Title IX Profiteers

ImageUpdated 7-26-14

Capitalism is like water. Just as water will always seek the tiniest nooks and crannies in which to seep, capitalists seek niches in which to earn profit. As anti-rape activists have seized on Title IX as a tool to dismantle college rape culture and to bring about safe and equitable campuses, some enterprising companies have discovered that helping universities resist change is profitable. I call them the Title IX profiteers.

The National Center for Higher Education Risk Management (NCHERM, http://www.ncherm.org/) is one of the Title IX profiteers. NCHERM is an umbrella law and consulting firm that has eight subsidiaries, several of which specialize in Title IX issues. Part of the new “risk management” industry targeting higher education, NCHERM and its subsidiaries have nearly single-handedly rewritten Title IX policies and procedures at universities through its expensive Title IX administrator training programs, policy-writing curricula, consultation services, and legal representation. They trained the new Title IX professionals into thinking about Title IX not as an issue of equity, as Title IX was designed to do, but as a risk to be managed. Through online workshops, on-site workshops, centralized workshops, and through individual consultation services and legal representation, NCHERM has revised the Title IX policies and practices of an untold number of schools and trained hundreds of administrators into thinking about Title IX the “NCHERM way.”

But the “NCHERM way” does not protect women or men from gender inequities, nor does it protect students from rape and sexual harassment as Title IX requires. In fact, the “NCHERM way,” as practiced at many schools, re-traumatizes victim-survivors and advocates who report sexual misconduct. And students and their advocates are resisting. Over the last several months, a virtual tidal wave of formal complaints have been filed against schools with the Department of Education’s Office of Civil Rights (OCR). In late May, 2014, OCR announced that it is investigating 61 colleges and universities for possible Title IX violations based on sexual assault and harassment. (They have released a separate list of schools and colleges that are being investigated for other possible Title IX violations, e.g. discriminatory athletics programs.) Although schools may minimize the pending investigation to claim that the investigation is merely “a compliance review,” as is the case at my university, correspondence from the Office of Civil Rights documents that the feds are investigating specific cases.

Of the 61 schools who are being investigated by OCR, 37 of them are NCHERM clients. That’s 60.6%, folks.

U of Alaska NCHERM Expenditures UA FY09-14 Sheet1_Page_1 U of Alaska NCHERM Expenditures UA FY09-14 Sheet1_Page_2These facts make a rational person wonder why the 61 schools are throwing good money after bad. Presumably, if these schools hired NCHERM in the first place, then they followed NCHERM’s advice. They paid NCHERM to train their Title IX investigators the NCHERM way. Their Title IX coordinators joined ATIXA, one of the 8 subsidiaries, and attended Title IX how-to workshops. They paid NCHERM for model website text. They paid NCHERM to rewrite their Title IX policies the NCHERM way. They paid NCHERM to learn how to follow NCHERM’s “OCR-proof-your-school” practices. And yet they still got zinged by OCR. And now many of them are paying NCHERM to represent them in the OCR investigation.

Is this not profiteering? And at whose expense? Who is carrying the costs to put profit into the hands of NCHERM and other higher education risk management consultants? And here I’m not just talking about costs in terms of money, but the costs to students and to the well-being of our university communities.

Below is a list of schools who are documented as being under OCR investigation as of 5-28-14 who are also listed on the NCHERM website as active clients. Note that my school, the University of Alaska System, is listed. Also below is an email from a staff member at OCR that accompanied a list of all 61 schools that are being investigated.

New as of July 26, 20-14: Located in the text above is the document received from the University of Alaska System that lists how much NCHERM and its subsidiaries have been paid by UA. I posted this as a response to NCHERM’s comment on this blog (and on their own http://atixa.wordpress.com/2014/07/24/the-ncherm-group-partners-respond-to-recent-press-coverage/) that inaccurately claims that NCHERM was hired only after UA was put on the OCR list for investigation. Clearly, the University’s data documents that this claim is incorrect.

Thanks to http://payload72.cargocollective.com/1/0/19238/3744155/Brian_Rea_TITLEIX.jpg for the cool Title IX graphic.

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About sineanahita

Alaska's fiddling sociologist
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4 Responses to Title IX Profiteers

  1. The Fiddling Sociologist Should Stick to Fiddling

    This blogger clearly doesn’t like capitalism, and we’re fine with that. While refuting the blog point by point is possible, it’s not necessary. We’ll just touch on two gems:

    “They trained the new Title IX professionals into thinking about Title IX not as an issue of equity, as Title IX was designed to do, but as a risk to be managed.” We guess the author hasn’t attended our trainings, where we discuss equity incessantly. We guess s/he hasn’t read all of our tips of the week on…wait for it…equity. We guess s/he hasn’t read our 2014 Whitepaper, which cleverly covers up our disdain for equity with the title, “Equity is Such A Lonely Word.” It’s an odd world where an anonymous blogger can blithely state that a firm that has effectively advanced equity on college campuses for seventeen years is all about risk management. But, you know what they say, opinions are like Fiddlers.

    Here’s our favorite, though. “Of the 61 schools who are being investigated by OCR, 37 of them are NCHERM clients. That’s 60.6%, folks. “These facts make a rational person wonder why the 61 schools are throwing good money after bad. Presumably, if these schools hired NCHERM in the first place, then they followed NCHERM’s advice. They paid NCHERM to train their Title IX investigators the NCHERM way. Their Title IX coordinators joined ATIXA, one of the 8 subsidiaries, and attended Title IX how-to workshops. They paid NCHERM for model website text. They paid NCHERM to rewrite their Title IX policies the NCHERM way. They paid NCHERM to learn how to follow NCHERM’s “OCR-proof-your-school” practices. And yet they still got zinged by OCR. And now they’re paying NCHERM to represent them in the OCR investigation.”

    Dr. Fiddler doesn’t seem to understand, despite his/her copious research, that The NCHERM Group is a full-service law and consulting organization. Clients use us for FERPA, the Clery Act, the 1st Amendment, hazing, alcohol, prevention, behavioral intervention, etc. It baffles us how many of our detractors need to add 2+2 to get 6 in order to try to assail our body of work. Brett Sokolow has said this before, and we’ll say it again, as clearly as we can. We represent more than 50 colleges, who have us on long-term retainer, many of whom we advise on sexual misconduct. We work on their policies, train their boards and investigators, advise them on their cases. These are the campuses that are following “The NCHERM Way” on sexual misconduct. Of those 50 colleges, NONE have been subject to OCR investigation regarding any of the work or cases we have consulted on with them while we have been on retainer. NONE. ZERO. ZIP. NADA. Not 37. 37 less than 37. We do work with campuses that are under Title IX investigation, but they have retained us as soon as they were notified of the investigation, not before. We’re sure some of our clients will at some point face OCR, but so far, The NCHERM Way is working, and working very well. We will not stand for anyone asserting otherwise without the facts to support their contentions.

    Brett A. Sokolow, J.D.
    President & CEO, The NCHERM Group

    W. Scott Lewis, J.D.
    Partner, The NCHERM Group

    Saundra K. Schuster, J.D.
    Partner, The NCHERM Group

    Daniel C. Swinton, J.D., Ed.D.
    Managing 3artner, The NCHERM Group

  2. sineanahita says:

    Documents provided by the University of Alaska System demonstrate that the university paid $101,522.43 to NCHERM and its subsidiaries in the past 4 1/2 years. These data begin on February 2009 are current up to June 21, 2014. Contrary to the claims made above, the University of Alaska’s records show that our university has been a client of NCHERM et al. for quite some time.

  3. Dr. Anahita, your statements are defamatory in their inaccuracy. For the record, the services provided to the Alaska system were not related to its OCR case, or any case involving any of the Alaska campuses at any time prior to during or after the complaint was made to OCR. The payments made to TNG are largely for memberships and training events, for which the Alaska campuses have been diligent in their attendance and professional development. Consulting services provided to Alaska until this week (July 2014) focused on Behavioral Intervention and Threat Assessment, and other compliance and best practice issues. A visit this week focused on Title IX and was provided by our partner, W. Scott Lewis, who has provided all on-site visits to the Alaska campuses. We have stated repeatedly that at no time have The NCHERM Group or its affiliated organizations been retained by the Alaska campuses or System for legal services. We have provided consultation unrelated to the OCR matter, and while Alaska has been a client for some time (and we never said it was not), we are not responsible for its compliance or non-compliance with federal law as that has never been part of the scope of our consultation. You are welcome at any time to fact-check your notions with us prior to publication. Failure to do so just diminishes your credibility with readers as you become increasingly inaccurate in your statements the more we show the true facts.

  4. sineanahita says:

    From Sara Lipka’s 2011 article in the Chronicle of Higher Education: “Mr. Sokolow declined to divulge his salary, which he said would distract from his contributions to the field. Nor would he disclose his firm’s revenues, saying only that with one exception, they’ve grown by more than 30 percent a year. He isn’t compelled to share such information, he said: “We’re not a traditional nonprofit.” So why advertise that way? “If people perceived that the motive was all profit making, they would be suspicious,” he said.”
    http://riskmablog.blogspot.com/2011/11/article-about-ncherm-appears-in.html

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