Montana Hall, MSU Wild

Two Montana State University employees have left the school in the face of a federal lawsuit that alleges bias in favor of transgender students and against straight men.

Montana State University’s Title IX administrator in charge of upholding sex discrimination law has left that job, while a federal lawsuit against MSU accuses her and the university of bias in favor of transgender students and against straight men.

Jyl Shaffer was MSU’s director of the Office of Institutional Equity and Title IX coordinator, hired in April 2016. She had a change in status on Aug. 3, and is now teaching as an adjunct instructor in Native American studies, said Tracy Ellig, MSU vice president for university communications.

Ellig said the change is permanent, but he would not discuss whether it was initiated by Shaffer or MSU.

Emily Stark is now serving as the interim director of institutional equity and Title IX coordinator. A search for a permanent director has not been announced, Ellig said.

James Sletten, a former MSU police officer who was the investigator working for the Title IX office under Shaffer, has also departed, replaced by Victor Maxson. Sletten left in October 2016.

Asked why Shaffer and Sletten left those positions, Ellig wrote in an email that “both are matters of personal privacy and therefore the university can’t elaborate on their departures from their jobs.”

A former male student filed a federal lawsuit last year against MSU, Shaffer and other MSU employees.

Asked whether the staff changes had anything to do with the lawsuit, and about the lawsuit’s claim that MSU was biased, Ellig wrote that, “The university does not comment on pending litigation.”

The former student, Erik Powell, sued MSU in March 2017. His lawsuit charges that the university violated his constitutional rights in 2016 by banning him from the Bozeman campus in the summer and fall semesters, after he privately voiced his objections to transgenderism to an instructor, comments he contended were misconstrued as threatening violence.

The lawsuit charges MSU violated his rights to free speech, due process and equal protection, and that it discriminated against him because he is male, violating the federal Title IX law that bars discrimination in education based on sex.

The case is still ongoing in U.S. District Court, with Judge Sam Haddon presiding.

The original lawsuit named as defendants MSU, President Waded Cruzado, Provost Bob Mokwa, Shaffer, Sletten and instructor Katharine Kujawa, who taught a summer class on Contemporary Issues in Sexuality. Cruzado, Sletten and Kujawa have since been dropped as defendants.

On Aug. 10, the student’s attorneys filed their fourth amended complaint, naming just three defendants – the university, Shaffer and Mokwa. Mokwa conducted a hearing that upheld Shaffer’s suspension of the student.

Powell is represented by attorney Matthew Monforton of Bozeman and attorneys Jesse Binnall and Louise Gitcheva of Alexandria, Virginia. Andy Forsythe and Adam Warren of Billings represent MSU.

According to court documents, this case was Shaffer’s first major investigation at MSU.

“MSU was biased against Powell because he is a straight male,” the lawsuit charges. It asks for compensatory damages of $75,000, erasing MSU’s discipline from his permanent student record, and covering his costs of moving to Havre and attorney fees.

The lawsuit alleges after the transgender student filed a complaint with the Title IX Office, neither Aaron Grusonik of the MSU dean of students office nor campus police thought the male student’s comments were serious threats that warranted his suspension, but Shaffer called the case “cut and dried” and had him kicked off campus.

The lawsuit alleges Shaffer showed bias when she wrote an email to the transgender student calling herself “an aspiring ally” and saying, “I’m grateful you trusted us.” Shaffer offered to assist the transgender student to find work or academic help, and to meet with the ASMSU students’ attorney – but didn’t offer the same assistance to the male student. When the transgender student said she could protect herself and showed a small knife, that wasn’t treated as threatening. Sletten offered to give the transgender student a ride to a Big Sky Pride Parade.

The lawsuit also alleges that Shaffer’s email, Twitter and social media postings show “Shaffer is an ardent advocate for transgender and transsexual individuals.

“Shaffer also has firmly held anti-male beliefs that she shared on her Twitter account,” the lawsuit alleges. It cites her 2018 comment calling “accurate AF (as expletive deleted)” an article that talked about “entitled toxic masculinity.”

The lawsuit also challenges MSU’s Title IX procedures as unfair. It contends the procedures are unconstitutional and violate due process, because they allow a single person to investigate, analyze evidence and determine guilt and punishment. They gave the male student no right to cross-examine witnesses and gave him fewer rights than students who violate alcohol and drug policies, the lawsuit contends.

The university, it alleges, wanted to be “perceived as aggressively addressing the perception that transgender individuals are discriminated against.”

MSU attorneys filed the university’s response on Aug. 24.

MSU contends that investigator Sletten, a former 13-year MSU police officer, wasn’t biased against the male student but reached his own conclusions, based on his interviews with several witnesses.

Instructor Kujawa told Sletten she had asked the male student in their private office conversation what he would do if the transgender student in class tried to talk to him. Kujawa said he told her that if the transgender student persisted, he would “break her face,” and added, “I’ve done it before, I’m not kidding.” He also mentioned that he kept three loaded guns in his truck.

The male student now denies making those statements. However, investigator Sletten said when he interviewed the male student, the young man said he might have made that comment and might have been “venting” and exaggerating.

Sletten said he found it an ambiguous, weak denial, and concluded that “more likely than not,” the student had said it, and therefore the threat was serious enough to create “hostile environment harassment,” in violation of Title IX.

MSU argues it was reasonable for Sletten to consider the student’s rant a serious threat. Whether he actually intended to carry out threats doesn’t matter, MSU argues, because the statements generated fear by a threat of violence.

MSU contends its policies and processes didn’t violate his constitutional rights, but followed guidance from the U.S. Department of Education, which requires only that the student get notice of the complaint and an opportunity to be heard. Shaffer’s job was to ensure MSU complies with federal civil rights law, to hold a “fair and impartial investigation” and not to be an advocate for either side, MSU attorneys wrote. They argue, “any alleged personal bias of Shaffer and Sletten are irrelevant.”

MSU argues the male student’s threats were not protected speech. The university contends policies restrict students from making statements that discriminate against members of protected groups and interfere with those students’ education, and that doesn’t violate free speech rights.

The Bozeman campus suspended Powell for the summer and fall semesters and gave him a tuition refund for the summer. He enrolled at MSU-Northern in Havre in January 2017 to seek a degree not offered on the Bozeman campus.

MSU argues he has been free to return to the Bozeman campus as a student in good standing, having completed at Northern the counseling that the Bozeman campus required in anger management and civil rights, but he said he “made the decision I’m not going back.”

The university argues that because Shaffer and Mokwa were acting in their official positions, they cannot be sued as individuals and aren’t liable for any damages.

Further, MSU argues, Shaffer is no longer Title IX coordinator and director of the Office of Institutional Equity, so she cannot impact the student in the present or future and should be dismissed from the case.

The original lawsuit did not name either the male plaintiff or the transgender student. The transgender student filed court papers last fall seeking to remain anonymous, arguing that being named could subject her to harassment or possibly violence.

Current court documents name both students. The Chronicle has named the male student as the initiator of the lawsuit, but is not naming the transgender student, as a witness who did not seek to enter the public arena.

Gail Schontzler can be reached at gails@dailychronicle.com or 406-582-2633. Follow her on Twitter @gailnews.

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