The California State University (CSU) system mandated campuses to halt all current and appeal-pending Title IX sexual misconduct investigations while the CSU adopts a new investigative model.  A ruling made by the California Court of Appeal on a case involving a University of Southern California student who was accused of sexual misconduct, set precedent that required an immediate shift to the live hearing cross-examination model for Title IX cases in California universities. The new model, now required by California law, will guarantee students accused of sexual misconduct the right to cross-examine their accuser, potentially during a live hearing through an advocate. This is a significant change in CSU policy and a timeline of its implementation is unknown.  In past policy, written questions and answers between the the respondent (student accused of sexual misconduct) and complainant (student who reported misconduct) was allowed. Now, this information gathering period will more closely resemble a court-like proceeding, with the due process rights for party advisors to separately question the involved students during a public hearing.

Until this model is implemented, no Title IX case at Cal Poly or any CSU campus can proceed past the Investigative Report, a summary of investigative findings that does not include recommended factual findings (the investigator deciding if the accused student is in violation or not), or recommended university action. Pending cases that have proceeded past the Investigative Report will have to redo the fact-finding process under the new model. This includes all cases where an investigative outcome has already been reached based primarily on witness testimony, but an appeal is in process or the deadline to file an appeal has not passed.

mustangnews.net By Ashley Ladin

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Courts are mandating that universities offer hearings. States covered by the 6th U.S. Circuit Court of Appeals have been making changes for universities to offer live hearings. Out is the old way of investigating — the so-called single investigator model, where a single university employee or outside expert interviews the accuser, the accused and any witnesses separately and then writes up a report. In is a new model where either side can get a live hearing, with direct cross-examination by the parties involved.

…The Western Michigan University female student said the assault happened in September 2017. Her hearing was in November…A Title IX hearing seems to have the same setup on America’s colleges: a main room with the panel or hearing officer and some sort of private room nearby for each side. Inside the main room, the setup can vary, including sometimes having some sort of room divider placed between the two sides so they can hear each other, but not see each other. The hearings often start with opening statements, the accuser often goes first, then the accused. Each side then questions. As each side is cross-examined they are brought into the room with the hearing officer, while the other side watches via video. Each side can have a lawyer or adviser with them, but the lawyers can’t talk during the proceedings to ask questions. Most of the questions must be submitted in advance; however, follow-up questions are allowed, with the knowledge that the hearing officer can veto any question asked by either side. Then come witnesses. Finally, there’s some sort of final statement from each side.

There’s a very simple reason for having hearings, say those who are accused of sexual assault and those who work with them. “As anyone who’s done even a single trial would tell you, there is no better way to test someone’s truthfulness — regardless of which side they’re on — than through cross-examination,” said Justin Dillon, whose law firm has done scores of hearings in many states. “It’s all fine and good to come in with a story, but how you respond when pressed is what really matters.” The challenge is how much to press, and who’s allowed to do the pressing. “There’s no meaningful confrontation,” Dillon said, adding that hearing officers often soften the questions or shrink the line of questioning. “There are no hard questions. If anything, the panels are super nice to the accuser. Everyone is asked very open-ended questions.”

DeVos announced proposed rule changes to Title IX in the fall that included holding hearings and allowing cross-examination. Those rules were then open for comment until Jan. 30. Approximately 100,000 comments were made on the proposed rules. Dillon isn’t surprised that many of the comments sent to the education department are negative. “Accused students simply don’t have the same option to participate publicly in this conversation,” his firm wrote in its comments on the rules. “If an accused student is found responsible, people reason, they must have done it. If they’re found not responsible, then many people believe that they did it and the school mishandled the case. If you publicly identify yourself as a ‘falsely accused rapist,’ most people either won’t hear or will ignore the first two words.”   Dillon’s firm is supportive of the addition of hearings.

freep.com By David Jesse

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