October 03, 2019

Increased legal challenges place mounting pressure on universities' Title IX proceedings.

Universities and colleges are increasingly experiencing legal challenges to their institutions' Title IX enforcement processes, a trend that higher education law experts say is a natural reaction to proceedings that declare “winners” and “losers.”

The societal pressures from the Me Too movement and repercussions from the Obama administration’s 2011 guidance for how colleges should adjudicate sex assault cases have led to more civil complaints from both alleged victims and accused perpetrators of sexual misconduct who feel they were treated unfairly during Title IX hearing processes. Legal challenges in federal courts exploded following the guidance, which called on universities and colleges to vigorously root out campus sexual assault and harassment with a preponderance of evidence standard, leaving officials to determine if “it is more likely than not that sexual harassment or violence occurred.”

In the wake of the shifting Title IX rhetoric of the Trump administration, which rescinded the Obama-era guidance in 2017, more students are aware of Title IX and the ways it can be enforced, said Michael Dolce, a Florida-based attorney who represents victims of sex crimes. With more accused students looking to turn to the courts, there’s also been increased demand for attorneys to defend them, Dolce said.

“A lot of criminal defense lawyers are specifically advertising that they represent the accused in Title IX cases,” he said. “Pick any university in the country and go five miles from there, and you will find lawyers who advertise defending the accused. That wasn’t the case 10 years ago.”

In some cases, restorative justice works with certain students, Dolce said.

"It could be immaturity or bad cultural upbringing that leads to harassment," he said. "There’s a world of difference between that and the ability to lay hands on somebody."

RAINN’s position is that “restorative justice” options are an easy out for universities and allow perpetrators to avoid actual consequences for their actions, said Camille Cooper, vice president of public policy for RAINN, the Rape, Abuse and Incest National Network and sexual assault hotline. End Rape on Campus argues that the process can work for students who were harassed but not assaulted, Hanna said. Both organizations agree that universities should tread carefully when offering alternative resolution methods so as not to coerce victims to accept a process they are not comfortable with, or that could retraumatize them.

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