California Governor Jerry Brown Joins Forces With Education Secretary Betsy DeVos

I was thinking of an alternate title: "Washington State Senator Comes Out Against Due Process and Supports Gender Bias." But more on that later.

On Sunday, October 15th, Governor Brown vetoed a bill that had been passed by the California Legislature in reaction to Education Secretary DeVos' recent announcement of a rule making process to replace guidance issued by the Obama Administration in its notorious 2011 “Dear Colleague” letter. The intent of the California bill was to explicitly “protect the Obama-era guidelines,” according to the bill’s sponsor. Adherence would be “a condition of receiving [state] financial assistance."

I'd like to believe the governor was acting on deeply held beliefs about the importance of due process in legal proceedings, including a presumption of innocence and safeguards against gender bias.  However, I think he may have more on his mind. There are currently nice cases before the state superior court against the University of Southern California brought by males who have contested the fairness of their sanctions.

Some legal experts, including the federal and state judges deciding the cases, say the flurry of recent successes for disciplined students may show how some colleges and universities are eliminating basic procedural protections in an attempt to combat campus sexual assault.
“In over 20 years of reviewing higher education law cases, I’ve never seen such a string of legal setbacks for universities, both public and private, in student conduct cases,” Gary Pavela, editor of the the Association of Student Conduct Administration's Law and Policy's Report and former president of the International Center for Academic Integrity, said. “Something is going seriously wrong. These precedents are unprecedented.”

In a January 12, 2015 issue of The American Prospect magazine, former federal judge and current Harvard Law School professor Nancy Gertner (recipient of the "2014 Margaret Brent Women Lawyers of Achievement Award of the American Bar Association") said, "As the letter of the 28 [Harvard law professors] (supra) noted, this [investigator] procedure does not remotely resemble any fair decision-making process with which any of us were familiar: All of the functions of the sexual assault disciplinary proceeding—investigation, prosecution, fact-finding, and appellate review—are in one office, we wrote, and that office is a Title IX compliance office, hardly an impartial entity. This is, after all, the office whose job it is to see to it that Harvard’s funding is not jeopardized on account of Title IX violations, an office which has every incentive to see the complaint entirely through the eyes of the complainant.

Even Governor Brown wrote at the time of his veto,  “Thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault—well [intended] as they are—have also unintentionally resulted in some colleges’ failure to uphold due process for accused students.”

My alternate blog title above was a tongue-in-cheek attempt at an attention grabbing headline, similar to those that serve to inflame more than to inform, and was a reaction to a recent letter issued by democratic senators to Secretary DeVos. In the letter, the senators expressed disappointment at her decision to rescind guidance and stated that "Your action on Friday shows a clear lack of concern for the many requests of survivors of sexual assault and members of Congress who have asked you to leave the previous guidance in place. Your new guidance is already creating uncertainty and chaos for schools and we ask that you immediately reinstate the previous guidance."

Hopefully, by following a rule making process, DeVos can get this right.

Senate Letter to DeVos

Inside Higher Ed article

Why Write a Novel About Campus Sexual Assault?

“Why write a novel about campus sexual assault?” It’s a question I’m frequently asked about my latest effort, Yes Means Yes: A Novel. And after working on little else for the past two years, its one I’m eager to answer.

It was a Boulder, Colorado, newspaper article, published in August of 2014, that first caught my attention. The story chronicled events at my alma mater, the University of Colorado, where a female graduate student of philosophy had recently been awarded a settlement of $825,000. Preceding the settlement, she had filed notice of claim against the state, a step that typically comes before a formal lawsuit against a public institution. In the claim, she alleged that a philosophy professor had retaliated against her for reporting she was sexually assaulted by a fellow student in 2012. That’s a lot of money, I thought, and was intrigued to read details of the story. As I read of the events and through a trail of related articles, I encountered what would be a persistent challenge in writing my book—details are almost always kept confidential to protect the privacy of those involved, and just as frequently, I suspect, to protect the reputation of university administrators.

When the female graduate student first reported to the university in October that she had been sexually assaulted by a doctoral student of philosophy at an off-campus party in August, the university referred the report to the Boulder police. They completed an investigation and closed the case without any arrests. The university’s Office of Discrimination and Harassment then mounted its own investigation, and an administrative hearing found the male graduate student responsible (the university assigns responsibility, not guilt) for violating the university’s sexual harassment policy. After report of the assault and prior to the finding, the male graduate student had finished his studies and was hired by the university as an instructor. After the finding, the university decided not to renew his instruction contract. Up to that point, it seemed like a normal case of criminal and administrative processes. That’s when things took a surprising turn.

After the ODH finding of responsibility, a Philosophy Department faculty member named Barnett decided to initiate his own review of the university’s administrative process. He ultimately produced and presented a thirty-eight-page report to the chancellor of the university. Barnett claimed in his report to have interviewed witnesses from the party, other faculty members in the department, and to have secured sworn statements by nearly all the third-party witnesses cited in the ODH investigation. Barnett had been a mentor to the graduate student and stated his motivation in writing the report was to encourage the university to “Do the right thing” and reverse what he believed had been a miscarriage of justice. Barnett’s report is claimed to have concluded that during the university’s investigation and hearing, it had mischaracterized or excluded information from witnesses, systematically manipulated the evidence in order to support a finding of guilt, and that the ODH systematically operates under a cloak of secrecy and without due process.

Unfortunately for Barnett, who had circulated the report to just two individuals within the university’s administration, news of its contents leaked and became widely known within the department. Furthermore, there were suggestions Barnett had verbally stated to other faculty that the female victim had been “sexually promiscuous” and had falsified her report of the assault to cover up the fact that she was cheating on her boyfriend. The university then commissioned its own investigation into Barnett by a private attorney. It was this subsequent investigation, coupled with the leaks of Barnett’s report, including his characterizations of the victim, that resulted in her claim to the state, and ultimately a settlement of $825,000 because, as she said, Barnett had “smeared her reputation.” No official information has been released to the public, including the Boulder police report and details of its closed investigation, details of the Office of Discrimination and Harassment’s sexual assault investigation against the student and the hearing that resulted in a finding of responsibility for sexual harassment, Barnett’s report, or the private attorney’s report. There’s no reason to expect they ever will, so a reader can only form an opinion based on newspaper reports. Furthermore, the victim declined to be interviewed about the case. After the $825,000 settlement was announced, the university moved to terminate Barnett, which would make him only the fourth tenured professor to be terminated in the history of the university. Pending his termination, Barnett sued the university. In 2015, three years after the original incident at the off-campus party, a settlement was reached that stipulated a payment of $290,000 to Barnett and his resignation from the university. The whole incident cost the university well over a million dollars.

After countless hours researching this topic, I recognize that the events in Boulder touched on common elements I’ve discovered in similar cases across the country: universities under investigation by the Department of Education for Title IX violations and public pressure for them to address the issue of sexual assault on their campuses; statistics that indicate sexual assaults on campus are at epidemic levels; the existence of secret tribunals, staffed by non-legal professionals, that limit due process protections; and rampant use of drugs and alcohol, both on and off-campus. Add in the law passed in California in 2014, referred to as “Yes means yes,” and I knew I’d uncovered an important social topic with broad appeal that would inspire deeply personal reactions. My own experience as a father of a twenty-four-year-old daughter, recently graduated from college, directly connected me to an issue that concerns parents everywhere.

Once I’d settled on the topic, I next worked to create a world where a compelling character personally confronts the issues of sexual assault in a campus environment through a narrative that is realistic, gripping, and suspenseful. It won’t come as a surprise to learn the story’s protagonist, Katie, is a twenty-three-year-old graduate student of philosophy at the University of Colorado.