Our legal work handling the contracts of college and university Presidents, Provosts and senior administrators has also led us into the Title IX area on occasion. The following, written by my colleague Lisa Horowitz, offers some good practical suggestions to any senior college administrator or faculty member who finds himself or herself confronted by such an allegation.
The headlines are hard to miss: scandals alleging sexual misconduct and the mishandling of Title IX violations involving faculty and members of the administration in academic institutions across the country. Baylor University, Yale University, the University of New Mexico, the University of Arizona, to name only a few, have all been in the news. And at UC-Berkeley,[1] scores of employees were accused of violating the University’s policy against sexual harassment, leading to terminations, resignations and disciplinary action. Most notable among them was a renowned professor of astronomy, a history professor, and a vice-chancellor. Even the Dean of the Law School was sued over allegations that he had sexually harassed his assistant.
While a great deal of media attention is focused on Title IX violations between students, the UC-Berkeley case reminds us that instances of sexual harassment involving faculty members and mishandling of cases by administrators have been increasing at an alarming rate as well, and can have dire consequences for those accused. If you are accused of a Title IX violation, regardless of whether the alleged victim is a colleague or student, the sanctions against you may result in harsh disciplinary action, including censure, fines, forced apologies, mandatory counseling, suspension with or without pay, restrictions on teaching, advising and other professional activities, revocation of tenure, and termination of employment. Even a faculty member who is wrongly accused can, in the course of a university-run investigation, suffer embarrassment and irreparable reputational harm. Moreover, statements may be added to personnel and other administrative files which can impede your ability to move to other academic institutions and otherwise advance in your career.
Accordingly, if you are a faculty member or college or university administrator, and you find yourself facing such allegations, it is essential that you IMMEDIATELY take certain steps to protect yourself, even if — particularly if — you believe you have been falsely accused.
In the event that you receive notice of an allegation against you, or even if you suspect that an uncomfortable interaction with a student or colleague might lead to a complaint, here are three important things to do:
1. Contact a Lawyer: Only an experienced executive employment attorney can analyze the details of your unique situation, formulate a strategy, and advise you on how best to proceed. It is essential that you consult with an attorney as quickly as possible, and certainly before participating in any formal or informal investigation launched by the university.
And don’t decide that any incident is sufficiently inconsequential to “handle it yourself.” Our experience is that how the first Title IX accusation is handled is crucial to the success of later efforts to preserve the unblemished record of a faculty member or administrator. No one enjoys hiring and paying legal counsel, but if you get “one strike” on your record, you can become fair game for later accusations, even if frivolous, because the Title IX coordinator of the college or university will use the earlier incident to presume your guilt.
2. Remain Silent: Educators and others employed in higher education are accustomed to using their well-honed verbal skills to great advantage. But in the context of alleged violations of Title IX policy and sexual misconduct, anything you say or write can — and most likely will — be used against you. So remain silent. Whether you have already been accused or feel that a complaint is in the offing, do not discuss your situation with anyone — either within or outside of the university — until you have spoken with counsel. Remember, even well-intentioned friends and colleagues, including department chairs, deans, and provosts, can misconstrue your statements. This proscription against communication extends with particular force to emails and texts. Never communicate anything about your situation in writing. Stay away from, and off of, social media in connection with anything having to do with the incident or personalities involved (see below). And when you communicate with your counsel, use a private email account, not the university server (employees can have no legal expectation of privacy when they use the employer’s email).
3. Steer Clear of Social Media: Too often, information is posted on blogs and to social media without adequate consideration of the far-reaching effects it might have. In this digital age, rumors spread like wildfire, and the news media is always hungry for sound bites which can be picked up, decontextualized, and blown all out of proportion. So, if you find yourself accused or potentially in harm’s way, resist the temptation to go online; avoid blogging and stay away from social media. Resist any tendency to respond to what someone else is saying online.
Historically, sexual predators have been allowed free rein on our campuses, and for generations of students, junior faculty and administrators, the consequences have been devastating. Without a doubt, this unconscionable misconduct must be stopped. But in some instances, the pendulum has swung too far in the opposite direction. An over-aggressive, “witch hunt” atmosphere has arisen on many campuses, and with it, methods of investigating and punishing which lack important procedural safeguards for the accused. Many academic institutions, subjected to heightened scrutiny by the Federal government in the way they are handling Title IX allegations, and fearful of student protests, bad publicity, and lawsuits, are erring on the side of running roughshod over the rights and reputations of their own faculty members and administrators.
If you are or think you may become the subject of a Title IX complaint, there is no time to lose. Take swift action to protect yourself. The faster you call an attorney, the better are your chances for surviving the ordeal and minimizing any lingering impact.
References
[1] UC-Berkeley sexual harassment
