The California State University (CSU) system mandated campuses to halt all current and appeal-pending Title IX sexual misconduct investigations while the CSU adopts a new investigative model. The new model, now required by California law, will guarantee students accused of sexual misconduct the right to cross-examine their accuser, potentially during a live hearing through an advocate.
This is a significant change in CSU policy and a timeline of its implementation is unknown.
In past policy, written questions and answers between the the respondent (student accused of sexual misconduct) and complainant (student who reported misconduct) was allowed. Now, this information-gathering period will more closely resemble a court-like proceeding, with the due process rights for party advisors to separately question the involved students during a public hearing.
Until this model is implemented, no Title IX case at Cal Poly or any CSU campus can proceed past the Investigative Report, a summary of investigative findings that does not include recommended factual findings (the investigator deciding if the accused student is in violation or not), or recommended university action.
Students are already being affected by this change. The university has been working to notify all those directly affected, according to President Jeffrey Armstrong.
Pending cases that have proceeded past the Investigative Report will have to redo the fact-finding process under the new model. This includes all cases where an investigative outcome has already been reached based primarily on witness testimony, but an appeal is in process or the deadline to file an appeal has not passed. Cases that have already reached an investigate outcome based on more concrete evidence than witness testimony, such as rape kit or video evidence, will not be remanded or subjected to the live hearing change.
“If we had made findings, the findings are vacated, or taken away, and the case is put back to where that hearing would have happened,” Vice Provost for Academic Affairs and Personnel Albert Liddicoat said. “It can still come to the same conclusion, but it can’t rely just on the findings by the investigator and the process we used to use.”
“If we had made findings, the findings are vacated, or taken away, and the case is put back to where that hearing would have happened.”
University sanctions are also being vacated, or undone, in these cases. If an appeal-pending case reached an investigative outcome and the university took sanctions, such as expulsion, this action is now undone. This reverses the expulsion of students who were expelled through Title IX and are in the appeals process or still have time to appeal. Without the expulsion in place, there is nothing legally preventing the students once expelled through these Title IX cases from re-enrolling in Cal Poly classes Spring 2019.
“In some [cases] the end result is vacated, so it’s like going back in time,” Armstrong said. “That is a really big concern for us. That a student who has already undergone trauma, that this can happen. We just don’t know yet if students in these cases will come back.”
Why Cal Poly has to follow the new Title IX model
The CSU system did not make the new model mandate but it is following a new California law that was put into effect Jan. 4. A ruling made by the California Court of Appeal on a case involving a University of Southern California student who was accused of sexual misconduct, set precedent that required an immediate shift to the live hearing cross-examination model for Title IX cases in California universities.
This should not be confused with the Department of Education’s proposed Title IX changes, which also recommend a shift to a live hearing cross-examination model. These proposed changes have not yet been implemented and it is unknown if (or when) they will go into effect. The CSU Chancellor wrote a letter to Education Secretary Betsy DeVos raising concerns about these proposed changes, which was signed by all 23 CSU presidents, including Armstrong.
While Cal Poly is required to follow the mandate, Armstrong said he is in favor of limiting the use of the live hearing model as much as possible.
“I would be a proponent of limiting live hearing as much as we could, quite frankly, because of the trauma,” Armstrong said. “I’m not in a position to make that judgement, but just Jeff speaking, if there is anyway we can meet the letter of the law without inducing more trauma, I would be all for that.”
Why Cal Poly waited to inform the campus community
Announcements of this new model have been kept to a minimum. According to the CSU, all campus presidents and Title IX offices were informed of the mandate Jan. 10 in a memo that asked universities to reach out to students in the Title IX cases that are directly affected by the change. Cal Poly students with current and pending cases were emailed by the Title IX office in January regarding the changes and the halting or reconsideration of their cases.
The university declined to comment on how many students or cases are being directly affected due to student privacy.
There was even confusion amongst university administration about which offices knew about the changes.
“The Chancellor’s office sent out a number of communications and no two offices knew who else was communicated with,” Assistant Vice President and Dean of Students Kathleen McMahon said. “But there was a really strong attention to make sure the complainants and respondents knew about it.”
Armstrong sent a campus-wide email notifying students of the Title IX changes Feb. 8, less than an hour after Mustang News reporters met with the president to talk about the new model and ask why the campus community had yet to be informed.
“In situations like this we can always look back and think we should have communicated a day or two earlier or done something differently, but this is an example of something at a very high level court, has happened and it’s going to be very traumatic for our students,” Armstrong said. “If we could stop it we would. And we’re working really hard to control what we can control.”
The email sent informed students that the hearing process was changing, but did not detail the live hearing cross-examination model. The email also did not mention that cases are being remanded and some university sanctions are being vacated.
The CSU has not officially asked campus presidents to inform student bodies at large yet. Implementation plans and other details are still being sorted out.
What Cal Poly is doing in response to the changes
The university is looking into making an immediate hire for a Title IX advocate to help manage increased workload and cases; Cal Poly currently only has one full-time advocate. The university also hired a second full-time title IX investigator in January and is currently searching for a new administrative support coordinator.
This year the university allocated a third full-time position for Safer, a confidential support and resource group for sexual assault survivors, but due to turnover, the university has yet to have all three positions filled. Armstrong and McMahon also said they are looking into allocating more resources to programs like Safer to help support sexual assault survivors.
The president also announced the creation of a new advisory group made up of students, faculty and campus professionals to help support students through the changes and “make sure we are doing things with as much sensitivity and caring as we can, while still following state and federal rules.” The group is intended to not only help students and the university transition to the new CSU Title IX model, but also the potential Title IX changes from the Department of Education.
What will happen to newly reported Title IX cases
Armstrong said students are still encouraged to report sexual misconduct through the Title IX office. New cases will be investigated as usual up until the Investigative Report. At that point, the case will be halted until the new model is implemented.
“We will still provide resources, conduct interviews and go through the process up to the point where the investigator would make a decision on whether or not a violation occurred,” Liddicoat said. “All that information would then feed into the hearing process, and it would take that hearing process to conclude an investigation.”
Armstrong said he would like to encourage students to continue reporting sexual misconduct.
“My concern is with the safety and health of our students,” Armstrong said. “I’m really concerned these changes are going to suppress our survivors from reporting. It could have a really chilling effect, typically, on young women reporting. We care for all of our students and we know these changes are going to cause trauma, cause students to revisit trauma. It’s going to be very difficult but we’re committed to doing the very best we can.”
Resources available to sexual assault survivors
Students can still make sexual misconduct reports through the Title IX office.
Safer is Cal Poly’s confidential advocacy, education and support resource for addressing sexual misconduct issues and supporting sexual assault survivors.
Cal Poly offers free counseling services through Campus Health and Wellbeing.
Beyond Cal Poly, Respect. Inspire. Support. Empower (RISE), a crisis and resources center for survivors of sexual and intimate partner violence, offers a 24-hour crisis line.