Now, Title IX cases represent “the most expensive lawsuits in history” against colleges, said Brett Sokolow, managing partner of the National Center for Higher Education Risk Management.
A closed-door encounter between two college acquaintances. Both have been drinking. One says she was raped; the other insists it was consensual. There are no other witnesses.
It’s a common scenario in college sexual assault cases, and a potential nightmare to resolve. But under the 40-year-old federal gender equity law Title IX — and guidance handed down last year by the Obama administration on how to apply it — colleges can’t just turn such cases over to criminal prosecutors, who often won’t touch them anyway. Instead, they must investigate, and in campus proceedings do their best to balance the accused’s due process rights with the civil right of the victim to a safe education.
Lately, though, the legal ramifications of such cases are spilling off campus, with schools caught in the middle. Colleges that do too little about sexual assault could lose federal funds. The Department of Education’s Office of Civil Rights is currently investigating a dozen colleges and universities over their response to sexual violence (documents obtained under the Freedom of Information Act show schools that have recently agreed to take steps to resolve OCR complaints over Title IX policies include universities such as Notre Dame, Northwestern and George Washington).
Meanwhile, judgments in Title IX lawsuits against colleges, usually brought by accusers, are soaring. Compounding the fear: In some such cases, college administrators may be found personally liable.