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Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

Contact: Rebecca Stewart
Telephone: 513-479-3335
Email: info@saveservices.org

Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

WASHINGTON / July 28, 2020 – SAVE recently released a study that shows black male students face a type of “double jeopardy” by virtue of being male and black. (1) Analyses show although black male students are far outnumbered on college campuses, they are four times more likely than white students to file lawsuits alleging their rights were violated in Title IX proceedings (2), and at one university OCR investigated for racial discrimination, black male students were accused of 50% of the sexual violence reported to the university yet they comprised only 4.2% of the student population. (3)

In 2015, Harvard Law Professor Janet Halley raised an alarm to the U.S. Senate HELP committee that, “the rate of complaints and sanctions against male students of color is unreasonably high.” (4) She advised school administrators to, “not only to secure sex equality but also to be on the lookout for racial bias and racially disproportionate impact and for discrimination on the basis of sexual orientation and gender identity – not only against complainants but also against the accused.” (5)

Her powerful words were ignored. Over the past 5 years numerous black males have been caught up in campus Title IX proceedings. Their lawsuits often claim a lack of due process in the procedures.

Grant Neal, a black student athlete, was suspended by Colorado State University – Pueblo for a rape his white partner denied ever happened. (6) Two black males students accused of sexually assaulting a fellow student recently settled a lawsuit against University of Findlay for racial, gender and ethnic discrimination. (7) Nikki Yovino was sentenced to a year in prison for making false rape accusations against two black Sacred Heart University football players whose lives were ruined by her accusations. (8) These are just a few examples.

Wheaton College in suburban Chicago, a major stop along the Underground Railroad, recently dismissed Chaplain Tim Blackmon, its first nonwhite chaplain in its 155-year history. Blackmon claims Wheaton’s Title IX office failed to investigate a previous Title IX complaint against him in a “clear misuse of the Title IX investigative process,” and he was “completely blind-sided by this Title IX investigation.” Blackmon’s attorney believes the professor’s race heavily factored into his firing, and that Wheaton was looking for an excuse to sever its relationship with its first African American chaplain and return to being a predominantly white educational institution. (9)

The impact to black male students and faculty could be even greater than any data or media reports imply since only those who can afford a costly litigation file lawsuits and make the news. More data is needed, but anecdotally black males are disproportionately harmed in campus Title IX proceedings.

SAVE recently spoke with Republican and Democrat offices in the House and Senate regarding this issue. Virtually all staffers agreed members of Congress are concerned about harm to black students and supportive of ways to offer protections to all students, including those of color.

The new Title IX regulation offers necessary due process protections that black students need. By complying with the regulation, college administrators will protect the rights of all students and address the serious problem that black men are accused and punished at unreasonably high rates. At a time when activists on college campuses are clamoring that Black Lives Matter, college administrators should assure they are doing everything they can to help their black students.

Citations:

  1. http://www.saveservices.org/2020/07/why-are-some-members-of-congress-opposing-due-process-protections-for-black-male-students/
  2. https://www.titleixforall.com/wp-content/uploads/2020/07/Plaintiff-Demographics-by-Race-and-Sex-Title-IX-Lawsuits-2020-7-6.pdf
  3. https://reason.com/2017/09/14/we-need-to-talk-about-black-students-bei/
  4. https://www.govinfo.gov/content/pkg/CHRG-114shrg95801/pdf/CHRG-114shrg95801.pdf
  5. https://harvardlawreview.org/2015/02/trading-the-megaphone-for-the-gavel-in-title-ix-enforcement-2/
  6. https://www.thecollegefix.com/athlete-accused-rape-colorado-state-not-sex-partner-getting-paid-drop-lawsuit/
  7. https://pulse.findlay.edu/2019/around-campus/university-of-findlay-settles-sexual-assault-case/
  8. https://www.ctpost.com/news/article/Yovino-sentenced-to-1-year-in-false-rape-case-13177363.php
  9. http://www.saveservices.org/2020/07/black-immigrant-chaplain-claims-christian-college-used-bogus-title-ix-investigation-to-fire-hi

 

SAVE is leading the policy movement for fairness and due process on campus: http://www.saveservices.org/

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#MeToo Campus Civil Rights Discrimination Due Process False Allegations Free Speech Investigations Office for Civil Rights Sexual Harassment

Black Immigrant Chaplain Claims Christian College Used Bogus Title IX Investigation to Fire Him

‘From the outset … race was very much at issue’

A professor’s race heavily factored into his firing on the grounds of making racially and sexually insensitive comments, according to his attorney.

Wheaton College, known informally as the Harvard of evangelical colleges, publicly announced the dismissal of Chaplain Tim Blackmon earlier this month, more than a month after his firing.

The 50-year-old black immigrant from the Netherlands has since vigorously disputed the allegations against him, telling the Chicago Tribune that “they are a complete misconstrual of the comments” he made.

President Philip Ryken justified the college’s firing of Blackmon by publicly accusing him of several violations Wheaton learned about last fall. He had “repeatedly used an ethnic slur” to refer to an Asian employee and suggested that a female staff member sit on his lap during a training session for sexual harassment, according to Wheaton’s statement.

The black chaplain also circulated a meme to employees about masturbation and “arranged” to have the book “The Complete Idiot’s Guide to the Kama Sutra” placed on a female staff member’s desk, the college claimed.

Wheaton claimed that Blackmon “admitted to certain allegations, which is patently untrue,” his attorney Andrew Miltenberg told The College Fix in an email. The ex-chaplain “continues to refute” both the allegations and the context Wheaton applied to them.

“From the outset, Chapl[a]in Blackmon’s race was very much at issue,” contrary to Wheaton’s race-neutral portrayal of the allegations, Miltenberg said.

Citing Wheaton’s allegedly poor record with racial and ethnic diversity, “especially with the African American community,” the attorney said that Blackmon has been treated far worse than his white colleagues.

Pressure to conform with the prevailing views of the #MeToo movement and the controversies surrounding Title IX investigations resulted in an overreaction from the college, the attorney added.

Ultimately, Wheaton chose to oust Blackmon so that it could maintain the mantle of being an “ethnically diverse” college all the while “return[ing] to its roots – that being a primarily white educational institution,” Miltenberg alleged. Yet the fired employee and his attorney have not decided whether to take legal action yet.

When asked to specify some of the college’s allegations about Blackmon – including the exact racial slur – beyond its curt statement, Director of Marketing Joseph Moore stated: “Wheaton College is not providing further comment.”

That supposed slur, Blackmon told a blogger last week, stemmed from an “inside joke” about the song “Black and Yellow” by the rapper Wiz Khalifa and its relevance to working in a “predominantly white institution.”

Theological articles he shared were ‘ideologically problematic’ for accuser

Wheaton’s internal statement to its community, which Moore provided and which preceded Blackmon’s response, made clear that the college did not find that he engaged in “sexually immoral relationships or physical sexual misconduct.” Rather, its investigation “revealed conduct inconsistent with Wheaton’s policies and commitments.”

Moore did not not provide The Fix with the specific policies and commitments purportedly breached by Blackmon, however.

“To be clear, I was completely blind-sided by this Title IX investigation,” Blackmon said via his attorney in response to Wheaton’s statement.

“I recently learned this was the second time this individual filed a Title IX against me,” the first one occurring in 2017 after Blackmon had “shared five theological articles that the complainant [accuser] deemed ideologically problematic.” (He doesn’t give a more specific description of the accuser; Wheaton’s language suggests at least two women complained.)

Wheaton’s Title IX office didn’t investigate at the time, “as it was a clear misuse of the Title IX investigative process,” the chaplain continued. But in the most recent complaint, he said that “several of my comments have been taken completely out of their factual and, in some cases, religious context.”

He emphasized that no one accused him of “flirtation, inappropriate relationships, sexual misconduct or any sexual action towards anyone,” and neither the accuser nor “any witness, communicate[d] offense or discomfort.”

While it left out his race when justifying his firing, Wheaton emphasized Blackmon’s race when hiring him five years ago as the first nonwhite chaplain in its 155-year history.

Rodney Sisco, director of the Office of Multicultural Development, told The Wheaton Record: “I think change is change, and change is always difficult. Chaplain Blackmon is going to be seen differently.”

While Sisco was personally excited to have a “person of color leading the chaplain’s office,” he suspected that some community members would be “a little worried, asking, ‘Have we made some sort of strange mistake?’” He concluded by saying: “I think there will be some folks who push against the college.”

At the time, only 2.3 percent of the student body was comprised of African Americans. The most recent figures from 2017 put it at 3.03 percent––its white population is at 70.8 percent. (Ranking service College Factual says Wheaton has more “non-resident alien” students than African Americans.) This is at a college that was founded by evangelical abolitionists in 1860 and was a major stop along the Underground Railroad.

“Wheaton has failed in its attempt, if any were even made, to achieve truly measurable and transformative cultural diversity,” Miltenberg, who has represented hundreds of college students accused of sexual misconduct, told The Fix.

‘The Complete Idiot’s Guide to the Kama Sutra’ was a regifted ‘gag’

In a separate public statement, the attorney alleged that Wheaton administrators “are now publicly smearing and defaming my client in the media by using out of context statements and false accusations.”

Contrary to President Ryken’s claim, Blackmon “never asked his secretary to sit on his lap during a sexual harassment training,” and “never harassed anyone, sexually or racially,” according to Miltenberg. The college simply “weaponized the Title IX process to get rid of someone whose words and ideas didn’t always conform to their views.”

The lap allegation, Blackmon told The Roys Report blog last week, stemmed from his critical comments about “the mandatory (but rather patronizing) sexual harassment training video” he was required to watch when starting at Wheaton in September 2015.

He said he told the accuser: “Come on, it’s not like I don’t know what sexual harassment is. It’s not like I’m asking my secretary to sit on my lap and take the training for me.”

The context for another allegation, about his comments to a newly married female employee, was the fact that her “brand-new husband had been pulling all-nighters for grad-school,” Blackmon continued:

As a way of celebrating their newly wedded bliss I said, “Maybe you should surprise him and pay him a conjugal visit.” As to the conjugal-visit comment, I was genuinely trying to commiserate with her about the challenges of graduate school and newlyweds.

Regarding the incident involving “The Complete Idiot’s Guide to the Kama Sutra,” Miltenberg told The Fix that Blackmon “received the book from a former parishioner.”

That person’s wife wrote about the incident in a comment on a blog post on the Blackmon controversy: “I left the book on Tim’s desk. During our annual Church bazar [sic] I found the book in the donated items as we set up.” She thought that it would be “ironic to put the book on Tim’s desk.”

Later, after she and her husband “laughed about it,” her husband “snuck into Tim’s office and hid it in his library where it sat for years. I guess it made its way to Chicago. I thought it was funny to put a book that silly in Tim’s office. And the idea I was a victim is stupid.”

According to Miltenberg, at some point Blackmon “told the complainant the story after he found the surprise gag gift in his [college’s] library and then gave her the book. He thought it was a funny story. That’s all there was to it.” (Blackmon told The Roys Report he shared the story with others, but admitted that it sounded bad when “taken out of its contexts without the prank.”)

Because this was “such a benign event,” the attorney continued, “we believe that Wheaton was looking for an excuse to sever its relationship with its first African American Chaplain” and return to being a predominantly white educational institution.

‘China-man’ was an ‘inside joke’

Regarding the “ethnic slur” he allegedly used repeatedly toward an Asian American employee, Blackmon provided the context to The Roys Report.

When he started working at Wheaton, Blackmon said one of his Korean ministry colleagues was “mistaken” for a professor. They “commiserated about the realities of beginning to work” at the predominantly white institution, comparing their situation to the Wiz Khalifa song “Black and Yellow”:

[A] black pastor from Holland and a Korean ministry associate. I said, “Maybe we should call you the China-man because people can’t even tell one Asian from another, one Chinese from a Korean.” More laughter ensued and for the next couple of weeks we commiserated about the ironies of working in a predominantly white institution, and we soon moved on from our inside joke and got to work.

“This,” said Blackmon, “is what they are considering the racial/ethnic slur.”

Miltenberg also suspects that “Wheaton may have overreacted out of fear of public pressure given the #MeToo movement and other Title IX related controversies as of late”:

Wheaton has repeatedly shifted the landscape in Chaplain Blackmon’s case, at times claiming it was Title IX issue, and other times, suggesting that the situation did not fall under Title IX.

This shifting has impeded Blackmon’s ability to appropriately respond to the allegations as well as “denying him the right to counsel,” Miltenberg said. The college has also ignored its own “employee conflict resolution procedures,” he claimed.

Its actions “have put Chaplain Blackmon’s future very much at risk,” Miltenberg said.

Source: https://www.thecollegefix.com/black-immigrant-chaplain-claims-christian-college-used-bogus-title-ix-investigation-to-fire-him/

Categories
Campus Civil Rights Due Process False Allegations Sexual Assault Sexual Harassment

Why Are Some Members of Congress Opposing Due Process Protections for Black Male Students?

SAVE

July 14, 2020

During the Senate HELP Committee’s 2015 hearing on campus sexual assault, Harvard Law Professor Janet Halley made the surprising observation that in her experience, “male students of color are accused and punished at ‘unreasonably high rates’ in campus sexual misconduct investigations.” (1) Two years later, journalist Emily Yoffe posed this question in The Atlantic: “Is the system biased against men of color?” explaining, “black men make up only about 6 percent of college undergraduates, yet are vastly overrepresented in the cases I’ve tracked.” (2) Lara Bazelon, director of the racial justice clinics at the University of San Francisco School of Law, likewise has opined about the troubling racial dynamics at play under the current Title IX system, and urged Education Secretary Betsy DeVos to “take important steps to fix these problems.” (3)

During this time of national reflection on race relationships, stories mount of black men whose lives were irrevocably harmed by false allegations or poorly administered campus tribunals (4). The examples of unfair treatment are numerous and egregious:

  • Two years ago, Nikki Yovino was sentenced to one year in jail for falsely accusing two black male football players, students at Sacred Heart University, of sexual assault (5).
  • Grant Neal, a black student athlete suspended by Colorado State University-Pueblo for a rape his white partner denied ever happened, sued and settled with his university (6).
  • Two black male students accused of sexual assault recently settled a lawsuit against University of Findlay for racial, gender, and ethnic discrimination (7).

Black faculty members also have been targeted by the campus kangaroo courts. The nation’s first elected black governor, former Virginia Governor L. Douglas Wilder, penned a scathing letter regarding his “unimaginable nightmare at Virginia Commonwealth University” after he was erroneously accused of sexual misconduct. He aptly titled his letter, “Secretary DeVos Right to Restore Due Process on Campus.” (9) Similarly, Howard University castigated law professor Reginald Robinson for allegations of sexual harassment, although his actions were clearly an expression of academic freedom consistent with university policy. (10)

So how widespread is the problem?

In 2017, the Office for Civil Rights investigated Colgate University for potential race discrimination in its sexual assault adjudication process. During the course of the investigation, the institution had to reveal the embarrassing fact that “black male students were accused of 50% of the sexual violations reported to the university,” (11) even though black students represent only 5.2% of all undergraduate students (12).

More recently, Title IX For All analyzed demographic data from the approximately 650 lawsuits filed against institutions of higher education since 2011. Among the 30% of cases in which the race of the accused student was known, black students are four times as likely as white students to file lawsuits alleging their rights were violated in Title IX disciplinary proceedings. Title IX For All concludes, “These findings come at a time when public officials who have long regarded themselves as champions of civil rights for minorities suspected or accused of crimes advocate a heightened awareness of their rights, while simultaneously working to undermine their rights in higher education settings.” (13)

The new Title IX regulation will ensure fairness, equitability, and credibility, and will support and assist sexual assault complainants, as well (14). Some members of Congress in both the Senate (15) and the House of Representatives (16) have urged Secretary DeVos to rescind the new regulation with vague claims that it is harmful to students.

At a time when activists across the country are clamoring that Black Lives Matter, why are some members of Congress opposed to a regulation that will help improve the lives of black men?

Citations:

  1. https://www.thecollegefix.com/shut-out-of-sexual-assault-hearing-critics-of-pro-accuser-legislation-flood-senate-committee-with-testimony/
  2. https://www.theatlantic.com/education/archive/2017/09/the-question-of-race-in-campus-sexual-assault-cases/539361/
  3. https://www.nytimes.com/2018/12/04/opinion/-title-ix-devos-democrat-feminist.html
  4. https://www.thecollegefix.com/believe-the-survivor-heres-11-times-young-black-men-were-railroaded-by-campus-sexual-assault-claims/
  5. https://www.ctpost.com/news/article/Yovino-sentenced-to-1-year-in-false-rape-case-13177363.php
  6. https://www.thecollegefix.com/athlete-accused-rape-colorado-state-not-sex-partner-getting-paid-drop-lawsuit/
  7. https://pulse.findlay.edu/2019/around-campus/university-of-findlay-settles-sexual-assault-case/
  8. https://www.usatoday.com/story/opinion/voices/2020/07/02/sexual-assault-title-ix-due-process-betsy-devos-column/3281103001/
  9. http://www.saveservices.org/2020/06/secretary-devos-right-to-restore-due-process-on-campus/
  10. https://www.thefire.org/law-professor-still-subject-to-sanctions-from-howard-university-for-brazilian-wax-hypothetical-on-quiz/
  11. https://reason.com/2017/09/14/we-need-to-talk-about-black-students-bei/
  12. https://www.colgate.edu/about/offices-centers-institutes/provost-and-dean-faculty/equity-and-diversity/demographics#students
  13. https://www.titleixforall.com/wp-content/uploads/2020/07/Plaintiff-Demographics-by-Race-and-Sex-Title-IX-Lawsuits-2020-7-6.pdf
  14. http://www.saveservices.org/2020/05/analysis-new-title-ix-regulation-will-support-and-assist-complainants-in-multiple-ways/
  15. https://www.feinstein.senate.gov/public/index.cfm/press-releases?id=CB2CFAD7-4FF7-400D-A8E5-CA2D5857072B
  16. https://speier.house.gov/2020/5/reps-speier-kuster-pressley-and-slotkin-lead-letter-urging-the-department-of-education-to-rescind-its-indefensible-title-ix-rule
Categories
Accountability Campus Civil Rights False Allegations Sexual Assault Sexual Harassment Uncategorized Victims

Addressing common misconceptions about the new Title IX regulations

by Susan Kruth, FIRE

The Department of Education finalized its new Title IX regulations less than two weeks ago, and already, a lot of misinformation about them has been published in various forms of media. We can’t address it all here, but we wanted to at least clarify some points that many commenting on the regulations are getting wrong.

Often, misinformation about the law proliferates because people don’t have the time or energy to check original sources. Commentary doesn’t always include citations, and sometimes people think they won’t be able to read or understand legalese anyway. On the second point, they’re usually wrong. So when in doubt, readers: Be skeptical of any source that doesn’t quote and link to the regulations themselves, and go back and read them yourselves.

Without further ado, here are some commonly shared incorrect or misleading statements about the regulations:

  1. The regulations mandate that sexual harassment cases be treated differently from racial harassment cases.

The regulations require that federally funded educational institutions — all but a few colleges and universities across the country — respond a certain way to sexual misconduct, and these requirements do not all apply in non-sexual misconduct cases. ED isn’t instructing schools to treat non-sexual misconduct cases differently, per se; it just can’t create obligations for how institutions handle non-sexual misconduct allegations in Title IX regulations, because Title IX governs sex discrimination only. Under the new regulations, institutions will no longer be required or encouraged to provide respondents in sexual misconduct cases fewer free speech and due process rights than they have been providing respondents in non-sexual misconduct cases.

With respect to the definition of harassment, for example, critics argue that sexual harassment will have to reach a higher threshold before schools can and must punish someone engaging in sexual harassment compared with racial harassment.

[T]here are many sources of misinformation out there, including individuals and organizations that should know better.

It’s easy to see where this misinformation comes from: In the spring of 2013, the Department of Education promoted an unconstitutionally broad definition of sexual harassment — “any unwelcome conduct of a sexual nature,” including “verbal conduct” — although it publicly backed away from this definition just months later. As FIRE explained at the time, the Supreme Court of the United States established the legal definition of student-on-student (or peer) sexual  harassment in the 1999 case Davis v. Monroe County Board of Education: conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

Moreover, in its 2001 Revised Sexual Harassment Guidance, issued by President Bill Clinton’s Department of Education the day before President George W. Bush was inaugurated, ED’s Office for Civil Rights addressed requests “to provide distinct definitions of sexual harassment to be used in administrative enforcement as distinguished from criteria used to maintain private actions for monetary damages.” It declined to do so, explaining that “schools benefit from consistency and simplicity in understanding what is sexual harassment for which the school must take responsive action. A multiplicity of definitions would not serve this purpose.”

The new regulations’ definition of hostile environment harassment tracks the Davis standard: “Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” So if critics have a problem, their problem is with the Supreme Court, or perhaps with the Clinton administration, not with the current Secretary of Education.

In any case, courts have been applying the Davis standard to racial harassment cases for almost Davis’ entire existence. When ED instructed institutions to punish “any unwelcome [speech] of a sexual nature,” it didn’t make the same instruction with respect to racial harassment. As a result, institutions were left with the impression that they should be punishing a far broader spectrum of sex-related speech than race-related speech. The new regulations simply clarify that both types of harassment should be assessed according to the Davis standard.

FIRE would be very pleased to see the regulations’ procedural safeguards guaranteed in all serious, non-academic misconduct cases.

Similarly, with respect to the standard of evidence, schools are already treating sexual and racial misconduct cases differently, and the regulations explicitly allow institutions to treat them the same way. In a 2011 “Dear Colleague” letter, ED mandated for the first time that all institutions governed by Title IX use the “preponderance of the evidence” standard in adjudicating sexual misconduct cases — but again, it made no such mandate with respect to race-related cases.

As a result, most colleges maintain a bifurcated system where sexual misconduct cases are dealt with differently from all other cases, including racial harassment cases. Some schools, inclined to require “clear and convincing evidence” for a responsible finding, have been using a higher standard of evidence for non-sex-related cases than for sex-related cases since 2011. ED’s rescission of this 2011 mandate and finalization of the new regulations gives institutions a path (and ED has encouraged institutions) to use the same standard for both types of cases.

Finally, with respect to the adjudication procedure aside from the standard of evidence, the same is true. Many institutions already provide live hearings for non-sexual misconduct cases, but not for sexual misconduct cases. This may be in part due to a 2014 report by the White House Task Force to Protect Students From Sexual Assault, which encouraged schools to use a single-investigator model for sexual misconduct cases. Under the new regulations, these schools will give students facing non-sexual misconduct cases and students facing sexual misconduct cases more similar opportunities to defend themselves and challenge the evidence against them in a meaningful hearing.

FIRE would be very pleased to see the regulations’ procedural safeguards guaranteed in all serious, non-academic misconduct cases. (In fact, FIRE has worked with legislatures to enact bipartisan legislation that provides consistent, robust safeguards in campus proceedings whenever there is a potential penalty of 10 or more days of suspension or expulsion on the line.) But for now, the regulations at least help ensure that respondents in sexual misconduct cases possess many safeguards they are often granted already in non-sexual misconduct cases.

Students walk near Healy Hall at Georgetown University.Students walk near Healy Hall at Georgetown University. (Sharkshock / Shutterstock.com)
  1. The regulations raise the standard of evidence for campus disciplinary cases.

Somewhat relatedly, critics have argued that the regulations effectively require institutions to use a higher standard of evidence for sexual misconduct cases than they did previously. This is easily demonstrated to be false. The regulations plainly state that an institution may choose “whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard,” so long as it uses the same standard for “all formal complaints of sexual harassment,” including against employees. If an institution wants to use the “preponderance” standard, it still can do so. Furthermore, institutions were in the same position before the 2011 Dear Colleague letter, and have remained in the same position even after 2011 with respect to non-sexual misconduct cases. There is no drastic new requirement here.

The same could not be said for the 2011 Dear Colleague letter, which did impose new requirements on schools — without ED soliciting notice and comment from stakeholders, as required under the Administrative Procedure Act.

The ACLU and others argue that the preponderance standard should be required anyway because it is the standard used in Title IX cases in civil court. But those cases are against institutions that are guaranteed many more procedural safeguards in court than students are afforded in campus disciplinary systems, including some of the safeguards to which some commenters have objected now that they are required by the new regulations. Institutions also have lawyers and money and other resources at their disposal to assist in their defense. These institutions will not be punished because three out of five fact-finding panelists believe it is more likely than not that they committed wrongdoing, as students can be.

Still, if institutions want to use the low, preponderance standard, they may.

  1. The regulations gut Title IX protections.

Critics of the regulations claim that they “gut[] Title IX protections for students.” To the contrary, as my colleague Joe Cohn explained in a post earlier this month, the regulations require that schools provide new and important safeguards, options, and tools to both complainants and respondents, and they bring the focus of the regulations back to the original purpose of Title IX — ensuring equal access to education.

Right now, too many institutions aim for whatever result is worst for the respondent, not whatever result is best for the complainant. They are concerned with punishing students who they deem guilty, but they are not necessarily asking what complainants feel would be most helpful for them to continue their education. That serves no one.

Safeguards like the opportunity to question witnesses aren’t just useful for respondents; they can be used by complainants and their representatives to demonstrate to fact-finders the truth of their complaints, too. With more information shared in advance of the hearing, complainants will be better able to prepare for it. And with a guarantee of impartial fact-finders and public training materials, complainants can have more confidence that their cases will be handled fairly — or more recourse if they aren’t.

As Shiwali Patel, senior counsel for the National Women’s Law Center, has written, “[T]here isn’t a conflict between ensuring a fair process for both survivors and for alleged perpetrators.” We agree. With both parties guaranteed many safeguards that they do not receive on most campuses now, fact-finders will be better equipped to reach accurate, reliable findings of fact, whether they’re responsible findings or not responsible findings. Procedural safeguards help ensure more innocent students are not punished and more guilty students are punished.

Procedural safeguards help ensure more innocent students are not punished and more guilty students are punished.

Moreover, some provisions of the regulations and supplementary information will help protect against common hurdles that self-identified survivors have faced. For one example, after recognizing commenters’ concerns about complainants bearing the burden of gathering relevant evidence themselves, ED emphasized that institutions, not students, should bear that responsibility. It explained: “Title IX obligates recipients to operate education programs and activities free from sex discrimination, and does not place burdens on students or employees who are seeking to maintain the equal educational access that recipients are obligated to provide.”

One victims’ rights advocate said in a recent interview that she received only two days’ notice that the person she alleged raped her would be questioning her. She was afraid of hearing her attacker’s voice again, and ended up dropping her case. We can’t say whether she would have dropped her case if the hearing process complied with the new regulations, but there are, at least, provisions in the regulations to address several of these factors. She would never have had only two days’ notice of cross-examination.

Between clear policies requiring an opportunity for questioning and the several weeks of aggregate time guaranteed to students as they collect and review evidence, she would not have been caught off-guard in this way. And she wouldn’t have to face her alleged rapist directly — she wouldn’t have to hear his voice if she didn’t want to. With questioning conducted by both parties’ representatives, and with the ability to participate from another room, she would have to endure less direct exposure to her alleged rapist than she did without the regulations.

This is not a comprehensive review of provisions that will help protect complainants, but these examples should at least cast doubt on claims that the regulations benefit only respondents.

Yet, many responses to the regulations have been extreme. Catherine E. Lhamon, chairwoman of the United States Commission on Civil Rights and former ED’s Assistant Secretary for Civil Rights, tweeted: “[Betsy DeVos] presides over taking us back to the bad old days, that predate my birth, when it was permissible to rape and sexually harass students with impunity.”

FIRE understands that too often, complaints of sexual harassment and assault are not taken seriously, and that FIRE’s mission of defending accused students’ due process rights does not align with everyone’s first priorities. However, it is just not true that affording students more robust due process rights means that anyone can rape and harass “with impunity.”

The physical act of assault — sexual or not — is still prohibited and punishable under university rules and state laws. The determination of whether speech may be punished as discriminatory harassment will follow the same analysis as it has in courts for decades. ED retains the ability to deny funding to institutions governed by Title IX. Schools will be able to mete out more serious punishments with more confidence that respondents found responsible have earned it, and that the case won’t be overturned in court. And, if anything, schools will be less able to hide wrongdoing (including bias in favor of respondents) behind closed doors, from training to investigations to decisions to appeals.

In a similar vein, critics of the regulations assert that the regulations instruct institutions to ignore harassment until a student drops out of school, rather than addressing problems early enough that a complainant can continue her education at that institution. But the supplementary information accompanying the regulations explicitly states that the applicable standard requires only “that a person’s ‘equal’ access to education has been denied, not that a person’s total or entire educational access has been denied”; it “does not require that a complainant has already suffered loss of education before being able to report sexual harassment.”

Again: Read the document yourself.

Meier Commons at the University of Nebraska-Lincoln.Meier Commons at the University of Nebraska-Lincoln. (Ken Wolter / Shutterstock.com)
  1. “But my school already provides a fair disciplinary procedure!”

We’ve spoken with many administrators who think that they already provide procedural safeguards like notice of charges and an opportunity to be heard. But these administrators’ institutions often do not actually guarantee these safeguards; instead, they maintain policies that allow an administrator to grant those safeguards or to omit them, at their discretion. This is problematic on several levels. First, it means that one student (indeed, a complainant or respondent) may be treated better or worse based on an administrator’s personal feelings about them or their case. Such a result cannot stand. Second, it means that many students will, in practice, be denied these procedural safeguards, effectively depriving them of a meaningful opportunity to present their cases.

It’s not enough to have policies that an administrator could theoretically interpret in a way that affords a student procedural safeguards. Policies must be clear and specific enough that they will be applied the same way in all cases, whether applied by the person who wrote them, or a hypothetical administrative robot, or someone who thinks the policies should say the opposite of what they say. And administrators should want this clarity, too. After all, if you went through the trouble of crafting a policy you think is fair, wouldn’t you want it to be applied as you intended if you left the school or something happened to you?

The regulations require this clarity and specificity. And if an administrator thinks their institution already provides these safeguards, surely no harm can come from making that indisputable.

  1. Institutions can’t handle this right now.

Critics of the regulations have argued that now was the wrong time to finalize these regulations. Subsequent headlines described the regulations as “quietly” enacted, as if there hasn’t been constant discussion of their imminence for nearly 18 months among those with an interest. Here’s the timeline:

The regulations were proposed in November 2018. Over 120,000 comments were submitted, and ED had to read and prepare a response to them all. (Hence, also, the length of the supplementary information.) When that was finished, organizations opposing the regulations reportedly (according to a college administrator who also opposes the regulations) implemented a strategy to delay their release for months more. Then COVID-19 hit. Institutions had over a year before then to plan for policy revisions. And without the delay strategy, the regulations may have, indeed, been finalized before this pandemic reached the United States, or at least before it changed the landscape for schools nationwide.

[M]any institutions already have language they can use to comply with the regulations … Institutions do not have to start from scratch.

Delay aside, these opponents of the regulations are essentially arguing that colleges must be required to adjudicate these cases during the pandemic, but that the executive branch is powerless to take steps to ensure they are adjudicated fairly. We doubt the same people would hold this stance if ED had finalized regulations identical to the 2011 Dear Colleague letter. After all, the 2011 letter was enacted without notice and comment and effectively required immediate changes, and we didn’t see objections to the letter on that basis from those who supported the new requirements.

Finally, two practical notes: First, if institutions aren’t looking forward to revising their policies mid-pandemic, they should be even less excited about facing potential litigation for denying respondents due process, especially with an ever-increasing number of rulings in favor of those respondents.

Second, many institutions already have language they can use to comply with the regulations, because they already provide live hearings in non-sexual misconduct cases. These institutions can simply start with this framework, take out language leaving safeguards at the discretion of various administrators, and add in the specific notice and other requirements from the new regulations. Institutions do not have to start from scratch.

A closing note

There are other arguments against the regulations that we will be addressing in the coming weeks and months. We hope that our coverage will serve not only as a source of substantive information about the regulations and their context, but also as a reminder that there are many sources of misinformation out there, including individuals and organizations that should know better.

This is not a black-and-white issue, student rights are not a zero sum game, and there is no easy solution. Not everything in the regulations is exactly what FIRE would have written, or even something FIRE would try to write, given our narrow mission. But the regulations contain many procedural safeguards that ultimately will benefit students on either side of the disciplinary process.

Categories
Campus Civil Rights Due Process False Allegations Press Release Sexual Assault Sexual Harassment Victims

To Senators Murray, Warren and Gillibrand: Secretary DeVos CAN Multi-task

For over two years, U.S. Senators Patty Murray (D-WA), Elizabeth Warren (D-MA) and Kirsten Gillibrand (D-NY) urged Secretary DeVos and the Department of Education to not create new Title IX regulations, fallaciously claiming victims will be further harmed.  The trio jumped on the crowded coronavirus excuse train, and now claim it is unacceptable for the Department to finalize a rule during the coronavirus outbreak.

The Senators urge DeVos  “not to release the final Title IX rule at this time and instead to focus on helping schools navigate the urgent issues arising from the COVID-19 pandemic that is top of the mind for all students and families.”  [1]

However, the Department’s accomplishments show on March 6, the Department promptly created a coronavirus information and resources website for school and school administrators [2].  Throughout the month they continued this focus on students with disabilities [3], provided student loan relief [4], and announced broad flexibilities for states to cancel testing [5]. There have been multiple task forces, webinars, and conference calls focused on helping schools navigate the urgent issues arising from the corona virus pandemic.

The Senator’s asking Secretary DeVos to suspend due process protections because of the coronavirus is irresponsible, impractical, and unfair to institutions, students and professors.

Ashe Schow, a reporter and columnist, appropriately pointed out in her commentary: “Three Democrat senators are using the coronavirus pandemic to urge Education Secretary Betsy DeVos to delay providing college students their constitutional rights to due process.” [6]

DeVos has shown competing priorities are possible to navigate and combat.  She is prioritizing the immediate needs, which include both navigating through this pandemic while ensuring students are given their due process rights.

As students and professors step onto their campuses in August, they will also be stepping into a more fair and equitable and safe environment than they stepped off in March.

Citations:

[1]https://www.help.senate.gov/ranking/newsroom/press/murray-warren-gillibrand-urge-secretary-devos-to-halt-title-ix-rule-focus-on-helping-schools-during-the-covid-19-crisis

[2]https://www.ed.gov/coronavirus?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[3]https://www.ed.gov/news/press-releases/secretary-devos-releases-new-resources-educators-local-leaders-k-12-flexibilities-student-privacy-and-educating-students-disabilities-during-coronavirus-outbreak?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[4] https://www.ed.gov/news/press-releases/delivering-president-trumps-promise-secretary-devos-suspends-federal-student-loan-payments-waives-interest-during-national-emergency?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[5] https://www.ed.gov/news/press-releases/helping-students-adversely-affected-school-closures-secretary-devos-announces-broad-flexibilities-states-cancel-testing-during-national-emergency?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[6] https://www.dailywire.com/news/three-democrats-use-coronavirus-to-demand-delaying-due-process-rights-for-college-students

Categories
Child Custody Domestic Violence False Allegations

Nebraska Judge Rules False Allegations are a Form of Domestic Violence

Can false allegations be considered to be a form of domestic violence? In a previous case in Delaware, the judge ruled false allegations in fact represent an attempt to exert power and control over one’s partner.

Earlier this week, a Nebraska judge issued a custody decision in a parental alienation case.  The father was awarded primary custody because of the mother’s move-away and alienating behaviors.  The court concluded:

[d]omestic intimate partner abuse includes using a child to establish or maintain power and control over any current or past intimate partner.  Neb. Rev. Stat. Section 43-2922(8).  The Court finds the testimony of Dr. McConnell to be credible as to his observations regarding parental alienation by the Mother.  The Court finds that some of the Mother’s actions are consistent with Dr. Harman’s expert testimony regarding the use of the legal system in order to gain control over the target parent.”  [emphasis added]

These conclusions were based on factual findings that:

“[t]he mother’s claims regarding threatening, abusive behavior by the Father are not credible. Despite seeking court orders limiting contact with the Father, the Mother continued to initiate contact [with] him. The Mother has displayed a similar pattern with a prior boyfriend as well.  The Mother made a false allegation that the Father had tried to hit her with his vehicle while exchanging the children [at] the Law Enforcement Center.” [emphasis added]

In awarding attorneys fees to the Father, the Court later noted the Mother “sought protection from the Court, but frequently disregarded the Court’s no contact orders.  There is at least one outright fabrication, the claim at the Law Enforcement Center.”  While the father had issues of his own, the Court found “the Father is more likely to encourage the children to maintain a positive relationship with the other parent.”

The order also provided that if the parents in the future resided within 20 miles of each other, the custody arrangements would automatically change to equal 50-50 parenting time.  The father was represented by Josh Johnson and expert mental health testimony was provided by Dr. Luke McConnell from North Platte, NE, and Dr. Jennifer Harman from Colorado State University.

The entire ruling is available online.

Categories
Campus False Allegations Title IX

The Accusations Were Lies. But Could We Prove It?

We were at a friend’s doctoral graduation party on a Friday night at the end of March. I had a glass of wine in one hand and our toddler on my hip when Marta found me. “I got a really weird email,” she said.

The moon hung full over our heads, and all of us were in short sleeves, holding beers or wine and licking barbecue off our fingers while our kids played hide-and-seek in the dark.

“What?” I said.

“Something about me sexually harassing students,” Marta said, taking F. from my arms.

“What?” I said, louder this time.

“It’s probably spam,” she said, and then she disappeared.

That night we toasted our friend and her newly minted Ph.D. She thanked her husband for his help, her professors swapped stories about her and we toasted them for their mentorship. Afterward, we all wandered around the backyard talking about our kids or research or how perfect Arizona can seem in March.

When it was time to leave, I found our older daughter, N., standing on our friend’s bed with another little girl, who held a fistful of toilet paper and looked at me the way kids do when they’ve done something wrong. Strips of toilet paper littered the carpet, and I wondered whether one of them had peed her pants. Or maybe they’d had a toilet-paper fight. Or this was their version of snow in the desert.

“We’re gonna pull out her tooth,” the girl said before I could say anything, looking at N. and her loose front tooth.

I laughed. Later, I realized I never would have guessed that a tooth was at the center of that mess. Only a confession gave it meaning.

That night, after the girls fell asleep, Marta and I crawled into bed and pulled out our phones to reread the email she received. The anonymous sender wanted her to be aware that someone was posting about her on the message board Reddit. The email included a screenshot of the first post, which came from a person claiming to be part of a sexual-harassment case against Marta. “If you, like me, have been harassed by Dr. Marta, please contact the anonymous email line with A.S.U.’s Title IX Office,” the person wrote on the subreddit for our university, Arizona State University.

Ten minutes later, another post had gone up, ostensibly from someone else. “I attended a party at Marta’s house one night, where she got several graduate students drunk and then asked me to her bedroom. When I tried to leave she inappropriately touched me and I dropped her as my graduate adviser.”

I turned to look at Marta. She was staring at her phone. I reached out to touch her hip. “This isn’t spam,” I finally said.

That was last year, the year I turned 40 and, in the span of four weeks in January and February, flew to four different states to interview for jobs at universities and colleges in places besides Arizona. This is an experience in academic circles called “being on the market,” a phrase that people tend to speak with both resignation and trepidation, as when facing the pillory.

To go on the market, you first apply to dozens of jobs at universities, all of which require individualized application materials — cover letters, teaching philosophies, writing samples, research statements. Of the sometimes hundreds of people who apply to each job, only about 15 get a screening interview, and of those, only around three are invited to what is called a “campus visit,” a process that entails flying out to a college or university, sitting for interviews with anyone from students to the president, giving a talk or a reading, often teaching a mock class and then going out for a nice meal or two with a handful of faculty members who might one day be your colleagues. That winter, I had four campus visits, which meant I was lucky, which also meant I was exhausted. Marta stayed home with our girls each time I was away. Which meant she was exhausted, too.

My dream job was at the University of Michigan. They were looking for someone to help develop a potential creative-nonfiction concentration at the university, which houses one of the best creative-writing programs in the country. The faculty members I’d met were smart and kind and the students bright and assertive. And then there was the town itself: small, pretty and filled with great public schools.

It was the kind of place we had hoped to live ever since Marta and I met in Iowa City 10 years earlier. She was a Spaniard who grew up in the suburbs of Madrid soon after the death of Franco and later lived in London, Paris, Santiago and Beijing before moving to Iowa City for a graduate degree in linguistics. I had moved to Iowa for an M.F.A. in creative nonfiction after half a dozen years as a newspaper reporter in Florida and Texas. What most attracted me about her, besides the way she looked in a leather jacket, was how little she cared about what anyone thought of her.

What she liked about me, she said, was my independence. That and the fact that I’m generous, even when I get mad.

By the time I turned 40, we had been married for six years, had two kids and had moved twice for academic jobs, and professionally, each of us felt as if we were beginning to find our place in the world. My first book had come out; Marta was publishing articles and presenting regularly at conferences. We also each had tenure-track jobs, me teaching creative nonfiction, Marta Spanish linguistics, at a university we liked — if only it weren’t so far away from our families on the East Coast and from the small-town life we dreamed of when we first decided to have children.

“Can we please move to Michigan?” Marta joked several times after I got back from my January interview.

“Stop it,” I said. But sometimes before bed, I looked at houses for sale in Ann Arbor. I most loved the Craftsman bungalows with their wide porches and green lawns that, from the desert of Arizona, looked like a world someone else had dreamed up.

On Valentine’s Day, I flew out to Virginia to give a reading, and the next day, before flying home, I noticed that I had missed a call. Listening to the message, I heard the voice of a faculty member from Michigan asking me to call him back. He sounded as if he were smiling.

After I hung up the phone with him, I texted Marta: “JOB OFFER FROM MICHIGAN.”

I was told the offer letter would arrive soon, and in the meantime, the university would have a “dual-career coordinator” looking for possible jobs for Marta.

The following week, the same faculty member explained that a final committee approval meant we would have to wait a little longer. But then two weeks passed, and three, and four, and I still hadn’t received the contract, nor had we heard anything concrete about a position for Marta. I started to worry. “We shouldn’t have started looking at houses,” Marta said, only half kidding.

“We’ll hear something soon,” I said.

“Or not,” Marta said.

That was a joke between us. I always assume the news will be good. Marta is the dour Euro­pean. When I say something hopeful, she responds, “Or not.”

By the end of March, the job had begun to feel like something I’d imagined. I still looked at houses in Ann Arbor, but I had also started looking in Arizona again too. Our lease was up at the end of June, and we had to move either way.

That Friday, we went to our friend’s party, hoping that it would distract us from the anxiety of waiting. About halfway through, though, Marta got that strange email she thought was spam. And then, everything changed.

The first two Reddit posts about Marta were quickly taken down, but I kept checking the site all weekend. One more went up on Saturday, and another on Monday morning. The first complained about the previous posts’ being deleted. Its author wrote: “Lesbian professors, too, are capable of harassing students despite common narratives.”

But it was the second post that scared me. “Hi y’all,” it read. “I’m looking for advice. My linguistics professor has offered me wine several times in her office and acted inappropriately when I see her in various queer spaces in Tempe or Phoenix.”

The mention of wine and Marta’s office reinforced what I already felt I knew: that the accusations were false. Marta almost never used her office; she met students at coffee shops or via Zoom. And she rarely drank wine. Or went to any “queer spaces” that I knew of.

The use of “y’all,” though, made me stop. We were in Arizona. No one says y’all here.

I decided someone outside our university had to be behind the posts. But who? And why? Marta and I talked about it every night that weekend, after the girls went to bed, trying to remember an enemy she might have. We brought up former graduate students and classmates, colleagues and exes, but none of them made sense. I had one more idea, but I didn’t want to say it out loud. I felt guilty for thinking anyone might be doing this to her, to us — even though it was clear someone was.

After dropping off the girls that Monday morning, I wrote to the department chair at Michigan to check in. He responded right away. “I understand — and share — the wish for expediency here,” he wrote. “I’ve been told the deans hope to wrap this up by the end of this week.”

“Doesn’t that seem like an odd phrase?” I asked Marta.

“No,” she said. “Why?”

“‘Wrap up’ indicates a problem being solved,” I said.

The only good news was that Marta also received an email that morning from an associate dean at Michigan asking if she could talk the following day. “It has to be about a job,” I said.

“Or not,” she said, but she was smiling this time.

The next morning, I stood just outside the door of Marta’s study as she answered the associate dean’s call. I heard her say hello and how nice it was to finally talk. Then I watched her listen. She nodded. She looked up at me. She shook her head. She said, yes, that she understood. Then she wagged her finger, as if scolding hope. When she started to talk, it wasn’t about her research or teaching, but about the Reddit posts. I heard her say that as far as she knew, she wasn’t under a Title IX investigation, and she had no idea why someone said she was. I heard her promise to figure out what was going on. Then she hung up and looked over my shoulder at a shadow on the wall. “She told me they had credible information that I’m under a Title IX investigation,” she said.

“What?” I said.

“So,” she said. “It’s not great news.”

In academia, the phrase “Title IX investigation” is so common that we sometimes forget that many people have never heard the term. When I called my dad after Marta hung up with the associate dean and left to go teach, he asked me — once I stopped crying — what a Title IX investigation even was.

What it usually means, I said, is an investigation of sexual misconduct. We hear about them most often in cases of sexual assault — usually of a female student by a male student, usually in relation to the campus rape crisis. But Title IX also applies to faculty or staff: that professor who won’t stop asking his student out for drinks; that teacher who touches students on the arm, thigh, breast; that mentor who persuades her graduate student to sleep with her, even after he has said no.

We found out that Marta was under investigation later that day. The first accusation against her, we learned, had come in via A.S.U.’s anonymous reporting system at 5:21 a.m. on March 14, almost two weeks before we knew anything about it. It was sent by someone calling herself “Rebecca James,” who said she was a graduate student in Marta’s department.

“I have had two undergrads come to me and one fellow graduate student regarding Dr. Marta Cabrero,” “Rebecca” wrote. “Dr. Cabrero has put these students in sexually compromising situations. Inviting them to meet her in her office late at night — when the building is mostly empty — she has offered to help their careers (grad student) or grades and standing in the department (undergrad) in exchange for sexual favors.”

Reading that email, I remembered the year I arrived in Iowa. All the local newspapers were reporting on a professor who was accused of requesting sexual favors from students in exchange for higher grades. When confronted, he drove out to the same woods where I ran each morning and shot himself. I tried to imagine Marta in his place, asking to touch or kiss students in exchange for a grade. But I couldn’t do it. I know many spouses of sexual criminals say this, but I was sure: She just wasn’t the type.

What Marta obsessed over was that “Rebecca James” had referred to her as Marta Cabrero. In Spain, everyone has two last names. Hers are Tecedor and Cabrero. The first last name is the primary one, so people in her department would call her Dr. Tecedor, though most of the time, per her preference, everyone just calls her Marta.

Marta tried to explain the discrepancy to Melanie, the university investigator assigned to her case, during her first interview on March 28, but Melanie seemed unimpressed. “I do think it’s relevant to point that out,” she said, before pivoting back to a long list of questions she had: Did Marta meet with students at night? Did Marta offer alcohol to students? Did Marta ask for sexual favors from her students? Did Marta know anyone named Rebecca James? No, Marta said, no and no and no.

Melanie also hadn’t been able to locate a current student named Rebecca James in Marta’s department, but she said that the name could always be an alias, and she was still obligated to investigate Marta now that a “credible” accusation had been made.

Their interview at the university’s Office of University Rights and Responsibilities, which manages Title IX complaints, lasted almost an hour. Afterward, I briefly met with Melanie in a large conference room with a box of tissues on the table. She said she didn’t have anything to ask me, but she could answer any questions I had.

“We just want to figure this out as quickly as possible,” I told her. “It might have already jeopardized our job opportunities —” My voice broke.

I reached for a tissue. Melanie was young, probably in her late 20s or early 30s, with long straight hair and an impassive face. “You’re fine,” she said, though it was clear I wasn’t.

“If you can figure out that it’s an outsider or somebody from the outside that’s posing as a student,” I finally said, “can you just close the investigation?”

“Good question,” Melanie responded, her voice bright again. “Because of the funding that we receive through Title IX, we’re required to investigate everything. And with that we want to really run everything to the ground.”

I nodded. I knew that universities could lose federal funding if they didn’t show they were protecting students, and I was glad — I am glad — for that. But I was still confused. Melanie continued. “If we find out that — and Marta asked the question — if we find out that the information is false, for our purposes that’s not really our end goal; we’re just trying to determine whether or not there’s a policy violation.”

Listening to my recording of our conversation recently, I wondered why I didn’t stop Melanie at that point. Was she really saying that if they realized the accusations were invented, if the accuser herself was a fiction, they would still investigate? Did it not matter whether the complaints were true or false?

The first time I went on the academic job market was during the 2016 election. I sat for a Skype interview only a month and a half after giving birth to F., and only a month after Donald Trump was elected president. I was still bleary-eyed and foggy-headed from the birth and the lack of sleep that followed, and one interviewer asked me, given the recent crisis regarding fake news and alternative facts, what responsibility I thought writers of creative nonfiction had toward our collective understanding of truth.

My answer meandered into platitudes about truth being subjective and facts being contingent; I wasn’t invited to a campus visit for that job. But I’ve thought about that question a lot since then and how I might have answered it better.

A true story written about Marta and me at this point could easily include all the facts we know right now: that complaints were made about Marta, that Reddit posts appeared and that an investigation was opened. And if I were to read a story like that — without knowing Marta or me or any other facts that came to light later — I would conclude either that Marta had done it or, at the very least, that she was the kind of professor who crossed the line, and that her actions had been misconstrued. I would assume, that is, that even if some of the facts were wrong, the truth lay somewhere in the middle.

So while truth may be subjective, its balustrades are always the facts at hand. And in the case of our story, I quickly realized that we would never persuade anyone of what we knew to be true — that the accusations were invented — if we couldn’t isolate one key fact: who was making them up.

But Title IX investigations are a different genre of storytelling, so the facts the investigators want are different, too. As Melanie explained during that first interview, her investigation would end with what is called a “determination letter.” And that letter could offer only two story lines: Either Marta had violated a policy — and then there would be consequences for her job, including possible dismissal — or there was “insufficient evidence” that Marta had violated a policy, and we could presumably go back to the way things were before.

When I asked Melanie how long it would take for her to determine that there was insufficient evidence, she told me she couldn’t say — it depended on the factors, by which I think she also meant the facts. (Later a spokesman told me A.S.U. aims to close all sexual-harassment cases within 60 days.)

“For us this is purely administrative,” Melanie said at one point. In other words, Title IX investigations are not criminal in nature, even if they feel that way at times. This is why Marta wasn’t allowed to have a lawyer present during her interview, even as she was told that any of her answers could be used against her. And it’s the reason that even if we could prove that someone was targeting Marta, Melanie could never compel that person to talk to her if they weren’t part of our university. But also, that person would never face consequences for what they were doing.

The only way to accomplish that, a defamation lawyer told us when we set up a consultation with him, was if we pursued that person ourselves. Which brought me back to that question of y’all.

Sarah and Marta at home with one of their children.Credit…Ryan Pfluger for The New York Times

 

A couple of weeks after I was offered the Michigan job, an acquaintance of mine — whom I will refer to as J., though that’s not his real initial — reached out to see whether I planned to take it. I knew through friends that he had also been a finalist, and in his texts to me, he said he wanted to acknowledge the “weirdness” of the situation. J. told me he was miserable where he was living — a conservative town where it is difficult to be openly gay — and implied that if I turned down the job, it would be offered to him. “Don’t respond,” Marta told me. “He shouldn’t be contacting you.”

But I remembered how hard it was for Marta and me when we lived in West Texas for four years after Iowa and before we got jobs in Arizona, the way we were scared to hold hands while walking with our girls in the neighborhood. Then I imagined being a gay man in a similar situation, how it must wear him down. I remembered, too, how emotionally draining the academic job market can be.

I texted J. back. I said I wanted to accept the job, but we were waiting to hear if Marta would be offered a spousal hire. I promised to let him know as soon as we had more news. “Totally!” he wrote back. “That makes sense!”

But after that, he kept texting. He congratulated me on being a finalist for a book award and said he hoped negotiations with Michigan were going well. He asked for travel recommendations in Santa Fe and told me he was reading Jonathan Franzen’s new essay collection. “Any news?” he wrote midway through March, when my offer letter still hadn’t arrived. “I’ve been thinking of y’all.”

“I promise I’ll tell you once we decide one way or the other,” I responded.

“Thank you for being a good human,” he texted back.

Then on a Friday evening near the end of March, he wrote, “WHY ARE THEY DOING THIS TO US.”

That same night, the first Reddit posts went up.

“It has to be him,” I told Marta after her conversation with the associate dean, after I was finally ready to speak my fear out loud. I showed her his other texts. I told her how desperately he seemed to want the job. I mentioned how often he used “y’all” — in texts but also on social media.

Afterward, she didn’t say “or not.” She just stared at me. “But how do we prove it?”

March slipped into April, and I stopped sleeping. When I did sleep, I woke up from dreams that I was forgetting everything. I canceled my trip to a writing conference where I was supposed to present because I worried J. would be there, but then at home I kept scrolling through his social-media posts looking for clues.

I wrote draft emails to people at Michigan or A.S.U. filled with rhetorical arguments that I hoped would make them see the truth, but Marta would read them and say I sounded desperate or unhinged. “We just have to wait,” she said.

A friend had reached out to me by then about J., to let me know he’d been complaining for weeks that I was offered the job over him. He had also told others about Marta’s Title IX investigation — something he shouldn’t have known about on his own. After talking to that friend, I no longer doubted that he was behind everything that was happening to us. But I still had no idea how to prove it. (The New York Times reached out repeatedly to J. and a lawyer who has represented him for comment about this article. No one responded to the queries.)

Eventually, we decided to tell Melanie about our suspicions. She wrote back almost immediately: “I would actually like to meet with you both a second time, as I received some new information yesterday.”

We hoped she was dropping the case, or maybe she’d talked with someone from Michigan about the information they’d received, as we’d recommended. Instead, when we arrived and took seats together across the table from her, Melanie said: “I’ve received another anonymous complaint.”

The accusation had come from a different email and ostensibly a different person, someone calling herself “Jessica P. Newman.” It had been sent on April Fools’ Day.

The opening paragraph identified “Jessica” as one of Marta’s graduate students and repeated parts of the previous complaints. Then the email took a turn I should have expected but still didn’t.

“One night,” “Jessica” wrote, “Marta and her wife Sarah had a party for queer students and faculty at their house, and offered me glass of wine after glass of wine and eventually shots of whiskey. When most of the others had left, Marta asked to show me a painting in her bedroom, and when we entered, Sarah was on the bed, topless, and asked us to join her. I said I would be calling an Uber now, but before I could leave the room, Marta took my hand and placed it on her wife’s bare chest.”

The interview room we were in was smaller this time, and Marta and I sat on the same side of a table, reading the email together, while Melanie watched us. It felt like a test we were failing or a novel that had stopped making sense. I imagined everyone who would read or had read this email — Melanie, her supervisor, the university provost — and how they would all picture me topless on my bed, trying to seduce a student, while presumably my kids slept in their bedroom down the hall.

In closing, “Jessica” wrote: “I do not know how to proceed at this point, but thank you for your guidance. I do wish to remain anonymous at this time.”

When we finished reading, Melanie said she wanted to talk to us separately. I watched Marta leave the room and set my phone on the table to record the interview. Melanie told me I was now also under investigation and said she needed to ask me some questions. “I want to talk about these parties,” she said. “So tell me what that looks like.”

“So, there’s never been a party,” I said. I told her that we’d hosted two staid dinners for Marta’s graduate-seminar students. But at some point both evenings, I had put the kids to bed, and after that no one went near the bedrooms. “And I definitely was never topless on the bed,” I added, interrupting whatever question Melanie had next. I wanted to move past that part of the interview as quickly as possible, but saying the words out loud only made it worse — as if by negating the accusation I had somehow reinforced it. “I’m trying to think if we even have a painting.”

Melanie interrupted this time: “That’s what I was going to ask.”

I tried to picture our bedroom walls while she waited for me to answer. I saw a print of a map of Galveston hanging above our dresser and the antique mirror I bought at an auction in Iowa on another wall. Then I remembered a third wall, and my favorite painting hanging there. I’d found it at a garage sale while working my first newspaper job in Florida. It’s of an androgynous kid in a flat cap smoking a cigarette, looking out with a brazen stare I immediately loved. So much so that I’d put it in our bedroom — just as the email claimed.

And that fact — or the fact that one fact in my life lined up with a fiction being created about us — disoriented me. For a second, I could almost picture myself on the bed, just like what “Jessica” had described. “There is a painting, a small painting,” I told Melanie after a pause, and she took notes as I described it.

Before I left, Melanie asked if I still wanted to name the person we thought was behind the accusations. I told her I was worried that if she contacted him, things might escalate. But I also couldn’t think of anything else to do. I said yes.

That weekend, we went camping. We needed to do something normal. We needed to stop looking at our email, waiting for the next shoe to drop, the gun to go off.

The day before we left, we filed what is known as a “John Doe” lawsuit. The lawyer we had hired explained that the suit would allow us to subpoena identifying information associated with the emails used in the accusations and the Reddit posts, and once we had that proof, we could directly sue whoever owned those email addresses.

I also blocked J. on social media. I worried it might tip him off, but I couldn’t stand the thought of him having access to my life, to pictures of my kids.

We left town early Saturday, and as we drove into the mountains, I tried to stop going over the case in my head the way I had been doing for the past couple of weeks, like a mouse on a wheel, searching for a way off.

We got to Prescott by midmorning and found a spot overlooking a pine forest bordered by a stream. On a hike later that afternoon, F. tramped through brush and over rocks without complaints, and N. led us with a walking stick clutched in her fist. I realized I was finally thinking about something else, like how good a sudden breeze felt on my skin after sweating through my shirt, like F.’s dimpled legs moving so fast through the brush, like the sound of water falling somewhere we couldn’t yet see.

Afterward, Marta dropped F. and me off at the tent for a nap while she and N. went to buy marshmallows in town. I read F. a book in the tent and sang her a song, and then I looked at my phone and saw a text from a friend: “He’s stalking you on social media.” J. had apparently been asking friends we had in common to check if I was still on Facebook and Twitter. He wanted to know if I had blocked him or just closed my accounts.

A few minutes later, he texted me himself. This despite the fact that I hadn’t responded to any of his recent texts. Not the one in all caps the day the Reddit posts went up. Not the one the following Monday asking if I was going to that writers’ conference. Nor the one a couple of days before, which read, “How are you holding up, friend?” And I didn’t answer his final one either.

“I’m genuinely sorry if communicating with you made you uncomfortable,” he wrote. “I had hoped admitting to the awkwardness of the situation would make everything OK. I guess I was wrong, and I apologize.”

  1. moved around in the mound of sleeping bags, still not asleep. I felt sick. Part of me wondered if I was wrong. But mostly, I knew he was responsible and was scared by how easily he could lie to me directly — and by what he might do next.

My biggest fear — one I told no one but thought about every day — was that J. would call in a fake child-abuse accusation against us. Sometimes the fear would come out of nowhere. I’d be watching N. draw a picture of a sun behind a mountain made out of a coffee filter, and suddenly it would be there. The knock on the door. The woman introducing herself to us. The panic as we tried to reach our lawyer. Some days I could almost smell the caseworker’s perfume, hear her polite request to interview each child separately, alone in a room where we weren’t. I thought about our house. All the toys we hadn’t found time to pick up. The smell of F.’s last diaper in the kitchen trash can. The bruise on her knee from falling down at day care. I thought about a line in the email from “Jessica,” how she wrote that she felt powerless.

I put away my phone and gave F. a hand to hold, but neither of us could fall asleep.

When we got back in town, Melanie wrote to ask for another meeting. Again, she had new information, and again, we hoped that meant she was closing the case. Instead, she said that she’d been able to talk to Michigan, and they had sent her all the emails they’d received.

“Emails?” I thought. We had assumed there was just one.

Melanie told us that she had put them in date order, and she would go through them and then we could talk. She sounded more tired than she had in our previous interviews, and I realized this was probably wearing her down too. The constant bombardment of information. The feeling that none of it made sense.

But she never said as much. It seemed clear she was beginning to believe us, but she also kept reminding us that she couldn’t close the investigation until she had “examined all of the information.” That included talking to Michigan; it included interviewing Marta’s students and colleagues, and mine as well; and now it also included an upcoming appointment to talk with “Jessica,” who had recently emailed that she was willing to meet with Melanie in person — but not until the following week.

“I assure you I’m doing all I can to wrap this up as quickly as possible,” Melanie had written to us when we once again asked her about the timeline. And perhaps in testament to that fact, she had asked us to come meet with her that day — and she had received permission from the university’s lawyers to share the stack of emails on the table before her.

The first few emails, she told us, had been sent from the same email address used to file the original accusation against Marta, the one ostensibly from a student named Rebecca James. Only this time, the author claimed to be a colleague of Marta’s named R. Orlich. She told the associate dean at Michigan that she was reaching out because she had heard that Marta was being considered for a spousal hire. “I wanted to make you aware, especially in this moment of reconciliation for folks who abuse their positions, that we are investigating three credible allegations against her putting students in sexually abusive and compromising situations.” The email was sent on March 6 — the day after J. first texted me about the job.

Less than a week later, “R. Orlich” emailed again to say that two new students had come forward. “ASU will likely settle the case quietly,” she wrote, “but you should be aware, I believe as someone who believes in the university as a safe space for people to learn and grow, that Marta’s behavior has been abhorrent and completely unacceptable.”

After that, the remaining emails came from “Jessica P. Newman,” Marta’s supposed graduate student. These emails were sent to the same department chair with whom I had been communicating about the job. “Dr. Cabrero should not be working with students, and I shudder at the thought that this problem will leap from university to university,” the first one read. “It is, I have now found out through a graduate colleague, why she left her previous university as well — the sexual manipulation of students under the guise of mentorship.”

Subsequent emails from “Jessica” included screenshots of the Reddit posts, a screenshot of a supposed email between Marta’s colleagues discussing her removal from a dissertation committee “given the recent investigation into Dr. Cabrero’s relationship with students in our program” and a warning that both The New York Times and The Chronicle of Higher Education would most likely be coming out with articles about Marta’s supposed history of abuse soon.

Rereading the emails later, I could see how they capitalized on real weaknesses in academia: the way that harassers are often passed on between institutions, the fact that graduate students have so few rights — and are so dependent on their faculty mentors — that they fear going public with stories of abuse and then all the other realities that have come to light with #MeToo, realities that have been lived experiences for both Marta and me, and for most women we know.

But at the time of that meeting with Melanie, as she read parts of each email aloud to us and waited for us to react, what I felt was stunned — at the audacity and expansiveness of this whole story that had been written, and believed, for weeks about Marta, and me, all without either of us ever knowing.

“The reason that I contacted you,” Melanie eventually said, “is because I got another email from Michigan today.” The email, she told us, was titled “Text Tonight,” and in it, “Jessica” wrote, “I am turning this over to the authorities and wanted your administration to have this text message from Marta as well.”

Melanie then read out loud what she said was a screenshot of a text between Marta and “Jessica”:

“Marta: Jessica, we need to talk

Jessica: Please stop contacting me. All communication needs to be processed through the Title IX coordinator, as you know.

Marta: We will ruin your career. I will make sure you never get a job once your dissertation is done. My wife and I are well-connected.”

Marta exhaled loudly. I held my breath.

“I know,” Melanie eventually said. “I understand.” She told us that she had checked several key facts and disproved them one by one: There is a Professor Orlich in Marta’s department, but she hadn’t sent any emails to Michigan. Marta’s colleagues also denied emailing about her and said she had never been taken off a dissertation committee. And not only was there not an A.S.U. graduate student named “Rebecca James,” there also wasn’t any named “Jessica P. Newman.”

I felt something tight in me release. “Does this mean,” I asked, “at this point you can actually close the investigation?”

But Melanie shook her head. “Jessica,” she reminded us, had scheduled that appointment with her to talk. And even though we now knew that “Jessica” didn’t exist, Melanie said she still had an obligation to see if she showed up for the appointment she’d made.

I took the girls to school that Thursday, and when I got back home, Marta was outside pacing. She’d been calling me for the past half-hour, but I hadn’t had my ringer on. “Melanie called again,” she said, her voice flat.

“Jessica,” it seemed, was now claiming that Marta had showed up at her apartment on Monday. “But we met with Melanie on Monday,” I said, as if that were the least believable part of the whole scenario.

“Melanie said it was in the afternoon,” Marta said. “We met with her in the morning, so now Melanie wants to know what I did that afternoon.” She was shaking. “Sarah,” she said. “I couldn’t remember. I said I thought I was home working, but I really can’t remember.”

My first thought — and I still can’t reckon with this — was doubt. We knew “Jessica” wasn’t real, but I couldn’t understand why Marta didn’t remember where she was on Monday afternoon. That was only three days earlier.

I felt the stick of my sweat from the morning heat. I tried not to say anything critical. “My phone!” Marta said, suddenly breaking the silence. She pulled out her iPhone quickly, and began scrolling through the GPS data. After a minute, she found a little blue dot proving that she had, in fact, been inside our house that whole afternoon. Until about 4:30 p.m., when she went to get the kids. I felt my chest release. But below that lay shame. Why did I believe her only once her phone told me she wasn’t lying?

What Marta didn’t tell me until later was that Melanie had also asked her about an email that “Jessica” claimed Marta had sent her that same week. Again, “Jessica” had sent a screenshot of the email instead of the email itself. “You wanted to sleep with us, or at least that is what your body was saying,” Marta supposedly wrote. “In Spain this would never happen. People understand their bodies and desires there.” It closed: “Be careful what you do. You need to text me back.”

“Why didn’t you tell me about that before?” I asked after Marta eventually summarized the email. My stomach tightened again. Marta shook her head. We were walking the dog before going to pick up the girls that afternoon. She had been on the couch all day, almost comatose. “There are just too many things,” she said.

On days like that — when I saw Marta destroyed or when I thought about all the real victims out there, afraid to come forward — I was angry at J. Other days I was scared of what he would do next. But I also worried about him too — even if everyone I knew told me I shouldn’t.

Before I blocked him on social media, J. had posted a lot about being unhappy. Friends kept me updated on what he was saying or doing, and at times he seemed to be getting worse. He posted that he had an ulcer, that he was taking a mental health day, that his father was sick. Sometimes I feared that once we had the proof we needed, once all the bricks came tumbling down around him, he might hurt himself. What I hadn’t remembered, though, is that sometimes when the house falls down, we move on and rebuild in other places, new structures made from the same materials but shaped to tell a different story.

Around the middle of April, J. learned about our lawsuit. That same day, he started telling people that he was being trolled online. Homophobic comments about him were posted on the subreddit for his university that afternoon, and an anonymous letter was sent to his university mailbox that read “Die fag professor” later that week. He even did a presentation about the harassment as part of a panel at his university on discrimination, subtext and the power of language. The audience was outraged and horrified.

“That’s a classic horror-movie move!” a friend of mine said when I told her what was happening. “The villain injures himself.”

If J. were the villain, though, that meant we were the victims — and at some point, I realized we were. Later, I wondered why it took me so long to recognize that.

One reason, I think now, is because at the beginning of this story, we were given the role of perpetrators. I spent so much time trying to prove we were innocent that I didn’t think to question the parameters of the narrative itself.

Once we began sharing what was happening to us with others, almost everyone we knew was aghast, horrified. They said they’d never heard of anything like this. But now I wonder how true that is. Think about so-called deepfakes, those women’s faces being fastened on the bodies of porn stars and passed around. Think about the trolling and doxxing of women online. Our story is more akin to those tales than anything that has to do with Title IX. But because the narrative got started one way, it was hard for us, and even harder for academic institutions — who “must investigate all allegations of discrimination, harassment and retaliation,” as an A.S.U. spokesman later told me — to change direction.

When I finally recognized that we were the ones being harassed, I wrote to Melanie and asked for help. She recommended that I contact the university’s victims’ advocate, who works with the police. I left a message explaining our situation and my fear. I never got a call back.

We also asked our lawyer about a restraining order, but he said we needed proof that the person we thought was harassing us really was harassing us. And we didn’t have that yet — we were still waiting for the results of the subpoenas.

Eventually, I wrote to the president of A.S.U. He had told us during our faculty orientation that we should always feel free to reach out directly to him, so I decided to take him at his word. I told him that someone had been using the university’s Title IX process to harass us, that this person had impersonated students and faculty members and had posted false statements about Marta on Reddit. I explained that there was no evidence that either Marta or I had done anything wrong, yet the Title IX office had told us that it could not close its investigation if emails kept coming in from this anonymous individual. “We are strong believers in the importance of Title IX protections,” I concluded, “but we also feel like there has to be a system in place to protect faculty and students from outsiders who might use that system to defame and harass.”

That afternoon, I received a response from the vice provost, who assured me that investigators were being urged to move expeditiously. “I know it can be frustrating to wait for findings,” she added, “but we are obligated to look into allegations that are brought to us.”

Two weeks passed. We met with Melanie and her supervisor and were told that, in the future, anonymous accusations would be fact-checked before new investigations were opened. Melanie told us she had started writing up her report, but she said she couldn’t give us a timeline for its completion. I wrote again to the vice provost. She said the report was now with the provost, and we could expect an answer soon.

The last weekend in April, we planned to drive up to the mountains again to camp with the girls. In the car that Friday evening, I checked my email from my phone and saw that the provost had written to us at 4:58 p.m. I read the email out loud to Marta as she drove. His determination letter found no credible evidence of a policy violation. “Respondents 1 and 2 are both highly regarded in their respective departments and both received much praise and adoration in their course evaluations from students,” the letter concluded. “Both credibly denied all of the allegations against them.”

Two days later, as we were rolling up our sleeping bags and folding the tent into neat triangles, I received the official offer letter from Michigan — two and a half months after that phone call telling me I had the job. We also got word that the job search for Marta had begun again. “It’s over,” I said.

“Or not,” Marta didn’t say. But she should have.

Our house was half packed when we received an email from our law firm with the first response to our subpoenas. It was for the email account used by both “Rebecca James” and “R. Orlich.” The released information was a mere three pages, and we first thought it held nothing important. But just as Marta was walking away, I noticed a line indicating that the account had been verified and listing a phone number. “Marta,” I said too loudly, “where’s my phone?”

I was shaking as I tried to call up J.’s last message. I was nervous I would accidentally call him. I felt as if I was doing something wrong. But then, there it was: an exact match.

The account had been opened the same day J. first texted me about the job. His phone had been used to verify the account. And the I.P. address, when we checked, was from the town where he was living at the time. “We’ve got him,” I said.

And for the smallest moment, it felt as if our story actually had come to an end. Because the way I wanted it all to end was like this: Marta would be offered a spousal hire at Michigan, and I would accept a dream job teaching creative nonfiction. We would find a cute Craftsman house in Ann Arbor in which to move the boxes that had been accumulating all around us. The kids would be happy, and so would we.

But also, J. would admit what he had done to us. He would pay our legal fees, and we would all agree to move on. Maybe he’d issue a public apology. Maybe there would be a moment of reckoning in which I could forgive him. Maybe he would even write a memoir about what an awful person he had been.

But we rarely get the stories we want, and so here is how this one ends. Marta was not offered a spousal hire. After waiting another month and a half while a dual-career coordinator tried to find something for her, after ordering two PODS containers in which to store the boxes of all our belongings while we waited, after telling day cares and schools and parents and friends and colleagues that we still didn’t know where we would be living the following year, Marta was eventually told that there was no job the University of Michigan could offer her. Delaying the search until after the end of the semester was part of the problem, but it was also possible that Michigan would never have been able to find something for her. In which case, if J. had just waited, he might have been offered the job anyway.

And so, at the end of June, I turned down a job I was offered four and a half months before.

We also named J. as a defendant in our suit. I worried at first about what he would do when he received the news, but as far as I know, J. did not try to harm himself. Instead, he began reporting that someone was trying to hurt him. Four days after he was served, J. posted that his university and private email accounts had been hacked. His colleagues started receiving emails from those accounts with messages calling him a faggot.

Five days after he was served, J. claimed he received an anonymous email from a so-called burner account. In that email, someone claiming to be his stalker wrote that he was in love with J. and that being rejected by him had caused “a mental break i cannot explain.”

“i began trolling you online, sent death threats, broke into your house when you were gone,” the person wrote. “i tried to [expletive] up your job applications by getting into your [work] email, i trolled a friend of yours in arizona…”

The confession read like the end of a “Scooby-Doo” episode, when the mask is pulled off and the criminal lays out his line of transgressions. It was the kind of confession I had once hoped J. would give us.

A week after J. was served, he emailed the police at his university to say that his stalker had thrown a rock through his car window. He attached a photo of the shattered glass, along with a handwritten note that read “STOP TRYING TO FIND ME.”

By the time a response was due from J. regarding our lawsuit, I already knew what he would say. All the bricks came tumbling down, but they had been rebuilt into enough of a structure that the only way to prove his story false would be to go to court. We had paid more than $10,000 in legal fees at that point. Our lawyer told us that taking the case to court could cost tens of thousands more. We thought about it. We argued about it. But in the end, we decided we weren’t willing to pay for more truth.

I think a lot about that scene of snow and two little girls on a bed, one with a loose tooth. How facts are like that. They tell different stories depending on who is picking them out and placing them in a narrative line. The most reliable way to find the truth in any moment is to have someone come clean, the way that little girl did when I entered the room. But I don’t believe J. will ever do that.

At the end of July, we settled our lawsuit. Per that agreement, we can write or say anything we want about what happened. We can tell the whole story, using any and all of the facts. But we made one major concession: We cannot use J.’s real name.

At the time, the concession seemed worth it if it meant ending a story we needed to stop. But in the weeks and months since, I’ve wondered if we made a mistake. I think about all the people — friends, colleagues, students — whom J. will most likely continue to fool. I think how we never really know who is behind anything we read. Unless we have a physical person to pin it to. But then I realized this story isn’t about J. It’s about us.

If I could return to that job interview from more than three years ago, to that moment when I was asked about my responsibility as a creative-nonfiction writer in the post-truth world, I know what I would say now: Our allegiance as nonfiction writers is not so much to truth as it is to honesty. Because truth can be spoken into a void, while honesty implies an audience, a reader, real people to whom you commit to tell your story as accurately and truthfully as you can so that they can then differentiate for themselves the facts from the lies, the truth from the fiction.

I’ve done that here. Now the story belongs to you.

Source: https://www.nytimes.com/2020/03/18/magazine/title-ix-sexual-harassment-accusations.html?action=click&module=Top%20Stories&pgtype=Homepage#commentsContainer

Categories
False Allegations

False Allegations Harm True Victims

False allegations have become a major barrier to victims of sexual assault getting the help they need. As trivial and false claims clog the system and consume scarce resources:

  • Victims are less likely to report the crime because they worry they won’t be believed
  • Police are less likely to investigate
  • Jurors are less likely to believe the victim
  • Shelters and other social services are forced to turn persons away

Now, a growing number of persons are speaking out on the problem of false allegations:

  • Rape is No Joke: “Enormous damages are done by making a false allegation of rape”
  • DA Hallie Dixon: “False reporting…can be detrimental to the prosecution of legitimate crimes.”
  • Judge Kevin Kilrane: False accusers do “tremendous damage to genuine victims of rape who are going to be undermined.”
  • Judge Stephen Hopkins: “Every false allegation of rape increases the plight of those women who are genuinely victims of rape.”
  • Justice Enriques: “False complaints of rape necessarily impact on the minds of jurors trying rape cases.”
  • Columnist Andrea Peyser: “This could present a huge problem for future rape victims.”
  • Columnist Myron Pitts: “Real victims of assault are never helped by phony claims. It is already difficult enough for women to report to police such a traumatic experience.”
Categories
Campus Due Process False Allegations Violence Against Women Act

Violence Against Women Act: Eating Its Own Tail?

On April 4 the House of Representatives passed its version of the Violence Against Women Act reauthorization – H.R. 1585 – and forwarded the bill to the Senate for consideration. Seven months later, no Senate bill has been introduced, much less voted upon.

It’s not for a lack of trying. So what’s going on here?

Three top-tier issues are consuming much of negotiators’ time and energy:

  1. Definitions of Domestic Violence — The House bill dramatically expands the definition of domestic violence to include emotional abuse, verbal abuse, technological abuse, and financial abuse. Just imagine what would happen if every time a woman gives her husband the “silent treatment,” he calls the police?
  2. Over-Criminalization – Following passage of the First Step Act in December 2018, many, but not all Senators believe we need to rein in mandatory arrest and no-drop prosecution policies. And instead, pay more attention to the proven causes of partner abuse: mental health problems, alcohol abuse, and marital conflict.
  3. LGBT Issues – Following passage of the Equality Act in the House of Representatives – H.R. 5 – Senate Democrats are being pressured to include similar provisions in VAWA. But Republicans are unlikely to agree to this.

As if these top-tier concerns didn’t constitute enough of a Gordian Knot, the Senate is also wrestling with a host of second-tier issues:

  1. Lack of evidence of the effectiveness of VAWA programs in reducing abuse rates
  2. Due process for the accused
  3. Harmful effects on families
  4. Immigration fraud
  5. Problem of campus “Kangaroo Courts” (VAWA Title III)
  6. Neglect of male victims – According to the CDC, men are more likely to be victims in the previous 12 months than women
  7. False allegations
  8. Waste, fraud, and abuse
  9. Onerous budgetary demands on federal and state governments
  10. Ideological biases – The dubious notion that domestic violence is “all about power and control”

At this point, the most likely scenario is a straight-line reauthorization of VAWA through the 2020 elections.

That will give lawmakers an opportunity to re-think the issues and fashion a “Fresh Start” bill that eschews “power and control” ideology, respects the Constitution, and addresses the proven causes of domestic violence.

Categories
Domestic Violence False Allegations

Do False Allegations Represent a Form of Domestic Violence? A Delaware Judge Said ‘Yes.’

Ten years ago my marriage began to dissolve. My ex-wife soon discovered the “magic bullet” that would assure custody of our children. Her determination to “win at all costs” came very close to destroying my life.

From 2009 to 2012, I was subjected to five protection orders and nine arrests, resulting in a total of 21 criminal charges. Each and every one of those criminal charges eventually would be expunged from my record.

This onslaught of false accusations resulted in reliance on public transportation, homelessness, a Court-ordered GPS ankle bracelet, parental alienation, and incarceration. As a “victim” of domestic violence, she was entitled to receive free legal representation, rental assistance, and free furniture – all compliments of programs funded by the Violence Against Women Act. As a result, she was able to acquire de facto control over the course of the divorce and custody proceedings.

That wasn’t enough.

She then decided it was time for the Grand Finale, the proverbial “kill shot.” She scrawled these words on her body: “Bitch, I will kill you.” She added my initials, as if I were signing off on a calling card. She then used a sharp device to inflict scratch marks on her body.

She then drove to a side road, stripped to her underwear, and lay on the side of the road feigning a horrific attack. When the police and paramedics arrived, she told them that I and an accomplice had forced her off the road, beaten her, and attempted to rape her. An all-points-bulletin was issued to track me down, the evil man who had horrendously attacked his ex-wife.

But unbeknownst to her, the court had ordered me to wear a GPS ankle bracelet. The police soon located me at the Texas Roadhouse restaurant in Camden, Delaware. The officer ripped me from my vehicle, with another officer pointing his weapon at my center mass. I was handcuffed and transported to a holding cell at the Delaware State Police Troop 3.

Once detectives determined that I was nowhere in the vicinity of the staged attack, I was released. Four days later she was arrested.

She had intended for me to go away for a long time. Had I not been strapped with the GPS device, I would have been charged with horrific crimes and possibly forced to accept a “guilty” plea deal.

I subsequently filed for a Protection from Abuse (PFA) order based on the abuse that I had been subjected to from the false allegations I endured. This is the provision from the Delaware State Code tit. 10, § § 901, 1041 that defines an act of domestic violence: “engaging in a pattern of alarming or distressing conduct in a way likely to cause fear, emotional distress, or provoke a violent or disorderly response…unlawful imprisonment, kidnapping, interference with custody, or coercion; or any other conduct that a reasonable person under the circumstances would find threatening or harmful.”

My experiences of being falsely accused and arrested obviously fell within this definition, and the judge determined these acts did constitute acts of domestic violence. A Protection from Abuse order was granted against my ex-wife, including a no-contact order.

To my knowledge, this PFA against my ex-wife established a precedent in the State of Delaware. I was designated a victim of domestic violence based upon the false allegations that I had been subjected to for three years.

My ex-wife was arrested on September 1, 2012 and charged with several counts of false police reports and lying to the police. This was a defining moment, the day my life would begin to change. I was finally vindicated and exonerated.

If you have gone through, or are currently going through the nightmare of false allegations, I hope you might find my experience to be a source of insight and inspiration, to know you can come out on top of this kind of rampant injustice.

 

Additional information about my experiences: