Understanding La Sierra University's Messy Title IX Implementation

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May 19, 2016

On Thursday evening, May 5, La Sierra University students, alumni, faculty, staff and trustees filled the Troesch Conference Center for a town hall meeting between university leaders and students. As the 5:00 pm scheduled start time came and went, the auditorium in La Sierra’s Zapara School of Business buzzed with scores of hushed conversations about sexual assault and campus protests.

At 5:15 pm, campus chaplain and town hall moderator Sam Leonor, flanked by university President Randal Wisbey, addressed the audience.

“If you’re not a student, a faculty member, a staff member or alum, or a board member, our cafeteria is open right now,” Leonor said to some laughter. “Please invite yourself to that. The president, I’m sure, will pay for your supper.” (More laughter.)

After asking those not in some way affiliated with the university to leave, Leonor addressed members of the media: “We’re also asking that if you’re a member of the media, that you also lovingly exit at this time. This meeting is closed—it’s not open to the media,” he said. He also said recordings of any kind were forbidden.

Joining Leonor and Wisbey on stage for the town hall meeting were Interim Title IX Coordinator Marni Straine, Provost Steve Pawluk, Vice President for Student Life Yami Bazan and Associate Provost responsible for the Title IX Office Joy Fehr.

The meeting was closed to the public and the media at the request of student leaders who helped plan the town hall event. The topic: student and alumni concerns over the university’s handling of Title IX cases involving alleged sexual assault on the La Sierra University campus. The information in this article is not based on what happened in that meeting, but is based on an independent investigation.

The meeting came amid a week of growing tension over accusations that La Sierra University’s new Title IX Office had been slow to address student complaints of sexual harassment and violence. Two days before the town hall, a group of La Sierra University students and alumni held a demonstration between the university campus and the La Sierra University Church to call attention to a website, www.unsilenced.us, and a petition demanding Title IX reforms.

The Growing Scope of Title IX
Title IX, part of the United States Education Amendments of 1972 that President Richard Nixon signed into law on June 23, 1972, states: “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.”

In 1980, enforcement of Title IX became the responsibility of the U.S. Department of Education’s Office for Civil Rights (OCR). The most notable Title IX cases in the early life of the law dealt with gender parity in college athletics. Schools providing men’s basketball programs, for instance, were required to provide programs for women as well to retain federal funding. But early on, Title IX was understood as pertaining to sexual harassment, too. The 1980 case Alexander v. Yale was the first federal lawsuit to bring sexual harassment charges against an educational institution using Title IX law.

OCR in 1997 issued a letter (revised in 2001), “Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties,” which stated that, “Consistent with Supreme Court decisions...the Department (of Education) has interpreted Title IX as prohibiting sexual harassment for over a decade.” The letter made explicit that “Sexual harassment of students is a form of prohibited sex discrimination.”

The scope of Title IX protections has grown with successive court cases and Title IX guidelines from OCR have expanded with a series of memos to tax dollar recipients.

On April 4, 2011, OCR sent out a “Dear Colleague Letter,” to help institutions meet the requirements of Title IX pertaining to sexual harassment and sexual violence. An April 24, 2015 “Dear Colleague Letter” from Assistant Secretary for Civil Rights Catherine E. Lhamon stated that “all school districts, colleges, and universities receiving Federal financial assistance must designate at least one employee to coordinate their efforts to comply with and carry out their responsibilities under Title IX.”

Last Friday, May 13, the Obama Administration made waves in an ongoing skirmish between states and the federal government over gender identity when it issued another “Dear Colleague Letter” providing “significant guidance” on transgender rights. The letter directed schools to “provide a safe and nondiscriminatory environment” for transgender students. This includes allowing them to use restrooms and other facilities aligned with their gender identity (as opposed to their biological sex at birth).

Title IX also mandates that “any recipient that provides full coverage health service must provide gynecological care,” and provide accommodations for women in cases of pregnancy, childbirth, false pregnancy, abortion, and corresponding recoveries.

The Title IX guidelines that direct schools to make accommodations for transgender students and students who have abortions have led many religious institutions to seek exemptions to those Title IX provisions. The Department of Education lists seventy-five religiously-affiliated institutions that have filed for exemptions on religious bases, in most cases because of their view on abortion (impermissible) or gender identity (fixed by God at birth). Which brings us back to La Sierra University.

La Sierra University’s Title IX Test Case
University President Randal Wisbey has stated that La Sierra will not seek a Title IX exemption. When asked for clarification, President Wisbey focused on sexual violence: “[My mentioning it] was to simply note that we are committed to working within the directives and guidelines of the Department of Education,” Wisbey said. “While I understand why some institutions have taken this step, I do not believe it would appropriately represent our university commitment to ensuring our campus is safe from sexual harassment and violence.”

La Sierra’s safety from sexual harassment and violence has become a point of contention.

In August 2015, a female La Sierra University student spoke to Dean Jodi Cahill (who is now a Community and International Relations representative for La Sierra’s School of Business), reporting that she had been the victim of sexual assault and battery, identifying a male La Sierra student as the culprit. Cahill told the female student to take the matter to La Sierra’s Dean of Students, Marjorie Robinson.

According to Joy Fehr, associate provost responsible for La Sierra’s Title IX Office, La Sierra University opened its Title IX Office on campus the month before, July 2015. The female student says she was told that the new Title IX coordinator, Johanna Penick, was not yet settled in.

In September, the female student met with Dean Robinson (Jodi Cahill was also present, she says) and described her relationship with the male student that had become a physical relationship. She says she described unwelcome physical activity in the relationship and how it was physically, psychologically and emotionally affecting her. She also noted that she and the male student currently shared a class in which he was harassing her. She says she was told by Robinson that the male student would immediately be removed from the class. This did not happen.

Nine days after meeting with the female student, Robinson met with another female student who told Robinson that the same male student also assaulted her when they dated for two years.

On October 6, Robinson met with the male student to discuss the case with him. Meanwhile, the female student stopped attending the class she shared with the male student, who had not yet been removed from the class. The next day, the female student met with Robinson, who told her that the male student would no longer be permitted to participate in Spiritual Life activities or in leadership activities in which he was involved.

The female student states that in her meeting with Robinson that day, Robinson told her two deans would be keeping the male student accountable to keep his hands to himself. The female student says Robinson told her to be the bigger person, to forgive, and to find healing with God. She says Robinson told her the male student was a child of God too. In subsequent fact finding Title IX interviews, Robinson disputed those details.

On October 9, the female student spoke with Robinson again, pleading to have the male student removed from the class they shared, she says. She states that Robinson told her Provost Steve Pawluk declined to have the male student removed because he needed the class to graduate.

(In subsequent documents, Pawluk stated, the provost has not participated in any portion of the investigation or disciplinary proceedings. His first indication that this case existed was when he received widely distributed emails which identified the names of the parties in this case and which alleged that university administrators were harboring a rapist, accusing the provost of preventing certain interventions or remedies from occurring).

That same day, the male student was issued a behavioral contract (later extended to March 15, 2017), which included a no-contact order from Marjorie Robinson requiring that the male student not have communication with three female students by email, phone, text or electronic means of communication, or through another person. The letter states that the other students would be informed of the directive.

The female student states that she was never informed about the no-contact order, which she says was violated on many occasions by the male student. The sanction was to be in place for the duration of the male student's time at La Sierra University, enforceable by suspension or expulsion. The female student states that when she learned in Spring of 2016 that a no-contact order had been imposed, she asked the Title IX Office several times to be given a copy, but didn't receive one until some time later. The female student notes that despite violations of the no-contact order, the sanctions were not enforced by suspension or expulsion.

In an October 12 email obtained by Spectrum, Jodi Cahill wrote to Robinson saying, “In my opinion, we need to remove [male student] from that class. [Female student] feels we let her down by keeping him in the class. I remember you told her he would not be allowed to be in a class with her. I am aware of the extenuating circumstances in doing this. [Male student] needs the class, because it isn't being offered again. Perhaps it would be better if he picked it up next year.”

The university told the Press Enterprise that Cahill was not fully aware of the situation, and citing the federal Family Education Rights and Privacy Act, declined to comment on the specifics of any case.

In a letter to the La Sierra University Board of Trustees dated October 15, 2016, former trustee and La Sierra alumna Donna Carlson wrote,

Despite her report to a dean as early as September 21, followed by repeated requests, the senior administrator in question has up until now refused to remove the man involved from the class for which they are both registered.  Through this refusal, the senior administrator appears to have aggravated the serious emotional injury sustained by the victim. In essence, she has been forced to choose between repeatedly facing the man, and her education.  To this point the administrator appears to have chosen to protect the aggressive male student rather than the victim; this despite the fact that at least three (and possibly more) other female students have reported similar experiences with the same person – and despite the clear requirements of Title IX specifying that a school is required to protect the victim from the accused during the investigative process.

Carlson called on the board to investigate the matter because administration appeared reluctant to act, she said, adding that the victim had asked her to do so.

Around this time (a day between October 12 and 14, the timeline is unclear), the female student met with Title IX coordinator Johanna Penick and Title IX investigator Michelle Kamau, director of La Sierra’s Office of Disability Services. This marked the formal beginning of the Title IX investigation.

The account the student gave Penick and Kamau included details of her dating relationship with the male student spanning October 2014 to June 2015, which at various times included unwanted physical contact, pinching to the point of bruising and at least one instance of hitting her so hard he knocked her to the ground in front of a witness, she said. She detailed several instances of sexual intercourse over the course of the relationship, including at least one instance of non-consensual sex on a morning after the two shared a hotel room, and she had not yet awoken. She woke up to him “entering her from behind,” she stated, and she reported pushing him away and asking him to stop. He said he loved her, and continued having non-consensual sex with her, she said.

On September 28, 2014, California Governor Jerry Brown signed SB 967, the Student safety: sexual assault law. Known among supporters as the “Yes Means Yes” bill, the law made California the first state to adopt affirmative consent language as a central feature of school sexual assault policies. The bill establishes that during sexual acts involving students, both parties must give affirmative, conscious and voluntary agreement to engage in sexual activity. While not a feature of Title IX, the California law sets a benchmark for what constitutes consensual sex.

Allegations of Rape
The most serious Title IX charge reported to Penick and Kamau was the charge of “sexual action by coercion, force or fear” (rape). The female student also charged that the male student created a hostile environment in the class they shared in violation of Title IX.

The Title IX investigation, conducted from October 14, 2015 to March 2, 2016, also included interviews with several females who alleged that from September 2012 to October 2015, the male student’s actions included lingering hugs, poking, touching and massaging shoulders. In all, there were three separate charges reported to the Title IX Office: rape, hostile environment, and sexual harassment.

The male student was removed from the class he shared with the female student on October 20, 2015. That same day, the female student assented to having an outside investigator, attorney Diane Mar Wiesmann, also help in the investigation. Wiesmann interviewed the female student the next day in the presence of Penick and Kamau.

On March 2, Johanna Penick notified the female student that the Title IX investigation had been completed and that a Title IX Investigative Report had been sent to the Student Life Judicial Committee. Vice President for Student Life Yami Bazan chaired the committee after Dean Marjorie Robinson, who initially chaired the committee, was recused.

Bazan states that the committee is comprised of five members and the Chair, a non-voting member. Three members are faculty and three are staff. “Only two faculty members serve at a time, because it is hard to get all three schedules to match,” Bazan says. “Two of the staff members are Student Life employees and one is a staff-at-large.”

Judicial Committee members, as is the case for all La Sierra University faculty and staff, receive mandatory 2-hour Title IX training through Human Resources. “The faculty who serve as Title IX Judicial are, in their profession and area of teaching very familiar with Title IX,” Bazan says.

On March 18, the Judicial Committee completed deliberations and adopted the following sanctions for the male student: letter of censure; extension of behavioral contract to March 15, 2017; no contact order with female student; quarterly meetings with Dean of Students until Spring 2017; and mandatory counseling. The female student states she was not notified about the no-contact order until much later, and that she encountered and was harassed by the male student on several occasions before being notified.

The Outcome Report of the Title IX Investigation, dated March 23, 2016, provided the Title IX Office’s findings on three allegations against the male student. Spectrum has obtained a copy of the report.

Concerning the first allegation, rape, the report stated that insufficient evidence was found to support a Title IX violation.

(On this point, Associate Provost Joy Fehr points to guidance from OCR in its “Dear Colleague Letters” that establishes a 50.01% preponderance-of-evidence threshold for determining whether an allegation of sexual assault is with merit. Fehr notes the following paragraph:

“If there is a dispute about whether harassment occurred or whether it was welcome––in a case in which it is appropriate to consider whether the conduct would be welcome –– determinations should be made based on the totality of the circumstances. The following types of information may be helpful in resolving the dispute:

·  Statements by any witnesses to the alleged incident.

·  Evidence about the relative credibility of the allegedly harassed student and the alleged harasser. For example, the level of detail and consistency of each person’s account should be compared in an attempt to determine who is telling the truth. Another way to assess credibility is to see if corroborative evidence is lacking where it should logically exist.”)

Pointing to discrepancies between testimony provided by Dean Marjorie Robinson, other female students, and the reporting party who brought the allegations against the male student, “the investigators conclude that there is a lack of evidence of sexual activity by coercion, force or fear; or that there was non-consensual sexual intercourse, sufficient to constitute a violation of Title IX.” The report also cited the fact that the female student did not mention forcible or unwanted sexual intercourse to Dean Robinson when first meeting with her, or to her friends, even her close friends. The significant delay in reporting the alleged sexual assault contributed to the conclusion that forcible or coercive sex warranting a Title IX violation did not occur.

The Outcome Report found that on the other two allegations––hostile environment in class toward the female student and hostile environment sexual harassment toward other female students––the investigators concluded that violations of Title IX occurred.

The female student submitted a formal, six-page appeal to Joy Fehr on March 31 contending that her case was improperly conducted, that statements by Dean Robinson contradicting her testimony were given more weight than her statements, and explaining that the discrepancies between what she told investigators and what other students told investigators were attributable to her reporting in good faith what she had been told by those other students. She also claimed that the Outcome Report omitted the statements of at least eight witnesses who were interviewed.

The student argued (with numerous supporting statements) that the facts did not justify the conclusion that she was not credible and was not telling the truth about what happened, and that the sanctions imposed on the male student were not commensurate with the nature of the offenses.  

After receiving more than one response to the appeal from administration stating that the appeal was incorrectly formatted, the student re-submitted the appeal and on April 6 wrote a letter to the La Sierra University Board of Trustees asking for their intervention to ensure due process was provided.

According to the Press Enterprise, on April 13, the Riverside Police Department took an incident report from the student alleging sexual assault.

On April 15, the female student submitted an appeal to Provost Steve Pawluk, who according to the Student Handbook Disciplinary Appeals Process is a higher level of appeal than the Judicial Review Committee. Meanwhile, news of the case spread on campus.

La Sierra University students and alumni launched the www.unsilenced.us website and corresponding petition for change on April 26.

The website includes numerous survivor stories of La Sierra University students, past and present, who detail sexual assault they experienced on the La Sierra campus. Many stories allege that university administration responded slowly or seemingly indifferently. One female alum says when she fought back against her assailant, she was disciplined for her unlady-like behavior. The petition makes several demands of university administration “in an effort to rid our campus of sex discrimination, sexual misconduct, and intimate partner violence. We pledge to withhold donations to La Sierra University until these demands are met,” the petition states. Its signers include students, alumni, current and former faculty members, and members of the community.

The morning after the website and petition went live, Provost Pawluk issued his official response to the female student’s appeal. In several cases, he upheld the findings of the Title IX Investigation Outcome Report.

“While, due to the complexity of the case and the disparity between accounts, it is impossible to determine that the Investigative Team’s conclusions are flawless, the team’s conclusions are reasonable and based on the quality of information that the team was able to procure from a number of witnesses,” Pawluk wrote. “The provost finds no cause to overturn the Investigative Team’s findings or conclusions.”

The provost denied the portion of the appeal requesting stricter discipline of the male student for the allegations pertaining to non-consensual sex.

However, citing evidence from the investigation, Pawluk wrote,

“The record demonstrates that [male student] was repeatedly warned, advised, and remonstrated for his behavior toward various women. Yet [male student] denies that this happened, leading the provost to conclude that the Discipline Philosophy of the Judicial Committee, including the assertion that discipline is primarily educative, disregards the evidence showing that [male student] has demonstrated an unteachable spirit over a sustained period of time. The Judicial Committee also seemed to overlook the persistent harm that is being done to various females on campus by [male student’s] behavioral patterns in public and in private.”

The provost remanded that portion of the appeal back to the Judicial Committee “for reconsideration and for amendment of [the male student’s] sanctions, directing the Judicial Committee to give due consideration to females’ rights to be protected from sexual harassment in its various forms at La Sierra University.”

The provost also wrote:

“The record supports the assertion that [male student] behaved inappropriately toward a number of females, nor is there a denial that [male student] engaged in sexual activity outside of marriage. Additionally, the Investigative Team found reason to question [male student’s] truthfulness. The record shows that some witnesses counseled [male student] regarding his reputation as a ministerial candidate. The Judicial Committee, however, did not address this matter at all, making no recommendations or giving no notice to the Dean of the HMS Richards Divinity School regarding [male student’s] consistent patterns of behavior toward women, his persistent refusal to accept counsel from his peers and from a chaplain, his lack of truthfulness, and how these things might affect his fitness for ministry.

The provost asked the Judicial Committee to reconsider those facts, and to amend sanctions in light of the facts.

Causes for Concern
The case of the female student has raised a number of concerns for both students on campus and those observing from off campus. Many of those concerns were voiced before administration during the May 5 town hall meeting, and university administration listened and responded. The most serious concern is that La Sierra University protects rapists, a charge that President Randal Wisbey has firmly countered. Wisbey stated for this article, “I want to assert, as I did during the Town Hall meeting, that we will not tolerate or protect criminal activity.” He reiterated that administration, faculty, and staff care deeply for students, “and we will continue to do everything that we can to ensure their safety, to enhance their education on these sensitive Title IX issues, and to be vigilant in our support of those who have faced sexual harassment or sexual violence,” Wisbey said.

Students have also voiced concerns about promptness and about safety. Many have asked what protections are available to students while the investigative process is ongoing. Interim Title IX Coordinator Marni Straine (Coordinator Johanna Penick is currently on maternity leave), pointed to language in La Sierra’s Title IX Policy which provides temporary protections for students that can be made permanent as necessary:

  1. A no-contact directive issued by the Title IX Coordinator, or their designee
  2. Housing or work space relocation
  3. Adjustment of course schedules or employment schedules
  4. Alternate learning arrangements
  5. Time off from class or work, or a leave of absence
  6. Transportation arrangements
  7. Safety planning

“One thing that I heard very clearly is that we must seek ways to speed up the process,” President Wisbey said, “so that students who find themselves in a Title IX investigation receive a timely decision while recognizing that issues of timeliness will be impacted by the nature of the investigation and the number and availability of required witnesses.”

A Plan of Action
In response to the ongoing case and the many concerns it has raised, La Sierra University administrators have made many changes to their Title IX Office and its work. Most importantly, Wisbey says that “while Title IX does not require a full-time coordinator, it is my view that we would be well served by moving to a full-time appointment.” Wisbey states that by early July, a full-time coordinator should be in place. “We have made the appropriate budget allocation,” Wisbey said.

La Sierra also plans to improve the coordination of the Student Life judicial process with the Title IX investigative process and to increase student and employee education on Title IX throughout the coming school year. Interim Title IX Coordinator Marni Straine says this job of providing training falls to her.

“The Associate Provost and the Title IX Coordinator will oversee [Title IX education] with student, faculty, and staff input,” President Wisbey says. “We want this to be truly helpful in increasing awareness, fostering prevention, and addressing violations promptly and appropriately.”

La Sierra is also reviewing its Student Handbook and its Judicial Review process. Vice President Yami Bazan: “As I stated in the town hall meeting, the interim Title IX coordinator Marnie Straine and I will be revisiting the sanctions and reviewing their effectiveness as we finalize the 2016-2017 Student Handbook. We continue to look for ways to improve our policies and processes.”

While La Sierra University has received the most attention to and scrutiny of its Title IX policy of Adventist colleges and universities, it is by no means alone in grappling with Title IX’s mandates and guidelines. Sexuality on Seventh-day Adventist campuses cannot be ignored.

Randal Wisbey again: “There is no doubt that the Adventist Church today must find new and appropriate ways to address the issue of sexuality.  I also believe there is no better place for this work to be done than on an Adventist university campus.” He notes the trained and dedicated professionals from a variety of disciplines—ethics, theology, the social sciences, health and wellness—who are well situated to inform the conversation.

“On campuses across North America, institutions of higher education have at times struggled with the implementation of Title IX,” Wisbey notes. “While some of our challenges have been highlighted publicly, I remain encouraged by the significant progress we have made.”

 

Jared Wright is Managing Editor of SpectrumMagazine.org.

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