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Did UT’s Recent Investigation of a Campus Rape Violate Title IX?

Media reports regarding a recent sexual assault investigation conducted by the University of Tennessee suggest it may have violated Title IX.  At the outset, a Vice Chancellor’s remarks regarding the investigation process not yielding any “winners” only “losers” appears to at least violate Title IX’s spirit.  Regrettably, the problems with UT’s investigation, according to news reports and documents it released, are even more serious. 

First, a bit of background: Title IX prohibits discrimination on the basis of sex in education programs or activities:

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.

20 U.S.C. § 1981(a).  See also 34 C.F.R. § 106.1

In other words, the “winners” under Title IX are supposed to be those persons who have suffered from sex discrimination in education and have sought to end it.  Sex discrimination has been broadly defined to include sexual violence because of the hostile educational environment it creates.  See, e.g., Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999); Simpson v. Univ. of Colo., 500 F.3d 1170 (10th Cir. 2007)

Subsequent legislation has expanded the scope of Title IX to include an entire educational institution whenever a single program or school within the institution receives federal funding. 20 U.S.C. § 1687.  Accordingly, because virtually every higher-education institution benefits from federal funding to some degree, Title IX applies almost universally to every educational institution in the United States.  See David S. Cohen, Title IX: Beyond Equal Protection, 28 Harv. J. L. & Gender 217, 243 (2005); Cohen v. Brown Univ., 101 F.3d 155, 187-88 (1st Cir. 1996) (Title IX applies to private university).

Beginning in May, 2014, the U.S. Department of Education opened Title IX violation investigations regarding more than 100 universities, including Vanderbilt and UT-Chattanooga.  Although UT’s Knoxville campus has yet to be formally investigated, we believe there may have been serious Title IX violations at that university related to these most recent allegations. 

Now to the rape allegations:  According to the media reports and documents released by UT, a female freshman enrolled at the university in August, 2014.  The next month, on September 6, 2014, she was allegedly raped by a UT football player on university property.  Two days later, she filed a complaint with UT pursuant to its sexual misconduct policies and procedures (“Interim Policies”). 

Her recollection of the incident was clouded as a result of intoxication, but the student consistently stated that she did not give the football player consent for sex, discovered that she was bruised, and her clothing was torn.  She also later informed UT that she had been a virgin prior to the assault.

A key player in this entire affair is UT’s then-newly hired and decorated Director of Student Conduct & Community Standards, Timothy Burkhalter.  Mr. Burkhalter was an 18-year higher education veteran with experience dealing with sexual assault complaints.  This clearly was not his first rodeo.  Based upon all available information, Mr. Burkhalter appears more than qualified to handle the investigation.

Mr. Burkhalter investigated the student’s complaint pursuant to UT’s policies.  See Interim Policies § VI(B)(2).  After a nearly one-month investigation, the Office of Student Conduct charged the football player with a violation of the Student Standard of Conduct.  The case was referred to Vice Chancellor for Student Life, Vincent Carilli, for a hearing.   See Tenn. Code Ann. §§ 4-5-301 et seq.  Within a few days though, the charges had mysteriously vanished. 

In a short email, Mr. Carilli notified the student that UT had taken the unprecedented step of assigning new investigators to the case.  Apparently, Mr. Burkhalter’s initial findings did not sit well with the UT athletic department and other university higher ups.  Mr. Carilli indicated that the campus rape investigation was now going to be handled by the “Office of Equity and Diversity” – an office which was, on an interim basis, headed by UT’s Jennifer Richter.  See U.S. Dep’t of Educ., “Dear Colleague” Letter; See also 34 C.F.R. § 106.8(a)  This was odd to say the least.  See Interim Policies § VI(B)(2)

Indeed, UT’s administration admitted that they could not even remember a single previous investigation that was ever reassigned after the Office of Student Conduct investigated a student’s complaint and initiated a proceeding.  At any rate, by November 4, 2014 Ms. Richter delivered a report to Vice Chancellor Carilli that expressly and exclusively focused on witness statements related – not to whether she had been raped – but whether the female freshman appeared intoxicated on the night of the sexual encounter.  No physical evidence was apparently considered.  See Memorandum from Jennifer L. Richter to Dr. Vince Carilli, p. 4 (“Further information was gathered during the investigation but was not used in determining whether student conduct charges should be brought against the [football player]”). 

Based on the statements of witnesses alone, Ms. Richter’s report unequivocally found that not only was the football player reasonable in believing that the female freshman consented to sex, but the report went even further: it found that the sex was consensual – a very unusual result.  In fact, the president and CEO for the National Higher Education Risk Management Group, Brett Sokolow, stated that a situation where a university goes on the record and finds that sex was consensual after a student files a sexual assault complaint, like what happened in this case, is something he had never seen before.  Ultimately, when weighing the football player’s statement that the sex was consensual against the female freshman’s assertion that she had been going in-and-out of consciousness during the sexual encounter while face-down on the football player’s bed, Ms. Richter’s office predictably sided with the football player.

Vice Chancellor Carilli sent the report crafted by Ms. Richter’s office to Mr. Burkhalter on the same day it was completed.  Mr. Burkhalter responded within mere hours with a three sentence memorandum which cryptically implied that a “determination” not to reinstate the charges against the football player had “been made” – but such determination obviously did not come from his desk.  Mr. Burkhalter – the near two-decade higher education administration veteran – resigned from the university less than a month later, after only five months with UT leaving no written indication as to why. 

After the student unsuccessfully appealed and Vice Chancellor Carilli affirmed his prior determination not to reinstate charges against the football player, she withdrew from UT.  Title IX was enacted to prevent precisely these types of situations.  Ultimately, the student’s reason to withdraw was rooted in her belief that the football player was given protection and a greater opportunity to present evidence justifying his version of the sexual encounter.  Her assertions are supported by Vice Chancellor Carilli’s ruling on one of the issues in her appeal.  As he wrote:

The number of witnesses that either the Complainant or Respondent have to support their version of events is irrelevant.  What matters is that those with specific information are interviewed so that their information can be included in the investigation report.

See Letter from Carilli to Female Freshman Student. It should also be noted that soon after the rape complaint was initiated, the football player retained a lawyer.

Not surprisingly, former Director Burkhalter has since refused to respond to any media attempts to contact him.  However, Vice Chancellor Carilli’s response to the entire matter is unsettling, to say the least, with regard to achieving the important goals of Title IX:

The one thing that I have learned over the years is that people think, particularly in cases of sexual assault, because the stakes are so high, that there are winners and losers. . . . There are no winners and losers.  There are only losers.

Come again?  Indeed, UT’s “no winners . . . only losers” attitude towards investigating sexual assaults on campus is indicative of a likely Title IX violation on its face and potentially more systemic violations in the university’s Interim Policies.

Applying these facts to Title IX:  The anatomy of a Title IX violation is outlined in case law and materials released by the U.S. Department of Education.  See U.S. Dep’t of Educ., “Dear Colleague” Letter.  After a sexual assault complaint is filed, a university must conduct an “adequate, reliable, and impartial” investigation and must give the parties “equal opportunity to present relevant witnesses and other evidence.” Id. at 11. 

Moreover, “a school should not conduct a pre-hearing meeting during which only the alleged perpetrator is present and given an opportunity to present his or her side of the story, unless a similar meeting takes place with the complainant; a hearing or disciplinary board should not allow only the alleged perpetrator to present character witnesses at a hearing[.]”  Id.  Ultimately, a university is required to respond to a sexual assault complaint in a manner that is “not clearly unreasonable.”  Davis, supra, 526 U.S. at 648-49. 

In addition, a university has not per se acted reasonably where after a sexual misconduct complaint is filed, the university “confront[s] [the student alleged to have committed sexual misconduct], obtained statements . . . and informed [a Special Investigative Unit] of the sexual misconduct allegations.”  Doe v. School Bd. of Broward County, Fla, 604 F.3d 1248, 1259 (11th Cir. 2010).  A complainant’s perceived “lack of credibility” has no influence on whether a university has an obligation to fully and equitably investigate a sexual assault complaint.  See J.M. ex rel. Morris v. Hilldale Independent School Dist. No. 1-29, 397 Fed. Appx. 445 (10th Cir. 2010).  

Based on what has been reported, we certainly do not believe that UT has met its burden under Title IX in this case.  The foregoing policies clearly contradict several of the university’s positions.  For instance, UT’s “no winners . . . only losers” attitude is clearly contrary to well-settled Sixth Circuit precedent:

Where a [university] has actual knowledge that its efforts to remediate [sexual violence] are ineffective [i.e., only resulted in “losers”], and it continues to use those same methods to no avail, such [university] has failed to act reasonably in light of the known circumstances.

Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 261 (6th Cir. 2000).

Moreover, the university’s message to the female freshman that an asymmetry in “[t]he number of witnesses that either the Complainant or Respondent” are afforded to support their respective positions is “irrelevant” is in clear conflict with the policies promulgated by the Department of Education: “a school should not conduct a pre-hearing meeting during which only the alleged perpetrator is present and given an opportunity to present his or her side of the story, unless a similar meeting takes place with the complainant; a hearing or disciplinary board should not allow only the alleged perpetrator to present character witnesses at a hearing.”  U.S. Dep’t of Educ., “Dear Colleague” Letter.

Indeed, UT’s positions in the context of the unprecedented procedures it followed in this case are indicative of a Title IX violation – a fact which exposes it to significant liability in our view.  It is well-settled that a private right of action for damages exists under Title IX in cases of student-on-student sexual violence and harassment where the university is “deliberately indifferent to sexual harassment, of which the recipient has actual knowledge, and that harassment is so severe pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities provided by the school.”  Davis, supra, 526 U.S. at 650; Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91 (1998)

The potential costs to UT under Title IX:  Although such considerations are naturally fact-intensive, juries have awarded plaintiffs considerable monetary awards for compensatory damages and attorney’s fees where Title IX violations are found involving sexual assaults.  See, e.g. A.S. v. South San Antonio ISD, Case No. 5:13-cv-00940-HLH (January 21, 2015) ($4,500,000 jury verdict award to the plaintiff).  As a result, universities are weary of the liability to which they are exposed in the context of Title IX violations and have paid significant amounts in settlements in recent years. See Simpson v. Univ. of Colo, Boulder, Case No. 02-cv-2390-REB (December, 2007) ($2,500,000 settlement); Gilmore v. Univ. of Colo, Boulder, Case No. 03-CV-2495-REB (December, 2007) ($350,000 settlement); Humes v. Ohio Univ., Case No. C2-03-366 (January, 2005) ($350,000 settlement); Speakman v. Ohio Univ., Case No. 2:07-CV-135 (December, 2007) ($225,000 settlement); Marin v. Clovis Unified School Dist., Case No. 08-cv-01924-AWI (September 20, 2010) ($145,000 settlement).  

In this case, UT’s sexual assault investigation procedures have certainly left many unanswered questions which, at a minimum, demand immediate answers.  Regardless, the university’s laissez faire “no winners . . . only losers” attitude towards enforcement of Title IX’s important goals does nothing to ameliorate what, at best, was a botched investigation which resulted in the unequal treatment of a female freshman who had just begun what appeared to be a bright career at UT.

In our opinion, this is only the beginning of problems related to Title IX enforcement in universities throughout the country involving sexual assault.  We naturally hope that UT’s recent changes and new policies will fix these problems.  In the meantime, other students like the female freshman in this case who have already been victimized, undoubtedly remain skeptical.