The LA Times on Title IX

We have noted from time to time the need for Title IX litigation to have sufficient due process element. The LA Times - in an editorial today - makes the same point: You might have missed it, but Betsy DeVos had a brief shining moment as President Trump’s Education secretary. On her initiative, the department rewrote the rules for how colleges and universities handle allegations of sexual assault on campus, reining in a system that was stacked against the accused person. And for the most part, she did that without returning colleges to the bad old days when complaints of assault were routinely ignored and victims made to feel ashamed, afraid and abandoned. The changes engineered by DeVos need minor adjustment but not an overhaul and certainly not a swing back to the rules adopted by the Obama administration, which applied to any institution of higher learning that received federal dollars. While those rules were in effect, courts threw out dozens of expulsions and other disciplinary actions taken against men — the accused were mostly men — because their colleges hadn’t given them due process...

DeVos [issued] new rules explicitly outlining the right of the accused person to be presumed innocent at the beginning of the complaint process, to be fully informed about the complaint and to have any exculpatory evidence taken into account. The accused student’s activities could not be curtailed unless there was some sign that his or her presence would be legitimately problematic for the accuser. The accused had a right to cross-examination through a third party, and the investigator could not also serve as the “judge.” ...

Full editorial at https://www.latimes.com/opinion/story/2021-03-22/editorial-campus-sex-assault-rules-need-a-tweaking-not-an-overhaul

As we have noted in past posts, UC routines provides due process as described above in its union contracts through grievance and arbitration processes for employees. The process the LA Times outlines leaves some important unresolved issues, notably the question of the identity of the judge. In labor arbitration, the arbitrator is selected by both sides and is an outsider whose fees are split between the employer (UC) and the relevant union. Some mechanism needs to be created to produce a selection process for the "judge" that nominates a candidate not beholden to either party.