Swarthmore Litigation Resolves as College Vacates Disciplinary Committee's Findings Against Student

Earlier this year, we blogged about a male student's lawsuit against Swarthmore College, alleging bias in the college disciplinary proceeding that found him responsible for sexual assault and lead to his expulsion.  Swarthmore had vigorously defended the lawsuit until a surprising turn of events this week, when the college announced that it had vacated the findings against the student, explaining that "additional information became available which both parties believe raises questions about the impartiality of the college judiciary committee panel that heard [the plaintiff’s] case, which "raises sufficient questions about the fairness of the hearing to warrant vacating the panel’s findings and sanctions." The student and Swarthmore then filed a joint motion to dismiss the student's case against the college, which the judge granted.

Though the college has vacating the findings of the proceeding that has occurred, it did not agree to automatically reinstate the student. Yet while the student would have to undergo another hearing before being eligible to return to Swarthmore, such a hearing is not expected to occur as the student has enrolled elsewhere.

The Swarthmore case is one of a number recent cases in which male students disciplined for sexual assault have sued their universities alleging bias and/or procedural violations. (Another such case, this one against the University of Colorado, was reported last week.)

Student Expelled for Assault Files Lawsuit Against Swarthmore

A Swarthmore student expelled for sexual assault has sued the college over the manner that it handled charges that he committed sexual assault on a fellow student.  The student, called "John Doe" in his complaint, alleges that he was falsely accused and then initially cleared of the accuser's claim that he had coerced her to have sex.  Later, however, his case was re-opened for additional investigation and subsequent hearing, which resulted in Doe's expulsion. Doe alleges that this decision was motivated by negative publicity Swarthmore received as a result of its previous mishandling of sexual assault cases, which served as motivation to use Doe's case as a scapegoat.  The complaint alleges that the subsequent hearing involved a number of procedural violations that produced its biased outcome, and he argues that the sanction imposed was excessively severe in light of alleged anomalies in the complaining student's account of what happened and the lack of corroborating evidence.   He charges the college with violations of its own policies, as well as Title IX and due process.

This case joins a handful of others we've blogged about in recent months, in which an accused student argues that a university's disciplinary proceeding in a case involving sexual assault is discriminatory on the basis of sex. If Title IX enforcement did in fact motivate Swarthmore to violate John Doe's rights, then of course he ought to be able to use the law for vindication.  But even if that outcome occurs, his and the other cases like it do not serve as evidence that Title IX has tipped the balance too far in the favor of female students at the expense of men.  Prior to the April 2011 Dear Colleague Letter, which resulted in increased enforcement and public attention to university sexual assault policies, accused students could use the threat of litigation to motivate universities to dismiss their cases, and victims had no similar opportunity. Maybe that former bias in accused students' favor explains why it seems like such cases were fewer in number than the "trend" we've seen lately. The DCL leveled the playing field by giving a tool to the victims that the accused students already had--the leverage of litigation and complaint.

Sexual Assault Roundup

There's been lots of news about individual colleges' policies and practices regarding sexual assault.   Here is a brief roundup.
 
In (albeit anecdotal) evidence of colleges taking sexual assault grievances seriously, the University of Michigan expelled a football player for sexual assault. 

Amherst College expelled a student as well.

At the University of Connecticut, OCR is confirmed to have opened an investigation in response to complaints of its mishandling of sexual assault.  A private lawsuit is also underway. 

Swarthmore announced changes to its sexual assault and harassment policies, in response internal investigations prompted by a federal complaint filed last year. 

University of North Carolina reports a stronger partnership between its department of public safety and other parts of campus in support of a more effective sexual assault response. 

Iowa State students are now required to take an online training on violence prevention, as part of its universities efforts to comply with requirements of Title IX.  

The University of Colorado announced the positive results of an external review of its Title IX policies, while setting goals to exceed the minimum requirements of compliance. Separately, the university made news by removing the chair of its department of philosophy, amid allegations of sexual harassment.

Updates on OCR's Investigations into Colleges' Responses to Campus Sexual Assault

The Department of Education's Office for Civil Rights has its hands full with sexual assault complaints. It has opened investigations into the complaints filed earlier by students from Dartmouth College, University of Southern California, University of Colorado Boulder, Swarthmore College, Occidental College, and University of North Carolina, Chapel Hill.  Here are some updates in each of those cases.  

In the Dartmouth case, OCR has initiated on its own an investigation into possible Title IX violations in the college's sexual harassment grievance procedures, its responses to sexual harassment claims, and its designation of a Title IX coordinator. These claims were not included in the students' earlier-filed complaint, which focused on sexual assault reporting problems as alleged Clery Act violations.

At USC, the OCR will investigate claims that the university failed to investigate and discipline students accused of rape.  One complainant told OCR that campus police refused to consider an act of rape when a male student penetrated her, but did not ejaculate.  Another said that university official told her, by way of explanation for not responding to her allegation of rape, that the university's job was to the educate, not to punish students. 

The student who filed a complaint about CU Boulder alleges that the university failed to adequately respond to sexual assault committed on her, even though her assailant was found guilty of nonconsensual intercourse by a university disciplinary committee.  The assailant was sanctioned to an 8 month suspension, which was not enforced for four weeks during which time he continued to have contact with her.  Meanwhile, the local criminal court had no trouble issuing a restraining order that would prevent the him from returning to campus while she is a student there.  She argues that the university should have been willing to provide at least as much protection to ensure her safety and well-being.

The ongoing Title IX investigation about Swarthmore's failure to adequately respond to sexual assault has already prompted the college to update its policies, it was recently reported. Swarthmore responded to the initial filing of the complaint last May by hiring a private company to conduct an independent review of its handling of sexual assault, and its findings form the basis for the college's changes going forward.  The college will also hire a Title IX coordinate and a victim's advocate, and will improve training for university staff.  These changes could speed up OCR's investigation, and could allow Swarthmore to emerge from the investigation with OCR's effective blessing on current practices and procedures.  Swarthmore also faces complaints that they underreported sexual assaults in violations of the Clery Act, and OCR has not yet announced an investigation into these claims.

Like Swarthmore, Occidental College also hired an external reviewer to evaluate its sexual assault policies, even while OCR's investigation is ongoing.  

OCR's investigation into complaints that UNC violated Title IX and the Clery Act recently expanded to include a claim that it retaliated against the student who initially filed those complaints by charging her with an honor code violation.  The charge, which was ultimately dropped, accused her of creating an intimidating environment for her alleged abuser.   UNC is also accused of retaliating against the initial complainant by moving her assailant to a dorm near her residence. 

Unexpected meeting with Department of Education

Title IX news usually slows down during the summer with the exception of some annual anniversary coverage in June.
But this summer a core group of college students and recent graduates have continued their activism aimed at making college campuses less sexually dangerous and making more college students aware of their rights to a harassment- and violence-free campus. In addition to work on the Know Your IX campaign, this week a group of activists went to DC with a petition signed by over 100,000 people calling on the Department of Education and OCR to beef up enforcement of Title IX to better protect students from sexual assault. A small group of students rallied outside the Department of Education yelling up to the Secretary Arne Duncan's office through a megaphone and were surprised when Under Secretary Martha Kanter came out to personally accept the boxes of petitions saying that she would deliver that to Secretary Duncan.
Unlike Title IX's application to athletics, there is no universal handy checklist or comprehensive measurement scheme to assess a school's sexual climate. Though there are certainly signposts and other markers such as policies and educational and training programs, evaluation of a school's commitment to ensuring its campus is a safe place is quite subjective. Also, there has not yet been a confluence of negative effects to put some proverbial teeth into enforcement. Though the negative publicity a school receives provides some deterrent, it is both difficult to measure the ramifications of this negativity (students lost, donations lost?) and somewhat hard to believe that people will stop going to schools such as Yale or Dartmouth or Swarthmore even with the increase in the visibility of these issues. Additionally, there have been no set of legal cases resulting in large jury awards to scare schools into compliance as there have been in athletics (i.e., Fresno State. Florida Gulf Coast). While the efforts of the current group of student activists have been impressive and consistent and spread all over the country, other actions/results need to help the issue truly take hold.

Swarthmore Students File Complaint Over Sexual Assault Reporting

Twelve undergraduate students at Swarthmore College filed a complaint with the Department of Education, alleging that the college inadequately addressed known reports of sexual assault, including by failing to report them as required by law.

The Daily Swarthmore lists the specific allegations as follows:

1. Discouraging students from reporting crime to local law enforcement and from going through formal judiciary proceedings
2. Persistently underreporting incidents of sexual battery, sexual assault, and rape in the Annual Clery Security Report
3. Persistently underreporting incidents of sexual battery, sexual assault, and rape in the daily crime log
4. Failing to issue timely reports of incidents of sexual battery, sexual assault, and rape
5. Failing to publicly report potential sanctions for sexual battery, sexual assault, and rape
6. Intimidating, discriminating, and retaliating against sexual assault and rape survivors and their advocates

Several of these allegations -- 1, 5, and 6, at least -- are violations of Title IX, while the others -- 2, 3, and 4 -- are violations of the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.  The Department of Education has jurisdiction over both statutes.

If this complaint reminds you of the allegations against UNC, there's a reason for that.  The Swarthmore complainants reportedly consulted with Andrea Pino and Annie Clark, the students who filed the complaint that is pending against their university on similar charges. (The complaint is still pending, though UNC is reported this week to have begun to address some the charges by hiring a Title IX Coordinator.)  In fact, as also reported in the New York Times, undergraduates at UNC, Amherst, Yale, and other colleges have been collaborating about strategies to expose and address campus sexual assault.  By taking concerted action against and within their respective universities, these students are exposing a national epidemic that has been ignored for too long.