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Alan Sash Interviewed about Title IX Investigations by George Washington University Newspaper

Mon 13 April 2020 News Releases

By Shannon Mallard – The GW Hatchet

Experts said a Title IX complaint filed with the U.S. Department of Education Office for Civil Rights in late February could involve multiple types of discrimination.

The complaint, first made public on the ED website earlier this month, is categorized under “Title IX + Others.” University spokeswoman Crystal Nosal said the education department notified GW Feb. 20 that the OCR would be investigating the complaint.

Nosal declined to say what the complaint alleges, whether the complaint is meritorious and which officials will address the complaint. She declined to specify how officials will work with the education department to resolve the complaint.

“The University will respond as appropriate to the Department of Education and has no further comment at this time,” she said in an email.

The total number of complaints filed with the Department of Education against GW has declined by more than two-thirds since 2015. GW has not been the subject of a federal Title IX probe since 2017, when a complainant alleged the University mishandled a sexual violence case.

The department ended its investigation into the complaint in 2018, but the department’s findings were not publicly available and a University spokeswoman did not return a request for comment about the findings at the time.

Alan Sash, a partner in the litigation department at the firm McLaughlin & Stern, said the fact that the ED categorized the case under “Title IX + Others” could mean the complainant is alleging that another form of discrimination, in addition to a Title IX violation, took place. For instance, a student who could not report an incident by a Title IX office’s deadline could allege a Title IX violation and religion-based discrimination, Sash said.

Title IX law prohibits sex-based discrimination in educational programs and activities that receive federal funding.

He added that the complainant may have chosen to list the complaint under “Title IX + Others” if they were unsure of how to describe the incident.

Individuals who file complaints with the ED can list their case under one of 14 categories like “Title IX + Sexual Assault” and “Title IX + Gender Harassment” depending on the nature of the incident.

“It’s a little bit unclear right now, which is why we shouldn’t read into it too much,” Sash said.

Sash said officials should allocate sufficient staff and resources to handle the complaint to ensure all individuals involved in the case are treated fairly and demonstrate that officials take the allegations seriously.

The University overhauled the Title IX investigation process in 2018. A single investigator currently handles individual sexual assault cases instead of a multiple-person hearing board, and faculty are required to report sexual harassment incidents to the Title IX office.

“It may very well lead to people feeling satisfied, regardless of how the results turned out,” Sash said. “People may not like the results – one’s going to be unhappy with it – but at least they feel that they got a fair shot, and they were heard.”

Dan Schorr – who oversees Title IX investigations as the managing director of risk management consulting firm Ankura – said he has worked on many cases that involve multiple types of discrimination, including Title IX violations. He said filing the complaint under “Title IX + Others” with the ED could streamline the investigative process because only one branch of the OCR would be in charge of gathering evidence instead of having to spend time coordinating with another team.

“It’s definitely best practice to have the same investigator or investigative team conduct the full investigation so they’re very familiar with the people involved and the facts,” Schorr said.

Schorr said universities facing Title IX violation allegations generally work with OCR staff to enact policy changes, like reforms to the case-hearing process, to resolve a complaint. But he said the University could face sanctions like fines and mandatory Title IX policy changes if GW committed an “egregious” violation of Title IX law.

“Complying with Title IX is extremely important to make sure that everyone is given fair access to education and can have a learning environment free from discrimination and other sexual misconduct,” Schorr said.

Jody Shipper, the co-founder and Title IX services practice lead at Grand River Solutions – a Title IX consulting firm – said the complaint “probably” does not concern sexual assault or harassment because the ED offers specific categories for those Title IX violations, like “Title IX + Sexual Assault.”

She said the case could involve one or more types of discrimination or simply not completely fit into one of the 13 other education department Title IX case designations.

“It’s just a coding thing,” Shipper said. “And it doesn’t tell you much of anything at all.”

She added that the ED might close the investigation into GW on the condition that officials implement policy changes like more comprehensive case investigation processes if the OCR determines GW committed a Title IX violation.

“These are important issues,” Shipper said. “You do need to make sure you have someone who can be hearing complaints, responding to complaints and investigating them.”

The GW Hatchet