Title IX sexual harassment and violence claims are re-shaping college administrations across the Country. Many Universities are taking a closer look at their existing Title IX complaint procedures so as to further fine tune the handling of these claims. A few weeks ago, UCLA's punishment of a history professor triggered protests across its campus. The gripe was that the administration was perceived as being too lenient in the punishment it imposed as part of a settlement with that professor. This week, UC Berkeley, known nationally as a bastion of social justice, found itself on the cover of the Los Angeles Times under the heading: "Campus Tainted By Misconduct." The familiar problem was again that the administration was perceived as being too lenient in the punishment of a professor.
Let's face it, even in the most well-intentioned investigations of sexual misconduct, Universities can have conflicting interests when investigating faculty to student acts of sexual misconduct. Many Universities have panels of faculty members or administrators serve in the role of adjudicators of these claims. This, however, can create an appearance of bias and unfairness to students, and certainly may be part of what is fueling the types of protests recently experienced at UCLA and UC Berkeley. All parties are always entitled to a fair process. This is true for both the accused and complainant and runs through the veins and heart of our judicial system.
It is perhaps for this reason that schools are starting to move away from having faculty and administrators serve as the judges in these types of hearings and instead, are hiring experienced outside neutrals to decide these cases. When it comes to recommended discipline after a finding that a Title IX policy was violated (which oftentimes will involve a school's retention of an outside investigator), these external adjudicators are oftentimes charged with having to come up with the proposed sanction after a review and hearing that includes an investigator's findings; for sentencing consistency, external adjudicator's can make sentencing recommendations in conjunction with the school's Title IX coordinator. Written policies are heavily vetted prior to adoption by advisory boards and their skilled Title IX counsel, and it is up to the external adjudicator, with the assistance of input from a Title IX Administrator (if that is what the policy provides) to simply insure that the policies are being followed and enforced as drafted.
As a lawyer and a Judge who has presided over different types of matters, I am always drawn back to how important it is to convey to all involved the fairness of the process. That the process involves unbiased fact-finders who are trained in the areas of inquiry and will treat both sides equally. That the hearing will truly be consistent with the expectations of our justice system. Schools should re-evaluate whether the easiest way to accomplish the goal of both the appearance and reality of a fair process for all involved is to bring in third-party neutrals to adjudicate these types of cases.