Amherst: No Pretense of Fairness

Amherst is being sued –and rightly so–in one of the most egregious of the many campus sex cases. In brief, this is what happened.

  • After heavy drinking, two Amherst students had sex.
  • The male involved was the boyfriend of the female’s roommate. Her friends made nasty comments about her or abandoned her for cheating on her roommate.
  • Months later, joining a group of victim’s rights advocates, the accusing student (AS) concluded that the drunken sexual encounter had been rape and brought charges.
  • In a  lightning-fast investigation,  Amherst  did not discover that AS had sent two  crucial text messages to fellow students: one admitting she had seduced the male in question, regretted it and worried that the male had been  too drunk to lie about it; the other inviting a second male to her room for sex immediately after the alleged rape.
  • In a kangaroo court hearing (no lawyer, no discovery no direct cross-examination), the male was found culpable and expelled.
  • Having learned about the exculpatory emails, Amherst refused to re-open the case, and blamed the accused male.

In a defiant response to a lawsuit filed by the accused student, Amherst claimed that the process worked as it should have in this case. Or if it didn’t, it was the accuser’s roommate’s fault—he should have found out about the text messages and forwarded them before the investigator’s investigation ended. Or if it wasn’t the accuser’s fault, it was the accused student’s own fault for (in a hearing with no lawyer) not developing clever supplemental cross-examination questions about the text messages. But Amherst, according to Amherst, did everything right, according to both college policy and federal law, producing a hearing “conducted with fundamental fairness, in good faith.”

Amherst: The Process Worked

Amherst’s response comes in three levels. First, it suggests that the college did everything right: the investigation worked as it should, even though the investigator did almost all of her campus interviews in just one day; and the panel made the correct judgment, even as the college denied the accused student any right to meaningful cross-examination or legal representation. After all, AS claimed (more than a year after the fact) that at some point she had withdrawn consent, and the accused student was too drunk to recall the incident.

It’s possible, as Reason’s Robby Soave has noted, that despite this damning contextual evidence, AS’s months-after-the-fact story about nonconsensual sex is correct. But in a case that relied solely on AS’s credibility, in which AS denied to Amherst’s investigator that she had relevant text messages, such material effectively destroys her claim—as Soave also, correctly, observed.

Desperately Defending the Accuser

In its filing, Amherst tries to rehabilitate AS in two ways. First, the college suggests that—even if they had been produced by the school—the text messages would have had “no bearing” on the case, since they were simply discussions about irrelevant aspects of AS’s sex life. But the intercourse is almost certainly relevant (since AS misrepresented to the panel and the investigator why the male student came to her room), and the messages contain several items discussing her intercourse with the accused, not with the second male.

Second, Amherst portrays AS as courageously forthcoming, and therefore wholly credible. It denies that she changed any significant aspect of her story—though even the school’s own investigator couldn’t “say it was clear to me” when AS actually claimed that she withdrew consent. It’s also true, the college’s outside attorneys concede, that AS told the school’s investigator that she didn’t have relevant text messages about the incident. But that answer was truthful, according to Amherst, because AS could have understood that the investigator was only asking her “whether she had communicated or recorded in writing that the Incident had been ‘non-consensual,’ which she did not.”

In other words, Amherst has implied that its investigator was only interested in obtaining from AS contemporaneous documentation that would confirm, rather than undermine, AS’s story. And this is how the college’s system was supposed to work? On this point, Amherst had two unpalatable options: (1) concede that AS lied to the investigator, and therefore is of dubious credibility, or (2) hint that its investigator wasn’t interested in obtaining exculpatory information. I suppose, given those two options, and given the ideological climate at the college, the lawyers had little choice but to implicitly rebuke the investigator.

Amherst’s Fallback Position: Blame Its Students

In a federal judiciary that includes such opponents of campus due process as Ronnie Abrams (Vassar case) and Jesse Furman (Columbia case), perhaps this argument might carry the day. But even Amherst seems doubtful. And so the school offers a second line of defense–to the extent the result was unjust and the school failed to consider exculpatory evidence, it was because Amherst students (either AS’s roommate, or the accused student himself) failed to do their jobs.

On this point, Amherst begins with AS’s roommate, the former girlfriend of the accused. (The roommate seems to me to have been badly treated by all parties in this case—including, now, Amherst.) While the college goes out of its way to defend the unreliable AS, its outside counsel choose to cast aspersions on the roommate—one of Amherst’s own students—by suggesting that she wasn’t entirely forthcoming about the existence of the text messages in her one and only interview with the investigator. Why? Because the roommate answered, “I don’t think so” to the following question from the investigator: “Is there anything else I haven’t asked you about that you think would be important for me to know?”

In other words: the roommate—a college student, not represented by counsel—was supposed to: (1) assume that AS hadn’t turned over clearly relevant messages (and understand why they were relevant); (2) recognize that the text messages (for which she was neither a sender nor a recipient) represented “anything else” in the investigator’s question; and (3) not wonder why this supposedly experienced investigator wouldn’t simply ask about text messages. Moreover, if the investigator had taken a more professional route—that is, scheduling follow-up meetings with relevant witnesses rather than interviewing all the witnesses in the case in a one-day whirlwind through campus—she might have realized the importance of the text messages and asked about them in a follow-up interview with the roommate.

Nonetheless, AS made a mistake. As even Amherst admits that AS “did not provide text messages to Attorney Kurker [the investigator],” she referenced them indirectly in the hearing: “I texted a friend to come over to talk to me and spend the night.” Amherst’s attorneys now argue that this sentence of testimony, buried within a longer discussion of what AS did after the alleged attack, shows the accused student had all the chances he needed. Although he “had the opportunity to do so,” Amherst’s outside counsel maintains, “he never asked [AS] to identify ‘the friend’ whom [AS] texted.”

In other words: the accused student—representing himself in a proceeding whose outcome would alter the rest of his life—was supposed to: (1) have had a clear enough understanding of the case to have recognized that AS made a key admission in her testimony; (2) have composed (in writing) a follow-up set of questions on the text messages as AS’s testimony was occurring; and (3) have submitted these questions to the panel chair and hope that the chair (who wasn’t required to do so) asked them of AS. And since the accused student failed at playing Perry Mason, Amherst now contends he’s out of luck.

Amherst and Its Officials

While the accused student couldn’t have a lawyer with him, he did have an Amherst-approved “advocate,” Torin Moore, who had come to Amherst after obtaining a graduate degree in social justice education from UMass. What was Moore doing as AS made her potentially damning admission? Amherst doesn’t even bother to defend his performance during the hearing. And what about the panelists? The college obliquely concedes their failures: AS “was not asked that question [about the text messages] by anyone else.” Why were they disinterested in this relevant information? Amherst doesn’t say.

Finally, a striking element of the original complaint was a realistic portrayal of the deeply unhealthy campus climate at Amherst on issues of due process—a task that the accused student’s attorneys, Max Stern and Hillary Lehmann, accomplished by liberally quoting from Amherst officials’ statements and documents. The Amherst filing ineffectively tries to rebut this portrayal by accusing Stern and Lehmann of producing a complaint that “mischaracterizes and selectively quotes out of context” Amherst materials. Yet in 39 pages, the college can’t identify a single specific mischaracterization.


  • KC Johnson

    KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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9 thoughts on “Amherst: No Pretense of Fairness

  1. No attorneys permitted in the hearings? Well, we all know those damn attorneys just muck up those pre-ordained results with all the truth business. And, hey, why didn’t that kid know about evidence withheld from him, cross-examine witnesses who weren’t even there and rebut lies of the complainant that were withheld? He’s Superman, right? And poor, Ms. Jones is an incessant victim with an active libido. This is the Eighth Circle of Hell, indeed. Colleges need to get out of the justice business. They’re terrible at it.

  2. This, and the other cases like it are a direct result of the current democrat administration tying federal funding to the elimination of due process.

    What better way to breakdown society so it can be rebuilt into a socialist utopia than to use the education system. By tying federal funding to eliminating due process, schools have a vested interest in destroying the lives of young men.

    This is why they are so adamant that their process worked as intended. They did exactly as the Dear Colleague letter demands, and therefore they will continue to receive funding.

  3. Ah! But WE don’t want to be ‘fair’, we want to be RIGHT!

    Not Right as in Just — but Right as in well-aligned with the political zeitgeist….well-aligned with the Media and the Vox Populi. We want to be front & self-righteously center in the Social Media Feeding Frenzy which already knows exactly who is guilty and who is innocent.

    Evidence? Proof? We don’t need no steeeenking proof; we know who did it … or who would have done it…or could have done it…because it might have happened…and what’s the difference anyway??

    As far as the Magical Act itself is concerned — all we really need to understand is that Woman (that creature who, in generations past, had campaigned mightily for equal rights, equal treatment, equal status — proclaiming that in every way which mattered she was as free, as accountable, as capable as a Man) has now been defined by the Rape Epidemiologists to be the perpetual victim: weak and helpless. She, this New Woman, is not accountable for her decisions if she’s been drinking…if she’s been persuaded…if she feels as though she is under some sort of implicit threat or psychological pressure. She can withdraw consent at any time and is under no compulsion to communicate that withdrawal.

    Of course not.

    The burden of proof that consent exists and has been maintained throughout the event lies with the man (regardless of his consumption of alcohol or drugs…regardless of how much persuasion or psychological pressure he’s experienced); he owns it.

    And so we know absolutely, full of our own passionate Amherst intensity: if she tells us she withdrew consent (implicit, or so we must presume, in the text: “Ohmygod, I jus did something so fuckig stupid”) , then she withdrew consent. And the man — well, sorry Jack, he can’t prove a damn thing.

    That’s why the investigation (??) was so farcically fast — why bother; who needs a real investigation? When you know, you know! And so this Rough Beast, its “gaze, blank and pitiless as the sun” proceeds.

    At Amherst — no question — the ceremony of innocence is dead.

  4. From Senator Gillibrand’s website:

    “Gillibrand went on to receive her law degree from the UCLA School of Law in 1991 and served as a law clerk on the Second Circuit Court of Appeals.”

    It’s unacceptable that a member of the U.S. legislature, who also has a law degree, sponsors legislation which denies accused students the most basic principles of justice.

    Catherine Lhamon, the DoE Assistant Secretary for Civil Rights, has a law degree from Yale; yet she also shares Gillibrand’s apathy toward due process for accused students. Furthermore, her “guidelines” are [de facto] law, which also shows her disregard for established law-making process.

  5. I thank Mr. Johnson for keeping me informed about the egregious mistreatment of male students in colleges and universities, and the introduction and progress of the now many lawsuits from male students seeking justice in the courts for clear gender discrimination. These male students deserve Constitutional and Title IX protection. I say this with the only authority that one day I may become a juror of peers.

    Amherst, Columbia, et al., expect to get away with violating male students’ civil rights because Department of Education Office of Civil Rights federal rules tell them it’s OK, their craven pursuit of federal money will be unthreatened. Their confidence comes from the Department of Education Office of Civil Rights’ smear campaign against college men, and banal academic acceptance.

  6. This is getting to be a too familiar story since the department of education instructed colleges in its “dear colleague” letter. The inescapable conclusion is that the Amherst administration didn’t want to know the truth.

    There is a filtering of information on these cases from an assortment of myths: first is the outrageous lie about the prevalence of campus sexual violence; there is a federal administration making political capital over championing imaginary victims (not the 6 per 1000 actual victims but the remaining 194 per 1000 invented victims), and there is an academic bureaucracy that has an enormous stake in perpetuating a narrative of women under siege from a vicious patriarchy.

    With such built in biases informing the investigations of sexual assault, the need to preserve the narrative through the finding of guilt takes precedence over being fair to the accused and most of all over a pursuit of the truth.

    What is scariest about all this is that this way of thinking is now thoroughly built into the federal bureaucracy. Every single person who has been hired into the civil rights division of the Department of Justice has a resume that shows a career based on establishing narratives of victimization. Honesty and fairness would definitely disqualify a person for serving in the Justice Department. It is a tragedy and one that will reverberate in American life for years to come. The travesty of falsely accused students being expelled from college will continue until the public takes notice of it and demands fairness in such proceedings.

  7. Why is it so bloody important to defend the process? Unless their desire at Amherst is to continue expelling innocent male students.

  8. Blah blah blah who cares.

    You’d have had to have been living under a rock the past 40+ years not to know males are devalued in society and rape accusations are usually bullshit.

    Why is this suddenly news now? What, was the accused the son of an influential senator or something? Why are we pretending this is new?

    Universities have always been liberal left Cultural Marxist indoctrination centers. The stated goal has been to devalue males and get rape convictions or otherwise belittle and punish them for being males. This stuff goes on all the time in every campus across the nation, and constantly in the media and throughout government.

    Why are we pretending we suddenly care about males when the past 40+ years has been a concentrated campaign to punish males for being males?

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