Last month, the 19-year-old student at the heart of a New York Times campus sexual assault exposé received an unusual email from a stranger.
Brett Sokolow wrote to the alleged assault victim, Anna, that he had been engaged by her school to act “as of counsel” in connection to the Title IX complaint filed on Anna’s behalf with the U.S. Office for Civil Rights. A hearing panel had cleared Anna’s alleged assailants; Sokolow had been hired to conduct an “external, administrative” investigation of that decision, as he later explained.
But Anna didn’t know that Sokolow had also helped train the panel that cleared her alleged assaulters — or that he would later be the one to review that very same panel’s work for the school and then publicly defend the panel’s practices.
“I’m no one’s lackey … I am an impartial arbiter,” he promised in a subsequent email. Then he asked for a copy of her Office for Civil Rights complaint, which he said he hadn’t been given.
Anna, a student at Hobart and William Smith Colleges in upstate New York, said she was rattled by the unsolicited email from Sokolow, an attorney and risk management consultant who has positioned himself as America’s leading expert on campus sexual assault.
BuzzFeed described his multi-pronged role in the case to ethics experts and law professors who found his emails concerning for other reasons.
Sokolow sent emails to Anna and her mother directly instead of through Anna’s lawyer, which is “pretty indefensible, kind of stupid, and could certainly get him in trouble” with the bar, said Charles Wolfram, a professor emeritus at Cornell University Law School and the author of Modern Legal Ethics.
But this complex and potentially conflicted role is nothing new for Sokolow, one of the kingpins of the booming college sexual misconduct consulting industry. Since 2000, Sokolow’s firm has served thousands of high-profile clients, including Yale, Harvard, and Dartmouth — and, in fact, a majority of the 68 institutions currently under federal investigation for potentially violating the federal gender equity law Title IX.
Under Title IX, schools may conduct their own disciplinary panels to determine whether sexual misconduct occurred. Advocates for both alleged victims and perpetrators say these hearings are inept and inequitable, but since they’re mandated by federal law, schools often outsource training to consultants like Sokolow — and see no problem hiring him and his colleagues in other indistinct capacities as well.
One thing about Sokolow’s role is clear: Business is very, very good.
As the founder of the National Center for Higher Education Risk Management Group, LLC (NCHERM), which Sokolow says is the nation’s largest higher-education-specific law practice, he represents colleges as legal counsel — more than 50 campuses have NCHERM on speed dial, he says.
NCHERM is also an umbrella organization for eight other linked organizations that offer schools consulting services, liability seminars, tutorials, conferences, and “accreditation” (certificates aren’t verified by any external agency). Sokolow says the NCHERM Group has served more than 3,000 campuses since 2000, and that ATIXA, the Association of Title IX Coordinators, has certified more than 2,000 Title IX Coordinators and investigators since 2011.
Sokolow’s most recent endeavor, “Resolution Services,” which offers schools advice and an indemnity based on that advice, raised eyebrows among those in the field. Sokolow is “outsourcing rape investigations to himself,” charged the Chronicle of Higher Education.
NCHERM’s expanding client list and myriad services mean that the same college that attends the group’s conferences and training sessions can also hire Sokolow to be an “impartial arbiter” of whether they botched a case. Critics say his ability to shift from impartial investigator to liability expert to legal counsel — and back — may benefit colleges at the expense of sexual assault survivors.
Sokolow’s firm had been on the scene at Hobart and William Smith Colleges, a tiny liberal arts college that is technically two single-sex schools, long before allegations of a badly mishandled sexual assault case made the front page of the Sunday New York Times earlier his month. A spokesperson for the college says Sokolow has worked with the colleges on an as-needed basis for “nearly a decade.” Sokolow has been to campus to train personnel, staff have attended off-campus seminars and ATIXA conferences, and the college uses a video series he developed.
But after the Times wrote a critical article about the system Sokolow helped design for the college, which is now under investigation for Title IX violations, Sokolow was back — this time to publicly defend the panel’s decision to clear three football players accused of sexually assaulting Anna.
In a letter to the Times, Maureen Collins Zupan, the chairwoman of the school’s board of trustees, wrote that Sokolow, “one of the country’s leading experts on the issue,” had “affirmed the conclusions” of the case in question and “observed that our process meets or exceeds best practices for higher education.”
Zupan did not mention that the school had paid the “leading expert” who was defending it for other services. She did not disclose that the panel under fire used NCHERM’s online training series. (“Is there a difference between a video of me or me?” Sokolow said in an email when asked to clarify if he trained the panel in Anna’s case. “I did train them, either way you frame it.”) Zupan also failed to explain that Sokolow had been formally hired by the school to investigate the process he praised.
Emails obtained by BuzzFeed show that Sokolow was retained by Hobart and William Smith to investigate Anna’s appeal, which alleged, among other issues, that she did not receive a fair hearing.
And he contacted Anna in a way her lawyer says was both unprofessional and unethical.
In an email to Anna on June 17, Sokolow wrote: “Though we have not met, Walt Bogdanich [the Times reporter] may have informed you that I have been engaged by the Colleges to act as of counsel in connection with the Colleges’ response to the Title IX complaint”. He explained that instead of the college’s Title IX coordinator conducting the investigation, Sokolow would be looking into Anna’s appeal of the panel’s decision because that coordinator was “a potential witness to the alleged discrimination, and is thus conflicted from conducting the investigation herself.”
The unexpected and confusing email “disgusted me and dredged up all the trauma of the past year as I was trying to move on,” said Anna, who said she had never heard of Sokolow or the purported investigation when he contacted her.
Sokolow also sent separate copies of the email to Anna’s lawyer, Inga L. Parsons, and Anna’s mother, who wrote to Sokolow asking him for an explanation and to communicate directly with Parsons. Instead, Sokolow sent another email to Anna and her mother saying he would not “dialogue solely with [Parsons]” unless Anna and her mother refused to communicate with him. It was only when Parsons intervened and told him to direct all correspondence solely to her that he complied.
“While I am an attorney, my role in this matter is to investigate the claims of the appeal letter about inequitable processes and Title IX violations,” he wrote back to Anna and her mother. “I’m no one’s lackey … I am an impartial arbiter. I am critical of colleges when they screw up, and supportive when they act correctly.”
The American Bar Association Code of Professional Responsibility forbids a lawyer to communicate with a represented party without the permission of the party’s lawyer. Parsons says she’s considering filing a bar complaint on the grounds that he corresponded directly with her clients knowing they were represented by an attorney and continued to do so even after Anna’s mother advised him to stop.
“I was shocked by how unprofessional he was,” said Parsons. “By his own admission, he says he was hired by the Colleges to act as of counsel in connection with the Colleges’ response to the Title IX complaint. As of counsel he is a lawyer, he is not a neutral party. He is a hired gun paid by the same school he claims to be reviewing impartially.”
“These self-proclaimed experts like Brett Sokolow who schools hire to try to clean up their mistakes are making a lot of money off survivors’ assaults,” Anna’s mother said. “Schools should be putting that money into prevention, updating their arcane policies, climate surveys, decent training for panelists, faculty and students.”
Anna, her mother, and her lawyer made it clear that they would not participate in Sokolow’s “impartial” investigation but would be cooperating fully with the Office for Civil Rights in its investigation. Subsequently, Sokolow told the school that he believed Hobart and William Smith’s policies and procedures were “appropriate and compliant” and that “the hearing and appeal rendered a fair result given the evidence, and that I would not recommend any substantive change to the outcome,” according to the school’s spokesperson.
Sokolow has been accused of wearing too many hats before. A 2011 Chronicle of Higher Education profile of Sokolow noted that his “entrepreneurial zeal in the growing field of legal services in student affairs has attracted both clients and skeptics” and called him a “prolific writer and tireless self-promoter” who built an “empire of acronyms.”
“NCHERM has essentially had a monopoly on Title IX trainings for a long time in the unregulated, for-profit industry that is sexual assault consulting,” said Annie E. Clark, a co-founder of End Rape On Campus, which helps assault survivors file federal complaints against their universities.
But Sokolow sees no harm in playing lawyer, consultant, and trainer to the same school.
“Change agents are lightning rods for criticism,” Sokolow told BuzzFeed. “I think some folks expect us to take only one side, but that has never been the ethos of our firm. Our integrity is based on our ability to call it as we see it. ”
Some ethics experts disagree. Sokolow’s new “Resolution Services” program may be reassuring but raises “significant ethical questions,” said Nancy J. Moore, a legal ethics expert and professor at Boston University, in part because the business combines the practice of law and multidisciplinary practices and offers non-legal functions that constitute “conflicts of interest” for the lawyers in the company providing legal services.
“Just because you say you are not acting as a lawyer doesn’t mean you are not a lawyer,” Moore said.
Sokolow’s insistence that he is an “impartial arbiter” even while acting “of counsel” on behalf of colleges is “very implausible,” said William H. Simon, a law professor at Columbia University. “If the college wants an impartial investigator, they shouldn’t hire a lawyer.”
Sokolow disputes these claims. “Someone who fears or thinks we may not be impartial has a right to those concerns, but that fear is just speculative until we’ve actually investigated, and not based on any evidence,” he told BuzzFeed. “Our careers would be over if we weren’t impartial arbiters.”
But Sokolow’s bank account might suffer if he wore fewer hats.
ATIXA, for example, typically costs $599 per person to join (or $2,499 per campus) a year. Schools get discounted rates if they purchase “bundled” subscriptions offering access to various NCHERM services; a “level three” bundle is $11,500 a year at a 20% discount.
Colleges and administrators pay tens of thousands of dollars for NCHERM’s frequent training seminars and conferences. One seminar on Title IX coordinators cost $2,500 a head for 170 people and grossed $425,000, according to Philadelphia magazine. An upcoming ATIXA conference costs $479 for non-members and $419 for members, according to registration materials. Pre-conference events ($159–$339) and post-conference training courses ($999) are also available for purchase. According to the invitation, the conference will “bring together 200+ Prevention and Title IX professionals from across the country.”
Sine Anahita, the coordinator of the University of Alaska’s women and gender studies program, was furious when she found out that her school spent more than $100,000 from 2009–2014 on NCHERM offerings including over $29,000 on ATIXA, which names as a “signature” offering its “only and first-of-its-kind Title IX Coordinator Training and Certification Course.”
Given that the Department of Education opened an investigation into the University of Alaska for potentially violating Title IX earlier this year, Anahita doesn’t understand why the college continues to use NCHERM’s services; an NCHERM representative visited the campus to conduct Title IX training just last week.
If schools like the University of Alaska hired NCHERM in the first place, “then they followed NCHERM’s advice,” she wrote in a scathing blog post. “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. Is this not profiteering? And at whose expense?”
Sokolow claimed in a recent newsletter that although the majority of schools under investigation are listed as clients on his website, none of the colleges he works with regularly 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.” He did acknowledge that NCHERM works closely with campuses that are under Title IX investigation, but said they all retained NCHERM’s services “as soon as they were notified of the investigation, not before.”
When asked to elaborate on what he meant by “regularly,” Sokolow told BuzzFeed he was referring to the 50 campuses that retain NCHERM’s legal counsel “in a concerted way.”
In other words, the money the University of Alaska spent on NCHERM’s various services before 2014 doesn’t guarantee protection from federal complaints. Schools need to pay even more to be safe.
Some Title IX coordinators say that Sokolow rubs people the wrong way because he is willing to speak candidly on sensitive topics.
“Consultants tend to be big-picture people with big personalities,” said Jyl Shaffer, an equal opportunity specialist and Title IX case investigator at the University of Houston who has attended Sokolow’s trainings and believes they are worth the price. “I appreciate NCHERM and ATIXA because they aren’t afraid to offer different opinions; they know that these complicated situations aren’t black and white.”
It’s true that Sokolow isn’t afraid to opine on controversial issues like “nonconsensual sexual intercourse” — the college-friendly euphemism for “rape” that he coined himself — or write newsletters defending men accused of rape (“Surely, every drunken sexual hook-up is not a punishable offense, especially if the parties know what they did and liked it.”).
Although Sokolow told BuzzFeed that NCHERM has “always been victim-centered in our work” and that he hopes “one of our legacies is that we’ve advocated very effectively to advance the rights of campus sexual assault survivors,” he often clashes with prominent survivor-activists on their Facebook pages and on Twitter.
The same activists — members of Know Your IX, End Rape on Campus, and SurvJustice, three well-known groups that work with college students who are survivors of sexual assault and helped advise the recent White House Task Force to Protect Students from Sexual Assault — were irritated when Sokolow asked them to be “featured speakers” at the upcoming ATIXA conference but rejected their requests for payment.
“I already do significant work on this issue without compensation for survivors, who are truly in need and lacking resources,” said SurvJustice’s Laura Dunn, whose request for a $650 fee was turned down.
“As a victim, I have watched Brett Sokolow profit from sexual violence.”
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