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Schools must investigate assault cases, but Title IX lawsuits soaring

A closed-door encounter between two college acquaintances. Both have been drinking. One says she was raped; the other insists it was consensual. There are no other witnesses.

It's a common scenario in college sexual assault cases, and a potential nightmare to resolve.

But under the 40-year-old federal gender equity law Title IX -- and guidance handed down last year by the Obama administration on how to apply it -- colleges can't just turn such cases over to prosecutors, who often won't touch them anyway. Instead, they must investigate, and in campus proceedings do their best to balance the accused's due process rights with the civil right of the victim to a safe education.

Lately, however, the legal ramifications of such cases are spilling off campus, with schools caught in the middle.

Colleges that do too little about sexual assault could lose federal funds. The Education Department's Office of Civil Rights is investigating a dozen colleges over their response to sexual violence. Documents obtained under the Freedom of Information Act show colleges that have recently agreed to take steps to resolve Office of Civil Rights complaints over Title IX policies include such universities as Notre Dame, Northwestern and George Washington.

Meanwhile, judgments in Title IX lawsuits against colleges, usually brought by accusers, are soaring. Compounding the fear: In some such cases, college administrators may be found personally liable.

But when colleges do take action against accused students, those students increasingly are suing for breach of contract and negligence. And in at least two recent cases, in Tennessee and Massachusetts, male students have tread novel legal ground by alleging violations of their own Title IX protections against gender discrimination, arguing a college's sexual assault policies or procedures were unfairly stacked against men.

Whether such Title IX arguments hold up, they underscore a new fact of life: For better or for worse, the days when colleges could count on handling such matters quietly behind closed doors are over.

A 1999 U.S. Supreme Court decision established potential liability under Title IX for schools that fail to address sexual harassment and, in its extreme form, sexual assault.

Now, Title IX cases represent "the most expensive lawsuits in history" against colleges, said Brett Sokolow, managing partner of the National Center for Higher Education Risk Management.

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