Defending Faculty at California Universities and Colleges Accused of Violating Title IX
The worst thing that can happen to a professor?
You might not realize it at the time, but probably the worst thing that can happen to you is receiving a notice that your university or college has launched an investigation into allegations from a Complainant, that you, now referred to as the Respondent, engaged in conduct that violated Title IX, which prohibits discrimination on the basis of sex at institutions receiving federal funding.
My experience representing faculty at California universities and colleges
By way of introduction, I am now emeritus after 30 years as a professor in the geology departments at UCLA and UCSB. I have been practicing law, specializing in issues related to education, since 2007.
During my time as a professor, I came to understand that a university is a great place to work until something goes bad and you find yourself on the wrong end of a barrel being pointed at you by the Administration.
When the UCSB administration came after me, I was able to extricate myself on my own by presenting what turned out to be persuasive legal arguments, but after that I no longer wanted to be a UC professor, so I went to law school, negotiated a golden parachute out of the University of California, took emeritus status and went into private practice representing faculty accused of misconduct.
I have sat on Academic Senate Committees both at the campus level and at systemwide. I have sat through too many faculty meetings to forget. The point is that unlike any other lawyer you can hire to represent you, I understand from first-hand experience how faculty members on hearing committees that will decide your fate think, and what sort of arguments I can make to persuade them to decide in your favor. I don’t think it inaccurate to state that based on my thirty years as a professor at the University of California followed by what is now more than seventeen years of practicing law with an emphasis on university-level education law, I am the most competent attorney practicing in California when UC professors need representation on issues relating to their employment at the University.
Bias against faculty accused of violating Title IX
As you'll quickly find out, the deck is stacked against faculty alleged to have violated Title IX.
In the discussion that follows, I will present examples from one public California university and one private California university, but the examples are for illustrative purposes only. Similar biases against faculty exist at nearly all universities and colleges in California.
Under Stanford's "SHARE Title IX Student Procedures," 11 hours pre-hearing and hearing time is provided for free by "University-Identified Attorneys" to a student Complainant. [ See here. ] You'll search in vain for comparable free legal representation if you're a faculty Respondent.
At the University of California, alternative resolution of a Title IX complaint, which might conclude with no discipline of the Respondent, is possible when the Complainant is a student, but not when the Respondent is a faculty member. [ See under the header "Alternative Resolution" at page 4 of 30 here. ]
When the Department of Education released its new regulations governing universities' responsibilities when processing Title IX complaints in May of 2020, the Department noted that the new regulations rebalanced the "scales of justice," which previously disfavored Respondents. The University of California, faced with a requirement that at disciplinary hearings a university has to prove a Respondent violated Title IX at the same level of proof regardless of whether the Respondent is a faculty member or a student, rather than raise the level for students to that for faculty, lowered the standard for faculty to that for students, which as the University explains, means, “At the hearing, the Chancellor or Chancellor's designee has the burden of proving the allegations by clear and convincing evidence, except that for allegations of a violation of the University's policy on Sexual Violence and Sexual Harassment, the Chancellor or Chancellor's designee has the burden of proving the allegations by a preponderance of the evidence.” [ See 336 at F. 8. here. ]
That's a huge disadvantage for faculty. “Preponderance of the evidence” means the University only has to prove it's more likely than not you violated Title IX, whereas if the standard was “clear and convincing evidence,” the University would have to prove it is highly probable you violated Title IX.
You need an attorney to make your way through the byzantine process to have any hope of emerging not having been disciplined for having violated Title IX
Stanford's Title IX procedure is presented in a .pdf document that's 57 pages long. [ See here.] The University of California's is 34 pages long. [ See here. ]
Additionally, if you are found responsible for violating Title IX after a hearing at the Title IX stage at the University of California, there is no chance of avoiding being sanctioned, because “For cases in which there was a hearing at the Title IX stage regarding violation of the University's policy on Sexual Violence and Sexual Harassment, the Hearing Committee shall accept into evidence the record and written determination from the Title IX process. Other evidence, including witness testimony, regarding whether there was a violation of the SVSH Policy will not be permitted” with minor exceptions that never come into play. [ See 336 at F. 3. here. ]
Ominously, the sanctions range up to and include dismissal from employment at the university, even if you have tenure. [For University of California, see pages 2-4 under the header "Section II -- Types of Disciplinary Sanctions" here; for Stanford, see Section 4.3.1.(4) here. ]
Required Reporting of Prior Misconduct by Finalists for UC Faculty Appointments
Academic recruitees who receive an offer letter or employment letter after January 1, 2025 are required to complete a Misconduct Disclosure Questionnaire, under SB 791 and AB 810. Those who reveal prior academic misconduct will not be offered the job, which will be offered to the next highest ranked candidate on the Department's list.
The University of California will require proposed hires to "disclose any violation of the policies or laws governing conduct at a candidate's previous place of employment, including, but not limited to, violations of policies or laws prohibiting sexual harassment, sexual assault, or other forms of harassment, discrimination, dishonesty, or unethical conduct as defined by the previous employer. This includes decisions from educational institutions, employers, courts, or other relevant bodies." [ See here. ]
Thus there will be even more importance on keeping your record clear of any sanctions imposed for violating Title IX if you intend to apply for faculty positions at another UC campus.
What to look for when you're searching for an attorney after you've been accused of having violated Title IX
First, you need to understand that your school can't discipline you without a disciplinary hearing, and that the Title IX investigation, even, if it ends with your being found responsible for having violated Title IX, is not that hearing. So make sure you hire an attorney who has experience representing faculty during Title IX investigations AND during faculty disciplinary hearings.
I have such experience in both settings.
At this point, if you've followed the discussion above, you might say to yourself, wait a minute, I thought there is no point getting an attorney to defend me at a disciplinary hearing because it says "if you are found responsible for violating Title IX after a hearing at the Title IX stage at the University of California, there is no chance of avoiding being sanctioned" at a disciplinary hearing. That's true, BUT if you are found NOT responsible for violating Title IX after an investigation, the University can turn around and claim your conduct violated the Faculty Code of Conduct, and send you to a disciplinary hearing where you have a fighting chance, because the University bears the burden of proving by clear and convincing evidence that your conduct violated the Faculty Code of Conduct, and your attorney can present evidence to rebuttal the University's burden.
Second, allegations of faculty having violated Title IX can be settled in a way that allows you to not lose your faculty position.
I have been able to settle Title IX complaints against UC faculty clients facing termination or lesser sanctions for alleged violations of Title IX that allowed them to return to their faculty positions with no public record of the terms of the settlement, or of the allegations of misconduct against them.
Make sure to hire an attorney licensed to practice in California to represent you
If you Google looking for an attorney to defend you if you've been accused of violating Title IX, ask the attorneys you interview if they are licensed to practice in California.
Attorneys not licensed to practice in California could be disqualified from representing you after you've invested a lot on money in that representation, under the following scenario.
Under the Rules of Professional Conduct Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law (a) (2) [ See here. ], attorneys licensed to practice in California, such as the attorneys who will represent your university or college in prosecuting the Title IX case against you, may not "knowingly assist ... in the unauthorized practice of law in," which they would do when they discovered your attorney is not licensed to practice law in California. Upon such a discovery, the university's attorneys would be required under the Rules of Professional Conduct Rule 5.5 to ask your attorney to withdraw, which your attorney would have to do, or else face discipline in the state in which they are licensed, for engaging in the unauthorized practice of law.
For the reasons just explained, I decline to represent faculty not at California universities and colleges because doing so would expose me to discipline from the California State Bar for engaging in the unauthorized practice of law.
Contact Me
If you receive a notice that an investigation was charged into allegations that you engaged in conduct that, if proved true, violated Title IX, the first response you make colors everything that follows, so you are well advised to take steps to ensure that the first response to such a notice is as strong as it can possibly be. Please call me at (805) 845-8223, or email me at mjdeniro7cox.net (please replace the "7" with the "at symbol"), or Click to send me an e-mail.
During the initial consultation, I will gather the relevant facts from you to determine if I can offer legal services that might help you, and then, if you want me to, I will send you a fee agreement showing how much those services would cost you.
I will not offer affirmative advice - do this, don't do that - during the initial consultation. I only do that once you become my client. I don't review documents prior to the initial consultation, I only do that once you become my client. And finally, if your matter does not involve the application of California law or of Federal law to a matter that arose in California, I will inform you during the initial consultation that I cannot provide any advice because by doing so I would be engaging in the unauthorized practice of law, which is forbidden by the Rules of Professional Conduct of the California State Bar.
The use of the Internet for communications with me will not establish an attorney-client relationship. Please note that messages containing confidential or time-sensitive information should not be sent. Pursuant to Rules of Professional Conduct Rule 7.2, the matter herein must be labeled as a newsletter.
