Contact: Chris Perry
Telephone: 301-801-0608
Email: cperry@saveservices.org
To Reduce Lawsuit Risk, Administrators Need to Implement New OCR Sexual Assault Guidelines
WASHINGTON / October 11, 2017 – Since the issuance of the federal Dear Colleague Letter in 2011, nearly 200 lawsuits have been filed by accused students alleging lack of due process. (1) Implementation of the Department of Education’s September 2017 Q & A on Campus Sexual Misconduct, which urges colleges to utilize equitable procedures to resolve allegations, are likely to reduce schools’ liability risk. (2)
These provisions from the 2017 Q&A are particularly relevant to lawsuit prevention:
- “A school must adopt and publish grievance procedures that provide for ‘equitable’ resolution of complaints of sex discrimination, including sexual misconduct.” (Page 3)
- The parties must have “meaningful access to evidence,” and the parties should have the “opportunity to respond” to investigation reports in writing or at a live hearing. (Page 5)
- Schools should “avoid conflicts of interest and biases in the adjudicatory process.” (Page 5)
In addition, the new federal guidance notes, “If all parties voluntarily agree… the school may facilitate an informal resolution, including mediation, to assist the parties in reaching a voluntary resolution.” (Page 4). Voluntary resolutions can provide both parties with a satisfactory outcome and no reason to pursue future legal action.
In recent years, Courts have issued strongly worded rulings in favor of accused students. (3) Schools that fail to afford “equitable” procedures are exposing themselves to significant financial risk. In one case, the school paid a $245K settlement for the university’s ‘unfair and biased’ rape investigation. (4)
If schools are transparent with their procedures and offer true procedural safeguards to students, as laid out by the latest OCR guidance, the potential for successful civil lawsuits against the school will be diminished. SAVE recommends that administrators review their campus policies to ensure consistency with OCR’s new guidance, thus protecting all students and limiting their school’s liability.
Additional information can be found in SAVE’s Special Reports titled, “Victim-Centered Investigations: New Liability Risk for Colleges and Universities” (5) and “Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases.” (6)
(1) https://titleixforall.knack.com/databases#due-process-lawsuits3/due-process-lawsuits/
(2) https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
(3)https://docs.google.com/spreadsheets/d/1CsFhy86oxh26SgTkTq9GV_BBrv5NAA5z9cv178Fjk3o/edit#gid=0
(5) http://www.saveservices.org/wp-content/uploads/Victim-Centered-Investigations-and-Liability-Risk.pdf
(6) http://www.saveservices.org/wp-content/uploads/Sexual-Misconduct-Lawsuits-Report2.pdf