College backlash and a difficult balancing act on sex assault
July 21, 2014 | Philadelphia Inquirer
Patricia M. Hamill, Partner of Conrad O'Brien and Co-Chair of the Firm's Complex Commercial Litigation Practice Group, is mentioned in the below Philadelphia Inquirer article referencing a Philadelphia case where a student is allegedly wrongfully accused and found guilty of sexual misconduct by a school. Read the full article below.
He called it consensual. She called it rape.
Their college, Swarthmore, acted decisively.
He was expelled.
Those spare facts make up the little that the parties can agree upon in a lawsuit working its way through federal court in Philadelphia.
The young man at its center - an honors student and former high school class president identified in court filings only as John Doe - says he was wrongfully accused and found guilty of sexual misconduct by a school eager to quash criticism that it did not take assault allegations from female students seriously.
"To correct one wrong - its past unresponsiveness to female complaints - [Swarthmore] committed another wrong against John based on his gender," his lawyer, Patricia M. Hamill, wrote in court filings. "He was a male accused of sexual misconduct at the wrong time and in the wrong place."
With universities across the country under pressure from victim advocates, government regulators and even the White House to respond more aggressively to sexual assaults on their campuses, several, including Swarthmore, are also facing lawsuits from male students who say the pendulum has now swung too far in the opposite direction.
And in a new wrinkle, many of those suing - including former students at St. Joseph's and Philadelphia Universities - are pursuing sex-discrimination claims under Title IX, the federal law better known for its role in protecting women's rights on college campuses.
Experts say the legal tactic is too new for them to determine whether it will stand up in court.
A federal judge in Philadelphia recently dismissed one male student's Title IX claims against St. Joseph's University, saying the plaintiff had failed to show that gender bias drove his expulsion for sexual misconduct.
A judge in Ohio, however, allowed a similar claim to proceed, saying the student might be able to demonstrate that the process set up to hear misconduct cases at Xavier University was unfairly stacked against men.
But the proliferation of these legal fights has sparked further debate on what part academia should play in policing a crime shrouded in conflicting accounts, often with no witnesses.
"We're constantly in a balancing act," said Melissa Wheatcroft, associate general counsel at Rowan University, "making sure victims are taken seriously and protected, and at the same time, protecting the rights of those who are accused."
Brett Sokolow, director of the Association of Title IX Administrators, bluntly warned in a newsletter this spring that some male students may have been improperly penalized.
"Some boards and panels still can't tell the difference between drunk sex and a policy violation," he wrote. "We are making Title IX plaintiffs out of these men."
Consider the case of Anthony Villar, who was finishing his junior year at Philadelphia University when he was expelled.
He sued the school in May, three months after a disciplinary board composed of one faculty member, one student, and one administrator concluded he had assaulted his ex-girlfriend sexually.
By all accounts, Villar and his accuser had dated for two years before the night of the alleged assault. Hours after they had sex, the couple dined at her parents' house and stayed to watch a movie. She invited him back the next day.
Only after Villar admitted to his girlfriend that he had cheated on her with another woman did she tell school authorities she had been raped, said his lawyer, William Spade.
The disciplinary board took less than 45 minutes to find Villar guilty of sexual misconduct and expel him.
Under school policy, Spade was barred from aiding Villar at the hearing. Acting on his lawyer's advice, Villar chose not to participate.
"The accused can't really participate meaningfully at a hearing like that if he's under police investigation," Spade said.
But if Villar's suit seeks to make a stand on behalf of men accused of sexual assault on college campuses, his accuser's lawyers have responded with equal breadth and force.
"Anthony Villar wants to set a precedent that any woman who comes forward and claims she is sexually assaulted can now be sued in federal court," they said in court filings.
Lawyers for Philadelphia University contend Villar fundamentally misunderstands the issues.
"Villar's lawsuit suggests that during an internal administrative disciplinary process, he was entitled to the rights of a criminal defendant," wrote school lawyers James A. Keller and Joshua W.B. Richards.
The university's very quarrel with that, Spade says, is exactly the problem.
Villar's complaints against the university's disciplinary process echo those voiced in several of the Title IX suits filed against schools such as Vassar, Duke, Columbia, and Delaware State.
All cite a lack of access to lawyers and, in some cases, the chance to cross-examine their accusers.
Others question the makeup of disciplinary boards, which are frequently composed of some combination of administrators, faculty, and students, who rarely have backgrounds in sexual assault, investigative technique, or the law.
Many of the suits take issue with a 2011 mandate from the U.S. Department of Education that campuses lower the standard of proof needed in sexual-misconduct hearings.
Colleges now use a "preponderance of the evidence" standard in sexual-misconduct cases, meaning that an assault was more likely to have occurred than not. In contrast, the criminal justice system requires proof beyond a reasonable doubt for a conviction.
But underlying the complaints common to each of the lawsuits, one question lingers: Given the potentially life-altering ramifications of a sexual-assault accusation, why have colleges taken on the responsibility of investigating in the first place?
"If universities are going to hear these cases and make conclusions about whether or not felony crimes occurred, they need to provide as much due process as possible," said Robert Shibley of the Philadelphia-based Foundation for Individual Rights in Education.
Assault victims can - and often do - report campus rapes to police. But for many, notifying college administrators of their assaults offers an alternative to the laborious and not always successful process of the criminal justice system.
Schools are not required to report rape accusations to police against a victim's wishes. But they must include any reports they receive to the federal government in annual crime statistics.
Department of Education guidelines and a series of U.S. Supreme Court decisions over the last 30 years cemented colleges' responsibility to investigate all reports they receive by casting failure to do so as a form of sex discrimination.
Within that framework, school administrators say they are doing their best in what has recently become an increasingly pressured environment.
In recent months, Stanford, Harvard, Columbia, and Dartmouth Universities have all faced student protests and federal complaints that they failed to adequately investigate or assist sexual-assault victims.
Earlier this year, President Obama commissioned a task force to investigate the problem and last month proposed new rules to "ensure that disciplinary proceedings . . . are prompt, fair, and impartial."
In April, the Department of Education announced it was investigating 55 colleges including Swarthmore, Temple, and Pennsylvania State University.
Few colleges have grappled as publicly with the issue as Swarthmore.
A highly selective college of 1,500-plus students in Delaware County, it became a flash point last year for anxiety surrounding the handling of sexual assaults on its campus.
The college's student newspaper published a series of articles featuring women who said they felt revictimized by the college's failure to take their complaints seriously.
Students scrawled complaints about sexual assault in chalk around campus. And when those protests disappeared, activists accused administrators of attempting to hide the problem from prospective students and their families.
A formal Title IX complaint filed that spring by Hope Brinn and Mia Ferguson, two students who said they had been sexually assaulted and then ignored, only stoked the outrage. They alleged that the college's inaction amounted to a form of discrimination against women.
It was in that environment that the student known in court filings as John Doe says he became a scapegoat.
Though his identity is known to the court, the man filed his suit against Swarthmore in January under a pseudonym.
His lawyer, Hamill, declined to identify her client or make him available for an interview, saying he hoped to avoid any further damage to his reputation. Hamill also declined to comment on the case.
Court filings, however, make clear the man's belief that Swarthmore's concern over its reputation ultimately led to his expulsion.
Less than two weeks after Brinn and Ferguson's highly publicized Title IX complaint went public, Swarthmore administrators informed the man, an aspiring law student from Durham, N.C., that they had reopened a complaint filed against him nearly a year earlier.
It centered on two sexual encounters he had with a classmate in 2011. While neither involved intercourse, the two later had sex, which the woman said she had initiated.
When she reported him to Swarthmore's administrators 19 months later, she said that the two earlier sexual encounters had been coerced.
The first time around, the school investigated for two months - interviewing both the accuser and the accused multiple times - before closing the case in January 2013 without filing disciplinary charges.
When the school reopened the case that May - six months after the woman came forward and two years after the alleged assaults occurred - administrators seemed determined to make an example of him, Hamill contends in the suit.
At his disciplinary hearing, members of the board were overcome with emotion as the woman testified, Hamill said.
When it was her client's turn to address them, one member interrupted his presentation to ask about the alleged victim's welfare, according to the suit.
Doe's accuser declined, through an intermediary, to comment for this story.
Hamill contends that in handling the case, Swarthmore departed from its stated disciplinary policies.
"The clear inference to be drawn from the panel's extraordinary conduct . . . is that the panel had predetermined that [she] was the victim and John was the victimizer," Hamill wrote. "John was the whipping boy that Swarthmore needed to demonstrate its own zero tolerance standard."
Swarthmore has denied those allegations and maintains that its disciplinary process complies with federal guidelines.
The college continues to examine its policies to ensure fairness to all involved, said Nancy Nicely, Swarthmore's vice president for communications.
In the last 15 months, the school has done away with the setup that led to Doe's expulsion.
Instead, a retired state Supreme Court justice hired by the school now hears all sexual-misconduct cases, rather than a disciplinary board. The college determines punishments for those found guilty.
"Swarthmore has worked tirelessly to . . . turn this college into a model of proactivity in preventing, addressing, responding to, and adjudicating sexual assault and harassment," Nicely said.
Still, the man's lawsuit has picked up some unlikely support - from Ferguson, whose Title IX complaint last year made her one of the campus' most outspoken victim advocates.
She said the school's past policies offered "decent grounds" for the legal action, regardless of whether he is guilty of sexual assault.
"The school handled it so poorly," she said. "At the end of the day, it's on the school for letting this lawsuit happen."
Under pressure for its handling of sexual-assault cases, Swarthmore College turned to an outsider to oversee them: a retired Pennsylvania Supreme Court justice.
The college last fall hired Jane Greenspan, who has decades of experience as a trial and appeals judge and who now works as a professional mediator and arbitrator.
"They wanted a neutral person, not connected to the college or the students," Greenspan said. "I just listen to them and try to make the correct decision, as I would in any arbitration."
Swarthmore previously used a panel of faculty, staff, and students to rule on the cases.
The Swarthmore job was Greenspan's first appointment by a college to preside over sexual-misconduct hearings. Experts say such models are rare but likely to become more common as schools look to satisfy concerns that they mete out justice fairly.
"One way or another, schools are going to professionalize it," said Brett Sokolow, president of the National Center for Higher Education Risk Management, based in Malvern. "They'll either do it themselves or more and more, they'll outsource it to firms like ours or to judges."
Sokolow said he has recommended for years that colleges exclude students from judicial boards in sexual-misconduct cases. Inclusion of students deters some victims from coming forward, he said.
Nearly two-thirds of area colleges that responded to questions from The Inquirer said students have seats on their boards. But some schools, including Drexel, said they were reconsidering that policy.
At Rowan University, students are not included on boards hearing sexual-misconduct cases.
"That is primarily to protect the confidentiality of the victim and the accused," said Melissa Wheatcroft, associate general counsel at Rowan.
To Swarthmore, Greenspan brings the in-depth knowledge of what standards, such as "preponderance" of evidence, mean. That's the standard colleges must apply to find a student guilty. It simply means more than a 50 percent chance the crime occurred.
She declined to say whether she agrees with the standard, but noted, "It's a very low bar."
Greenspan presides over the cases and determines guilt or innocence, but she doesn't impose the sanction - the school decides on that.
She declined to comment on Swarthmore's system.
"I know Swarthmore has worked very hard to get it right . . . with everyone's interest in mind, the rights of the accused and the victim," she said.
She also declined to discuss any of the cases she has handled or even provide a number, except to say there were a few.
Swarthmore hasn't committed to continuing to use an outside arbitrator. Its process, the college said, is under review.
"We continue to look closely at the array of best practices around the country for the fair, appropriate, and impartial adjudication of sexual assault and harassment cases," said Alisa Giardinelli, Swarthmore spokeswoman.