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Mediation is playing an increasingly larger role in helping colleges manage serious campus disputes—particularly in Title IX–related matters. Using “neutrals”—parlance in the legal field for mediators—more often is being propelled by industry choice, not legal mandate.

Higher education finds itself today in a highly regulated and litigious culture—where debate abounds regarding dispute resolution processes for colleges. The culture wars over dispute resolution models in higher education threaten to undermine the autonomy of the field. This situation is also highly dynamic; it is almost impossible to predict what might happen in Title IX regulation. Many institutions are confused about which models of dispute resolution are, and will remain, legally compliant. The U.S. Department of Education has changed course several times on preferred dispute resolution models—and may very well do so again. Several courts around the country have ruled on college discipline systems—with various, and at times inconsistent, decrees on fundamental fairness and due process. However, amidst the confusion, one trend seems clear: Colleges are being mandated to use more formalized adjudicatory processes. College “court,” for better or worse, is emerging. But will a trend toward mandated formal adjudicatory models in higher education propel other models—perhaps ones higher education chooses for itself?

Integrating ADR Into the Process

Our extensive experience with actual court systems leads us to believe the answer will be yes. The legal system itself now depends heavily on alternative dispute resolution (ADR)—which includes mediation. Individuals with serious disputes often want, need and even deserve ADR. ADR gained widespread acceptance a generation ago for the simple reason that not everything can, or should, go to court or be subject to adversarial or overly formal processes.  What happened in the legal system is now happening on campuses: Colleges are relying on alternative forms of dispute resolution of their own devise—educational equivalents of ADR that, as we advocate, will benefit immensely from being integrated with received wisdom regarding ADR from the legal field.

Consider as a prime example the recent evolution of Title IX compliance work. Individuals impacted by sex discrimination often actively seek to avoid formalized adjudicatory processes; they instead desire (even demand) outcomes and interventions that colleges sometimes struggle to offer—meaningful long-term resolutions, truth (not posturing in a hearing), healing, social justice, apologies, creative remedies and, yes, learning. Every Title IX coordinator has interviewed students who do not wish to attend hearings or invoke sanctions. To some students, being forced into a formal, adversarial hearing seems like a sanction in and of itself. Moreover, the use of no-contact arrangements is now ubiquitous in Title IX work—often dominating the time and energy of Title IX administrators. Consider also that many well-trained and dedicated dispute resolution specialists on campuses—members of the Association for Student Conduct Administration, Title IX investigators, etc.—are lamenting that the educational function of student discipline is now floundering in a tide of adversarial, legalistic formalisms. Litigation is replacing education—law over learning.

Struggling to maintain autonomy in the face of external regulation and find sustainable solutions, colleges need help. We recommend self-help for higher education—combining existing and functional dispute resolution practices on campus with proven mediation techniques and experienced neutral mediators.

The Need for Experienced Neutrals

The spread of mediation in higher education will be facilitated by the cadre of trained and experienced neutrals available to integrate with the higher education industry. College mediation practices can have access to lawyers and retired judges with extensive experience—some in sexual violence matters in other contexts, such as criminal justice or in the business world. The point is not to replicate other systems or simply parachute neutrals into higher education. Colleges and universities will not want to replicate the criminal justice system, which serves different goals and itself is undergoing deep and fundamental change (and has struggled with issues of social justice, including dealing with acquaintance sexual violence). Mediation, by its very nature, is not uniform and must adapt to and serve the environment in which it operates. Experience in business or criminal court mediation provides useful training for mediators; much of what mediators learn in one context is transferrable to other situations. Uniquely, mediation in the higher education context must be driven by learning and educational outcomes.  A proposed model developed with academia at its forefront could involve internal school resources, e.g., counselors, advisors, etc., serving as the first step to work with the parties involved, and the second step could introduce external professionally trained mediators who understand the nuances of school campuses and the reported policy violations that occur there. Experienced neutrals will be population sensitive, recognizing, for example, that traditional-aged college students are at a critical stage of development.

The resources to integrate mediation into higher education are already available. Entities experienced in dispute resolution system design, such as JAMS, are available to work with higher education in developing sustainable and facilitative dispute resolution models for the colleges of the future. Colleges have the opportunity to enlist retired judges, for example, whose expertise has been developed by tax dollars. A pioneer in the field of ADR, the late Harvard professor Roger Fisher, might have implored us to “get to yes” with experienced mediators, as opposed to “getting to no” with adversarial processes.

Modern Solutions to Historical Problems

The rise of mediation in higher education will not herald the arrival of an exogenous force. Higher education neutrals must connect their knowledge and experience with dispute resolution trends from within higher education. College administrators have recently made significant strides to make historical college discipline codes more responsive to the modern demands of social justice and more respectful of students in conflict with others or with the institution itself. Institutional efforts at implementing restorative justice models and using educational conferences, however, have struggled to gain legal traction in court and with regulators. Yet restorative justice techniques have great potential for higher education institutions—working with individuals’ lived experiences, healing and focusing upon community building and reclamation.

Restorative justice techniques were borrowed from the legal system, where they have shown promise in difficult-to-resolve matters—for example, those involving sexual misconduct among acquaintances. Combining college restorative justice practices with mediation and trained higher education neutrals offers the potential for even more promising outcomes. (Some prosecutors in criminal justice systems use a form of restorative justice, but there is a coercive aspect to implementation in this context. Prosecutors can use restorative justice as leverage over criminal defendants—i.e., participate or go to jail. Colleges, however, are at liberty to divorce restorative justice practices from a prosecutorial or adversarial function—and instead connect such practices with educational functions.)

Many colleges also use educational conferences as a point of contact with students in conflict with the institution or others, but as valuable as they may be, proponents of highly legalistic and adversarial systems of dispute resolution are inclined to view these conferences as defective hearings—not valuable educational interventions where trained educators in the role of facilitators explore how students may learn to make better decisions or resolve conflicts as active agents in the resolution process. Restorative justice practices and educational conferences capture many, if not all, of the significant features of modern mediation. On its own, higher education has been charting a path toward what we see as an evolving form of  mediation. It’s time to take the next step and integrate good work on campus with skills and skilled professionals in the ADR field.

A recent court decision on due process extolled the virtue of cross-examination as a tool to find the truth; in the educational context, the greatest tool to uncover the truth may be building trust. There are unusual matters where hope for trust and learning are gone. There will be times when formal adjudicative processes will be necessary and appropriate, when individuals have so transgressed our educational community norms that educational opportunities have ceased and there is nothing to mediate. But the majority of conflict on campuses occupies other spaces where learning and healing opportunities are often present.

Stepping Along the Right Path Forward

Our colleges deserve dispute resolution processes suited to our industry, ones that we have created. Mediation offers a path forward, building on the very instincts of educators to create facilitative, not adversarial, learning environments. Enter experienced third-party neutrals, those unaffiliated with the school, whom would be able to not only foster trust among the parties, but also between the parties and the school by virtue of the very fact that they aren’t a member of administration.  Seasoned external and skillful mediators brought to campus for their dispute resolution expertise alleviates perceptions of bias and provides safeguards against potential overburdening of faculty and staff. It is time for a common sense idea to enter the cultural dialogue in higher education. We can often work things out with a little help from others, but when we can’t, there is always the court system to fall back on.

 Hon. Jane Cutler Greenspan (Ret.) is a JAMS neutral, based in Philadelphia. She routinely serves as an arbitrator and mediator in complex commercial, labor, financial and business disputes, as well as an adjudicator in a number of higher education Title IX cases. 

 Peter F. Lake is a law professor and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. He is also a senior higher education consulting attorney with Steptoe & Johnson LLP.

Editors Note: The opinions expressed in this column are solely those of the author and do not necessarily represent the opinions of the Tropolitan or its staff members. Address responses and critiques to opinion@tropnews.com

Last week, the L.A. Times reported that the U.S. Department of Education opened more than two dozen different investigations around gender discrimination in universities such as Rice and Yale. The basis of these investigations comes from studies that show gender inequality in scholarship offers. One such survey was recently released by the nonprofit organization Stop Abusive and Violent Environments (SAVE). The survey points out that most single gender scholarships are granted to women. 

The study examined more than 200 colleges across the United States and found that the total number of single gender scholarships vastly favored women over men. In our state of Alabama alone, there are 87 women-only scholarships compared to only three for men. Here at Troy, there are five scholarships only for women and one scholarship only for men. Auburn University has one of the most egregious gender scholarship gaps in the entire country. There, women are offered 67 scholarships compared to a measly one for men. 

Title IX, a federal law that applies to any school that receives federal money, makes discrimination based on sex in education programs illegal. Single gender scholarships are permitted under this rule if the “overall effect” of scholarships is equitable. In other words, the scholarships are legal if the opportunities offered to one gender are equal to the other. This recent study from SAVE shows that the overall effect of these gender-specific scholarships is not equitable. Therefore, the universities offering these scholarships in such lopsided proportions should be investigated, as they are quite possibly violating title IX rules. 

The reason for these possible violations isn’t the fact that universities offer only women or only men scholarships. Each individual scholarship on its own is and should be respected and uncontested. The problem is when the disproportionate numbers offered to women over men is taken into account. At Troy for instance, if the university offered five scholarships that were only to women and five that were only to men, that would have an overall equitable effect since both genders would be given the same number of exclusive opportunities. Instead, women are given a larger amount more than men, and thus the effect is not equitable. 

Now, if there are more men receiving gender neutral scholarships, that might change the balance enough for the existence of such a gender specific scholarship gap. However, I was unable to find specific numbers of distribution of general scholarships based on gender. I did find that more women attend and graduate college compared to their male counterparts. Women make up roughly 57% of college students and earn more bachelors and doctoral degrees annually than men. 

I think that men should have at least an equal amount of gender specific scholarships. 

Arizona has more scholarships for women than 36 states combined have for men

Men who want more scholarship money might try a novel tactic: Identify themselves as women.

A review of more than 200 American colleges and universities reveals that they favor women over men by a wide margin in sex-specific scholarships.

The most stark disparities are found at the University of Phoenix (106 female scholarships to 2 male), Auburn University (67 to 1) and Oregon State (51 to 5).

The actual disparities could be higher: The study by Stop Abusive and Violent Environments, best known for defending students accused of sexual misconduct, only covered 36 states.

Erin Buzuvis, a Title IX expert and law professor at Western New England University, recently told the Los Angeles Times that sex-specific programs should be reviewed as “segregation projects” that may promote stereotypes.

But she also wants to increase the number of men in female-heavy fields such as nursing and K-12 education.

Buzuvis told The College Fix in an email that she doesn’t “have any examples” of academic programs that are mainly geared toward male students, despite spending her academic career studying sex-based discrimination and blogging on Title IX.

Another law professor told The Fix that students excluded from scholarships because of their sex should consider suing, citing the plain language of Title IX itself.

Women get $641 more at Kent State

The top three states for female-only scholarships among the 36 reviewed by SAVE: Arizona (161), California (117) and Florida (112). The male-only numbers: 3, 4 and 7.

Five of the next seven are reliably red states: Oregon (93), Utah (90), Alabama (87), Indiana and Wyoming (86 each), Wisconsin (77) and Texas (73). The only one of those with double-digit male scholarships was Texas.

Arizona has more women-only scholarships than the 36 states combined have for men, according to the tally, which is based on SAVE’s review of college websites.

Male students thinking of applying to Kent State University in Ohio can quantify the difference in scholarship money.

SAVE said the public university’s associate counsel told the group this month that it offers 11 scholarships for women and two for men. The average women-only scholarship in the prior academic year was $2,208, compared to $1,567 for the average men-only scholarship.

This was a direct violation of Title IX’s implementing regulations, according to SAVE, which limit sex-restricted financial assistance to those forms whose “overall effect” does not discriminate on the basis of sex.

The study found “widespread discriminatory practices” against men: 57 percent of reviewed colleges “facially violate” Title IX with their array of scholarships (a difference of five or more between the sexes), while 27 percent are “borderline” (2-4) and 16 are “non-discriminatory” (0-1).

Female professor files complaint to protest unfair treatment of men

It’s not just scholarships that overwhelmingly favor women. SAVE said more than two dozen schools are already under investigation by the U.S. Department of Education for limiting programs to women, such as women-only engineering, science and technology programs.

They include Brown, Yale and Princeton, plus several prominent public universities, including UCLA, the University of California-Berkeley and University of Michigan.

UCLA can thank one of its female professors for its federal investigation.

She told the Los Angeles Times that she filed a Title IX complaint because she objected to the gender-exclusive nature of two workshops hosted by the Institute for Pure and Applied Mathematics. The feds told her it was investigating the workshops, which received federal funds.

Fliers for the January workshop on “Women in Mathematics and Public Policy” were frank: “only women will be invited to participate,” according to the Times. A flier for the “Collaborative Workshop for Women in Mathematical Biology,” hosted this June, only welcomed female grad students, PhDs, and researchers.

The female professor, who spoke on condition of anonymity for fear of retaliation, said she was motivated to complain by increasing favoritism toward women in the sciences and resulting disillusionment among male students.

MORE: Schools offering woman-only scholarships may be in violation of Title IX

A UCLA spokesperson told the Times that it “did not exclude men from participating in the two workshops despite the focus on women,” but did not specify whether any males attended the events. It is also unclear if any transgender women attended either workshop.

Regulatory complaints about the exclusion of men have gotten results in the past few years.

Most recently, Clemson University opened its female-only programs to everyone to end a federal investigation. Mark Perry, an economist at the University of Michigan-Flint, helped kick off the trend three years ago with a successful complaint against the University of Michigan’s 91-year-old women-only lounge.

Perry has since filed gender discrimination complaints against against more than 50 institutions, including the University of California-Davis for its STEM programs for middle and high school girls, according to the Times.

Last week he gave an update of his efforts on his American Enterprise Institute blog, after Clemson revised its programs.

“Given the fact that most universities have large and growing diversity staffs (150 at Yale, nearly 100 at Michigan),” he wrote, it’s disappointing that “external complainants like myself” have to file complaints against sex-discrimination practices. This “really should be done internally by universities’ own Title IX and diversity offices.”

‘We cannot have Female Economics 101 and Male Economics 101’

John Banzhaf, a George Washington University law professor who has fought for “potty parity” for women in public restrooms, goes even further than his peer Erin Buzuvis at Western New England University.

Regardless of the initial motivation for female-only opportunities in the academy – to reverse gender inequity, “male privilege” and a pattern of higher male enrollment in STEM fields – the practice is not legal, he said in an email.

While male-only opportunities are vastly disproportionate to those for women on campus, the imbalance is less relevant than the sheer separation of educational opportunity by sex, according to Banzhaf.

Title IX language provides that students cannot “be excluded from participation in, be denied the benefits of, or be subjected to discrimination” in federally funded education “on the basis of sex.”

Banzhaf concludes that the “words certainly suggest that any person excluded from a program solely because of gender would have a legal cause of action, even if offered a program arguably ‘equivalent.’”

This is the gender equivalent of the Supreme Court’s rejection of “separate but equal” facilities by race in 1954’s Brown v. Board of Education ruling. Without considering Title IX regulatory exceptions for athletic competition and facilities where students disrobe, even equal footing for sex-restricted programs would violate the law under this theory.

Broadly speaking, “we cannot have Female Economics 101 and Male Economics 101 because we can teach both genders in one class,” Banzhaf wrote.

MORE: 92% of sex-specific scholarships are for women

MORE: Did Tulane agree to ‘stop discriminating against men’ to satisfy OCR?

‘Disastrous for due process’ if resolution passes

On college campuses, accused students often must prove they obtained “affirmative consent” from their partners before and throughout sexual activity. In a few states, it’s the law for college students.

The American Bar Association, which sets academic standards for law schools and recommends legislation, is deciding whether it should be the law for everyone.

Criminal lawyers and advocates of due process are urging the ABA to reject a resolution that they say would flip the burden of proof from the government to the accused in criminal cases.

Mandating affirmative consent would functionally mean the end of the Fifth Amendment right against self-incrimination, they argue, by requiring the accused to testify of their innocence.

Resolution 114 is under consideration by the ABA House of Delegates at its annual meetingin San Francisco this week. It would urge legislatures and courts to “define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact.”

MORE: Lawyers object to attempt to quietly redefine sexual assault

It would further provide that “consent is expressed by words or action in the context of all the circumstances.” The resolution asks courts to instruct juries that an alleged victim did not consent simply because that person “did not resist, verbally or physically, to a specific act.”

Neither the resolution nor the accompanying report define “sexual contact.” The vagueness of the definition could empower the government to prosecute defendants for failing to get explicit permission from their spouses before adjusting sexual positions, even if the spouse physically cooperates, for example.

“Given the ABA’s reputation and influence, it would be disastrous for due process if this resolution were to pass,” Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, wrote in a blog post Monday.

Opponents of the resolution have history on their side: Another prominent legal group voted down a similar resolution three years ago.

Cites heavily disputed theories of neurobiological response

While affirmative consent is a popular concept on campus and is often promoted in mandatory sexual-consent training, it is hard to define in a legal sense.

Like other definitions, the resolution and report devised by the ABA’s Commission on Domestic and Sexual Violence affirms that consent can be conveyed through actions as well as words. But the furthest the report goes to specify actions that demonstrate consent is to cite two vague state criminal definitions.

In Wisconsin, consent can be shown through “overt actions” that indicate “a freely given agreement to have sexual intercourse or sexual contact.” California’s code requires “positive cooperation in act or attitude pursuant to an exercise of free will.”

Due process lawsuits stemming from Title IX adjudications often explain at length how an accuser showed consent through overt actions or positive cooperation, but later disputed that the encounter was consensual throughout.

MORE: Memory, neuroscience experts warn of junk science in Title IX training

The report suggests that without affirmative consent in the criminal law, potential victims will be required to physically fight their aggressors in order to demonstrate their lack of consent.

It cites heavily disputed theories, sometimes compared to the “repressed memory” movement, that victims may seize up during sexual assault, physically unable to vocalize or demonstrate their lack of consent. The report approvingly cites Michigan State University psychologist Rebecca Campbell as an expert in the “neurobiology of trauma as it relates to sexual violence.” Campbell is not a neuroscientist.

“A history of sexual violence, and of the status of women as the sexual property of men, still informs the law governing sexual assault, and that should stop,” concludes the report, written by the chair of the commission, Mark Schickman, and the chair of the ABA’s Criminal Justice Section, Lucian Dervan. “The proposed definition is a step in that direction.”

Guilty ‘merely upon evidence of a sex act with nothing more’

Among the groups opposing the resolution is the National Association of Criminal Defense Lawyers, which says it would prove an offense occurred “merely upon evidence of a sex act with nothing more.”

The resolution shifts the burden of proof to the accused for each act, undefined, within a larger sexual encounter, and “assumes guilt in the absence of any evidence regarding consent,” the association wrote last month.

“This radical change in the law would violate the Due Process Clause of the Fifth and
Fourteenth Amendments and the Presumption of Innocence,” the group argues. “The resolution will often force the defendant to testify in order to present evidence that consent was expressed.”

More technically, the ABA resolution would turn sexual assault into a “strict liability” crime that ignores “the mental state of the accused,” putting it out of whack with criminal liability in general.

The association accuses the ABA report authors of misrepresenting the American Law Institute’s consideration of the affirmative consent standard for its “model penal code” in 2016.

MORE: ‘Victim-centered’ investigations create new victims

To justify its own proposal, the ABA commission cites the ALI proposal at length, saying only that the ALI version is “not yet final.”

The association retorted that “it is final as far as affirmative consent goes – the concept was rejected in a landslide vote” by ALI members, an elite group that includes professors, attorneys, judges and other legal professionals.

The ALI instead adopted a broader definition of consent that includes “willingness” – rather than the contractual “assent” – and says it can be “inferred from behavior,” including “inaction.”

The ABA resolution would “impose novel social legislation designed to dictate social mores” into criminal law, according to the association. It “seeks to impose uncommon requirements in the volatile area of human sexual relations.”

The group also questioned the science proffered by the ABA, saying that “tonic immobility or tonic collapse” is associated with a “traumatic event” such as a “brutal rape with force. The vast majority of consent cases do not include such traumatic events.”

‘This gibberish resolution will result in the conviction of innocent men’

Criminal defense lawyer Scott Greenfield was less restrained in his opposition to the ABA resolution.

“ALI’s proposal to change the model penal code failed, largely because not everyone there has shit for brains,” he wrote in a blog post. He mocked the House of Delegates as “consisting of the last three full-paying members and lots of third-wave-feminist academics.”

The point of the resolution is “turning law on its head and assuring that any ‘survivor,’ any woman who accuses a man of rape, will prevail,” Greenfield wrote:

Her accusation will be believed. He will be defenseless. She will get her vengeance and he will be punished. …

There’s no reason to remind the ABA that this gibberish resolution will result in the conviction of innocent men. That’s just the price of believing the woman, and they are totally willing to pay that price with other, innocent men’s lives.

The resolution makes all sexual activity “presumptively nonconsensual,” according to FIRE’s Harris. She asks ABA members to consider how affirmative consent has worked on campus, pointing to FIRE’s man-on-the-street interviews with students (below).

MORE: ALI draft said disabled people can’t consent to sex

“As high as the stakes are on campus — where students found responsible face the loss of educational and job opportunities as well as permanent stigma — they are higher still in the criminal context, where those found guilty face imprisonment,” Harris wrote.

The president of the due-process group Stop Abusive and Violent Environments seems more sanguine about the prospects of defeating the resolution, or at least mitigating its impact.

“You may recall that from 2014 to 2016, many state legislatures considered affirmative consent bills – almost all of which we succeeded in defeating,” Ed Bartlett told The College Fixin an email.

His group maintains a through resources page on the dangers of affirmative consent. The concept makes it easy for accusers to “retroactively revoke consent” by claiming they consented to one but not another act, but at its core, affirmative consent simply “infantilizes women.”

MORE: Law prof suggests kangaroo courts look at home, work relationships