More Title 9 Problems in Court (and a reminder of our earlier suggestion)

We have noted in past blog posts about university adjudication of "Title 9" cases involving sexual harassment and assault that external courts have been finding flaws in the due process provided to defendants.* Basically, the more severe the penalty, the more courts are likely to look at the due process issue. We further noted in a posting last December that universities such as the UC campuses which have unionized employees and formal grievance and arbitration processes for them already have a longstanding model of adjudication. That model is notably less formal than an external court but does involve such elements of due process as cross examination of witnesses and an ultimate decision by an outside neutral (a professional arbitrator), not an employee of the employer (university). Here is what we wrote last December:

Editorial comment from yours truly: UC has a grievance-and-arbitration arrangement applicable to union-represented employees under the various contracts it signs. Employees penalized for misconduct can avail themselves of these arrangements. Typically, such systems involved a hierarchy of internal review steps and, ultimately, a decision by an outside neutral. There is a long history of external courts generally deferring to such systems because of the due process they provide. And there is a recent history of courts not deferring to internal university Title 9 systems because of due process issues. Undoubtedly, such systems would have to be modified to handle Title 9-type complaints outside the union-management realm. But it wouldn't hurt to look at such arrangements as a starting point. Indeed, presumably union-represented employees at UC who are accused of Title 9-type violations and penalized for them already have grievance-and-arbitration access...

As it happens, a recent USC case led to a court decision in which the absence of an outside neutral resulted in a reversal of that university's verdict in a Title 9 case. See below:

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Court Finds Flaws With 'Overlapping and Conflicting' Role of Title IX Investigator at USC

California's Second District Court of Appeal found that the school's Title IX investigator held the "roles of investigator, prosecutor, factfinder, and sentencer" in a case where a student was accused of sexual misconduct.

By Ross Todd | January 4, 2019 | Law.com

A California appellate court has set aside the expulsion of a former football player at the University of Southern California finding that a Title IX investigator had ”overlapping and conflicting” roles when looking into allegations that the player had raped a student trainer.

In an opinion published Friday, the Second District Court of Appeal found that, given the potential consequences of USC’s disciplinary proceedings, the football player, referred to in the proceedings simply as John Doe, had the right to cross-examine his accuser, Jane Roe, either directly or indirectly. USC’s procedures, the court held, left the school’s Title IX investigator to act as “investigator, prosecutor, factfinder and sentencer” in such cases and therefore deprived Doe of his right to cross-examine his accuser.**

“When credibility of witnesses is essential to a finding of sexual misconduct, the stakes at issue in the adjudication are high, the interests are significant, and the accused’s opportunity to confront adverse witnesses in the face of competing narratives is key,” wrote Justice Thomas L. Willhite Jr. “Under such circumstances, the performance of this key function is simply too important to entrust to the Title IX investigator in USC’s procedure.”

The Second District’s decision is at least the third from the court in the past few years overturning the school’s decisions in cases involving allegations of sexual assault. The Second District in 2016 held that a football player involved in a separate incident wasn’t given sufficient notice of allegations against him or a fair hearing before being suspended. And in a decision just last month, the court granted a new hearing to another accused student finding that the lead investigator, Dr. Kegan Allee, didn’t interview key witnesses or review physical evidence.

Allee was also the investigator in the John Doe case decided Friday. The court rejected Doe’s argument that Allee was biased against those like him who were accused of sexual assault due to her work as an advocate for victims prior to taking on her role at USC. The court, however, did find fundamental flaws in USC’s procedures at the time of Doe’s case, where the appellate panel reviewing a disciplinary decision accepted a Title IX investigator’s findings of fact as true. The procedure, the court found, forced the accused to cross-examine the accuser by giving questions to the Title IX investigator during the course of the investigation.

“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’ credibility,” Willhite wrote. “At bottom, assessing what is necessary to conduct meaningful cross–examination depends on a common sense evaluation of the procedure at issue in the context of the decision to be made. From that prospective, a right of ‘cross–examination’ implemented by a single individual acting as investigator, prosecutor, factfinder and sentencer, is incompatible with adversarial questioning designed to uncover the truth.”

Doe’s lawyers, Jenna Parker and Mark Hathaway of Hathaway Parker, didn’t immediately respond to a request for comment.

USC’s lawyer, Julie Young of Young & Zinn, directed a request for comment to the school’s press office. School representatives didn’t immediately respond to an email seeking comment.

Source: https://www.law.com/therecorder/2019/01/04/court-finds-flaws-with-overlapping-and-conflicting-role-of-title-ix-investigator-at-usc/

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*http://uclafacultyassociation.blogspot.com/2018/12/conflict-between-proposed-title-9-rules.html
**http://www.courts.ca.gov/opinions/documents/B283406.PDF