How federal regulations are making college ‘risk management’ lawyers rich

Robert Shibley Senior Vice President, FIRE
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In our increasingly regulated society, seemingly small changes in government regulations can imperil some businesses and enrich others. Here’s a story about how a 19-page letter from the Department of Education is making a small number of people a large amount of money.

A recent article in Philadelphia magazine by reporter Sandy Hingston has provided a rare glimpse into the college “risk management” industry and one of its leaders, a Malvern, Pennsylvania, lawyer by the name of Brett Sokolow. The founder of the National Center for Higher Education Risk Management (NCHERM) and several other higher education-focused groups, Sokolow and his group are hired as consultants by many schools seeking advice on how to limit their liability in lawsuits and reduce the risk that the federal Department of Education’s Office for Civil Rights (OCR) will yank a school’s federal funding. With as much as half a billion dollars a year on the line for schools like Yale or Berkeley, colleges pay dearly for this advice.

NCHERM boasts more than 800 college and university clients. It also puts on training seminars and conferences for the administrators who run those colleges. This is a very profitable business. As the Philadelphia magazine article pointed out, “In August, NCHERM hosted a seminar for college administrators on the role of the newly required Title IX coordinator. One hundred seventy people attended, at $2,500 a head. Gross revenue: $425,000.” That’s from a single four-day conference (the price doesn’t include meals, travel or lodging), and they’re doing it again in October. Attendance nets participants a “Title IX Coordinator Certification,” which is convenient for meeting the government’s vague requirement that administrators be trained in some way.

October’s conference lists five “faculty” members, three of whom are the partners of NCHERM. If attendance is the same as last time, that’s $85,000 per person. Even after subtracting overhead, that’s not too shabby for four days’ work. But why are colleges and administrators willing to pay so much money for this training?

The answer is found in the increasingly Byzantine laws and regulations that govern higher ed. Indeed, new regulations issued by OCR this April massively increased the risks for colleges dedicated to traditional ideals of American justice (such as presuming innocence before guilt is proven) and the students that attend them. The federal government now mandates that campuses use a “preponderance of the evidence” (roughly a 50.01% or “more likely than not” level of certainty) standard for determining guilt in sexual misconduct cases, and that both sides must be able to appeal a panel’s verdict, even if the accused is found not guilty. Most of the nation’s top schools provided much better protections for the accused before these regulations arrived, and college lawyers must be cursing the arrival of even more complicated regulations to wrestle with.

One would think “risk management” lawyers would be opposed to increasing the risks their clients face, but one would be wrong. As the Philadelphia article reports about Sokolow:

For more than a decade, the genial 39-year-old has been warning colleges and universities — he’s of counsel to more than 20, and has advised thousands — that the day was coming when courts would allow Title IX claims against them for sexual assaults. “The ‘Dear Colleague’ letter [that contained the new federal regulations] was one of the most important moments of my professional life,” he says.

Sokolow’s interest in campus safety stems from his sophomore year at the College of William & Mary, when he began dating a fellow student who’d been sexually assaulted: “She became an activist, and I became one as well.” He thought then that Title IX should have provided her redress, but “everybody said, ‘Title IX is just athletics.’”

Do Sokolow’s clients know that the eventuality he has been warning schools about is the very one he says he has been working as an “activist” to bring about? Activist or not, Sokolow and NCHERM are wasting no time in taking advantage of the new regulations to bring in some new money. On August 15, he formed ATIXA, the Association of Title IX Administrators. It costs $599 per person to join (or $2,500 per campus), and it’s cosponsoring the $2,500-per-head October NCHERM seminar. Brett Sokolow is its executive director and it has the same address as NCHERM.

NCHERM is also bankrolling a new group called SCOPE, the School and College Organization for Prevention Educators, which, according to its website, “embraces an ecological, inclusive, holistic, feminist, public health, evidence-based and multi-disciplinary vision of prevention.” It’s based in another Philadelphia suburb and includes all three NCHERM partners on its board, and you pay to join that too.

And then there’s NaBITA, the National Behavioral Intervention Team Association, another organization that 1.) you pay to join ($169 per year); 2.) is based at the same address as NCHERM and ATIXA; 3.) is run by the partners of NCHERM; and 4.) runs expensive conferences you pay to attend. (Although, for the 2010 conference, you just went ahead and made your check out to NCHERM.) It also has “partners” (i.e., advertisers) that pay a fee to be featured on its website.

It’s an open question whether the federal government’s new regulations will do anything to reduce sexual assault on campus; OCR’s move is at least as likely to produce more false findings of guilt as it is to help colleges find more of the right people guilty. But it’s a dead certainty that the new regulations are making a small number of lawyers a huge amount of money — money that you end up paying through your tuition and tax dollars.

Robert Shibley is the senior vice president of FIRE.