An Open Letter to OCR
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 on, criticizing 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.
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.
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. 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.
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.
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.
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).
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."
Two sexual assault charges against one student? Could I defend letting him remain on campus while we investigated this? 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."
"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?"
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." 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.
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.
The author is a student affairs professional at an accredited institution.
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