An ATIXA Tip of the Week by Brett A. Sokolow, J.D.
A client recently asked The FAIR Center to staff a hearing panel on a complex set of allegations against a tenured faculty member. I chaired the panel along with two of the client’s panelists from their own internal pool, so that we could mentor them as decision-makers. Once the three of us received the evidence packet from the client, I immediately felt like it was a set-up.
The client approached this in a very unorthodox way. There were six complainants, all students who also worked in the department. The allegations included Title IX sexual harassment, Title VII sexual harassment, race discrimination, and disability discrimination. For some reason that still remains a mystery, the client combined all four of these charges into one investigation, though there was no connection between the set of sex-based allegations and the disparate treatment allegations on race and disability. There was a connection among the sex-based claims, given that some of the complainants overlapped across those, and they could constitute a potential pattern, so that part made sense to me. But, the client explained that because all the complainants had come forward together, they decided to combine all of the allegations into one resolution.
It felt like piling on to me, and when I describe it as a set-up, I mean that decision-makers faced with 27 different allegations across four charges and three protected classes could easily be biased by the way the complaint was framed to conclude the faculty member was a real problem.
After the hearing, I was convinced that the complainants were throwing spaghetti at the wall in what I call the “death by a thousand cuts.” style of joint complaint. The complainants were not wrong to be aggrieved. The record showed sexism, obnoxious conduct, inappropriate conduct, and a lot of boundary-pushing. In deliberations, I have a standard practice as chair, which is to lead the hearing but not the deliberation. I have an outsized role because I am chair, and I want all the panelists to feel like we are on an even footing in the deliberation room. I prefer to actively listen in deliberations and empower the other panelists to process first, so they can explain their thinking and reasoning without being influenced by me. Both the other panelists fell into the spaghetti trap, as I suspected they might. They voiced a sense that the respondent was in violation on all counts and should be terminated. It’s what the client seems to have wanted based on the spaghetti trap that they set up, and both the panelists were inexperienced enough not to sense the trap.
These should have been three separate complaints. Once combined, it was easy to see the gestalt, but much harder to break the allegations down piece by piece. For the next eight hours, that’s what we did. That’s a really long deliberation, in my experience, but with 27 allegations across six complainants, parsing each one is not a quick analysis.
I did not see any violations of Policy proven, but I did not share that with the other panelists. I decided strategically that after we broke everything down, if they outvoted me, so be it, but I was going to make them look at each piece of evidence, Twelve Angry Men-style. I decided to start with the race discrimination complaint because it was incendiary, but the substance did not match the style. I asked the panelists to look past the inflammatory nature of the allegations and focus on whether the evidence even made out a prima facie case for disparate treatment. Frankly, they weren’t even clear on what a prima facie case was or why it was important. This inexperience and unfamiliarity is another reason why so many schools are moving away from internal panels.[1] Through that lens, the panelists quickly arrived at the conclusion that there wasn’t a prima facie case. They seemed a bit bewildered that they wound up 180 degrees from where they started, but agreed that the allegation of race discrimination should be dismissed, rather than decided, according to the institution’s policy. We looked at the disability discrimination allegation next, and under scrutiny, it crumbled for the same reason. Not enough evidence to make a prima facie showing of intentional failure to honor the student’s accommodations. We agreed to dismiss that claim, too. I asked them to sit there with that for a moment and digest what this meant for their overall perceptions of what we had learned during the hearing.
After reflecting, they were frustrated that all the unrelated allegations had been lumped together. It looked and felt initially very different than it did now, and even through the course of the hearing. To me, spaghetti is almost always a strong indicator of underlying potential weakness in a complaint. You don’t need to kill by a thousand minor cuts if you have one or two major cuts that serve as smoking guns or otherwise are strongly compelling. Spaghetti can result in a finding of a violation, especially if it indicates a pattern, but most often it will not.
One panelist noted that as we turned to the sexual harassment allegations, they had a sneaking suspicion, those allegations, too, would become a house of falling cards. I asked why, and they said that it was the lumping that got them to indulge their confirmation bias, but they could already see that if we broke down the sexual harassment allegations, they might not hold up. I asked that panelist to lead the analysis, rather than doing so myself. We had dismissed five allegations across two charges. We had two charges left (Titles VII and IX) and 22 allegations across four complainants. It seemed like a pattern. But, the panelist modeled what I had done and took us on an exploration of each complainant’s allegations in isolation, leaving the pattern out of consideration for now.
Was the conduct sex-based or sexual? Was it unwelcome? Was it severe? Pervasive or persistent? Did it cause a discriminatory effect on the complainant’s employment or education? One by one, each allegation failed to meet some element or other of the policy definition of the offenses. We had a great discussion of the difference between sexism and sexual harassment. We agreed we did not like the faculty member’s conduct, or approve of it, and we found that a referral to the department for unprofessional conduct was surely called for. But when broken down, the evidence did not prove a single violation. The repetition of the conduct tripped us up for a bit, but then the other panelists followed their training and pushed us to create a breakdown by complainant, by allegation, and by date, which is a large part of the reason we were locked in a room together deliberating for eight hours. Seen that way, graphically, we could for the first time get our brains around the fact that most of the conduct was spread out over two years, even if it was repeated, and that the repetition was foisted upon different complaints, not the same one.
Some of the conduct was alleged to be sex-based but proved to be sex-adjacent upon closer analysis. All of the conduct was unwelcome. Some of it was protected by academic freedom. Some of it was severe, but most was not unless you considered it in aggregate. None of it was persistent or pervasive.
As a panel, we agreed that we did not like this faculty member’s conduct one bit. We could see why these six complainants were more than fed up, and the positional interplay here between younger complainants and a tenured faculty member was important. I am glad these complainants did not put up with his conduct and filed complaints. Nevertheless, I don’t think they filed the right kind of complaints with the right office. There are better tools to address this kind of behavior, but, on the allegations before us, we unanimously concluded there were no violations. Not even close. Once we realized the complaints did not stand on their own, it became unnecessary to review the pattern charge, because to constitute a pattern, there must be individual violations that connect through similarity. We found no individual violations.
Hopefully, the institution will train, mentor, and/or discipline the faculty member for the appropriate offenses that we referred to the respective offices. The respondent does not understand the power they wield, or how younger students who aspire to be mentored by the respondent may feel obligated, pressured, and unable to say no to what is uncomfortable for them, but the respondent needs to be sensitized to that. Is there a generational divide here? Definitely, but faculty members need to understand that students won’t put up with what they did a generation ago, nor should they have to.
Perhaps Titles VII and IX are not always the best tools for teaching this lesson across generational divides, but as we closed our deliberations, our entire panel felt like we had given it as thorough a consideration as we could, and we were confident that our conclusions were the right ones. That’s the kind of sweat The FAIR Center brings to every one of our decisions. The members of your community deserve nothing less.
[1] Our ATIXA audience surely knows what prima facie means, but to meet all readers where they are, it means establishing the minimum initial elements of what could constitute disparate treatment, usually that there is proof of being treated differently on the basis of sex than similarly-situated comparators are being treated.