Lawsuit details college’s sudden push to expel

Administrators at all levels allegedly implicated; college vows to fight in court

A carefully constructed and vivid picture of the college administration’s reaction to the controversy surrounding its handling of sexual assault last spring emerges from the lawsuit filed by a former student who claims he was wrongly expelled. The college has denied all of the suit’s charges and vowed to fight them in court.

Two weeks after Clery Act and Title IX complaints were filed by Hope Brinn ’15 and Mia Ferguson ’15 in April 2013, the suit alleges, a complaint filed by Jane Doe, a current student, against John Doe, was re-opened. (Both names are pseudonyms used in the suit to protect the anonymity of the students.) The college committed various violations of its judicial procedures, the suit alleges, in a rush to “demonstrate its new ‘zero tolerance’ standard.” The suit claims administrators from then-Title IX Coordinator Sharmaine LaMar all the way up to President Rebecca Chopp, who refused John’s appeal despite a range of violations of College Judiciary Committee procedures, are implicated in the violations.

Dean Nathan Miller, who joined the college as judicial affairs coordinator in July 2013 and was not an employee of the college until after John’s appeal was denied, said that three non-academic cases were tried by the CJC last spring. In “one case, a student was found responsible of intimidation and placed on probation,” he told the Phoenix in an email. “The two other cases involved charges of sexual harassment and assault, with both students being found responsible. The outcome in both cases was expulsion.”

But several student sources said that a number of other students withdrew or transferred to other colleges pending their CJC trials, so the number of students pursued on sexual misconduct charges could be far greater.

The suit, which is available on the Phoenix’s website, claims that John’s CJC case was “the first case of alleged sexual misconduct heard after the federal complaints were filed. “It alleges that that given the complaints filed with the DOE and negative local and national news coverage, John was “a male accused of sexual misconduct at the wrong time and in the wrong place.” Claiming that the Swarthmore sexual assault policies “afford varying rights to women and men,” the suit asserts that Swarthmore has violated Title IX and requests that the college allow John to re-enroll in the college to complete his senior year.

In the case, filed in the Eastern Pennsylvania District Court, John alleges that he and Jane first had two consensual physical encounters in April 2011. These two acts, “a brief kiss” and a “sexual interaction without intercourse,” were followed by one act of intercourse which the suit alleges “Jane, by her own admission, initiated and willingly participated in.” In the suit, John describes meeting Jane while participating in a student group. Following a party for this student group, in April of 2011, the suit alleges that the two kissed in a consensual interaction.

One week later, the suit claims that Jane asked John to study with her in her dorm room because she “was studying alone and wanted his company.” After making coffee around midnight, the suit continues, John and Jane engaged in “various consensual sexual activities” which lasted for several hours.

The next day, via a “friendly” electronic communication, the suit claims, Jane told John that she “had informed her boyfriend of her sexual activities with John.” This was followed by an email John received from Jane’s boyfriend, in which the boyfriend claimed that he “owned a gun and that Jane had dissuaded him from killing John outright.”

Following the email, the suit continues, Jane went to John’s dorm room to discuss the email with him. The suit claims that John asked Jane about her boyfriend’s email suggestion that “he had, in some way, taken advantage of her. By Jane’s own admission, she responded that she did not know why her boyfriend suggested misconduct by John.” Following this, the suit continues, “[by] Jane’s own admission, she then requested that the two have sexual intercourse,” and John “was reluctant … [but] agreed after Jane promised not to tell her boyfriend.” The suit claims that both Jane and John have consistently affirmed that “both she and John were sober; she propositioned John; and the two engaged in consensual sexual intercourse.”

Following this incident, the suit claims that the two had no further sexual relations and communicated afterwards only intermittently, primarily through Facebook.

In November 2012, nineteen months later, the suit claims that Jane was studying abroad with the same boyfriend who had threatened John in May 2011, and was by then her fiancé. The suit claims that on November 24, 2012, Jane emailed LaMar, alleging that John had sexually assaulted her. In this email, according to the case filed by John, Jane alleges that the initial kiss and first sexual encounter with John had taken place on the same night, while she was drunk, and that both interactions were “the result of coercion by John.” In the email, the case continues, “Jane admitted that she initiated consensual sexual intercourse with John several days after” the alleged sexual misconduct.

Five days later, the suit claims, LaMar, who was later replaced as Title IX coordinator following Margolis Healy’s summer interim report on sexual misconduct policy, informed John, who was studying abroad in another country, of the allegations Jane had made. The following day, it continues, LaMar and Joanna Gallagher, then-deputy Title IX coordinator, interviewed John via Skype. They requested that John provide a written statement, which, according to the suit, he did that day.

In a second email six days later, the suit alleges, LaMar asked for a second interview, in which she told John that “Jane had revised her timeline of events to reflect dates consistent with John’s account.” On January 28, 2013, 65 days after Jane had first emailed LaMar, the suit claims, the college closed its investigation per a rule limiting investigations to 60 days. The suit continues that “John was not charged with any disciplinary violations.”

Nine days after Brinn and Ferguson filed their Title IX complaint, on May 7, 2013, the college re-opened its investigation of Jane’s accusations, the suit alleges, in violation of its procedures limiting sexual misconduct investigations to 60 days.

According to the suit, in the following days, John received a phone call from Gallagher and an email from LaMar, and then an email from then-Associate Dean for Student Life Myrt Westphal, informing him that he was “charged with sexual assault, illegal entry, and harassment through communications” and that a CJC hearing was scheduled in seven days, for May 21. The suit states that the hearing was scheduled after the spring semester was over, which is in violation of CJC procedures stating that hearings must take place when classes are in session. On May 17, the suit continues, the hearing was rescheduled for May 30.

On May 27, the suit claims, the college interviewed John and Jane separately, and, the next day, John received a formal letter charging him with “sexual assault and illegal entry,” with “the further notation that, at ‘2 pm May 28, 2013,’ the second charge had been ‘changed’ from harassment through communications to sexual harassment.” John was allowed, the suit claims, to review the investigation report on May 27 and 28, days before the hearing, with the requirement that he do so “in Ms. LaMar’s office during business hours” and prohibition from “showing the materials to anyone (including legal counsel) or taking the materials home for further review.”

The suit alleges that while John’s accounts were consistent throughout, Jane’s descriptions of the event “vary from account to account” and that “her alleged level of ‘resistance’ escalate dramatically from the initial to the ‘re-opened’ investigation.” For example, the suit claims that in Jane’s November 29, 2012 interview, five days after she made the accusation and nineteen months after the alleged incident, Jane stated that “John attempted to kiss her during their conversation and that she rebuffed his attempt.” In her May 14, 2013 interview, the suit continues, after the investigation was re-opened and “752 days after the alleged misconduct,” Jane stated that “John’s advances were repeated, forceful, and involved unsolicited groping.”

The suit also claims an escalation in the second and third incidents. Regarding sexual intercourse that the suit claims both parties agree happened on May 1, 2011, the suit alleges that Jane first described herself as “instigator” of the sexual activities but later “alleged that she was fearful of John and had sex with him to prevent him from hurting her.”

The suit also alleges that the college violated many of its own policies in its investigation of the allegations against John, largely as a function of its attempt to expedite the trial process. These violations, the suit concludes, show that “Swarthmore’s policies fail to afford students accused of serious sexual misconduct with fundamental due process rights.”

On June 7, 2013, four days after John received a Letter of Findings from the CJC, the suit claims, John filed an appeal to Chopp citing “numerous procedural errors” as “grounds for a re-hearing.” Four days after the college learned of the Department of Education’s Office of Civil Rights’ opening an investigation into the complaints filed by Brinn and Ferguson, the suit continues, Chopp denied John’s appeal.

The suit requests compensatory damages of $75,000 and John’s immediate re-enrollment at the college, as well as the correction of John’s academic and disciplinary record.

Westphal declined to comment on the suit, and Gallagher did not respond to a request for comment. LaMar sent the following response via email: “The College believes that the suit has no merit and will vigorously defend the litigation. As you know, because of federal privacy laws, called FERPA [Family Educational Rights and Privacy Act], we cannot discuss the specifics of the case. We can tell you that the complaint does not fully and accurately describe the situation and the College will respond in Court shortly. The College is committed, and always has been committed, to providing all students with a fair process of adjudication in student conduct proceedings.”

“Ours is a very small community,” she continued. “We would urge you, as you write the story, to consider the effect this story may have on survivors who seek to report their assault ­­— it may dissuade them from coming forward for fear of being identified, and that would be regrettable.”