October 28, 2020

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Below is a transcript of episode 9. We encourage you to listen to the episode. It was written to be heard, not to be read. 

Fox 47 News: Michigan State University has confirmed three more internal Title IX investigations.

ESPN Florida state reporter Jared Shanker: Tallahassee Police intend to pursue their domestic assault investigation of Florida state running back.

Sara Ganim narration: In this episode… 

KCBD News Channel 11: Texas Tech University faculty member sexually harassed a student on a university trip.

WSLS 10: The University of Virginia is the subject of a new federal investigation.

Fox 47 News: The Title IX investigation into an alleged sexual assault.

KSBW Action News 8: All four rapes reported in the last three months have been referred to the Title IX office.

WSLS 10: Under the Title IX of the civil rights act.

Sara Ganim narration: We explore the underbellies of the offices that are supposed to deliver justice in the most sensitive of misconduct cases — those where there are allegations of sexual misconduct. 

Liz Abdnour: You’re really in a very raw, emotional state. And they’ll like hand you like a 50-page single spaced 10-point font policy and be like, “Sign this form saying you understand this.” 

Sara Ganim: So, it’s possible that a school really does not know how many Title IX cases they’ve handled in the last three years?

Bob Davis: That number, right, is not, is not readily available.

Liz Abdnour: That is possible. Yeah.

Ron Smith: All these people are attorneys, and they like to split hairs about whether it’s actually legally defined.

Liz Abdnour: You know, the, what we were advised was to not even print it out and put it in the file.

Sara Ganim: Which is essentially an avoidance of the law?

Liz Abdnour: I mean, yeah.

Brett Sokolow: So the problem, in my view, is that Title IX is not insulated from the political process, it’s in fact a political footfall.

Sara Ganim narration: From the University of Florida’s Brechner Center for Freedom of Information, I’m Sara Ganim, and you’re listening to an episode of Why Don’t We Know the podcast that dives deep into data and comes out with real stories. 

A big part of the reason “we don’t know” what happens inside schools and universities when it comes to sexual assault and harassment cases is a real and valid concern for the privacy of victims.

More than any other crime, victims of sexual assault are given extra protections not just in the educational system, but by the courts, and by the media and general public, who understand that this is an extremely personal crime that warrants privacy. 

But at the university level, privacy is often used as a weapon against the people it’s supposed to protect.

It often causes victims themselves to be kept from information about their own cases. It causes repeat offenders to escape the scrutiny of the press and it allows institutions to cover their tracks to hide how they are handling these cases, if they are handling them at all.

SGW News: The University of Portland is now opening an investigation.

Wave 3 News: The University of Kentucky is under fire, accused of failing to properly investigate reports of sexual assault. 

UATV Special Report: It is investigating how the university handled three Title IX related cases.

Sara Ganim narration: I wish I could start this episode by telling you exactly how the process works when a student reports sexual misconduct to his or her university.

But I can’t really do that. And the reason why is because it’s different everywhere. There is no one set flow chart, no list of rules for how universities are supposed to handle these cases.

And so trying to navigate the school disciplinary process, that has gotten a lot of attention in the last several years — negative attention. Students on both sides complain about unfair and inconsistent practices. About ten years ago, during the Obama Administration, things were so bad for survivors in particular, that the Department of Education wrote a public meme commonly referred to as the “Dear Colleague letter” because that’s how it was addressed. It started with the words “Dear Colleague.”

It put schools on notice telling them that any sexual assault reported to the university could potentially become a what’s called a Title IX investigation. Title IX is a federal law enacted in 1972 prohibiting sex discrimination in education.

I want to be clear about something: Sexual assault itself is not a Title IX violation. The potential for a Title IX violation happens when an allegation of sexual assault is not taken seriously by the university where it’s reported. If it’s not taken seriously, that is where the sex discrimination comes in. Up until this point, in the late 2000s, Title IX wasn’t commonly associated with sexual assault. So when Obama’s Department of Education warned that failing to investigate sexual assaults could be a Title IX violation, what universities heard was “this could cost us money.” But not every college had a Title IX coordinator, trained and ready to act on all this new guidance.

Brett Sokolow: If you were a college administrator at the time, I think you felt a little bit punch drunk.

Sara Ganim narration: That’s Brett Sokolow, an Attorney and University Consultant in Title IX cases speaking to the American Bar Association about this. 

Brett Sokolow: That was a capacity, a skill set, even a profession that needed to be built within the field, but who is going to carry out all of these instructions? Those administrators who didn’t exist in 2011. 

Sara Ganim narration: The result was a huge bottleneck in the system and not just because universities were unprepared, but because people started talking about the problem a lot more.

Huffpost: We see clearly what appears to be a pattern.

NBC News: Overall we’re looking for a culture shift.

Sara Ganim narration: Victims were reporting at much higher rates and telling their stories publicly, to reporters. 

KUTV: I was raped in my ninth and final semester at the University of Utah. 

NBC News: I went to a couple of fraternity parties where I was groped from behind.

CNN: They said, we don’t need your consent, this is happening.

Margaux (Center for Public Integrity): It was bad enough that I felt defeated and powerless in other ways.

NBC News 30: The next thing I know, I’m upstairs and locked

Sara Ganim narration: Advocates became more vocal, too, demanding information in a way that wasn’t happening before. And then… 

CNN: The accused students have rights.

Sara Ganim narration: Those who were accused started to raise their voices too, questioning the constitutionality of this whole college tribunal system.

CNN: I tried to object a few times. I wasn’t allowed to do that.

CNN: Justice may not be their first priority.

Sara Ganim narration: Niche law firms began to emerge, focused solely on reputation restoration for college students accused of misconduct. 

Teen Vogue: I convinced myself this wasn’t happening, I was helpless.

Brett Sokolow: Well, ultimately, I think it was an enormously paradigm-shifting set of instructions.

Sara Ganim narration: I called Brett Sokolow to talk about this more, but, since this is a podcast, audio quality is important, I want to warn you beforehand it’s kind of hard to hear everything he says, and so there are times when I’ll repeat it back for clarity. Sokolow explained in more detail the origins of the letter, and how big of an impact this “Dear Colleague” had, along with guidance that followed it three years later.

Brett Sokolow: I think there were a couple of prime movers in Vice President Biden’s office who determined that they wanted the Department of Education to make some moves toward using Title IX to better solidify victim protection. 

Sara Ganim narration: He told me it was then-Vice-President Biden’s office that pushed for the dear colleague letter to be written. 

Brett Sokolow: The letter in 2011 followed by the Q&A in 2014, really changed the fundamental direction that colleges and universities were taking on approaches to sexual violence. I think prior to that time, they were light on sanctions, they were reticent to impose on suspensions, they were doubtful or skeptical, and not very trauma-informed in their approaches with respect to survivor support. 

Sara Ganim narration: He says they were not very trauma -informed in their approach with respect to survivor support.

Brett Sokolow: The result was a complete reversal. They started issuing interim suspensions on very thin evidence. And so I think that what higher ed interpreted out of the letter, and I’m not so sure the letter said this, but what I interpreted out of the letter, was a theme of, you’ve neglected the women or you’ve neglected the complainant, and now you need to fix that. But the higher ed’s response to that was an overcorrection to the point where respondents then were being found in violation for things that really weren’t offenses, or the schools were calling offenses that really they shouldn’t. And so, it’s been a process now for 10 years, at least, that we have this pendulum swinging politically.

Sara Ganim narration: Politics. This went from an issue on college campuses to a Washington talking point and we all know what happens when that happens.

Brett Sokolow: And so the Obama administration, they swung the pendulum. It went further than it should have, and now you have the Trump administration coming in and swinging it back and swinging it in an over-correcting way again. So the problem, in my view, is that Title IX is not insulated from the political process, it’s in fact a political footfall. And we wind up with a moving target every four or eight years of their regime change in Washington, rather than having a governing law that sticks to enduring principles that are immune to the political process. 

Sara Ganim narration: To this day, victim-advocate organizations will fervently say that the system is designed in favor of the accused and organizations focused on rights of the accused will say the system is rigged to deprive them of their freedom. Both sides are really unhappy. Anecdotally, you can find stories to illustrate both points of view. I have. I have reported on times where victims have very clearly been mistreated and times when universities have very clearly violated the due process rights of the accused. But anecdotes aren’t really what we are after in this podcast.

We are after data, real, comprehensive data. In this case, that means outcomes. Are there repeat offenders who remain on campus?  And how often does that happen? What are the punishments that are being given to people who are found responsible? Knowing that, would help the public hold universities to account. That’s what we set out to get for this episode. 

We asked about 50 of the largest public universities in the country for information about the number of Title IX cases and the outcomes of those cases. We asked everyone the same thing, yet, we got wildly different responses. 

If you’ve been listening to prior episodes of this podcast, I’m sure you’re not surprised to hear me say this. It was the case for a lot of the topics we’ve covered.  

The data was so inconsistent that it was impossible to make any comparisons or to see trends or to really evaluate how universities are handling the responsibility of adjudicating these sensitive cases. There’s no usable information when you end up with 40 different kinds of data. The variations were so great that in one bizarre example, two schools that are part of the same University of California state system gave us different degrees of information. 

A few schools, about a dozen of them, redacted names of those accused, but gave us a general idea of the accusation made — if it was sexual harassment, or sexual assault, stalking or something else. Then for that same case, they told us the year, and the punishment, if there was one. That’s what we were looking for. 

Many other schools sent us the link to a glossy annual report, with colorful pie charts and bar graphs. These reports reminded me of corporate sales reports, expensive looking documents with data that is already manipulated to show — or to not show — what the school wants you to see. They included bits of information, like 14 percent of cases resulted in sanctions, or 80 percent of reports were against someone not affiliated with the university. Simply relying on that information, it is nearly impossible to see when cases are being mishandled. 

Those reports most definitely will not answer questions like these: are there professors who are repeatedly being accused of harassment, but also repeatedly allowed to keep their positions? Or, are student athletes routinely given more lenient punishments than non-athletes? Or, are there any fraternity houses where multiple complaints have been made within a certain time period?

So many of these public universities gave us very little to work with. The University of Oklahoma, for example, for the year 2019 said they had four cases with findings and four cases without findings. That’s it. That’s all we got. And still that is better than the schools that told us something kind of unbelievable.

Bob Davis: This is Bob.

Sara Ganim: Hey Bob. My name is Sara Ganim. I’m a reporter with the Brechner Center at the University of Florida.

Sara Ganim narration: There were several schools that sent us a particularly puzzling response. They claimed they couldn’t provide any data at all because they say they don’t compile it. This is, on a smaller scale,  a similar problem that we found in episode one when we asked for head injury numbers in NCAA sports, but for some reason, I found it to be even more unbelievable in this episode. I think probably because these cases have the potential to be so high profile. There’s a lot of public scrutiny and journalist inquiry on this topic. It’s really hard for me to believe that a university just would not know how many Title IX cases they are handling. So, I called them. 

Sara Ganim: And so, I wanted to clarify something with you. So, when we asked for documents reflecting the number of cases, specifically sexual assault or sexual harassment cases, that number does not exist?

Bob Davis: That number, right, is not readily available. I mean, it exists in theory because we have the case files. We just have to calculate it. So I don’t believe that sexual assault and sexual harassment is something that’s automatically tracked by the Title IX Office.

Sara Ganim narration: That’s the open records coordinator at the University of Texas-Austin. His job is to take requests from people like me, and go to the relevant department and find out if there are documents that should be shared. 

Sara Ganim: I guess where I’m sort of just hung up on this is I would assume that that was something that every Title IX Director would want to know how many cases they have so I just figured that was a very easy request, very broad.

Bob Davis: You’re not asking for the number of cases you’re asking for the number of sexual assault or sexual harassment cases, which is a subset of the total number of cases. So if you are asking just for the total number of Title IX cases, I think we could answer that.

Sara Ganim: No, we are specifically asking for this category of offenses, yeah.

Bob Davis: Right. And I think that’s where it’s kind of catching us a little bit.

Sara Ganim: Okay. So, for example

Bob Davis: I’m looking for Title IX, seeing if I can find the reports that are released. Certainly, this sort of thing will be tracked better going forward starting on January 1st. So the other issue is that you’re asking about prior years, which we haven’t been keeping that sort of data historically, but there was a new bill passed that requires us to keep track of this sort of thing. So going forward there will be a significant larger amount of information that’s tracked.

Sara Ganim: Starting in January of 2021?

Bob Davis: 2020. 

Sara Ganim: Okay. So starting this year you’re going to start to keep track of how many of these cases you have come through the office every year?

Bob Davis: Yes, I believe so. 

Sara Ganim: So just to make sure I’m not misunderstanding anything, if the Title IX Office Director wanted to know, are sexual assault allegations going up, going down, have we had more allegations against faculty or a certain department is seeing a lot, from a trends perspective, it’s pretty impossible to track that at this point?

Bob Davis: Certainly not, it would not be impossible. It would just be, it would potentially take a lot of time to pull those numbers together. So, the issue isn’t that the data does not exist at all, it’s just that it doesn’t well, it is that the data doesn’t exist, but it’s not like the case files from which the data would be produced don’t exist. So, if we wanted to, we could go back and review all the case files and figure out how many sexual harassment complaints were filed in 2017, 2018, 2019, you know what I mean? 

Sara Ganim narration: To do this, the university estimates it would cost us, the requestor, about $4,000. We decided not to pay for it. 

Ron Smith: All these people are attorneys, and they like to split hairs about whether it’s actually legally defined or anyway.

Sara Ganim narration: That’s Ron Smith. He’s the records officer at Weber State University, where they gave us a similar response. 

Sara Ganim: I totally understand. That’s why I thought I would pick up the phone and call you and ask. Because it doesn’t seem reasonable to me that the Title IX Director would not know how many cases they handle.

Ron Smith: I can approach them again and do a followup.

Sara Ganim: Thank you. I appreciate that.

Sarah Ganim narration: Ron Smith sent me an email follow up a few minutes later. It included a chart with some pretty detailed information about reports and sanctions from years 2012-2015. But since 2015, he wrote that “WSU has not compiled similar information,” and then he wrote “I am informed that this will be done in the future, but do not have a timeline for when that will be completed.”

Other schools who initially claimed they didn’t have this data, later replied to our email inquiries by saying things like: it’s not that we “do not know the number,” it’s that we “do not have existing records that have that information.” That was the response from the University of Missouri.

San Jose State said something similar — they have a document, but it does not accurately represent all Title IX cases. The University of Maryland simply replied that we weren’t accurately characterizing their response but still provided no number. All of the schools we requested information from, only one — Cal State Sacramento — actually gave us the names of the faculty or staff who were accused, what they were accused of, and what the punishment was. One school, from 50 requests. It made me think, this really should be simpler. 

Wouldn’t it be nice if when your kid was applying to universities, if you could compare safety the same way you can when you’re say, buying them a car? Let’s just dream for a second. There would be a website, you could put in your top five or even ten choice schools in and compare, side by side, statistics like: number of faculty disciplined for harassment, number of students accused of sexual assault and how many of those were actually punished. It’s nice to dream. I typed into google, “compare the safety of universities,” and a bunch of results came up, like “list of the safest schools in America,” stuff like that. But those lists are based on something called Clery data. 

The Clery Act of 1990 forces universities to provide an annual report of crimes on campus. But clery reports show just a small subset of sexual misconduct cases. It often only counts offenses that happen on campus. That means the Clery often does not count cases that happen at off-campus housing, or meeting locations, like for example, an off-campus fraternity. So those lists are pretty useless.

All clery really tells us in this case is what is possible. It shows that it is realistic to ask that there be some sort of nationwide, consistent, reporting method for Title IX cases and their outcomes. The government is totally equipped to do it, it just doesn’t do it. And one of the results of that is the lack of consistency that leads back to the original problem that there is no one set process for how universities handle these kinds of cases. Universities are given guidance, which changes from administration to administration, and told to basically figure it out. So a victim could have a completely different experience depending on the school they report to. 

In the absence of a set standard, private companies have stepped in to offer training on best practices. The largest of these organizations is called Atixa. It stands for the association of Title IX administrators and it’s run by this guy. 

Brett Sokolow: Well, I think there’s a three pronged approach.

Sara Ganim narration: Attorney Brett Sokolow, who you heard from at the beginning of this conversation. For approximately $1,600 bucks per person, a university can send Title IX administrators to his training where he’s established different modules for writing reports, doing interviews, conducting hearings and how to implement all of that on campus. 

Sara Ganim: You’ve created the closest thing possibly that comes to universal training, just based on the sheer number of people that attend your conferences. Is that what you’re going for here is to try to create more uniformity and get everyone onto the same page?

Brett Sokolow: Well, I think our official party line is that we would encourage uniformity where it’s beneficial and encourage individualization where it makes sense. So what I think I would definitely reject is this perception that so many schools have, that they really need to do things their own way because their culture is so uniquely different from the college down the street. And so, yes, I think in some ways we have moved toward a greater level of homogenization, but I also will acknowledge at the same time that that approach is easily then misunderstood, because people will say, well, Atixa believes this, or Atixa believes that, whereas,  we’re actually giving a much more nuanced message.

Sara Ganim narration: I asked Brett, Why are so many universities so reluctant to tell the public how they doll out punishments in these cases?

Brett Sokolow: Well, I don’t know whether there’s just an institutional tendency toward keeping these things contained or whether they’re actively acting out of a benevolent belief that the more transparent they are, the less likely people experiencing sexual violence are to come forward, because they fear their privacy will be jeopardized by whatever is released. So, I’m not sure what the motivation is, but I think if it’s the latter, that’s genuine. 

Sara Ganim: You mean it dissuades victims, is that what you’re saying?

Brett Sokolow: Yeah, exactly.

Sara Ganim narration: Let’s take that hypothesis and experiment with it a little bit, starting inside a Title IX office. 

Liz Abdour: Okay. So my name is Liz Abdour.

Sara Ganim: It’s pretty hard to get an honest look inside a Title IX office at a university. There aren’t many people willing to talk candidly about what goes on during the investigation of these cases. 

Liz Abdour: I grew up in Michigan, went to Michigan State for undergrad. 

Sara Ganim narration: But after our reporting left us with the impression that things are pretty disorganized and chaotic, I wanted to try to get an insider view. And, there is one woman, Liz Abdnour, in East Lansing, Michigan, who is in a pretty unique position to shed some light. 

Liz Abdour: Didn’t really know what I wanted to do back then. Um, just knew I had this vague idea that I wanted to help people. So I ended up deciding to go to law school. 

Sara Ganim narration: Liz Abdnour is an attorney who represents victims of sexual assault on campuses. She most recently sued the NCAA on behalf of seven women who alleged they were assaulted by athletes at three different universities.

But what makes her stand out is that she actually worked inside a Title IX office for several years. I talked to Liz one morning in New York, where she happened to be taking a short vacation to visit some old law school friends. This was pre-COVID, when we could still meet in a studio and have an in-person conversation.

Liz Abdour: In late 2014, um, there was a lot of local news about problems that my alma mater, Michigan State, was having with Title IX back in 2014. I was like, “I can get in there and I can help and I can make a difference.” So, I ended up applying for and accepting a position there, worked there for about three years and

Sara Ganim: Well, let me stop you for a second.

Liz Abdour: Yeah. 

Sara Ganim: So for our listeners who now probably associate Michigan State very, um, you know, closely with the Larry Nassar scandal. This is actually

Liz Abdour: Mm-hmm (affirmative).

Sara Ganim: Pre-way pre, pre Larry Nassar.

Liz Abdour: Right.

Sara Ganim narration: To give you a little more context, this was around the time that protests were taking place nationwide, not just at Michigan State, because people were upset about how long university investigations were taking. At MSU, Liz told me sometimes cases lasted 200 to 300 days. 

Liz Abdour: During the time that I was there, we were able to quite significantly improve the timeline and the process. We got it down to an average of 80 days for an investigation.

Sara Ganim: Wow. 

Liz Abdour: Um.

Sara Ganim: That’s a huge difference.

Liz Abdour: Yeah. Yeah. It was great. And then, um, then the Larry Nassar matter had broken.

Sara Ganim narration: When this story breaks, Liz tells me the floodgates opened, and reports began overwhelming the Title IX office at Michigan State.

Liz Abdour: I think that was in August of 2016 when IndieStar first reported about it and our office started to get a significant increase in reports of sexual assault, sexual harassment, sex discrimination because what was happening was people were reading that story in the news and, and saying I want to talk about something that happened to me at Michigan State maybe six months ago, maybe 10 years ago. And so there was this uptick

Sara Ganim: Flood.

Liz Abdour: In reporting. Yeah. Exactly.

Sara Ganim: Yeah. So when you took this job, I imagine you were feeling this as a noble job to take, right? This is something you can go in there and you can make a difference.

Liz Abdour: I thought so. Yeah. Yeah. That was definitely, um, my goal. Yeah. Um.

Sara Ganim: And you’re aren’t, you’re not exactly advocating for victims, but if the job is done correctly, justice is served. Right?

Liz Abdour: Yeah. Justice is served or at, at a minimum, uh, people get a fair process. And so even if they don’t feel justice is served, they can move on. You know, I mean that, for me, is one of the things I always think about, uh, with that work is that it’s not always about what the specific outcome is of that process, but just feeling like you went through a process that was more or less fair so even if you don’t get the outcome you wanted, you can move on. And having that done in a reasonable amount of time

Sara Ganim: Right.

Liz Abdour: Is really important because sitting there going through that process is extremely emotionally difficult and really takes a toll on people. And so, you know, even if the outcome isn’t in your favor, whichever side you happen to be on. Once it’s completed, you can feel like you got a fair shake and, and you can heal.

Sara Ganim narration: This is exactly why outcomes are so important. It gives the public insight into whether the process was fair. We can’t look at the process because of privacy concerns, and we get that. But there has to be a way to hold the university accountable  to make sure they are handling things properly. Unidentifiable outcomes is the best way of doing that.

Liz Abdnour told me her experience inside a Title IX office, didn’t live up to her expectations.

In early 2018, in the aftermath of the Nassar scandal at Michigan State, she decided to leave, frustrated with the way that the university was restructuring and handling cases. 

Liz Abdour: It was really a very chaotic time.

Sara Ganim: So you leave and what did you decide to do?

Liz Abdour: Well, so what I did is I ended up starting my own law firm, where I now represent, partially represent individuals who are going through the Title IX and civil rights investigation process at schools. 

Sara Ganim: I have to say, I don’t think I’ve ever spoken to anyone who has been in both of those roles.

Liz Abdour: I’m the only person that I know of (laughing)

Sara Ganim: That does

Liz Abdour: Yeah.

Sara Ganim: That has the experience kind of on the inside, right? But now is using that to advocate for their clients.

Liz Abdour: Right.

Sara Ganim narration: Liz is in a really great position to explain some things that have been really puzzling us as we get data back. Actually, what I should say is as we don’t get data back. For example, I told Liz about the schools where they claim not to track this data. How could this possibly be true? I asked her. 

Sara Ganim: That just to me like is basic.

Liz Abdour: Yeah. And you know, I agree, and especially coming from my background as an attorney, I’ve always worked in offices that had very detailed case management systems. But my experience in higher-ed was that, that type of data collection and data management is much more hit or miss.

Sara Ganim: So it’s possible that a school really does not know how many Title IX cases they’ve handled in the last three years.

Liz Abdour: That is possible. Yeah.

Sara Ganim: Was it, was that the case at MSU?

Liz Abdour: I think they knew, but whether that’s something that they had on paper, you know, that they could produce if requested is a different question.

Sara Ganim: Right.

Liz Abdour: So 

Sara Ganim: Because the law says, and this is for our listeners who don’t know this, the law says that if someone asks through a Freedom of Information Act request or through a Public Records request for a document or for information, it has to exist in a document already. The school does not have to create the document-

Liz Abdour: That’s right.

Sara Ganim: For you. And that’s something we ran into. Like schools would say, “Well, we can give you this info for $4,000.

Liz Abdour: Right.

Sara Ganim: Which is crazy, right? No one’s going to pay $4,000 for a report about how many cases you handled last year.

Liz Abdour: Right. Right.

Sara Ganim: UT Austin was one example that sticks out in my mind ’cause they really did ask for more than $4,000

Liz Abdour: Wow.

Sara Ganim: In order to provide us with that information.

Liz Abdour: Yeah. It’s, it’s weird. Um, uh, you know, it certainly doesn’t seem like best practices to me at all, but there’s also, you know, sort of the question of do schools really want to know that? Because I think on some level maybe they don’t want to know how much of a problem with, you know, sex discrimination they really have.

Sara Ganim narration: On some level, maybe they don’t want to know. In a subsequent conversation, Liz told me that not all schools have the money to adequately train Title IX staff. 

Liz Abdour: I also am not sure that all institutions have that much interest in improving their skills to the best they can be because it is expensive. It is something that is going to take them some time to do. And with the volume of cases that they have, they may be more interested in spending their time and resources on trying to get through cases rather than doing their absolute best. It’s sort of a quality versus quantity type question I think at some institutions.

Sara Ganim narration: It’s rational to think that officials who run institutions of higher education, charged with protecting and educating young people would have this kind of thing high on their priority list. Wouldn’t you want to know if you are dealing with more or less sexual misconduct than other similarly sized schools? Or how your outcomes or investigation times differ from other universities? Liz told me that universities do have case management systems that can be tailored to spit out data as requested. Whether or not they share that data is a different story.

Sara Ganim: Let’s just kind of give a lay of the land of what that, what these case management systems are, your, um, your experience with them. Like do you believe that most schools have them?

Liz Abdour:  So, uh, from at least the time that I was doing the work regularly there were two main, um, systems for case management that, um, schools used. I don’t know that the majority of schools used them. Um, I think probably a good number of large institutions used them. I think probably smaller, you know, private institutions, it would be less likely that they might be using them, just because they have a lot fewer cases. And it might actually be reasonable to keep track of-

Sara Ganim: By hand.

Liz Abdour: Yeah. Exactly.

Sara Ganim: So to speak.

Liz Abdour:  Yeah. Um, but the two systems are called Advocate and Maxient. But essentially what they do is, it’s very much like a legal case management system where you’ve got every individual case, who the parties are, who the investigator is, what date it was opened, what the allegations are, um, and their, and you can set it up to track different things.

Sara Ganim: So, a lot of times we hear from inside, you know, from, whispers from inside institutions that they don’t create a lot of documents because they don’t want them to be able to be subject to open records laws. Is it possible that they have these numbers in the system, but they’re not creating a document?

Liz Abdour: I, I think that’s very possible. And it’s funny, um, actually that you asked me this ’cause I’ve actually talked with several journalists in Michigan who have been trying to get this same information and I’ve given them different specific things to ask for. So, you know, any advocate reports generated from, you know, March 1 to March 31st of, you know, 2019 or something like that. And repeatedly they’ve told me that, that, that they, they are told by the university that they don’t exist. So, um, I think it is possible that maybe they’re no longer generating those reports.

Sara Ganim: So unless they’re not creating these reports, which is the whole point of having the system, right?

Liz Abdour: Yeah. Right. Yeah.

Sara Ganim: And then are they telling the truth when they say they don’t have them?

Liz Abdour: I don’t know. I do know from responding to FOIA requests that they can get very much into the semantics of what the FOIA request is. Potentially to try to avoid responding, which is why I’ve tried to, you know, give some advice to some of these journalists about, you know, they might, they might have sent a request that says, you know, “Give me a report of all of the incidents, you know, for the last three years,” or something. And they might be like, “Oh. We don’t have a report of incidents.” Like they would think to themselves. “Well, we have a report of cases.” Or something like that, you know?

.

Sara Ganim: I mean that seems really like a, that seems like you’re avoiding the law. Right?

Liz Abdour: I feel like that too.

Sara Ganim narration: In fact, Liz told me that there were conversations in the office when she worked there about keeping certain kinds of information out of case files, for the specific reason — that one day they might be made public through an open records request. 

Liz Abnour: Now, they could still redact it. That’s what’s, looking back that’s what’s strange to me about it.

Sara Ganim: The law has a provision for that right?

Liz Abdour: Exactly.

Sara Ganim: The law says you can redact personal information or information that is exempt from opens records laws.

Liz Abdour: Right. So like attorney-client privileged advice. So, if, if I as an investigator received some advice from general counsel’s office, that could certainly be redacted. Um, you know, the, what we were advised was to not even print it out and put it in the file.

Sara Ganim: Which is essentially an avoidance of the law?

Liz Abdour: I mean, yeah. You know, I mean, it’s, it’s, I don’t know. It’s, yeah.

Sara Ganim: Yeah.

Liz Abdour: (laughing)

Sara Ganim: Just for the record, Michigan State has not yet responded to our request. So I don’t know if they’re going to give us this information or if they’re going to outright deny us. Hopefully by the time this podcast airs, we will have our response from them.

Sara Ganim narration: We did eventually hear back from Michigan State. They gave us one of those glossy magazine-style reports with a lot of manipulated data … but no outcomes. Nothing that shows how cases were resolved, and what punishments were given.

Of course, this isn’t really just about Michigan State. It’s about understanding why some universities don’t count these cases or disclose the outcomes of cases. And so, to help us get a little closer to finding an answer we’re going to take a look at some recent court cases. That’s after the break. 

This is Why Don’t We Know. 

BREAK: Get updates and read more about our reporting by visiting our website, whydontweknow.org.

We’re posting new stuff all the time to help people like you better understand, Why Don’t We Know.

Earlier…

Bob Davis: That number, right, is not readily available.

Sara Ganim narration: I told you about a phone conversation I had with the records officer at UT-Austin.

Bob Davis: I mean, it exists in theory because we have the case files. We just have to calculate it.

Sara Ganim: I guess where I’m sort of just hung up on this is I would assume that that was something that every Title IX Director would want to know…

Bob Davis: This sort of thing will be tracked better going forward 

Sara Ganim narration: And he told me this kind of information will start being tracked by state mandate. 

Bob Davis: We haven’t been keeping that sort of data historically, but there was a new bill passed that requires us to keep track of this sort of thing…

Sara Ganim narration: That new bill that passed was a response to a cultural problem – the fact that Texas administrators were not doing their job of recording when people alleged harassment or rape. So basically, when I asked the question earlier … Why wouldn’t a university keep track? and Liz Abdnour said .. 

Liz Abdour: I think on some level maybe they don’t want to know how much of a problem with, you know, sex discrimination they really have.

Sara Ganim narration: Seems like she was onto something. So going back to that hypothesis ..that university Title IX offices are not sharing outcomes because they want to protect victims. That theory was right at the heart of a few major court cases .. cases that have been see-sawing back and forth through the judicial system for the last several years. One case is in Texas, at the University of Texas-Austin, which we’ve been talking about. The others are in North Carolina, at UNC-Chapel Hill, and the University of Kentucky. All of them are about outcomes. Why Don’t We Know reporter Marianna Faiello is following these cases for us, and has the breakdown:

Marianna Faiello narration: All of these cases originated with reporters filing basic open records requests. They were asking for the punishments handed down in sexual assault and harassment cases. But it’s important to note that they weren’t looking for the names of the people who were involved in these cases. They simply want to know the outcomes and how the schools handled them.

Sara Ganim narration: Can you give us an example of what you mean by that?

Marianna Faiello narration: Well, for example, when I was working on the open records requests for this episode, I noticed that several times the punishment for a student who was found responsible for a sexual assault was to write an essay about how sorry they were and that was it. So, it’s that kind of detail that reporters were looking for. They want to see if universities are taking these allegations seriously. And the best way of doing that, while maintaining the privacy of students involved is by looking at punishments. Additionally, in Kentucky, the case was about the outcomes of investigations that involved faculty and staff. Reporters there wanted to be able to see trends like: is a certain professor getting repeated warnings for harassing students? Are there staff members who were simply transferred, or even worse, allowed to remain in their jobs?

 

Sara Ganim narration: So, if the reporters were not asking for names, but just outcomes, how are the universities fighting the disclosure? That seems like it should be public information. 

Marianna Faiello narration: It is public information and ultimately, so far the courts have all ruled in favor of the journalists. But the universities continue to fight these cases by arguing that sharing outcomes are a violation of student privacy under federal law. 

Sara Ganim narration: That federal law is called the Family Education Rights and Privacy Act. It’s mostly known as FERPA.

Cornell Student, Laura Dunn, Ameila Vance, Lee and Clark: FERPA.

Laura Dunn: In my experience and in many cases schools use FERPA as a shield.

Ameila Vance: You shouldn’t be able to say it’s FERPA protected and therefore journalists can’t get it. But it’s FERPA protected and the parent also can’t get it.

Cornell Student: I was initially informed that they could not provide me with my FERPA record. 

Brett Solokow: Then they keep citing FERPA.

Sara Ganim narration: That’s coming up…

James Buckley: That is outrageous that they should be denied that information.

Sara Ganim narration: On Why Don’t We Know.

THIS EPISODE WAS WRITTEN AND PRODUCED BY ME, SARA GANIM.

THE ASSOCIATE PRODUCER IS TORI WHIDDEN.

IN ADDITION, MARIANNA FAIELLO, TORI WHIDDEN, RACHAEL SCHIRMER AND CHASTITY MAYNARD FILED PUBLIC RECORDS REQUESTS FOR THIS EPISODE. 

THIS EPISODE WAS EDITED BY AMY FU.

MUSIC FOR THIS EPISODE WAS COMPOSED BY DANIEL TOWNSEND.

AUDIO MIXING WAS DONE BY JAMES SULLIVAN.

THE EXECUTIVE PRODUCER IS FRANK LOMONTE.

WHY DON’T WE KNOW IS A PRODUCTION OF THE BRECHNER CENTER FOR FREEDOM OF INFORMATION AT THE UNIVERSITY OF FLORIDA.

A SPECIAL THANKS TO THE HEARST FAMILY FOUNDATION FOR PROVING THE GRANT MONEY THAT SUPPORTED THIS REPORTING.

FOR MORE INFORMATION, PLEASE VISIT OUR WEBSITE AT WWW.WHYDONTWEKNOW.ORG