Ellen J. Staurowsky, Ed.D., Senior Writer & Professor, Department of Sport Management, Drexel University, ejs95@drexel.edu
Allegations of intimate partner violence led to the suspension of former University of Southern California (USC) football player, Matt Boermeester, in the spring of 2017 and his eventual expulsion in July 2017. In March 2019, following several attempts to overturn that decision, Mr. Boermeester filed a complaint against USC and administrators in the United States Central District of California, Western Division seeking damages arising from gender bias against male football players in violation of Title IX of the Education Amendments Act of 1972 as well as a denial of due process under the 14th Amendment, breach of contract, negligence, promissory estoppel, and intentional infliction of emotional distress.
Background
Matt Boermeester arrived at USC in the fall of 2014 as a transfer from Saddleback Junior College where he had been named to the 2013 All-Southern California Football Association Second Division second team as a kicker (Player Bio, 2016). Academically, he earned recognition as a David Marks Scholar-Athlete joining other USC athletes who achieved a cumulative grade point average of 3.2 or higher. Due to his status as a “redshirt,” meaning he was on scholarship and practiced with the team his first year but did not play in any games, he planned on completing his undergraduate degree in May 2017 in communications and continuing his USC football career in the fall of 2017 as a graduate student. He moved up the ranks to become the team’s most experienced placekicker during his junior year. On Jan. 2, 2017 he made headlines in Southern California and nationwide after kicking the field goal that sealed a win for USC over Penn State in the Rose Bowl. Within three weeks of that performance, he was accused of physically hurting his girlfriend Zoe Katz, the captain of the USC women’s tennis team, and placed on interim suspension.
The incident that has served as the seed for Mr. Boermeester’s punishment occurred just after midnight on Jan. 21, 2017. He and Ms. Katz had gone out for a late-night food run to McDonald’s. After parking her car in the garage, she and Boermeester walked to her apartment. En route, they claim they engaged in playful and teasing banter, with Boermeester placing his hand affectionately on her neck at one point. According to the complaint, their conduct did not draw the attention of USC student, Max Benner, who walked past them as he was taking trash to the dumpster. Another student, Dylan Holt, did stop the two to inquire how Ms. Katz was, having observed some of their interaction from a second-floor apartment. When Katz assured Holt that she was fine, he moved on.
In the course of conversation, Holt mentioned what he had observed to his roommate, Tanner Smith, a member of the USC men’s tennis team whose father was the head coach, Peter Smith. Apparently, Smith also approached Ms. Katz in the early morning hours of Jan. 21, 2017 and did not believe that she was upset. Coach Smith, however, learned that something might have happened from his son Tanner. As an individual classified as a “responsible employee” under USC policy who was obligated to report suspected misconduct regardless of how the information was obtained, Coach Smith dutifully notified the Title IX Office.
That third-party report resulted in Ms. Katz being questioned by a USC sports psychologist the day of the alleged incident where Katz offered an assurance that she was fine. She was then summoned to a meeting in USC’s Title IX Office on Jan. 23, 2017, where she met with three people, two of whom worked for the Title IX Office and the sports psychologist. According to Katz, she was unaware that the conversation they had was regarded by the Title IX Office as information to be used in an intake report. Thereafter, despite the fact that she did not wish to report, and believed she had never reported Boermeester, she became known in subsequent documentation as the “Reporting Party.”
In the weeks that followed, Boermeester was suspended for the duration of the investigation, an action that resulted in him being barred from classes and his opportunity to complete the two courses he needed to graduate. An avoidance of contact order (AOC) was also issued which required him not to interact with Katz. He was further dropped from the football team and denied access to USC-supported medical treatment and rehabilitation services in connection with knee surgery he had undergone just two weeks prior to being accused of wrongdoing. On Jan. 30, 2017, Mr. Boermeester requested that his interim suspension be lifted to allow him to complete his studies and to obtain the medical services he needed to prepare for the upcoming fall football season. Ms. Katz, on the same day, reiterated her opposition to the investigation and requested that the AOC be removed. Those requests were ignored as were requests by Katz and Boermeester to review video footage of the incident in question that Title IX office administrators had obtained from the USC Public Safety unit. According to Boermeester’s complaint, neither Katz nor Boermeester were ever questioned about the video or what was on it. In the absence of relief from the AOC, Boermeester and Katz spent time together at his family’s home in San Diego, a decision that eventually resulted in him being sanctioned a second time for violating the order.
Due to the lack of perceived fairness in the process, both Katz and Boermeester chose not to attend evidence hearings scheduled in March 2017, opting instead to submit written statements. A Summary Administrative Review of the case was issued a month later wherein Boermeester was charged with violating the University’s intimate partner violence policy as well as his violations of the avoidance of contact order. A Misconduct Sanctioning Panel (MSP), comprised of three individuals whose participation was protected by confidentiality and were therefore not assessed in terms of potential bias and conflicts of interest, received the review and accepted without question the findings in it. Members of the Misconduct Sanctioning Panel were trained by one of the Title IX Office administrators who conducted the initial interview of Katz and who wrote the Summary Administrative Review of the case. Both Katz and Boermeester filed appeals contesting the decision of the panel to expel Boermeester with a designated Appellate Panel, a panel also trained by the same Title IX administrator who was involved in the case. Although the Appellate Panel was bound by policy to “defer to the Title IX Office and Misconduct Sanctioning Panel,” it did determine that the penalty of expulsion was “grossly disproportionate” to the violations and instead recommended a two-year suspension. On July 7, 2017, Provost Ainsley Carry rejected the Appellate Panel’s recommendation regarding punishment and upheld the decision to expel Boermeester (Boermeester v. University of Southern California, 2019, p. 19).
Shortly thereafter, the athletic department put out an announcement that Booermeester would not be returning for the fall of 2017 because of a violation of the student conduct code, an announcement that seems to contradict policy assurances that student privacy and confidentiality would be protected in the Title IX process. With that disclosure part of the public domain, Katz followed with a public statement documenting her treatment by the Title IX Office and denying once again that she had not been “…abused, assaulted, or otherwise mistreated by Matt” and that “Nothing happened that warranted an investigation much less the unfair, biased, and drawn out process that we have been forced to endure quietly.” She went on to state that “Words, including mine, have been incompetently or intentionally misrepresented, misquoted and taken out of context…” (Boermeester v. USC, 2019, Appendix A. Katz Declaration, 2017).
First Cause of Action — Violation of Title IX — Erroneous Outcome
Boermeester uses an expansive rationale to support his claim that USC violated his rights under Title IX in a manner that led to the erroneous outcome of a finding of intimate partner violence warranting his expulsion from USC. He notes that both the United States Department of Education and the Department of Justice promulgated regulations that require schools to promptly and equitably resolve complaints that address prohibited conduct that falls under the definition of sexual harassment. Citing to the Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Others Students, or Third Parties issued by the U.S. Office for Civil Rights in 2001, Boermeester further notes that there is an expectation that both the accuser and the accused will receive the benefit of notice and that investigations of complaints will be done in an “adequate, reliable, and impartial” way. And that the “Dear Colleague Letter” issued by the OCR in April 2011 cautions that Title IX coordinators should not serve on disciplinary hearing boards because of the potential for conflicts of interest.
Boermeester argues that USC’s review in his case failed to satisfy these requirements, choosing from the outset to credit the word of a third-party who had not witnessed the event and discounting the word of the alleged victim who repeatedly denied that the alleged mistreatment ever happened. Boermeester asserts that the discounting of Katz’s story of what happened is evidence of hearing officers who were intent on finding wrongdoing; who misapplied a “trauma-centered” theory of investigation; and who operated with gender stereotypical lens that led to the depiction of Katz as a “victim” and played off of a preconceived perception of football players as “perpetrators,” arriving at conclusions regarding the events of the night in question in the absence of a thorough and careful examination of the facts.
Boermeester layers onto this analysis a context that situates this case within an ongoing discussion regarding the handling of sexual assault cases at USC as well as a larger national dialogue on this issue. He argues that the failures of the system as they played out in his punishment are reflective of a culture in which universities are experiencing pressure to demonstrate compliance with Title IX under threat of loss of federal funding and are inclined as a result to “aggressively prosecute male students accused of sexual misconduct.” (p. 30)
Second Cause of Action — Violation of Title IX — Selective Enforcement
In brief, Boermeester argues that USC engaged in intentional discrimination by selectively enforcing its policies regarding intimate partner violence on the basis of his gender. The decision to proceed with a decision to expel Boermeester despite insufficient evidence and in contradiction to the alleged victim’s own account was predicated “…on archaic stereotypes about males and particularly male athletes” (Boermeester v. USC, 2019, p. 35). In effect, “Mr Boermeester was found responsible and expelled because he was male; given both parties were adamant that Mr. Boermeester never engaged in any conduct violative of USC’s policies, there is no other logical explanation for the ultimate outcome.” (p. 36)
Third Cause of Action — Denial of 14th Amendment Procedural Due Process
The gender bias and the lack of procedural fairness in the USC process deprived Boermeester of a protected liberty interest in his good name and reputation as well as a protected property interest in his education as well as future educational and employment opportunities. In support of this assertion, Boermeester argues that “Defendant USC, in its adjudication of sexual misconduct and violence and levying sanctions against students, is a state actor exercising its jurisdiction over offenses that traditionally have been part of the responsibilities of the States” (p. 37). Addressing the hurdle that USC is a private actor, the complaint notes that once a private actor is required by the United States government to “…investigate and adjudicate the violations of a federal statute under terms and procedures dictated by the federal government” it becomes a state actor. Once USC is established as a state actor, it is then required to “honor the rights and guarantees set forth in the United States Constitution,” most specifically the rights of Boermeester under the Due Process Clause of the 14th Amendment.
Fourth Cause of Action — Breach of Contract
Regarding the breach of contract cause of action, Boermeester was bound contractually to USC through his athletic scholarship agreement, which provided for the payment of tuition, room and board, books and fees in exchange for his services as an athlete. He entered into that agreement with an expectation that the University would abide by its own policies, however, in the course of the adjudication process, USC violated those policies on multiple occasions, starting with the imposition of an interim suspension in the absence of reliable evidence; a presumption that Mr. Boermeester was guilty; failure to treat Mr. Boermeester as any other student because he was a football player; and the weighting of evidence from a third party/hearsay witnesses as stronger and more credible than statements from the parties directly involved in the incident. USC also violated the covenant of good faith and fair dealing implied in the agreement made with Boermeester. As a result of these breaches, Mr. Boermeester suffered damages that included, but were not limited to economic injuries, loss of educational and career opportunities, and reputational harm.[1]
Discussion & Remaining Issues
The Boermeester case is one of the latest filed against the University of Southern California and/or USC officials by male students who claimed they were denied due process in the handling of sexual assault cases by officials working in the Title IX Office. In Doe v. Allee (2019), the court found that USC’s disciplinary process was fundamentally flawed and denied the plaintiff his due process rights before he was expelled from the University.[2] The single investigator model USC had been using as part of its review of sexual misconduct cases lacked the requisite level of due process to protect the rights of the accused. As Acting Presiding Judge Thomas Willhite wrote in the opinion, “As we have explained, in USC’s system, no in—person hearing is ever held, nor is one required. Instead, the Title IX investigator interviews witnesses, gathers other evidence, and prepares a written report in which the investigator acts as prosecutor and tribunal, making factual findings, deciding credibility, and imposing discipline. The notion that a single individual, acting in these overlapping and conflicting capacities, is capable of effectively implementing an accused student’s right of cross—examination by posing prepared questions to witnesses in the course of the investigation ignores the fundamental nature of cross—examination: adversarial questioning at an in—person hearing at which a neutral fact finder can observe and assess the witness’s credibility.”
Boermeester’s case was cited by U.S. Secretary of Education Betsy DeVos in support of an effort she authorized in the fall of 2018 to revisit the guidelines for how colleges and universities handle sexual assault cases under Title IX, an effort that prompted thousands of responses and fears that changes to the regulations would lead to sexual assault victims being more reluctant to come forward (Melnick, 2019).
There is also the matter of whose account of the events of Jan. 21, 2017 is to be believed. While the two main parties to the incident — Boermeester and Katz — have repeatedly denied that their interaction was violent, the description by USC officials after viewing security videotape footage offers a different perspective. In USC’s motion to dismiss from April 2019, they note as a private institution there is no tolerance for violence directed against any of their students. They state, “…Plaintiff Matthew Boermeester (“Plaintiff”) ran afoul of this principle when he assaulted Jane Roe[3], a fellow student with whom he had an intimate relationship, by putting his hands around Jane Roe’s neck and, while holding her by the neck, shoving her into a cinder block wall at least twice” (Boermeester v. USC, Defendant’s Memorandum, 2019, p. 6). They further refer to the Los Angeles Superior Court ruling in response to Boermeester’s petition for a Writ of Mandamus seeking USC’s decision be overturned. After reviewing USC’s complete investigative report in its entirety, including the video, the Court determined their procedures were fair and their decision to expel Boermeester supported by substantial evidence. “In particular, the Superior Court found compelling the surveillance video of the incident, which shows Plaintiff ‘shoving Roe into the alley’ and ‘grabbing Roe by the neck and pushing her to the wall in a manner that caused Roe’s head and body to arch backwards” (Boermeester v. USC, Defendant’s Memorandum, 2019, p. 6).
Recent rulings from Doe v. Allee (2019) and Doe v. Carry (2019) might predict that Boermeester may receive a favorable ruling on the issue of his due process claims. However, his case may be distinguishable from the others because of the existence of surveillance video and what that evidence suggests.
References
Boermeester v. USC, Defendant’s Memorandum of Points and Authorities in Support of Motion to Dismiss Plaintiff’s Complaint Pursuant to FRCP 12(b)(6). (2019, May 20).
ESPN News Services. (2016, April 22). Reports: Bryce Dixon get 6 years in carjacking, robbery plea deal. ESPN.com. Retrieved from http://www.espn.com/college-football/story/_/id/15293733/bryce-dixon-ex-usc-trojans-te-sentenced-6-years-prison
John Doe v. Ainsley Carry, Ed.D. (2018, June 28).
Doe v. Allee, B283406 (Cal. Ct. App. Jan. 4, 2019)
Doe v. Carry, B282164 (Cal. Ct. App. Jan. 8, 2019) Retrieved from https://casetext.com/case/john-doe-v-carry
Katz, Z. (2017, July 30). Zoe Katz statement about the USC Title IX investigation of Matt Boermeester. Retrieved from https://www.scribd.com/document/355224992/Girlfriend-of-suspended-football-player-denounces-USC-for-saying-he-battered-her
Melnick, S. (2019, January 24). The Department of Education’s proposed sexual harassment rules: Looking beyond the rhetoric. Brookings.edu. Retrieved from https://www.brookings.edu/blog/brown-center-chalkboard/2019/01/24/the-department-of-educations-proposed-sexual-harassment-rules-looking-beyond-the-rhetoric/
Montoya, C. (2018, July 9). Six-figure judgement against USC after calling student accused of rape a “mother—er”. The College Fix. Retrieved from https://www.thecollegefix.com/six-figure-judgment-against-usc-after-calling-student-accused-of-rape-motherf-er/
Piper, G. (2019, January 6). USC ignored likelihood that female student invented rape to not get fired, appeals court rules. The College Fix. Retrieved from https://www.thecollegefix.com/usc-ignored-likelihood-that-female-student-invented-rape-to-not-get-fired-appeals-court-rules/
Player Bio. Matt Boermeester. (2016). Retrieved from https://usctrojans.com/roster.aspx?rp_id=959
Staff. (2015, August 14). TE Bryce Dixon returns to USC, but not to football team. Foxsports.com. Retrieved from https://www.foxsports.com/college-football/story/usc-trojans-te-bryce-dixon-returns-to-school-but-not-to-football-team-081415
Trahan, K. (2017, February 1). What are the differences between redshirting, grayshirting, blueshirting, and greenshirting in college football? SBNation.com. Retrieved from https://www.sbnation.com/college-football-recruiting/2016/1/28/10842688/ncaa-football-grayshirt-blueshirt-redshirt-rules
[1] The complaint includes three more causes of action, including promissory estoppel, negligence https://www.brookings.edu/blog/brown-center-chalkboard/2019/01/24/the-department-of-educations-proposed-sexual-harassment-rules-looking-beyond-the-rhetoric/h, and intentional infliction of emotional distress.
[2] The John Doe in Doe v. Allee (2019) is Bryce Dixon, a former USC football player who is currently serving time for carjacking and robbery (ESPN News Service, 2016).
[3] Jane Roe, as used in USC’s motion to dismiss, is Zoe Katz.
