*Updated 11/9/12*
First of all, if you are wrongly accused of sexual misconduct at A&M-Commerce, and especially if you are wrongly convicted during a university hearing, please contact me, the Foundation for Individual Rights in Education, and your attorney immediately. Be sure to read FIRE’s guide to due process and fair procedure. Also, I’d like to thank Paul Elam and the editors at A Voice for men for hosting my article on their website. The videos below are an expanded version of the article at A Voice for Men.
Summary: the A&M-Commerce administration has adopted a policy that cuts deeply into the due process rights of male students accused of sexual misconduct, fails to punish those who falsely accuse male students and teachers of sexual harassment or rape, and has a history of taking down YouTube videos recorded by students of "outrageous harassing behavior" (in the Title IX Coordinator's own words) multiple times. This is proven by a recording of my meeting with the Title IX Coordinator.
Part One:
Part Two:
*This article concerns the Department of Education's April 4th Directive. It is part of the subseries The War on Male Students at A&M-Commerce, which is part of the larger series The War on Male Students. For a list of articles criticizing the lack of constitutional protections of the April 4 Directive (or "Dear Colleague" letter), click HERE and HERE.*
*A recording of the full interview between TCM and Title IX Coordinator Michele Vieira of A&M-Commerce is provided below. To download a 14MB WAV-format recording of the full interview that can be easily attached to emails, click HERE. To download a 70MB MP3 version (which is too big to attach to most emails but will play on more programs), click HERE. You can also view Part 1 and Part 2 of the full interview on YouTube.
So what’s this all about?
On April 4th, 2011, the Department of Education’s Office on Civil Rights (OCR) issued the “Dear Colleague” letter, sometimes called the “April 4th Directive,” to colleges and universities across the United States. I’ll do a brief recap of the directive to make sure we’re on the same page.
Although the directive has some good parts, it also contains
guidelines that eviscerate the due process rights of men and boys accused of
sexual misconduct. Most egregiously, the directive mandates that schools adopt
the “preponderance of evidence” standard in adjudicating complaints, lowering
the standard to convict the accused (an act which leads to expulsion, a
permanent career-destroying black mark on their record, as well as ostracism
from one’s community) to a likelihood of 50.01% that the alleged conduct
occurred. So in other words, administrators don’t have to be sure that the
student accused actually committed sexual assault before they expel them and ruin
their lives; they just have to believe it was slightly more likely than not
that the accuser is telling the truth.
In addition, among other things, the directive allows accusers to appeal the findings of the hearing and start a whole new hearing over again, in effect allowing them to make double jeopardy accusations. Unlike most policies established in a civil society, the directive was issued in the still of the night, with no chance for public examination or debate. And since the OCR is infamous for threatening to fine or withhold federal funding from universities where female students experience any kind of discomfort that is not remedied by the administration within 60 days (which is the deadline set by the directive in how long universities have to adjudicate complaints of sexual assault), many universities are not adopting the terms of the directive on a basis of ethics or morality, but simply to be in a higher standing to receive federal funding.
The directive also states that “The school’s Title IX investigation is different from any law enforcement investigation, and a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct.” So in other words, law enforcement and universities will each be conducting their own investigations, and they may each come to different conclusions. This is already happening to students like Caleb Warner from the University of North Dakota. Not only did police find that there was not enough evidence to pursue a charge against him, they charged his accuser with filing a false report. Caleb Warner, however, was found guilty at a university hearing and expelled.
Sometimes these hearing are adjudicated exclusively by the assistant
dean of students– meaning that we sometimes have the prosecutor, judge and jury
all rolled into one person. At other times, it is adjudicated by a panel of
teachers and administrators, or a mix of teachers, administrators and students.
The entire process is overseen by Title IX Coordinators, who are present at
every university and are the overarching authority on gender equity in those
institutions. They are normally members of that school’s department of
diversity.
Princeton University, however, did something rather innovative: they
decided to use a higher standard of evidence for adjudicating complaints of
sexual misconduct, but created a parallel process with a lower standard of
evidence for deciding whether certain support services needed to be provided
for the accuser. As reported by USA Today, Russlynn Ali,
the
head of OCR, indicated she wasn't necessarily opposed to a two-tracked system.
She declined to address any particular school, but said OCR was talking with
colleges about their concerns and would study them "case by case" —
suggesting colleges may have more flexibility than they realize.
Most schools, however, were not willing to take a chance on missing out on federal funding. After the directive was issued, controversy arose as they scrambled to comply. Law Professor Cynthia Bowman of Cornell University remarked, “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness. Indeed, there is general agreement among faculty at the Law School that the procedures being proposed are Orwellian.” The hysteria that followed the Directive led former Department of Education attorney Hans Bader to remark, “Innocent people get found guilty of harassment because the school realizes the only way it can avoid liability is to punish everybody in sight.” Even Brett Sokolow, founder of the National Center for Higher Education Risk Management (NCHERM), noticed the hysteria andsaid, “It’s such a fear-based reaction that a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX [4].” Organizations like The Foundation for Individual Rights in Education, Stop Abusive and Violent Environments, The American Association of University Professors, and numerous others, including A Voice for Men and Community of the Wrongly Accused, have all sharply criticized the directive and called for it to be rescinded. They have been met with a wall of silence.
In addition to the great work being done to raise awareness of the directive, I believe we must also work creatively to provide influence that helps protect them right now. It’s important to remember that overwhelmingly, the students are completely unaware of this, until they are wrongly accused of sexual assault, at which point they are blindsided by it.
In the spirit of thinking globally and acting locally, in April of 2012 I met with the Title IX Coordinator Michele Vieira and the Assistant Dean of Students Robert Dotson at A&M-Commerce, where I studied for my bachelor’s and master’s and taught freshman composition and argumentation, but had suddenly dropped out of the master’s program without explanation two and a half years ago. You may listen to the entirety of our interview in my other videos. My goal in the meetings was not to argue or debate, but to ask for clarification on university policy, and ask them to adopt the model used Princeton University. I knew, however, that I did not have the luxury of underestimating the entrenched interests that perpetuate the inequities men and boys face in education, nor would those entrenched interests be overcome by merely asking. And that is exactly why I recorded a few of our conversations.
I will speak briefly of my meeting with Robert Dotson because many of his answers were the same as Michelle’s (and many others were vague responses), and that little else is eventful in our conversation. At the end of our meeting, I asked him to adopt the sexual misconduct model used by Princeton. While he encouraged me to send him an email about it, he ended the conversation by saying, “I don’t know - I’m a preponderance kind of guy. It’s hard to teach an old dog new tricks.”
I may still be naïve in some areas, but I can recognize a “no” when I hear it. I knew immediately that it would be no further use to speak with him on the matter. And regardless, nothing could be achieved without the Title IX Coordinator. Given that this series deals with educational equity for men and boys, it is the meeting with the Title IX Coordinator that most directly concerns us. One of my concerns was clarification over the university’s definition of sexual assault, given that I have heard many definitions advocated which would classify myself as a victim (which I do not believe I was). I have, for example, had sex when I didn’t want, but went along with it to please my partner (to which she answered “no”), after drinking alcohol moderately (“no” again), and after I was asked repeatedly (to which she answered “possibly”).
It bears mention, however, that it doesn’t matter what the university’s definition of rape is if the standard of evidence is so low that it requires no evidence at all. “Really, when you boil it down to it, it’s who can tell the best story,” she said. But should that really be the case, especially when the standard of evidence is little more than a coin toss? It is well known that even innocent persons may embellish or lie in their statements, usually out of fear, uncertainty, or to cover up something else. If administrators happen to catch two out of three embellishments by an innocent student who is wrongly accused but only one out of three made by his accuser, the wrongly accused student has a high chance of being found “guilty” and having his life destroyed.
Another concern was that the figure cited from a Justice Department report by Russlynn Ali that 1 in 5 college women are victims of attempted or completed sexual assault, which Ali is using as a justification for the preponderance standard. While the disclaimer that it is not an official document is stamped on every page of the report, Michelle Vieira agreed with the figure.
If you review the campus crime reports for any university, you will
find that the 1-in-X statistics do not match up. For example, A&M-Commerce is
a university with over ten thousand students. The campus crime statistics report
an average of one sexual assault a
year - if we round up. For the year 2008, there were none.
But somehow we jump from that number to one
thousand. Even factoring in underreporting (a reasonable concern), the
numbers just don’t add up. And even if they did, what does that say about the
administration? Around the time of the interview, A&M-Commerce closed down Binnion Hall because of a water leak. If the administration truly believed
that there is an epidemic of rape which would translate to roughly 3 rapes each
day (and in turn justify the evisceration of due process rights), wouldn’t it
make sense to advocate closing down the campus – or at least the dorms - until
the problem is resolved? Or does the administration truly believe that a water
leak more important?
Why would statistics on sexual assault be so inflated? An article in the Toledo Blade informs us of a history among those who conduct research on the prevalence of sexual assault on campus:
Researchers
say they can just as easily design a study that finds 1 in 4 women have been
raped as 1 in 50. A slight change in the definition of rape or the way
questions are worded can yield drastically different results. Scientists
responsible for the highest numbers are passionate advocates who believe rape
is very common. This troubles even some in the field.
One
scientist is a self-described radical feminist. Another conducted her study
with the backing of Ms. Magazine, for years a leading voice of the women’s
movement. Still another helped open one of the country’s first rape crisis
centers. All told, some critics conclude the rape numbers are inflated. They
charge this has been done to boost support for the cause.
Among
those who believe this: Eugene Kanin, a pioneer researcher in the field who
describes himself as an “ardent feminist.” Back in the 1950s, while a teaching
associate at Indiana University, he was trying to discover how many high school
girls experienced “sexual aggression” on dates. At the time, he says, people
laughed at his work.
Today,
he is a retired sociology professor from Purdue University. He says he is
saddened by the current research. “This is highly convoluted activism rather
than social science research,” he says. Even some scientists who don’t
criticize the high rape numbers say there is pressure to come up with
eye-popping rates. “There was some pressure – at least I felt pressure – to
have rape be as prevalent as possible,” says the University of Washington’s Margaret
Gordon, who, in a study published in 1981, found relatively low sexual assault
rates. “I’m a pretty strong feminist, but one of the things I was fighting was
that the really avid feminists were trying to get me to say that things were
worse than they really are,” she says.
What Ms. Vieira perhaps does not realize is that the definitions of sexual assault to which she earlier responded “no” are often the very definitions used by ideologically-driven researchers in their tabulations of campus sex-assault victims to reach their 1-in-X figures. Dissenting Feminist professor Christina Hoff-Sommers deconstructed the infamous 1-in-4 study by Mary Koss, wherein a quarter of the women classified as victims did not themselves think they had been raped, and 42% of the “victims” went on to have sex with their “attackers” again (see the chapter Rape Research in her book Who Stole Feminism). In the article “The Campus Rape Myth,” Heather McDonald reports that in a similar study, 65% of the “victims” “did not think that their experiences were ‘serious enough to report’” and “generally did not state that their victimization resulted in physical or emotional injuries.”
My next concern was false accusations, which Ms. Vieira answered of her own initiative:
We have
had occasion for someone to accuse someone of sexual harassment or assault and
we find that they were just mad because they got a D in the class. And they go
through a nightmare while we do the investigation. And the sad part is, the
person who did the accusing didn’t even get a slap on the wrist. They just
walked away. We don’t have anything in place in this university to address
false accusations.
And while not the sole reason, this is one of the main reasons I dropped out of the master’s program at A&M-Commerce and abandoned my dream of becoming a professor of English. Why should I spend another 5-7 years trying to finish my masters and get my doctorate, put myself in tens of thousands of dollars of student loan debt, subject myself to the brutal job competition in an age when the supply of teachers is high, the demand low and tenure is being phased out -when academia affords me no protection on the road to get there, and if I do get there, affords me little protection even then?
In her book Heterophobia, dissenting Feminist and former Women’s Studies professor Daphne Patai documents cases where professors were falsely accused of harassment and rape for merely bringing up in their classes the fact that some women falsely accuse men of rape, as well as cases of students who become infatuated with their professors, who come into their offices and find ways to turn their conversations toward personal affairs, and then falsely accuse their professors of harassment or rape when they turn down their advances. It also bears mention that you don’t have to be wrongly convicted of sexual misconduct to have your reputation or career destroyed, or for you to become disillusioned with teaching. Because for far too many people, the guilt is not created by the conviction; it is created by the accusation. And when you have no deterrent for committing false accusations, how are we really protecting people from a hostile learning or hostile working environment?
Now reverse the situation and ask yourself: what would happen if Russlynn Ali came down from the OCR, walked into the offices of several administrators at UT Austin and was told “we don’t have anything at this university to address sexual misconduct, but we’re thinking about it.” What kind of reaction could we reasonably expect? I would imagine she would probably make a public example out of them, and would not have any remorse in doing so.
Now ironically, Ms. Vieira does mention that the university did move to protect a teacher - not an innocent one, but a professor who exhibited harassing behavior that was recorded and uploaded to YouTube. "A student recorded it and put it up there. We've taken it down five times now." I didn’t probe too much into it, but I am curious: what if others had experienced harassing behavior from that professor who would only have come forward if they knew others who had the same experience? If parents knew their child had been in that professor’s class, wouldn’t it be good for them to know so they could ask their child if he or she had experienced something similar? If underreporting is such a problem, and if the professor is truly guilty, why suppress awareness of harassing behavior?
But perhaps the most telling part of our meeting was when I asked her – if she removed from the equation liabilities, rules and regulations - if the policy she was being asked to enforce was morally justified. Instead of answering, she averted her eyes from me and looked down at her desk, and eventually said, "I don't think I can fully state my opinion on that.
While attending a required sexual harassment seminar as an instructor at A&M-Commerce, I was given the litmus test for avoiding behavior that could be construed as harassment: if you have to ask whether a form of conduct is objectionable, you probably should not do it. A similar litmus test can be applied to administrators who employ or enforce low standards of evidence to find students and teachers guilty of sexual assault: if you cannot look in the eye someone who has been a student and instructor at your university for over eight years and tell him what you are doing is justified, you probably should not be doing it.
At the end of our meeting, I asked that the university adopt the
“clear and convincing” standard after the manner of Princeton University. I
drafted my request in writing and emailed it to Ms. Vieira, who told me that
she forwarded it to her boss Dr. Edward Romero, the president of diversity at
A&M-Commerce, and Dr. Joni Baker, the director of diversity for the entire
A&M system. This is what I said:
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| Screenshot 1 of Email 1 |
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| Screenshot 2 of Email 1 |
Ms. Vieira,
I'd like to thank you again for speaking with me last Thursday and Friday. You
dedicated a lot of time to the concerns I had, and I was pleasantly surprised
not only with how willing you were to speak on such a weighty matter, but also
that we could occasionally punctuate the seriousness of the topic with a bit of
humor and pleasant conversation.
You mentioned that I might write an email
addressing my concerns about university policy, which you might then pass along
to certain individuals or committees. I have prepared that letter, which
comprises the bulk of this email. While I'm not sure if it will make any
impression, I am grateful for the opportunity. With that in mind, please
forward this message to whoever you feel is appropriate.
Admittedly, though, I am unsure to whom I should
specifically address the remainder of this email, or what their titles might
be.
Thank you for your help and your time,
[TCM]
Here is the message that Ms. Vieira forwarded (allegedly) to Dr. Romero and Dr.
Joni Baker:
Hello,
My name is [TCM]. As an alumnus and former instructor at A&M-Commerce, I
feel compelled to write the university on a matter that has been weighing on my
heart in regard to the safety of the community at my alma mater. Specifically,
I would like to address the preponderance standard with which judicial affairs
currently determines whether a student or faculty member is found in violation
of university policy on sexual assault. My purpose in writing is to request, in
behalf of the wrongly accused, that A&M-Commerce adopt the clear and
convincing standard of evidence in hearings on sexual assault, specifically.
In trials on sexual assault, criminal courts employ the standard of
"beyond a reasonable doubt," the highest possible standard of proof.
I and many others believe this is unsuited for academic settings, since justice
for sex-assault victims would be extremely unlikely under a standard so high. A
lower standard would be the "clear and convincing" standard, which I
view as a kind of middle ground. The lowest legal standard would be the
preponderance standard, in which the adjudicating individual(s) feels it is
"more likely than not," or that there is 50.1% likelihood, that the
alleged offense occurred. This is the same standard courts use for traffic
fines and parking tickets.
Sexual assault is rightly considered one of the most heinous of crimes in our
jurisprudence, and society rightly responds with vigilance toward its
offenders, and support toward its victims. Given the seriousness of the charge,
false or misidentified accusations of sexual assault are among the most
destructive forms of false reporting. Given the stigma and ostracism that often
afflicts those wrongly accused, and the persistence with which it will follow
them in the internet age, false and mistaken accusations of sexual assault have
the power to destroy their means of educating themselves, making a living,
creating loving and committed relationships, and becoming successful and
productive members of society. In other words, it has the power to ruin not
only individual lives, but fracture communities.
It is unfortunate that, in some cases, we do not have adequate means of knowing
who is innocent. In such cases, with such a low standard of proof and given the
nebulous nature of the crime, especially in the presence of alcohol, it seems
regrettably probable that for universities which apply the preponderance
standard to hearings on sexual assault, it is not a question of if a student or
teacher will be wrongly found in violation (and subsequently punished), but of
when.
Numerous faculty and administrators across the West have expressed concern for
a system that compels them to render judgments in cases when they do not have
enough information to make such weighty decisions. These sentiments can easily
be found by Googling such articles as "An Open Letter to OCR" at Inside
Higher Ed, or "Rights Advocates Spar over Policy on Sexual Assault"
at the Cornell Daily Sun. It is not my intention to create evidence by a list
of quotes and citations, however, but rather to illustrate their concern: that
when the evidence is insufficient, they need breathing room to express their
reservations with confidence, and say "We do not have enough evidence to
move forward in judgment against either party."
Accusers, of course, should have access to support services, regardless of the
outcome of the hearing, as well as the option of pursuing the case through the
legal system with the assistance of the university, and those found guilty of
sexual assault should be promptly removed from the community. I firmly support
these and many other functions that universities assume in this area. It is
only concerning the preponderance standard that I would request change.
Recently I was asked, "What forms of evidence would you say satisfy the
requirement of a clear and convincing standard?" I could define it here,
but it would require a lengthy and detailed examination of such cases. Thus,
out of respect for your time, I will simply summarize by saying it is, so to
speak, "more than a feeling."
Thank you for your time and attention. If you find occasion or desire to
do so, I am gladly willing to speak with you further on this matter.
Respectfully,
[TCM]
After waiting for a while for a reply, which I didn’t receive, I took
the initiative and emailed Dr. Baker, asking to meet and discuss the nature of
my request. This is what I said:
Hi Dr.
Baker,
My name is [TCM]. I am an alumnus and former instructor at A&M-Commerce.
Roughly two months ago I spoke with Michele Vieira, the Title IX and Equal
Opportunity Coordinator at that university, concerning the due process
implications of the April 4th Directive issued by the OCR last year. While we
also discussed the current graduation gap between male and female students,
most of our discussion was concerning the directive. After formally submitting
my concerns to her in writing, she sent me an email on May2, telling me that
she had forwarded them in an email to you. I never received a reply.
I am wondering if you wouldn’t mind meeting at some point in the near future
–particularly on a Thursday or Friday, if possible - to discuss the directive, and
possibly other diversity issues. Given that I currently reside in [withheld]
and the trip would be over three hours, I would make the trip to you at a
location of your convenience.
One of the reasons I would like to speak with you concerning this is that it
was a strong factor in my choice to abandon continuing my masters at
A&M-Commerce, and with that my dream of becoming a professor. Many
students, as well as aspiring and existing male teachers, are concerned that
innocent persons accused of sexual misconduct have been and will continue to be
harmed by low standards of proof and a lack of other checks and balances, and
this concern remains a structural barrier for many men in teaching professions.
I understand that there are many things which demand your time. If there is a way
you can find the time to speak with me, however, I would greatly appreciate it.
For your notes and convenience of reference I have pasted below this message
the email conversation between Michele Vieira and myself.
Thank you for your time and attention,
[TCM]
I didn’t receive a response from that either. Something tells me I would have, though, if I were a representative of the American Association of University Women. So I sent an email to Ms. Vieira, wishing her a pleasant summer and asking to meet one last time. This is what I said:
Hello
Ms. Vieira,
I hope your summer is going well. I was wondering if you wouldn't mind briefly
speaking with me once more before the fall semester begins, just to wrap up a
few things we discussed earlier. Any time this Thursday or Friday or in the
morning next week would work. If you're available, feel free to email me back
and name whatever time is best for you and I will accommodate it. Hope to hear
from you, and that all is well.
Regards,
[TCM]
It was my hope that Ms. Vieira and I could work together to solve the civil rights issues facing the wrongly accused. As an alumnus, I could say things that would be difficult for her to say, and we could use the story of my dropping out, combined with the pressing crisis of educational underachievement among male students, to demonstrate that the time had come to make a change.
Now at this point, Ms. Vieira has a choice. She knows that the university’s process of adjudicating accusations of sexual assault is flawed, to say the least. She knows I am being courteous, I’m not being argumentative, and that I’m willing to build bridges and quite possibly work with her on addressing a longstanding problem. She has an opportunity that does not come her way every day. And if she takes that opportunity, it will be a difficult road, but it may also preclude future difficulties that may be equally or more undesirable.
Unfortunately, that is not what she does. I never received a reply from either Joni Baker or Ms. Vieira. Now remember that I don’t know for a fact that Ms. Vieira forwarded my email to the other administrators. I’m assuming so, although it is possible that this assumption is too generous – I don’t know. If you listen to the interview, you’ll hear that it wasn’t hard for me to talk with Ms. Vieira. Her demeanor was kind, and we exchanged many laughs despite the seriousness of the topic. But if all we get out of it is pleasant conversation, how much have we really accomplished? What has changed? Nothing has changed. And if I leave it at that and do nothing further, have I really done the best I can do?
Those who have viewed the rest of the blog posts and videos in this series have seen that academia has had numerous chances to reflect upon the standing of male students as a group, to learn from some high-profile events about how they have been treated, and use them as opportunities to make positive change. Overwhelmingly, academia has declined to embrace those opportunities. Since that is what this entire series is about, I encourage the uninitiated to watch the rest of it. We have learned through painful experience that if we have to wait for it to become politically convenient for education administrators to break ranks and take a public stand for the civil rights of men and boys, it will never happen. We no longer have time to wait on them, nor reason to assume that things will work themselves out on their own. That is the rationale for what is going on here.
Now that this interview and article have been published online, wrongly accused and potentially wrongly convicted students will be able to easily find information about what goes on behind the scenes. They will easily be able to hear the Title IX Coordinator’s silence, her reservation, and finally her inability to bring herself to answer me in the affirmative when I asked her “is this policy justified?” Prospective and current teachers can hear that A&M-Commerce has nothing in place to protect them from false accusations. And parents and students can hear that the administration has a history of suppressing awareness of professors harassing students. And now that it is out in the open, there’s no telling where this could go.
Although some have made comments to the contrary, I don’t think Michele Vieira is an ideological extremist. I think she is a much more moderate person. She expressed reservations about the problems in the policy, she expressed some empathy toward the wrongly accused, but wasn’t willing to break ranks and take the steps necessary to remedy it. In that sense, she is much more comparable to professor Susan Thorne at Duke University, which we covered in the video dedicated to Duke.
MLK, Jr. |
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