In August, Timothy Fader, the former wrestling coach at UW-Whitewater, filed a federal lawsuit against former chancellor Richard Telfer and then-Athletic Director Amy Edmonds (she has since been demoted), alleging defamation & constructive termination stemming from a dismissal because Fader reported an alleged sexual assault committed by a recruit directly to Whitewater police rather than a campus supervisor. See, Former Coach Fader Files Federal Lawsuit Against UW-Whitewater Officials.
Although the complaint names Telfer and Edmonds in an individual capacity, both are receiving a defense in this civil matter with state resources (and so at taxpayers’ expense).
Whitewater is a city with a median household income of $30,218, where 36.7% of all residents, 15.2% of all families, and 18.6% of all children live below the poverty level. Telfer’s last publicly-paid salary before retirement was a reported $212,600.
I’ve promised to follow the case, and immediately below is a copy Telfer and Edmonds’s answer and Fader’s complaint.
Carl Higbie, a Trump surrogate, while speaking to Megyn Kelly on Fox News suggested the internment of the Japanese during the Second World War as a precedent for a registry of Muslim immigrants to America. Kelly rightly rejected the precedent, as the internment of Japanese Americans during the Second World War and the Korematsu decision upholding that internment have been considered – at least until recently, it seems – among the worst civil liberties violations of that era.
What was unmentioned only weeks ago is now part of our political discussion; what is part of our political discussion now may yet become policy in the new administration.
Dvorak is only right about the first two hashtag phrases – she overreaches on the others. It’s true that #notmypresident is like saying #notmyconstitution, as the first depends on the constitutional order of the second. That’s the reason that I have not, and will not, use #notmypresident: Trump was elected lawfully the 45th president of the United States on November 8, 2016. Defending the constitutional order is a worthy defense (and a needful defense as Trump is likely to threaten constitutional norms many times while in office). That defense begins with a fair acknowledgment of who has been elected.
Dvorak’s wrong, however, to think that #notmycountry or #notmyAmerica are somehow impermissible: those terms describe what someone thinks of the society more broadly, apart from a legal or political understanding.
She’s also wrong to think protests against Trump are undemocratic. In fact, they’re democratic both broadly and narrowly. Broadly, one should be able to protest lawfully as one wishes. Narrowly, Trump wasn’t elected by a majority of voters, or even a plurality of them. A plurality went to Clinton, and a majority went to all the alternatives to Trump. If one thinks that democracy – rule of the demos – is what should matter, then one would be protesting for democracy by protesting against Trump.
One may accurately say that Trump’s election was constitutionally permissible at the expense of both the majority’s wishes and those of a plurality. Lawful, to be sure, but by design with a limitation on majoritarian wishes.
This might all be a mere exercise in terms, were the consequences not so large: hundreds of millions, across a vast continent. Define legitimate protest as narrowly as Dvorak does (so that it’s somehow out of bounds to say #notmycountry or #notmyAmerica) and one denies those millions something more meaningful than a single, lawful election’s result.
Blogging at Mother Jones, Kevin Drum – like many of us, of whatever politics – seems uncertain about the consequences of a Trump Administration. (In fairness, much has happened in a short time, and it’s hard to make sense of it all.)
Two days after the election, Drum writes to reassure, contending that Trump will be no different, no worse, than
say, Ted Cruz or Marco Rubio would be. Beyond that, though, he’s less conservative on the policy front. The reason Trump is uniquely bad is mostly symbolic: he’s willfully ignorant; he’s vindictive; he’s a demagogue willing to appeal loudly and proudly to racial animus; and he has the attention span of a small child. He’d be an embarrassment to any country, let alone the most powerful country in the world.
Isn’t that bad enough? There’s no need to pretend we’re about to spiral into a fascist nightmare or a financial collapse. We have not embraced tyranny. The United States is a very big battleship, even for Donald Trump.
One day earlier (that is, one day after the election), Drum sees a different prospect for America under Trump:
Since I have the Reconstruction era on my mind right now, it’s hard to avoid the obvious comparison. Reconstruction lasted about eight years, and then was dismantled almost completely. Barack Obama’s presidency lasted eight years and will now be dismantled almost completely. I will withhold my opinion for now on the obvious reason for this similarity.
There lies Drum’s – and our – problem. If a Trump era is anything like the end of Reconstruction was for millions of black Americans at that time, then there is every reason to be extremely concerned. Generations – indeed, during roughly a century of history – went by before millions received the rights the Constitution granted them.
There’s no need to belabor a point that Drum knows, and about which he is sympathetic. The problem for this country is that a politics like the end of Reconstruction was for blacks would be devastating for millions our fellow citizens. When one reaches the need for an analogy between our time and the decades after 1877, one has already arrived at a moment of crisis for huge numbers.
So, is Drum’s initial concern (by way analogy) on 11.9 justified, or is a Trump Administration likely to be little different from how a Cruz or Rubio Administration might have been (as Drum wrote on 11.10)?
Few during these last months thought that Trump, Cruz, and Rubio were much alike; there’s no reason to think they were. A populist politics of Trump’s kind will push as far as it can, making Drum’s initial concerns more probable than his subsequent reassurances.
UW-Whitewater’s current Athletic Director, Amy Edmonds, is reportedly out as head of UW-Whitewater’s athletic programs. The report notes that she’s being demoted to associate athletic director (at a significant cut in salary).
There’s no certainty that she would, in fact, remain in a subordinate role following the apppointment of an interim director, let alone a permanent one.
One often hears that a given election is important, and that each person’s vote matters. That’s been true so many times in our history, and it seems particularly so this year.
Absentee voting – by mail or in person – is a part of our law, and the window for in-person voting will open soon. Immediately below readers will find information on absentee voting in the City of Whitewater and for nearby communities.
On Friday, former UW-Whitewater Coach Timothy Fader appeared on ESPN’s nationally-broadcast Outside the Lines, to describe the treatment that led him to file a federal lawsuit against former Chancellor Telfer and current Athletic Director Amy Edmonds. See, Coach fired for reporting sexual assault.
One should not expect a quick resolution to the many issues the lawsuit raises, of mistreatment of honest employees & disregard for assault survivors. On the contrary, in a matter like this there are likely to be tactics of (1) silence, (2) changing the subject, (3) lying, (4) blaming terminated employees and assault survivors, and (5) self-serving but unethical insistence that injury to a few served a higher institutional purpose.
We’re nowhere near the end of all this. A federal lawsuit, and a federal investigation into Title IX handling of sexual assault complaints, is a consequence of, but not a certain cure for, the grievances asserted.
At Channel 3000, investigative reporter Adam Schrager reports on a federal lawsuit that former Coach Timothy Fader has filed against UW-Whitewater officials, in their individual capacities. (I had promised readers that I would continue to follow this story, and will continue to do so as the case unfolds.)
Both current Athletic Director Amy Edmonds and former Chancellor Richard Telfer are named defendants:
The lawsuit asserts that Fader was not renewed as the school’s wrestling coach in the summer of 2014 because he immediately reported an alleged sexual assault committed by one of his recruits directly to Whitewater police and not to his supervisors on campus, per university policy. After that, Fader alleges an official at a college in Minnesota called Edmonds for a job reference but was told that she could not “tell him the whole story,” creating “even more mystery and (implying) additional but unreported misconduct on Fader’s part,” according to the lawsuit.
Fader also makes the claim that there are no records of an earlier sexual assault he had reported to university officials. UW-Whitewater is facing two Title IX complaints filed with the Civil Rights Division of the U.S. Department of Education in the last two years. Title IX legislation was passed by Congress in 1972 to prohibit discrimination by gender in federally-funded education programs.
We’ve had Act 10 for several years now, and during that time in no sector has that law been more discussed or felt than in K12 public education. Whitewater has avoided some of the Act 10 strife that has gripped other parts of the state, and that’s been to our advantage, whatever one thinks of the provision.
(I am opposed to Act 10 on traditional libertarian grounds: any person in any occupation should be free to associate with others and bargain against, and in opposition to, the government. Those who hold office locally or statewide have too much authority as it is; they don’t need more tools, but rather deserve fewer.)
Yet whatever one thinks of the direct consequences of Act 10, it’s had a second, masking effect: all the attention to decisions involving resources has almost certainly obscured the sound of other decisions unrelated to fiscal policy.
(I’m not describing choices not made for lack of money, but choices made yet not heard for all the attention Act 10 has received.)
As we drift farther from Act 10’s beginning, and that law is either attenuated or people become inured to discussion of it, attention is likely to shift to policies over these last several years of which we’ve heard less. Act 10 has masked the sound of these other policies, but it’s a masking effect that will not endure: other subjects will come to residents’ hearing, no matter how loud Act 10 has been.
Late last month, Wisconsin Attorney General Brad Schimel joined law enforcement officials at a press conference to announce his support for a bill that would offer amnesty for underage drinkers who report incidents of sexual assault (whether reporting as claimants or bystanders). The bill (Senate Bill 656) would assure that someone could report an assault without worry of being cited for drinking, a possibility that might deter a claimant or bystander from contacting the police.
He was not alone in his support – SB 656 has support from both sides of the aisle, with both Republican and Democratic co-sponsors.
Once again, as with his meeting with sexual assault survivors (despite a refusal of UW-System officials to do likewise), one sees that A.G. Schimel understands that respect for individuals requires that their claims be heard. Whether their claims are meritorious is a matter to be determined after they’ve had a chance to offer a claim – failure to hear them out is deciding a matter a priori, a failure that would be inimical to the principles of a society based on individual rights.
(Those who are accused deserve and must have due process – that due process requires taking and processing a claim, not rejecting or pretending that claims have not been made.)
One alternative to hearing claims and offering due process to all individuals is a crude act utilitarianism in which university officials – in the name of protecting an organization’s reputation but truly to protect their own reputations – bury claims, ignore claimants, and ruin the careers of those who report incidents.
The UW System – and UW-Whitewater officials in particular – are accused by multiple claimants of burying claims (1 and 2), contending falsely that publicly-paid bureaucrats cannot speak to claimants, and insisting self-servingly that claims can only be presented one way.
A.G. Schimel’s support for SB 656 is support for the view that being heard can and should legitimately trump the circumstances surrounding when and how one makes oneself heard. His support further undermines the unpersuasive, risible contention that the Telfer Administration at UW-Whitewater acted on principle in these several matters.
There’s no serious choice in this: one can embrace the reasoned view of a well-educated, experienced prosecutor who has (sadly) seen many cases of assault in his career, or one can side with the flimsy, self-protective claims of lightweight administrators and their press flacks.
Repeatedly, officials at UW-Whitewater and in the UW System have insisted that they cannot speak with the assault survivors who have pending federal Title IX claims against UW-Whitewater (there are now two) or the UW System (there are at least three more against other UW System schools).
This is simply absurd as a matter of law. Not simply absurd, but manipulatively, mendaciously absurd. There is no general prohibition whatever, in law or in legal practice, against talking or meeting with adversarial or potentially adversarial claimants. In fact, these kinds of meetings and discussions happen commonly between opposing sides in all sorts of legal matters.
To believe otherwise, one would have to believe that Brad Schimel, Attorney General of the State of Wisconsin, a graduate of the University of Wisconsin-Madison School of Law, an accomplished county prosecutor having conducted over one-hundred fifty jury trials, who has chaired the Wisconsin Crime Victim Council and Sexual Assault Response Team, somehow has a weaker grasp of the law than Sara Kuhl, a university public-relations woman and sometime proprietor of 2Kuhl Public Relations.
(Now I’m libertarian, not a Republican, so A.G. Schimel and I would likely disagree over points here and there. Nonetheless, there is simply no imaginable circumstance in which I would reject Mr. Schimel’s assessment of what’s legally possible for Ms. Kuhl’s view. In fact, to take the measure of Ms. Kuhl’s position, in her view the request of Laura Dunn, Esq. [University of Maryland Law and Adjunct Professor at that same school] for a meeting is, also, unjustified in legal practice. That’s absurd, too.)
Ignoring these claimants is contrary to conventional legal practice, perpetuates a response of collective silence in the face of individual grievances, and asks the community to reject the views of accomplished, qualified attorneys for the sake of shallow sophistry.
The Hon. Alex Kozinski is a judge on the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit has jurisdiction over most federal appellate matters in the western continental United States. Judge Kozinski is nationally know among members of the bench, and served as chief judge of the Ninth Circuit for many years (2007-2014).
One of his finest accomplishments (and at sixty-five he’s still busy as judge and legal scholar) is his thoughtful defense of exacting standards for expert studies at trial.
To be a defender of exacting standards requires that one be an opponent of junk science, crackpot theories, and shoddy studies. That’s the Whitewater aspect of this: Americans can and should do better than the low standards local publications set for policymaking and policy studies.
In the audio clip above, Judge Kozinski speaks (last fall) to the Cato Institute about the need for sound reasoning in criminal matters. Early in the clip, he mentions a motion – a Daubert motion, following Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) – used to exclude expert testimony that falls below an acceptable standard as Federal Rule of Evidence 702 requires. Daubert was a civil case, and it’s Judge Kozinski’s point that in criminal matters a Daubert standard in favor of reason – and against junk science – hasn’t been applied as often it should be.
We could use a Daubert standard for local government projects around here; even Daubert-lite would be a big improvement.
So a local paper complains that a local school superintendent won’t comply with a public records request, won’t put the paper on a media contact list, and simply ‘must’ improve communications.
A few points —
1. Compliance with a public records request isn’t a ‘communications’ issue; it’s a legal issue, of rights of residents under Wisconsin law.
2. Perhaps there would be a greater willingness of public officials to comply with the Public Records Law (Wis. Stat. §§ 19.31-19.39) if newspapers hadn’t made clear that they’re too weak or too miserly to challenge officials’ non-compliance at law.
3. A newspaper can say all it wants that it’s the ‘leading media company’ of its area, but that doesn’t mean much in a diverse media environment in which newspapers are doomed (as almost everyone knows them to be).
In any event, social media messaging in many communities – by itself – vastly outstrips the reach of any media company. Sorry, gentlemen, there is no ‘leading’ force anymore.
4. When a resident or publisher thinks about pursuing an issue in which a public records request might be needed, he or she should consider what might be next if officials slow-walk, respond only in part, or simply deny the lawful request. One would prefer that local officials felt a duty other than self-interest disguised as public interest. What one would prefer describes – less and less – the environment in which we live.
Residents, bloggers, and community groups that seek information under a public records law should be prepared to defend that request at law. One hopes that won’t be necessary, but rights are more than hopes, and so one should think ahead, even before a request is submitted: what’s next at law if officials obstruct this request? See, along these lines, Steps for Blogging on a Policy or Proposal.
That’s a big commitment, but a commitment one should be prepared to see through.
The two, separate federal complaints that sexual assault survivors have filed against UW-Whitewater are complaints against that institution for the failure to comply with lawful requirements for handling these alleged survivors’ claims (regardless of the underlying facts in any given claimant’s case).
(That’s why, when Title IX complainants seek federal recourse, they say that they have been assaulted twice – once from an assailant, and a second time when they feel they have been denied the required Title IX support from their own campuses. A federal Title IX complaint is against a school for failing to respond as required to the request for local assistance.)
These complainants allege that, apart from the underlying facts of each assault, UW-Whitewater and one of her principal administrators failed to provide the standard of care and responsiveness that the law requires. Both women allege not merely that UW-Whitewater’s Dean of Students, Mary Beth Mackin, was deficient in her response, but that she was unlawfully so. The second complaint, pointedly, claims that UW-Whitewater acted in a sexually discriminatory way, itself an additional violation of the law.
More seriously, these two women allege that UW-Whitewater has actually and effectually obstructed the required processing of their complaints.
The inescapable legal issue here is how UW-Whitewater processes complaints, and whether that institution has done so as the law requires. The practical issue is that failure to treat all complaints as the law requires will dissuade future sexual assault survivors from coming forward.
If officials oppose applicable federal laws, the legitimate response is to petition for an amendment or repeal of those laws.
No one employed at the University of Wisconsin-Whitewater, regardless of his or her role, has a right to disregard existing legal requirements. It does not matter how much those in the administration might wish to balance the law against other (often self-interested and self-protective) reputational considerations.
The law does not allow that balancing. No official is above – nor any individual below – the law. It does not matter how important officials believe they are, how much other work they feel has gone well, etc.
The legal question is how public officials, receiving public funds, bound by federal law, complied with that federal law (regardless of the underlying facts in any given claimant’s case). There is neither a legal (nor an ethical) escape from this fundamental question.
Practically, the most important question is what actually happened to sexual assault survivors, and the well-being of those survivors and future ones.
The nature of these Title IX complaints, as matters under law, concerns how an institution has addressed the requests for assistance that it received from those within its care.
Readers familiar with organizational or political excuse-making are likely familiar with the four-dog defense. The provenance of the defense is uncertain, but Acronym Requireddescribes its four points nicely, citing a story from the St. Petersburg Times:
First of all, I don’t have a dog.
And if I had a dog, it doesn’t bite.
And if I had a dog and it did bite, then it didn’t bite you.
And if I had a dog and it did bite, and it bit you, then you provoked the dog.
Variations along these lines are commonly used to explain away mistakes, errors, or injuries, often in cases of negligence.
After a push to alter Wisconsin’s Public Records Law (Wis. Stat. §§ 19.31-19.39), we’re now secure with the original law intact.
Below one will find a recording of Wisconsin A.G. Brad Schimel’s Open Government Summit, held earlier this week at the Concourse in Madison.
J.B. Hollen, Schimel’s immediate predecessor, started strongly in favor of the Public Records Law but was less supportive in his second term. A.G. Schimel’s approach is better for the public, although it’s disadvantageous for public officials seeking to conceal information from the very residents to whom they are legally obligated.
(It’s also helpful that support for the law is widespread, and not confined to the party in opposition. Two of the key opponents of gutting the law have been the MacIver Institute, a conservative think tank, and Rick Esenberg’s Wisconsin Institute for Law and Liberty, a conservative-leaning public interest firm.)
But one has this problem, that has grown worse over these last few years: too many officials, in cities, towns, and universities, have decided that they can reply to a public records request however they’d like. Replies like this are dares: will you go to court over this? Alternatively, will you accept what we’ve supplied, however inadequate in reply it so obviously is?
Some denials may be over fair questions of interpretation; that’s not what I’m describing. Many denials are a test of one’s citizenship, of one’s rights in a free, well-ordered society: can someone successfully compel others to accept less than their rights require, consigning them to an inferior position in disregard of the law?
There’s no way to know how a requester will respond to an insufficient reply until the need arises, of course. It’s helpful, though, to state plainly a path one will follow. Having stated as much, officials will not be able to say they’ve been blindsided.
This summit was long, I know, and time is precious. Still, there’s much in here, useful for thinking about government, on one’s own, rather than relying on officials’ superficial, self-serving declarations.
Tim Fader, formerly an award-winning wrestling coach at UW-Whitewater, was subjected to non-renewal of his contract (effective dismissal) with no satisfactory explanation, and with reason to think that UW-Whitewater had fired him for reporting a sexual assault allegation directly to the police. Fader’s termination came during a time – still ongoing – when UW-Whitewater was under federal investigation for its handling of other sexual assault complaints.
Former University of Wisconsin-Whitewater wrestling coach has notified the state’s attorney general of his intent to sue a number of officials at the university for “improperly” dismissing him from his position and for continuing to stymie his efforts to find work.
Tim Fader failed a “Notice of Claim” this week, alleging that he was not renewed as the school’s wrestling coach in the summer of 2014 because he reported an alleged sexual assault committed by one of his recruits earlier last year directly to Whitewater Police and not to his supervisors on campus, per university policy. Fader asserts he’s been made a “scapegoat” because his situation arose shortly after the Office for Civil Rights (OCR) of the U.S. Department of Education announced UW-W was one of 55 schools nationwide being investigated for how it handled sexual assault or harassment allegations
(Our law requires that one file a notice of intent to sue any state officials 60 days before legal action can begin. I have embedded the Notice of Claim below, so that one may read it in full.)
Attorney Stan Davis, a former UW System Regent, represents Fader. Attorney Davis observes that when Fader spoke to the police, he prevented UW-Whitewater’s officials from crafting a description of events at a time, and a pace, of their own choosing:
“He was the Division 3 Wrestling Coach of the Year and he is now unable to find a job,” said Fader’s lawyer, Stan Davis, a former UW System Regent. “It seems as though he’s being punished here for not giving the University the opportunity to decide how they were going to address, spin, handle this matter and that’s problematic.”
Needless to say, in each case there may be people who are injured. That matters most, of course. Nearly as important as handling present injuries is inhibiting future victims or third-parties from reporting allegations for fear of doing so.
Attorney Davis sees this fundamental truth clearly:
His lawyer believes the impact Fader’s jobless situation could have on campuses throughout the state is why this remains so important.
“The chilling effect this could have on other faculty members who may be afraid to go to the police now if they become aware of something because Tim went to the police and he ends up losing his job,” Davis said. “It suggests (UW-W) didn’t want an outside agency to be aware of this until they decided what, if anything, they were going to do about it.
“Making a scapegoat of one person who actually handled the situation the way I think most people would have… does not do anything to help address this problem in the future.”
In fact, it’s hard to believe that reasonable people, aware of the importance of encouraging reporting, and genuinely believing in open reporting would not see as much.
I’ll have updates as this matter develops.
I would encourage readers to donate to the It’s On Us campaign, and to support these and other efforts to prevent sexual violence.
Those who have experienced sexual assault will find resources of support at www.notalone.com.
See, below, NOTICE OF CLAIM AND CLAIM PURSUANT TO 893.82, WIS. STATS:
GDE Error: Error retrieving file - if necessary turn off error checking (404:Not Found)
It’s both a pity and a disgrace that a fourteen-year-old victim’s mother had to plead with the Hon. James Carlson to sentence to jail the men who assaulted her daughter:
ELKHORN—The mother of a 14-year-old girl sexually assaulted by three men in an Elkhorn basement in 2013 pleaded with judges Tuesday to send two of the men to prison and require sex offender registration.
At the final man’s sentencing Tuesday, the mother’s frustration boiled over when the judge ordered no prison and no sex offender registration.
“This has got to stop,” the mother told Walworth County Judge James Carlson. “We’re not setting a good example for other children in our community. They think this is OK, that all you’re going to get is a slap on the hand.”
About two hours after the mother’s pleas, Carlson sentenced Braden D. Mann, 19, of W5244 County ES, to nine months in jail and five years probation….
In the Wisconsin State Journal this morning, one reads that a second Wisconsin school is under investigation for its handling of sexual assault complaints. Dan Simmons writes that
UW-Madison is now the second university in the state to be included in a growing probe of possible violations of federal law over the handling of sexual violence and harassment complaints, according to the U.S. Department of Education.
The investigation now targets 101 schools, including UW-Madison and UW-Whitewater. The initial investigation was launched last May and included 55 schools, Whitewater among them.
Investigations of this sort can involve either how a university reports incidents of sexual assault, or how it treats those who are trying to report allegations of sexual assault.
One should be clear: federal law does not mandate – needless to say – that there will be no crimes on campus. Federal law simply requires that, following allegations of sexual assault, universities that receive federal money will process complaints thoroughly and treat those involved in complaints fairly.
One would hope for campuses without violence; these present laws simply require that institutions taking federal public money should address allegations of assault to the high standards of which America is capable.