With offices in New York City and Boston, Nesenoff & Miltenberg has become a recognized leader in the representation of college and university students and faculty facing allegations of misconduct. Andrew T. Miltenberg and Tara J. Davis are part of a team that has represented more than 200 students in 30 states in this emerging area of law, at institutions ranging from small liberal arts colleges to large, public universities. They recently sat down with Massachusetts Lawyers Weekly to discuss the practice area.
Q: What is Title IX and how is it relevant to the university disciplinary context?
Tara J. Davis: Title IX was originally enacted in 1972 as a follow up to the Civil Rights Act of 1964 [and was] intended to prevent discrimination in educational settings. Prior to 2011, it was generally understood to require equity in sports. With the issuance of the 2011 “Dear Colleague” letter, however, Title IX came to take on meaning in the context of university disciplinary proceedings. The letter stated that a university student who experienced sexual harassment or assault was deprived of the right to receive an education free from discrimination. Institutions now have an obligation to end that discrimination and ensure that everyone has an equal learning environment.
Q: What has precipitated the increasing number of cases filed in the past few years alleging Title IX violations?
Davis: Over the last five to six years we’ve seen a big increase in litigation by both students and faculty accused of wrongdoing.
Andrew T. Miltenberg: It has gotten to a point where schools are very frightened of the public response and the bad publicity on social media if they don’t handle a case aggressively. In many ways, the “Dear Colleague” letter has weaponized Title IX, with it being used as a sword instead of a shield.
Davis: And all of this has been done at the detriment of due process. Schools are taking drastic measures to ensure that they are handling these cases aggressively, resulting in an unfair process for the accused.
Miltenberg: Universities staffed up when the “Dear Colleague” letter became controlling. They were prepared for conduct code violations but they weren’t prepared for sexual assault cases, so they went out and found people who could jump in with both feet, who for the most part have backgrounds in victim’s rights advocacy and domestic violence counseling, on what is a very polarizing topic. That has contributed to a belief that no one would ever make up a sexual assault, which in turn means that every person who complains of sexual assault is telling the truth and the accused must then prove that something didn’t happen. It has created a very volatile mix on campus.
Q: What is the first thing a student or faculty member should do if he or she discovers an allegation is made against him or her?
Davis: The first thing that person should do prior to responding to any allegation — even an email or [a request] to appear for an interview — is to contact someone external to the university to act as an advisor, most likely an attorney. Students should also let their parents know right away. Sometimes they think they can handle the situation on their own and end up deep in the process before telling their parents.
Miltenberg: One thing they should not do, under any circumstances, is reach out to the person who made the complaint and try to talk to them about it.
Q: Why is it important for a student or faculty member that has been accused of disciplinary misconduct to retain an attorney when there are other advisors available within the institution?
Miltenberg: Advisors within the institution are really just hand-holders and don’t take on the role of an advocate. Advisors aren’t trained to look critically at the policies and procedures to [determine] whether they have been applied properly or whether they are appropriate. An advisor may be a great teacher of 18th century literature, but that doesn’t mean he or she is well equipped to help someone through an adversarial process.
Q: What sets your firm apart in this particular practice area?
Miltenberg: We have five lawyers dedicated to this practice area and probably the most experience of anyone in the country at litigating these cases or handling disciplinary matters at the college level. We were the first people to really focus on Title IX cases in this context and we are helping to shape the law on this issue. Everyone in our firm that works on these cases feels very passionate about them.
Q: Do you expect to see a significant change in the ways in which colleges and universities handle student discipline in light of Secretary of Education Betsy DeVos’s September 2017 remarks, where she indicated she would rescind the 2011 “Dear Colleague” letter guidance?
Davis: No formal guidance has been issued yet but even with the proposal, I don’t think we’ll see immediate changes. Schools have heavily invested their time and resources in creating new positions and drafting new policies since 2011. They aren’t going to brush it all aside and start over now. Some schools have come out and said they won’t be changing their policies, so I think we will see some pushback.
Q: What particular challenges do you face in litigating matters involving Title IX reverse gender discrimination claims?
Davis: One of the biggest challenges is that this is still a developing area of law. There isn’t much precedent on certain aspects of proving these types of cases and questions remain about what would constitute sufficient evidence.
Q: How has the current political environment and the #MeToo movement impacted how Title IX allegations are being handled?
Miltenberg: The #MeToo movement is important. It has given a voice to victims of sexual misconduct and assault and harassment and that is an amazing thing. At the same time, it has created this intense pressure that has resulted in some very precipitous and unfair decisions being made at the college disciplinary level.
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