March 2, 2017

OCR Open Forum Reveals Concerns Regarding University’s Title IX Office

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A Cornellian’s Oscar flub on Sunday was not the only bad omen for Cornell this week.

On Tuesday and Wednesday, four attorneys from the Department of Education’s New York Office for Civil Rights held open focus groups during which members of the public could discuss the campus climate surrounding sexual assault and harassment. The Sun attended one of these three meetings.

All participants in the focus groups whose personal stories are cited in this article gave The Sun clear permission to publish their stories and any other potentially identifying information. The Sun is omitting all information that could identify participants who did not give their express consent to The Sun to be included in this story. However, The Sun will include non-identifying information that pertains to Title IX compliance — a similar standard to the one OCR investigators said they use in deciding which disclosures to put into the investigative record.

The public consensus of the few — a single-digit number — who attended the event: it’s bad.

Of the six open OCR investigations against Cornell, most are to determine whether the University responded “promptly and equitably” to sexual assault complaints. At least one of these investigations is to determine whether the University discriminated against a party to a sexual assault investigation on the basis of sex.

Attendees disapproved of the University’s treatment of both parties in Title IX investigations.

From the perspective of a complainant, a number of participants said that the Title IX office cares more about avoiding litigation than it does about seeking justice.

Some attendees said that in their experience, the Title IX office looked out for the University’s interest rather than that of the complainant. Instead of offering the complainant several legal avenues to handle the complaint, the attendees said the Title IX office tried to keep the complaint internal and quiet.

Several focus group participants went on to say that the University’s Title IX investigators were slow and unresponsive. Sometimes, participants claimed the Title IX office would wait over a month before responding to complaints. During this delay, attendees warned, witnesses’ recollections of events could fade and taint their testimonies.

As audience members shared their thoughts, OCR’s attorneys were scribbling notes and asking follow up questions to almost all who spoke. The attorneys never tried to turn the conversation in any particular direction. Instead, they let attendees direct the conversation from the start.

One topic that invoked a high number of follow-up questions and copious scribbling was that of the no-contact order — although the terms of these orders differ, they generally require that a student accused of sexual assault leave spaces where he or she could come into contact with their accuser.

No-contact orders were not popular among the attendees.

Some attendees said that these orders are too weak and difficult to enforce closely because the University would have to monitor the accused person’s movements at all times in order to completely enforce the order.

Other attendees took the opposite position. They worried that no-contact orders presumed guilt and were prejudicial.

These orders are imposed by the Judicial Administrator, who can issue the order “after making a reasonable effort to meet with the accused if appropriate to do so,” according to the Campus Code of Conduct.

No formal trial or finding of guilt needs to precede a no-contact order, according to the code.

Branching from the no-contact order discussion, a few attendees began to echo each other’s concerns about potential unfairness toward students accused of sexual assault. The discussion was ignited when a Cornell parent, who asked The Sun to identify her as ‘Judy,’ reported that a lawyer experienced in sexual assault matters cautioned her against sending her son to Cornell based on the University’s reputation for treating students accused of sexual assault unfairly.

When the OCR attorneys asked for specifics on how the University might treat accused students unfairly, attendees quickly responded with a list of grievances: respondents have no ability to examine or confront accusers or to question witnesses or be represented by an attorney, and they, like complainants, are unaware of the investigation’s timeline, according to the attendees.

Most of these grievances, when stated out loud, drew a few nods of agreement from others in attendance, with the OCR attorneys seeming particularly interested in the timeline of the University’s Title IX investigations.

During this part of the discussion, OCR’s attorneys asked open-ended, opinion-driven questions. For example, one investigator asked an attendee if he thought the University’s use of no-contact orders was fair and why he felt the way he did. The attorneys also asked attendees if they believe the University’s investigative process favors complainants and if they feel safe on campus.

The second type of question the attorneys often asked was more fact-based and tailored to the audience member’s relationship to the University.

For instance, a resident advisor was asked whether he was trained on reporting potential sexual assaults and whether doing so was easy. Similarly, a Cornell parent was asked whether the University does a good job of disseminating information on its sexual assault policy to parents.

When an attendee said that she had a hard time reading and understanding Cornell’s Policy 6.4 — Cornell’s policies and guidelines for handling issues of discrimination, sexual harassment, sexual assault and violence — the attorneys took note.

But the focus group was not a complete loss for the University. Most of the attendees said they felt safe on Cornell’s campus, and one attendee said that Title IX reporting is easy and readily accessible.

The University’s victim advocate, Nina Cummings, was present throughout the session. The University’s Title IX coordinator, Sarah Affel, gave a brief introduction at the beginning of the meeting, but she left the room before OCR’s investigators began the discussion.

After Affel left, the attorneys introduced themselves and explained that they are neutral fact finders who represent neither party in their investigations. They informed attendees that they would not note the names or any identifying information of the participants.

Although the attorneys did not reveal any specific information about the ongoing investigations against the University, they did reveal that they wanted attendees to discuss — during the “listening session,” as the investigators termed it — how they felt about sexual assault and sexual violence on campus.