Emerging litigation regarding campus sexual assaults

Mark W. Shaughnessy and Jeffrey E. Dolan,
The Daily Record Newswire

Local colleges and universities are under an increasing amount of pressure to comply with Title IX requirements for handling sexual assault claims in order to avoid revocation of significant federal funding.

Many area schools have adopted controversial policies and procedures in an effort to ensure Title IX compliance, which have caused students accused of sexual assault to file suit against the schools.

The plaintiffs have alleged that the schools' policies and procedures are biased against the accused parties and inconsistent with fundamental notions of fairness and due process.

This is a rapidly emerging area of litigation both locally and across the country. In Massachusetts alone, two new cases have been filed in federal court since March, adding to a flurry of litigation in the state and across other jurisdictions.

Background

Any school that receives federal funding is required to comply with guidance from the Department of Education's Office for Civil Rights, or OCR, when handling claims of sexual assault. If a school is found to be non-compliant with Title IX requirements and/or OCR guidance, OCR has the authority to revoke federal funding from the school.

Indeed, last July, on the Dartmouth College campus, the assistant secretary for civil rights at the Department of Education, Catherine Lhamon, made clear that she would strip federal funding from any recipient school found to be non-compliant.

"Do not think it's an empty threat," Lhamon warned. "It's one I've made four times in the 10 months I've been in office. So it's one that's very much in use."

The number of lawsuits has increased significantly since OCR issued what is commonly known as the "Dear Colleague Letter" on April 4, 2011, which purported to provide clarification regarding the obligations of schools for compliance with Title IX.

The Dear Colleague Letter provided more specific instruction regarding procedures and requirements for investigating and evaluating claims of sexual harassment.

Perhaps most notably, the letter advised schools that in order to be compliant with Title IX, they must apply a preponderance of the evidence standard when evaluating any claim for sexual harassment or sexual violence. Any school using a higher burden of proof, such as a clear and convincing evidence standard, would be considered non-compliant and could lose federal funding.

In response to the letter, many schools and universities revised or supplemented procedures for addressing sexual harassment claims in order to ensure compliance with Title IX.

Critics of the new procedures have asserted that the threat of revocation of federal funding has caused schools to adopt procedures that are unfair and biased as against the accused party, as well as inconsistent with fundamental notions of fairness and due process.

Schools and universities are now required to conduct investigations and render findings based on a mandatory civil standard of preponderance of the evidence. Hearings are often conducted, and decisions regarding discipline are often made, by faculty members and students from the school.

Plaintiffs and other critics have asserted that the process and burden of proof are incongruous with the lifelong consequences that an accused student could potentially face if found liable by the school.

Many of the students face suspension or expulsion, which may result in the loss of educational and employment opportunities because the students often are required to disclose the disciplinary findings. Thus, the lawsuits filed against schools typically seek compensation for the deprivation of educational opportunity, lost earning capacity, defamation and emotional distress.

Lawsuits filed

Among the more notable lawsuits filed in 2015 is a claim filed by a student (identified in the pleadings as "John Doe") against the trustees of Boston College and other individuals involved in the handling of a claim against Doe.

According to his complaint, Doe was accused of sexually assaulting a female student during an event sponsored by a Boston College student organization. Doe alleges that criminal charges against him were dropped by the District Attorney's Office when DNA testing revealed no evidence that he had been the perpetrator and video evidence showed that he had not committed the assault.

The school allegedly pursued its own investigation and found that Doe had inappropriately touched the female student.

Doe's complaint alleges a number of procedural shortcomings on the part of the school, including its alleged refusal to sufficiently consider evidence that another student may have committed the alleged offense, the school's decision to proceed with disciplinary proceedings without awaiting the DNA and video evidence, and a perceived lack of evidence that Doe had committed the alleged sexual assault, based on a lack of any witness who had seen the alleged assault occur.

Doe's allegations are consistent with the themes of other plaintiffs who claim to have been aggrieved by processes that are alleged to have been biased and/or fundamentally unfair to the accused student. Some plaintiffs have even directly alleged that their treatment was the result of their schools' efforts to comply with Title IX and OCR guidance.

Where pressure continues to be exerted on schools to maintain Title IX compliance, this will continue to be an emerging area of litigation in Massachusetts and beyond.

Plaintiffs have asserted a variety of legal theories in these lawsuits. One of the most common causes of action is for breach of contract. The premise of such a claim is that the students and the school enter into an enforceable contract in the form of the student handbook or other similar document and that the procedures employed by the school violate the terms of the contract.

In many cases, plaintiffs will allege that a school has violated a specific procedural requirement that is promised in the school's handbook. Other complaints have framed the breach of contract issue as an issue of due process and/or fundamental fairness.

The complaints also typically allege that the schools' conduct in the investigation and disposition of the claims against the accused parties has violated Title IX.

Title IX bars the imposition of discipline by recipient schools "where gender is a motivating factor in the decision to discipline."

Generally, plaintiffs who challenge disciplinary proceedings on grounds of gender bias under Title IX fall within four categories: 1) plaintiffs who claim an erroneous outcome; 2) plaintiffs who claim selective enforcement; 3) plaintiffs who allege deliberate indifference; and 4) plaintiffs who allege an "archaic assumptions" standard. Under all such theories, the alleged wrongful conduct must be linked to a gender bias.

Some complaints also have asserted a direct negligence claim on the grounds that a school voluntarily assumes a duty to perform disciplinary proceedings with due care by agreeing to undertake responsibility for Title IX investigations. This issue has been raised in recent pleadings and likely will be litigated in the near future.

Another key issue that likely will be litigated will be the extent to which students may invoke constitutional violations of due process.

A student's interest in pursuing an education is included within the 14th Amendment's protection of liberty and property. Federal courts have held that students facing expulsion or suspension from public educational institutions are entitled to due process. However, courts typically find that those attending private universities and college are not entitled to the due process rights provided at public universities.

Even under that standard, however, a private university may not arbitrarily or capriciously dismiss a student.

One issue that has not yet been litigated is whether the guidance of OCR, in combination with the threat of revocation of federal funding, could render the actions of schools receiving federal funding "state action" for purposes of a constitutional due process claim under a compulsion/nexus theory.

Conclusion

This area of law is rapidly developing and expanding as more and more plaintiffs file suit against schools and universities. While this column identifies the primary legal issues that likely will be litigated in coming years, we also have also written a full-length article, which addresses specific cases in greater detail and analyzes the case law pertaining to the legal theories that have been raised in those lawsuits. To read our full-length article, see "Emerging Litigation Regarding Fundamental Fairness of Investigation and Resolution of Sexual Assault Claims by Colleges and Universities" at http://www.bsctrialattorneys.com/resources-publications.htm.

The cases that are currently pending nationwide, including the two cases recently filed in Massachusetts federal court, likely will establish further precedent regarding the issues discussed here. Such precedent will define the scope of remedies available to aggrieved students as well as the potential liabilities of educational institutions that continue to grapple with Title IX compliance.

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Mark W. Shaughnessy and Jeffrey E. Dolan practice at Boyle, Shaughnessy & Campo in Boston.

Published: Tue, Jun 16, 2015

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