Thursday, December 13, 2018

Conflict Between Proposed Title 9 Rules and California Policy?

Inside Higher Ed carries an article today about potential conflicts between proposed changes in Title 9 rules put out by the U.S. Dept. of Education and policies in various states including California:

...California’s definition of sexual assault, as included in the Donahoe Higher Education Act, is also much broader than the federal definition. It is as follows:
“Sexual harassment” means unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:

  • (a) Submission to the conduct is explicitly or implicitly made a term or a condition of an individual’s employment, academic status, or progress.
  • (b) Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.
  • (c) The conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment.
  • (d) Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.

The University of California System was perhaps the most vocal in criticizing DeVos’s plan right away, issuing a statement last month denouncing several of the projected changes, including that institutions must now hold live hearings to adjudicate sexual violence cases and the adjustment to the sexual harassment definition. California's governor, Democrat Jerry Brown, in 2017 vetoed a bill that would have put the Obama-era rules into state law. At the time, Brown said that state and federal actions may have unintentionally led to due process being violated, and that he would instead convene a "group of knowledgeable persons" that would help develop a sexual harassment policy for the state.

Suzanne Taylor, the interim systemwide Title IX coordinator, said in an interview that UC is preparing to provide comment to the department and that it is studying how the regulations may diverge from the state’s laws...

Full article at

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. Everyone might benefit from a fresh starting point rather than simply reacting to Dept. of Education initiatives.
*Here is the most recent example in a case from USC:

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