What services do you provide for our institution as Special Counsel?
Special Counsel is a unique compliance solution for institutions. We offer real-time legal consulting services during investigations involving sexual misconduct, relationship violence or stalking of students. Title IX compliance has become a legal minefield. One of the most difficult components of complying with Title IX is the investigation of complaints of sexual misconduct. No two investigations are the same. A complaint may implicate a high level employee or well-known member of your student body such as the Student Body President, attorneys may get involved representing the complainant or respondent, various areas of the law may be implicated such as FERPA or Clery. Providing us as a resource to your Title IX team during the investigation not only supports the institution in complying with Title IX, but ultimately serves the larger goal of providing a safe environment for students. Some representative issues that we assist with during an investigation are whether the institution should proceed with an investigation when the complainant does not want to go forward, appropriate interim measures for a complainant, handling requests for information from a complainant or respondent, and timeliness of the institution’s response to an allegation.
How much is the fee and what does it cover?
Institutions pay an annual fee for our services. In the first year we work with your institution to familiarize ourselves with your policies, procedures and people involved in allegations and investigations of sexual misconduct. The annual fee includes unlimited access to our team, day or night. We charge an annual fee rather than a case-by-case fee at an hourly rate because we have found this allows us to have regular communication with an institution, without the fear of cost. In other words, institutions do not have to worry about an unexpected cost as a result of a need for support. In addition, given our on-going work with your institution, if a need arises that falls outside of our annual fee, we can negotiate representation at a reduced rate.
Our institution has spent a great deal of money training our Title IX team, why do we need your assistance?
Think of your Title IX Coordinator as the belt, and our team the suspenders. A Coordinator can attend the best training, and an institution can implement sound policies, but nothing can prepare a Coordinator for an investigation like real-world experience. Our team has that experience and specialized legal expertise which can help guide your Coordinator and institution through the most complex of investigations.
A Title IX Coordinator advocates for the institution regarding compliance with Title IX. Ultimately, the Coordinator must make decisions that are in the best interest of the institution, which is not always a popular position. No two cases are alike and it is rare that solutions to issues that arise are black and white. With that in mind, additional reasons to engage our services are:
Support. Sexual misconduct cases are emotional and stressful for all involved, including your Title IX Coordinator (or whomever is tasked with investigating these cases). Often the stress on these individuals is lost. These individuals are isolated, by design, to avoid a conflict of interest and to ensure they are able to make decisions that are in the best interest of the institution. While they may have colleagues at other institutions to call, they can only share information and receive advice in a limited manner due to FERPA confidentiality restrictions. Having our team available to support these individuals not only helps insure Title IX compliance in an investigation but also supports an important employee who is tasked with a very difficult job.
Legal Advice. Our services provide legal advice during an on-going investigation. This is important because our communications with your Coordinator and others is protected by the attorney-client privilege. In other words, if an investigation results in an OCR complaint or a lawsuit, the content of those communications does not have to be disclosed. As a result, Title IX Coordinators feel more comfortable seeking our assistance, which in turn provides the best possible support for the institution at large.
Compliance. The ultimate goal for an institution is to provide a safe environment for its students, and this is also the goal of the Title IX guidance that has come out from the Office of Civil Rights through Dear Colleague Letters. Title IX Coordinators wear many hats. Although they are trained in Title IX compliance, they are also handling other matters for the institution separate from that role. In addition, many times their thoughts and views may be different from their colleagues, which can prove challenging when tasked with maintaining a neutral compliance minded position. Our team is specialized in Title IX compliance, allowing us to provide timely advice and assist your Coordinator with these differing views in the midst of an investigation. In addition, Title IX crosses over many legal areas – FERPA, Clery, VAWA, to name a few. We assist in navigating this difficult landscape during an investigation.
If a matter results in an OCR complaint or litigation, will this fee cover your representation in that matter?
The annual fee for our services does not cover representation during an OCR investigation; however, it does cover our review of complex matters that have a high likelihood of resulting in an OCR complaint or litigation. When necessary, we will provide a review of an investigatory finding by your Title IX Coordinator or investigator. In addition, when different areas of the law are implicated and need analysis, we will provide that guidance as well. Should a matter turn into an OCR complaint or litigation we can certainly assist your institution with that at a negotiated rate.
We have in-house counsel/local counsel, do we need your services?
Institutions who benefit from having in-house counsel may not need our assistance. As with most positions, though, in-house counsel typically wears multiple hats because they represent the institution in all legal matters, not just Title IX matters. As a result, some in-house counsel may welcome assistance from our team who specialize in Title IX.
Title IX is a very specialized, ever-changing, area of the law. If you currently retain local counsel for legal matters, but find that your local counsel is not well-versed in this particular area of law, our services can bridge that gap. If a case ends up in an OCR complaint or litigation, we can work alongside your counsel to assist.
If our institution utilizes your service, are we guaranteed that a complainant or respondent will not file an OCR complaint or a lawsuit?
Our services do not provide a guarantee against a Title IX complaint or a lawsuit. Our service does however work hand-in-hand with your Title IX team while a matter is on-going to provide advice that will place the institution in the best position possible if such a complaint ensues.
Our institution has never had a difficult Title IX investigation, so why would we pay you for these services?
If your institution has been fortunate enough to have not encountered a complex sexual misconduct investigation, odds are you will soon. Given the statistic that twenty-percent of women will be the victim of sexual assault during college, an institution with 400 women has the potential for 80 sexual assault complaints during an academic year. This statistic does not take into account sexual assaults against males. It is impossible to predict when these matters will arise regardless of the steps an institution has taken to ensure it is providing a safe environment for all students. We have found that once an institution engages our services, the Title IX Coordinator and members of the team will regularly call us for advice, sometimes on a daily basis. The reality is that OCR has certain expectations during a Title IX investigation. The consequences for getting them wrong can be severe. Waiting to seek assistance once an investigation has commenced or even is complete is typically too late.
I have seen other services offered for Title IX support for institutions. Why not just hire those groups?
There are many great services out there for institutions in the wake of the Title IX compliance boom that began in 2011. Certainly those may be the best option for your institution. Our group is distinct in that it is led by an attorney who practiced in-house for 8 years as a system attorney, and handled these types of issues daily. She benefits from the understanding of the unique challenges that come with a University, including parent expectations, PR implications, and difficulty in collaborating among divisions, to name a few. That understanding is crucial in working with institutions as they navigate the Title IX landscape.
A very important distinction is that many of these groups provide consultants who are not attorneys. Thus, if your Title IX Coordinator or member of your TIX Team communicates with them about a case it is not protected by the attorney-client privilege. Our services are in fact legal services which allows us, in most instances, to protect all communications by the attorney-client privilege.
Our institution did not retain you through the annual service, but now we have an issue that we need help with, what do we do?
Even if your institution does not retain us through the annual service, you can certainly retain us when a difficult situation arises. Be mindful, however, that often the cost to assist you with one case is higher than the yearly fee. In addition, having an on-going relationship with your institution, and its policies and procedures, allows us to provide support in a more timely, cost-effective manner.
Our institution needs help in other areas of Title IX compliance, do you offer any other services?
Our team can assist in all manner of Title IX compliance including conducting independent investigations, policy review and drafting, and training. We can also provide legal services regarding compliance with VAWA, Clery, FERPA and other Federal regulations affecting higher education.