Category: Title IX

Brett Sokolow: Dogged Pursuit of a Separate Reality

SAVE

September 24, 2021

The overriding purpose of a campus Title IX adjudication is to evaluate the truthfulness of the allegation. The due process procedures used to achieve this goal include objective investigations, live hearings with cross-examination, impartial adjudications, and an opportunity for appeal, all buttressed by the presumption of innocence.

Following the release of the Dear Colleague Letter (DCL) in 2011, suspended and expelled students began to file hundreds of lawsuits alleging violations of due process. Eventually, judges would issue over 200  decisions favorable to the students.

Six years after the issuance of the DCL, ATIXA president Brett Sokolow issued an upbeat assessment of the current state of due process on college campuses. Modestly titled, “One Response to Congressional Task Force Roundtable,” Sokolow dismissed any need to revitalize due process protections, concluding that “we need to be pushing back as an association and as a field” on the premise that campus processes lack “procedural rigor.”

None of his claims were supported by any references to case law, research, or even anecdotes. Indeed, a careful review of Sokolow’s assertions reveals that four of them are so contrary to existing case law as to suggest Sokolow was unaware of — or had chosen to ignore — the numerous judicial decisions that had been issued as of October 30, 2017, the date that Sokolow published his Response.

Sokolow’s four claims are presented below, verbatim and in italics, followed by a listing of the pertinent judicial decisions that had been issued before the date of the Sokolow pronouncement:

1. Transparent Investigations and Access to Evidence: “Colleges offer the equivalent of informal discovery (a major procedural protection), by being transparent during the process about what investigators are learning, by sharing documents with the parties, and ultimately showing the report to the parties before it is finalized;”

Contradicting the Sokolow assertion, 13 judicial decisions were issued prior to October 30, 2017 that documented deeply flawed investigative procedures:

1. Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401-02 (W.D.N.Y. Sep. 20, 2017)
2. Doe v. The Trustees of the Univ. of Pennsylvania, 270 F. Supp. 3d 799, 816–17 (E.D. Pa. Sep. 13, 2017)
3. Doe v. The Trustees of the University of Pennsylvania, 270 F. Supp. 3d 799, 817 (E.D. Pa. Sep. 13, 2017)
4. Mancini v. Rollins Coll., M.D. Fla. No. 616CV2232ORL37KRS, 2017 WL 3088102, at *5 (M.D. Fla. July 20, 2017)
5. Tsuruta v. Augustana University, No. CIV. 4:16-4107-KES, 2017 WL 11318533, at *3 (D.S.D. June 16, 2017)
6. Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016)
7. Doe v. Brown University, 210 F. Supp. 3d 310, 339 (D.R.I. Sep. 28, 2016)
8. Ritter v. Oklahoma City Univ., W.D. Okla. No. CIV-16-0438-HE, 2016 WL 3982554, at *2 (W.D. Okla. July 22, 2016)
9. Doe v. Weill Cornell Univ. Med. School, 1:16-CV-03531 (S.D.N.Y. May 20, 2016)
10. Doe v. Ohio State University, No. 2:15-CV-2830, 2016 WL 1578750, at *3 (S.D. Ohio Apr. 20, 2016)
11. Doe v. Rector & Visitors of George Mason University, 149 F. Supp. 3d 602, 619 (E.D. Va. Feb. 25, 2016)
12. Doe v. Georgia Board of Regents, No. 1:15-cv-04079-SCJ, at *37-38 (N.D. Ga. Dec. 16, 2015)
13. Doe v. Washington and Lee University, No. 6:14-CV-00052, 2015 WL 4647996 (W.D. Va. Aug. 5, 2015)

The judge’s language was particularly strong in Doe v. Georgia Board of Regents: “To put it bluntly, [investigator] Paquette’s testimony at the preliminary injunction hearing about the course of the investigation and the manner in which he made certain investigatory decisions was very far from an ideal representation of due process. (Pg. 37)…Much remains for the Court’s consideration as to whether Mr. Paquette’s investigation veered so far from the ideal as to be unconstitutional.”

Regarding adequate access to evidence, three decisions underscored schools’ failures in this area:

1. Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *11 (S.D. Ohio Aug. 25, 2017)
2. Doe v. University of Notre Dame, No. 3:17CV298-PPS/MGG, 2017 WL 7661416, at *10 (N.D. Ind. May 8, 2017)
3. Marshall v. Indiana University, 170 F. Supp. 3d 1201 (S.D. Ind. Mar. 15, 2016)

In Marshall v. Indiana University, the judge noted, “the Defendants do not deny that they are in sole possession of all information relating to the allegations made by and against [respondent] Marshall, notably refusing, at all times, to share such information with Marshall or his attorneys.”

2. Credible Evidence: “Colleges respect key procedural rules, including requiring that evidence be relevant and credible…”

Sokolow’s claim is challenged by three decisions issued prior to October, 2017 that revealed failures to conduct credibility assessments of the complainant:

1. Arishi v. Washington State Univ., 196 Wash. App. 878, 908, 385 P.3d 251, 265 (2016)
2. Doe v. University of Notre Dame, No. 3:17CV298-PPS/MGG, 2017 WL 7661416, at *10 (N.D. Ind. May 8, 2017)
3. Mock v. University of Tennessee at Chattanooga, No. 14-1687-II, at *14 (Tenn. Ch. Ct. Aug. 4, 2015)

In Arishi v. Washington State Univ., the judge explained, “But the fact that [complainant] MOS did not testify and was never cross-examined undermines confidence in the outcome. This is particularly so in light of evidence undermining her credibility: she misrepresented her age on Badoo as 19, misrepresented ‘Alex’s’ age to her mother, was going out during the daytime when she was supposed to be doing homework at home, was driving illegally, and had a different version of events when interviewed by Sergeant Chapman than she did when interviewed twice by Detective Dow.”

3. Evaluation of Evidence: “Colleges allow and seek expert evidence and testimony as needed;”

In contrast to the Sokolow characterization, seven judicial decisions that highlighted school deficiencies in the evidence evaluation had been handed down prior to his statement:

1. Painter v. Adams, W.D.N.C. No. 315CV00369MOCDCK, 2017 WL 4678231, at *7 (W.D.N.C. Oct. 17, 2017)
2. Richmond v. Youngstown State University, No. 4:17CV1927, 2017 WL 6502833, at *1 (N.D. Ohio Sep. 14, 2017)
3. Mancini v. Rollins Coll., M.D. Fla. No. 616CV2232ORL37KRS, 2017 WL 3088102, at *5 (M.D. Fla. July 20, 2017)
4. Doe v. Brown University, 210 F. Supp. 3d 310, 339 (D.R.I. Sep. 28, 2016)
5. Doe v. Brown University, 166 F. Supp. 3d 177, 185 (D.R.I. Feb. 22, 2016)
6. Prasad v. Cornell Univ., N.D.N.Y. No. 5:15-CV-322, 2016 WL 3212079, at *15 (N.D.N.Y. Feb. 24, 2016)
7. King v. DePauw Univ., S.D. Ind. No. 2:14-CV-70-WTL-DKL, 2014 WL 4197507, at *13 (S.D. Ind. Aug. 22, 2014)

In Painter v. Adams, the judge revealed: “Here, defendants maintain in their Memorandum in Support of summary judgment that ‘plaintiff presented no documentary evidence’ at the disciplinary hearing. However, it appears that he presented no documentary evidence because he was prevented from doing so. The evidence, viewed in a light most favorable to the party resisting summary judgment, shows that he was prevented from placing into the record exculpatory physical evidence, which raises a concern as to whether plaintiff was denied Due Process.”

4. Cross-examination: “Colleges allow questioning of the parties, if not cross-examination in its purest form.”

Six judicial decisions had been issued before October 2017 that exposed deficiencies in schools’ cross-examination procedures:

1. Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. Sept. 25, 2017)
2. Doe v. Glick, No. BS163739, 2017 WL 9990651, at *9 (Cal.Super. Oct. 16, 2017)
3. Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401 (W.D.N.Y. Sep. 20, 2017)
4. Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *12 (S.D. Ohio Aug. 25, 2017)
5. Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016)
6. Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014)

In Doe v. Glick, for example, the judge revealed, “Further, Respondent [Glick] appears to have told [complainant] Roe she could answer Doe’s questions in advance in writing, a procedure not found in either the 2013 or 2016 Pomona policy. Finally, the Complainant did not attend the hearing personally, or through Skype, even though the hearing date was arranged to accommodate Roe’s schedule.”

Unsubstantiated Claims

On September 5, 2017, almost two months before Sokolow made his claims, the Foundation for Individual Rights in Education released the findings of its Spotlight on Due Process survey of due process policies at 53 top universities. Reporting on findings that FIRE characterized as “dire,” the survey found:

• 6% of top universities did not guarantee students that they will be presumed innocent until proven guilty.
• Only 47.2% of schools required that fact-finders be impartial.
• 9% of schools were assigned a ‘D’ or ‘F’ grade for dismal due process policies.

But Sokolow apparently was unaware of the FIRE survey. To the contrary, Sokolow concluded his upbeat assessment by noting, “I think this is enough and should be enough to satisfy a judge.” So “colleges and universities need to do a better job of driving the dialogue about how much due process they DO afford,” Sokolow argued.

In an August 2021 presentation, Sokolow finally did acknowledge the existence of a “tide of litigation.” But inexplicably, Sokolow attributed the lawsuits to “a decade of conflicting guidance, judicial intervention, and inconsistent enforcement” (Brett Sokolow and Terri Lakowski, Time With IX. Slide No. 12) — not to the Kangaroo Court-like procedures that scores of judges had struck down during the preceding 10 years.

Sokolow’s unsubstantiated claims reveal a determined effort to pursue an alternate reality that bears little relationship to the current realities of campus Title IX adjudications.