Franken-Sense

Various columnists of the New York Times have written a series of essays (7-21-2022) about things they got wrong. Columnist Michelle Goldberg wrote a piece on how she was wrong about wanting Senator Al Franken removed from the Senate for sexual harassment. But her confessional reminded yours truly about the ongoing issue of Title IX procedures at universities. Here is Goldberg:

...Due process is important whether or not a person did what he or she is accused of, and the absence of it in this case has left lasting wounds. Carried away by the furious momentum of #MeToo, I let myself forget that transparent, dispassionate systems for hearing conflicting claims are not an impediment to justice but a prerequisite for it.

...During #MeToo, many feminists tried to find a way to move beyond the reflexive doubt that too often greets people who speak out about sexual misbehavior. But a reflexive assumption of guilt is not a decent substitute. Privately, we are free to come to our own conclusions. In public life, however, we should aim to hold several, sometimes contradictory ideas in our heads at once — that accusers have little incentive to lie and deserve a presumption of good faith, that to be subject to a false accusation can be shattering, and that in some cases, both parties think they’re telling the truth.

Some feminists argue that the concept of “due process” doesn’t really apply outside the legal system; it’s possible that I’ve said something similar myself. “Losing Your Job for Sexual Harassment Is Not a Violation of Due Process,” said a 2018 headline from Rewire News Group. Due process, wrote Caroline Reilly, “is violated when the government takes away a right.” Technically, this is true, but colloquially, due process usually means hearing people out and treating them according to clear and neutral rules...

From "I Was Wrong About Al Franken": https://www.nytimes.com/2022/07/21/opinion/michelle-goldberg-al-franken.html.

Note the line about "clear and neutral" rules. One such rule is that the persons making the decision on guilt or innocence or penalties if guilty are themselves neutrals. The investigator/prosecutor inherently cannot be a neutral decision-maker. As we have noted many times on this blog, union-represented employees at UC (and elsewhere) have grievance processes that end in an outside neutral arbitrator making the decision. The third-party arbitrator conducts a hearing, one less formal than in a court of law, but with witnesses, evidence, cross-examination, etc. Then a decision is rendered. There is a long legal history surrounding this process and outside courts generally will defer to arbitration decisions because due process is observed. And the main element of that due process is the provision of a neutral decision-maker, separated from the investigator/prosecutor. All the other rules that may be involved - and seem to be the subject of much debate and revision - are secondary. Yet there is endless debate about the secondary rules, e.g., https://www.insidehighered.com/news/2022/06/30/new-title-ix-rules-raise-concerns-accused.

If the principle of a neutral decision-maker is not observed, there will continue to be cases that go from universities into the outside courts in which lack of due process will lead to a reversal. These cases may involve students, staff, or faculty. The lack of a neutral decision-maker itself will be a red flag for outside courts. And the fact that non-neutral decision-makers will be prone to do things in handling cases that don't meet the sniff test of fairness will create other red flags. UC can avoid such outcomes by doing in Title IX cases what it already does for union grievances.