Trigger warning for sexual violence. The Paper Tiger uses “sexual violence” to encompass a broader range of experiences than the traditionally more narrowly-defined terms “sexual assault” and “rape.”
“How have you responded to allegations that you violated Title IX by not responding to sexual assault on campus?”
The college admissions representative sat back in her chair. She didn’t meet the eyes of the Lick-Wilmerding High School student who asked the question. Glossy brochures of smiling college students were perched atop her knees. They could answer so many questions about SAT percentiles, undergraduate majors, campus clubs … but not questions about Title IX violations.
She took a deep breath and said, “We’re not totally sure the suit involved students at our school in particular or just one of our partner schools, but we did recently hire a Title IX coordinator.”
Less than three months later, that school would join 94 others on the list of higher education institutions under investigation by the Office of Civil Rights (OCR) for violating Title IX. While that representative pointed to the school’s Title IX coordinator as evidence of progress, growing concern about sexual violence on college campuses has raised questions about how schools should respond and about the people, including those who train Title IX coordinators, who profit.
SEXUAL VIOLENCE: CREATING AN INDUSTRY?
Title IX and Clery Act suits filed against colleges alleging schools have failed to respond to sexual violence have created an industry: lawyers getting paid by schools to investigate policies, train disciplinary panels and Title IX coordinators, and defend schools against lawsuits.
One of these lawyers is Brett Sokolow, head of the NCHERM (The National Center for Higher Education Risk Management) Group, the largest higher education-specific law firm in the country.
According to Sokolow in a November 17, 2014 e-mail interview with The Paper Tiger, NCHERM “is legal counsel to more than 60 colleges, and [helps] to form their policies, train them and defend them, if necessary.” Sokolow notes that in addition, he sometimes represents “victims in civil cases and in campus hearings, and also represent[s] accused students.”
Sokolow is an expert witness in many federal Title IX cases. His organization, ATIXA (The Association of Title IX Administrators), has trained investigators and Title IX coordinators on more than 2,400 college campuses. He is the Executive Director of NaBITA (The National Behavioral Intervention Team Association). He is frequently quoted in newspapers like The Huffington Post, and hundreds, if not thousands, of colleges across the country have adopted his policies and rhetoric.
But is Sokolow helping end the epidemic of sexual violence that has impacted 20% of undergraduate women, 6.25% of undergraduate men, and an unknown percentage of gender non-conforming undergraduates in the U.S., or is Sokolow part of a system that has failed survivors for decades?
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
—Title IX, a portion of the United States Education Amendments of 1972, Public Law No. 92318, 86 Stat. 235 (June 23, 1972), codified at 20 U.S.C. §§ 1681-1688
TITLE IX AND THE CLERY ACT
To understand the role of Sokolow, one must understand the culture surrounding sexual violence on college campuses. Media coverage of Title IX suits against universities such as Yale and Columbia, coupled with President Obama’s “It’s On Us” campaign urging men to help prevent sexual violence, has thrust campus sexual violence into the national spotlight. However, it has been an epidemic for decades, despite legislation supposed to protect survivors.
Title IX, which prohibits sex discrimination in schools, mandates that schools deal with gender-based violence.
Know Your IX, a national survivor-run campaign to end campus sexual violence, says on its website, “If a school knows or reasonably should know about discrimination, harassment or violence that is creating a ‘hostile environment’ for any student, it must act to eliminate it, remedy the harm caused and prevent its recurrence.”
The actual threat of being deemed in violation of Title IX appears miniscule. In the past year, two schools found guilty of violating Title IX, Harvard and Princeton, were “punished” by having to promise to change their policies.
The Clery Act requires that schools annually publish statistics on campus violence, issue warnings to students when crimes occur, and, thanks to the Campus Sexual Assault Victims’ Bill of Rights, have resources for survivors (information on reporting to police, disciplinary hearings, housing accommodations, etc.).
While schools face a possible $35,000 fine for reporting inaccurate statistics, the disparity between what schools report and suspected rates of sexual violence is enormous.
This disparity is illustrated at MIT, which conducted an anonymous survey in April 2013 of undergraduate experiences with sexual assault. MIT’s official reports state it only had 29 forcible sexual assaults from 2009-2012. However, the survey found that 17% of female undergraduate student respondents experienced sexual assault. The MIT Office of Registrar website says MIT had 1,963 female undergraduate students in 2012. The 17% rate, if it held true if every student responded, would mean more than 300 female undergraduate students had experienced sexual assault, a far cry from the 29 assaults reported by MIT from 2009-2012 (a number that could also include assaults perpetrated against students who did not identify as female).
These drastically different numbers are partially explained by another statistic: only 5% of students who said they were assaulted in the survey said they felt comfortable reporting their assaults to MIT.
Why do many survivors at MIT and other schools feel uncomfortable reporting their assaults?
WHEN SURVIVORS COME FORWARD
Survivors nationwide have said they felt unsupported by their schools when they reported their assaults.
On July 12, 2014, The New York Times published an article about a student, Anna, at Hobart and William Smith College, and her experience reporting her alleged sexual assault.
“With no advocate to speak up for her at the disciplinary hearing, panelists interrupted [Anna’s] answers, at times misrepresented evidence and asked about a campus-police report she had not seen,” The New York Times describes. “The hearing proceeded before her rape-kit results were known, and the medical records indicating trauma were not shown to two of the three panel members. One panelist did not appear to know what a rape exam entails or why it might be unpleasant. Another asked whether the football player’s penis had been ‘inside of you’ or had he been ‘having sex with you’; And when the football player violated an order not to contact the accuser, administrators took five months to find him responsible, then declined to tell her if he had been punished.”
BRETT SOKOLOW: PART OF THE SOLUTION OR PART OF THE PROBLEM?
According to a July 21, 2014 article in The New York Times, Hobart and William Smith paid Brett Sokolow to investigate its responses to sexual assault allegations.
Maureen Collins Zupan, chairwoman of the school’s Board of Trustees, told The New York Times that Sokolow’s investigation “affirmed the conclusions of this case and observed that our process meets or exceeds best practices for higher education.”
A Hobart and William Smith representative also told The New York Times that the person who trained the panelists that Sokolow investigated was none other than Brett Sokolow himself.
On April 24, 2014, the Office of Civil Rights began investigating Hobart and William Smith for violating Title IX.
In response to accusations that he was connected to more than half of schools under investigation, Sokolow stated in a 2014 NCHERM Tip of the Week that “the total number of campuses regularly using our consulting services on Title IX, who are now being investigated by OCR, is ZERO.”
However, The Paper Tiger, using OCR’s updated list, found two schools under investigation on
Sokolow’s current client list (Hobart and William Smith and Whitman College) and dozens more connected to him. For example, Occidental College stated it hired NCHERM in 2010, the University of Alaska system has paid ATIXA/NaBITA thousands of dollars, and University of Denver has subscribed to NCHERM’s “the Bundle” services since 2014.
Other schools under investigation like UCLA cite NCHERM/ATIXA materials as the basis for their policies. Some like Emory University plan to host (or have hosted) ATIXA conferences where Sokolow teaches his policies.
Sokolow has even had administrators at schools under investigation present at his conferences. Jennifer Longa, Assistant Dean of Students at University of Connecticut, co-presented a workshop at the November 2014 NaBITA conference. University of Connecticut has been under investigation since December 6, 2013. Howard Kallem, Title IX Compliance Coordinator at UNC – Chapel Hill, spoke at the 2014 ATIXA/SCOPE conference. UNC – Chapel Hill has been under investigation since March 1, 2013.
In addition to his affiliations with many schools under investigation by OCR, Sokolow has come under fire because Anna and her lawyer, Inga L. Parsons, stated in a July 28, 2014 BuzzFeed News article that despite the American Bar Association Code of Professional Responsibility’s rule stating a lawyer should not talk to a represented party without the permission of the party’s lawyer, Sokolow e-mailed Anna on June 17, 2014. The article further alleged that when Anna and her mother requested that Sokolow only communicate with Parsons, Sokolow e-mailed them again.
Parsons also expressed concern about Sokolow’s motivations. “By his own admission, he says he was hired by the Colleges to act as of counsel in connection with the Colleges’ response to the Title IX complaint. As of counsel he is a lawyer; he is not a neutral party. He is a hired gun paid by the same school he claims to be reviewing impartially.”
The Paper Tiger asked Sokolow, “Do you generally contact survivors directly?”
Sokolow maintained, “No, I never contact survivors.”
When asked to respond to any of the allegations made in the BuzzFeed News article, Sokolow replied, “Given the rampant inaccuracies in that article, I would hope that anyone with journalistic talent and integrity would reject the character assassination of that article.”
UVA AND THE MYTH OF “THE PERFECT VICTIM”
Sokolow has also consulted with University of Virginia for many years, a school under investigation since June 30, 2011 that has begun to examine its responses to sexual violence over the past few months.
On November 19, 2014, Rolling Stone published an article about an alleged sexual assault at a University of Virginia fraternity party. The article described the story of “Jackie,” who stated she was assaulted by multiple fraternity members and was not supported by UVA.
UVA suspended the fraternity after the article went viral. However, the Washington Post called some details in Jackie’s story into question. Rolling Stone then stated that their trust in Jackie was “misplaced,” which was perceived as invalidating her entire story.
The fraternity was reinstated in January 2015, and many see it as a victim of what some consider an epidemic of “false accusations,” despite studies that have found that only 2%-8% of sexual assault accusations on campuses are false.
Jackie’s suitemate from freshman year, Emily Clark, wrote a letter published in The Cavalier Daily on December 7, 2014 reiterating her support for Jackie.
“In December 2012, Jackie broke down,” Clark said. “All of a sudden she was going home and none of us knew why. It was right before finals, and I couldn’t believe she was leaving. She was distraught, and only said she needed to go home. Her teachers had given her allowance to take her finals over break. At that point, we knew something big had happened […] Something terrible happened to Jackie at the hands of several men who have yet to receive any repercussions. Whether the details are correct or not, and whether the reporting was faulty, or the hazy memories of a traumatizing night got skewed … the blame should never fall on the victim’s shoulders.”
In response to the growing number of people who argued Jackie’s accusations must be false due to some disproven details, James Hopper, Ph.D., a trainer of sexual assault investigators and Instructor in Psychology at Harvard Medical School, and David Lisak, Ph.D., a forensic consultant, authored a December 9, 2014 TIME magazine article about how the trauma of sexual violence can impact memory.
“It is not reasonable to expect a trauma survivor – whether a rape victim, a police officer or a soldier – to recall traumatic events the way they would recall their wedding day,” the article states. “Victims may remember in exquisite detail what was happening just before and after they realized they were being attacked, including context and the sequence of events. However, they are likely to have very fragmented and incomplete memories for much of what happens after that.”
While the Rolling Stone article generated backlash against survivors and student activism, articles that followed it uncovered that in the last seven years, UVA has not expelled a single student for sexual assault, even students who the university found responsible.
Intriguingly, Brett Sokolow still called UVA a school “bending over backwards to empower victims” in a November 26, 2014 Aljazeera America article.
In defense of UVA never warning the school community about the alleged assault after it happened, Sokolow stated, “It kind of sounds like this to students: ‘There’s a penis on the loose, maybe even several of them, and if you go out to a party and you drink, one of them may get you.’”
“NONCONSENSUAL SEXUAL CONTACT”
Sokolow has also influenced the rhetoric colleges use to describe sexual assault. Sokolow is credited with normalizing the now commonplace euphemism “nonconsensual sexual contact.”
In an April 17, 2014 Aljazeera America article, Sokolow explained, “It’s very off the cuff to say ‘rape is rape.’ If women walk around campus saying they’ve been raped, they could be sued for defamation.”
However, some campus activists disagree. Tracey Vitchers, Communications Coordinator for Students Active for Ending Rape, an organization that helps empower student-led campaigns to change college sexual assault policies and reduce campus violence, spoke out in the Aljazeera America article against Sokolow’s term.
“It really waters down the act that’s being committed,” she said. “It should not be called ‘nonconsensual sex.’ Rape is rape. It’s a crime. It’s a felony.”
Sokolow’s language is one more thing that adds to the large divide between him and the survivors and advocates who feel their voices are ignored.
Despite the increasing friction between student activists and many schools’ go-to consultant, Sokolow insisted in his interview with The Paper Tiger, “I just think [student activists] misunderstand us, or want us to be either fish or fowl.”
As survivors nationwide continue to press for reform and high school students at LWHS watch admissions representatives stumble over Title IX questions, business is still booming for the NCHERM Group.
“We are now getting about six contacts each week,” Sokolow said. “And that results in about two new cases that we agree to take on.”