By KC Johnson
At some point the demands for federal investigations into our colleges' supposed indifference to accusers in sexual assault cases will reach the point of parody. In fact, that point might already have been reached with two recent developments. First, celebrity lawyer Gloria Allred, an attorney who never met a TV camera she didn't like, has agreed to represent several Occidental College students in their complaints about the school's sexual assault policies. Second, a Title IX complaint has been filed against Swarthmore College, an institution widely considered a paragon of political correctness. To get a sense of the campus climate: Swarthmore was last in the news after student protesters successfully pressured Robert Zoellick, a former head of the World Bank and an early supporter of the Iraq War, into declining an offer to serve as commencement speaker.
Richard Perez-Pena--coordinator of the New York Times' anti-campus due process beat--brought news of both developments in a co-authored article. As is his customary pattern, Perez-Pena didn't actually describe the policies against which the students were complaining. (No mention, that is, of Occidental's bizarre standard under which a male student can be deemed culpable for sexual assault even if his partner says "yes" to intercourse.) Referencing the Orwellian criteria that campuses currently use would not, it seems, comport to the ideological framework through which the Times is viewing these stories.
Instead, Perez-Pena quotes two Occidental students, Kenda Woolfson and Carly Mee, who say they were forced to encounter the person who raped them on campus and even at graduation. Yet neither woman appears to have even filed a criminal complaint, much less gone to trial. Perez-Pena appears uninterested both in why the two women pursued this course of action or in the journalistic ethics of describing someone (albeit anonymously) who hasn't even been charged as a "rapist." The Los Angeles Times, by contrast, noted that Mee never went to the police with her accusations.
In what might have been a rare instance of good editorial judgment--or perhaps simply the result of a lack of space--Perez-Pena didn't include another vignette from the Allred press conference that Gawker mentioned. Summarizing a claim from Allred's filing, Gawker showed that Occidental once punished a student found culpable for rape by making him write a five-page report. Neither Gawker nor Allred substantiated the claim. Instead, readers are asked to believe that a college so politically correct that its policy holds that "yes" might mean "no" in a case of sexual assault is also utterly indifferent once it finds students guilty of assault. Only those gullible enough to see Allred as a high-minded idealist would uncritically accept such a claim.
The Times Visits Swarthmore
What about Swarthmore? Unlike Occidental, the college defines sexual assault in a standard fashion, but its definition of sexual harassment raises eyebrows. After maintaining that the college follows relevant federal precedent that "an intimidating, hostile, or demeaning environment is defined as one that is so severe, pervasive, or objectively offensive that it interferes with a person's ability to learn. . . or have access and opportunity to participate in all and any aspect of campus life," its guidelines then note that "there is a wide range of behaviors that falls within the general definition of sexual harassment and many differing notions of what behaviors are and are not acceptable." That list includes a "lewd comment," or "unwelcome verbal" advances; therefore, it has a much lower threshold for harassment than the Supreme Court.
The procedures the Swarthmore activists have deemed insufficiently protective of the accusers' standing are, sadly, as due process-unfriendly as the typical college disciplinary process. Accusers have no obligation to report any sexual assault to the police or to consent to a medical rape exam. They can, nonetheless, simply file a complaint through the college, prompting the college to conduct an investigation, which can be overseen by Title IX coordinator Sharmaine Bradham LaMar--hardly a neutral party. LaMar then can investigate "in the manner appropriate"; she isn't required to interview witnesses or even the accused student. She must issue a report, usually within 20 days of the complaint and always within 60 days. The accuser and accused students can then file a written reply.
At that point, charges can be dropped--but even then, the Dean's Office has "the discretion to require the accused to participate in remedial measures that ensure sufficient education and counseling of the College's policies." In other words, an uncharged student can be compelled to perform "remedial measures" solely on the basis of LaMar's judgment.
If charges are pursued, the matter gets turned over to the College Judiciary Committee. The accused student is sworn to secrecy--any public discussion of the charges against him, even if they're wholly unfounded, constitutes "a violation of College policy and is an adjudicable offense." Mentioning the allegations to an outside counsel, therefore, violates the Swarthmore judicial code.
The college goes to great lengths to prevent accused students from thoroughly examining the evidence that LaMar or her investigators compile. College guidelines suggest that accused students will obtain access to the material relevant to the hearing against them only 48 hours before the hearing. Then, in a most unusual twist even at due process-unfriendly Swarthmore, the evidence can be viewed only in the college dean's office and cannot be removed or photocopied.
Once the hearing begins, the accused student can bring one "supporter" into the hearing room, but the college limits acceptable "supporters" solely to current members of the Swarthmore community. Since Swarthmore doesn't have a law school, this requirement effectively prohibits attorneys without explicitly saying so. The "supporter" cannot speak in the hearing.
The accused student lacks the right to cross-examine his accuser, although he can question other witnesses called by the colleges. (Swarthmore provides no explanation why the accuser can't question the most important witness against him.) Witnesses testifying on behalf of the accused student must be pre-cleared by the college "observer," a judge-like figure, who can reject any proposed witness in advance. At the hearing itself, another college figure, the "convener," can also reject witnesses--even those, it seems, approved by the "observer." The convener also can exclude any and all questions he or she deems prejudicial, privileged, confidential, or that "otherwise would interfere with the fair adjudication of the hearing." Guilt is established, reflecting OCR guidelines, according to a preponderance of the evidence, or 50.01% percent.
To summarize: at Swarthmore an accused student can be punished even if no charges were filed against him. Once charged, he can't consult with a lawyer, since doing so would breach confidentiality rules and result in additional punishment. He can only examine the evidence against him two days before the hearing, and only then in the college dean's office, without an ability to photocopy material. He can't cross-examine his accuser, his witnesses or questions can be excluded for arbitrary reasons, and he can be found guilty by a 50.01% threshold.
And yet not only have a group of Swarthmore students filed an OCR complaint deeming these policies insufficiently protective of the accuser's rights, but Swarthmore's president, as summarized by the Times, "said that Swarthmore has acknowledged flaws in its record and has been trying to address them" to meet the accusers' concerns. What procedures could possibly be acceptable to such figures?
That's not a question the Times wants to answer.
The Importance of Process
Regarding campus sexual assault, understanding the process provides critical context, which makes the Times' consistent exclusion of process all the more indefensible. A typical reader of Perez-Pena's oeuvre could be excused for believing that the complaining students faced something akin to the criminal justice system. Perhaps they encountered an indifferent police officer nearing retirement, or were assigned to an overworked prosecutor, or went before an indifferent jury, or were brow-beaten by a brutal defense attorney, all while having to obtain guilt beyond a reasonable doubt.
Yet, of course, the campus judicial system is entirely different. The personnel encountered by the accuser--figures such as LaMar at Swarthmore--have every bureaucratic incentive to respect, not alienate, female accusers, since such figures owe their jobs to accommodating all diversity-related concerns on campus. And the disciplinary system is tilted, often wildly so, in favor of the accuser. By declining to mention this necessary context to the paper's readers, the Times presents a (willfully?) inaccurate picture to readers.
As to why the guilt-presuming procedural apparatus matters so much to defenders of the academic status quo, consider two remarkable, and perhaps unintentional, assertions by Brown University vice president Margaret Klawunn. Defending her university's prohibiting students accused of sexual assault the right to counsel in campus disciplinary proceedings, Klawunn fumed, "We don't want attorneys to start running the University process." Fairness, it seems, takes a back seat to preserving administrative control. And the Brown Daily Herald summarized Klawunn's celebrating the OCR-mandated preponderance-of-evidence threshold: "Sexual assault complaints often lack sufficient evidence to prove guilt beyond a reasonable doubt." Imagine the (appropriate) outrage from the Times editorial board if a member of Congress demanded minimizing procedural protections in virtually any other criminal case on the grounds that such "complaints often lack sufficient evidence to prove guilt beyond a reasonable doubt."