Education Law

University of Montana faces Title IX complaints, including from law students

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University (Main) Hall, University of Montana

University (Main) Hall at the University of Montana in Missoula, Montana. Photo from Wikimedia Commons.

Following a Title IX lawsuit brought by former administrators and a current professor at the University of Montana, law students at the school claim they were dissuaded from filing administrative complaints alleging repeated use of slurs in the classroom and sexual misconduct.

Jennifer Robichaud, a third-year law student, told the ABA Journal she intends to file a complaint with the U.S. Department of Education’s Office for Civil Rights, and she also plans to make an administrative complaint with the Montana Human Rights Bureau. According to her, in January 2020, she and other students were dissuaded from making complaints to the institution’s Office of Equal Opportunity and Title IX involving what they saw as inappropriate and repeated use of a gay slur in a torts class as well as sexual misconduct allegations against a fellow student.

She claims to be one of three complainants with an internal law school investigation. According to her, they asked for apologies from the administration for the way it handled reports of alleged misconduct, and clarification on how and when to make Title IX complaints.

In an Oct. 1 email to the law school community, Paul Kirgis, dean of the Alexander Blewitt III School of Law, wrote about training and information provided over the past year. He also acknowledged more needed to be done to address the law school’s institutional well-being. Going forward, the law school’s reporting structure for making Title IX complaints will be reorganized, and the school will bring in an outside reviewer to assess climate, he wrote. The communication follows a letter written by law students asking for a change of leadership because of the school’s response to sexual misconduct allegations, the Daily Montanan reports. A student walkout is planned for Tuesday.

In a statement, a spokesperson for the University of Montana said the law school has “addressed the allegations through mediation, investigation and extensive education,” and expressed support for Dean Kirgis and his recent efforts to train and educate students and employees, and to conduct an outside independent review of the school’s culture.

Sandra Zellmer, a professor at the law school, taught the torts class Robichaud mentioned. She told the ABA Journal to the best of her knowledge, the concerns related to class discussion of Snyder v. Phelps, a 2011 U.S. Supreme Court opinion involving a family that sued the Westboro Baptist Church in Topeka, Kansas, for intentional infliction of emotional distress after organization members picketed a funeral while holding signs with gay slurs.

“I and many torts professors teach the case, due to its importance in the field, though the reported facts include extremely offensive language. That abhorrent language lies at the heart of the IIED claim, which means that it must be addressed when teaching the case. Teaching it is terribly difficult, as you can imagine,” Zellmer wrote in an email.

Zellmer on Sunday was one of 17 University of Montana law professors to sign a statement expressing “regret” over damage the allegations caused for the learning environment.

“To every member of our law school community, particularly those angered, hurt, dispirited, confused or otherwise distressed by these events: We hear you. You are not alone. We are firmly committed to working together to heal and to build the transparent, safe, inclusive environment we all value and deserve,” the statement read.

According to Robichaud, Zellmer “continually” used a gay slur in the torts class.

“Students jumped on the bandwagon and began making various discriminatory remarks during class throughout the first couple of months of the semester,” Robichaud adds.

She claims to have spoken with Sally Weaver, the law school’s director of academic success, who also serves as its associate dean of students, about the torts class issue. According to Robichaud, Weaver told students their complaints did not rise to the level of any kind of harassment or Title IX violation. Robichaud also claims Weaver said if students went to the Title IX office, everything would go through attorneys, and it would be harder to work things out.

In an email, Weaver told the ABA Journal she has never advised a student to not report a complaint to the Title IX office. She also wrote that when a student alerted her to possible Title IX or student conduct code violations, she promptly relayed the information to the Title IX office or the office of community standards.

The U.S. Supreme Court in 2020 found that Title VII of the Civil Rights Act protects employees against discrimination if they are gay or transgender. As a result, the Biden administration’s Department of Education views sexual orientation slurs in the classroom as being covered by Title IX, says Erin Buzuvis, associate dean for academic affairs at Western New England University School of Law.

However, Buzuvis adds that the threshold for any form of hostile-environment discrimination would need to be severe, pervasive and objectively offensive enough that it effectively denies someone equal access to education. In addition to being a professor, Buzuvis writes for the website Title IX Blog.

“Even though it’s not prohibited to offer students information about the likely outcome of the process if they report, campus administrators should strive for open pathways for reporting discrimination and avoid saying things that students might perceive as deterring or suppressing their right to report,” Buzuvis wrote in an email to the Journal.

Claims of a retaliatory culture

According to the Montana U.S. District Court lawsuit filed against the university, repeated efforts made by Rhondie Voorhees, a former University of Montana dean of students, to alert the school about safety concerns for students and faculty were often discarded. Other plaintiffs in the August 2021 lawsuit are a woman who worked as the university’s vice president of enrollment management and strategic communication; a former director of the Montana Museum of Art and Culture; and a current social work professor.

The lawsuit also claims a retaliatory culture at the school grew under the leadership of its president, Seth Bodnar, and “female professionals” were at risk of punishment for “expressing challenging or dissenting statements.” The university denies all the claims, a spokesperson for the school told the Daily Montanan.

Additionally, the lawsuit references misconduct complaints at the university from 2011 involving allegations women were sexually assaulted on campus. A former Montana Supreme Court justice was hired to investigate, and she found the university had problems both on and off campus with sexual assault, according to a 2013 letter the U.S. Department of Justice and the Department of Education wrote detailing a resolution agreement the school entered into with the United States.

A few months after the torts class incidents, Robichaud says, she spoke with two classmates who claim they were sexually assaulted by another law student. She says the two other classmates claim the accused student sexually harassed them. In June 2020, Robichaud shared the allegations with Kirgis. According to her, he tried to “explain away” the alleged behavior.

In an email to the ABA Journal, Kirgis wrote that he has never deterred a student from taking a sexual misconduct complaint to the university’s Title IX office.

“On those occasions when a student has alerted me to a possible Title IX violation, I have promptly relayed that information to the Title IX Office, as I am obligated to do as a mandatory reporter. In an effort to remove any possible barriers to reporting, the law school has, with the Title IX Office, provided numerous trainings and provided information to students, faculty and staff about how to report to the Title IX office,” he wrote.

Shortly after Robichaud’s discussion with the dean, the university hired Grand River Solutions, a California business that advises colleges and universities on Title IX issues, to investigate multiple allegations made by women at the law school, according to the Daily Montanan article.

Robichaud also alleges students who complained about the alleged sexual misconduct were told the grievances could be seen as harassing the accused student, and might hurt their character and fitness applications to practice law. And she claims Weaver, in a memo for the investigation, accused her of filing a false IX complaint as well as being unprofessional and dishonest. In their Title IX complaint, she and the others asked that this be addressed.

“For example, we wanted it clarified that Sally Weaver did not have the authority to conduct in-house predeterminations as to whether an allegation should involve the [Title IX] office,” Robichaud adds. “ We also asked that the administration clarify what kinds of things are reported to or reflect upon character and fitness due to the fact that there were so many misconceptions.”

Kirgis told the ABA Journal he could not comment on the investigation; Robichaud says it was closed in July 2021 with no findings of wrongdoing. She has filed an administrative appeal, which is being handled internally.

“The University of Montana has invested significant time, money and resources to investigate the actions of employees and students in the law school,” a spokesman for the university told the ABA Journal in an email. He added that because the matter was ongoing and the school was under legal obligation to carry out the investigation in a confidential manner, he had no further comment.

See also: “Montana law school dean resigns after complaints about the oversight of Title IX allegations”

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