Every once in a while, someone lacking a firm grasp on the concept of impartiality says the quiet part out loud. When it comes to Title IX hearings, that person is often Brett Sokolow, president of the Association of Title IX Administrators (ATIXA) and head of a college “risk management” consulting company. Sokolow is a lawyer, though you would be hard pressed to figure that out from his grasp of the basic principles of law.
This Tip of the Week allows us to focus on two challenges – process delays and the resultant staleness of witness recollection.
To no one’s surprise except Brett, providing an accused with due process is more work than conducting an inquisition, and he may be correct that few campus investigators are sufficiently competent or inclined to do so. But the more curious grievance is that delays in reaching conclusions is creating a secondary problem, that witnesses can’t keep their stories straight.
Drawing out the process has many negative side-effects, though some parties and their advisors are eager to do so. For many colleges and universities, the resolution process of a single, simple complaint can take four to six months. For some, it is even taking a year or more, especially when the complaints are complex and/or involve multiple witnesses.
How long it should take to conduct an investigation isn’t something that can be “fixed,” as if every case is the same. More witnesses take more time. More complaints clog the system. An investigation takes as long as it takes, provided the investigators are diligent in their efforts. The failure of diligence on the part of investigators is a problem for colleges; if they can’t hire sufficient or competent investigators, is that the fault of the accused?
But these months of “delay” create a problem.
Witnesses have very little recollection of what happened, or what they told to investigators during the investigation. As a result, in the hearings we are facilitating, we are seeing a lot of witnesses contradict their statements to investigators, without even realizing it. They come across as lacking credibility, when the real issue is often that so much time has passed that their recollections have dimmed. Thus, their more contemporaneous statements to investigators in the investigation report have become far more important and accurate than their testimony at the live hearing.
Months? Maybe a year? In Sokolow’s mind, this means “so much time has passed that their recollections have dimmed” such that witnesses can’t get their stories straight? One might get the sense that Sokolow has never done an actual trial, where it almost invariably takes years between the underlying complaint and trial, and yet witnesses magically manage to remember. Are college witnesses possessed of some remarkably failed memory that they aren’t capable of doing what every other witness in every trial is constrained to do, remember the facts?
It’s hardly unusual for counsel to prepare witnesses in advance of trial. Indeed, any competent lawyer does so, both having them review their memorialized statements, reports, grand jury testimony, whatever is available, together with explaining how to answer questions and what questions they are likely to face. But these are the lawyers for parties, doing their job on behalf of their clients.
Sokolow, in contrast, purports to be the college neutral, required by the regulations to be impartial. If witnesses can’t remember, it’s not the proper place of a neutral to correct their memory. If witnesses can’t tell the same story twice, it’s not the proper place of a neutral to “correct” their testimony to conform with whatever story they told the first time around. It’s almost as if Sokolow lacks an understanding as to the point of giving testimony and, even more importantly, the point of a story being challenged by the accused.
As a result, in the hearings we are facilitating, we are seeing a lot of witnesses contradict their statements to investigators, without even realizing it.
Witnesses contradicting themselves isn’t a bug, but a feature. That’s the very point of testimony, to distinguish lies from truth. But to Sokolow, the point of this process is to make sure deceitful witnesses aren’t “tricked” into telling the truth, but maintain a consistent story. To this end, he’s come up with means to undermine the efficacy of hearings.
- We stay in touch with the witnesses throughout the resolution process to keep them engaged, to help reassure them that we are taking action (though it may not seem like it), and to inform them of any delays and our anticipated timeline for a hearing.
- We provide witnesses with copies of their investigation statements/interviews prior to the hearings to ensure they are refreshed on their testimony. It may have been many months to a year since they were interviewed, and they may not recall specifics at the hearing. Students are rarely organized enough to have kept the copy of the statements they were sent by the investigators to verify accuracy, and again, it may have been many months or even a year prior.
- We text and email the witnesses several times during the week before the hearing to keep them engaged, to keep them apprised, and to ensure they know when and where to show up.
If any of this was done by an adversarial party to a proceeding, it would be neither remarkable nor inappropriate. But Sokolow purports to serve the interests of the neutral, the college, which by regulation is required to be impartial toward the matter so that it can render a fair resolution.
Yet Sokolow makes it absolutely clear that his “tip” is for theoretical neutrals to fulfill the role of a partisan, an adversary in the process, to assure that the outcome is exactly what it’s supposed to be, that no witness against the accused fails to show, that no witness gets the story wrong, that no witness is “tricked” into telling the truth rather than the story the college wants them to tell. It’s no dirty little secret to Sokolow, the president of ATIXA, but a “best practice” to be integrally involved in “fixing” the testimony.
None of this should come as a surprise, in the sense that campus tribunals exist to produce the result that colleges seek to reach, but the fact that Sokolow fails to even grasp the impropriety of saying this out loud, that the supposed neutrals in the system are performing the job of adversaries to assure that outcome reflects a shocking cluelessness as to what a fair and impartial system is supposed to be. It’s no shock that the neutrals are biased, but it’s amazing that they are this happy to openly says so.
H/T KC Johnson
Definitely not surprising. I think its one the foundational tenants of the mush heads.
When reality causes ones narrative to breakdown, you fix reality.
Nobody would expect a witness to repeat a story word for word. As you tell the same story, you naturally refine what you say. If you notice a person doesn’t understand a particular part and ask for clarification, it’s natural to offer that same clarification in a later telling without prompting.
That’s wholly different from giving contradictory statements.
And if I recall from KC Johnson’s writings, one of the repeated complaints is that schools don’t allow the accused to see what someone has said happened, yet they seem to be falling over themselves to make sure the complaintants know every statement they made and how they made it.
It’s bad enough that he seriously contends that it’s just too hard to remember the facts for months, MONTHS!!! But that Sokolow has no idea that what he’s saying reveals how flagrantly prejudiced he and his ilk are is beyond belief. The man is a moron.
Sokolow might own up to being prejudiced; his organization is at root a trade group of HR administrators, but of universities instead of corporations and students instead of employees. He’s going to advocate for a position that makes the job of Title IX administrators easier, and reduces the risk of liability for the colleges, so until liability starts being imposed for suspending too many male students, or for being biased against the accused, Title IX admins have no financial incentive to care about the interests or rights of accused students. Since liability can only be imposed for failure to prevent harassment, sexual assault, and whatever other Dear Colleague Letter definitions, Title IX admins want the process to suspend or expel the accused to be as easy as it is for a business to fire someone.
Sokolow’s org purports to represent the colleges, which as a matter of rule, must be impartial. They aren’t, but they must appear to be. That’s why openly exposing their bias here is such an issue. It’s no different than your judge announcing that he loves cops, but try your case before he convicts.
Interesting to hear him characterize Title IX offices as “labor markets.” Presumably some witnesses are better than others not only for the accuser’s case but also for the vitality of the ATIXA labor market. But if we can’t trust market forces to equally and impartially shepherd witnesses who can we trust.
I think the notion of “law” is simply different in his alternate universe, where it means doing the will of the outraged mob at any given moment. They used to have a tradition like this in ancient Athens, so it really comes to the modern world as a bit of a failed experiment.
A feature vs bug debate cannot be resolved by declaring that you’re right. You think it’s a feature; he thinks it’s a bug. In corporations these disputes are usually decided by managers who know nothing about programming, and the important question is “Do the users like it?” If they like it, it’s a feature. If it can be removed without any complaints, then it must be a bug.
Sokolow is no idiot. He firmly believes that the failure of the system to reliably convict the innocent is a bug, and he feels confident enough about it to say it out loud. If people stop attending universities, then we will see that he was wrong. I’m not hopeful.
Law isn’t the same as programming. We have a Constitution, statutes and caselaw. We have jurisprudential principles. These are the things enable those of us who are familiar with law to distinguish between bugs and features. That non-lawyers prefer bugs to features doesn’t change their nature, even if you lack the capacity to grasp why.
Sokolow is a lawyer. In my work the feature vs bug debates are between programmers. Here it is a debate between lawyers. This non-lawyer agrees with you about what the law should be, but if the users go with Sokolow, then he will win. I hope that I’m wrong.
You give being a lawyer too much credit. Biased adjudication is not within the ballpark of competent law. No doubt his “users” will approve of what he says because that’s the outcome they want. That doesn’t make it good law, as reflected in the decisions of a couple hundred federal courts thus far.