The legal volleying between Swarthmore and an expelled student offers a disturbing case study in college Title IX hearings, which deviate sharply from American standards of justice. The former student, referred to as “John Doe,” filed a lawsuit against Swarthmore in January, alleging that the College Judiciary hearing (CJC) that found him guilty of sexual assault had discriminated against him. Thanks to some scrappy reporting from the Phoenix’s Razi Shaban, we know the College is fiercely objecting to John’s suit and, on March 21, filed its own motion for full dismissal.
John Doe’s complaint, filed in the Eastern District Court of Pennsylvania in January, alleges that John experienced a biased hearing and, moreover, was “a male accused of sexual misconduct at the wrong time and in the wrong place.”The College, however, insists there are “no facts at all showing discrimination,”and there are no“particular circumstances suggesting gender bias.”
Here at the Independent, we have repeatedly argued that Title IX’s “preponderance of the evidence” standard of guilt—mandated by the federal Department of Education for all internal hearings at universities receiving federal aid—makes a mockery of basic American due process rights. Still, we fault John for making gender politics an unnecessary issue in his case. His lawyers should have focused on his hearing’s procedural problems—of which there are several—rather than introducing the somewhat conspiratorial theory that John was made “the whipping boy that Swarthmore needed” to prove the administration was serious about sexual assault.
Swarthmore’s lawyers, dismissing John’s theory of gender discrimination, say “this is a simple breach of contract case.” They are right. Though Swarthmore is a private college, its Handbook amounts to a contract with its students, and it must carry out policies consistent with that contract. Having reviewed the original lawsuit and the College’s response, we believe that Swarthmore breached its contract with John in several ways.
First, the College argues John is mistaken for thinking his case was “shut” and then “reopened” in the midst of last spring’s polarizing protests. According to Swarthmore, John has confused the “Title IX investigation process”—and its guarantee that investigations last no more than 60 days—with that of the “student judicial process.” Sharmaine LaMar, who was Title IX Coordinator at the time of John’s case and now heads the College’s legal affairs, told the Independent via 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.” In other words, anyone who assumes a College hearing would value the right to a fair and speedy trial is sorely misguided. The Sixth Amendment is only for criminal proceedings, not kangaroo courts.
Under Swarthmore’s policies up until last fall, a victim’s report to the Title IX Coordinator would not necessarily prompt a judicial hearing. Except in extraordinary circumstances, a student needed to file an additional request for a hearing, and, in this case, John’s accuser waited several months between making a report on November 24, 2012 and requesting a hearing in May of 2013. The actual incident in question occurred in the spring of 2011. This lapse between the report-filing stage and the later hearing is emblematic of victims’frustration with Swarthmore’s administrative response to assault. Under the old policy, complainants bore the burden of navigating Swarthmore’s bureaucracy before a hearing was scheduled, if at all.
The College argues that it’s in the clear because it completed the investigative process within 60 days, though the actual hearing occurred much later. But if John is guilty of sexual assault, as the CJC panel found, the administration was complicit in not pursuing swift justice. If John’s threat to campus safety was so severe as to necessitate expulsion, why did the College sit on its hands and force his accuser, “Jane Doe,” to drive the process? In the U.S. justice system, a district attorney who reviews police evidence and believes a crime has been committed orders an arrest as soon as possible. The DA doesn’t wait for victims to politely request a trial several months hence. Swarthmore’s overly bureaucratic approach is harmful to victims and the accused, both of whom deserve timely justice.
Second, the Handbook assures students that “Hearings are scheduled when classes are in session and not during college breaks.” John alleges that his hearing, which did not take place until May 30, 2013, occurred over a break. Swarthmore, however, asserts that the spring semester had not ended because graduation was not until June 2, “before summer break began.” But Swarthmore’s graduation date is notoriously late, weeks after classes end, final exams conclude, and underclassmen go home. Last year’s official campus calendar reads, “all classes and seminars end” on May 3 and “course examinations end” on May 18, well before John’s hearing was scheduled. Both John and Jane had already returned home for the summer, which is why the administration initially suggested conducting the hearing over Skype. Indeed, in her correspondence with Jane, former Associate Dean of Student Life, Myrt Westphal, informs Jane about the “travel and room/board accommodations available for you” and tells her she can arrange support from the evening of May 27 to May 31. It’s obvious that Jane was not still living on campus at the time of the hearing. As juniors, both Jane and John would have needed to evacuate their dorm rooms by May 18, well before their hearing was scheduled.
Of course, the reason that hearings are supposed to occur during the regular school year is so students have the opportunity to call peers, faculty, or administrators as witnesses. John and Jane’s cohort of classmates in the Class of 2014 were almost surely off-campus and unavailable as potential witnesses.
Third, John alleges that, during the hearing, part of an emailed statement by Jane was read into evidence, despite John not having seen the statement before the hearing or having been offered time to prepare a response. The Handbook clearly states, “Both the accused and the complainant(s) shall be shown a copy of the materials that will be present in the hearing in sufficient time before the hearing (normally 48 hours in advance) to prepare their cases.”
Swarthmore counters, “Contrary to his allegations, the Student Handbook allows for questioning of the parties and does not mandate that question be limited to the written materials shared with the panel and the parties.”
Certainly the questions that arise over a course of a hearing may vary, but if a question is in reference to a written material, that material needs to be shared with all parties, per Swarthmore’s own policies. If the College doesn’t feel limited to the written materials it shares with the accuser and the accused, why guarantee access to written materials at all?
Fourth, whether John had access to adequate information before the hearing took place is unclear. Under Swarthmore’s previous sexual assault policies—which were applied to John’s hearing and were in effect until August of 2013—hearings were overseen by a neutral Observer, who was tasked with meeting the accuser and accused beforehand to instruct them of the College’s policies and answer any questions. As former Associate Dean of Student Life, Dean Myrt Westphal was normally the Observer in CJC hearings, and fulfilled that role by meeting with both John and Jane. But Dean Westphal was unable to attend the actual hearing—which raises further questions about the hearing’s proper timing—and was replaced in her role as Observer by the Vice President of Facilities, C. Stuart Hain.
Swarthmore argues that there is nothing in the Handbook that assures the Observer will be the same person. But this doesn’t change the fact that John claims he was never informed he could enter a written statement into evidence. He believes his failure to do so hindered the outcome of his case. To this, the College says “he was repeatedly told to review the Student Handbook policies.” While John obviously should have read the Handbook more closely, nowhere does the College affirm that Dean Westphal or her replacement explained these policies to John, further calling into question what the purpose of the “Observer” was, if not to inform the involved parties of their rights.
Fifth, the College permitted testimony on John’s past sexual history, which the Handbook explicitly forbids. Swarthmore’s lawyers take a postmodern view of this rule, arguing that the “policy is speaking to excluding past sexual history offered to show promiscuity, not evidence that is relevant on the basis of the charge at issue.” But nowhere does the Handbook say that sexual history is fair game if it helps establish the victim’s “state of mind.” This is the equivalent of biasing a jury against a rape victim by talking about her long string of boyfriends and then saying that such testimony is permissible because it gets at a “state of mind”and has nothing to do with her “promiscuity.”
Sixth, the College’s key evidence against John appears to rest on his distressed email exchange with Jane Doe’s long-distance boyfriend. Jane’s boyfriend threatened John with his gun and wrote that John should be thankful that Jane “has dissuaded me from killing you outright, something which I have very seriously considered.” To the boyfriend’s accusation that John’s behavior was “tantamount to rape,” John responded, “I read your message, and I agree with it.” It seems quite possible that John made that admission under duress, with his life quite literally threatened. The fact that the College rests its case on a statement elicited by such vigilante justice is alarming.
In addition to these obvious shortcomings in the way Swarthmore handled John’s hearing, the College allowed its Title IX Coordinator to act as an unscheduled witness, revised its formal charges against John just 24 hours before the hearing took place, and demonstrated clear bias by allowing Jane to leave the hearing in the midst of John’s testimony, thereby depriving John of the right to confront his accuser.
To this, Swarthmore’s lawyers blithely retort, the “appellant’s attempts to invoke due process concerns and questions of fundamental fairness are misplaced as our review is not guided by due process concerns.”
That should send a chill down the spine of every American. Here at the Independent, we are agnostic as to John’s guilt but find it unnerving that Swarthmore has labeled John a rapist, while sidestepping the basic procedural safeguards of a legal trial or even its own Handbook policies. Sexual assault cases should be tried in criminal court, not overheated classrooms on an empty College campus.