Away at school

Andrew Miltenberg spent his morning on the phone with a Princeton University father. His son had been accused of sexual assault—wrongly, he believed—and was the respondent in a Title IX matter on campus.

The hearing was coming up, and the father was concerned: What if the Title IX panel, made up of school faculty, didn’t believe his son? What if his side of the story wasn’t really heard? If he’s not heard, and if he gets sanctioned, what happens to med school?

It was a typical call for the Bergen County-based lawyer, whose Manhattan office handles around 75 of these cases at a time. But this isn’t a typical time, students across the state and country are off campus due to the COVID-19 health crisis, and these Title IX hearings are happening the same way as every other meeting: Zoom or conference call.

“For someone who is already accused, to not be able to be in person and connect with the panel, and for the panel to not be able to seize upon certain credibility markers—nonverbal cues, things we pick up speaking to someone that help us determine if someone is or isn’t telling the truth—isn’t fair,” Miltenberg said. “Credibility is so critical, because the right to openly confront your accuser is so critical, and to hear what an accuser says about you in person, and the ability to face the person making decisions is so critical.”

Miltenberg has handled hearings at colleges across New Jersey and around the country. By the end of this week, he’ll have attended 20 Zoom meetings between investigative interviews and the hearings themselves, from the University of Maine to Providence College to Virginia Polytechnic. For many of the hearings going on now, the complainant and all the complainant’s witnesses were interviewed in person before school closed, and the respondent and respondent’s witnesses are being interviewed by phone or video chat.

“Have you been on a seven or eight person Zoom call? Like any conference call, someone’s speaking, their voice gets cut off, someone else interrupts,” Miltenberg said. “It’s much harder than an in-person conversation. Right now, there’s an unlevel playing field. If it was your kid, you’d want the benefit from every possible tool and inferences we have as human beings.”

New Title IX regulations are expected to be announced any day now. The rules reportedly will raise the standard of evidence or allow schools to make that change on their own, and they may allow some type of real-time cross examination, Miltenberg said.

“The new regulations will increase the opportunity for schools to engage in an informal resolution, meaning the parties agreed between themselves as to how they’re going to deal with this going forward, as opposed to the school dictating it. Right now, if the complaint involves penetration of any sort, informal resolution isn’t available, meaning there has to be a hearing. There’s also some thought that if someone makes a complaint and wants to withdraw it, they should be allowed to withdraw it,”

Miltenberg said. “Right now, once you make a complaint, you lose the ability to stop the process, so you see situations where a couple [gets back together], where the complainant wants to stop the process, or they recant, or they say ‘wait I didn’t mean for all this to happen to them.’ But they take on a life of their own once the school gets involved.”

The new regulations will reportedly make sanctions more restorative than punitive, opting away from expulsion and toward criteria like community service and mandated therapy.

“You can turn these events into teachable moments. That’s not to say – I have two daughters, one’s in college, and there are rapes that happen. There are sexual assaults that happen. This is not to say that those should not be dealt with aggressively. Part of that is making sure they’re dealt with fairly and that the process and policy is equitable and transparent,” Miltenberg said.

“There’s two sides of the issue. With the separation of everyone it sort of moots the issue with everyone initially, but the fact that there are more virtual campuses, it doesn’t mean they can forever hold this in abeyance,” said Greenbaum, Rowe, Smith & Davis LLP Partner Jemi Goulian Lucey, who represents universities sued by victims of sexual violence in Title IX cases. “From the complainant’s standpoint, I think there’s some issue of finality, to have this behind them. I don’t think anybody wants this to go out for six months or a year and have to drum it all back up again. There’s a lot of interests considered here, making sure there’s a stable university environment and that on campus, whether in person or virtually, they feel safe. And there’s the rights of the complainant and respondent.”

Originally, Miltenberg said, some schools were open to holding off on Title IX hearings for a handful of weeks until COVID-19 subsided later this spring. But now, as COVID-19 campus closures could extend well beyond the current semester and Title IX offices remain open, schools like Syracuse University in New York are deciding to go forward with them.

“I think to myself, it’s a self-perpetuating job for Title IX offices. No one needs a Title IX office if you’re not having hearings. Most schools when this started six or seven years ago had one or two deans that did conduct violations. Now most schools, even smaller ones, have several dedicated in-house lawyers and in some cases a dozen in-house investigators,” Miltenberg said. “Columbia University has like 30 lawyers and 40 investigators that deal with these issues now. This has become a cottage industry. Of course, I’ve benefited from it, but I’m asking not to be [benefitting from it] right now.”

Miltenberg represented Paul Nungesser, the respondent in the widely publicized “Mattress Girl” case. Emma Sulkowicz accused Nungesser of rape in 2013, and after Nungesser was found not responsible by a Columbia University inquiry, Sulkowicz produced a work of performance art called Mattress Performance (Carry That Weight) as her senior thesis in protest of what she described as the university’s mishandling of her sexual assault complaint. The protest involved Sulkowicz carrying a mattress around on campus to represent the burden rape victims carry in day-to-day life.

As Lucey sees it, from the perspective of college and universities, to the extent that the parties agree to allow for the matter to be held in abeyance until there is a return to campus, it would appear that holding off on the hearings is the preferred course of action.

“Unless the parties don’t agree or unless there is some time-sensitive issue that must be attended to, and that the determination of the Title IX hearing [affects] that step,” Lucey said. “If the respondent is a graduating senior so there’s a need to have the matter resolved so that the determination can be made as to whether or not they can graduate, that could be a matter where the situation would have to go forward toward a hearing.”

Lucey noted that litigators such as herself are having to deal with those issues now as well, where all parties involved must agree to treat the online meeting as a live, in-person hearing.

“You make best efforts in a tough situation,” she said.

Gabrielle Saulsbery

Albany, N.Y. native Gabrielle Saulsbery is a staff writer for NJBIZ and the newest thing in New Jersey. You can contact her at g

Callisto reverses decision to delete account data following user concerns

By Esha Dhawan on April 17, 2020

Callisto Campus, a tool available for Stanford students to document and report sexual and relationship violence, will be discontinued on June 30 and replaced with another version of the program.

Callisto is a third-party online platform that allows students to document and time stamp experiences with unwanted sexual conduct. If a student is not ready to submit a report to the University, their report is saved in the system, with the option for it to be submitted later.

“One of the unique features about Callisto was the ability to have your report be submitted to the Title IX office in the event that the perpetrator that you had listed also matched the perpetrator another survivor listed,” wrote former ASSU President Shanta Katipamula ’19 M.S. ’20 in an email to The Daily. While chair of the Undergraduate Senate, Katipamula also authored the bill proposing the three-year pilot of Callisto in 2016.

While Callisto Campus will be discontinued, this year Callisto will launch a new product that connects victims of sexual misconduct to attorneys who help them understand actions they can take, according to the Callisto website. Stanford students will have free access to this platform, but the University is still deciding whether to initiate a new partnership with Callisto, according to ASSU Co-Director of Sexual Violence Prevention Krithika Iyer ’21.

“We are investigating what a potential partnership would entail, and whether a new Stanford-Callisto partnership would be beneficial for survivors,” Iyer wrote. “We will be seeking input from the student community.”
“Callisto is transitioning some of its services over the summer and it will no longer be based on a partnership model with individual schools,” wrote Senior Associate Vice Provost for Institutional Equity and Access Lauren Schoenthaler in a statement to The Daily.

An update on the Callisto Campus website initially read that the service would be replaced with a new version of Callisto and that all account data would be deleted, quickly leading some to raise concerns.

“This would undermine the ability of the platform to identify repeat perpetrators on campus,” Iyer wrote.
Stanford Law professor Michele Dauber was one of the individuals who reached out to Callisto to share her concerns. One of her concerns was Callisto’s inability to inform users that their data would be deleted.

“Because there are no records kept of who the users are, Callisto doesn’t stay in contact with their end-users,” Dauber said. “In other words, if you were someone who had made such a report, you wouldn’t get an email from Callisto saying, ‘we’re changing our business model.’”

She spoke to the trauma that this could create for survivors who had placed their trust in the platform.

“They had trusted this entity because it was created by survivors and then found that all of their information had been deleted when they didn’t know it,” she said.

Callisto has since reversed its decision to delete the data.

“With respect to the feedback we have received from our partners and the extraordinary challenges posed by COVID-19, we are not deleting this data,” wrote interim Callisto CEO Tina Robilotto in an email to The Daily. “We will maintain the record data even after Callisto Campus is decommissioned and the new product is launched to our partner campuses.”

“While I understand that they’ve now understood the error of this decision and are no longer going to be deleting records, the initial decision to do so was poorly communicated and breached the trust survivors had placed in their system,” wrote Katipamula.

Dauber complimented Callisto’s “willingness to admit a mistake and reverse it.”

Schoenthaler said that Callisto had informed the University on Thursday morning that it no longer had plans to delete the records, calling it “great news.”

Dauber urged students to download reports they had made to Callisto to ensure they are preserved, and Iyer made a similar recommendation.

“While Callisto has committed to not deleting any records, the ASSU recommends that students download their report if they want to be absolutely sure that they retain a permanent copy,” Iyer said.

Despite Callisto Campus’s unique function, Iyer told The Daily that the platform has not been sufficiently advertised to students and that she hopes to increase awareness about it in following years.

“Data from the AAU survey indicate that only 9% of Stanford students are aware that Callisto Campus is an available resource,” she said. Iyer also reported efforts to ensure that Callisto is included in New Student Orientation information sessions next fall.

Dauber called the episode a “cautionary tale” about Silicon Valley’s tendency to rely on technology to solve problems.

“I think Callisto came from the best of intentions but also was riding that wave of easy assumptions about technical fixes for a very hard social problem,” she said. “There is no shortcut, in my opinion, to fixing the problem of campus sexual assault.”

This article has been updated to include a clarification from Iyer on the tool to be included in New Student Orientation information sessions.

Contact Esha Dhawan at edhawan ‘at’ stanford.edu. 

Under Title IX, colleges have an obligation to address sexual assault on campus.

Colleges have a corresponding obligation to treat all students fairly. Unfortunately, many colleges have created secret sex tribunals that stack the deck against accused students in order to increase discipline rates.

The tribunals often dispense with the presumption of innocence; deny students the right to see the specific charges or evidence against them; and deny accused students the opportunity to present evidence that might demonstrate consent, such as text messages.

Such procedures violate basic standards of fairness and have led to many miscarriages of justice.

Hundreds of students have successfully sued their colleges for unfair treatment.

But few colleges have altered their policies in response to such rulings.

It’s time for the Department of Education to issue regulations requiring schools to adopt fair and unbiased procedures.

Because without due process, there can be no justice.