Op-ed: In face of legal developments, UC strives to ensure integrity of Title IX process
March 7, 2019 12:53 pm
Nationwide, higher education institutions like the University of California are navigating a period of uncertainty around the laws governing our response to sexual harassment, including sexual violence.
Understandably, the UC community is concerned.
As the University’s interim systemwide Title IX coordinator, I want to make sure this lack of certainty does not prompt confusion or even fear. So I would like to explain how some recent developments affect the UC – including proposed federal regulations and California case law – and how we are choosing to respond. I also want to underscore the UC’s unwavering commitment to a fair resolution process that treats parties with respect and compassion, and results in just outcomes.
Many of you know the U.S. Department of Education published proposed Title IX rules in November that would dictate how schools respond to sexual harassment complaints. The UC has taken a strong, public stance against parts of the rules, including its very narrow definition of sexual harassment and the low standards it would hold schools to. The UC will continue to take such a stance.
We do not know at this point when the department will issue the rules, or what those policies will ultimately require. Still, I know the simple prospect of the rules, and the surrounding ambiguity, leave many of you worried. As an attorney who dedicated over a decade to the department’s Office for Civil Rights, I am troubled, too. When the department eventually issues the rules, the UC will respond strategically and thoughtfully, prioritizing the security and well-being of our students and the broader community.
But more pressing developments have occurred at the state level. In January, an appellate court ruled for the first time that California colleges and universities must hold hearings to resolve sexual misconduct cases in which the respondent is a student, sanctions are potentially severe, and credibility is a central issue.
While we await news of the federal Title IX rules, the UC has had to take immediate steps to comply with this state ruling. We have done so with the primary goals of protecting both parties and the integrity of the process. Specifically, we have revised and issued an interim sexual violence and sexual harassment student adjudication framework to provide both complainants and respondents the right to an appeal with an evidentiary hearing for any reason in any case resulting in suspension or dismissal. Even before the recent changes, the framework allowed parties to request an appeal of their cases on certain grounds, with a possible hearing – and the interim policy expands this part of the process.
It is important to know the appellate court ruling does not require that cross-examination take the form described in the Department of Education’s proposed Title IX rules. The proposed Title IX rules would require that hearings include cross-examination conducted by parties’ representatives, who are often lawyers.
I understand this is an intimidating prospect for both parties as well as witnesses, but particularly for those wrestling with the already difficult decision of whether to come forward. While courts recognize the importance of allowing parties to pose questions, rulings have allowed impartial intermediaries such as a hearing panel to pose questions.
Furthermore, both the courts and the proposed federal Title IX rules allow parties to participate in hearings from separate locations to make the experience less intimidating. In the UC’s appeal hearings, a neutral person poses questions and may exclude those they deem harassing, irrelevant or unduly repetitive, and parties will be physically separated if they prefer. This is how the University has conducted appeal hearings in the past, and how we will proceed under our interim policy.
To be clear, we have no intention of allowing cross-examination by parties’ lawyers or other representatives or adopting other aspects of the proposed Title IX rules that we believe would be harmful, unless and until we are absolutely legally required to do so.
While the interim policy is in place, a systemwide workgroup the University recently formed will help develop a longer-term approach to conducting hearings, and carefully, thoughtfully address the most difficult questions they present – informed by both law and best practices. Comprising dedicated representatives of stakeholder groups through the UC community, including students, faculty, Title IX and student conduct staff, and Campus Assault Resource and Education advocates, this workgroup will help us arrive at solutions that are not only legally compliant, but also true to our values. The University will also dedicate its attention to ensuring our informal resolution process is as robust and meaningful an option as possible for those who prefer an alternative to a hearing.
Finally, I want to assure you that the Title IX and Student Conduct professionals on your campus care deeply about students, and are committed to getting this right. Additionally, your CARE office is dedicated to supporting individuals who have experienced sexual misconduct, and the Respondent Services office is equally committed to assisting respondents going through the Title IX process. I encourage you to draw on these resources to understand these changes and how they might affect you.
Combating sexual harassment and fostering a culture of safety, respect and accountability require an unshakable commitment to progress, even in the face of change and uncertainty. The UC has made tremendous headway the past few years, and we will not allow obstacles to halt our trajectory. A fair process is critical – yet of little value unless members of our community harmed by sexual misconduct continue to come forward. The UC must continue to hold the values of fairness and humanity equally close as we confront the current challenges and those ahead.
We will not be discouraged and we will not falter – this work is far too important.
Taylor is the UC’s interim systemwide Title IX coordinator.