Last week came two more court decisions involving due process and campus sexual assault. The first, which involved a student at Case Western Reserve University, had Judge Christopher Boyko (a George W. Bush appointee) ruling that it was plausible the accused student was innocent and the CWRU had manufactured inculpatory evidence—but there was nothing he could do to remedy the problem. The second, which involved a student at Middlebury College, had Judge J. Garvan Murtha (a Clinton appointee) issuing a preliminary injunction preventing Middlebury from expelling the student. You can read Judge Murtha’s decision here.
The Middlebury case was factually and procedurally complicated. But it offers three issues of importance:
(1) Title IX can be weaponized, with the accuser using the threat of a complaint with the Office for Civil Rights (OCR) to effectively force a college to do her bidding.
(2) In what seems like a first, a college assumed jurisdiction over a sexual assault case that involved an allegation filed by a student from another school.
(3) The case provides a rare behind-the-scenes view of the extraordinarily one-sided training that “impartial” campus adjudicators receive.
In fall 2014, a male junior applied to study abroad for the semester; Middlebury’s study abroad program is run not by the college but by an institution called School for International Training (SIT), which is based in Brattleboro, around two hours from the Middlebury campus. SIT is a U.S. university, subject to Title IX, and Middlebury’s guidelines make clear that students in the program will be subject to SIT rulings for honors code violations while they’re abroad. The guidelines are silent about student conduct issues.
The background to the allegation was rather tawdry. On November 7, 2014, after what appears to have been a night of considerable drinking, the male student came back to his room with two female students in the study abroad program, at least one of whom wasn’t from Middlebury. His roommate was away, and so the three of them decided to sleep together in his room, pushing the two beds together, with the male student sleeping between the female students. At some point in the evening, the male student became sexually active with one of the female students (who initiated this contact remains in dispute). The other student (a friend of the female student, and a former romantic partner of the male student) eventually saw what was going on—and got up, retiring to her own room.
The incident was, at the least, embarrassing; it threatened the social equilibrium between the female student and her friend. But the female student soon claimed that the intercourse was nonconsensual; she filed a sexual assault claim through SIT. (There’s no indication she went to the police.) SIT, in turn, informed Middlebury that it planned to investigate the allegations; it then would conduct a hearing according to its own policies (which conform to OCR guidelines). Middlebury made no attempt to assert jurisdiction over the case. SIT convened a hearing at which both parties, and the other student who was in the bed, testified. The hearing also considered contemporaneous text messages between the three. Both the transcript of that hearing, and the text messages, were not included in the public documents filed in the case, so it’s impossible to comment confidently about the merits of the allegation. But the SIT hearing found the male student not culpable for sexual assault. The accuser elected not to exercise her OCR-right to appeal the finding at SIT.
That decision, it would seem, should have ended things. An accused student had been charged. A hearing had been held, at which he was acquitted. The accuser did not appeal.
But the accuser elected to pursue another path. She still didn’t go to the police. Instead, working through the Title IX coordinator at her own institution, she wrote to an administrator at Middlebury, with an ill-concealed threat: “I am pursuing,” said she, “a complaint with the office of [sic] civil rights.” And suddenly Middlebury, which heretofore had unquestioningly accepted SIT’s coordination of the case, decided that it would conduct a second investigation—even though the accuser wasn’t a Middlebury student. To the best of my knowledge, this is the only publicized case since issuance of the “Dear Colleague” letter in 2011 in which an institution has asserted jurisdiction over a claim that didn’t involve two students from the college. If established as a precedent, the expansion of the parallel justice system championed by the Obama administration would be dangerous, and massive.
In addition to her threat about filing a complaint with OCR, the accuser passed along information about the case that she said corroborated her view of events. She also claimed that SIT’s investigation had violated Title IX because SIT’s investigator hadn’t spoken to her academic advisor (why that would be relevant the accuser didn’t say) and hadn’t spoken to unspecified witnesses (what these witnesses might or might not have said the accuser didn’t tell Middlebury). Though OCR, not Middlebury College, has authority to decide whether SIT’s actions conformed to Title IX, Middlebury Dean Karen Guttentag had heard enough. The college would effectively set aside SIT’s finding, the dean later testified, based on the accuser’s “perceptions of SIT’s investigation and hearing process.” You can read the dean’s affidavit here.
This rationale was nothing short of extraordinary. The files contain no indication that Guttentag had asked anyone at SIT whether the accuser’s “perceptions” of SIT procedures were based in reality. But with a clear threat that if Middlebury didn’t go along, the accuser would add the college to her already-filed claim against SIT, the college leapt into action, more than two months after the allegations and well after SIT had already acquitted the student.
Guilt and Middlebury
Middlebury’s decision meant that the accused student would be subjected not only to a double-jeopardy scenario, but a very different procedure. Unlike SIT, Middlebury has adopted the Obama administration’s preferred approach of bypassing a hearing (lest it re-traumatize an accuser who, at that stage of the process, the college doesn’t know is telling the truth) and turning things over to a single investigator. The investigator submits a report to a college administrator, who then interviews the accused student, but in every case since 2012 in which the investigator had branded the accused student a rapist, the college has accepted the finding. Middlebury referred this case to an investigator named Nell Coogan, whose website indicates no background in criminal investigation or law enforcement.
Middlebury has clear ideas on how sexual assault investigations should be conducted; the firm Margolis Healy trains college officials on the matter. The firm’s guidelines, as based on a 2012 training session, seem designed to ensure that the college gives every conceivable benefit of the doubt to the accuser. You can see the guidelines here; note how heavily Margolis Healy relies on the now-discredited researcher David Lisak, who is mentioned eight times, to explain how colleges should respond to sexual assault allegations.
Investigators, Margolis Healy instructed Middlebury officials, must not approach the case with “skepticism.” Indeed, they must “start by believing” the accuser. The discussion with the accuser must not involve the investigator interrogating her; “This is not the time for ‘just the facts.’” (If not then, when?) The investigator must avoid “victim blaming” questions, such as asking the accuser why she did something. “Use what we know” about campus sexual assault—that the “non-stranger sexual offender” says to himself, “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.” While the investigator must “start by believing” the accuser, the Middlebury official must begin by wondering if the accused is “who he said he is.” Margolis Healy counseled Middlebury investigators against using the term “accuser” (“victim” or “survivor” is preferred).
The report prepared by the investigator “should not include . . . consensual language” or anything indicating “mutual participation.” But what if the intercourse was consensual, or involved mutual participation? Nor should the investigator’s report include the following language: The “victim has inconsistencies with her story.” But what if she does? Nor should the report conclude that “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect.” But what if the accuser isn’t credible? According to Middlebury’s training, that outcome seems impossible.
With this background, and given the looming threat of a Title IX complaint if Middlebury didn’t do what the accuser wanted, the college returned a guilty finding, and recommended expulsion days before the accused student was to begin his final year at Middlebury. The accused student sued, noting that the college’s decision not only would end his Middlebury career, but also would rob him of a job offer that he had already lined up after graduation.
The Court Case
In filings before Judge Murtha, the two sides partially re-litigated the case. The accused student contended that SIT’s finding was correct, and that the accuser had substantially enhanced her allegations over the course of the inquiry. Middlebury countered that the accused had changed his story, and denied that kicking the accuser out of school and costing him his job would constitute irreparable harm for him. Middlebury administrators and its investigator also produced unintentionally comical affidavits claiming that the guilt-presuming training that Middlebury arranged for them to receive had no impact on how they investigated sexual assault allegations.
Judge Murtha understandably was skeptical about college officials’ newfound commitment to objectivity. His ruling was a preliminary one, but he noted that “Middlebury’s policies did not authorize a second investigation and de novo evaluation of the allegation of sexual assault after it had been decided in Plaintiff’s favor by SIT, the sponsor of the study abroad program during which the alleged misconduct occurred, to whose discipline Plaintiff was subject.”
The accused student thus can complete his senior year. But how will Judge Murtha rule on the merits of the case?