Can Lawyers SaVE
Title IX?

New Rules for Campus Sexual Assault Hearings

Published in Higher Education (Wednesday, April 15, 2015 11:21 am)

There is a “complainant” and a “respondent.” There are investigative reports, forensic evidence, and exchanges of documents between the parties. There is a hearing with the opportunity to cross-examine witnesses and deliver opening and closing statements. Finally, there is a process for appeal. Sounds like a usual day at the Lancaster County Courthouse, right? No. This is a description of the adversarial process used by colleges and universities around the country to address charges of sexual assault on their campuses.

A college’s obligation to provide what is essentially a legal proceeding to address claims of student-on-student sexual misconduct stems from several federal laws. Title IX of the Education Amendments Act of 1972 (“Title IX”) obligates post-secondary institutions to prevent and address sexual violence as part of the statute’s guarantee of gender equality in higher education. Another federal law, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990 (“Clery”), requires colleges to disclose information to the public about crimes, including sexual violence, that take place on their campuses. However, finding that, “Less than 5 percent of rapes or attempted rapes of female students at institutions of higher education are reported to campus authorities or law enforcement,” Congress amended Clery in 2013 by passing the Campus Sexual Violence Elimination Act, (“SaVE”).1

SaVE seeks to increase public awareness of campus sexual violence through more stringent college reporting and training requirements. The law also imposes new procedural safeguards for Title IX hearings and requires colleges to provide additional services for victims. Among them: colleges must now allow both the accuser (or “complainant”) and the accused (“respondent”) to have “equal opportunities to have others present, including an advisor of their choice.”

In a final rule issued on October 20, 2014,2 the U.S. Department of Education’s Office of Civil Rights (“OCR”), which enforces these laws, interpreted the term “advisor” expressly to include an attorney. Until the SaVE Act, most institutions permitted only members of the college community (i.e., faculty members, administrators and fellow students) to serve as “advisors” during a Title IX hearing. While lawyers could work behind the scenes, they were not permitted to be present at the disciplinary hearing. OCR has now made it clear that attorneys are permitted to serve as advisors in these proceedings. In addition, the SaVE Act expressly requires institutions to provide their students with “contact information for legal assistance available to victims both on-campus and in the local community.”3 OCR interprets this language to require colleges to provide “written notification” to students about available legal services for victims.4

Will lawyers make a difference in Title IX hearings? As someone who has represented clients in a variety of adversarial proceedings, worked on a college campus, and taught undergraduate courses dealing with gender equality, I believe it will not only make a difference, but could well be a game-changer on this issue. Engaging an attorney after an incident of sexual violence occurs can help ensure that the facts surrounding the incident are properly – and consistently – documented and investigated. Providing counsel for the complainant in campus sexual assault proceedings will also level the playing field – typically, only the respondent has retained counsel, which can further intimidate victims and discourage reporting in the first place. Finally, attorneys can ensure that the colleges are complying with the new regulations as well as their own policies, and hold them accountable if they do not.

Even before the hearing process is initiated, lawyers can help secure “interim accommodations” to protect their clients from “hostile environments” that may further threaten their safety or well-being. For example, if a student is in the same class as her accuser, the student may seek a change in her schedule as an accommodation. This is not uncommon: as is true of sexual violence in other parts of society, campus rapes in most cases involve students who know each other.5 Lawyers may also assist their clients in securing “no-contact orders,” which can be enforced by the college, or “protection-from-abuse orders,” issued by local courts.

Not all lawyers, of course, will be equipped to handle such cases. At a minimum, attorneys should have some experience representing survivors of sexual assault, as well as some familiarity with the Title IX hearing process. More problematic is how campus survivors will find qualified and affordable counsel.

Thanks to the Network for Victim Recovery of D.C., students attending one of the eight colleges and universities in Washington, D.C. have the opportunity to engage an attorney free of charge after an assault has occurred.6 These services are provided by NVRDC staff lawyers as well as private practitioners in D.C. – many of whom are partners or associates at leading national law firms. Indeed, NVRDC is one of only two organizations in the U.S. – the other is the Victim Rights Law Center in Boston7– that systematically connects survivors of sexual assault to qualified legal counsel. Both organizations offer training for lawyers willing to take these cases on a pro bono or reduced fee basis. Perhaps a similar model that connects campus survivors to qualified counsel could be explored for the many students attending colleges and universities in Lancaster County.

Having lawyers participate in Title IX hearings won’t solve the problem of sexual assault on college campuses. And there is a larger societal question of whether colleges should be involved at all in what is essentially the investigation and prosecution of a crime. But as long as students are subjected to proceedings where they are known as the “complainant” and the “respondent,” they should not only have the right to legal counsel, they should have access to a qualified and affordable one.

  1. The SaVE Act is a set of amendments included in the Violence Against Women Reauthorization Act of 2013, which President Obama signed into law on March 7, 2013. For a list of members of the U.S. House of Representatives voting for and against the bill, see http://clerk.house.gov/evs/2013/roll055.xml. Both of Pennsylvania’s U.S. senators voted for the bill.
  2. 79 Federal Register pp. 62752-62789 (Oct. 20, 2014). The regulations are effective July 1, 2015.
  3. Public Law 113-4, §485(f)(8)(B)(iv)(II).
  4. 79 Federal Register at p. 62774.
  5. According to the U.S. Department of Justice Bureau of Justice Statistics,”College-age female victims knew their offender in about 80% of rape and sexual assault victimizations, regardless of their enrollment status.” L. Langton, “Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013” (December 2014).
  6. See www.nvrdc.org.
  7. See www.victimrights.org.

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The information contained in this website is provided solely for informational purposes. It should not be construed as legal advice, is not a substitute for legal counsel, and is not intended to create an attorney-client relationship. For legal advice or answers to specific questions, please contact Ms. Baulig.

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Laurie T. Baulig
Laurie T. Baulig

Attorney at Law

With a career spanning three decades, Laurie Baulig has been a litigator for the federal government, a private practitioner, in-house counsel for two business trade associations, and a teacher at a liberal arts college.  She founded Baulig Law with the idea that, at its best, law is a service profession that should be transparent, accessible and affordable.  The firm’s focus on employment law also reflects her philosophy that both businesses and their employees benefit when the workplace is free from discrimination, unfair wage practices, and unsafe or unhealthy conditions.

Laurie began her career as an antitrust litigator for the Federal Trade Commission in Washington, D.C.  She later shifted her focus to employment law as in-house counsel for the American Trucking Associations, one of the largest business trade groups in the nation’s capital.   While at ATA, she travelled across the country explaining the requirements of new laws passed by Congress – such as the Americans with Disabilities Act, Civil Rights Act of 1991, and Family and Medical Leave Act – and regulatory proposals that would have an impact on the trucking industry.   This experience not only confirmed her passion for employment law, but also awakened her interest in teaching.   So she left D.C. for Lancaster, PA in 2008 to serve as adjunct assistant professor at Franklin & Marshall College.  From 2008-13, she taught Human Resources Management, Gender and the Law, and other courses affecting legal rights and responsibilities in the workplace.

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