Miltenberg: “Increased Legal Scrutiny for Sexual Assault Policies,” Inside Higher Ed


A federal court opinion could put the policies and procedures of colleges and universities in California and the western U.S. under a microscope for their ability to prevent sexual assault. An institution can be held liable for “pre-assault” claims, which allege that its policies for enforcing Title IX are inadequate, create an environment of “heightened risk” of sexual misconduct and lead a complainant to be harassed or assaulted, the U.S. Court of Appeals for the Ninth Circuit declared in a ruling Thursday. The federal law prohibits discrimination based on sex at institutions that receive federal funding and requires them to investigate reports of sexual misconduct. Three former students who allege they were assaulted at the University of California, Berkeley, in 2012 initially brought a case against the University of California system’s Board of Regents in 2015 for Berkeley’s handling of their individual complaints. When the case was dismissed in district court, the women appealed. While many of the recent federal court decisions on Title IX have focused on the rights of respondents, the Ninth Circuit opinion is “a big win for victims’ advocates,” especially if other appeals courts follow suit, said Peter Lake, director of the Law Center for Excellence in Higher Education Law and Policy at Stetson University … Andrew Miltenberg, a lawyer who represents students accused of sexual assault, said the hope is that colleges do not become “overly concerned” with pre-assault claims and pursue cases that are not strong enough for investigation and disciplinary measures against accused students. “The hope is that universities will heed this and take measures to ensure that both Title IX complainants and respondents are treated fairly, equitably and given the due process protections that they deserve,” Miltenberg wrote in an email.

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