Elite College, Caught in Title IX Web, Goes to Trial Against Wronged Student
Amherst College is one of America’s most prestigious schools. It is run by people with lustrous liberal credentials, eager to show their fidelity to progressive causes, including the battle against the campus “rape culture.” But that eagerness has landed Amherst a lawsuit brought by a student who argues that he was wrongfully expelled.
The facts revolve around a drunken hookup between two students and the woman’s subsequent efforts at covering up her willing participation by blaming the male student and accusing him of assault. Amherst’s administration was equally complicit, however, pronouncing the man guilty on flimsy and incomplete evidence, then refusing to reconsider once evidence that the woman had fabricated her story came to light.
And the dark force driving the school to make an example of the student was the Education Department’s Office for Civil Rights (OCR).
On the night of February 4-5, 2012, John Doe (as he is called in the court documents) was so drunk that he “blacked out” and couldn’t remember much about the night, including even his interaction with Sandra Jones (again a pseudonym). The two were making out in a dormitory common area when another student said that they ought to go somewhere private. Jones led Doe to her room, where she performed oral sex on him. Her room was available because her roommate—Doe’s girlfriend—was away.
Doe thought little more about that drunken night with Jones until he was dumbfounded to receive a notice from Amherst in December of 2013 that he had been charged with rape. He would have to appear at a hearing in ten days.
For that hearing, he was allowed to choose an “advisor” from a list given to him by the school, but that individual could only suggest questions for the examiner, not speak for the accused or cross-examine witnesses. That list didn’t include anyone with the slightest legal training. (The person Doe chose was an Amherst administrator with a degree in “social justice education” who was of no help.)
Unknown to Doe, Amherst had decided to follow the Obama administration’s preferred system for adjudicating sexual assault complaints, namely hiring an investigator who would look into the case, question some witnesses, and then make a presentation to a panel. That panel would then decide on disciplinary action, if any.
But that process was stacked against Doe from the beginning. The investigator was a local attorney who had been “trained” in the OCR’s witness-believing, guilt-presuming approach to these cases. Moreover, the three members of the panel were all drawn from a group of administrators from local schools who had likewise received “training.” They had all gone through a seminar on “the dynamics of sexual misconduct, the factors relevant to a determination of credibility, the appropriate manner in which to receive and evaluate sensitive information… and the application of the preponderance of the evidence standard.”
That last point is particularly noteworthy. The OCR insists on a minimal level of proof to find a student guilty. The evidence need only indicate that it is slightly more likely than not that the student had committed a wrongful act. In practice, this means that an accused male student will be found guilty so long as the female accuser has any credibility at all.
In Doe’s case, the panel that decided his case consisted of two “student life” officials from other colleges in the area and an administrator at a third whose doctorate was in “social justice education.” Those individuals were certainly not inclined to probe deeply for weaknesses in the accuser’s story or evidence that Doe had not committed any assault.
Finally, while Doe’s “advisor” was not allowed to act as an advocate for him, the school’s chosen advisor for the accuser was permitted to act as an advocate against him, and did.
The result of the “trial” was a foregone conclusion. Doe was found to have assaulted the female student, even though the panel found it “credible” that he was so drunk that he had little or no knowledge or control. Consequently, Doe was immediately expelled.
After his expulsion, which is now a permanent part of his academic record, Doe hired a lawyer to dig into the case, and his lawyer found a lot of evidence that Amherst’s hired “investigator” had not. His lawyer subpoenaed the texts that Sandra Jones had sent that night and they utterly demolished the story she had concocted in an effort to portray herself as an innocent victim.
Those texts showed that she was desperate to cover up the fact that she had initiated sex with Doe and also that, far from feeling distraught over being assaulted, she had invited another male student she was interested in to come over and “entertain” her after she’d gotten Doe out of her room. (For details on those communications and about Amherst’s one-sided hearing in the case, see this Minding the Campus essay by Professor KC Johnson.)
When Doe’s attorney asked Amherst to reopen the case in light of all the new evidence he had uncovered, it refused. Evidently, rectifying an injustice was less important to Amherst than being able to say it had nailed a male student and thus helped to combat the supposed “rape epidemic.” In that respect, Amherst’s treatment of “John Doe” is the same as Yale’s treatment of star basketball player Jack Montague; it wanted a “scalp” and got one, as I explained in this article.
Doe decided to sue Amherst in federal district court.
The case was assigned to Judge Mark Mastroianni, an Obama appointee. Amherst moved to have the case dismissed. Judge Mastroianni carefully evaluated all of Doe’s allegations and ruled that several of them were strong enough to warrant a trial. That might cause Amherst to regret its eagerness to mete out the college equivalent of capital punishment for a student just to appease the OCR and campus rape zealots.
The first, and I think most important, part of the ruling concerns Doe’s argument that Amherst had a contractual duty to provide all its students with fair procedures in the event of a disciplinary proceeding, and that in his case it failed to abide by that contract.
Judge Mastroianni’s decision agreed with Doe that Amherst was contractually obligated (through its Policy and Procedures handbook for students) to ensure that Doe received “thorough, impartial and fair” procedures. He found sufficient evidence that it did not for the case to go to trial.
That is huge. Schools across the nation have been so ready to follow OCR’s directives that they have forgotten that they have contractual obligations to the students they enroll. Crucially, this means they can be liable for railroading students through kangaroo courts. Pleading “But we were just following orders from the federal government” probably won’t work as a defense.
Colleges and universities across America should take heed.
Second, Judge Mastroianni found sufficient grounds for Doe’s allegation that Amherst was guilty of sexual discrimination against him that the case can proceed.
Specifically—and again based on evidence that was presented only after the stacked trial—Doe claims that Amherst treated him differently than it did Jones, because there was at least as much reason to regard her as having committed sexual assault as to think he did. But Amherst ignored the former, leading the judge to conclude that “a court can infer gender-based discrimination may have played a role in the College’s responses.”
Although several elements of Doe’s complaint did not survive Amherst’s motion to dismiss, that’s irrelevant. What matters is that his central claims did and now the school can either settle or face trial. Compensating Doe for the harm it has done to his reputation after falsely branding him as a sexual predator will most likely prove to be very expensive. Amherst supporters might reconsider their giving plans.
College officials should note this ruling well: You probably have a legal obligation to treat all students accused of wrongful behavior with fairness, so don’t follow the OCR’s “guidance” any longer.