This article originally ran in The Legal Intelligencer on September 22, 2017.
Following the Department of Education's announcement Sept. 22 that it is rescinding Title IX guidance on sexual misconduct issued under President Barack Obama's administration, colleges and universities were left scrambling for answers and lawyers started to consider how their practices may change.
Education Secretary Betsy DeVos issued a brief bit of guidance Sept. 22, releasing a seven-page Q&A document. In a major departure from the previous rules, the new guidance raises the standard of proof for school disciplinary proceedings in some instances, saying educational institutions may use a clear and convincing standard in sexual misconduct investigations, rather than the lower preponderance of evidence standard.
Lawyers who represent schools said they're already getting questions from their clients on how to respond to these changes, as the Sept. 22 announcement left them with questions about a number of rescinded provisions. And lawyers for students, both the accused and their accusers, said their roles may expand depending on how the forthcoming guidelines develop.
Gina Maisto Smith and Leslie Gomez of Cozen O'Connor, who work with colleges and universities on responses to sexual misconduct, said because the new guidelines remove mandates and create more choice for schools, their clients will need help in making decisions. For example, they said, the interim rules give undefined descriptors for school standards, like "appropriate."
"There is a delicate balance between autonomy in implementation at the institutional level and the need for consistent and informed standards of care," they said in an email. "This guidance will necessarily cause our clients to seek advice in striking this balance."
Many schools already have policies in place, Smith said, but will now have to re-evaluate. And the changes DeVos announced will likely incite litigation, she said.
"This will significantly increase our work in the areas of policy, procedure, practice and implementation advice," Gomez said.
With guidance shifting, Smith said, the legal landscape is even more complex and risky for lawyers. More so than ever, "this work is not for dabblers," she said.
Joshua Richards of Saul Ewing Arnstein & Lehr, who represents educational institutions, said what his clients really want from regulators is consistency.
"They didn't get that under Obama," Richards said, and "unfortunately, what we're not getting with the new administration is consistency."
As the area becomes more and more regulated, Richards said, law firm practices serving them are likely to expand.
How Students (and Their Lawyers) Respond
While schools figure out how to adapt their own policies, lawyers for the students involved are left with additional uncertainty, preparing to react to schools' increased autonomy.
Michael Dolce of Cohen Milstein Sellers & Toll said there will be "tremendous confusion" in the absence of "dozens and dozens of pages of directives" implemented by the previous administration. Dolce represents victims of sexual assault, and said more than half of his cases involve institutions that either facilitated misconduct or failed to address it properly.
"I would expect that any number of people are going to have questions for me about what this is going to do," he said. "I don't understand why we would throw away everything when we don't have something to replace it with."
Patricia Hamill of Conrad O'Brien in Philadelphia, who represents students who have been accused of sexual misconduct, said many schools will likely keep their existing policies on disciplinary proceedings if the new rules lack specificity. Still, she said, the interim guidelines will likely have an effect on some of her ongoing cases.
Andrew Miltenberg of Nesenoff & Miltenberg, who also represents accused students, agreed that the interim rules will create confusion. But as clearer guidelines emerge, he said, there may be a greater role for lawyers in the disciplinary process, as the department appears to be focusing on due process concerns. In the past, he said, it's been challenging for a respondent's lawyer to have a voice in an investigation.
"There's more of an acknowledgement now that we're taking away or impacting a significant aspect of an accused person's life," he said.
Kimberly Lau of Warshaw Burstein in New York represents both accused students and some alleged victims of misconduct. After seeing the new guidelines, she said, students may think to call a lawyer earlier in the disciplinary process.
"The use of a lawyer during this process is going to become more important and more valuable, and actually more useful," Lau said. "Although they're not court systems on campus, you're still talking about pretty weighty allegations."
Lau acknowledged that many have already criticized DeVos' decision, saying it creates undue difficulties for complainants. But she said the end result could create a fairer process if the public has a true opportunity to give input.
"Having a fair system is not taking sides. It's not being pro-male or pro-female, or pro-accused and anti-complainant," Lau said. "You can't have a system you believe in and that's reliable without due process."
But Dolce said he worries that students will be afraid to bring allegations if colleges stray from following the previously implemented rules.
"This is a risky practice area in general because these are crimes that usually occur without any witness," Dolce said. "This is definitely going to have a chilling effect."
Reprinted with permission from the September 22, 2017 issue of The Legal Intelligencer. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.