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

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

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.

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