Class certification likely in accused students’ Title IX suit, experts say

Two proposed class actions alleging California's public universities unfairly punish students accused of sexual misconduct will likely win class certification, legal experts say, in what would be the state's first-ever lawsuits seeking mass dismissal of student disciplinary decisions based on alleged due process violations.

The only open question, the experts say, is who will be let into the classes, proposed by two anonymous male students in separate complaints against the California State University and University of California systems in July and August in Los Angeles County and Alameda County, respectively.

A plaintiffs' lawyer says the two classes combined includes more than 1,000 students disciplined as far back as June 2015, when UC and CSU reformulated their Title IX policies in line with Obama Administration guidance designed to make sexual misconduct investigations fairer for survivors. Doe v. Regents of the University of California, RG19029617 (Alameda County Sup. Ct., filed Aug. 1, 2019) ; Doe v. White et al., 19STCP02973 (L.A. County Sup. Ct., filed July 16, 2019).

The plaintiffs want their records cleared, arguing they were found responsible and either suspended or expelled under Title IX policies they say are biased against accused students.

They allege the policies, including having a single person investigate allegations and issue disciplinary decisions and being denied the opportunity to directly cross-examine their accusers, violated due process.

David Levine, a UC Hastings College of the Law professor, doubts courts will allow older cases into the class even though they were reviewed under the allegedly unfair policies.

He believes only students with pending cases will be certified as class members because only they can benefit from the newest Title IX policy revisions both UC and CSU, made after a California appeals court ruled colleges and universities statewide must guarantee due process to students facing severe sanctions or in cases involving witness credibility. Doe v. University of Southern California, 2018 DJDAR 11753 (Cal. App. 2nd Dist., Dec. 11, 2018).

The court directed schools to split up investigation and adjudication roles by establishing neutral hearing panels and to allow both sides to conduct indirect cross-examinations by submitting a list of proposed questions to the panel chair.

"Time runs on cases, and we value finality," Levine explained in a phone interview. "Typically, your case has to be alive to benefit from any change in the law. That's the basic rule."

But UCLA law professor and federal class action expert David Marcus thinks the classes will be certified in their entirety.

"If [the policies] all basically offer the same set of due process rights for people accused of sexual misconduct, then it seems it could be subject to single, class-wide adjudication," Marcus said in a phone interview. "It doesn't seem like the kind of difference, in my reading of federal case law, that would preclude class certification."

Jeremy Robinson, a class action attorney with CaseyGerry in San Diego, also believes older cases will be certified if the plaintiffs can prove the Title IX procedures under which they were disciplined were unfair across the board.

"It's going to be dependent on a showing that due process denial was systemic across all hearings and all processes," he said by phone.

"Certainly, if they're able to obtain judgment in a class action that they were denied due process, I think the university would have no choice not to do anything about it. They couldn't just ignore that kind of finding," he added.

UC and CSU contend the plaintiffs aren't similarly situated enough to proceed as a class. In a statement, CSU spokeswoman Toni Molle said class treatment wasn't "appropriate or legally justifiable."

"Each Title IX case is distinctive with individualized facts and has unique interests for the individual parties," Molle said.

UC spokeswoman Claire Doan had no comment on the litigation.

"That strikes me as a weak argument," Marcus said of the schools' argument. He cited the recent cases challenging California's money bail system, in which plaintiffs have sought a policy change requiring judges to ask about a person's ability to pay before imposing bail.

"The defendants always say you can't adjudicate these as a class action, you have to adjudicate them individually," Marcus said. "But that's not the relief that plaintiffs seek," he said. "All the plaintiffs want is to change the policy."

The Title IX plaintiffs are not seeking damages. All three experts said class certification would be unlikely if they were because a damages award would require examination of individual circumstances.

Both class actions were filed by Los Angeles-based attorney Mark Hathaway, who has challenged university disciplinary decisions in individual suits around the state. Both complaints cite several recent state appellate decisions in support of their due process arguments, notably Doe v. University of Southern California.

In that case, a panel found USC violated the due process rights of a male student found guilty of raping a drunk female classmate by not allowing him to cross-examine witnesses or obtain the woman's medical records and by depriving him of a neutral arbitrator.

The student was expelled in 2014, according to Hathaway, who represented him in the case.

Asked about UC's latest revisions, Hathaway, of Hathaway Parker, said they still conflict with the law.

"UC's latest revisions for its policies is too little, too late," Hathaway said in a phone interview. "Every student subject to the improper policies and procedures from January 2016 through today should be a member of the class and have their decisions set aside."

Hathaway wants the schools to allow direct cross-examination -- which would often be conducted by lawyers. The Trump administration last November proposed direct cross-examination as part of a planned Title IX overhall.

Survivor advocates say the practice can re-traumatize victims, and UC has vowed not to adopt it. In a March 7 op-ed in UCLA's student newspaper The Daily Bruin, UC's Title IX coordinator Suzanne Taylor said the university won't adopt it "unless and until we are absolutely required to do so" under Title IX.

Helen Christophi

Daily Journal Staff Writer