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October 21, 2013

Vassar Demands Absolute Trust from Courts

Despite a delay caused by settlement talks, Vassar has now filed its response to Peter Yu's Title IX lawsuit. Unlike St. Joe's, which at least attempted to defend its actions in a similar Title IX suit, Vassar's response is blunter: the courts should simply trust that the college correctly handles disciplinary matters, even though the college is at this stage unwilling to say why it is entitled to such trust.

The Vassar reply, which you can read here, mostly consists of line-by-line denials of Yu's claims. Recall the basic facts of the case: after an aborted sexual encounter between Yu and Mary Claire Walker, one year passed, during which Walker (daughter of a Vassar professor) sent Yu several Facebook messages, both apologetic and seemingly friendly. Then, one year later, on the final day in which she could file campus charges against Yu, Walker did so. After a stunningly fast investigation and disciplinary proceeding, Yu was branded a rapist and expelled from Vassar.

The Vassar reply admits one important point: as I inferred in my previous writing on the case, Vassar expelled Yu through its Interpersonal Violence Panel--whose procedures the college has declined to make public on its website. Vassar provides no explanation as to: (1) why students accused of sexual assault are tried before a different type of panel than students accused of all other college violations; and (2) why the college does not make the IVP procedures public, when the school's regular disciplinary procedures are posted publicly--for examination by students, parents, alumni, and members of the media.

Vassar's reply does (inadvertently, perhaps) leak one element of IVP procedures--that either party can object to having a student be part of the disciplinary panel. Yu wanted a student. Walker didn't. And even though Walker's father is a professor at the college, the college bowed to her wishes, subject only to a claim that no professors from the father of the accuser's department was on the panel. Vassar thus admitted that Yu was denied the opportunity to be judged by a jury consisting even partly of his peers. What's notable, moreover, is what Vassar doesn't admit--it did not claim that the faculty members who deemed Yu a rapist didn't know Walker's father, or didn't serve on college committees with Walker's father, or hadn't encountered Walker's father at social or professional events on campus. Instead, it suggests that there's no problem with a procedure that allows an accuser to request a panel that consists solely of her father's colleagues, as long as members of the specific department in which the father teaches aren't part of the panel.

In justification of its findings, Vassar "avers that the Interpersonal Violence Panel determined that Ms. Walker was incapacitated as a result of her alcohol consumption and thus could not consent to the sexual activity with Plaintiff." (After her encounter with Yu, Walker did not go the police or hospital to have a rape exam conducted, or to test her blood level for alcohol content.) Moreover, Yu claimed that he too had consumed considerable amounts of alcohol. If Walker couldn't consent to sexual intercourse with Yu on basis of alcohol consumption, how could Yu consent to intercourse with Walker on the same grounds? Of course, since Walker waited until the very last moment to file charges against Yu, Yu had no opportunity to file a counter-claim against Walker. According to Vassar, this isn't a problem, because--based solely on one-year-after-the-fact testimony from his resident advisor--Yu didn't "appear" intoxicated that evening.

According to the Vassar filing, the IVP also appears to have some sort of psychological training. The college asserts that the IVP dismissed the seemingly exculpatory facebook messages sent from Walker to Yu on grounds that Walker was "in denial, extremely scared, and in a state of shock and disbelief" when she wrote the messages. The messages, by the way, began in March 2012 and continued until October, and included such matters as Walker apologizing to Yu, and even inviting him to dinner at her home. The filing contains no mention of the IVP receiving testimony from a mental health professional or any sort of medical expert who could evaluate the merits of Walker's plea to disregard the plain meaning of what she wrote over a period of many months.

The college's conclusions: "Vassar's actions were justified by legitimate, non-discriminatory reasons." What those reasons are readers can speculate.

In the end, colleges and universities simply can't have it both ways: that is, they can't simultaneously deny even the semblance of due process to students accused of sexual assault and claim that their procedures provide sufficient due process to render unnecessary judicial oversight. Or, if Vassar wins this case, perhaps colleges and universities in the 2nd Circuit will be able to do just that.

Comments (1)

D. Schneider`:

Isn't it about time that we abandon the medieval concept of self-rule by educational institutions, particularly regarding potential criminal acts? It is time to close down the Star Chamber. If someone cries "rape," it should be a matter for civil authorities. Universities are not courts. Defendants and the Plaintiffs have civil, legal remedies to resolve alleged crimes. Get the self-serving school bureaucrats out of the legal business and put it where it should be - in court.

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