This story is part of a feature examining UVA’s sexual assault policies. Read a companion piece profiling two sexual assault survivors here.
Late one Friday evening last December, toward the end of a six-and-a-half-hour special meeting in UVA’s Garrett Hall, the members of the University’s Board of Visitors listened as a Los Angeles lawyer named Apalla Chopra walked them through a presentation on Title IX and the Clery Act.
It had been exactly one month since Rolling Stone had published its searing account of a gang rape in a University fraternity house and a culture of cover-up among administrators, and two weeks since the fury and protest on Grounds had started to die down in the wake of a partial retraction of the story. UVA was in an awkward position: It had been partially vindicated after reporter Sabrina Rubin Erdely’s piece began falling apart, but school leaders had already made impassioned pledges to reexamine and reform policy in order to fix what nobody seemed to deny was a serious and reputation-killing problem with campus rape.
Among the promises was an extensive legal review of UVA’s response to Jackie’s reported assault, and the school’s sexual assault policies in general, by Chopra’s firm, Washington, D.C.-based O’Melveny & Myers. Back on December 19, the details of that review were still being worked out. A significant portion of the day’s meeting had already been spent in closed session negotiating a contract. But there was Chopra with a Powerpoint, giving the Board a taste of just how tangled the regulatory web is when it comes to schools’ responsibilities to prevent, report and adjudicate sexual assault claims.
The last statement on her final slide said it all: “Law and guidance is in a state of flux.”
UVA has agreed to pay dearly for some stabilizing counsel in the face of all that flux, signing off on not one but two new contracts totaling well over half a million dollars—how far over isn’t clear—with high-profile international firms that will examine and advise on its sexual assault policies. The scrutiny comes just as UVA is considering a major overhaul of those policies that were announced on the very day the Rolling Story ran online, either through cosmic coincidence or some careful timing by the magazine. (For more on the pending changes, see our story on page 18.)
It’s not the first time the University has shelled out for expert help in this realm. C-VILLE has also examined UVA’s nine-year relationship with another legal consultant and campus safety expert who has received more than $75,000 of the University’s money to train the panel of administrators, faculty and students that hear and adjudicate sexual assault claims.
Public university funds are on the line as UVA tries to hit multiple targets: preventing assault, helping victims, protecting the due process rights of accused students, protecting itself from legal liability and, not least, propping up a damaged image.
So is there a problem with throwing money at the problem? No, said Daniel Carter, as long as that’s not all a school is doing. Carter is the director of the 32 National Campus Safety Initiative, a nonprofit venture developing practical safety guidelines for colleges. He, too, is sometimes hired by schools that want to make sure they’re not running afoul of evolving federal regulations.
“Compliance is a good first start,” he said. “Obviously, it’s a baseline, and a lot of these regulations are designed to address the most serious concerns about protecting victims and the campus while ensuring an equitable process.”
But advice from lawyers alone isn’t going to make schools safer, he said. “If you just go in and train someone and say, ‘This is what the law is,’ that’s not really enough.”
UVA isn’t only getting its legal ducks in a row. The University hosted a four-day program on bystander awareness for 130 students, staff and faculty in January, and it’s gearing up to participate in a “climate survey” of 29 schools that will gather input from students on the issue of sexual assault.
It’s the legal reviews, however, that will become the biggest budget line items in the year to come. So who’s getting UVA’s money?
Then: NCHERM Group
Who: In the decade-and-a-half since Brett Sokolow founded his Pennsylvania law and consulting firm, the National Center for Higher Education Risk Management, he’s fashioned himself as the country’s leading expert on higher education risk management—particularly when it comes to sexual assault. A critical 2011 profile in The Chronicle of Higher Education describes him as a “tireless self-promoter,” and as schools’ concerns over their own liability in the face of the increasingly high-profile issue of campus rape has mounted, Sokolow has collected dozens of college and university clients.
He and his staff have since founded three professional organizations for educators and administrators who work in the campus safety realm: the National Behavioral Intervention Team Association (NaBITA), the School and College Organization for Prevention Educators (SCOPE) and the Association of Title IX Administrators (ATIXA). All are registered as not-for-profit corporations in Pennsylvania—they share the same address in Philadelphia’s outer suburbs—but while the professional history on Sokolow’s NCHERM website talks about “giving back” and “venture philanthropy,” the trio of organizations are not traditional 501(c)3 nonprofits. They pay taxes and have no obligations to disclose their top officers’ salaries. Sokolow and several NCHERM partners sit on the boards of all three of the groups, which bring in significant amounts of money from dues, conferences and “accreditation”; membership in ATIXA, for example, costs $599 per person and $2,499 per institution, and its last conference in October 2014 cost as much as $479 per head. In The Chronicle’s profile and a scathing piece from Buzzfeed that ran four months before the Rolling Stone piece brought new attention to his line of work, Sokolow comes across as a savvy opportunist who has succeeded in aggressively marketing his brand of risk management.
What: Sokolow has conducted annual two-day training sessions for UVA’s Sexual Misconduct Board (up until 2012, it was known as the Sexual Assault Board) since 2006, workshops that include instruction in best practices and detailed case studies.
How much: UVA has paid NCHERM a total of $75,793 for about 18 days’ worth of work since 2006, according to a summary of payments turned over to C-VILLE in response to a Freedom of Information Act (FOIA) request. Sokolow’s fee has ticked up steadily since his first trip to UVA to a high of $15,000 for his most recent training session at the University, which took place January 16 and 17 of last year.
Now: O’Melveny & Myers, Pepper Hamilton
Who: UVA’s new legal consultants on sexual assault are nothing if not qualified. Leading the team from O’Melveny & Myers is Walter Dellinger III, a former Acting Solicitor General of the United States who successfully argued a landmark sex discrimination case in front of the U.S. Supreme Court in 2005, Jackson v. Birmingham Board of Education, which significantly expanded Title IX to protect institutional whistleblowers (Dellinger’s client was a high school girl’s basketball coach who was demoted after claiming his school’s boys’ team was unfairly favored).
Joining him is Danielle Gray, a former associate counsel and then Cabinet secretary for the Obama administration who has served on the White House’s college sexual assault task force. And according to a brief bio sketch released when the firm was appointed to work with UVA, Apalla Chopra has expertise in helping colleges and universities make sure they’re compliant with federal law when it comes to campus sexual assault. What that bio leaves out but her CV makes clear: She also has extensive experience successfully defending institutions accused of unfair wage practices, discrimination and harassment.
Then there’s the Philadelphia-based pair from Pepper Hamilton. Gina Maisto Smith and Leslie M. Gomez are both Pepper partners and both nationally recognized experts on colleges’ response to sexual misconduct. Smith serves on a committee that’s helping the Department of Education implement the Campus Sexual Violence Elimination (SaVE) Act, which went into effect last year. Gomez started her career as a domestic violence and sexual assault prosecutor before shifting to represent and conduct internal investigations for schools in sexual misconduct cases.
What: The mandate to bring on outside counsel in the wake of the Rolling Stone story came from Virginia Attorney General Mark Herring, and it came swiftly; he first announced his office was appointing a special investigator to review UVA’s sexual assault policies within a week of the article’s publication. Herring and UVA Rector George Martin initially proposed retired judge and former Deputy U.S. Attorney Mark Filip, but changed course after it was made public that Filip was a member of Phi Kappa Psi, the fraternity at the center of the Rolling Stone rape allegations.
The trio from O’Melveny & Myer was the unimpeachable second pick. It was initially announced the attorneys would investigate both UVA’s response to Jackie’s case and “the University’s entire structure of policies and procedures” on sexual assault.
Somewhere along the line, the scope of O’Melveny & Myers was narrowed to Jackie’s story, and the job of a broader institutional investigation was handed off to Pepper Hamilton’s experts. UVA spokesman Anthony de Bruyn said Smith and Gomez will assist the University with “new and ongoing Title IX sexual assault reports and cases,” as well as assessment and implementation of policy and the school’s response to the Department of Education’s ongoing investigation of potential Title IX violations at UVA.
How much: Good question. O’Melveny & Myers will be paid $500,000 for its review, plus fees and expenses—there’s no limit to those laid out in the contract between the firm and the Commonwealth, which was received by C-VILLE as part of a FOIA request.
The contract with Pepper Hamilton includes no upper limit at all, but specifies that Smith will be paid $660 per hour and Gomez $550, with other supporting attorneys getting $275 and $400 per hour. To put those numbers in perspective, if Smith and Gomez alone each bill 10 hours a week, UVA would be on the hook for nearly $50,000 in February. Their contract doesn’t specify how long they’ll be working for the University.
What UVA says:
Very little. It took weeks of pressure from the media before Rector George Martin responded to questions on December 17 about the transparency of the O’Melveny & Myers review by saying that a findings report would eventually be made public. According to de Bruyn, the University will eventually release documents from both legal reviews, but a date for that release has not been determined.
Since late December, C-VILLE has been asking for an interview with a University employee well positioned to provide insight into the legal challenges the school is facing in sorting out fact from fiction in the Rolling Stone story while simultaneously hammering out new policy on sexual assault: Susan Davis, an associate VP for student affairs and liaison to UVA’s general counsel. Davis joined the staff as an associate general counsel in 1999, according to Board of Visitors records. Her position as both a University attorney and a top administrator in student affairs means she’s smack in the middle of the policy balancing act. She also has a relationship with ATIXA, one of consultant Brett Sokolow’s professional organizations; according to past agendas, she’s been a member of the “training faculty” at four ATIXA conferences since 2012, including one last month in Nashville.
Despite numerous requests, she was not made available for an interview. Sokolow didn’t respond to requests for comment, either.
We had more questions for UVA administrators: the extent to which Sokolow has influenced the University’s sexual assault policy; how administrators balance the dual challenges of limiting liability and protecting students.
De Bruyn responded by saying that the University has “found the training and case study material provided by Mr. Sokolow to be helpful.” He added this: “The safety and well-being of our students remains our top priority, and the University believes its sexual assault and prevention and adjudication policies reflect this commitment.”
Official statements from UVA President Teresa Sullivan have been couched in careful optimism. In a lengthy speech last Friday—a sort of State of the University address announced only a day in advance
—she promised the school would emerge stronger from last semester’s hell.
“The Rolling Stone article put our University in the spotlight, and we are using this moment of national attention to provide strong leadership in the long-running effort to improve student safety on America’s college campuses,” she said. “But there is a danger in the spotlight. Let’s make sure that the glare of the spotlight does not blind us to everything that is already great, and good, and promising about this University.”
