Clarifications to letters responding to recent column on Title IX ruling

In the June 20, edition of The Daily Journal, Timothy Reuben and Daniel Lahana commented on my June 12 article titled "Title IX ruling is favorable authority for universities." ["Universities cannot shortcut the due process rights of those accused of sexual misconduct"]. I am grateful they took the time to read the article and provide their carefully considered thoughts. It is a pleasure to be able to participate in public discourse with other lawyers about issues as important as the ones raised by the 9th U.S. Court of Appeals decision in Austin v. University of Oregon, 2019 DJDAR 4815 (9th Cir. June 4, 2019)

This response provides two clarifications. First, the article was in no way intended to suggest colleges or universities should try to use the Austin case to shortcut due process protections. Indeed, both my article and Mr. Reuben's and Mr. Lahana's letter cite the lines of cases under California law that have developed standards in this area and are binding authority. Institutions in this state have to take careful heed of these cases, and make sure their disciplinary procedures comply with applicable requirements (they may well find their procedures already do). The Court of Appeals decision in Austin is not going to relieve those institutions of their obligations under state law.

Second, in discussing Austin, my article did try to present some thoughts about how the case could apply outside the compliance context and instead in defense litigation. The article queried how much the 9th Circuit's Austin case, and its discussion of due process, could be applied in defense of institutions sued in federal court. This is the sentence from the article on which Mr. Reuben and Mr. Lahana focus: "In a federal action for violation of due process rights, for example, a public institution in California may only need to argue that Austin's very general discussion of due process rights needs to be satisfied for a university to prevail." My article points out that the 9th Circuit in Austin did recite the elements of the process the university actually applied (albeit the process chosen by the accused students), and held those procedures comported with due process. Mr. Reuben and Mr. Lahana provide their carefully considered answer to the question raised by my article about how relevant this should be in California. It is good to have the benefit of their insights on this issue, and no doubt those who read this article and letter will have a head start in analyzing these issues.