ATIXA’S Response to an “Open Letter to OCR”

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 oncriticizing 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 perpetrator 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.

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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