A lucrative cottage industry of college sexual misconduct consultants emerged after 2011 when The Department of Education sent a “Dear Colleague” letter warning educators that it was cracking down on the gender equity law Title IX, which prohibits sex-based discrimination, including sexual violence.
Recently, Rhodes College has received $300,000 from the U.S. Department of Justice to enhance campus programs to prevent sexual assault and respond to stalking and domestic and dating violence. Rhodes ignored requests for a more detailed explanation about the grant and its plan for using the money. Rhodes also refused to respond to requests for a copy of the application material. This also comes almost a month after Rhodes took 29 days to complete a request for the past 3 years of its crime logs; an egregious delay since the Clery Act requires it to be handed over within 2 buisness days. Unsurprisingly, this also comes after the Rhodes Title IX coordinator Tiffany Cox published their new annual report online, two months after it was due to be released to the public, despite my demands it be released on time.
If President Hass hopes to use this money to support victims, she should start with being more transparent about how the college is tackling the issue of violence against women. I have said this before and I will say it again, Title IX wasn’t meant to create a structure by which criminal guilt or innocence could be decided, though it is being used as such and, consequently, people are losing faith in the system as it exists. The visibility of sexual assault scandals causes public outcry and, subsequently, reform in the criminal justice system.
The entire Title IX process happens in complete secrecy, behind closed doors, and Rhodes goes to great lengths to make sure it stays that way.
The Campus Program Grant encourages a comprehensive, coordinated community approach that enhances victim safety, provides services for victims, and supports efforts to hold offenders accountable. The funding supports activities that develop and strengthen trauma-informed victim services and strategies to prevent, investigate, and respond to sexual assault, domestic violence, dating violence, and stalking. Rhodes plans to coordinate with MPD and Shelby County Crime Victims & Rape Crisis Center (SCCVRCC) to provide mandatory new-hire and quarterly training for campus safety officers and any personnel involved in campus judiciary/disciplinary hearings/Title IX panels. According to Rhodes’ press release, the grant activities include four components: 1) Create a Coordinated Community Response Team (CCRT) to enhance response systems, education, and prevention programs related to sexual assault, domestic violence, dating violence, and stalking, 2) Enhance a mandatory prevention program for incoming students and implement ongoing prevention trainings for returning students, 3) Implement training for campus safety personnel, disciplinary boards, and faculty and staff, 4) Enhance universal prevention strategies.
President Hass spoke to The Daily Memphian about the grant last week: “They bring expertise and can up help us set up training and support services and do this in as positive and efficient way as we can.”
“We will be learning how to provide better support for victims,” said Hass. “We will be tracking the results over time to continue to make Rhodes a safe place for students and all who visit our campus.”
The perception of legitimate justice and fairness is as indispensable as its very existence. If no one thinks Title IX hearings are unbiased or fair, the outcomes become meaningless. Title IX, to the extent that it even works—and we have no idea if it has or does—is a lazy attempt at best. After reviewing Rhodes’ Title IX annual reports it becomes clear that although more students are reporting sexual misconduct, the outcomes are the same. What could explain how of all 118 reports they received over a three year period, formal claim were only filed approximately 22% of the time?
In 2017, Rhodes’ Clery Act annual report showed 4 forcible sex offenses on campus compared to 19 in 2016, 22 in 2015 and 17 the year before that. In 2018, Rhodes Title IX coordinator Tiffany Cox attributed the higher numbers in 2015 and 2016 to a multi-year student-led effort around sexual assault awareness.
“I think that was the beginning of that process, so we did have more students come forward at that point in time to report what they were experiencing,” Cox said. However, the 2017 and 2018 sex offense numbers are similar to what the school reported in the years before that student-led effort: 4 in 2011; 3 in 2012; and 6 in 2013.
Before one believes Rhodes is sincerely handling sexual misconduct better, one must also assume that the statistics they put out are accurate.
According to the U.S. Department of Education’s handbook for campus safety and security reporting, the purpose of the daily crime log is to record all criminal incidents and alleged criminal incidents that are reported to the campus police or security department. The log is designed to provide crime information on a more timely basis than the annual statistical disclosures. A crime must be entered into the log within two business days of when it was reported to the campus police or security department.
On Sep. 12, campus safety took down archived logs dating back to 2015 from its website. A message at the top of the site read: “We are in the process of reformatting the daily crime log per guidance from the department of education. Improvements to readability will be forthcoming in the next few days.”
Once Rhodes finally released the three-year log in mid September, I was contacted by Interim Vice President for Student Life Darrell Ray: “ As you know, the Clery Act does not require Rhodes to post the crime log on its website, but we have undertaken to do this as a convenience and courtesy to the Rhodes community. Right now, the website is undergoing reconstruction so that it will be easier to use and to minimize transcription errors. The crime log will be returned to the website when Rhodes is satisfied with it. In the meantime, you are welcome to come by the Campus Safety Office this afternoon, where you will be given a pdf of the current log for the last three years,” Ray said via email.
“Finally, how incidents are described in the logs and when they are listed is decided by the College in its sole judgment based on facts outside your knowledge or need to know. Rhodes is not in a position to discuss these decisions with you without violating other obligations imposed on Rhodes by federal law.”
As soon as I looked through the logs, I found many, many crimes that Rhodes had only then added in. The picture above is only a sample of the dozens of sex offense crimes they had omitted when the original log was created. Some entries were completely absent from the original log and some had been added on, and some were completely recategorized. This information was shocking and I immediately wanted an explanation, a justification, anything. However, Ray’s email made it clear: he knew what I would ask, and that he made it clear that he would not answer if I were to ask.
In 1990 the Clery Act made it mandatory for schools to accurately report student crime data and properly warn students of potential threats. It is the foremost consumer protection law, as it is based on the premise that students, employees, and other members in the community are entitled to reliable and complete campus safety and crime prevention information. The transparent communication of this information empowers everyone on campus to be well-informed and to play an active role in their own safety and security. Any failure to produce an accurate and completed report deprives the campus of vital safety information to which they are entitled and effectively negates the law’s intent.
Moreover, the modifications and the additions of certain crimes has made it so the modified crime log now matches the older Clery Act annual report numbers. They even changed a ‘stalking’ to ‘harassment,’ to try to make their numbers align.
President Hass states that she plans on using the money to fix broken policies and also hire independent investigators: “We have to make sure and determine whether or not our own policies have been followed. All a college can do is find an independent, trained person to do the in-depth investigation, which usually means interviewing the relevant parties and bringing that information before a trained panel of staff members who listen impartially and raise questions or offer additional insight.”
Considering Rhodes’ comfort in hiring outside attorneys with a potential conflict of interest to conduct these investigations now, I find her sentiment to be lazy and terrifying. Recent Title IX lawsuits against Rhodes College exemplify how blurred the lines can get when independent investigators run into issues during sexual misconduct investigations–especially when there are whispers of attorney-client privilege.
In Memphis, the law firm Baker Donelson prides itself on its extensive experience advising colleges and universities on the legal issues unique to them. They offer to work collaboratively with schools on developing risk-management and litigation-avoidance strategies. They also advertise themselves as gurus for administrators struggling to comply with Title IX. Regarding sexual misconduct matters, Baker Donelson advises schools on public relation issues, drafting policies and procedures, leading sexual misconduct investigations and adjudication training, and they even offer to conduct the investigations themselves.
In the last few years, Rhodes has had two major lawsuits filed against them by former students claiming their Title IX rights have been violated. Both involve Baker Donelson attorneys hired by Rhodes to conduct sexual misconduct investigations. While the facts in each lawsuit vary drastically, the use of hired attorneys and investigators has become a common source of tension. In 2016, a former female student filed a lawsuit against Rhodes College asserting claims of Title IX retaliation and breach of contract for failure to investigate. According to Rhodes’ court filings, Whitney Harmon (Dowdy), an attorney with Baker Donelson was hired as “an outside attorney” to conduct “an independent investigation of the Title IX report” involving the female student’s allegations of sexual harassment and retaliation against a professor.
Before her interview, Harmon told the student that she was “hired by Rhodes as a neutral investigator,” adding that her “job is really to gather the facts,” and that she was “not an advocate for either side,” according to transcripts filed with the court. Rhodes’ position that Harmon acted as an independent investigator makes sense considering its Title IX policies. An investigator is a “trained individual who objectively collects and examines the facts and circumstances of potential violations,” while being “neutral” and holding “no biases in the investigation.”
In more recent Title IX lawsuits, Rhodes appeared to have taken a 180-degree turn.
On July 12, Rhodes filed a motion requesting the Court to quash a subpoena issued for Emma Davis, an attorney with Baker Donelson, who was hired by Rhodes as a sexual misconduct investigator. The subpoena was part of a lawsuit brought by John Doe, a former male student who claimed that Rhodes’ decision to expel him after finding him responsible for non-consensual sexual penetration was a direct result of a procedurally defective hearing tainted by gender discrimination.
In its motion, Rhodes argues that Davis is actually an “opposing counsel,” not subject to deposition since she was “hired in her role as an attorney to conduct the investigation and draft the report.” Therefore, Rhodes asserts that if Doe seeks to depose Davis on any topic beyond the written contents of her report, then he would be seeking to “invade Rhodes’ privileged communications with its attorney and protected opinion work product.”
Although the Court denied the motion, Rhodes’ attempt to avoid transparency raises questions about how sincerely it takes its commitment to “assure fairness, to facilitate communication, and to maintain an equitable balance of power between the parties.”
In fact, Rhodes’ attempt to assert attorney-client privilege raises questions about its commitment to the policy as a whole. It seems difficult to reconcile its policy description with the argument that Attorney Emma Davis – a “neutral” investigator with “no biases,” who offered no recommendations — was really providing legal advice to Rhodes College when she conducted the investigation and produced the report. What possible reason could Rhodes offer that would explain its need to change its attorney-client relationship with Baker Donelson attorneys, if not to avoid revealing the investigation’s most damning findings?
Rhodes’ actions are akin to those made by many colleges and universities who have been accused of using outside attorneys to cover up messes by paying lip service to federal compliance.
With every decision made by Rhodes to try to maintain their facade, more gray tones seep into the pure white image it wants to present. Rhodes continues to try to say, ‘We’re committed to the truth,’ ‘We’re transparent,’ and not be. That’s what is known as doublespeak. Whether it be accusers or the accused, students who find themselves in the midst of Title IX investigations see their lives, not their school’s privacy and reputation, at the heart of the matter.