URMIA affiliate member Eric Seaborg from Alliant guest-hosts Professor Peter Lake from Stetson University’s College of Law as they share their thoughts on a groundbreaking Title IX Case that could affect risk management and Title IX proceedings as we know them. Tune in for predictions for the future of Title IX cases and proceedings, how higher ed is now a “media defendant” due to social media, and how institutions will need to discover what they want their identity to be in the 21st century. Learn about more about Title IX, how higher education can evolve as a business, and what inherent risks that may bring.
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Higher Education Article on Title IX Case
URMIA Annual Conference in Indy Sept 10-14
Guest- Professor Peter Lake, College of Law, Stetson University
Guest Host- Eric N. Seaborg, Vice President, Alliant Public Entity, Education, and Pooling (Alliant Insurance Services)
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Eric: [00:00:01] Thank you, Jenny. And hi, everyone, and welcome to URMIA Matters. I'm your host, Eric Seaborg, vice president and higher education consultant for Alliant Insurance Services, Public Entity and Education Practice, and also a member of the URMIA Affiliates Committee. You know, recently Julie Groves from Wake Forest University and Joe Storch from Grand River Solutions provided URMIA Matters podcast listeners with insight into what to anticipate regarding Title IX and some of the expected changes. Well, today I wanted to add to that discussion by Julie and Joe by sharing with you a conversation I had a few weeks prior with law professor Peter Lake from Stetson University's College of Law on a breaking Title IX case that occurred at the time. Many of our URMIA listeners are familiar with Professor Lake as the host of Stetson’s Higher Education Law Conference held each year in Florida. However, for those of our listeners who don't know Peter, he is the Charles A. Dana chair and the director of the Center for Excellence in Higher Education Law and Policy at Stetson University's College of Law. There's so much more to Professor Lake besides being recognized internationally as an expert on higher education law. So, let me take you back and listen to our discussion and the insightful comments of Peter Lake recorded earlier.
Peter: [00:01:30] Well, hi, Eric, and it's great to be on your show. Thanks for having me today. I really do appreciate the opportunity to speak to you and your listeners. And just a little bit about me. I've been working in higher education law and policy now for the better part of 25 years. It's closing in on almost 30. I've been working at Stetson College of Law since 1990, and it wasn't shortly after that that I started getting an interest that grew into a major interest in higher ed law and policy. I direct a Center for Excellence in Higher Education Law and Policy at Stetson. Many folks know me as the Chair of Stetson’s Annual Conference on Law and Higher Education. We're the granddaddy of higher ed law and policy conferences, and I've written a few foundational works in the field and do quite a bit of commenting on national media stories. And I'm in the I'm in the mix in higher education law and policy. And recently the mix got fascinating.
Eric: [00:02:26] I cannot remember the last time things appeared to be even somewhat stable on campus, most likely because no one really anticipated a pandemic, bringing everyone to a standstill for almost two years. And since we weren't really prepared for such a catastrophic event, it appears to have thrown everything out of alignment, including our topic today, which is Title IX. Now, before we get into this article that I read in the publication, Inside Higher Education, which was actually the cause for me to track you down, give me a little bit of a history lesson on the evolution of Title IX on campus.
Peter: [00:03:01] Yeah, the short sort of, shall we say, Reader's Digest version of Title IX looks like this. There's a major debate going on in American society in the late 60s and 1970s about gender and sex equality. And we get Title VII for employment. Title IX comes in for higher education. And the government says that federal funding requires no discrimination based on sex in programs that are funded by the federal government. And at that time and this is the early seventies, what I think most people interpreted that to mean were athletic parity. Let's try to move towards athletic parity because, Eric, I go back to a time when like my high school at that era, they would fund up the, quote, boys programs and the quote, girls would get basically nothing. And Title IX really moved to start to change that. But the other feature of Title IX that got a little less play was equality and admissions to schools as well. And this is about the time that a lot of institutions move to normalize admissions for men and women and to provide equal opportunities and education opportunities. I happened to be at Harvard during a transition time when the women were no longer receiving a separate Radcliffe degree. But we're integrating fully into the so-called Harvard program, and that was a direct result of Title IX. But I think athletics and admissions would have been the two top priorities of Title IX and its inception.
Eric: [00:04:35] So here we are today, current day with a number of court cases floating around, umpteenth number of articles and papers being written on Title IX. And I come across this article, which I referenced in my introduction. It's titled “Righting an Old Wrong”, and it is written by Susan Greenberg. Susan H. Greenberg on April 7th for Inside Higher Education, the subtitle says, “Jury awards former student falsely accused of sexual misconduct, $5.3 million on defamation and civil conspiracy claims.” The case has implications for the future of Title IX, obviously. So, the Title IX investigation by this particular university began around 2015, and I wonder whether this case was even on your radar yet. I'm sure there's so much going on in Title IX. You can't keep tabs on everything. But I'd like to start really getting an idea of your thoughts on this, since you were quoted throughout this article.
Peter: [00:05:47] I was aware something was going on, but I was not directly involved in the litigation or involved specifically in it. So, I think for a lot of us, it was when it finally hit the papers that there was this verdict. It was, it wasn't a shock that something had happened. But I think the sheer size of the award and I think the message it sent certainly got people's attention.
Eric: [00:06:13] I want to mention right up front that the lawsuit was against three individuals and not the university. And the university in this particular case is Clemson University in South Carolina. The I, I really want you to Peter, talk about what was meant by your first quote, where they asked you about this and you said, and I'm quoting you, “that's a chilling award. That kind of award, if it stands and isn't remitted in some way, is very impactful on college business and insurance operations.” So, talk about that a little bit, the impact on colleges and universities.
Peter: [00:06:59] Yeah, well, this is a message verdict. I mean, it's it's a record verdict in South Carolina. And there's no question this sort of thing gets people's attention. And I think it's in some ways, it's designed to there's always some chance that on appeal, there might be some remitter of the damages that sometimes happens in very, very large defamation cases, although I'm not so sure we'll see that here. Know I'm not predicting it. I'm just saying that can happen down the road. Now, admittedly, the verdict is against individuals who participated, but that itself is impactful for our business because individuals now who are bringing complaints into the Title IX system or connected to it, parents, students, and others are going to be thinking about the fact that they can be held potentially accountable in external judicial proceedings for staggering sums of money. If a jury believes that they've engaged in defamation or civil conspiracy or even potentially retaliation or other claims. And just a footnote, Eric, the university settled previously on what we believe was a Title IX loss of undisclosed terms, etc. But, you know, I want to connect this with what happened with Oberlin just a few days before. The Oberlin defamation verdict was upheld by an intermediate appellate court. And what you're seeing is one of the biggest weeks in defamation in the history of higher education, all happening about the same time. And to me, I cannot help but walk away from this, Eric, and think higher education has to contend with the fact that we're a media defendant now, which interestingly and I didn't mention this earlier to you, but I had, that's where I came from in practice. I worked with Floyd Abrams and Cahill Gordon, and I was trained in media law. And what I'm noticing is my career is coming full circle, that we're starting to see media level events now happening on college campuses with multimillion dollar verdict potential risk factors. And you'd be, you'd be foolish if you were not a business officer or insurer to not take note of this trend, because these things usually, once they start, they start kicking downhill pretty fast.
Eric: [00:09:15] This was a real interesting article, especially the the use of defamation and civil conspiracy as claims. And I think most of our listeners really understand what defamation is. But civil conspiracy in this case, this is kind of interesting. And I wonder if you could give some insight into that in regards to what was in the verdict.
Peter: [00:09:41] Sure. Well, and the gravamen of those kinds of claims are that individuals have collaborated together in an unlawful way to deprive someone of rights or reputation or finances or even physical security. It's not the kind of claim that we typically see make it to this level in litigation. It honestly, I mean, I've seen it a few times in complaints. It's almost a throwaway account when the real issue is due process or something else. But I think people will take note of the fact that what may have been esoteric civil claims and another generation that had no real chance of success or survivability to a trial or beyond now may actually have legs in college litigation. And I would say very clearly in this situation that we now have to recognize that the watchword of the day is publish and conspire, aid, and abet. Like these are terms that we're going to be using more than ever before. Or assist, aid, abet, publish, conspire and… gosh, Eric, I'm just going to say it. 25 years ago, when a student got thrown out of school, nobody cared.
Eric: [00:10:57] Yeah, I agree. Nobody really cared at that time.
Peter: [00:11:00] I mean, you couldn't get newsworthiness on that unless it was Ted Kennedy. You needed a celebrity person really to bring to it. But the other thing I'm going to emphasize here is that the reason media law is intervening in higher education law is because we're much more interesting to the public now than we ever were before. There's so much interest in what's happening inside higher education. “What did Dumbledore do today at Hogwarts” is the mentality. We weren't used to being this interesting and when we were publishing or assisting or whatever, nobody thought there could be serious consequences. But for example, today on any given college campus, there's a parent rushing to intervene in a student discipline situation. Now, every parent in America has got to take a breath and say. I could end up a defendant in a civil conspiracy case or defamation. That would have been business as usual. Is to intervene for your child in one way or another. Now you've got to pause and think about it. And as I also said, in the inside higher ed pieces, we're publishing things and we're forced to do it. So current regulations actually require higher education to gather information, republish it. And this if these are the new rules and metrics that we're under, there's exposure for potential liability in other types of civil claims in ways that I think most risk managers had not really given thought.
Eric: [00:12:30] One of your quotes in the article says that, “higher education is going to have to have a team of lawyers on every campus.” So that takes me back to my early years in higher education, where most campuses had their legal work on retainer, or it was subcontracted out. If you work for State University, which I did in my early years when I was in H.R., I had the advantage of working with an AG, an attorney general from the state office, to help. But that was all you had. If there was a lawyer on campus, it was usually one person with direct reports to the president of the board. Now you have entire departments built around compliance. And when you talk to a risk management professional on campus, the first question out of your mouth is, “who do you report to finance or legal?” Because that makes a big difference when you talk to them. Granted, most colleges and universities now have general counsel offices that are quite sizable, but it sounds like what you're saying teams of lawyers means to me that there will be lawyers present in all the major departments.
Peter: [00:13:44] Eric, you know, this goes against self-interest to some extent, but I'm just going to say it that I train lawyers. Those lawyers go take higher ed jobs. They become the people who represent higher ed. And the current climate is the Lawyers’ Relief Act. Yeah, we're lawyers are actually moving in to take the business jobs that were once held by educators. And I will say just a word of caution to my legal brethren, and I think risk managers should take notice of this, is that this may be one of the first and clearest examples of the legal industrial complex moving into a business not just to represent it, but actually to capture it. Yeah, because we are creating the rules that are creating jobs for us. Absolutely. So, you ask me, what's the exit strategy? And I see two things on the horizon. One is that schools, particularly larger schools, will have to have modern media lawyer support to manage what's happening. Much like NBC or New York Times, they're going to have to have some level of modern media law support or, and/or we've got to go to court as an industry and fight for our rights.
Peter: [00:14:57] And I've made this point in other stuff that I'm not sure you've seen, but I talked to the Chronicle about this at one point. It used to be you could go to court and higher education and say, we're higher ed, protect me. And in fact, that's the tenor I think of some of this litigation is, you know, let us do our job. That does not work anymore. In fact, it actually puts a target on your back. So, what we're going to have to do is fight for identity rights and Citizens United. I want everybody to remember that I said this today, that if we're going to survive this, we're going to have to go to court and say we're a speaker, too. And we may actually have a special protection under the First Amendment as a higher education institution. And we're entitled to that because of our identity. And I don't see how the modern colleges survive these trends unless they get media defense privileges that are typical with modern media.
Eric: [00:15:49] I don't know. What about academic discourse? Do you see that going south or is it just a little bit inflated today because of social media?
Peter: [00:15:59] You know, in the pre-digital world, the 20th century, the AAUP, the big group that talked about academic discourse, imagine the academics as people who were very careful about how they made external utterances, that they bore responsibility and essentially set editorial standards that are charmingly quaint by today's standards. Now, the modern academic can be an influencer, and the role has shifted from a cautious speaker in a public domain with this tremendous social responsibility for restraint, as opposed to if you're going to have a meaningful academic career, you're either an influencer or you're out. And and that's happening in real time, according to editorial guidelines that are very different. Academic discourse is changing, and the industry is changing. And increasingly, you see evidence of this, particularly in the trade magazines, of going again and again to people who are well known influencers in the field, for better or worse. Meanwhile, institutions themselves, which have an identity, are struggling with what do I want my media identity to be? Do I want to be NPR and be perceived as the neutral objective source? Do I want to be red, blue, purple, or do I just want to teach the subjects and nothing else? Come to class and go home? And we aren't political at all. And one of the hardest things for any individual or corporation is to figure out who are we? Who do we want to be? What is my identity? You know, and again, I keep coming back to Harry Potter.
Peter: [00:17:34] But one of the big questions after Hogwarts falls to pieces is what is Hogwarts going forward? Like, what does it look like? What's its identity? And somebody has to rebuild that from all of the damage that's been done. But right now, political forces, Eric, are anxious to tell us who we are. I hear people say, oh, you're the marketplace of ideas. And I'm thought, well, not always in classes. I'm not marketing ideas. I have a subject to teach. And we're not having a, we're not going to the bazaar, nor are we going to tolerate the bazaar. In the other sense, we need to learn the subject. And so, this isn't a broad discourse about political dynamics. It's focused on calculus or how to present a case in a court according to civil rules. And we've got basic things to teach. So, there's an identity crisis out there. But I think the bigger thing is that the role of academics and the academy has shifted and that mid-20th century model, the Norman Rockwell version of Higher. It's charming. I remember it, I lived in it, and it's just not there anymore. That's gone.
Eric: [00:18:37] And in fact, the generation in college now would say, Who's Norman Rockwell anyway?
Peter: [00:18:42] So no, I mean, it's it's just it was it worked in a different time. You know, it used to be that the academy and the church had hegemony over publishing, disseminating and perpetuating information so you could publish, disseminate, particularly perpetuate. And now you've got phones. Everybody is Alexander Hamilton. There's no special privilege now attached to either churches or academies for that kind of a role. And so, the library is now a book museum.
Eric: [00:19:14] Yeah, your, your phone is your library.
Peter: [00:19:16] Yeah. I mean, in fact, it's a dirty little secret in legal education, the students do most of their work on their phones. They use the library for other purposes. But even library science is changing. So, the idea of the smart people gathering, anointing themselves and then controlling who gets to publish, where it's disseminated to and how it's perpetuated. Those days are also gone, and people are challenging that and saying, I can speak. And so, I think the Academy has to come to grips with the fact that in an environment where there's so much competition for speaking and publishing, there's going to be a lot of conflict that probably turns into legal dispute. We are an intimacy business. You get to know people. Only a risk management fool would, would be oblivious to the fact that when you run a business that's built on intimacy and efficacy, that you're going to have a lot of people cross the line. When they put people on a submarine, they train them on how to survive with each other for long periods of time without sexually assaulting or killing each other. And we're running into basically the same problem in higher ed that we, we gather people and smush them into spaces and then they turn on each other in various ways. And it's going to happen. And I think the hospitality industry is a little bit ahead of us on this. They went through this issue. I think there are a lot of lessons to be learned from the hospitality industry on how to manage what we call Title IX but is really just when you come right down to it, you can call it Title IX or Title VII, but it's just business gone wrong. It's people taking your brand and twisting it to something you don't want it to be. And this is, I think, the challenge for business officers and insurers and brokers is to help higher education evolve as a business, to accept the core reality that the kind of business we run brings inherent risks that will turn into things like $6 million verdicts and Title IX problems.
Eric: [00:21:11] And the very last statement in the article we referenced in our discussion today is a quote from you, actually. And it's a really nice summation of what these highly priced verdicts mean to the future of higher education. You said, “You're the clown at the dunk tank at the circus while we throw the ball. It's lose, lose, lose on any table you play.”
Peter: [00:21:39] There's a real draw that the circus for that kind of entertainment. And we have ourselves in that position. And Eric, you know, I talk about how we're in the throes of a slow-moving edge apocalypse, and I could frame it out all sorts of ways we could spend all day. But we actually have legal metrics that make it impossible to make the right decision. You have to run a Title IX court, but you don't have the protections that a court has. So, when you run the court, you're going to get sued and you're probably going to get sued by everybody because when you have a Title IX matter, you can virtually guarantee that there'll be at least one person who's very dissatisfied and, in some cases, everyone might be dissatisfied. Florida State with Jameis Winston was almost a perfect example. Know you put Supreme Court Justice Harding on the case and his decision is it's a push at the blackjack table. Everybody drew 20. So, draw again. And who's happy with that result, right? No one. The government thinks you're running a system that doesn't come to final results. The respondent is mad, the complainant is mad. And, Eric, on the not-too-distant future in title IX and watch this happen is people are going to insist that they have a Title IX right to be exonerated. In other words, they're going to go to their institution and say, I want you to run a hearing where I can get a result, that it's not that I'm not responsible, that you find that I'm innocent. I can guarantee you that's coming. And a lot of the settlements sort of make that issue dissolve into a secret settlement of some kind. But I know somebody's going to demand that they're going to say, hey, I insist if Title IX protects my rights, if I'm wrongly accused, I want a panel to say this person is innocent now. Right now, there's no such right. But watch what happens and you can't win with that. And they're going to sue. And I could reproduce this in other areas. This is just Title IX.
Eric: [00:23:26] Eye opening. So insightful as I thought it would be, and I am just so thankful you were able to come and share these insights because you're not going to get them anywhere else unless you sit down and talk with somebody who works in this field. Peter, I just appreciate this so much and you haven't changed one bit, I'll tell you, except for the ponytail, which I, I got to tell my listeners, it's, it's dynamite. I love it. Thank you for my listeners, for myself and for the people that are going to benefit from this.
Peter: [00:23:55] Eric, thank you. It's great to see you again and I hope that we'll get a chance to have further conversations down the road. My best to all your listeners and signing off from sunny Florida.
Eric: [00:24:05] And thanks to all of you for taking the time out of your day to listen to one of the experts in higher education law, Professor Peter Lake from Stetson University School of Law. Until next time, take care and make it a safe day.