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Education Dive
Title IX lawsuits have skyrocketed in recent years, analysis shows
Jeremy Bauer-Wolf
Jan. 6, 2020
Dive Brief:
The number of students who have sued colleges and universities for
potentially botching sexual violence cases has exploded in recent
years, according to a new analysis.
The report, published recently in the New York University Journal of
Legislation and Public Policy, shows that federal and state courts have
sided with institutions across the U.S. a little less than half the
time in cases that yielded "substantive decisions."
The legal landscape around Title IX may be shifting more as the U.S.
Department of Education prepares to release its regulations around the
federal sex discrimination law.
Dive Insight:
For the last several years, backlash has intensified over guidance the
Obama-era Education Department released in 2011 dictating how colleges
and universities should adjudicate sexual assault and harassment cases.
Critics of the rules claimed they were too slanted against students
accused of sexual violence, depriving them of constitutional due
process rights. They also argued administrators were pressured to find
accused students responsible for sexual misconduct under the threat
that not acting to mitigate sexual violence would lead to the federal
government pulling institutions' funding.
Education Secretary Betsy DeVos revoked the Obama-era guidance in 2017,
eventually replacing it with draft regulations that would carry the
force of law and would provide more protections for accused students.
The regulations also potentially lessen the number of cases colleges
would need to investigate and force officials in campus Title IX
hearings to allow cross-examination between the parties.
While the regulations will provide uniform expectations on Title IX for
all colleges and universities that accept federal funding, court
actions have significantly affected how administrators handle sexual
assault cases, said Samantha Harris, a co-author of the report and vice
president for procedural advocacy at the Foundation for Individual
Rights in Education (FIRE), a civil liberties watchdog in higher ed.
A court's rulings only apply to colleges located in its jurisdiction,
though. For example: The U.S. Court of Appeals for the 6th Circuit
notably decided in 2018 that cross-examination should be required in
adjudicating sexual assault cases. But only the collection of
Midwestern and Southern states that encompasses the 6th Circuit would
be bound to the opinion. Other court systems have been split on the
matter of cross-examination.
Based on the analysis by Harris and KC Johnson, a history professor at
Brooklyn College who tracks Title IX litigation, about 298 lawsuits
have yielded "substantive decisions" as of mid-August 2019. Of those
decisions, courts have sided with colleges in 134 cases and ruled in
favor of plaintiffs 151 times. Decisions in 11 cases were either
neutral or mixed, and two rulings were sealed and not made public,
according to the report.
Johnson and Harris are largely setting the bar for what counts as a
substantive decision, and it's worth noting that FIRE and Johnson have
been publicly critical of the Obama rules and the way colleges
adjudicate Title IX cases.
The report also notes how much more frequently students and others are
pursuing Title IX lawsuits. In the 21 months following the release of
Obama's 2011 guidance, which came in the form of a Dear Colleague
letter, only seven federal lawsuits were filed. In 2013, seven more
complaints were filed.
But in 2014, the number of lawsuits filed climbed to 25, with 45 more
coming in 2015; 47 in 2016; 78 in 2017 and another 78 in 2018.
When students file these lawsuits, they are usually alleging
institutions have violated one or more of three areas: due process
rights under the 14th Amendment, breaches of contract with a student
(such as officials not following codes of conduct) or infringement of
Title IX in that administrators were biased when adjudicating a case
based on sex.
The judiciary has needed to intervene more because colleges are not
properly equipped to address these cases, Harris told Education Dive in
an interview. They often fall too far outside academe's area of
expertise, she said, adding that college administrators are much more
prepared to handle plagiarism, for instance.
But clarity for colleges may be coming soon. DeVos' regulations are nearing their end stages.
The Office of Management and Budget has scheduled meetings with various
groups and individuals to discuss the regulations through Feb. 11,
meaning they will likely not be released in their final form before the
end of February.
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