On Monday, the Daily Bruin, a student newspaper at the University of California, Los Angeles, published an interesting interview with Kathleen Salvaty, the university’s Title IX officer, about how UCLA will incorporate new sexual misconduct procedures being implemented across the University of California system. The interview is worth a close look for students and faculty concerned about due process protections on campus.
Effective as of January 1, the new UC procedures implement a version of the so-called “single investigator” model of sexual assault adjudication, empowering one individual (at UCLA, an investigator designated by Salvaty) to investigate allegations of sexual misconduct. UC’s procedures allow the Title IX officer to coordinate the investigation with other university offices, depending on the identity of the parties (i.e., students, faculty, or staff) and the issues raised. But the central work is entrusted to the “single investigator,” who interviews the parties and witnesses, reviews relevant documents, and ultimately issues a fact-finding report. In cases involving only students, the investigation concludes with a recommendation to a Student Conduct Officer as to whether a policy violation has occurred; in the case of faculty or staff, the Title IX officer makes those determinations directly.
In speaking with the Daily Bruin, Salvaty summarizes how the new policies will work at UCLA:
Previously, the dean of students office would would collect information about reports and send it to a student conduct committee, so the framework was similar to other conduct violations, such as plagiarism and alcohol violations. Now, the Title IX office will investigate complaints against students. The investigator makes their findings and tells the dean whether they think the code of conduct was violated. The dean will decide whether there was a violation of policy and will issue the punishment (as needed). There is still an appeal option, which (allows) for a hearing.
Note that the accused student is afforded a hearing only on appeal, not prior to the decision—a deficiency that should seriously trouble anyone concerned about fundamental fairness in campus judicial proceedings. As FIRE pointed out in responding to the White House Task Force to Protect Students from Sexual Assault’s enthusiasm for the single investigator model, this flaw “afford[s] the accused no chance to challenge his or her accuser’s testimony.” If the investigator talks to both parties separately, there’s no guarantee that the accused will hear the specifics of the accusation against him or her, or the accuser’s characterizations of the alleged violation. Instead, the accused will hear only the single investigator’s version of events, subject to whatever individual biases or points of emphasis he or she may consciously or unconsciously introduce.
Supporters of the single investigator model like the White House Task Force argue that when it comes to due process, the model is fair enough. In the landmark Supreme Court case of Goss v. Lopez, 419 U.S. 565, 579 (1975), the Court held that “[a]t the very minimum, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.” (Emphasis in original.) So the task force argues that the model “safeguard[s] an alleged perpetrator’s right to notice and to be heard.” But, at best, notice and an opportunity to be heard constitute the very minimum of due process protections. As the Goss Court put it, due process requires “at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school”—and “more formal procedures” may be required when a suspension longer than 10 days or expulsion is at stake. Surely we should expect more than the bare minimum from colleges considering whether to brand someone guilty of sexual assault.
Salvaty argues that the single investigator model is actually helpful for both parties because it relieves students of the “work” of showing up to a hearing. As she puts it to the Daily Bruin, “In a student conduct model, the burden is more on the student to come to a hearing, present evidence and then the body makes the finding. … One of the main benefits of having an investigator do the work, as opposed to a student conduct model of a hearing, is it’s intended to take some of the burden off the students, both complainant and respondent.”
This is a strange way to justify eliminating hearings: “Sure, you could present your own evidence and evaluate the testimony against you, but what a hassle!” It’s more than a little galling to suggest that reducing due process rights actually does both parties a favor because showing up at a hearing and making a case for guilt or innocence is so demanding.
We’ll see how the new policies work in practice, but entrusting a considerable amount of power in a single administrator and eliminating an initial hearing does not bode well for fair outcomes at UCLA.