TITLE IX COMPLAINTS - RESOLVING THEM WITH ADR

June 1 2016, By: Hon. Elizabeth Bonina

There have been many serious allegations concerning gender-based discrimination, particularly sexual assault and other serious matters, on college campuses this year throughout the country.

Whether it was the recent incidents involving the allegations of cover-ups of sexual assault charges against members of the Baylor football team, the expelling of the captain of Yale’s basketball team earlier this year, after a confidential school proceeding found that he had non-consensual sexual relations with a female student, or other less “headline-worthy” incidents – Title IX complaints, and the manner in which administrations at colleges and universities have handled those complaints, have been in the news.

Title IX is a federal law that governs gender equality in education. Until recently, it had mostly been known as a law that required gender equity in collegiate athletics. Now, however, Title IX is better known in connection with complaints involving sexual assault.

It has been widely reported that colleges and universities have spent millions of dollars creating policies, committees and bureaucracies in order to comply with federal law so as to properly manage Title IX complaints on campus. Educational institutions today are confronted with the difficult problem of striking a balance between supporting those students who make complaints while, at the same time, balancing the rights of those students who are accused. These complaints are often adjudicated through a college/university judicial process, which some victims of sexual assault have called “rigged” in favor of the college/university. This perception is reinforced by the “cover up” allegations against Baylor University.

Additionally, lawsuits have been filed against educational institutions pursuant to Title IX by students who have made accusations of gender-based discrimination, as well as by students who have been suspended and/or expelled.

When Title IX complaints, such as those at Baylor University, are not properly handled, the impact on the university can be devastating. As a result of the recently released Baylor University Board of Regents Findings of Fact report regarding the allegations of sexual assault involving Baylor’s football team, the football coach was fired and the University president resigned. The report faults the University for failing to consistently identify or impose appropriate interim protective measures for individual complainants, and creating a hostile environment towards complainants. The report further states that:

“Prior to the 2014-2015 academic year, Baylor failed to provide training and education to students; failed to identify and train responsible employees under Title IX; failed to provide clear information about reporting options and resources on campus; failed to have a centralized process for ensuring that all reports reached the Title IX Coordinator; failed to impose appropriate interim measures in many cases; failed to appropriately evaluate and balance institutional safety and Title IX obligations against a complainant’s request for anonymity or that no action/investigation be pursued against; failed to conduct prompt, equitable, adequate, and reliable investigations; failed to give complainants access to full range of procedural options under the policy; and failed to take sufficient action to identify, eliminate, prevent and address a potential hostile environment in individual cases. Institutional failures at every level of Baylor’s administration directly impacted the response to individual cases and the Baylor community as a whole.”

The Baylor report goes on to state that “Student conduct investigators also applied the preponderance of the evidence standard of proof in an inconsistent manner, and in many instances, required a far greater level of proof than preponderance.”

Whether it is a proceeding as part of a college/university judicial process, or a lawsuit filed with a court system, there is a tremendous benefit to an adjudicatory process that is presided over by a former judge or other neutral. They have extensive experience and background in civil and criminal proceedings, and understand how to conduct internal investigations, have compelling resolution techniques and provide practical and effective counseling and advice for clients who process complaints and conduct internal investigations. The gravamen of this litigation is the integrity of the hearing process itself. An independent process will give the educational institution’s judicial system enhanced credibility at a time when these matters are coming under increased scrutiny, and thus, avoid or reduce unnecessary and costly litigation.

To that end, there are many colleges and universities that are now choosing to include a binding arbitration provision in their admissions agreements to address matters such as Title IX complaints. Had binding arbitration been in place at Baylor, there would have been a process established to provide confidentiality for the accuser, the accused, and the University, while ensuring a fair hearing for all. Given the serious ramifications of the hearing process for the party making the complaint, as well as for the party accused, alternative dispute resolution can help achieve a fair process that ensures a just result. The use of an independent former judge or neutral not only benefits the process, but helps ensure fairness and confidentiality for all involved.

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Hon. Elizabeth Bonina is a retired Justice of the Supreme Court, Kings County, and an Adjunct Professor of Business Law and Sports Law at St. Joseph’s College in Brooklyn, New York. She is a member of NAM’s (National Arbitration and Mediation) Hearing Officer Panel and is available to hear arbitrations and mediations throughout the New York Metro area. She has been voted as the #1 Arbitrator in New York State for three consecutive years (2015, 2014 and2013) by the New York Law Journal Reader Rankings Survey, and has been voted one of the Top Ten Mediators in New York State for six consecutive years by that Survey.

Click here to view Judge Bonina’s resume.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.