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The trouble with Title IX: Holes in the system

Posted at 11:56 PM, May 12, 2016

INDIANAPOLIS -- A two month investigation from Call 6 Investigates reveals holes in a system meant to protect your son or daughter while they’re at college.


Among the flaws uncovered – a student expelled for sexual misconduct can simply move from university to university without school officials ever knowing about their past.


Title IX:  It’s not just about sports anymore


Title IX is the 1972 federal civil rights law that bans sexual discrimination in education, best known for breaking down barriers for women in sports.


Title IX also requires universities to investigate reports of sexual misconduct, a process that is completely separate from the criminal process.


Every college and university that accepts federal funds, even private institutions, is required to have at least one Title IX officer who investigates sexual misconduct.


Sexual misconduct is an umbrella term that includes sexual harassment, sexual assault/rape, domestic violence, and stalking.


University Title IX offices can receives a sexual misconduct report from a number of sources including police, student affairs offices, and employees who are required to report allegations of sexual misconduct.


MORE FROM CALL 6 | Indiana campus sexual assault reports rising | 5 things not to say to a sexual assault survivor | Colleges moving toward 'yes means yes' standard | 5 apps to protect your safety on campus 


Jane Doe, Vincennes University case expose gaping hole


Jane Doe claims Vincennes University violated Title IX by failing to protect her and other students from then-fellow student Valdemar Castellano.


Doe and her attorney, Ron Langacker, have filed a lawsuit in the United States District Court for the Southern District of Indiana Terre Haute Division.


Castellano held Jane Doe captive with a knife over the course of three days, repeatedly raping and beating Doe, according to the suit.


“It’s appalling that this happened,” said Langacker.


Castellano was allowed to continue attending Vincennes University despite six harassment claims filed against him with VU police, records show, including harassment and unwelcome sexual conduct.


“It’s disturbing,” said Langacker. “To have this person continue at the university was a ticking time bomb, pretty much ready to explode, and unfortunately my client is the one he ended up getting involved with."


Jane Doe was so distraught by what happened she withdrew from college and is still recovering.


“She now has some serious emotional issues to deal with, and she was unable to continue with her education,” said Langacker.


Castellano was eventually expelled from Vincennes in 2013, according to Langacker.


He then enrolled at the University of Northwestern Ohio in Lima where, months after arriving on campus in 2014, he was arrested for sexual imposition.


Castellano grabbed a woman’s breast, pulled down her shirt and tried to pull down her pants, according to the police report obtained by Call 6 Investigates.


The University of Northwestern Ohio told Call 6 Investigates they were unaware of Castellano’s history at Vincennes University when he applied and during his attendance from June 2014 to March 2015.


Castellano did not list Vincennes University on his application to UNOH.


“On his application, Castellano only indicated he previously attended Ivy Tech Community College,” said Stephanie Malloy, director of public relations and marketing for the University of Northwestern Ohio.


Call 6 Investigates did some checking and learned there is no requirement for colleges and universities to share sexual misconduct information with each other; the federal government does not have a database that compiles the information, and there is no obligation for universities to list it on college transcripts.


“If a school finds a student responsible for sexual violence that creates a hostile environment and the student transfers to a new school, the first school may inform the new school about its findings with respect to that student, but it is not obligated under Title IX to do so,” according to the United States Department of Education.


Many schools are afraid of repercussions if they share information about a student’s history, including the possibility of violating FERPA (Family Educational Rights and Privacy Act).


“It makes it free for people to become victimized a second or third time or whatever,” said Langacker.


Castellano left the University of Northwestern Ohio in March 2015, and months later, enrolled at yet another university – Rhodes State in Lima, Ohio.


Rhodes State declined to comment on what Castellano put on his application.


Rhodes State also would not tell Call 6 Investigates if they were aware of previous sexual misconduct allegations surrounding Castellano at two other universities.


Castellano declined to be interviewed and threatened to file charges against Call 6 Investigator Kara Kenney for doing the story.


In the Ohio sexual imposition case, criminal charges were later dismissed, but it’s not clear why.


In the Jane Doe/Vincennes case, the Knox County prosecutor declined to file charges against Castellano.

“It was very clear that no criminal conviction could be obtained based on the information presented,” said Dirk Carnahan, Knox County prosecutor. “After a meeting with law enforcement and the complaining witness, it was determined that no charges would be filed.”


Vincennes University declined to comment on Jane Doe’s federal Title IX lawsuit.


“It is the University’s policy not to comment on pending litigation,” said Jill Doggett, attorney for Vincennes University. “Vincennes University is committed to maintaining an environment free from exploitation and intimidation based on sex.”


Alleged rape survivor files federal complaint against Indiana University


Hailey Rial, 19, said she was raped at an off-campus fraternity recruiting event during her freshman year at IU's Bloomington campus in August 2015.


“I was sexually assaulted by an acquaintance that I had met that night," Rial said. “I had a lot to drink that night, so I couldn't consent. He assaulted me in one of the bedrooms."


Rial went to the hospital for a rape kit and filed a police report.


Rial said the university investigated her alleged perpetrator for sexual misconduct, but he was found not responsible.


“They said there wasn’t enough evidence,” said Rial.


With the help of the national group End Rape on Campus, Rial filed a complaint against IU Bloomington with the federal Office of Civil Rights, alleging they failed to follow proper Title IX procedures.


“I ended up switching dorms because my perpetrator was hanging around my dorm, and they charged me a fee to move dorms, so I had to fight with them to get those fees revoked,” said Rial.


Rial said her case was handled by Jason Casares, who resigned amid allegations he sexually assaulted a woman at a conference.


MORE | IU ethics director resigns amid sexual assault allegations


After the alleged rape, Rial transferred to IU South Bend to be closer to her family.


“I think it’s going to be something that’s going to stick with me forever, and I know I’m never going to forget it,” said Rial.


Emily Springston, IU’s Chief Student Welfare and Title IX Officer, declined to comment on specific student cases citing privacy laws.


“I was glad to see the decision from the independent reviewer,” said Springston. “It helped us because we spend a lot of time on our policies and processes.”


Casares was not criminally charged, and a review found no bias or influence in 17 sexual misconduct cases.


MORE | IU review: No bias or influence with sexual misconduct claims


“I think my case should be retried but the school disagrees,” said Rial. “Hopefully there’s repercussions for the university.”


Federal investigations mount as universities face increased pressure


The U.S. Department of Education’s Office for Civil Rights has open investigations at five institutions in Indiana – two at IU Bloomington, two at Vincennes University and one each at Grace College and Theological Seminary, Notre Dame and Valparaiso University.


The Chronicle for Higher Education created a Title IX tracker where you can search for institutions under federal investigation for how the campus handles sexual misconduct.


The specific reasons for and subjects of federal Title IX investigations are typically not made public before cases are resolved.


“Federal enforcement is still pretty opaque,” said Sara Lipka, senior editor at the Chronicle for Higher Education. “Some of the investigations are based on complaints that students have filed. And then some are based on what they call ‘compliance review’ where federal officials decide to check up on a certain place.”


Universities are facing increased federal scrutiny and public expectations when it comes to how they handle sexual misconduct.


They risk losing federal funding if they fail to comply with Title IX requirements.

“This has never happened, but it’s still a lever that colleges have to contend with,” said Lipka.


Springston said IU’s investigations are considered a ‘compliance review.”


“It’s like an audit, where they ask to see how we do this work and we’ve been working with them lots and lots of information,” said Springston.


The federal investigations at IU have been open since March 2014 and June 2015.


“(The Office of Civil Rights) is understaffed on their end, and they readily admit that it takes a long time, and that they are handling many different cases, so they can’t give it their full attention,” said Springston.


Once the cases are resolved, the universities typically receive a resolution agreement in which they agree on things to improve on.


Lack of publicly available data on sexual misconduct investigations


Call 6 Investigates found many universities either don’t track or don’t publicly release data when it comes to the number of sexual misconduct cases they handle and a breakdown of the outcomes.


“It’s critically important for universities to be transparent, end of debate,” said Dr. Jennifer Drobac, an IU McKinney School of Law professor and expert on sexual misconduct. “Record keeping sends a message to people they are taking this seriously and will take disciplinary action.”


Of the universities surveyed by Call 6 Investigates, IU was the only university that provided a report and full break down of its sexual misconduct cases.


According to its most recent annual report, Indiana University Bloomington received 252 reports of alleged sexual misconduct.


Forty of those cases moved forward under the University’s disciplinary process resulting in six student probations, 37 suspensions, 10 expulsions and 5 students found not responsible for the alleged sexual misconduct.


Universities typically use a “preponderance of the evidence” yardstick to determine whether a student is responsible for the sexual misconduct, which is a lower threshold than criminal cases.

Ball State University handled 160 sexual misconduct cases since fall 2014, according to its Title IX coordinator Katie Slabaugh.


Ball State’s Sexual Misconduct Board heard 12 cases since fall 2014, and in 8 cases the student was found responsible for the misconduct.  Four were found not responsible.


The University of Notre Dame and Indiana State did not respond to requests for sexual misconduct information.


In fact, Indiana State University lists an outdated contact for its Title IX coordinator on the federal government’s Campus Safety website.


Purdue University, the University of Indianapolis, Butler University and Franklin College all responded to inquiries from Call 6 Investigates but did not provide a breakdown on sexual misconduct investigations.


Unlike campus crime data universities are required to submit under the Clery Act, sexual misconduct data includes incidents involving students that happened off campus, such as on spring break.


You can search here for campus crime data:

Sexual misconduct numbers are also higher than campus crime data because Title IX offices can investigate a report of sexual misconduct without a police report, and their investigations are separate from the criminal process.


Sex expert: 'System is broken'


Dr. Jennifer Drobac, who wrote a book on sexual misconduct, said the Title IX system is “broken.”


For example, universities face a slew of federal requirements including extensive training of students and staff, yet the institutions must pay for it out of their own budget.


“It is an unfunded mandate and it’s a burden,” said Drobac. “I haven't met a Title IX coordinator that isn't overwhelmed.  They don’t have the funding or the personnel to investigate."


Drobac said many Title IX offices have competing interests, and struggle with maintaining the university’s image.


“How many parents or students want to go the Rape University of the United States? Very few,” said Drobac. “If they’re investigating a star football player, they’re going to be inclined to want to have the problem go away or just to resolve it quietly.”


Some have criticized universities for taking too long to investigate sexual misconduct.


Emily Springston, IU’s Chief Student Welfare and Title IX Officer, said alcohol is a factor in almost all sexual misconduct investigations and can cloud memories of the victim, alleged perpetrator and witnesses.


“We can reach out and have to talk to all of these individuals, this is part of a thorough investigation,” said Springston. “It can take time, it can get complex."


Springston said IU has made a lot of improvements when it comes to training employees including adding online training.


She said while Title IX is challenging work, she feels the university is doing a good job at investigating, as well as training and educating students and employees.


“Everybody is wanting to see this done well and done right,” said Springston. “So that is the pressure we put on ourselves internally as well to do it right.”