Sokolow’s Astute Observations On The Failure of Title IX

As a guy who earns his living off advising colleges how to run their campus sex tribunals to assure the guy loses while creating plausible deniability to avoid liability, and as president of ATIXA, the Association of Title IX Administrators, an association dedicated to the cause of believing the woman no matter what, Brett Sokolow has long been a primary cheerleader for his tribe, defending the inane and dishonest with rigor.

After all, without the cottage industry of campus sex policing for the sake of saving women’s feelings at the expense of facts and innocence, Title IX administrators would be constrained to get productive jobs. Because of this, Sokolow’s views haven’t been well-appreciated by anyone beyond those who benefit from the grift. Yet, in an LA Times op-ed, it turns out that Sokolow has some observations worthy of note.

The resolution system schools have in place for sexual misconduct allegations could surely benefit from some changes and refinements, but the proposed changes won’t solve the unfairness problem. That is because the OCR has confused procedural unfairness with substantive unfairness, and fixing the procedures alone will not result in more accurate substantive outcomes.

Better substantive decisions will depend on having neutral and impartial decision makers in place, and then training them comprehensively in the fundamentals of good decision making.

To begin with, Sokolow admits that the system has an “unfairness problem,” which might seem akin to admitting that the sun shines during the day but is quite the critical observation. An unfair “resolution system” is a failed system. More importantly, Sokolow concedes that his own tribe, Title IX administrators, are the problem: the system fails because the investigators and decision makers are neither neutral nor impartial.

He’s right. Sokolow is absolutely right. No system can work when the only goal of the investigators and decision makers is to convict the accused. A system run by biased decision makers, bent on believing the women and convicting men no matter what, can’t be fixed by procedural due process if they’re going to convict no matter what. When the facts don’t matter, neither do the procedures. Give Sokolow credit for conceding that his tribe is terminally biased and no process can fix their anti-male animus.

Due process has two components, substantive and procedural. The latter requires fair procedures that enable a fair and impartial decision maker to come to a fair resolution. But the former, substantive due process, requires the decision makers to be fair and impartial. Sokolow’s correct observation about the bias of his tribe, unfortunately, is where his accuracy skids to a halt.

…training them comprehensively in the fundamentals of good decision making.

Can prejudiced people be “comprehensively trained” not to be prejudiced? Sokolow hides behind the meaningless phrase, “good decision making,” when what would have been the takeaway from an impartial observer is unbiased decision making. Surely, no one promotes “bad decision making” as a desired outcome, but what distinguishes good from bad is the question. When it comes to resolution of accusations of sexual assault and rape, it begins with an impartial decision maker. Only then does it move on to how to fairly decide facts, determine credibility, dismiss fallacious arguments and reach a sound decision.

Of course, that’s where Sokolow’s pecuniary interest comes into play, as he makes his living training Title IX administrators using the trauma-informed fallacy, that no matter what the accuser says or remembers, she’s telling the truth. That’s “good decision making” if the only good decision is convicting the male accused student.

While Sokolow’s takeaway may reflect the facile and self-serving outcome that informs his financially-motivated reasoning, at least he deserves credit for saying it out loud: The decision makers are so biased and partial that no amount of procedural due process is going to improve the fairness of the outcome.

But that’s only half the due process question. Assuming it’s possible for colleges to run their “resolution systems” with investigators and decision makers who aren’t so biased that no amount of procedural fairness will matter, what then?

They would, for example, require schools to provide immediate, detailed notice of the allegations in writing before any school interview of the accused. In a standard criminal process — which this is not — the police can question a suspect about alleged criminal activity without notice. The OCR says this is a needed due process protection. Except it isn’t. There is no reason to require a more rigid process under Title IX than is required by law in criminal investigations.

Obviously, Sokolow lacks minimal knowledge of criminal law, as he’s apparently unaware of Miranda Warnings and conflates pre-accusation investigation with an investigation already dedicated to assuring the conviction of the male student.

Currently, most colleges resolve sexual misconduct allegations through robust investigations.

Calling investigations “robust” doesn’t make them so, even if the word doesn’t really bear much relation to what investigations should be. Indeed, they’re not “investigations” at all, in the sense of attempting to ascertain what happened, but rather a compelled opportunity to gather the “evidence” needed to convict the accused. The only “robust” thing about them is the contorted rationalizations as to why the evidence of innocence should be ignored while the lack of evidence of guilt proves the trauma suffered by the woman.

The proposed rules would also require live hearings before impartial decision makers to review the results of the investigation, interview witnesses and review evidence. However, there is no data to show that live hearings are less prone to error than results produced by non-adversarial investigations.

To put this in some remotely rational context, this would be akin to a jury at trial being told by the cops that the defendant was guilty without the defendant having an opportunity to challenge the police conclusion. But there’s no data? Maybe that’s because of the hundreds of years of experience with public trials, as opposed to star chambers, and the somewhat obvious fact that the absence of a live hearing means the “good decision makers” never hear anything but the Title IX investigators conclusion that they male student is GUILTY, GUILTY, GUILTY. How much data would Sokolow need to grasp that’s not a process prone to a fair outcome?

There is no research to indicate that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct case a full and fair opportunity to review and contest all evidence prior to a final determination. In fact, because cross-examination relies on talented questioning and sophisticated rules of evidence, it is susceptible to great variations in its effectiveness.

As ridiculous as it is to argue that cross-examination doesn’t produce more accurate results, Sokolow makes a critical observation, that its utility as a tool for accuracy “relies on talented questioning and sophisticated rules of evidence.” Cross in the hands of a college sophomore isn’t cross in the hands of an experience trial lawyer. Hearsay in the hands of a Art History prof isn’t the same as hearsay in the hands of a judge.

Sokolow’s op-ed reflects the surprising fact that he’s not unaware of how unfair, how ineffective, how biased, this “informal” system is that results in the explusion of innocent male students, forfeits hundreds of thousands of dollars of tuition, taints them in perpetuity as sex offenders and destroys lives. That Sokolow’s takeaway is since it can’t be made fair, it should be largely left to do its harm and changes that could improve its outcome won’t be sufficiently effective, so why bother?

But when was the last time making any system more complex and bureaucratic made it better?

It’s like the answer to “how long must a person’s legs be”? Long enough to reach the ground. The “complexity” of this “resolution system” is whatever is needed to make it viable. Sokolow’s admissions, that the system can’t work because his tribe is too biased and the procedural tools in the hands of untalented college students and unsophisticated academics will fail anyway, aren’t an argument to keep a bad system bad, even though that’s his less than astute conclusion.

The only rational takeaway is that this “informal” campus sex system can’t work, can’t produce fair results and can’t be fixed without extreme changes to provide both substantive and procedural due process. As Brett Sokolow says, the system is a massive failure. That might be good enough for him, but the Constitution and fair-minded people demand better.

31 thoughts on “Sokolow’s Astute Observations On The Failure of Title IX

  1. SteveP

    Correction: Sokolow seems to spell his name with a “k” (first link in post) but throughout the post (and in the title), it’s been spelled “Socolow.”

    1. SHG Post author

      Thank you for pointing this out early. I’ve corrected my typo and changed the title and url to reflect the correct spelling. As typos go, this was a bad one. Appreciate you letting me know.

  2. Hunting Guy

    That first sentence/paragraph!

    Flesch Kincaid Reading Ease -16.6
    Flesch Kincaid Grade Level 33.2

  3. Tom Rossley

    Thank you, Scott.

    No college is equipped to be fair to both the complainant and the respondent. They just aren’t.

    The hired gun in my son’s case, Mary Howell Sirna, had no problem burying evidence. She dismissed the entire testimony of my son’s roommate who was the only other person in the room that night. She wouldn’t talk to any witness who was with Jane Doe the next morning. She left out of her report, key exculpatory evidence that which she was fully aware. She chose to leave out the text timeline that would have shown that Jane Doe had actually left the fraternity house before the time she claimed the assault had occurred. She chose to not ask Jane Doe a single question about the sexual assault that Jane had perpetrated on my son, even though Jane eventually admitted, in the Hearing that expelled him one month before graduation, to initiating the assault on him. She chose to not ask for medical records that were readily available. She chose to not seek DNA testing. Her email to the University actually said, “I think I have enough to go on.”

    Sad that she had a 12 year career as a sex crimes prosecutor in Story County, Iowa. Imagine the evidence she was happy to bury in all of those cases.

    Our Dean of Students, Jerry Parker, chose the hearing officer and then told him he needed to find my son guilty. The same hearing officer, Jerry Foxhoven, who went on to head the Iowa Department of Human Services and is infamous for his massive email distribution to his employees on the merits of Tupac Shakur’s music. Parker also held pre-hearing meetings with only Jane Doe’s attorney. When the assault on my son finally came up in the hearing, Parker asked of my son, “And you didn’t say no?”

    Parker is the same Dean who heads the office of disability services at the University and refused to offer accommodations to my son who had language based learning disabilities as well as ADHD and anxiety. I demanded of Parker that he investigate the assault on my son and to accommodate his disabilities. Neither ever happened. Ironically, our university hosts The Harkin Institute, in honor of Senator Tom Harkin, the author of the ADA. Shameful at best.

    When I brought this to the attention of the Administration and the entire Board of Trustees, they determined that I had a conflict of interest and needed to be removed from the Board. They still haven’t investigated the assault on my son, 5 years later. Evidently, unlike Michigan State, The Ohio State University, Penn State, and USC, our University must be exempt from these laws.

    All any University cares about is their own brand and their own reputation. I was a Trustee for nearly 23 years; I know. Therefore, they should not be in this business, ever. EVER. Sorry, Brett.

    It might be time to write a book.

    1. SHG Post author

      As you’re already well aware, what happened to your son is now commonplace, a “casualty” in the gender war. Your being on the college board of trustees at the time, on the other hand, is fairly unique. It’s invariably true that people fail to appreciate the harm caused by well-intended notions until it touches them. As a trustee, you might have been in a position to stem this dangerous tide before your son become a victim of Title IX, but would you have believed it to be as harmful and unfair as you subsequently learned had it not touched your life?

      1. Tom Rossley

        You are absolutely correct. I was removed in July of 2016. So much has happened since then. I did what I could to alert the powers that be; they just didn’t want to hear it. The proof is that they are still burying it.

        1. SHG Post author

          The question is how to make trustees, admins, and maybe (dare I hope?) academics and students grasp the impropriety of destroying innocent lives for the sake of ideology before more harm is done? Much as some (though not all) courts are coming down hard on colleges, they see it as a battle to be fought rather than a lesson to be learned.

          1. Cynthia Garrett

            This is very difficult because, like you said, most don’t believe until it happens to them. This is why I try to take accused students with me when we schedule meetings in congress. At least they’re hearing the story directly from the impacted … some have cried and at least one ran out of the meeting, the latter in a meeting with Gillibrand.

            But even that isn’t always enough to penetrate the dogmatic …

            1. SHG Post author

              That people whose lives have never been touched by this fail to grasp the seriousness of the problem is no surprise. That’s always been a truism. But that exceptionally successful campaign to get people to buy into the alternate narrative, the rape epidemic, the unfairness to “survivors,” the trauma of whatever the day’s definition of rape might be, rape culture, etc., makes it a double hurdle to overcome. So it’s unfair to the accused, they say? So what? It’s rape, and we must stop it no matter what!

          2. N Jam

            SHG please know there are multiple academics who question all this. It’s important for us to distinguish the many scholars who work on university campuses from the mid-management bureaucrats who no longer see themselves as serving and supporting the academic mission but instead see themselves as teaching us professors and keeping us in line and complying with them. The bureaucrats push professors around and often now make higher paychecks than the average professor. I don’t think it’d be tough to persuade professors that this whole system needs to be scrapped. It contributes to administrative bloat and takes away from our core mission of scholarship, deliberation, and teaching students.

  4. Derek S Wilson

    “… Sokolow says, the system is a massive failure.” Sokolow’s tribe has been running the show since the 2011 DCL. Now they say it’s a massive failure. Why should we give them any control since they’ve already proved their incompetence?


        “We” is us folks sending our kids to college. You’re right – “we” have no control; wish we did. Title IX administrators will do whatever they like. I took his op-ed to say “we” should have confidence in the Title IX professionals to fix the problems. Then he concedes a “massive failure” that Title IX professionals have been working on for almost a decade. That should inspire our confidence?

        1. SHG Post author

          There was a little trick in this post, that while Sokolow saw the same failures as the rest of us, his fixes all came back to him. As you clearly see, his “trust us to fix our own mess” takeaway is entirely self-serving. Unlike Sokolow, most supporters of campus sex policing don’t admit that this has been a fiasco, a failure. That’s why Sokolow’s confession matters. We are not the target of his op-ed, as we were never confident that this biased system could work, but by conceding mistakes, he seeks to reassure his own tribe that he’s got this under control.

          As you say, it’s malarkey, but that’s us, and he’s not talking to us.

  5. Rengit

    Isn’t a critical part of the issue the wildly out-of-balance incentives created by the original 2011 Dear Colleague Letter and its various follow-ups, both generally and to individual universities, some practically demanding more findings (and harsher punishments) adverse to the accused? When the incentive structure is:

    1. Find the accused responsible: no consequences for your federal funding, except maybe the odd lawsuit for tens or a hundred or two thousand dollars stemming from an egregiously bad finding
    2. Find the accused not responsible: you’re not taking women’s complaints seriously (and remember every single case affects your aggregate total), multi-year DOE OCR investigation, we will take away tens to hundreds of millions in federal funds, lots of bad publicity

    it’s not wonder there’s a bias against accused students. Especially when the decisionmakers work for the institution that has its dollars at stake.

    1. SHG Post author

      That’s kind of true, but OCR has never actually defunded any college for this. On the other hand, colleges have paid out some significant settlements, and the sheer cost of maintaining a Title IX administration is not insigificant. So on paper, it would seem the financial incentives all favor conviction, but in practice they really don’t.

  6. B. McLeod

    “Title IX” hasn’t failed. A bunch of people trying to hijack it for purposes it was never intended to serve have failed. At least, in most of the cases that have moved on to the courts.

  7. Gregory J. Josefchuk

    I’ve been a follower and fan of your writings Scott but this article is quite possibly the best article you’ve written over the past 5 years. Everything you purport about Sokolow and the position he takes in his op-ed is 100% accurate. I would love to see you and Sokolow debate this issue in a formal setting. Heck, I might even be persuaded to provide the forum and host the event myself.

  8. Kevin

    Why does sokolow compare title ix to the criminal law? That’s the wrong framing, it’s closer to a civil proceeding.

    Here is a paper that might interest you.

    [Ed. Note: Deleted per rules.]

    1. SHG Post author

      No. Not even a little bit. There is no serious contention, even on the Title IX admin side, that this isn’t comparable to criminal law.

  9. ShallMustMay

    Thank you for allowing the poster to express his grievances. Your years of writing does not fall on deaf ears to those who experience the other end of the well or bench. Very well written & yes folks don’t believe until it happens to them. There is a bigger picture that comes into focus.

    1. SHG Post author

      I tend to trash most “victim” stories that don’t serve to illuminate problems from the lawyers’ or judges’ perspective. There are other places to enjoy a catharsis, and anecdotes are more often than not unhelpful, misleading and, quite often, untrue. Everybody is the hero of his own story.

      But every once in a while, they contribute to a better understanding.

  10. Richard Lucarelli

    Thanks for the article Scott. Having been personally affected by Title IX, your words helped my family members and friends better understand the Kafkaesque system we are battling.

  11. N Jam

    I have been trying to find out what “responsible employees” are required to report because my campus Title IX office told my academic department that we are required to report ANY disclosure by a student of sexual harassment or abuse, even if the event being disclosed took place 10 or even 20 years prior to the student’s being on our campus. I looked for info on this on the website of Office of Civil Rights on Title IX and it simply said that “students must not be subjected to unlawful harassment, either in the classroom or while participating in other education programs or activities. Title IX prohibits sex-based harassment by peers, employees, or third parties that is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the recipient’s education programs and activities (i.e., creates a hostile environment).”
    So why would a responsible employee have to report something that was not occurring (and never occurred) either in the classroom or while participating in educational programs or activities we offer on our campus or as part of the student’s education? Is this mission creep? Is there any recourse or will responsible employees be punished if we do not report these incidents that really stray from the language and purpose of Title IX?

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