April 2014
SWARTHMORE, Pa. — On Feb. 22, in celebration of its sesquicentennial,
Swarthmore College proudly hosted “The Liberal Arts in Action: A Symposium on
the Future of Liberal Arts.”
In
what seemed an unrelated event, a month before, a former Swarthmore student
expelled by the college in the summer of 2013 filed a lawsuit in federal court
of the eastern district of Pennsylvania. The student, identified as “John Doe,”
was found guilty under campus disciplinary procedures of sexual misconduct.
(Pseudonyms were used to protect both the accused and the accuser.) His legal
complaint alleges that Swarthmore “failed to follow its own policies and
procedural safeguards” and violated his “basic due process and equal protection
rights.”
The
litigation was not mentioned at the high-minded, if self-congratulatory,
afternoon symposium. Yet the future of liberal education is closely connected to
John Doe’s assertion that in the course of expelling him Swarthmore trampled on
fair process—and to the willingness of the federal judiciary to examine it.
Liberal education is the culmination of an education for freedom. Among its
crucial components are the offering of a solid core curriculum, the promotion of
liberty of thought and discussion, and the cultivation of intellectual
diversity.
Another vital feature of liberal education consists of fostering an appreciation
of the principles of due process. They are principles free societies have
developed over the centuries to adjudicate controversies, establish guilt, and
mete out punishment in ways that justly balance the rights of those who claim
they have been wronged with the rights of those who have been accused of
wrongdoing.
In
cases involving serious accusations, due process requires a presumption of
innocence, settled rules and laws, timely notice of charges, adequate
opportunity to prepare a defense, the chance for the accused to question the
accuser, and an impartial judge and jury.
Although college disciplinary procedures have been roiling campuses for decades,
none of this was discussed at the Swarthmore symposium. Instead, the keynote
address, “The Role of the Arts in Liberal Arts Education”—delivered by Mary
Schmidt Campbell, Swarthmore class of ’69 and dean of the Tisch School of the
Arts at New York University—as well as the subsequent panel discussion on “The
Future of Knowledge” and the concluding panel on “Fostering a Democratic Society
Through Education,” were of a piece.
The
speakers—Swarthmore graduates who have risen to prominence in the world of
college and university administration—properly praised the importance to liberal
education of certain skills: questioning effectively; thinking critically;
weighing evidence and analyzing arguments; solving problems; seeing things from
a multiplicity of perspectives; taking the initiative; innovating and creating;
collaborating; and working across interdisciplinary boundaries.
Yet
with the notable exception of Tori Haring-Smith, president of Washington &
Jefferson College, who spoke compellingly about the vigorous measures adopted by
her institution to teach students the importance of listening to opinions
different from their own and of learning to live with the people who hold them,
the panelists spoke as if our liberal arts colleges are doing a bang-up job. The
only question they raised was how to extend to broader segments of the nation
the lessons of freedom and democracy that Swarthmore is purportedly already
teaching so well to its own students.
John Doe’s lawsuit gives a different impression of the school’s commitment to
the principles of freedom. He contends that 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, according to the
complaint, “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.
Approximately four months later, according to John Doe, Swarthmore suddenly
re-opened the case against him. The college did this, he maintains, in response
to public accusations—including a complaint filed with the U.S. Department of
Education by two Swarthmore female undergraduates—that the school mishandled a
number of sexual misconduct cases. And John Doe asserts that in the second round
of hearings, which culminated with his expulsion based on a finding that he had
merely “more likely than not” committed sexual misconduct, Swarthmore repeatedly
and egregiously violated its own rules for disciplinary procedures explicitly
set forth in the official student handbook.
John Doe’s lawsuit presents one of the nation’s finest small liberal arts
colleges acting in haste and panic, railroading a young man in order to convince
the public and the federal government that it had, in the words of Swarthmore
President Rebecca Chopp, “zero tolerance for sexual assault, abuse and violence
on our campus.”
Swarthmore, for its part, has filed a motion to have the John Doe complaint
dismissed. “The College believes that the suit is without merit and will
vigorously defend the litigation,” Swarthmore’s attorney Michael Baughman said
in a written statement. “The College is committed, and always has been
committed, to providing all students with a fair process of adjudication in
student conduct proceedings.”
A
trial court will determine the merits of John Doe’s allegations, but in light of
the sorry condition of due process at our colleges and universities, the charges
against Swarthmore are plausible.
For
example, in 2006, the Duke faculty and administration were quick to treat as
guilty three lacrosse players accused of rape by a black woman whom their
fraternity had hired as an exotic dancer. After a year-long investigation, the
North Carolina attorney general dropped all charges and took the remarkable step
of pronouncing the accused players innocent.
In
2010, a campus tribunal found University of North Dakota student Caleb Warner
guilty of sexual assault. The Grand Forks police department investigated the
case and not only declined to charge Warner but charged his accuser with making
a false report. Nevertheless, the university refused to reconsider its verdict.
Only when the Foundation for Individual Rights in Education stepped in a year
and half later was the school impelled to revisit the case and eventually
overturn the judgment.
Just a few weeks ago, Dartmouth Sexual Abuse Awareness coordinator Amanda
Childress asked at a University of Virginia conference on campus sexual
misconduct, “Why could we not expel a student based on an allegation?” To
clarify where she stood on the question, Childress went on to say, “It seems to
me that we value fair and equitable processes more than we value the safety of
our students. And higher education is not a right. Safety is a right. Higher
education is a privilege.”
Safety, however, is not a right. It is a goal. Due process is a right. Moreover,
history has shown that honoring it is the best way over the long run to achieve
the greatest amount of safety and security for all.
John Doe’s account of his encounter with Swarthmore disciplinary procedures
suggests the invidious effects of Ms. Childress’s reasoning—and of allowing the
verdicts of pseudo-judicial proceedings to stand without legal review. An honors
student in high school (with an excellent record in college) who chose
Swarthmore over other elite schools because his parents met and married there,
Doe is now effectively blackballed from higher education. He had completed his
junior year when the school abruptly ordered the second investigation. After
being expelled, he inquired about admission to some 300 colleges, all of which
told him that Swarthmore’s verdict rendered him ineligible for transfer to their
school. Of the 19 colleges that didn’t have such bright-line rules, 18 required
disclosure. Only one of those accepted him—and required him to enroll as a
junior.
This case occurs in a context in which our colleges and universities have
aggressively eroded due process protections for those accused of sexual
harassment and sexual assault. 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.
Peter Berkowitz, a graduate of Swarthmore College with a major in English
literature, is a senior fellow at the Hoover Institution, Stanford University.
His writings are posted at www.PeterBerkowitz.com.
Realclearpolitics, February 28, 2014.
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