Dive Brief:

• The number of students who have sued colleges and universities for potentially botching sexual violence cases has exploded in recent years, according to a new analysis. 
• The report, published recently in the New York University Journal of Legislation and Public Policy, shows that federal and state courts have sided with institutions across the U.S. a little less than half the time in cases that yielded "substantive decisions."
• The legal landscape around Title IX may be shifting more as the U.S. Department of Education prepares to release its regulations around the federal sex discrimination law. 

Dive Insight:

For the last several years, backlash has intensified over guidance the Obama-era Education Department released in 2011 dictating how colleges and universities should adjudicate sexual assault and harassment cases.

Critics of the rules claimed they were too slanted against students accused of sexual violence, depriving them of constitutional due process rights. They also argued administrators were pressured to find accused students responsible for sexual misconduct under the threat that not acting to mitigate sexual violence would lead to the federal government pulling institutions' funding. 

Education Secretary Betsy DeVos revoked the Obama-era guidance in 2017, eventually replacing it with draft regulations that would carry the force of law and would provide more protections for accused students. The regulations also potentially lessen the number of cases colleges would need to investigate and force officials in campus Title IX hearings to allow cross-examination between the parties. 

While the regulations will provide uniform expectations on Title IX for all colleges and universities that accept federal funding, court actions have significantly affected how administrators handle sexual assault cases, said Samantha Harris, a co-author of the report and vice president for procedural advocacy at the Foundation for Individual Rights in Education (FIRE), a civil liberties watchdog in higher ed. 

A court's rulings only apply to colleges located in its jurisdiction, though. For example: The U.S. Court of Appeals for the 6th Circuit notably decided in 2018 that cross-examination should be required in adjudicating sexual assault cases. But only the collection of Midwestern and Southern states that encompasses the 6th Circuit would be bound to the opinion. Other court systems have been split on the matter of cross-examination.

Based on the analysis by Harris and KC Johnson, a history professor at Brooklyn College who tracks Title IX litigation, about 298 lawsuits have yielded "substantive decisions" as of mid-August 2019. Of those decisions, courts have sided with colleges in 134 cases and ruled in favor of plaintiffs 151 times. Decisions in 11 cases were either neutral or mixed, and two rulings were sealed and not made public, according to the report.

Johnson and Harris are largely setting the bar for what counts as a substantive decision, and it's worth noting that FIRE and Johnson have been publicly critical of the Obama rules and the way colleges adjudicate Title IX cases.

The report also notes how much more frequently students and others are pursuing Title IX lawsuits. In the 21 months following the release of Obama's 2011 guidance, which came in the form of a Dear Colleague letter, only seven federal lawsuits were filed. In 2013, seven more complaints were filed. 

But in 2014, the number of lawsuits filed climbed to 25, with 45 more coming in 2015; 47 in 2016; 78 in 2017 and another 78 in 2018.

When students file these lawsuits, they are usually alleging institutions have violated one or more of three areas: due process rights under the 14th Amendment, breaches of contract with a student (such as officials not following codes of conduct) or infringement of Title IX in that administrators were biased when adjudicating a case based on sex.

The judiciary has needed to intervene more because colleges are not properly equipped to address these cases, Harris told Education Dive in an interview. They often fall too far outside academe's area of expertise, she said, adding that college administrators are much more prepared to handle plagiarism, for instance.

But clarity for colleges may be coming soon. DeVos' regulations are nearing their end stages.

The Office of Management and Budget has scheduled meetings with various groups and individuals to discuss the regulations through Feb. 11, meaning they will likely not be released in their final form before the end of February.