With a growing number of sexual assault-related Title IX cases throughout the country, New York litigation boutique Nesenoff & Miltenberg, which has a practice representing students accused of misconduct, has its eye on geographic expansion.
In just over two years, Andrew Miltenberg’s Title IX and due process practice has gone from a few isolated cases to a practice that provides roughly a third of his firm’s annual revenue, by his estimation. Miltenberg said his team—consisting of himself, three other lawyers and a Title IX consultant—has represented students at more than 50 colleges and universities all over the country.
Their clients have faced potential sanctions at the university level for alleged sexual misconduct, or who argued that they were unfairly disciplined for such an incident. Miltenberg estimated that he spends about half his time on those cases, while two of the firm’s lawyers and the Title IX consultant dedicate all of their time to the niche practice.
The firm recently opened an office in Boston, where it has one full-time lawyer, Tara Davis. Miltenberg said he and two other attorneys in the practice spend about half their time there. In New England, they have represented several dozen clients in university disciplinary proceedings, as well as a handful of court cases arising from such proceedings, with more to come. The trains and flights to the area were adding up, Miltenberg said, and with Davis willing to move there, it made sense to open up an office.
Nesenoff & Miltenberg also may open an office in the Midwest at some point, Miltenberg said, as he spends “a considerable amount of time” in Cleveland, Chicago and Colorado. The practice is also quite active in New Orleans, he said.
Growing Practice Area
Nesenoff & Miltenberg is far from the only firm to have built a practice around higher education sexual assault cases. The area of law has grown as the stakeholders—the alleged victims, the accused, and the higher education institutions—seek answers to complicated questions about their rights. Those questions have multiplied in the wake of the U.S. Education Department’s 2011 “Dear Colleague” letter, which said sexual harassment and assault is a form of discrimination prohibited by Title IX, Miltenberg said.
Philadelphia-based Cozen O’Connor established a national practice earlier this year focused on the institutional response to sexual misconduct, bringing on a group of partners experienced in that work. The firm recently added to that practice through its acquisition of a campus safety consulting firm. Also in Philadelphia, Saul Ewing has worked with its higher education clients in such cases. The firm recently represented Penn State University in a case involving one of Miltenberg’s clients.
Boulder, Colorado, firm Hutchinson Black and Cook has also taken on multiple high-profile cases against colleges and universities around the country, including Florida State University and its star athlete, Jameis Winston.
For Miltenberg, his practice started with a student at Vassar College who was expelled for an alleged sexual assault. The college said he should not have had sex with a female student who was intoxicated, but Miltenberg argued that his client was drunk too. A federal judge acknowledged that there was a double standard in the school’s policy, but it wasn’t gender-based, so Vassar won summary judgment. While it was a loss for his client, Miltenberg said, it got more people talking about those policies.
“I think the ‘Dear Colleague’ letter was well intentioned in many ways,” said Miltenberg. “At the same time, I think it’s been terribly executed. I think that’s led to the need for this kind of practice.”
Miltenberg’s daughter is a sophomore at Muhlenberg College, he said, so he sees the issues from the perspective of both a father and a lawyer. He said he turns down about two-thirds of the accused students that come to him, when there is “something about the case that makes me think it would be hard to affect change.”
The lawyers representing all the stakeholders have a role in creating a better system, he said, where alleged victims can tell their stories safely and accused students can defend themselves.
“I don’t understand why it’s being seen as a zero-sum game where you’re for or against rape … or for or against victim’s rights,” Miltenberg said. “Hopefully, what comes out of the growth in this area is [that] you can have on campus a process that diligently investigates and handles allegations of sexual assault and sexual misconduct.”