For more than a decade, Brett Sokolow had tried to tell colleges that they had an obligation under Title IX to address sexual misconduct, but few listened. In the wake of the Education Department’s 2011 “Dear Colleague” letter, that all changed, and Mr. Sokolow’s consultancy took off.U. of the Pacific
The story of “Jackie” sent shock waves through the University of Virginia in November 2014. After the anonymous student’s account of being gang-raped at a fraternity house was featured in an attention-grabbing Rolling Stone article that month, the university found itself in an uncomfortable spotlight.
Or subscribe now to read with unlimited access for less than $10/month.
Don’t have an account? Sign up now.
A free account provides you access to a limited number of free articles each month, plus newsletters, job postings, salary data, and exclusive store discounts.
If you need assistance, please contact us at 202-466-1032 or help@chronicle.com.
For more than a decade, Brett Sokolow had tried to tell colleges that they had an obligation under Title IX to address sexual misconduct, but few listened. In the wake of the Education Department’s 2011 “Dear Colleague” letter, that all changed, and Mr. Sokolow’s consultancy took off.U. of the Pacific
The story of “Jackie” sent shock waves through the University of Virginia in November 2014. After the anonymous student’s account of being gang-raped at a fraternity house was featured in an attention-grabbing Rolling Stone article that month, the university found itself in an uncomfortable spotlight.
When Jackie told UVa officials what had happened to her, the article claimed, they had done little more than present her with options for reporting it. Now, the university had to respond.
By the time Jackie’s story fell apart the next month — Rolling Stone eventually retracted the article — UVa leaders had already made numerous public promises about reforming how they deal with sexual assault. And officials had paid outsiders handsomely for help with that work.
Three lawyers from the D.C.-based firm O’Melveny & Myers were paid $500,000, plus expenses and fees, to review how administrators had handled Jackie’s case. The university hired two more lawyers from the Philadelphia-based law firm Pepper Hamilton, at rates of $660 and $550 an hour, to help revise campus policies in the wake of the article and to advise on the university’s response to a continuing federal investigation. That investigation was examining whether UVa’s handling of sexual-assault cases had violated Title IX, the gender-equity law.
ADVERTISEMENT
The university has retained Pepper Hamilton for that work and “related services” for the past two years, said Anthony de Bruyn, a UVa spokesman, in an email to The Chronicle.
A Menu of Title IX Services
Many colleges have looked to outside consultants for help with Title IX compliance and sexual-assault prevention over the past six years. Here are some of the services they often pay for:
CAMPUS VISITS: The Ncherm Group will hold workshops on your campus so that all employees with Title IX duties can get the skinny at once. The service starts at $6,500 per day.
TITLE IX TRAINING: One of the most popular courses for Title IX novices is offered by the Association of Title IX Administrators. Attending the four-day course costs $2,699 per person, plus travel expenses; the two-day version is $1,399.
INVESTIGATIONS: Some colleges choose to outsource their investigations of campus sexual-assault cases. The Ncherm Group has 16 investigators on its staff, and their rates start at about $350 an hour.
INVESTIGATOR TRAINING: Want to be trained to do investigations yourself? T9 Mastered, a firm founded in 2015 to train Title IX investigators, is holding a session in San Diego next week. The cost is $2,150 per person.
—Sarah Brown
Jackie’s accusation was an extreme example. But in recent years, hundreds of colleges have found themselves in the cross hairs of new expectations about how they should respond to sexual assault. The bar was raised by a now-famous “Dear Colleague” letter sent by the Department of Education’s Office for Civil Rights in 2011. Among other things, the letter spelled out for colleges their obligation under Title IX to respond promptly and equitably to sexual-misconduct reports.
No institution was fully prepared for such a sea change in what the federal government expected colleges to do about sexual assault. That created a lucrative opportunity for legal consultants and vendors. And dozens responded, assuring that they could help colleges navigate federal scrutiny and fight lawsuits and bad press.
Campuses typically don’t pay for just one service at a time. They might bring in one set of consultants that costs hundreds of dollars an hour to field requests from the Office for Civil Rights. Then they might turn to other consultants for on-campus Title IX workshops, which can cost thousands of dollars a day. And they might send campus Title IX staff members to training sessions that usually cost more than $1,000 per person.
ADVERTISEMENT
The experts have been criticized as being overpriced and ineffective, or as focusing on Title IX issues because the work pays well, not out of genuine concern for students’ well-being.
Many college officials, on the other hand, say they simply aren’t equipped to handle the broad scope of Title IX compliance without external assistance. In some situations — when policies and procedures need to be reviewed, for instance, or a thorny rape investigation needs to be conducted — an impartial perspective is critical, officials say.
But the cottage industry that has cropped up to help colleges find their way through enhanced scrutiny faces an uncertain future. After all, Title IX enforcement was ramped up by the Obama administration, which is no longer in charge.
Most observers say it’s unlikely that colleges will stop focusing on sexual-violence prevention and response. If President Trump’s Education Department takes a different approach to Title IX, however, colleges may have less incentive to pay for all of that outside help.
Ahead of the Curve
Peter F. Lake clearly remembers “the day I became a Title IX expert,” he said.
ADVERTISEMENT
About five years ago, a reporter called Mr. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, for a quote. The reporter asked, Are you an expert on Title IX? “I said, OK, sure,” Mr. Lake recalled. And that was pretty much that — though Mr. Lake knew he would have to earn his new title by educating himself and writing about the subject regularly.
Those efforts are paying off, literally and figuratively. In addition to his work as a tenured professor, Mr. Lake now develops the content for the Title IX Compliance Institute, a training course. He also works with campuses as a Title IX consultant. He said he handles some of that work pro bono.
Back in 2011, few people knew what it meant to be a Title IX expert in the context of sexual assault. Consultants were often learning alongside college officials as the civil-rights office completed investigations and released guidance, said Karen M. Ibach, a partner with the Philadelphia-based law firm Montgomery McCracken.
“We did a lot of work looking at resolution agreements” that the office had made with individual colleges “to determine what OCR considered to be best practices,” Ms. Ibach said.
Brett A. Sokolow was among a handful of legal experts out in front of Title IX issues before the 2011 “Dear Colleague” letter. He founded the National Center for Higher Education Risk Management, now the Ncherm Group, in 2000, and since then has built a high-profile career advising colleges on how to handle the bevy of risky situations that crop up on campuses.
ADVERTISEMENT
For more than a decade, Mr. Sokolow said, he tried to tell colleges that they had an obligation under Title IX to address sexual misconduct. But few institutions would listen. Mr. Sokolow said they thought he was just trying to scare them to promote his business.
After the “Dear Colleague” letter came out, however, Mr. Sokolow’s phone started ringing.
Ncherm had a small staff at the time and couldn’t handle all of the colleges’ demands, Mr. Sokolow said. So he and his partners decided to focus on the prevention and education aspects of Title IX and sexual-violence issues. When campus clients have asked for help with federal investigations, Mr. Sokolow has referred some of them to Gina Maisto Smith and Leslie M. Gomez of Pepper Hamilton, who were similarly ahead of the curve on Title IX.
Ms. Smith and Ms. Gomez have become the go-to crisis managers for colleges embroiled in sexual-assault scandals — perhaps an investigation, a lawsuit, public outcry about a particular case, or all of the above. In addition to advising college officials as they work with the Office for Civil Rights, the lawyers have spent months on individual campuses helping to revise sexual-misconduct policies, as they did at the University of North Carolina at Chapel Hill, or conducting sweeping reviews of institutional responses to sexual assault, as they did at Baylor University.
But most of their work isn’t crisis management, said Ms. Smith, who has worked on sexual-violence issues for three decades. “The majority of our campuses bring us in to conduct proactive reviews,” she said.
ADVERTISEMENT
Mr. Sokolow and Ms. Smith have become two of the most prominent voices on Title IX — and the most heavily scrutinized. Faculty members at Occidental College spoke out against Pepper Hamilton’s investigation of the institution’s sexual-assault policies in 2014. The professors said Ms. Smith and Ms. Gomez had spent 18 months producing a one-sided report and never met with the student rape victims who had jointly filed a federal Title IX complaint against the college.
Another critic described Mr. Sokolow and his Ncherm partners as “Title IX profiteers.” Sine Anahita, coordinator of the women’s- and gender-studies program at the University of Alaska at Fairbanks, wrote in a 2014 blog post that most of the 61 colleges then under federal investigation for possible Title IX violations were Ncherm clients.
That fact, she wrote, suggested that campus officials were continuing to throw money at a firm that had already failed at Title IX compliance. (Mr. Sokolow said none of Ncherm’s 50 long-term campus clients at the time had been put under Title IX investigation for work or cases that the firm had consulted on.)
Many campus officials defend the consultants. Christi Hurt, assistant vice president and chief of staff for student affairs at Chapel Hill, said in 2014 that Ms. Smith and Ms. Gomez had been essential in helping to reform the university’s approach to sexual-assault cases.
“They gave us a bird’s-eye view of what the law required, balanced with our needs as an individual university,” Ms. Hurt told BuzzFeed News. The university paid the pair $160,000 over eight months.
ADVERTISEMENT
A Lucrative Business
In the past, Mr. Sokolow said, the question among college officials grappling with sexual-assault issues had been: Should we hire a consultant? After the “Dear Colleague” letter, the question changed to: Which consultant should we hire?
That shift has been good for business at Ncherm, which has seen its staff double in size since 2011. On average, Mr. Sokolow said, his institutional Title IX clients pay Ncherm about $35,000 per year.
A separate group run by Mr. Sokolow, the Association of Title IX Administrators, or Atixa, was founded in 2011 and now has about 2,500 active members. Membership fees are $599 for individuals and $2,499 for institutions, and members receive access to, among other things, an extensive online library of training materials and templates for model policies.
In the early days of ramped-up Title IX enforcement, Mr. Lake said, he saw quite a few legal and consulting firms emerge that appeared motivated by profit, versus a passion for higher-education or sexual-violence issues. And despite a lack of expertise, it was easy for them to play off of colleges’ anxieties about Title IX, he added.
“The services were everything from the highest quality you could possibly imagine at a reasonable price,” he said, “to outrageous services that made unsupportable claims, but people were buying them anyway.”
ADVERTISEMENT
Not only have there been plenty of law firms marketing their Title IX chops, Ms. Ibach said, but there have also been a growing number of companies offering Title IX training and programs related to compliance with other sexual-assault laws and guidelines. Among the players: CampusClarity, Campus Answers, and SafeColleges.
There is significant variation in how much colleges spend on external help with Title IX compliance. Mr. Lake likened it to shopping at the mall. Some campus officials glance at storefronts and spend a little, while others, he said, “pull out their black platinum card and buy everything they can find.”
But it’s become clear, Mr. Lake said, that “if you don’t spend a certain amount, you’re asking for trouble.”
Mr. Sokolow said some of his campus clients had chosen not to bring in outside counsel when the civil-rights office put them under investigation. Other institutions bring in three or more law firms to work on different parts of the response to the government — revising policies, pulling together documents that the department has requested, and more.
ADVERTISEMENT
Mr. Sokolow estimated that a campus can defend itself against a Title IX inquiry for about $25,000, though “I’ve had clients who have spent $600,000.”
Among the obligations outlined in recent federal guidance is that each institution must designate a Title IX coordinator. As that role has become professionalized, there has also been a growing need to educate both the coordinators and other campus employees with Title IX-related responsibilities. One of the most popular trainings is offered by Atixa. The group’s four-day training is $2,699 per person, plus travel, and can attract as many as 500 participants.
When campus officials are considering how much to spend on outside help with Title IX and sexual-violence prevention, it’s critical that they ask themselves certain questions, said L.B. Klein, who has consulted for campuses on gender-based violence issues.
Are we using this consultant as a stopgap to temporarily fill a need on the campus? she asked. Are we bringing in people who can teach us to do this work on our own? Or will we be paying for these services regularly for years to come?
As campus officials’ knowledge of Title IX becomes more sophisticated, Mr. Lake said, “they’re becoming better consumers.” Administrators are starting to grasp what they can do on their own, what sort of assistance they can find free, and what they need to pay for.
ADVERTISEMENT
Now, with Mr. Trump in the White House, “most would agree that regulation or enforcement will change, and standards will likely be tweaked,” Ms. Ibach said. That shift could unfold in several different ways, any of which could affect the demand for services from firms like hers.
One possibility: The new administration stops emphasizing the current approach to Title IX enforcement, and the law becomes less of a priority for some colleges.
“There has to be some level of concern in the industry that the current go-go business model might not be as viable in the future,” said Robb Jones, senior vice president and general counsel for claims management at United Educators, a risk-management and insurance firm.
Mr. Sokolow said there might be a silver lining in less-stringent Title IX enforcement. “Higher ed has had a gun to its head for six years now trying to do what OCR wants,” he said, “versus trying to figure out the best compliance program for individual campuses.”
But even if federal attention wanes, colleges probably won’t jettison their Title IX efforts overnight. Mr. Sokolow predicted that the vast majority of campuses will stay the course, in part because it’s hard to dismantle campus infrastructure.
ADVERTISEMENT
“Changing a college or university is like turning a cruise ship,” he said.
That slow pace of change could be good news for the Title IX compliance industry — as could the growth of higher-education compliance requirements in general, Mr. Lake said. In addition to Title IX, he’s seen increased attention paid over the last decade to enforcement of the Family Educational Rights and Privacy Act, the Americans With Disabilities Act, and other laws.
“Fundamentally, society has seemed to have lost a lot of trust in how we operate,” Mr. Lake said of colleges. “The reality is, the typical university is overwhelmed with the time that needs to go into compliance work, and very few schools have the resources to do it” without external help, he said.
Besides, colleges have plenty of sexual-violence-related obligations beyond the series of “Dear Colleague” letters. There are the requirements of the Campus Sexual Violence Elimination Act, a series of amendments to the Clery Act that were passed as part of the Violence Against Women Act reauthorization, in 2013.
New state laws have also cropped up over the past half a decade. In California, for example, campuses are now required by law to use a “preponderance of the evidence” — or more likely than not — standard for sexual-assault cases, the same bar the Office for Civil Rights has encouraged. That’s the burden of proof used for civil cases, but a step below the “beyond a reasonable doubt” standard used in criminal trials.
ADVERTISEMENT
Another possibility: The Trump administration continues to focus on Title IX, but takes enforcement in a different direction. It might, for instance, raise the recommended standard of proof to “beyond a reasonable doubt.” Critics of the federal government’s current approach to Title IX say that is needed to protect the rights of accused students.
“If there’s a whole new set of guidelines that require colleges and universities to do things in a particular way, that’s another potential burden,” Mr. Jones said. The same consultants, one imagines, would be ready to help colleges shoulder it.
Even if colleges were to lessen their attention on sexual assault, many of the consultants could simply turn to other risk-management or legal issues for a few years.
Mr. Lake predicts Mr. Trump’s Education Department could delve into issues of free speech, perhaps taking aim at campus antidiscrimination policies, which some critics say are overly broad. That could create a whole new compliance gap for consultants and vendors to fill.
Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.