Thursday, November 24, 2016

UCSD Successfully Appeals Student Discipline Case

This week, the California Court of Appeals overturned a lower court ruling that found in favor of a student, John Doe, who had been suspended from the University of California San Diego for sexual misconduct.  In July of 2015, a superior court judge invalidated the university's suspension after concluding that disciplinary hearing was plagued by prejudicial procedural errors, including limits on his right to cross-examine the complainant and the investigator, as well as insufficient evidence to justify the findings in complainant's favor.

The appellate court disagreed with the lower court's conclusions.  One of the procedural errors that the lower court addressed was the fact that the respondent was not allowed to ask questions directly to the complainant. Instead, the hearing panel asked the questions John Doe had submitted. This was not itself a problem, but the lower court did find fault in the fact that the panel filtered out many of the proposed questions; only asking 9 of the 31 submitted by the respondent. But the appellate court concluded that the rejected questions were unnecessary or repetitive of earlier testimony.  For example, 7 of the rejected questions sought the complainant's admission that she sent certain text messages, which was unnecessary since the text messages themselves were already in evidence. Moreover, Doe did not argue in his appellate briefs how exactly his case was harmed by the hearing panel's exclusion of various questions.

The lower court had also found that that the hearing panel improperly relied on the investigator's report. But, despite John Doe's argument to the contrary, the appellate court recognized that university policies put him on notice of the fact that the report would be used as a factfinding document.  Additionally, though John Doe claimed he was prejudiced by not being able to cross-examine the investigator who wrote the report, the appellate court noted that Doe could have called the investigator as a witness for that purpose, and that he neglected to do so.

The lower court had based its determination of insufficient evidence on its conclusion that the hearing panel should not have relied on the complainant's testimony or the investigator's report, because neither had been scrutinized under cross-examination.  The appellate court, having rejected the alleged procedural errors about cross examination, easily determined that there was sufficient evidence of John Doe's guilt.

Lastly, the appellate court reversed the lower court's conclusion that the university's decision to suspend John Doe was an abuse of discretion, especially in light of the fact that the length of the sanction increased with each of John Doe's internal appeals. But the hearing panel, which only recommended suspension for one quarter, was only authorized to do that, recommend.  The Dean, who sanctioned Doe for a one year suspension, always had the ultimate authority to determine the initial sanction. While the Dean departed from the hearing panel's recommendation, the appellate court found that the Dean's sentence was consistent with university policy. The council of provosts, which considered John Doe's appeal of the Dean's sentence, increased the sanction to one year and a quarter. The appellate court found that the council's reasons were related to the content of the appeal, and not, as Doe claimed, punishment for exercising his right to appeal in the first place.

The lower court has been ordered to deny John Doe's petition for mandamus, which would have canceled his suspension. It is not clear to me what that means for Doe himself, given the time that has already passed while his case and appeal were pending.

Wednesday, November 23, 2016

New Secretary of Education Announced

The President-elect has announced his pick for Secretary of Education: Betsy DeVos, a public school reform advocate and former chair of the Michigan Republican Party.

DeVos currently chairs the board of directors for the American Federation for Children, an advocacy group committed to school choice through means such as vouchers and tax credits.

Though there is little public information I could find on DeVos from which to predict what her appointment would specifically mean for Title IX enforcement, the few clues I did find suggest that she is unlikely to champion the law's aggressive enforcement. In 2006, a Michigan right-wing watch group compiled a report on DeVos and her husband's philanthropy, which targets many conservative religious causes -- including a $50,000 gift to Grove City College, which notoriously refuses to participate in federal financial aid programs so that it will not have to comply with Title IX. (DeVos's own alma mater, Calvin College in Grand Rapids received a requested Title IX exemption in 1985 that permit the seminary program to limit certain internships to male students, consistent with the policy of the Christian Reform Denomination not to ordain women.  However, unlike many other religiously affiliated institutions, Calvin College has not sought exemptions from Title IX's application to LGBT students.)  The same report also indicates that she and her husband have donated to the Institute for Marriage Policy and the Michigan Family Forum -- groups that opposed same-sex marriage. From this it seems reasonable to predict that DeVos will not continue the current administration's push for Title IX's application to LGBT students. Add to that her financial support for pro-life groups and I think it's fair to say the incoming Secretary is no feminist, and would be unlikely to choose one as Assistant Secretary for Civil Rights.

Monday, November 14, 2016

University of Maryland's Title IX Fee

* There is a lot to say about what last week's election of Donald Trump means for Title IX. I am still gathering my thoughts and reading others'. Meanwhile, I continue with my commitment to public scholarship and advocacy of gender equality in education in this forum as I contemplate how else I can best make change.*

Old news: The University of Maryland student senate voted to implement a fee of $34 per student to help fund the school's "understaffed and overworked" Title IX office. As Erin told Inside Higher Ed, this is the first time we have heard of a university using student fees to fund its Title IX Office.

First thing to note is that, though the SGA approved the fee, it was not a done deal; which leads to...

...newer news: the SGA has decided not to devote student fees to the Title IX office. After the national news attention UMD received, the president held a meeting with SGA leaders and said the university would fund the office. It has committed to hire an additional investigator, two professionals in the health care center dedicated to counseling on these issues, and it will hire a firm to evaluate how UMD handles sexual assault reports. 

Apparently the move by the SGA was one intended to pressure the administration to pay more attention to the issue of sexual assault on campus. And it worked. In addition to the news coverage, state legislators started asking questions about why the burden of funding the Title IX office was being put directly on students.

SGA leaders, however, did say that they would reintroduce the idea of the fee if they did not see the university following through.

Initially it appeared that the university really needed the money from the students. But now money has been found in the budget. The people who work in compliance are pleased with the additional funding. It seems that things have tough in the past few years. The Title IX Office does not even have an office--two years after UMD hired its first Title IX coordinator.

A spokesperson for the university had called the vote to fund the office in part through student fees "a show of support for the important mission of the Title IX office."

The better show of support is the university fully funding its Title IX office and its mission; a mission that it is legally required to undertake. Could they have chosen this method of funding? Yes. But as it turned out the ethics and the optics of this route to compliance drew a lot of questions.

The commitment to the "important mission" was already suspect. Two years without an office? That is a nearly impossible and potentially dangerous situation. One, the amount of paperwork and organization is immense. Managing all of that without a permanent home impedes the ability of staff  Two, there are privacy issues involved. A mobile or constantly shifting office compromises privacy And, if there is no permanent home, how do students know where to go? While there are other reporting options--professors, residence hall assistants and directors, counseling and health services--all of those people, as well as students, should know where the Title IX officer is located.

Though there may be other universities in similar situations (underfunded Title IX offices), UMD's situation made national news. We will likely hear more about how the university chooses to demonstrate its institutional support of Title IX.