College Lawyers Say Title IX Process Must Be Fair to Both Parties

JUNE 26, 2017

Colleges are facing a lot of pressure to investigate and punish incidents of sexual assault under extensive guidance from the federal Education Department. But their responses have also made them a target of lawsuits by students challenging whether the colleges have responded adequately.

To survive those lawsuits, the colleges must treat both the survivor and the accused fairly, said a panel of lawyers here at the annual meeting of the National Association of College and University Attorneys.

How to investigate and punish sexual assaults has become a perennial topic at the conference following a 2011 “Dear Colleague” letter on complying with Title IX, the federal law that protects against sexual discrimination in higher education. Nearly 400 colleges are now under investigation from the department’s Office for Civil Rights.

Adding to the complexity of complying with the federal investigations are the dozens of lawsuits that have been filed by students — sometimes the alleged victims but more often the accused perpetrators — who charge that the college has mishandled the situation.

It’s a perpetual juggling act that requires the college to protect students, ensure an equitable process for investigations, and hold perpetrators accountable, said Laurie R. Bishop, who works for the law firm of Hirsch Roberts Weinstein.

But to protect the institution against lawsuits the college has to ensure a scrupulous, yet simple process, said Scott A. Roberts, another lawyer with Hirsch Roberts Weinstein. And that process should include treating the accused as fairly as the accuser, said Mr. Roberts. “They’re both members of your community,” he said.

Being fair means that the investigator needs to communicate with both sides equally and follow up on the evidence that each provides to support his or her case, said the lawyers. In addition, the policy for handling sexual-assault cases and the outcome of any investigation should be gender neutral.

Courts continue to wrestle with several other difficult issues, such as how to consider the Education Department’s 2011 guidance, says Mr. Roberts. The Dear Colleague letter was issued without going through a formal rule-making process.

Assault accusations involving alcohol or other drug use bring particular challenges, said Leslie M. Gomez, a lawyer with the firm Cozen O’Connor, which has conducted several high-profile investigations of Title IX violations. A large number of cases involve determining whether the victim was too incapacitated to give consent, Ms. Gomez said. But colleges are also now considering whether the accused — or a sober, reasonable person in the same circumstances — would have known the accuser was incapacitated, she said.

“Clearly defined policy provisions, a robust investigation by an experienced investigator, and a balanced and fair approach to the issues are critical to gathering reliable information, applying clear legal standards and policy definitions, and reaching equitable outcomes,” Ms. Gomez said following the panel discussion.

Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.