Title IX Changes Could Add Exposure for Universities, Discourage Victims from Coming Forward

By Bret Murray

Higher Ed and the Law …

Title IX, the federal civil rights law passed in 1972, was a landmark piece of legislation that prohibited sexual discrimination in educational institutions across America. It reads, “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.”

Enforced by the U.S. Department of Education’s Office of Civil Rights (OCR), Title IX has helped level the playing field by ensuring that students of all genders receive access to scholarships, funding, sports, academic coursework, and protection from sexual harassment, among other things.

But three recent lawsuits in which male students (John Does) who were accused of and disciplined for sexual misconduct argue that they were denied due process by their universities because of unfair Title IX policies. The men filing suits are from Michigan State, the University of California and California State.  While the circumstances of the cases are different, the John Does essentially argue that Title IX policies were administered unfairly at their universities. The accused male students say they were denied their due-process rights, they weren’t allowed to cross-examine their accusers, and they were not given a live hearing before a neutral fact-finder.

Significantly, the plaintiffs in these cases are seeking to have their cases certified as class-action suits.

If any of these cases receive class-action status and prevail, it could reverse the outcomes of numerous sexual violence cases that were adjudicated on college campuses over the years. The effects could be far-reaching and present a host of problems for universities that have sanctioned students after conducting Title IX investigations of sexual misconduct accusations. This could include any investigation by a college or university of sexual assault, harassment, exploitation, indecent exposure, relationship violence and stalking.

What is the impact of a class-action certification for colleges and universities not named in the suits?

First of all, disciplinary sanctions on students who were previously found guilty on sexual violence charges at these universities could be overturned. And that could open the doors to more lawsuits at more colleges and universities within their federal circuit court jurisdictions. Any John or Jane Doe who was expelled from a school after a sexual misconduct adjudication hearing would only need to prove that they were denied their due-process rights by not having the opportunity to cross-examine their accuser or other witnesses before a neutral fact-finder to make a prima facie case. Universities could face mounting legal defense fees, potential settlement payouts, as well as other costs like hiring outside public relations counsel.

Secondly, class-action status could force universities to change their processes for handling sexual violence cases going forward. Affected schools would have to allow cross-examining opportunities in front of neutral fact-finders and wouldn’t be able to use school adjudication officers as judges. For institutions not utilizing mediators or other third-parties as neutral fact-finders during their Title IX processes, additional funds will need to be budgeted in order to pay for these new expenses.

Lastly, should the cases be certified and rule in favor of the John Does, the courts will base their rationale on due-process fairness to all parties. But such a ruling could have the unintended consequence of discouraging victims from coming forward if they must be cross-examined by a representative of the alleged assailant during the hearing process. Affected colleges and universities will clearly need to incorporate the courts’ holdings into their Title IX policies and processes, but they need to do so in ways that will not discourage victims from reporting acts of sexual violence.

These cases could have implications when it comes to the exposure that colleges and universities face in their Title IX policies and investigations.

How can universities mitigate their exposure if the Title IX cases are certified as class-action suits? Educator Legal Liability (ELL), Directors & Officers Liability and Commercial General Liability insurance policies can offer a layer of protection for both the higher education institutions and their employees. In addition to covering legal defense costs, ELL coverage can assist with fines and potential settlements in these matters as well.

Schools might have an adequate existing insurance program, or they might have to amend their policies and program to ensure coverage for such risk exposures. As these and other similar cases play out, now is a good time for colleges and universities to proactively check in with their risk advisors and brokers.

Bret Murray is higher education practice leader at Boston-based Risk Strategies.

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