IU settles lawsuit over Title IX violations

BLOOMINGTON, Ind. — Indiana University Bloomington has settled a lawsuit with a battery victim who alleged the university fostered an environment of dangerous activity.  Jane Doe filed the federal lawsuit in June 2016, accusing IU and the Delta Tau Delta fraternity of ignoring then-student John Enochs’ history of sexual assault.

As part of a plea agreement in the criminal case, Enochs pleaded guilty to battery in exchange for prosecutors dropping two counts of rape against him.  IU Bloomington released a statement Tuesday on the settlement with Jane Doe.

“While Indiana University is bound by the confidential provisions of the settlement, the university remains strongly committed to providing a safe and secure environment for all members of its community and continues to believe its Sexual Misconduct Policy provides a fair, impartial and robust investigation and adjudication process…”

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Jane Doe’s attorney Jeff Herman also released a statement on the former student’s behalf.  “My client is pleased to resolve the matter with IU,” said Herman. “She looks forward to her day in court and holding the Delta Tau Delta fraternity accountable.”  

Doe filed a civil suit against Indiana University Bloomington officials and administrators saying they condoned Delta Tau Delta fostering an environment of dangerous activity, ignored Enochs’ history of sexual assault and failed to put in place measures to protect a ‘foreseeable’ sexual assault at Delta Tau Delta social event at the fraternity house.  Jane Doe’s lawsuit against Delta Tau Delta is still pending.

“The National Fraternity will soon be filing a Motion To Dismiss, as it had no knowledge of and nothing to do with the event and certainly had no expectation that a former member might be accused of sexual assault,” said Jim Ewbank, attorney for Delta Tau Delta. “Indiana state courts have routinely thrown out similar cases against the National organization and we will ask this judge to do the same.”

Enochs was initially charged with raping two separate women while at IU, one in October 2013 and another in April 2015.  The federal complaint filed by Jane Doe alleges a Title IX violation based on an April 2015 incident with Enochs.  Previously, Enochs had also been accused of sexual assault by another female student in October 2013.  He was charged with two counts of rape in September 2015 based upon the two incidents.  Indiana University Bloomington expelled Enochs on July 10, 2015, according to the court filing in the Jane Doe lawsuit.

Student political consciousness takes center stage at Bethune-Cookman’s commencement with Betsy DeVos

Hundreds of graduating seniors of a historically black university in Florida booed and turned their backs on Education Secretary Betsy DeVos as she stood up to deliver a commencement speech today.  “Let’s choose to hear each other out,” DeVos said, straining to be heard above the crowd at Bethune-Cookman University’s graduation in Daytona Beach. “We can choose to listen, be respectful and continue to learn from each other’s experience.”  But most of the students remained with their backs turned as the crowd applauded. University President Edison O. Jackson took the podium and tried to quiet the crowd, threatening to end the graduation. “Your degrees will be mailed to you. Choose which way you want to go.”

Many — although not all of the students — eventually took their seats.  One man was escorted out by security.  rrrr

 

Is genetic discrimination the new face of racial bias on your campus?

With advances in technology come new sets of complex issues campus employers must face.  Recently, a veteran police sergeant with the Hastings Police Department is suing the police chief and the city, saying he was the subject of racial discrimination.

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A complaint filed in federal court alleges state and federal civil rights violations, detailing events following a genetic test Sgt. Cleon Brown took through Ancestry.com revealing he is 18 percent black.  Brown claims after he revealed the test results, Hastings Police Chief Jeff Pratt called him “Kunta”, a character in the novel “Roots: The Saga of an American Family by American author Alex Haley.” The lawsuit also alleges some police department employees started whispering “Black Lives Matter” while pumping their fists as they walked past Brown.

Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs – referred to as “covered entities”) from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.

As campus HR administrators and EEO executives, do you incorporate GINA topics in your employee trainings?  Do you simply incorporate this subject under your various Title VII trainings as a form of illegal race discrimination?  As this technology evolves and becomes more popular, do you anticipate an increase in these type cases in higher education both as to employment discrimination and privacy rights?  Is genetic discrimination a civil rights issue?

Male Cornell student alleges gender bias in Title IX lawsuit

In April of 2017, University EEO reported that a male senior student at Cornell University has filed a Title IX lawsuit against the university, a former Cornell Title IX investigator and Interim Judicial Administrator Jody Kunk-Czaplicki following an investigation of physical and sexual misconduct allegations.  The lawsuit states the university wrongfully suspended him and intentionally inflicted a flawed Title IX investigation process that denied him the right to a hearing and due process.  Additionally, the lawsuit claims the university refused to investigate the male student’s own accusations of sexual misconduct and physical assault against a female student.  This matter is similar to the litigation occurring with Notre Dame University and alleged bias against male students.  The Washing Post recently reported on a similar topic regarding the rise in lawsuits against colleges and universities from accused male students alleging due process violations.

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State colleges and universities are subject to due process considerations.  Cornell University is private, however.  Do you support the idea of similar due process obligations on private institutions conducting Title IX investigations?  Why or why not?

Feds find CCSD violated Title IX in case of special education student

The Clark County School District (Nevada) violated Title IX, the federal law that protects students from sexual harassment and guarantees gender equity, the U.S. Department of Education’s Office for Civil Rights concluded in December.  The violation stems from the system’s handling of a 2011 complaint from a special education student who claimed he was harassed by a teacher and peers and then suffered retaliation once his parents complained.  The U.S. Department of Education identified additional problems with the school district’s Title IX compliance — and the system never publicly disclosed the violation.

The district failed to respond promptly and equitably to the student’s complaints and never took steps to address harassment from peers that staff knew about, according to the Office for Civil Rights investigation.  “The delay of approximately 45 days between the time the accused received written notice and the alleged victim received verbal notice was nor prompt or equitable,” the report states.  But the office also found inconsistencies with the district’s policies regarding Title IX, noting that the district did not have a clearly designated Title IX coordinator to handle such complaints until the spring of 2016.

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The district also had an unclear procedure for the public to file such complaints, with at least two grievance procedures and at least three different regulations that address harassment complaints, the investigation found.  “Finally, these regulations, when taken together, create an ambiguity regarding where a student or parent who wishes to file a complaint regarding harassment should go,” the report states.  The district agreed to a resolution agreement with the Office for Civil Rights, which required the system’s administration to fix a number of issues by January and March.  The agreement was bundled into the consent agenda of the School Board’s Dec. 8, 2016, meeting, but was labeled confidential and did not disclose any details to the public.

Trustee Carolyn Edwards said complaints against the district are not usually made public or discussed at a meeting.  Edwards said the district tries to follow all laws and do everything according to protocol.  “We’re a large district,” Edwards said. “Sometimes individuals make mistakes and we have to correct them.”

Under the agreement, the district must revise its grievance procedures and its notice of non-discrimination.  The district also must provide Title IX training for employees at the complainant’s school — which is not identified. Students at the school must receive instruction on harassment and how to report it.  John Clune, a Colorado attorney who specializes in Title IX cases, said the investigation’s length was unusually long.  “The length of the investigation has more to do with the speed of (Office for Civil Rights) rather than the school, and there is no consequence for anyone for the length,” he said.

8 Texts, 2 Stories, 1 Investigator: Inside a Cornell Title IX Case

Hours before the moment in 2015 that sparked a Cornell Title IX investigation and two lawsuits, Sally Roe and James Doe began their nights as many students do in college towns across the country, by leaving a fraternity house and venturing off campus to locate a party.

The two students, whose real names The Sun is withholding, spent about an hour in Ithaca’s Collegetown before returning to the fraternity house — Doe’s — and receding to Doe’s bedroom alone.

What happened next was the subject of a nearly five-month-long Cornell Title IX Office investigation based largely on text messages, a friend who spoke to Roe later that night and a Title IX investigator’s assessment of each student’s credibility. The investigator’s ultimate decision that Doe should be suspended for at least a year was later overturned by the University’s highest appellate panel for Title IX investigations, and Doe is suing the University for what he says was a “fatally flawed” investigation.

Cornell requires all parties to keep confidential anything they learn in the course of Title IX investigations, meaning the Title IX Office’s inner workings are rarely exposed to the public. Court documents from one of Doe’s two lawsuits give an inside look at how the University’s Title IX Office handled the complex case, shedding light on how at least one Title IX investigator came to a conclusion.

Elizabeth McGrath, the Title IX investigator whose investigative report happened to become public record, attempted to handle a difficult charge: to find the truth between two irreconcilable narratives.

Both Doe and Roe agree that when they got back to Doe’s room, they began to kiss consensually. Their stories diverge from there, with Roe alleging that Doe took things too far by trying to unhook her bra despite her repeated demands that he not.

Doe ignored her protests and became even more aggressive, Roe alleges, violently yanking her hair, lacing his fingers around her neck and choking her for about five seconds. As a matter of self-defense, Roe says, she punched Doe’s genitals and left the room.

Doe’s story is different.

After kissing consensually, Doe says Roe pinned his wrists to his bed, sat on top of him and began kissing him aggressively, gestures that made Doe uncomfortable since he had been sexually assaulted in the past, he said.

Doe says he asked Roe to be more gentle, but, when she refused, tried to shift Roe off his body by placing his hand on her collarbone and firmly pushing. Less than half a second after he put his hand on Roe’s collarbone, Roe punched him in the genitals, he says.

Elizabeth McGrath (left) investigated the claims of Doe and Roe before making a recommendation that was later overturned. Sarah Affel (right) is the University’s current Title IX coordinator.  Elizabeth McGrath (left) investigated the claims of Doe and Roe before making a recommendation that was later overturned. Sarah Affel (right) is the University’s current Title IX coordinator.

Tasked with determining which of the two accounts was “more likely than not” to have been true — a standard of proof required by the Department of Education’s Office for Civil Rights — McGrath had little to work with. There were the two competing reports, interviews with several people who spoke to one or both of the students afterward, and other evidence, like text messages between Doe and Roe on the morning after the incident and a picture of Doe’s bedroom.[ANNUAL EVENT TITLE]

As is typical in Title IX cases handled by universities across the country, neither Roe nor Doe had the right to cross examine the other, to confront witnesses or to be represented by an attorney.

Cornell’s Title IX Office received 32 formal complaints of sexual violence or sexual harassment during the 2014-15 and 2015-16 academic years under Policy 6.4, the University’s statute governing procedures for those allegations, according to the office’s statistics.

Investigators found 20 students responsible, 11 not responsible and dismissed one complaint, and of the 20 found responsible, eight were dismissed, 10 suspended and two placed on probation.

‘Appearance, Demeanor and Frankness’

The evidence in the case of Doe and Roe did not point overwhelmingly to one conclusion. Asked which party they thought was more truthful, most witnesses — including the two closest to the situation — said they did not know.

McGrath, who no longer works at Cornell, wrote in the investigative report that she would have to rely on her own “commonsense [sic], life experience, knowledge of human nature, and good judgment” to render a decision.

The investigator began her report by considering the parties’ “general credibility and character,” including “appearance, demeanor and frankness.”

Asked how investigators assess such characteristics, Title IX Coordinator Sarah B. Affel told The Sun that “Cornell provides extensive internal and external training” to investigators “on all aspects of their jobs, and consistent with federal and state laws, regulations and guidance on training.”

After discussing her impressions of the parties — including her feeling that Doe was socially awkward — McGrath’s credibility analysis involved looking for inconsistencies in their stories.

The investigator found several inconsistencies in Roe’s account. Roe originally said she met Doe in Collegetown rather than in his fraternity house, falsely said she had never been to Doe’s fraternity house before that night, and initially failed to tell McGrath that she was friends with one of Doe’s fraternity brothers, a relevant detail because he was one of the witnesses.

McGrath also noted that Roe asked the University to extend Doe’s interim suspension, saying his presence at Cornell gave her anxiety, but returned to Doe’s fraternity house less than 24 hours after their initial encounter and several more times later that week, although she did not interact with Doe during these subsequent visits.

These discrepancies were not significant, McGrath said, because they did not “concern the incident at hand” and were “likely a result of [Roe’s] wish to keep details of her life private.”  As for Doe, McGrath said some of his comments “seemed incredible or were inconsistent,” such as when he took off his own shirt and asked Roe to take hers off, in spite of his discomfort with Roe’s allegedly aggressive behavior.

Doe also admitted to modifying his own written reports of the incident after speaking with his lawyer, McGrath said. It was not clear what changed between Doe’s initial and final drafts, but Doe’s testimony was “consistent with a document he admittedly changed after he first wrote it,” the investigator said.

A text message conversation between Doe and Roe the morning after their encounter, McGrath said, was “the clearest record of their feelings toward one another after the incident and before there was a suggestion of an investigation or complaint.”

Doe initiated the exchange, screenshots of which were filed in Tompkins County Court, six or seven hours after the incident in his bedroom:

Doe: I have no interest in you, but I don’t like to leave bad feelings to ferment. If you would like to calmly talk sometime, I feel like it would clarify any misunderstandings.

Roe: I’m honestly scared to be around you now.

D: That’s exactly why I think there’s a misunderstanding. The moment you implied you weren’t having fun I implored you to leave.

R: BS you did

D: Fine, don’t talk it out with me. If you want to let your own insecurities control you, it’s your problem, not mine.

R: I’m sorry I told you to stop multiple times and yet you decided to choke me

D: Now I’m starting to realize the misunderstanding. I, possibly as my own fault, never understood you telling me this. I apologize.

R: I hate talking about this over txt

McGrath trained her sights on Doe’s final text, writing,“The investigator considers this final message to be an admission of some type of unwanted conduct on his behavior.” The texts, in part, led to her conclusion that Roe’s allegation that Doe choked her was more likely than not to be true.

‘Motive and Opportunity to Lie’

As part of the investigation, McGrath then assessed each party’s “motive and opportunity to lie.” She found that Doe had a possible reason and opportunity to lie, noting that he only complained of being punched in the testicles after the Office of the Judicial Administrator issued him a temporary suspension due to Roe’s initial complaint under the Campus Code of Conduct.

The “timing and nature” of Doe’s complaint “supports an inference that it was part of a strategy to lift the [interim] suspension rather than a good faith belief that he was the victim of sexual violence,” McGrath wrote in the Motive to Lie section of the report.

McGrath also thought it odd that when Doe’s fraternity brothers confronted him about the choking allegations, Doe responded by saying that Roe should not have considered his actions choking because he is practiced in BDSM. McGrath thought Doe’s reaction in this “unguarded” moment belied his candid thoughts since he, directly confronted by this fraternity brothers, had no opportunity to conjure a fake story.

The investigator said Doe’s allegedly candid response was “a bizarre response to make while also maintaining that he was the victim.”

Doe’s attorney maintains in the federal lawsuit that Doe was never interviewed prior to being given the interim suspension, a claim that court documents support.

G10 Biotech, where OCR attorneys held three public focus groups in March.
Adrian Boteanu / Sun Staff Photographer
G10 Biotech, where OCR attorneys held three public focus groups in March.
McGrath said Roe, on the other hand, “seemed to disclose the alleged sexual assault in an effort to get help from friends and the University.” After Roe filed the initial complaint with the OJA, Doe filed a report of his own, as well as a complaint under Policy 6.4. Roe then filed a Policy 6.4 complaint as well.

McGrath also said Roe had no opportunity to lie because, according to one of the witnesses, Roe walked out of Doe’s room and immediately said she had been choked, indicating that the story was true and not contrived.

McGrath wrote that one witness “described Roe’s face as red and said she looked disheveled as though she had been crying” when she left Doe’s room.

The investigator’s comments were based on a witness who said “[Roe’s] cheeks were flushed. I don’t really recall much more. Maybe her hair was a little bit disheveled” and that Roe “seemed like she was tearing. Wait was she? I feel like it was more like very flustered and not really — maybe her eyes looked red, but it might not have been from tears.”

The same witness said he did not see any finger marks or bruises appear on or around Roe’s neck, according to McGrath’s summary of her interview with the witness.

Taking all the evidence together, McGrath found it “more likely than not” that Doe choked Roe in the fraternity that night in 2015. She said she gave “great weight” to Roe’s conversation with the witness after leaving Doe’s room, the text messages and Doe’s “claim about being skilled in the art of BDSM when first told about the investigation.”

McGrath’s decision was that since Roe’s story was “more likely than not” to be true, Doe was guilty of sexual assault under Policy 6.4 — the only violent offense federally-funded universities are required to adjudicate.

Doe should be suspended indefinitely, but at least for one year, McGrath determined, saying the sanction “attempts to balance Cornell’s interest in keeping members of [the] Cornell community safe, while remaining fair to [Doe].”

The University’s highest appeal board under Policy 6.4 — simply called the “Appeal Panel” — struck down McGrath’s suggested suspension nine months later, placing Doe on probation instead.

Representatives for Doe and Roe were each contacted for this story and declined to comment.

Trump singles out historically black college funds in signing statement

 

The White House pushed back Sunday on questions about a signing statement President Donald Trump added to the latest government spending bill Friday that said his administration would treat minority spending programs — including one to help historically black colleges pay for construction — in a manner consistent with the Constitution.

The signing statement “simply indicates that the President will interpret those provisions consistent with the Constitution” and is not dissimilar to signing statements issued by past presidents, a White House official said Sunday.  “The important thing to realize is: The President was able to secure big wins for his top priorities in this spending bill, including more than $25 billion in additional funding for the military, $1.52 billion for border security, a permanent extension of health coverage for retired miners, and a three-year extension of the DC school choice program,” the official said.

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Trump signed the $1.1 trillion omnibus spending bill Friday, adding the statement: “My administration shall treat provisions that allocate benefits on the basis of race, ethnicity, and gender … in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution’s Fifth Amendment.”  Those programs included historically black college financing, Native American housing block grants and minority business development, the statement said.  Such statements are often used to flag provisions an administration might disregard.  The aim of the Historically Black College and University Capital Financing Program is provide low-cost capital to finance improvements to the infrastructure of the nation’s historically black colleges and universities, including for the repair or construction of classrooms, libraries, dormitories and the like, according to the Department of Education.