Colleges now forced to judge challenging cases

Kathryn Nash warned her audience that this wouldn't be easy.

A college sophomore named David claims that a female student showed up at his dorm room, uninvited, and sexually assaulted him.

Sound far-fetched? There's more. The classmate, too, claims there was a sexual assault — but that she, not he, was the victim. She says David's accusation was nothing more than a cynical ploy to cover up his own misconduct.

Now it's your job, Nash tells a roomful of college employees, to find out what really happened.

How? That's what she hopes to teach them, in a one-day crash course on how to investigate rape.

As colleges come under unprecedented scrutiny over sexual assault, professors, administrators and even librarians are flocking to seminars like this one. At many schools, they're the ones who are assigned, in their spare time, to be fact-finders and arbiters in campus disciplinary cases. And Nash, a 38-year-old Minneapolis attorney, has emerged as one of the go-to experts in the field. She has built a thriving national practice, in part by training faculty and staff how to gather and weigh evidence in cases involving accusations of sexual assault.

In the past, colleges and universities were largely free to discipline students — or not — as they saw fit, usually in confidential proceedings that attracted little public attention.

The stakes for colleges have never been higher, says Nash. That's why a growing number of schools, in Minnesota and beyond, are hiring professional help.

For training purposes, Nash has packed as many twists and turns as possible into the story of David and his classmate, Ashley, the mock case that's the centerpiece of her seminar. She wants the attendees — all of whom play key roles in campus disciplinary proceedings — to know just what they may be in for.

On college campuses, Nash points out, sexual assault complaints rarely involve total strangers. "This is not about people hiding in the bushes," she tells the group. "They might be friends. They might even have dated."

Most of the time, she said, there's not even any dispute about whether the sexual contact occurred.

The allegations almost always hinge on lack of consent, or whether one of the parties was too intoxicated (or otherwise impaired) to agree to anything.

Should one, or both, be suspended or expelled? That's what the class will have to decide.

For a touch of reality, Nash and her colleagues bring in actors to play the students and demonstrate the techniques professionals use to elicit information.

It's not an easy task, she notes, for people who typically don't do this sort of thing for a living.

"You have to know things," says Nash. "Like who took whose clothes off? And who was on top? And was there penetration? Stuff that's really uncomfortable to talk about."

It also requires a touch of diplomacy, particularly when asking alleged victims what they said and did during the incident. "These are some of the more difficult questions to ask in a way that doesn't sound victim-blaming," said Nash.

The training, which stretches for six-and-a-half hours, crams in tips on how to gather evidence, weigh testimony and decide what's relevant or not.

To critics, the mere fact that colleges are, in effect, putting students on trial for sexual assault is cause for alarm. The problem, simply put, is "the competence gap," says Joseph Cohn, a civil liberties lawyer with the Foundation for Individual Rights in Education.

"I like to believe that most campus administrators want to do the right thing," says Cohn. But "investigations are not their strong suit. They're not equipped to do it. They don't have the tools."

He and others, including many defense attorneys, complain that colleges are relying on amateur sleuths, with no access to forensic evidence, subpoena power or ability to put anyone under oath. "How reliable in that case do you think the finding can possibly be?" Cohn asks. "It's not a recipe for success."

Nash readily admits that it's challenging, especially for small colleges.

The first calls for help started trickling into Nash's office in 2011, when the U.S. Department of Education issued its now famous "Dear Colleague" letter. The letter warned colleges and universities to step up efforts to combat sexual assault or risk losing millions in federal aid. It also imposed a slew of new rules, including a mandate to investigate allegations of sexual misconduct, along with detailed guidelines on how to go about it.

At the time, Nash, a specialist in employment law at Gray Plant Mooty, had a host of colleges as clients, but the issue of sexual misconduct was a small fraction of her work. Suddenly, colleges began calling, asking for guidance on how to handle these cases. The trickle turned into a stream, and then a flood. In 2014, Nash and a colleague launched a separate division within the law firm, known as trainED, to focus mainly on campus sexual assault.

Today, Nash heads a team of 10 attorneys, training college officials in nearly all 50 states.

For schools, the pressures have only mounted. In the last few years, they've seen an outpouring of campus activism and a surge in the number of sexual assault reports — along with lawsuits accusing them of mishandling these cases. At some small colleges, the demands have proved so daunting that they started outsourcing the investigations to Nash and her legal team.

No one was willing to put a price tag on the impact on college budgets. "It has become more expensive," concedes Amy McDonough, the government relations director at the Minnesota Private College Council. But few colleges seem to be complaining, at least publicly. "They don't mind spending the money if they think it's going to help their students," she said.

"I think that's what people appreciate about Kathryn," says McDonough, who has hired her as a consultant. "She's very calm and very neutral."

Stephen Vaughan, one of Nash's partners at trainED, says her unflappability is one of the secrets of her success. "These are highly emotional, combustible issues," he said. Nash "is this very clear voice of reason. She's probably the most balanced thinker I know."

During training, Nash says, she emphasizes the need to be as evenhanded as possible. "We talk about not using the word 'victim,' " she says, because that presumes an assault took place. At the same time, they teach investigators not to jump to conclusions if an accuser has memory gaps or gives contradictory accounts; that could be the result of trauma.

Angi Faiks, a librarian at Macalester College, has taken part in about a dozen campus investigations, and says that Nash's seminars helped give her the confidence and skills to do it well.

"I will say I feel very prepared," she said. No one takes these cases lightly, she said, but the training helps ensure that they home in on the critical facts, and apply the rules fairly. "I've had the same question — am I suited to do this?" Faiks admits. "My experience has taught me that I am."

This day, they sided with David. The general consensus, says Nash, was that he did not assault Ashley, because she admitted saying "I guess" when he asked her to have sex. But Ashley, they concluded, probably did cross the line the following night, when it appeared that David was too drunk to consent.

The net result: Ashley, not David, would likely be suspended for sexual assault.

The truth, Nash says, is that another group might have ruled differently.

"These are often close cases," she said. And that makes things even more tricky. "Schools know that these are really difficult decisions," she said. "No matter what they do, someone is going to be unhappy."