The world, it is a-changin’: CA Supreme Court Adopts Section 40 of 3d. Restatement of Torts

Yesterday, the CA Supreme Court adopted Section 40 of the Restatement (3d) of Torts, which creates a durable special relationship between students and schools. The case is here:

This case is the result of changes to the Restatement of Torts. When the 3rd edition of the Restatement was published (2009 & 2012), I thought it would take 5-8 years before courts began to follow the changes to Section 40, which now states definitively that a special relationship exists between schools and students. That is now starting to happen as more and more states adopt the Restatement. Some do so legislatively, and others court by court, but most states adopt Restatements eventually.

This has been obvious at the pk-12 level for some time, but is now beginning to impact colleges. It stands to reason that other courts in other states will follow, but California is often the vanguard. While the court cites decisions in Florida and Massachusetts that it says have already made similar decisions, they’re not based on Section 40. To my knowledge, this is the first state Supreme Court to explicitly adopt Section 40. Delaware got to the same reasoning before Section 40 in the Furek case, which was widely considered an anomaly, but times change, and the CA Supreme Court did a nice job of tracing that evolution. The outlier will likely soon become the majority rule over the next decade.

The minds at the ALI have determined that this is the direction American law should take, but I think they are reflecting college assumptions of this duty, rather than imposing it. We don’t just educate students, we house them, clothe them, sell them books, feed them, look after their health and wellness, discipline them, use behavioral intervention teams to monitor them, provide security for them, and even build them lazy rivers to float down while sipping cold-pressed juices and fruit smoothies. How can we not be in a special relationship when colleges have become all things to all students?

In fact, that’s what our admission tours promise more than anything else; that college will be your home away from home, and that you’ll find a family in our campus community. Well, families look after each other, and the courts are more and more going to recognize that colleges and universities have to do so with reasonable care. It’s not a return to in loco parentis, but it speaks to the idea that with colleges transforming into small cities and undertaking programmatic behemoths of all kinds, each school must do so with care and attention to the safety and well-being of those in its charge. The “no duty” days are coming to a close, and a new era of special relationships between schools and students, defined by law, is upon us.  

Brett A. Sokolow, Esq.
President, ATIXA

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Never Mind the Facts, FIRE. Colleges Aren’t Perfect, but They Aren’t as Vile as You Say

By: Brett A. Sokolow, Esq. (the opinions in this blog post are my own, and do not represent official policy or positions of ATIXA or The NCHERM Group, LLC)

So, FIRE has a new attack-blogger. Someone named Susan Kruth. Rhymes with Truth, I assume, but that’s the only connection to truth I can find in her October 31st, 2017 blog. When choosing trick or treat, Kruth chose trick. Which is kind of appropriate, given that FIRE is a one-trick pony with its incessant quest to expand due process on college campuses in the United States. The problem is that Kruth has only a tangential relationship to facts. Or perhaps she prefers alternative facts. I call it being kruthy, or having the quality of kruthiness.

I blogged on October 30th that higher education is letting its foes paint the field with a broad brush, and that higher education is not as void of due process as organizations such as FIRE like to allege. My main point is that we need to enforce existing due process protections, rather than expand due process beyond where the courts have taken them, to date. I think existing protections are sufficient and effective, if implemented appropriately.

We do share some common ground, though I am not much of a fan of Kruth’s style. We agree that colleges are not delivering on what is required. We disagree on what it will take to solve that problem, but not by much. I want to enforce it, groups like FIRE want to expand it. Regardless, due process needs better protection and those in higher education need an enlightened debate about how best to achieve that without compromising hard-fought protections for victims/survivors (FIRE will hate that I didn’t say “alleged victim/survivor,” as if by typing, I am pre-judging someone’s status or showing bias. Lighten up, FIRE. Have some sugar. It’s Halloween). But that enlightened debate cannot happen in an environment where FIRE and others distort the arguments, over and over.

Kruth pretty much re-printed my entire blog without permission in her blog, but I’ll be more selective (and less plagiaristic) in rebutting some of her most unkruthful points.

  1. “Between April 4th, 2011, and Sept. 22, 2017, the Department of Education’s Office for Civil Rights mandated this standard (referring to the preponderance of the evidence).” Kruth or unkruth? Unkruth. In the April 4th, 2011 DCL, OCR recognized preponderance as the legal standard, they did not mandate it. They were simply stating a legal fact, and FIRE’s distortion of what OCR actually did unhelpfully distorts the debate.
  2. “With the exception of a few safeguards codified into law in a few jurisdictions, these protections are not specifically guaranteed by law in campus proceedings.” Kruth or unkruth? Very unkruthy. I posted eight significant protections in my blog that colleges afford. I believe that all of those protections are mandated by statutes or courts, and/or that courts would strike down campus decisions that lacked these elements for lack of due process. That is why I included them. If FIRE doesn’t agree, it should join forces with FACE, SAVE Services, and its other allies to put a bill before Congress that requires these protections. If it reflects my list, ATIXA will endorse that bill wholeheartedly. Add in fines and a public censure for any college that violates the provisions. Even a private right of action. That’s the proper way to legislate due process protections (apply the bill to private colleges, too), not through the backdoor of Title IX guidance, which has nothing to do with due process protections for responding parties. FIRE decried OCR overreach until it teamed up with OCR, and now overreach is the order of the day (see the Sept. 22 Interim Guide).
  3. “Really? Because FIRE analyzed 103 disciplinary procedures at 53 top universities and concluded differently” (that these colleges did not afford sufficient due process). Here, kruthiness comes into play. It’s kruth that FIRE did not give out any A grades, but it also set up impossible, artificial, and outright misleading criteria (none of which anyone in higher ed has bothered to rebut, which continues to let interest groups steamroll the field and control the debate). For example, FIRE requires active participation of attorneys in disciplinary proceedings to earn an A, despite the fact that only two states so require, and that protection is not an element of due process requirements anywhere else. So, rig the rules, and of course everyone fails. FIRE does the same thing with a unanimous panel requirement, though no court has ever required that of a college disciplinary proceeding. There is due process, and there is FIRE’s desire to expand due process. That expansion often comes at the expense of victims/survivors (there it is again), which I why I continue to cross swords with FIRE.
  4. FIRE plays more sleight-of-hand with the kruth when its report concludes things like: “Nearly three-quarters (73.6%) of America’s top 53 universities do not even guarantee students that they will be presumed innocent until proven guilty.” I call total BS on the alternative fact that number represents. 73.6% don’t state that they guarantee students a presumption of innocence, not that they don’t provide it. I agree it would be better to state it clearly, but FIRE is just wrong that those 53 campuses don’t afford a presumption of innocence. And, it’s not a due process requirement of law to state in policy that they do so, only that schools deliver on the presumption. So, again, FIRE distorts the kruth for its own purposes. I just don’t get it. FIRE can get what it wants through intellectually honest means. I’ll support codifying existing due process protections, as will most reasonable people. But to satisfy their mega-donors, FIRE pushes an agenda that elevates the rights of responding parties over reporting parties, an agenda I do not support. Sure, I’m for profit, but that means that the only donor whose ass I have to kiss is my own.
  5. “…Sokolow has set the bar pretty low for what he considers to be sufficient protection for accused students.” Unkruth. If I have set the bar low, so have the courts. My list reflects that which is already required by law (and there are even a few other protections the law requires that I didn’t mention, that colleges can and should afford). And, I don’t agree that campus rights should be co-extensive with those of a civil court. That’s the whole point of Matthews v. Eldridge.
  6. “Even if this were true, the usefulness of “informal discovery” hinges on whether students are granted access to all evidence with sufficient time to actually craft their defenses around it. Sharing documents before a report is finalized hardly qualifies.” Partial Kruth. I agree that sufficient time must be provided to craft a defense. But, when Kruth says that sharing documents before a report is finalized hardly qualifies, she over-generalizes and shows that she really doesn’t understand campus processes. It hardly qualifies if a college uses the single investigator model with no appeal (and none should). But, for any college where a decision is made after a report is finalized, by an objective decision-maker or panel, enabling parties to review and respond to the report before it is finalized is very effective, though I believe there should be other transparent discovery even before that.
  7. Kruth then includes an incoherent paragraph where she conflates active participation, advising, and representation by an attorney. FIRE’s report on due process did the same, where active participation was the litmus test. Surely, advisors must be more than potted plants, but the rub lies in whether there is active advising of their client, or active representation of their client as their advocate? OCR may weigh in on this with new guidance, but there is no basis in Title IX that speaks to the role of advisors in the hearing process except to require they be allowed equitably. If FIRE felt OCR previously overreached, their lobbying for such extensions now is remarkably hypocritical. They seem to be suggesting that any OCR overreach on Title IX is fine as long as it goes through notice and comment rulemaking first, but there is judicial review for overreach even when the APA is followed.
  8. “ ‘Colleges allow questioning of the parties, if not cross-examination in its purest form,’ he writes. Yes, colleges ‘allow questioning of the parties’ — by someone, very often one single investigator who isn’t required or even encouraged to ask the questions requested by the complainant or respondent. To call it ‘not cross-examination in its purest form’ is a gross understatement.” If only my last name rhymed with “gross,” Kruth could be onto something here. Alas, nothing really rhymes with Sokolow. But, again, Kruth misses the point. Some kind of questioning is required of a public university under prevailing due process rulings. And, I’m not talking about questioning by the investigator, but about questioning by the parties of each other. That can occur though an investigator, a panel, or both, but if the parties do not have the opportunity to pose questions and have them answered, I think due process is not being accorded. FIRE’s report set out (in a hearing context, rather than an investigation context) a perfectly workable approach. There, we agree.

The bottom line here is there is no debate if the question is whether colleges are living up to existing requirements. They aren’t, and that needs to change. By law, enforcement, fines, training, greater government clarity of guidance, technical assistance, whatever. I’m all for it. But, there is a way to create a balanced process, and we need to realize that FIRE’s vision of due process doesn’t do that, which is why courts have rejected such entreaties to expand due process for well over fifty years. So, now they’ll try an end-run around the courts using OCR, and the next Democratic administration will dismantle any overreach by this OCR when it next takes power. Currently, due process is a patchwork of different rulings by different courts in different jurisdictions. Because of this, colleges lack clear, unified due process guidance. A bipartisan bill that protects all students could gain traction in this Congress that will not blow with the winds of whichever political party is in power and could define due process for all colleges, public and private. Rep. Speier should have proposed that bill, rather than a codification of the 2011 DCL. There is a way to protect the rights of all students, but no one is even talking about such a bill. So, FIRE, why not?

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One Response to Congressional Task Force Roundtable

FIRE (and other groups, include the ABA Task Force) have repeatedly attacked the preponderance standard because although it is the civil standard, the campus and school resolution process lacks many of the other procedural protections that civil trials have, which protect due process. I think we need to be pushing back as an association and as a field, about that premise, because it is flawed. Sure, college resolution proceedings don’t have formal rules of evidence or the right to representation by attorneys, but campus processes are not without procedural rigor. Without being exhaustive:

  • Colleges offer the equivalent of informal discovery (a major procedural protection), by being transparent during the process about what investigators are learning, by sharing documents with the parties, and ultimately showing the report to the parties before it is finalized;
  • Colleges operate under a presumption of innocence (to the extent they operate under a presumption at all);
  • Colleges respect the right to remain silent and to avoid self-incrimination;
  • Colleges afford the right to be advised by an attorney (at least for the VAWA offenses, and should for all Title IX-covered behaviors, not to mention any separation-level offense);
  • Colleges respect key procedural rules, including requiring that evidence be relevant and credible, and that prior sexual history and character evidence is rarely admissible;
  • Colleges allow and seek expert evidence and testimony as needed;
  • Colleges allow questioning of the parties, if not cross-examination in its purest form.
  • Colleges assure sanctions that are proportionate to the severity of the misconduct;
  • Colleges almost always permit appeals.

I think this is enough and should be enough to satisfy a judge, but colleges and universities need to do a better job of driving the dialogue about how much due process they DO afford, rather than letting FIRE paint the field publicly as not according procedural protections akin to civil proceedings. The protections are not identical, but neither do they need to be. They are extensive.

Brett A. Sokolow, Esq.

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Inside Higher Ed quotes Sokolow on response to DeVos press conference

Administrators were “irate” in the wake of DeVos’s comments Thursday, and most don’t have a willingness to change

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Official press release on ATIXA Response

Official press release on ATIXA Response to DeVos

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ATIXA issues response to DeVos press conference

ATIXA issues response to DeVos press conference

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Sokolow quoted in USA Today on DeVos announcement

A cultural shift [has] already taken place, a rollback of sub-regulatory guidance doesn’t change fundamentals

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USA Today quotes Sokolow on consent

“Our society is shifting more and more toward women’s autonomy, so a consent-based rule makes a lot of sense.”

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Chronicle quotes Sokolow on forthcoming Title IX announcement

The department could swing the pendulum too far in the opposite direction: pushing colleges to focus on due process

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Buzzfeed quotes Sokolow on IPV case

What they do is typically err on the side of caution and investigate to find out, trying to do their due diligence

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