In yet another instance of the complications created by the Title IX framework, a federal district court judge in Texas is thinking about sanctioning a Philadelphia law firm for failing to disclose evidence in a pending Title IX claim against Baylor University. The situation reveals the conflict of interest that arises when schools pay lawyers to conduct Title IX investigations.
Baylor University Hires Law Firm to Investigate its Title IX System
Three years ago, 15 former students from Baylor University sued the school for failing to adequately respond to their claims that they were sexually assaulted. Their Title IX claim was filed in the federal district court for the Western District of Texas, where it went before Judge Robert Pitman.
Baylor University had hired a Philadelphia-based law firm, Pepper Hamilton, to investigate its Title IX process. That investigation concluded that there was a “fundamental failure” in how Baylor University handed sexual assault allegations. A summary of the report was released by the Baylor Board of Regents. However, the full report was never disclosed.
Court Considering Sanctions for Law Firm for Discovery Issues
The full report of the investigation has now become a huge part of the Title IX case against the school.
Lawyers for the women who made the sexual assault allegations have repeatedly asked for the report. The court has ruled that the full report needs to be made available to the plaintiffs. However, Baylor University and Pepper Hamilton have claimed that there was no final report of its investigation. Attorneys for the plaintiffs claim that this is incorrect, as emails that have been made available mention a final report.
The judge on the case has become so annoyed that he has scheduled a hearing to talk about sanctioning the college and the law firm for abusing the discovery process.
Rampant Conflicts of Interest in Title IX Investigations
The whole situation shines the limelight on one of the most overlooked, but also one of the most practically important, problems of Title IX investigations: They are rife with conflicts of interest and the illusion of bias.
Many outside consultants who conduct Title IX investigations are paid by the school that is being investigated. The benefit of the doubt will always go to the person cutting the check, so these investigations tend to tilt towards exonerating the school.
When it doesn't, and the investigation finds “fundamental failures” like this one did, it raises alarm: Things were so bad with the Title IX process that the investigator couldn't ignore the extent of the problem. However, it also raises a serious problem: Now the only people with the full report are the investigator, who was paid by the school, and the school, itself. Not only is it up to the plaintiffs to uncover the report in the discovery process, but the college has plenty of incentive to cover it up. After all, the school's federal funding is at stake.
Even when colleges and the investigators play by the rules, they cannot get rid of that lingering doubt that they are hiding something, given the strong incentive they have to cover up the results of the investigation.