A resolution to a five-year-old Title IX complaint | Bleader

Tuesday, November 27, 2018

A resolution to a five-year-old Title IX complaint

Posted By on 11.27.18 at 06:00 AM

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click to enlarge Olivia Ortiz in 2018 - COURTESY OLIVIA ORTIZ
  • courtesy Olivia Ortiz
  • Olivia Ortiz in 2018

I first met Olivia Ortiz in the spring of 2015, which was three years after she'd accused her then-boyfriend of sexually assaulting her when she was a second-year student at the University of Chicago, and two years after she'd filed a Title IX complaint with the U.S. Department of Education's Office of Civil Rights about the way the university had handed the accusation. The linchpin of Ortiz's complaint had been that Dean Susan Art, the administrator who had handled her initial accusation, had offered to resolve the issue through an informal mediation session between Ortiz and her ex-boyfriend, after which she told Ortiz that the university didn't consider her complaint sexual assault. Only afterward did Ortiz learn that informal mediation wasn't an appropriate disciplinary measure for an accusation of sexual assault, both according to the university's own policy and two "Dear Colleague" letters issued by the Department of Education, one in 2001 and one in 2011.

Art has since retired and has not responded to the Reader's request for comment by e-mail or through the university. University officials have been willing to discuss the school's policies but said in a statement: "In view of the limitations imposed by federal law that protects student privacy, the University cannot comment on administrative processes concerning individual students."

When Ortiz filed her initial complaint in April 2013, she was told that OCR was working its way through a substantial backlog of cases going back to 2011, but that the goal was to have a decision within 180 days. Around the same time, several other U of C students filed Title IX complaints, and OCR decided to look at them all together, in a systemic investigation of how U of C handled accusations of sexual assault.

By the time I talked to Ortiz two years later, she was still waiting for an answer from OCR. She'd also withdrawn from school three times, twice because of mental health issues related to her assault and from previously-undiagnosed manic-depression and once because of online harassment. She'd also become an activist for sexual assault survivors' rights and was part of a group of students who had applied pressure to the university to change the way it received and processed sexual assault complaints.

That was three-and-a-half years ago. Periodically, Ortiz would hear that OCR would get her complaint resolved soon. In May 2016, she heard that they were getting ready to finish up. The election happened. The Trump administration had very different ideas from the Obama administration about the nature of sexual assault complaints. Last July, more than five years after she filed her original complaint and six years after the initial assault, she finally got an answer.

OCR found no evidence of Title IX violations either in the case of Ortiz's complaint or the U of C's policies as a whole. The letter cited the interim guidance created by the Department of Education in 2017 which found informal mediation an acceptable means of dealing with accusations of sexual assault.

"They said my complaint, on its face, was wishy-washy and that I had never complained of sexual violence," Ortiz says now. "I had requested my [counseling] records via FERPA [Family Educational Rights and Privacy Act]. There were handwritten notes. There was penetration [in Illinois, this fulfills the legal definition of sexual assault]. Even the dean of students perceived it as sexual assault. It's bizarre. My lawyer said that during the Obama administration, I would have had a very different result."

"There's definitely been a shift at OCR," agrees her lawyer, Christine Evans of the Chicago Alliance Against Sexual Exploitation (CAASE). "There's been denial of opening investigations completely, and they've been wrapping up cases that have been open for a long time in a way to ensure no violations are found. I am not the only one to see this. I'm on a Title IX listserv and in a regular phone call. Students have been waiting years and years for responses from OCR, and the decisions have been throwing out every complaint." (Evans has been working on Ortiz's case since 2014; Jennifer Escalante, the CAASE lawyer who filed the original complaint on Ortiz's behalf, left the organization in 2013.)

In our phone conversation, Evans could barely contain her anger. "The whole letter focused on the mediation issue," she says. "That was in 2012. We filed in 2013. We waited until 2018 [for a resolution]. Somehow it feels like they're not operating on good faith. What we’re seeing is OCR hitting a timing sweet spot. OCR waited to decide Olivia’s case until they had more favorable guidance to say mediation might be OK. They made their decision based not only on guidance put out in 2017 but also the university’s current policy. They did not look at the policies in place in 2012, nor the guidance from government. Instead it was, 'what does it say now?' It's as though they said, if we just wait long enough, maybe we’ll have guidance, and rules that say the U of C did everything fine. It flies in face of the legal rule that you do not retroactively apply laws."

On November 16, the day I spoke with Ortiz, the Department of Education released a press release from Secretary of Education Betsy DeVos announcing its proposed Title IX policies. Taken at face value, they seem to be supportive of students, but Ortiz finds them disturbing, particularly the part about "the opportunity to test the credibility of parties and witnesses through cross-examination." Ortiz sees the new rules as the administration's way of protecting perpetrators and schools, not victims. Evans agrees.

"Schools were pushed by the Obama administration to finally address issues of gender-based violence that were happening on campus between students, even by staff and faculty, they weren't doing great even in that situation," she says. "All we’re seeing is backlash and rollback. We're not going back to where we were in 2010. We're going back to where survivors have one choice, to leave school or suck it up and go to school with the person who abused them. It's a terrifying choice."

The DOE rules have to go through a notice-and-comment period before they become official guidance. Evans and her colleagues plan to comment vociferously.

Ortiz thinks that assault victims may have a better chance of recourse by going through state, not federal, laws. But she's been heartened by the news, released last week, that DeVos has backtracked on a decision she made last year about how to handle the backlog of OCR complaints: after a lawsuit filed last summer by a coalition of civil rights groups, the secretary has agreed to restore the appeals process.

Meanwhile, Ortiz has moved on with her life. She graduated from U of C in 2016. When we spoke in 2015, she'd told me that her goal was to become a lawyer specializing in Title IX. This past August, she started her first year of law school at the University of Washington.

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