In the latest college to settle a due process lawsuit instead of defending its policies in court, MassLive reports that Amherst College reached a settlement with an anonymous male student who sued the school after Amherst withheld his degree. The case was unusual in a couple of respects: first, the allegation involved a same-sex rather than an opposite-sex encounter; second, the college enacted a punishment (a one-year de facto suspension) and welcomed the accused student back to school thereafter. According to the lawsuit (and not denied by Amherst), he had a strong record and no disciplinary problems, but when the accusing student complained a week before graduation, the college effectively decided to impose a second penalty for the same offense, denying the accused student a degree and withdrawing an offer to work for Amherst.
An Amherst spokesperson offered the following Orwellian statement to the confidential settlement: “Previously, hearing board panels were comprised of Amherst students, faculty and staff. Under the new system, cases are decided by well-trained and experienced professionals from the other four colleges in our community. We made this change because students requested it. They did not want adjudication of sexual misconduct allegations to include individuals whose classes they might be taking or whom they might see on campus. That change made a lot of sense, and we hope and expect that it will help to establish trust and encourage reporting.”
Or, in real English: “Yes, we just were forced to settle because we treated a student accused of sexual misconduct unfairly—but we’ve changed our procedures to increase the likelihood that more accused students will be treated unfairly in the future.”
Meanwhile, the latest school to face a due process lawsuit (which you can read here) is Washington and Lee. The facts, by this point, are depressingly familiar. Two students had a sexual encounter after attending a party, at which both consumed alcohol. The next morning, the accused student drove the accuser back to her dorm. The next day, the accuser told a friend that she had a good time the previous evening, and made no mention of any assault; and the accuser hooked up with the accused student a month later. Many months later, and after working over the summer at a women’s clinic, the accuser indicated that she’d had an “evolution” in how she felt about the incident, which she now concluded was a sexual assault. Part of this evolution was seeing the name of the accused student—who she had also discovered now had a girlfriend—on the acceptance list for a college program in Nepal.
The accuser filed a complaint with W&L’s Title IX officer, Lauren Kozak, who harbors the unusual theory that for female college students, “regret equals rape.” (After the lawsuit was filed, the video of Kozak’s talk vanished from the hosting site.) After the accuser formally filed her complaint, W&L conducted a lightening investigation/adjudication/punishment process—the accused student was branded a rapist and expelled from school within 21 days. (Imagine the appropriate outcry from politicians in both parties if any state handled criminal complaints in such a casual manner.) The accused student received six hours’ notice of his initial meeting with Kozak, who told him that he could discuss the matter only with his parents, and that “a lawyer can’t help you here. We won’t talk to them. This matter stays strictly within the school.” The accuser also was forbidden to speak with potentially exculpatory witnesses, thus weakening his chance at a fair defense.
Although several people who spoke with the accuser shortly after the attack said she hadn’t described the incident as a sexual assault, the college went forward with the case. At the hearing, the accused student represented himself (since W&L doesn’t allow lawyers). He was forbidden from directly cross-examining the accuser (the complaint alleges that significant discrepancies existed between contemporaneous Facebook postings and even what the accuser told the Title IX investigator on the one hand and what she told the panel on the other). Even more problematically, none of the witnesses who spoke to the Title IX investigator appeared at all, with the panel instead relying on Kozak’s written summary. By a vote of 3-1, the panel deemed the accused student a rapist; W&L, like an increasing number of schools, doesn’t require unanimity to find a student culpable of sexual assault.
The complaint also raises some troubling issues of coincidence: the W&L cited a fear of OCR investigation as one of his justifications for hiring Kozak, and the expulsion decision came one day after publication of the Rolling Stone article on UVA. Though that piece is now hopelessly discredited, at the time it was accepted as gospel, and doubtless influenced at least the general mindset at a school in the same state.
Will Washington and Lee be the next to settle?