College settles lawsuit alleging improper expulsion for sexual assault

The college agreed last month to overturn its findings and sanctions in a 2013 case where a male student was expelled for committing sexual assault. This agreement to retroactively change the decision came after the accused student, known as John Doe, filed a lawsuit regarding the propriety of his expulsion process.

According to the college’s publicly-filed motion to dismiss John Doe’s lawsuit, both John Doe and the original complainant, Jane Doe, report three encounters in the spring of 2011: “one kiss, one sexual interaction without intercourse, and one act of intercourse.” According to the account of Jane Doe, who was a freshman at the time, the first two encounters were coerced. Jane Doe first reported John Doe in November 2012 while studying abroad. Following this report, the college opened an investigation, which included three separate interviews of John Doe and concluded in January 2013.

In May 2013, Jane Doe issued a formal complaint, which began the adjudication process. On May 30, each party made their respective case at a college panel. The next day, the panel reconvened and found John Doe responsible for sexual assault, sexual harassment and illegal entry. This finding was established, in accordance with college policy, on a preponderance of evidence standard; that is, the college found that it was “more likely than not”  that John Doe was guilty. Following its findings, the college issued an expulsion.

John Doe made an appeal to the college that summer that failed and, on January 23rd, 2014, filed a lawsuit against the college. The lawsuit argued that the adjudication process did not correctly follow protocol and that John Doe was a “whipping boy” that the college exploited to push aside the heavy criticism it was facing for its sexual assault policies. In the college’s original motion to dismiss this lawsuit, Swarthmore objected to ten separate points that John Doe’s lawsuit made about the expulsion, which included claims regarding the timing of the hearing, improper notification of John Doe and information not provided to John Doe. The motion to dismiss also addressed several more general claims made in the lawsuit.

This original motion to dismiss was filed by the college on March 21st. A separate, joint motion to dismiss the case was filed on November 12th after the two parties came to an agreement outside of court. This joint motion stated that after John Doe’s hearing and appeal “additional information” came out that “raises questions about the impartiality of the College Judiciary Committee Panel that heard John’s case.”  In light of these new facts, both parties agreed that the college should nullify the findings of the original panel. In an email, Dean of the Senior Class and Director of Student Conduct Nathan Miller stated that in accordance with the terms of the agreement, the college could not comment.

The joint motion noted that John Doe is currently enrolled as a senior at another undergraduate institution and “has no intention of seeking readmission to Swarthmore.” If John Doe wanted to re-enroll at Swarthmore, he would first have his case readjudicated under the college’s new procedures. In an email, Alisa Giardinelli of the college communications office, noted that since John Doe’s hearing, the college has replaced panels composed of students, faculty and staff with an “outside adjudicator, who is unaffiliated with our small Swarthmore community, and whose impartiality cannot reasonably be questioned.” The adjudicator is a former Pennsylvania Supreme Court Justice.

Mia Ferguson ’15, a lead complainant in one of the two standing complaints to the federal government regarding college violations of the Clery Act and Title IX, said that the college’s agreement to overturn its findings about John Doe’s guilt represent the underlying problems with the college’s process for handling allegations of sexual assault.

“What this case brings up is: is there a fair process, essentially? Does the school have a real system for adjudication? From my standpoint, I can’t say that I trust the school’s adjudication system in the slightest,” said Ferguson. “There are plenty of people on campus who are responsible for very similar crimes that the school hasn’t held them responsible for. … At the end of the day, the school had a responsibility to find not only him responsible, but all of those other perpetrators. And the school had a responsibility to explain their process to each and every student.”

Preston Cooper ’15 expressed support for the settlement, and said that it highlighted the conflicts of interest that occur when the colleges bear the responsibility of adjudication.

“This issue highlights an enormous problem — the college has a stake in the outcome of these proceedings… when the administration has such a strong influence over CJC hearings, it’s impossible to disentangle the proceedings from the college’s conflict of interest.” said Cooper, “I can’t stress this enough — the current system hurts both victims and the accused. While John was certainly treated unfairly, Swarthmore’s incompetence in handling this case hurt Jane as well.”

For Preston, these problems are deeply entrenched in the process of internal adjudication and the solution is not “internal reforms” but bringing sexual assault cases to the police and the justice system. “If the college is serious about bringing perpetrators to justice and also protecting the rights of the accused, it should let professionals handle these cases,” advised Cooper.

Ferguson believes that the problem needs to be addressed through a variety of reforms within the college. In particular, Ferguson mentioned four areas where the college needed to improve — prevention, investigation, adjudication and accommodation. In terms of prevention, Ferguson wants to see improved conversations on campus regarding consent, including “complex cases” and intimate partner violence.

College investigations, Ferguson said, need to be taken more seriously. An investigation, argued Ferguson, needs to be thorough, prompt and complete regardless of its adjudication. With regards to adjudication itself, Ferguson thinks that the system needs to have clearer and more consistently applied rules, with fewer “exceptional cases” so that each case can stand up to critical review.

“Typically exceptional cases fall on the side of the person who’s more wealthy, more rich, the white student, the student who speaks more in a liberal arts style,” said Ferguson.

Finally, while Ferguson believes that the college has improved accommodation in terms of one-on-one services, she thinks that the college needs to improve in several areas, including support for victims with PTSD who have difficulty attending class or traversing campus, and planning to ensure that victims do not have to take classes with their perpetrators. But before the college addresses these problems, Ferguson argued, they need to recognize that the problems exist.

“[Many] questions haven’t been answered”. Said Ferguson “Some of them are terribly difficult to answer, but they’re made a lot more difficult to answer when the institution claims that it’s not responsible for ever doing any wrong.”



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