In the course of a year, Sherry Warner-Seefeld went from high school teacher to activist promoting fairness for students accused of sexual misconduct. Explaining why, for her, means revisiting a night of shock and a phone call she will never forget.
She was grading social science papers on a cold, late January evening in Fargo, N.D., when her cellphone rang, she told The Washington Post.
It was her son, Caleb Warner, calling to tell her he had heard from a dean at the University of North Dakota in Grand Forks. A woman with whom he had had a short sexual relationship, the dean told him, had accused him of sexual misconduct, of nonconsensual sex, that she alleged had occurred on the night of Dec. 13, 2009.
The charge was filed after the winter break in January 2010, his mother said, after he had “made it clear to her that he was not interested in having a boyfriend-girlfriend relationship.” Then out of the blue this notice arrives, with its intimidating legal language.
She stopped grading papers and paced the room as she listened to him.
His innocent and ultimately childlike trust struck her. He was sure “there was some mix up or confusion”and that “all would soon be cleared up.” That was reinforced by his saying that the dean “told him, ‘don’t worry. An investigation will be done.’”
“He calls me,” Warner-Seefeld said, “and tells me this was happening. He says ‘no, I don’t have to have a lawyer.” He’ll just go talk to the woman and that’ll be the end of it.
“I teach sociology and I’m thinking, this is very much worse than he’s saying.”
It was worse and it would become worse still, about which more later.
The experience inspired her to co-found, with other aggrieved mothers, an organization called FACE (Families Advocating for Campus Equality) designed to assist other parents who received similar phone calls and, bewildered and scared, don’t know where to turn.
The FACE website features commentary critical of what’s happening on campus when it comes to sexual misconduct, cases drawn from the news media and from the courts, among them a critique of the film, “The Hunting Ground,” an editorial from the Los Angeles Times headlined “Can colleges handle sexual assault cases fairly,” and an advocacy piece from the John William Pope Center called “Title IX: How a Good Idea Became Higher Education’s Worst Nightmare.”
“FACE,” the site’s mission declares, “provides resources and support information for wrongly accused college students and their families who are caught in the present system. We reach out to lawmakers and decision-makers in our quest to change a system that serves no one adequately and leaves the havoc of unjustly dismantled lives and ruined futures in its wake.”
And most important, it offers information on how to get advice from an attorney or a parent who has been through it, and how to get involved in changing the way things work.
FACE’s co-founders know their words are fighting words to some. Advocacy groups and others devoted to battling the problem of campus rape, which Warner-Seefeld agrees is a problem, believe the issue isn’t that schools are too tough on the accused, but rather not tough enough.
But she and her partners are prepared to fight.
Among her compatriots at FACE, there’s Judith Grossman, an attorney, whose son, she writes on the site, was accused by a woman “more than two years after the breakup of their relationship.”
There’s Allison Strange, who signed on after her son’s February 2012 expulsion from Auburn University. “Blindsided by the absurdity of the process to which he was subjected and blatant disregard for his constitutionally guaranteed right to due process,” she writes, she and her son seek “to affect change in the way college administrators handle” sexual misconduct.
And there’s Jean Barish who describes herself as “the mother of a college son who was unjustly accused of sexual misconduct by his college.”
FACE in turned spawned a second group, called Save Our Sons, run by Alice True, who on her site recounts her own experience after her son — whose name and school she withholds to protect him as his case move through the courts — was expelled.
Like Warner-Seefeld’s story, hers, as recounted on her site, began “when the phone rang late one night.”
“’Don’t worry mom, I’m fine but I’ve been taken out of my dorm room and moved elsewhere. … A girl and I had sex a few weeks ago … she filed a complaint against me. … She agreed to have sex, I have it in writing. … I don’t know why she filed.
“Also Mom, I’m on suicide watch.’”
“Well,” writes True, “I slowly learned over the months, that the college would do nothing to help my son through their Kafkaesque college investigation and hearing process. But the college would do everything and more to help the girl in all ways possible at all times. When we asked to see what the charges were or other pertinent questions we were met with no comment or you have to figure that out for yourself.”
True, in an interview, declined to provide further detail to protect her son, whose case is in court where he is identified only as John Doe. He is now attending a different college, she said, and does not want him singled out.
“Because of the way the whole thing played out, I was so shocked and blindsided, I thought I need to do something,” she told The Washington Post.
She became involved in FACE and decided to branch out on her own, starting her Save Our Sons site, which, as she put it, describes through parents’ eyes and news articles what she calls “a toxic environment in the way these boys are treated and the way these accusations are made.”
“This site,” her homepage declares “is dedicated to the families whose college sons have been falsely accused of sexual misconduct. These families work tirelessly to clear their innocent son’s good name. Mothers and fathers are forced to fight in silence. It’s time we Save our Sons so our college men can stay in college and follow their career dreams.”
FACE, says Warner-Seefeld, advocates for legislation to correct what it sees as deep flaws in college misconduct adjudication procedures, advises parents on available legal assistance and provides through its website a meeting ground for parents who get phone calls just like she did.
They are parents who are at first shocked by word of what has happened to their sons, then confounded by the process confronting their accused children, which is often impenetrable to the untrained eye. (See for example, the University of Maryland Sexual Misconduct Policy and Procedures.)
They hear their son has been accused of “sexual assault,” which sounds like a crime and is indeed a crime in the criminal justice system. Reflexively, they think first of courts and trials, and the protections afforded defendants, like the right to counsel and the right to confront the accuser.
But colleges and universities do not deal with criminal charges. They treat sexual misconduct as a form of sex discrimination and the charges are civil not criminal, like other accusations brought under civil rights law, in this case Title IX of the Education Amendments of 1972. They are found responsible or not responsible, as opposed to guilty or not guilty. As such, their sons (and in some cases their daughters) are not protected by the same rules that govern criminal prosecutions.
And they are shocked, because while the accused may not face a prison sentence, he may face expulsion and lifelong stigma.
There’s no judge but rather an investigator who works for the university. And there’s no jury, but, on most campuses, small tribunals that may include a student and other university employees.
The Department of Education’s 19-page “Dear Colleague” guidance to schools encourages equity in the process but, as a recent law review article calculated, “only two sentences that address the rights of the accused.”
FACE, in turn, works with FIRE, the Foundation for Individual Rights in Education, a Washington-based organization advocating on behalf of individual rights at America’s colleges and universities.
“A lot of time people are kind of shell shocked,” said Samantha Harris, an attorney and director of policy research for FIRE.
“There’s a sense of powerlessness, and it’s an accurate sense of powerlessness particularly at private schools. People have no idea how few rights you have, especially at private universities. … And they think ‘they can really do this? They can ruin my child’s future and there’s nothing we can do about it.’ It’s extremely isolating.”
What they seek, along with FIRE, amounts to a wholesale shift in the way schools now adjudicate sexual misconduct charges. They want these cases treated more like criminal cases, with fuller protections for the accused, including the right to confront the accuser and witnesses, and most controversially, a standard of proof which would make it far more challenging for those alleging sexual misconduct to prevail.
Under the Department of Education’s guidelines — which are backed by the threat of cutting off funds to universities — a student can be found “responsible” and expelled based on a preponderance of evidence, meaning the allegation be “more likely than not” to be true. It’s the same standard used in civil litigation.
What FACE and others advocate is a standard of proof that requires “clear and convincing” evidence, meaning the evidence is “substantially more likely than not to be true.”
Semantically, it’s one additional word. Legally, it is “uniquely harder to meet.”
This is a much wider war now, however.
It’s being waged on and off campuses and in law reviews, with dueling letters from law professors on both sides. And it’s being fought out in the media and most important, in the courts which, after mostly staying away from the fray, are getting back into it, with the encouragement of groups like FACE and the well-staffed organization, FIRE, which, among other things, Samantha Harris said helps accused students find lawyers and provides continuing education for attorneys unfamiliar with the field.
“There are several attorneys,” she said, who have a nationwide practice.” But a lot of times, students or their parents “just open the phone book and find an attorney in a college town” with no experience suing colleges over their disciplinary processes.
As a result of the suits, judges, with much greater frequency, are entertaining suits brought by expelled students.
In March, U.S. District Judge F. Dennis Saylor, alarmed by Brandeis University’s failure to permit an expelled student “to confront or cross examine his accuser, wrote in John Doe v. Brandeis University in March, that “ … If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision. Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome, and a fair and neutral fact-finder, not predisposed to reach a particular conclusion.”
In this case, he said, the accused had made a plausible case that Brandeis denied him the “‘basic fairness'” to which he was entitled.
” … While protection of victims from sexual assault from unnecessary harassment is a laudable goal, the elimination of such a basic protection [as cross examination] for the rights of the accused raises profound concerns.”
In July, a panel of the Second Circuit U.S. Court of Appeals, reversing a U.S. District Court decision, ruled that a former athlete’s suit against Columbia University, which suspended him for a year for “sexual assault, nonconsensual sexual intercourse,” may go forward based on his claim that university officials acted with anti-male bias, in violation of Title IX, the federal education law that bars discrimination by schools receiving federal funds, the same law used by the Department of Education’s Office of Civil Rights in a 2011 “Dear Colleague” letter to prod schools — under the threat of losing federal funding — to adopt the lower standard of proof.
(The Dear Colleague letter is itself now being challenged in several lawsuits, one of them in Virginia, as illegal.)
Just last week, U.S. District Court Judge William E. Smith extended an order preventing Brown University from enforcing a decision it made in April requiring a student to move out of his residence hall and off campus. The judge had previously ruled that the student, identified only John Doe, had made a plausible case that Brown had disciplined him for violations of rules governing consent in sexual relations that were put in place 10 months after his misconduct was alleged to have occurred.
In a case against the University of California, San Diego, now on appeal in California, Judge Joel M. Pressman, of the Superior Court of California, ruled, among other things, that a sexual misconduct hearing against a male student conducted by a university tribunal was “unfair” because of restrictions placed on the student’s “right to confront and cross-examine adverse witnesses. … People involved in administrative proceedings have a right to cross examine witnesses,” he ruled, a right “‘considered as fundamental element of due process as it is in court trials.’”
The university, in its appeal, has taken issue both with the facts as set out by the judge and with his application of the law.
After reviewing court challenges to campus disciplinary procedures, Emily D. Safko concluded in the April issue of the Fordham Law Review that while “the prevalence of sexual assault on college campuses presents a problem in the United States today,” the reforms instituted as a result of the government’s “Dear Colleague” letter “do not appropriately balance the interests of the students and the schools and unfairly overlook the rights of the accused. … The attempts of colleges to reform their policies to curb sexual assault and to avoid loss of funding for Title IX noncompliance has created a hostile environment for accused students. While sexual assault on college campuses is in need of further attention, schools have tilted the scales too far in favor of accusers, thereby seriously threatening the rights and futures of wrongfully accused students.”
Defenders of the existing process have their own websites and organizations, among them EROC (End Rape On Campus) whose co-founder, Caroline Heldman, has attacked law suits brought by accused students as “an incredible display of entitlement, the same entitlement that drove them to rape.
“These are students who were found responsible after an extensive adjudication proceeding that is heavily biased in favor of alleged perpetrators. We don’t have a problem with false rape reporting, we have a problem with rapes not being reported, a problem with adjudications that favor perpetrators when they are reported and a problem with light sanctions when a student has been found responsible for assault/rape.”
It is true, stories of students unfairly accused are more than matched by stories of campus assaults going unpunished, or lightly punished or of the trauma suffered by victims, most recently documented by the film, “The Hunting Ground” and in a series in the New York Times that was a 2015 Pulitzer Prize finalist in national reporting.
A Washington Post-Kaiser Family Foundation survey published last year found that 20 percent of young women who attended college during the previous four years said they were sexually assaulted. Many others said they endured attempted attacks, or suspected that someone violated them while they were unable to consent.
Indeed, about the time Caleb Warner’s case arose, college women had begun going public with their stories of the trauma not only of their campus rapes, but also of their own deep frustrations at their inability to get action from the schools, promptly, if at all.
In 2010, the Center for Public Integrity and NPR, put out a powerful joint investigation called “Sexual Assault on Campus, A Frustrating Search for Justice.”
Their survey and interviews with sexual assault victims revealed that “students who have been the victim of sexual assaults on campus face a depressing litany of barriers that often assure their silence and leave their alleged assailants largely unpunished. … By silencing victims and turning judicial hearings into something like kangaroo courts, colleges prioritize their own reputations over victims’ safety and support and turn their campuses into hostile environments of victims of sexual assault.”
The Dear Colleague letter followed in April 2011. It reiterated that while sexual assault might be treated as a criminal matter outside the world of higher education, inside the world of the campus it was something else. Many allegations involve consensual sex followed by nonconsensual sex, without witnesses. Many involve hookups, as The Post survey showed. Many involve alcohol. They are not the kinds of cases criminal prosecutors feel they can win in a court of law.
Disciplinary procedures vary from school to school. Generally, however, investigations are conducted by a single fact-finder employed by the school, perhaps a Title IX officer; referred if necessary to a “tribunal” that can include students or other employees of the university. There may be a hearing based on the investigator’s findings and an appeals process usually involving a high ranking university official, such as a provost.
It was in this context that Caleb Warner’s case played out, after his mother got that phone call.
“Three days later they get to this hearing. They found him guilty that night and he’s immediately expelled. He’s not to set foot on campus. He falls to the floor and starts crying. That’s what he did for hours, lay on the floor and sob, fall on the floor and sob.”
The case of Caleb Warner might have ended then and there and never become public but for what happened next.
The family learned that the young woman had repeated her complaint against Caleb to the Fargo police, which assigned a detective to interview her.
The police investigator found so many holes and contradictions in the woman’s version of events that the police and a prosecutor concluded she was lying and charged her with filing a false complaint. She failed to show up for a hearing, however, left town and has not been heard from again, according to Warner-Seefeld.
Surely this would save her son from expulsion, the family thought.
But when the university was informed of the woman’s alleged lies, it refused to reopen Caleb’s case, saying, among other things, that the fact that she was accused of lying to the police did not mean she did. Besides, Caleb’s deadline for appeal or rehearing had passed.
Sherry Warner-Seefeld went into full mother fury. She contacted FIRE which, pointing out, among other things, that it was “startling” that the UND tribunal and the police department could reach such different conclusions, threatened to sue UND. Warner-Seefeld hired a public relations specialist to generate publicity about what she considered a horrendous injustice. The publicity generated buzz in North Dakota’s state legislature.
Harvey Silverglate, FIRE’s co-founder wrote a tough op-ed in the Wall Street Journal about the case, headlined “Yes Means Yes Except on Campus.”
Under siege, the university handed off the case to a different provost, who on Oct. 10, 2011, readmitted Caleb Warner.
“The compelling piece of evidence” that “was not, and could not have been available at the time of the hearing is the professional judgment of a trained law enforcement officer that there was probable cause to doubt the veracity of the information provided to the officer by the complainant,” wrote Paul A. LeBel, provost and vice president for Academic Affairs at UND. “It is the fact of that professional judgment having been reached, rather than any conjecture about the truth or falsity of what the complainant said, that calls into question” the decision to expel Caleb Warner.
Caleb Warner chose not to return and never did. His mother said he is happy, and earning well, driving a package delivery truck.
She co-founded FACE with the goal of helping other families in similar situations and quickly found partners, each with their own experience with campus disciplinary procedures.
“All of the families that were involved in founding FACE had reached a place where they thought “this is awful. And this is the United States and we’re going to do what we can to bring this to national attention. Our sons were done. Whatever had happened, had happened and we turned ourselves to a wider battle.
“Some of these kids are literally getting a letter or an email just telling them they’re expelled. They don’t even get what they’re accused of.”
The counter-argument is being made as well. As Jessica Valenti wrote in The Guardian:
The epidemic levels of rape on university campuses has a lot of people really worried. Unfortunately, they’re worried that campuses are going “too far” in their effort to punish rapists; that young men will be wrongly accused; that campus sex policies will criminalize consensual sex; that the rape epidemic is more ideological rhetoric than actual lived experience.
They are worried, it seems, that stopping campus rape and helping the victims of it — most of whom are women — will hurt young men. It seems odd that, at a moment when we’re finally making headway on campus assault — with White House-backed initiatives, rape victims sharing their stories, and students mobilizing to make their campuses safer and more responsive to sexual violence — the response from some quarters is to worry for men’s futures rather than celebrate women’s potential safety.
Mothers like Warner-Seefeld are undeterred.
“You just don’t throw away the lives of all these innocent people just because you’re worried about that one guilty one,” she said. “That’s the same way we think about our criminal justice system. … We’re talking about an action that rises to a crime and probably should not be handled by administrators.
“I’m a social science teacher. We have a strong social norm in our culture to protect women,” she said. “When we hear that something awful has happened to a woman, especially a young woman, who we still see as young and innocent, the girl next door.
“And then we have, yes, a government, that has chosen as one of their issues to reduce the number of sexual assaults. It’s a great laudable issue. FACE has no trouble with the idea.”
But now, she said, “this idea has taken hold that we live in a rape culture, that we’re telling our young men it’s okay to rape. I’ve taught a lot of male students, and that’s just not true. We don’t live in a rape culture. My dad isn’t a rapist. My grandfather isn’t a rapist. Those young men don’t think it’s okay to rape.
“It makes it difficult when you have this bugle call, the war call, ‘we have a rape culture.’ I liken it to McCarthyism. We’re so certain that all these people are raping women on college campuses and now if anybody says, ‘that person did it,’ all of a sudden it’s an automatic guilt.
“And what a horrific thing that has turned out to be.”