Category: California

Broken on Campus: High-Profile Failures Reveal Title IX Offices are in Desperate Need of Reform

Post author By Edward Bartlett
Post date July 22, 2023

PRESS RELEASE

Rebecca Hain: 513-479-3335

Email: info@saveservices.org

Broken on Campus: High-Profile Failures Reveal Title IX Offices are in Desperate Need of Reform

WASHINGTON / July 24, 2023 – Three recent reports reveal widespread oversights and failures at university offices that were established to assure compliance with Title IX, the federal law enacted to stop sex discrimination in schools. The problems with Title IX are being seen throughout the country at institutions large and small, private and public, in three areas:

Discrimination against Male Students: A recent article in the Chronicle of Higher Education reveals the existence of a broad array of scholarships, leadership development programs, awards, and summer camps that illegally exclude male students. The article notes that economist Mark Perry has filed hundreds of anti-discrimination complaints with the federal Office for Civil Rights, alleging more than 2,000 violations of federal antidiscrimination law by more than 750 colleges in virtually every state around the country (1).
Due Process: To date, 265 judicial decisions have been handed down (2) against colleges for sex discrimination (3), lack of due process, and other similar violations. One of the most notable decisions was rendered on June 27 when the Connecticut Supreme Court unanimously ruled in favor of student Saif Khan, who had been falsely accused of sexual assault. The Court singled out numerous due process deficiencies in the school’s Title IX procedures, including the fact that Yale “failed to establish an adequate record of the proceedings.” (4)
Handling of Sexual Harassment Complaints: A new report reveals a constellation of failures at California State University, the nation’s largest four-year public university. The report documents the lack of a coordinated approach across the 23-campus system, resulting in sexual misconduct complaints being ignored, mishandled, or falling through the cracks. The report deplores the lack of a “consistent formal process for reporting, resolving, documenting, or tracking” of complaints, and makes numerous recommendations for improvement (5).

Part of the problem can be traced to a lack of legal expertise among Title IX coordinators. According to the Association of Title IX Administrators, the leading trade organization for Title IX coordinators, fewer than one in four coordinators have a Juris Doctor degree (6). Another analysis revealed a pro-feminist, anti-male bias among many Title IX coordinators (7).

In addition, the Association of Title IX Administrators has a well-documented history of seeking to roll back on Fourteenth Amendment-based due process protections for the accused (8). Last year, a lawsuit was filed against ATIXA president Brett Sokolow for allegedly using company funds for personal purposes and defrauding clients (9).

All of these facts point to a pervasive lack of impartiality, professionalism, and legal expertise in the Title IX field. One might reasonably conclude that these problems need to be addressed before any efforts are make to widen the scope of the Title IX law or increase the duties of Title IX coordinators.

And that’s exactly what the Department of Education’s proposed Title IX regulation seeks to do (10).

Citations:

California Campus Due Process Sexual Assault Sexual Harassment Stalking Title IX

Appellate Judge Issues Ground-Breaking Title IX Decision Against UCLA

Post author By Edward Bartlett
Post date January 14, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Appellate Judge Issues Ground-Breaking Title IX Decision Against UCLA

WASHINGTON / January 14, 2022 – In a groundbreaking decision, the 9th Circuit Court reversed and remanded a California district court’s decision to dismiss a graduate student’s Title IX claims against the University of California Los Angeles (UCLA). The John Doe v. Regents of the University of California decision was issued by Judge Consuelo Callahan on January 11.[1] This was the first time in California that a federal Title IX case brought by an accused student has survived a motion to dismiss.

In 2017, Jane Roe filed a Title IX complaint against John Doe alleging 13 instances of sexual misconduct, including dating violence, sexual assault, and stalking. Despite the many discrepancies in Roe’s story, UCLA’s Title IX hearing committee ruled in favor of Roe, resulting in the suspension of Doe for two years.[2]

Doe brought suit against UCLA in the Central District of California, alleging the university violated Title IX during a Title IX Investigation and disciplinary proceeding. The District Court of the Central District of California granted UCLA’s motion to dismiss Doe’s Title IX claims, ruling that Doe failed to show that sex-bias was a motivating factor in initiating proceedings against him.[3]

To survive a motion to dismiss a Title IX claim, the court in Schwake v. Arizona Board of Regents,[4] clarified the pleading standard for Title IX claims. Specifically, a plaintiff only must provide “enough facts to state a claim for relief that is plausible on its face,[5]” and “[s]ex discrimination need not be the only plausible explanation or even the most plausible explanation for a Title IX claim to proceed[.]”[6]

Based on the Schwake standard, Judge Callahan concluded that “Doe’s allegations of external pressures [through the Dear Colleague Letter] and an internal pattern and practice of bias [among UCLA Title IX Investigators], along with allegations concerning his particular disciplinary case, give rise to a plausible inference that the University discriminated against Doe on the basis of sex.”[7]

Mark Hathaway, counsel for the plaintiff, noted that this decision was a victory for those fighting against institutional sex bias:

“Today the court acknowledged that biased assumptions against male students and the procedural irregularities in UCLA Title IX campus enforcement, all disfavoring accused male students, show an unacceptable pattern and practice of gender bias at the University of California. The ruling allows John Doe to renew his effort to hold UCLA accountable for what was done to him and to stop UCLA from harming other students regardless of gender.”

This marks the 45^th judicial decision against colleges in which judges found illegal sex discrimination against male students.[8] Many students who have successfully overturned Title IX disciplinary decisions in state court will now be able to seek damages in federal court for the sex discrimination they faced in the campus process.

Citations:

[1] Doe v. Regents of the University of California, No. 20-55831, at *6 (9th Cir. 2022). https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/11/20-55831.pdf

[2] Id. at *8.

[3] Id. at *9.

[4] 967 F.3d 940 (9th Cir. 2020).

[5] Id. at 947.

[6] Id. at 948.

[7] Doe v. Regents of the University of California, at *23.

[8] https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/

California Campus Due Process Sexual Assault Sexual Harassment

10 California Universities Now Listed in the Kangaroo Court ‘Hall of Shame:’ USC is the Worst Offender

Post author By Edward Bartlett
Post date December 17, 2021

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

10 California Universities Now Listed in the Kangaroo Court ‘Hall of Shame:’ USC is the Worst Offender

WASHINGTON / December 17, 2021 – Ten California schools have been on the losing end of a growing number of judicial decisions for campus sexual harassment cases. The cases involved a broad range of due process failings, including a presumption of guilt, lack of timely notification of allegations, guilt-presuming investigations, overly biased hearings, and sex discrimination against male students.

The school with the largest number of adverse rulings is the University of Southern California, with six decisions against the institution to date. In the Boermeester v. Carry case, the judge explicitly affirmed the necessity of cross-examination procedures:

“The judgment is reversed and the matter remanded to the superior court with directions to grant Boermeester’s petition for writ of administrative mandate. Should USC choose to proceed with a new disciplinary hearing, it should afford Boermeester the opportunity to directly or indirectly cross-examine witnesses at an in-person hearing.” [emphasis added]

In addition to USC, nine other California schools have been found by judges to have violated basic due process, fundamental fairness, Title IX, and/or contractual obligations:

University of California – Santa Barbara – 2 judicial decisions
California Institute of Technology – 1
California State University – Chico – 1
California State University – Fresno – 1
California State University – Northridge – 1
Claremont McKenna College – 1
Pomona College – 1
San Diego State University – 1
Westmont College – 1

The campus adjudications that are challenged in court represent a small subset of the total number of Title IX cases, suggesting that due process protections are under assault by California institutions. A listing of the case citations is shown below.

More information about these and other judicial decisions is available in SAVE’s Analysis of Judicial Decisions Affirming the 2020 Title IX Regulations. https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/

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Citations for California Judicial Decisions

Name of College	Number of Decisions	Case Citation (in reverse chronological order)
University of Southern California	6	Boermeester v. Carry, 263 Cal. Rptr. 3d 261, 279 (Cal. Ct. App. May, 28, 2020) Doe v. Allee, 242 Cal. Rptr. 3d 109, 137 (Cal. Ct. App. Jan. 4, 2019) Doe v. Carry, Cal. Ct. App. No. B282164, 2019 WL 155998 (Cal. App. Jan. 8, 2019) Doe v. University of Southern California, 29 Cal. App. 5th 1212, 1234, 241 Cal. Rptr. 3d 146, 164 (Cal. Ct. App. Dec. 11, 2018 Doe v. Ainsley Carry et al., Case No. BS163736 (Cal. Sup. Ct. Dec. 20, 2017) Doe v. Univ. of S. California, 200 Cal. Rptr. 3d 851 (Cal. Ct. App. Apr. 5, 2016)
University of California – Santa Barbara (UCSB)	2	Doe v. Regents of the University of California, 2d Civ. No. B283229 (Cal. Ct. App. Oct. 9, 2018) Doe v. Regents of the University of California, et al., Case No. 17CV03053 (Cal. Sup. Ct. Dec. 22, 2017)
California Institute of Technology	1	Doe v. California Institute of Technology, 2019 Cal. Super. LEXIS 10956 (Cal. Sup. Ct. July 9, 2019)
California State University – Chico	1	John Doe v. Trustees of the California State University, et al., No. BS167261 (Cal. Super. Ct. May 30, 2018)
California State University – Fresno	1	Doe v. The Trustees of the State of California, No. BS167329 (Cal. Sup. Ct. Feb. 5, 2019)
California State University – Northridge	1	Doe v. White, No. BS171704, (Cal. Sup. Ct. Feb. 7, 2019)
Claremont McKenna College	1	Doe v. Claremont McKenna Coll., 236 Cal. Rptr. 3d 655, 667 (Cal. Ct. App. Aug. 8, 2018)
Pomona College	1	Doe v. Glick, No. BS163739, 2017 WL 9990651 (Cal. Sup. Ct. Oct. 16, 2017)
San Diego State University	1	Doe v. Rivera, No. 37-2015-00029558-CU-WM-CTL (Cal. Sup. Ct. Feb. 1, 2017)
Westmont College	1	Doe v. Westmont College, 34 Cal. App. 5th 622, 625 (Cal. Ct. App. Apr. 23, 2019)

California Title IX

California’s ill-advised attempt to circumvent new Title IX rules

Post author By saveadmin
Post date August 28, 2020

The California State Capitol in Sacramento.

The California Assembly is debating SB 493, a bill which will further entrench problematic procedures for resolving campus sexual assault accusations. The bill, which was introduced in 2019, has already passed the state Senate. It includes many provisions that are at odds with due process and may also conflict with the U.S. Department of Education’s new Title IX rules, which took effect on Aug. 14.

California has already locked into state law the misguided and impractical “affirmative consent” standard for determining whether a party has consented to sexual activity. It already requires that schools use the low “preponderance of the evidence” standard when resolving accusations of campus sexual misconduct. Enacting SB 493 would put due process at even further risk.

The bill is so devoid of procedural protections for the accused that the legislature, despite addressing the concept of burdens of proof, amazingly declined even to state that an accused student must enjoy a presumption of innocence before they may be found responsible. Instead the bill states:

[T]he investigation and adjudication of alleged misconduct under this section is not an adversarial process between the complainant, the respondent, and the witnesses, but rather a process for postsecondary institutions to comply with their obligations under existing law. The complainant does not have the burden to prove, nor does the respondent have the burden to disprove, the underlying allegation or allegations of misconduct.

If the bill’s point is that it is the institution — and not either of the students — that bear the burden of proof, that is certainly defensible. But the obvious problem is that while institutions often make the same argument that campus sexual misconduct proceedings are educational in nature as opposed to being adversarial, that argument is total nonsense, as several courts across the country have concluded. For example, in Doe v. Notre Dame, a federal district court, in response to the university’s argument that it didn’t need to allow an accused student to have access to an attorney because its disciplinary process was educational and not punitive, wrote: “This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.”

The legislature would be wise to revise or reject SB 493 given that the provisions of the bill that are directly in conflict with the Title IX regulations are likely preempted.

Another example of SB 493’s ambivalence towards the rights of the accused is evident in the bill’s treatment of cross examination. The bill provides “cross-examination of either party and any witnesses shall be conducted indirectly, through the submission of written questions to the neutral factfinder in advance and with an opportunity for the other party to object.” The cross-examination provision is further limited and available only “if the institution determines that a hearing is required in order to determine whether a policy violation has occurred.”

In contrast, the federal Title IX rules require a live hearing whenever either party requests a hearing, and states that “decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” The regulations further clarify that “[s]uch cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by the party personally . . . .” Prior to the finalization of the Title IX regulations, this bill’s allowance for cross-examination through the fact-finder would have been a modest step in the right direction, since many schools didn’t allow cross-examination at all. However, even then the bill’s provision was insufficient, because it didn’t require fact-finders put their rationales for declining to ask certain questions on the record for appellate review. But since the regulations now require more robust cross-examination, the bill’s language is squarely at odds with them.

The legislation also fails to protect the interests of the accused by declining to guarantee student parties access to all of the evidence in the institution’s possession. While it prohibits the institution from using evidence it failed to disclose, institutions can still get away with concealing exculpatory evidence—after all, no institution would use exculpatory evidence to make the case that the student committed the offense. Only by providing access to all of the evidence in the institution’s possession can a respondent adequately prepare for his or her defense.

Another shortcoming of the bill is that it only provides for an appeal if the university has an appeals process in place. The Title IX regulations, however, require institutions to provide appeals to both parties.

The legislature should also be careful to ensure that it includes sufficient procedural protections in any legislation addressing allegations of campus sexual misconduct. Indeed, courts across the country are emphasizing the necessity of procedural fairness. As a court reviewing Brandeis University’s treatment of students accused of sexual misconduct powerfully explained:

Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts. If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.

California schools have not been providing fair procedures, and for the most part, SB 493 doubles down on the status quo. Still, one helpful provision of SB 493, which is more in line with the new regulations, requires institutions to ensure that the fact-finder — what they call the person responsible for investigating the complaint — is not the same person responsible for making disciplinary decisions.

The legislature would be wise to revise or reject SB 493 given that the provisions of the bill that are directly in conflict with the Title IX regulations are likely preempted. Such conflicts will only increase uncertainty among students, faculty, and administrators, and may even lead to federal Title IX investigation into school policies.

Aside from preemption (and the fact that legal experts and courts across the country, including several in California, are increasingly critical of the lack of procedural protections for accused students), the bottom line is that fundamental fairness demands that institutions treat both the rights of accusers and the accused seriously. FIRE would welcome a conversation with the bill sponsors to discuss our concerns with the legislation and how to ensure that California law produces fair campus proceedings consistent with federal law.