Inexperience, understaffing, missteps plague Fresno State Title IX office, records reveal
By Robert Kuwada, The Fresno Bee
The Title IX office at Fresno State for years has not just been understaffed, but staffed with what appears to be under-credentialed employees when compared to other campuses in the California State University system. But findings from an external CSU investigation, a campus task force or an impending state audit into the largest four-year public university system in the country and its handling of sexual harassment cases could trigger change at a university that failed in four searches to find a Title IX coordinator under former president Joseph I. Castro.
“That’s precisely what the investigation is going to analyze,” Fresno State President Saúl Jiménez-Sandoval said, when asked whether the department personnel are in need of evaluation. “The investigation will analyze what resources we have, and the resources are people, as well.
“Right now, I’m going to withhold comment on qualifications and I’m going to wait and see what this report will tell us about how the situation was handled, No. 1, by whom was it handled, what the qualifications are of the individuals and then how it is that we had resources in the process or did not have resources, as well.
“Based on that report we will be able to look at the structure, and then together with the task force we will be able then to say, ‘This is where we are. This is where we want to be. How do we go from here to here?’ And then move forward with that.”
The Title IX office, a secondary target in a firestorm that led to the resignation of Castro as CSU chancellor for his handling of sexual harassment allegations when president at Fresno State, has been led since January 2018 by director of Title IX and Clery Compliance Jamie Pontius-Hogan.
Erin Boele, who also serves as director of housing and residential life, is the deputy Title IX coordinator.
Pontius-Hogan, Boele and Debbie Adishian-Astone, who as vice president of administration oversees the Title IX office, will defer comment until after the CSU’s external investigation and review of its Title IX systems by the law firm Cozen O’Connor, according to a university spokesperson. But prior to her hiring, Pontius-Hogan — an assistant dean of students and director of student conduct at Fresno State — had no experience in Title IX compliance or sexual harassment or sexual assault investigations on her resume, which was obtained by The Bee from the university through a public records request.
A LACK OF EXPERIENCE, INVESTIGATIVE MISSTEPS
Boele also had never worked in Title IX compliance.
Both were appointed on an interim basis and later permanently after recruitment efforts for a Title IX coordinator failed.
Title TX and Discrimination, Harassment and Retaliation staff complete training through the CSU. But neither Pontius-Hogan nor Boele has updated certification in compliance or investigations from the Association of Title IX Administrators, unlike many Title IX personnel in the system.
Pontius-Hogan, according to ATIXA records, had certification in Campus Threat Management, but it expired in 2018.
Boele has never held certification from the group, which offers more than 30 courses and training and certification from top practitioners in the field in compliance, investigations and prevention and remediation.
That lack of experience or training is an exception across much of the CSU, where at least nine Title IX coordinators hold law degrees and the majority had previous Title IX compliance and/or investigative experience.
Students, staff and faculty at Fresno State, alleged victims and perpetrators of rape, sexual assault and sexual harassment on campus, may have had cases poorly handled as a result. Two ended up in Los Angeles Superior Court, with the trustees of the CSU and former chancellor Timothy P. White as respondents.
When interim coordinator, Boele through a series of procedural errors mangled a 2016 sexual misconduct investigation that was initiated after a witness reported a Fresno State student was “putting something in women’s drinks at parties … and sleeping with them.”
In 2019, that student, identified as John Doe in court documents, sought and received an administrative writ of mandate directing the CSU to set aside a decision to expel him from all campuses in the CSU system.
Two women in April 2016 had filed separate allegations of sexual misconduct against the student, Jane Roe 1 and Jane Roe 2. Boele completed her investigation in June and in her report concluded the student had sexually assaulted Jane Roe 1 because she was a minor at the time, and Jane Roe 2 because she allegedly was incapacitated.
But the university did not give John Doe a copy of the report, nor the names of complainants or witnesses. It also neglected to send John Doe a Notice of Investigative Outcome.
Fresno State notified the student in August that former vice president of student affairs Frank Lamas had determined the appropriate sanction was expulsion from all campuses in the CSU system.
But investigative errors led to an appeal, to the petition for writ of administrative mandamus, to the CSU chancellor’s office ordering Fresno State to reissue a NOIO and to provide to John Doe a copy of the investigation report along with the names of all complainants and witnesses, and to the CSU remanding the case back to Fresno State to reopen the investigation with regard to the complaint by Jane Roe 2.
According to the writ petition, in Boele’s investigation notes there was an entry that Jane Roe 2 had dropped out of Fresno State at an unspecified time and in Boele’s amended investigation report she described Jane Roe 2 as an unenrolled student from Fresno State.
CSU VIOLATES ITS OWN POLICY IN INVESTIGATION
The CSU’s executive order 1097 at that time authorized it to investigate sexual misconduct complaints of students, according to the writ petition. Jane Roe 2 had dropped out of school months before the incident and was not under CSU policy considered a student, yet Boele proceeded with the investigation even though the CSU could not adjudicate the complaint under the CSU’s own executive order.
John Doe also contended that Fresno State failed to provide notice of the allegation that Jane Roe 1 was incapable of consent because she was a minor, and that lack of notice violated his right to a fair procedure.
The court agreed — under the executive order, the accused student shall be given notice of the charges and a description of the allegations prior to or during an initial interview, and there was no evidence Boele informed John Doe of the charges prior to or during that interview.
In addition, the CSU contended John Doe had admitted Jane Roe 1 was underage in his interview with Boele, citing her amended investigation report completed after it was remanded back to the university. But Boele had not included that statement in her original investigation report and she did not have it in her investigative notes.
Given the inconsistency, the court ruled that aspect of the amended report deserved little credence.
A second case that found its way into the courts involved a former tenured associate professor at the university, identified as Jane Doe in court records.
Two adjunct professors in September 2016 filed Title IX complaints on behalf of three former graduate students, Jane Roe 1, Jane Roe 2 and Jane Roe 3. But it was not until April 2017, more than six months after those complaints were filed, that the associate professor received a letter informing her of an investigation into reports she may have violated its policy on sexual harassment, according to a petition for writ of mandamus and declaratory relief.
She met with an external investigator in late April or early May and it was not until September 2018, 17 months after that interview, that the university issued its summary of facts and witness accounts of incidents.
Jane Doe submitted seven objections to Fresno State about the summary and its investigation including a failure to provide her sufficient notice of the specific charges lodged against her in the complaints – the notice did not include the alleged violations or provide any factual allegations; and a failure to abide by the timeline and due process requirements in Title IX and its own executive orders – under federal law, Fresno State must conduct a “prompt” investigation and under CSU executive orders it had 10 working days after receiving a complaint to conduct an intake interview and 60 days to complete its investigation.
THE UNKNOWN OF, ‘WHAT’S GOING ON?’
A settlement agreement in that case was reached in 2019.
Attorney Susan C. Stone, who represented Jane Doe, declined to discuss the case and the settlement.
“What we can talk about is what are the important principles that we can take from this writ, and that’s what I think is really important to focus on, the importance of proper notice, the importance that all Title IX matters be adjudicated promptly and not drag on endlessly,” Stone said.
“I will tell you that it’s May, it’s Mental Health Awareness month, and that’s particularly important to my law partner Kristina Supler and myself because when people are involved in these cases there is suffering on both parts, both for the people who file complaints and the accused. We represent complainants and respondents. You can’t imagine how much people suffer from anxiety and depression and the unknown of what’s going on, and that highlights the importance that matters be adjudicated quickly.”
Many Title IX and Discrimination, Harassment and Retaliation investigations at the university are now led by external attorneys retained by the CSU Office of General Counsel.
But in 2016 and ‘17 when Boele was the interim Title IX coordinator, Fresno State investigated 10 cases of sexual misconduct and three cases of sexual harassment through to resolutions ranging from a referral to faculty affairs to expulsion, according to department records. There could be other resolutions that would not stand up to judicial review, with the potential for a number of victims who were not aware of the processes from reporting an incident through to the resolution of a case, or did not have access to legal representation.
WILL ANSWERS COME IN CSU INVESTIGATION OR STATE AUDIT?
Mark Hathaway, the attorney who represented John Doe, said it would be likely that the same mistakes were made in every case that the Title IX office was responsible for during that period of time.
“I don’t think they singled out this particular student and said we’re going to do all the others correctly, but this one we’re going to do wrong,” he said.
“From the school’s perspective, often it’s treated more like a personnel issue,” Hathaway added. “The goal is just to get rid of the bad employee, in this case the bad student. It doesn’t matter how that happens, and as you can see with the case that we were responsible for in Fresno there were mistakes at every level, at the school and at the chancellor’s office.”
Answers to that question may come in the CSU investigation into how Fresno State handled sexual harassment allegations or an impending state audit backed by 43 legislators including Assemblyman Jim Patterson, R-Fresno.
That audit is expected to delve into sexual harassment and Title IX allegations and how they were handled not only at Fresno State, but elsewhere in the CSU including the chancellor’s office. “We want to review the university sexual harassment policies and their procedures,” Patterson said earlier this month, when the request went to the Joint Legislative Audit Committee.
“We want to identify the total number of sexual harassment complaints as well as the timeliness in resolving them. We want to go back over the last five years. We also want to compare and contrast the investigations that took place at the different campuses. Are there underlying similarities? Are there underlying processes that have led to some of the controversial decisions?”
If Fresno State is found to be lacking, Jiménez-Sandoval said he will not be hesitant to make changes in attempting to move past a difficult period on campus that was sparked by a 2019 Title IX investigation into Lamas, who was found by a preponderance of evidence to have engaged in inappropriate workplace behavior.
FRESNO STATE PRESIDENT NOT AFRAID OF CHANGES
“I think I would have to cross that bridge when I come to it, but if the investigation is clear about a certain conclusion, I’m not the type of person who just sees the writing on the wall and doesn’t do anything about it,” he said. “I’ll say that in general terms.”
The university, while waiting for reports from the CSU investigation into its handling of sexual harassment cases and its task force, is in the process of expanding its Title IX and DHR departments, posting positions for a deputy Title IX coordinator, a deputy DHR administrator and a deputy DHR coordinator.
It will be closer to some CSU universities, then, at least in staffing numbers.
At San Francisco State, with an enrollment of 26,620 in the fall of 2021, ranking just ahead of Fresno State and its 24,946 students in the CSU system, the Title IX office is led by Heather Borlase.
Borlase, the executive director in the Office of Equity Programs and Compliance, has a law degree from Golden Gate University and been an adjunct professor of law at Golden Gate and at the University of San Francisco. She was an employment attorney in private practice for 11 years and was hired away from UC San Francisco, where she was a complaint resolution officer evaluating claims of sexual harassment and sexual assault. Her resume also includes a stint as an investigator in the felony murder unit of the Public Defender Service for the District of Columbia.
Borlase, who holds a Title IX coordinator certification from ATIXA, also oversees a staff that includes four investigators.
FRESNO STATE TITLE IX OFFICE WELL BEHIND CSU PEERS
Two of those investigators have law degrees, Borlase said, and two have experience in either student affairs as a student conduct officer or a history working with and advising students and has served in the courts system working with juveniles.
The university also is in the process of adding deputies, and a full-time case coordinator.
At Cal Poly San Luis Obispo, which had a fall 2021 enrollment of 22,028, ranking just behind Fresno State, Maren Hufton is the Title IX coordinator as assistant vice president for civil rights and compliance.
Hufton has a law degree from Michigan and spent nearly 12 years as an associate and then partner at a Newport Beach law firm in compliance and corporate governance, enforcement defense and investigations. At Cal Poly, Hufton started as the director in the Office of Equal Opportunity and then the Office of Civil Rights and Compliance.
Pontius-Hogan was the assistant dean of students at Fresno State before she was hired as director of Title IX and Clery Compliance. She has a master’s degree from Western Kentucky in education and a PhD from Tennessee in higher education administration.
Boele, who was appointed interim Title IX coordinator in 2016 and deputy in 2019, has a bachelor’s degree from Fresno State in psychology and a master’s from Idaho State in counseling.
Before returning to her alma mater as director of housing and residential life, she was the resident director for residential life at Nevada, overseeing daily operations of dorms on campus.
But Fresno State, which has a history of Title IX offenses and paid millions to settle sex and gender discrimination cases, has not had success filling those positions since the retirement at the end of 2015 of Jan Parten, the former associate vice president for human resources and campus Title IX and ADA coordinator.
Boele was appointed interim in January 2016 while a national search that ran from December 2015 to February 2016 failed to land the university a full-time Title IX coordinator.
A second search was launched in April 2017 and lasted through September. That recruitment also failed.
Pontius-Hogan was appointed interim Title IX coordinator and Boele interim deputy coordinator in January 2018.
Another national search was conducted in April 2018 and it was ended that July when Pontius-Hogan was appointed Title IX coordinator. Boele was appointed deputy at the end of May 2019. There also was a national search for a Title IX coordinator in 2015, after Parten had announced her retirement at the end of the year. That recruitment failed.
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