McCarthyite Justice at Wesleyan and Swarthmore

There are two certainties from the current crusade against due process for students accused of sexual assault. First, in coming years, there will be a higher percentage of convictions, since colleges must use the preponderance-of-evidence and are strongly discouraged from allowing accused students from cross-examining their accusers. Second, because so few due process protections exist in campus tribunals, more of these convictions will involve innocent students—who in turn will pursue legal actions to redeem their reputations and salvage hopes of a post-college career.

Several recent developments illustrate both points. First: as FIRE reported, Swarthmore has reached a settlement with an anonymous student who sued the school, alleging due process violations in his case. (I wrote about the lawsuit earlier; Swarthmore’s new special master on sexual assault cases conceded that the school uses a “very low bar” to deem its students rapists.) Most of the settlement terms were confidential, but one item was public. Swarthmore has now agreed that unspecified “new information raises sufficient questions about the fairness of the hearing to warrant vacating the Panel’s finding and sanction.”

In other words: Swarthmore has admitted that it falsely branded a student a rapist, and the reason it did so was the weakness of the school’s procedures, which prevented the student from presenting evidence of his innocence.

The Betrayal of Due Process at Wesleyan

Second: a new lawsuit against Wesleyan has prompted even the hilariously-biased Katie Baker to notice the due process problem on campus. The lawsuit, filed by an anonymous student who the school contended committed sexual assault for what the filing terms “non-consensual kissing,” portrays a college facing enormous pressure—both from the OCR, which wants colleges to more aggressively prosecute sexual assault cases; and from on-campus activists demanding the end to single-sex fraternities as a way to end “rape culture” at the college. (The accused student was a frat member who had opposed the policy change.)

Coincidentally, the allegations against the accused student (which initially involved drunken text messages between the two students) came just before a meeting to discuss the fraternity policy, at which the accused and the accuser were taking opposite sides. After the accuser made her filing, the college implemented a no-contact order against the accused student—which prevented him from attending or voting in the session that changed the school’s frat policies. Only then did the accuser expand her charges—to include “nonconsensual kissing,” citing to an incident which allegedly occurred more than 14 months previously.

Wesleyan promises “the right to be protected by standards of fairness and justice,” but the complaint describes what was at best a sloppy and at worst a wholly arbitrary investigation. The filing asserts that Wesleyan never informed the accused student of the specifics of the allegations against him, frustrating his attempt to find exculpatory witnesses. (How, precisely, he could even find witnesses to disprove a claim of non-consensual kissing 14 months after the fact remains unclear.) Instead, Wesleyan said that he could have access to the allegations against him only after he submitted a statement describing what he believed occurred in the episode of non-consensual kissing. Amidst this odd accusation, a friend of the accuser filed additional charges against the accused student—alleging an incident of “non-consensual touching” . . . from 43 months previously.

The accused student had to write formal responses before Wesleyan would supply him with the specifics of the allegations. Five days before the hearing, the school gave the accused access to the file, but only if he would agree to an interview with the campus public safety office. As is customary at Wesleyan, the accused student could not make copies of the case file, nor could he have an attorney represent him during the hearing; the school accepted unsworn testimony from the accuser, and the accused student wasn’t allowed to cross-examine his accuser. Given these procedures, the finding of culpability came as little surprise.

The effects of Wesleyan’s actions? The accused student lost his job as a congressional staffer—even as Wesleyan had promised, much like the Witt case at Yale, that its proceedings would be confidential. (There appears to have been no investigation by Wesleyan as to who called the Member’s office and thus violated the college’s confidentiality policy.) The congressional office has refused to supply him with a recommendation for future employment, and he’s suffered reputational harm as one of the witnesses in his case sent a mass e-mail divulging the alleged facts of his case. All the while, Georgetown professor and anti-due process activist Nancy Cantalupo told BuzzFeed’s Baker, “Frankly, I question how much having [sexual misconduct] on your permanent record is going to destroy your life forever because there are many students whose lives do not appear destroyed — it didn’t even stop them from completing their education.” Would Cantalupo or any of her colleagues recommend hiring someone who Georgetown had branded a rapist? Would she hire the accused student at Wesleyan, even if she knew of the serious due process issues in his case?

A “Depressingly Familiar” Story at Colorado

Third: yet another new due process lawsuit, this one filed against the University of Colorado. The facts here differ from Wesleyan’s; in this instance, the allegation was outright sexual assault. And in this instance, the accuser went to the police—who deemed her allegations non-credible. (The complaint alleges that the accuser told the police she had filed charges because she was “pissed off” at the accused student, who she considered “just another douchy frat dude” after he showed no desire for another date.) How a case that couldn’t even rise to the level of probable cause could be deemed by the university as surpassing a preponderance of evidence threshold remains a mystery.

Once the case entered the Colorado jurisdictional arena, the story was depressingly familiar. Both students had been drinking on the night of the incident; after the accused student made clear he wasn’t interested in pursuing any future relationship, the accuser claimed that the intercourse wasn’t consensual. The accuser claimed that she had texted her friends from the accused student’s room, expressing her fear about events, but she was unable to produce any of the text messages. She also admitted to university investigators (who, following OCR guidelines, did not accept the result of the police investigation) that she “may have stretched the truth” in her interview with the police.

The complaint alleges that Colorado provided markedly different treatment of the accuser and the accused. The accused student was also charged with an alcohol violation; the accuser wasn’t. (Both are under 21.) The accused student was ordered to speak with investigators within a 5-day window; the accuser was allowed a month to do her investigators’ interview. (The accused student ultimately didn’t speak with the investigators at all, citing scheduling issues and a desire for legal representation.) Reflecting its policy, Colorado refused to allow the accused student to have a lawyer. In this instance, this prohibition was critical, since an attorney would have pressed the university to consider the accuser’s inability to produce the text messages that she claimed showed her fear of assault—thereby calling into question her credibility.

In the end, the university concluded that the Boulder Police got the investigation wrong, and that the accused student was, in fact, a rapist. Having reached this conclusion, Colorado then suspended the student for three semesters. Perhaps the university wasn’t all that sure of its findings.

The students in both the Wesleyan and the Colorado cases are both represented by Andrew Miltenberg, who has done excellent work on this issue. (He’s also representing Peter Yu, the Vassar student.) Several months from now, will these cases join Swarthmore, Xavier, and DePauw, as instances in which federal courts delivered justice that the universities denied?