Categories
Campus Sexual Harassment Title IX

The Weaponization of Title IX at Oregon Health and Science University

My name is Buddy Ullman.  I am a retired Professor of Biochemistry and Molecular Biology from The Oregon Health & Science University (OHSU) in Portland, Oregon.  As a faculty member at OHSU, I headed a research program in molecular parasitology for which I was continuously funded (for 34 years) by the National Institutes of Health.  I was also a major contributor to the medical education program for 29 years for which I was accorded 51 teaching awards and honors.  At OHSU, I was widely perceived as a faculty leader because of my vocal advocacy for aggrieved students and faculty and for my oppositional views to some of the academic policies in the School of Medicine.

This brought me into occasional conflict with some of the Associate Deans, particularly those in the medical education program.  Politically, I am a liberal democrat and an ardent supporter of Title IX.  I also had the misfortune of being a Title IX respondent, and, per full disclosure, am an enthusiastic advocate for DeVos’s proposed new Title IX guidelines, although I have a few concerns that I conveyed to the Department of Education using the Federal eRulemaking Portal.

My Title IX Experience

My Title IX ordeal involved five investigations over three years and resulted in the destruction of my professional career and job termination.  The details of these investigations are myriad, convoluted, and complex, and therefore, I only present the skeletal outline of the adversities that I faced.  There is documentation for everything that I assert, much of which is or was in possession of the Office for Civil Rights, Seattle Branch, in the Department of Education (OCR Reference No. 10152256).  The original purpose for these investigations was to deny me access to the educational programs of the university, which seems counterintuitive to Title IX’s purpose, but these multiple inquiries eventually morphed into a mechanism to destroy my very successful, externally funded research career and to fire me.

The seminal and initial investigation for which I was respondent was a sexual harassment complaint that was launched on May 16th, 2014 by the Associate Dean of Undergraduate Medical Education, ostensibly on behalf of a first-year female medical student who had failed the medical school course that I directed and, therefore, faced a remediation examination and potential expulsion from the medical school program and who, like the Associate Dean, had ample motive to retaliate against me.  The student had falsely claimed in an email to the Associate Dean written earlier on May 16th, 2014 that I had kissed her on the forehead in my office, an expanded definition of sexual harassment to say the least, and that I had made a harassing and “pseudo-predatory” comment on a Facebook photo in which she was not pictured.  The alleged kiss was a fabrication, and the Facebook comment, although warm and affectionate as many Facebook posts are, was neither lascivious nor of a sexual nature.

The student was named the complainant by a civil rights investigator in OHSU’s Affirmative Action and Equal Opportunity (AAEO) Office although she was not involved in the genesis of the AAEO complaint, i.e., this was a third-party endeavor.  By the next business day, the Associate Dean’s administrative superior, the Senior Associate Dean of Education, had weighed in and expanded the scope of the investigation, and multiple emails in my possession substantiate collusion between the Dean’s and AAEO Offices at the inception of the investigation.

I first learned about the existence of the complaint on August 14th, 2014, three months after the investigation had been initiated.  I was not informed of the specifics of the allegations at that time (or throughout the investigation, see below).  I met with the investigator for 90 minutes on September 5th, 2014, the same date that the investigation was closed (without my knowledge).  When I met with the investigator, I was, obviously, completely unprepared, and she harangued me with salacious questions and seethed with hostility.  As an aside, the sexual harassment complaint was considered by the AAEO Office, not the Title IX Office, as there was no Title IX Office at OHSU in 2014.

Below I describe the salient features of this investigation:

  • Per the previous paragraph, the complaint was initiated by a third-party surrogate.
  • There was no formal or written complaint. I did request to view the formal complaint multiple times and was not told that there was no formal complaint.
  • The scope of the complaint shifted throughout the investigation.
  • I was not permitted to have any knowledge of the allegations against me. This precluded any possibility of a realistic defense.  I only learned of the nature of the specific charges ten months after the case against me was closed.
  • Related to the previous point, not only did I not know the nature of the accusations, but the specific complaints weren’t even discussed in my presence.
  • I was not allowed to know the identities of the named complainant or the witnesses, e.g., the Associate Deans, because they wanted to make their (false) accusations under anonymity for understandable reasons and also because I would have immediately recognized the predatory and retaliatory nature of the Associate Deans’ involvement and the retaliatory intention of the student complainant’s allegations. I also only learned the names of the complainant(s) and the witnesses ten months after the case was concluded.
  • I was not given any opportunity to present evidence on my behalf, while the complainants were given four months to collect and submit evidence. The preponderance of evidence standard for substantiating any claim against me was, therefore, simplified since all the evidence considered was provided by the complainant side.
  • I was not offered an occasion to bring forth witnesses of which I would have had thousands. The complainant side had four witnesses: the two Associate Deans and the complainant’s two best friends/housemates, each of whom had come up with their own allegations, one preposterous, one untruthful.
  • Witness testimony was taken over the telephone, precluding any assessment of witness demeanor.
  • All exculpatory evidence collected by the AAEO investigator was withheld from me.
  • The presumed inculpatory evidence that was shown to me was did not involve wrongdoing and was, without exception, absurd.
  • The Closure Memo, effectively the investigative report, that summarized the investigator’s findings and ultimately informed the investigator’s conclusions was not afforded to me for analysis. I only became aware of the Closure Memo’s existence ten months after the case against me was concluded, and it was replete with falsehoods, fabrications, distortions, exaggerations, and mistakes and lacked context throughout.  There was no opportunity afforded to rebut The Closure Memo.
  • I was not informed in a timely matter about any aspect of the investigation against me. Every step of the investigation took me by surprise.
  • I was muzzled throughout the proceedings (and presumably afterwards). This gag order (or orders) prevented me from recruiting witnesses, getting help within the institution, and organizing a defense.
  • I was continually threatened with job loss throughout the process. This was intimidating to say the least.
  • The outcome of the so-called “investigation” was, obviously, predetermined and not evidence-based.

I received a summary of the investigator’s findings, designated the Letter of Closure (different from the Closure Memo) on November 25, 2014.  The Letter of Closure was farcical and suffered from all the failings of the Closure Memo (see point 12 above).  The investigator, who fundamentally functioned as a prosecutor, concluded that I had engaged in sexual harassment of female medical students (apparently for the entire 29 years during which I taught).  This was the first time, six months after the case against me had been instigated, that I had any inkling that my case was even about sexual harassment.

This revelation was flabbergasting since there had never been any sexual harassment, and categorically no behavior of a sexual nature on my part while a member of the OHSU for 32 years.  The investigator also found that I had engaged in gender discrimination and inappropriate, unprofessional, and disrespectful behavior toward female medical students in order to ensure that I had been found in violation of almost every single institutional policy that supports Title IX including the institutional Code of Conduct, which I apparently violated multiple times with abandon.  There was also no gender discrimination and no inappropriate, unprofessional, or disrespectful behavior toward female medical students, or for that matter toward anybody else.

The Dean of the School of Medicine, stated in his Letter of Caution to me, also dated November 25, 2014, that I had “violated OHSU’s Code of Conduct (Section G), the Equal Opportunity Policy (No. 03-05-030), and the Sexual Harassment Policy (No. 03-05-035) through unwelcome hugging, wrist-grabbing, as well as cheek and forehead kissing of female students.”  There was no unwelcome hugging, wrist-grabbing, cheek kissing, or forehead kissing of female students, however, and these conclusions were all news to me because no unwelcome behaviors were ever alleged in my presence during the investigation.  All the conclusions by the AAEO investigator and Dean were made-up.  I was, of course, punished, and there was never any effort on the part of the institution to stop, interfere with, or modify any of my behavior, as outlined by institutional policies and federal statute.

The investigation was a sham, neither fair, impartial, nor reliable, and it was most certainly not well-intentioned.  Not only had the investigator functioned as a prosecutor throughout the inquiry, but she also served the roles of detective, plaintiff (it was she who made the sexual harassment accusation), judge, jury, and executioner.  Because I was innocent of all “transgressions” (there is not one iota of truth to any of the investigator’s or Dean’s conclusions), I believe that the administration, acting maliciously, basically hijacked Title IX in order to retaliate against me for my activities and views that the administration didn’t like.  The assortment of shortcomings in the AAEO investigation that I identified above was not an accident.  Title IX was employed as a weapon, a strategic one that the Dean’s Office later employed to clobber other faculty.

Devos’ new proposed guidelines for Title IX enforcement on college/university campuses address every single one of the investigative shortcomings in my case, and, as I mentioned in the first paragraph, I support the DeVos regulations with enthusiasm, although with a few caveats.  The new regulations do not, however, address the intrinsic competence and integrity of the investigators nor the ability of “bad actors” to endeavor to manipulate the outcome of Title IX proceedings.

My subsequent request for an appeal was denied, but I was granted an internal grievance procedure that was distorted almost beyond recognition and stage-managed by OHSU’s general counsel, a person who also had a prominent role in the original AAEO investigation described above.  The grievance panel concluded that due process considerations had not been violated because I could have presented a defense after my case was closed (to whom?!?!) and that I didn’t need to have been informed about the specifics of the allegations because I should have been able to figure them out by the line of questioning, even though the alleged misconduct never occurred!!

I then appealed to the Office for Civil Rights (OCR), Seattle branch.  The OCR took the case, investigated OHSU’s AAEO office, and apparently compelled substantial changes (the AAEO Director was subsequently fired), but concluded that OHSU had adhered sufficiently to the Obama-era Title IX guidelines and thus, took no further action on my OCR complaint.  The OCR decision was terribly disappointing and left me exposed to retribution, which was forthcoming.

Once the OCR had completed its review of OHSU’s AAEO Office and Title IX compliance, the administration, blasting through any OCR whistleblower protections, retaliated against me repeatedly.  The administration filed at least five more frivolous charges against me, most of which were Title IX related but on which the Title IX Office punted (this is called deliberate indifference), and launched two new sham investigations, the fourth and fifth overall, for which the outcomes were, predictably, preordained.  The first of these latter two investigations concluded that I violated the institutional Code of Conduct in multiple ways because, according to the investigator, I used the word “Yuck” in an email to a colleague/friend, while the second resolved that I had engaged in retaliation, which I most certainly did not.

The administration continued to retaliate me in other ways as well.  I was banished from the medical school classroom on three separate occasions, thereby denying me access to the institution’s educational activities, made the subject of a nasty, disparaging email sent by the aforementioned Associate Deans to the entire medical student body in response to a satirical vignette that I was asked to give at the Medical Student Follies, and then placed on administrative leave, exiled from campus although I was no safety threat to anybody, and had my email disabled and my access to my work computer switched off.  These actions effectively terminated my 47-year career in biomedical research.

Furthermore, when the Dean of the School of Medicine and the Vice President of Human Resources placed me on administrative leave and deported me from campus, not only did they not tell me why (I asked) but they told me that they themselves didn’t even know all the reasons why!!  I was fired several months later, while on administrative leave, after the last (and fifth) investigation against me concluded.  I am now retired and hope, through my experience, that I can bring some wisdom to the Title IX guideline debate and to other Title IX victims.

I refrained from a lawsuit for a myriad of reasons.  First, I am not litigious and don’t crave money.  Second, I am 69 years old and was close to retirement anyway and didn’t want to be at the university any longer because of the way I was (mis)treated.  Third, I signed a termination agreement, clearly under duress, that would provide me with a salary equivalent and insurance for another nine months if I promised not to sue them.  Fourth, I already had had two expensive lawyers:  the first whom I hired for the first investigation was unhelpful and wanted me to roll over and play dead; and the second whom I consulted during the fifth investigation and who really gave appropriate advice and thought it would be best for me to retire and not go through yet another investigation.  Fifth, I am a pensioner on a fixed income, and I would be taking on a ~$3,000,000,000 corrupt organization with effectively unlimited resources.  Sixth, OHSU would have fought me tooth and nail since the entire administration all the way up to the top of the university was locked in on me and would have been implicated in wrongdoing.  And finally, I was exhausted.  After three years of continuous harassment and discrimination by OHSU administrators, no way to achieve justice internally, and concerning blood pressure measurements, continuing as a faculty member at OHSU was untenable.

I am very happy to be gone and healthy again.

Categories
Title IX

Major Title IX Violations Identified at Penn State

Pennsylvania State University has failed to provide “prompt and equitable” reporting and investigation processes for several years of complaints of sexual misconduct, the Department of Education determined after a six-year examination of the university’s Title IX procedures.

The department’s Office for Civil Rights, or OCR, concluded an investigation of eight of Penn State’s campuses opened by the Obama administration in 2014, following revelations that numerous high-ranking university officials neglected to report decades of child sexual abuse by Jerry Sandusky, a former assistant football coach. The investigation showed that Penn State “has not adequately addressed its failures in the wake of the Sandusky scandal,” wrote Carol Ashley, enforcement director for OCR, in a March 26 letter to President Eric Barron. Ashley outlined Penn State’s noncompliance with Title IX, the law prohibiting sex discrimination in education institutions that receive federal funding.

Penn State’s practices have violated the rights of both complainants and respondents in cases of alleged sexual misconduct, Ashley wrote. The university’s current Title IX policies do not provide adequate information to students and staff members about where to file a complaint, and an analysis of the 2016-17 academic year found significant delays in case processing, according to the letter. Ashley also identified specific instances when the athletic department failed to report to the university’s Title IX coordinator complaints of sexual harassment by coaches made from 2015 to 2018.

Parts of the OCR findings include past practices that have been addressed by Penn State over the course of the investigation, and remaining noncompliance “will be the immediate focus of the university’s efforts to more effectively meet OCR guidance and the needs of our community,” said a Penn State statement.

“The university remains committed to increasing the responsiveness of its policies for our students and employees,” the statement said. “We believe this review by OCR will assist Penn State in improving how it addresses the issue of sexual violence, misconduct and harassment on campus in the future.”

OCR also determined that the university’s policies violate due process rights by suspending students against whom sexual misconduct complaints are made without first meeting with those students. (Accused students can then appeal such interim suspensions.) Penn State only recently began permitting witnesses to testify at Title IX hearings, and the Office of Student Conduct can exclude any witnesses found to be “duplicative, irrelevant, or inappropriate,” which could prevent important testimony during hearings, the letter said.

“The university’s reaction to the Sandusky scandal exhibited wholesale problems amounting to a cluster of grievously deficient failures,” Ashley wrote.

Penn State has agreed “in a spirit of cooperation” to correct the issues identified by OCR, which additionally include various problems with record keeping and documentation, Kenneth Marcus, assistant secretary for civil rights, said in a press release from the Department of Education. The university will continue to report to OCR about how it handles all Title IX complaints made during the remainder of the 2019-20 academic year and 2020-21, the release said.

“Given all of the attention that Penn State has faced in the wake of the Jerry Sandusky scandal, it is disappointing that so many serious problems have remained at that university system,” Marcus said. “OCR will closely monitor the university to make sure that it fulfills the requirements of the resolution agreement.”

Categories
Sexual Assault Sexual Harassment Title IX

Colleges Plead for More Time to Implement New Title IX Regulations

March 20, 5:45 p.m. Colleges and universities have their hands full dealing with the coronavirus outbreak, as they transition to online classes, close campuses and worrying about the health and housing of their students. But many are worried they may soon have to implement a controversial rule by U.S. Secretary of Education Betsy DeVos that will change how institutions handle allegations of sexual assault and harassment, including a requirement the accused be able to cross-examine their accusers in a live hearing.

DeVos has been rumored to be issuing the rule soon. Though the Office of Management and Budget, which reviews proposed new rules, has meetings with stakeholders scheduled through April 6, the office could cancel them and green-light a rule at any time.

The rule would involve changing policies, including faculty agreements, said Brett A. Sokolow,  president of the Association of Title IX Administrators.

“Issuing Title IX regulations in the midst of coronavirus response would be a huge distraction for schools and colleges, which need to be focused right now on transitioning essential services to online delivery,” he said. While institutions are usually given 30 to 90 days to comply with a new rule, he said they should be given at least a year.

More than 10 higher educations asked this week in a memo for federal lawmakers to give DeVos “the authority to waive compliance with significant and/or costly new regulatory requirements that may be introduced in this period, as institutions’ ability to come into compliance will necessitate a substantial outlay of resources that are better allocated to other purposes at this time.”

Craig Lindwarm, vice president for government affairs at the Association of Public and Land-grant Universities, said his group is worried about having to comply with a pending rule expanding the reporting requirements for institutions for foreign gifts and contracts.

“Now is not the time to impose substantial new regulatory burdens on institutions, and significant challenges in implementation, when campuses are closing and responding to the emergency conditions they’re facing,” he said.

“We have significant concerns that institutions won’t have the bandwidth or the resources to implement these regulations,” said Matt Owens, the Association of American Universities’ executive vice president and vice president for federal relations.

“This is not the time,” said Elizabeth Tang, education and workplace justice counsel at the National Women’s Law Center. “Students and families are struggling to provide for their basic needs, and schools scrambling to provide online resources. It would be absolutely inappropriate to issue a new rule in the midst of all this.”

The law center has said it would file a suit to block the rule if the final version is similar to the initial version DeVos proposed. Many of the Trump administration’s rules have been blocked in court, she said. But Sokolow, writing in Inside Higher Ed, warned institutions will have to respond to a new rule even if it is being challenged in court.

“It’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined,” he wrote in a Jan. 15 opinion piece on the potential impact of the new rule on institutions.

Source: https://www.insidehighered.com/news/2020/03/23/live-updates-latest-news-coronavirus-and-higher-education

Categories
Title IX

National Association of Scholars. Title IX Tool Kit

What is Title IX?

Why is Title IX controversial?

Why should Title IX concern NAS members?

Where does Title IX stand now?


What is Title IX?

Title IX refers to the 1972 Educational Amendments to the federal Higher Education Act of 1965. Title IX prohibits discrimination based on sex at schools receiving federal funds. Such schools include colleges, universities and also many secondary schools (high schools). It reads as follows:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Why is Title IX controversial?

Originally uncontroversial. Title IX was not originally controversial. It was well supported at the time it was enacted and was understood to be simply a guarantee that women should have the same educational opportunities as men. Courts confirmed this understanding by interpreting Title IX as protecting educational access.

The controversy started with athletics. Title IX became controversial later: During the Clinton Administration, Title IX was interpreted by federal agencies (such as the Office of Civil Rights or “OCR” in the Education Department) to mean parity in funding for college athletics – that is, schools receiving federal funds were required to allocate the same financial resources to female athletics as they did toward male athletics. As a result, many male sports teams – wrestling, baseball, swimming – were defunded while many female sports teams – lacrosse, volleyball, soccer – began to receive support. (In many instances, male football teams consumed inordinate resources, including scholarship money, leaving less for other male athletic programs.)

The controversy escalated when sexual assault was said to be discrimination. In 2011 the OCR under President Obama again caused controversy when it announced in a Dear Colleague Letter (“DCL”) that sexual violence was a form of sex discrimination prohibited by Title IX. That announcement, now referred to simply as “the 2011 DCL,” tasked college Title IX offices with finding and punishing sexual violence or lose federal funds. As a result, college administrators with no experience handling accusations of serious – even criminal – misconduct began acting as police, judge and jury in the politically charged area of sexual assault.

These controversies represent administrative overreach, not law. In both the Clinton and Obama-era directives, Title IX policy changes were neither by law nor by regulation but instead were advanced in Departmental correspondence, also called “sub-regulatory guidance.” Such initiatives are controversial in and of themselves as they have the trappings of law without actually having been enacted as law by Congress or by an agency via the rule-making process.

Due process protections eroded or absent. Just as concerning, neither the 2011 DCL nor the campus officials acting pursuant to it provided procedural protections to students accused of sexual misconduct such as the presumption of innocence, the right to know and respond to complaints, the right to confront witnesses and accusers, and the right to impartial decision-makers to resolve allegations.

Protections such as these are basic rights in the American justice system; they are referred to as due process of law.

In campus Title IX administration, however, such due process rights were largely cast aside in favor of support for those making sexual assault accusations and those wanting to find and punish sexual violence on campus.

Campus kangaroo courts, then lawsuits. Soon after the 2011 DCL, stories of kangaroo court experiences surfaced: Male students reported being summarily ejected from campus based on unproven complaints with no opportunity to respond; some recounted that Title IX administrators both investigated and adjudicated allegations (a due process red flag since such roles should be separate) who then found guilt with comments such as, “I bet you assault girls all the time.” Others were subject to complaints about incidents years earlier or subject to gag orders prohibiting them from discussing allegations, or defenses to them, even with family or counsel.

Female students often felt similarly shortchanged: Accusations against star athletes, for example, were allegedly processed more slowly and ended with lighter punishments.

Unsurprisingly, many students and their families became angry with these quasi-criminal tribunals, which seemed to operate lawlessly but with real power (consequences for those “found responsible” include suspension, expulsion and permanent marks on an academic record). They began to sue in real courts – to date almost 500 lawsuits have been filed – and often prevailed by proving either due process violations or conduct code violations or even Title IX violations, showing that the Title IX process itself constituted discrimination against male students on the basis of sex!

Why should Title IX concern NAS members?

Title IX gives destructive feminist ideology real power over disfavored (usually male) students. Title IX is an area of concern for NAS because Title IX administration, like much of academia today, is dominated by feminist, ideological thinking. However, unlike much of academia, the Title IX office has direct power to hurt targeted students, both in subjecting them to a lawless, quasi-legal process, often instigated by Title IX officers themselves and therefore with a pre-determined outcome; and by punishing them, often arbitrarily, with real damage to reputation as well as to educational and professional careers.

Title IX is too often political correctness – feminist anger at “toxic masculinity” – run amok.

Title IX is seeping into the justice system. Title IX poses risk also outside of campus: Due process denial is seeping into other types of adjudication – not only student conduct hearings but also into the legal profession. For example, many campus nondiscrimination policies utilize the concept of “affirmative consent” when evaluating sexual assault complaints; this concept imposes a legal obligation, mostly on men, to obtain explicit, verbal consent at every stage of sexual intimacy or face the risk of rape charges. This standard inverts the presumption of innocence but has been proposed repeatedly to the American Bar Association as the new norm to adopt in criminal proceedings.

Title IX’s promotion of “hook-up culture” endangers students, especially women. Further, visits to Title IX offices show a deep commitment to sexual promiscuity: Sex-on-demand, pornography-on-demand and abortion-on-demand are all promoted in brochures, pamphlets and condom distribution programs as a way of saying: “Women, just like men, can also have sex without consequences – equal opportunity love ‘em and leave em …”

This mentality is embodied in the term “hook up culture,” and includes the idea, expressed by one Title IX staff member, of “healthy hook ups”- transient, sterile and numerous sexual encounters as a healthy way to live.

This, of course, is both false and dangerously misleading to young people and especially to young women. It is precisely the hook-up culture that is giving rise not only to sexual misconduct allegations – including the phenomenon of regretted sex – but also putting students at risk of disease (sexually transmitted infections or STIs), depression, and abortion. All of these problems disproportionately plague women.

In short, the prevailing Title IX feminist ideology endangers all students –but especially female students.

By teaching sexual indulgence and victimization, Title IX robs students of real freedom. Finally, the hook-up culture that results in so many Title IX complaints (and therefore rationalizes Title IX administrator jobs) also teaches self-indulgence and instant gratification instead of self-restraint and self- discipline. It is the latter, however, that allows students to achieve both academic and professional success and also, ultimately, true freedom enabling a life of the mind and virtuous citizenship – the proper goals of higher education.

Where does Title IX stand now?

2011 DCL rescinded in 2017; new regulations proposed in 2018. In September of 2017, President Trump’s Secretary of Education, Betsy DeVos rescinded the 2011 DCL and in November of 2018, new regulations implementing Title IX were proposed; public comment on those regulations closed in early 2019. The Office of Budget and Management also received comments; those meetings conclude in April of 2020.

New regulations expected in 2020. The new regulations have not yet been formally issued; they are expected to be released some time later this year.

New regulations should restore due process. The new regulations go a long way toward restoring due process protections and clarifying the Title IX obligations of schools receiving federal funds (called “recipients” or “recipient schools”) For example, the proposed regulations require schools 1) to presume the innocence of those accused; 2) to give accused students the opportunity to learn the specifics of allegations and to respond; and 3) to hold live hearings at the college level, with the opportunity to cross-examine witnesses and accusers.

The proposed regulations also require a more objective definition of sexual misconduct that qualifies as sexual discrimination under Title IX, including that any conduct complained of result in denied access to educational opportunities. (Many schools had adopted expansive definitions of “prohibited conduct” with no reference to educational access.)

What can or should NAS members do about Title IX?

Title IX is broken. The hundreds of successful lawsuits against campus Title IX offices show that the current Title IX regime is broken. NAS members should be ready to point this out.

Secretary DeVos is trying to fix it. The effort to fix this broken system should also be commended and statements to support the Trump Administration, and Secretary DeVoss in particular, are encouraged.

A teaching moment? Time for a serious conversation about due process and sexual ethics. On campus, Title IX conversations actually present a teaching moment, so to speak: At issue are two areas of importance both for young people and for the country: First is the rule of law and the critical role of due process protections in any sound legal system involving accusers and those accused; second, is the matter of sexual ethics and the obligations and rights of both men and women when socializing or dating.

Hopefully, discussions can go beyond shallow name-calling and ideology to arrive at a greater understanding and appreciation of both legal and social norms.

Materials/Toolkit:

From Campus to Kavanaugh

OMB Remarks

ABA Affirmative Consent Comment

Categories
Title IX

Tenth Circuit: There’s nothing we can do about accused student’s ‘railroading’

An appellate court decision last week illustrates the uphill battle that often faces students who seek relief from unfair campus disciplinary proceedings in court — but several other recent decisions suggest a potential path forward for these students.

In its March 9 opinion in Doe v. University of Denver, the U.S. Court of Appeals for the Tenth Circuit acknowledged that a student’s sexual misconduct disciplinary proceeding appeared to have been nothing short of “a railroading,” but still dismissed his claims against the university.

The student plaintiff, John Doe, had sex with a fellow student, Jane Doe, in October 2014. Six months later, in April 2015, Jane’s then-boyfriend reported the encounter to an RA as a sexual assault. The university then contacted Jane, who filed an official complaint with DU’s Office of Equal Opportunity. The allegation was non-consensual sexual intercourse based on coercion, which the university defines as “‘unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will,’ such as ‘continued pressure’ after ‘someone makes clear that they do not want to engage in sexual contact.’”

So where does that leave the large number of students who are railroaded in campus proceedings that are obviously biased against respondents? A few recent decisions suggest some other potential paths forward.

Among other things, John’s lawsuit alleged that in adjudicating his case, DU — a private university — had discriminated him on the basis of his sex in violation of Title IX. John made several arguments in support of this claim, but ultimately, the viability of his Title IX claim turned entirely on whether the court felt that obvious anti-respondent bias — at a school where 100% of respondents in recent years had been male — was sufficient to sustain a claim of gender bias.

First, John argued that the Office for Civil Rights’ 2011 Dear Colleague Letter, and the pressure DU felt to comply with it (as evidenced by a number of steps the university took in its wake) gave rise to “an inference of gender bias.” Like many other courts, the Tenth Circuit held that this alone was insufficient to constitute evidence of gender bias. Rather, John would have also needed to show evidence “that would indicate that DU’s decision in his particular case was based on his gender,” which the court held he had not done.

Next, John presented “statistical evidence showing an overwhelming disparity in the gender makeup of sexual-assault complainants and sexual-assault respondents at DU.” Specifically, “between 2011 and 2016, nearly all complainants (35 out of 36) were female, and all respondents (36 out of 36) were either listed as male or could be presumed to be male based on the nature of the complaint.” The court held, however, that there were many “nondiscriminatory explanations” for this disparity, so it could not be treated as evidence of gender bias absent “something like an affidavit from a knowledgeable person stating the school exhibits a pattern of prosecuting complaints against male but not female students.”

John also presented evidence of what he argued was gender bias in DU’s sexual misconduct proceedings, such as training materials referring to complainants as “survivors” and directing administrators to “communicate that you believe the survivor.” The court held that this “evidence demonstrates at most that DU had an anti-respondent or pro-complainant bias, which is insufficient to create an inference of anti-male bias.”

Finally, John presented extensive evidence that the university was biased against him in his own disciplinary proceeding. The court agreed that there was “colorable evidence” that the university’s proceeding was biased, based on the fact that the university (among other things):

  • “refused to follow leads that were potentially exculpatory”;
  • “disbelieved Plaintiff from the outset due to the ‘innate motive’ respondents have to lie about wrongdoing … while failing to consider obvious motives Jane might have to lie about the extent to which she initiated or invited the sexual encounter, such as her new boyfriend’s insistence that she report the incident as well as his presence at her initial reporting and subsequent interviews”;
  • “emphasized inconsistencies in Plaintiff’s and his roommate’s story while disregarding numerous inconsistencies in the versions of the story told by Jane and her friend”;
  • “suggested Plaintiff’s failure to recollect details was indicative of deception and guilt while suggesting Jane’s failure to recollect details was the result of intoxication.”

The court wrote that “an accumulation of irregularities all disfavoring the respondent becomes deeply troubling because benign, stochastic explanations for the errors become implausible. Instead, it looks more like a railroading.” (Emphasis added).

Then, in a remarkable passage dismissing John Doe’s Title IX claim, the court wrote:

We are not unmindful that the combination of this statistical disparity and overt anti-respondent bias—a combination not unlikely to recur with some frequency at other schools—raises palpable concerns that schools might be making a distinction without a real difference and that stereotypes and prejudices against a class protected by Title IX (males) are beginning to infect the enforcement of sexual-misconduct policies under the auspices of presumptions regarding an unprotected class (respondents). Nevertheless, these concerns do not alter the obligation of a Title IX plaintiff opposing summary judgment to adduce evidence from which a reasonable factfinder could infer that the school’s proceeding was motivated by considerations of gender.

This is the starkest exposition yet of something that a large number of courts have already held: egregious anti-respondent bias does not support a Title IX claim — even if most or all respondents are male — unless there is evidence tying that specifically to gender bias. That is because there is no claim under Title IX for “disparate impact”; rather, there has to be evidence of intentional sex discrimination.

So where does that leave the large number of students who are railroaded in campus proceedings that are obviously biased against respondents? A few recent decisions suggest some other potential paths forward.

Due process

First, at public universities, obvious anti-respondent bias may be a constitutional due process issue. While Title IX is limited to remedying bias based on sex, due process requires a proceeding free of any sort of bias. Recently, several courts have held that evidence of anti-respondent bias was sufficient to sustain an accused-student plaintiff’s due process claim.

In Averett v. Hardy, No. 3:19-cv-00116 (W.D. Ky. Mar. 3, 2020), for example, the plaintiff alleged that the university’s investigator, who also served as the presiding hearing officer, was biased against him. Among other things, he alleged that the investigator only sought out evidence that confirmed his guilt, and that she “forced him to truncate his written witness statement which prevented him from fully presenting his defense.” The court agreed that this constituted a plausible due process violation.

Similarly, in Doe v. University of South Alabama, an Alabama federal district court held that the student plaintiff had plausibly alleged a due process violation based on “allegations that indicate there may be a personal relationship between individual defendants and accusers or interested parties,” resulting in impermissible bias.

Breach of contract

At both public and private universities, biased proceedings may also give rise to a breach of contract claim where the university promises a fair and unbiased process. In Doe v. Rollins College, the U.S. District Court for the Middle District of Florida used the same evidence to grant summary judgment to the college on the student plaintiff’s Title IX claim, but to deny summary judgment to the college on his breach of contract claim.

On his Title IX claim, the court held that while the plaintiff had cast articulable doubt on the outcome of the proceedings, he had not presented evidence of gender bias. The court agreed that the college had taken a “victim-centered” approach to the case, but, like so many other courts, held that pro-victim bias was not equivalent to gender bias.

The court then held, however, that Rollins may have breached its own policy promising to provide a fair resolution in disciplinary proceedings. Specifically, the court held:

[Plaintiff John] Doe did not provide sufficient evidence of gender bias for a Title IX claim, but he did provide sufficient evidence that Rollins favored the reporting student. Doe presented evidence Rollins didn’t treat him fairly or equitably—deciding he was responsible before hearing his side of the story and failing to follow procedures mandated by the Policy and Responding Party Bill of Rights. There is a genuine dispute whether Rollins responded fairly and equitably to Jane Roe’s allegation, precluding summary judgment.

In another recent decision, a New York federal district court found in Doe v. Syracuse University that by making a “result-driven determination” that was not “rationally based on the evidence,” Syracuse University may have violated its contractual promise to adjudicate sexual misconduct claims using a preponderance of the evidence standard.

Choose your claim carefully

These decisions illustrate that while Title IX claims continue to be an imperfect vehicle for accused students seeking relief from campus disciplinary proceedings that are stacked against them, those same claims of bias may prove stronger in the due process or breach of contract contexts, which do not require a showing that the bias was gender-specific.

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
Campus Sexual Assault Title IX

OCR Is About to Rock Our Worlds

ATIXA, the association of Title IX administrators I serve as president, anticipates publication of the final Title IX regulations in the Federal Register within the coming weeks. The federal government last issued Title IX regulations in 1975, so this is somewhat unprecedented. The proposed changes are far more sweeping than the 2011 Dear Colleague letter promulgated by the Office for Civil Rights (OCR). The changes coincide with a due process revolution occurring in some federal courts, as well, with respect to college and university disciplinary processes.

What Will These Changes Mean for Higher Education?

Perhaps 75 to 80 percent of the proposed regulations mandate neutral or beneficial changes or clarifications. Many of the more controversial changes will probably be addressed by a future Congress or through litigation. Some of the proposed changes included in the draft that OCR shared publicly last November may not make it into the final rule.

Most of the changes revolve around due process, which protects all of us, regardless of our campus role or status. They include provisions requiring more substantive written notice to the respondent of the nature of sexual misconduct allegations, the right of the parties to review investigation materials prior to a final determination and the right to a written rationale for the outcome and any sanctions assigned. For the most part, these are rights you would want to protect you if you were accused — rightfully or wrongfully — of sexual misconduct.

What Do We Do Now?

We at ATIXA suggest that colleges and universities continue to honor “best practices” commonly adopted by the higher education field, while moving gradually toward implementing the changes that the regulations will require. Some changes, like equitable interim resources and supports for responding parties, can be implemented now without radical alteration of programs. In its 2011 guidance, OCR was explicit about the need for institutions to provide broad-based supports and resources to victims of sex discrimination, such as counseling services, academic accommodation and housing changes. Now, OCR is making clear its expectation that those supports and resources also be offered to respondents. Many colleges already do so, but OCR wants to ensure uniform provision of services by all funding recipients.

Similarly, colleges can act now to extend all VAWA Section 304 rights to parties in sexual harassment cases. In 2014, Congress enacted amendments to the Violence Against Women Act (VAWA), which now are incorporated into the federal Clery Act. These changes codified as law some provisions of Title IX that were previously only proffered as regulatory agency guidance and added many provisions requiring training and prevention by colleges. Oddly, the protections of VAWA Section 304 only extended to what have become known as the “big four” offenses of sexual violence, dating violence, domestic violence and stalking. That created an asymmetry because Title IX protections include not only these four offenses but also conduct like sexual harassment and disparate-treatment sex discrimination that VAWA does not. Institutions were left with two competing laws that did not fully parallel each other. OCR’s proposed regulation logically aligns VAWA and Title IX so that rights do not vary by the type of sex offense alleged.

Thus, institutions can take steps such as providing written notice of the outcome of an allegation to all parties, not just in the big four offenses, but for sexual harassment, too. Additionally, institutions can ensure equitable provision of advisers across all cases impacted by Title IX, not just for those involving the big four.

These kinds of changes will give administrators a head start on compliance before the regulations are even released. Once released, there will be an implementation grace period of perhaps 90 days to as much as 12 months from publication of the final rule to allow colleges and universities time to move toward compliance. So we’re still some months from an enforcement deadline, even if we are unsure what that deadline will be.

What Do We Do When the Regulations Are Published?

Higher education needs to move toward compliance or to decide to litigate the validity of the regulations against the U.S. Department of Education — or both. OCR is obligated to address, in aggregate, the nearly 130,000 comments it received during the public notice-and-comment period. The pressure is on for OCR to make it clear in its responses that its rules are rationally related to the statute, especially with a U.S. Supreme Court that appears increasingly hostile philosophically to agency rules.

Once OCR publishes the final rule, it will expect good-faith efforts to comply. With respect to litigation, it’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined. Unless and until a judge says that they don’t have to comply, colleges and universities will need to become compliant.

It took the higher education field three to four years to fully implement the 2011 guidance, but that kind of lethargy won’t be an option with these new regulations. They will have the force of law behind them rather than simply serving as guidance. Drag your feet on implementation and responding parties will sue the minute you are not according them the full panoply of rights OCR has promised them. Fail to provide the responding party with a copy of the investigation report or sufficient time to prepare for a hearing and you should expect a motion for a temporary restraining order from their lawyer.

The catch-22 is that when you move to compliance, activists will sue to argue that the regulations are ultra vires and anti-victim expansions of agency authority. They will surely challenge provisions that require disclosure to responding parties all evidence provided by reporting parties, even when that evidence is not admissible or used to support a decision. This rule will create a chilling effect on reporting parties and, it will be argued, is beyond the scope of OCR’s authority to enact under the statute. Similar arguments could be made to collaterally attack OCR’s proposed requirements for live hearings and cross-examination facilitated by the parties’ advisers. In fact, activists aren’t the only cohort likely to attack such provisions, as some private colleges are also planning to litigate any attempt to impose a live hearing requirement on them, and have already funded a significant war chest to do so.

Within this highly politicized crucible where any action or inaction will catalyze litigation, institutions need to form committees, task forces and Title IX teams now, so that administrators can study the regulations and commentary when they are published and change what needs to be changed. Faculty grievance processes will be an issue that administrators will have to face and resolve now, if they didn’t back in 2011. OCR is forcing the issue, and Title IX offices are probably going to be between a rock and a hard place — with faculty members who advocate for additional protections, such as clear and convincing evidence as a standard of proof for those accused of sexual assault, while others strongly advocate for preponderance of the evidence.

What Do We Do If We Don’t Agree With Some Provisions Within the Regulations?

About 20 to 25 percent of the regulations are potentially very detrimental to the cause of sex and gender equity in education, and we will need as a field to find ways to work within those requirements, challenge them in court or find clever work-arounds. Proposed provisions on notice, mediation, mandated reporting, live hearings and cross-examination could create significant chilling effects on the willingness of those who experience discrimination, harassment and sexual violence to report it to administrators and pursue formal resolution pathways.

Let’s drill down on each of these proposed provisions a bit. OCR seeks to limit the ways in which recipients are legally put on notice of sex discrimination. Institutions might see this as a welcome safe harbor, but why would colleges and universities want to make it harder to report and respond to incidents? The opening of access and “no wrong doors” approach to intake has been one of the most valuable and enduring legacies of the 2011 guidance, and it has resulted in substantial increases in reporting of incidents for most colleges.

OCR also now plans to remove the “soft ban” on mediation of sexual violence it implemented in 2011. The vast majority of sexual harassment claims can and should be resolved informally, but we need to be sure that the parties are participating voluntarily and not being pressured to minimize the severity of what has happened to them. And many in the field are rightfully concerned about whether colleges and universities have access to mediators skilled enough to resolve allegations of violence. Lower-level sexual harassment is very amenable to resolution via mediation, but the data on whether the same is true for violent incidents is much less conclusive.

Live hearings and cross-examination are the most controversial provisions of the proposed regulations. Of the nearly 130,000 comments submitted to OCR on the draft regulation, most were negative, with a particular targeting of OCR’s desire to turn educational resolution processes into mini-courtrooms that mirror criminal trials. Part of the reason many victims/survivors don’t choose to report campus sexual violence to law enforcement is because they prefer the less formal and less adversarial resolution processes in place at schools and colleges. It will take a strong person to be willing to go through a process where they will be subject to cross-examination by the other party’s lawyer. And, importantly, no research indicates that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct allegation a full and fair opportunity to review and contest all evidence prior to a final determination.

In light of all of this tumult, perhaps the healthiest mind-set is to view the regulations mostly as setting a floor for compliance and to institutionally commit to aim for the ceiling of best practices. Many organizations, including ATIXA, will continue to offer the field extensive guidance on how to evolve exemplary programs within the framework OCR is establishing, and outside it, where we can.

What is clear is that the pendulum is about to swing too far, again. The regulations have the potential to create significant public backlash, especially if colleges are seen as institutionally deprioritizing Title IX compliance in the coming months and years. Potential victims need to see you strengthening your program, not backing down. They are likely to perceive barriers to coming forward in the new rules, and administrators need to do everything possible to reassure potential victims that the Title IX office is still here for them, and that you’ll do everything not prohibited by the regulations to make reporting easier, offer services and resources, establish a process that is transparent and user-friendly, and avoid revictimization.

Regardless, some activists may turn some of their frustration with OCR on you, and we encourage you to be sympathetic, to encourage their voices and to be thoughtful about the ways that remedies-only and informal resolutions may be used to ameliorate or exacerbate the effects of the changes that OCR is catalyzing.

One thing is for sure — defining and maintaining sex and gender equity programmatic excellence in an environment of regulatory change, politicization of Title IX and fervent litigation will be among the most pressing challenges facing colleges and universities in 2020 and for some time to come.

Source: https://www.insidehighered.com/views/2020/01/15/how-respond-new-federal-title-ix-regulations-being-published-soon-opinion

Categories
Title IX

Secretary DeVos Announces New Civil Rights Initiative to Combat Sexual Assault in K-12 Public Schools

Having trouble viewing this email? View it as a Web page.

US Department of Education

February 26, 2020

Dear Superintendent:

I am pleased to share the following information with you regarding an important initiative within the Department of Education’s Office for Civil Rights (OCR). Today, Secretary Betsy DeVos announced that she has directed OCR to examine the problem of sexual assault in public elementary and secondary schools. As a part of this effort, OCR will focus on ensuring that school districts understand how to effectively respond, under Title IX, to complaints of sexual harassment and assault, including sexual acts perpetrated upon students by teachers, school staff, and personnel. I am writing to inform you of this initiative and to reiterate the significance of your efforts to ensure that every child has an opportunity to attend school free from concerns about sexual assault.

Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C §§ 1681 et seq. prohibits discrimination on the basis of sex in education programs and activities operated by recipients of Federal financial assistance. Title IX’s prohibition on discrimination includes many forms of sexual harassment and assault, which can interfere with students’ right to receive an education free from discrimination on the basis of sex. Furthermore, OCR requires that schools and districts take appropriate steps to address sex discrimination, including sexual harassment and assault. The requirements of Title IX apply to incidents of sexual harassment and assault, including incidents that involve student-on-student misconduct and staff-on-student misconduct.

In 2019, OCR’s receipt of K-12 sexual harassment complaints—which includes complaints involving sexual violence—was nearly fifteen times greater than it was a decade ago in 2009. OCR’s initiative will provide focused support in how schools respond to complaints arising from sexual assault. This multi-faceted initiative will include different components that seek to strengthen OCR’s Title IX enforcement in elementary and secondary public schools in the area of sexual assault and sexual violence. Specifically, OCR will engage in the following activities related to this initiative:

  • Conducting Compliance Reviews: OCR will conduct compliance reviews in schools and school districts, examining how sexual assault cases, including sexual incidents involving teachers and school staff, are handled under Title IX. As a part of this process, OCR will identify compliance concerns and work with schools to correct any identified noncompliance.
  • Raising Public Awareness and Support: OCR will focus on raising awareness of the issues of sexual assault and sexual violence in K-12 schools, including making information available to parents and families. As a part of this initiative, OCR will provide assistance to districts to effectively handle sexual assault allegations under Title IX through technical assistance, training opportunities, and sharing Departmental resources.
  • Data Quality ReviewsOCR will conduct Data Quality Reviews (DQRs) of the sexual assault/sexual offenses data submitted by school districts through the Civil Rights Data Collection (CDRC).OCR will partner with the National Center for Education Statistics (NCES) to help districts accurately report sexual assault/sexual offenses through the CRDC.
  • New CRDC QuestionsOCR has proposed, for the 2019-2020 CRDC collection, to collect more detailed data on sexual assault. Significantly, the proposed collection would include data elements that require reporting incidents perpetrated by a school or staff member. This is the first time OCR has specifically proposed including such data in the CRDC data collection. The inclusion of this data—if included in the final CRDC survey for the 2019-2020 school year—would make the CRDC collection the first universal collection to gather such data, systematically, by school.[1]

I recognize and appreciate your efforts to ensure that all students are safe and benefit from the educational opportunities guaranteed under Title IX. OCR is committed to supporting your school district as you work to ensure that appropriate processes and policies are in place to provide support to students and that you comply with the requirements of Title IX.

If you have any questions regarding this initiative, I encourage you to contact OCR’s Outreach, Prevention, Education and Non-discrimination (OPEN) Center. The OPEN Center is focused on providing technical assistance and support to schools, educators, families, and students to ensure better awareness of the requirements and protections of federal non-discrimination laws. You can e-mail the OPEN Center at OPEN@ed.gov, or call 202-453-6580.

Sexual harassment and violence are never acceptable and must be dealt with accordingly. This is particularly true when those in authority, such as teachers or school personnel, are involved in such incidents. This initiative further demonstrates OCR’s commitment to supporting schools in their implementation of policies and practices that keep students safe and engaged in the learning environment. OCR appreciates your efforts to ensure safe and supportive learning environments for all of your students, and we look forward to working with you.

Sincerely,

/S/

Kenneth L. Marcus

Assistant Secretary for Civil Rights


[1] See https://www.regulations.gov/document?D=ED-2019-ICCD-0119-0001. Note that under the proposed collection, for the first year of the collection—the 2019-2020 school year—reporting on this data element would be optional.

Categories
Title IX

University of Virginia puts accused students through triple jeopardy

New Honor Committee bylaw is not a ‘failsafe option’

 

The U.S. Constitution bans double jeopardy in trials.

When it comes to campus sexual misconduct proceedings, though, the federal government actually orders double jeopardy when schools already have an appeals process (allowing accusers to appeal not-guilty findings).

But have you ever heard of triple jeopardy in a college proceeding?

The University of Virginia is giving accusers yet another bite at the guilt apple under a new bylaw adopted by its Honor Committee, the student-run and student-elected body that enforces code violations.

The committee was responding to a gap in its enforcement authority, which until recently did not cover Title IX cases. Lying during a Title IX proceeding, for example, would not be functionally punishable under the old honor code.

The Foundation for Individual Rights in Education analyzes the new bylaw, which it says was devised in good faith but went horribly wrong in practice.

Most of the bylaw (page 17) binds the Honor Committee to “dismiss any report of an alleged Honor Offense” when the conduct was deemed “previously adjudicated” by the Title IX coordinator:

The Title IX Coordinator will deem conduct raised in an Honor report to have been “previously adjudicated” pursuant to the Title IX Policy when the allegations made in the Honor report arise from testimony or other evidence relevant to, and considered in the course of, an investigation and Formal Resolution of alleged Prohibited Conduct pursuant to the Title IX Policy.

Samantha Harris, FIRE’s vice president for procedural advocacy, explains that this section limits the committee’s jurisdiction to “issues that arise during a Title IX proceeding that were immaterial to the outcome of the case.” In other words, it could punish conduct that had nothing to do with the Title IX finding.

The triple-jeopardy provision shows up in the last sentence of the lengthy bylaw addition, and it basically contradicts the rest of it:

Notwithstanding the foregoing, the Executive Committee, by unanimous vote, may override the Title IX Coordinator’s decision if it determines that such decision represents a fundamental misapplication of the description of “previous adjudication” set forth above.

This is not a “failsafe option,” Harris argues. It’s an invitation for mob rule, since any not-guilty finding by the Title IX apparatus is likely to outrage campus activists and direct their attention to the Honor Committee.

She notes that multiple court rulings highlight colleges punishing accused students in apparent response to public pressure, not because of the strength of the evidence against them.

“For the same reasons of fundamental fairness that our criminal justice system does not allow those accused of crimes to face double jeopardy, colleges and universities should not force their students to face multiple hearings for what is effectively the same charge,” Harris writes.

We already know that students chill their expression for fear of what their peers will think of their personal views. Why would we expect that they can withstand peer pressure when they have the power to actually change something: the exoneration of a student accused of sexual misconduct?

Categories
Title IX

Joe Biden’s Record on Campus Due Process Has Been Abysmal. Is It a Preview of His Presidency?

The 2020 hopeful used bogus statistics to change the way colleges treat students accused of sexual assault.

|