Swarthmore, Occidental and Their Kangaroo Courts

At some point the demands for federal investigations into our colleges’ supposed indifference to accusers in sexual assault cases will reach the point of parody. In fact, that point might already have been reached with two recent developments. First, celebrity lawyer Gloria Allred, an attorney who never met a TV camera she didn’t like, has agreed to represent several Occidental College students in their complaints about the school’s sexual assault policies. Second, a Title IX complaint has been filed against Swarthmore College, an institution widely considered a paragon of political correctness. To get a sense of the campus climate: Swarthmore was last in the news after student protesters successfully pressured Robert Zoellick, a former head of the World Bank and an early supporter of the Iraq War, into declining an offer to serve as commencement speaker.

Richard Perez-Pena—coordinator of the New York
Times‘ anti-campus due process beat–brought
news of both developments in a co-authored article. As is his
customary pattern, Perez-Pena didn’t actually describe the
policies against which the students were complaining. (No mention, that is, of
Occidental’s bizarre standard under which a male student can be deemed culpable
for sexual assault even if his partner says “yes” to intercourse.)
Referencing the Orwellian criteria that campuses currently use would not, it
seems, comport to the ideological framework through which the Times is
viewing these stories.

Instead, Perez-Pena quotes two Occidental students,
Kenda Woolfson and Carly Mee, who say they were forced to encounter the person
who raped them on campus and even at graduation. Yet neither woman appears to
have even filed a criminal complaint, much less gone to trial. Perez-Pena
appears uninterested both in why the two women pursued this course of action or in
the journalistic ethics of describing someone (albeit anonymously) who hasn’t
even been charged as a “rapist.” The Los Angeles Times, by
contrast, noted that Mee never went to the police with her
accusations.

In what might have
been a rare instance of good editorial judgment–or perhaps simply the result of a
lack of space–Perez-Pena didn’t include another vignette from the Allred
press conference that Gawker mentioned. Summarizing a
claim from Allred’s filing, Gawker showed that Occidental once punished a
student found culpable for rape by making him write a five-page report. Neither
Gawker nor Allred substantiated the claim. Instead, readers are asked to
believe that a college so politically correct that its policy holds that “yes”
might mean “no” in a case of sexual assault is also utterly indifferent once it
finds students guilty of assault. Only those gullible enough to see
Allred as a high-minded idealist would uncritically accept such a claim.

The Times Visits Swarthmore 

What
about Swarthmore? Unlike Occidental, the college defines sexual assault in a
standard fashion, but its definition of sexual harassment raises eyebrows.
After maintaining that the college follows relevant federal precedent that “an intimidating, hostile, or demeaning
environment is defined as one that is so severe, pervasive, or objectively
offensive that it interferes with a person’s ability to learn. . . or have
access and opportunity to participate in all and any aspect of campus life,”
its guidelines then note that “there is
a wide range of behaviors that falls within the general definition of sexual
harassment and many differing notions of what behaviors are and are not
acceptable.” That list includes a “lewd comment,” or “unwelcome verbal”
advances; therefore, it has a much lower threshold for harassment than the Supreme Court.

The procedures the
Swarthmore activists have deemed insufficiently protective of the accusers’
standing are, sadly, as due process-unfriendly as the typical college
disciplinary process. Accusers have no obligation to report any sexual assault
to the police or to consent to a medical rape exam. They can, nonetheless,
simply file a complaint through the college, prompting the college to conduct an
investigation, which can be overseen by Title IX coordinator Sharmaine Bradham LaMar–hardly a neutral
party. LaMar then can investigate “in the manner appropriate”; she isn’t
required to interview witnesses or even the accused student. She must issue a
report, usually within 20 days of the complaint and always within 60 days. The
accuser and accused students can then file a written reply.

At that point, charges
can be dropped–but even then, the Dean’s Office has “the discretion to
require the accused to participate in remedial measures that ensure sufficient
education and counseling of the College’s policies.” In other words, an
uncharged student can be compelled to perform “remedial measures” solely on the
basis of LaMar’s judgment.

If charges are pursued, the matter gets turned
over to the College Judiciary Committee. The accused student is sworn to
secrecy–any public discussion of the charges against him, even if they’re
wholly unfounded, constitutes “a violation of College policy and is an
adjudicable offense.” Mentioning the allegations to an outside counsel,
therefore, violates the Swarthmore judicial code.

The college goes to
great lengths to prevent accused students from thoroughly examining the
evidence that LaMar or her investigators compile. College guidelines suggest
that accused students will obtain access to the material relevant to the hearing
against them only 48 hours before the hearing. Then, in a most unusual twist
even at due process-unfriendly Swarthmore, the evidence can be viewed only in the
college dean’s office and cannot be removed or photocopied.

Once the hearing
begins, the accused student can bring one “supporter” into the hearing room, but the college limits acceptable “supporters” solely to current members of the
Swarthmore community. Since Swarthmore doesn’t have a law school, this
requirement effectively prohibits attorneys without explicitly saying so. The
“supporter” cannot speak in the hearing.

The accused student
lacks the right to cross-examine his accuser, although he can question other
witnesses called by the colleges. (Swarthmore provides no explanation why the
accuser can’t question the most important witness against him.) Witnesses
testifying on behalf of the accused student must be pre-cleared by the college
“observer,” a judge-like figure, who can reject any proposed witness in
advance. At the hearing itself, another college figure, the “convener,” can
also reject witnesses–even those, it seems, approved by the “observer.” The
convener also can exclude any and all questions he or she deems prejudicial,
privileged, confidential, or that “otherwise would interfere with the fair
adjudication of the hearing.” Guilt is established, reflecting OCR guidelines,
according to a preponderance of the evidence, or 50.01% percent.

To summarize: at
Swarthmore an accused student can be punished even if no charges were filed
against him. Once charged, he can’t consult with a lawyer, since doing so would
breach confidentiality rules and result in additional punishment.
He can only examine the evidence against him two days before the hearing, and
only then in the college dean’s office, without an ability to photocopy
material. He can’t cross-examine his accuser, his witnesses or
questions can be excluded for arbitrary reasons, and he can be found guilty by a 50.01%
threshold.

And yet not only have
a group of Swarthmore students filed an OCR complaint deeming these policies
insufficiently protective of the accuser’s rights, but Swarthmore’s president,
as summarized by the Times, “said that Swarthmore has
acknowledged flaws in its record and has been trying to address them” to meet
the accusers’ concerns. What procedures could possibly be acceptable to such
figures?

That’s not a question
the Times wants to answer.

The
Importance of Process 

Regarding campus
sexual assault, understanding the process provides critical context, which
makes the Times‘ consistent exclusion of process all the more
indefensible. A typical reader of Perez-Pena’s oeuvre could be excused for
believing that the complaining students faced something akin to the criminal
justice system. Perhaps they encountered an indifferent police officer nearing
retirement, or were assigned to an overworked prosecutor, or went before an
indifferent jury, or were brow-beaten by a brutal defense attorney, all while
having to obtain guilt beyond a reasonable doubt.

Yet, of course, the
campus judicial system is entirely different. The personnel encountered by the
accuser–figures such as LaMar at Swarthmore–have every bureaucratic incentive
to respect, not alienate, female accusers, since such figures owe their jobs to
accommodating all diversity-related concerns on campus. And the disciplinary
system is tilted, often wildly so, in favor of the accuser. By declining to
mention this necessary context to the paper’s readers, the Times presents a
(willfully?) inaccurate picture to readers.

As to why the guilt-presuming procedural
apparatus matters so much to defenders of the academic status quo, consider two remarkable, and perhaps unintentional, assertions by
Brown University vice president Margaret Klawunn. Defending her
university’s prohibiting students accused of sexual assault the right to
counsel in campus disciplinary proceedings, Klawunn fumed, “We don’t want
attorneys to start running the University process.” Fairness, it seems, takes a
back seat to preserving administrative control. And the Brown Daily
Herald summarized Klawunn’s celebrating the OCR-mandated
preponderance-of-evidence threshold: “Sexual assault complaints often lack
sufficient evidence to prove guilt beyond a reasonable doubt.” Imagine the
(appropriate) outrage from the Times editorial board if a
member of Congress demanded minimizing procedural protections in virtually any
other criminal case on the grounds that such “complaints often lack sufficient
evidence to prove guilt beyond a reasonable doubt.”