The whistleblowers: Employees claim retaliation in campus rape cases

(CNN)Jennifer Morlok landed her dream job on the very campus where she earned two degrees. She was both a proud alumna of the University of Oregon and a senior staff therapist and case manager at the university counseling center.

But when the school became embroiled in a scandal involving sexual assault allegations against three basketball players, Morlok found herself caught between a student client and the university she loved and served.
It was not easy, but her choice was clear.
She stood up for Jane Doe.
Morlok was known for her sensitivity in handling high-risk clients and trauma cases. It was a team effort, she says, attributing her ability to provide a high level of care to the support of colleagues at the University Counseling & Testing Center. So when she disagreed with the university's handling of counseling records of one client -- the Jane Doe at the center of the rape allegations -- she brought her concerns to her director, certain she would "do the right thing."
Instead, she says, her director threatened her job.
"That was when I learned the university was not what I thought it was," she says.
That day in November 2014 marked the moment when Morlok's faith in UO began to unravel in a whistle-blower case that would expose obscure loopholes in medical privacy law on college campuses.
She was not alone in her criticism of UO. At least one professor on the campus became a whistle-blower in the school's handling of the case.
Psychology professor Jennifer Freyd filed a complaint against the school when she learned the incident reported by Jane Doe was never logged with campus police, an apparent violation of federal law.
What happened next on the UO campus is a scenario that advocates say is playing out in schools nationwide, threatening free academic speech and deterring university employees from joining the fight against campus sexual violence.
"If you call out your institution, you face retaliation," says Caroline Heldman, co-founder of the advocacy group Faculty Against Rape and a professor at Occidental College in Los Angeles.
"For many, it's just not worth it. Because the job market is so bad for tenured and untenured staff, one little thing could sabotage your career or make it hard to move to another school."
UO declined to address specific claims from the women. In a statement to CNN, President Michael Schill, the third president to lead the school since the allegations, said he was working "energetically" to leave the incident in the past and move forward with policy changes and open dialogue with the school community.
"I also want to make it very clear that retaliation against those who hold different or critical views is contrary to the values of the University of Oregon, which is dedicated to free speech and academic freedom," he said.
There is a renewed focus on campus rape and how schools handle reports of sexual violence. As of November 4, 146 postsecondary schools were under investigation by the Department of Education's Office of Civil Rights, which handles reports of violations of Title IX, the federal law that requires schools to provide an education free of sexual harassment.
What has received less attention is the precarious position some university employees find themselves in when their obligations to students and the institution are at odds.

Portrayed as 'troublemakers'

Retaliation against faculty who engage in advocacy is not a new phenomenon; professors have been reprimanded and lost tenure because of statements on controversial issues, from the September 11 attacks to Palestinian rights. In the case of campus sexual violence, advocates say they have observed patterns of retaliation and cover-up by universities and colleges.
Some employees who have stood by students at news conferences or spoken out against schools say they have been removed from committees, lost classes, gotten their funding pulled or lost their jobs. They say even tenured faculty, who ostensibly have job security and academic freedom, experience retaliation in subtle forms, from marginalization in their departments to alienation from colleagues.
"If college administrators had a hard time respecting scholars' academic freedom when it came to problems outside of campus, they are likely to respond more aggressively to faculty playing an active role in advocating for survivors of campus sexual assault and challenging the administrations that mishandled complaints," says SUNY Plattsburgh professor Simona Sharoni, co-founder of Faculty Against Rape.
Sharoni says the blowback faced by faculty who advocate for survivors and call for accountability on college campuses can be similar to what human rights activists encounter in undemocratic countries. They are portrayed as "agitators," "troublemakers" and "polarizing" figures, thrusting attention on them and away from the issue.
"It is time that college administrators understand that the best way to protect a brand," Sharoni says, "is not through cover-ups and retaliation but rather by protecting students and faculty."
The University of Oregon found itself under fire on how it handled campus sexual assault cases.
Dozens of people on campuses across the country declined to speak to CNN on the record about their experiences, citing fear of retribution.
Against their better judgment, perhaps, Morlok and Freyd feel they have a professional obligation to speak publicly about their experiences.
"It's the duty of faculty members to speak openly and honestly based on the extent to which they have expertise or information on a topic," says Freyd.
"Our primary responsibility is to produce knowledge and to teach knowledge, and that's why academic freedom is so important. If my job is to reveal the underlying truth of things and to teach that truth, if I see something that looks problematic, I speak honestly about it."
For schools, the criticism can result in a struggle to balance academic freedom with public relations nightmares. What constitutes protected speech for public employees is a question that's playing out in courts across the country with no clear consensus.
In situations where facts are disputed, student privacy laws limit what schools can say in their defense, which can leave them looking guilty by omission, says lawyer Brett Sokolow, president and CEO of the National Center for Higher Education Risk Management, a consulting group that advises schools on Title IX policy and sexual misconduct cases.
Otherwise, generally speaking, "there's nothing illegal" about schools reprimanding employees if the administration believes they are acting inappropriately or spreading misleading information, Sokolow said. Where the truth lies tends to be in dispute.
One thing is clear, he says: It's no longer an option for schools to say "no comment" or to impugn complainants.
"Schools have to say something before they lose control of the story."
Whatever they say or do, they better be ready to defend themselves in court and in the court of public opinion.

The case of Jane Doe

The news broke in May 2014: A student, Jane Doe, told Eugene Police in March that three basketball players gang-raped her in two apartments off-campus. Through a university conduct hearing, the basketball players were found responsible of sexual misconduct while the Lane County District Attorney's Office declined to press charges, citing insufficient evidence to prove the allegations beyond a reasonable doubt.
Damyean Dotson, Brandon Austin and Dominic Artis, who denied any wrongdoing, were dismissed from the team in May and banned from campus for "at least four years." The decision came two months after Jane Doe first reported it and two months after the team had finished playing in the men's NCAA Basketball Tournament.
The fallout has continued for more than a year, generating national headlines, protests and policy changes and ensnaring members of the campus community along the way.
No one was sadder to see the UO reputation tarnished than Morlok.
She'd become a die-hard Ducks fan when she was young, watching UO football games with her father. Even though attending college was not a given in her family, Morlok considered her choice of schools obvious. So, too, was her field of study.
Growing up, her family moved around Washington and Oregon, and she attended more schools than she can count, but one of them stood out.
On her first day at a new high school, the guidance counselor left a "welcome" card on her desk inviting her to his office.
"I realized that's what I want to do. I want to make people feel like they matter; I want to give them time, and I want to build them up."
She had no one to help her navigate the college application process; just one of her nine siblings had attended college. She went to a friend's home to borrow a computer and wrote her college essay on what she'd learned about responsibility and hard work from growing up on food stamps and hand-me-downs.
"I wanted to break out of poverty, and I knew that education was a ticket out," she said.
She completed her undergraduate degree in psychology in 2005 and got her masters in education in marriage and family therapy in 2007.
She returned to the Eugene campus in 2012 as a part-time relief counselor. After one year, the center brought her on full time as a case manager and senior staff therapist.
She hoped to finish her career there until a dispute over access to Doe's counseling records shook her loyalty.
Counselors go to great lengths to protect a client's privacy. Under HIPAA, which requires physicians to release the minimum amount of information possible about a patient for purposes other than treatment, the typical process is to send a summary letter.
So, in November 2014, when Morlok learned that Doe's lawyers had requested her files, she decided to write a summary letter. She did not object to Doe's lawyers having the information, but she wanted to follow protocol. According to documents, Morlok's boss, director Shelly Kerr, told her not to write a summary. Morlok did it anyway, leading to the tense encounter in which Kerr allegedly threatened to fire Morlok.
Jennifer Morlok and Karen Stokes had once received recognition for their  work at the  Univeristy of Oregon.  Now they find themselves suing the school.
Morlok knew something was up, something bigger than her. Her suspicions were confirmed when Kerr's assistant, Karen Stokes, told her that Kerr directed Stokes to print Jane Doe's entire file for university counsel, which was preparing to defend itself against litigation in the Doe case.
Morlok sought advice from the Oregon Board of Psychologist Examiners and said she was informed of her duty to report "prohibited or unprofessional conduct." She filed complaints in January 2015 with the Oregon State Bar against interim general counsel Douglas Park and general counsel Samantha Hill. She also filed complaints with the Oregon Board of Psychologist Examiners against Kerr, Vice President for Student Life Robin Holmes and a psychologist and colleague at the counseling center.
In a joint letter explaining the complaints, Morlok and Stokes said they were concerned that their colleagues engaged in potentially "illegal and unethical behavior" by accessing the student's medical records without her consent.
Morlok says she tried to continue doing her job but found it increasingly difficult as her colleagues "outcasted" her from their work. Requests for clients went unanswered for days and sometimes never at all, and the social interactions that made work fun ceased. A university spokesman declined to comment to confirm or deny this.
She held onto hope that things would change -- especially with the arrival of a new president in July who vowed to put victims first.
"For every day that I showed up, even if I was treated badly, it was one more day I could say 'you're not going to get away with intimidating someone who spoke up,' " she says. "The other thing is, I have clients, I have connections with human beings I work with, and if I feel like I can handle this on a daily basis, there's no reason to disrupt client care."

'Institutional betrayal'

Psychology professor Freyd knew that students did not feel safe from sexual violence on campus long before the basketball case. She had the research to back it up.
An expert on sexual violence and betrayal trauma theory, Freyd published a study in 2013 based on a survey of UO students examining whether an institution's failure to prevent sexual assault or respond supportively could exacerbate a survivor's trauma. The study found that when women experienced a phenomenon Freyd calls institutional betrayal, they reported increased levels of anxiety, suggesting that "institutions have the power to cause additional harm to survivors."
The study drew widespread attention at a moment when several highly publicized cases were turning campus sexual violence into a national conversation. The White House Task Force to Prevent Students from Sexual Assault invited Freyd to Washington in 2014 to share her findings. On campus, the publicity turned Freyd and her colleagues into unofficial confidantes for students and faculty who came to them with accounts of sexual harassment and grievances over the administrative response, which they said ranged from indifference to incompetence.
"We were hearing the same patterns despite different cases in different departments," said Carol Stabile, head of the Department of Women's and Gender Studies, who worked on a committee with Freyd to clarify policies and procedures for reporting sexual misconduct.
"It was a very, very chaotic kind of moment."
Stabile, Freyd and philosophy professor Cheyney Ryan say they pushed the administration to clarify policies around sexual misconduct, with varying degrees of success. After her visit to the White House in March, Freyd says, she recommended to then-President John Gottfredson and Vice President of Student Life Robin Holmes that the university conduct a campus climate survey, with guidance from the administration task force. She says that she offered to provide one in progress in her lab and that Gottfredson indicated he was interested in using it.
A few weeks later, the Jane Doe case came to light, turning the campus community upside down. After learning the details of the case, Freyd was unwavering in her disappointment with the university when asked for comment from the media,
Most shocking to her was the revelation that coach Dana Altman recruited Brandon Austin from Providence College after his suspension there on sexual assault allegations. Altman has denied knowing the specific reason for Austin's suspension and said an investigation of his background left no cause for concern.
Freyd also was troubled by the university's failure to note Jane Doe's report in the campus crime log. According to email exchanges between Freyd and the campus police, the incident was not logged because it occurred outside the agency's jurisdiction and because Eugene Police "did not request that we take a courtesy report."
That response did not sit well with Freyd. She says she filed a complaint accusing the school of violating federal law for failing to log the incident or to issue an email alert regarding the report in violation of the Clery Act, a federal law requiring all colleges and universities that receive federal funding to share information about crimes reported on campus. A Department of Education spokesman would not confirm the status of the complaint, saying that it comments only on cases that have been resolved.
Two weeks later, Freyd brought her completed survey to Gottfredson and Holmes and was shocked when they rejected her proposal.
In statements to the Register-Guard, Holmes said she worried the survey would produce "confirmation bias in the results" based on what Freyd thought of the university's sexual violence policies.
The statements struck at the core of Freyd's academic integrity.
"I was flabbergasted," she says. "I could not believe it after being here for 30 years and only having good things said about me. They've given me awards, issued press releases about my work and held me up as an expert in this very issue. And then this?"
It was about more than her, she says. "My biggest concern is it's chilling. If someone at my level can get treated that way, how can a junior-level teacher dare to come forward?"
To others, it seemed to send another message: Don't mess with the athletic program.
Like so many schools that depend on donors, Oregon is a hard place to be critical of athletics, Stabile says. People are invested in the team; university employees sign their emails "Go Ducks."
Stabile gets it. With state funding for education shrinking, the administration faces pressure to raise private funds.
"When you treat campus sexual assault as a public relations problem, then you have to shut people up because it gets in the way of your message and it threatens the brand," Stabile says.
"What I think is so tragic about this is there are so many people who are not going to say anything because they're afraid for their jobs."
Freyd acknowledges that her situation has improved since UO's new president, Michael Schill, took office in July. The university ultimately agreed to use her campus climate survey. It also invited her to join an advisory committee that she'd been alienated from months earlier.
What she wants, though, is an apology and a retraction of the statement about confirmation bias.
Whether she'll get it is hard to say.
University of Oregon President Michael Schill says the school has improved its protocol for handling sexual assault allegations.
"I have forcefully articulated the view that, under my leadership, we will not tolerate sexual violence at the University of Oregon. We have put in place ambitious programs aimed at educating students and staff about how to prevent sexual assaults from happening," Schill said in an email to CNN.
"Although these issues predate my joining the university, there is no doubt that this incident was a tragedy and marked a very difficult time at UO. We have worked hard to build bridges, and I am pleased to say that I enjoy an open dialog with Professor Freyd."
He points to strengthened confidentiality policies to protect student privacy for survivors who report, improved education programs for staff and students and new "self-analysis mechanisms" to review the effectiveness of policies to make the school "a leader in the fight against sexual violence."
"Much has changed here in a short period of time, and I'm working energetically to put this incident behind us so that our students, faculty and staff can focus on our core mission of academic excellence, scientific exploration and preparing the next generation of citizens and leaders."
Freyd says it reminds her of a "bad marriage": Instead of dealing with a problem, flowers are exchanged.
"The healthiest thing to do is to be accountable, to apologize when appropriate, to make it right when needed and then move on," she says.
"I'm a trauma psychologist, so I know if you try to bury things without having fully dealt with them, they tend to pop up."

A loss of faith

Morlok says her decision to call out her bosses for sharing Jane Doe's counseling records with the administration came from a place of concern; now, she believes she was simply naive.
If Morlok had any hope that her situation would improve, they were shattered when Schill issued a statement about the university's settlement with Jane Doe for $800,000 and a full waiver of tuition, housing and student fees for four years.
Jane Doe's lawsuit alleged that the school violated her rights under Title IX to an education free of sexual harassment on multiple fronts. For one, it allowed Brandon Austin to transfer to the school even though he had been banned from playing at Providence College based on sexual assault allegations. (In that case, a grand jury declined to indict him.)
The lawsuit also claimed the school accessed her counseling records without her authorization and "intruded upon her private personal affairs."
The university countersued and quickly withdrew its claim amid widespread criticism from the campus community and beyond.
While expressing sympathy for Doe in an August 3 statement announcing the settlement, Schill also stressed he did not believe "any of our coaches, administrators or other university personnel acted wrongfully."
"The underlying incident that gave rise to the litigation is an affront to each and every one of us. As president, I will not tolerate the victimization of any member of our community."
It was the latest blow in Morlok's quest for accountability. Previously, the Oregon State Bar notified Morlok that it found no evidence of professional misconduct by university counsel in accessing Doe's records. In a June 18 letter, Oregon State Bar representative Troy Wood said university counsel raised plausible arguments for why it was legal for them to take custody of the records. Among those arguments was that the counseling records became education records -- that is, property of the university -- when Doe obtained them for her lawyers for use in litigation.
Morlok was more hopeful when, in September, the Oregon Board of Psychologist Examiners found that Kerr engaged in unethical behavior by providing a client's confidential counseling files to university lawyers. The board proposed a $5,000 fine and ethical training. The others, including Holmes, the vice president of student life, were not reprimanded.
Morlok thought the ruling against Kerr was a sign that someone would finally be held accountable, that the university might acknowledge her client's suffering.
Instead, Schill issued a statement saying the school was "surprised and disappointed" by the board's finding and would support Kerr if she decided to appeal.
Finally, Morlok lost faith.
She says the response prompted her to submit a letter of resignation on November 2. One week later, she filed a lawsuit in federal court alleging whistle-blower violations and a First Amendment violation.
"I knew I couldn't go back because I couldn't trust it was going to be an ethical situation. For my health, my psychological well-being, I could not go back."
Would she encourage UO students to visit the counseling center?
"Absolutely," she says -- with a caveat.
"If you think in any format, in any way possible at all, that your situation is going to have any type of legal implication with the university, you need to go off campus."