With Title IX Guidance in Flux, It May Be ‘Open Hunting Season’ for Lawyers

Susan C. Stone still remembers the day in 2012 a fellow lawyer popped into her office and asked if she knew anything about Title IX. She says she laughed and said, “The athlete statute?”

Working with college students facing Title IX complaints of sexual assault now makes up about 70 percent of Ms. Stone’s private practice, and she is not unusual. A “Dear Colleague” letter issued by President Barack Obama’s Department of Education in 2011, and a subsequent enforcement crackdown, not only compelled colleges to take their handling of rape on campus more seriously; it also spawned a growing industry of lawyers who specialize in representing both victims and the accused.

Now the department under President Trump has rescinded the Obama-era guidance on Title IX compliance. In a speech last month, Betsy DeVos, the secretary of education, expressed concern about overzealous Title IX enforcement and repeated comparisons of campus disciplinary hearings to “kangaroo courts.” The shift in policy and rhetoric may prove a challenge for colleges — and a possible boon for the defense half of the Title IX bar.

Data on individual Title IX proceedings are elusive, but respondents’ lawyers say they have seen a boom in demand for their services over the past few years. The number of civil lawsuits filed against colleges by accused students has also risen. A 2015 report by United Educators, a risk-management and insurance firm, said the number of insurance claims filed by colleges as a result of a Title IX lawsuit jumped from 78 in 2011 to 154 in 2013, an increase of 97 percent.

Advocates for survivors of sexual assault believe that the change in department policy signals that Obama-era practices and standards are more open to question. Laura L. Dunn, founder of SurvJustice, a nonprofit organization that represents complainants in Title IX proceedings, says she told department officials on the day of Ms. DeVos’s speech, “You just basically created an open hunting season on schools for defense attorneys.”

The Pendulum Swings Back

Lawyers who represent accused students welcome the change as a potential corrective to a Title IX system that they say is often stacked against their clients. “The focus after 2011 was to make it easier for someone who’s making an accusation,” says Mark Hathaway, a lawyer who often represents students and faculty members accused in Title IX cases. “That has made it easier for colleges to find responsible the accused.”

Mr. Hathaway, who has advised about 60 respondents in Title IX proceedings since 2014, says accused students often face a confusing process in which the rules aren’t clear and their guilt is assumed. “Most students think, Well, if I go in and I tell the truth, I’m fine,” he says. “And that’s not necessarily the case.”

The growth in the number of Title IX proceedings, and the fact that students found responsible face suspension or expulsion, has kept Mr. Hathaway and his peers busy. When students are accused, “their families feel that it is a death sentence to their education, so they tend to lawyer up,” says Courtney H. Bullard, former associate counsel for the University of Tennessee system and a consultant who advises colleges on Title IX.

High-profile cases, such as Paul Nungesser’s lawsuit against Columbia University for its handling of a Title IX proceeding in which he was accused, brought attention to the fraught nature and considerable consequences that the process brings to all parties involved. (Mr. Nungesser was found not responsible by Columbia. His suit against the university was dismissed by a judge last year.)

Once the narrative was that colleges did not take sexual assault seriously enough. For some observers, that concern has been tempered, or replaced, over the past six years by the narrative that colleges have taken their responsibility to deal with sexual assault on campus too far. The Department of Education’s shift on Title IX enforcement seems to echo the latter.

According to Robb Jones, senior vice president and general counsel for claims management at United Educators, the 2011 “Dear Colleague” letter sent the pendulum swinging toward tougher enforcement. With more and more young men facing discipline and suspension or expulsion, he says, “You could have predicted that the pendulum would swing back.”

High-Stakes Cases

It was, perhaps, inevitable that more lawyers would get involved in Title IX processes. The stakes are high for both accusers and accused. Colleges face increasing pressure to get their Title IX compliance right from complainants, respondents, and the Department of Education’s Office for Civil Rights, which oversees enforcement — so many institutions now prefer applicants with law degrees to serve as Title IX coordinators or investigators.

Title IX coordinators stress that all complainants and respondents are entitled to have an adviser, and that they have the right to hire a lawyer for that role. But the involvement of lawyers can make the process more complex and time-consuming. Adding busy lawyers to the mix can make scheduling meetings more challenging, says Danica Myers, interim Title IX coordinator at Occidental College and a former Title IX investigator at the University of California at Los Angeles and the University of Southern California.

Kathleen Salvaty, Title IX coordinator for the University of California system, says she’s encountered respondents’ lawyers who, for example, compile binders of material for the investigator that isn’t necessarily relevant to the case at hand. “It does feel to me that sometimes the attorneys are intentionally trying to disrupt the process on the assumption that it’s unfair,” she says.

Such complications may be tougher to handle at smaller colleges, which may not have in-house lawyers and whose Title IX personnel may be juggling other duties.

According to Andrew T. Miltenberg, a lawyer who has represented more than 100 people accused in Title IX cases, respondents’ lawyers are just doing their jobs. “There is no school that I’ve been in that makes their process fair enough for young men to defend themselves without an adviser,” he says.

As administrative procedures, Title IX processes differ from college to college, and don’t follow the rules of a court of law. “That lack of consistency and lack of transparency makes it very hard,” he says. “If I can’t figure it out, and I do this all the time, what makes the panel think that a student can figure it out?”

More Lawyers in the Forecast

Ms. Stone, the lawyer in private practice, says the current procedural wrangling over Title IX has its roots in the process that produced the “Dear Colleague” letter. Unlike much of the guidance issued by the Department of Education, the letter never went through negotiated rule-making, a process that involves a range of interest groups in a controversy, not just department officials.

“Yet at the same time, with the threat that federal funding would be taken away from institutions, it was treated as law,” she says. Whatever rules the department or Congress issues next on the matter are likely to go through more debate.

For now, many colleges plan to stick to the sexual-misconduct policies and Title IX processes they’ve spent six years refining. Ms. Salvaty says there was nothing in the revoking of the previous guidance, a new Q&A issued by the department, or Ms. DeVos’s remarks “that made me think, Oh gosh, we have to do something differently today than we were doing yesterday.”

Individual colleges’ policies can also be shaped by state and education law as much as by departmental guidance. In California a bill that would codify the approach of the Obama-era Title IX guidance awaits the signature of Jerry Brown, the Democratic governor. The state already requires colleges to use the lower evidentiary standard specified in the Obama-era guidance.

Still, the rollback of the Obama guidance is likely to have consequences. The department’s suggestion that colleges could do away with 60-day time limits for Title IX procedures, or find responsibility based on a higher standard of evidence, may give respondents’ lawyers an advantage.

“The department invited more litigation from those who are defending the accused because of some doors left open, and that will allow them to seek injunctive action to challenge existing policy,” says Ms. Dunn of SurvJustice.

Lawyers have not had much success in challenging Title IX thus far, says Mr. Jones of United Educators, and may not have more in the future. “It’s unlikely to happen because I think most of the challenges that respondents make are very fact-specific,” he says, or are rooted in state law or the Fifth Amendment to the U.S. Constitution, rather than on questions of the department’s guidance.

For the foreseeable future, there will probably be more clashes between respondents’ lawyers and the rest of the Title IX process, and maybe that’s not such a bad thing.

“The best hearings I’ve been to are when the respondent has a lawyer, the complainant has a lawyer, and the Title IX process is run by a lawyer,” says Justin Dillon, who represents both respondents and complainants. Title IX hearings mirror a legal process, and can have further legal ramifications for all parties, he says, and “having people who are familiar with that process can only help, not hurt.”

Lee Gardner writes about the management of colleges and universities, higher-education marketing, and other topics. Follow him on Twitter @_lee_g, or email him at lee.gardner@chronicle.com.