Plaintiff responds to college in ongoing legal battle

On Monday, lawyers for an expelled student filed a response to the college’s motion to dismiss their case, rearticulating their original claim that the college is guilty of gender bias and failure to uphold a contract. Last month, the college filed a motion to dismiss the lawsuit filed in February by the student — known by his pseudonym John Doe — who was expelled for sexual assault last spring, claiming that the student’s complaint had “no facts at all showing any discrimination.”

The Phoenix has made the response available here.

Doe’s lawyers begin the response by chiding the college for “violat[ing] the Rules of Civil Procedure” and a number of “inapposite” remarks (the college, they hint, should “attack those claims when procedurally appropriate,” quoting another case). The response does not avoid challenging the interpretation of the email offered in the motion to dismiss, calling the college’s reading “completely misplaced.”

In a letter that Jane Doe’s boyfriend wrote to John Doe after the alleged sexual assault, the boyfriend claims that John’s behavior towards Jane Doe, his accuser, is “tantamount to rape.” (Jane Doe is also a pseudonym.) But in pointing at John’s response, which reads in its entirety “I read your message, and I agree with it. I also called [my girlfriend] last night (around 2:00 AM, my time) letting her know what happened,” the response to the motion to dismiss accuses the college of “disregard[ing] the rest of the email, which focuses on the boyfriend’s plan to cause John ‘pain’ by telling John’s girlfriend” of his infidelity. The email exchange in its entirety is available here.

The 48-page response (28 pages longer than the 20 allowed) goes on to assert that the original complaint does, in fact, claim both Title IX violations and a breach of contract, and thus should proceed to discovery.

Discovery is a trial phase in which Swarthmore will have to make available any information “reasonably calculated to lead to admissible evidence” that the college was “selectively enforced its policies and procedures.” The response filed complains that Swarthmore is trying to preempt discovery by introducing documents, such as the email from Jane Doe’s boyfriend to John Doe, and that they are “inappropriate” given that “Swarthmore never refers to them in its legal arguments” (emphasis removed).

If the college concedes and allows the case to move to discovery, it will require that Swarthmore hand over documents related to the trial and that Swarthmore administrators give sworn testimony. The degree of depth allowed in discovery is currently at the center of legal contention in a number of court cases across the country. If Swarthmore’s case proceeds, it could have ramifications in building up legal precedent.

The response argues that the District Judge presiding over the case, Stewart Dalzell, should allow the case to proceed to discovery because it meets the criteria for both Title IX violations and a breach of contract case. The criteria for a Title IX violation, as established by previous cases, are erroneous outcome, deliberate indifference, selective enforcement and archaic assumptions. John Doe alleges the first three violations, as well as a violation of Title IX’s mandate that disciplinary hearings accord both parties “a fair and equitable process.”

To claim erroneous outcome, the response claims, citing the landmark Yusuf v. Vassar, that John Doe must “allege particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding” as well as “particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.” In response to the first requirement, the response alleges that the CJC “Panel disregarded every fact and circumstance that called into serious question the veracity of the accusation,” and “disregarded procedural rules so as to favor Jane,” based on “nothing more than ‘she said/he said’ testimony.”

The response situates the alleged erroneous outcome in the context of gender-bias by positioning it amidst the Title IX complaint filed against the college in February and “growing negative publicity for its perceived mishandling of sexual misconduct complaints brought by female students against male students.” While the college claims in its motion to dismiss that it did not publicize the results of the proceedings, and thus attempted to dodge the claim that it punished John “in order to show the DOE [Department of Education] and the College’s detractors that the College’s perceived past insensitivities to female complainants would no longer be tolerated,” the response alleges that the college did not need to publicize the expulsion in order for to take credit with the DOE.

The response continues by citing transparency on the part of the college. “[A]s the Student Handbook makes clear,” it says, “the College sends a ‘public summary’ of each case (excluding names of the parties and other specific identifying information) to the College’s newspapers and posts the summary outside the Dean’s Office, where it is on view for Swarthmore students, faculty, staff, and visitors.” In February, Dean of the Senior Class and Judicial Affairs Coordinator Nathan Miller referred to the posting of notices as “an outdated practice (not policy)” to be replaced by “an improved model of an annual report that will reach the entire community”, which the Phoenix expects to receive soon.

In response to the claim of deliberate indifference, the response singles out President Rebecca Chopp, who, it alleges, citing legal precedent, “had authority to institute corrective measures” and “had notice of and was deliberately indifferent to, the [college’s] misconduct.” The response claims, and the college has accepted, that John appealed directly to Chopp what he claimed were “the College’s violations of its own policies and procedures for disciplinary proceedings and the Panel’s failure to conduct a fair and equitable hearing.”

Although the Student Handbook “does not contain a provision allowing for the non-appealing party to review, much less submit a response to, the appeal,” the college, the response alleges, gave a copy of the appeal to Jane and requested a response, which, the response alleges, she submitted and “presumably was considered by Swarthmore’s President in her decision.”

Chopp denied the request four days after the DOE’s announcement of its investigation of Swarthmore according to documents the college attached to its motion to dismiss the complaint, and the complaints allege “that Swarthmore discourages female students from filing sexual misconduct complaints.” The response thus asserts that John should, “be permitted to prove his claim through discovery.” The response cites an ongoing case, Wells v. Xavier University, in which the judge denied the motion to dismiss a deliberate indifference claim because the president of Xavier “allowed the defective hearing to stand,” quoting the denial, “with the goal of demonstrating to the OCR that Xavier was taking assault allegations seriously.”

The response also brings up the selective enforcement violation of Title IX, which requires that “the [educational institution’s] actions against [the male plaintiff] were motivated by his gender and that a similarly situated woman would not have been subjected to the same disciplinary proceedings.” The college, in their motion to dismiss, argued that “[i]f 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.”

In his response, John tries to turn this logic back on the college: “Because female students at Swarthmore rarely (if ever) face charges of sexual misconduct, they are not disadvantaged by the College’s sexual misconduct policies that place onerous burdens on the accused students and deny them rudimentary due process safeguards.” As the “accused (male) is disproportionately affected” by the sexual misconduct proceedings, the policies “disproportionately adversely affect male students.”

The fourth and final violation of Title IX alleged by John is failure of due process. In Swarthmore’s motion to dismiss, they wrote that Title IX does not provide “a private right of action for alleging due process violations.” John’s response to this is conclusive: “Swarthmore is incorrect.” The DOE’s Title IX regulations are quoted in the response as “requir[ing] all higher educational institutions to have sexual assault policies and procedures that,” it quotes, “accord[] due process to both parties involved.” The response cites an email sent by Chopp to the student body and shared with the public, in which Chopp writes that “the U.S. Department of Education clearly mandates a fair and equitable process for both complainants and respondents,” and also that the college must “adhere to due process” (emphasis removed from quotation).

In its motion to dismiss, the college argued that its procedures “are either expressly recommended or compelled by the Department of Education,” citing the Office of Civil Rights’ “Dear Colleague” letter. The response to this motion asserts that the DOE terms the letter a “significant guidance document,” without “the full force of law,” and as such is not binding on Swarthmore. Given this, the response continues, the college fails to meet requirements in the Sexual Harassment Guidance, referenced by the “Dear Colleague” letter, which states that “sound and supportable decisions” are rooted in “[p]rocedures that ensure the Title IX rights of the complainant, while at the same time according due process to both parties involved.”

The response claims three violations of due process. The first is the prohibition of “students accused of sexual assault from questioning their accuser at the hearing.” The second and third violations are the interpreted inability of John to seek legal counsel and the “preponderance of the evidence” standard mandated in the “Dear Colleague” letter. “John — a college student with no legal training” was told, according to documents submitted by the college, by then-Associate Dean of Student Life Myrt Westphal that “all CJC proceedings are confidential and should not be shared with the general public, except your family, therapist […] and/or support person for the hearing.” It excluded, the response emphasizes, legal counsel. While the college’s motion to dismiss claims claims that “the Student Handbook permits parties involved in disciplinary hearings to consult with counsel,” the response counters that this is buried in language that is “cryptic and opaque.”

In addition to the Title IX violations, John also argues that the contract he had with Swarthmore College, defined by the Student Handbook and the College Bulletin, was violated by the college in a number of procedural errors. The college claimed, in its motion to dismiss, that John must show a “material” breach of college procedures which “might have affected the outcome” of the proceedings. “Swarthmore is incorrect,” the response counters, arguing that the standard for a breach of contract case is simply “where the [private educational] institution ignores or violates portions of the written contract.” If “the terms of a contract are ambiguous,” it continues, citing legal precedent, “any contractual ambiguities are construed against the drafter of the provision,” in this case, the college.

The response alleges that the college committed eight contractual violations: a failure to “conclude its investigation within the mandated 60-day period,” a failure to “conduct the hearing when classes are in session,” a failure to “disclose the evidence to be used against John at the hearing,” allowing “an undisclosed witness to testify at the hearing,” failing to “provide John with adequate advice from an impartial observer,” failing to give John timely notice of “the actual charges against him,” failing to “ensure that Jane Doe was present at the hearing” and failing to “ensure that the panel did not consider evidence of John’s past sex history.”

The bulk of the argumentation regarding the contractual obligations is a strict reading of the Student Handbook, arguing that “Swarthmore is wrong about what the Student Handbook says” in a number of cases. If a contract fails to be “clear and unambiguous,” the response argues, then “the provision is construed against Swarthmore as the drafter of the contract,” for, citing legal precedent, “the law does not assume that the language was chosen carelessly.” The response states, “As drafter of the contract, Swarthmore could have included qualifying or limiting language, but it did not do so. It is bound by the language it chose.”

The college has until April 28 to file a two-page reply to John Doe’s response.

Correction (May 1, 12:56 a.m.): A previous version of this story stated that though the student handbook mandated the college send a “public summary” of each CJC case to the campus newspapers, the Phoenix had not received any such summaries and referred to the practice as exhibiting an “as-yet-unseen level of transparency” on the part of the college. Dean of Students Liz Braun told the Phoenix that she did send such summaries, though for a time the papers did not receive them for unknown reasons. Last year, she said, she arranged meetings with Phoenix staff at which she planned to provide the summaries, but Phoenix staff “never showed up for a single meeting and so did not receive the public postings last year.” We sincerely apologize to the campus on behalf of last year’s editors.