TIME MAGAZINE: Penn State of Mind
http://www.time.com/time/magazine/article/0,9171,2101025,00.html
ABC NEWS ARTICLE: Lessons for Penn State: Cover-Ups Cost Money, Student Lives
http://abcnews.go.com/Health/lessons-penn-state-college-cover-ups-protect-reputation/story?id=14977462
ARTICLE ABOUT CAMPUS SEXUAL ASSAULT IN U.S. CATHOLIC MAGAZINE
http://www.uscatholic.org/life/2011/11/getting-through-how-catholic-colleges-are-responding-sexual-assault?page=0,0
Tuesday, December 13, 2011
Monday, November 21, 2011
Article About NCHERM Appears in the Chronicle of Higher Education 11/21/11
The 'Fearmonger'
As liability worries rise, advising colleges on risk becomes a big business
Brett Sokolow's entrepreneurial zeal in the growing field of legal services in student affairs has attracted both clients and skeptics.
By Sara Lipka
Campus officials panic over the threat of a federal investigation. And few issues are as perilous as sexual assault. Administrators anxious about the Education Department's new rules for resolving complaints also dread being sued by students on either side.
Promotional offers of expert advice stoke those fears even as they promise to allay them: Everything you need to know to avoid fines and liability—just sign up for this training! This fall the brand-new Association for Title IX Administrators, named for the gender-equity law, issued more than 10,000 invitations to buy such reassurance, four days of it, for $2,500 a head.
The force behind the start-up is the National Center for Higher Education Risk Management, a law and consulting firm led by Brett A. Sokolow. In the growing field of legal services in student affairs, nobody is faster. A prolific writer and tireless self-promoter, Mr. Sokolow forms associations around hot topics like threat assessment and the prevention of health and safety hazards. Building an empire of acronyms, he has drawn both adherents and skeptics.
The firm has founded or financed three organizations since 2009. The National Behavioral Intervention Team Association, or Nabita, now counts 960 members; the School and College Organization for Prevention Educators, or Scope, has 150; and the Title IX group, known as Atixa, has registered 320 members since it started, in August. Over the next six months, Mr. Sokolow and two partners will run about 20 events under those banners.
What makes that pace possible, critics say, is presenting only a single position on, for example, federal regulations, rather than a range of interpretations, as workshops run by traditional professional associations tend to do. But nervous administrators crave clear instructions, and the new groups' events, which often outline model policies, sell out.
At Atixa's most recent training session, in a suburban Philadelphia hotel last month, four panelists sat flanked by projection screens. Mr. Sokolow, 40, in a navy blazer and paisley tie and handkerchief, insisted that colleges should treat sexual misconduct as a civil-rights issue and conduct thorough investigations of all complaints.
"The key piece you don't discover ends up being litigated," he told the participants. To do a decent job, any campus should have a separate Title IX coordinator and investigators, he recommended. "I hate to fearmonger," he said, "but I do."
Investigations are fairer than the hearings that many colleges now hold to resolve sexual-assault complaints, and administrators should switch models, Mr. Sokolow later told a reporter. "If you can't motivate them necessarily because it's the right thing to do," he said, "then the other piece of this is there are now consequences."
He'd prefer not to resort to fear, he said, but it works, especially when participants relay it to their presidents. At the training, he encouraged attendees to go back to their campuses and make the case for the resources they need; he recommended that colleges have six Title IX investigators. Atixa is offering a dozen training sessions for such investigators next year.
Registrations for Atixa's two most recent training sessions brought in more than $850,000. After such events, requests for the firm's legal and consulting services—including campus visits, with fees starting at $6,500 a day—typically increase by at least 20 percent, Mr. Sokolow said.
That market is driven by concerns about legal liabilities and federal regulations that are more complex than ever, said Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University. "We're in a new era of the compliance university."
A competitive risk-management industry is a sign of the times, and old sources of advice, like professional associations, are falling behind, said Mr. Lake, who also consults on campuses. "There's no question that the third-party-vending world is going to rise."
At Your Service
Dating a survivor of sexual assault made Mr. Sokolow an activist, he said. As a student at the College of William & Mary, he lobbied the administration to do more to respond to rape ("I was marginally successful," he said), and he went to Washington to campaign for the Campus Sexual Assault Victims' Bill of Rights, which Congress enacted in 1992.
In law school at Villanova University, he studied how federal civil-rights statutes could be interpreted to compel colleges to protect victims' rights and resolved to make that his life's work. As he saw it, he had two options: "I could be the kind of person who sued colleges," he said, "or I could be the sort of person who was working for change from the inside."
He chose the latter, opening the National Center for Higher Education Risk Management in 2000. As business picked up, he recruited two partners, W. Scott Lewis, then assistant vice provost at the University of South Carolina and now associate general counsel at Saint Mary's College, in Indiana; and Saundra K. Schuster, a former associate dean of students at Ohio State University and general counsel at Sinclair Community College, also in Ohio.
Today the firm, known as Ncherm (pronounced EN-kerm), retains seven additional consultants and advertises more than two dozen areas of expertise, including campus safety, classroom management, and disability law. It offers to train campus police and resident assistants, review staff manuals and student-government constitutions, and provide expert witnesses in cases involving, among other issues, National Collegiate Athletic Association violations and hazing. The firm's Web site indicates that the available services extend beyond the many that are listed, noting: "Please let us know how we can meet your needs."
Twenty-seven institutions, including Milwaukee Area Technical College and Tulane University, have retained Ncherm as special counsel, and Mr. Sokolow counts 2,200 clients that have used the firm's services. It distributes several free books and sells other items, like the Complete 2006 and 2007 Student Suicide Webinar Series, for $599.99.
Though now offering wide-ranging services, Mr. Sokolow long focused on sexual assault, advocating for more federal guidance and advising colleges to tighten their policies, by, for example, lowering the burden of proof in sexual-assault cases to "more likely than not." In April the Education Department delivered much of what he envisioned when it issued a forceful "Dear Colleague" letter, directing colleges to, among other things, use the lower burden of proof and eliminate mediation in sexual-assault cases.
"It probably comes within 70 to 80 percent of the prescription we've been giving out to the ailing patient for years," Mr. Sokolow said. As he told Philadelphia magazine in September, "The 'Dear Colleague' letter was one of the most important moments of my professional life."
Immediately afterward, the firm issued a statement touting its "unrivaled depth of understanding of best practices" and announcing its training courses. "We trust that you will continue to turn to Ncherm to keep you out ahead of the government's expectations," it said.
'Not a Traditional Nonprofit'
In its marketing, the group regularly refers to itself as a nonprofit. But the impression that description evokes, of a tax-exempt organization with transparent finances, isn't accurate. Ncherm is registered in Pennsylvania as a nonprofit corporation, which means it must pay taxes and disburse all of its annual revenue in expenses, including salaries.
Nonprofit corporations are run essentially as businesses, said David M. Watts, a tax lawyer in Harrisburg, Pa. "As a practical matter, they aren't necessarily that different." Technically no individual can profit, but salaries have no limit. "It's a matter of terminology," he said.
Mr. Sokolow declined to divulge his salary, which he said would distract from his contributions to the field. Nor would he disclose his firm's revenues, saying only that with one exception, they've grown by more than 30 percent a year. He isn't compelled to share such information, he said: "We're not a traditional nonprofit."
So why advertise that way? "If people perceived that the motive was all profit making, they would be suspicious," he said. He sought nonprofit status because his motive was advocacy. "We make good money, don't get me wrong," he said. "I always say we're doing well while doing good."
Ncherm operates out of Mr. Sokolow's house, a $1.2-million colonial at the end of a cul-de-sac along suburban Philadelphia's Main Line. So do two of the new affiliate groups, which he seeded with revenue from the firm and set up as membership organizations.
Traditionally such groups are formed when campus-based administrators unite, but Mr. Sokolow wanted to convene them, he said. "The model for each of the associations was to bring together the best minds."
The idea for the behavioral-intervention group, Nabita, came from Cori M. Sokolow, his wife and the executive director of Ncherm. Nabita, now preparing for its third annual conference, is a "big tent" that includes presentations by speakers with whom he disagrees, Mr. Sokolow said. Its presidency has been transferred from him to his two Ncherm partners, Ms. Schuster and Mr. Lewis.
Last summer, when the firm's first certification program for Title IX administrators sold out, its partners decided to start another group. "We said, You know what, this is the moment,'" Mr. Sokolow recalled. "We did Atixa lightning quick."
They transferred the relevant intellectual property from Ncherm to Atixa and developed a new Web site, representing members with stock photographs of smiling, diverse professionals—photos also used by CarMax and the Colorado Women's Chamber of Commerce.
"Why Join Atixa?" the site asks. "You should know that OCR is cracking down on enforcement," it says, referring to the Education Department's Office for Civil Rights. "Title IX is fertile litigation territory, and institutional and personal liability are real, and very often, uninsurable." Annual membership in the group, $599 for an individual or $2,499 for a college, provides benefits that include legal updates, quarterly newsletters, and access to an e-mail list.
'So Much That We're Needing'
At the training last month, representatives from a range of institutions—Colgate and Yale Universities, Grand Rapids Community College, the University of Northern Colorado—collected hefty spiral-bound manuals: 300 pages of model policies, position papers, and PowerPoint slides, each bearing an Atixa copyright.
Ginger Morgan, associate dean of students at Colorado College, admitted that she was somewhat skeptical. "There's a self-interest in creating a professional association," she said. But at the same time, Mr. Sokolow and his partners are familiar with federal recommendations and legal precedents, and talented at drafting policies, she said. "I'm sitting here at this conference and finding it incredibly beneficial."
The groups make clear their connections; Mr. Sokolow's e-mail signature lists him as managing partner of Ncherm and executive director of both Nabita and Atixa. The organizations share space and three employees, but are independent, self-sustaining nonprofit corporations with separate memberships and events, he said.
Several participants in the recent training were unaware of the relationships, and upon discovering them didn't care. "It was a great experience," said Eddie Pawlawski, executive vice president of Cumberland University, in Tennessee. "It was everything that I felt like I needed to have."
He saw a flier for Ncherm's special-counsel program and did not object to it. "I didn't feel like I was being solicited at all," he said. "We have so much that we're needing information about in higher education."
Atixa reached out to campus officials again this month, releasing a statement on the sexual-abuse scandal at Pennsylvania State University. Title IX can be used to hold colleges liable for "deliberate indifference," the failure to remedy sexual assault, the statement said. It encouraged readers to contact Mr. Sokolow for more information.
Offers of expertise pour in from all over. "There are Webinars and conferences and workshops till the cows come home," said Gary Dickstein, assistant vice president for student affairs at Wright State University. "The more seasoned a professional is, the more choosy they are."
Others may act on impulse in signing up. "When you have limited resources, limited staffing, and you know there's something out there that you have to get on the ball and learn about," Mr. Dickstein said, "you look for the easiest and fastest way to get it done."
A general counsel at a regional public institution, already faced with two legal cases involving sexual misconduct, said he had come to Atixa's training because he was "scared to death" by the Education Department's letter. The agenda looked so useful that the university decided to send three officials, for a total of about $10,000, including travel expenses.
"We have a pretty substantial investment," said the general counsel, who asked not to be named. "But of course, you get one case, ... " he added, trailing off.
Atixa's training includes certification, which the group advertises as helpful in legal defense. No external authority verifies the credential, but it still conveys confidence, said Karen S. McIntyre, senior vice president for academic and student affairs at Point Park University, in Pennsylvania, who also attended. "The certification for us internally verifies that it was comprehensive," she said.
For some of the topics on which Mr. Sokolow's groups offer workshops, practitioners have challenged his qualifications. One campus official, who asked that his name not appear, had looked into Mr. Sokolow's recommendations for stemming substance abuse. "I tried to find that he had the content-area training and was unable to find that," he said. "The stuff he says people should be doing, is there any research to support it?"
College counseling-center directors also questioned Ncherm's expertise—and motives—on their private e-mail list in 2009. Mr. Sokolow replied openly on his blog, describing his diligent research and regular visits to campuses. His services have expanded, he wrote, based on demand.
"As my work became known and trusted, our clients called upon us for help with more and more of the issues vexing higher education," he wrote. "Value received for value given is honest, ethical and part of the integrity of who we are and what we do."
Desperately Seeking Guidance
Competition from professional associations and other vendors is picking up, especially for guidance on sexual misconduct. Both the National Association of College and University Attorneys and the insurer United Educators gave Webinars this month and will offer online courses in the spring. Margolis Healy & Associates, a small business led by two former campus police chiefs, is about to run its second Title IX training session, two days for $895. The law firm Ballard Spahr recently hired a second former sex-crimes prosecutor for its Title IX practice, whose business doubled this year.
Meanwhile, Atixa is marketing itself aggressively, especially to community colleges, which tend not to have in-house lawyers and really need advice, Mr. Sokolow said. His group plans to conduct three more certification courses for Title IX administrators, then offer advanced training as well as special sessions for both investigators and victim advocates.
Campus officials are desperately seeking guidance on these issues, said Daniel C. Swinton, director of student conduct and academic integrity at Vanderbilt University and president of the Association for Student Conduct Administration. "The market will bear what people are seeking," said Mr. Swinton, who spoke at Atixa's most recent training.
Some administrators want to attend, but their institutions cannot afford it, Mr. Sokolow said. So he discounts or waives their registration fees. "When I want to help people," he said, "I do."
Each event generates many follow-up e-mails from participants, which Mr. Sokolow and his partners are happy to answer. "We don't start the meter running," he said.
Each week they also respond to dozens of questions on professional associations' e-mail lists. Even if no clients come from that outreach, Mr. Sokolow said, it positions his team as "thought leaders" in the field.
Committed to his career, Mr. Sokolow estimates that he works about 90 hours a week. He plans to double his roster of affiliated consultants by the end of the year. From time to time he wonders when business will taper off, but for now, he sees no signs of that.
The firm's clients return at a rate of 80 percent, he said. Fear, it seems, still sells.
Reprinted With Permission of the Chronicle
As liability worries rise, advising colleges on risk becomes a big business
Brett Sokolow's entrepreneurial zeal in the growing field of legal services in student affairs has attracted both clients and skeptics.
By Sara Lipka
Campus officials panic over the threat of a federal investigation. And few issues are as perilous as sexual assault. Administrators anxious about the Education Department's new rules for resolving complaints also dread being sued by students on either side.
Promotional offers of expert advice stoke those fears even as they promise to allay them: Everything you need to know to avoid fines and liability—just sign up for this training! This fall the brand-new Association for Title IX Administrators, named for the gender-equity law, issued more than 10,000 invitations to buy such reassurance, four days of it, for $2,500 a head.
The force behind the start-up is the National Center for Higher Education Risk Management, a law and consulting firm led by Brett A. Sokolow. In the growing field of legal services in student affairs, nobody is faster. A prolific writer and tireless self-promoter, Mr. Sokolow forms associations around hot topics like threat assessment and the prevention of health and safety hazards. Building an empire of acronyms, he has drawn both adherents and skeptics.
The firm has founded or financed three organizations since 2009. The National Behavioral Intervention Team Association, or Nabita, now counts 960 members; the School and College Organization for Prevention Educators, or Scope, has 150; and the Title IX group, known as Atixa, has registered 320 members since it started, in August. Over the next six months, Mr. Sokolow and two partners will run about 20 events under those banners.
What makes that pace possible, critics say, is presenting only a single position on, for example, federal regulations, rather than a range of interpretations, as workshops run by traditional professional associations tend to do. But nervous administrators crave clear instructions, and the new groups' events, which often outline model policies, sell out.
At Atixa's most recent training session, in a suburban Philadelphia hotel last month, four panelists sat flanked by projection screens. Mr. Sokolow, 40, in a navy blazer and paisley tie and handkerchief, insisted that colleges should treat sexual misconduct as a civil-rights issue and conduct thorough investigations of all complaints.
"The key piece you don't discover ends up being litigated," he told the participants. To do a decent job, any campus should have a separate Title IX coordinator and investigators, he recommended. "I hate to fearmonger," he said, "but I do."
Investigations are fairer than the hearings that many colleges now hold to resolve sexual-assault complaints, and administrators should switch models, Mr. Sokolow later told a reporter. "If you can't motivate them necessarily because it's the right thing to do," he said, "then the other piece of this is there are now consequences."
He'd prefer not to resort to fear, he said, but it works, especially when participants relay it to their presidents. At the training, he encouraged attendees to go back to their campuses and make the case for the resources they need; he recommended that colleges have six Title IX investigators. Atixa is offering a dozen training sessions for such investigators next year.
Registrations for Atixa's two most recent training sessions brought in more than $850,000. After such events, requests for the firm's legal and consulting services—including campus visits, with fees starting at $6,500 a day—typically increase by at least 20 percent, Mr. Sokolow said.
That market is driven by concerns about legal liabilities and federal regulations that are more complex than ever, said Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University. "We're in a new era of the compliance university."
A competitive risk-management industry is a sign of the times, and old sources of advice, like professional associations, are falling behind, said Mr. Lake, who also consults on campuses. "There's no question that the third-party-vending world is going to rise."
At Your Service
Dating a survivor of sexual assault made Mr. Sokolow an activist, he said. As a student at the College of William & Mary, he lobbied the administration to do more to respond to rape ("I was marginally successful," he said), and he went to Washington to campaign for the Campus Sexual Assault Victims' Bill of Rights, which Congress enacted in 1992.
In law school at Villanova University, he studied how federal civil-rights statutes could be interpreted to compel colleges to protect victims' rights and resolved to make that his life's work. As he saw it, he had two options: "I could be the kind of person who sued colleges," he said, "or I could be the sort of person who was working for change from the inside."
He chose the latter, opening the National Center for Higher Education Risk Management in 2000. As business picked up, he recruited two partners, W. Scott Lewis, then assistant vice provost at the University of South Carolina and now associate general counsel at Saint Mary's College, in Indiana; and Saundra K. Schuster, a former associate dean of students at Ohio State University and general counsel at Sinclair Community College, also in Ohio.
Today the firm, known as Ncherm (pronounced EN-kerm), retains seven additional consultants and advertises more than two dozen areas of expertise, including campus safety, classroom management, and disability law. It offers to train campus police and resident assistants, review staff manuals and student-government constitutions, and provide expert witnesses in cases involving, among other issues, National Collegiate Athletic Association violations and hazing. The firm's Web site indicates that the available services extend beyond the many that are listed, noting: "Please let us know how we can meet your needs."
Twenty-seven institutions, including Milwaukee Area Technical College and Tulane University, have retained Ncherm as special counsel, and Mr. Sokolow counts 2,200 clients that have used the firm's services. It distributes several free books and sells other items, like the Complete 2006 and 2007 Student Suicide Webinar Series, for $599.99.
Though now offering wide-ranging services, Mr. Sokolow long focused on sexual assault, advocating for more federal guidance and advising colleges to tighten their policies, by, for example, lowering the burden of proof in sexual-assault cases to "more likely than not." In April the Education Department delivered much of what he envisioned when it issued a forceful "Dear Colleague" letter, directing colleges to, among other things, use the lower burden of proof and eliminate mediation in sexual-assault cases.
"It probably comes within 70 to 80 percent of the prescription we've been giving out to the ailing patient for years," Mr. Sokolow said. As he told Philadelphia magazine in September, "The 'Dear Colleague' letter was one of the most important moments of my professional life."
Immediately afterward, the firm issued a statement touting its "unrivaled depth of understanding of best practices" and announcing its training courses. "We trust that you will continue to turn to Ncherm to keep you out ahead of the government's expectations," it said.
'Not a Traditional Nonprofit'
In its marketing, the group regularly refers to itself as a nonprofit. But the impression that description evokes, of a tax-exempt organization with transparent finances, isn't accurate. Ncherm is registered in Pennsylvania as a nonprofit corporation, which means it must pay taxes and disburse all of its annual revenue in expenses, including salaries.
Nonprofit corporations are run essentially as businesses, said David M. Watts, a tax lawyer in Harrisburg, Pa. "As a practical matter, they aren't necessarily that different." Technically no individual can profit, but salaries have no limit. "It's a matter of terminology," he said.
Mr. Sokolow declined to divulge his salary, which he said would distract from his contributions to the field. Nor would he disclose his firm's revenues, saying only that with one exception, they've grown by more than 30 percent a year. He isn't compelled to share such information, he said: "We're not a traditional nonprofit."
So why advertise that way? "If people perceived that the motive was all profit making, they would be suspicious," he said. He sought nonprofit status because his motive was advocacy. "We make good money, don't get me wrong," he said. "I always say we're doing well while doing good."
Ncherm operates out of Mr. Sokolow's house, a $1.2-million colonial at the end of a cul-de-sac along suburban Philadelphia's Main Line. So do two of the new affiliate groups, which he seeded with revenue from the firm and set up as membership organizations.
Traditionally such groups are formed when campus-based administrators unite, but Mr. Sokolow wanted to convene them, he said. "The model for each of the associations was to bring together the best minds."
The idea for the behavioral-intervention group, Nabita, came from Cori M. Sokolow, his wife and the executive director of Ncherm. Nabita, now preparing for its third annual conference, is a "big tent" that includes presentations by speakers with whom he disagrees, Mr. Sokolow said. Its presidency has been transferred from him to his two Ncherm partners, Ms. Schuster and Mr. Lewis.
Last summer, when the firm's first certification program for Title IX administrators sold out, its partners decided to start another group. "We said, You know what, this is the moment,'" Mr. Sokolow recalled. "We did Atixa lightning quick."
They transferred the relevant intellectual property from Ncherm to Atixa and developed a new Web site, representing members with stock photographs of smiling, diverse professionals—photos also used by CarMax and the Colorado Women's Chamber of Commerce.
"Why Join Atixa?" the site asks. "You should know that OCR is cracking down on enforcement," it says, referring to the Education Department's Office for Civil Rights. "Title IX is fertile litigation territory, and institutional and personal liability are real, and very often, uninsurable." Annual membership in the group, $599 for an individual or $2,499 for a college, provides benefits that include legal updates, quarterly newsletters, and access to an e-mail list.
'So Much That We're Needing'
At the training last month, representatives from a range of institutions—Colgate and Yale Universities, Grand Rapids Community College, the University of Northern Colorado—collected hefty spiral-bound manuals: 300 pages of model policies, position papers, and PowerPoint slides, each bearing an Atixa copyright.
Ginger Morgan, associate dean of students at Colorado College, admitted that she was somewhat skeptical. "There's a self-interest in creating a professional association," she said. But at the same time, Mr. Sokolow and his partners are familiar with federal recommendations and legal precedents, and talented at drafting policies, she said. "I'm sitting here at this conference and finding it incredibly beneficial."
The groups make clear their connections; Mr. Sokolow's e-mail signature lists him as managing partner of Ncherm and executive director of both Nabita and Atixa. The organizations share space and three employees, but are independent, self-sustaining nonprofit corporations with separate memberships and events, he said.
Several participants in the recent training were unaware of the relationships, and upon discovering them didn't care. "It was a great experience," said Eddie Pawlawski, executive vice president of Cumberland University, in Tennessee. "It was everything that I felt like I needed to have."
He saw a flier for Ncherm's special-counsel program and did not object to it. "I didn't feel like I was being solicited at all," he said. "We have so much that we're needing information about in higher education."
Atixa reached out to campus officials again this month, releasing a statement on the sexual-abuse scandal at Pennsylvania State University. Title IX can be used to hold colleges liable for "deliberate indifference," the failure to remedy sexual assault, the statement said. It encouraged readers to contact Mr. Sokolow for more information.
Offers of expertise pour in from all over. "There are Webinars and conferences and workshops till the cows come home," said Gary Dickstein, assistant vice president for student affairs at Wright State University. "The more seasoned a professional is, the more choosy they are."
Others may act on impulse in signing up. "When you have limited resources, limited staffing, and you know there's something out there that you have to get on the ball and learn about," Mr. Dickstein said, "you look for the easiest and fastest way to get it done."
A general counsel at a regional public institution, already faced with two legal cases involving sexual misconduct, said he had come to Atixa's training because he was "scared to death" by the Education Department's letter. The agenda looked so useful that the university decided to send three officials, for a total of about $10,000, including travel expenses.
"We have a pretty substantial investment," said the general counsel, who asked not to be named. "But of course, you get one case, ... " he added, trailing off.
Atixa's training includes certification, which the group advertises as helpful in legal defense. No external authority verifies the credential, but it still conveys confidence, said Karen S. McIntyre, senior vice president for academic and student affairs at Point Park University, in Pennsylvania, who also attended. "The certification for us internally verifies that it was comprehensive," she said.
For some of the topics on which Mr. Sokolow's groups offer workshops, practitioners have challenged his qualifications. One campus official, who asked that his name not appear, had looked into Mr. Sokolow's recommendations for stemming substance abuse. "I tried to find that he had the content-area training and was unable to find that," he said. "The stuff he says people should be doing, is there any research to support it?"
College counseling-center directors also questioned Ncherm's expertise—and motives—on their private e-mail list in 2009. Mr. Sokolow replied openly on his blog, describing his diligent research and regular visits to campuses. His services have expanded, he wrote, based on demand.
"As my work became known and trusted, our clients called upon us for help with more and more of the issues vexing higher education," he wrote. "Value received for value given is honest, ethical and part of the integrity of who we are and what we do."
Desperately Seeking Guidance
Competition from professional associations and other vendors is picking up, especially for guidance on sexual misconduct. Both the National Association of College and University Attorneys and the insurer United Educators gave Webinars this month and will offer online courses in the spring. Margolis Healy & Associates, a small business led by two former campus police chiefs, is about to run its second Title IX training session, two days for $895. The law firm Ballard Spahr recently hired a second former sex-crimes prosecutor for its Title IX practice, whose business doubled this year.
Meanwhile, Atixa is marketing itself aggressively, especially to community colleges, which tend not to have in-house lawyers and really need advice, Mr. Sokolow said. His group plans to conduct three more certification courses for Title IX administrators, then offer advanced training as well as special sessions for both investigators and victim advocates.
Campus officials are desperately seeking guidance on these issues, said Daniel C. Swinton, director of student conduct and academic integrity at Vanderbilt University and president of the Association for Student Conduct Administration. "The market will bear what people are seeking," said Mr. Swinton, who spoke at Atixa's most recent training.
Some administrators want to attend, but their institutions cannot afford it, Mr. Sokolow said. So he discounts or waives their registration fees. "When I want to help people," he said, "I do."
Each event generates many follow-up e-mails from participants, which Mr. Sokolow and his partners are happy to answer. "We don't start the meter running," he said.
Each week they also respond to dozens of questions on professional associations' e-mail lists. Even if no clients come from that outreach, Mr. Sokolow said, it positions his team as "thought leaders" in the field.
Committed to his career, Mr. Sokolow estimates that he works about 90 hours a week. He plans to double his roster of affiliated consultants by the end of the year. From time to time he wonders when business will taper off, but for now, he sees no signs of that.
The firm's clients return at a rate of 80 percent, he said. Fear, it seems, still sells.
Reprinted With Permission of the Chronicle
Friday, November 18, 2011
NCHERM Managing Partner Brett A. Sokolow, Esq. Quoted in ABC News Story About Penn State Scandal
http://abcnews.go.com/Health/lessons-penn-state-college-cover-ups-protect-reputation/story?id=14977462
Friday, November 11, 2011
ATIXA Statement on the Penn State Sexual Abuse Scandal
ATIXA Statement on the Penn State Sexual Abuse Scandal -- November 11th, 2011 -- Malvern, PA
Much has been said and will be written about Jerry Sandusky and the sex abuse scandal involving Penn State University. ATIXA, the Association of Title IX Administrators, is dedicated to advancing information about and compliance with the federal Title IX statute, and will address the Title IX implications of this case.
Our thoughts are with the victims and their families who will never be the same. We are also transfixed, as are so many of us, by the human tragedy of university administrators entrusted with a public duty who sacrificed uncounted young boys to misplaced loyalties. What they knew will come out and we will continue to examine the Title IX implications of the information.
Much is being made of the criminal acts of Sandusky and those who covered for him. In the coming weeks and months, Penn State will be investigated for violating the Clery Act, a federal campus crime reporting law that requires reporting of forcible sex offenses. Lawsuits are likely, and will likely allege that the university -- and perhaps collaborating local officials – were negligent and exposed countless boys to foreseeable harm by failing to fulfill their duties to report and to act.
Will much be made of the Title IX implications of this case? We hope so. Title IX will celebrate its 40th anniversary in June of 2012. Title IX has for nearly 40 years been a tool to assure gender equity in educational programs at schools and colleges. Far beyond equalizing teams, athletic facilities and resources spent on athletics, Title IX can be used to hold school districts and colleges liable for failing to remedy gender discrimination, sexual harassment and sexual assault.
Liability for Title IX is premised on notice of discriminatory conduct to high-ranking school or campus officials who then respond to that notice with deliberate indifference – failing to take reasonable actions to put an end to the behavior and prevent it from recurring. Title IX also imposes a duty to remedy the effects of the discrimination on the victims. Courts commonly find that a single act of rape is enough to create a discriminatory effect on the basis of gender.
Title IX has no statute of limitations. Courts implied the right to sue under Title IX, and when they did, they never specified a time limitation for filing. In this case, we might see whether acts dating back to 1998 (or earlier) and 2002 that were known to campus officials are still actionable by the victims and their families in the courts. In the case of child victims, courts can be very lenient on tolling the right to file suit, as happened in many of the clergy abuse cases filed against the Catholic Church.
The 40+ count indictment of Sandusky makes clear that the highest ranking officials of Penn State had knowledge of his pattern of abuse and even rape. That is why they have lost their jobs and some are facing prosecution for failing to report the abuse as a crime to authorities. Their failure to act can also form the basis for allegations of deliberate indifference under Title IX. Forcing Sandusky’s early retirement, allegedly taking away the keys to the locker room, and sending him off to run a camp in Erie may not be enough to shield Penn State from Title IX liability. Perhaps Sandusky wasn’t an employee at the time, but was he an agent? The acts occurred on university property. The victims weren’t students at Penn State, but they may have been lured there through its programs.
What we do know is that the proper application of Title IX – stopping discriminatory behavior through reporting and action -- could likely have prevented what has become a large-scale tragedy. And this is why ATIXA continues to strive for a standard where all K-12 schools, colleges and universities – not just departments within these institutions – properly apply the law. ATIXA hopes that the lessons learned from this case permeate our culture to lessen any tolerance for sexual harassment, assault and abuse in any form.
For additional information, contact ATIXA Executive Director Brett A. Sokolow, Esq. Brett@atixa.org. (610) 993-0229. www.atixa.org.
Much has been said and will be written about Jerry Sandusky and the sex abuse scandal involving Penn State University. ATIXA, the Association of Title IX Administrators, is dedicated to advancing information about and compliance with the federal Title IX statute, and will address the Title IX implications of this case.
Our thoughts are with the victims and their families who will never be the same. We are also transfixed, as are so many of us, by the human tragedy of university administrators entrusted with a public duty who sacrificed uncounted young boys to misplaced loyalties. What they knew will come out and we will continue to examine the Title IX implications of the information.
Much is being made of the criminal acts of Sandusky and those who covered for him. In the coming weeks and months, Penn State will be investigated for violating the Clery Act, a federal campus crime reporting law that requires reporting of forcible sex offenses. Lawsuits are likely, and will likely allege that the university -- and perhaps collaborating local officials – were negligent and exposed countless boys to foreseeable harm by failing to fulfill their duties to report and to act.
Will much be made of the Title IX implications of this case? We hope so. Title IX will celebrate its 40th anniversary in June of 2012. Title IX has for nearly 40 years been a tool to assure gender equity in educational programs at schools and colleges. Far beyond equalizing teams, athletic facilities and resources spent on athletics, Title IX can be used to hold school districts and colleges liable for failing to remedy gender discrimination, sexual harassment and sexual assault.
Liability for Title IX is premised on notice of discriminatory conduct to high-ranking school or campus officials who then respond to that notice with deliberate indifference – failing to take reasonable actions to put an end to the behavior and prevent it from recurring. Title IX also imposes a duty to remedy the effects of the discrimination on the victims. Courts commonly find that a single act of rape is enough to create a discriminatory effect on the basis of gender.
Title IX has no statute of limitations. Courts implied the right to sue under Title IX, and when they did, they never specified a time limitation for filing. In this case, we might see whether acts dating back to 1998 (or earlier) and 2002 that were known to campus officials are still actionable by the victims and their families in the courts. In the case of child victims, courts can be very lenient on tolling the right to file suit, as happened in many of the clergy abuse cases filed against the Catholic Church.
The 40+ count indictment of Sandusky makes clear that the highest ranking officials of Penn State had knowledge of his pattern of abuse and even rape. That is why they have lost their jobs and some are facing prosecution for failing to report the abuse as a crime to authorities. Their failure to act can also form the basis for allegations of deliberate indifference under Title IX. Forcing Sandusky’s early retirement, allegedly taking away the keys to the locker room, and sending him off to run a camp in Erie may not be enough to shield Penn State from Title IX liability. Perhaps Sandusky wasn’t an employee at the time, but was he an agent? The acts occurred on university property. The victims weren’t students at Penn State, but they may have been lured there through its programs.
What we do know is that the proper application of Title IX – stopping discriminatory behavior through reporting and action -- could likely have prevented what has become a large-scale tragedy. And this is why ATIXA continues to strive for a standard where all K-12 schools, colleges and universities – not just departments within these institutions – properly apply the law. ATIXA hopes that the lessons learned from this case permeate our culture to lessen any tolerance for sexual harassment, assault and abuse in any form.
For additional information, contact ATIXA Executive Director Brett A. Sokolow, Esq. Brett@atixa.org. (610) 993-0229. www.atixa.org.
Wednesday, November 9, 2011
How to Put the Penn State Scandal to Rest
The formula to put this to rest isn’t that complicated. It will linger as a scandal for years of media coverage and litigation (like Duke) unless the Board acts decisively, which it appears inclined to do as evidenced by its firings tonight of President Graham Spanier and coach Joe Paterno. Next steps...
Step 1: apologize and come clean. We knew and we ignored it and covered-up.
Step. 2: publicly admit Clery Act and Title IX violations.
Step 3: Settle with the victims and families before they even hire a lawyer.
Then, healing and growing as a community can start sooner than later.
Brett A. Sokolow, Esq.
Managing Partner, NCHERM
Step 1: apologize and come clean. We knew and we ignored it and covered-up.
Step. 2: publicly admit Clery Act and Title IX violations.
Step 3: Settle with the victims and families before they even hire a lawyer.
Then, healing and growing as a community can start sooner than later.
Brett A. Sokolow, Esq.
Managing Partner, NCHERM
Monday, October 31, 2011
NCHERM Partner Saundra K. Schuster, Esq., Quoted in Campus Legal Advisor About Online Free Speech Cases
http://www.ncherm.org/documents/CampusLegalAdvisorNOv2011-Seepage6.pdf
Response to the Anonymous Dean
On October 28, 2011, an anonymous student affairs administrator wrote an “Open Letter to OCR” that was published in Inside Higher Education. ATIXA’s comments are annotated to the original letter, reproduced below, and appear in italics:
Dear Colleague,
Actually, let me rephrase that.
Dear Attorneys Who Are Employed by the Education Department’s Office for Civil Rights,
There. That's better. Because despite the fact that you addressed me as a "colleague" in the April 4, 2011 missive that has made my professional life so difficult, a document that has become familiar to me and my (actual) colleagues as the "Dear Colleague Letter," you are not my colleague. A colleague is someone I work with. You are a group of mostly nameless, faceless individuals who crafted a 19-page document that at best complicates my work, at worst undermines my judgment and my ability to make good decisions for my institution and my students.
Not that we haven't needed some guidance in this area. Sexual assault is indeed a difficult and ubiquitous problem in our work. Drunk students are vulnerable to becoming victims. Drunk students are emboldened to become assailants. And I have a lot of drunk students. We all do. Despite our best efforts to provide alcohol-free activities, alcohol education and significant sanctions for alcohol-fueled behavioral problems, there is still no activity on our campuses that can compete with drinking for students' interest and affection. I work for a selective institution whose students are academically pretty strong. It's not as bad on my campus as it seems to be on others. But it's bad, and I have the incident reports to prove it.
A few years ago, the Center for Public Integrity published a report that excoriated that excoriated colleges and universities for their handling of sexual assault cases. It was an absolutely indicting report... unless the reader was, like I am, a student affairs professional who could easily imagine being the one publicly criticized in the report. Yes, I could imagine it. Not that I believed at that point (or since) that I had mismanaged a sexual assault case, but because the ones I had managed were enormously complex, full of truths, lies, reversals, angry parents, hungry lawyers and empowered supporters.
In each of these, I did my best to navigate the extremely difficult landscape, managing to avoid a public airing of the case by an ill-informed media or a lawsuit brought by a student (victim or accused) who felt wronged in the process. This is not at all to say I'm incredibly skilled. Luck probably plays more a part in this than most of us feel comfortable admitting publicly. I happen to know some of the professionals the CPI report criticizes, and I doubt I am much more competent than any of them. I have just been fortunate not to have been the one in the proverbial hot seat, directing a process that is complicated and flawed, at the precise moment several factors merged to create a public relations and professional disaster.
Please don't interpret my comments to mean that I don't appreciate the Office for Civil Rights' efforts to try to assist me in doing my work. I'm always eager for new perspectives that increase my knowledge and strategies related to sexual misconduct response. In laying out some guidelines for how I should inform my students of our policies, ferry them through the process, and report the outcomes, you have given me and my (real) colleagues some consistent expectations that allow us to keep the issue of sexual misconduct in the forefront of our minds as we design our programs, interventions and support strategies.
You have, though, gone too far. While the legal experts out there have been commenting on, criticizing and calling for revisions of the Dear Colleague Letter, I've been plugging away here on my campus, trying to do, at the most fundamental level, the work you purport to oversee.
Let me say this respectfully and with as much clarity as I can: you do not know my work. You do not know what I face every day in responding to a student culture of alcohol-infused hook-ups, where regrettable sex is a daily occurrence. The law has defined sexual misconduct as any activity that takes place with a person who is incapacitated by alcohol or other drugs. That makes sense, until you have to determine what "incapacitation" entails. I'm not much of a drinker myself, but I know that a couple of drinks loosen my tongue enough to say things I might never say without the alcohol. Am I incapacitated? No. But my judgment is impaired.
ATIXA responds: Letters like this appear to mean well, and this one is no doubt well-intentioned. This dean is frustrated, feeling burdened and torn between serving victims and accused students with balance and equality. Yet, the problem with letters such as these is that they prime the audience for non-compliance with messages that convey (inaccurately) that Title IX is so burdensome, compliance is so onerous and the expectations are so unfair that colleges can’t possibly make everyone happy without running afoul of the government.
Let’s acknowledge that there are in the April 4th, 2011 Dear Colleague Letter some new responsibilities that add to the load by which administrators are already saddled. The Title IX Coordinator is a full-time job on many campuses. Training and prevention requirements are broad and deep. Yet, the burdens that this dean is expressing are largely of his or her own creation, and placing the blame on OCR for not understanding campus culture won’t help.
We hope the following comments from ATIXA will help. The dean references above that if s/he has a couple of drinks, s/he is impaired. While true, being impaired while engaging in sex in no way implicates Title IX. Perhaps much of the frustration in the field comes from assumptions of what Title IX addresses and what it does not. S/he was right when referencing the fact that incapacitated sex will implicate Title IX, but confusing incapacitation with impairment helps no one here, especially the students who are trying to understand their experiences. If we can’t define our own terms with clarity, how can they? How can we help them to contextualize a sexual experience that “feels icky” as distinct from a crime, as distinct from a policy violation and not as a gender-based violation of their civil rights?
In some situations, the student who is the accuser is clearly incapacitated -- practically (or actually) unconscious. In most cases, though, it's the impairment of her judgment -- agreeing to have sex with someone who, the next morning, she will regret having had sex with -- that causes her friends and supporters and other campus employees to tell her she's been sexually assaulted and needs to file a complaint. This process then begins the long journey down the rabbit hole of OCR-specified response that never ends well.
ATIXA responds: It only begins a process if an administrator lets it. Let’s shed the passive voice here and take ownership over our remedial processes. What is described here is not a severe, pervasive or persistent unwelcome sexual advance. Our deans need to be effective gatekeepers for the process. Investigate complaints, of course, but not every complaint should result in a charge.
Let me repeat that, because it haunts me: these things never end well. All students are traumatized to some degree or another. Families are devastated. And the professionals who must coordinate this process are expected to operate with constraints on our judgment and strategies imposed by a group of people who don't understand what we deal with every day, led by someone who has, according to her online bio, never done a job like mine.
ATIXA responds: Perhaps they never end well because we’re applying a conduct process designed to protect the rights of accused students, rather than deploying a civil rights lens? ATIXA’s upcoming November free webinar details what a civil rights investigation and grievance process is and how it works (http://atixa.org/events_webinars.html#free). In practice, many campuses experience higher levels of outcome satisfaction from this process, and greater perceptions of fairness and balance. Continuing to do what doesn’t work just doesn’t make sense. It’s time for a new paradigm.
Assistant Secretary for the Office of Civil Rights Russlynn Ali is an impressive woman, clearly dedicated to both the legal profession and to education. But nothing I have learned about her indicates that she has ever sat in a seat like mine or been in a position like mine, across from a college student who is reporting an alleged assault or a student who is hearing for the first time that he has been accused of one.
It is unlikely that Ms. Ali has ever sat at desk like mine, on the phone with a parent who cannot believe I allowed his daughter to drink, much less allowed (or not allowed -- always a difficult point to discuss) a "boy" to do the things her account reports. Or a parent who wants to know why I have sent her son home without so much as a hearing, an action we call "interim removal," while we investigate these claims.
"Because the alleged victim is afraid of seeing him, and the Office for Civil Rights has made it clear that our process must support the alleged victim in this way" is not an answer that satisfies an angry mother who believes that her son (1) has been unjustly accused, (2) has not been given a chance to defend himself (yet), and 3) may find his ability to succeed academically compromised by his absence from classes during this investigation. Has Ms. Ali ever had a parent, in a rageful voice, point out the inequity of all of this? Because I've experienced that on several occasions as I have tried to do what OCR expects from a "victim-friendly" policy.
ATIXA responds: Interim suspension should not be an automatic action. It is inequitable to disrupt an accused student’s academic pursuits without a credible complaint. That said, many campuses do not use it when it should be used. Interim suspension is appropriate for two reasons, 1) to protect the alleged victim/community from an ongoing threat of harm, or 2) to prevent the accused student from impeding the progress of the investigation. Not every complaint represents an ongoing threat, or at least evidences that threat early on. Interim suspension should be used as necessary (violence, predation, pattern, intentional incapacitation), but we can also look for ways for the accused student to continue academically during the suspension, including independent study, online, tutoring, etc.
Equating gender equity with being victim-friendly, as the dean does above, is a common misnomer. Being equitable is only victim-friendly if we haven’t been sufficiently victim-friendly in our processes in the past. The DCL mandates equity – doing what is fair under the circumstances. This is a nuanced and subtle mandate, not a blunt instrument. OCR wants us to avoid actions like the automatic “move the alleged victim’s class or room” philosophy that is prevalent on many college campuses, and ask what is fair under the circumstances. It doesn’t presume “guilt” to move an accused student to another section of the same class, or to move him to an equivalent room out of her residence hall. Students don’t have due process rights to a particular room or class section.
All OCR is saying is that gender equity demands we do not automatically inconvenience one gender (usually women), and ask whether it makes more sense to consider remedial actions toward the accused student given a credible accusation. Thus, if there is another equivalent class or room, consider moving him. If there is not an equivalent class, and the accused student and alleged victim are in the same class, offer the alleged victim alternative options such as an incomplete, independent study, etc. If they both want to remain in the class, then impose a no-contact order, send them to opposite sides of the room and let them finish the class. The DCL does not instruct us to kick the accused student out of the class in which he is enrolled, without proof of a violation, when there are no reasonable alternate academic options.
What is my response to that parent? That we are told to lead with belief of the alleged victim over the alleged accuser? Unlike a lawyer (and I suspect this is the crux of our differences), I am responsible for the welfare of all of my students — equally and dispassionately. Though I am often appalled by their actions, my job entails doing more than judging them.
ATIXA responds: We hope it is becoming clear that being unnecessarily polarizing isn’t constructive. Administrators don’t need to believe the alleged victim or disbelieve the accused student in order to implement equitable remedial actions. The talent is in finding ways that reasonably balance the rights of those involved.
My job is also to educate them. Yes, I can hear you now, as clearly as I can hear my more vociferous colleagues: sexual assault victims need to be supported and believed, and men need to be held accountable for their behavior. But you know what? I support my students every day. And I hold them accountable for their behavior. I determine how to do this based on more than two decades' worth of experience and interactions with them, and I tend to trust my judgment. I do not appreciate having my hands tied by the presumption of guilt the Dear Colleague Letter portrays.
ATIXA responds: We see that as a blatant straw man (or woman) argument. Nothing in Title IX or the DCL establishes or encourages a presumption of guilt (we prefer the term “violation” or “responsibility”). Being moved from one residence hall room to another room that is about the same, for the same cost, is not a punishment. For students and parents who decry not being able to live in the student’s room of choice, we think student affairs administrators need to push back against this attempt to recast entitlement and privilege as a due process right. That consumerist lens diminishes the dean to being nothing more than a customer service representative, and administrators contribute to commoditization of higher education when you roll over and accept that from parents and students. If it’s equitable to interim suspend a student, that doesn’t presume guilt. They may return from that suspension, be found not in violation in a hearing and continue with their studies. It might even be equitable to remediate the effect on the accused student of the disruption caused by the interim suspension. The law of interim suspension for colleges is very flexible and conveys broad discretion to administrators for the very reason that we have to prioritize the safety of our communities. That case law derives not from Title IX, but from challenges to due process.
Let me give you an example of a case I managed not long ago. I'll change a few of the facts, but not the ones that matter here. A woman, in speaking with her resident adviser, revealed that she had had sex with another student several days earlier. They had both been drinking. He invited her to his room and she went, enticed by the promise of more alcohol. Once there, he proceeded to kiss her, then do more, while she, according to her written report, "felt uncomfortable." Twice he stopped what he was doing and left her on the bed, once to turn on some music and once to get a condom. He also took a phone call in the middle of everything. She remained on his bed, thinking, "This is not really something that I want to do." She acquiesced to his request that she assume a certain position, that she do certain things to him. "But I really didn't want to." When he was done, he offered to walk her back to her dorm, and he did, saying goodnight to her and promising to see her the next morning at breakfast (which he did).
ATIXA responds: On some campuses, the prevailing reaction to the DCL is the creation of a victim-driven zeitgeist, and this dean is a perpetuator of it (I say this knowing that the dean may turn out to be client, but that’s the risk of commenting on anonymous letters, and there are larger lessons here). Victims should have the right to define their own experiences, but they do not have the right to define what violates our policy. We do, and we need to do a better job of defining what is transgressive. It doesn’t violate our policies just because a victim alleges it does. This dean’s letter just finds new and more politic ways to reiterate the tired “gray area” argument about campus sexual violence. As we’ve said for years, gray areas are created more by poorly articulated policy and insufficient training than by the incidents themselves.
The dean in this letter felt compelled to process this complaint against a male student. Why? What does his or her policy say about the behavior? It requires consent for sex. All of our policies should. Does it define consent, though? If so, does it define consent by what it is, or what it is not? Consent is simply clear sexual permission by word or action. It is active, knowing and voluntary. This dean talks of the lack of verbal consent in this case, but why would a policy require verbal consent? That’s not a requirement of Title IX. There are actions here that a conduct board could construe as consensual. That a male student may have then had consensual sex twice does not a pattern make (see continuation of the dean’s letter, below). Even if two female students file complaints about it.
This misunderstanding speaks to the need for clear policy standards, but also to a better-developed investigation capacity that determines once a complaint is made that there is reasonable cause to support a charge. Perhaps we don’t have all the facts here in the letter, but the specifics of what an alleged victim does can be as important as what an alleged victim says. This is not suggesting these women weren’t assaulted (though on the arguably limited facts as described here, we want to be VERY clear, there was no assault), but instead is asking if perhaps the campus zeitgeist isn’t influencing victims to define as victimization what our policies don’t specify as being violations? The runaway train effect of this leads to cases like the just-litigated case John Doe v. The University of the South, holding a student was negligently disciplined by the university for sexual misconduct. Details of that case can be found at http://atixa.wordpress.com/2011/10/14/the-important-lessons-of-john-doe-v-the-university-of-the-south-sewanee/
A week after she filed her report with us, beginning the process of charging him with sexual assault (she was, after all, drunk, and never verbally consented to any of his requests), a friend of hers came to us with a very similar report. Almost identical, in fact. He offered to share alcohol he had in his room. He quickly became intimate. She felt uncomfortable. He spoke, made requests, moved across the room for a condom from his dresser. She never verbally consented. She acquiesced to his requests without comment. He walked her back to her room. They had a friendly conversation the next day, and the day after that, just as they had before the incident. Both women then e-mailed their professors requesting some leniency for their class work because they had been "sexually assaulted in a dorm and were working on bringing charges against another student."
ATIXA responds: The dean raises the additional question of whether they were drunk. This again raises the red herring of confusing drunkenness with the policy standard of incapacitation. Drunk and incapacitated are not synonymous. Some drunk people have the capacity to give a rational, knowing consent to sex and some don’t. Those who don’t are incapacitated. Having sex with someone you know to be or should know to be incapacitated violates a well-defined policy. Having drunk sex should not violate a policy when you know you are having it, and are capable of making reasonable decisions at the time of the actions. Many students come to regret those actions later, and a supportive dean and counseling center are the right resources in such cases, not the student conduct process.
Two sexual assault charges against one student? Could I defend letting him remain on campus while we investigated this?
ATIXA responds: Yes, and it is the conduct administrator’s job to do so. If not, then it is the Title IX Coordinator’s.
My trusted (real) colleague said no -- that if that information got out to those on our campus who felt that we should have immediately removed him, the criticism would be sharp. Furthermore, my (real) colleague said, "If you don't, you are leaving yourself open to a clear violation of the spirit of the Dear Colleague Letter," which says that an institution must "take immediate action to eliminate the hostile environment… including taking interim steps before the final outcome of the investigation."
ATIXA responds: There were other options, including the non-contact orders, changes in housing and class schedules that we discussed above. Interim suspension should not be our go-to in cases where sexual contact cannot be established, or where consent was arguably present based on the initial investigated facts.
"But these women are not saying they feel threatened by his presence on campus."
"What if a third comes forward, and you have to explain that you knew about these first two and didn't immediately send him home?"
ATIXA responds: That assumes there was knowledge of previous violations. There were accusations, but not enough to establish a violation based on what is revealed here.
And so I did, and the case proceeded from there.
Looking back, I wish I had been able to bring these students together, to talk about what had happened, given them each a chance to air their grievances, respond, learn from what had happened. I have done that countless times in my office — mediated and sorted through differences between students who have behaved badly toward each other. I think this male student might have learned a lot about how to treat women. And perhaps these women would have learned something about self-respect, agency, their own perception of the place of sex in a relationship.
But the Dear Colleague Letter says clearly that "In cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis."
ATIXA responds: Correct. We can’t mediate campus sexual violence, and campuses shouldn’t. It’s too serious an offense. BUT, that doesn’t mean we lose the opportunity for the meaningful conversation. We can’t force it, but we can facilitate it. JUST NOT IN LIEU OF A PROMPT AND EQUITABLE REMEDY. Informal resolutions are encouraged. No need for an investigation or a hearing if the accused student is willing to accept responsibility for a violation early on in the process. From there, restorative justice might be a very cathartic and appropriate sanctioning paradigm. And, mediation is only barred in lieu of a remedy. If you find (as you should have above) that they accused students were not in violation through your formal process, and you THEN want to facilitate a mediation or other form of conflict resolution, Title IX would not prohibit that.
Finally, we need to be careful about assumptions here of the danger accused individuals may represent. Talking it out may make sense only when we assume that an act of sexual misconduct is the product of a misunderstanding or other correctable “mistake.” Restorative justice depends on sincere offender accountability. Yet, we know that most sexual misconduct is not the result of miscommunication, but of predation. 90% of assaults are committed by repeat offenders (Lisak & Miller, 2002). That doesn’t mean any one accused student is an offender until a preponderance of evidence establishes that. Once it does, the educator’s desire to rehabilitate needs to yield to our duties to protect the members of our community from someone who likely poses an ongoing risk of harm.
And my fear — yes, it's fear — of seeing my institution's name in Inside Higher Ed or The Chronicle of Higher Education as the subject of an investigation, or, even worse, having the "letter of agreement" OCR makes public displayed for all to read — makes me toe the line in a way I sometimes have trouble justifying to myself. I don't want my employer to be the next University of Notre Dame, College of Notre Dame, Yale, Eastern Michigan.
It's not that I believe that we shouldn’t be held accountable, and yes, it's likely that these and other institutions should have done things differently. It's just that in my most honest moments, despite the efforts of my (real) colleagues here to craft the best possible approach, I doubt our policies and practices could hold up to the intense scrutiny of the team of lawyers OCR will send after us should a complaint arise. Surely, I reason, you will find something, somewhere, that we could have done better. At that point, all the good we might have also done will be lost in the public critique you will offer and we, because we must, will accept without retort.
That should explain the fact that I am an anonymous author. For six months, my (real) colleagues, here and on other campuses, have been talking about the Dear Colleague Letter, about the problems it creates for us, about the apparent lack of understanding of student culture it demonstrates. But we never say these things too publicly. We worry about being branded "soft" on sexual assault by victims' rights groups and by the media, and we worry about attracting your attention. Our voice has been missing from this debate, just as it seems our input was missing from your letter.
ATIXA responds: That’s a very legitimate feeling of paralysis, but it is ATIXA’s mission to proffer models and advice on the practices that allow us to serve many masters without unduly compromising the interests of all parties.
None of us want you knocking on our doors, Title IX complaint in hand, ready to put us under the microscope and force us to explain to you, a group of skilled attorneys, why we did what we did. And that's the difference between you and my real colleagues: I value their feedback and criticism. In fact, we welcome it from each other, as evidenced by the conversations we constantly have about the decisions we are facing and the improvements we are always trying to make. But we trust that each of us understands what we are up against. I'm not at all sure you do.
Dear Colleague,
Actually, let me rephrase that.
Dear Attorneys Who Are Employed by the Education Department’s Office for Civil Rights,
There. That's better. Because despite the fact that you addressed me as a "colleague" in the April 4, 2011 missive that has made my professional life so difficult, a document that has become familiar to me and my (actual) colleagues as the "Dear Colleague Letter," you are not my colleague. A colleague is someone I work with. You are a group of mostly nameless, faceless individuals who crafted a 19-page document that at best complicates my work, at worst undermines my judgment and my ability to make good decisions for my institution and my students.
Not that we haven't needed some guidance in this area. Sexual assault is indeed a difficult and ubiquitous problem in our work. Drunk students are vulnerable to becoming victims. Drunk students are emboldened to become assailants. And I have a lot of drunk students. We all do. Despite our best efforts to provide alcohol-free activities, alcohol education and significant sanctions for alcohol-fueled behavioral problems, there is still no activity on our campuses that can compete with drinking for students' interest and affection. I work for a selective institution whose students are academically pretty strong. It's not as bad on my campus as it seems to be on others. But it's bad, and I have the incident reports to prove it.
A few years ago, the Center for Public Integrity published a report that excoriated that excoriated colleges and universities for their handling of sexual assault cases. It was an absolutely indicting report... unless the reader was, like I am, a student affairs professional who could easily imagine being the one publicly criticized in the report. Yes, I could imagine it. Not that I believed at that point (or since) that I had mismanaged a sexual assault case, but because the ones I had managed were enormously complex, full of truths, lies, reversals, angry parents, hungry lawyers and empowered supporters.
In each of these, I did my best to navigate the extremely difficult landscape, managing to avoid a public airing of the case by an ill-informed media or a lawsuit brought by a student (victim or accused) who felt wronged in the process. This is not at all to say I'm incredibly skilled. Luck probably plays more a part in this than most of us feel comfortable admitting publicly. I happen to know some of the professionals the CPI report criticizes, and I doubt I am much more competent than any of them. I have just been fortunate not to have been the one in the proverbial hot seat, directing a process that is complicated and flawed, at the precise moment several factors merged to create a public relations and professional disaster.
Please don't interpret my comments to mean that I don't appreciate the Office for Civil Rights' efforts to try to assist me in doing my work. I'm always eager for new perspectives that increase my knowledge and strategies related to sexual misconduct response. In laying out some guidelines for how I should inform my students of our policies, ferry them through the process, and report the outcomes, you have given me and my (real) colleagues some consistent expectations that allow us to keep the issue of sexual misconduct in the forefront of our minds as we design our programs, interventions and support strategies.
You have, though, gone too far. While the legal experts out there have been commenting on, criticizing and calling for revisions of the Dear Colleague Letter, I've been plugging away here on my campus, trying to do, at the most fundamental level, the work you purport to oversee.
Let me say this respectfully and with as much clarity as I can: you do not know my work. You do not know what I face every day in responding to a student culture of alcohol-infused hook-ups, where regrettable sex is a daily occurrence. The law has defined sexual misconduct as any activity that takes place with a person who is incapacitated by alcohol or other drugs. That makes sense, until you have to determine what "incapacitation" entails. I'm not much of a drinker myself, but I know that a couple of drinks loosen my tongue enough to say things I might never say without the alcohol. Am I incapacitated? No. But my judgment is impaired.
ATIXA responds: Letters like this appear to mean well, and this one is no doubt well-intentioned. This dean is frustrated, feeling burdened and torn between serving victims and accused students with balance and equality. Yet, the problem with letters such as these is that they prime the audience for non-compliance with messages that convey (inaccurately) that Title IX is so burdensome, compliance is so onerous and the expectations are so unfair that colleges can’t possibly make everyone happy without running afoul of the government.
Let’s acknowledge that there are in the April 4th, 2011 Dear Colleague Letter some new responsibilities that add to the load by which administrators are already saddled. The Title IX Coordinator is a full-time job on many campuses. Training and prevention requirements are broad and deep. Yet, the burdens that this dean is expressing are largely of his or her own creation, and placing the blame on OCR for not understanding campus culture won’t help.
We hope the following comments from ATIXA will help. The dean references above that if s/he has a couple of drinks, s/he is impaired. While true, being impaired while engaging in sex in no way implicates Title IX. Perhaps much of the frustration in the field comes from assumptions of what Title IX addresses and what it does not. S/he was right when referencing the fact that incapacitated sex will implicate Title IX, but confusing incapacitation with impairment helps no one here, especially the students who are trying to understand their experiences. If we can’t define our own terms with clarity, how can they? How can we help them to contextualize a sexual experience that “feels icky” as distinct from a crime, as distinct from a policy violation and not as a gender-based violation of their civil rights?
In some situations, the student who is the accuser is clearly incapacitated -- practically (or actually) unconscious. In most cases, though, it's the impairment of her judgment -- agreeing to have sex with someone who, the next morning, she will regret having had sex with -- that causes her friends and supporters and other campus employees to tell her she's been sexually assaulted and needs to file a complaint. This process then begins the long journey down the rabbit hole of OCR-specified response that never ends well.
ATIXA responds: It only begins a process if an administrator lets it. Let’s shed the passive voice here and take ownership over our remedial processes. What is described here is not a severe, pervasive or persistent unwelcome sexual advance. Our deans need to be effective gatekeepers for the process. Investigate complaints, of course, but not every complaint should result in a charge.
Let me repeat that, because it haunts me: these things never end well. All students are traumatized to some degree or another. Families are devastated. And the professionals who must coordinate this process are expected to operate with constraints on our judgment and strategies imposed by a group of people who don't understand what we deal with every day, led by someone who has, according to her online bio, never done a job like mine.
ATIXA responds: Perhaps they never end well because we’re applying a conduct process designed to protect the rights of accused students, rather than deploying a civil rights lens? ATIXA’s upcoming November free webinar details what a civil rights investigation and grievance process is and how it works (http://atixa.org/events_webinars.html#free). In practice, many campuses experience higher levels of outcome satisfaction from this process, and greater perceptions of fairness and balance. Continuing to do what doesn’t work just doesn’t make sense. It’s time for a new paradigm.
Assistant Secretary for the Office of Civil Rights Russlynn Ali is an impressive woman, clearly dedicated to both the legal profession and to education. But nothing I have learned about her indicates that she has ever sat in a seat like mine or been in a position like mine, across from a college student who is reporting an alleged assault or a student who is hearing for the first time that he has been accused of one.
It is unlikely that Ms. Ali has ever sat at desk like mine, on the phone with a parent who cannot believe I allowed his daughter to drink, much less allowed (or not allowed -- always a difficult point to discuss) a "boy" to do the things her account reports. Or a parent who wants to know why I have sent her son home without so much as a hearing, an action we call "interim removal," while we investigate these claims.
"Because the alleged victim is afraid of seeing him, and the Office for Civil Rights has made it clear that our process must support the alleged victim in this way" is not an answer that satisfies an angry mother who believes that her son (1) has been unjustly accused, (2) has not been given a chance to defend himself (yet), and 3) may find his ability to succeed academically compromised by his absence from classes during this investigation. Has Ms. Ali ever had a parent, in a rageful voice, point out the inequity of all of this? Because I've experienced that on several occasions as I have tried to do what OCR expects from a "victim-friendly" policy.
ATIXA responds: Interim suspension should not be an automatic action. It is inequitable to disrupt an accused student’s academic pursuits without a credible complaint. That said, many campuses do not use it when it should be used. Interim suspension is appropriate for two reasons, 1) to protect the alleged victim/community from an ongoing threat of harm, or 2) to prevent the accused student from impeding the progress of the investigation. Not every complaint represents an ongoing threat, or at least evidences that threat early on. Interim suspension should be used as necessary (violence, predation, pattern, intentional incapacitation), but we can also look for ways for the accused student to continue academically during the suspension, including independent study, online, tutoring, etc.
Equating gender equity with being victim-friendly, as the dean does above, is a common misnomer. Being equitable is only victim-friendly if we haven’t been sufficiently victim-friendly in our processes in the past. The DCL mandates equity – doing what is fair under the circumstances. This is a nuanced and subtle mandate, not a blunt instrument. OCR wants us to avoid actions like the automatic “move the alleged victim’s class or room” philosophy that is prevalent on many college campuses, and ask what is fair under the circumstances. It doesn’t presume “guilt” to move an accused student to another section of the same class, or to move him to an equivalent room out of her residence hall. Students don’t have due process rights to a particular room or class section.
All OCR is saying is that gender equity demands we do not automatically inconvenience one gender (usually women), and ask whether it makes more sense to consider remedial actions toward the accused student given a credible accusation. Thus, if there is another equivalent class or room, consider moving him. If there is not an equivalent class, and the accused student and alleged victim are in the same class, offer the alleged victim alternative options such as an incomplete, independent study, etc. If they both want to remain in the class, then impose a no-contact order, send them to opposite sides of the room and let them finish the class. The DCL does not instruct us to kick the accused student out of the class in which he is enrolled, without proof of a violation, when there are no reasonable alternate academic options.
What is my response to that parent? That we are told to lead with belief of the alleged victim over the alleged accuser? Unlike a lawyer (and I suspect this is the crux of our differences), I am responsible for the welfare of all of my students — equally and dispassionately. Though I am often appalled by their actions, my job entails doing more than judging them.
ATIXA responds: We hope it is becoming clear that being unnecessarily polarizing isn’t constructive. Administrators don’t need to believe the alleged victim or disbelieve the accused student in order to implement equitable remedial actions. The talent is in finding ways that reasonably balance the rights of those involved.
My job is also to educate them. Yes, I can hear you now, as clearly as I can hear my more vociferous colleagues: sexual assault victims need to be supported and believed, and men need to be held accountable for their behavior. But you know what? I support my students every day. And I hold them accountable for their behavior. I determine how to do this based on more than two decades' worth of experience and interactions with them, and I tend to trust my judgment. I do not appreciate having my hands tied by the presumption of guilt the Dear Colleague Letter portrays.
ATIXA responds: We see that as a blatant straw man (or woman) argument. Nothing in Title IX or the DCL establishes or encourages a presumption of guilt (we prefer the term “violation” or “responsibility”). Being moved from one residence hall room to another room that is about the same, for the same cost, is not a punishment. For students and parents who decry not being able to live in the student’s room of choice, we think student affairs administrators need to push back against this attempt to recast entitlement and privilege as a due process right. That consumerist lens diminishes the dean to being nothing more than a customer service representative, and administrators contribute to commoditization of higher education when you roll over and accept that from parents and students. If it’s equitable to interim suspend a student, that doesn’t presume guilt. They may return from that suspension, be found not in violation in a hearing and continue with their studies. It might even be equitable to remediate the effect on the accused student of the disruption caused by the interim suspension. The law of interim suspension for colleges is very flexible and conveys broad discretion to administrators for the very reason that we have to prioritize the safety of our communities. That case law derives not from Title IX, but from challenges to due process.
Let me give you an example of a case I managed not long ago. I'll change a few of the facts, but not the ones that matter here. A woman, in speaking with her resident adviser, revealed that she had had sex with another student several days earlier. They had both been drinking. He invited her to his room and she went, enticed by the promise of more alcohol. Once there, he proceeded to kiss her, then do more, while she, according to her written report, "felt uncomfortable." Twice he stopped what he was doing and left her on the bed, once to turn on some music and once to get a condom. He also took a phone call in the middle of everything. She remained on his bed, thinking, "This is not really something that I want to do." She acquiesced to his request that she assume a certain position, that she do certain things to him. "But I really didn't want to." When he was done, he offered to walk her back to her dorm, and he did, saying goodnight to her and promising to see her the next morning at breakfast (which he did).
ATIXA responds: On some campuses, the prevailing reaction to the DCL is the creation of a victim-driven zeitgeist, and this dean is a perpetuator of it (I say this knowing that the dean may turn out to be client, but that’s the risk of commenting on anonymous letters, and there are larger lessons here). Victims should have the right to define their own experiences, but they do not have the right to define what violates our policy. We do, and we need to do a better job of defining what is transgressive. It doesn’t violate our policies just because a victim alleges it does. This dean’s letter just finds new and more politic ways to reiterate the tired “gray area” argument about campus sexual violence. As we’ve said for years, gray areas are created more by poorly articulated policy and insufficient training than by the incidents themselves.
The dean in this letter felt compelled to process this complaint against a male student. Why? What does his or her policy say about the behavior? It requires consent for sex. All of our policies should. Does it define consent, though? If so, does it define consent by what it is, or what it is not? Consent is simply clear sexual permission by word or action. It is active, knowing and voluntary. This dean talks of the lack of verbal consent in this case, but why would a policy require verbal consent? That’s not a requirement of Title IX. There are actions here that a conduct board could construe as consensual. That a male student may have then had consensual sex twice does not a pattern make (see continuation of the dean’s letter, below). Even if two female students file complaints about it.
This misunderstanding speaks to the need for clear policy standards, but also to a better-developed investigation capacity that determines once a complaint is made that there is reasonable cause to support a charge. Perhaps we don’t have all the facts here in the letter, but the specifics of what an alleged victim does can be as important as what an alleged victim says. This is not suggesting these women weren’t assaulted (though on the arguably limited facts as described here, we want to be VERY clear, there was no assault), but instead is asking if perhaps the campus zeitgeist isn’t influencing victims to define as victimization what our policies don’t specify as being violations? The runaway train effect of this leads to cases like the just-litigated case John Doe v. The University of the South, holding a student was negligently disciplined by the university for sexual misconduct. Details of that case can be found at http://atixa.wordpress.com/2011/10/14/the-important-lessons-of-john-doe-v-the-university-of-the-south-sewanee/
A week after she filed her report with us, beginning the process of charging him with sexual assault (she was, after all, drunk, and never verbally consented to any of his requests), a friend of hers came to us with a very similar report. Almost identical, in fact. He offered to share alcohol he had in his room. He quickly became intimate. She felt uncomfortable. He spoke, made requests, moved across the room for a condom from his dresser. She never verbally consented. She acquiesced to his requests without comment. He walked her back to her room. They had a friendly conversation the next day, and the day after that, just as they had before the incident. Both women then e-mailed their professors requesting some leniency for their class work because they had been "sexually assaulted in a dorm and were working on bringing charges against another student."
ATIXA responds: The dean raises the additional question of whether they were drunk. This again raises the red herring of confusing drunkenness with the policy standard of incapacitation. Drunk and incapacitated are not synonymous. Some drunk people have the capacity to give a rational, knowing consent to sex and some don’t. Those who don’t are incapacitated. Having sex with someone you know to be or should know to be incapacitated violates a well-defined policy. Having drunk sex should not violate a policy when you know you are having it, and are capable of making reasonable decisions at the time of the actions. Many students come to regret those actions later, and a supportive dean and counseling center are the right resources in such cases, not the student conduct process.
Two sexual assault charges against one student? Could I defend letting him remain on campus while we investigated this?
ATIXA responds: Yes, and it is the conduct administrator’s job to do so. If not, then it is the Title IX Coordinator’s.
My trusted (real) colleague said no -- that if that information got out to those on our campus who felt that we should have immediately removed him, the criticism would be sharp. Furthermore, my (real) colleague said, "If you don't, you are leaving yourself open to a clear violation of the spirit of the Dear Colleague Letter," which says that an institution must "take immediate action to eliminate the hostile environment… including taking interim steps before the final outcome of the investigation."
ATIXA responds: There were other options, including the non-contact orders, changes in housing and class schedules that we discussed above. Interim suspension should not be our go-to in cases where sexual contact cannot be established, or where consent was arguably present based on the initial investigated facts.
"But these women are not saying they feel threatened by his presence on campus."
"What if a third comes forward, and you have to explain that you knew about these first two and didn't immediately send him home?"
ATIXA responds: That assumes there was knowledge of previous violations. There were accusations, but not enough to establish a violation based on what is revealed here.
And so I did, and the case proceeded from there.
Looking back, I wish I had been able to bring these students together, to talk about what had happened, given them each a chance to air their grievances, respond, learn from what had happened. I have done that countless times in my office — mediated and sorted through differences between students who have behaved badly toward each other. I think this male student might have learned a lot about how to treat women. And perhaps these women would have learned something about self-respect, agency, their own perception of the place of sex in a relationship.
But the Dear Colleague Letter says clearly that "In cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis."
ATIXA responds: Correct. We can’t mediate campus sexual violence, and campuses shouldn’t. It’s too serious an offense. BUT, that doesn’t mean we lose the opportunity for the meaningful conversation. We can’t force it, but we can facilitate it. JUST NOT IN LIEU OF A PROMPT AND EQUITABLE REMEDY. Informal resolutions are encouraged. No need for an investigation or a hearing if the accused student is willing to accept responsibility for a violation early on in the process. From there, restorative justice might be a very cathartic and appropriate sanctioning paradigm. And, mediation is only barred in lieu of a remedy. If you find (as you should have above) that they accused students were not in violation through your formal process, and you THEN want to facilitate a mediation or other form of conflict resolution, Title IX would not prohibit that.
Finally, we need to be careful about assumptions here of the danger accused individuals may represent. Talking it out may make sense only when we assume that an act of sexual misconduct is the product of a misunderstanding or other correctable “mistake.” Restorative justice depends on sincere offender accountability. Yet, we know that most sexual misconduct is not the result of miscommunication, but of predation. 90% of assaults are committed by repeat offenders (Lisak & Miller, 2002). That doesn’t mean any one accused student is an offender until a preponderance of evidence establishes that. Once it does, the educator’s desire to rehabilitate needs to yield to our duties to protect the members of our community from someone who likely poses an ongoing risk of harm.
And my fear — yes, it's fear — of seeing my institution's name in Inside Higher Ed or The Chronicle of Higher Education as the subject of an investigation, or, even worse, having the "letter of agreement" OCR makes public displayed for all to read — makes me toe the line in a way I sometimes have trouble justifying to myself. I don't want my employer to be the next University of Notre Dame, College of Notre Dame, Yale, Eastern Michigan.
It's not that I believe that we shouldn’t be held accountable, and yes, it's likely that these and other institutions should have done things differently. It's just that in my most honest moments, despite the efforts of my (real) colleagues here to craft the best possible approach, I doubt our policies and practices could hold up to the intense scrutiny of the team of lawyers OCR will send after us should a complaint arise. Surely, I reason, you will find something, somewhere, that we could have done better. At that point, all the good we might have also done will be lost in the public critique you will offer and we, because we must, will accept without retort.
That should explain the fact that I am an anonymous author. For six months, my (real) colleagues, here and on other campuses, have been talking about the Dear Colleague Letter, about the problems it creates for us, about the apparent lack of understanding of student culture it demonstrates. But we never say these things too publicly. We worry about being branded "soft" on sexual assault by victims' rights groups and by the media, and we worry about attracting your attention. Our voice has been missing from this debate, just as it seems our input was missing from your letter.
ATIXA responds: That’s a very legitimate feeling of paralysis, but it is ATIXA’s mission to proffer models and advice on the practices that allow us to serve many masters without unduly compromising the interests of all parties.
None of us want you knocking on our doors, Title IX complaint in hand, ready to put us under the microscope and force us to explain to you, a group of skilled attorneys, why we did what we did. And that's the difference between you and my real colleagues: I value their feedback and criticism. In fact, we welcome it from each other, as evidenced by the conversations we constantly have about the decisions we are facing and the improvements we are always trying to make. But we trust that each of us understands what we are up against. I'm not at all sure you do.
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