Class Action Claims UC Regents Title IX Process is Unfair for Alleged Perpetrators

Posted in Legal News on August 20, 2019

August 20, 2019

Written on behalf of John D. Winer

A group of University of California students accused of sexual misconduct is pushing back as part of a growing backlash to the #MeToo movement. The class representative in a recently filed class-action lawsuit was a UC graduate student who said he dated another student twice — and was shocked when she accused him of stalking and sexual harassment in a Title IX complaint in 2017.

The UC system substantiated her allegations, he said and suspended him for two years in June 2017. Reducing the sanction to three months on appeal, but the accused student is fighting back — not only for himself but for potentially hundreds of others, in similar straits.

The lawsuit filed in Alameda County against the 10-campus system, argues that the procedures used to find him and other students responsible for sexual misconduct are unfair and failed to provide them with due process. A male Cal State Fullerton student filed a similar class-action lawsuit last month against the 23-campus California State University system.

Colleges and universities across California are now scrambling to revise the way they handle sexual misconduct cases after a state appellate court ruled that “fundamental fairness” requires that accused students have a right to a hearing and to cross-examine their accusers.

UC and Cal State officials say they believe their Title IX processes are fair, respectful to all involved and comply with state and federal law. Both systems recently issued new policies and procedures to strengthen due process protections for accused students, as courts have ordered and U.S. Education Secretary Betsy DeVos has proposed in new Title IX rules.

In November, U.S. Education Secretary Betsy DeVos proposed controversial new federal rules that would strengthen the rights of the accused in sexual misconduct cases. The rules would apply to Title IX, which bans discrimination based on sex in educational programs and activities at schools that receive federal funding.

In an interview with the LA Times, Brett Sokolow, president of the Assn. Of Title IX Administrators, called class action a “clever approach” that would make legal action accessible to potentially thousands of students unable to afford personal lawsuits. He said more than 300 students across the nation have filed lawsuits challenging their Title IX outcomes, but he estimated that as many as 20,000 students at the nation’s 4,500 colleges might have been disciplined for sexual misconduct. However, Sokolow said that if one of these cases succeeds it opens the floodgates for more legal action in the future.

For the class-action lawsuits to proceed, the courts must first agree that the proposed class of students can be clearly defined, have suffered the same alleged injuries and share a common legal interest. Courts have yet to certify the course in any of the lawsuits, and Toni Molle a Cal State spokeswomen told LA Times, university officials don’t believe they should.

Both Cal State and UC have recently issued new Title IX policies and procedures to comply with the appellate court ruling to allow cross-examination at hearings and end the practice of allowing a single investigator to interview witnesses, gather evidence and determine facts and findings of whether the allegations are true.

Under UC’s new policies issued this week, any student dissatisfied with preliminary determinations and proposed sanctions can request a hearing. Previously, trials were granted only in limited circumstances. Cal State will provide trials in all cases before determining whether sexual misconduct occurred. Already, discussions were held only after sanctions had been proposed.

Both systems will offer video conferencing or other means of physical or visual separation to reduce the potential for trauma at the hearing. They also will allow only lengthy cross-examination through questions submitted by both sides to the hearing officer, who may choose not to ask any deemed irrelevant or harassing.

With new changes in act, many beg the question of how will it affect the survivors of past incidents? One of the changes that would affect the college student population is the one that limits the school’s responsibility and liability. Under the new changes, the school would only be responsible for incidents that take place directly on campus or within school-sponsored programs or activities. With a large population of University students living in apartments, incidents do not always take place on school grounds, and that creates room for more issues to arise.

I have represented victims of sexual harassment and sexual violence in several cases, including one from 2016 against the former dean of the UC Berkeley School of Law — I have concerns about the lawsuit discouraging people from coming forward.

During my interview with the Daily Californian, I said “it would just completely tilt the playing field in favor of the perpetrator and their lawyers, and it would have a strong repressing effect on victims coming forward in the same way that victims are scared to go to the police, you know, this is supposed to be a safe alternative to that, but if the perpetrators have their way, then it’s not a safe alternative at all. It becomes a less safe alternative because the perpetrators are going to have lawyers and the victims are going to have nobody protecting them.”

If you have faced sexual harassment or sexual violence, you can file an internal complaint with your school, and your school can take steps to prevent further harassment. Those steps could include changing your class schedule, prohibiting the perpetrator from contacting you or even taking disciplinary action against the perpetrator. If you believe your school has failed to investigate complaints or protect its students, you can also file a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR), the federal government agency charged with enforcing Title IX.

Schools should have an official, often called a Title IX coordinator, who should be monitoring compliance with the law and available to students, faculty, and staff, to investigate and respond incidents of sexual harassment and sexual violence. Schools must also make accommodations and interim measures available to students to address the effects of sexual harassment and abuse. These measures can range from changing class schedules to avoid contact between students in providing campus escort services.

Schools have obligations under Title IX to stop sex discrimination, prevent its recurrence, and address its effects. To do so, schools must have a policy in place that prohibits sexual harassment, sexual violence, and grievance procedures that provide for a prompt and equitable resolution when incidents occur.