Commentary

Weaver’s actions may have been the best option at stopping the law school problem

October 9, 2021 8:20 am

A hallway in the Alexander Blewett III School of Law at UM. (Keila Szpaller/The Daily Montanan)

I have read Keila Szpaller’s well-written and well-investigated series on Title IX at Montana’s Blewett School of Law. I taught at the law school for 23 years and was the longest-serving clinical professor when I retired in 2016. I have known Assistant Dean Sally Weaver as a friend and colleague from the time she joined the faculty as a visitor in the mid-1990s. The facts reported by Szpaller describe a compassionate mentor, not someone who willingly violated Title IX. Let me elaborate. 

First, realize that the reports of the sexual assault survivors are true and that their perceptions of what happened to them are accurate. (When I use “sexual assault,” I refer to the spectrum of sexual offenses, including sexual intercourse without consent.) Women, as a rule, do not make such accusations casually and less so publicly. 

Imagine, then, looking across the classroom and seeing the person who raped you or groped you sitting on the other side. This is a law school classroom. At Montana the largest such class would be 75 to 80 students. You cannot drop the class. If you want to become a lawyer, you must spend the next three years in this and smaller classes with the person who assaulted you. 

What do you do? You go, as several law students did, to talk to the law school’s Dean of Students. 

As I read Szpaller’s series, I could not tell whether any survivor was sexually assaulted while both she and the offender were law students. This is significant because neither Title IX nor the University is geared to address past assaults. Under the University’s Student Conduct Code, a report that “Student X groped me at the ____ Bar this weekend” would be referred to the University’s Dean of Students for investigation and discipline. This was the practice when I was Chairman of the University Court from 1999 to 2001. In such a case, the Dean would immediately tell the accused that s/he should have no contact with the reporting student. 

A report made long after the assault, for example, that “X groped me at the ___ Bar two years ago when I was an undergraduate,” is a different breed of accusation. If, as the series suggests, the accusation had been previously  investigated and either found wanting or resulted in discipline, the difference becomes more significant. The university would have no power to address the report on a later date unless it was included in a packet of admissions information for X, who applied for admission. In that case, the university’s Admissions Review Committee would consider the report and decide to bar admission to the university, admit the prospective student with conditions, or admit the prospective student unconditionally. 

This is what Weaver faced when various women came to her office. Knowing Weaver, I can hear her voice and know her reaction. It would be, “How can we protect you, how can we make you safe, how can we ensure that the classroom and school environment enables you to perform at your best?” It would have included “How do you want to approach this?” Ultimately it would likely have led to a conversation between Weaver and the offender in which she told him in no uncertain terms what the boundaries were. These are all informal approaches to the problem. 

My sense, however, is that some of the women wanted justice. That is, they wanted an official or an official body to hear and validate their reports. That would mean an investigation by the University’s Dean of Students and, in this case, involvement of the Title IX officer. The dean investigates all misconduct. The Title IX officer and the University’s Discrimination Grievance Committee addresses reports of discrimination, harassment and retaliation. 

But these were historical reports. The Student Conduct Code and the (Title IX) Discrimination Grievance Procedures address current misconduct. If the student who had assaulted one of the women were to wink at her in class, then both policies would be triggered. But without current misconduct, the code and the policy offer no remedy. 

This is what Weaver understood. It would be more efficient and more effective to address the issue informally from her office. Weaver’s goal was to ensure that the survivor received a good education on a par with her fellow students. This was incompatible with formal justice, especially when it had to do with past misconduct. Moreover, formal justice would take months. Offenders have graduated before the formal process was complete. 

Did Weaver discourage reporting? Sally Weaver is not stupid. She knows that such an act opens up her, the law school, and the university to liability. Weaver, I am sure, had a frank and full discussion about how to protect and nurture the survivor(s). She would have laid out all of the options available and discussed the advantages and disadvantages of each.

The information given the student may have discouraged the student from filing a Title IX complaint. But this is different from a dean or a faculty member discouraging the complaint. 

I am curious to know where the character and fitness rumor started. In my experience, when a law student engaged in misconduct that might be included in the Character and Fitness Report to the bar, the entire faculty discussed it. This misconduct was nearly always academic misconduct. The sort of behavior that students feared might be reported to the bar would not have been reported and the faculty would have discouraged such a report. 

In sum, Weaver’s priority was to ensure that the survivor(s) could have a safe and nurturing classroom. Knowing Weaver, she would have sat in class next to the student if that would have increased the student’s comfort level. Title IX fails to offer that kind of remedy. 

Jeffrey Renz was a Clinical Professor of Law from 1993 to 2016. During his tenure at the University, he served on the Discrimination Grievance Committee, the University Court, the Special Admissions Committee, the University Council on Sexual Assault, and the Admissions Review Committee. Before teaching, Renz was a civil rights lawyer who represented plaintiffs in race, employment, and Title IX discrimination cases.

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