What is Title IX, and how has it evolved in American schools over the years?
Audrey Hanson McIntosh, the presiding member of the Missouri Administrative Hearing Commission, whose son was expelled from Washington University last year through the school’s Title IX process, helped draft legislation to route appeals of his and other such cases to her agency, emails obtained through public records requests show.
Her husband, lobbyist Richard McIntosh, led the effort to draft the legislation in the Missouri House and Senate, working with Capitol staffers. Emails obtained by The Star show that Audrey McIntosh conducted legal research and made suggestions on language.
The bill they helped craft included provisions that would have allowed their son to retroactively appeal his case to the three-member commission presided over by Hanson McIntosh, which acts as a court for disputes between state agencies and private citizens.
Although the Commission provided emails at The Star’s request, Hanson McIntosh and the Commission did not respond to further questions.
Legal experts who reviewed the emails said that while her involvement raises questions of propriety, given her personal stake and position as a public official, it is unlikely that her actions rise to the level of misconduct or illegality, especially since the bills were not passed.
“The fact that something smells bad, the fact that something looks bad, the fact that something is just bad or stupid, doesn’t make it illegal,” said Larry Dessem, a University of Missouri School of Law professor.
Title IX is a federal law prohibiting sexual discrimination in education, and it provides the basis for internal procedures used by colleges to police sexual assault and harassment. Colleges and universities that accept public funding must follow guidelines for Title IX compliance set by the state.
In 2011, the Obama Administration required campuses to take certain steps to crack down on sexual assault, a change critics charge has led to mostly male students being wrongfully accused of sexual harassment or rape. It has sparked a movement for “due process” on campus.
Both the Senate and House bills entitled the accused to see the evidence against them and ban schools from declining to consider evidence. Both versions also said say that if the administrative courts found that a student was denied due process, the student could sue the university and the employees who conducted the investigation. The state attorney general would also be able to investigate and punish schools.
The bills made it through committees in both the House and Senate but came to a halt before achieving final passage. The General Assembly adjourned for the year at 6 p.m. Friday without passing any Title IX changes.
From her work email account last October, Audrey Hanson McIntosh sent her husband examples of statutory language in other states dealing with sexual discrimination at school and administrative courts handling workplace discrimination. This was during the same time period Richard McIntosh was working with the House sponsor and staffers to write the bill.
In November of last year, Richard McIntosh alluded to his wife in an email to the House bill’s sponsor and staff, saying “...the AHC [Administrative Hearing Commission] language that I sent you from Audrey yesterday.” He included his and her contact information.
Last May, she forwarded McIntosh a series of iPhone screenshots showing an informational document from Secretary of Education Betsy DeVos about campus sexual misconduct.
The first screenshot includes another tab on her web browser open to the Washington University student newspaper, StuLife. This was weeks after the paper published several anonymous op-eds detailing sexual assaults on campus and the school’s lackadaisical response to them. The pieces appeared just days after a student-led protest on April 28 of last year, where a crowd of about 1,000 decried the school’s Title IX process for being too long and burdensome for victims.
StuLife articles about the protests appeared in other emails obtained by The Star. Richard McIntosh distributed them earlier this year to lawmakers. His emails also contain withering criticism of Washington University. In messages to conservative lawmakers, he attempted to tie Washington University to Planned Parenthood, speculating that the school was conspiring with the sexual health care organization to kill his bill, and he said, “Wash U is the only reason that abortion is allowed to exist in Missouri.”
Before a public hearing this March, Richard McIntosh suggested that many campus rape accusations are the product of women’s remorse over casual, consensual sex.
He posited a “regret asymmetry that separates the sexes,” so “a couple of shots at the rape equals regret wouldn’t hurt.” He also shared articles with lawmakers from U.S. News, City Journal, published by the conservative Manhattan Institute, and the Washington Examiner with headlines such as “The rape ‘epidemic’ doesn’t actually exist,” and “The campus rape myth: The reality: bogus statistics, feminist victimology, and university-approved sex toys.”
Kathleen Clark, a law professor at Washington University, said the whole episode sends a damaging message to parents and students, especially the McIntosh’s son.
“It’s as though they were trying to rig the system for their son. And so far, they haven’t succeeded,” Clark said. “I think from a commonsensical point of view that’s how people would look at this: They were trying to rig the system. And when you rig the system, you’re undermining trust in government.”
“Both the father and the mother seem to be sending the message to the son that connections and power will be used to benefit the son even when the son has been accused of harming someone else. That’s a powerful message,” she said.
All Americans, even judges or commissioners, have the right to petition the government, Clark said, but what’s different here is that Audrey Hanson McIntosh appears to have attempted to use her power in government to help her own family member -- regardless of the fact that she was unsuccessful.
Rep. Gina Mitten, D-St. Louis, the ranking member of the House Judiciary Committee, said it is common for lawmakers to request input from outside stakeholders, but that this situation crossed a line.
“This was policy being proposed by the stakeholders in a fashion that had the potential to provide a specific benefit to her own child. That’s where it gets to be problematic,” Mitten said. “I think that any parent can understand, in that situation, that we’re going to do what we can to try and protect our kids, we just do. That’s human nature. But I do believe that this instance went a little -- it just went too far.”
Mitten said she would leave it to others to “look into the propriety of that activity,” but that it is “absolutely” fair to raise the question.
It’s especially troubling also that McIntosh is not just an AHC member, but the presiding commissioner, Mitten and both legal ethics experts said. This creates the potential — at least appearance — of bias by her influencing her colleagues in some way.
“So much of this is the public’s confidence in the judges that hear their cases,” Dessem said.
Audrey Hanson McIntosh wasn’t the only commissioner with a personal tie to the Title IX bills. One of her colleagues on the commission is Renee Slusher, who is married to Chris Slusher, a Columbia attorney who testified in favor of the bills. Emails showed that Chris Slusher coordinated with Richard McIntosh prior to Slusher’s testimony.
Because McIntosh is an executive commissioner and not a judge, she’s not subject to the judicial code of ethics or the commission that polices judicial conduct. She was appointed to a six-year term by Gov. Jay Nixon, a Democrat, in January 2015, and she cannot be removed by Gov. Mike Parson.
It’s unclear what the avenue would be for removing any administrative hearing commissioner — no matter how bad their conduct.
Ranada Vinyard, a staff attorney at the Commission, said she’s been there 20 years and has never seen an attempt to remove a commissioner. There’s no removal apparatus built into the law creating the Commission, and Vinyard said it would require legal research to find an answer.
When Audrey McIntosh was confirmed as a commissioner in 2015 — before her son’s troubles at Washington University — he posted on Twitter, “My mom just got confirmed as a judge in Missouri. Now she only needs to be the jury and executioner. #confirmationday”