Title IX legal Expert Brett Sokolow on sexual misconduct cases and DOJ/DOE directives

On April 24th, 2014, Brett Sokolow, Executive Director of the Association for Title IX Coordinators and President & CEO of The National Center for Higher Education Risk Management (NCHERM), issued a statement regarding disciplinary actions against male students involving accusations of sexual misconduct. This statement was highly critical of the manner in which recent proceedings took place and mentions there were five instances in which he felt the accused students were not guilty. He went on to suggest changes in the way schools conduct such cases.

This statement is significant because it comes following years of heated controversy concerning both the Dear Colleague Letter and the Blueprint letter issued by both the Department of Justice and the Department of Education. Both have faced severe criticism from  many members of the higher education community and advocates for free speech and due process. AVFM News has also covered developments concerning the both the Dear Colleague letter and the Blueprint Letter extensively since the Dear Colleague letter was issued in April of 2011.

Sokolow is arguably going to be the ultimate authority schools facing litigation by students disciplined or even expelled will turn too if the number of lawsuits claiming sex discrimination and violation of due process rise.

AVFM News approached him last week asking for an interview and he was generous enough to grant our request on the condition that it be done via email and that neither the questions nor the answers be edited. Several email exchanges took place over the course of three days, with nothing of significance omitted:

AVFM: Briefly tell us about the Association of Title IX Coordinators, the NCHERM and your history with them.

Sokolow: I founded The NCHERM Group in 2000. It is a law and consulting firm that serves higher education and K-12 on high risk health and safety issues. We represent more than 50 colleges as counsel and have consulted with more than 3,000 different campuses. We also represent victims and those accused of violating campus policies, but only selectively. I’m not partisan in the sense that I don’t believe in taking the same side no matter what. That wouldn’t make me an expert, it would make me a gun for hire. Instead, I choose cases and clients solely on the merits. If I think you have the right argument legally, I’ll have your back. That makes me a little hard to pin down, but it also allows me a consistency of principle when involving my firm in cases.

AVFM: You stated in your “Tip of the Week” letter that “Finding each of the accused in violation of sexual misconduct is sex discrimination. We are making Title IX plaintiffs out of them.”

Was this statement in response to the recent lawsuits filed against the University of Delaware and other schools by men who had their right to due process violated and had their academic careers, and by extension, their futures ruined by unfounded or false accusations of sexual assault?

Sokolow: The question seems to state conclusions on which I don’t wish to state an opinion here. And, no, my answer had nothing to do with Delaware, or any filed particular lawsuits. I was referring to cases of internal campus discipline, so far. Some of those may result in lawsuits if we cannot correct this trend. Again, I’m not pro-victim, pro-accused student, etc. when I take this stand. I am pro getting this right. Some campuses are too hot on this issue. Some are too cold. My advice is intended as a corrective because colleges owe it to all students to get this just right. There has to be an integrity to the process or the process is failing systemically.

AVFM: On April 4th, 2011, the Department of Education issued it’s now infamous “Dear Colleague Letter” instructing institutions of higher education to use the “preponderance of evidence” standard (50.1% convinced that a crime occurred) instead of the “clear and convincing evidence” standard during proceedings in which a student is accused of sexual assault. Why do you think the DOD found it proper to lower the standard of evidence in such cases?

Sokolow: The Department of Education did not lower the standard in sexual misconduct cases. More than 80% of campuses were using the correct preponderance standard in 2011 when the DCL was published. Only a handful of campuses were using higher standards at that time. I think a debate on the standard is less productive than accepting it, and working hard to ensure that campuses apply it correctly. If the evidence is over 50%, the accused has violated policy. If the evidence is 50% or under, the accused is not in violation. We spend our time working on helping college decision-makers to understand how to accurately weight that evidence and analyze it to get to an appropriate outcome in every case.

AVFM: The Dear Colleague letter did state that schools would be in jeopardy of loosing their Title IX funding if they did not comply to the new standard. There has been much criticism of this coming from columnists in publications like the Chronicle of Higher Education and the Wall Street Journal.

Have any of your members complained about having to comply with these new standards?

Sokolow: Yes, some of our members feel uncomfortable with the preponderance standard, especially in really close cases where what is more likely than not is only show by a feather’s worth of evidence. Overall, most are accepting of it, and some are empowered by it. To balance it, we’ve encouraged the field to adopt a gatekeeper standard, which allows early dismissal of complaints in the investigation phase, when they do not evidence reasonable cause to indicate a policy violation.

AVFM: Do you think it is proper to have schools involve themselves in prosecuting serious crimes like sexual assault in the first place?

Sokolow: Schools don’t prosecute anything, let alone serious crimes. When schools address sexual misconduct, it is as a form of sex discrimination covered by Title IX, a federal law that requires campuses to remedy such discrimination. Colleges really have no choice in the matter. Some are quite proficient at addressing this kind of misconduct, and some are still on a learning curve. That is problematic, because while the campus is getting its act together, it may fail to adequately protect a victim (male or female) who complains of an assault, or it may fail to protect an accused student (again, male or female), which was the point of my original commentary. I’ve written about protecting victims for years. I intensely dislike the argument that colleges should get out of this business and just leave crimes to the criminal justice system. That is really an argument for rapist privilege. It’s true that campuses need to be better at this, but so does the criminal justice system. Factual records are very damning of police misconduct in sexual violence cases all over the country, and successful prosecution of campus sex offenders is a rarity. So, when the argument is made that colleges should just leave this to the criminal justice system, the subtext is “let the sex offenders get off scot free,” because, that is what will happen if colleges don’t provide another option through their own processes.

AVFM: “When schools address sexual misconduct, it is as a form of sex discrimination covered by Title IX, a federal law that requires campuses to remedy such discrimination.”

Discrimination against which sex?

Sokolow: Title IX protects against any discrimination on the basis of sex or gender in federally funded educational programs, so that’s anyone’s sex or gender.

AVFM: “I intensely dislike the argument that colleges should get out of this business and just leave crimes to the criminal justice system. That is really an argument for rapist privilege.”

Is giving an accuser another means outside of both the criminal and civil courts to have someone more easily punished by their accusations not an argument for accuser privilege? Does this not fly in the face of the doctrine of double jeopardy and the important tradition of protecting the rights of the accused?

Sokolow: It is an important tradition to protect the rights of the accused. All Title IX is doing is creating a level playing field to also protect the rights of the accuser. Double jeopardy is the Constitutional right not to be tried twice for the same crime. Since colleges don’t address crimes, this is inapplicable. The best analogy is to the OJ Simpson trials. He was acquitted criminally, but held liable civilly, for the same acts. This is not double jeopardy, and the courts see the campus process as a civil process, that may parallel criminal prosecution without causing double jeopardy.

AVFM: “Factual records are very damning of police misconduct in sexual violence cases all over the country, and successful prosecution of campus sex offenders is a rarity.”

Is it not a fact that the student tribunals used in investigating and punishing students accused of sexual misconduct are rank amateurs in the science of evidence collection and who also have been known to be indoctrinated in such principles as “rape culture” and the idea that women “never lie” about rape? Is this not tantamount to police misconduct?

Sokolow: Yes. We’ve been working for 15 years to move away from student panels, and in fact away from the due process adversarial hearing model. In Title IX-covered cases, we believe that a professional civil rights investigation by well-trained investigators addresses the problems your question identified, and is the preferred resolution mechanism today. In fact, the White House Task Force report last week embraced this model.

AVFM: How common do you think it is that those who falsely accuse are punished for their crime/misconduct?

Sokolow: Rarely. In fact, we often try to get them help. The fact is that most people who allege campus sexual misconduct when it did not occur do in fact believe that it did. That means they are not filing a false complaint, which is a complaint known to be false, and which is filed with malicious intent. Our job is to discover whether the underlying facts can prove or disprove the complaint. Sometimes, we can show conclusively that what the complainant alleges did not occur, but we still don’t consider that a false complaint unless we can show they know it to be false.

AVFM: In your “Tip of the Week“ you stated “But, in a recent case, the campus policy stated that intoxication creates an inability to consent. Thus, in any situation in which a male student and a female student have sex, and both are intoxicated, this college will commit an act of gender discrimination by only charging one of them. If both are intoxicated, they both did the same thing to each other. Why should only the male be charged if both students behave in ways defined as prohibited by the policy? I’m not suggesting we charge both. Surely, every drunken sexual hook-­-up is not a punishable offense, especially if the parties know what they did and liked it”

Tell us why you think female students are held to a lower standard of behavior then male students.

Sokolow: If a male came forward, who was drunk, and accused a female student, I think a lot of campuses would process that complaint the same way they would if the female student made a complaint about the male student. This is problematic no matter what the gender or sexual orientation permutation of participants. If the question is about why campuses think that drunk sex should be disciplined, I’m not sure, except that they mistakenly think intoxication and incapacitation are the same thing, which they are not. If you are asking why female students are making complaints when they have drunk sex, I think it may be because of what they are being taught in high school, or at the beginning of college. If the college thinks the standard is one of intoxication, and it teaches that, intoxicated students come forward to complain. One other thought is that college administrators may think this is what the government wants them to do, but I’ve had OCR dismiss many drunk sex cases without opening investigations, or after short investigations. I think that addresses the extent to which I think anyone is held to a lower standard.

AVFM: Do you think it will be a challenge to convince Title IX administrators to change this clearly discriminatory practice?

Sokolow: I don’t think it’s clearly discriminatory. I think policy can be applied in a discriminatory way on some campuses, and I think the debate that my commentary and articles like this can foster will help to move many campuses in the right direction.

AVFM: In your “Tip of the Week” letter you gave a list of factors which should be weighed in determining whether a respondent was to be found culpable in a sexual assault case. The first factor you suggested was whether or not the “respondent knew that the complainant was drinking or using drugs and may know how much/what kind.”

Why do you think it is proper to make the respondent responsible for what the plaintiff was consuming of their own volition?

Solokow: So, anything that happens to you when you get drunk is your own fault, apparently? Once you’re drunk, it’s open season for me, because you’ve made a mistake that excuses any abusive or criminal act I might now commit? Let me turn that question around, and see if holds any water. A person who gets him or herself incapacitated by alcohol or other drugs is responsible for what they did to themselves, but why should their inability to protect themselves, or make rational, reasonable judgments excuse anything that someone else might do to them in their weakened state? Your argument, taken to its logical conclusion would excuse murder if an incapacitated victim invited you to shoot them.

AVFM: Allow me to ask this then. You state verbatim in your statement:

“This is shown by the totality of evidence composed of some or all of the following factors that the respondent knew or should have known:

  1. The respondent knew that the complainant was drinking or using drugs and may know how much/what kind”

Does “should have known”  apply only to this first factor or only the remaining factors?

Sokolow:  It applies to the totality of the factors.

AVFM: On May 9, 2013, the Departments of Justice and Education issued a findings letter announcing a resolution agreement with the University of Montana. The findings letter, which refers to the agreement as “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault,” explains the Departments’ interpretation of applicable legal standards and the terms of the agreement and defines sexual harassment as “any unwelcome conduct of a sexual nature.”

This letter has been criticized by freedom of speech proponents and Senator John McCain sent a letter to the DOJ asking why it feels it can write legislation independent of the legislative process.

Do you think that the DOJ and Department of Education have over stepped their boundaries in this case?

Sokolow: No. I think groups like yours, and some free speech interest groups, have misconstrued this resolution letter for your own purposes. It’s insulting to people’s intelligence and manipulative. All the letter says is that victims should report unwelcome conduct of a sexual nature, and that campuses should remedy such conduct when reported. It does not say that campuses should impose discipline on someone who engages in unwelcome conduct of a sexual nature, unless that behavior rises to the level of creating a hostile environment. And, campuses should not do so, especially public universities. Obnoxious and offensive speech is often protected speech and it is incumbent on campuses not to abuse this legal standard to punish what is commonly recognized as protected speech. Of course, I’m sure groups like yours will be there to remind them, if they over-reach.

AVFM: “Obnoxious and offensive speech is often protected speech and it is incumbent on campuses not to abuse this legal standard to punish what is commonly recognized as protected speech.” 

The May 9th resolution agreement broadened the definition of sexual harassment as “any unwelcome conduct of a sexual nature” including “verbal conduct.”  And that this “need not be subject to objective definitions.”

This clearly could get a student in serious trouble for asking someone out on a date or talking about a film featuring adult content. Also, there is a serious departure from a supreme court decision on sexual harassment to use an objective definition.

How is this not an abandonment of the protection of free speech?

Sokolow:  Actually, this is a definition that the Department of Education had embraced back in its 2001 Guidance. It’s nothing new.

The regulatory standard and the court standard are different. We advise public campuses to never use this standard to impose discipline unless it also meets the definition of creating a hostile environment.

Editorial postscript: No doubt many readers will have pointed questions about some of Sokolow’s answers. Regardless, Sokolow has been very generous with his time and will likely face criticism from colleagues and clients alike for talking frankly about these difficult issues. We thank him for speaking as frankly and honestly as he has with us.

Feel free to be as critical as you wish but also please join AVFM in thanking him for granting us this interview in the comments.

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