Flexibility in Title IX policy leads to allegations of mishandled cases

David Lee/Staff

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After Sofie Karasek filed a sexual assault complaint with the UC Berkeley Title IX office in 2012, she didn’t hear back for eight months.

Karasek, then a freshman at UC Berkeley, reported that while on a Cal Berkeley Democrats club trip to San Diego, she awoke to another student assaulting her, according to her lawsuit. When she finally heard back from the Title IX office, it was in the form of a three-sentence email.

The email stated that the Title IX office had resolved the matter through an early resolution process. It did not inform Karasek of any disciplinary proceedings against the student she reported. Karasek found out later, after the student had graduated, that he was found to have violated the campus code of student conduct.

Karasek filed a lawsuit against the UC Board of Regents in June 2015, alleging that she was never given updates on the investigation, never told she could report the situation to law enforcement, never given the opportunity to present her claim at a disciplinary hearing and not told about the outcome of the investigation until after the student she reported had graduated.

But Karasek’s case was dismissed in August 2015 when a judge decided that her case did did not legally show that the university had been deliberately indifferent.

On Tuesday, The Daily Californian obtained hundreds of documents detailing 113 cases of sexual misconduct occurring at all 10 UC campuses between January 2013 and April 2016 that offer insight into the systemic challenges embedded in the Title IX reporting, investigation and discipline processes.

In comparison to criminal law, there is more flexibility in how Title IX investigations unfold — a quality that both respondents and complainants in sexual misconduct cases have alleged led to the mishandling of their cases.

Ambiguous policy and punishment

Signed into federal law in 1973, Title IX establishes that educational programs receiving federal funding may not discriminate on the basis of sex. The law can apply to admissions, athletics and financial assistance, as well as sexual harassment and assault.

“Title IX came out so men and women have an equal academic experience,” said Barbara Bryant, a UC Berkeley School of Law lecturer who specializes in sexual harassment policy. “If women are allowed to be sexually harassed … then they are in a very different and lower-level position.”

State and federal regulations outline certain rights and safeguards that must be followed in the Title IX investigation process, but specific investigation models vary across colleges and universities, according to UC spokesperson Claire Doan.

All UC campuses plan to implement a list of recommendations by July 1 designed to ensure that consistent disciplinary processes are conducted for Title IX cases across the system, according to Kathleen Salvaty, the university’s first systemwide Title IX coordinator.

The recommendations include designating a special position to evaluate and approve all sanctions related to sexual violence and sexual harassment, and disciplinary actions for both staff and nonfaculty academic occupations, among other guidelines.

In the past, however, vast differences often arose in consequences for those breaching sexual misconduct policy across UC occupations. The discrepancies resulted from the individual discretion of designated campus supervisors rather than of a systemwide Title IX coordinator, Salvaty said.

Geoffrey Marcy, a former UC Berkeley astronomy professor, was found to have violated UC sexual harassment policy by groping students, kissing them and touching or massaging them. The university responded by agreeing to remove the procedural protections given to him as a tenured professor in the event that he again breach the policy — a consequence seen as a “slap on the wrist” by many in the UC community. After BuzzFeed News broke the story of his investigation in October 2015, he resigned.

But Marcy’s attorney, Elizabeth Grossman said she felt that the consequences conferred upon Marcy by the university were appropriate, regardless of the community’s critical response. She added that she believes some Title IX investigations result in punishments that do not reflect the due process of law inherent in criminal procedures, and that a spectrum of punishments should be considered depending on the severity of the violation.

Of at least 18 professors who were found to have violated sexual misconduct policy in the Title IX documents obtained Tuesday, Robert Latham — a former tenured English professor at UC Riverside — was the only nonvisiting faculty member to be terminated from his position.

“The criminal justice system offers a well-conceived, complex set of protections that are meant to protect the victim and the accused so, at the end of the day, there can be some consequence obtained for sexual assault (and) the consequence was obtained justly,” Grossman said.

Standards of evidence

In 2011, the U.S. Department of Education issued its Dear Colleague letter, which affirmed that colleges and universities find evidence that a Title IX violation is more likely than not to have occurred. Previously, some institutions required “clear and convincing evidence.”

Title IX investigations require a lower standard of evidence than criminal investigations, which require proof that a crime occurred beyond a reasonable doubt. According to attorney John Kristensen, who has handled cases of sexual violence, the difference stems from the distinction between the civil and criminal justice systems. The civil justice system requires a lower standard of evidence, because a person’s liberty is not at risk.

Grossman said that some violations of sexual misconduct should not always result in the highest form of punishment.

“A fair system does not impose the death penalty, academically or employment-wise. Grossman said. “For any violation, there needs to be a measured level of response.”

Latham, who was terminated in 2016, filed a lawsuit against the UC Board of Regents in which he alleged that his Title IX investigation was mishandled. An investigator found Latham to have lifted a female graduate student’s shirt, touched her body and kissed her stomach while she was intoxicated at a party.

In the lawsuit, Latham alleges that in interviews, his Title IX investigator never raised specific evidence against him but rather presented vague questions about messages he reportedly sent. His inability to remember the messages, the lawsuit alleges, was “distorted into ‘denials’ that he ever sent them in the eventual report.”

Bryant, however, said that in general, Title IX investigations are not unfair to the accused. She noted that the lower standard of evidence in such cases is intended to make the process easier on the victim of sexual misconduct.

“It’s very difficult and painful for someone to bring this forward and say, ‘This happened to me,’ ” Bryant said. “It’s really important that the person bringing the accusations is really listened to and taken seriously.”

Bryant added that when Title IX investigators or hearing officers are poorly trained, investigation findings can skew against complainants.

Looking forward

Marianela D’Aprile, a UC Berkeley graduate student in architecture, said her department was deeply shaken when the San Francisco Chronicle broke the news that professor Nezar AlSayyad was found by a Title IX investigation to have sexually harassed a campus doctoral candidate.

D’Aprile said some people in her department had heard rumors for decades that alleged AlSayyad’s behavior was sexually inappropriate. But to others, the news of the Title IX investigation was a complete shock. The process of Title IX investigations need to become more transparent before they can get better, D’Aprile said.

While the UC system has made some strides in how it addresses Title IX investigations, Karasek said she still wants to see more done to prioritize the safety of staff and students.

“(The release of the investigations) feels like a negative thing, (but) it’s also a good thing that we can do something about it — in that we’re setting a precedent about how these things are handled,” D’Aprile said.

Staff writer Ashley Wong contributed to this report.

Contact Jessica Lynn and Cassandra Vogel at [email protected].