Away from school: New Title IX regulations expected to make sanctions more restorative than punitive

By Gabrielle Saulsbery
BridgeTower Media Newswires
 
Andrew Miltenberg spent his morning on the phone with a Princeton University father. His son had been accused of sexual assault—wrongly, he believed—and was the respondent in a Title IX matter on campus.

The hearing was coming up, and the father was concerned: What if the Title IX panel, made up of school faculty, didn’t believe his son? What if his side of the story wasn’t really heard? If he’s not heard, and if he gets sanctioned, what happens to med school?

It was a typical call for the Bergen County-based lawyer, whose Manhattan office handles around 75 of these cases at a time. But this isn’t a typical time, students across the state and country are off campus due to the COVID-19 health crisis, and these Title IX hearings are happening the same way as every other meeting: Zoom or conference call.

“For someone who is already accused, to not be able to be in person and connect with the panel, and for the panel to not be able to seize upon certain credibility markers—nonverbal cues, things we pick up speaking to someone that help us determine if someone is or isn’t telling the truth—isn’t fair,” Miltenberg said. “Credibility is so critical, because the right to openly confront your accuser is so critical, and to hear what an accuser says about you in person, and the ability to face the person making decisions is so critical.”

Miltenberg has handled hearings at colleges across New Jersey and around the country. By the end of this week, he’ll have attended 20 Zoom meetings between investigative interviews and the hearings themselves, from the University of Maine to Providence College to Virginia Polytechnic. For many of the hearings going on now, the complainant and all the complainant’s witnesses were interviewed in person before school closed, and the respondent and respondent’s witnesses are being interviewed by phone or video chat.

“Have you been on a seven or eight person Zoom call? Like any conference call, someone’s speaking, their voice gets cut off, someone else interrupts,” Miltenberg said. “It’s much harder than an in-person conversation. Right now, there’s an unlevel playing field. If it was your kid, you’d want the benefit from every possible tool and inferences we have as human beings.”

New Title IX regulations are expected to be announced any day now. The rules reportedly will raise the standard of evidence or allow schools to make that change on their own, and they may allow some type of real-time cross examination, Miltenberg said.

“The new regulations will increase the opportunity for schools to engage in an informal resolution, meaning the parties agreed between themselves as to how they’re going to deal with this going forward, as opposed to the school dictating it. Right now, if the complaint involves penetration of any sort, informal resolution isn’t available, meaning there has to be a hearing. There’s also some thought that if someone makes a complaint and wants to withdraw it, they should be allowed to withdraw it,”

Miltenberg said. “Right now, once you make a complaint, you lose the ability to stop the process, so you see situations where a couple [gets back together], where the complainant wants to stop the process, or they recant, or they say ‘wait I didn’t mean for all this to happen to them.’ But they take on a life of their own once the school gets involved.”

The new regulations will reportedly make sanctions more restorative than punitive, opting away from expulsion and toward criteria like community service and mandated therapy.

“You can turn these events into teachable moments. That’s not to say – I have two daughters, one’s in college, and there are rapes that happen. There are sexual assaults that happen. This is not to say that those should not be dealt with aggressively. Part of that is making sure they’re dealt with fairly and that the process and policy is equitable and transparent,” Miltenberg said.

“There’s two sides of the issue. With the separation of everyone it sort of moots the issue with everyone initially, but the fact that there are more virtual campuses, it doesn’t mean they can forever hold this in abeyance,” said Greenbaum, Rowe, Smith & Davis LLP Partner Jemi Goulian Lucey, who represents universities sued by victims of sexual violence in Title IX cases. “From the complainant’s standpoint, I think there’s some issue of finality, to have this behind them. I don’t think anybody wants this to go out for six months or a year and have to drum it all back up again. There’s a lot of interests considered here, making sure there’s a stable university environment and that on campus, whether in person or virtually, they feel safe. And there’s the rights of the complainant and respondent.”

Originally, Miltenberg said, some schools were open to holding off on Title IX hearings for a handful of weeks until COVID-19 subsided later this spring. But now, as COVID-19 campus closures could extend well beyond the current semester and Title IX offices remain open, schools like Syracuse University in New York are deciding to go forward with them.

“I think to myself, it’s a self-perpetuating job for Title IX offices. No one needs a Title IX office if you’re not having hearings. Most schools when this started six or seven years ago had one or two deans that did conduct violations. Now most schools, even smaller ones, have several dedicated in-house lawyers and in some cases a dozen in-house investigators,” Miltenberg said. “Columbia University has like 30 lawyers and 40 investigators that deal with these issues now. This has become a cottage industry. Of course, I’ve benefited from it, but I’m asking not to be [benefitting from it] right now.”

Miltenberg represented Paul Nungesser, the respondent in the widely publicized “Mattress Girl” case. Emma Sulkowicz accused Nungesser of rape in 2013, and after Nungesser was found not responsible by a Columbia University inquiry, Sulkowicz produced a work of performance art called Mattress Performance (Carry That Weight) as her senior thesis in protest of what she described as the university’s mishandling of her sexual assault complaint. The protest involved Sulkowicz carrying a mattress around on campus to represent the burden rape victims carry in day-to-day life.

As Lucey sees it, from the perspective of college and universities, to the extent that the parties agree to allow for the matter to be held in abeyance until there is a return to campus, it would appear that holding off on the hearings is the preferred course of action.

“Unless the parties don’t agree or unless there is some time-sensitive issue that must be attended to, and that the determination of the Title IX hearing [affects] that step,” Lucey said. “If the respondent is a graduating senior so there’s a need to have the matter resolved so that the determination can be made as to whether or not they can graduate, that could be a matter where the situation would have to go forward toward a hearing.”

Lucey noted that litigators such as herself are having to deal with those issues now as well, where all parties involved must agree to treat the online meeting as a live, in-person hearing.

“You make best efforts in a tough situation,” she said.