“Why could we not expel a student based on an allegation” of serious sexual misconduct?” asked Amanda Childress, the Sexual Assault Awareness Program coordinator at Dartmouth College. As posed, the question is aspirational. But it looks like some colleges have adopted practices that approach Childress’ aspiration.
Swarthmore College seems to be one of them. Swarthmore grad Peter Berkowitz reports on a lawsuit filed against Swarthmore by “John Doe,” whom that institution recently expelled for alleged sexual misconduct. In his lawsuit the student alleges:
19 months after three separate consensual sexual encounters—a kiss, sexual conduct not including sexual intercourse, and sexual intercourse—a fellow student reported to Swarthmore the first two and claimed she had been coerced. The accuser offered no physical or medical evidence, and no police or campus safety reports. After a two-month long investigation, Swarthmore appeared to conclude the matter without taking disciplinary action.
That sounds like justice. The lengthy delay between the encounters and the complaint, the absence of a police or campus safety report, and the absence of physical or medical evidence all suggest that the complaining student’s charge was insufficient to justify disciplinary action under any reasonable standard.
But then, two female Swarthmore undergrads complained to the U.S. Department of Education that the school mishandled a number of sexual misconduct cases. According to “John Doe’s” complaint, this led to a second round of hearings that culminated with his expulsion.
The expulsion was based on a finding that “John Doe” had “more likely than not” committed sexual misconduct. According to the court complaint, Swarthmore’s handling of the matter during the second round repeatedly and egregiously violated its own rules for disciplinary procedures explicitly set forth in the official student handbook.
Swarthmore’s “more likely than not” standard isn’t a just basis for expelling a student and jeopardizing his chances of completing higher education (after his expulsion, 300 colleges told “Doe” he was ineligible to transfer because of Swarthmore’s verdict). Indeed, in the hands of college administrators, Swarthmore’s standard approaches the one Childress advocates.
Without the support of witnesses, without a contemporaneous complaint, and without physical or medical evidence, what evidence supported “John Doe’s” expulsion 19 months after the alleged incidents? Not much more, one suspects, than her accusation.
To be sure, in civil litigation (as opposed to criminal cases) a jury can find the existence of sexual harassment based solely on the allegations of the plaintiff if, after hearing all of the evidence, the plaintiff’s testimony causes the jury to believe that, more likely than not, the harassment occurred. But in civil litigation rigorous procedures, including pre-trial discovery, protect a defendant’s right to counter a plaintiff’s allegations.
In civil litigation, moreover, there is no do-over because someone has complained to a government agency. And in civil litigation, the adjudicatory body isn’t trying to convince left-wing ideologues in the federal government that, in the words of Swarthmore President Rebecca Chopp, it has “zero tolerance for sexual assault, abuse and violence on our campus.” Nor, in civil litigation, do administrators who themselves may be feminist ideologues routinely serve as fact-finders.
Civil litigation, in short, is about trying to achieve justice for the parties, not fulfilling a feminist agenda or sending politically correct messages to federal bureaucrats.
Over and over, colleges and universities have transformed disciplinary procedures into kangaroo courts that appear to operate on the assumption that an accusation creates a presumption of guilt and the burden is on the accused to prove his innocence. Due process is equally offended, it should not be necessary to add, when universities cover up for star athletes accused of sexual misconduct.
For the sake of genuinely liberal education, faculty and administrators must get out of the business of investigating the most serious forms of sexual misconduct, particularly sexual assault. Professors and university officials must be educated to recognize their woeful lack of the expertise necessary to properly gather and analyze evidence, establish guilt, and ensure fairness for the accuser and the accused. And they should be taught to promptly advise all students who believe they have been sexually assaulted to report their allegations to the police.
And as an indispensable element of their obligation to teach the principles of freedom, colleges and universities must be persuaded to restore to disciplinary procedures that they rightly conduct the presumption of innocence—a cornerstone of justice—and all the ancillary protections that follow from it.