Is Our Response to Title IX Racist?

By Anonymous

In response to the federal government’s requirement that universities be more proactive about sexual violence on campus, Colgate established the Equity Grievance Policy (EGP) under the direction of Associate Provost for Equity and Diversity Lyn Rugg. While having clear procedures in place for addressing incidents of sexual violence or harassment is a positive step forward, our two years of experience with the EGP raise serious concerns about how just how “equitable” it is; indeed, the numbers and the way in which the policy is implemented give grounds for thinking that our response to Title IX is racially biased.

At the September, 2014 faculty meeting, Rugg confirmed the fears many of us have had when she acknowledged that at least 60% of the EGP cases have been brought against minority men (that is, at least 4 out of the 7 EGP hearings which President Herbst reported had been held since the inception of the EGP in his all-campus email sent April 28, 2014). This is a worrying percentage given that men of color comprise only about 6% of the student body according to the demographic statistics on the Colgate website. Further, Rugg stated at the faculty meeting that 50% of those expelled through the EGP were minority men, specifically international students of color; once again, this percentage is much greater than the percentage of minority men on campus.

Why should faculty be concerned about the workings of the EGP?

First, the EGP is used for complaints against students, staff and faculty, so our interest in a fair and equitable process should be of concern at both the community and personal level.

And we also risk creating a campus that is less safe for women. When Title IX is applied unequally through overrepresentation of minority men, others may come to believe they can act with impunity; this is much more likely to exacerbate sexual violence than mitigate it.

Finally, if the disproportionality of minorities subjected to EGP proceedings continues, the EGP will end up reinforcing racial divisions on campus rather than doing anything to positively address them. Given the stated desire of the administration to use the EGP in its efforts to improve racial dynamics on campus, we cannot allow the EGP to be part of the problem.

How does EGP policy contribute to racial bias?

At the September faculty meeting, Rugg was pressed to explain the disproportionality of minority men subject to EGP hearings. Her responses warrant closer examination. The meeting minutes state, “Rugg noted that 1) Colgate can only move forward on complaints, and those that have been received have been moved through the EGP process; every case that has come forward has been handled seriously, without selectivity.”

Rugg’s comment does not acknowledge that her office exercises a good deal of discretion in terms of which reports are moved forward to an actual EGP hearing. It is instructive to compare the number of EGP hearings (7 total from January 2013 to April 2014 according to Herbst) to the number of incidents of sexual violence reported in the Campus Safety Annual Report in 2013 alone (2014 statistics have not been made public yet): 10 reports of incidents of sexual violence including 7 “forcible sexual offenses,” 2 for “stalking” and 1 for “dating violence.” In other words, if there are an estimated 10 reported incidents of sexual violence in 2014 (as in 2013) distributed equally across 2 academic semesters, then out of an estimated 15 incidents up to April 28 2014, only 7 resulted in EGP hearings. Therefore, the majority of reports of sexual violence do not end up in an EGP hearing, leaving us to wonder why those chosen to be moved forward are disproportionately against men of color.

Rugg was also questioned at the faculty meeting about how the policy of the university taking on the role of complainant and thereby acting as accuser, judge and jury can be made equitable. Rugg denied that there were any cases where the university has assumed the role of complainant, “In cases that have been heard, it has never happened that there has been no complainant.”

However, this assertion is contradicted by the documents made public through the lawsuit of “Dan,” an international student subjected to an EGP hearing who is now suing the university for discrimination and illegal imprisonment. [For the sake of the privacy of the students involved, pseudonyms are used here.] In court filings (available online), Colgate admits that it was the university who pursued charges against Dan in the absence of a complainant: “ADMIT Defendants TAYLOR and/or RUGG instructed Defendant BROGAN to pursue the allegations involving [“Jill”] even though [Jill] had not herself made the complaint.” There was a third party in the case, “Cathy,” who initially contacted Campus Safety stating her concern about an incident between Dan and Jill; however, Cathy had left Colgate by the time the EGP investigation was initiated, she is never referred to as a complainant in any of the court documents, and indeed is not mentioned by Colgate as having any further contact with the EGP beyond her initial emails. Therefore, in at least this case, it appears the administration took on the role of complainant against Dan.

The Dear Colleague Letter from the Office of Civil Rights (OCR), to which our EGP policy responds, is very specific about who can be called a “complainant” in a Title IX case: a complainant is the person who reports harassment and then consents to an investigation based on their report: “Schools should inform and obtain consent from the complainant before beginning an investigation.” If such consent is not obtained or, as in the case cited above, the student did not even make a complaint herself, then that person cannot be referred to as a “named complainant.”

According to OCR guidance, schools should be responding differently in a case where a victim comes forward to report sexual violence, consents to an investigation, and pursues the charges against an alleged perpetrator compared to when these criteria are not met. In the case of the former, the college is required to respond proactively through its processes designated for addressing sexual harassment under all circumstances.

In the latter situation, on the other hand, OCR specifies “if the complainant requests confidentiality or asks that the complaint not be pursued…the school should inform the complainant that its ability to respond may be limited.” Further, OCR is specific about when a university is required to address harassment in the absence of a complainant willing to pursue charges or in the case where a complainant requests anonymity, instructing schools to weigh such factors as “a history of arrests,” “the use of a weapon,” and “the age of the victim.” None of these criteria given by OCR are mentioned in our EGP policies.

Further, Rugg’s statement at the faculty meeting that “if the university has credible information of violation of EGP policy, it is required to investigate and adjudicate regardless of the wishes of the victim” contradicts OCR’s guidance that tells universities that when a complainant wants to remain anonymous or does not want to pursue charges against an alleged perpetrator, the university’s response is thereby “limited” and, further, in such a case “there are steps a school can take to limit the effects of the alleged sexual violence and prevent its recurrence without initiating formal action against the alleged perpetrator.” As mentioned above, OCR gives specific criteria for when a school’s Title IX obligations require it to override such a request by a victim and specifies that “these instances will be limited.” Further, OCR rightly points out that not respecting the wishes of a victim in terms of anonymity or pursuing disciplinary action “can have a chilling effect and discourage other students from reporting sexual violence.” Certainly, Rugg stating that the EGP will take action “regardless of the wishes of the victim” risks having that effect.

In Dan’s case, Jill states she was “put under pressure to provide a statement.” She goes on to say, “She [Brogan] did not give me the option to write it, she told me to provide her a statement.…I did not even know it would be presented at the hearing and used as evidence to reach a decision in the case.” These quotes come from Jill’s statement in support of Dan’s appeal, which is part of the lawsuit. As reported by the student, this action appears to violate OCR’s guidance that “To improve trust in the process for investigating sexual violence complaints, a school should notify students of the information that will be disclosed, to whom it will be disclosed, and why.”

Rather than being “limited” by the absence of a complainant, Colgate aggressively pursued the case against Dan, imposing the most severe penalty at each stage. While many more allegations of harsh treatment are part of the lawsuit, the list below only includes actions admitted by Colgate:

• The EGP process was initiated when Cathy sent an email to Campus Safety that “alleged that during an argument, Dan had put his hands around her neck and pushed her against a wardrobe. She said that Dan had not squeezed her neck, did not leave any marks, and that she was not in any pain. Cathy claimed to be making this report a year after the alleged incident because she knew of a similar incident involving Dan and Jill. Cathy alleged that the incident had occurred more than two years before, in the beginning of 2011. Cathy alleged that Dan had pushed Jill, which resulted in her falling and accidently [emphasis added] hitting her head on a table. Cathy alleged that Jill received stitches in the emergency room as a result.”
• A No-Contact Order was issued that neither Jill nor Cathy requested; indeed, Jill stated to Brogan that she “did not believe that Dan was a threat to her and that the no-contact order was unnecessary.”
• Dan was placed on interim suspension (the absence of any current complaint about Dan calls into question why the most severe interim measure, suspension from campus and classes, was imposed);
• Dan was kept at the Campus Safety office from 2:30pm until 10:00pm (7.5 hours!) where he was questioned;
• Other students placed on interim suspension have been allowed to stay in a hotel;
• Dan was escorted by Campus Safety to a small, isolated room in the basement of Curtis Hall and told he would not be allowed to go anywhere else until his hearing 10 days later; Campus Safety officers were posted outside the door 24 hours a day to  “monitor” him.  Federal judge Andrew Baxter's opinion notes the following: "The Plaintiff has stated at least a plausible claim for false imprisonment.";
• Two requests by Dan and two by a faculty advisor for a short delay in the hearing were denied (according to EGP policy, delays may be granted for “compelling reasons” - Dan cited the confinement in Curtis basement and suffering harassment by Campus Safety officers when attempting to review the evidence against him among others);
• The investigation was closed before Jill submitted her statement, yet this statement was distributed to the EGP hearing panel (raising concerns that OCR’s requirement that there be a “thorough investigation” was not met);
• Brogan presented the case against Dan at the hearing; neither Jill nor Cathy testified.
• The decision to expel Dan (the most severe sanction) was communicated to him within a couple hours after the hearing concluded;
• “Dean of the Faculty, Doug Hicks rejected the appeal for a new hearing outright despite Dan and Jill both citing multiple procedural errors and instances of bias and discrimination, and despite a policy in the student handbook that students have “freedom from disciplinary sanction except by due process, with avenues of recourse available when a student claims to have been subjected to pre-judicious, discriminatory, or capricious treatment;”
• The one comparison case given by Hicks to justify that the sanction of expulsion was not overly severe Colgate now admits involved a case where “the expulsion resulted from accusations of sexual assault; that the women pursued the charges and participated in the hearings.” In contrast, Dan was expelled for dating violence, not rape, and the women neither pursued the charges nor participated in the hearings;
• Despite Jill writing in her statement to Hicks, “I admit that I acted violently toward [Dan]; I hit him, bit him, scratched at him and kicked him,” she was never disciplined.

Once again, none of the actions on the list above have been contested by Colgate.

Given the aggressive prosecution of Dan that went far beyond what OCR requires and now involves allegations of criminal infractions by the university as a result of confining Dan in the basement, it is surprising that the university insists in its court filings that his case was a “purely internal investigation and disciplinary hearing as to whether he violated the University’s private code of conduct;” in other words, the allegations that resulted in Dan’s interim suspension, confinement, expulsion and denial of a worthy appeal did not even include conduct that the university believed could result in any criminal charge.

Kiese Laymon, a professor of English at Vassar College who gave a lecture at Colgate on February 5th, emphasized how racial power structures result in people of color being judged more harshly by disciplinary systems of all kinds; Laymon referred to this as “being born on probation” as a Black man.

These issues are clearly evident in Dan’s case. For example, Dan’s letter of interim suspension (included in an Affidavit submitted by Taylor) accuses Dan of “actions [which] have allegedly included, without limitation, striking and/or choking [emphasis added] each of the aforementioned students [Jill and Cathy].”  Further, Jill states in her letter to Hicks that “Val [Brogan] told me that [Cathy] said [Dan] had tried to choke her, which is absolutely false and I did not believe it when Val said that.”  (And why would the Title IX Investigator reveal to another student what she was told in a private email at all?) Contrast that with what Cathy actually said in her email (quoted above) in which she explicitly stated that Dan did not squeeze her neck and she was not in any pain. Why was this incident described so much more severely by EGP Investigator Brogan and EGP Chair Taylor than what had actually been reported by the student herself? The use of such exaggerated and inflammatory language appears to violate OCR’s standard that Title IX investigators be “impartial.”

Further, why would the EGP be so aggressive in its prosecution of a student in the absence of a complainant or any alleged criminal behavior? Was the other international student expelled through the EGP (the student whose photo was distributed over email last fall after he trespassed on campus following his expulsion) treated as harshly as Dan? Has a White domestic student ever been treated like this under similar circumstances? Or is the answer as the “concerned Black faculty” hypothesize in their “Colgate to Crow-gate” AAUP blogpost: “that the university is arguably building its reputation for making the campus safer on the backs of black and international males.”

How can we address racial bias in the EGP process?

Here is a list of corrective actions and policy changes that could help to change both the practices and the perceptions of the EGP on campus:

1. We need absolute transparency about the demographics of Title IX reports to Campus Safety and EGP hearings; these should be reported in full every year in the same way that demographics of new hires, the student body etc. are reported.  
2. Information about complainants in EGP hearings also needs to be reported, and the Title IX Coordinator must acknowledge when the university invokes its stated policy of acting as the complainant, along with specifically how the situation meets the criteria given by OCR for taking such action.
3. There is currently nothing in the EGP policy that specifies how a complainant is to give consent for an investigation as required by OCR. This must be added.
4. No one should be pressured to provide information to the Title IX Investigator or any other person in the Office of Equity and Diversity. Language must be added to our EGP policy that makes it absolutely clear that any information given is voluntary. Further, anyone who does make a statement must be informed how that statement will be used and they must have the right to withdraw a statement if they do not consent to such use.
5. Any statements made by an alleged victim or witness about an EGP case and given to the hearing panel must be part of the investigation and thereby receive a “thorough” review.
6. Those who participate in the EGP process must receive more training in the area of race along with the training they already receive focused on issues related to gender.
7. Should any allegation of racist or xenophobic comments be substantiated (unfortunately, some of these have been alleged in the lawsuit), that person should no longer be permitted to participate in the EGP in any capacity.
8. As Rugg’s term as Associate Provost for Equity and Diversity is coming to an end, the administration should appoint someone to this post who has the background and expertise to confront issues related to the intersection of race and gender who will therefore be proactive and effective in making sure we do not repeat the patterns seen thus far.

It goes without saying that the college must have the means to address and reduce sexual violence on campus, but how we implement such processes is of vital importance. Moving forward, we must honestly confront the impact of race on our EGP process and take the steps necessary to make the EGP actually equitable through increased transparency and accountability.

Echoing Brian Moore’s AAUP blog post, along with the suggested corrective actions, here, too, an apology is in order.

The above post does not necessarily reflect the opinion of the AAUP membership or that of its officers, nor does inclusion of the post on this website constitute an endorsement by the Colgate chapter of the AAUP.