Quora Answer: How can you best tell if a Title IX investigation is using techniques that are based on science and evidence of effectiveness?
Most likely, to be safe, you need to assume that the investigation of the allegation that you violated the sexual misconduct policy of your school will be handled in a non-scientific and thus, from your perspective, ineffective way that violates your rights under Title IX.
Why are so many Title IX Sexual Misconduct Investigations Unscientific?
As part of the Obama-era Title IX regulations (1), practically every single college and university in the US started looking at reports of sexual assault on campus more closely. A lot of that responded to inflammatory statistics, like claiming that one in five women in a US campus gets sexually assaulted (2) and wrong reporting like Rolling Stone’s November 2014 exposé claiming that brothers at UVA’s Phi Kappa Psi had gang raped a woman. (3). The reaction to that article led first to the suspension of all Greek life at UVA, then to the humiliation of several Phi Kappa Psi brothers, and finally to the entire withdrawal of the story by Rolling Stone (4) which then paid $1.65 million to settle its defamation of Phi Kappa Psi’s reputation (5). In the midst of that politicized background, schools adopted unscientific, trendy, investigative models that favor the victim, often referred to as “believe her first” or “trauma informed”. For example:
“The theory of trauma-informed care also offers an explanation as to why survivors might behave oddly in an interview, such as remembering only vivid details or describing them out of order when discussing their assault. Campus administrators say using this investigative practice is the best way to gather information and figure out the timeline of an incident without greatly upsetting a victim.” (6).
Generally, you will find that your school, at some point, in some publication of its Title IX team or its Title IX trainings, included and favored either or both of these methods as models of sexual assault campus investigations.
While these slogans sound wonderful in the context of a society that remains undeniably patriarchal, in this particular instance, the “believe her first” just as the “trauma informed” method uses unscientific (biased against men) techniques that lead to false results that, in addition, thoroughly violate the fundamental rights of respondents to sexual misconduct in college. Thus, “believe her first” and “trauma informed” discriminates mostly against men, the overwhelming gender of those who respond to sexual misconduct, and denies for them guarantees long established under U.S. constitutional doctrine (what is usually called “due process”), under notions of “academic fairness,” and also under state contract law. (7)
Powerful Allegations of a Potentially Unscientific and Ineffective Title IX Investigation Methodology at UMass Dartmouth:
A lawsuit that has now entered the “discovery” stage against the University of Massachusetts at Dartmouth provides a fractal on how the Title IX staff’s alleged lack of focus on science and evidence in a sexual misconduct process discriminated against the man. This case also states factual allegations that may show how the anti-male bias that pervades the “believe her first” and “trauma informed” modes pre-determine the respondent’s guilt while ignoring the rights this respondent has (even if he is guilty, which he denies). That is, this lawsuit provides shocking examples alleging that UMass’ Title IX staff, whether because they were biased by the “believe her first” approach, untrained in general, speaking from a memory of anger, or simply flat out discriminatory against heterosexual men, handled a sexual misconduct investigation in a manner that, if those facts are true, suggest a Title IX violation from the staff who enforce Title IX. (8).
Cynthia Cummings, one person who handled the UMass Dartmouth investigation is a long-time staff member at UMass and a career school staff from UDelaware, who presents as a black female, and who is also listed in the UMass’ web page LGBT directory. (9) Cummings does not have a PhD. The school lists her as a Title IX deputy, and as an employee who “has received a number of awards and accolades for her work as a community organizer and media spokesperson on gay and lesbian civil rights.” (10).
John Harnois, the respondent, alleges in Federal Court that Cummings’ handled the investigation in violation of his rights under Title IX, particularly in ways that seem to me unscientific and ineffective, not to mention dehumanizing, including:
• “…Cummings accused Harnois of “fraudulently disclosing his history in his application.”” (8 at 3)
• Cummings “demanded that Harnois withdraw from UMass Dartmouth.” (id).
• Cummings also told Harnois that several individuals “had recently filed formal complaints regarding [Harnois’s] misconduct, which created a hostile learning environment, and that [UMass Dartmouth was] considering a Title IX investigation.” (id)
• “Harnois asked to be informed of the specifics of the allegations made against him, including when and by whom the allegations were made. Cummings told him no more than that complaints about his conduct had been received as early as December of 2015.” (8 at 4).
• “During the meeting, Cummings demanded that Harnois sign a document acknowledging that if he were to remain on the UMass Dartmouth campus after the meeting, he would subject himself to arrest for criminal trespass.” (id)
• “Cummings then told Harnois that if he withdrew voluntarily from UMass Dartmouth he would not be subjected to the Title IX investigation and his criminal history would be kept secret.” (id).
• “Cummings promised to ensure that Harnois would receive excellent letters of recommendation, to continue his education elsewhere.” (id)
• “When Harnois declined to withdraw, Cummings threatened to “get his kind.”” (id).
• “During its investigation, UMass Dartmouth’s Title IX office asked two female students in Harnois’s graduate program to file complaints against Harnois but both refused to do so. Eventually, the Title IX investigator contacted every female student in Harnois’s classes in search of derogatory information.” (id at 8)
• “Gomes, Majewski, and Cummings failed to question victim(s) credibility and motivations to prevaricate regarding a graduate course cheating scandal reported by [Harnois].” (id at 20)
• “Finally, Harnois avers that despite repeated requests he was never given a copy of the investigation report or given an opportunity to respond to the findings or conclusions, nor was he allowed to appeal the post termination sanctions imposed by Cummings, which, which had the effect of “constructively expel[ing]” him.” (id at 20)
For whatever reason, and anti-male bias is very likely one, the Title IX coordinator’s treatment of Mr. Harnois does not seem to be scientific or effective and has landed UMass with expensive litigation. Stated otherwise—why does it seem like Cummings did not treat the anonymous complainants against Harnois in the same harsh way she allegedly treated Harnois? Why did she choose to talk to all women Harnois studied with and thought that was not re-traumatizing for anyone? How is that approach scientific in any way? Well, perhaps because Cummings may come from the “believe her first” and “trauma informed” technique tradition, she may have lost sight of the truth, simultaneously managing to violate all of Harnois’ Title IX rights. Paradoxically, the process also appears to have de-humanized Harnois in the very way that heteronormativity dehumanizes the LGBT.
Wonkish Point: Unusually Rich Allegations of UMass’ Male Bias.
The academic question is whether the dehumanizing anger that may stem from Cumming’s cultural and sexual background in combination with the lack of scientific methodology in the “believe her first” or “trauma informed” method, led Cummings to treat Harnois, a heterosexual male and thus part of the hegemonic cohort, in ways that Cummings would not allow anyone to use against herself or her peers—imagine if someone told Cummings that they were out to get “her kind”!
The legal question is two fold. First of all, did Harnois vastly outsmart Cummings thus causing her to express her contempt for men and to publicly behave in discriminatory patterns that usually are only known to the school? (11). Second, did Cumming’s statements and decision making patterns for this case (and potential evidence that she had been trained in “believe her first” methodology) suggest that Harnois should not have been prosecuted in the first place and would certainly have not been found responsible in the adjudication? Legally, Cumming’s alleged words and acts ground Harnois’ claim that UMass Dartmouth treated him discriminatorily and in violation of Title IX through selective enforcement of policy (12) as well as discriminatorily reaching an erroneous outcome (13). And thus far, because of all the evidence that Harnois alleges against Cummings, the Federal Court is agreeing with Harnois:
• “Here, Harnois points to Cummings’s alleged threat: “If you won’t leave, I’ll get your kind with a Title IX investigation.” TAC ¶ 146. Harnois invites the inference that “your kind” referred to students with Harnois’s characteristics, including his gender. Harnois alleges also that funding pressures motivated UMass Dartmouth to open Title IX investigations against males specifically, a) because University leadership operated under a belief – as allegedly expressed publicly by UMass Dartmouth’s Vice Chancellor for Student Affairs – that “sexual assaults are perpetrated [exclusively] by men,” id. ¶ 84; b)…” (Note 8 supra at 12).
• “Here, Harnois identifies several alleged procedural flaws corrosive of the proof in his case, including the official solicitation of baseless complaints from Harnois’s female fellow students.” (Note 8 supra at 14)
Examples of Alternative and Effective Sexual Misconduct Investigation methods that most likely protect your Title IX rights as a respondent:
Sexual assault, the concept as well as the manners to investigate it, evolves, and has a history of trampling the rights of respondents and complainants. “Believe her first” is one of the more recent approaches in this ever refining story which includes, for example from back in 1991, a hearing that then Senator Joe Biden chaired to investigate Anita Hill’s allegations of sexual assault against then Supreme Court nominee Clarence Thomas. It is safe to say the memory of that hearing is that they did not believe Ms. Hill first, second, or ever. (14). It is also noteworthy that Vice President Biden’s view on sexual assault complaints evolved to adopt most of the Obama-era Department of Education guidance that advocated the “believe her first” approach (15) that lies at the other end of the spectrum from the equally flawed one applied to professor Hill. Simply put, “believe her first” has too much politics and too little empirical methodology to ensure fair outcomes for both. (16).
Fortunately, today’s sexual assault scholars, benefiting from data on the different impact from each of the wide range of sexual assault investigative techniques, suggest that methodologies that focus on evidence, rather than “belief” yield better results that avoid travesties like those visited on professor Hill (by not believing her at all and ignoring her evidence) and Mr. Harnois (by potentially believing her first and ignoring his evidence). For example, studies on these empirical methods include:
• Christian A. Meissner and Adrienne M. Lyles, Title IX Investigations: The Importance of Training Investigators in Evidence-Based Approaches to Interviewing, Journal of Applied Research in Memory and Cognition, September 29, 2019, available at: https://doi.org/10.1016;j.jarmac.2019.07.001. (17).
Even ATIXA, who run the Title IX lobby for schools, have recommended that “trauma informed” be informed by science. (18).
Thus, surviving a journey across this minefield requires a lot of work. Frankly, it probably requires a legal team working on your behalf, to establish that your school’s Title IX investigation failed to use techniques based on science and evidence of effectiveness, did not benefit from evidence-based training, applied political “believe her first” or “trauma informed” methodologies, and that this, along with several other reasons, shows the school discriminated against you and thus violated your rights under Title IX.
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather a survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
FOOTNOTES:
(1) The Obama era Department of Education Title IX guidance, now withdrawn, can be found here: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html and at https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
(2) Statistics that more fully reflect the rate of sexual assault on campus can be found through The Bureau of Justice Statistics’ National Crime Victimization Survey which reports a much lower rate of sexual assault: 6.1 per 1000 female students from 1995 to 2013, with the rate trending downwards. That study is available at:
https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf. We have extensively commented on them, as part of the Department of Education’s public comment and you can find that here: https://www.studentmisconduct.com/news/2016/6/27/blog-post-05-harris
(4) id.
(5) https://www.nytimes.com/2017/06/13/business/media/rape-uva-rolling-stone-frat.html
(6) https://www.insidehighered.com/news/2019/09/17/new-statement-title-ix-association-draws-controversy
(8) The case caption is: John Harnois v. the University of Massachusetts at Amherst, Civil No. 1:19-cv-10705-RGS, and the denial of UMass’ motion to dismiss is available here: https://kcjohnson.files.wordpress.com/2019/10/umass-dartmouth-mtd.pdf
(9) This information is accurate as of November 14, 2019 when I visited the UMass webpage and kept a copy its descriptions of Ms. Cummings.
(10) Id.
(11) The fact pattern here shows Cummings going from sly blackmailer when she allegedly suggested to Harnois that if he withdrew all his problems would go away and be kept confidential, to angry and vindictive minister, when she allegedly vows to get his kind and then proceeds to ask every single woman he studies with to complain against him. The fact pattern also shows that Harnois is a PhD candidate with at some point a 4.0 GPA while Cummings does not seem to run in those intellectual circles. While Cummings had the advantage of clerical power, is it possible that Harnois outsmarted her and thus will have the last laugh? The other interesting thing is that Cummings allegedly did this all in the open and thus gave Harnois lots of male bias as motivating factor evidence that is usually not available to the expelled male at the complaint stage. That this information is usually only known to the school is why the 2nd Circuit’s pleading standard makes so much more sense. See, e.g., Doe v. Columbia Univ., 831 F.3d 46, 56–57 (2d Cir. 2016) (plaintiff’s complaint pointing to student group criticism and university statements was sufficient to raise a plausible inference of bias under a “minimal plausible inference” standard).
(12) Selective enforcement at law means that “‘the severity of the penalty and/or the decision to initiate the proceeding was affected by [Harnois’s] gender,’” Haidak v. Univ. of Massachusetts Amherst, 933 F.3d 56, 74 (1st Cir. 2019), quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994), and – more specifically – that gender was “motivating factor.” Haidak, 933 F.3d at 74.5.” (No. 8 Supra at 11-12).
(13) Erroneous outcome at law means “that gender bias was a motivating factor, [to state which in a complaint] a plaintiff may allege facts including, “inter alia, statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender.” Yusuf, 35 F.3d at 715. Facts alleged must “tend to show that there was a causal connection between the outcome of [Harnois’s] disciplinary proceedings and gender bias.” Trs. of Bos. Coll., 892 F.3d at 91.” (Id at 14).
(14) https://www.nytimes.com/2019/03/26/us/politics/biden-anita-hill.html
(15) https://www.chronicle.com/article/Joe-Biden-Was-a-Change-Agent/246174
(16) http://www.prosecutorintegrity.org/wp-content/uploads/2018/01/Believe-the-Victim-FINAL.pdf
(17) We have discussed the effectiveness of politely gathering evidence from the complainant in footnote 10 of this document: https://www.studentmisconduct.com/news/2016/6/27/blog-post-05-harris
(18) ATIXA’s position statement on the use and abuse of trauma-informed can be found here: https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2019/08/20123741/2019-ATIXA-Trauma-Position-Statement-Final-Version.pdf