The Inbox: Part 2, Frances

Sarah Viren: One of the people in my inbox was a law professor and writer named Lara Bazelon. She runs a racial justice clinic at the University of San Francisco's School of Law.

Lara Bazelon: Hold on. Okay, this is what I sent to you: "Dear Sarah, I read your New York Times piece when it came out. As someone who litigates on behalf of those accused of Title IX violations, your story resonated with me. Thank you for being brave enough to write it."

Sarah: The clinic mostly deals with criminal cases, but they also take on clients accused of sexual misconduct under Title IX. That's the law we discussed last episode. We'll examine it a little more closely in this one.

Sarah: Lara wrote to me in July of 2020, three months after my story published. I wrote her back, and we corresponded for a while. Then one day she asked if I would visit her class and talk about my story with her law students, and I agreed. It was October by then. I was in my office at home in Arizona, our dog asleep at my feet. Lara was on fall break somewhere, Zooming in from a small space that her kids occasionally invaded, eating snacks or asking questions, while she talked on, brilliant and slightly chaotic in a way that put me at ease. The class was small, and the students asked smart questions about what had happened to Marta and me, and how and why I wrote about that experience. But then near the end, Lara asked a question I'd been trying to avoid for months.

Sarah: "After what happened to you and Marta," she asked, "do you think differently about Title IX?"

Man: "Sarah?"

Woman: "Dear Sarah."

Man: "The pendulum has swung so far that innocent people are being devastated."

Woman: "I had a very similar experience that sadly terminated my academic career."

Man #2: "Now you see how unfair Title IX can be to those accused."

Man: "It is being weaponized by a few."

Woman: "Every charge against me, no matter how ridiculous, minor or obviously false ..."

Man #3: "It should be changed or limited substantially."

Woman: " ... and relentlessly investigated with no due process."

Man #4: "It is to abandon due process."

Man #3: "And those leading the Title IX charge are sometimes not willing to understand or accept that reality."

Sarah: In the story I'd published, I stated clearly that I supported Title IX—the law passed in 1972 to prevent gender discrimination in schools, and had been used more recently to address sexual assault on college campuses. Of course I supported it. But there were real problems in how Marta and I were investigated under Title IX, and in the weeks and months after I published my story, I thought a lot about my hesitancy to find fault with the law, or at least how it was being implemented. And I realized that that was partially based in fear.

Sarah: There is a deep, deep divide between those who support using Title IX to deal with sexual misconduct in schools and universities and those who don't. And I didn't want to be seen as being on the wrong side of that divide. Or, as my dad would say, I was being a chicken shit. But that day in Lara's class, I decided to stop. I said I didn't feel differently about Title IX at first, because I thought Marta and I were an anomaly. It was only after reading the stories in my inbox of so many others in similar situations that something in me shifted. You can't be an outlier if you find yourself in a crowd.

Sarah: So for this episode, I decided to reach out to a couple people in that crowd. I hoped they might help me think a little more deeply about Title IX. One is Lara, who we'll get back to soon, but the other is a woman who we'll call Frances. She also emailed me in July.

Frances: And it says, "Hello. I had a very similar experience with a false Title IX accusation. Thank you so much for sharing your story. I would love to tell you my story, and I was hoping you could help me find my voice."

Sarah: Frances is an academic like me, but also a scientist. And she told me she had a folder full of documents that could back up her version of events. I was hesitant at first to help her find her voice, as she put it, because, well, that chicken shit thing. But eventually I wrote her back and said I'd be willing to try if she still wanted to tell her story. She responded that same day. "Yes!!" she wrote—two exclamation points. "I'm in."

Sarah: We're going to keep Frances somewhat anonymous here, but I'll say that she has a broad smile and thick brown hair. She was calm when we talked, but assured, and I liked her right away. Her story starts in the spring of 2017, when Frances was having lunch with a colleague, a good friend of hers.

Frances: He was eating pho and I was eating one of those Vietnamese sandwiches. It was really good. And we were just chatting and he said, "I've got to tell you something. Someone is talking about you. Somebody is saying things about you." And he said the provost of the university had asked him if I had been sleeping with students.

Sarah: The provost is one of the school's most senior administrators, so the news was jarring for multiple reasons. Frances barely remembers the rest of that lunch, but later that afternoon, she walked into the office of another administrator at her university—someone she knew well—and asked what was going on.

Frances: They sat me down. They closed the door and they said, "So-and-so has filed a Title IX against you saying that you were sleeping with students." And then I naturally asked a bazillion questions. What? Who? When? What did it say? What—what are you talking about?"

Sarah: Someone had reported Frances to the Title IX office for supposedly sleeping with her male students—something that hadn't happened. And she was pretty sure she knew who was behind the accusation—a colleague of hers.

Frances: I had always felt that that person had it out for me because of who I was. So I am Mexican American, I'm a first-generation college student. And when I was in high school, so I went to inner city, public high school, there were a lot of gangs and drugs and violence, and it was a challenge to make it through high school. And I didn't know that college was an option. I didn't know about SATs, college prep courses.

Sarah: The main reason Frances went to college at all was because she bumped into a friend after graduating from high school. That friend told her about taking classes at the local junior college, and she decided to give it a try. It was then that Frances had a pretty pivotal experience. She was dating a guy, and the two were in a class together. And while Frances sat silently in her seat, her boyfriend kept asking questions—good ones—and the professor kept answering him.

Frances: Watching him be brave and fearless in asking questions in class and thinking, "I want to ask those questions, you know? I want to be the person that raises my hand and asks those questions."

Sarah: So she worked to become that person. She asked questions. She gained confidence. She finished community college and went on to a university, where she fell in love with chemistry, a very specific type of chemistry that Frances has explained to me but I still don't quite understand. She went on to get a PhD, and after that a job as a professor at a public university, teaching what she loves.

Sarah: But Frances said it was a struggle to get where she was, which by the time she and I talked was a full professor, the highest faculty rank. Only three percent of full professors are Black, Indigenous or Latinx women, while more than fifty percent are white men. In Frances's department, which is small, the numbers were slightly better, but she said she still felt her differences, as a Latina, and a woman, but also as a first-generation college student.

Sarah: And she felt those differences even more once she was named chair of her department. One of her colleagues—someone we're gonna call Jim—seemed particularly resentful of Frances' new leadership position—at least from her perspective. He was a white male professor, and as it turned out, Frances was right, Jim had reported her to the Title IX office.

Frances: I felt like that person had put me in the garbage person category, and how dare you, who wasn't valedictorian, who didn't go straight to a private, highly-regarded college and then a high-rated PhD and do two postdocs, how dare you have that job?

Sarah: After Frances learned who was behind the accusation against her, she decided she'd had enough. She started documenting the ways she felt Jim discriminated not only against her, but also other female faculty in the department and some students. Then Frances filed her own complaint, not under Title IX but under her university's anti-discrimination policy, which covers bias against faculty and staff. Soon after that, she learned that the Title IX inquiry into Jim's accusation against her had been dropped. There was no evidence that Frances was sleeping with her students. She was relieved.

Sarah: But then Frances received a new email. Another Title IX accusation had been filed against her—anonymously. The allegation now was that Frances flirted with her male students. and engaged in a quote, "Pervasive pattern of cruelty, humiliation and bias" toward the women she taught.

Frances: Which I've spent my whole career fighting to promote people who aren't represented in science, which includes women. So that was painful. That hurt.

Sarah: And this time, her university planned to investigate—fully. What that entailed, after a break.

***

Sarah: Around the same time that Frances was being pulled into her own Title IX nightmare, a larger fight was going on over the law itself: what it is, who it protects, and how much say the federal government has in enforcing those protections. That debate arguably started in 2011, when the Obama administration directed colleges and universities to start investigating sexual assault more vigerously under Title IX.

[ARCHIVE CLIP, Barack Obama: Campus sexual assault is no longer something we as a nation can turn away from and say "That's not our problem." An estimated one in five women has been sexually assaulted during her college years. One in five.]

Sarah: Obama vowed to help end sexual assault on college campuses, in part by requiring colleges and universities to investigate and adjudicate all accusations of rape or harassment. But the system his administration helped to put into place to do that was excoriated by the Right.

[ARCHIVE CLIP, Tucker Carlson: Using Title IX as a regulatory cudgel, the administration pressured colleges to lower the burden of proof for sexual misconduct.]

[ARCHIVE CLIP, Robert Shibley: Now colleges can be far, far less certain of whether or not an assault occurred or even whether they got the right person for the assault and still punish them.]

[ARCHIVE CLIP, Martha MacCallum: Pretty stunning, right? But under the direction of the new Secretary of Education, there's an effort to bring due process back for college students.]

Sarah: Trump was elected in 2016, and his pick for education secretary, Betsy DeVos, quickly vowed to repeal Obama's Title IX policy, calling it a "failed system."

[ARCHIVE CLIP, Betsy DeVos: The notion that a school must diminish due process rights to better serve the victim only creates more victims.]

Sarah: And that’s when fighting over the law started to feel like an all-out battle.

[ARCHIVE CLIP, protester: You know, DeVos claims she's seeking justice, but it's not justice.]

[ARCHIVE CLIP, protesters: [chanting] Title IX excuses crime! Title IX excuses crime!]

[ARCHIVE CLIP, protesters: [chanting] No means no! No means no!]

Sarah: Around this time, Lara Bazelon, that law professor who asked me to visit her class, also got pulled into that fight—a little against her will. Lara had been a public defender for seven years. Her focus was on criminal justice, not education law. But then one day in early 2008, she got a call from a friend asking for help on a case.

Lara Bazelon: There was this crazy case at a California State University way, way in the northern part of the state. And it involved a Black student who had been accused of rape by a white student. And his life had essentially been endangered by the reaction in their broader community, which was overwhelmingly white, not just the campus but the town. And this person didn't have any money. Could my clinic help? And my initial response was, "No, we can't."

Sarah: Laura knew next to nothing about Title IX, and her clinic had never dealt with the law before.

Lara Bazelon: And then I went to my students in the racial justice clinic, and I sort of described my decision making, and they said, "We absolutely have to take this case. This is kind of the core of what racial justice work is about, and we'll just have to figure out how to do it." And I reluctantly said yes, and it just led to a two-year-long legal battle that really opened my eyes to what Title IX actually was at its worst.

Sarah: What Title IX actually was at the time—before Trump's new rules went into place—varied from campus to campus, but investigations tended to look something like this: first there was an accusation. Accusations could range from something non-criminal like a sexist joke by a teacher to an act that might involve the police, like rape. Whatever the accusation, once it came in, it was sent to an investigator who evaluated if it fell under the purview of Title IX. If it did, that investigator opened a case. They interviewed the accuser and the accused, but also people around them: friends, colleagues, witnesses. They gathered evidence: texts, emails, social media posts. And sometimes the evidence was shared with the accused. Sometimes, it wasn't.

Sarah: Each university then had its own approach to determining guilt. Sometimes there was a hearing or a review by a panel, but other times that same investigator made the determination completely on his or her own.

Lara Bazelon: That person would be the detective, the prosecutor, the judge, the jury, and in some cases, the executioner. They would be the sole determinant, not just of the facts, sometimes they would even be in a position to impose punishment.

Sarah: Once it came time to make a decision in a case, schools were also required by the Obama-era rules to use what's called "a preponderance of evidence" standard of proof.

Lara Bazelon: And that's the lowest possible standard in the law. And what it means is if you have doubt in your mind that accumulates to 49.99 percent, you must find the person responsible. So to find someone responsible, all you need is 50 percent plus a feather.

Sarah: One reason schools used that standard or proof is because they argue that the eventual punishments—if they come—aren't criminal in nature. And it’s true that depending on the severity of the act, students have sometimes been asked to do something as simple as write a paper on the importance of consent. But other times, they've been expelled. Some professors are only required to go to a training. But others have been put on leave—or fired.

Sarah: In the case of Lara's client, he had already been found responsible under that single investigator system when she took his case. He was a Black man accused of rape by a white woman he'd met on Tinder, and when word of the accusation got out on campus, students there hung posters up with his name, photo and the word "Rapist." He didn't leave his apartment for almost three weeks.

Sarah: Then a second accuser came forward, and though Lara's client was eventually cleared of sexual misconduct in that case, the school suspended him while it investigated. Lara fought that suspension and lost. She was deep into the case by then. Almost a year had passed, and her client was going to be expelled, so she asked for his permission to write about what was happening. This was December of 2018. The Trump administration had just confirmed and published its proposed changes to Title IX. Those changes ensured due process protections for the accused—such as the right to a live hearing—which would effectively abolish that single investigator practice Lara abhorred. The Trump administration began taking public comments on the proposed changes that month, and the majority that came in opposed them—but Lara felt differently.

Lara Bazelon: I thought a lot about the racial implications of the case. And I started doing some research into the racial implications of Title IX. There wasn't much out there because—and I think this is shameful—the Department of Education doesn't collect those statistics. But some colleges did, and so there was some evidence.

Sarah: That evidence included a review of racial bias in sexual assault investigations at Colgate University, where at the time Black students comprised 4.2 percent of the student population, but were accused of 50 percent of the university’s sexual assault or harassment cases. The journalist Emily Yoffe, who looked at public reporting on college sexual misconduct cases for an article in The Atlantic also wrote that while, "Black men make up only about six percent of college undergraduates, they are vastly over-represented in the cases I've tracked."

Lara Bazelon: And so I decided to make the point that the rolling back of the Obama guidelines by the Trump administration was actually a positive development, which is a very hard thing to say. I'm an avowed feminist. I am a liberal Democrat. I am a Donald Trump—I don't even know what the word is for the level of revulsion that I've always felt. But for whatever reason, his Department of Education recognized that there was a due process problem, and they were rolling back these regulations that, while well intentioned, were having this really terrible effect. And they were demanding that schools do things differently. And so I felt like it couldn't just be people like Tucker Carlson saying how great it was. That there was this story about Title IX that had to be told, and so I wrote it. I wrote it out of desperation and I wrote it out of principle.

Sarah: To say a lot of people disagreed with Lara is putting it mildly. After her op-ed ran, the New York Times dedicated an entire Letters to the Editor section online to responses. One of the letters was by the student who had accused Lara's client of rape: "The story Ms. Bazelon relates about a rape accusation was never hers to tell," that student wrote. "It's mine. I am the sexual assault survivor she refers to. She omitted key facts and weaponized my story such that it could be used against my fellow survivors, especially survivors of color."

Sarah: Lara told me it was the most fraught piece of writing she's ever done, but when I ask if she regretted publishing it, she said not for a second.

Lara Bazelon: I believe in my heart that Title IX is, at least as it was in my client's case and at that time, in gross violation of basic due process and racist. And I think it's—if you believe that in your bones and you have a platform to say it, you're a coward if you don't.

Sarah: The op-ed didn't change Lara's client's fate. The findings against him were eventually cleared, but for other reasons, including a new California law banning the single investigator system we talked about. He's no longer at that same college. Lara didn't have his permission to say more, but she did say that if he goes to college somewhere else in the future, none of what he was accused of will be on his record.

Sarah: But that op-ed did change Lara's life. She lost friends over the publication. They told her that by speaking out, she was working against the advances of #MeToo. And to be honest, that was my fear in telling my own story, and now in telling those from my inbox. I think a lot about a college student who wrote to me not long after my story published. She told me that she was a rape survivor, and that she'd wanted to cry when she'd read my story because she felt for both Marta and me, but that selfishly, she also felt like stories like ours might inadvertently harm people like her. "The #MeToo movement," she wrote, "can be derailed simply by the mere thought of a false accusation."

Sarah: That’s the divide I was talking about earlier. It's over Title IX, but more broadly it's about how we talk about and litigate allegations of sexual misconduct. There's a feeling that if you say something that gives ammunition to the other side, you're betraying the cause.

Lara Bazelon: Those criticisms sting. They're not meritless critiques, they come from this place of wanting gender justice, and feeling like maybe sometimes I'm on the wrong side of that. And I do think about that. And my response to that is that the public defender part of me kicks in, and that part has always been deeply afraid of a system that is so skewed that a bare allegation alone essentially is going to be enough to take somebody down unless they have a lawyer. And the people who have lawyers—generally—are the entitled white guys. It's really important for people to understand that a lot of people who are accused are not these entitled white frat boys, they are marginalized people who come from oppressed communities. They are Black and brown men. They are people who are queer. And you can be this person who's pretty vulnerable because of who you are in society, and the Title IX process can be weaponized against you.

Sarah: Most of Lara's clients had comparably less power than Frances. But Frances still felt vulnerable. When we left off, she was facing an investigation under Title IX, a law she felt had been weaponized against her by one of her male colleagues. And in the weeks that followed, that accusation that she was flirty with male students and discriminatory against women slowly worked its way through her department. A big reason for that was that Title IX investigators were meeting with most of her colleagues and also some students, asking about Frances's behavior, both in and out of the classroom. When I ask Frances if the scrutiny and exposure changed her, she didn't hesitate.

Frances: I watched every single thing I did, including what dress I might pick out that day. Everything. I remember thinking—walking down the hallway thinking, you know, "Am I—am I shifting my walk too much? Am I walking too boldly?" The confidence had been punched out of me. All those years I had built up to ask the fearless questions, years had been taken out of me. Years. Because I knew I was being watched and notes were being taken.

Sarah: One investigator told Frances that, in order to defend herself, she should reach out to students who could vouch for her, who would say she wasn’t sexist or flirty. And when she told me that, I imagined having to do that myself. Having to write to a student and say, "Could you send an email saying that I'm not a flirt?" How demeaning that would feel.

Sarah: The investigation into the accusation against Frances stretched through that fall. Then over winter break, Frances received an email asking her to read through rough transcripts of the interviews.

Frances: Before you get the findings, you get the transcripts. And you read those for accuracy. And that's when you get to see what everyone said.

Sarah: Frances immediately scrolled to see what Jim had said. He said he'd heard rumors—from a single student, as it turns out—about Frances sleeping with students. He'd thought he was obligated to report them based on what he'd learned in a Title IX training that year. It was a defense that didn't surprise Frances.

Sarah: But when she began reading the other interviews, her heart dropped, because it turns out that another colleague of hers had also been gossiping about her. He had come to his interview prepared with a list of Frances's supposed trespasses, and told investigators that she was an overtly sexual person who constantly flirts with others.

Sarah: And that wasn't the end of it. A number of the other interviews were laced with latent sexism and racism as well. One student interviewed said that because of the rumors going around the department about Frances, male students had started joking about having sex with her to improve their grades. And then another colleague said he thought students might have complained about Frances because she tended to say things, quote, "too quickly" and was "hot-blooded."

Sarah: Talk to me about the feeling, or what was going on in your head as you read through the transcript and you started to realize what it meant.

Frances: Betrayal. I fell to the floor and I just cried, you know? And my husband was there and my son was there, and I just felt betrayed.

Sarah: Listening to Frances tell her story, I kept thinking about middle school. I don't know if any of you were a girl between the ages of 11 and 14 at one point, but I was. I remember in sixth grade, the boys started calling me "Melons" every morning when I stepped on the bus. In seventh grade, the rumors started, and they were always about this girl or that one, and how many fingers she'd let some guy use. There was one girl who people said had done things with one of our teachers—and we still blamed her for it. It was cruel. I'm sure middle school still is.

Sarah: But then imagine that kind of gossip being put to paper and codified by an administrative process. Imagine it being spread by men with PhDs. Title IX did that to Frances. And I know the argument is that if she had discriminated against her students, or much worse, if she had slept with them, we would want someone to look into that. After Title IX first passed, that was an issue women brought to the fore: they wanted protection from professors who were openly known for requesting sexual favors in exchange for grades. It was a real problem.

Sarah: But the counter-argument is that, for Frances and others, the investigation itself begins to feel like a form of harassment. Frances started to feel like she'd somehow done something wrong. And yet, as the eventual findings would show, she never had. In their final report issued the following year, investigators determined that there was no evidence Frances had flirted with male students or been discriminatory against female ones. They also looked into whether Frances had slept with her students—a question that had supposedly already been put to rest—and found that wasn't supported by facts either. That rumor appeared to have originated with one former student, who when interviewed, offered no proof Frances had done anything wrong, only stating that it was quote, "obvious" she slept with her students.

Sarah: But that moment of absolution for Frances was brief because in that same email, she also received the decision regarding her own complaint, the one against Jim, alleging that he had discriminated against her. And in that case, investigators decided that Jim hadn't harassed her, at least not because she's a woman or Latina.

Sarah: But the investigators wrote that Frances's belief that she was treated differently because she's a first-generation college student was quote, "credible." As if identity were that easy to parse. And yet, educational background is not a protected class when it comes to discrimination law. So in essence, that harassment doesn't count.

Frances: I was just shocked. Just shocked. And just shocked.

Sarah: After that, the cases were closed. Frances wasn't found responsible, but neither was anyone else. Near the end of my conversation with Lara, I ask if she thought we should just get rid of Title IX investigations entirely, because even though Title IX has been around since the 1970s, this push for schools to investigate sexual misconduct themselves instead of just referring them to the police, it's still relatively new.

Lara Bazelon: As flawed as it is, I don't think we should get rid of it. And I say that because most of these cases would never survive and ever see the inside of the courtroom, because most of them are, "he said, she said," and that's just not proof beyond a reasonable doubt. And I think the other thing is that, if you're a student on the campus and you feel like that could happen to you and your school wouldn't do anything to protect you, it would not feel like a very safe place to exist.

Sarah: If you could sort of change the system yourself, how would you change it?

Lara Bazelon: One thing I would do is that I would make sure that there was a very robust early resolution process that did not require the parties to go to a hearing. When you can actually have people sit down and talk about what happened and feel heard, particularly the person who feels extremely violated, that can be more healing than going through a process where the other person is just going to deny everything that you say and try to undermine your account of what happened.

Sarah: Soon after Biden was sworn into office, he announced that he planned to rewrite Title IX policy yet again. In response, Lara and several other lawyers sent a detailed letter to the Department of Education with their recommendations. They suggested doing away with certain Trump-era limits on what types of sexual misconduct schools were required to investigate. But they also said we should keep other Trump-era changes to protect due process rights, such as live hearings and the right to see all evidence against you.

Sarah: Reading their letter, I started thinking about what changes I'd recommend based on my own experience, and the experience of reading so many stories about Title IX in my inbox. Making policy recommendations feels a little risky to me, but I am also trying to be less chicken shit. So here's what I think: first, I think we need the option of restorative justice, not only during an investigation but also when one ends, to give all parties a chance for repair.

Sarah: Second, The Department of Education should do more to make sure that Title IX isn't racist or homophobic in the way it metes out gender justice. Schools should collect detailed data on who is investigated under Title IX. And Title IX investigators should be trained in implicit bias so that they can identify it in complainants—but also in themselves.

Sarah: And last, for the rest of us, this is not a policy recommendation, it's more of a hope—that we might all be better at acknowledging how complicated all of this is. So that people who share their stories don't fear that those stories will be simplified or weaponized by one side or the other.

Sarah: My inbox has helped me see something I should have already known: there are no neat divides. Stories—like lives—are complex. In one of our conversations, Lara Bazelon told me that being on the side of complexity can feel isolating, like you live on a small, lonely island. But it shouldn't be like that. My hope is that more of us find our way there.

Sarah: Up next, my inbox leads me to one of the most complicated stories I've heard yet. A story that started a decade ago and will not stop.

Kristen Torres: "The Inbox" is a project of The 11th, from Pineapple Street Studios. It's written by Sarah Viren and produced by Sarah Viren, Jenelle Pifer and Maria Robins-Somerville with editing by Joel Lovell. The 11th team is Leila Day, Joel Lovell, Eric Mennel, Jenelle Pifer, Chloe Prasinos and me, Kristen Torres. Our executive producers are Max Linsky and Jenna Weiss-Berman. Our engineers are Raj Makijah, Hannis Brown and Devy Sumner. Fact-checking by Sara Ivry. Music by Raj Makijah, BlankForms and Blue Dot Sessions. Sales and marketing by Cadence13. Artwork by Jonathan Conda. Thanks for listening.