While these proposed regulations have yet to be solidified nationwide, California adopted the live-hearing model in January 2019, per John Doe v. Kegan Allee, Ph.D., et al. This case called the current model of adjudication “fundamentally flawed, in that it provides no mechanism for a party accused of sexual misconduct to question witnesses before a neutral fact finder vested with power to make credibility determinations”.
For the UC system, this means that in any substantiated Title IX case in which the policy violation could warrant a suspension from the school (such as a sexual assault-penetration case) and in which either party’s credibility is assessed to make that determination, the respondent can appeal the sanction. Before this case law, any party could appeal on four grounds: 1) There was a procedural error in the Title IX investigation; 2) The decision was unreasonable based on evidence; 3) There is new evidence that was unavailable at the time of the investigation; 4) The sanctions are disproportionate to the findings. Now, any party can appeal on any grounds and have their appeal heard in in a live hearing where witnesses, the complainant, and the respondent can be questioned directly or through a neutral party.
Furthermore, this case law essentially converts the new hearing into a de novo hearing, with those hearing the appeal now vested with the power to make decisions based on the information brought forth. While Title IX cannot mandate anyone’s participation in this process, it now is crucial for both parties to participate for their side to be heard.
UCSB and Title IX
UCSB’s Title IX office has worked to maintain equitable and timely responses to policy violations. While the current federal guidance suggests that a Title IX investigation take 90 business days to complete, many of them take much longer. A large portion of these investigations take over 270 business days to complete, endangering the complainant’s due process, their access to equitable education, and the process by which a substantiated claim can result in a sanction for the perpetrator. If a claim of sexual assault – penetration is substantiated, the minimum sanction for a student respondent is a two-year suspension. There are no minimum sanctions for respondents who are faculty or staff. If a student graduates while being investigated, Title IX has limited jurisdiction by which to issue a sanction. If a claim is substantiated for a student who has already graduated, the school may place a hold on the release of their diploma or their transcripts for period of time.
The delay in investigations means that complainants and respondents will continue to have equal access to education and educational programming unless interim measures are taken (interim measures are implemented if the respondent represents a significant threat to the campus community). Furthermore, there is a chance that respondents whose cases are delayed are still able to violate policy while under investigation, leading to multiple complaints being investigated for the same respondent. The school’s inability to swiftly investigate and adjudicate these violations jeopardizes other students, and potentially enables those with a substantiated claim to enter into the professional world without having faced any consequences for their egregious behavior.
UCSB’s CARE office works confidentially with survivors of interpersonal violence to provide support and resources. Between 20-25% of the survivors we work with opt to report these crimes to law enforcement and/or Title IX, with the hope that they will see a prompt and just response. When the school takes over a year to investigate these crimes, and a negligible rate of prosecution exists (for many reasons: lack of evidence, cases involving alcohol are difficult to prosecute, etc), survivors are often faced with a reality in which they must live side by side with their perpetrators.
Understandably, due process is a critical component in these cases, however when faced with barriers of a delay in investigation, the chance of being re-traumatized in a de novo hearing, and the likelihood that the perpetrator will graduate without facing any punishment for their policy violations, we are left to wonder for whom due process exists. Many survivors struggle to talk about their stories with their family, seek guidance from an advocate, or understand the complex process they are taking part in. For that reason, we need the support of lawyers who are well versed in Title IX case law and policy, the strategies of the “defense”, and the complexities of cases involving sexual violence.