A Different Kind of Title 9 Problem for UC-Berkeley

From Inside Higher Ed: A federal court opinion could put the policies and procedures of colleges and universities in California and the western U.S. under a microscope for their ability to prevent sexual assault.

An institution can be held liable for “pre-assault” claims, which allege that its policies for enforcing Title IX are inadequate, create an environment of “heightened risk” of sexual misconduct and lead a complainant to be harassed or assaulted, the U.S. Court of Appeals for the Ninth Circuit declared in a ruling Thursday. The federal law prohibits discrimination based on sex at institutions that receive federal funding and requires them to investigate reports of sexual misconduct.

Three former students who allege they were assaulted at the University of California, Berkeley, in 2012 initially brought a case against the University of California system’s Board of Regents in 2015 for Berkeley's handling of their individual complaints. When the case was dismissed in district court, the women appealed.

While many of the recent federal court decisions on Title IX have focused on the rights of respondents, the Ninth Circuit opinion is “a big win for victims’ advocates,” especially if other appeals courts follow suit, said Peter Lake, director of the Law Center for Excellence in Higher Education Law and Policy at Stetson University.

The ruling by the three-judge panel of the Ninth Circult referenced a 2014 California State Auditor report of Berkeley’s processes under Title IX. The report found that from 2009 to 2013, Berkeley did not notify or give regular updates to parties involved in investigations of sexual misconduct, did not complete investigations in a timely manner and did not “sufficiently educate” staff and students on sexual misconduct prevention, which led cases to be mishandled and compromised student safety, according to the Ninth Circuit opinion.

Berkeley’s use of an “early resolution process” that addressed complaints of sexual assault without formal investigations also came under fire in the court’s opinion. It is standard for institutions to pursue early resolution or mediation between the complainant and respondent only in cases of sexual harassment and when both parties are in agreement, said Jake Sapp, deputy Title IX coordinator and compliance officer at Austin College, in Texas.

The former Berkeley students asserted that only two of the 500 cases of sexual misconduct reported to the university in 2012 were resolved in a “formal process” and that they were coerced into early resolution by the university. This was allegedly done so Berkeley did not have to report assaults under the Clery Act, which requires institutions to disclose crimes on their campuses, according to the students’ lawsuit.

Berkeley was ordered by the U.S. Education Department's Office for Civil Rights to revise its Title IX policies after a 2014 investigation by the agency. The university subsequently “enacted many new policies, procedures and services over the last few years,” according to a February 2018 statement from the university.

But the opinion could open other colleges and universities in the California system and elsewhere in the states covered by the Ninth Circuit -- Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington -- to lawsuits that challenge the effectiveness of their Title IX policies, Lake said...

Full story at https://www.insidehighered.com/news/2020/01/31/appeals-court-holds-university-liable-ineffective-title-ix-policies