March 30, 2023

How This Lawyer Confronts Sexual Assault on Campus

I first met Olympias Iliana Konidaris at her brother’s wedding, where she gave a great toast that affirmed all of my complaints about him (he, a fellow astrophysicist, is one of my best friends). Obviously, I thought she was great. It wasn’t until years later that I realized that Iliana (as I know her) was also a rising star on the legal scene. Not only had she run her own law firm which specialized in Title IX cases, but now as managing counsel for the New York office of The Fierberg National Law Group, she has been named to 2021 Best Lawyers: Ones to Watch in Civil Rights Law. She’s also co-chair of the New York City Bar Association Sex and Law Committee. Anyone who talks to Iliana about her work can tell immediately that addressing gendered discrimination and violence in academic settings is a passion project for her.

Confronting and ending sexual assault on campus is essential: nearly 1 in 5 women will experience an assault while in college, while nearly 1 in 20 college men will experience an assault.1 Research shows that trans and other LGBTQ+ students face unique challenges when it comes to rape culture, but there is insufficient data to capture the full picture.

Over the years, Iliana and I have traded information: me as an academic, her as a lawyer who specializes in academic cases. I wanted to share what I was learning with the world. Below is an edited and condensed transcript of our conversation about her work supporting survivors, where she shares her rationale for why people should go to their campus Title IX office, how disability services can help, and why you should consult a lawyer before you tweet “X is a harasser” (reason: so that you can do it in the smartest possible way). As I write in The Disordered Cosmos, I was raped during my first year in grad school. The questions I asked are not mere hypotheticals to me. This is a long read, but even if you can’t do it in one sitting, bookmark it! There’s a lot here, and I hope you find it useful. Please share widely if you do. People need to know! — cpw

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Chanda Prescod-Weinstein (CPW): Tell me what you do.

Olympias Iliana Konidaris (OIK): I am managing counsel for the New York office of The Fierberg National Law Group. The firm is based in Michigan, and we focus on school violence cases, including Title IX cases in K-12 and in Higher Ed, fraternity hazing deaths, and victim’s rights more broadly. I am really interested in legal issues involving gender-based discrimination and violence, some of which don’t fall into a neat category, like defending retaliatory defamation actions.

CPW: I’m especially interested in the Title IX work that you do, addressing sexual misconduct in academic settings. I suspect that you end up representing a lot of Ph.D. students, masters students, maybe professional students too. In the case of graduate students, is it just Title IX, or is also labor law? Is it an educational law issue?

OIK: If you have a graduate student, and that graduate student is doing paid work and is an employee of the university, then they have additional rights and potential claims. One of the things I always look out for is, “Are you getting paid, are you also an employee?” If so, you might have employment law claims, like Title VII claims.

CPW: Tell me about Title VII.

OIK: Title VII is the federal civil rights statute that prohibits gender discrimination and other forms of discrimination against “protected classes” (like race, color, national origin, age, gender, including gender identity) in employment. I usually deal with it in terms of gender discrimination in employment. There are certain requirements, i.e. the employer has to have fifteen employees, and you also have to file a charge with the US Equal Employment Opportunity Commission before filing a lawsuit. You'll also have state, city and local laws that might protect you.

Title IX prohibits gender discrimination in educational institutions that receive federal funding, which generally includes private institutions of higher ed, and is maybe one of the more elegantly written statutes: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]”

CPW: You're thinking about what laws apply, what kind of civil suit you might be bringing, and what exactly is my specific complaint going to be, for example, “This is the way in which Title IX was violated, this is the way in which Title VII was violated.” Do I have that right?

OIK: Yes, if the only option my client has is to file suit, I look at all of the claims available to them. If my client is at a university, then I always think about whether they have potential Title VII claims and any other claims under State and local laws that protect employees and/or students. That said, lawsuits are not the only option! There are so many other potential ways to find a solution, particularly if you seek legal help early enough in your case.

CPW: One of the questions people wanted me to ask you was, “Is it ever valuable to go to the Title IX office?”

OIK: Yes. Absolutely.

CPW: Because there are so many horror stories about it, people wonder if it’s actually a bad thing to do.

OIK: I think that's such a good question and I'm so glad that you asked. Depending on your university, of course, there is often a lot of value in going to the Title IX office. Think about how long a lawsuit can be and how high the stakes are. The chances of success for a plaintiff are statistically low. I encourage students to shift their thinking as to what they’re looking for from the Title IX office. Taking the perpetrator to a notoriously fraught hearing is not your only option. You should use the Title IX office as a way to preserve your access to your education and to ensure your success as a student.

CPW: Can you give me some examples of what a Title IX office can do?

The Title IX office can give you resources, supportive measures, and immediate help in a way that a lawsuit, or even a university’s Title IX hearing, simply can’t. So, let's say you need to avoid the perpetrator, the Title IX office is where you can go to create a really comprehensive plan for yourself to stay safe on campus. It's also where you might be able to get help with extending deadlines, fixing grades, or engaging in a fast-tracked informal resolution with the perpetrator, which isn’t perfect, but it may get victims what they need to feel peace. And sometimes, victims prefer that, and they don't want to go through a hearing -- hearings are super traumatic and it takes a while to even get to a hearing, sometimes the better part of an academic year. 

Even if you win at the hearing, it’s still hard to get a perpetrator kicked out of your university or to get a notation on their transcript, if that’s the ultimate goal. So, I try to help victims re-frame what a win looks like.

Also, just putting your complaint on paper has value, it has a lot of value because you’re reporting, you’re making a record of the harm somebody caused you.

CPW: So, paper trails are important?

OIK: Paper trails are super important and so, I think, just getting that piece of paper to the Title IX office, that, in and of itself, is a win. If it happens to someone else, there’s now a record of a pattern of behavior. And that is really valuable.

CPW: It sounds like you think it makes sense to go to a Title IX office. Should people be seeking out legal counsel, if they can, to go with them to Title IX?

OIK: I always think it's helpful to get legal counsel involved, earlier than later. Your lawyer may have invaluable prior experience with your Title IX Office. 

That said, I know it's hard to get legal counsel, it takes a lot of wherewithal, right? To be like, “Okay, I have a situation, I'm going to get a lawyer, I'm going to find the money to get a lawyer, or pro bono counsel, or whatever it is.” But I do think if you do it early, you just have far more options. Also, it signals to the perpetrator that you’re serious about the process and that you have support.

Sometimes I serve as a watchdog. Sometimes, I engage in a parallel process to tell the university, “I don't like this, I'm concerned about this, nobody's responded to my client, professors aren't responding, she's failing, we need help.” And, even if that counsel's not particularly nice to me, or appreciative of my communications, there's a difference. Like, suddenly, “Okay, the professors are writing back, the Dean is getting involved now, the deadlines are being extended, her grades are being changed to reflect the kind of student she was before the assault.”

CPW: What are the different options and what are the different things that people should be seeking when they go to a Title IX office? Tell me about the things that someone might be seeking. So I heard you mention something about homework extensions.

OIK: Yes, so the best part about going to the Title IX Office, I think, is that very quickly you can get help that you cannot get in litigation or in an OCR complaint, which is an administrative complaint filed with the US. Department of Education’s Office for Civil Rights. You know, good luck trying to get, like, a quick response and having some measurable difference in your life on campus, within a week, right? Which is what the Title IX office can (or should) do for you. Title IX is your right to an equal education. That’s a powerful thing, and you should use it.

So generally, I go through the whole list of things, like, “Well, what is scaring you on campus? Is it parking, do you need a better parking spot so you can be closer to the dining hall? Or is it laundry? Is it switching dorm rooms? Can we get the perpetrator to agree to switch dorm rooms? Are you in the same courses with your perpetrator? Can we stagger your entrance/exit, or can we change the seating arrangement?”

CPW: What other resources or offices might be available to victims on campus?

Let's say a client has got a post-traumatic stress disorder diagnosis, they may want to sign up with their university's disability services office. Universities have very different offices and services, but the point of outreach to these various offices is to find an on-campus advocate for you who can immediately respond to your needs and help you succeed. Sometimes my clients will find amazing allies in the disability services office, if the Title IX Office isn’t working for them.

There's a whole list of things that I go through to figure out, “Well, what would make your life bearable on campus, and better on campus, so you can access your education and succeed?” Otherwise, you really are denied your education and then, it’s devastating when you have a client from Harvard, or Julliard, or wherever and they have worked so hard to get there, and they're so incredible, and they tell me, “I don't want to be here anymore.” And in my head, I’m thinking, “No, you need to get that degree, that's yours.”

CPW: You’re really expanding my awareness about the array of supports people can consider seeking out. What else is there?

OIK: Protect your transcript! Don’t sit in shame about bad grades, incompletes that seem impossible to complete, or missed deadlines on assignments. Talk to your attorney, to the Title IX office, or to disability services. Figure out a way to get back on track. If the work seems daunting to fix incompletes, ask if there is an alternative assignment that suffices. Don’t take “no” for answer. Protect your grades. And protect your recommendations. If you're in grad school and your professor, your advisor, is also your sexual harasser and you need a recommendation from him but you hate his guts, there might be a way around that. Like, can another faculty member interview this person and write the recommendation for that person.

CPW: My mind is blown. That never would have occurred to me.

OIK: The most important thing is to protect your transcript, protect your letters, your extracurriculars. Whatever it is that you do at school, try to find a way to protect that through this process.

CPW: Part of what I'm hearing is that it matters a lot what resources you have access to, and so I'm wondering if you could tell me about how that shifts, you know, when you're dealing with someone who's a working-class student, maybe they're LGBT+, or they don't have a supportive family for whatever reason.

OIK: In my practice, now that I’m thinking about this, I’m sure I don’t hear from those who have the most limited resources. I’m a private attorney, and while I take on pro bono cases, I have to be incredibly selective about them. Also, those without resources probably don’t think to call private attorneys, which is a mistake. My advice to victims is to reach out to attorneys, to referral networks for gender-based violence, to non-profits, etc. Those of us who work in this space often give a lot of ourselves, and our time, and free advice, to the cause. We may be able to get you to the right place.

What about dealing with intersectionality? The overlapping oppressions experienced by women of color, non-binary students of color, etc. Does that shift your strategy, does it shift what's available to you?

OIK: Yes so when I was thinking about all the reasons that folks don't come forward, again there's a mental checklist that I go through. One of them is race, culture, faith, background, class, power dynamics, and race comes in to play in so many ways, and I keep my eyes open to it because it's never the same in any two cases. I try to keep the conversation open and honest. Sometimes I hear, “Well I'm a Black woman, he's a Black man, I don't want to come forward against him.”

CPW: I'm personally familiar with that struggle.

OIK: Or sometimes race comes into play when we approach witnesses or other victims, and that’s one of the things I ask my clients about. A junior faculty member of color — or a victim of color — may have a higher degree of institutional mistrust that makes it harder to come forward. Or enduring Title IX interviews and questioning may be more traumatic, more triggering. Race really matters in these cases in ways that are unpredictable. I have so many examples.

CPW: Would you say the array of goals that are available to you shifts depending on your resource access? I think the popular imagination about Title IX cases is that the goal is always to get the perpetrator off campus if they are a student, or getting them removed from the faculty.

OIK: For many of my clients, that often starts as the goal, in part because most students don’t know what options are available to them. They didn’t ask to be in this situation. But even if that goal can be achieved: at what cost, not only financially but emotionally and time-wise?  

CPW: You're saying that that's actually a really hard goal to achieve. It sounds like you have to be well-resourced to even think about going after that goal?

OIK: Not always, and some victims are exceptional advocates for themselves. So many factors go into whether it’s worth going through with a hearing, including the facts of the case, the parties involved, the evidence, the university. For some victims, it may just be a nagging feeling that they have to follow through with a hearing. For others, it’s the exact opposite.

CPW: Talk to me a little bit about the defamation side. This aspect is now more in the popular consciousness because of the Amber Heard-Johnny Depp cases. How does this shape whether people come forward and what they ask for when they do?

OIK: These types of defamation lawsuits are an extension of the abuse my clients have suffered, or as expert Jennifer Freyd has referred to them, they are an "act of DARVO," or Deny, Attack, Reverse Victim and Offender. In other words, these lawsuits are a tool for abusers to attack the victim and to paint themselves as the victim. DARVO can be so effective that it can sometimes make the victim doubt themselves and their experience. But Freyd's research has shown that we can combat DARVO by educating people — like judges, juries, the press, the public, and even the victims themselves — about it and identifying the classic “symptoms.” Once you see DARVO for what it is, it's really empowering. So, I find it important to turn the abuser's tactic on its head and to use the frivolous lawsuit as a platform to expose the abuse. 

More often than not, the victim perceives the risk as far more heightened than it actually is, and fear can be blinding. Obviously, the risk is real, and it's worth a conversation with an attorney or even the Title IX office, but just remember: it is not easy to bring a defamation action, and it's not that easy to win them, either. Most people are not Johnny Depp. I agree that it’s worth being strategic when dealing with very wealthy perpetrators who have absolutely nothing to lose in terms of their reputation. But generally, that’s not students trying to finish college or grad students and start their careers. Obviously, there are exceptions. But what I would say is, if you’re really concerned about your perpetrator’s retaliatory tactics, that doesn’t mean you should stay silent about the abuse.  Definitely talk to an attorney to assess the risk and mitigate any exposure you may have.

And, if you get slammed with one of these abusive lawsuits, keep calling private firms, law school clinics, etc. to get representation. You may even have coverage under a home owner’s insurance policy. But don’t give up — those of us who do this work want to help you and want you to win.

What's the risk if I post on social media, "John Doe is a harasser"?

Right off the bat, I can say this statement is risky and would require some amount of analysis (preferably by a lawyer!). This is how I’d think about it: Is that post a comment on a news article that discusses John Doe’s harassing behavior, and therefore you’re just expressing an opinion based on those reported facts? That most likely wouldn’t be defamation (your opinion isn’t a fact that can be proven true or false). But what if you’re posting that comment in connection with a news article about John Doe and the news article was about the prize or science award that John Doe received, nothing about his harassing behavior? That could very well be defamatory. If you go on to say that he harassed you or you saw him harass someone else: that may also draw a meritorious defamation suit, or a lawsuit that has legs. Meaning, a jury might deem that, more likely than not, those statements are false and harmful to John Doe.

Does that mean you shouldn’t say it even though it's true, and you feel it's important for others to know? No, not necessarily. It means that maybe it’s worth talking with a lawyer about how to say it and how to protect yourself. There’s a public good in coming forward against gender-based violence and misconduct, and my job is to help you do that with an acceptable amount of risk.

CPW: Turning to cases where the victim may feel they don’t have any evidence, people ask why should we believe such serious allegations when there is no physical evidence. How do you respond to that argument?

OIK: First of all, people should ask how they are so sure there’s no evidence. “Do you have any outcry witnesses? Do you have friends who you have texted? Parents, a therapist, a doctor that you visited?”

First, the thing that I hope that everybody remembers is that your testimony, your story, that is evidence. And you are going to be met with this “he said/she said” thing, and I hate that phrase, but I hear it all the time. Second, unfortunately, I have a very high success rate at finding other victims of the same perpetrator. Third, the institution really should treat your story like evidence. A trained, skilled adjudicator should be able to assess your credibility and certainly one of the things that bolsters your credibility is corroborating evidence. But the adjudicator should also ask: What is your motive to lie? What is his motive to lie? Credibility is assessed by examining many factors, and so I think that if an institution has a thorough, meaningful process, we can move away from calling everything a “he said, she said” case. This is also where it is valuable to have a lawyer help you assess evidence, examine witnesses, review text messages, and piece together the corroborating evidence. You may be surprised by how much you have.

I just haven't had a case where there's not been anything – not a text, not an email, not a note to yourself, not a conversation with a therapist or with a mother or with a friend, or another victim.

In academia, in cases involving faculty-student misconduct, I really just can't believe that it would only have happened once and to this one victim talking to me. I never believe that that's the case, you know? Especially the more powerful the perpetrator, I think the higher likelihood that there's somebody else who has experienced it who doesn't want to talk about it but-,

CPW: I mean I think that that's an important message, because it's definitely the case that I for a very long time believed that I must be the only victim. I think that was also my coping mechanism, and probably there is an element of self-blame to it, right? Which was like, “I must have specifically done something to bring this situation onto myself, otherwise it wouldn't have happened.” Because if you really think, like, “That was that other person's choices,” then you start to think they've probably made that choice at other times too and not just in this one case. That’s a hard thing to absorb, that maybe there was nothing special about what happened to you, because it feels pretty fucking special – in a very negative special way, but it feels like unusual to you, but it may not be unusual for the other person who did this to you.

OIK: That’s so well said and a good reminder for me of my client’s perspective. Yes, I think one of the biggest values in speaking to a therapist or an attorney or somebody who has seen these cases a lot is that I can say, like, “Well this is a really normal pattern.” Gender-based violence is really shaming and silencing, and it can be so confusing. Being able to share what I’ve seen, and being able to normalize my client’s experience, and to help them put some of those pieces together, that’s part of the process. The other thing that happens is that a lot of people don't recognize what happened to them as an assault or a rape or harassment until they hear another victim say, “Well this is what happened to me, and it was rape.” And then they're like, “Oh shit. What happened there, that's what happened to me, and now there is a word for it that I wasn't really using before, right?” That can be extremely validating to the victim.

CPW: So, as I said, I surveyed people and the other question that came up was, what do we do about the fact that tenure is often used as a force field around faculty? I actually struggled a little bit with this question because I'm a really firm believer in the protection that tenure offers for academic freedom and I find it a little bit frustrating, actually, that tenure is invoked in these situations at all because tenure is not actually a shield against, “Did you break the law?” Why is tenure being used that way and how are institutions getting away with it?

OIK: This is a great opportunity. I think that probably what tenure should mean is, well, you have earned robust procedural rights, right? The University must follow those procedures carefully. But I also think tenure means that you have more of a responsibility to know the policies and to know the procedures in place and to understand what sexual harassment and gender-based misconduct is and the impact it has on students. You should be held to a higher standard. I think universities should make it clear that a professor’s ignorance is not a defense, you know?

CPW: I love that. That, like, you should be more responsible and the consequences should be proportional to the fact that you are the most adult person in the room, that's what full professor means.

OIK: Yes, exactly. There's policies in place and you should know them and you should be held to that high standard. That's how I would use it in any other proceeding, which is, you have this really coveted position, therefore, you have really important obligations. You owe something more to your students.