Thursday, October 11, 2018

Wow! There is a Lesson Here for Title 9 Adjudications

We have noted in past posts that Title 9 cases with decisions in which due process appears absent or inadequate will not be ratified by the courts. This case goes back to 2015. Since that time, hopefully other adjudicatory procedures have been adopted, or should have been adopted, pursuant to UC policy. But even assuming that is so, why would the university not have settled before it got the verdict above?
In any case, the university might consider following procedures similar to what occurs under its own union-management agreements in grievance matters. In grievance cases, after internal procedures are exhausted, the matter goes to an outside neutral (an arbitrator in the union contract situation). The neutral could be an arbitrator or perhaps a retired judge, but someone who will follow sufficient due process so that external courts will respect the opinion. There are lots of variants of this proposal that could be adopted.
UCSB Student Accused of Sexual Assault Gets Suspension Tossed on Appeal
"Noticeably absent was even a semblance of due process," wrote the court. "When the accused does not receive a fair hearing, neither does the accuser."
By Ross Todd | October 10, 2018 at 07:16 PM | The Recorder, 
A state appellate court has overturned the suspension of a University of California, Santa Barbara student who was barred from campus and classes for two years after a school disciplinary committee found that he sexually assaulted another student. 
The Second District Court of Appeal on Tuesday found that the suspended student, referred to as John Doe in court papers, was denied access to a critical report made by the Santa Barbara County Sexual Assault Response Team about his accuser’s medical examination and was therefore denied the opportunity to adequately cross-examine witnesses. The court also found that the university’s review process denied Doe the opportunity to present defense evidence, and that he wasn’t provided a fair hearing by the two-member university committee which reviewed his case. 
“Noticeably absent” in the university’s process “was even a semblance of due process,” wrote Justice Arthur Gilbert. “When the accused does not receive a fair hearing, neither does the accuser.” 
John Doe’s attorney, Arthur Willner, partner at Leader Berkon Colao & Silverstein, said in a phone interview Wednesday that he hopes that the university will “expunge this all from his record” since his client has served out the suspension while his appeal has been pending. 
Discussing the Court of Appeal’s published opinion, Willner said “there’s a lot in there that’s going to be helpful for students down the line in similar cases.”  
The accuser in the case alleges that John Doe sexually assaulted her one night in June 2015 while she was asleep on a mattress in the living room of his apartment. She claimed he aggressively fondled her breasts, removed the bottom half of her clothing; and penetrated her vagina and anus without her consent while she was incapacitated. 
Doe claimed that he slept facing away from his accuser atop sheets she was under. The mattress was just feet from two witnesses, including his girlfriend and the accuser’s best friend at the time, who both testified that the accuser’s version of the events was not physically possible. 
In Tuesday’s opinion, the Court of Appeal noted that a campus detective who investigated the case and testified at Doe’s hearing cited findings from the Santa Barbara County Sexual Assault Response Team’s report which stated there was “bruising and laceration noted in anal area.” Doe, however, wasn’t given access to the full report, and the detective declined to speculate if anything other than what Jane alleged could have caused the injuries.
Doe also wasn’t given the name of the antidepressant medication his accuser was taking—Viibryd—until the night before his hearing. The accuser refused to answer questions about the side effects of the drug or its interactions with alcohol. When Doe attempted to get the details of those side effects—which can include hallucinations, sleep paralysis and night terrors—into evidence through testimony from his mother, the university’s general counsel cut off the line of question. (Doe had counsel at the hearing who was not allowed to participate.) 
In Tuesday’s opinion, Gilbert noted that the university committee had “placed John in a catch-22.” 
“[H]e learned the name of the medication Jane was taking too late to allow him to obtain an expert opinion, but the Committee precluded John from offering evidence of the side effects of Viibryd without an expert,” Gilbert wrote. He was joined in his opinion by  Justices Kenneth Yegan and Steven Perren. 
A university spokeswoman didn’t respond to an email seeking comment Wednesday. 
Willner, Doe’s lawyer, pointed out that his client has sued the individual campus officials involved in his case in federal court for deprivation of civil rights. That case has been stayed pending the outcome of the state court appeal and is now poised to move forward, Willner said. 
Said Willner: “What was so egregious about this was the due process violations were so significant and so extensive that, in my view, the hearing committee handled it in a way that was designed to reach the result that they did.” 

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