Swarthmore’s botched attempts at enforcing Title IX law continue to bring the College national embarrassment. Through some impressive investigative reporting, Simon Van Zuylen-Wood of Philadelphia Magazine discovered that one male student, expelled for sexual assault and harassment last spring, issued a lawsuit against Swarthmore in January.
Zuylen-Wood came across the lawsuit, John Doe v. Swarthmore, while looking into a separate Title IX and Clery Act complaint brought against Swarthmore by three anonymous female plaintiffs. That case has since been dropped, when the plaintiffs voluntarily withdrew out of a desire to maintain their anonymity. Going forward with their Title IX complaint against the College would have required the women to reveal their names.
It’s not surprising that “John Doe”, who faced his judiciary panel in the wake of last spring’s protests, believes that the administration mishandled his case. The atmosphere on campus last May was so polarized that it was different for students to simply walk to the library or attend open meetings without being accused of “rape apology.” We can’t imagine what it was like to come up against a disciplinary hearing in that environment.
According to the suit, John believed Swarthmore’s administration had closed his case last February without taking any disciplinary action. The College disputes this, saying that John’s lawsuit is “without merit” and “does not fully and accurately describe the situation.” In a follow-up to our original editorial, Swarthmore’s Assistant VP for Risk Management and Legal Affairs, Sharmaine LaMar–the Title IX Coordinator at the time of John’s hearing–explained in an email, “We don’t ‘open’ and ‘close’ cases as in the criminal process. Regarding any case under the College’s policies at the time, a complainant could choose to pursue a CJC process at any time.”
The complainant, “Jane,” reported the incident 19 months after it allegedly occurred, and she could not produce immediate witnesses or physical evidence tying John to sexual misconduct or assault. Yet in April, just after Hope Brinn and Mia Ferguson brought a very public Title IX and Clery Act compliant against Swarthmore and garnered national media attention, John found himself facing a hearing with the College Judiciary Committee (CJC). He was expelled on the “preponderance of the evidence” standard, mandated by the Department of Education (DOE), that he had “more likely than not” committed sexual misconduct.
John alleges that the College displayed a “failure to follow its policies and procedures for disciplinary proceedings, which resulted in a fundamentally unfair hearing.” Swarthmore, he claims, failed to conduct an investigation within its own promised 60-day period, failed to offer him a timely notice of the charges against him, and failed to schedule the hearing while classes were still in session. Though the incident had occurred two years prior, John and Jane were forced to rush back to an empty campus during the summer, without proper access to witnesses who might corroborate or refute their respective version of events. This was after the administration decided it wouldn’t be prudent to conduct the hearing over Skype.
Egregiously, the College denied John access to a legitimate “impartial observer” to guide him through his defense (Swarthmore’s policies forbid having a lawyer present). Instead, John’s assigned observer was former Associate Dean for Student Life, Myrt Westphal, the same dean tasked with deciding whether to press charges and what the charges would be—hardly an impartial advocate for John. Allegedly, Dean Westphal assured John “that no student had been expelled for sexual misconduct in her 25 years at Swarthmore,” giving John reason to think that his future at Swarthmore was not in jeopardy and wrongly leading him believe he did not need better counsel.
Furthermore, John alleges that the College failed to present him with Jane’s written complaints. Instead, former Title IX Coordinator, Sharmaine LaMar, was allowed to read from those undisclosed complaints at his hearing, depriving John of the opportunity to prepare a defense. Jane was also allegedly permitted to bring up John’s past sexual history, biasing the hearing. During an intense moment during John’s testimony, John alleges that those present encouraged and allowed for Jane to leave the room. While Swarthmore’s handbook is silent on the issue, in a court of law, that amounts to an inability to face one’s accuser.
John chose to appeal, but his timing coincided with the DOE’s Office of Civil Rights’ decision to investigate Swarthmore, based on Ferguson and Brinn’s federal Title IX and Clery complaints. The DOE opened its investigation on July 12, and four days later, President Rebecca Chopp denied John’s appeal. He asks to be readmitted to Swarthmore, to have his record cleared, and for $75,000 in damages.
John has already received criticism for basing his suit upon the claim that Swarthmore’s “sexual misconduct policies and procedures…disproportionately affect male students.” We think John could make a decent case for being treated unjustly without introducing the gender issue. But his case comes at a time when many campus feminists argue that, because women rarely lie, men accused of sexual misconduct are most certainly guilty. This strikes as fundamentally wrong. All people deserve a fair trial. We look to individuals, not statistics, when deciding guilt.
Here at the Independent we have argued that the Department of Education’s 2011 “Dear Colleague” letter, on which so much of Swarthmore’s Title IX confusion has been based, is fundamentally flawed. The letter mandated that American universities receiving federal funding—meaning virtually every college in the nation—adopt a lower standard of proof in determining students’ guilt in school judiciary proceedings. We find it unsettling that the American Justice system, founded upon the principle “innocent until proven guilty,” would instruct college administrators to determine guilt based on the much lower “preponderance of the evidence” standard. The DOE mine as well order administrators to flip a coin. Meanwhile, our administration has still not finalized its sexual assault policies, leaving both victims and perpetrators in flux. We can’t emphasize enough: This ad hoc approach to justice harms both parties.
In the U.S. court system, police offers and prosecutors work to gather evidence and protect the victim. In campus bureaucracies, administrators must balance the claims of the accuser and the accused, both of whom are paying tuition. And when a student loses three years of tuition for a sexual assault he claims was wrongly tried, he’s got a right to sue.
Correction: A previous version of this editorial ended by saying that John Doe “is liable to sue.” That was a mistaken word choice. It has been updated to say he has a “right” to sue.
Additional Correction, February 20: An earlier version of this editorial read that the female plaintiffs dropped their case against Swarthmore “after a judge insisted” they reveal their names. Swarthmore’s Assistant VP for Legal Affairs, Sharmaine LaMar (formally the College’s Title IX coordinator), contacted the editors to say this was inaccurate. The plaintiffs decided to withdraw their case voluntarily, before a judge had ruled on the merits. Further, we reported that the College shut John’s case in February before reopening it. Though John alleges this, the College says it does not “open” and “shut” cases. We regret the error.