News and Commentary


California Task Force Issues Recommendations on Campus Due Process

Source: Members of the Post SB 169 Working Group: Wendy Brown, Class of 1936 First Chair, Political Science, UC Berkeley Justice Carlos R. Moreno (Ret.) Lara Stemple, Assistant Dean, UCLA School of Law November 14, 2018 Introduction The following represents the consensus reached by the working group appointed by Gov. Jerry Brown following his

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Members of the Post SB 169 Working Group:
Wendy Brown, Class of 1936 First Chair, Political Science, UC Berkeley
Justice Carlos R. Moreno (Ret.)
Lara Stemple, Assistant Dean, UCLA School of Law

November 14, 2018

The following represents the consensus reached by the working group appointed by Gov. Jerry
Brown following his veto of SB 169. It makes recommendations concerning how best to address
allegations of student sexual misconduct on college and university campuses in California.
To inform our analysis, we reviewed current state law, current and prior federal guidance,
recommendations made by the American Bar Association, and published commentary by legal
scholars and others.

These recommendations specifically pertain to sexual misconduct allegations between student
parties. We note that many of the due process protections mentioned below would also be
relevant when allegations include staff or faculty parties, but such an expansion of these
recommendations would require the additional consideration of numerous factors.

Type of conduct
Policies should focus on sexual misconduct, which includes both “sexual assault” and “sexual

Standard of proof
Assuming that all other requirements for fairness and due process are met, campuses may use
a preponderance of the evidence standard when adjudicating sexual misconduct allegations.2
Preponderance of the evidence means that the conclusion is supported by evidence that is
persuasive, relevant, and substantial (we reject the trope that preponderance can mean 50
percent likely to have occurred “plus a feather”).3 Moreover, this standard is adequate only
when procedures are transparent and fair, as outlined in more detail below.

Confidentiality in process
While the identities of the parties directly involved (complainant, respondent, and witnesses)
must be disclosed to one another to ensure basic fairness,4 no party’s identity should be
revealed to staff/faculty not involved in the process, the wider student body, or to the public by
any of the offices or officials involved with the process. 5 Some state and federal laws concerned
with protection of confidentiality in the context of freedom of information may apply.6

Investigator independence
The “single-investigator model,” lacking separation between investigator and adjudicator(s),
rarely meets due process requirements. The investigator may or may not be the campus Title IX
Officer. However, the investigation and adjudication must feature distinct persons and
processes.7 We note that some schools have developed robust evidentiary hearing procedures
that may have sufficient due process protections.8
Investigator obligation
The Title IX Officer, or delegated investigator, must fully and impartially investigate all sides in a
complaint.9 During the investigation, the Title IX Office must strive to be impartial and must not
serve as an advocate on behalf of one party. 10 The Title IX Office should provide both
complainants and respondents with information about other campus resources where support
may be available, including but not limited to confidential counseling.11

Process: report, finding and outcome
If both parties agree that the facts in the report are correct (including a balanced notation of
facts in dispute, if any) 12 and accept the investigator’s finding that misconduct did or did not
occur, then a sanction, if warranted,13 may be issued at this point, preferably by an office other
than the Title IX Office. 14 If the sanction is accepted by both parties, the case is concluded. If the
facts, finding of responsibility, or the sanction is disputed, a hearing may be requested by either
party. 15

Status of the investigator’s report in the hearing
If facts in the report are under dispute, the report, while available for consideration during the
hearing, should not be given presumptive weight. If the facts in the report are not under
dispute, the investigator’s report may stand, and the hearing need not repeat the process of
learning the facts from the parties or witnesses.16

Live hearings
The live hearing must allow parties to provide and hear testimony in real time. However, in
circumstances in which complainants do not wish to interact with respondents directly,
campuses must make reasonable accommodations such that parties can avoid direct face-toface interaction while participating in the live hearing. 17 In such circumstances the use of
accessible video technology or other devices should be employed to assist the parties and factfinders in assessing witness credibility.18

Direct questioning and cross-examination
In a live hearing, there should be no direct questioning of any one party by another party.19
However, a party, or a party’s intermediary, is entitled to question the other party by submitting questions to the adjudicator, who shall have discretion to determine the appropriateness and relevance of any question.20

Right to counsel
Both parties should have the right to an advisor of their choice, including an attorney.21 Schools
should not allow advisors to directly intervene in meetings or proceedings, but the advisor
should be able to communicate questions and concerns to the party he/she represents in
writing or through private consultation during the proceedings. Both parties should also have
the right to bring a non-participating support person (e.g., a friend or a counselor) to

Discussion of the complainant’s sexual history
The presentation of evidence about either party’s sexual history is generally prohibited. Sexual
histories concerning outside parties are wholly irrelevant and potentially prejudicial. Evidence
referencing the parties’ sexual history with one another is prohibited unless it provides material
evidence on a disputed issue of relevance to the misconduct charge or defense against it.
Further, investigators and adjudicators must recognize that the mere fact of a current or
previous consensual dating or sexual relationship between the two parties does not itself imply
consent or preclude a finding of sexual misconduct. 23

Trauma-informed responses by investigators and adjudicators

“Trauma-informed” approaches have different meanings in different contexts.24 Traumainformed training should be provided to investigators so they can avoid re-traumatizing complainants during the investigation. This is distinct from a trauma-informed approach to evaluating the testimony of parties or witnesses. The use of trauma-informed approaches to
evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of
complainants in a manner that is incompatible with due process protections for the
respondent. Investigators and adjudicators should consider and balance noteworthy
inconsistencies (rather than ignoring them altogether) and must use approaches to trauma and
memory that are well grounded in current scientific findings.

Informing parties of allegations, case status, evidence gathered, and outcome
Schools should provide respondents with prompt, detailed, written notice of the allegations
against them.25 The respondent and the complainant should have equal access to information26
and should be given the opportunity to respond at designated intervals. 27

Once an allegation has been made, the school should prepare an investigation report.28 Once
prepared, the school should give notice to both parties contemporaneously of the availability of
the report.29 The report must contain a list of the evidence gathered during the course of the
investigation.30 Both parties must have a reasonable opportunity to review the report and
respond, in a statement, to any perceived errors of fact or interpretation in the report prior to a
finding of responsibility. 31

Final appeal process
Both parties have the right to appeal the outcome.32 No live hearing is required for the appeal.
A majority of an impartial, three-member panel (at a minimum) must decide the appeal.
Grounds for appeal should be limited to the following:
 New information not known or available at the time of the investigation has become
known or available
 Procedural error materially affected the findings of fact (for example, improper
exclusion or inclusion of evidence)
 The sanction imposed is disproportionate to the findings in the case (that is, too lenient
or too severe)
 The conduct as found by the decision-maker does not violate school policy
 Evidence of biased decision-making
Interim measures

Prior to findings from an investigation or determination through adjudication, interim
restrictive measures concerning housing and campus access may be implemented by the Title
IX Office to protect the interests of the parties. 34 Efforts should be made to keep these
measures reasonable and as minimally disruptive for both parties as possible. Upon a finding of
non-responsibility on the part of the respondent, interim measures and restrictions must be
lifted immediately. Minimal no-contact orders (no socializing, talking, texting, etc.) may remain
in place.

Mandatory reporting to Title IX Office
Many schools have instituted “responsible employee” reporting requirements for faculty
and/or staff. 35 We wish to note the drawbacks to designating faculty as such, including the
disempowerment of victims to decide for themselves whether to report to the Title IX Office. In
addition, it can negate faculty members’ ability to openly counsel and listen to students and
colleagues, free from an obligation to act against the victim’s wishes. Even sensitive class
discussions during which students may disclose past victimization can trigger this reporting
obligation, which runs counter to the free and open exchange of ideas in the classroom.

Anonymous reporting
Under California SB 967, schools are required to implement “procedures for confidential
reporting by victims and third parties.” Accepting such reports may be helpful for identifying
patterns and understanding risks that exist for the campus. 36 However, identities must be
disclosed upon the beginning of an investigation that could result in sanctions against the

Data collection beyond Title IX recordkeeping

The reports made to Title IX offices reflect only a subset of sexual misconduct incidents on
campus. The majority of incidents go unreported. Therefore, campuses should support and
undertake qualitative and quantitative research to understand the nature and prevalence of
sexual victimization on campus and how to prevent it. Columbia University, UC Berkeley, and
others have begun such undertakings, and campuses should be encouraged to follow suit.

Collecting demographic data from parties
Campuses should collect anonymous data on the characteristics of parties to identify patterns
and systemic problems related to sexual victimization.38 An optional, confidential exit survey
about the parties’ demographic characteristics would avoid posing questions that might seem
intrusive or irrelevant if asked during initial intake or investigative processes.
Such data should be used to analyze whether use of the Title IX process suggests bias against
complainants or respondents in relation to race, sex, sexual orientation, gender identity,
disability, nationality, or other status. Where relevant, schools may wish to also track parties’
involvement in athletics, membership in the Greek system, whether the parties are
international students, and other factors in order to shed light on the problem.

Alternative models of conflict resolution: voluntary mediation versus restorative justice
Voluntary mediation is not recommended as an alternative model of conflict resolution in cases
of sexual misconduct.39 However, restorative justice practices may be appropriate as a
response to a finding of sexual misconduct, if all parties agree to them. If restorative justice
practices are recommended or requested, parties should be informed about them, how they
operate, and what each party’s role will be. Schools may limit the option of restorative justice
approaches in cases of severe abuse in order to ensure campus-wide safety.

A public health approach to prevention
While fairness in reporting and adjudicatory processes are essential to all parties involved,
these processes take place only after an incident has been reported. We wish to emphasize that
prevention efforts, if meaningfully executed, have the potential to reduce the number of
incidents occurring in the first place. A comprehensive public health approach, which seeks to
inform populations and ensure that community conditions are conducive to safety and wellbeing, seems particularly apt for addressing many forms of sexual misconduct, and should serve as a vital counterpart to punitive approaches to the problem. Moreover, life skills concerning consent, communication, and boundaries are particularly important for young, newly
independent students to learn.