By Elizabeth Zakaim
Tension, anguish and raw emotion surrounded the circle of students and administrators as they watched the College’s president slowly break down in tears.
“I am devastated,” President Kathryn Foster said, after one student at the Lions’ Hour forum stood up in front of everyone and admitted that he could not trust her.
Nicholas Cernera, a junior philosophy and math double major, described a traumatizing moment in his and his friends’ lives — he had to stop his best friend from raping another one of his best friends. He said that since that day, the victim of the incident has never been the same.
“I’ve seen her mentally deteriorate,” he said. His friend confided in him and her family, but otherwise remained uncomfortable confronting the incident. “I saw it destroy her life and I know it’s strongly, strongly impacted mine, even though I was just a witness.”
He said that once he heard about Foster’s decision to overturn Chloe Woodward’s case at her previous institution, the University of Maine at Farmington, and once he realized that he would never learn the details, he didn’t know what to think.
“I can’t trust you, and I don’t think anyone here can trust you,” he said. “That sucks and that hurts — I’m scared of these feelings.”
Every word the student spoke pulled at Foster’s heartstrings.
“I knew I couldn’t make it better, or make it better in the ways that people are asking me to make it better — and I can’t talk to people about that,” Foster said, alluding to the fact that she had to respect federal privacy laws associated with an investigation of this nature.
It hurts even more for her, she explained, because she is still so new to the institution and is still trying to establish rapport with the student body.
“This is an institution I love,” she said. “I would have never wanted to sit in a room and have people say, ‘we don’t trust you and we’ll never trust you.’”
She asked the campus for what those at the forum tried to give — the benefit of the doubt.
“We don’t know each other yet and we only can get to know each other if we give each other a chance,” Foster said as she rubbed tears from her eyes. “I don’t want to make it sound like I did something wrong. I had a role to play and I played that role and a decision was made.”
On Monday, Feb. 4, Foster and other campus administrators, including Dean of Students and Title IX Officer Jordan Draper, Assistant Director of Anti-Violence Initiatives Michelle Lamming and Chief of Campus Police Timothy Grant, held a forum in the Decker Social Space at 4 p.m. to address student concerns regarding Foster’s involvement in overturning a sexual assault case at UMF.
The administrators and students asked Foster questions concerning her attitude toward Title IX and AVI; other students shared their perspectives concerning how she handled the case.
Foster wanted students to know that she was more than willing to hear from them about what she could do to help restore a sense of understanding between her and the student body, to affirm her advocacy for Title IX and to reinforce her support for its campaign and policies.
“One of the most tragic parts of all of this is that sense, especially as a new president, that people think, ‘well maybe she won’t have my back, or maybe she’s indifferent to survivors or maybe she isn’t concerned about sexual violence on campus or protection’— that is not true,” Foster said. “I can’t tell you how committed I am to that and in trying to make sure that this journey that we’re on is a journey that we can do together and that I can take your lead.”
Students also had the opportunity to continue to express personal concerns over Foster’s involvement in the controversy.
Ryan Soldati, a junior communication studies major, said he felt dissapointed with the way Foster handled the situation at UMF and that it impacted his opinion of her as a president.
“I am a sexual assault survivor, and I feel betrayed by Dr. Foster’s actions in this case and I feel less safe on this campus because of that,” he said.
Another student, Katherine Reese, a senior special education and women’s gender and sexuality studies dual major, asked Foster why she had not been more transparent with the College community about this controversy.
“How did you think it was fair to not bring this up until the media broke?” she asked. “I think it was unfair for students to find out that day, and I’m really curious as to why you chose to hide this for so long.”
Foster was quick to explain that this wasn’t a matter of hiding information or trying to keep secrets from the campus community.
According to Foster, the case only came out because it was leaked to the media and she responded as quickly as she could. Normally, cases such as these remain confidential to protect the privacy of the parties involved. She said that even when the case reaches a resolution, she still will not be able to talk about the details.
“This was not a cover-up,” she said. “This was simply a situation of following the federal privacy laws.”
Foster urged students to understand that neither she nor any member of administration was trying to hide something from students.
“There is no such thing as sweeping it under the rug, but what there is is privacy,” Foster said. “And I think sometimes when people don’t hear what the resolution is or don’t hear what the outcome is, the assumption is maybe that nothing happened or there was no resolution.”
Foster also clarified that while she had the role of handling cases on second appeal at UMF, no such policy exists at the College.
Draper also explained the appeals process at the College, which is outlined in more detail on page five.
Foster described her role in handling appeals as one that requires a lot of sensitivity and care. She said that she had received training in the Title IX field at UMF (which was organized by external partners) such as bystander training and annual training with Title IX and other organizations.
“These are really difficult cases,” she said. “You bring care, and you bring whatever integrity. Your role is prescribed. In that way, your role is in a quasi-judicial process — here, the Vice President of Student Affairs will do that.”
However, she could not specify whether or not it was typical of her to handle appeals in her position, or if she only handled it in that case specifically.
“As the news article said, on second appeal in that conduct code it went to the president,” she said.
The worst part of this controversy for Foster is the frustration behind not being able to speak on her own behalf. It also concerns her that students’ knowledge of the case, which primarily came from the Bangor Daily News, a Maine publication, would make them feel uncomfortable under her leadership.
“The fact that I was the source of hurt and anger and memories and triggers and all of that is anguishing,” she said. “It is excruciating to not be able to talk about this case … it crushes me that anything I was associated with would have had this impact.”
Media Coverage of the Case
Foster took the unusual step on Jan. 30 of letting the campus community know about certain media reports that included information about her involvement in overturning a sexual assault case that occurred during her former presidency at UMF.
In an email to the campus, Foster acknowledged her authority to hear sexual assault cases on second appeal and that she ruled in favor of the male respondent involved in the case. Legally, however, she said she was unable to provide more detail due to privacy laws and because the case is currently the subject of a complaint before the Department of Education Office for Civil Rights.
“Now as always, the safety and well-being of all campus members is my highest priority,” she wrote.
On Jan. 28, BDN released a story that documented the cases of two female students at UMF who were allegedly sexually assaulted in 2017. They both went through the Title IX process where both investigations confirmed that they were assaulted. However, through what BDN reports as “errors in the handling of their cases,” that involved typos in the student conduct code and problems with due process, the initial findings were overturned and the accused perpetrators were allowed to remain on campus.
Woodward, now a junior, had her case overturned by Foster, who was serving as president of UMF at the time.
After she reported the incident to campus police, BDN reported that Woodward went to a Farmington district court in Feb. 14, 2018. The judge granted her protection from abuse, ruling that the defendant posed as a credible threat and that he could be arrested if he tried to contact her.
Her case had to also be settled through Title IX at her school, after Woodward told BDN that she believed campus police had reported the incident. The hearing was initially scheduled for March 22, 2018 but was rescheduled to April. Just five days after the original hearing date, the College would announce Foster as its new president.
However, according to Foster, the two timelines do not connect.
Foster later explained in the Feb. 4 forum that she did not make a ruling in the UMF case until May, which was long after the search and interview process for the presidential position at the College, which lasted from December to March.
Woodward, her mother, Grant, and her lawyer, Nicole Bissonnette, were only told that the hearing was rescheduled after they called to confirm the location. Grant, frustrated, called Foster to complain. Foster then told her that since she had spoken to the alleged victim’s mother, she would be unable to rule in the case because she was no longer an “unbiased arbiter,” according to BDN.
Foster, however, would be seen intervening in the case after it was appealed. The hearing was moved to April 2 where the committee hearing the case found the accused guilty, and he was suspended for two years, according to BDN. However, Woodward saw her alleged rapist on campus just a few days after the hearing.
The man involved had appealed the case and was therefore allowed to be on campus. The case was brought back to the original committee, according to BDN, who further wanted to clarify whether or not Woodward was legally incapacitated, as she had been drinking the night of the assault and since she was not unconscious and could remember the rape.
According to BDN, neither Woodward, her mother nor her attorney knew that Foster had reversed the original decision, asked to have the case reheard and had overturned the man’s suspension. The paper also reported that Foster had urged Woodward to seek alcohol counseling.
The section of the student conduct code that Foster said gave her the right to intervene contained a typo, according to BDN’s report. Instead of referring readers to V.E.1, where it should clarify the university’s right to be involved in the case, it cited V.F.1, according to BDN. Bissonnette was first told of the error on Jan. 2.
The school has since revised its conduct code, according to BDN.
While Foster could not give BDN a specific explanation for why she reversed the case and why she disagreed with the judge and committee’s original ruling, she said after the Feb. 4 forum that after the appeals process, she had to provide a two-and-a-half-paged rationale for her decision.
While Foster could not respond to specific aspects of the case that the BDN article brought to light, she acknowledged that the role the media played in shaping the story and the perspectives of those who read it.
“It’s very frustrating — it’s very difficult for a decision maker to not be able to speak to something that is a perspective,” she said. “People have jumped to conclusions from an article — you can’t unring that bell, and I can’t speak to it.”
UMF, where Foster served as president for six years, is one of the seven public universities of Maine, which fall under the umbrella of the University of Maine Systems.
Eric Brown, the interim president at UMF, made a statement at his campus shortly after the story broke. He provided the UMF community with a number of ways it plans to respond to the incident.
UMF and the other University of Maine Systems plan to collect data via two campus climate surveys that seek to measure the presence of an array of campus issues.
The school will also begin a search process for a new Vice President of Student Affairs, whose main responsibilities will include ensuring a safe campus environment for students.
Other changes include hiring a new mental health counselor with expertise in issues regarding sexual assault and sexual health and conducting ongoing examinations of current campus culture and policies.
“Nothing is more important to our well-being as an institution than the safety and trust of our students,” Brown said in the statement. “I look forward to open conversations in the days ahead about how to ensure UMF is the best possible guardian of both.”
Students and Alumni React
The news of Foster’s involvement in Woodward’s case has not been sitting well with current students and alumni at the College, and despite Foster’s allegiance to federal law, many students still want to know why she overruled the decision on second appeal.
Michael Lore (’17) wondered if the College knew about the controversy surrounding Foster during her days at UMF, and said that if it was known, the school should have been more transparent about the new president’s past.
“It just makes it seem more sinister and shady when it looks like the College is trying to hide things and sweep them under the rug,” he said.
He compared this controversy to a previous scandal surrounding Trenton Hall and its name change.
“If (the College) had made a statement acknowledging (Paul Loser’s) prejudice while also accepting that it was in the past … the whole episode could have been avoided,” he said.
Lore said the same steps should have been taken regarding Foster’s actions, and that he expects the College will do what he thinks it usually does in times of controversy — “probably put out a limp-wristed statement about their continued devotion to fostering a diverse and safe campus for students of all backgrounds.”
College spokesman David Muha assured that the presidential committee conducted an extensive search for the College’s next president and that Foster continued in her role as president at UMF for three months between the time she was announced as president and her arriving to start the position.
“In that time, she was called upon to make many decisions, including this one,” Muha said. “There was no obligation to notify TCNJ of the actions she was taking in the course of fulfilling her role as president of UMF.”
Rather than try to hide information about the case from the College, Muha also reiterated that due to an adherence to federal privacy laws, Foster could not have told anyone of her case.
“Title IX cases can be complicated and it is critical to protect the privacy of those involved,” Muha said. “President Foster is legally constrained from speaking about the case and thus cannot respond to the media coverage or provide context and substantive rationale for her decision. Although this is frustrating for her and the campus community, we understand why privacy rights must take precedence.”
Rosie Driscoll (’18) was disappointed with the actions of the College’s current president.
During her time at the College, Driscoll was the chair of Women in Learning and Leadership and a peer educator for AVI.
“I didn’t know much about her track record at previous institutions, but at this point disappointment is my strongest feeling,” Driscoll said. “What I hope comes out of all this is that the survivors at UMF know that I, and I’m sure many other TCNJ alumni, stand with them and believe them and wish they had a different experience. They did not deserve this. They deserve a learning and living community where they can be safe and heal.”
Danielle Bruno (’17), was upset to hear the news about Foster’s overruling on the case.
“Quite frankly, this is inexcusable,” Bruno said. “To completely disregard their decision and to victim-blame is careless and ignorant.”
Jessica Kopew, a senior biology major, did not understand how Foster could have the clearance to make such a decision.
“I saw her email and I was like, ‘this does not make me on your side,’” Kopew said. “I just don’t understand how an entire committee can say a man is guilty of sexually assaulting a woman and somehow one woman has the power to overrule that decision without ample evidence.”
Title IX at the College
Students are also concerned as to whether or not the College has policies similar to UMF in terms of how it handles Title IX cases. While Title IX is a federal law and must be implemented into every institution, there are policies that are still specific depending on which university a student is attending, according to Draper.
If a member of either party disagrees with the initial ruling in a Title IX case, they have the right to appeal as long as they can provide evidence to defend the decision.
The case then goes to Vice President of Student Affairs Sean Stallings, the highest appeal officer, who can implement one of four decisions, according to Draper. On second appeal, as is typical in New Jersey, the case would go to the New Jersey Superior Court.
As cited from the College’s Title IX Policy, the four decisions are as follows — Stallings could affirm the decision of the original investigator or he could alter the sanctions already imposed on the guilty party (either increasing or decreasing them or changing their requirements). He could also decide to conduct a new investigation with new investigators or have it reviewed — depending on that review, the original ruling could be overturned.
This situation, known as a remand, usually happens when there is a significant amount of information that is provided — such as a discovered bias or missing information — that could potentially change the outcome, according to Draper.
During her tenure as Title IX officer both at the College and at other institutions, Draper has seen many cases go through an appeals process.
“I’ve worked in conduct and Title IX for quite a few years,” she said. “These appeal decisions are pretty typical amongst almost all of the colleges I’ve worked in.”
No matter what decision is made, however, a reason for the choice must be provided.
“In our process the appeals officer provides a rationale for each decision,” Draper said. “He’ll explain why he made that decision even if it is affirming (the original outcome).”
Although students such as Kopew were confused about why an appeal that overturns a case is valid despite little evidence, a lot of Title IX cases are decided even when there is not evidence provided that lets the investigator believe that the situation happened “beyond a reasonable doubt,” where they are 99 percent sure that the story is true.
According to Draper, the standard for evidence in a Title IX case is much lower. Even if there is a “preponderance of evidence,” which means that “more likely than not,” (more than a 50 percent chance) the reporter’s case is true and an initial ruling can still be made.
However, there might be an opportunity for more evidence to be reported or other discoveries to be made.
“If there was some type of error committed, or there was bias or there was an opportunity for information to be submitted that could have severely impacted the decision that wasn’t available at the time, we want the opportunity for that to be available for us,” Draper said. “(An appeals process) is one extra layer to make sure that what we were doing is in the guidelines of our policy.”
Additionally while at UMF, a committee is tasked with overseeing a hearing, at the College, there is only one person that makes a decision on a case both initially and in the appeals process.
“When you have a committee trying to get people together to find a time, conduct accurate training to make sure no one is asking insensitive questions — it’s hard,” Draper said. “Our process isn’t a committee. It’s one person that makes a decision on what is best practice.”
For more information on the College’s Title IX and AVI policies, please visit their pages on the College’s website.