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| Cutting the Gordian Knot |
Exeter Unafraid started in May in response to two events: a campus protest over the school's handling of sexual assault cases and a breakdown in the school's relationship with PATH. (See my relationship with PATH in this link here - we operate completely separately. I support their work, but have a different focus and objective.)
Now, there's an update - additional dialogue between Exeter and PATH. It's essential to arrive at an understanding of what their differences are, and why they are likely irrevocable.
Take my view for what it is. I encourage those who recognize the importance of this standoff to explore this in-depth to form their own view based on the primary sources. For that reason, I have constructed a chronology of their communications with links to the original documents below.
Since this exchange of letters began last September, PATH and the Academy have traded a total of eight letters (plus two ancillary emails). The amount of effort and expense invested in these, all likely put through close legal review on each side, is enormous. Just for curiosity, I tallied the word count. PATH's correspondence adds up to 3,178 words, PEA's 5,376. It's a considerable effort just to read through these attentively.
After all this, these parties are no closer than when they started. How can that be? Each operate in a fundamentally different paradigm. The Academy's perspective seems completely defined by a consumerist worldview that operates within legal and financial constructs. From that interpretive framework, PATH's interests in Truth and Reconciliation and restorative justice are incomprehensible. This accounts for why the Academy continuously revictimizes those it is supposedly trying to help. They seem to not understand the full dimensions of their actions.
If this hypothesis is correct, further dialogue will likely prove unconstructive. Then, it will collapse into a struggle of wills where one side will be forced to capitulate. Under normal circumstances, that would be PATH. They would find themselves suffering yet another experience of disempowerment. For some reason, Academy officials don't understand that disempowerment is what lies at heart of the injury here. Coercing survivors to any settlement or scheme for arriving at settlements simply doubles down on their disempowerment.
Now, the unusual situation at Exeter levels the playing field giving PATH good reason to stand its ground. Trustee President Downer is stepping down at the end of the coming school year. If Principal Bill Rawson manages to survive much longer, it will be a surprise. This afford important opportunities.
Choosing Downer's replacement should not be carried out in the board's usual opaque and unaccountable fashion. This changing of the guard is an opportune moment to press for reform: create a democratic process for selecting trustee leadership (See call for independent task force on governance submitted to Committee on Governance, February 2018). The trustees should candidate for the presidency, and the alumni would take their pick. Isn't that more in keeping with the school's "Harkness Philosophy" than the current secret society style?
Having a trustee President who champions sexual assault survivor rights would make for a very different situation.
Next, Bill Rawson's tenure as Principal is likely to be short-lived. His background as a petrochemical and pesticide attorney, the questionable way he was installed, as well as issues surrounding his as-yet undisclosed activities as trustee will prove problematic. There will be concerns, too, about his failure as Principal to properly resolve the accountability issues for sexual assault response - if he is unable to come to terms with PATH.
Exeter’s stated values, including that of non sibi, mandate that PEA finally acknowledge its history of both sexual misconduct and the mishandling of student allegations. A truly independent, transparent and accountable report is essential to not only reconcile past failures, but also to assure current and future parents that PEA deserves their in loco parentis trust.
Immediately after, Rawson sent an email to Academy employees dismissing PATH's critique:
We believe PATH’s letter reflects some misunderstandings regarding the investigations
that were conducted, and the Academy’s response to what it learned from those
investigations.
A few days later, he responded to PATH directly. He issued a lengthy promissory note that said he would soon be responding to the criticisms in detail. Core to this is what is essentially a direct refutation of PATH's most strident claim - that the Academy has acted in bad faith:
At no point during my tenure as interim principal will the school take action designed to protect the reputation of the school at the expense of victims, survivors or anyone else, even accused. I don’t think that way. Nor do my colleagues. We will engage in principled decision-making, consistent with the values of our school, and endeavor always to act with compassion and understanding.
That message, along with his promise for a full response, came on September 30th. Rawson demonstrated his priorities by his response time. His detailed reply arrived some four-and-a-half months later, on February 13. It was detailed, running some 2,800 words - more than twice PATH's original petition. In it, he essentially reiterates much of what he said before, adding particular responses to PATH criticisms. The upshot?
Much said but little movement
Since this exchange of letters began last September, PATH and the Academy have traded a total of eight letters (plus two ancillary emails). The amount of effort and expense invested in these, all likely put through close legal review on each side, is enormous. Just for curiosity, I tallied the word count. PATH's correspondence adds up to 3,178 words, PEA's 5,376. It's a considerable effort just to read through these attentively.
After all this, these parties are no closer than when they started. How can that be? Each operate in a fundamentally different paradigm. The Academy's perspective seems completely defined by a consumerist worldview that operates within legal and financial constructs. From that interpretive framework, PATH's interests in Truth and Reconciliation and restorative justice are incomprehensible. This accounts for why the Academy continuously revictimizes those it is supposedly trying to help. They seem to not understand the full dimensions of their actions.
If this hypothesis is correct, further dialogue will likely prove unconstructive. Then, it will collapse into a struggle of wills where one side will be forced to capitulate. Under normal circumstances, that would be PATH. They would find themselves suffering yet another experience of disempowerment. For some reason, Academy officials don't understand that disempowerment is what lies at heart of the injury here. Coercing survivors to any settlement or scheme for arriving at settlements simply doubles down on their disempowerment.
Now, the unusual situation at Exeter levels the playing field giving PATH good reason to stand its ground. Trustee President Downer is stepping down at the end of the coming school year. If Principal Bill Rawson manages to survive much longer, it will be a surprise. This afford important opportunities.
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| Downer: on his way out |
Having a trustee President who champions sexual assault survivor rights would make for a very different situation.
Next, Bill Rawson's tenure as Principal is likely to be short-lived. His background as a petrochemical and pesticide attorney, the questionable way he was installed, as well as issues surrounding his as-yet undisclosed activities as trustee will prove problematic. There will be concerns, too, about his failure as Principal to properly resolve the accountability issues for sexual assault response - if he is unable to come to terms with PATH.
It seems likely that Rawson's major task this coming year is launching a major fundraising campaign. Such a campaign could be subject to alumni boycott until the above issues are appropriately resolved, perhaps forcing his resignation. Should Rawson exit early, that would make for three Principals in a row departing under a cloud. The board would find it hard to ignore the need for a genuine "intentional interim" to clean house, reform governance and to embrace an authentic Truth and Reconciliation process.
For all this, the outcome of a PATH/PEA deadlock is anyone's guess. But the future of the school may lie in the balance.
Here are the latest developments.
PATH announced the collapse in the relationship on May 14th, just before the end of the school year. This was due to what they deemed "a betrayal of good faith" by the school.
Principal Rawson replied two weeks ago, on July 8. An excerpt:
Our aim in each mediation is to arrive at an agreement that is fair and reasonable. We understand that parties may disagree about what that means. Even a non-adversarial mediation can become or be experienced as contentious, but we remain committed to the mediation process and hope it will serve its intended purposes.
Now PATH has responded, essentially inviting the Academy to be part of an emerging consciousness about these issues:
Exeter has an opportunity to stand out as visionary in the cultural dialog around sexual trauma and rape culture. Exeter must demonstrate the seriousness with which it takes sexual misconduct through its action, not merely its words....Exeter’s duty to its students is not merely legal, it is moral and quasi-parental. In short, Exeter cannot be a moral institution that fulfills its responsibility to care for the children over whom it has accepted in loco parentis while relying on legal defenses to the harm it caused to some of those children.
The bottom line? Rawson has essentially doubled-down on his previous position, and PATH responded accordingly. With this, Exeter and PATH remain at loggerheads.
Here's a recap of how we got to this place in a long, arduous process. What set this in motion was last year's release of the results of Holland & Knight's (H&K) "independent investigation."
H&K's work was highly unusual even before it was completed. While the typical investigation of this nature takes 7-10 months, this took nearly 30. When finally finished, the school released it online on a Friday afternoon late last August. There was no follow-up. The community never had an opportunity to ask questions of the investigation(s) authors. Despite significant sums invested in this, there were no scheduled forums for discussion at the annual alumni leadership weekend (ELW) that took place in the weeks after.
More telling, H&K's work focused almost exclusively on adult misconduct. Peer sexual assault, the cause of the current campus protests, was largely relegated to the Academy attorneys at Nixon-Peabody. Both produced limited reports on their work. Actually, what the Academy released was an "overview" of H&K's findings (see my in-depth analysis published soon after its release, "Where the Phillips Exeter Report Fell Short," Portsmouth Herald, 9/22/2018).
The PATH/PEA dialogue begins with PATH's critique of H&K's work, "Petition for Renewed Investigation of Sexual Misconduct at PEA." It was more than a request for additions or emendations. It called for a complete do-over:
For all this, the outcome of a PATH/PEA deadlock is anyone's guess. But the future of the school may lie in the balance.
***
Overview of PATH/PEA correspondence:
Here are the latest developments.
PATH announced the collapse in the relationship on May 14th, just before the end of the school year. This was due to what they deemed "a betrayal of good faith" by the school.
Principal Rawson replied two weeks ago, on July 8. An excerpt:
Our aim in each mediation is to arrive at an agreement that is fair and reasonable. We understand that parties may disagree about what that means. Even a non-adversarial mediation can become or be experienced as contentious, but we remain committed to the mediation process and hope it will serve its intended purposes.
Now PATH has responded, essentially inviting the Academy to be part of an emerging consciousness about these issues:
Exeter has an opportunity to stand out as visionary in the cultural dialog around sexual trauma and rape culture. Exeter must demonstrate the seriousness with which it takes sexual misconduct through its action, not merely its words....Exeter’s duty to its students is not merely legal, it is moral and quasi-parental. In short, Exeter cannot be a moral institution that fulfills its responsibility to care for the children over whom it has accepted in loco parentis while relying on legal defenses to the harm it caused to some of those children.
The bottom line? Rawson has essentially doubled-down on his previous position, and PATH responded accordingly. With this, Exeter and PATH remain at loggerheads.
The Full Correspondence:
Here's a recap of how we got to this place in a long, arduous process. What set this in motion was last year's release of the results of Holland & Knight's (H&K) "independent investigation."
H&K's work was highly unusual even before it was completed. While the typical investigation of this nature takes 7-10 months, this took nearly 30. When finally finished, the school released it online on a Friday afternoon late last August. There was no follow-up. The community never had an opportunity to ask questions of the investigation(s) authors. Despite significant sums invested in this, there were no scheduled forums for discussion at the annual alumni leadership weekend (ELW) that took place in the weeks after.
More telling, H&K's work focused almost exclusively on adult misconduct. Peer sexual assault, the cause of the current campus protests, was largely relegated to the Academy attorneys at Nixon-Peabody. Both produced limited reports on their work. Actually, what the Academy released was an "overview" of H&K's findings (see my in-depth analysis published soon after its release, "Where the Phillips Exeter Report Fell Short," Portsmouth Herald, 9/22/2018).
The PATH/PEA dialogue begins with PATH's critique of H&K's work, "Petition for Renewed Investigation of Sexual Misconduct at PEA." It was more than a request for additions or emendations. It called for a complete do-over:
This was released on the eve of the annual ELW gathering. Some 400 alumni quickly signed on (an additional 200 students added their signatures in the wake of the recent campus protest). This was a significant break with PEA - and made the news.
Immediately after, Rawson sent an email to Academy employees dismissing PATH's critique:
We believe PATH’s letter reflects some misunderstandings regarding the investigations
that were conducted, and the Academy’s response to what it learned from those
investigations.
A few days later, he responded to PATH directly. He issued a lengthy promissory note that said he would soon be responding to the criticisms in detail. Core to this is what is essentially a direct refutation of PATH's most strident claim - that the Academy has acted in bad faith:
At no point during my tenure as interim principal will the school take action designed to protect the reputation of the school at the expense of victims, survivors or anyone else, even accused. I don’t think that way. Nor do my colleagues. We will engage in principled decision-making, consistent with the values of our school, and endeavor always to act with compassion and understanding.
That message, along with his promise for a full response, came on September 30th. Rawson demonstrated his priorities by his response time. His detailed reply arrived some four-and-a-half months later, on February 13. It was detailed, running some 2,800 words - more than twice PATH's original petition. In it, he essentially reiterates much of what he said before, adding particular responses to PATH criticisms. The upshot?
We believe many of our disagreements with the PATH recommendations, which we explain in this letter, are due largely to misunderstandings of fact, which perhaps we could have avoided through clearer communication...we do not believe it is necessary or would be appropriate to repeat any portion of the Holland & Knight investigation.
On March 4th, PATH answered with a new concern via email. Because of the extraordinary length of the "independent investigation" and now Rawson's slow reply, the statute of limitations on legal claims was running out for some. These time constraints would have to be set aside before anything else could be discussed. They also repeated their good will - with qualifications.
We hope to reengage with collaboration directly with the decision makers of Exeter, but we are not willing to have disconnected discussions that lead to no substantial outcomes. Many survivor groups are looking to our work, and we hear other school administrations have contacted Exeter as well to hear more about our collaborative effort.
On March 23rd, Rawson responded to the email saying that concerns over the statute of limitations were "individual issues that need to be addressed in each confidential mediation." That being said, he offered general assurances:
...no claim will be rejected from this process solely because the statute of limitations has expired. This does not mean that the statute of limitations is not relevant. We are not waiving the defense of the statute of limitations. We will consider the statute of limitations as a factor while we work to achieve a fair and reasonable resolution to any claim.
In actuality, this suggests that PEA reserves the right to veto any settlement past the statute of limitations. That creates an uneven playing field for mediation.
With this, the gloves came off. On May 14th, PATH said this was "a betrayal of good faith." The statute of limitations issue loomed large in their reasoning:
...Exeter seemingly abandoned the Mediation Process and backtracked on the spirit behind it. Whereas there was once an expressed mutual understanding that sexual harm does not have an expiration date, that has fallen by the wayside.
This break was newsworthy - and the Associated Press took notice.
That brings us back to where we started - Rawson's response earlier this month and its rejection. His letter largely restates his position. What's troubling is what seems to be his misread of the situation. This isn't simply a disagreement over sums and settlements.
On March 4th, PATH answered with a new concern via email. Because of the extraordinary length of the "independent investigation" and now Rawson's slow reply, the statute of limitations on legal claims was running out for some. These time constraints would have to be set aside before anything else could be discussed. They also repeated their good will - with qualifications.
We hope to reengage with collaboration directly with the decision makers of Exeter, but we are not willing to have disconnected discussions that lead to no substantial outcomes. Many survivor groups are looking to our work, and we hear other school administrations have contacted Exeter as well to hear more about our collaborative effort.
On March 23rd, Rawson responded to the email saying that concerns over the statute of limitations were "individual issues that need to be addressed in each confidential mediation." That being said, he offered general assurances:
...no claim will be rejected from this process solely because the statute of limitations has expired. This does not mean that the statute of limitations is not relevant. We are not waiving the defense of the statute of limitations. We will consider the statute of limitations as a factor while we work to achieve a fair and reasonable resolution to any claim.
In actuality, this suggests that PEA reserves the right to veto any settlement past the statute of limitations. That creates an uneven playing field for mediation.
With this, the gloves came off. On May 14th, PATH said this was "a betrayal of good faith." The statute of limitations issue loomed large in their reasoning:
...Exeter seemingly abandoned the Mediation Process and backtracked on the spirit behind it. Whereas there was once an expressed mutual understanding that sexual harm does not have an expiration date, that has fallen by the wayside.
This break was newsworthy - and the Associated Press took notice.
That brings us back to where we started - Rawson's response earlier this month and its rejection. His letter largely restates his position. What's troubling is what seems to be his misread of the situation. This isn't simply a disagreement over sums and settlements.
One interesting addition he makes is a time frame to fulfill a longstanding promise:
We are working hard to complete our process of reviewing administrator actions in response to past cases. We expect to complete the work this summer, and when we do, we will report back to you with a further description of our work.
Rawson closes by denying PATH's most damning allegation. "We have approached our work with you in the utmost good faith, and we commit to continuing to do so."
PATH's response takes Rawson to task:
Exeter cannot make public pronouncements about its purported understanding of the long term nature of sexual trauma while using this technical legal defense to diminish the claims of survivors. In pursuing mediations actively using the SOL (Statute of Limitations) defense to diminish survivors, Exeter compounds the trauma that its failings in the past caused.
Beyond this specific issue, they reiterate the larger issues. What does this say about the school's integrity?
PATH also urges Exeter to make more concrete movement towards a process that embodies truth and reconciliation.... This would serve not only those who have experienced harm, but the entire Exeter community. The way in which Exeter treats survivors of harm- both past and present- directly informs current culture. We cannot move forward together until we fully address the past.
At this point, it's hard to see how PATH and PEA can amicably move past such an impasse.
There is one obvious opportunity for Rawson to demonstrate good faith. This will be in how he fulfills his promise of providing a full report of his "reviewing administrator actions in response to past cases."
We are working hard to complete our process of reviewing administrator actions in response to past cases. We expect to complete the work this summer, and when we do, we will report back to you with a further description of our work.
Rawson closes by denying PATH's most damning allegation. "We have approached our work with you in the utmost good faith, and we commit to continuing to do so."
PATH's response takes Rawson to task:
Exeter cannot make public pronouncements about its purported understanding of the long term nature of sexual trauma while using this technical legal defense to diminish the claims of survivors. In pursuing mediations actively using the SOL (Statute of Limitations) defense to diminish survivors, Exeter compounds the trauma that its failings in the past caused.
Beyond this specific issue, they reiterate the larger issues. What does this say about the school's integrity?
PATH also urges Exeter to make more concrete movement towards a process that embodies truth and reconciliation.... This would serve not only those who have experienced harm, but the entire Exeter community. The way in which Exeter treats survivors of harm- both past and present- directly informs current culture. We cannot move forward together until we fully address the past.
At this point, it's hard to see how PATH and PEA can amicably move past such an impasse.
CLOSING NOTE:
An opportunities for PEA to show good faith
It may be this will be handled like last year's investigations - sketchy details dumped into the memory hole late on a Friday in late August. That will prove problematic for his pledge for "principled decision-making, consistent with the values of our school, and endeavor(ing) always to act with compassion and understanding."
What would it look like for him to be forthright, acting in good faith?
Any reasonable "process of reviewing administrator actions in response to past cases" will have to address the investigations H&K performed into:
..two matters (that) involved allegations that PEA and certain of its employees failed to respond properly to certain events on campus, some involving sexual assault, and some involving other student health and safety issues. (see H&K overview, page 1)
The findings?
Holland & Knight determined that in a number of situations PEA employees failed in their responsibilities to address alleged misconduct impacting the health, safety, and welfare of students in a proper and effective manner. (See H&K overview, page 3)
What would it look like for him to be forthright, acting in good faith?
Any reasonable "process of reviewing administrator actions in response to past cases" will have to address the investigations H&K performed into:
..two matters (that) involved allegations that PEA and certain of its employees failed to respond properly to certain events on campus, some involving sexual assault, and some involving other student health and safety issues. (see H&K overview, page 1)
The findings?
Holland & Knight determined that in a number of situations PEA employees failed in their responsibilities to address alleged misconduct impacting the health, safety, and welfare of students in a proper and effective manner. (See H&K overview, page 3)
This would, of necessity, require the release of H&K's full, unredacted findings detailing where "PEA employees failed."
That, and accepting PATH's request for PEA to drop any claim to the statute of limitations would make Rawson's claims to be operating in good faith credible.
BONUS: My opinion piece "Moral model needed to heal prep school sex assault" published almost three years ago for ELW 2016. So much of this was laid at the Academy's doorstep then.Why was it ignored?
That, and accepting PATH's request for PEA to drop any claim to the statute of limitations would make Rawson's claims to be operating in good faith credible.
BONUS: My opinion piece "Moral model needed to heal prep school sex assault" published almost three years ago for ELW 2016. So much of this was laid at the Academy's doorstep then.Why was it ignored?
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Tips? Suggestions? Comments? Drop a line to: contact (at) ExeterUnafraid (dot) com
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