By John F. Banzhaf III, B.S.E.E., J.D., Sc.D., Professor of Public Interest Law Emeritus, George Washington University Law School
Pacific University has been ordered to pay some $4 million for unfairly treating a student it had expelled for an alleged sexual assault, even though it had followed the federal government’s Title IX guidelines for handling such cases.
The jury verdict, believed to the largest of its kind so far, shows not only that students accused of rape can fight back by suing their universities, but also that following federal regulations doesn’t necessarily provide colleges and universities with a winning legal defense. This is especially important because the Department of Education (DoEd) will be issuing new Title IX regulations that provide even fewer protections for the accused. That means students will increasingly have to turn to the courts to protect their rights to a fair proceeding, whereas previously they could rely to some extent on Title IX regulations, which did provide important procedural protections.
Specifically, in the present case, a jury held that Pacific University had intentionally caused a student, Peter Steele, emotional distress, finding that “Pacific University’s conduct constituted an extraordinary transgression of the bounds of socially tolerable conduct or exceeded any reasonable limits of social toleration.” The verdict was based in part on a finding that Pacific had breached the “implied covenant of good faith and fair dealing.” This means that it did not treat Steele in a fair and reasonable manner, even though it had followed DoEd’s current Title IX guidelines which have been widely criticized for providing students accused of rape of too many rights.
Pacific University is currently facing several more lawsuits alleging discrimination, including by improperly initiating Title IX investigations. DoEd is also investigating several allegations that Pacific violated various Title IX procedures dating back to 2021.
Because of inherent conflicts of interest which occur whenever a university investigates complaints of student date rape, and it’s very limited resources in investigating and adjudicating such allegations, I have proposed to former DoEd Secretary Betsy Devos that universities be permitted, if not encouraged, to handle such matters by working together to establish independent regional consortiums to handle both investigations and adjudications.
The Secretary adopted and endorsed my recommendation, and it is included in the current regulations. See:
Law professor pitches anti-rape plan to DeVos: Outsource investigations, go after booze
Due process advocates cheer overlooked changes to Title IX proceedings in DeVos rules
Since colleges and universities are likely to be hit with even more high-dollar lawsuits if they follow the new about-to-be-issued Title IX regulations, they may wish to provide far more procedural protections (e.g., the right to cross examine) than the new rules require, or consider joining with other institutions of higher education in the region to create independent consortiums with resources, experience, and expertise to handle these matters and avoid expensive legal liability.
