Tuesday, January 7, 2020

More on Nine

A recent law review article summarizes litigation challenges to Title IX decisions by universities. Legal beagles may be interested in the details, but the essence is that the due process issue keeps coming up in these cases.

As blog readers may know, yours truly has noted in the past the union-represented workers at UC have a grievance and arbitration system (as do most unionized workers, public and private). A key element is that if cases go to arbitration, the decision maker is an outside professional neutral. That element goes a long way toward providing the kind of due process to which courts will generally accept as sufficient. In any case, below is an abstract of the above-mentioned study:


Samantha Harris & KC Johnson, NYU Journal of Legislation and Public Policy, vol. 22:49, 2019.

Abstract: Historically, federal courts have concluded that universities themselves, rather than judges, are best suited to determine appropriate disciplinary procedures for adjudicating student conduct violations, but that has begun to change. The U.S. Department of Education’s 2011 reinterpretation of Title IX, combined with the efforts of activist students, faculty, and administrators, pressured universities to adopt procedures that all but ensured schools would find more accused students responsible in campus sexual misconduct cases. 

Tentatively at first, and more aggressively in the past several years, courts have ruled against universities in lawsuits filed by accused students. Judges have expressed concerns about colleges failing to respect the due process or procedural fairness rights of their students, discriminating against accused students in violation of Title IX, and failing to adhere to their own contractual obligations. 

Since the 2011 policy change, more than 500 accused students have filed lawsuits against their college or university, a wave of litigation that has continued even after the Department of Education rescinded the 2011 guidance in 2017. More than 340 of those lawsuits have been brought in federal court; colleges have been on the losing end of more than 90 federal decisions, with more than 70 additional lawsuits settled by the school prior to any decision. While change is on the horizon in the form of proposed new Title IX regulations issued by the Department of Education, this rapidly evolving body of law is transforming the relationship between higher education and the judiciary in ways that have implications far beyond the particular issue of campus sexual misconduct.

Source of complete article:

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