The ‘Trust Us’ Era Of Title IX Campus Discipline Is Over

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Portions of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and are reproduced here with permission. Both the text and the footnotes contain material that didn’t appear in my Bloomberg Law column—a form of bonus content for Original Jurisdiction subscribers.

At universities across the country, students are returning to campus after summer break. It’s an exciting and optimistic time for both students and their families.

Interactions with fellow students are one of the best parts of the college experience. But not all interactions are positive—and some unfortunately give rise to serious allegations of student misconduct, including sexual assault.

Title IX prohibits universities that receive federal funding from discriminating “on the basis of sex.” Not taking sexual-assault claims seriously enough can constitute sex discrimination—but so can treating accused students unfairly.

Handling these matters is fraught for schools, but handle them they must: Title IX’s implementing regulations require universities to have procedures for addressing complaints of sex discrimination.

If educational institutions mishandle these cases, they can face dire consequences, including government investigations and civil litigation.1

Universities must provide redress for students claiming sexual assault and fair procedures for the accused. And they can be sued under Title IX, by either the complainant or the respondent, for not striking the right balance. Two circuit opinions from last month capture this difficult position.

In Arana v. Board of Regents of the University of Wisconsin System, the University of Wisconsin-Madison was sued by a woman who alleged that the school violated Title IX by readmitting her alleged rapist after initially expelling him. Sitting en banc, the US Court of Appeals for the Seventh Circuit ruled for the school, 8-4.

In John Doe v. The Trustees of Princeton University, Princeton was sued by a male student who claimed that it ran afoul of Title IX by finding him responsible for misconduct through unfair disciplinary proceedings. The Third Circuit sided with the student, reversing dismissal of his suit.

“University disciplinary proceedings are the medium for these two people to assert claims and defenses against each other—and if they’re unhappy with the resolution, they can sue the university,” said Joshua Richards, a partner at Saul Ewing who represents institutions of higher education.

“Imagine if, every time you had litigation in federal court, you could sue the judge,” Richards continued. “There is zero incentive for institutions to get one of these cases wrong, when they know that both parties are going to consider litigation.”

It wasn’t always this way. For decades, institutions of higher education weren’t highly regulated at all—in many areas, including student discipline.

“Largely left alone by the executive and judicial branches, schools devised what they thought were good rules to govern misconduct proceedings,” Richards explained. And their approaches were highly variable. Some schools had exclusively student-run processes. Some universities employed very informal systems; if two students had a disagreement, a dean might meet with both of them to talk through their issues.

“For 200 years, campus-discipline issues were handled by a small office within a university, in a kinder, gentler way,” said Richards. “In the past 15 years or so, there has been a monumental shift—and educational institutions have gone from being not highly regulated at all to being treated like oil-and-gas or pharmaceutical companies.”

Major changes took place during the Obama administration, which prioritized dealing with the problem of on-campus sexual assault.

“The legal landscape is so different from what existed before 2011, when the Obama administration issued its ‘Dear Colleague’ letter,” said KC Johnson, a history professor at Brooklyn College who has written widely about campus sexual assault and due process. “Before that point, federal courts were very reluctant to intervene in university disciplinary processes.”

After the 2011 letter, a 2014 report from a White House task force, and a 2015 follow-up letter, universities no longer had free rein over student discipline, at least for sexual-assault claims. The Obama administration wanted schools to take these cases more seriously, and it spelled out procedures that schools needed to put into place.

“Title IX regulation required universities to set up an internal adversarial process,” Richards said. “And when you run a quasi-legal proceeding that picks winners and losers, some people will be unhappy at the end.”

And what do unhappy people do? They sue.

Justin Dillon started representing accused students in campus-discipline proceedings and Title IX cases in 2014, when he entered private practice after serving as a federal prosecutor in Washington, D.C. It was an opportune time to enter the field, with campus-discipline work taking off under the Obama administration.

Today, Dillon and Christopher Muha, his partner at Dillon PLLC, devote about 70% of their practice to representing respondents in campus-discipline and Title IX cases. They estimate that 90% to 95% of their matters are resolved during internal university proceedings, with little or no publicity.

Litigation is a last resort; in a typical year, their firm might file only one or two Title IX lawsuits in federal court. But when it’s necessary, they’re prepared to litigate—as they did against Princeton, representing the plaintiff who prevailed before the Third Circuit in John Doe v. The Trustees of Princeton University.

Hiring a lawyer to handle a campus-discipline and Title IX matter isn’t cheap (and almost never covered by any type of insurance). A typical case can cost as much as a year at an elite private college. In a complex or drawn-out matter, legal fees can easily run into six figures.

But the stakes for students are incredibly high. If a student accused of sexual assault is adjudged “responsible”—Title IX parlance for “guilty” or “liable”—he can be suspended or even expelled.2 The adjudication becomes part of his official record, affecting future educational and career opportunities, including the ability to transfer to another school if he has been expelled. Employers understandably aren’t eager to hire someone with a history of sexual misconduct, given the liability they can face for sexual harassment by employees.

So parents who can afford it are very willing to pay for top-flight legal counsel for their children. As Richards put it, “Student-discipline matters unfold in a context where if people are found responsible, it will damage them in a way that almost compels them to consider legal action.”

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Given the seriousness of sexual assault, I asked Justin Dillon and Chris Muha an obvious question: How do you feel about your practice, given the terrible acts some of your clients are accused of?

Their response: The vast majority of their clients are not guilty—at least not guilty of what they’ve been specifically accused of (as opposed to, say, drinking excessively).

“I’ve been doing this for 12 and a half years, and I can count on one hand the number of our clients who are not innocent,” Dillon said.

“There are so few cases where we say to ourselves, ‘He probably did it,’” Muha said.

They also emphasized the due-process points made by criminal-defense lawyers (who will generally tell you, in my experience, that most of their clients are guilty—and their primary role as counsel is securing a favorable plea agreement and sentence).

“Process is important,” Muha said. “Being sure of guilt is important before you impose life-changing consequences.”

“Everyone deserves a defense,” Dillon said. “We don’t live in North Korea.”

An ounce of prevention is worth a pound of cure—and even though Dillon and Muha are excellent at what they do, it’s far better to never need their services in the first place. For students starting college or graduate school this fall, what advice would they offer?

First, treat everyone with whom you have a romantic interaction with respect—before, during, and after any relationship (or fleeting encounter). Not only is it the right thing to do, but it makes it less likely that the other party will harbor ill will toward you and file a disciplinary complaint.

Second, communicate with your classmates by text message—as opposed to apps where messages disappear, like Snapchat—and save your texts. You’d be surprised by how often texts provide crucial evidence in campus-discipline cases.

Finally, tell your parents immediately if campus disciplinary proceedings are initiated against you—and have them hire a lawyer for you, ASAP. Don’t try to navigate the process on your own.3

“This is often the first major thing that these students have ever been accused of, and they’re understandably afraid of disappointing or upsetting their parents,” said Muha. “But parents are more understanding and more forgiving than you might expect.”

Campus-discipline and Title IX work is busy. But it’s not at its high-water mark, at least in terms of litigation.

“At a general level, the pace of litigation has slowed since the tail end of the Obama administration and the first Trump administration,” said Johnson, the history professor. Back then, according to Johnson, around 80 Title IX lawsuits involving allegations of sexual misconduct were filed each year; today, it’s closer to 40.4

Johnson attributed much of the decline to the replacement of the Obama administration’s Title IX guidance by new regulations promulgated in 2020 by the first Trump administration. The Trump regulations rejected the “single investigator” model, in which one school official could serve as both investigator and adjudicator, and provided greater protections for respondents, including live hearings with cross-examination of witnesses.

In the view of their supporters, the 2020 Trump regulations increased due process for accused students, leading to a decline in lawsuits claiming unfair treatment in campus disciplinary proceedings. These regulations remain in effect today, after Title IX regulations issued by the Biden administration were blocked by courts and then officially rolled back at the start of the second Trump administration.

In the Title IX arena, the current Trump administration has focused almost exclusively on how the statute applies to transgender issues. It hasn’t taken any major action on Title IX as applied to campus discipline.5

But even if the Trump administration isn’t active in this area, there’s no going back to the pre-Obama era, when universities enjoyed far greater discretion over how they handled sexual assault claims.6

“For decades, federal courts were reluctant to intervene in university disciplinary processes,” Johnson said. “But that has changed in recent years—and courts are no longer willing to simply defer to universities when the schools say, ‘Trust us.’”