Wednesday, July 15, 2015

Court Rules UC San Diego Unfairly Sanctioned Student for Sexual Assault

A Superior Court judge in California recently invalidated the University of California at San Diego's decision to suspend a student for sexual assault after finding that the university denied the student a fair hearing and lacked the evidence to find him responsible. The student challenged the university's decision under a provision of California law that requires state agencies -- applicable as well to state universities -- to use fair procedures and reach evidence-based decisions. Because this is the Title IX Blog, I'm going to analyze the decision with particular attention to whether it creates a conflict between a university's obligation under Title IX to respond to sexual assault, and its other simultaneous obligation to protect the rights of a student who is accused.

Procedural errors. The judge found that the university unlawfully limited the plaintiff's right to cross-examine the primary witness against him, namely, the female student who had accused him of sexual assault.  According to the university's procedures, a student who is accused of sexual assault does not cross-examine the complainant directly, but rather, submits his questions to the chair of the disciplinary panel that is conducting the hearing, who asks the questions on behalf of the accused.  In this case, the accused student submitted 31 questions for possible cross-examination of the complainant, but the chair asked only 9 of them.

Notably, the court's ruling on this issue does not conflict with a university's responsibilities under Title IX to effectively respond to sexual assault complaints.  The Department of Education's guidance is agnostic on the question of whether to permit cross-examination of witnesses and parties, only that the rights of both parties be the same in that regard.  And while the Department endorses the practice of conducting cross-examination through an intermediary like a hearing administrator, that practice itself was not the problem in this case. In fact, the court didn't seem to have a problem in general with the practice of weeding out questions "to prevent additional trauma to potential victims of
sexual abuse." It was just that, in this case, the chair took that too far and redacted a whole series of questions about ostensibly exculpatory text messages exchanged by the parties after the alleged assault.  In so doing, the university denied the plaintiff a meaningful opportunity to be present a material aspect of his defense.

Next, the court found that the plaintiff should have had the opportunity to cross-examine the investigator who prepared a report that was introduced at the hearing.  Because the investigator was not a witness at the hearing, the plaintiff had no opportunity to challenge the content of the report or counter the report's conclusion that he was guilty.  Again, this ruling does not create any conflicts with Title IX, which nowhere endorses denying students the right to challenge an investigators' findings.

However, another problem the court had with the hearing was the fact that the committee allowed the complainant to testify against the plaintiff from behind a screen. This objection is less persuasive to me than the others, since the court's only rationale was that a screen was unnecessary because the plaintiff had not be hostile towards the complainant.  (The court also pointed out that a screen prevents the fact finder from evaluating facial expressions and non-verbal communication, which may be relevant to credibility.  However, there seemed to be some uncertainty, which the court did not resolve, about whether only the plaintiff could not see the complainant or whether the committee's view of her was blocked as well.)  In terms of Title IX, the Department of Education endorses (though it does not require) the practice of sequestering the complainant to spare her additional trauma of being in the same room as the person she is accusing of rape, and still having her participate "by using closed circuit television or other means." Schools, at least public schools in California, should be wary going forward of considering screens as such "other means."

Lack of evidence to support decision.  In addition to committing procedural errors, the university also failed to base its decision on "substantial evidence" as required by California law -- a standard of evidence which (despite word "substantial" in its name) only means "evidence that a reasonable mind might accept as adequate to support a conclusion."  If there is a difference between this standard and the preponderance standard required by the Department of Education's Title IX guidance, I believe it is a negligible one.  Yet, in this case, the court determined that such evidence was lacking.  Because the investigator's report was not subject to cross examination, it should have been excluded from consideration. Therefore, the complainant's hearing testimony was the only relevant evidence the committee should have considered, and the court viewed this testimony as ambivalent on the matter of consent.

Change of sanction with no explanation. The final error committed by the university was to respond to the plaintiff's appeal of the committee's decision to the Dean by increasing his sanction from one quarter to one year. There was no basis for this decision nor any explanation provided. It probably goes without saying, but of course a university is under no Title IX obligation to take a similar course of action.

In sum, I think this decision is important because it reminds institutions who are increasingly aware of their Title IX obligation to address sexual assault of their of their concomitant obligation to provide fair and meaningful hearings to students who are accused.  Not only for the sake of students who are accused, but victims and their advocates have a stake in the integrity of the process as well. It is possible to hold fair hearings and comply with Title IX and that is what colleges and universities should be striving to do.