Settlement in FSU case

Breaking news: FSU will pay Erica Kinsman just under $1million to settle the lawsuit she brought against her former institution in the wake of their mishandling of her rape allegations against former quarterback Jameis Winston.

FSU had dug its heels in deep in the case, making repeated remarks to the media about how they had done everything according to the book, despite glaring evidence to the contrary. So I am somewhat surprised by the settlement--and somewhat not so surprised. A trial would have drawn more attention and potentially turned public opinion against the university which still remains very popular in the eyes of fans and alumni. I believe the evidence that would have been brought out at trial would have made them look horrible. Their initial lack of response to Kinsman and the more-than-a-year-late conduct board hearing which was handled so poorly could not have been overlooked.

In the settlement FSU admits no wrongdoing, though most of us know that $950,000 is a pretty hefty sum for an innocent entity. But this way those who vilified Kinsman, (the harassment she experienced was one of the reasons she withdrew from her dream school) can continue to say that nothing was ever proven and that the university simply had to pay her off or incur even more costs to defend themselves. This narrative is somewhat frustrating. Though there are further legal actions pending against Winston.

FSU is still maintaining that they would have won in a trial. This statement from President John Thrasher is particularly infuriating:
Although we regret we will never be able to tell our full story in court, it is apparent that a trial many months from now would have left FSU fighting over the past rather than looking toward its very bright future. We have decided to instead move forward even though we have full faith that the ultimate outcome of a trial would have been consistent with the previous law enforcement investigations and retired Supreme Court Justice Major Harding’s findings in the student conduct hearing.

I am not going to go back to rehash the student conduct hearing. I will just remind readers that it was somewhat of a comedy of errors--but not funny in the least. Whatever Harding's credentials as a judge, his expertise did not extend to overseeing and judging a student conduct hearing.

FSU was correct about the costs of litigation. Only $250,000 of the settlement is going to Kinsman. The rest covers her legal costs.
CORRECTION: New sources have emerged since this story broke, and I posted that this was breakdown of the settlement. The statement was from FSU. But the division of the settlement is to be determined between Kinsman and her legal team, who say that the $700,000 is what FSU determined legal costs to be but is not reality.


What else has this cost FSU? As part of the settlement,  FSU has committed to five years of of sexual assault awareness, prevention and training programs. Curious. Not sure what will happen after five years. These things are basically required anyway. There will be annual reports discussing these programs in an effort in "increase transparency." The latter has been an issue. One astounding fact that would have been brought up at trial is the statement from the former director of the Victim Advocate Office claiming that of the 113 reports of sexual battery to their office in 2014, the university reported only 9 to the federal government (Clery Act violation). This may be an issue, though, when OCR does its investigation. The university still has to contend with that.

Court Dismisses Lawsuit Challenging the Clery Act Amendments

Last year we blogged about a lawsuit filed in federal court on behalf of a female student at the University of Virginia that was seeking to nullify the amendments to the Clery Act contained in the reauthorization of the Violence Against Women Act. The plaintiff had reported to her university that she had been the victim of sexual harassment and assault.  After investigating the matter, the university did not find the accused student responsible for the alleged misconduct. The student then filed a complaint with the Departments of Education and HHS, alleging that UVA violated Title IX in the handling of her complaint.  After the VAWA reauthorization, she filed this lawsuit seeking an order from the court that would compel the federal agencies to disregard the newly-amended Clery standards to the investigation of her case. She argued that these standards were weaker than Title IX's and therefore diluted its protection. Some of Clery's weaknesses, she argued, are its failure to codify a preponderance standard or a definition of consent.   

Last week, the federal court in D.C. dismissed the lawsuit based on an "erroneous interpretation" of the Clery Act amendments.  As the court correctly states, Clery and Title IX impose simultaneous, not alternative, requirements. Therefore, and as the Department of Education has since clarified, nothing in the Clery Amendments changes an institution's obligations under Title IX in any way.   The plaintiff apparently, and not unreasonably, wishes that Congress had endorsed the preponderance standard as a matter of statutory law (a stronger and potentially more lasting source of law than the Department of Education's interpretation on this issue) and that it had chosen to define consent.  Yet, Congress's failure to do this isn't actionable in a court of law.  The plaintiff is no worse off under the amended Clery than she was prior to those amendments.  While she may believe that the Clery Act amendments should have been stronger, that is a policy argument more appropriately directed at the political process.

Doe v. U.S. Dep't of Health and Human Servs., 2015 WL 1316290 (D.D.C. Mar. 24, 2015).

Statistics: Surprising and non-existent

A short, but important editorial from this past weekend's New York Times about the statistics on campus sexual assault covering two angles.

The first is one with which many are familiar: we don't know the rate of campus sexual assault. The one in five statistic is based on a small sample size. The unreliability of that number is fodder for those who believe the problem is not as serious as the recent campus activists have made it out to be. It has also been suggested that the number is inflated because women are "crying rape" when they regret their sexual encounters and/or have a grudge against a fellow student and are using the campus judicial process to get him (usually this is in reference to heterosexual encounters when the man is the accused and the woman the victim) expelled.

We need better numbers to stop this discourse because, as those of us involved in the study of and activism around this issue know, the number is likely higher because of underreporting. The many stories that have emerged from the movement illustrate why people do not report sexual assaults. The questions about why victims don't just go to the police ignore both the poor treatment victims receive in the system including the difficulty in prosecuting rape cases. But as we have unfortunately seen, the campus judicial system is often failing these victims, too. The movement may be bringing these injustices to light, but it is hard to say if reporting will increase or decrease because of it. I would like to believe that more people would come forward to report sexual assault, but it likely depends on the campus environment and the history of the institution in its handling of cases. 

This brings me to the second angle of the editorial: the reporting of sexual assaults that colleges and universities are required to do under the Clery Act. All campus crimes must be reported but it seems that sexual assaults have been the most controversial because schools have been underreporting them. Some of the nearly 100 schools under investigation for Title IX violations in relation to the handling of sexual assault are also facing Clery Act violations.

Here is what I did not know about Clery Act reporting that the editorial shed light on:
"When the Department of Education audits universities for possible Clery Act violations, reports of sexual assault rise dramatically, by approximately 44 percent; when the period of scrutiny ends, reporting rates fall right back to pre-audit levels."

This was evidence of a study that looked at data from 2001-2012 during which time the government conducted over 30 Clery Act audits.

This is disturbing. There have long been calls for putting some teeth into Title IX as it applies to sexual assault and Assistant Secretary of Civil Rights in the Department of Education Catherine Lhamon promised that the department would indeed pull federal funding from offending schools. Tht has not happened yet.

Clery Act violators, though, already incur fines. Unfortunately they do not seem, based on the above data, to be much of a deterrent. This is from a 2014 Inside Higher Ed article about Clery Act violators and their punishments:
"In spite of that increased scrutiny, colleges facing penalties have continued to be successful in getting their Clery Act fines reduced, according to data provided by the Education Department.
Far more often than not, colleges are able to either persuade officials to lower the fines or enter into a settlement through which they pay a lower amount than the department had originally proposed. Of the 21 Clery Act fines that have actually been imposed on colleges since 2000, 17 have been lower than the department initially proposed, the agency’s data show.
Among those institutions successful in winning a discount on their fines, the average reduction was more than 25 percent and usually represented tens of thousands of dollars. The largest discount, proportionally speaking, was a $110,000 fine that the department proposed against Pittsburgh Technical Institute in 2005; the for-profit institution based in Oakdale, Pa., was ultimately fined half that amount, $55,000, in 2007."

This is a bad--as in ineffective--precedent and does not bode well for putting some force behind Title IX compliance either. 

Department of Education Releases New Clery Act Regulations

Yesterday the Department of Education released new regulations implementing the revisions to the Clery Act imposed by Congress when it reauthorized the Violence Against Women Act last year. The Clery Act requires colleges and universities to report statistics on crime that takes place on campus and in related areas. Specifically, VAWA required that Clery’s existing requirement to include sex offenses like rape and sexual assault in their annual security reports be expanded to include other sex offenses including dating violence, domestic violence, and stalking. VAWA also required that colleges and universities include in their reports information about their policies and procedures for preventing and addressing those offenses when they occur.

The Department of Education’s job in promulgating regulations was to flesh out the details of those requirements, such as by providing definitions of the newly-included sex offenses, as well as the content to be included in the institution’s disclosures about policies and procedures.  The process of creating those regulations began last year when a committee of experts representing a variety of stakeholders convened to help negotiate a draft of these proposed rules.  In June, the Department published the draft and opened it for public comment.  The final rule announced yesterday contains no surprises in the form of major departures from the earlier-published draft.  It does include insight into the agency’s reasoning for rejecting suggestions from commenters that certain changes be made.

Here are some highlights of the new regulations:

It's all about the definitions. Definitions are a big part of the new regulations, which seek to ensure that institutions are reporting on crimes and offenses in a consistent manner.  However, the Department pushed back on suggestions that the regulations provide a uniform definition of consent as it used in the description of sexual assault and other sex offenses. For one reason, an institution’s annual security report must include all offenses that are reported, not only those that result in discipline that turns on a precise finding of the lack of consent.  For another, states use different definitions of consent in their own laws, a fact that could cause confusion and make reporting more burdensome for institutions in those states whose definition differs from whatever definition the Department could have required. I think, in addition, that Title IX enforcement provides some assurances that institutions won't vary too dramatically from suggestions the Department of Education and the White House have already provided (here and here, e.g.) for defining consent as voluntary, revocable, not implied by past relations, and not applicable where the individual is impaired, unconscious, or asleep.

Trans-inclusive Security Reports. The requirement that colleges and universities report statistics on hate crimes has been amended to include crimes motivated by the victim’s gender identity, which should lend visibility and transparency to campus violence targeting transgender and gender-nonconforming people.

Prevention and Intervention Must be Addressed. Colleges and universities must describe their “primary prevention and awareness programs” related to sexual violence, including the institution’s policy prohibiting such conduct, its policies and procedures for dealing with sex offenses that are reported, and its ongoing efforts to promote bystander intervention and prevention. In requiring efforts aimed at "primary" prevention the Department is signaling that it requires institutions to go beyond informing students how to keep themselves safe, but to target and prevent "primary" offending behavior itself.

No Standard of Evidence Requirement.  The regulations’ requirements for the substance of disciplinary procedures that must be included are compatible with the Department of Education’s interpretations of Title IX in that both require institutions to provide symmetrical rights to the victims and accused.  One difference, though, is that the new Clery regulations do not require institutions to use any particular standard of evidence during a disciplinary proceeding (only that they report whatever standard they use).  The Department's analysis makes clear that "A recipient can comply with both Title IX and the Clery Act by using a preponderance of evidence standard."  Still, I regret that the Department has missed an opportunity to elevate the preponderance standard from a requirement imposed by agency guidance (which can easily be revoked by a subsequent presidential administration) to the status of binding regulation that is more difficult to change.  

Attorneys May Serve as Advisors.  Another controversial issue addressed in the Clery regulations regarding the disciplinary process is the role of the advisors to both the victim and the accused.  The regulations require institutions to allow students to be represented in the process by an advisor of their choice, and any restrictions on the advisor's role must apply symmetrically to both parties.  Some commenters argued that the regulations should prohibit attorneys from serving as advisors, in order to prevent the process from becoming judicialized and potentially more complicated, expensive, and unfair to whichever side cannot afford an attorney.  The Department thought those concerns were best addressed by institutions in their decision on whether and to what extent to limit the advisors' role. 

These regulations are effective as of July 1, 2015, but should likely inform institutions existing efforts to comply with the amended Clery Act, which has already gone into effect.

Clery Act expansion

Yesterday the Department of Education announced a new rule to the Clery Act. It includes the addition of national origin and gender identity to the definition of a hate crime. It adopts the FBI's definition of rape, which is often broader than that found in state law and does not consider gender as part of the definition.
Another change, one that should hopefully quiet the recent backlash centered around alleged violations of the rights of the accused, is a provision that allows both the accuser and accused to pick an adviser of his/her choice to attend campus hearings. The institution can still dictate how that adviser may be used and involved, but this means that theoretically both parties could have a lawyer present.
Ensuring greater confidentiality for victims who may be seeking help but do not want to go through campus or legal proceedings is also part of the new rule.
And finally, the new rule calls for broader reporting of campus violence. Stalking, domestic violence, and date-related assault. These were proposed as part of the government's commitment to making schools more accountable for campus climate and for greater transparency.


The new rule was published today in the Federal Register and public comments will be accepted until July 21.

FSU--the internal and external

This week's theme: mishandled investigations into sexual assault and the investigations that uncover these mishandlings.
The findings that University of Missouri did not appropriately deal with an allegation of sexual assault from earlier this week have been followed by an in-depth piece by Walt Bogdanich at the New York Times about the way in which police in Tallahassee, Florida basically botched the investigation of Jameis Winston who was accused by a (now former) student of sexual assault. (MSNBC's Last Word also ran a story with a helpful timeline of the events.)
These are two different realms, for Title IX purposes at least. The Mizzou report detailed the failures of that institution. The NYT detailed the failures of the police. The latter does not have Title IX implications.
It does, however, shed some light on the power of football culture and the way it affects the campus climate. Bagdanich's piece only briefly touched on the response by Florida State. But an article in today's USA Today, notes the failures of the university to initiate an investigation into the alleged sexual assault, which should have been triggered when a campus police officer responded to the 911 call made on behalf of the woman who alleges Winston raped her in December 2012. Some of the missteps of the Tallahassee police lead Winston to quickly hire a lawyer which has lead to him being pretty tight-lipped about the events of that night. But that does not mean, as both Erin and I told Rachel Axon of USA Today, that the university can simply drop an investigation because Winston is refusing to cooperate. Not pursuing a judicial case against Winston both compounds the fact that the school did not initiate an investigation in a timely manner, contributes to their liability and, I would argue, contributes to a hostile campus climate.
First, we have not seen evidence--even in  the wake of a complaint filed with OCR--that FSU is even attempting to make things better. Schools do respond differently when news arrives that a complaint has been filed about their handling of sexual assault cases. But many have at least made efforts to prove to their own community and the public that they are moving towards making things better, whether by forming internal committees to assess policies, holding public forums, hiring experts, conducting reviews, etc.
But FSU does not seem to be holding either itself or Winston accountable or least trying to assess accountability.
The issue of "cooperation" is moot here. No student who was, for example, brought before a campus judicial board on charges of violating the school's alcohol policy would be allowed to not cooperate with an investigation. He would be punished--perhaps even expelled.
Second, by failing to thoroughly investigate this incident, FSU has set itself up for further problems. What if Winston re-offends? He is a walking liability. I might even go so far as to suggest that if any other football player commits a similar act, one could claim that the university's failure to reprimand football players created a culture in which sexual assault was allowed to continue.
This touches on my last point: campus climate. The NYT found that FSU has reported only 14 sexual assaults on campus in three years (2010-2012 data). I find this almost impossible to believe. What is happening at FSU? There could be some Clery Act violations occurring. At the high end of the chart (of large, public, 4-year institutions) in the NYT piece is Berkeley with 83 reported assaults. Notably, Cal has been accused of Clery Act violations.
And/or the climate at FSU could be one in which reporting sexual assaults is discouraged by peers (look at all the hatred directed at Winston's accuser), by residential life staff, counselors, administrators, deans--any place along the institutional hierarchy. My hope is that the OCR investigation will reveal some of these things.
Meanwhile, the lack of transparency on the part of the university has been troubling. Now that the police investigation into the mishandling of the case has been exposed, I think that the university can no longer hide its own mistakes in dealing (or not) with this case. Right now it appears that they are taking a defensive stance and waiting for OCR to expose them.

Lawsuit Seeks Injunction of Campus SaVE Act

A lawsuit filed last week in the federal district court in Washington, D.C., seeks to enjoin the Campus Sexual Violence Elimination Act ("Campus SaVE") from taking effect as scheduled on Friday, March 7.  Campus SaVE (see sec. 304), passed last year as part of the reauthorization of the Violence Against Women Act, amends the Clery Act to require universities to report information about a broader category of sexual violence, as well as their processes for preventing sexual violence and addressing instances when they occur.  Campus SaVE requires those process be "prompt, fair and impartial" but stops short of requiring universities to evaluate cases using a preponderance of evidence standard.  The lawsuit argues that this omission violates students' rights by allowing universities to use a higher burden of proof that is less likely to find a student responsible for assault.  Since a preponderance standard is used in other types of disciplinary proceedings, including those involving animus based on race or disability, the plaintiff argues SaVE violates the Constitution's Equal Protection clause by failing to protect sex discrimination as strongly as other types of discrimination. 

The lawsuit also targets Campus SaVE for requiring universities to define consent according to state law.  Depending on the state, this could incorporate a definition of consent that turns on whether the assault that was forcible, rather than just unwelcome.  Since other types of harassment are defined by unwelcomeness, the plaintiff makes a similar Equal Protection argument here as well. 

The plaintiff is a University of Virginia student who claims that the university mishandled her report of having been drugged and raped by another student.  The Department of Education along with the Department of Health and Human Services are presently investigating the university.  She is seeking an injunction to ensure that the agencies do not apply Campus SaVE's "watered down standards" to her case.

Department of Education Releases Draft Clery Act Regulations

The Department of Education released draft proposed regulations implementing the changes Congress made to the Clery Act as part of the Violence Against Women's Act reauthorization last year.  The draft was compiled with input from a negotiated rulemaking committee, which is in theory supposed to produce a consensus-based regulation that is less likely to be challenged and hung up in judicial review.  True to form, much of the proposed regulation seems unlikely to garner controversy.  The proposal provides details to the new Clery Act provisions that govern colleges' and universities' obligation to compile and report crime statistics, including sexual violence defined broadly to include domestic violence, dating violence, and stalking. The regulations also detail institutions' obligation to disclose "primary prevention" and awareness-raising efforts, as well as the disciplinary procedures the institution uses for addressing instances of sexual violence that are reported to campus officials.  According to the proposed regulations, such procedures must, "at a minimum comply with guidance issued by the U.S. Department of Education’s Office for Civil Rights."

It is this last point that is proving to be controversial, as noted in this article. Some see the reference to "guidance" as signalling a back-door requirement that institutions adopt the preponderance of evidence standard for student disciplinary proceedings.  That is the standard explicitly mentioned in the Department's Dear Colleague Letter issued April 4, 2011, which spells out universities' responsibilities under Title IX to provide a fair disciplinary hearing that takes the rights of victims and potential future victims into account.  Congress did not specify a preponderance standard or any standard when it passed the Clery amendments last year.  This kind of legislative silence is typically resolved by regulation, as the Department of Education is doing now.  Yet rather than name the preponderance standard directly, the Department seems to be incorporating it by reference to the current guidance.  This itself could reflect a negotiated or compromise solution, as it only gives regulatory force to the preponderance standard for as long as the guidance stays in effect. If the Department changes or repeals the 2011 Dear Colleague Letter in the future, the regulatory requirement under Clery would change with it as well.