Sunday, April 27, 2014

Student expelled for sexual assault alleges the college used him as a scapegoat because of his gender

As we wait to start a new era for COTWA that will bring it to a much larger audience, we wanted to bring this important development to your attention.

A former male student of Swarthmore College in Pennsylvania, who was expelled for sexual assault, sued the college alleging gender discrimination under Title IX. The college filed a motion to dismiss the complaint, and now, attorneys for the accused student have filed a memorandum in opposition to the college's motion to dismiss.

The memorandum filed by the accused paints a very disturbing picture that suggests the school used the plaintiff as a scapegoat to atone for perceived injustices against other female students. The memorandum explains: ". . .in its zeal to show the Department of Education and its critics that the College was determined to correct one wrong – its past unresponsiveness to female complainants – it committed another wrong against [the accused] based on his gender. He was a male accused of sexual misconduct at the wrong time and in the wrong place."

This case could have a significant ripple effect across the nation and ought to raise eyebrows among Swarthmore alumni. If the accused's argument is credited, it might even help stem the witch-hunt mentality that puts wrongly accused male students at risk across America.

According the memorandum filed by the accused, after he was accused of sexual assault by a female student, the school conducted its self-prescribed two-month investigation into her complaint. Swarthmore then closed the case without charging the male student with any misconduct.

But then, five months later, Swarthmore was subject to growing negative publicity for its perceived mishandling of sexual misconduct complaints brought by female students against male students. Shortly after two female Swarthmore students filed Title IX and Clery Act complaints with the Department of Education alleging, among other things, that the College fails to appropriately discipline male sexual offenders, the President of Swarthmore announced a new 'zero tolerance' policy for any form of sexual assault or abuse. . . . ."

The school suddenly re-opened its investigation of the accuser's case and proceeded to charge him with the most serious sexual misconduct charge, sexual assault, nearly two years after the date of the alleged incident. The school conducted the hearing during summer break, when none of the accused's peers would have been available to testify on his behalf, and when it would be virtually impossible to locate student witnesses who might have been able to refute the accuser's story that she was inebriated on the night of the alleged assault.

The accused's lawyers argue the following:
When viewed collectively, the above-cited allegations are more than sufficient to state a claim that the outcome of the hearing was both erroneous and motivated by John’s gender. In the wake of public criticism, the federal complaints, and the DOE investigation, the College rushed to judgment against John; found him guilty of serious sexual offenses two years after the alleged assault based on nothing more than “she said, he said” testimony; and meted out the most severe punishment in order to show the DOE and the College’s detractors that the College’s perceived past insensitivities to female complainants would no longer be tolerated as part of its new “zero tolerance” policy. 
There is precedent for the accused's argument. In Wells v. Xavier Univ., 2014 WL 972172, at *1, 5 (S.D. Ohio Mar. 12, 2014), the court found that male student’s claim that the university and its president made the plaintiff “into a scapegoat so as to demonstrate a better response to sexual assault” survived the university’s challenge on motion to dismiss. In Williams v. Franklin & Marshall College, 2000 WL 62316, at *2 (E.D. Pa. Jan. 13, 2000), the court denied a college’s motion to dismiss a Title IX claim, where plaintiff had been expelled for an alleged “date rape” and plaintiff alleged the college had “foment[ed] a witchhunt against male students on a totally unfounded belief that date-rape activities were rampant on campus, and that this crusade culminated in utterly false allegations of misconduct against plaintiff."