Ruling affirms rights of students accused of sexual misconduct
California colleges scramble to revise how cases are handled
LOS ANGELES – Colleges and universities across California are scrambling to revise the way they handle sexual misconduct cases after a state appellate court ruled that “fundamental fairness” requires that accused students have a right to a hearing and to cross-examine their accusers.
The decision last month came in a University of Southern California case but applies to all California public and private colleges, and prompted many to immediately halt Title IX investigations while they reshape their procedures. California State University, the University of California and USC, Claremont Mckenna and Occidental colleges confirmed that they have made or soon will be making changes.
They already had been bracing to do so. In November, U.S. Education Secretary Betsy Devos proposed controversial new federal rules that would strengthen the rights of the accused in sexual misconduct cases. The rules would apply to Title IX, which bans discrimination based on sex in educational programs and activities at schools that receive federal funding.
At many campuses, investigations are conducted in small, private settings. Accused students are not allowed to directly confront their accusers but may pose questions through a Title IX investigator who meets separately with each of them.
Officials and advocates question how academic institutions will be able to handle proceedings more common to courtrooms as well as the effects of potentially harsh confrontations between students. They also wonder about how much new funding, hiring and training will be required to adapt.
“We’re looking at a potential fiasco,” said Brett Sokolow, president of the Association of Title IX Administrators.
The California court ruling marks the latest twist in the highly contentious arena of campus sexual assault. Many universities adopted new Title IX procedures in 2016, as directed by the Obama administration, to become more sensitive to victims – such as indirect questioning.
Those changes set off a national backlash. Students accused of sexual misconduct have filed scores of lawsuits arguing that campuses denied them fair hearings. They have won cases in states including California, Ohio, Michigan, Mississippi and New Mexico.
California campuses must immediately comply with the appellate court decision, which has sparked a wide range of reactions.
“It will protect millions of college students in California from losing their education in a process that’s arbitrary,” said Mark Hathaway, a Los Angeles attorney who has pioneered much of the litigation on behalf of accused students.
At Cal State Dominguez Hills, news that those who report sexual misconduct could soon be subject to confrontational hearings unnerved many students interviewed.
“As it is, it’s hard to report what happened to you . ... “said Mariah Rubira, a senior who was interviewed as a witness in one campus sexual misconduct case and said the current process works well. “#Metoo was big. People started to take a stand. I think this change would just push people back into silence.”