Another Title IX Case (That Might Have Been Avoided)

From time to time, Title IX cases pop up involving universities and issues of due process. It's true that the Biden administration is revisiting various due process rules that were implemented during the Trump era. But the fact is that whatever new rules are eventually developed, external courts expect due process.

As the image from the LA Times to the right indicates, UCLA is involved in what appears to be a due process dispute over Title IX involving a now-terminated head of the cheerleading squad. You can read the details in the Times article at the link below, so we will not rehash the article here. However, we will note - as has been pointed out on this blog - that courts have long generally deferred to truly neutral outside arbitrators in union-management grievance cases. UCLA uses such arbitration already in cases involving employees covered by collective bargaining contracts. Whatever the Biden administration comes up with, it will not prevent UCLA (and UC generally) from using neutral outsiders as the final decision makers.

There are complications in the Title IX area that are not found in the union-management context. In the latter case, the fee of the arbitrator is split between the parties and both have a hand in the process of choosing the arbitrator. That dual process avoids a situation in which the employer selects a sham decider who always favors the employer. 

The avoidance of a non-neutral arbitrator is more complicated in the Title IX arena since there is no union to counterbalance the employer. But with some creativity, it should be possible to come up with a process in Title IX situations that provides true neutrality. Were UCLA to come up with such a process, it would be more likely to avoid cases ending up in court and maybe in the newspapers. (The LA Times article has been reprinted nationally.) And the process might become a model approach for other UC campuses and other universities.

You can find the LA Times article at:

https://www.latimes.com/sports/ucla/story/2021-07-09/former-ucla-spirit-squad-adviser-mollie-vehling-sues-school-for-wrongful-termination