The subject line of an email sent Aug. 14 read, “Offer to reimburse for expenses in connection with Title IX matter .” It was addressed to Class of 2019 graduate, Emily, whose sexual misconduct hearing had been suddenly called off in early Aug.
“Rhodes recognizes that your circumstances are unique,” wrote Rhodes Title IX coordinator Tiffany Cox. “Therefore, Rhodes offers to reimburse you for your expenses in connection with the Formal Resolution Hearing in exchange for your agreement to maintain confidentiality: we ask that you agree to not disclose any aspect of Rhodes’ investigation and administration of your Title IX claim, and particularly this letter and its proposed payment arrangement, either privately…or in any public forum.”
This email came months after Emily filed a Title IX complaint against John Doe. Doe is a former Rhodes student who filed a lawsuit against the college after he and another student were expelled for an unrelated sexual assault of a female student during a formal held at the SAE house on Feb. 14.
On Nov. 11 Emily emailed a letter to Rhodes administrators. “As I am sure many of you do not know, on February 8, 2019, I was raped by a fellow student. I tried to deny to myself that it had happened. My assailant, John Doe, was a friend. I thought it was out of character for him to act in such a way.”
Emily filed a Title IX complaint allegation against Doe on Mar. 14, after she learned that Doe was the same student accused in the SAE Valentine’s Day incident. “It was at this point I realized that this student’s actions were not out of character,” Emily wrote, “and that the incident I tried so hard to forget was in fact rape.”
Rhodes commenced an investigation of Emily’s complaint on Mar. 29 and completed it 12 days later. “The process was tedious,” she wrote, “and many of my communications with the Title IX office were disregarded, not answered properly, or entirely dismissed. I was never given a hearing date due to the fact that the Title IX office was waiting for the verdict from John Doe’s other hearing.”
“I simply was told to wait and see what happens.”
According to Doe’s lawsuit, Rhodes did not follow its Title IX policy and federal law when it delayed its investigation of Emily’s complaint. That is, Rhodes did not meet a required prompt resolution within a timeframe specified by the institution, which at Rhodes is 60 days from the complaint. Colleges are required to notify alleged perpetrators of Title IX violations of extensions in writing. Rhodes’ Title IX policy includes a provision compliant with this requirement: “If it is determined that more time is needed for the investigation, Rhodes will communicate the additional estimated amount of time needed to complete the investigation.” Therefore, Emily’s Title IX proceedings should have been completed, absent a written notification of an extension of time for good cause, no later than May 29, 2019.
Rhodes never sent Doe a charge letter, scheduled a formal or informal hearing, or issued any form of administrative resolution. In fact, Rhodes did not pursue Emily’s Title IX proceeding against Doe beyond providing him a copy of the investigative report until Jun. 6, when, during oral argument, Rhodes argued that, even if all other considerations were put aside, Emily’s Title IX complaint barred the award of said degree. Rhodes’s attorney asserted that due to the pendency of the first matter, the second matter was “placed on hold, cold turkey, stopped.”
Neither Rhodes policies nor the federal regulations governing Title IX procedures make any provision for placing the resolution of a matter on hold. Rhodes took no steps to complete Emily’s Title IX process despite the fact that under Rhodes’ policies the existence of prior incidents of sexual misconduct can impact the sanctions for sexual misconduct in other Title IX proceedings. In other words, the outcome of the two proceedings could have been relevant to each other.
In his lawsuit, Doe argued that Rhodes intentionally delayed Emily’s Title IX proceeding: “In essence, Rhodes deferred resolution of the second Title IX complaint in a fashion that allowed it to backstop its woefully deficient process in the first Title IX proceeding with a second Title IX proceeding that it could raise in the event that Plaintiff challenged the outcome in this Court.”
In a Jun. 6, hearing, Judge Fowlkes asked the question: “So, your hearing panels can’t base a decision on the facts and the law in front of them? Is there that much of a chance that a new panel would be influenced by another proceeding?”
Rhodes’s attorney Daniel Cohen conceded that Rhodes could not impartially manage two Title IX processes simultaneously: “Our concern from a due process standpoint procedurally is that if we brought two cases simultaneously that there would be the potential for cross-pollination.”
“I’m not sure about the first case. I think so in the second case. Gosh, two different women wouldn’t be making the same allegation. Therefore, we expel him. We protect against that, and so we did bifurcate these two. We allowed the first hearing to go forward, and then if he was not cleared on the first hearing, then the second victim has her chance,” Cohen said in response.
Under Rhodes’s Title IX policy, members of a hearing panel in one Title IX case should not know about another Title IX proceeding if they are not also on the hearing panel for said proceeding.
In Doe’s lawsuit, the Judge ultimately granted his request to enjoin Rhodes from enforcing his expulsion pending the outcome of the suit but denied his request that Rhodes be enjoined from refusing to confer his degree. The Judge noted that Rhodes decided Doe’s fate without seeing or hearing live testimony from his accuser and did not provide him an opportunity to cross-examine his accuser, through his agent or otherwise, “despite credibility being at stake in his case.” Therefore, The Judge held that the balance of harms favored granting his request because Doe had “shown a substantial likelihood that the proceeding by which he was expelled was improperly conducted in violation of due process.”
Rhodes finally scheduled Emily’s hearing against Doe on Aug. 3 at 10 AM, 142 days after she initially met with the Title IX office to report her assault. “I was strongly urged [by Tiffany Cox] to be present for this hearing, as John Doe won the first part of his lawsuit alleging his due process rights had been violated,” she wrote. “The Title IX office even acknowledged that if I were not to be present, the same lawsuit could potentially be filed again, resulting in a similar outcome.”
But on Aug. 2 at 1:20 PM, “less than 24 hours before my hearing, I received a phone call from the Title IX office that the attorneys were working on a settlement and they wanted to know my thoughts,” Emily wrote. “I put my life on hold, hired an attorney, prepared questions and opening and closing statements, had friends ready to be witnesses, and even had my sister fly down to be my emotional support person.”
Under Rhodes’ current Title IX policy, a “Claimant does not need to be present at the hearing as a prerequisite to proceed with the hearing.”
Tiffany Cox, the Title IX coordinator, wanted Emily’s opinion about a settlement to provide Rhodes’ attorney. Emily said she knew what a settlement between John Doe and Rhodes College would mean for her. The Title IX office had made it clear that if the lawsuit resolved, and Doe was no longer enrolled at Rhodes now or in the future, she would no longer have the right to a hearing. Although this point was conveyed to Emily, under its Title IX policy, Rhodes actually “has the discretion to apply these procedures when one or both parties is neither a student nor an employee (e.g., when one party is a former student or is not enrolled at or employed by Rhodes).”
The terms of the settlement have not been previously disclosed until now.
According to Emily, during this 12-minute phone call, she was very explicit that she was upset by the thought of a settlement and that she wished to proceed with the hearing to get justice and closure. Several hours later, she received another call, lasting only 3 minutes, from Cox and was told that a settlement had been reached; on the same day, Rhodes filed a joint motion to place under permanent seal all documents containing “confidential information affecting the privacy rights of Plaintiff and other persons involved in the factual events giving rise to this litigation.”
Court documents now under seal include the transcript of Cox’s witness testimony during a motion hearing held on Jul. 17.
Emily, who lives over 1000 miles away from Memphis, wrote that she was devastated that her opposition to the settlement went ignored. The only thing Rhodes had to offer now was a reimbursement of her incurred expenses from her return trip to Memphis, an offer made first by Cox on Aug. 2, after Emily expressed her concerns about how much money and time she had spent on traveling to Memphis.
Emily sent an itemized list of expenses to the Title IX office and the Vice President for Finance and Business Affairs Kyle Webb, which totaled $2,929.54. She received a letter from Cox saying that the college would reimburse her if she agreed to sign a confidentiality agreement. “The Title IX office wanted to hold my family’s $2,929.54 hostage in exchange for my silence,” she wrote.
“This demand outraged my family and me, as I had done Rhodes College a service by revisiting my trauma and returning to Memphis to face my assailant and his legal counsel after graduation. Somehow, I was the one who suffered an emotional and financial hit. I had now been victimized by John Doe and Rhodes College,” Emily wrote.
Rhodes’ Title IX policy has only one provision of confidentiality, which relates to Family Educational Rights and Privacy Act (FERPA)-protected information: participants of Title IX proceedings must agree “not to re-disclose or use other people’s confidential information, learned as a result of the investigation or proceeding, outside of such forums without express consent or for any improper purpose.”
In Jul. 2018 the Association of Title IX Administrators (ATIXA) released a position statement on the free speech rights of individuals in sexual misconduct proceedings: “More and more often, confidentiality agreements seeking to bind parties are becoming disfavored, controversial, and subject to litigation, especially when wielded by the powerful to silence the powerless.”
“While trepidation regarding sensitive communications is understandable, and schools must maintain the privacy of resolution proceedings, schools go too far when they gag the parties from sharing their experiences, their truths, or even their critique of the resolution process,” ATIXA said.
On Sep. 12 Cohen sent an email to Emily asking her to let him know if there was anything he could do to address her concerns about the confidentiality letter. “Would you be open to a phone call? Of course, your attorney and your parents would be welcome to attend,” Cohen wrote. Cohen copied Emily’s attorney on the email.
Emily never signed the letter of confidentiality. Rhodes has not reimbursed her for her expenses incurred for her canceled hearing against John Doe.
Emily told HerCampus that she wrote a letter to Rhodes administrators after she found out that Rhodes received a $300,000 grant from the Department of Justice for sexual assault prevention programs. She hopes her letter will help the school improve its sexual assault prevention efforts and help prevent what happened to her from happening to another student.
On Oct. 28 HerCampus sent an email asking for the College’s grant application, to Rhodes’ Grants and Foundations Manager Lydia Spencer and Rhodes’s Vice President for Finance & Business Affairs Kyle Webb. HerCampus never received a response. However, HerCampus has since obtained Rhodes’s grant application through a Freedom of Information Act (FOIA) request. The application of Rhodes College to the Grant to Reduce Sexual Assault, Domestic Violence, Dating Violence and Stalking on Campus Program is now available for public viewing here.
Emily believes that Rhodes College has the potential to improve its Title IX office, but at the same time, she has very little faith that the administration will do what is needed to effect a meaningful change.
Read her letter here.
Rhodes College did not respond to multiple requests for comment.