Judge says Title IX lawsuit can’t proceed until investigation ends

A Superior Court judge dismissed a lawsuit against USC seeking declaratory relief to render its Title IX policy unenforceable, ruling the university should first be allowed to finish its sexual misconduct investigation against the plaintiff.

The judge, Michelle Williams Court, also sided with the plaintiff by ruling the university cannot use the anti-SLAPP statute to shield itself from lawsuits against the campus sexual assault policy.

Any further legal action by John Doe, who is accused of engaging in sexual misconduct with a woman in his USC dorm room in 2016, must wait until the end of the Title IX review process, slated to be completed by early next year, according to his lawyer, Mark M. Hathaway of Hathaway Parker Inc.

Hathaway argued the school unreasonably delayed its investigation into his client, stretching nine months without conclusion. However, the judge ruled intervening in the university's administrative process would not respect the autonomy of the Title IX office.

"There is no evidence that the process will not be completed. The complaint contemplates that it will be completed. Review is not sought as to the finding made, but as to the process which would be employed in making the findings," ruled the judge, who sustained the school's demurrer without leave to amend Monday.

Hathaway filed suit in February following notice a year ago that his client was under investigation for the incident. Doe dated the woman, who attended another university. John Doe v. University of Southern California, 19STCV05884 (L.A. Super Ct., filed Feb. 21, 2019).

Regarding the anti-SLAPP motion, the university argued it was protected by the statute because its misconduct process allowed the accused to be heard. In her ruling, the judge said the investigation itself was not protected by the statute in part because it did not assert any individual conduct.

"The complaint does not contain any allegations of conduct by any individual participating in the investigation, but the policy and procedure adopted by defendant for the investigations," ruled Court in her denial of the school's motion.

Court said there was a distinction between the entire investigation and statements made within the investigation, pointing to an appellate decision regarding California State University, which ruled investigations themselves did not fall within the scope of the statute, only individual statements during the investigation. Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 773-777.

Hathaway said the judge's ruling indicated anti-SLAPP motions cannot be used to shield challenges to the university's Title IX process.

"One of the issues we try to challenge is when the complaining student does not go to USC then there can be no hostile environment on campus that requires correcting under Title IX, and yet Title IX is still used to discipline students," said Hathaway, who has challenged the policy around the state.

The complaint, which sought an order enjoining enforcement of the policy against students, said the policy was out of step with various California appellate rulings and violated due process rights, including the ability of the accused to question the accuser.

Appellate courts around the state have come down on the policy, ruling it violated due process rights of those accused. This week the 2nd District Court of Appeal in a published opinion sided with Occidental College and its finding that a man sexually assaulted a woman who was incapacitated. The court found John Doe's intoxication did not minimize his responsibility to obtain the woman's consent. Doe v. University of Southern California DAR 9260 (Cal. App. 2nd Dist. Sept. 23, 2019).