By Stephen G. Bock, Esq.

On March 24, 2014, the D.C. Circuit Court granted a motion by the U.S. Department of Health and Human Services (“HHS”) and the U.S. Department of Education (“DOE”) to dismiss claims brought by a former University of Virginia (“UVA”) student. The student claims that the federal departments were too slow in completing an investigation of UVA’s practices related to sexual violence. The student’s attorney stated that the motivation behind this suit was an attempt to make sure that colleges and universities are motivated to crack down on sexual violence through the “stick” of tough federal laws. Unfortunately for the student alleging a sexual assault on UVA’s campus, the District Court did not agree.

The immediate ramifications of the opinion appear to be that a survivor of sexual violence cannot sue federal agencies if she or he feels that a university’s investigation of a sexual violence complaint was inadequate. The U.S. District Judge noted that the survivor in this case had an “adequate alternative remedy, i.e. bringing a suit against UVA.” This language is important to universities because the Court is saying that a private action cannot be brought against a federal agency charged with overseeing the federal laws governing a university’s policies and procedures related to sexual violence but, instead, highlights the fact that any private action for a victim lies against the university whose policies and procedures are being challenged. Indeed, in this case, the UVA student had a pending civil suit against the university as well.

Essentially, this decision closes one potential avenue for survivors and directs them to another avenue, i.e. suing the institution. From a practical standpoint, this opinion may not surprise universities in understanding that they are standing alone as far as legal liability for failure to comply with federal law.

So how should universities react to this opinion given that the Court ruled that a survivor’s private action should be brought against the university, not the federal agency? The easy answer is for universities to conduct thorough reviews of their respective policies, procedures, and investigation techniques to make sure they are fully compliant with federal law. Such action will decrease the opportunity of the university being held liable to a potential victim alleging the university’s failure under federal legal standards. However, I fear that many universities would conduct such review with the wrong focus; ensuring compliance rather than addressing the protection of students on campus from sexual violence, which I believe is the primary motivation behind the Title IX anti-sexual harassment and sexual violence federal education laws. The better question to ask is not “[w]hat do universities need to do to make sure that they are protected from suit under the federal laws related to sexual violence?” but, rather, “[h]ow much do universities need to do to fully protect their students and comply with federal law?” I believe that as long as universities have taken every reasonable step in compliance with federal law, with an earnest desire and measurable action to protect students from sexual violence and to provide support for students who have experienced sexual violence, they will be less vulnerable to liability from those few unfortunate victims.

The dilemma for universities is how much compliance is enough, given the unlikely reality that no matter how good the policies, procedures and the implementation of them, sexual assaults will continue to occur on college campuses. In my opinion, the best approach for universities is to have an objective third party proactively re-examine its entire framework for dealing with sexual violence to determine and implement all the best practices suggested by federal law and its related guidance. This would allow a university to ensure that it is doing everything conceivable to protect students from sexual violence, support student survivors if an incident of sexual violence occurs, provide efficient, objective and thorough investigations into complaints of sexual violence, and render the appropriate discipline irrespective of whether any criminal proceedings are taking place. By hiring independent experts, a university can have an outside party take a fresh look at its policies and procedures, devoid of liability concerns, and provide new, objective ideas for combating sexual violence on its campus. These new approaches can be combined with existing good practices and input from local sexual violence/domestic violence support agencies and counseling services to create an environment that best combats sexual assault and sexual violence.

Ultimately, the DC Circuit Court’s opinion should highlight the fact that federal law puts the responsibility fully on the shoulders of universities to protect their students from sexual violence. Given this responsibility and the impact that an incident of sexual violence can have on a survivor, student and staff morale, and the image of the university, the Court’s opinion highlights the urgent need for universities to seek out the best practices for protecting its students, its staff, and its legacy.

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