College asks judge to dismiss expulsion suit

The James A. Byrne Federal Courthouse in Philadelphia.
The James A. Byrne Federal Courthouse in Philadelphia.

The college has fired back in its first full response to a lawsuit filed January 23 by an expelled student. This Friday, the college filed a motion to completely dismiss the complaint filed by John Doe (a pseudonym used by the student), which alleged that the college expelled John to “demonstrate its new ‘zero tolerance’ standard” following Title IX complaints filed by students last spring.

The original complaint, filed in the Eastern District Court of Pennsylvania, claimed that John was “a male accused of sexual misconduct at the wrong time and in the wrong place,” and, as such, that the college violated his Title IX rights by affording “varying rights to women and men.”

In its 39-page motion to dismiss this complaint, which is available on the Phoenix website, the college argues that John offers “no facts at all showing any discrimination,” neither “particular facts” nor “particular circumstances suggesting gender bias,” and as such the case does not state a gender bias claim under Title IX.

Rather, calling John’s Title IX complaint “hyperbole,” the college asserts that “this is a simple breach of contract case,” which, it concludes, has “no basis.” “At the end of the day,” the college writes in the motion, “he simply thinks that the panel should have believed him and not Jane Doe. That does not establish a breach of contract.”

The school asserts that John’s claim that he was turned into “the whipping boy that Swarthmore needed” is “supported by no particularized facts whatsoever.” Thus, the school argues he can claim neither an erroneous outcome nor selective enforcement, the two types of Title IX claims established by legal precedent.

In response to John’s claim that the college’s policies “afford varying right to women and men as in virtually all cases of alleged sexual misconduct at Swarthmore, the accused student is a male and the accusing student is a female,” the college invokes an argument of proportion: “If women complain of sexual harassment or sexual violence committed against them by men more often, then necessarily, men will more often be subjected to a university’s disciplinary proceedings [sic].” This is not and cannot be read, the suit continues, as evidence that “the outcome of these proceedings is impermissibly motivated by gender.”

As such, it argues, the Title IX complaint is grounded in “baseless notions of conspiracy” and John’s case amounts to “a matter of contract law.” Citing Supreme Court of the United States rulings and Pennsylvania laws, the college asserts that “a plaintiff challenging a private college’s decision to expel him must show that the college failed substantially to comply with its policies and procedures.”

The suit argues that to show a breach in contract, John would need to “plead and prove a substantial deviation from the school policies and procedures [sic].” The motion goes on to define a substantial deviation from the Student Handbook as “one that might have affected the outcome of the disciplinary hearing.”

“Even accepting all of the allegations in the Complaint as true,” the college writes, “none of them constitutes a substantial deviation from Swarthmore’s Student Handbook.” Taking the ten violations claimed by John in his complaint, the suit responds to each one in turn by reading the events into the Student Handbook.

In response to the first alleged violation, that the college re-opened its investigation after sixty days, the college responds that John is “conflating two sections of the Student Handbook – the Title IX investigation […] and the Judicial Procedures.” The motion explains that the Student Handbook requires a Title IX coordinator to conduct an investigation that is, quoting the Student Handbook, “factual in nature and will not make a finding as to the student’s guilt or innocence, which is reserved exclusively for a Dean’s Adjudication or the College Judiciary Committee Panel hearing the case.” While this investigation, it explains, must be completed in sixty days, disciplinary proceedings are a “distinct and separate” process that the accusing student has “the option, but not the obligation” to pursue “at any time thereafter.”

In response to the complaint that former Associate Dean for Student Life Myrt Westphal, who served as John’s observer prior to the hearing, was not present at the hearing, the college argues that there is “no prohibition from one person serving the Observer’s role before the hearing, and a different person at the hearing.” At the hearing itself, the motion says, the Observer position was filled by Vice President for Facilities and Services C. Stuart Hain, who was mentioned by name in the motion. “Even if having two individuals fill these roles was a technical departure from the Student Handbook,” the college writes, “it was not a substantial one that could have changed the outcome in any way.”

The college took a similar tack to each of the other violations, arguing that either the events described in John’s complaint fell within the bounds of the Student Handbook or that they were not substantial deviations from its policies. In response to claims that the college’s use of a “preponderance of evidence” standard, the college sticks to the standard outlined in the “Dear Colleague” letter issued by the U.S. Department of Education.

Following the day-long hearing, held on May 30, 2013, the college found that John was “more likely than not” guilty of sexual assault, sexual harassment and illegal entry. The college notified John of this in a letter dated June 3, and on June 7 he appealed, citing six “procedural irregularities” that he argued “required review of the panel’s decision.”

The motion to dismiss attached President Rebecca Chopp’s letter rejecting John’s appeal, dated July 16. Chopp determined that “none of the alleged procedural deficiencies identified” by John “constitute violations of Student Handbook,” and, as such, she was “therefore compelled to deny” the request for appeal. The motion affirms Chopp’s defense of the hearing.

In conclusion, the motion argues that John’s case was “fully and fairly considered” by the College Judiciary Committee (CJC) and, as such, there is “no basis for interfering with the panel’s findings.” Given this conclusion, the motion requests that Judge Stewart Dalzell throw out the case.

Now that the college has filed the motion, John, who is being represented by Conrad O’Brien PC, has three weeks to file a response to the motion to dismiss, as well as the opportunity to amend his original complaint to address weaknesses brought out by the college’s motion. The college, represented by Pepper Hamilton LLP, will then be able to respond again.

Attached to the motion are seven documents, including the letter Jane Doe’s boyfriend sent to John and his response, the “Dear Colleague” letter, Myrt Westphal’s email to John informing him of his hearing, the original and revised charges filed against John, the letter informing John that he had been found “more likely than not” responsible of sexual assault, sexual harrassment, and illegal entry and Chopp’s letter rejecting John’s appeal


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