One huge reason for the uptick in Title IX lawsuits that allege sexual misconduct on college campuses across the country is the potential for institutional liability. If an alleged victim of sexual assault can show that their school “reasonably should have” known about harassment or assault, and then failed to act appropriately.
The potential for winning money damages if such a vague standard can be shown has likely led to hundreds of Title IX claims against innocent students and faculty members.
Thankfully, upcoming changes to Title IX regulations are said to correct this problem.
The Current State of Institutional Liability for Title IX Violations
Under current Title IX law, colleges can be liable for a Title IX violation if they do not act appropriately to sexual misconduct that they “reasonably should” have known about. This standard is important because it means a college could be held liable for not preventing misconduct they were unaware of, or for not responding appropriately to an act that was never reported.
When actual knowledge of an event is not required, the big question becomes where the line is to be drawn. If there are signs that should've made a school aware of misconduct, what are those signs? And who at the school has to be aware of them?
These open-ended questions are a serious problem. Alleged victims can see them as an opportunity to press forward with a weak case – a decision that comes at the expense of the person they are accusing.
Changes to Title IX Regulations Rumored to Require Actual Knowledge
New amendments to Title IX's regulations are rumored to change that vague standard.
These are the same amendments that were proposed over a year ago and that attracted lots of attention during the notice and comment phase.
Based on the proposed regulation changes and reports of the soon-to-be-finalized versions of those changes, Title IX will soon require that a school have “actual knowledge” of misconduct for it to be held financially liable for not responding to it appropriately. While some critics claim that “actual knowledge” is a vague standard, it is far clearer than the constructive knowledge that is currently required.
Why Requiring Actual Knowledge Can Help the Accused
By raising the standard of proof from “reasonably should have known” to “actual knowledge,” Title IX can make it more difficult for alleged victims of sexual misconduct to recover financial compensation from their institutions. With the possibility of winning money from a college less attainable, we'll likely see fewer allegations of Title IX violations as those with weak, tenuous, or outright fraudulent claims. This means fewer innocent students, staffers, or faculty members will be accused of wrongdoing.
Title IX Defense Lawyer and National Title IX Advisor Joseph D. Lento
Joseph D. Lento is a Title IX defense lawyer and a national Title IX advisor. If you have been accused of sexual misconduct on campus and are facing a Title IX investigation, you can contact him online or call his law office at (888) 535-3686.