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Copyright © 2015 Albuquerque Journal

Without warning, U.S. Justice Department lawyers telephoned the University of New Mexico one morning last month to say it was opening an investigation into how the university responds to allegations of sexual assault and harassment.

It is only the second time such an investigation of a university has been launched by the DOJ. The previous one occurred at the University of Montana.

In the 8 a.m. phone call to UNM officials, a follow-up letter and a news release, the DOJ would only say the investigation by its Civil Rights Division was sparked by “multiple complaints” from students.

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UNM officials, from President Bob Frank on down, insisted they had no idea why the campus is under investigation. They point to a number of proactive moves by UNM in recent years that are designed to make reporting sexual harassment and assaults – and follow-up developments and investigations – easier on the victim.

Meanwhile, the University of Montana investigation, begun in May 2012, came after an independent investigation already had found the university had major problems with the way it handled sexual assault cases.

The federal investigation lasted a year and ended with an agreement calling for a number of changes.

While UNM remains in the dark about what brought on its investigation, the Montana experience may provide insight as to what UNM can expect.

UNM’s Dean of Students Tomás Aguirre said he was encouraged by the DOJ report on the UM investigation.

“They tell you what you’re doing right, as well as those areas that may need improvement,” he said, adding that such an “objective evaluation” by neutral observers only can be beneficial.

Montana case

In Montana, the U.S. Department of Education’s Office for Civil Rights – normally the only federal agency that would investigate university policy and practices – joined the DOJ investigation.

The investigation was prompted by reports of numerous sexual assaults on the 15,000-student campus in Missoula, the largest in the state. Several of the alleged perpetrators were university football players.

In an effort to fulfill its Title IX obligations, the university previously had hired a former Montana Supreme Court justice for an independent look at the reports. During that investigation, between September 2010 and December 2011, the university received seven additional reports of student-on-student sexual assaults.

The independent report in January 2012 concluded that the University of Montana had “a problem with sexual assault on and off campus and needs to take steps to address it to insure the safety of all students as well as faculty, staff and guests.”

Three months later, the DOJ opened its investigation.

Women at UM who reported being sexually assaulted or harassed “were unfairly belittled, disbelieved or blamed for speaking up about what had been done to them,” said Roy Austin, a deputy assistant attorney general with the Civil Rights Division, when the investigation was completed.

In one case in early 2012, UM waited a week to tell city police about two students who had reported being sexually assaulted on the same night by the same man. That man fled the country before police were notified.

An “anything goes” and “boys will be boys” attitude was rampant, according to the report.

The UM settlement was not unlike the agreement the DOJ reached with the Albuquerque Police Department this year regarding the use of deadly force by officers. Like APD, UM agreed to make a number of changes.

Foremost was the retention of an experienced “equity consultant” to evaluate and recommend revisions to the university’s policies, procedures and practices for preventing, investigating and remediating sex-based harassment.

The consultant was to develop and provide training mandated by Title IX and, with UM, develop at least one annual “climate survey” to evaluate the university’s sex-based harassment policies, procedures and practices based on those surveys.

Why UNM?

So what sparked the investigation at UNM?

In 2012, four sexual assaults were reported to campus police. In 2013, there were 11. As of Dec. 5 this year, the day the DOJ announced its investigation, there were eight reports of sexual assaults.

Some UNM officials have speculated that one high-profile case that arose this year may be at least partially responsible for the federal investigation. In April, a female student said she was raped by three men, two of whom were Lobo football players.

A lawyer representing the three men described the investigation as “botched” and “bungled,” but the university is standing behind the police work.

The woman who brought the charges later changed her story, saying she couldn’t remember exactly what happened. Her lawyer said someone may have slipped her a drug.

The three men say their reputations and future earnings are now tainted by their arrests. They placed the blame squarely on the shoulders of the UNM police investigation and said they intend to sue.

The three men and their attorney said they did not contact DOJ seeking an investigation.

Last year, the Journal interviewed two UNM students and a former student who said they were raped on campus or nearby and were treated with callousness by university officials and practices. One report was from more than 10 years ago, and the other two were from 2013 – but their criticisms of UNM were consistent.

The mother of one student said “a horrible situation (was) made worse by the way it was handled. The initial report to UNM police was OK, but it turned very callous after that. … There were those at UNM who said they would do things to help, but it was up to my daughter to make it happen, and I don’t think she was in a state to do that.”

At the time, UNM officials declined to address specific allegations.

But since last year, a team of UNM officials – including Aguirre – have been working to fine-tune the policies, practices and procedures the university would follow in dealing with allegations of assault and harassment. And it wants to make sure the university is doing all it can and should to abide by applicable law, protect victims, and see to it that justice is done.

Whatever the reason for the DOJ’s decision to look into UNM practices, campus officials clearly were blind-sided by the Dec. 5 announcement. Meeting with reporters that afternoon, Aguirre again and again expressed his disappointment.

That was on a Friday. By the following Wednesday, he had softened his stance to welcome the investigation.

Still, university officials find it frustrating to be kept in the dark as to why the DOJ is holding their feet to the fire in the first place. In its letter to UNM, the department said it had reached no conclusions about whether UNM had violated a provision of the Civil Rights Act of 1964 or Title IX of the Education Amendments of 1972, the statutes that give it investigative authority.

The department requested that UNM provide substantial documentation – data and information that took more than five pages to list. UNM is working on getting the documentation together. Because the campus is closed for winter break between semesters, the DOJ advised UNM that it would be flexible regarding its original strict Jan. 9 deadline. Classes resume Jan. 12.