A Reminder on Nine

From time to time, we have noted that the controversies that arise from Title IX as it has been applied to allegations of sexual harassment and assault tend to be misdirected.* They often involve getting into the weeds of such matters as standards of proof rather than the process itself. If you truly want due process - the kind of due process that will stand up in court challenges - there has to be a separation of the person(s) who investigate and prosecute and the person(s) who decide. 

Almost all union contracts - including those found at universities such as UC - contain grievance-and-arbitration clauses. The grievance process typically involves a series of steps within the management structure for appealing, say, a case of discipline against an employee. If the matter isn't settled within those steps (most cases are settled within the steps), the issue goes to a neutral outside arbitrator. The arbitrator holds a hearing - one less formal that in an external court - in which evidence is presented by both sides, witnesses are heard and cross-examined, and then decided by the arbitrator. There are many variations of this process. But the most important element is that an outside neutral is the ultimate decision maker. 

What happens when there isn't an outside neutral and prosecution and decision are instead combined. Essentially, the chances for due process are diminished. Here's an actual story related to this blog. I will somewhat disguise it for reasons that will be apparent. Back on May 8, 2019, I got a phone message from a student at a UC campus who had been "convicted" under the Title IX procedures at that campus.** This blog had reproduced parts of a news article about the case. When the student took the case to an external court, not only was the decision overturned due to lack of due process, but the student was found to be factually innocent by the court. Nevertheless, if you searched the student's name on the internet, the various news articles about his original internal conviction popped up. 

The student had succeeded in getting the name deleted from the news articles that remained online. But the blog and its pdf versions that are posted quarterly still remained. I deleted the name from the blog itself. It took more work to delete it from the pdf versions. Even then, it is really not possible to remove something from the internet entirely. For example, the "Wayback Machine" on archive.org will show the internet as it existed in the past.

Some folks seem to argue that there can't be false accusations when it comes to sexual harassment and assault. This is demonstrably not so, as a very recent case at Stanford illustrates. From the Mercury News of April 17-18, 2023:

A former Stanford University employee was arraigned Monday on charges that she repeatedly lied about being viciously raped as part of a revenge plot against a co-worker — fabricated claims that sparked widespread panic about a sexual predator stalking women across the campus. Jennifer Ann Gries, of Santa Clara, appeared solemn and did not speak Monday while making her first appearance in court on two felony counts of perjury and two misdemeanor counts of making a false crime report. She was ordered to return to enter a plea on June 21; in the meantime, she allowed to remain free on supervised release. Prosecutors say Gries, who worked for housing services at the university, lied about being raped to in a vendetta against a co-worker, who she felt had romantically spurned her...

The reports stoked widespread panic at the specter of a rapist escaping capture and roaming the Stanford University campus. One student group, Sexual Violence Free Stanford, led a campus march...  calling for more counseling support for survivors, better training for incoming students and the swift removal of students and staff who commit sexual assault...

Full story at https://www.mercurynews.com/2023/04/17/stanford-university-employee-arraigned-on-charges-of-lying-about-rapes-that-shook-campus/.

The case above is an extreme false accusation as was the case of the student who requested his name be removed from the various formats of this blog. But it is not unusual for witnesses to mis-remember, misinterpret, selectively remember, etc. That is why due process is needed. And due process needs to include a separation of prosecution and decision-maker as the starting place. The grievance-and-arbitration processes found in union-management contracts are generally deferred to by external courts when tested there precisely because they provide due process through neutral arbitrators.*** Many universities, including UC, have union-represented employees and use these standard grievance-and-arbitration procedures without controversy. The model has long existed. There is more to be said about providing due process but its provision starts with a neutral decision maker as the final step.

===

*Use the search engine on this blog to search for "Title IX" for past blog postings on this subject.

**I can be specific about the date because I get voicemail from my UCLA phone on Google-Voice which retained the recorded message. I happened to be going through more recent messages and came across this old one.

***There are U.S. Supreme Court cases going back to the 1950s directing lower courts to defer to labor-management arbitration procedures.