FSU Found Previously Noncompliant Under Title IX, Enters Agreement Amid Ongoing Reforms

The following reflects a collaborative effort by The Bottom Line Sports Editor James Kirk and Design Manager Nick DeMichele to provide the latest update on the three-year federal investigation of FSU’s handling of sexual assault under Title IX. Previous articles, largely written by former Editor-In-Chief Brad Kroner, are linked throughout the piece.

Frostburg State University violated Title IX regulations through the handling of past sexual assault cases, according to the findings of the U.S. Department of Education’s (DoED) Office for Civil Rights (OCR). The Sept. 9 announcement marks the conclusion of a three-year investigation into FSU’s compliance with federal Title IX legislation regarding the handling of sexual assault and gender-based violence by the institution.

As a result, the university and the Department of Education have entered into an agreement designed to “ensure compliance with Title IX of the Education Amendments of 1972 as it applies to sexual violence and sexual harassment.”

The conclusion of the investigation comes over two years after former FSU Student Government Association President Jerica Bennett went public in a Bottom Line article with her 2013 alleged sexual assault and subsequent federal complaint concerning the university’s handling of her case. The OCR investigation initiated by Bennett in 2013 would go on to include over 40 other incidents at Frostburg State, according to the DoED. Specific institutional insufficiencies uncovered by the investigation included failures to properly report alleged sexual assault, inadequate investigation of off-campus incidents, and a lack of “adequate steps to safeguard the victim.”

On September 9, a letter formally announcing the agreement with Frostburg State University and the DoED was addressed to FSU President Dr. Ronald Nowaczyk from OCR Supervisory Attorney Beth Gellman-Beer.  The letter provided a summary of the investigative findings, analysis of non-compliant former university Title IX policies, and detailed descriptions of incidents involving two primary student complainants that launched the investigation.

Bennett confirmed to The Bottom Line on Friday, Sept. 16 that she is the referenced “Complainant 1” cited by the Sept. 9 OCR press release.  She described her decision to file the initial complaint, saying, “I knew what had happened to me was wrong, but I had been let down by the school, I had been let down by the justice system and this was kind of my last chance to get some kind of justice and turn this around and make it into something positive.”

“Complainant 2,” a student who “reported she was sexually assaulted in a campus safety vehicle by one of Frostburg’s campus police officers” (according to the OCR) would appear to be past FSU student Amber Haning, who revealed her incident in a Feb. 23, 2015 Bottom Line article. Attempts by The Bottom Line to reach Haning for comment were unsuccessful at press time. The offending police officer appears to be former campus police officer Jarrett Warnick, as detailed in a Sept. 9, 2014 Bottom Line article.  Warnick’s case, including his charges of second-degree sex offense, perverted practice, and second-degree assault, was placed on the stet docket on Sept. 10, 2014, indicating a halt of prosecution. On Feb. 26, 2016, a petition for expungement of records was filed for Warnick’s case. If approved, the expungement would remove record of the case from law enforcement and court records.

Regarding these cases, the OCR determined that the university had failed to “promptly and equitably respond to complaints of sexual violence, including sexual assault” or “end the sexually hostile environment for the two students.”

In a press release provided to the campus community by the FSU Office of News and Media Relations, the university responded to the DoED’s findings, stating, “FSU has agreed to take action steps recommended by OCR but is not admitting that it is not in compliance with Title IX or its implementing regulations.” Three different individuals have occupied the office of the university president during the investigation.

In the three years since the investigation began, the university has enacted several extensive reforms relating to institutional handling of sexual assault. The most visible reform was the formation of a permanent campus Title IX Coordinator, now attorney Emily Caputo. Caputo described subsequent reforms to The Bottom Line, including: the creation of the Office of Gender Equity; the appointment of April Baer as Deputy Title IX Coordinator; the creation of mandatory training for students, faculty, and staff; the collection of research through focus groups and climate surveys; and the upcoming annual publication of Title IX reports, including all incident data and outcomes. In addition, FSU’s Title IX-related procedures and policies were recently updated, standardized, and consolidated to comply with federal and state law, as well as widely accepted best practices.

Prior to the creation of Caputo’s position, all student disciplinary procedures, including cases of sexual assault, were handled by the office of the Dean of Students, then occupied by Dr. Jesse Ketterman, who left the university in the summer of 2016 before the DoED announcement.

Caputo states that the culmination of these reforms has resulted in the university having “a completely different policy. We have a completely different process for responding [to cases].” According to Caputo, the policy and processes the university has crafted are “based on best practices, a trauma informed approach so that… we’re [the university] reducing the risk of re-victimizing someone but at the same time offering those due process protections that those who are accused of misconduct are entitled to.”

The OCR expressly commended these reforms and the ongoing progress.  In the Sept. 9 press release, Deputy Assistant Education Secretary for Civil Rights Catherine E. Lhamon said, “I thank Frostburg and its leadership for their commitment to making changes to satisfy Title IX, working to ensure that all Frostburg students can learn free from sexual violence.”

The brokered agreement means that the institution will face no formal sanctions, no loss of federal funds, and no other punishment as a result of the violations.  Instead, the university has agreed to accept and take action on recommendations from the OCR designed to continue improving the handling and awareness of gender-based violence on campus.  Caputo noted, however, “for an undefined period of time, the federal government, OCR, is going to monitor the university.”

Both the university’s and the OCR’s press releases include a summarized list of the terms of the compliance agreement.  In accordance with these terms, FSU will review all complaints of sexual harassment and sexual assault made to the university since the start of the 2011-2012 academic year and address the specified deficiencies pertaining to sexual assault procedures identified in the OCR’s findings.

In addition, FSU will be expected to enhance its training and outreach programs

focused on educating members of the campus community on Title IX and sexual assault. The agreement also stipulates that Frostburg will “reimburse the two complainants for expenses for counseling, academic, and/or therapy services.” In her conversation with The Bottom Line, Bennett declined to comment on any reimbursement she may have received from the university, stating, “I won’t comment on that aspect.”

According to the OCR’s letter to President Nowaczyk, if the university fails to implement the agreement, the federal agency may undertake administrative or judicial measures to enforce the terms of the agreement.

While the university does not admit noncompliance, Caputo emphasized the ongoing process of improvement, noting that the university is “not blind to the fact that there are things that could have been done differently and things that we could have done to help students more.”

Consequently, Caputo asserts that the university has “moved in that direction” with the previously described reforms, noting that the university is “going to continually evaluate our process to make sure that we’re meeting student’s needs.” These efforts, Caputo states, will help ensure that “we’re [the university] not making the same kind of mistakes that have been made in the past.”

In regards to the investigation and conclusion, Jerica Bennett commented on the past three years and the difficult situation she found herself in. “You have one end, where it’s Frostburg State University, and then you have the other end of it being the Department of Education, and then you have, in the middle, just a girl, known as ‘Complainant 1,’” said Bennett, who expressed that she was relieved the investigation has come to a close.

Bennett added that she never wanted to harm the university by filing a federal complaint but rather wanted to encourage reforms that would improve the process of reporting sexual assault for future victims. The former Student Government Association president stated, “I didn’t want any other person that came forward to ever go through what I did,” but added that, “I still care about the university and I want to see it succeed.”

Bennett expressed hope that FSU continues the work it has begun to improve the handling and awareness of sexual assault on campus. On her role in the improvements, Bennett notes, “I don’t think anything would have changed if I didn’t speak out, unfortunately… it’s one of those things where people don’t like change, people don’t want to admit when they’re wrong.”

Although she was “elated” that ongoing reforms would be implemented by the university, Bennett called the institution’s decision not to openly admit fault “a slap in the face.” She added, “I wish the university more than anything would just apologize to us. That would just mean more than a lot of people would ever know.”