The Chronicle of Higher Education
March 4, 2016
By Robin Wilson
When efforts to resolve a federal investigation into how the University of Virginia handled reports of sexual violence began in earnest last spring, campus officials were corresponding with a lawyer in a U.S. Department of Education field office. By the time the case was resolved in September, tense legal wrangling had reached the highest levels of the university, the state, and the federal agency.
A trove of nearly 2,000 pages of communication obtained under the Freedom of Information Act shows an increasingly torturous set of negotiations, with UVa steadily ratcheting up the pressure on the department’s Office for Civil Rights to soften findings that the university had a sexually hostile environment.
The talks between federal and campus officials stalled and resumed as the two sides swapped documents back and forth, fine-tuning the settlement in line with their respective interests: strict enforcement for the agency and, for the university, acknowledgment that it had taken positive steps. At times they would "look forward to resolving this review collaboratively" (UVa) or express gratitude for "moving us forward so productively" (OCR), and then they would snipe at each other.
A resolution almost didn’t come, but finally, after a flurry of emails and a telephone call late one Saturday night between UVa’s lawyers and Catherine E. Lhamon, assistant secretary for civil rights, the two sides reached a finely parsed, fragile agreement. A negotiated "joint positive press release" projected collaboration. But the détente would last all of one day before differing interpretations of the agreement descended into bickering.
Under the gender-equity law Title IX, the federal government is now investigating claims of sexual violence at 169 colleges. The enforcement process has grown longer and tougher, and the findings more damning. The documents in the UVa case show how high the stakes can get when a university’s reputation is on the line — and how administrators try to mitigate the fallout.
The documents The Chronicle reviewed cover the period of negotiation from May through September 2015, beginning with Roscoe C. Roberts, university counsel, requesting a meeting with federal officials "to further discuss the proposed findings." Samantha Shofar, a senior lawyer in the Office for Civil Rights’ Washington field office, responds: "Please understand that the findings are not ‘proposed’ and are therefore not negotiable."
Despite the agency’s protocol of not sharing its letter of findings with campus officials until they sign an agreement resolving an investigation, Mr. Roberts and Teresa A. Sullivan, UVa’s president, pleaded for the letter, eventually got it, and won significant revisions. The changes shortened the time period the university was found to have violated the law and minimized references to specific cases, as well as to the deference the office initially said UVa had afforded fraternities to investigate reports of assault and determine sanctions.
Peppered among hundreds of pages of emails, letters, footnoted legal arguments, and rounds of revisions are the finest of details. Two parking passes or three when federal officials visit Charlottesville? Thirteen "gourmet box lunches buffet style" from Vie de France Capital Gallery when campus officials travel to Washington. And, when they finally sit down with the assistant secretary, a compliment from Mr. Roberts to Ms. Lhamon: "I really enjoyed meeting you yesterday, and I especially enjoyed your delicious cookies." (Anticipating a tense meeting, she had baked them herself.)
‘Hostile Environment’
As the negotiations dragged on, UVa tried to persuade the civil-rights office to back off its determination that the university had allowed a hostile environment for students when it came to sexual assault.
The university tried to avoid any form of that harsh finding. William H. Goodwin Jr., vice rector of UVA’s Board of Visitors, wrote to the civil-rights office’s chief lawyer in August, asking the office to "take the proverbial one step back."
"We really would like to resolve our issues," he wrote, "but do not believe we can agree that UVA has been a hostile environment." Campus leaders invited three top civil-rights officials to a board retreat, reassuring them that the meeting would be closed under public-records law. (The officials respectfully declined.)
Meanwhile, the two sides kept trading versions of a resolution. That document, which accompanies a letter of findings to settle an investigation, spells out what a college must do to comply with the law. The versions themselves were exempt and not provided under the FOIA response.
In mid-August, the civil-rights office declared that negotiations had reached an impasse. Virginia’s governor, Terence R. McAuliffe, wrote to Arne Duncan, the education secretary, decrying the "adversarial" enforcement process. Ms. Sullivan also appealed to Mr. Duncan, attaching a 41-page legal brief that denounced the department’s investigation as "deeply flawed." She argued that "a finding of hostile environment is not supported by the law, the facts, or the equities."
UVa would settle the investigation, the president wrote, only if in signing the resolution, the university retained the right to contest the findings, which it still had not seen.
Campus officials gained leverage by mentioning relevant documents that the civil-rights office had apparently not considered, and federal officials seemed to acknowledge that. In late August, Mr. Roberts wrote a lengthy email proposing that the letter of findings first be shared only with the university, not publicly, "given our belief that the factual foundation relied upon by OCR in making its findings," he said, "is insufficient or inaccurate."
The university got the letter five days later. Two days after that, Ms. Sullivan called it "replete with factual errors." Federal officials withdrew it and formally requested additional material from the university, taking four pages to enumerate everything it wanted, including all records related to reports of sexual assault from 2012-15.
The request gave the university 15 days to produce the information, a timeline that Mr. Roberts called "impossible."
The two sides then agreed to resolve the investigation before it was complete. "These were certainly very intense negotiations," Ms. Lhamon told The Chronicle last week. "We felt strongly about the need for reform at the university and we were very concerned about the information we were learning. The university felt very strongly about its position and wanted to be sure it was heard."
University officials, in a written statement last week, said the university had been "providing additional information and clarification when appropriate to correct factual errors and better inform OCR as it was bringing its review to a conclusion."
The civil-rights office ultimately backed down somewhat from its original findings, saying a hostile environment had existed not for the full period of the investigation (2008 through the fall of 2014), but only through 2012, with three discrete exceptions since then.
Setting the exact terms of the settlement, though, still proved difficult. UVa argued for the phrase "basis for a hostile environment," which made it into the letter of findings and the press release, which was also the product of days’ worth of revisions. But so did the university’s failure "to take sufficient steps to eliminate the hostile environment."
The day after the announcement, a spokeswoman for the department told the university she had clarified the phrase to reporters as "evidence a hostile environment existed." When lawyers representing the university balked at that, Ms. Lhamon rebuffed them. The explanation was accurate, she wrote, "as I know you both know."