Title IX Proceedings Are Now Protected Forums Under anti-SLAPP Statute

Anti-SLAPP Statute strengthened - Dhillon Law Group

In the wake of the high-profile trial of Brock Turner and the viral impact statement released by the sexual assault victim at Stanford University, more and more survivors of sexual violence and harassment at California universities have been speaking out against their attackers, or reporting incidents of stalking or harassment by peers or teaching staff. Unfortunately, this exercise of free speech in pursuit of personal safety is sometimes met with heavy backlash from the accused in the form of a SLAPP (Strategic Lawsuit Against Public Participation), in which the accused sues the victim in an effort to silence or discredit the allegations lodged against him or her. In September, 2016, a University of California, Berkeley professor who is the subject of three sexual harassment complaints filed lawsuits against the women he is accused of victimizing – current and prior students – claiming that the women’s statements defamed him and constituted intentional infliction of emotional distress. See, e.g., Wentworth v. Hemenway, Superior Court of Alameda County, Case No. RG16831932.

Fortunately, California’s anti-SLAPP law, codified at Code of Civil Procedure §425.16, protects defendants targeted by SLAPP suits, and can be used to strike a lawsuit at its inception when the plaintiff’s claims arise from acts taken in furtherance of the defendant’s free speech or petition rights. Thanks to a September 12, 2016 decision by the Los Angeles Superior Court, anti-SLAPP protections now extend to statements made in connection with proceedings under Title IX of the Education Amendments of 1972, the federal civil rights law that prohibits sexual discrimination in education, and provides for investigation of a student’s claims of sexual harassment on campus.

Pekgoz v. Ehrhardt, Superior Court of Los Angeles County, Case No. BC615536 (Sept. 12, 2016) concerned the aftermath of a brief sexual relationship between plaintiff and defendant, both students enrolled in a California university. After the parties’ relationship turned sour, and following certain harassing conduct by the plaintiff, defendant had a meeting with the a professor advisor and another student, to discuss her concerns about the plaintiff’s post-breakup behavior, and to seek guidance about filing a formal complaint against him under Title IX. Shortly following these discussions, the defendant filed a complaint against plaintiff with the university’s Title IX office.  The university conducted an investigation, and the Title IX decision ultimately found in favor of the defendant.

Nine days later, plaintiff filed pro per a Complaint against the defendant for defamation and intentional infliction of emotional distress in the Superior Court of Los Angeles. The Complaint alleged that the defendant had told other university students and a professor advisor that plaintiff had committed sexual harassment and blackmail, and that defendant had used threats of violence towards plaintiff and pressured him to engage in certain sexual conduct.

Defendant filed an anti-SLAPP motion, arguing that she did not make the statements attributed to her, and that any statements she did make concerning the circumstances surrounding her sexual relationship with the plaintiff, were made either just prior to, or in the course of, her Title IX proceeding. Defendant argued that a Title IX proceeding was an “official proceeding authorized by law,” as contemplated by §425.16(e), subd. (1) and (2). In support of her position, defendant submitted sworn declarations by each of the alleged recipients of defamation – all of whom had been witnesses in the Title IX proceeding.

Following a hearing on September 12, 2016, the Court granted the motion to strike, finding that defendant’s statements to the professor advisor and the Title IX Investigator were made “before, in preparation of, or in connection with issues under consideration and review by an official proceeding, the Title IX proceeding, and, therefore, arise from protected activity.” The Court cited to Vergos v. McNeal (2007) 146 Cal.App. 4th 1387, which held that “statutory hearing procedures” qualify as official proceedings authorized by law for anti-SLAPP purposes.

The Court also cited Title IX and its implementing regulations, which require a university’s compliance with statutory procedural requirements, including, inter alia, notice requirements, published grievance procedures, designation of a Title IX coordinator, and judicial review. As the Court found that all of defendant’s claims were based in whole or in part on the alleged defamation, defendant was held to have met her burden of showing that the causes of action “arise from” protected activity within the meaning of the anti-SLAPP statute. A hearing on the defendant’s motion for her attorneys’ fees and costs (an award of which is mandated by statute) is expected to take place later this year.

The Court’s express recognition of university Title IX proceedings as protected forums for speech activity under the anti-SLAPP statute will help students feel safe to complain about harassment, or to participate in an investigation by giving testimony, without fear of retaliatory lawsuits by the targets of the investigation, beyond the motion to strike. This ruling is both a helpful step forward for victims of sex discrimination, and an aid to litigants and their attorneys concerning the scope of §425.16.

Harmeet K. Dhillon is a partner and founder of the Dhillon Law Group Inc.

Krista L. Baughman is the firm’s managing attorney. Both of their practices include substantial First Amendment litigation and anti-SLAPP work. They represented the successful defendant in the case discussed above.

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