Tuesday, August 27, 2019

Again: If there is to be due process, there needs to be a neutral "decider"

The latest Daily Bruin contains an article about the new Title IX procedures in cases of sexual harassment and assault.* There is much discussion of the hearing process in the article. As we have noted in prior postings, there details of the hearing are less important than the neutrality of the individual conducting the hearing and making the decision.** As we have also noted, in the case of unionized employees at UC or elsewhere, the grievance process in situations of employee discipline for misconduct typically ends with a neutral arbitrator who is selected by agreement of both parties (union and management). Outside courts rarely overturn union-management arbitration decisions; they recognize the due process implicit in a neutral decision maker that the parties have agreed on.

So what is the process that UC has selected as the result of court decisions that point to a lack of due process? The revised Appendix E of UC procedures - discussed in the Bruin article - describes the selection of the "hearing officer."*** The relevant language is reproduced below:
Note first that the hearing officer can be a "University employee" who is selected by another university employee entitled the "hearing coordinator." The hearing coordinator may select an "outside contractor," but how that selection is made is unclear. Moreover, the outsider would be "trained" by another UC employee - the "Title IX Officer. Presumably, even if an outsider is selected, the appointee would be paid by UC. None of these provisions are consistent with neutrality. In the union-management setting, the neutral is paid 50-50 by both parties. Neither side "trains" the neutral. The neutral - who typically has a background in union-management situations (often a legal background) - interprets the provisions of the union-management contract with regard to rules of employee conduct.

The bottom line here is that regardless of the recent bells and whistles that were added to Title IX procedures in response to court decisions, UC procedures regarding selection of the "decider" do not mirror those which courts are known to accept in the union-management realm as due process. At least on paper, the hearing officer does not appear to be a disinterested neutral. A university employee can be selected by the hearing coordinator as the hearing officer. There is the old quote from Upton Sinclair:

Even if an outsider is selected, the fact that UC will "train" that individual and pays the fee, leaves a lot to be desired. Of course, we will see how the new process goes in practice and what courts do with challenges to it. But if UC - regardless of what courts may say - wants true due process, it needs to face the issue of true neutrality.
*** PowerPoint slides summarizing the process are at:
Full disclosure: Yours truly taught a course in labor relations at UCLA which included the process of grievance arbitration. For those not familiar with the process, below are videos from an arbitration hearing in the early 1970s regarding a Greyhound (bus) employee that was held at UCLA for the benefit of students by (now deceased) Paul Prasow, then a lecturer at UCLA and a professional arbitrator (and co-author of a book on the arbitration process).

Part One:

or direct to:

Part Two:

or direct to:

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