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Author: Emily Haigh, JD

higher education law - Title IX
In recent years, there has been a sea change within higher education’s treatment of sexual assault. Educational institutions now investigate and adjudicate reports of sexual violence independently of law enforcement. How and why are our institutions doing this? The answer is Title IX of the Education Amendments of 1972 and the U.S. Department of Education’s (DoE) expanded interpretation of Title IX. Although the DoE’s goal to rid campuses of sexual violence may be laudable, the responsibility to investigate and adjudicate sexual assault has exposed our schools to civil liability. Title IX states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Title IX’s goal is to ensure equal access to our nation’s educational resources and provide campuses free of sex discrimination. In 2011, the DoE made clear its position that sexual violence is a form of gender discrimination prohibited under Title IX. This interpretation widened the scope of Title IX’s mandate and, with it, the DoE’s oversight authority. It made sexual assault a civil rights violation, as well as a criminal and civil violation, and the DoE assumed the authority to govern institutional responses to sexual assault. That year, the DoE published a 19-page Dear Colleague letter informing schools that they are responsible for adjudicating sexual assault independently of criminal law enforcement. The letter stated that there must be two parallel investigations and that even if the victim makes a criminal complaint, there must also be an ongoing investigation run by the school’s Title IX office. Further, the letter provided adjudication guidance whereby Title IX hearings would not mirror criminal proceedings. For example, it stated that parties should not personally question or cross-examine each other during the hearing, offering the rationale that “[a]llowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.” While the right to cross-examine one’s accuser is a centuries-old cornerstone of both civil and criminal law in this country, the DoE did not seek to replicate the protections of our judicial system, despite the criminal (let alone reputational and civil liability) implications of a sexual assault adjudication. Perhaps the most contentious part of the 2011 Dear Colleague letter was its direction that schools must use the significantly lower preponderance of evidence standard when adjudicating sexual violence claims. Preponderance of evidence is a standard of proof used in civil cases that requires the moving party to show only that the act more likely than not occurred. In contrast, in a criminal case, the government must show beyond a reasonable doubt that the act occurred. The lower burden of proof within Title IX again separates it from any parallel criminal adjudication of the same act of sexual violence. In 2014, the DoE provided additional guidance on sexual assault adjudication through another Dear Colleague letter, and the White House published “The First Report of the White House Task Force to Protect Students from Sexual Assault.” The White House advocated for what has come to be termed the “single investigator model.” This model calls for a trained investigator to “interview the complainant and alleged perpetrator, gather any physical evidence, interview available witnesses—and then either render a finding, present a recommendation, or even work out an acceptance-of-responsibility agreement with the offender.” This guidance also runs contrary to our criminal justice system by suggesting that one individual could serve in so many roles while remaining fair and impartial. Again, Title IX showed itself as different and distinct from any parallel criminal proceeding occurring outside of campus. One may ask whether schools may veer away from DoE guidance or simply maintain a policy that sexual violence must be adjudicated in a courtroom. They may not. One reason schools must comply with DoE guidance is that the DoE has enforcement mechanisms. The DoE’s Office of Civil Rights (OCR) acts as the enforcing branch of the DoE’s policies and mandates. The OCR’s enforcement occurs  through investigations of complaints, compliance reviews, and enforcement letters called “resolution agreements.” The OCR ultimately has the authority to withhold federal funding from colleges and universities that fail to comply with Title IX. The OCR also has the authority to publish school names on noncompliance lists. The OCR’s enforcement mechanisms, combined with a belief in the overall mission of extinguishing sexual assault, require schools to adjudicate sexual assault on campus. Consequently, schools are now investigating, adjudicating, and resolving claims that traditionally were the exclusive responsibility of our criminal justice system. The problem is that rape is one of the most complex crimes to investigate and litigate. Even if Title IX is separate and distinct from criminal law, the same tasks exist in both: complicated evidence collection, including DNA evidence; interviewing witnesses; determining participants’ state of mind at the time of the alleged act; determining blood alcohol concentration; ensuring due process; forming an independent conclusion based on the evidence; and so on. Educational institutions are manned by educators, not investigators, and therefore schools have faced significant challenges since 2011 in implementing Title IX. They have been exposed to civil liability as they learn to properly investigate and adjudicate sexual assault while trying to comply with DoE guidance. (This is not to deny that there are civil cases involving claims of rape. However, those, too, have been handled by the courts, in which there are significant due process protections.) Victims and accused students alike have identified the deficiencies in the DoE’s Title IX guidance and institutional implementation of that guidance, and have initiated lawsuits over alleged institutional mishandling of sexual assault. Students have brought claims alleging gender bias within investigations and adjudications, due process claims challenging processes as fundamentally unfair or lacking common protections such as the right to confront and examine witnesses, negligence claims alleging deficient investigations, infliction of emotional distress claims, and contract claims in which students allege breaches of internal policies and handbooks. Schools have been and will remain strongly committed to creating safe academic environments free of violence and harassment even in the absence of Title IX. Violence, and perhaps especially sexual violence, is antithetical to the purpose and mission of institutions of higher learning. However, future lawsuits by students against universities over Title IX procedures seem inevitable. It remains to be seen whether the new administration will have a different interpretation of Title IX or whether the courts will rein in Title IX’s expansion by holding that the DoE has done more than just interpret Title IX and has instead exceeded its authority and created new law. No matter what happens to Title IX, it is clear that universities are currently exposed to civil liability through the expansion of their responsibilities under Title IX. Schools need to find ways to pursue safety and implement Title IX’s mandates while protecting themselves from civil lawsuits. One way to do this is to rely on outside counsel with experience in investigating claims of sexual assault, sexual harassment, and sex discrimination and handling such litigation. References 20 U.S.C. 1682 et seq. (1972). Ali, Russlynn. April 4, 2011. “Dear Colleague Letter.” Washington, DC: U.S. Department of Education, Office for Civil Rights. White House Task Force to Protect Students from Sexual Assault. 2014. “Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault.” Washington, DC: U.S. Department of Justice. Emily Haigh is an associate at the law firm Littler Mendelson P.C. in New York City and is a member of the firm’s Higher Education Practice Group. Previously, Haigh investigated and prosecuted crimes of sexual violence in the U.S. Army.