CBA Record January 2018

Y O U N G L A W Y E R S J O U R N A L

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controversial than the “Dear Colleague Letter” (“DCL”), which was promulgated by the Obama administration in 2011. The DCL required educational institu- tions to adopt, publish, and follow very specific adjudicative guidelines to resolve complaints of sexual harassment brought by students or employees of the institution. While many lauded the DCL as a major step toward protecting the dignity of vic- tims, others saw the guidelines as an unac- ceptable blow to the due process rights of those who are accused of sexual harassment in the educational setting. Most notably, the DCL eliminated the respondent’s right to cross examine the complainant, lowered the standard of proof used in informal adjudications to a “preponderance of the evidence” standard, and granted complain- ants the right to appeal a decision favorable to the respondent. After many educational institutions experienced difficulty in effectively imple- menting the DCL’s strictures, the Obama administration in 2015 released another significant guidance document, titled “Questions and Answers on Title IX and Sexual Violence” (“Q&A”). Yet, on September 22, 2017, the Trump admin- istration rescinded the DCL and Q&A, arguing that individual institutions should be afforded more choice in adjudicating complaints of sexual harassment in their educational programs. On October 24, 2017, Loyola Uni- versity Chicago’s annual Philip H. Corboy Lecture in Advocacy addressed this issue in great detail. The presentation, titled “The Rise of Title IX Litigation: Investigation, Adjudication, and Remediation of Sexual Violence on Campus,” brought together a distinguished panel of lawyers with unique Title IX experiences. According to Profes- sor Katherine Baker of IIT Chicago-Kent College of Law, theTrump administration’s rescission of the DCL and Q&A removes protections that were designed to address the gross underreporting of sexual harass- ment on college campuses. Jim Navarre of Mossing & Navarre, LLC, who represents Title IX plaintiffs, stated that victims of sexual assault are often hesitant to come

instantly to everything. But it’s not a best practice and, if you batch your email time, you’ll be amazed at how much it changes your day. Finally, create mind space. No, this isn’t a yoga thing—although I have some friends who have told me that yoga helps, too. Rather, reduce the number of decisions you make in your life and thereby avoid cluttering it with unnecessary minutiae and choices. Spend five minutes each morning deciding which of your three dozen ties to wear with that suit? Throw out most of your ties, keep a few of the best, and save yourself five minutes each morning. There are hundreds of other examples, but you get the idea. Streamline things. Live simply, but well. forward because of the fear of cross-exam- ination and the fear that their complaint will not be successful. Both found the Trump administration’s actions to be a step backward for addressing these problems. According to Tim Love, an associate dean at Loyola University Chicago, and Scott Warner, who represents educational institutions as a partner at Franczek Rade- let PC, most colleges and universities endeavor to vigorously address the issue of sexual harassment. Love and Warner said schools are used to uncertainty when it comes to Title IX and that most institu- tions are unlikely to abandon the internal policies that were created in response to the DCL and the Q&A. This type of institutional response will likely be common in Illinois, where the Preventing Sexual Violence in Higher Edu- cation Act (110 ILCS 155/1, et seq.) may fill in some of the gaps that were created by theTrump administration’s rescission of the DCL and the Q&A. As explained by the law’s architect, Cara Hendrickson of the Office of the Illinois Attorney General, the Act prohibits the direct cross-examination of a complainant and mandates a “prepon- derance of the evidence” standard of proof.

For most of us, striking the perfect bal- ance between legal work, business genera- tion and our personal lives will always be more of a goal than an accomplishment, but there are little things we can do each day to make that balance healthier and to regain control. I’ve had the opportunity to implement some version of all these strategies and I can tell you from personal experience that they work. These strategies helped me gain some measure of control over my work days and I—and my cli- ents—have been better for it. I hope they help you, too. Nonetheless, it is increasingly important for attorneys representing educational institutions to be aware of the shifting land- scape of Title IX law. As a political issue, sexual harassment is receiving more atten- tion than ever as of late, and educational institutions that do not pay close attention to the shifting tides risk losing federal funding that is conditioned upon Title IX compliance. Therefore, the counselors and litigators that represent these institutions must similarly monitor changes in the law and adapt accordingly. Michael Kujawa is a partner and trial attor- ney at Schain, Banks, Kenny & Schwartz, Ltd. who concentrates his practice on defend- ing the interests of municipalities, school districts, park districts, police and fire depart- ments, railroads, and commercial entities. Jonathon Sommerfeld is an associate attorney at Schain, Banks, Kenny & Schwartz, Ltd. who concentrates his practice on defending the interests of municipal and commercial entities in civil litigation.

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