‘Sledgehammer to her future.’ Experts blast CMS response in sexual assault case
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Title IX complaints in CMS
From lawsuits at Myers Park High to Charlotte-Mecklenburg Schools reassigning administrators amid controversy, this is the latest on sexual assault cases and Title IX issues in the district.
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Charlotte-Mecklenburg Schools’ attempted suspension of a girl who principals judged was lying about a sexual attack in a bathroom at Hawthorne Academy of Health Sciences goes against Title IX best practices, according to national experts on how schools should respond to such cases.
One went as far as to call the district’s response last month “ignorant,” saying school leaders responsible for sexual assault investigations need immediate re-training. Superintendent Earnest Winston said the district takes all allegations of misconduct “very seriously,” and district leaders “review assertions of Title IX reporting problems and will take appropriate action in the event any review reveals action is necessary.”
At the center of the case — in which a 17-year-old male student has been criminally charged, prompting school leaders to reconsider their findings — is a question of whether sexual contact at the school was consensual.
The 15-year-old girl and her mother, in an interview with the Observer, say it was not consensual. School documents they shared suggest officials found no evidence of assault. It’s unclear what police officers concluded about what happened in the bathroom that day.
The girl is facing punishment for what Hawthorne officials called “falsification of a report,” which has already led to a protest at the school and embroiled administrators, two of whom have been suspended. The girl’s one-day suspension, for now, is on hold.
Even if the re-opened case leads to the same conclusion, district leaders would be wrong — and possibly run afoul of federal law — if they suspend the girl, says Nancy Hogshead-Makar, along with two other experts recently interviewed by The Charlotte Observer.
“For this girl, it’s like the district took a sledgehammer to her future,” said Hogshead-Makar, CEO of ChampionWomen who has served as a witness in numerous Title IX cases and testified in Congress.
District officials have largely refused to comment on specific cases involving students. A spokesperson said every school has an appointed Title IX liaison, students are informed of their rights and the process, and CMS will likely update its age-specific sexual education classes to include lessons on safety, consent and dating violence.
‘Disturbing pattern’
Federal regulations aimed at protecting victims against sexual misconduct on campus make no guarantee that students accused of assault will be prosecuted or punished. That decision is based on whether school investigators find evidence, and recent changes to federal rules added protection for those accused of sexual harassment or rape in school settings.
Title IX is part of federal education law that prohibits discrimination based on sex and requires schools thoroughly investigate harassment or sexual violence reports from students or staff.
CMS has faced widespread criticism for how it handled the Hawthorne case — where now another female student has come forward, telling WBTV she was assaulted in 2019 and instructed by the school to sign a confidentiality agreement about what happened.
The issue of non-disclosure agreements is another highly-scrutinized aspect of the recent case.
And, as the Observer reported earlier this week, the police department’s incident report shows the 17-year-old male student was arrested and indicates there was an earlier accusation against him by a younger student, also a report of sexual violence, going back to early 2020.
The Observer is not naming the girl, nor her mother, as we do not typically identify those who say they’ve been victims of sexual assault. The male student’s name is redacted from police records.
Especially in light of other Title IX complaints and controversy surrounding cases in CMS, Hawthorne leaders could have instead chosen to counsel both students but stop short of punishing the girl they accuse of lying, says Lauren McCoy, an assistant professor at Winthrop University whose main research area is related to Title IX and sexual assault cases.
“Schools are required to investigate the claim to determine if a violation has occurred and then issue appropriate sanctions. It should be a completely neutral process,” McCoy said. “The lack of evidence should only impact the punishment of an alleged assailant. They should not pass judgment on a reporting individual.”
McCoy says the Title IX process “is there to support the complainant,” which in this case is the 15-year-old girl.
“This type of punishment will only convince future victims that they shouldn’t report for fear of reprisals,” McCoy said. “It also opens the school up to litigation under Title IX because you essentially have an official policy to ignore or undermine assault claims.”
At least one Title IX lawsuit is pending against CMS, related to a reported sexual assault at Myers Park High in 2015. A similar suit was settled for $50,000 in the spring.
Those cases were the accelerate this year for criticism of the district’s policies around Title IX.
A string of high-profile cases and controversies has followed:
▪ At Myers Park, former principal Mark Bosco has maintained he followed rules and federal law regarding response to reported harassment and assault. Still, he was placed on a three-month suspension which ended with CMS reassigning him in October to another job away from the high school. The former students who sued, and others who came forward with similar cases, were infuriated the district excluded them from its internal investigation into Myers Park Title IX response.
▪ In early October, an athlete was allowed to play football for Olympic High School after being criminally charged of a felony sex offense. When students walked out of class for a peaceful protest, members of the school’s volleyball team were suspended.
▪ At Hawthorne, the 15-year-old girl was not only initially suspended, but she was told she had to take a mandatory class called “Sexual Harassment is Preventable” or SHIP. She refused to sign up for the class. More than 36,000 people have signed a petition calling on CMS board members, who are elected, as well as school leaders to be fired.
“These are huge failures of Title IX regulations,” said Barbara Osborne, a professor of sports administration at the University of North Carolina-Chapel Hill, an expert in what schools must do under federal law.
“All of this is happening within the same school district, and it looks like there is a district-wide problem. It probably goes to a lack of education for administrators, and a lack of a comprehensive, district-wide policy of how to handle Title IX investigations.
“There’s a disturbing pattern emerging, and an investigation is warranted.”
‘Don’t punish her’
The girl’s mother — who the Observer is not naming — told the Observer her daughter struggled to come forward but ultimately told Hawthorne Academy school leaders about the assault after learning about her rights under Title IX during a student training session at school.
That annual training, along with a new student-led task force, is part of what district leaders point to as assurance they take sexual harassment and violence seriously and follow federal law. But persistent questions remain about how CMS administrators have treated girls who come forward and experts question the district’s use of an anti-harassment class (SHIP) as part of its response to the 15-year-old’s case.
Her mother is not only angry that her daughter wasn’t believed but says the school didn’t keep her updated during its investigation and regardless of the district’s findings, her daughter didn’t deserve punishment.
According to experts, her reaction is justified.
Osborne said the girl and her parents and the accused male student should have been actively involved in the investigation.
“It’s the very minimum that should’ve been done,” Osborne said. “During the investigation, you’re supposed to communicate with both sides. Parents interviews are crucial. That’s what a thorough investigation is. The fact that the mom didn’t hear one word until it was concluded ... It’s ignorant, and it’s a problem.”
Previously, as first reported this summer by the Observer, CMS was warned its administrators weren’t following related Title IX regulations. Five years ago, in response to a complaint from one of the Myers Park plaintiffs, federal investigators with the Department of Education Office of Civil Rights largely found in favor of the district but said school officials did not satisfy its obligation to keep in touch with the victim, or notify both the male and female student of its investigation outcome.
As far the SHIP class the girl has been told she must take, the experts interviewed said not only is it uncommon for a K-12 school to utilize curriculum like that but also it smacks of retaliation.
District leaders said SHIP is a supportive class for students involved in serious incidents of sexual harassment or inappropriate sexual behaviors at school or a school activity, and its focus is to provide awareness for students and their guardians to modify inappropriate behavior.
“When I first heard about this I thought this was 50 years ago, before Title IX was passed,” said Hogshead-Makar, whose organization advocates for girls and women in sports.
“That’s the kind of story I wouldn’t expect here in 2021, and when we have the #MeToo movement.
“Not once, even if she was lying, do you as a school leader tell her she has to take a sexual harassment class. Tell her to take a ‘don’t lie’ class or an ‘integrity and leadership’ class. They’re not properly training their administrators, they’re not making sure school is a safe place.”
Osborne added: “It’s definitely a rule that you can’t further victimize the victim. If someone comes forward and there’s no evidence that it happened, you don’t punish her for lying.”
The SHIP class is “restorative, challenging students to reflect on their behavior and make informed decisions moving forward,” Patrick Smith, the district’s assistant superintendent of communications, said.
The school district won’t say if the 17-year-old student accused at Hawthorne was required to take the same class as the girl.
CMS responded to that question with the following: “Regarding SHIP, it is reserved for students who are in violation of Rule 27, which governs student-on-student sexual harassment.”
‘How is this still happening?’
CMS has refused to answer a question from the Observer regarding how many Title IX complaints have been registered through the district’s Title IX office so far this school year.
The district said all school-based administrators, instructional, non-instructional and support staff take annual Title IX training offered via the district’s online talent management and development portal. The training is approximately 90 minutes total, and is specific for instructional, non-instructional and support staff.
Principals are required to make sure all staff are in compliance prior to the first day of school.
The district says it has bolstered Title IX training for students, as far as relaying information at the beginning of the 2020-21 school year of how, where and the process of reporting a sexual harassment or assault claim at school.
Greg Asciutto has taught at CMS’ Garinger High School for eight years. He said that a district-created Title IX lesson that lasts between 25-30 minutes, is presented annually to all students at Garinger High unless their parents opt them out.
“Our school makes a huge deal about compliance with it. To ensure all kids get the lesson, they have to fill out a form acknowledging they’ve received the training,” Asciutto said. “Our admin does a good job enforcing it and letting the kids know who to go to for such issues.”
Winston also has created a Title IX task force that includes students to help make schools safer. But there’s been little transparency surrounding the task force. Winston has said he is scheduled to receive a report from the group in a few weeks.
Osborne said for students who already are scared to come forward with sexual assault or harassment claims, the way school officials respond is crucial. She said that only about 10% of sexual assault victims will come forward, and they go through a period of self-hatred, and they feel ashamed.
“Victims of sexual assault will often say one thing and then say another. Basically, in many cases, your brain freezes. You don’t remember. It’s not unusual to give contradicting information,” Osborne said.
CMS’ responses to sexual assault incidents so far this year are shocking, she said.
In the earliest of the cases that have drawn the latest attention, former student Nikki Wombwell says she was raped in the woods near Myers Park High in late 2014 and dissuaded from pursuing criminal charges. She was warned that if a Title IX case was opened and her allegation wasn’t substantiated, she could be punished for having sex at school, according to her lawsuit which was settled in April. In court records, CMS officials denied blocking her from filing a complaint or going to police.
Wombwell never asked for the school to conduct a formal investigation because of the threat of suspension. In a tearful speech Tuesday to school board members, Wombwell said she feels for the 15-year-old at Hawthorne who was suspended.
“How can this still be happening seven years later,” Wombwell said. “Can you not hear our cries for change? Can you not see that your actions have lasting ramifications for the rest of your students’ lives? Is your reputation really worth more than that?”
This story was originally published November 12, 2021 at 3:11 PM.
