Attorney Kimberly Lau, a partner and chair of the College Discipline Practice at New York City law firm, Warshaw Burstein LLP, has handled over 100 Title IX cases, representing both male and female students. Recently, Ms. Lau was invited to meet with U.S. Secretary of Education Betsy DeVos on July 13 to share her opinions on the necessary areas for change in Title IX policy. Secretary DeVos met privately with students who had been assaulted, students who had been accused, higher education officials, and subject matter experts.
“I provided my views on how the current process is unfair and has room for improvement,” said Ms. Lau, after her meeting with Secretary DeVos. “The definition of ‘sexual misconduct’ has become too broad and now includes conduct that does not involve physical contact, or contact that does not involve sex. And students are getting kicked out of school for it. There is also not enough emphasis on credibility determinations in these matters involving charges of the utmost serious nature.”
Ms. Lau also spoke before a group of Title IX administrators at the Title IX ExecuSummit in Connecticut on July 25.
“The interpretation of Title IX law is confusing and difficult to interpret, leading colleges to define sexual assault differently on each campus and make assumptions about what tools are at their disposal in these processes. All colleges fear running afoul of Title IX guidance at the risk of losing federal government funding if found in violation of Title IX,” Ms. Lau said.
During her presentation at ExecuSummit, Ms. Lau explained the legal significance of the 2011 Dear Colleague Letter issued by the Obama administration as compared to binding federal law, and pointed to restorative justice alternatives to the typical Title IX campus tribunal process in handling complaints of sexual misconduct.
Currently, students accused of sexual misconduct appear before a campus tribunal (or no tribunal at all in the case of single-investigator model processes), which students often refer to as a “kangaroo” court because they can be convicted with little or no evidence, no medical or police records, and no legal representation. It is a procedure that does not allow for sufficient due process, even though some sexual misconduct violations, like rape, are of a criminal nature.
Ms. Lau shared real life examples of students whose lives were turned upside down following campus tribunals.
The first involved a law student accused of failing to get consent when having sex with his wife. His job offer was rescinded after having his diploma withheld for 2 years, and he was unable to graduate or sit for the bar exam. This action by the University disciplinary committee impaired his legal career for life.
Another real life example involved a foreign Ph.D. student who was suspended for 2 years for tapping a classmate on the head several times and sending too many emails. Due to the University’s termination of his H-1B visa, the Ph.D. student was required to leave the country or risk deportation. This Ph.D. student’s future return to the University to complete his education is even less certain given the added hurdle of overcoming the U.S.’s evolving immigration policies.
And yet a third college graduate lost a job on Capitol Hill after his employer learned about his Title IX case from a witness in the Title IX process, due to the “optics.” The final results of sexual assault cases resulting in a finding of responsibility are not considered confidential under federal law where the complainant is disseminating such information to others.
“The price of getting it wrong is monumental for students, both emotionally and financially, and for institutions who end up paying hundreds of thousands of dollars in attorneys’ fees or settlements,” adds Ms. Lau.
Jordan Johnson, a former University of Minnesota quarterback, issued a statement concerning his $245,000 settlement after he said he was falsely accused of rape: “Any student accused of wrongdoing deserves a fair and impartial hearing of the facts of his or her case. Officials at the University of Montana – people who were in positions of great power– were unfair and biased making me and my family suffer emotionally and financially.”
More recently, Columbia University settled a case with a male student accused of rape in a very public way, as his accuser carried a mattress as part of a performance art protest and made his identity publicly known. Columbia has said that it “stood by its finding clearing the accused of any misconduct.” That statement did not remove the accusations and humiliation that the accused received on campus while attending school.
In reforming the Title IX process on campus, Ms. Lau believes it is important to ensure that the process is fair and that complainants are safe. “A process that focuses on educating students instead of merely punishing them can go a long way for all involved in the process. I am recommending that colleges consider sexual education and Title IX sensitivity training, alcohol abuse courses, trauma-informed and restorative conferencing,” concludes Ms. Lau.
Warshaw Burstein, LLP is a mid-sized, full-service law firm based in New York City, concentrating in the following practice areas: banking and finance, construction, corporate and securities, creditors’ defense litigation and compliance, entertainment and media, exempt organizations, financial services, intellectual property, litigation, matrimonial and family law, real estate, tax, and trusts and estates. The firm has comprehensive experience representing a wide range of international, national and local businesses of all sizes, as well as governmental authorities and many prominent families and individuals, in an extensive array of litigation and transactional matters.
For more information regarding Warshaw Burstein, LLP visit www.wbny.com
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