The Chronicle of Higher Education

LEADERSHIP & GOVERNANCE

‘Fundamental Failure’ on Sexual Assaults Brings Sweeping Change at Baylor

MAY 27, 2016

Rod Aydelotte, Waco Tribune Herald, AP Images
Kenneth W. Starr will no longer serve as Baylor’s president, though he will stay on as chancellor and remain a professor of law. His demotion was part of a series of personnel and policy changes announced by the regents on Thursday in response to an outside firm’s scathing examination of the university’s handling of sexual-violence reports.

Baylor University’s Board of Regents on Thursday announced sweeping changes in how the Texas institution and its athletic program will be run, including the removal of Kenneth W. Starr as president and the firing of the head football coach, Art Briles.The overhaul is the result of damning findings that acknowledged the Baptist university’s failures to respond properly to numerous reports of sexual assault over three academic years on the Waco campus, especially those involving its powerhouse football team. The board’ssummary of findings by investigators from the law firm Pepper Hamilton LLC concluded that the university’s processes for dealing with such complaints were “wholly inadequate” and that high-level administrators and athletics-staff members had “directly discouraged” students from reporting assaults and, in one case, retaliated against a student who reported an incident.

“We were horrified by the extent of these acts of sexual violence on our campus,” Richard Willis, chair of the board, said in a written statement. “This investigation revealed the university’s mishandling of reports in what should have been a supportive, responsive, and caring environment for students.”

In addition to the personnel changes, the regents enacted a number of new practices and policies meant not only to better respond to reports of sexual violence, but also to maintain more oversight of the athletics department.

“Things like this should have already been in place.”

But the upheaval presents serious challenges for the institution and its leadership.”Any changes by Baylor optically look good, but the devil is in the details,” said B. David Ridpath, an associate professor of sports administration at Ohio University. “Things like this should have already been in place.”

The Fallout

It’s rare for a college’s president to be dismissed for the institution’s failures under the federal gender-equity law known as Title IX. Mr. Starr’s demotion was all the more surprising because he has been credited with significantly raising Baylor’s profile since taking office, in 2010, and he is held in high regard by many faculty members and alumni. His reputation has also been bolstered by his experience as a former federal judge, solicitor general of the United States, and the independent counsel who led a lengthy investigation of President Bill Clinton.

But the pressure on Baylor had been building for months, and Mr. Starr’s demotion was foreshadowed by several news reports this week suggesting that he had been fired.

Under the terms of a proposed agreement, Mr. Starr will retain his title as chancellor of the university — a role that regents described as focused on fund raising. He is also expected to remain a tenured member of the law-school faculty and earn the full base salary that he is currently paid. Baylor’s 2014 report to the IRS lists that amount as $611,654.

Tony Gutierrez, AP Images
Baylor’s head football coach, Art Briles, was suspended “with intent to terminate.” Other athletics officials also face sanctions or termination, and the regents also adopted several new practices and policies meant not only to better respond to reports of sexual violence, but also to maintain more oversight of the athletics department.

Ian McCaw, the university’s athletics director, has been put on probation and is being sanctioned, though the regents declined to provide further details of that action when they spoke with reporters during a conference call on Thursday.Mr. Briles, the football coach, has been “suspended indefinitely with intent to terminate according to contractual procedures,” according to a news release on Baylor’s website, and “additional members of the administration and athletics department have also been dismissed.” The university is not identifying those people or positions publicly.

Taking over as interim president will be David E. Garland, a former dean of the university’s theological seminary. Mr. Garland also served as interim president of Baylor for two years before Mr. Starr’s hiring. He did not respond to a request for comment.

The challenge for the new leader will be to “refocus the institution on its core purposes and values,” said William E. (Brit) Kirwan, a former chancellor of the University System of Maryland. And that will have to include placing athletics in a proper context within the university, said Mr. Kirwan, who is now a co-chairman of the Knight Commission on Intercollegiate Athletics.

“Athletics will have to take a back seat and play a more appropriate role in the life of the institution,” he said.

While the university’s football team has risen from being a woeful underdog to a force in the Big 12 Conference and a fixture among the nation’s top teams, a series of sexual-assault cases cast a cloud over the team and its head coach.

The investigation by Pepper Hamilton found: “In certain instances, including reports of a sexual assault by multiple football players, athletics and football personnel affirmatively chose not to report sexual violence and dating violence to an appropriate administrator outside of athletics.”Some measures enacted by the regents are aimed at putting the athletics department on a shorter leash. The business operations of the athletics department will now be overseen by the university’s chief operating officer, and the university will seek to ensure that athletes are not given any preferential treatment in student-conduct proceedings.

Putting the athletics department under the control of the university’s main administrators may be helpful, Mr. Ridpath said, or it may turn out to be a “paper drill.”

A lot will depend on how much leverage alumni and donors to the athletics program exert on the new president, he said. “So many, including presidents, are not willing to take on that fight, and situations like this are allowed to happen and fester,” Mr. Ridpath said.

High Stakes for Colleges

In all, however, the measures mark what some legal and higher-education experts described as an exceptional response to one of higher education’s most vexing issues.

In particular, it’s unusual for a university to publicly release findings regarding sexual assault that make it clear the institution violated federal law — particularly when the institution, like Baylor, was not under federal investigation. After all, the ultimate penalty for violating Title IX is the loss of all federal funds.

But Baylor’s actions represent an attempt to keep nothing hidden. In a 13-page document called “Findings of Fact,” the Board of Regents said the Pepper Hamilton investigation found that Baylor had failed in a multitude of ways, including a failure “to prioritize, recognize, implement, and resource Title IX.”

The language used in the Baylor release sounds very much like what the U.S. Education Department’s Office for Civil Rights uses in its own findings when investigating universities’ compliance with Title IX. In fact, a division of Pepper Hamilton specializes in helping universities both respond to investigations by the federal government and reform their policies surrounding Title IX in order to meet federal guidelines.

But while investigations by the federal office, known as OCR, frequently take years to complete, Pepper Hamilton’s review of Baylor took just around nine months.

“This looks like a pre-emptive strike, which any good defense attorney would make. This way they get more control.”

While the university’s level of disclosure seems to put the institution at more risk, putting all of its problems on the table now could also help it minimize the impact of any later federal investigation.”This looks like a pre-emptive strike, which any good defense attorney would make,” said Djuna Perkins, a trial lawyer in Massachusetts who is hired by colleges to investigate sexual-assault cases. “This way they get more control.”

By announcing the university’s intentions to overhaul its response to sexual-assault reports — things the federal government no doubt would require following any investigation — Baylor gets to make those changes on its own terms, Ms. Perkins said.

Peter F. Lake, an expert on Title IX and a professor at the Stetson University College of Law, said universities gradually are realizing that transparency is important when it comes to how they’ve handled sexual-misconduct cases. “This is no time for wallpapering or whitewashing of any kind,” he said. “External investigators must be keenly aware of the reality that the stakes are rising, and institutions without sincere, voluntary compliance efforts are at risk.”

The Education Department’s Office for Civil Rights said Baylor’s actions were a positive step. “We are grateful when any school evaluates its civil-rights compliance and takes necessary corrective steps — those are key elements in ensuring all students’ civil rights are met,” Dorie Nolt, a department spokeswoman, said in a statement on Thursday evening.

But the measures don’t preclude a federal investigation, she continued. “The department will not hesitate to investigate if necessary,” she said, “and if we receive a complaint within our jurisdiction.”

Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.

Robin Wilson writes about campus culture, including sexual assault and sexual harassment. Contact her at robin.wilson@chronicle.com.

Embracing Digital Bystander Intervention

Social Media is often a tool that is used in sexual harassment and sexual assault, in both positive and negative ways. Colleges and Universities should consider including definitions around appropriate and inappropriate social media use, in their Title IX policies.

PIRC Blog

By Nora Draper, Ph.D

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This past week, a horrific story highlighted the complicated relationship between social media, sexual assault, and bystander intervention. An 18-year old Ohio woman has been indicted on multiple charges, including rape and distribution of sexual materials involving a minor, for broadcasting the rape of another young woman with the live-streaming app Periscope.

Mobile app Periscope allows people to stream real-time video to viewers around the world. This use of Periscope to broadcast an incident of sexual assault is a recent example of social media platforms being used to facilitate and publicize abuse. Stories about cyberbullying, revenge porn, and fraping (taking over someone’s social media profile without their knowledge or consent), show how digital and mobile tools have the potential to enable online harassment. Despite the qualifier “digital” or “cyber,” the consequences of digital harassment almost always cross the largely artificial boundaries between the online and offline…

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Dear Colleague Letter

The Department of Education- Office of Civil Rights

April 4, 2011

Dear Colleague:

Education has long been recognized as the great equalizer in America. The U.S. Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime. Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 C.F.R. Part 106, prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, and universities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.

To  read the Full Letter Click Here

 

FLIPP! Freeze, Leave, Implement Policy and Procedure!

The FLIPP! Methodology – Freeze, Leave, Implement Policy and Procedure

The Absolute Best Way to Conduct a Title IX Sexual Misconduct Investigation, Guaranteed!

By Amber Maiden, CEO Alchemy Enterprises

May 29, 2016

Source: Alchemy Enterprise Website

Contents

FLIPP! 1

Freeze and Leave. 2

Taking Care with the Reporting Party. 3

The Freeze Notice. 5

Taking Care with the Responding Party and Witnesses. 5

The Discomfort of Investigations. 6

The Rashomon Effect 7

Typical Destructive Reactions to Investigation of Sexual Misconduct 9

Leave. 10

Implementing Policy and Procedure. 11

The Importance of Procedures. 12

 

FLIPP!

There are very effective and efficient ways to conduct sexual harassment/sexual assault investigations, and then there are not.  Unfortunately most colleges, universities and many employers have no idea what these ways are.  More often than not, what they do instead, are all the wrong things.  This of course makes everything much worse. What to do? Alchemy Enterprises has got you covered. Review, and review and review once again  the FLIPP methodology described below. An organization that implements this method correctly, can be assured that it has done everything in its power to correctly handle these sorts of allegations, once received.

I have many years of experience overseeing and conducting investigations using the FLIPP model; which is a model that I created to deal with work groups who were particularly resistant to participation in these kinds of investigations. All the information that any Title IX coordinator overseeing these investigation requires is contained in my FLIPP model.

FLIPP is an acronym for: Freeze, Leave, Implement Policy and Procedure.

So, to keep it simple, all you really need to do to investigate a Title IX complaint efficiently and effectively, is freeze the “crime scene.”  Think Law and Order. How do the detectives always begin an investigation? They isolate physical evidence by examining and taping off the crime scene. After that, they begin to go about the business of identifying witnesses and suspects and doing whatever is necessary to secure the participation of these individuals in their investigation. A civil /administrative inquiry into allegations of inappropriate behavior at a company or a university is not exactly the same, but there are parallels.

Perhaps some individuals will need to leave the campus. Once that is taken care of, it is simply a matter of the university implementing its policies and procedures; which is much easier said than done, but that is the basic framework of FLIPP.

Freeze

Freezeplease.  As soon as allegations have been received and a conversation has been held with the Reporting Party where he or she has determined how s/he would like to proceed, the University should issue a “freeze” notice as quickly and politely as possible.

When these types of allegations occur, emotions are running very high. Actions and behaviors around these allegations can quickly become very destructive. For those in compliance positions within the university, you need to think of these allegations as hot embers or tricky, potentially explosive devices. It is your job to ensure that the embers don’t spark and spread and the bomb does not go off.

Interactions with the Reporting Party should proceed, very carefully. If a Reporting Party has experienced what s/he believes to be a sexual assault that person will be traumatized and will need to be handled carefully.

Taking Care with the Reporting Party

As a general rule it is best to be very clear with the Reporting Party[1] as to what you can and cannot do for him or her, in whatever role you serve in as you take the complaint. Who will receive a complaint from the Reporting Party? It could be any number of faculty or staff employed the college or university.  The person who receives the initial complaint usually will not be the Title IX coordinator at the University.

This is the reason policy dissemination and training on the school’s sexual misconduct and intimate violence is so important

When it comes to these types of complaints any faculty, staff member or administrator who is in any type of position of power at the college or university has a duty to listen to the Reporting Party’s complaint of sexual harassment, fairly and objectively – and to then ensure that the Reporting Party very quickly has access to the adequate resources within the college or university. You do not want to wait on this. Think of these sorts of complaints as hot potatoes. Remember that game hot potato? You do not want to be caught holding it, because if you are, you lose.

Typically an investigator or an intake officer will be the first real official point of contact for a Reporting Party. The investigator or intake officer should explain to the Reporting Party very clearly that he or she is not the Reporting Party’s advocate, but rather, an independent unbiased fact-finder who will simply take the Reporting Party’s statement in order to begin the process of investigating the complaint the Reporting Party has brought forth

The Reporting Party has a variety of options he or she can pursue with regard to reporting an incident of sexual harassment, sexual assault and intimate violence. If the incident rises to the level of a crime, the Reporting Party has the option of reporting the incident to the local or campus police. If the Reporting Party has concerns about his or her identity being revealed, they may request to remain anonymous, but at the same time, this will cause difficulties with regard to investigating the complaint, and the Reporting Party should be made aware of this.

In many cases what a Reporting Party will want is to remain anonymous, but at the same time, will insist upon some corrective, remedial action to be taken to ensure that the same thing does not happen to the Reporting Party again or to another individual. This can be very difficult for the University to accomplish, but there are ways to go about this. What is key is timely responsiveness to any and all complaints. This shows that the University culture takes these sorts of complaints seriously. This will impact on student behavior.

The University’s Title IX coordinator has a great deal of  responsibilities with regard to the Reporting Party, as it is his or her job to ensure that the Reporting Party is receiving everything that he or she is entitled to in the way of resources: counseling, housing, addressing safety concerns, addressing classroom accommodations, etc.

Putting in the time communicating with the Reporting Party very openly, honestly  and directly about what faculty and staff can and cannot do, goes a long way toward eliminating future escalating problems with the Reporting Party in the future.

Most people who report these kinds of complaints want to be heard and treated fairly, and to take some kind of action to ensure that whatever is being complained about does not occur again.

There are many avenues that a complainant may decide to pursue, with regard to their  allegations, from seeking counseling, to reporting the incident to the Title IX Coordinator.[2] Most seriously, a Reporting Party may decide to report the incident to the campus or local police. While the University is in the process of assisting the Reporting Party in pursuing whatever avenue of redress s/he feels is most appropriate, a Freeze notice should be issues to all involved parties.

The Freeze Notice

What’s a Freeze notice? A freeze notice locates all involved parties and requests that they freeze – so to speak- until the university can decide the best way to proceed with the investigation into the allegations. Freezing is crucial. Think of it this way, these allegations, when received, however they are received, are hot. It is the University’s job to cool them down. A lot of organizations believe the best way to cool the allegations down is to simply ignore them. This is a mistake that almost always has negative repercussions.

During the freeze process you have two concerns: evidence and people. It is important to quickly secure any physical evidence that is allegedly involved in the allegations of sexual misconduct. Evidence can be things like images on social media, clothing, objects or notices that are being used to harass individual, images of bruises, cuts or physical harm done to a person’s body, anything that indicates a crime may have been committed.

If the University is in receipt of or has been given notification of the existence of such evidence, it is probably best to involve the campus or local police in the investigation of the issue.

Taking Care with the Responding Party and Witnesses

But beyond the evidence, you have to consider the people who are to be involved in the oncoming investigation and what their typical reactions are going to be. I can tell you, from years of experience; most likely their reactions are not going to be pleasant.

The degree to which the university is prepared to deal with these kinds of reactions from respondents and witnesses greatly influences how successful their internal investigations will be.

Typically, individuals who will be in receipt of a freeze notice are the witnesses initially identified as well as the Responding Party[3].

It is very important, in this freeze notice, to inform all involved what the expectations are with regard to their participation in the impending investigation. The most important expectation is really that investigation participants freeze. This is to say in lay man’s terms, chill out, calm down, not react emotionally and wait for further instructions.

The Discomfort of Investigations

Have you ever been investigated? I have.  It was a very interesting experience for me. Having a significant background in conducting and supervising EEO investigations, I typically find the experience to be very routine. I know what to expect. I know what to do at each stage. I know all the correct questions that should be asked. I know the applicable laws that must inform the manner in which the investigation must be pursued.

But during one particularly bad sexual harassment investigation (this was a case where, I had decided to bring in an independent investigative firm due to the severity of the allegations and the multitude of complainants and witnesses involved); I was called into the investigation as a witness. I was shocked. This had never happened before in any of the other investigations that I had overseen by outside firms.

What to do? Well, I certainly could not place myself above the organization’s EEO policies and procedures around this process (policies which I had a hand in drafting and refining); and so I cooperatively participated in the investigation by scheduling a time to be interviewed by the investigator.

I have to admit, the investigator’s questions were very unsettling. Five minutes into the interview, I knew exactly where he was going with his line of questioning. It was clear to me,  from the types of questions that I was being asked, that someone had implied  or stated that I knew about the inappropriate sexual conduct within the organization and that I had not taken appropriate remedial action, when that  conduct had occurred (which was, my job.) This was uncomfortable.

My reputation was on the line and I worked in a field where my reputation meant everything. I wanted everyone in that organization to see me as fairly and impartially implementing the EEO policies and procedures. It was clear to me now that at least one employee did not see me that way; and as a result my actions were being investigated.

And so, for the very first time in my career, the shoe was on the other foot.  I was on the receiving end of allegations of acting improperly. It was very uncomfortable.  My law degree and experience in this field has shown me how crucial it is to thoroughly document almost every interaction I engaged in with every complainant, respondent and witness, as well as the necessity of having policy and procedures in place that are consistently followed and fairly implemented for every single case.

Because I had such a strong track record in both areas, I was able to provide evidence that the allegations being leveled against me were unfounded, but yet and still, that was a very unpleasant experience. It was an enlightening experience, however, because it gave me a better understanding of how it feels to be accused of something that you may or may not have done. I realized that when that happens, it’s natural to become defensive.

The emotions that most people experience when participating in an internal investigative process are: fear, anxiety, defensiveness, distrust, anger, sadness, outrage, irritation, discomfort, disorientation, uncertainty, confusion, aggravation and even rage. It is rare that people are on a totally even keel emotionally, when asked to participate in these kinds of investigations, emotions run high. It is best for the investigator to acknowledge that and ask that people, try to put their emotions aside and simply answer questions raised in the investigation truthfully and to the best of their ability.

The Rashomon Effect

In the area of sexual assault, sexual harassment and intimate violence, the investigation is further clouded by the fact that what actually occurred intimately usually between two (but sometimes more) people is not often clear cut.  These experiences are shaped by perceptions and subjective interpretation.

Years of investigation have made me a student of the Rashomon effect.  The phrase derives from the film Rashomon, where the accounts of the witnesses, suspects, and victims of a rape and murder are all different. It is a very powerful film that certainly reveals the complexities involved in a third party trying to determine what actually happened between two people when a sex act that is deemed nonconsensual by  at least one party has taken place.

In teaching this film to my students, I was astounded by the variety of interpretations that film watchers have in response to the film about an alleged rape and an alleged murder. In watching the film, different people see completely different things. As film watchers, we are all cast in the role of judge and jury, and yet, I know from teaching the film in literature classes, there is a tremendous amount of difficulty around getting a consensus as to whether a rape (or even a murder) actually occurred. All we know for sure, (and can agree on as a group) is that a man is dead. The rest of the story is so tainted by so many other factors; it’s very difficult to determine what has actually occurred. And, facts and incidents in these kinds of investigations are usually just as tainted.  In a situation involving two people and no witnesses, rarely is all of the evidence going to provide a clear cut answer as to what occurred and who is at fault for the breakdown in communication that occurred around the lynchpin of consent or consensual behavior versus unwanted and unsolicited behavior.

The Rashomon effect highlights why the freeze notice is so important. Most people who are asked to participate in an investigation are not armed with an in depth knowledge of the investigation process, a law degree, the psychological complexities of the Rashomon effect and are afraid that they will not be able to defend themselves and/or their reputations against allegations that can have serious life altering ramifications. Quite honestly these fears are not unfounded.

Additionally, an individual against whom the accusations are being leveled may honestly believe that he or she has not engaged in any sort of wrongdoing, and therefore, will be very angry once notified of the allegations and impending investigation.  Essentially, he or she believes that he or she is being lied about and this is a very unsettling experience for an individual, about to be investigated, understandably.

These investigations are very, very serious and if a university wants to be fair, not only to itself and its own legal liabilities, but the legal liabilities that can attach to a number of people who will be involved in the process to a certain degree, it is critical, to  keep the investigation  cool by issuing the Freeze notice.

The Freeze notice should explain what the process is and how the college or university community expects notified individuals to participate in the process. The Freeze notice should explain best practices for participation in the process, and should also outline and describe behavior that will ultimately be damaging to the investigation and process.

One type of behavior that tends to be irreparably damaging to these kinds of investigations is talking about it, outside of official channels. Talking about the investigation should be strictly prohibited, because talking about the investigation or allegations, while they are under investigation, leads to defensiveness, anger, misinformation – and that usually leads to erratic, irrational behavior that makes the investigations extremely difficult to conduct and contain. Think of sexual assault and sexual misconduct allegations as burning embers…remember they are hot, but they are not destructive raging fires, and yet they easily have the potential to be.

Typical Destructive Reactions to Investigations of Sexual Misconduct

When a freeze notice isn’t in place, you will have people purposely fanning the flames and blowing on these embers in an attempt to start a fire. They will believe that they are defending themselves, their colleagues, their peers, their students, their friends – whoever. But really they are engaging in seriously potentially destructive actions. Even when a freeze notice is in place, emotions run very high when these types of allegations surface, and for that reason, you may still have people stroking the embers. Even when they have been clearly informed about the behaviors that they should and should  not be engaging in, with regard  to the investigation, there are those who will try to start a fire.  This is a defense mechanism. When this happens, the best course of action is to ask those destructive elements to leave the institution, until the investigation can be appropriately completed.

Leave

Sometimes, in order to go forward such that the investigation has integrity, it will be necessary to ask individuals to leave the institution or to seriously limit the manner in  which they are participating within activities at the institution, until the investigation is over and a decision has been reached.

With employees, the typical response of most employers is to place the employee on administrative leave. (This is leave with pay, so that they employee is not harmed until the issue has been clearly investigated and a decision about the propriety of conduct had been made.)  Employees are positioned such that, for the most part, unless there are contracts in place that provide them with greater rights, they really cannot decline to do what is asked of them by their employer.

However, when it comes to students, the issue of requesting one to leave is much trickier. With regard to students and allegations of sexual misconduct, the Department of Education requires that colleges and universities take interim measures to provide for their safety. This may require allowing the reporting party to leave the university, (if they so desire) while the university shoulders the burden of limiting the negative ramification and impact that this absence and departure will have on the student and her education. However, a student who has reported these allegations should not be forced to leave against his or her will, as that can clearly be interpreted as being retaliatory. Any requests for the reporting party to leave should be very clearly backed up by sufficient evidence of conduct that is in violation of student conduct codes, or the Freeze notice.

When the student is not someone who has brought forth the allegations (either a witness or a responding party, or a friend of the responding party) and the issue is being destructive to the investigative process – what is critical, once again, is the freeze notice.

If the expectations are clearly outlined in the freeze notice and a student ignores and disregards those expectations, after being clearly warned – in writing – that failure to engage in the investigative process as expected could lead to disciplinary action against the student- up to expulsion, then the student should not have sufficient basis upon which to appeal the decision to ask him or her to leave the campus.

However, and this is a really important however, if these terms were not clearly explained to the student at the very beginning of the investigation, in a freeze notice, then the University opens the doors to counter suits of sexual discrimination and other legal charges, by the student who has been asked to leave.

This student will probably believe that rights of some kind are being violated – and these are typically due process sorts of rights, but they can also file complaints of gender discrimination under the Title IX of the Education Act of 1972.  The counter suits along these lines sort of point to individuals being assumed guilty without due process, simply because they are male and have been accused of sexually assaulting a female.

Once you get passed the Freeze and Leave components of FLIPP, you move on to what can be the simplest part of the process, or the most difficult. It depends on what kind of infrastructure is in place around your policy and your procedure, and whether or not the infrastructure that you have in place will permit the Title IX coordinator or a Title IX investigator to correctly implement the policy and procedure.

Implementing Policy and Procedure

Let’s begin with the policy. One of the simplest things any college or university can do is assign a Title IX coordinator to draft a Title IX Sexual Misconduct policy (which, if one follows the Department of Education’s recommendation’s regarding the policy, the policy practically writes itself.) So if I were a typical decision maker at a college or university, it might be tempting to believe that all a University need do, in order to be in compliance with the new Title IX recommendations and guidance with regard to handling sexual misconduct is, write that policy and posted on the internet where everyone can access it. Easy-Peasy instant compliance, right? WRONG.

The Importance of Buy-in on Policy from Stakeholders

You can write a policy all day long. You can post it on your website, twitter, Facebook, on every door in every hallway all throughout the campus. For the most part, all of that will have very little effect if there isn’t an implementation mechanism in place that somehow alerts key stakeholders on the campus, that the policy is important. This is critical.  Key stakeholders must understand that this policy is important, and not just another piece of paper, competing with the thousands of other pieces of paper, that they are often asked to push from one side of the room to another, without interacting with it, or reviewing it in a meaningful way.

Most institutions have hundreds, if not thousands of policies that are addressing various parts of the institution’s operational procedures. Not every policy is important to every single employee or student. What is very important with regard to the Title IX, sexual misconduct policy, is that the correct stakeholders (who will have some responsible for seeing that the policy is implemented correctly) be identified.

Please note that the Title IX coordinator is not, I repeat, is not the only stakeholder responsible for seeing that the policy is implemented correctly.

Stakeholders are everyone who may encounter these sorts of allegations from students in a variety ways. Stakeholders could be, for example, all the members of the counseling center who encounter and counsel people around issues of intimate violence and sexual assault, student health practitioners who provide birth control and other reproductive health services, the coaches of student athletes who have been accused of sexual misconduct, the PanHellenic counsels at universities where there are strong Greek systems in place, deans and assistant deans at all of the very schools, need to be aware of and understand the policy, and at the very least, need to know what first steps to take if they hear about or receive such allegations. Certainly, vice presidents of student affairs departments need to have a number of people in their departments aware of the policy and knowing enough about it to push the appropriate information through the necessary distribution channels.

Having a policy in place, and even having it correctly distributed an understood by all of the appropriate stakeholders is still not good enough to ensure that your institution has the capability to run an effective and efficient sexual misconduct investigation. What is absolutely critical to running an effective investigation is having thorough, detailed and very specific written procedures in place regarding how these sorts of investigations will be handled.

The Importance of Procedures

At the beginning of every Title IX investigation, all participants should be given a copy of the college’s or university’s Title IX policy on sexual misconduct and intimate violence, as well as the procedures of the pending investigation. The more information that individuals have about the process, the more willingly they will be to participate productively.

What is the difference between a policy and a procedure? A policy is general guidance regarding certain rules, principals, concepts, ideas a college, university, employer, organization or government agency is attempting to implement. A procedure is the way in which the policy is enforced and implemented. A university’s Title IX policy should be a broad set of general guidelines that establishes a general framework for the university’s Title IX compliance efforts.  It should provide information, for example, on what sexual misconduct, including sexual assault and sexual harassment is. As well as a definition that describes the far more complex intimate violence. The policy should also include the kinds of resources and remedies that are available to students who are in need of assistance and want to file a complaint with the university administratively or with the local or campus police.

The policy should also serve as reference material for key university stakeholders who need to understand how to correctly implement the Title IX policy. This becomes incredibly important when dealing with difficult, controversial and/or high profile cases. In these instances, the policy will serve as the reference manual that informs the difficult decisions that will have to be made.

The procedures used to implement the policy, work best when they are incredibly detailed and take into account the many obstacles (and there are several) that will typically occur when the university is attempting to implement the policy. Procedures provide structure and integrity to the process. Procedures, when implemented fairly and consistently, for  every single case, ensure fairness and respect for the process.

Procedures are absolutely the most critical component of the Title IX investigation. A strong Title IX policy that is supported by a strong set of procedures will almost always result in a high quality investigation, that appropriate Title IX administrators and other college or university stakeholders can rely upon to make informed decisions about how to go about taking appropriate remedial action.

Because strong policy and procedures are so very critical to adequate Title IX compliance, Alchemy Enterprises offers policy and procedural review. We will evaluate how effective an institution’s policies and procedures are in terms of FLIPP methodology as well as other crucial policy requirements.

AE will rate the policy/procedures on an A through F scale, and provide insight into what the policy does well, as well as provide recommendations as to how policy/procedures can be improved.

Any institution that is serious about its higher education compliance should seriously consider, at a minimum, purchasing a policy/procedure review. Or, in the alternative, if the Title IX coordinator has the time, he/she can conduct the review. A good starting place for a review is comparing your institutions policy, to other comparable colleges of universities, as well as other universities in the area, as well as nationally known universities.

Through a Title IX policy review for one of my first clients, I discovered that Norfolk State University has a very impressive and well developed set of Title IX policies and procedures. If a Title IX coordinator would like to begin a policy review for their university, I’d recommend using Norfolk State’s Policy as a benchmark for excellence.

Well that’s about all there is to the F.L.I.P.P. methodology. Stay tuned, for information on AE’s Tr.I.P.P., S.I.P and B.I.P. methodologies.

Best of Luck in all of Your Title IX Endeavors!

 

[1] (In the area of Title IX compliance, the term Reporting Party is being replaced by the more traditional term Complainant. Objections have been raised that the term Complainant diminishes the seriousness and severity of the problems around campus sexual assault. In order to side-step these objections of bias Alchemy Enterprises, has decided to use the more neutral term of Reporting Party.)

[2] Please note that a report of sexual harassment, sexual assault, as well as many other types of intimate violence requires, puts the University on notice to a serious liability issue and requires some degree of action

[3]  Typically, a university’s policy will refer to the individual against whom allegations have been brought or accusations have been leveled as the Respondent, Responding party or the Accused, however at because the term Accused has negative connotations, Alchemy Enterprises, has decided to use the more neutral term of Responding Party.)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

National Campus Prevention and Policy: Title IX+ in Action

This was a really incredible article on the affects of the prevention strategies being implemented at colleges and universities nationwide. A must read for Title IX coordinators and administrators.

PIRC Blog

By Jill Dunlap

college

[Photo Source]

The news about sexual violence on campus can seem dire and often overwhelming to parents, current and potential students, and campus administrators. It seems that every day a new study is released about campus sexual violence, its prevalence, and the culture that perpetuates it.[1] While it might seem easier to hide under the covers and never read the news again, it is important to recognize the good that has come from the increased attention to campus sexual violence. In fact, April is the best time to look around and appreciate all of the new and innovative sexual violence prevention and awareness programming taking place on college campuses. A mere five years ago, campus sexual violence prevention was likely the responsibility of a part-time prevention educator or student groups on campus who put on well-intentioned and perhaps sporadic prevention programs for students. With the…

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Why UC Davis spent $175,000 to scrub references to pepper-spray incident

Reposted  from the Christian Science Monitor

Source: http://www.csmonitor.com/USA/Education/2016/0414/Why-UC-Davis-spent-175-000-to-scrub-references-to-pepper-spray-incident

Following a 2011 incident in which campus police pepper-sprayed students, the University of California, Davis paid two consulting firms at least $175,000 to clean up its online reputation, according to documents obtained by the Sacramento Bee.

The documents reveal that UC Davis paid to scrub online search results related to the incident and improve results users saw when searching for the university and its chancellor, Linda P.B. Katehi, the newspaper reports.

In January 2013, the university signed a six-month contract with Maryland-based Nevins & Associates to create an “online branding campaign designed to clean up the negative attention” directed at the university and its chancellor. It cost $15,000 a month.

“Online evidence and the venomous rhetoric about UC Davis and the Chancellor are being filtered through the 24-hour news cycle, but it is at a tepid pace,” the company’s proposal said, promising “eradication of references to the pepper spray incident in search results on Google for the university and the Chancellor.”

Online reputation management is a growing industry that promises to help individuals and businesses manage what appears about them in Google and other search engines, partly by placing positive articles and statements in Google results to counteract negative results.

“Companies and people make mistakes, and it’s our job to give them a second chance,” Darius Fisher, president of Status Labs, says in an email to The Christian Science Monitor.

The Texas-based firm has worked with Melissa Click, the University of Missouri professor who was later fired by Missouri after she was captured on video calling for “some muscle” to remove a student photographer during a campus protest.

But a university using public funds to hire a firm to clean up its image is highly unusual, says Brett Sokolow, head of the National Center for Higher Education Risk Management, a firm that has advised many campuses on policies related to sexual assault, student conduct, and other issues. “I’ve never heard of another campus doing this, to be honest,” he says in an email.

UC Davis’s contracts came as the university embarked on a larger effort to improve its reputation and revamp its use of social media following criticism and calls for Chancellor Katehi’s resignation, the Bee reports.

In an incident that received widespread media coverage, campus police officers were shown on video firing pepper spray into a crowd of student protestors on November 18, 2011.

Lt. John Pike, an officer shown in several videos calmly pepper-spraying protestors seated on a sidewalk, individually received more than 10,000 text messages and 17,000 emails that included threats and harassment, according to the documents obtained by the Bee.

The university confirmed to the newspaper that had it worked to manage its reputation, saying the payments to the two firms came from the public university’s communications budget.

“We have worked to ensure that the reputation of the university, which the chancellor leads, is fairly portrayed,” UC Davis spokeswoman Dana Topousis told the Bee. “We wanted to promote and advance the important teaching, research, and public service done by our students, faculty and staff, which is the core mission of our university.”

In June 2014, UC Davis hired Sacramento-based ID Media Partners, known as IDMLOCO, for $82,500 to “design and execute a comprehensive search engine results management strategy,” according to the documents. The company later received two other contracts focused around its communications strategy from UC Davis.

Mr. Fisher, of Status Labs, says his company has never worked with a university, though he wouldn’t be surprised to learn that other universities had attempted to influence their search results.

“Generally speaking though, most of our clients are companies and individuals who made an embarrassing mistake or received critical media coverage years ago and don’t want to be defined by this forever,” he says.

But Mr. Sokolow, who has advised schools such as the University of Virginia on its policies, says using public funds demands more disclosure. “I do think it’s different, as public institutions must be careful custodians of public funds. Allocating public dollars to an effort like this should be carefully scrutinized,” he says.

It’s unclear what effect the efforts have had, as a search for “UC Davis pepper spray” on Google produces 136,000 results while “Katehi pepper spray” currently has 710.

Nearly five years later, Chancellor Katehi is once again under fire following question about her acceptance of seats on private corporate boards, including a seat on the board of for-profit DeVry Education Group, which is under scrutiny by the Federal Trade Commission.

Students have been occupying the reception office outside her office since March 11 in a call for her resignation, the Bee reports.

UC Davis paid to repair online image after pepper spraying incident
Modesto Bee

University Of New Mexico Often Mishandled Sexual Violence Cases, DOJ Finds

A federal investigation finds incompetence dealing with sexual assault and harassment in multiple departments at the public university.

04/22/2016 02:44 pm ET | Updated Apr 24, 2016
Tyler KingkadeSenior Editor/Reporter, The Huffington Post
Reposted: http://www.huffingtonpost.com/entry/university-of-new-mexico-sexual-assault_us_571a464ee4b0d912d5fe5dfc

ASSOCIATED PRESS
University of New Mexico President Robert Frank speaks on campus in Albuquerque, N.M. He did not say that the university failed on sexual assault, despite a damning DOJ report.

The University of New Mexico failed to comply with federal law in handling sexual assault and harassment cases, a U.S. Department of Justice investigation found.

The results of the federal inquiry, released Friday, paint a picture of significant incompetence on the part of UNM, in multiple offices.

“Our findings reveal how a flawed system for responding to sexual assault fails all those involved,” Vanita Gupta, head of the DOJ’s civil rights division, said in a statement, “from victims seeking adequate protection, to accused students demanding fair hearings, to faculty looking for clear instruction.”

While the U.S. Department of Education has ramped up probes of how colleges handle sexual assaults in recent years, with more than 200 such investigations currently opening, a Justice Department inquiry is rare. The last one completed at a higher education institution was a joint investigation with the Education Department at the University of Montana, but that one also looked at how local police and prosecutors handled cases.

Colleges and universities are required under the gender equity law Title IX to respond to reports of sexual assault and harassment.

The DOJ investigation at UNM, in Albuquerque, began on Dec. 5, 2014, and looked at cases handled over a six-year period.

During much of that time, UNM had no written protocol on how long it should take with investigations, and cases often took twice as long to resolve as the 60-day timeframe recommended by the U.S. Department of Education. Both complainants and respondents were often not told about delays or why things were taking so long, the DOJ said.

“The United States found that after UNM received an allegation of sexual harassment, effective follow-through procedures were largely absent, both during [Office of Equal Opportunity]’s investigative period and after it issued findings,” the DOJ report said. “In addition, UNM does not have established protocols to ensure that information regarding investigations and findings are effectively conveyed to other departments and divisions on campus.”

In one case, the university’s own admissions office did not know that an undergrad applying for graduate school was currently under investigation for sexual misconduct, the report said.

ASSOCIATED PRESS
Vanita Gupta, the head of Justice Department’s Civil Rights Division, said UNM did not comply with federal law in handling sexual violence.

Further problematic was that until the DOJ investigation, the OEO, which handled sexual assault investigations, reported to the office of the university’s general counsel.

“This management structure created a conflict between OEO’s stated goal of eliminating and redressing harassment and OUC’s role in limiting the University’s liability,” the DOJ said.

Interim sanctions were inconsistent, according to the DOJ report. Sometimes they suggested against a temporary suspension because there was so much heat on the accused that school assumed the accused wouldn’t be a threat to anyone. But in another matter, the DOJ said, “UNM suspended the respondent from campus during the pendency of the investigation, but told him that he could continue with his course work at home. However, no arrangement was made for him to take his tests off campus, and respondent did not know who to reach out to for assistance. As a result, he dropped all his classes and lost a semester of course work.”

Students speaking with federal investigators accused campus police of gender bias, saying officers questioned victims about why they didn’t do more to fight off their attackers or lectured them on why young women should not drink in public, the report said. UNM cops often believed at “face-level” the accused students’ claims that victims consented and rarely challenged them, federal investigators found.

University administrators had similar sentiments, the DOJ said, sometimes describing victims as “lonely” or “clingy.” In interviews, “University officials made several statements placing blame with students who are assaulted, reflecting a significant lack of understanding about the dynamics of sexual assault.”

The DOJ will now require UNM to provide better and clearer information about reporting options for sexual violence, and disclose more details to students and staff on where to go for assistance or to begin grievance procedures. The university will also have to revise policies, procedures and investigative practices to ensure “prompt and equitable resolution of sexual harassment and sexual assault allegations.”

In a statement Friday, UNM President Robert G. Frank disputed the DOJ report. He didn’t explain what specifically was wrong with it, other than to say it was a “brief snapshot in time.”

“While we respect the efforts of the DOJ, we believe its report is an inaccurate and incomplete picture of our university,” Frank said.

While colleges are required under federal law to handle sexual assault reports from students, Frank complained that the school is being asked to do too much.

“Universities like UNM face the unattainable goal of stopping campus sexual assault. We are asked to be investigators and adjudicators of incredibly complex situations that typically involve alcohol or drugs, and frequently occur off our campus,” Frank said. “The reality is that federal regulations hold us to a higher standard than any city, any police department, or any court system, even though our primary mission is to provide  high quality education, health care, and research. And we are asked to do it all without any additional financial support.”

He did not acknowledge in his statement that the university did anything wrong.

Read the entire letter of findings from the investigation: 

DOCUMENT

PAGES
TEXT
Zoom

 

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Tyler Kingkade is a national reporter who covers higher education and sexual violence and is based in New York. You can reach him at tyler.kingkade@huffingtonpost.com, or find him on Twitter: @tylerkingkade.

4 Questions You Need to Ask Your Future College Before You Go There

Reposted: http://www.teenvogue.com/story/questions-ask-college-sexual-assault-policyutm_content=bufferdd177&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

APR 28, 2016 1:53PM EDT

This piece is part of Not Your Fault, a Teen Vogue campaign that aims to educate people about the epidemic of sexual assault. For more on this series, click here.

Now that college acceptances have been given out, there’s a lot to think about before deciding where you’re going to spend the next four years: What’s the professor-to-student ratio? Is the food any good? Do people live on campus all four years? And, of course, how is campus safety — especially as it relates to sexual violence?

We’ve all heard the grim stats: One in five women and one in 16 men are sexually assaulted during their college years. While a school’s policies on sexual violence may not be something that you’d thought about when applying, they’re definitely worth adding to your decision-making criteria — both for your own well-being and safety, as well as for pushing the school to address any problems with how it handles sexual violence.

The recent “Unacceptable Acceptance Letters” campaign made this statement loud and clear through a video, which shows students opening acceptance letters filled with disturbing statements about the reality of campus rape, such as: “Prepare for a challenging year ahead which includes losing your virginity to a rapist.” It includes a call to action for accepted students to sign a petition demanding accountability.

So as you make the exciting, monumental decision about where you’re going to go to college, here are a few key questions to keep in mind.

How does the school educate students about its sexual violence policies?

Under Title IX, schools are required to address “hostile environments” created by sexual discrimination, violence, and harassment. Prevention education falls under this umbrella. The 2011 “Dear Colleague” letter from the Assistant Secretary of Civil Rights, which clarified schools’ obligations for dealing with sexual violence under Title IX, recommends that schools “implement preventive educational programs” and demands that they widely disseminate their grievance procedures. However, schools aren’t required to make their prevention programs mandatory.

According to a recent study by the University of New Hampshire’s Prevention Innovations Research Center, in order to really understand a school’s rules and policies and put them into practice, students need to be forced to “process and practice them.” In other words: Emailing an educational video around to the student body during orientation is not enough. For instance, if there is a required reading of the school’s policies, it should be followed by a facilitated discussion.

You should also check and see if the sexual violence prevention training the school provides is mandatory, and if any trainings are held beyond freshman year. “A lot of campuses just do [a prevention program] during orientation or that first week of school, when a lot of students are away from home for the very first time,” says Sharyn Potter, associate professor of sociology and co-director of UNH’s Prevention Innovations Research Center. “They’re trying to figure out how to buy books and how to get to classes, and to throw this message in, it’s going to be lost. I’d want to know how, when, where they’re doing [the prevention program], and is it mandatory?”

What is the school’s record?

Yes, it’s true that the Clery Act requires schools to report campus crime statistics, and those numbers are searchable through an online database. But keep in mind that those numbers are a small part of the story. The definition of “on campus” varies by institution, and the assault numbers included in that data are only cases that are reported to campus authorities.

“What we know is the majority of students who are sexually assaulted are going to disclose to a friend or roommate and not go to an authority,” Sharyn says. But it’s still worth researching a school to see if there have been any major cases and how they handled them. That can be as easy as doing an online search for the name of the school and “campus sexual assault” to see what comes up.

Will you get in trouble if you report an assault that occurred in an environment of underage drinking?

It’s important to know whether or not the school offers amnesty in these situations — meaning students breaking school rules, such as drinking while underage or taking drugs at the time of their assault, are immune from punishment for those offenses when they report.

What resources does the campus offer survivors, and how does the school handle perpetrators?

Obviously, the hope is that nothing happens while you’re on campus. But if it does, it’s good to know what the school offers in terms of support for survivors — both personally, and in moving forward with the adjudication process should they decide they’d like to pursue justice. According to SAFER, an organization that strengthens student-led movements to combat sexual violence, beyond fulfilling federally mandated Title IX requirements, good school policies include: Offering 24/7 crisis services every day of the school year, unlimited, free long-term counseling for survivors, and sexual assault response training for staff and faculty. (You can see its definition of a good college policy here.) You’ll want to see if you can easily find these resources on the school’s website.

Regarding perpetrators, other questions to consider include: Are the perpetrators expelled? Does the school enforce no-contact orders, so that the person who assaulted you can’t be in your dorm or in your class?

Also important: Gauge how open students, administrators, and staff are to your questions about sexual assault policies and prevention. Are they willing to talk about these issues? You’ll want to choose a school that listens to its current — and prospective! — students.

Related: Campus Sexual Assault Is an Epidemic — But What Are We Doing About It?

If you or someone you know has been sexually assaulted, you can seek help by calling the National Sexual Assault Hotline at 800-656-HOPE (4673).

For more resources on sexual assault, visit RAINN, End Rape on Campus, Know Your IX, and the National Sexual Violence Resource Center.

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