A pair of lawsuits filed hours apart last week variously allege that Iowa State University failed to properly investigate students’ sexual assault complaints in violation of state and federal law, charges the university denies. In a twist, the defendant in one is the plaintiff in the other, an example of what her attorney says is a product of the complicated nexus between students, public universities, and the federal government in addressing sexual assaults on campus.
The first lawsuit was filed on the morning of Oct. 12 by a former student who says she was raped in her dorm room by a friend and fellow student in October 2013 and that her subsequent report was inadequately pursued by university police and ISU’s office of equal opportunity. She’s suing the state of Iowa, claiming she was denied equal protection under the law, as well as ISU’s office of equal opportunity director at the time, Robin Kelley, both individually and in her capacity as a former university administrator.
The second lawsuit, filed the same evening by Kelley herself against the university, claims that ISU was knowingly out of compliance with federal Title IX sex discrimination requirements when it hired her “to be seen but not heard” as a public relations ploy to improve its image. Kelley, a black woman, alleges that the university undermined her ability to help students who filed assault complaints before unlawfully terminating her in retaliation for bringing compliance problems to the attention of her superiors.
In both cases, the plaintiffs are backed by prominent attorneys who specialize in discrimination complaints. The former student is represented by Roxanne Conlin, a well known Des Moines lawyer who decades ago in her role as an Iowa assistant attorney general headed the office’s civil rights division and whose other clients now include former state workers’ compensation commissioner Chris Godfrey, who is suing former Gov. Terry Branstad for wrongful termination. Representing Kelley are Tom Newkirk and Beatriz Mate-Kodjo of the Newkirk Zwagerman law firm in Des Moines, which recently secured a $6.5 million settlement against the University of Iowa in two sex discrimination lawsuits brought by former senior associate athletic director Jane Meyer and her partner, former field hockey coach Tracey Griesbaum.
According to the complaint she filed last week, the former ISU student says that she went to the campus’ Margaret Sloss Women’s Center the month after the assault to discuss the incident. She was referred to the dean of students’ office, which at the time was headed by Pamela Anthony. There, she spoke with a university police lieutenant named Sara Jensen, sharing a recent text message exchange she’d had with her alleged assailant, Hunter Hansen. In December 2013, a recorded phone call with Hansen was set up during which he said he was “owning up to making a mistake.” A no-contact order was established, and police conducted interviews with friends and family of both students.
Early the following year, according to the complaint, the former student first met with Kelley in the equal opportunity office for an interview to discuss the university’s investigation of her report. Then in March, she contacted Jensen, who said that her criminal case was being referred to the Story County attorney’s office. The attorney’s office decided not to file charges against Hansen, according to the complaint.
Asked about the case, Story County Attorney Jessica Reynolds said that “in general, I don’t usually comment about investigations” but that she would look to see if she had any information about it. She did not respond to follow-up emails. The apparent decision occurred when Reynolds was serving as an assistant county attorney under Stephen Holmes, who has since retired.
“I said no to you and I passed out. What you did is rape.”
As time went on, the complaint says, the former student grappled with post-traumatic stress disorder, which resulted in missed classes and poor grades. She continued to encounter Hansen despite the no-contact order and tried to stay away from campus as often as she could. That April, she withdrew from ISU.
In July, according to the complaint, she met again with Kelley, who said that her case was being closed as “unfounded” because she hadn’t given her enough evidence to work with, adding that Hansen “really liked her a lot.” (The former student claims that during her investigation, Kelley interviewed Hansen’s friends but failed to contact hers from a list of names she’d provided at their first meeting.)
After this, the former student went back to ISU police to see if there was any chance that the criminal case might be re-opened. In September, she and an advocate with the Assault Care Center Extending Shelter and Support in Ames met with then-police chief Jerry Stewart and Jensen. She left hopeful that the case would be re-opened, according to the complaint, but subsequently had little luck contacting university police about it; in March 2015, she was told that Kelley’s office wouldn’t re-open her case on campus — a decision the former student says police supported — and that November she learned that her criminal case wouldn’t be either.
The text messages the former student initially showed ISU police appear to show Hansen acknowledging the assault. But in her complaint, she contends that she “was told her case was not re-opened because it was unclear in the text messages whether Mr. Hansen was apologizing for raping her or apologizing because he lost her as a friend.”
“I said no to you and I passed out … I was clearly too drunk to defend myself and you should have known that by me saying no,” the former student texted Hansen. “What you did is rape.”
“I know there’s no amount of sorry I can say … I feel like such a terrible human being and I didn’t want to be that guy that ever did that to a girl,” he replied.
“So you fully realize this is rape[?]”
“I know what happened that night should not have happened and even if I was drunk I should not have done that.”
Reached for comment, Hansen, an ISU senior who is not a party to the suit, said he had “no comment” about it. Conlin, the former student’s attorney, did not respond to requests for comment; an assistant in her office on Wednesday said she was preparing for an important case and wasn’t taking calls, and on Friday said she was out of the office for the day.
Michael Newton, ISU’s current police chief, referred the Informer to the university’s public relations office. “Iowa State University and our police department take our responsibilities regarding allegations of sexual violence very seriously,” said John McCarroll, an ISU spokesperson, who emphasized that the police department was also not a defendant in the suit. “Every complaint of sexual assault made to the university is taken seriously and is investigated. Our police department works closely with campus and community resources in an effort to eliminate sexual violence, encourage the reporting of sexual misconduct, and support survivors.”
“I do not believe that [the former student’s] case is about me personally rather than ISU’s systemic failure,” said Kelley, who now serves as the associate vice provost for equal opportunity at North Carolina State University. “Even if I was mentioned as a focal point, [she] did not realize what I was doing to fix any issues and that I was not getting help from above.” Kelley declined further comment, referring the Informer to her attorneys.
In the complaint Kelley filed against ISU last week, however, her alleged struggles with the university’s administration are detailed at length. She arrived at ISU in February 2013 as its new Title IX coordinator and first permanent director of equal opportunity. Under the direct supervision of Miles Lackey, then-president Steven Leath’s chief of staff, she was to be “the face” of the university’s equal opportunity office, tasked with investigating campus discrimination, harassment, and retaliation complaints.
As the university’s Title IX coordinator, Kelley was also cognizant of the Obama administration’s “dear colleague” letter, a contentious document published in 2011 by the Department of Education’s Office of Civil Rights that issued a new set of legal guidelines for public universities to follow in their handling of sexual assault investigations. Among other things, it affirmed a university’s right to conduct its own investigations independent of police, using a “preponderance of evidence” standard that was lower than a criminal case’s beyond a reasonable doubt standard to determine the guilt of the accused. (The varying standards became a key point of contention in ISU’s convoluted handling of the rape allegation against former Cyclones basketball player Bubu Palo.)
As Kelley settled into her position, her complaint says, she became increasingly aware that ISU was not in compliance with other Title IX guidelines. There was no formal process in place for investigating complaints, she claims, the university failed to draft required civil rights reports, and her office was inadequately funded and staffed. Prior to her arrival, she further alleges, ISU legal counsel made Title IX decisions, disregarding the dear colleague letter’s warning that “serving as the Title IX coordinator and a disciplinary hearing board member or general counsel may create a conflict of interest.”
Kelley says that she soon began to “receive pushback” from other administrators as she raised issues about Title IX compliance shortcomings, which she listed specific examples of in a memo penned in July 2014. “ISU behaved in a manner that suggested it did not want Ms. Kelley to meaningfully address, change, or remedy Title IX violations and failures,” her complaint alleges, and administrators “began to routinely exclude” her from processing civil rights complaints, opting instead to hand them over to the dean of students’ office.
Eight months after Kelley started at ISU, the Office of Civil Rights sent Leath a letter informing him that the university was under investigation to determine whether it “promptly and equitably” responded to students’ reports of sexual assault. The OCR’s decision stemmed from a complaint a female student filed with the agency the previous month, alleging that ISU failed to adequately respond to her report that a male student assaulted her during the 2013-14 academic year.
In her complaint, Kelley cites this case as being among those she was excluded from processing. When the victim requested that her alleged assailant not be housed in an adjacent dorm, the complaint says, then-Dean of Students Pamela Anthony processed the request even though it was Kelley’s job to handle it. Kelley claims she had determined that the male student indeed committed the assault but that Lackey and ISU police challenged her on the finding, allowing Anthony to deny the victim’s request over her objections and a guideline recommended in the dear colleague letter. (Anthony left ISU in 2016 and died in January after a battle with cancer.)
Because of federal student privacy laws, it is unclear whether this is the same case that the former student is suing Kelley over. Regardless, that student “never knew what Robin was up against to try and ensure compliance at ISU or what Robin was doing to make changes to allow a faster and better response to issues of sexual assault,” insisted Tom Newkirk, one of Kelley’s attorneys. “There was no mishandling of anything by Ms. Kelley, and in fact she was terminated for trying to not mishandle these types of claims. This problem goes much deeper.”
In April 2015, the OCR issued another dear colleague letter focused specifically on the roles of Title IX coordinators. Kelley claims that ISU administrators ignored its guidelines as well by failing to inform her of all Title IX-related reports and complaints, refusing to give her adequate authority to handle compliance issues, and depriving her of direct supervision by Leath instead of just Lackey. When Kelley continued to point out such problems, according to her complaint, Lackey criticized her for being overly “litigious” and said she needed to better “collaborate” and “show leadership” with colleagues.
Although Title IX coordinators have the authority to draft compliance reports, Kelley claims that administrators retaliated against her for doing so in ways that were intended to interfere with her job duties. The same month that the new dear colleague letter was published, Kelley met with an OCR investigator to discuss filing a complaint, frustrated about her lack of authority and independence. The next month, the complaint says, Kelley learned that a sexual misconduct retreat had been scheduled by then-senior vice president for student affairs Tom Hill, who is now retired (and a member of the search committee for a new ISU president). Instead of putting Kelley in charge of the retreat, Hill selected Anthony.
“[Universities] don’t really actually empower a person like Robin Kelley, as a Title IX coordinator, to do her damn job.”
Kelley says she then complained to Lackey, arguing that this “was another effort to usurp and marginalize her role as the independent Title IX coordinator on campus.” Lackey ignored her, according to the complaint she filed last week, and at the August retreat it was announced that a sexual misconduct coordinator position was being considered for the dean of students’ office so that students could report assaults there instead of going to Kelley’s office, which she viewed as further evidence that administrators were undermining her. When she brought this up with Lackey during a September performance evaluation, she claims, he “blindsided” her with two old complaints that she had not previously been made aware of from a former employee under her supervision. On Oct. 14, 2015, as rumors allegedly spread among students that the office of equal opportunity was unresponsive to sexual assault reports, Lackey fired Kelley.
Reached for comment, Lackey, who will soon leave ISU to join Leath as his chief of staff at Auburn, also referred the Informer to the university relations office. “The university will not comment on specific allegations contained in pending litigation, but denies that it treated Ms. Kelley in any way that was retaliatory, discriminatory, or otherwise illegal,” said McCarroll, the university spokesperson. “In fact, in May 2017, the Iowa Civil Rights Commission administratively closed the underlying complaint, determining that the investigative process did ‘not indicate a reasonable possibility of a probable cause determination.’
“The university takes its obligations under Title IX very seriously and is constantly trying to improve the campus climate to eliminate sexual violence, encourage the reporting of sexual misconduct, and support survivors. We will continue to work collaboratively across campus and with the community to accomplish these goals.”
As Newkirk sees it, his client’s case is indicative of a broader problem. “What we’re trying to do is help universities understand that the systemic problem of sexual assault around the country and the constant battles that go on are continuing for a couple of reasons,” he said. “One reason is because they don’t really actually empower a person like Robin Kelley, as a Title IX coordinator, to do her damn job. The second problem is that most universities don’t understand how gender bias flows through a sexual assault case, and therefore normally we have a negative reaction to a female who accuses a male of assault. We devalue her concerns, we will overvalue the male’s concerns because, you know, it’s about sex. That’s always viewed from the male perspective. It just is.”
The Informer asked Newkirk how a decision announced last month by Betsy DeVos, Trump’s education secretary, to immediately rescind the Obama-era dear colleague guidelines might impact cases like Kelley’s and the former student’s going forward.
Ironically, Newkirk predicted that the decision could result in positive changes for victims of sexual assault on college campuses even though “Ms. DeVos and the administration removed some of these protections for the wrong reasons” and “they don’t understand sexual assault and why it happens.” Removing the letter, he said, creates “this wild west system” that will require universities to adjust how they handle reports.
“The letter, even though it’s better to have it out there, on some level was creating this perception that all you’ve got to do to fix sexual assault is follow the recommendations in the letter, and it really created a false assumption,” he explained. “So I think this is potentially going to open up a much different way of approaching sexual assault cases, which is what we hope — even though I want to make it really clear it will be an accidental consequence of their removal of this letter.”
Featured image: Iowa State University’s Beardshear Hall, where the office of equal opportunity is housed. Photo: SD Dirk/Wikimedia Commons