her to guess at the University's legal theories and the actual substa ce of the specific
17
VERIFIED PETITION FOR WRIT OF ADMINlSTRATIVE MA
1317568
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charges against her. The University's failure to make a good-faith effort t relate the factual
2 allegations to the charges vio1ated Petitioner's due process right to notice · f the accusations
3 against her.
4 62. Throughout the entire disciplinary process, the University nforced burdensome
5 and arbitrary requirements that rendered Petitioner unable to review the le gthy administrative
6 record, let alone mount an adequate defense. For example, the procedural restrictions the
7 University imposed on Petitioner's review of the evidence col1ected by M . Carrubba-Katz

8 prevented her meaningful participation in the investigatory process. Initia ly, the University
9 allotted only four hours for Petitioner to review documents in person, and rohibited her from
10 making copies. After Petitioner comp1ained, the University permitted her o use an online
11 document storage and review platform, but still prohibited her from print' g, highlighting, or
12 annotating the documents-all of which were non-searchable and which n bered in the
13 thousands.
14 63. Furthermore, at critical junctures in the disciplinary proces , the University

15 prevented Petitioner's meaningful participation and undercut her ability to defend herself by
16 unduly and arbitrarily restricting the manner she translated proceedings. r instance, at the
17 April 18, 2018 meeting with Mr. Fils, the University represented- withou any citation to a
18 written University policy-that it would not permit Petitioner to bring her referred translator,
19 who was also an attorney. Petitioner was forced to use the translation ser ces of a friend who
20 was not proficient-. The University later cited the same non-exi tent policy when it
21 prevented Petitioner from bringing her prefened translator to the appeals ~arings, and instead
22 procured for Petitioner a telephonic translation service that repeatedly cha ged translators, cut out
23 due to poor reception, and was unable to translate common words and phr ses.
24 64. Additionally, at Petitioner's appeals hearings, the Universi also prohibited her
25 from presenting an expert witness on sexual harassment Jaw that she had r tained-even though
26 the Appeal Hearing Officer expressly asked Petitioner to address "[l]ega] s urces of infonnation
27 about sexual harassment" in relation to
28 - meets "the definition of sexual harassment . .. found in UC's VSH policy."

18
VERIFIED PETITION FOR WRIT Of ADMINISTRATIVE MANDAMUS
131 7568
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FIRST CAUSE OF ACTION-WRIT OF ADMINSTRATIVE MA}NDAMUS AGAINST
UC REGENTS
2
3 65. Petitioner realleges and incorporates here by this reference he allegations of

4 paragraphs 1 through 64 above.
5 66. The findings of fact and decisions outlined in the UC Rege ts' April 23, 2018
6 Case Outcome Letters are invalid under Civil Procedure Code§ 1094.5. irst, the UC Regents
7 committed a prejudicial abuse ofdiscretion insofar as it failed to procee in the manner
8 required by law because:
9 a. the University failed to provide an in-person evide iary hearing, let alone
10 a process in which Petitioner could cross-examine dverse witnesses who
11 appeared in person (or by video) before a neutral fa tfinder, see, e.g., infra
12 ml 51-52;
13 b. the University's Title IX procedure conflates the roe of investigator,
14 prosecutor, and tribunal, see, e.g., infra 153;
15 c. the University deprived Petitioner of a neutral factfi der, see, e.g., infra 1
16 52, 55-58;
17 d. the University repeatedly failed to comply with its
18 policies, see, e.g., infra,, 59-60, particularly with espect to its extreme
19 delays in conducting the disciplinary process, see, e g., infra 1136-37, 39,
20 42,45-39; and
21 e. the University failed to provide Petitioner with ade uate notice of the
22 allegations against her, see infra, e.g., 161.
23 67. Second, the UC Regents denied Petitioner a fair hearing cause:
24 a. the University failed to provide an in-person eviden iary hearing, let alone
25 a process in which Petitioner could cross-examine verse witnesses who
26 appeared in person (or by video) before a neutral fa tfinder, see, e.g., infra
27 1151-52;
28 b. the University omitted from its investigative report relevant testimony that
19
VERJFIED PETITION FOR WRIT OF ADMINISTRATIVE MAN AMUS
1317568
• •
contained exculpatory evidence as to Petitioner, se e.g., infra~~ 52, 56;
2 c. the University's Title IX procedtire conflates the roe of investigator,
3 prosecutor, and tribunal, see, e.g., infra~ 53;
4 d. the University imposed undue burdens on Petitione 's meeting with the
5 CSC, in which she registered her objections to the ,dverse findings within
6 the University's investigative reports, see, e.g., infr. , 54;
7 e. the University deprived Petitioner of a neutral fac der, see, e.g., infra ii,
8 52, 55-58;
9 f. the University failed to provide Petitioner with ade uate notice.of the
10 allegations against her, see, e.g., infra~ 61;
II g. the University enforced burdensome and arbitrary requirements that
12 prevented Petitioner from reviewing the lengthy ad!
I inistrative record and
13 mounting an adequate defense, see, e.g., infra~ 62; and
14 h. the University prevented Petitioner's meaningful p icipation in its
15 disciplinary proceedings by unduly and arbitrarily rlstricting the manner in
16 which she translated proceedings, and by prohibitin her from presenting
17 an expert witness, see, e.g., infra~~ 63-64.
18 · 68. Third, the UC Regents committed a prejudicial abuse ofdrcretion insofar as its
19 decisions were not supported by its findings and the findings were not SUr'POrted by the
20 evidence because:
21 a. the University's findings were materially incomplete due to the

22 University's failure to follow up with certain witn+es or on certain
23 theories, and due to its omission of highly relevant jstimony that
24 contained exculpatory evidence as to Petitioner frol its investigative
25 reports, see, e.g., infra~, 52, 56; and
26 b. the University's findings-and thus its decisions- ere unreliable because
27 they were marred by the investigator's bias, see, e. ' infra n 52, 55- 58.
28 69. Petitioner further intends to move ex parte for a stay of the niversity's
20
VERJFIED PETITION FOR WRIT OF ADMINISTRA TJVE MA
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1
• •
suspension during the pendency of this Petition under Civil Procedure Co' e § 1094.S(g), resulting
2 in the immediate issuance of her diploma. Under section l 094.S(g), such elief may be granted
3 unless the "the court is satisfied that it is against the public interest." Peti ·oner currently lives in
4 the United States pursuant to an Fl visa, which will expire in July 2019. ee infra,, 10. In order
5 to stay in the United States, Petitioner must apply for an HlB visa before he April 1, 2019
6 application deadline-and in order to qualify for the H 1B visa, she must s ow proof that she has
7 obtained h e r - degree. See infra, 12. If the University does not li the sanction and
8 release Petitioner's diploma by mid-March 2019, Petitioner will be unabl to submit a visa
9 application. See infra, 12. If Petitioner does not submit a visa applicatio , she will have no
10 legal basis upon which to remain in the United States and will likely be fo ced to leave the
11 country. See infra, 13. She will also lose her job-and with it, the ability to support herself and
12 her family-as well as her access to health care. Because such immediate interim relief is not
13 against the public interest, granting Petitioner's imminent ex parte motion for a stay during the
14 pendency of this Petition is appropriate.
15 PRAYER
16 WHEREFORE, Petitioner respectfully prays for judgment as follows.
17 1. For a peremptory writ of administrative mandamus under ivil Procedure Code §
18 1094.5 directing the UC Regents to set aside the University's unlawful fin ings and sanctions and
19 immediately issue Petitioner's diploma;

20 2. In the alternative, for an alternative writ of administrative andamus under Civil
21 Procedure Code§ 1094.5 directing the UC Regents to set aside the Univer ity's unlawful findings
22 and sanctions and immediately issue Petitioner's diploma, or to show caus why a peremptory
23 writ to the same effect should not issue;

24 3. For all costs of suit incurred herein, including out-of-pocke expenses and
25 reasonable attorneys' fees;

26 4. For other, different, or further relief as the Court may deem just and proper.
27
28
21
VERIFIED PETITION FOR WRIT OF ADMINlSTRA TIVE MA AMUS
1317568
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Dated: February 27, 2019 KEKER, VAN NE T & PETERS LLP
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VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MAN • AMUS
1317568
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• ______ __ _ • ,,
VERIFICATION
2 I, Jane Doe, declare:

3 I am the Petitioner in the above-titled action. I have read the foregoin Verified Petition
4 for Writ of Administrative Mandamus and know the contents thereof to be tru of my own
s knowledge, except as to those matters that are alleged on infonnation and bel · f, and as to those
6 matters I believe them to be true.
7 I declare under penalty of perjury under the laws of the State of Califo ·a that the
8 foregoing is true and correct.
9 Executed this 26th day of February, 2019 at San Francisco, California

10
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JANE DOE
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KEKER
VAN NEST
• • Keker, Van Nest & Peters LLP
633 Battery S et
San Francisco CA 94111-1809
415391 5400
6tPETERS keker.com
Michelle Y~arra
(415)676-2,71
mybarra@keker.com
February 7, 2019
CONFIDENTIAL
VIA E-MAIL & U.S. MAIL
Charles F. Robinson
General Counsel
University of California
Office of the President
1111 Franklin St., 8th Flr
Oakland, CA 94607
Re:
Dear Mr. Robinson:
After more than eighteen~' nearly all the charges were fo

unsubstantiated. T h o u g h - completed her coursework in , the
Univ~ nonetheless imposed a sanction that delays issuance of her degree or two years.
As a - national, if our client does not receive her diploma before the Apri 1, 2019
deadline for HIB visa applications, the suspension will have serious ramification on her ability
to remain in the United States. We have repeatedly urged University officials to eleasell
diploma based on the pervasive deficiencies in the Universi 's
investigation, but those attempts have fallen on deaf ears. We are thus compelle to ask that you
direct the Chancellor to release diploma inunediately. e additionally
request that the University promptly prepare the administrative record in both cas s involving
our client. 1
Background
We have set forth the background of these investigations in our letters dated Janu 16, 2018
1
OPHD No. 17-177, CSCNo. 00741-001-201 7; OPHD No. 17-112, CSC No. 00 61-001-2017.
1317690
February 7, 2019
Page2
• • cpNFIDENTIAL
VIA E-MAa & U.S. MAa
th ring of 2018-ten montlls after the University originally provided

with notice oalle -ations
fae ainst her-the Center for Student Condu t (CSC) issued
• ns finding that had violated University policies ag. · t sexual
harassment and stalking. The CSC oun a other charges unsubstantiated, inclu · g
Complainants' alle tions of sexual assault, dating violence, physical abuse, and e of a
weapon. appealed, requesting that her case be handled o an expedited
basis given e potenhal unpact on her immigration status. That request went eeded; on
January 29, 2019, the Appeal Hearing Officer issued decisions refusing to mo · the imposed
sanctions, taking more t/1an 191 business days lo complete tire appeal process /1ree times
lo11ger titan is provided by University policy. See Student Adjudication Model roviding that
the appeal process ''normally will be completed within 60 business days").
Failings ofthe Untversi{Jl's /nvestigafio11
The University's proceedings a g a i n s t - were rife with defic encies,

including violations of state and fede~ty's own policies, as well as
pervasive racial and gender bias.
First, the University failed to p r o v i d e - with a fair hearing d thereby

deprived her of due process. The Ca~ recently has held th t where, as
here, a student accused ofsexual misconduct faces severe disciplinary sanctions, d the
credibility of witnesses is central to the case, "fundamental fairness requires" tha the university
allow the accused to cross-examine witnesses "al a /tearing in wllicll Ille wit11ess s appear in
person or by ot/1er mea11s ••• before a neutral adj11dicator." Doe v. Allee, 242 al. Rptr. 3d
109, 113 (Ct. App. 20~Here, the University failed to provi any
evidentiary hearing t o - even though the findings were exp citly based
upon credibility determinations. See e.g., Rept. of Investi ation at 91 eb. 27, 2 18)(emphasis
added) (finding the complainant ''highly credible" and "l s credible").
These findings impermissibly led to sanctions against wi out giving her
the opportunity to present her case before a neutral adjudicator.
Second, the University failed to provide with a neutral, ·

investigation. The Court of Appeal has explained that an accused student's "righ of cross-
1317690
February 7, 2019
Page3
• • "'
examination" is not effectively implemented by "a si11gle individual acting as i estigator,

prosecutor, factjinder a11d sentencer." Doe v. Allee, 242 Cal. Rptr. 3d at. 136. every
procedures the Court has cautioned against were used in this case, where the pro ecution,
investigation, factfinding, and adjudication were all conducted by a single inve gator, Chris
Carrubba-Katz. Indeed, Ms. Carrubba-Katz provided notice of the initial charge , conducted
telephonic interviews of our client her accusers and the witnesses, made factual dings, and
ultimately concluded that violated the University's polic · s and Code of
Student Conduct.
Third, Ms. Carrubba-Katz's conflicting roles are made more troubling in light o the gender and
racial bias she - la ed·
a ainst
s our client, which we have detailed to you previo ly. During
an interview of , for example, she questioned whether our client had
"ever had sex with any: o er c assmates." Ms. Carrubba-Katz later asked a non a1ty to eit/1er
i11vestigation wltet/1er /1ad performed oral sex on /1im d questioned
our client about her se story m . Ms. Carrubba-Katz also elicited tes · ony from
witnesses that was steeped in racial and gender-based animus, including stat.eme ts that our
client is "not from here and [is] looking to stay," and therefore ta1geted a "white merica11
citizen male wflo might be attracted n These c mments had
no relevance to the case and deprived our client of a neutral, impartial investigati n.
***
Based on the University's failure to p r o v i d e - with a fair h aring and an
impartial investigation as r uired b Califo~ to comport th and fairly
apply its own policies, re uests that her sanctions be redu ed and her
diploma issued immediate y. erwlSe, will be forced t seek relief in
court. Additionally, on February 1, 2019, we file an appeal with Chancellor Carol Christ, a
copy of which is enclosed here. We request to receive the Chancellor's decision · ten business
days, per the ~n model. We welcome the opportunity to s eak with you
further a b o u t - case by phone or in person at your earliest onvenience.
Very truly yours,
~~
Michelle Ybarra
MSY:ap
cc: David Robinson (via email only)

Andrew Bruns (via email 011/y)
Katie Lynn Joyce (via email only)
1317690
• •
EXHIBIT 12
• •
EXHIBIT 12
PUBLIC-
Redacts Materials From Conditi nally
Sealed Record
KEKER
VAN NEST
• • Keker, Van t & Peters LLP
633 Battery S et
San Francisco CA 94111-1809
415 391 5400
6tPETERS keker.com
MicheUe Y~arra
(415) 676-227 1
mybarra@k er.com
February 19, 2019
CONFIDENTIAL
Charles F. Robinson
General Counsel
University of California
Office of the President
1111 Franklin St., 8th Flr
Oakland, CA 94607
Re:
Dear Mr. Robinson:
I write concerning our client , a fonner student at the U ·versity of

California's As you are aware from our letter dated Fe ruary 7, 2019,
the University is withholding degree as a sanction for he alleged
violations of its policies.
In our previous letter, we requested the immediate release of degree,

which is a prerequisite for her HlB visa application due on April 1, 2019. We fu her requested
that pending appeal with Chancellor Carol Christ be res ved within ten
business days, per the University's adjudication model. Both of these requests h e been
ignored. is still without her degree, and the Chancellor h~ failed to
issue a timely decision on her appeal. On Friday, February 15, 2019, the date on hich the
Chancellor's decision was due, the University informed t, at"[d]ue to
recent changes in case law," the Chancellor's office would take until March 30, 2p19-an
additional six weeks-to resolve the appeal, leaving our client with just one day l:lefore the
deadline to complete her HIB visa application. 1 Because the University has l e f t · · · · ·
with no other recourse, she intends to file the e11closed petition for a w it of
administrative mandamus in Alameda County Superior Court on Friday, Fehr ary 22, 2019.2
1
See Ex. A, Email Exchange Between Jones and
2 Our previous
••I (Feb. 15, 20 9).
letter also requested that the University promptly prepare the admi istrative
record in both cases involving our client. OPHD Case No. 17-177, CSC Case No. 00741-001-
1320957
February 19, 2019
Page2
• • CONFIDENTIAL
petition highlights the pervasive flaws in the University' proceedings

against her, including violations of state and federal law and the University's o policies. The
petition additionally outlines the persistent racial and gender bias the University isplayed
against our client. As we previously noted, California courts recently upended iversity
decisions in Title IX cases based on substantially similar facts. See, e.g., Doe v. !lee, 242 Cal.
Rptr. 3d 109 (Ct. App. 2019); Doe v. Carry, No. B282164, 2019 WL 155998 (C . Ct. App. Jan.
8, 2019). Reporting from the Los Angeles Times indicates that "[c]olleges and u iversities
across California are scrambling to revise the way they handle sexual misconduc cases" as a
result of these California court decisions.3 The article-and the University's Feb uary 15 email
to -further make clear that the University of California i itself
reconsidering the unlawful policies that infected our client's cases. We hope the potlight on
these issues and the University's newfound focus on its Title IX processes will al ow us to
resolve case without litigation.
We welcome the opportunity to speak with you about c e by phone or

in person on or before the close of business on Wednesday, February 20, 2019.
Very truly yours,
Michelle Ybarra
MSY:ap
cc: The Office of the Secretary and Chief of Staff to the Regents (via email o ly)
David Robinson (via email only)
Andrew Bruns (via email only)
Katie Lynn Joyce (via email only)
2017; OPHD Case No. 17-112, CSC Case No. 00961-001-2017. As of the date o this Jetter, our
client still awaits the administrative record in both cases.
3
Ruling affirming the rights ofstudents accused ofsexual misconduct roils Calija nia colleges,
LA Times (Feb. 14, 2019), https://www.latirnes.com/local/education/la-me-califo ia·
universities-title-ix-20190215-story.html.
• •
From:
To:
Cc:
Subject!
D1te:
--
vcsa@bedseley.edu
bfils@ber!se!ey.eciu: Andrew s. Bruns: Katie Lynn Joyce
Re: Notification ri Receipt of Appeal and Extension
Friday, February 15, 2019 4:09:10 PM
Ms. Jones:
Thank you for your email. While I am aware of the recent changes in case law dam glad to
hear that the University is rethinking its procedures and my cases in light of those rulings, the
six-week extension for the Chancellor's decision is neither reasonable nor feasib e. Under the
Student Adjudication Model, I should have received the Chancellor's decision t day. Instead,
I received your email indicating that I should expect to wait an additional six we ks.
As I stated in my appeal, I face a fast-approaching deadline for my HlB visa ap lication Qll
April l. I need my degree well in advance of that date in order for it to be inclu ed in my
application, which is already being prepared by my employer. Moreover, if the hancellor's
1
decision does not result in the immediate issuance of my degree, I will be forced to pursue
other means of securing that relief, which will take additional time.
Notably, I am only in this time-sensitive circumstance because of the University s delays in

handling these cases, which have dragged on for more than eighteen months. F example, it
took more than eight months from the issuance of the outcome letters in my cas to get the
Appeal Hearing Officer's decisions-even though I requested an expedited appe l, and even
though the Student Adjudication Model dictates that the entire appeal process C eluding a
final decision from the Chancellor) should take 60 business days.
Because of the unique, extreme time sensitivity of my case, please confinn you
decision on my appeal by Thursday, February 21. Please also conftnn receipt o
•
Thank you,
On Feb 15, 2019, at 11:22 AM, Vcsa Departmental <ycsa@berkeley.edu> wrote
This email is sent on behalfofAssistant Vice Chancellor and Chief ofSta Anne
K.F. Jones.
Dear Ms .• ,
I am writing on behalf of Vice Chancellor Sutton to acknowledge that our ffice

is in receipt of your appeal. Due to recent changes in case law, the review f your
appeal will take additional time. You can expect a response on or by Marc 30,
2019.
Sincerely,
•
Anne K.F. Jones, Ed.D.
•
Assistant Vice Chancellor
Chief of Staff
Division of Student Affairs .
University of California, Berkeley
221 Sproul Hall
Berkeley, CA 94720-7117
anoekfiones@berkeley edu
510-643-7639
·. . i
•
I
• I
J
i
I
II
I
.!
i
I
I
I.
I
i
EXHIBIT · 13
• •
EXHIBIT 13
PUBLIC-
Redacts Materials From Conditionally
Sealed Record
Andrew S. Bruns
•
From: Andrew S. Bruns
Sent: Tuesday, February 19, 2019 5:20 PM
To: vcsa@berkeley.edu; annekfjones@ber~
Cc: bfils@berkeley.edu; Katie Lynn Joyce; _
Subject: RE: Notification of Receipt of Appeal and Extension
Ms. Jones,
I write to follow-up on email from Friday, February 15. We have not re eived confirmation of
your receipt of that email and want to make sure you have received it.
Thank you,
Andy
Andrew Bruns 1
Keker, Van Nest & Peters LLP
633 Battery Street
San Francisco, CA 94111 -1809
415 962 8821direct1415 391 5400 main
abruns@keker.com I vcard I keker.com
From:
Sent: Friday, February 15, 2019 4:09 PM
To: vcsa@berkeley.edu
Cc: bfils@berkeley.edu; Andrew S. Bruns <ABruns@keker.com>; Katie Lynn Joyce <KJoyce@kek r.com>
Subject: Re: Notification of Receipt of Appeal and Extension
Ms. Jones:
Thank you for your email. While I am aware of the recent changes in case law and am glad to h ar that the University is
rethinking its procedures and my cases in light of those rulings, the six-week extension for the C ancellor's decision is
neither reasonable nor feasible. Under the Student Adjudication Model, I should have received he Chancellor's decision
today. Instead, I received your email indicating that I should expect to wait an additional six we ks.
As I stated in my appeal, I face a fast-approaching deadline for my HlB visa application on April . I need my degree well
in advance of that date in order for it to be included in my application, which is already being pr pared by my
employer. Moreover, if the Chancellor's decision does not result in the immediate issuance of y degree, I will be
forced to pursue other means of securing that relief, which will take additional time.
Notably, I am only in this time-sensitive circumstance because of the University's delays in handl ng these cases, which
have dragged on for more than eighteen months. For example, it took more than eight months rom the issuance of the
outcome letters in my cases to get the Appeal Hearing Officer's decisions-even though I reque ed an expedited
appeal, and even though the Student Adjudication Model dictates that the entire appeal proces (including a final
decision from the Chancellor) should take 60 business days.
•
Because of the unique, extreme time sensitivity of my case, please confirm you will provide a decision
by Thursday, February 21. Please also confirm receipt of this email.
I
on my appeal
•
Thank you,
i
On Feb 15, 2019, at 11:22 AM, Vcsa Departmental <vcsa@berkeley.edu> wrote: I
I
This email is sent on behalf of Assistant Vice Chancellor and Chief of Staff Anne K.F. Jones.
======================================== I
D e a r -, I
I am writing on behalf of Vice Chancellor Sutton to acknowledge that our office is in rec~ipt of your
appeal. Due to recent changes in case law, the review of your appeal will take additional time. You can
expect a response on or by March 30, 2019. I
l
Sincerely,

Chief of Staff ·
Division of Student Affairs
221 Sproul Hall
annekfiones@berkeley.edu
510-643-7639
I
II .
I
i
2
• ••
EXHIBIT 14
• •
EXHIBIT 14
PUBLIC-
Sealed Record
Andrew S. Bruns
• •
From: Andrew S. Bruns
Sent: Tuesday, February 19, 2019 5:20 PM
To: vcsa@berkeley.edu; annekfjones@be~
Cc: bfils@berkeley.edu; Katie Lynn J o y c e ; _
Subject: RE: Notification of Receipt of Appeal and Extension
Ms. Jones,
I write to follow-up on email from Friday, February 15. We have not received confirmation of
your receipt of that email and want to make sure you have received it.
Thank you,
Andy
Andrew Bruns
Keker, Van Nest & Peters LLP
633 Battery Street
San Francisco, CA 94111-1809
415 962 8821 direct I 415 391 5400 main
abruns@keker.com I vcard I keker.com
From:
Sent: Friday, February 15, 2019 4:09 PM
To: vcsa@berkeley.edu
Cc: bfils@berkeley.edu; Andrew S. Bruns <ABruns@keker.com>; Katie Lynn Joyce <K.Joyce@kek r.com>
Subject: Re: Notification of Receipt of Appeal and Extension
Ms. Jones:
Thank you for your email. While I am aware of the recent changes in case law and am glad to h ar that the University is
rethinking its procedures and my cases in light of those rulings, the six-week extension for the c ancellor's decision is
neither reasonable nor feasible. Under the Student Adjudication Model, I should have received he Chancellor's decision
today. Instead, I received your email indicating that I should expect to wait an additional six we ks.
As I stated in my appeal, I face a fast-approaching deadline for my HlB visa application on April . I need my degree well
in advance of that date in order for it to be included in my application, which is already being pr pared by my
employer. Moreover, if the Chancellor's decision does not result in the immediate issuance of y degree, I will be
forced to pursue other means of securing that relief, which will take additional time.
Notably, I am only in this time-sensitive circumstance because of the University's delays in handl ng these cases, which
have dragged on for more than eighteen months. For example, it took more than eight months rom the issuance of the
outcome letters in my cases to get the Appeal Hearing Officer's decisions-even though I reque ed an expedited
appeal, and even though the Student Adjudication Model dictates that the entire appeal proces (including a final
decision from the Chancellor) should take 60 business days.
• •
Because of the unique, extreme time sensitivity of my case, please confirm you will provide a decision on my appeal
by Thursday, February 21. Please also confirm receipt of this email.
•
Thank you,
On Feb 15, 2019, at 11:22 AM, Vcsa Departmental <vcsa@berkeley.edu> wrote:
This email is sent on behalf of Assistant Vice Chancellor and Chief of Staff Anne K.F. Jone .
========================================
Dear-,
I am writing on behalf of Vice Chancellor Sutton to acknowledge that our office is in rec ipt of your
appeal. Due to recent changes in case law, the review of your appeal will take additiona time. You can
expect a response on or by March 30, 2019.
Sincerely,

Chief of Staff
Division of Student Affairs
221 Sproul Hall
annekfjones@berkeley.edu
510-643-7639
2
Andrew S. Bruns
• •
From:
Sent: We nes ay, February 20, 2019 10:24 AM
To: cwitt@berkeley.edu
Cc: Andrew S. Bruns; Michelle Ybarra; Katie Lynn Joyce
Subject: Re: Pause Appeal Notification
Candace,
Thank you for this update. I did receive a similar communication from the Chancellor's d signee, Anne Jones,
but Ms. Jones suggested that I may not receive a resolution from the Chancellor's office until March 30, 2019.
Can you please provide more detail of what the timeline is for the completion of the Cha cellar's review? As
you know, the resolution of my case is extremely time sensitive.
I am aware of the recent cases rel at~d to Title IX investigations and am glad to hear that the University is
revising ~s policies in response to those rulings. But a delay of an additional six weeks i not feasible given my
upcoming April 1 visa application deadline. As I have made clear throughout the appeal process, which is now
in its 11 111 month, I must have a resolution from the University well in advance of that Apri 1 deadline. As I
informed Ms. Jones last Friday, because of the looming visa application deadline, if I do ot receive a decision
on my appeal to the Chancellor by this Thursday, February 21 , I will be forced to pursue ther means of
securing the immediate issuance of my degree. My advisors also communicated this tim ng to the University's
General Counsel Charlie Robinson in a letter yesterday.
Please confirm that the University will be able to complete its review of my appeal by to arrow.
..
Best,
On Tue, Feb 19, 2019 at 4:37 PM Candace Witt <cwitt@berkelev.edu> wrote:

Hello.
I believe you have already heard this information from the Chancellor's designee office but I wanted to make sure our
office shared the information with you as well.
The University is currently revising its Sexual Violence and Sexual Harassment Student Adjudica ion Framework
(PACAOS ·Appendix E) in response to recent legal developments. The changes may affect your ppeal. Because of this
possibility, it is Important that we pause the Chancellor Designee review of your appeal until th revisions are final.
While we expect the University will issue the revised procedure very soon, this situation requir s an extension of the
time necessary to complete your appeal. We will contact you about next steps as soon as possi le. Please let me know
if you have any questions or concerns.
Candace
Candace Witt
Assistant Director,
• •
Center for Student Conduct
203 Sproul Hall
Mail Code 2432
Email: cwitt@berkeley.edu
Hours of Operation:
Walk-In Hours:
Monday through Friday - 10:00 AM to 12:00 PM and 1:00 PM to 4:00 PM
Phone: 510-643-9069
The Center for Student Conduct is located on the 2nd floor of Sproul Hall. Please note that the elevator in Sproul is temporarily out af servic for improvements until April. If you
need accommodations and would like to meet with our office pleose visit Sproul Hall room 18 or contact our office at 510-643-9070 or stud ntconduct berkele .edu and we
will work to provide a meeting space on the lower level of Sproul Hall. ·
2
• •
EXHIBIT 15
• •
EXHIBIT 15
PUBLIC-
Sealed Record
UNIVERSITY OF CALIFORNIA, BERKELEY •
BERKELE Y· DAVIS • IRVINE• l.OS ANGELES• MERCED• RIVERSIDE· SAN DIEGO• SAN FRANCISCO
• S NTA BARBARA· SANTA CRUZ
CENTER FOR STUDENT CONDUCT

203 SPROUL HALL
BERKELEY, CALIFORNIA 94720-2432
TEL 510.643 .9069 FAX 510.643.3133
February 21, 2019
SUBJECT: Case Numbers 00741-001 -2017 & 00961-001-2017
Dear . ..
I understand that through your counsel, you have requested an immediate decision f your second-level
appeal in case number 00971-001-201 7 currently pending with the Chancellor's esignee. You were
previously infonned that the decision of that appeal would take more time than usua . The reason for the
additional time is to allow UC to issue a revised interim student adjudication fr ework (which is
imminent) and to implement new procedures to carry out the interim framework. Th revised framework
will provide the benefit of a fuller evidentiary hearing in cases such as yours.
If, despite the offer to proceed to a new hearing, you prefer an mediate decision of the second-level
appeal, the Chancellor's designee wiJl accommodate that preference and will make.e ery effort to decide
that appeal within two business days of your notification of that preference. But as condition of doing
so, we will expect you to waive in writing the right to have the matter considered at a new appeal hearing
under our interim framework.
Note that in the other case on which there is no second-level appeal pending (case
2017), you will have the opportunity to have it re-opened for a fuller evidentiary appe hearing under the
interim framework.
Please email scudentconduct@berkeley.edu by close of business on Monday, Febru 25, 2019 whether
you wish to obtain a decision of the second-level appeal under the current fr ework, with the
understanding that this decision would constitute a waiver of your right to a new appe hearing under the
interim framework in case number 00961-001-2017.
Thank you.
Kind Regards,
Erin Niebylski
Assistant Dean of Students and Director, Center for Student Conduct
•• •
•• •
.I
EXHIBIT 16 I
! .
!
2/2112019 Opinion I I'm a . a t and a Feminist. And I Support Betsy DeVos·· Reforms. - The New York Times
I'm aDemocrat and aFeminist. And

ISupport Betsy DeVosS Title IX l
Reforms. I
I
There is an uncomfortable truth in the current system. No one wants to t~k about it.
l
By Lara Bazelon
Ms. Bazelon is the director of the criminal juvenile justice and the racial justice clinics at the
University of San Francisco School of Law.
I
I
Dec.4, 2018 I
Education Secretary Betsy DeVos's proposed regulations overhauling how colleges handle sexual
I
assault, which may become law in January, are far from perfect. But there is~ big reason to
!
support them: I'm a feminist and a Democrat, and as a lawyer I have seen the troubling racial
dynamics at play under the current Title IX system and the lack of due proce~s for the accused.
' I
Ms. DeVos's proposals take important steps to fix these problems. i
I
Consider this scenario: A young black man enrolls at a state university in Calitornia on an athletic
I
scholarship. He's the first person in his family to go to college. His teammate'$ white ex-girlfriend
!
matches with him on Tinder, comes to his apartment, has sex with him and, t~ey both agree,
returns three days later to have consensual sex. I
I
Weeks later, the young woman, who has reconciled with her boyfriend, claimslthe Tinder match
raped her during the first sexual encounter. The Tinder Match adamantly dentes this. Her
boyfriend, who is also black, says she is lying. There is no hearing, no chance for the accused to
ask her questions. l
But the Title IX investigator concludes that he committed sexual assault by
i
her more fi~ding
credible than him under the preponderance-of-the-evidence standard, under V(hich the accuser
must prove there is a greater than 50 percent chance her claim is true. He's o~e of a few black
students on campus and worries he may get killed after word spreads. !
!
[Discover the most compelling features, reporting and humor writing from The!New I
York Times
Opinion section, selected by our editors. Sign up for the Sunday Best newsletterJ]
This happened in early 2018 to a client in the pro bono clinic I direct with my l~w students. We
represent low-income students of color in California who face expulsion based'. on allegations of
sexual assault.
https:/lwww.nytimes.com/2018112/04/opinion/-title-ix-devos-democrat-feminist.html 1/3
212112019 Opioioo I I'm . . . ' " • Fomloi.i. Aod I S"pport B""y
We see what the Harvard Law School professor Janet Halley described in a 2015 law review
[)OV~·• Roi°'"" -1ho Now Yo~ Tim"
article: "The general social disadvantage that black men continue to carry in pur culture can make
it easier for everyone in the adjudicative process to put the blame on them." T at's why the DeVos
regulations are a step forward.
Here is how they would work. Cross-examination would be conducted by an a viser for the
accused (not, as some coverage has erroneously said, by the accused.) The accuser may sit in a
separate room or participate via videoconference. The right to cross-examine goes both ways: The
accused must also answer questions posed by the accuser's adviser.
The changes would also do away with the problematic "single investigator sy tern" where the
person who interviews the witnesses and gathers the facts also serves as the udge and jury - a .
method the California State University System uses for its 485,000 students a ross 23 campuses.
The revisions are in line with court decisions that have characterized the curr nt system as unfair.
In August, the Court of Appeals for the Sixth Circuit, ruling in a case from Mic igan, declared that
if a public university adjudicates what is essentially a "he said, she said" case, "the university must
give the accused student or his agent an opportunity to cross-examine the ace ser and adverse
witnesses in the presence of a neutral fact-finder:' This year, two California ap ellate courts have
overturned university decisions to suspend students for committing sexual as ault because their
procedures were so lacking in basic due process.
Meanwhile, my client has been barred from campus for more than nine mont s. (His suspension
was based on this allegation and a second allegation by another accuser, whic was found to be
unsubstantiated by the evidence; that accuser is appealing.) The DeVos regul tions and the two
California appellate rulings are most likely his only hope of avoiding an expul ion that would tar
him as a campus sex offender and most likely prevent him from getting into other school.
The current system of adjudicating sexual assault complaints is broken. Unde the rules set up by
the Obama administration, hundreds of colleges, including many in California, were placed under
federal investigation and threatened with the loss of funding for failing to ade uately investigate
sexual assault complaints. The definition of what constituted an assault was v stly expanded.
Nonpunitive resolutions such as mediation were forbidden, even if that is wha both sides wanted.
The Obama rules were written to address a real problem: a tendency by colle es to sweep sexual
assault allegations under the rug. But it also gave risk-averse schools incentiv s to expel the
accused without any reliable fact-finding process.
The Office of Civil Rights does not collect data on race in Title IX cases, but th little we know is
disturbing: An analysis of assault accusations at Colgate, for example, found t at while only 4.2
percent of the college's students were black in the 2012-13 school year, 50 perc nt of the sexual-
violation accusations reported to the school were against black students, and lacks made up 40
percent of the students who went through the formal disciplinary process.
https://www.nytimes.com/2018/12/04/opinion/-title-ix-devos-democrat-feminist.html 2/3
212112019 Opinion I I'm a . r a t and a Feminist. And I Support Betsy OeVos·· Reforms. • he New York limes
We have long over-sexualized, over-criminalized and disproportionately puni .hed black men. It
should come as no surprise that, in a setting in which protections for the accu: ed are greatly
diminished, this shameful legacy persists.
"I've assisted multiple men of color, a Dreamer, a homeless man and two tran . students:' Professor
Halley told me. "How can the left care about these people when the frame is ass incarceration,
immigration or trans-positivity and actively reject fairness protections for th under Title IX?"
We can fix this. The DeVos reforms are in their public comment period, which gives people on all
sides of this debate a chance to weigh in. That is a good thing. I know my allie on the left will
criticize my position, but we cannot allow our political divisions to blind us to he fact that we are
taking away students' ability to get an education without a semblance of due ,rocess. What kind of
lesson is that?
Lara Bazelon (@larabazelon), an associate professor at the University of San Francisco Scho I of Law, is the author of,
most recently "Rectify: The Power of Restorative Justice After Wrongful Conviction."
A version of this article appears in print on Dec. 4, 2018, on Page A31 of the New York edition with the headline: AL ral Case for DeVos's Reforms
READ 932 COMMENTS
https:ftwww.nytimes.com/2016f1 2/04fopinion/-ti11e-ix-devos-democrat-feminist.html 3/3

• •
· - - · · -~.
· EXHIBIT 17
2/21/2019 R•liog ' " """' ~•· of' '"' '"" '''"" ' of " '"'' m•«md•« roil• . .;, co!J,- l °' A"9'• • Tim"
EDUCATION LOCAL
Ruling affirming the rights of student accused

of sexual misconduct roils California olleges
By TERESA WATANABE and SUHAUNA HUSSAIN
FEB 14, 20 19 I 5:05 PM
Pedestrians walk on the USC campus in Los Angeles. A case involving Bryce Dixon, a former USC football player accused of sexual
assault triggered a ruling that's causing California college campuses to overhaul their Title IX procedures. (Patrick T. Fallon/ For The
Times)
Colleges and universities across California are scrambling to revise the wa they handle sexual
misconduct cases after a state appellate court ruled that "fundamental fair ess" requires that
accused students have a right to a hearing and to cross-examine their accu ers.
The decision last month came in a USC case but applies to all California pu lie and private
colleges, and prompted many to immediately halt Title IX investigations w ile they reshape
their procedures. California St. University, the University of c&rnia ~nd USC, Claremont
McKenna and Occidental colleges confirmed that they have made or soon !win be making
changes.
They already had been bracing to do so. In November, U.S. Education Secletary Betsy DeVos
JUQposed controversial new federal rules that would strengthen the rights of the accused in
sexual misconduct cases. The rules would apply to Title IX, which bans di crimination based on
sex in educational programs and activities at schools that receive federal nding.
At many campuses, investigations are conducted in small, private settings Accused students
are not allowed to directly confront their accusers but may pose questions through a Title IX
investigator who meets separately with each of them.
Officials and advocates question how academic institutions will be able to andle proceedings
more common to courtrooms as well as the effects of potentially harsh co frontations between
students. They also wonder about how much new funding, hiring and trai ing will be required
to adapt.
"We're looking at a potential fiasco," said Brett Sokolow, president of the sn. of Title IX
Administrators.
The California court ruling marks the latest twist in the highly contentious arena of campus
sexual assault. Many universities adopted new Title IX procedures in 201 , as directed by the
Obama administration, to become more sensitive to victims - such as ind rect questioning.
Those changes set off a national backlash. Students accused of sexual mis onduct have filed
scores of lawsuits arguing that campuses denied them fair hearings. They ave won cases m
states including California, Ohio, Michigan, Mississippi and New Mexico.
California campuses must immediately comply with the appellate court d1cision, which has
sparked a wide range of reactions.
"It will protect millions of college students in California from losing their qducation in a process
that's arbitrary," said Mark Hathaway, a Los Angeles attorney who has pi l'neered much of the
litigation on behalf of accused students.
At Cal State Dominguez Hills, news that those who report sexual miscond ct could soon be
subject to confrontational hearings unnerved many students interviewed.
"As it is, it's hard to report what happened to you .... " said Mariah Rubira, a senior who was
interviewed as a witness in one campus sexual misconduct case and said t e current process
works well. "#MeToo was big. Aple started to take a stand. I th.this c ange wouldjust 1
push people back into silence."
Suzanne Taylor, University of California's interim systemwide Title IX coo dinator, said UC
began exploring how to create a "fair and compassionate" hearing model a er DeVos unveiled
her proposed rules, but Taylor said the court ruling has given that effort" ore urgency." She
said the process will take time, but the university expects to issue an interi policy in the next
few weeks.
Under UC's current process, questions from both accuser and accused are ubmitted to the Title
IX investigator, who may choose not to ask some questions deemed "hara sing."
"Obviously we have to comply with the law, and we will," Taylor said. "We e really going to do
everything we can to protect both our community and the integrity of our
Cal State, meanwhile, has temporarily stopped proceedings in 75 cases th probably are
eligible for hearings, said Leora Freedman, the system's deputy general co nsel. She said she
did not know yet whether any closed cases would need to be reopened.
Cal State, USC and Claremont McKenna College expect to issue interim po icies soon.
Occidental College has made changes. Stanford already allows cross-exam nation in a hearing.
The case that triggered the ruling involved Bryce Dixon, a former USC foo ball player who was
accused of sexually assaulting a female student in 2014. In a Jan. 4 decisio , a three-member
panel in the Second Appellate District unanimously found that Dixon was tlenied a fair hearing.
(The ruling called Dixon"John Doe," but his attorney, Hathaway, confirmfd his identity.) The
appeals court reversed a trial court ruling that Dixon had violated the student code of conduct
and use did not appeal.
The court ruled that in cases where students are facing "serious discipline, ' such as a
suspension or expulsion, and the credibility of witnesses is key, a universi must permit cross-
examination of "adverse witnesses" at a hearing either in person or via sucl means as
videoconferencing.
The person who investigates the case, the court said, cannot also decide w ether the allegations
are true. That model, used by USC and many other universities, the court uled, improperly
"places in one individual the overlapping and inconsistent roles of investi ator, prosecutor,
fact-finder, and sentencer."
https:/twww.latimes.com/local/education/la-me-california-universities-title-ix-20190215-story. html 3/7

The court ruling appears to all~ cross-examination through a n!ral intlrmediary, but DeVos
wants to let students' advisers on both sides do the questioning.
Scores of universities, including the UC and CSU systems, have voiced opp,osition to such direct
questioning, fearing it would intimidate victims of sexual assault and diss ade them from
coming forward. It's unclear how many universities may now decide to all wit. USC has said it
might. UC and CSU plan to stick with indirect questioning.
"We have no intention ... of putting in place those aspects of those Title IX rules that we believe
would be harmful to our community unless and until we are absolutely leg lly required to do
~ TOPICS i::)J LOG IN
Cal State's Freedman said private meetings with students were more effec 'vein reaching the
truth. "The subject matter of these cases are of a personal, intimate nature It's difficult to talk
about these things," she said.
Linda Hoos, Cal State's systemwide Title IX coordinator, said the universi plans to use
videoconferencing for hearings and train hearing officers to question with ·ut inflaming the
conflicts.
Sokolow, of the Assn. of Title IX Administrators, said most colleges and u 'versities will "find
themselves in over their heads" trying to comply with the court ruling. Cro. s-examinations in
courtrooms, he said, are conducted under strict rules by trained professio als.
He said his organization has been warning California campuses to prepare for change since
2015, when a San DiegQ.judge ruled a Title IX procedure at UC San Diego nfair. (The ruling
was overturned on appeal.)
"This was something that was eminently predictable, and now we've got C1lifornia institutions
behind the curve," he said.
Stephanie Vasquez, 22, a student at Cal State Dominguez Hills, said she feels for campus
victims of sexual assault. When she was 10, she said, an older neighbor trie~ to peer up her
skirt. She tried to tell on him but was brushed off. The experience deeply a ected her.
"I just wanted to be home all the time, I didn't want to go to school anymo because there was
a possibility I would see him," she said, as she relaxed in the campus Worn n's Resource
Center.
•
Vasquez said interrogating victims at a contentious hearing is not the righ way to try to
e [
understand what happened to them. They need more gentle handling in a l:)pace in which they
feel comfortable.
Casey Caprioglio, 24, also of Cal State Dominguez Hills, sees both sides. S1~dents facing
suspensions or expulsions would understandably want hearings, she said.
But Caprioglio also knows what adversarial questioning feels like. Five yeajrs ago, she said, she
had to submit to police questioning in order to get an emergency restrainiljlg order against an
ex-boyfriend.
"It's terrifying, and you feel like they're picking apart everything you're say~ng. They treat you
like you have a reason to lie," she said.
That experience kept her from reporting a sexual assault the folloWing yea~, she said.
Sebastian Hasan, a 22-year-old majoring in radiology at Cal State Dom!ngi~ez Hills, supported
the court-ordered changes.
"As a dude, there are times where a situation can be confusing. You want t<l> make sure it's clear
what happened between those two people," he said. "I think a hearing wou d help show who's
· telling the truth .... If I'm accused of something and I'm innocent, I would ~ant to ask questions
and have the opportunity to talk it out face to face."
Teresa Watanabe
Teresa Watanabe covers education for the Los Angeles Times. Since joining the Times in i989, she !has covered immigration,
ethnic communities, religion, Pacific Rim business and served as Tokyo correspondent and bureau chief. She also covered Asia,
national affairs and state government for the San Jose Mercury News and wrote editorials for the ~s Angeles Herald Examiner. A
Seattle native, she graduated from USC in journalism and in East Asian Languages and Culture.
Suhauna Hussain
Subauna Hussain is a reporter at the Los Angeles Times. Before joining The Times in 2018, she wrc te for the Tampa Bay Times,
the Center for Public Integrity, the East Bay Express, the Chronicle of Higher Education, and indep~ndeot student-run
newspaper, the Daily Californ ian. Subauna was raised in L.A. and graduated from UC Berkeley wit~ a degree in political economy.
·•· •
.1
EXHIBIT 18
• •
EXHIBIT 18
• •
Government.
Education Law. 1:§91
Civil Rights,
Alternative Dispute Resolution
Nov. a. 2018
JAMS launches Title IX resolution program

Alternative dispute resolution provider JAMS has announced a service to adjudicate and i vestigate Trtle
IX complaints in colleges nationwide.
Attachments
.'\
Alternative dispute resolution provider JAMS h announced a
service to adjudicate and investigate Title IX co plaints on
college campuses nationwide.
Title IXprohibits educational programs that re Ive federal

funding from dlscnmlnating on the basis of sex. It also lays out
guidelines for how schools must adjudicate co plaints of sexual
harassment and sexual violence.
The handling of Title IXcomplaints by schools as been

criticized from both sides of the political divide or
inconsistency from institution to institution.
At some schools, victim advocate groups claim e process

sweeps Incidents under the rug and lacks the p per scrutiny of
courts. Conversely, others have said that proce dings lack due
process, resulting In guilt-presumptive kangaro courts pushing
POOLE extrajudicial punishments.
• •
The new program, JAl'AS Solutions for Higher Education, aims to ameliorate the problem for oth sides.
"JAMS Solutions for Higher Education resulted from a crucial need for neutral thlrd partle~ t help address
sensitive issues that are a reality on campuses throughout the nation; Chris Poole, JAMS pr ident and chief
executive officer, said in a news release. "The stakes are too high, and we have solutions. We re committed to
providing our expertise to manage, resolve and prevent these situations.·
The service aims to bring legitimacy to much-maligned Title IX proceedings by providing a utral
perspective from legal experts withoutthe trappings of either a public court or an ad hoc un versicy
committee.
"Many colleges and universities are finding th mselves under

scrutiny and the subject of harsh headlines fo how they've
, handled sexual assault and harassment cases n campus; said
Kimberly Taylor, JAMS' senior vice president a d chief legal and
operating officer. "The #MeToo movement h created a culture
of accountability, and these circumstances are calling for new
ways to deal with often difficult situations.•
The Department of Education has issued guid nee on multiple

' occasions affecting how schools deal with Tit! IX proceedings
since the Jaw was passed.
Most recently, in 2017, Education Secretary Be sy DeVos gave

schools increased individual discretion when s e removed a
requirement that they take interim action duri g the
Investigation of claims, reverting to prior poll where they
·may· do so. Schools may also decide what sta dard of proof to
TAYLOR employ, where previous guidance in 2011 pres 'bed a
preponderance standard.
Though the JAlvtS program was in the works before the 2017 guidance, Taylor said It presents an opening to
introduce consistency in Title IX that benefits both sides.
• •
·we think that because we have a .Jong history of neutrality, we are able to provide a streamlinf alternative
resolution process that w:ill help these schools and their constituents have some trust and get rrough these
things with better results," she said.
Taylor added that JAMS has done this work for colleges in the past and has "a number of schoo s• in multiple
states who are on board already.
John D. Winer of Winer, McKenna, Burritt, & Tillis LLP said the program could be a particular b on to students
whose cases are not suitable for litigation because the statute of limitations expired or there a e issues with
proof. He added that, like any good idea, it comes down to execution.
"I'd be willing to at least look into the idea of trying it, especially in a case not worth litigating,· e said. "From a
plaintiffs point of view, the civil system of justice is great when it's equipped.'
He noted the idea of a JAMS investigation as a good one rather than one done internally by a u iversity.
"All anyone really wants is a neutral investigation, and I think it's difficult for internal people at he university
to perform an unbiased investigation, which I think is true of anyone investigating themselves,· said Winer,
who has handled Title IX litigation.
Andy Serbe
Dally journal Staff Writer
ancl)l.sertle@dallyjoumalcom
• •
· EXHIBIT 19
• • lI
I
I·
EXHIBIT 19
• •
Civil litigation,
Education l aw,
Civil Rights
Dec. 13, 201 8
For a second time this year, 2nd District Court of

Appeal comes down on Title IX investigations
The 2nd District Court of Appeal has overturned a Tiiie IX case, ruling a USC student expeJled as a result
of a sexual assault investigation had his due process rights violated by the school. j
I
I
t
Attachments I
i
. ~
The 2nd District Court of Appeal has overtumei:l a Title IXcase,

I
ruling a USC student expelled as a result of a stjxual assault
investigation had his due process rights violater by the school.
The ruling on Tuesday setting aside the expulslpn follows a

string of California Title IXcases in which the comts have
blasted how thoroughly schools have investlga~d incidents of
se>mal assaults. i
The panel said the school's Ttcle IX lnvestlgator!dld not re-
interviewcritical witnesses, allow for cross-exdrnination, or
request medical records regarding a student, i~ntified as Jane
Doe, who said another student, John Doe, rape~ her during a
night of drinking. \
"Under USC's sexual misconduct review proce~ures, John was

not entitled to a hearing. Instead, the Title IXInvestigator
served as both the Investigator and adjudicator.~ said the
--:-: -- - · · ·" ... _ .. ~ .... . ... ......: .. - ' " ' - - - ' - '"'· ·-·· · - - -- ~ .. · - · · · - · - . , . ....... &..
'
!
''';
•
Mark Hathaway of Hathaway Parker LLP
opinion authored by Justice Dennis Pcrluss, anCf concurred with
by Justices Laurie Zelon and Gail Rudennan Fe er.
John Doe was expelled from t he university after its investigator found he should have known he woman was
too intoxicated to consent to se>.-ual Intercourse. Doe v. University ofSouthern California, 20 8 DJDAR 11753
(Cal. App. 2nd Dist., Dec. 11, 20i8).
In the underlytng ruling siding wlth the school, Los Angeles County Supertor Court Judge Jo ne B. O'Donnell
said John Doe failed to show he was deprived of ha\/lng a neutral arbitrator. The judge ruled t e woman's
testimony was corroborated by two other people. Further, the male student's due process rt ts did not allow
him to cross-examine witnesses or to access her medical records.
The panel said three key witnesses, Including two who observed the area where the se>..11al e counter
occurred, were not intetviewed by the school investigator. Instead, the Investigator, Kegan Al ee, relied on the
summary of another Investigator.
One person said there were puddles of blood on the mattress after a 'paint party,• while anot er said she did
not recall seeing any paint or blood on the floor or mattress. A factual dispute In the case rev Ives around
whether there was blood or paint, or both, at the scene of the incident. Jane Doe had been to paint party
that night.
·or. Allee found [a witness') statement about the apartment and the absence of blood were n t 'sufficiently
reliable; although she never intetviewed [that witness] to inquire about any inconsistencies i her statement
or to assess her demeanor; the opinion said.
The school Y1olated Its own procedures by not requesting Jane Doe tum over her medical rec rds or clothes,
which would have avoided the investigator relying on conflicting statements about the pres ce of blood, the
panel said.
'The real problem is the person that investigates is the person that adjudicates. One lndlvldu essentially acts
as the police, prosecutor and judge; said Mark Hathaway of Hathaway Parker LLP, who repre nts the expelled
student.
Theane Evangells, who represents USC for Gibson, Dunn & Crutcher LLP, did not respond to request for
comment.
Hathaway said the ruling will allow John Doe, who has been unable to finish school since 2014, o gain
admittance Into a university.
The ruling follows the decisions in a handful of other Title IX cases against UC San Diego, Clar mont McKenna
College, UC Santa Barbara, as well as a federal case in Michigan in which the 6th U.S. Circuit C urt of Appeals
said cross-examination is essential.
Earlier this year, the 2nd District Court of Appeal, Division One, found that the accused studen in a case
against Claremont McKenna should have had the chance to question the accuser.
The 4th District Court of Appeal In the UC San Diego case ruled the school had a right to susp nd a student
accused of sexual misconduct, while the expelled UC Santa Barbara student was found by a sta e court judge
to have been denied due process.
:.usods '
Justin Kloczko
Olli)' )ournal SIOff w.ittt
juSlln~llyJoumoLcom

Female Foreign National Sues UC-Berkeley For Due Process Violations in Title IX Case

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·•

KEKER, VAN NEST & PETERS LLP

12 IN AND FOR THE COUNTY OF ALAMEDA !

14 Petitioner, VERIFIED PETITION FOR WRIT OF

VERIFIED PETITION FOR WRIT OF ADMINIS1RATIVE MANJDAMUS

VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

13 214 F.3d 1058, 1067 (9th Cir. 2000) ..................................................... L ................................. l

14 Regents of Univ. of Cal. v. Superior Court, ~

25 California Constitution Article IX, § 9 ..........................................................i.................................. 3

26 California Constitution Article VI, § 10 ........................................................1................................... 3

3 groundless two-year suspension imposed by the University of California, erkeley ("the

11 and lose her ability to provide for her family.

12 Petitioner is a foreign national who enrolled

16 -retaliated with baseless accusations that he had sexually

19 served as a witness in John's investigation.

VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MA AMUS

12 3. Non·party John Roe was a classmate of Petitioner's and has since

18 JURISDICTION AND VENUE

4 7. As explained below, Petitioner has exhausted all available dministrative

5 remedies, as detailed in the University's Student Adjudication Model:

6 a. At the conclusion of two Title IX investigations reg ding the allegations

7 against Petitioner, the University's Center for Stude t Conduct ("CSC")

9 in violation of specific provisions of the SVSH Poli y and the Code of

12 b. Petitioner then submitted an appeal of both Case Outcome Letters to an

15 sanction in both cases.

16 c. Petitioner exercised the last administrative remedy ailable to her when

18 James to the University's Chancellor.6 Under the U iversity's Student

19 Adjudication Model, the Chancellor's decision shou d have issued within

3 revised interim student adjudication framework"- hich does not yet

4 exist-to which Petitioner reiterated her request for immediate issuance of

5 the Chancellor's decision. See Ex. 15 (Letter from iebylski to Petitioner

6 dated February 21, 2019).

10 9. Petitioner seeks a writ of administrative mandamus directing the UC Regents to set

13 adequate remedy at law, she requires this Court's intervention.

15 10. Petitioner, a foreign national, enrolled- inll. While-, Petitioner

22 12. Petitioner committed no sexual misconduct. The University's errant determination

VERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

3 diploma by mid-March, Petitioner will be unable to submit a visa applicat on.

8 A. Petitioner's Relationship with James

21 After that, she ceased communication with him.

22 B. Petitioner's Relationship with John

24 and eventually began dating.

VERIFIED PETITION FOR WRIT O~ ADMINISTRATIVE MAjAMUS

2 learned John was also seeing other women. j

19 Petitioner of sexual assault, and did so only after

7 September 19, 2017.

12 bar Petitioner from attending her classes, even remotely.

16 the modified interim suspension on October 6, 2017.

19 her to resume attending some classes.

2 Report re: James Coe case).

3 30. As.to John, Ms. Carrubba-Katz found by a preponderance · f evidence that

15 denied Petitioner the ability to walk with her class at commencement.

10 Title IX office receives the report of sexual violence." 8

25 CSC offered any justification for this delay.

3 expert witness Petitioner had retained.

4 41. Moreover, the University required Petitioner to use unrelia le telephonic

3 were already made and a sanction was· already imposed.

6 the University's Student Adjudication Model.

12 C. Deficiencies in the University's Investigation

9 investigation reports that contained exculpatory evidence as to Petitioner. i Ms. Carrubba-Katz's

6 flawed findings and conclusions.

22 . She sought to humiliate Petitiorr by asking invasive,

11 burdensome administrative process.

7 University imposed on Petitioner's review of the evidence col1ected by M . Carrubba-Katz

14 63. Furthermore, at critical junctures in the disciplinary proces , the University

27 about sexual harassment" in relation to