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NWA editorial: Who's got the power?

UA defense provides healthy dose of hypocrisy

Nobody, as far as we know, has ever gotten tossed out of a courtroom for the practice of hypocrisy.

In defense of a client, every line of reasoning is fair game. The point, in part, is to introduce to the court any and all arguments that stand a better than even chance of creating fissures in the case presented by the plaintiff. Whittle away at enough of the claims and suddenly a case that seemed open-and-shut begins to look like it will collapse under its own weight.

What’s the point?

Sovereign immunity? It seems the University of Arkansas and the state want to change the rules amid a challenge involving Title IX protections.

So, sure, we expect to see a lot from lawyers in representing their clients. By that, we mean we expect very little to be off limits. But when those arguments reveal a heavy dose of hypocrisy, it's worth pointing out.

A federal judge recently rejected a move by the University of Arkansas, Fayetteville, to have a federal lawsuit by a former student tossed. That student claims the university acted with "deliberate indifference" when she reported being raped by another student in 2014.

Title IX is a federal law that prohibits any form of discrimination based on a person's gender. The university stands accused of not living up to its responsibilities under this portion of federal law. Why is the university subject to the expectations of Title IX? Because any institution that accepts federal funding -- including financial assistance programs used by students -- becomes subject to the requirements. About 40 percent of University of Arkansas students receive federal loans, according to the U.S. Department of Education.

University of Arkansas officials have spoken of a strong commitment to the purposes of Title IX, but here's the institution's argument in court: The college has sovereign immunity from monetary damages. Attorney General Leslie Rutledge joined in the lawsuit, urging rejection of the federal government's authority over the school.

To our knowledge, nobody at the UA offered to give back all the federal funding from which it has benefited.

A federal judge, after hearing UA's stance, plainly wrote: "By accepting federal funds, the university in fact consented to suits for compensatory damages for violation of Title IX."

We don't pretend to know whether the former student has a case against the UA, but the legal argument made to diminish the student's legal standing rang hollow after the UA has gladly accepted untold millions of dollars in federal funding every year. A UA spokesman said the school continues to examine constitutional issues of immunity.

Maybe UA law students should look into how contracts have meaning, too.

Commentary on 05/15/2018

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