His lawsuit secured ‘an important right affecting the public interest’ for UCSB students
A California appeals court ordered the University of California-Santa Barbara to pay substantial legal fees to a male student whom it wrongfully suspended following a Title IX investigation that a lower court called “arbitrary and unreasonable.”
The appellate panel overturned a ruling by Santa Barbara Superior Court Judge Thomas Anderle that UCSB only had to pay “John Doe” $5,000 for indefinitely suspending him based on recanted allegations of physical abuse by his then-girlfriend, who was not a UCSB student.
Instead, the taxpayer-funded university may have to pay him hundreds of thousands of dollars under what’s known as the “private attorney general doctrine” in state law.
Justices Kenneth Yegan, Steven Perren and Martin Tangeman agreed with John that his victory generated significant due process rights, both constitutionally and statutorily, for all UCSB students by forcing the university to follow its own policies.
They also scolded UCSB for “misleading” Judge Anderle by hiding a resolution agreement with the Department of Education, which suggested John’s lawsuit had already compelled the university to abide by its Title IX investigation timelines.
John’s lawyer Bob Ottilie had cited that agreement, obtained through a state public records request, when appealing Anderle’s $5,000 award of attorney’s fees. He sought $465,000 under the private attorney general doctrine for enforcing “an important right affecting the public interest” that provided “a significant benefit” to “a large class of persons.”
Everyone agrees John couldn’t afford legal representation, meaning that his interim suspension “would have resulted in a de facto expulsion, in violation of UCSB’s policies,” had Ottilie not represented him with the expectation that UCSB would eventually pay, the appeals court said.
“In these circumstances, the necessity and financial burden of private enforcement makes an award of attorney’s fees under” the private attorney general doctrine “appropriate.” The appeals court returned the case to Anderle’s court to decide exactly how much the university must pay the vindicated student.
As a result of the court’s June 5 decision, John can go “forward in life” lawfully saying he was never suspended by UCSB, and no suspension will appear on his record, Ottilie said in a press release given to The College Fix.
Ottilie called his client an “at-risk youth” raised by a single mother, whose father has served a life sentence in prison since his birth. John was the first in his family to go to college.
UCSB did not respond to a Fix request for comment on the ruling. (Though UCSB imposed the punishment, the defendant is actually the Regents of the University of California.)
Judge missed the ‘significance of the constitutional due process rights’
Anderle had found the university’s Title IX investigation to be “arbitrary and unreasonable,” starting with John’s interim suspension in August 2016 and a seven-month interruption of his freshman year due to UCSB’s “inability or unwillingness” to finish the investigation.
The judge granted John surprisingly little relief for the trouble UCSB had caused him, however, based on his analysis of who benefited from John’s victory in his court.
In order for John’s claim to be valid under the private attorney general doctrine, he must have carried out “an important right affecting the public interest” that aids a “broad class of citizens,” according to Anderle’s order in 2018. The judge concluded he had not met the second prong.
In ruling that UCSB’s process was arbitrary and unreasonable, Anderle gave John relief that “was inherently personal in nature, involving the termination of his interim suspension and reinstatement as an active, full-time student pending the conclusion of the investigation,” the judge said.
Lawyer Ottilie told the appeals court that Anderle “applied the wrong standard” and was “misled” by the university’s legal team “as to the impact and significance of his litigation.” The judge missed the “significance of the constitutional due process rights that were enforced” by John’s victory.
The appeals court agreed with Ottilie. Anderle’s own ruling found that UCSB violated its written policies on “prompt and timely investigation of complaints” when it issued the interim suspension, and that it violated his constitutional right to due process.
“The court found the interim suspension was egregious given UCSB’s delay in completion of the Title IX investigation,” reads the decision, written by Justice Yegan:
Doe’s action held the university accountable for its violation of these policies and enjoined an indefinite interim suspension issued in violation of those rules. The action enforced a student’s right to have the university comply with its own policies governing the time limits for resolving Title IX complaints and investigations. It confirmed the availability of injunctive relief to prohibit an interim suspension where the university unreasonably delays completion of a Title IX investigation, fails to consider less restrictive measures, and conceals critical evidence utilized in issuing the interim suspension order, all in violation of UCSB’s policies.
Representation in court was ‘misleading’: UCSB had already taken ‘corrective action’
John had also submitted a declaration by a female student who had been similarly suspended under a lengthy and slow Title IX investigation. Identified as “N.N.,” the female appears to be the Ottilie client identified as “Susan Doe” in a statement the lawyer gave The Fix this spring. (Both were nonwhite students accused by white non-students.)
She had attended John’s successful preliminary injunction hearing in Anderle’s court in March 2017, which “motivated her to fight her interim suspension and file her own complaint” two months later with the Department of Education’s Office for Civil Rights. Like John’s complaint, N.N.’s primarily addressed the investigation’s delay.
The Sept. 27, 2018 resolution agreement that UCSB hid from Anderle (below) was actually the conclusion of N.N.’s complaint. (John’s complaint was not resolved because of this litigation, the parties told the appeals court.) The university agreed to “promptly resolve future Title IX investigations, particularly in situations in which a student has been subject to an interim suspension,” among other provisions.
The university’s legal team told Anderle three weeks after this agreement was finalized that there had been “no outcome to suggest” that an Office for Civil Rights complaint benefited “separate litigation” and justified “an award of fees.”
Yegan’s opinion found this statement “misleading” because the university had already taken “corrective action” three weeks before John’s fee hearing and knew the outcome of N.N.’s complaint. UCSB knew that it “had agreed to implement major changes” to resolve her complaint. (Its lawyers told the appeals court at oral argument they didn’t know about the resolution agreement.)
Anderle had “evidence” when he ruled against the fee motion that John’s complaint helped shape N.N.’s complaint, but he didn’t know her complaint already had an outcome, namely the resolution agreement. This led the superior court to wrongly conclude there was not a “favorable or relevant outcome” to N.N.’s complaint.
Contrary to Anderle’s ruling, the resolution agreement shows there was a “systemic problem” in UCSB’s Title IX Office concerning the speed of investigations, especially when a student is under interim suspension, the appeals court said:
Indeed, this is not the first case this court has seen in which a Title IX investigation at UCSB exceeded the governing time requirements under the school’s written policies while a student was subject to an interim suspension.
Yegan’s opinion also said that “surely UCSB was aware” of Anderle’s March 2017 injunction against its interim suspension when it reached the resolution agreement with the feds.
“It strains credibility to believe that UCSB did not take” the injunction into account when it decided to resolve N.N.’s complaint, the ruling said: “Both this court and the superior court had held the university accountable for the very compliance issues addressed in the Resolution Agreement.”
Beyond the issue of legal fees, John also challenged the superior court’s dismissal of his suit as moot, claiming that “the interim suspension order was never reversed or vacated” even after the university cleared him. The order was a “distinct administrative charge (premised upon being a threat to the safety of all students).”
John believes this order “remains on his record and is a suspension he will have to answer for whenever asked” until the order is vacated, according to the appeals court.
The problem for John is that Anderle’s court can’t grant him “any effectual relief,” Yegan’s opinion said: UCSB cleared him of any misconduct, meaning it overturned Vice Chancellor Margaret Klawunn’s conclusion that his campus presence “poses a threat to the health and safety of the University community.”
The suspension does not appear on John’s official transcript, and under Anderle’s original ruling, UCSB could not say that he was ever on “interim suspension,” the appeals court found.
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