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Education Dive
Can colleges keep up as Title IX guidance shifts and splinters?
Challenges over the sex discrimination law have had colleges constantly
reworking their policies, and more could turn to outside help.
Jeremy Bauer-Wolf
Feb. 19, 2020
Colleges and universities have faced an avalanche of sexual assault
lawsuits in recent years arguing that they botched cases in ways that
have slighted both victims of sexual violence and students accused of
it.
The increase in cases comes as the legal outlook around Title IX, the
federal law that governs sex discrimination on campuses, grows more
complex. U.S. Secretary of Education Betsy DeVos has moved to replace
guidance from the Obama administration that was credited with providing
sexual assault survivors new protections, though critics claimed it
flouted constitutional due process.
DeVos' proposal on Title IX — a draft regulation that is expected to be
finalized soon — has dominated news headlines and debate among
activists. And it has coincided with significant decisions in Title IX
court cases nationwide that stand to change how institutions report and
investigate sexual violence.
But the shifting landscape can also breed confusion. The rules colleges
must follow vary based on their location. Amid the steady stream of
lawsuits and the pending regulations, higher education law experts say
colleges will likely revise their policies and increasingly turn to
outside consultants for help.
As institutions of all sizes attempt to figure out whether and how
their existing policies might put them at risk in a new and
ever-changing legal and regulatory environment, more consultants could
be drawn into the market. Smaller, less-resourced colleges and systems,
in particular, tend to rely on these groups or individuals.
"Each (court) circuit is creating its own cottage industry, whether
they realize it or not," said Peter Lake, director of Stetson
University's Center for Excellence in Higher Education Law and Policy.
A claim of 'pre-assault'
A decision last month from the U.S. Court of Appeals for the 9th
Circuit highlights the potential for uncertainty among higher ed
administrators over how to address sexual assault on campus. The
circuit encompasses West Coast states, as well as Alaska and Hawaii.
The opinion stems from a 2015 lawsuit brought by three former
University of California, Berkeley students who said they were sexually
assaulted as undergraduates. The trio sued the UC board of regents,
alleging administrators bungled their cases.
After a lower court threw out the women's lawsuit, they appealed one of
their arguments successfully: that UC may have violated Title IX by
maintaining "a general policy of deliberate indifference to reports of
sexual misconduct," which created a "heightened risk" of students being
subjected to sexual violence.
The theory is known as a pre-assault claim, meaning an institution can
be held liable for its Title IX policies even before an episode of
sexual violence occurs.
As a legal argument, this is not novel.
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