California’s sexual misconduct policy must be fair to all
In 2011, when the Obama administration announced changes in how it interpreted the federal law guiding how colleges respond to allegations of sexual misconduct, there was broad applause from many Americans. They had heard years of horror stories about administrators reacting to allegations of sexual violence with disinterest, disbelief and/or a desire to avoid negative publicity about their campuses. The Obama interpretation of Title IX — the landmark 1972 federal law mandating equal treatment of the sexes by institutions receiving federal education funds — pushed colleges to take allegations of such misconduct much more seriously and to document their investigations to prove their seriousness.
Seven years later, there is no question that colleges are far more sensitive and responsive on this issue. But after a series of successful lawsuits against colleges over Title IX prosecutions, a powerful argument can be made that good intentions made for flawed policy — one that denied millions of college students the due process rights of other Americans. This view led Betsy Davos, President Donald Trump’s choice for education secretary, to formally drop the 2011 interpretation of Title IX last September. Anticipating this move, the state Legislature passed a bill that would have written a version of the Obama rules into state law.
To the surprise of many, Gov. Jerry Brown declined to sign the bill, writing that “thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault ... have also unintentionally resulted in some colleges’ failure to uphold due process for accused students.”
Brown said he would “convene a group of knowledgeable persons” to help the state come up with its own policy. This week, his aide said a “retired judge and two faculty members” — whose identities were not disclosed because of the “sensitive” nature of their task — are expected to provide recommendations by Oct. 1.
Whatever policy is recommended, there’s now a fresh reminder that the due process rights of the accused must not be abridged. On Aug. 8, a state appeals court in Los Angeles ruled on a 3-0 vote that a male Claremont McKenna College student punished for alleged wrongdoing had his rights violated by a college disciplinary process that limited his ability to defend himself against accusations. The verdict affirmed the view of Harvard law professor Nancy Gertner, who wrote in 2015 that policies adopted by colleges created the “worst of both worlds” for accused students — a system in which they could be found guilty based on a “preponderance” of evidence, as with civil lawsuits, but without the protections available in civil lawsuits through the evidence discovery process.
The good news for the Golden State is that there’s already an appreciation that due process matters at the University of California. UC President Janet Napolitano — who raised sharp questions about the Obama rules in a 2014 essay for the Yale Law & Policy Review — has ordered UC campuses to follow a transparent process that ensures the rights of the accused, according to new San Diego State University President Adela de la Torre, a former UC Davis vice chancellor.
This is as it should be. Creating a safe college environment where students feel they can report misconduct without repercussions is crucial. But this must not be done in a way that unfairly limits a student’s ability to respond to potentially life-wrecking allegations.