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Observer Editorial: Don’t let past mistakes lead to future flaws

| Friday, September 1, 2017

Imagine receiving an email from the University that stated you were being investigated for an alleged violation of school policies related to sexual harassment.

The email does not say what the alleged wrongdoing was or when it happened. It merely lists all the offenses identified as conduct which could be considered sexual harassment, including sexual assault, sexual misconduct, dating and domestic violence, stalking and conduct that creates a hostile environment.

Over the next few months, you cooperate with an administrative investigation, which has a stated goal of conclusion within 60 days. During this time, you file a counter-complaint as well. The week of your disciplinary hearing, the complainant files a stack of evidentiary materials several inches thick to be used in that hearing. Despite the volume of this evidence, you have only 2 1/2 days to review it by yourself; it must be done so individually and within the confines of an administrative office — during its hours of operation and regardless of your class schedule.

When it comes time to present your defense at your hearing, you are told the witnesses you want to call to contextualize the very behavior you are accused of engaging in aren’t allowed to testify, as they go beyond the scope of the incident being investigated.  You cannot object. You cannot ask for help or have someone by your side to advise you, despite your future at the University hanging in the balance.

After the hearing, you ask for the opportunity to provide new evidence, but you’re told it won’t make a difference. Finally, you receive their decision: 111 days after the complaint was filed, you have been expelled from the University. But 95 days after your counter-complaint was filed — well beyond the 60-day promise — that investigation remains ongoing with no resolution in sight.

This story is the experience of at least one student within Notre Dame’s Title IX proceedings.

As an Editorial Board, we have followed this case, which has since been taken to trial in the form of a lawsuit filed by this unnamed student — referred to as John Doe.

We cannot speak to the guilt or innocence of either Doe or his complainant, referred to as Jane Roe in the lawsuit. Perhaps the University’s investigation reached the correct outcome, giving it every reason to ensure Doe does not receive a degree he does not deserve. What we can — and feel obligated — to address, however, are the concerns raised with the Title IX process as was described in those proceedings.

It is the opinion of this Editorial Board that the story of Doe’s case revealed flaws in the timeliness and fairness of due process in the University’s Title IX procedures. Whether or not the appropriate outcome was reached in this case, we believe the proceedings as outlined above are emblematic of a system that has jeopardized student trust — for both complainants and respondents — in the Title IX office and its reporting procedures.

And, frankly, those trust concerns have already been borne out: According to the University’s 2016 Campus Climate survey, only 10 percent of students who indicated they had been sexually assaulted at Notre Dame said they reported it to the University. Fifty-four percent of all students who responded said they doubted reporting would solve anything, and 30 percent explicitly “did not trust the University’s process.”

We understand that these cases are complex by their nature. Always dealing with the most serious of issues at Notre Dame, the University’s Title IX department is in the unenviable position of being subject to the greatest scrutiny of any office on campus.

Additionally, the Doe case is certainly not the only case the University has handled. The nature of the Title IX office’s work is that when cases are handled appropriately, the details are kept private — and for good reason. It is a case such as this one — one in which potential issues are raised and a lawsuit is filed — that leads to details of the administrative process becoming public record.

And for this Editorial Board, that is part of the problem.

Last spring, this Board voiced its concern regarding this lack of trust in the University’s procedures for sexual assault complaints and issued a challenge for more transparency on the part of the administration.

What the Doe case represents to us is not merely the potential pitfalls of administrative policies that were in place when the events of Roe’s complaint and Doe’s hearing occurred.

For us, the case represents a more systemic problem: that the only way we as students learn about University policies and procedures is in light of these serious concerns for their very legitimacy.

Since the Doe administrative investigation, the University has rolled out new procedures for its Title IX investigations. Many of these changes address concerns that appeared in the Doe case. A new “alternative resolution” process was created as an option to handle complex cases like the Doe one. All Title IX hearings will now be handled internally, removing the role of the Office of Community Standards in hopes of improving the timeliness of proceedings. And once the internal investigative panel’s final decision is released, both the complainant and respondent can contest the decision and spawn a case review due to a perceived defect in the proceedings or further evidentiary questions.

It is with the Doe case in mind that these changes warrant both praise and criticism.

Having previously called for further transparency with regards to Title IX investigations, we applaud the current efforts of the administration to publicize these newest changes. In introducing them to the students through summer training programs, Welcome Weekend and Monday’s report, the administration has demonstrated an effort to bring clarity to a part of the University where there previously was little. We hope that will continue to be the case with the planned monthly “Lunch and Learn” series, lessons in Moreau First Year of Studies courses and more. These cases are complicated, but clearly laying out what options the University has to handle them can go a long way in rebuilding a trust with students that has diminished over the last several years.

But that trust will only grow so much if those procedures turn into hollow pages in a hollow code of conduct.

Again, we cannot say whether or not the University’s investigation reached the right conclusion. But whether Doe is guilty or not, either outcome presents a problem. If Doe did not violate Notre Dame policy, the University system obviously failed, going so far as to expel an innocent student. But if he did in fact violate the policy, the University’s decision to expel him could be compromised by this lawsuit. The Title IX process is supposed to protect students, but the flaws in the system increase the chances of a student — whether they’re a victim of hostile conduct or falsely accused of such behavior — suffering an injustice.

It is difficult to deny that procedural defects and tunnel-vision to correct the problems of the past played a role in how the University got here. And that will cast a shadow over the Title IX office for some time.

That is what the University needs to keep in mind with its efforts to be more transparent with these new procedures. The problems that cases such as Lizzy Seeberg’s and John Doe’s bring up for the University’s treatment of both complainants and respondents cannot be forgotten or swept aside. But they shouldn’t be generalized to narrowly shape the understanding of future cases either.

Because that is how we ended up where we are now, with a system that is dependent upon trust disconcertingly lacking it.

If the University wants to rebuild that relationship with its students, it must embrace the shortcomings of the past. The outside pressures of saving face and overcorrecting for the past will always be present, but they should never be internalized.

If this trend continues, the trust in the University that sexual harassment claims on our campus so desperately require will never be revived.

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  • warmupthediesel

    Everybody in the Office of Community Standards from the last 8 years should be fired.