MALVERN, Pa., Feb. 16, 2010 — Each year, the National Center for Higher Education Risk Management publishes a Whitepaper on a topic of special importance to higher education. In its tenth anniversary year, and for its tenth annual Whitepaper, NCHERM has published "Gamechangers: Reshaping Campus Sexual Misconduct Through Litigation." This Whitepaper is available for free on the NCHERM website (http://www.ncherm.org) or by visiting this link: http://www.ncherm.org/documents/2010NCHERMWhitepaperFinal.pdf
This Whitepaper identifies a trend toward dramatic expansion of the liability colleges, universities and schools face for sexual assault, sexual harassment and gender discrimination against students under a federal statute called Title IX. In this Whitepaper, authors and attorneys Brett A. Sokolow, Saundra K. Schuster, and W. Scott Lewis identify seven recent federal cases that are changing the face of Title IX litigation, including significant Circuit Court of Appeals holdings and a Supreme Court decision.
More commonly known for its athletic equity requirements, Title IX's applicability to sexual harassment has been expanding gradually since two landmark Supreme Court cases in the late 1990s. That gradual expansion has given way to an explosion over the last three years, with colleges and universities settling cases for millions of dollars that were merely five figure cases just ten years ago.
The courts are venting pent up frustration with how commonly colleges, universities and schools bury legitimate complaints, fail to take action and refuse to address environments rife with gender bias and sexual discrimination. Of particular note is their apparent wrath for sexual misconduct arising within college, university and school athletic programs.
Not only are the settlements and judgment figures skyrocketing, but the courts are finding ways to expand the legal theories that support liability. Most notable is a recent Supreme Court decision that unanimously paved the way for personal liability for school and college administrators who fail to promptly and effectively remedy sexual harassment and sexual assault complaints.
Co-author Sokolow spoke in January at the opening town hall meeting of the Community College Conference on Legal Issues in Orlando, where he said, "Courts are bending over backward to find ways to hold colleges accountable. Judges are rewriting the law, and making it up where traditional case law doesn't give them means to redress misconduct." Sokolow went on to add, "Judges are not hesitating to apply the civil rights lens to these cases, and are particularly concerned with student-on-student sexual assault. The era of victims' rights is being firmly thrust upon college campuses, finally."
At the same conference, co-author Saundra K. Schuster, Esq. noted the increasing convergence of Title IX and negligence liability, both in terms of how courts analyze Title IX claims, and in the trend of suits that allege counts in negligence and Title IX from the same acts of sexual misconduct.
What do the courts want? Co-author Lewis stated, "They want our attention. And, they've got it. They are hitting colleges and schools as hard as they can with liability to get their message across. They want college and schools to reframe prevention and response, and they want us to get it done yesterday."
The NCHERM Whitepaper not only frames the liability trend, but offers detailed and constructive recommendations to college, universities and schools looking to identify and implement best practices.
Attorneys Sokolow, Schuster and Lewis are partners in the National Center for Higher Education Risk Management (NCHERM), a law and consulting firm near Philadelphia, PA.
For further information, please contact: Brett A. Sokolow, Esq., Managing Partner, NCHERM. Email or (610) 993-0229. http://www.ncherm.org
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