Another Cautionary Title IX Story

From time to time, we have noted that Title IX procedures and outcomes will sometimes be reviewed by external courts. When that happens, courts look for basic elements of due process, a key component of which is separation of the decision maker from prosecutor and that the decision maker is a neutral. Witnesses can be cross-examined when due process is present.

Such elements of due process are typically found in union-management grievance and arbitration processes where the final decision maker is a neutral, external arbitrator. UC and other universities that have union contracts routinely accept such procedures in the labor-management context, but not always when it comes to Title IX. Courts routinely defer to grievance-arbitration outcomes because due process is followed there. They don't necessarily defer to Title IX outcomes when there are deviations from due process.

A tale from Yale and the AP illustrates - once again - that Bad Outcomes can arise when there are departures under Title IX from due process:

Yale student who reported rape can be sued for defamation due to school’s procedures, court says

BY DAVE COLLINS

June 23, 2023

HARTFORD, Conn.  — In a decision scrutinizing how colleges investigate sexual assault allegations, Connecticut’s highest court ruled Friday that a former Yale student is not immune from a defamation lawsuit by a fellow student who was exonerated in criminal court after she accused him of rape.

The Connecticut court ruled 7-0 that because he had fewer rights to defend himself in university proceedings than he would in criminal court, the rape accuser can’t benefit fully from immunity granted to witnesses in criminal proceedings.

The unanimous ruling came despite warnings from more than a dozen violence prevention groups that such immunity is crucial to prevent rape victims from being discouraged to come forward.

https://apnews.com/article/yale-rape-acquittal-colleges-sexual-assault-1d74bbe89517db23c49a4a098186bd89.

Note that external courts themselves can go awry when they deviate from norms of due process or look the other way when such deviations occur, as a recent New Yorker article illustrates:

https://www.newyorker.com/magazine/2023/05/29/the-tortured-bond-of-alice-sebold-and-the-man-wrongfully-convicted-of-her-rape:

Anthony Broadwater spent sixteen years in prison and twenty-two more as a registered sex offender. For him and for the author of “The Lovely Bones,” justice is a difficult dream.

A few months ago, the writer Alice Sebold began to experience a kind of vertigo. She looked at a cup on the table, and it no longer appeared solid. Her vision fractured. Objects multiplied. Her awareness of depth shifted suddenly. Sometimes she glanced down and for a split second felt that there was no floor.

Sebold and I had recently begun corresponding, a little more than a year after she learned that the wrong man had been sent to prison, in 1982, for raping her. In 1999, she had published “Lucky,” a best-selling memoir about the rape and the subsequent conviction of a young Black man named Anthony Broadwater. Then she wrote “The Lovely Bones,” a novel about a girl who is raped and murdered, which has been described as the most commercially successful début novel since “Gone with the Wind.” But now Sebold had lost trust in language. She stopped writing and reading. Even stringing together sentences in an e-mail felt like adopting “a sense of authority that I don’t have,” she said.

Sebold, who is sixty, recognized that her case had taken a deeply American shape: a young white woman accuses an innocent Black man of rape. “I still don’t know where to go with this but to grief and to silence and to shame,” she wrote to me...

The article which is lengthy (this is the New Yorker!) goes on to describe an over-zealous prosecutor who obscured basic facts while trying to be sympathetic to the accuser, and a judge who failed to question key features of the case. Everyone was trying to be empathetic to the point where due process was subverted.