Not Complying with Title IX Could Cost You
While the U.S. Department of Education has yet to levy a fine for non-compliance with its Title IX sexual violence guidance, the average award in sexual assault cases that go to a jury is about $200,000.
CORRECTION, November 25, 2019: According to S. Daniel Carter of Safety Advisors for Educational Campuses, “While OCR can withhold funding there is no ‘fine’ which under federal law would be a specified civil penalty like there is under the Higher Education Act and thus the Clery Act.
“The lack of an ability to fine became a significant issue in succeeding years leading to several proposals in Congress to add them. These proposals were eventually stopped and or stalled over concerns that adding fines might lead courts to eliminate the ‘implied’ private cause of action.”
Although the Department of Education Office for Civil Rights (OCR) could technically levy a fine or restrict funding (Title IV) for a campus or district that doesn’t comply with its Title IX sexual violence guidance, so far, it has yet to do so.
“My understanding is that OCR will at first seek voluntary compliance,” says Jeff Nolan who is a partner with Dinse, Knapp, McAndrew. “They will request an institution change its policies and ways of doing things; maybe request a particular remedial action for a complainant.”
Where K-12 districts and institutions of higher education are more vulnerable, however, is in the courts. Brett Sokolow, who is the managing partner of the National Center for Higher Education Risk Management (NCHERM) and executive director of the Association of Title IX Administrators (ATIXA), says his organization has seen an increase in the willingness of both victims and accused to bring claims against campuses.
“The increase puts pressure on the whole system to bring these matters to conclusion more quickly and sometimes with larger settlements,” he says. Sokolow believes about 60% of the lawsuits by victims and 40% of the OCR complaints are successful. “And by successful, I mean resolved in a jury verdict or favorable decision by the court. There are certainly plenty of cases that settle that you never hear anything about.”
NCHERM estimates the average award from sexual assault cases that go to a jury is about $200,000.
Respondents/alleged perpetrators are also suing campuses as well as their victims, albeit, not very successfully. The awards are quite low, even in cases where it was obvious that the respondent was wrongfully expelled from an institution.
“[The lawsuits] are just designed to intimidate,” Sokolow claims. “They’re successful in the sense that they do intimidate a lot of victims who drop their cases, but they don’t win in court very often. If they do, they don’t win a lot of money.”
A noteworthy trend involves wrongful death cases.
“There are a number of cases where female students have committed suicide after a sexual assault that was mishandled by a college, and the colleges are now being sued not only for negligence but specifically for causing a suicide,” he adds.
“More and more the attorneys who are litigating these cases are cleverly finding new and different ways to hold universities accountable. I see Title IX as a pebble that we threw into the pond back in 1972, and the concentric rings have been expanding outward ever since. When was the last time we saw this many colleges change this much on one subject all at once? The ‘Dear Colleague’ letter rocked our world.”
Common Campus Title IX Policies That Might Require Revision
Nolan recommends campuses not jettison their entire disciplinary system in response to the Department of Education Office for Civil Rights (OCR) “Dear Colleague” letter. Instead, they should add provisions that comply with the guidance and list the things that are specifically required. Otherwise, campuses should continue using what they already have, as long as they are working well.
- Evidence should be shared with both the complainant and respondent before a hearing. “This is something that may have been done in practice at a lot of institutions, but their policies probably didn’t say they were going to do it,” says Nolan.
- OCR recommends campuses use the “preponderance of evidence” standard (“more likely than not” standard). Some campuses are still using the “clear and convincing” standard (“highly probable or reasonably certain” standard). “Those schools are having to consider whether they want to stick with that standard because they feel it’s most appropriate for their contractual or constitutional obligations or whether they want to go with the OCR standard,” Nolan believes.
- Stop using mediation in cases of sexual violence, even on a voluntary basis. Mediation is still appropriate for sexual harassment allegations.
Read More Articles Like This… With A FREE Subscription
Campus Safety magazine is another great resource for public safety, security and emergency management professionals. It covers all aspects of campus safety, including access control, video surveillance, mass notification and security staff practices. Whether you work in K-12, higher ed, a hospital or corporation, Campus Safety magazine is here to help you do your job better!