SMU Violated Title IX, Failed Victims in Handling Sexual Assault Claims, Feds Say

In late September 2012, an SMU freshman, just a month into his life on campus, went to university police to report that he'd been sexually assaulted at a frat party. He hoped the school could help -- help protect him from his alleged assailant, help save him from further embarrassment on campus.

Instead, the student says, school officials did basically the opposite. They sent a campus-wide alert, over his objections, that made it clear he'd gone to police. While the police investigated, a high-ranking school official discouraged him from pursuing charges. They did nothing meaningful to protect him from retaliation, the student says, and when he was bullied out of his original dorm they moved him to a floor where the resident assistant was a frat brother of his alleged attacker.

The student makes these allegations in a lawsuit he filed against the school in September. Since then, SMU's lawyers have been busy disputing them, vowing that the school acted properly. But the U.S. Department of Education, after a sprawling investigation into the school's response to this and other incidents of sexual harassment and assault on campus, has found that SMU failed the student in the aftermath of his alleged assault, creating a hostile environment that eventually forced the student to drop out of school.

The Education Department's Office of Civil Rights investigated three complaints against the school -- two by students, one by an employee on their behalf -- between 2011 and 2013. According to an announcement issued this morning, investigators found, among many other problems, that the school "violated Title IX by failing to promptly and equitably respond to student complaints of gender-based harassment and sexual violence, including sexual assault, and to reports of retaliatory harassment." As a result of the investigation, the university has entered into an agreement with the Department of Education to address its mishandling of sexual assault and sexual harassment on campus.

The OCR investigation started in 2011, when a female law student filed a complaint about the school's response to her claim that a professor sexually harassed her. According investigators' findings, contained in a letter sent to the school today:

Complainant 1 informed OCR that during the spring 2010 semester the Professor (Professor) made gender-based comments to and about her. Specifically, Complainant 1 informed OCR that at both the Professor's home and during class sessions, the Professor referred to her as "prom/beauty queen," "hired bimbo," "just one of those girls who thinks she's so pretty," "bitchy," "catty," "bitch," and "doody blonde," and lectured the class that not paying attention to details was "like looking at a beautiful woman only she's wearing dirty panties."

After the student complained to the law school, a faculty ethics committee found the professor violated university policy and suggested, among other sanctions, that the professor stop meeting with students at home, receive sexual harassment training, have his class monitored and issue a written apology to the student. SMU President R. Gerald Turner disagreed that the behavior violated policy, calling the outbursts "objectionable and unprofessional," but directed the law school to take "appropriate corrective action." In the end, the law school followed most of the faculty's recommendations but declined to monitor the professor or, remarkably, to force the professor to apologize. The school never notified the students how the professor was punished, the letter says.

A second complaint came in March 2013, from a former SMU employee. It was broader: She suggested the university generally "had a pattern of not responding appropriately to complaints of sexual harassment" and that students didn't know what to do when sexually assaulted. If investigators found it too vague to pursue, a third complaint, a month later, narrowed their focus.

That complaint, the most troubling, was the one made by the freshman who said he was assaulted after a frat party on September 22, 2012. According to a lawsuit he filed this fall, the student, a prestigious Hunt Scholar, was invited by a well-known sophomore to a party sponsored by the Sig Ep fraternity. Interested in pledging the frat, he accepted the invitation and went with a friend. (The Observer doesn't identify victims of sexual assault; we're also not identifying his alleged attacker, because he's no longer facing criminal charges.)

According to the lawsuit, sometime after midnight, outside the frat house, the older student convinced the freshman to cut through an alley near the frat house so he could smoke a cigarette. But when they reached the alley, the lawsuit claims, the older student "used physical force" to force the freshman to perform oral sex, threatened him, and repeatedly told him that if he didn't comply he would never be invited to join Sig Ep. Later, the lawsuit claims, the sophomore led him into an even less visible area and forced him to perform more oral sex.

It's what happened next that prompted the feds' investigation. The next morning, though reluctant to pursue charges, the student went to SMU police and told them what happened. The police, his lawsuit claims, assured him they "would not reveal his personal information, nor would they reveal any identifying information" that might alert his attacker that he'd filed a report. He left the police department, unsure what to do next.

As he walked back to his dorm, the student got a call from Linda Eads, SMU's assistant provost. Come to my office, she said. He did, and when he got there, he says, she showed him a draft of a campus-wide crime alert the school was prepared to issue. To his horror, he says, it contained "several specific facts" about the incident, including the location and the fact that it was a male-on-male assault.

The student feared retaliation and told her so; she assured him it would be changed to protect his identity, "particularly since that information was not necessary since SMU already knew the perpetrator's identity," the lawsuit claims. But it went out exactly as she'd presented. When the student and his parents met with the provost to voice their displeasure and suggested legal action, she told them "you have no damages," according to the lawsuit. "She then conceded that [the victim] may have suffered 'just a little pain and suffering,' but no considerable damages."

The harassment rained down, the student says in his lawsuit, in the form of bullying, intimidation, "mysterious phone calls and knocks on his door." Fraternity members would also "smile at him in the cafeteria, furrow their brows in an exaggerated way, yell across the cafeteria" at him, he told investigators, and "text him invitations to come to the fraternity." But when he complained about the harassment, they moved him to a dorm room on a floor whose RA was a Sig Ep member.

If the university had questions about the freshman's claims, evidence collected by its police department seemed to put them to rest, at least temporarily. The day after the alleged assault, officers recorded a phone call between the two students.

"You know I didn't want to do that," the student said, according to an arrest affidavit.

"I know you didn't, but we have to say it was consensual or lawyers, parents and the school will be involved," the older student replied.

He was arrested on sexual assault charges and, two months later, was indicted by a Dallas County grand jury. But the charges were later dropped by prosecutors, who cited, vaguely, "new evidence." By the end of 2012, both students had dropped out of school.

The freshman filed a formal complaint in April 2013, alleging that the university had violated Title IX, the section of federal education law that protects students from sexual discrimination. Investigators interviewed the provost, university police, the victim and others on campus. In the letter sent to the university today, it gives the university some credit -- for investigating the incident itself, for promptly suspending the alleged attacker, and for offering the victim counseling, a room change and academic lenience. But the university failed to investigate his claims of harassment and intimidation, the feds say, subjecting him to a "sexually hostile environment" on campus that eventually led to his dropping out.

In addition to these three complaints, investigators reviewed files related to 50 sexual harassment and assault complaints received by the university between the 2009-2010, 2010-2011 and 2011-2012 school years. They weren't impressed with what they found:

The University did not routinely issue specific findings or maintain witness statements or notes of conversations. Many files did not show that complainants were offered interim remedies in all cases. In several instances involving both complaints against students and against faculty/staff, the files did not indicate that the complaining party was notified of the disposition. In one case, when the University received a report from a student that she had a "quid pro quo" relationship with a male professor, the University took steps to remove the professor from campus; however, the investigative file did not provide any information to indicate whether the student was notified of the disposition or provided any individual remedies, such as counseling or academic support.

As a result of the investigation, the school has agreed to a variety of changes, including better implementing and publicizing the requirements of Title IX and reviewing past claims of sexual assault and harassment. The university also formed a task force in the midst of the investigations that school says will improve its handling of sexual assault and similar incidents.

The agreement "confirms SMU's commitment to provide a safe and supportive campus environment and to follow the Department of Education's Title IX guidelines as they continue to evolve," the university said in a statement this morning. "We appreciate OCR's recognition of the new policies and procedures SMU has implemented prior to and during its investigation, as well as recognition of the work of the President's Task Force on Sexual Misconduct. Although we take issue with some of OCR's conclusions and generalizations, we look forward to taking additional actions as outlined. The well-being of our students is our highest priority."

As for that freshman: The school has agreed to reimburse him for any costs associated with his schooling or counseling from his first semester on campus. But if his lawsuit is allowed to proceed -- SMU is trying to get to get it thrown out -- the school's handling of the incident may cost it much more in court.

"We believed all along the case had merit," the student's attorney, Michael Guajardo, said this morning. "This certainly confirms it. ... SMU has had a long culture of trying to sweep things like this under their rug and keep it in house. Hopefully this will be a wake-up call for them."

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Joe Tone
Contact: Joe Tone