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TNG Stories from the #MeToo Frontlines: Risk Management Through Tenacity and Rule-Bending

As a risk management consulting firm, representing colleges and school districts sometimes seems like a never-ending litany of “you won’t believe this one” tales. Here’s another one from our “battles-well-fought” archive. Some years ago, we were representing a college on matters related to Title IX and sexual misconduct. At the time, the college’s resolution process involved an investigation followed by a determination as to whether there was sufficient evidence to move the allegation to a formal hearing. The client’s Title IX coordinator notified the parties to a complaint of sexual assault on a Tuesday that the investigation was wrapping up and a decision about moving to a hearing would be made on Friday.  

On Wednesday, I received a call from someone who introduced themselves as counsel to the respondent. This lawyer immediately made sure that I knew of the history of their storied practice, reputation as a gladiator, and $1,200 an hour fees. The lawyer let me know the family of the respondent was better endowed than the college that was my client, and that the family was going to litigate the college into oblivion if we filed formal charges against the respondent on Friday. I duly alerted my client, who took a strong position that it would defend its fair process in federal court if need be. On Thursday, the counsel to the respondent called me again, this time with the threat of obtaining a temporary restraining order (TRO) against the college and suing the complainant for defamation. Somehow that threat was also communicated to the complainant, who contacted the Title IX coordinator in a panic. The college determined that I should engage with all parties, on behalf of the college.

I called the counsel for the respondent, who offered to withdraw the respondent from the college before Friday if that would result in the termination of the Title IX process. I relayed the offer to the college, whose vice president and Title IX coordinator vehemently objected to allowing the withdrawal, based on prior practice and clear policy that their process would continue irrespective of the withdrawal of the respondent. When the option of respondent’s withdrawal was communicated to the complainant, the complaint said that if it meant that the respondent would no longer be enrolled, that would be a suitable resolution because there was no guarantee that the hearing would produce the same result. This brought the college’s administration to a point of willingness to consider the withdrawal offer, but no procedure allowed it, and it was clear that if charges were filed Friday, they would be pursued to final determination via a hearing. I reminded the college’s administrators that it might not, if the respondent obtained the TRO. The college’s administrators also felt some obligation to try to explore resolution outside the process so as to shield the complainant from a defamation claim, and directed me accordingly.

Once the college signaled to the respondent’s counsel that the respondent’s withdrawal was potentially agreeable, counsel set forth a lengthy draft agreement to be signed by the parties. The terms spelled out future no contact, non-disparagement terms, confidentiality, covenants releasing all claims, OCR complaints, etc. The college agreed to extend its Friday deadline to get the terms worked out. We needed the extension. It took days to finally agree to the language the college would use in the event that a third party made inquiries of the college about the respondent’s record. The family wanted to pave the respondent’s path to transfer to another college. The college’s vice president would not agree to make any statement that was misleading, and insisted on a formal threat assessment. Ethically, the college did not want to pass a student to another institution if there was an unreasonable risk of harm that might result. Finally, the respondent’s threat assessment cleared the way, and compromise language was found for a release of information by the college upon request. Like any good compromise, no party was completely happy with the language we arrived at, but everyone accepted it.

As one of the terms, I insisted that the complainant could not sign without first having the agreement reviewed by counsel. The complainant did not have counsel, but set about finding one. Two weeks passed, with all parties becoming increasingly frayed. The college’s president wanted the college’s resolution process on standby in case the agreement fell through. That met with ever more threats from the respondent’s defense counsel retained for the campus proceeding, as well as the litigation counsel the family had also retained, and their counsel who was negotiating terms of the agreement with me. I figured every phone call with the college was costing the family of the respondent at least $3000 in legal fees. I wasn’t sure I was worth such expense. After two weeks, we heard from the complainant who was not able to find suitable counsel at a rate complainant’s family could afford. A retainer of $5000 was needed, and the entire agreement hinged on this.

I informed the respondent’s legal team that we were at an impasse. The college would accept no agreement unless reviewed by counsel for all parties, and the complainant did not have the funds to secure counsel. I suggested to the respondent’s legal team that the respondent’s family could provide the $5,000 to the complainant, thereby securing the resolution for less than the cost of two more phone calls. The legal team balked vociferously at my suggestion. The family refused any payment to the person defaming their child. At the same time, the college’s president was out of patience. Never comfortable with any end-run around the college’s process, it was clear to the president that this attempt at resolution was not going to work. If litigation resulted, so be it, but the college was not going to allow well-financed respondents to use their wealth to short-circuit a process required by Title IX.

Out of time and out of options, I implored the president to let me make one last-ditch attempt at resolution. I was given a very short leash. I informed the respondent’s team that the hearing would be scheduled for the following week, while at the same time asking the respondent’s legal team for permission to speak to the respondent’s parents, directly. This application of pressure worked, and I received permission. First, I encouraged the family to give the college’s hearing process a shot. I told them that I had devised it, and that it was an exceptionally fair process. Finding the respondent in violation of college policy was not a foregone conclusion. The family stuck to their position that even the filing of charges was defamatory and potentially reputation-destroying for the respondent. No process short of the protections of a criminal trial would satisfy them. On principle, they also refused my suggestion of paying the $5,000 to the complainant.

I told the parents of my experience in litigating these cases in federal court. I explained the hurdles they faced, including that a respondent had (and has) never won a Title IX erroneous outcome claim before a jury. I assured them they would spend $1-2m prosecuting a lawsuit they could have avoided for $5,000. Seeing the merits of this argument, they relented. The $5,000 was paid. The complainant retained counsel. All parties’ counsel then hammered out an agreement.

In the end, who knows if justice was achieved? The college’s actions prevented a lawsuit against the complainant by the respondent, for defamation. The respondent was able to enroll elsewhere and obtain a college degree. The college’s administrators were reasonably reassured the respondent was not a threat to others. They were able to respond honestly to inquiries made about the respondent’s college record. The complainant was able to finish out college without the stress of having a hearing of uncertain result, of having to attend college with the respondent, or of ever having to encounter the respondent again. That was enough to satisfy the Title IX mandate to ensure a hostile environment was not perpetuated. The college avoided being sued itself.

While multi-party settlements of this type are common in complex litigation, they were very uncommon outside of litigation in campus Title IX contexts, at the time. Part of our practice has made use of this approach more often now, so far to good effect. Sometimes, an ideal result is not possible, but I consider this one a non-traditional success where all other paths were fraught with the potential for disaster.

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