Alan Sash Interviewed on Utah State University’s Title IX Investigation
By Erica Evans and Gillian Friedman – Deseret News
SALT LAKE CITY — Utah State University did not notify other universities about sexual harassment allegations against two former USU employees, despite President Noelle Cockett’s saying that the Logan school had done so.
An investigation into sexual harassment, discrimination and abuse within USU’s music department, which involved interviews with 60 witnesses and the evaluation of hundreds of pages of documents, resulted in an 18-page report that stated two current and two former USU music faculty members had been accused of sexual harassment.
Investigators recommended disciplinary action for the two current employees listed in the report. Cockett announced at an April 6 press conference that Gary Amano, former head of the piano program had retired and that Dennis Hirst would no longer serve as interim piano program coordinator, although he would remain at the school. Cockett also announced sweeping changes to improve the handling of sexual misconduct at Utah State.
Asked about the two former USU employees mentioned but not identified in the report along with Hirst and Amano, Cockett said, “We have notified, where noted, the faculty where they’re currently employed to alert them of this report.”
Several weeks after the press conference, when asked to clarify Cockett’s statement, USU spokesman Tim Vitale said, “It was a mistake for Noelle to have said that.”
“It wasn’t in her prepared remarks,” said Vitale. “It wasn’t accurate.”
But USU is not violating any rules or procedures by not notifying other schools, according to human resources experts. A university does not have an obligation to share allegations of misconduct concerning former faculty members with other employers, said Tim Trujillo, an independent human resources consultant, who has more than 45 years of experience in the field. Doing so could lead to a lawsuit against the school, he added.
“Utah State, in this case, does not have the responsibility to worry about the rest of the world,” Trujillo said.
The sexual misconduct cases at USU raise the question of when, if ever, is it appropriate for a university to share sexual harassment or abuse findings involving faculty? And is there any moral obligation for a school to do so to prevent potential future victims?
One of the schools that USU did not contact was the University of Oklahoma, where former USU piano instructor Luke Hancock is currently pursuing a doctorate degree. Vitale confirmed to the Deseret News that Hancock is one of the two former faculty members accused of “sexual harassment” in the report.
There is an active police investigation involving Hancock, according to Kirsti Kjome, records specialist at the Logan Police Department, who would not say what the investigation entails. Vitale said the university notified police about a Facebook post from a former student about an alleged nonconsensual sexual encounter with Hancock.
Multiple attempts by the Deseret News to reach Hancock for comment have been unsuccessful.
Oklahoma’s Title IX office, which is tasked with investigating discrimination, sexual assault and sexual harassment allegations at the school, is also “following up accordingly,” after an anonymous source alerted the school of the USU report, said Rowdy Gilbert, a spokesperson for the University of Oklahoma. The school did not respond to a follow-up questions to confirm if Hancock is still enrolled there.
Prior to this year’s independent investigation into Utah State’s music department, the Department of Justice was looking into how the university responds to reports of sexual misconduct after three students, not associated with the music department, were charged or convicted of sexual assaults, alleged to have occurred between 2013 and 2015.
In addition to the inquiry at Utah State, federal officials are conducting investigations into the handling of sexual misconduct allegations at 337 colleges across the country, according to the Chronicle of Higher Education, including the University of Utah, Brigham Young University, Westminster College, Dixie State University and Utah Valley University.
As hundreds of universities attempt to navigate the legal complexity of sexual harassment and assault claims, they balance their moral and legal obligations to those involved. Not only are universities pressured to take decisive action to keep students safe, but they must also protect the privacy of those accused, said experts interviewed for this story.
The Deseret News spoke with human resources professionals, Title IX lawyers and academics about the legal risks that prevent Utah State University, and other universities in similar positions, from contacting other schools when they have information about alleged harassers.
Christina Mancini, associate professor of criminal justice policy at the Wilder School at Virginia Commonwealth, said there is no law that requires employers, including universities, to pass along information about suspected sexual misconduct committed by employees.
And what the university can do based on its own findings is limited, according to Alan Sash, a lawyer with McLaughlin and Stern who specializes in cases that involve Title IX, the federal law that seeks to protect students from sex-based discrimination.
“What they are disclosing is just based on their own investigation; there’s been no adjudication in a court, no administrative agency finding that these people committed wrong,” said Sash.
Trujillo said a case like Utah State’s is especially concerning because the faculty in question are working with young and potentially vulnerable college students. But from an employer’s standpoint, it doesn’t matter how “abhorrent” the allegation is, or even if the allegation is true or not, he said.
“It doesn’t matter if you’re 100 percent right, if a lawsuit arises out of that, which in this case it could, you are looking at a huge expense,” Trujillo said.
Experts agreed that the legal obligation lies not with Utah State University to reach out to other institutions, but with universities who are hiring new faculty to do thorough background checks.
But unless an allegation of misconduct led to an actual criminal charge, or an incident received enough publicity to be reported in the news, a prospective employer may not find much, Sash said.
According to Jennifer Floyd, president of HR Experts on Demand, when a prospective employer contacts a past employer for a reference, the past employer will typically give a neutral response that simply includes that person’s job responsibilities, how long they worked there and perhaps their salary. Employers who reveal more, including the reason a person was fired, could be sued, she said.
Prospective employers should ask applicants to self-report the reasons why they left previous jobs and any disciplinary issues, making it clear that lying is grounds for termination, Floyd added.
Despite the clear legal risks associated with communicating harassment and assault allegations, some experts acknowledged those should be weighed against a moral obligation to protect other individuals.
Felice Duffy, an attorney with Duffy Law who specializes in Title IX cases, said she thinks there should be a law that allows universities to share information about known harassers who could pose a danger to students.
“If it’s sexual misconduct or sexual violence, there’s a safety consideration,” said Duffy. “If that person would be a danger to the school, or if it would interfere with their ability to educate students or fulfill their responsibilities, there should be a law to have that information shared.”
Whether or not a school should share information about a former employee is complicated and depends on the circumstance, she said.
“I think this will continue to evolve, especially in the context of the #MeToo movement happening. People will start asking those questions,” said Duffy.
Nancy Chi Cantalupo, assistant professor of law at Barry University, said the difficulty of communicating harassment findings between universities contributes to a phenomenon she studies called “pass the harasser.” This occurs when instead of disciplining and firing a faculty member, a school agrees to quietly part ways with an accused harasser.
“Institutions are going to experience at least bad publicity if they are found to have passed the harasser and not done anything to really stop — not just at their own institution — the continued conduct of someone who they had good evidence was a harasser or even an assailant,” said Cantalupo.
According to Sash, the legal doctrine of “qualified privilege” may be a defense for universities looking to share information. Qualified privilege in some states, including Utah, protects two institutions that have a common legal, social or moral interest in sharing specific information, even if that information is potentially defamatory.
Overall, Sash says the moral obligation to share information that will protect potential victims must be balanced with the legal obligation to avoid wrongfully accusing someone who has not been proven guilty in a court of law.
“Any law is going to apply to everybody, the guilty and the innocent, and if you cast too wide a net you get the innocent caught up in this,” said Sash. “On the other hand, if your net is too short you’ll have a lot of people working in higher education that shouldn’t be. So where do you draw the line?”
A case study
Utah State became aware of sexual misconduct allegations against Hancock as early as 2009, according to a Title IX document dated Nov. 3, 2009, which details former student Whitney McPhie Griffith’s account of a nonconsensual sexual encounter with Hancock.
According to his Facebook page, Hancock continued to work at USU until 2016, when he left to pursue a doctorate degree at the University of Oklahoma.
In a February Facebook post, Griffith recounted what she said she had reported to USU’s Title IX office and claimed that the school had not taken her seriously.
Griffith’s post was followed by posts from more than a dozen other women who alleged they were mistreated or sexually harassed by USU piano department faculty members, prompting the school to launch its independent investigation.
Vitale said that, following a report to the Title IX office, the university took action in early August 2017 to ensure Hancock would never work at USU in any capacity again. “We also immediately shared with police the public Facebook post about him that alleged crimes had been committed,” he said.
But USU did not notify the University of Oklahoma, according to representatives of both schools.
Rowdy Gilbert, a spokesperson for the University of Oklahoma said the university was made aware of allegations by an anonymous source.
“The university’s Title IX office is following up accordingly on the anonymous report received,” Gilbert added.
The University of Oklahoma also reached out to USU for more information.
Vitale said, “Oklahoma reached out to us with a voice message asking to talk about Luke Hancock, and our Title IX office staff left a number of voice messages in return. We’re still trying to connect, and we most certainly will.”
Vitale did not specify exactly what information university officials plan to share with the University of Oklahoma. “We plan to have an open and candid conversation with Oklahoma and share with them the information they request from us after that discussion.”
Trujillo said that in Utah State’s case, if another employer finds out about the report independently and contacts the university, like the University of Oklahoma did, then USU should answer truthfully and honestly communicate relevant findings.
“Although it won’t stop them from being sued … the best defense against defamation is the truth,” he said.
Vitale said that if an employee was terminated, USU would share that fact and the reason for termination with a future employer. He added, “If there were a finding that showed the potential for a continuing community safety issue for another institution, we would share that information.”
In addition the University of Oklahoma, the Deseret News followed up with another university that employs a former USU music department faculty member who allegedly groped a male student on an overnight trip in 2006. That former student told his story to the Deseret News and also said he spoke to investigators who wrote the USU report. USU would not confirm whether that former faculty member is in the investigation report.
A spokesperson from the other university said, “Human Resources has not received any recent communication or contact from Utah State to discuss sexual harassment allegations.”
Correction: A previous version incorrectly stated Utah State University took action against former faculty member Luke Hancock following a February Facebook post by an alleged victim of sexual misconduct. USU took action in early August 2017 following a report to the school’s Title IX office.
USU didn’t notify schools of former faculty sexual misconduct. Was it obligated to?