Title IX: More Courts Side in Favor of Accused in Federal Lawsuits

As a law firm with an active practice representing students accused of sexual misconduct on college campuses, Koffel Brininger Nesbitt has covered many issues related to Title IX cases and high-profile happenings at institutions of higher learning. These disciplinary proceedings, investigations, and out-of-court hearings before a panel of administrators, which are handled independently by schools, have become a major focus in the #MeToo era.

While Title IX cases involving sexual assault, misconduct, harassment, and stalking have become a priority at colleges and schools which receive federal funding – something attributed to a powerful “Dear Colleague” letter urging officials to take more action on sexual assault complaints – a new analysis is revealing that many students who are accused of sexual misconduct and disciplined through campus proceedings end up filing federal lawsuits against their schools. What’s more, those students are winning cases more often than the schools.

Federal Filings Reveal Reasons for Courts’ Decisions

An analysis of federal court filings recently profiled by the Detroit Free Press is showing what many believe to be major concerns with independent Title IX investigations and disciplinary hearings: due process rights and how these proceedings play out.

Due process is a legal requirement for governing bodies to respect an individual’s rights, and it’s a foundational concept of law dating back to the Magna Carta. With the Fifth and Fourteenth Amendments of the U.S. Constitution both containing a due process clause, the legal requirement in America concerns the appropriate administration of justice, and the rights of individuals to be protected against arbitrary denials of life, liberty, or property.

Due process rights are most evident in criminal cases, where defendants’ freedoms, rights, and futures (as well as money or personal assets) are on the line. Given the severity of punishment, due process ensures defendants have the ability to defend themselves, and that decisions are handed down judges and juries through the appropriate administration of justice.

According to federal lawsuits being filed by students who’ve been accused in Title IX proceedings, those same due process rights are not being upheld by universities. Most universities facing these suits are losing cases rather than winning them, and most presiding judges are ruling against schools when they file motions to dismiss.

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Due Process Problems

The filings indicate some judges are beginning to embrace the idea that there may be due process problems in Title IX proceedings. However, not all courts decide in favor of the accused, and no suit has yet resulted in a large jury case.

According to the analysis, conducted by Brooklyn College Professor KC Johnson, the record of cases and outcomes is significant, is helping reveal some of those due process problems, and is setting the stage for potentially big decisions and changes:

• Lawsuits, Losses & Settlements – Some of the nation’s largest universities have lost and settled federal lawsuits filed by students accused of and / or disciplined for sexual assault; from Ohio State, Penn State, and USC to Hofstra, Claremont McKenna, Northwestern, Yale, and Dartmouth. Of the nearly 320 federal cases since 2011 where action was taken, Universities have been on the losing side of 137 decisions (usually motions to dismiss), and have won 119 times. Confidential settlements resolved a little more than 60 cases. The numbers still don’t factor in the roughly two new suits filed each week, or the many filed in state courts.
• Lack of Cross-Examination – Court decisions suggest judges agree there’s a need for each side to have opportunities to question the other, which isn’t currently how Title IX proceedings are structured. The Education Department, among other policy changes, is considering new regulations for live hearings that include cross-examination.
• Investigation – In the wake of the “Dear Colleague” letter urging schools to step up their game when it comes to handling sexual assault allegations, schools have received an increasing number of complaints from students. The problem they say, stems from colleges changing their investigation methodology to a single investigator (usually a university employee or outside expert) who interviews the accusers, accused, and any witnesses, and submits a subsequent report of their findings.
• Discrimination – Many lawsuits have argued schools’ investigation methods are giving rise to proceedings which unfairly discriminate against the accused, and particularly against male students. Complaints have alleged some schools treat male students accused of sexual misconduct as guilty even before evidence is gathered.
• Major Cases on the Horizon – As schools appeal some of these losing decisions, at least one federal appellate court has already ruled on the matter. With lawsuits and appeals piling up, there could be a Supreme Court case within the next several years that addresses the matter and sets precedent for future guidance.

Coupled with considerations about the impact these cases have on survivors, these types of concerns present a major crossroads for colleges which must adjudicate Title IX cases. Though it’s likely the country’s highest court will make this into a landmark case, there still exists – now, until that time, and well into the future – the need for any individual who stands accused to protect their rights when navigating investigations and hearings.

Attorney Brad Koffel and our legal team at Koffel Brininger Nesbitt have extensive experience representing clients in Title IX cases – including students, coaches, and employees. If you have questions about a potential case anywhere in Ohio, contact us online.