Ohio University’s legal office said last week that it no longer will provide reports of investigations into student complaints that professors and staffers have violated federal Title IX non-discrimination policies.
This is a significant change in practice for the university, which up until this month had provided copies of its reports of investigation conducted by OU’s Office for Equity and Civil Rights Compliance into student complaints.
In recent years, The Athens NEWS has published a number of articles based on those types of reports.
Barbara Nalazek, OU’s deputy general counsel, said in a statement last Monday that the university would decline to provide The NEWS with four copies of the investigatory reports – called Memorandum of Findings (MOFs) – that the university created based on student complaints against OU professors this year.
“During the requested time period (July 2018 to Oct. 26, 2018), ECRC issued four additional MOFs,” Nalazek wrote. “In each MOF, the complainant or complainants were students. To comply with the confidentiality requirements of FERPA, we are not in a position to disclose these MOFs.
“We understand that this is a change from past practice,” Nalazek added. “We have attempted to sufficiently redact student information from MOFs, but experience has demonstrated that this approach is not viable. We appreciate that you have been respectful of complainant privacy, but we have to make decisions based on what can and cannot be a public record for all requesters.”
The university previously provided redacted versions of these investigatory reports, with student names and other sensitive information about them blacked out. Now, the university is refusing to provide these records at all.
When this reporter asked the university why this policy change has happened, Nalazek said she “will not comment further on the change in policy re: releasing MOFs.”
OU spokesperson Carly Leatherwood had the following to say: “From an institutional perspective, the university has a competing interest in maintaining student privacy; therefore, it would not be appropriate to compromise complainant privacy.”
In total, the university declined to release the investigatory reports into student complaints against OU journalism professor Yusuf Kalyango; OU chemical and biochemistry professor Sunggyu Lee (see story on page X); OU media arts and studies professor Kyle Snyder; and a fourth professor whom The NEWS will not name because the ECRC investigation did not substantiate a student’s claims of disability discrimination. The university did, however, provide the names of the accused; what section of university policy they're accused of violating; and whether or not those claims were substantiated.
OU already has initiated dismissal proceedings against Kalyango after the ECRC office through its investigation found that, through a preponderance of evidence standard, Kalyango violated the university’s policy in three areas: Engaging in sexual harassment by quid pro quo; creating a hostile work environment; and harassing the student based on her sex. The NEWS only received a copy of that ECRC report of investigation when an anonymous source provided the copy.
Snyder, according to Nalazek, was accused by a student of non-consensual sexual contact and sexual harassment by hostile environment; the ECRC office substantiated the non-consensual contact allegations, but the allegation of sexual harassment by hostile environment was not substantiated. His case was reviewed by the university’s Professional Ethics Committee, but without a copy of the Memorandum of Findings in Snyder’s case, or Lee’s for that matter, it’s impossible to know what exactly Snyder or Lee have been accused of doing.
The UPEC group in a letter provided by OU’s legal office agreed with the ECRC office’s findings in Snyder’s case, but noted that “the respondent fully acknowledges the truth of the claim by the complainant, and has expressed regret directly to the complainant and in writing to university officials.”
The UPEC group did not recommend that Snyder face any severe disciplinary action, outside of the fact that he has “completed training required by the ECRC” and “has participated voluntarily in therapy.” There’s one more response listed in that UPEC report, but it is redacted, so it’s unclear what that involves.
SO, WHY does the university’s change matter? Some context is needed.
Specifically, an OU ECRC investigation that concluded in December 2016 found that, through a preponderance of evidence standard, it was more likely than not that former OU English professor Andrew Escobedo sexually touched and harassed the two graduate students without their consent multiple times during an end-of-semester party in December 2015. The NEWS received a public record of that Title IX investigation (the same kind of Memorandum of Finding that OU is now refusing to provide) in February 2017, and used those details to report on the allegations against Escobedo (who denied them at the time).
Fast forward to last month, when the university entered into a $670,000 settlement with Susanna Hempstead and Christine Adams, the two alleged student victims of Escobedo, after they filed a civil-rights lawsuit against the university alleging that it had violated their rights under Title IX. Prior to that, Escobedo had entered into a separate, undisclosed agreement with the students, acknowledging “my responsibility regarding the events of December 2015... I acknowledge the humiliation, anguish and emotional trauma my actions caused Ms. Adams and Ms. Hempstead.”
Mike Fradin, the lawyer for Hempstead and Adams, said last week that Ohio courts tend to construe the exceptions to Ohio’s public-records disclosure law in a legally narrow fashion.
“When an exception to the public-records act, such as FERPA, does apply, the public entity is required to produce the redacted record,” Fradin said after viewing OU’s response to The NEWS’ request. “A blanket refusal by a public university to produce Title IX findings and memorandums in response to a valid request is contrary to the case law that interprets Ohio’s public records act.”
Without the release of the Memorandum of Findings into the Escobedo case, it’s not clear when the campus community at large would have found out about misconduct alleged against him, which according to the Memorandum of Findings, took place as far back as 2003 and 2005.
WHILE IT’S NOT clear exactly what prompted OU to change its policy on releasing these reports, one thing is clear: The U.S. Department of Education under Trump secretary appointee Betsy DeVos has expressed concern about the rights of those accused of misconduct under Title IX law.
Specifically, DeVos announced proposed rule changes to federal Title IX law that appear on their face to reduce the liability of colleges and universities for investigating sexual misconduct claims and to shore up the due process rights of defendants, according to a Nov. 16 New York Times article. Those changes are now going through a 60-day public-comment period before they are finalized.