Expert Witnesses Admitted in Title IX Jury Trials

By: Brett A. Sokolow, J.D., President, ATIXA, Chair, TNG Consulting

A little more than ten years ago, I received what seemed like an odd request: would I be willing to serve as an expert witness in federal Title IX litigation? My perception had always been that most Title IX litigation focused on questions of law and therefore, was within the court’s purview to decide. Although I had been working in the Title IX field for nearly a decade, it seemed that there was little room for an expert opinion that wouldn’t encroach on the ultimate questions in the matter.

When I accepted that first expert role in Doe v. Sewanee, The University of the South, I started to see how expert witnesses might become more commonplace in Title IX litigation. Sewanee included a negligence claim in addition to the Title IX causes of action, as many such cases now do. That allowed me to testify to the standard of care, laying the foundation for what is still the only federal jury verdict on such a case. I could not then foresee that I’d become involved in 35 more Title IX lawsuits over the years, including both defense and plaintiff opinions, and how an expert opinion can be essential to leverage in mediation, or for achieving or repelling that all-important motion to dismiss or summary judgment.

Another lesson has been about using an attorney as an expert. At first, trial lawyers seemed leery of considering the lawyer-as-expert retention, but then recognized that most of us who are deeply immersed in Title IX work are experts who happen to be lawyers, not experts because we are lawyers. And in court, we’re not functioning as legal representatives, of course. The goal of the expert is to help the judge and jury understand what the standard of care is and what the industry customs are. This standard of care analysis has proven to be as salient to negligence claims as it is to Title IX-based causes of action, though in Title IX, courts tend to refer to industry standards rather than the standard of care.

It’s not an expert’s role to opine that a response was deliberately indifferent under Title IX (that is a question of law), but to help the court understand what responses are within the range of unreasonableness and which would satisfy the standard of care, and why. It’s not an expert’s role to opine that a decision was erroneous, but to explain procedures or training commonly used to minimize the risk of error. In Title IX cases, it can be a tightrope walk to explain applicable standards without opining on the ultimate questions that must be decided by the jury, and judges vary in how much leeway they will grant to experts.

In some ways, having a law background makes lawyers-as-experts well-suited to the Title IX expert witness role but the most important quality is the ability to teach a judge or jury about complex processes in an approachable way, much like we do every day as consultants for schools and colleges across the country. As a matter of fact, most of the experts to have survived Daubert challenges on Title IX claims have been attorneys, including my TNG colleague Tanyka Barber in Jane Doe v. Florida A&M University in November 2020 (since settled) and my fellow TNG partner Saundra Schuster in Roohbakhsh v. Board of Trustees of Nebraska State Colleges in October of 2019 (also since settled).

The court wrote … “Schuster is qualified to testify as an expert on industry standards for Title IX training, compliance, investigations, and responses, as well as about the history and purposes of Title IX. Schuster’s opinion will help the trier of fact determine if the College’s responses and investigation comported with industry standards, and her opinion as to that issue is based on her education and experience as a college administrator and trainer.”

In March of 2021, a Title IX erroneous outcome claim against Coastal Carolina University went to a jury trial in federal court in Myrtle Beach, SC. Experts were permitted to testify on both sides, and the jury rendered a verdict for the defendant University. Acting on pre-trial motions, the judge narrowed the topics the experts could address, but allowed testimony as to industry standards.

TNG experts, myself included, have since served in, or are currently serving in, 100+ cases involving school and college liability, including some of the most important precedent state and federal cases in the field. See below for a snapshot of our work:

Visit this link to view the full infographic and our team of expert consultants.

Another role for the Title IX expert is a litigation consultant, working with clients to develop the case strategy. That challenge often includes identifying industry-standard customs and practices in an industry in which a collected set of written standards does not exist, thus the standards of acceptable practice must be extrapolated from multiple authoritative sources.

Many Title IX experts seem to struggle with distinguishing between the “floor” of industry standards, and the “ceiling” of best practices, which are aspirational. The plaintiffs would like the court to believe the ceiling is required, and the defense argues that the floor is all that is necessary. The baseline of what is an accepted standard or not comes from a consensus of the field that can be complex to discern, but the floor is all that can be legally required.

I was deposed recently in a state court negligence action, and the opposing counsel asked me if I thought something was an industry-standard just because I said it was. I replied that my unique vantage point on the field allows me to understand industry customs and standards in a way that few can. I serve as general counsel to 70+ schools and colleges, I oversee a team of 40 professional investigators, I represent students in the disciplinary process, my firm serves over 1,200 education clients a year, and as President of ATIXA, the industry association with 6,500 members, I interact with dozens of Title IX administrators every day and have trained and certified 35,000 professionals in the field. So, when I recognize that something is a widely adopted industry standard or opine on whether something is consistent with the standard of care, it’s because my sense of the pulse of the field is drawn from all of these disparate sources of industry customs and practices.

When breach of contract claims are also pled, Title IX experts have to be cautious about staying in their lane, and won’t often be qualified to opine on whether a contract has been breached. Some courts might permit experts to testify about technical terms of the contract, as I was permitted to do in the Sewanee case. The same is true for causation, which is often a question for the court that is outside the scope of Title IX expert testimony. Especially where due process and/or negligence claims are often alleged side-by-side with Title IX claims, the right expert can make all the difference.