Can colleges keep up as Title IX guidance shifts and splinters?

Colleges and universities have faced an avalanche of sexual assault lawsuits in recent years arguing that they botched cases in ways that have slighted both victims of sexual violence and students accused of it.

The increase in cases comes as the legal outlook around Title IX, the federal law that governs sex discrimination on campuses, grows more complex. U.S. Secretary of Education Betsy DeVos has moved to replace guidance from the Obama administration that was credited with providing sexual assault survivors new protections, though critics claimed it flouted constitutional due process. 

DeVos’ proposal on Title IX — a draft regulation that is expected to be finalized soon — has dominated news headlines and debate among activists. And it has coincided with significant decisions in Title IX court cases nationwide that stand to change how institutions report and investigate sexual violence.

But the shifting landscape can also breed confusion. The rules colleges must follow vary based on their location. Amid the steady stream of lawsuits and the pending regulations, higher education law experts say colleges will likely revise their policies and increasingly turn to outside consultants for help.

As institutions of all sizes attempt to figure out whether and how their existing policies might put them at risk in a new and ever-changing legal and regulatory environment, more consultants could be drawn into the market. Smaller, less-resourced colleges and systems, in particular, tend to rely on these groups or individuals. 

“Each (court) circuit is creating its own cottage industry, whether they realize it or not,” said Peter Lake, director of Stetson University’s Center for Excellence in Higher Education Law and Policy.

A claim of ‘pre-assault’

A decision last month from the U.S. Court of Appeals for the 9th Circuit highlights the potential for uncertainty among higher ed administrators over how to address sexual assault on campus. The circuit encompasses West Coast states, as well as Alaska and Hawaii.

The opinion stems from a 2015 lawsuit brought by three former University of California, Berkeley students who said they were sexually assaulted as undergraduates. The trio sued the UC board of regents, alleging administrators bungled their cases. 

After a lower court threw out the women’s lawsuit, they appealed one of their arguments successfully: that UC may have violated Title IX by maintaining “a general policy of deliberate indifference to reports of sexual misconduct,” which created a “heightened risk” of students being subjected to sexual violence. 

The theory is known as a pre-assault claim, meaning an institution can be held liable for its Title IX policies even before an episode of sexual violence occurs.

As a legal argument, this is not novel. 

In their opinion, the 9th Circuit judges cited a 2007 ruling by the 10th Circuit that two female students who sued the University of Colorado may have had a pre-assault claim. The court found that the university possibly disregarded sexual misconduct in its football program, despite prior complaints and a recommendation by the district attorney that it needed to monitor athletic recruits and add sexual assault prevention training. The university went on to settle with the case’s namesake plaintiff, Lisa Simpson, for $2.5 million, and the other, Anne Gilmore, for $350,000.

The 9th Circuit panel said the 10th Circuit’s decision was a persuasive factor in sending the case back to the district court for consideration. 

The underlying theory of pre-assault has been at least an implicit part of Title IX practice, according to a recent brief about the 9th Circuit’s case from the State University of New York’s Student Conduct Institute.

Although colleges would ideally have sound Title IX procedures in place, the ruling sets up a potential Supreme Court challenge, as courts that are more conservative have deviated from the 9th Circuit on the interpretation of pre-assault, said Laura Dunn, founding partner of the L.L. Dunn Law Firm, in an interview with Education Dive. 

It also puts colleges in that circuit “on notice,” she said.

“If you want to sit on your hands, and let this culture and environment fester … it really can come back and bite you in terms of liability,” Dunn said.

The ruling also affects California, home to both UC and California State University, two of the largest and most prominent systems in the country. Policy changes at either system would likely reverberate across academe.

In statements emailed to Education Dive, representatives from UC and California State did not say whether they would alter their rules based on the court’s decision. 

Stett Holbrook, a UC spokesperson, wrote that the system “continues to navigate the uncertainty” around laws dealing with campus sexual misconduct. He added it is “committed to providing processes for investigating and resolving sexual violence and sexual harassment allegations that treat parties with respect and compassion, and result in just outcomes.” 

California State “continually reviews” its Title IX policies to make sure they comply with state and federal laws, wrote Toni Molle, a California State spokesperson.

Education Dive emailed questions to five state flagships in the 9th Circuit about whether the ruling would affect their policies. Two of them responded.

The University of Nevada deferred to the Nevada System of Higher Education. System spokesperson Francis McCabe said it was reviewing the opinion to determine whether it affected its policies and procedures. Jodi Walker, a spokesperson for the University of Idaho, told Education Dive in an email that the university’s legal counsel reviewed the case and it would not need to change its policies or practices. 

Outside help needed

Following Title IX used to be a fairly prescriptive exercise, said Jody Shipper, co-founder of the California-based consulting firm Grand River Solutions, in an interview with Education Dive. 

The Obama guidance, which came in the form of a “Dear Colleague” letter in 2011, offered a roadmap, even if not all colleges interpreted it correctly, she said. In the last few years though, DeVos rescinded Obama-era policies and passed down interim guidance that gave colleges more flexibility in how to adjudicate sexual misconduct. While some institutions were comfortable with the change, it “terrified” others, she said.

Grand River, which is just over a year old, works with about two dozen institutions at any given time, she said. None of the colleges she works with have contacted her about the 9th Circuit’s recent decision, though she said that’s likely because it would be difficult for a school to fix flawed institutional policies from years prior that might have resulted in a case being mishandled. 

But the flurry of court cases left colleges confused, and Shipper has seen them lean on consultants more as a result.

“We have started to get court cases that are wildly divergent,” she said.

Outsourcing certain Title IX work is nothing new. Universities have frequently hired external lawyers and retired judges to investigate accounts of sexual assault or run conduct hearings for these cases. Consulting work can be particularly lucrative, too, as Title IX-related lawsuits have accelerated.

TNG Consulting, a prominent contractor previously known as the NCHERM Group, charged a minimum of $6,500 per day for a single campus workshop on Title IX, the Chronicle of Higher Education reported in 2017.

DeVos’ draft rules, which controversially demand that the parties involved in a sexual assault case — or their surrogates — be allowed to cross-examine each other, are expected to boost demand for consultants as colleges shift to courtroom-style processes for adjudicating sexual misconduct.

Colleges will also likely seek help in handling mediation of certain sexual assault cases, which DeVos’ regulations would potentially allow. The Obama guidance had deemed it inappropriate in all sexual violence cases, representatives from JAMS, which specializes in meditation and arbitration services and works with institutions across the country, said at a recent higher ed law conference in Florida. In lieu of a traditional investigation, students could settle an alleged assault through less-intensive means, such as having the accused enroll in rape-prevention courses. 

Jennifer Sambito, a client solutions manager for JAMS, told Education Dive in an email that it can help by assuring all parties involved in a case that “decisions were reached impartially.”

“This can have the effect of insulating the rendered decisions —​ and institution —​ from scrutiny by third parties and participants alike, while maintaining all due levels of sensitivity and appropriate confidentiality before, during, and after the adjudications occur,” Sambito said.