Steven Cash ()
Two years ago, the University of Connecticut reached a $1.3 million settlement when seven students claimed the school failed to properly handle their sexual assault complaints. Meanwhile, Wesleyan University is currently involved in a lawsuit brought by a tenured professor who claims an administrator sexually harassed her and then retaliated against her when she tried to put a stop to it.
These types of cases are part of a growing trend in which students and faculty members claim that colleges and universities aren’t adequately investigating their complaints about sexual misconduct. Nationwide, such cases have steadily increased as complaints are filed faster than they can be resolved, resulting in overworked general counsels at many schools.
To help universities comply with the federal policies and ensure that investigations are being conducted properly, lawyers from Connecticut-based Day Pitney and Cohen Seglias Pallas Greenhall & Furman have come together to create a Title IX investigations team. Other Connecticut lawyers agree that it could be beneficial for universities to reach out to outside counsel to ensure that students and the school are legally protected.
Title IX was enacted in 1972 to protect people from discrimination based on gender in educational institutions that receive federal financial assistance. Though often associated with faculty employment and sports team participation, Title IX also applies to how academic institutions are handling complaints of sexual harassment and sexual violence.
Title IX investigations start with a complaint made to a school, either by a student, faculty member or staff member. It’s there that the law firms’ team would step in. “One of the nice things about this partnership is that we complement each other geographically, which means we can respond very quickly to put the right team on the ground and get them on campus and start prompting an investigation while the evidence is still fresh,” said Christopher Carusone, an attorney with Cohen Seglias in Pennsylvania.
The attorneys involved in the joint initiative have known each other for years and have continually discussed the evolution of Title IX and complaints and lawsuits filed as a result. “We saw a need,” said Steven Cash of Day Pitney, who said the team won’t reassess school policies but simply take over the time-consuming investigation process from college legal staffs.
According to the U.S. Department of Education, the number of sexual assault complaints has dramatically increased over the past five years and, with that, the time needed to investigate and resolve the complaints. The increase dates to 2011, when the education department explicitly stated that sexual harassment is a form of discrimination prohibited under Title IX.
Because federal policies require the school to investigate every complaint, the question becomes, “Are universities the ones who should be doing this investigation?” said Felice Duffy, a New Haven-based attorney who focuses on Title IX lawsuits. Duffy successfully sued UConn in 1977 when she was a freshman soccer player, claiming the school was violating the recently enacted law by not offering a varsity women’s soccer program. “Can [administrators] really be trained to assess the credibility of people [being investigated]?” she said.
Duffy said seeking outside counsel provides a university with trained investigators who are neutral in the situation, providing an extra layer of confidence for those involved.
Complaints and investigations can result in complex situations. Both the alleged victim and the alleged perpetrator could find grounds to sue their school if they feel a complaint is mishandled. Law enforcement officials may also be involved, but that does not exempt the school from reacting to alleged incidents, Cash said. If something goes wrong with an internal investigation, the university opens itself up to the possibility of a Department of Education investigation.
“The people who are handling [these complaints] tend to be understaffed and have other jobs,” said Carusone, referring to the general counsel offices of universities. “These are people who have expertise in education law; [sexual assault investigations] are not what they do. Even if they do have the skills, at any given university, the general counsel still has to do every other part of their job.”
Carusone said the lawyers on the team have spoken with a number of college officials who say they have been “inundated” by Title IX investigations. With an increase of zero-tolerance policies, all allegations are investigated. In 2011, new Title IX policies also required that schools have at least one part-time Title IX coordinator.
Cash said the law firms have reached out to universities, including those in Connecticut, to tell them of their services. He added that not getting an investigation right the first time around can be costly to universities, especially if they are later hit with a lawsuit alleging they violated Title IX. “Our collaborative practice will promptly investigate allegations and provide the results of that investigation to the academic institution. The idea is to combine the best practices from law enforcement and internal corporate investigations with experience in working within the unique setting of academia,” said Cash. The Title IX team also includes Day Pitney managing partner Stanley Twardy Jr., a former Connecticut U.S. attorney.
Two years ago, the Department of Education’s Office for Civil Rights made available a list of schools that were the subjects of investigations for their handling of complaints. The Chronicle of Higher Education analyzed that list and found there were almost 270 open investigations and only 17 percent had been resolved. In the aftermath of the UConn lawsuit and settlement, in which the school denied any wrongdoing, both the university and the General Assembly ordered measures that could result in more campus sex assault cases being brought. For instance, UConn has added a special victims unit to its campus police force. And a new state law allows victims to report sexual assaults anonymously.
Connecticut legislators also are debating a proposal that could have a significant impact on sex assault investigations on the state’s college campuses. The measure, often referred to as “Yes Means Yes,” requires sexual partners to provide “active, clear and voluntary agreement” before engaging in sexual activity. The issue was put back in the spotlight earlier this spring after the captain of Yale University’s men’s basketball team was expelled for alleged sexual misconduct.
Duffy, the New Haven lawyer, notes that critics have called such laws “so impractical as to be functionally indefensible” and require schools and students to “rigorously defend themselves—both on the facts and on the law.” If such laws are approved, she said, that would only increase the need for outside counsel and lawyers who understand the nuance of the laws better than college administrators do.
The bottom line, said Helen Harris, who chairs Day Pitney’s white-collar group, is that universities, much like private companies, could benefit from hiring outside legal teams to investigate complaints. “This provides an outside set of eyes investigating and assessing the problems and providing actions and legal advice from the investigation,” she said. •