Lawsuit against Amherst College from expelled student offers window into sexual misconduct investigation and hearing process



Last modified: Friday, August 07, 2015

AMHERST — In a meeting room on the Amherst College campus in December 2013, a male and female student sat on opposite sides of a dividing screen. For nearly two years — since a night in the woman’s dorm room that she said started as a “hook up” and quickly turned nonconsensual — the pair had almost no contact.

But they met again, though unable to see each other through the screen, at a Sexual Misconduct Hearing on Dec. 12, 2013.

The audience present as the students relived the incident included three Sexual Misconduct Hearing Board members from other colleges, as well as four administrators, a professor and an attorney from Amherst College.

The transcript of the hearing shows that the two students could question one another’s witnesses — rather like amateur attorneys — but were not allowed to address each other directly. If either wanted to question something the other person had said, they typed their queries on a computer and Dean of Students James Larimore read them aloud.

Throughout the hearing, the man repeated that he was so drunk during the encounter that he did not remember anything. The woman explain that while “hooking up,” the man started making “cocky” statements about how he had also slept with her roommate, so she told him to stop and tried to get away. Eventually, she said, she went limp because she “just wanted it to be over.”

The male student in the case was found responsible for the assault and was expelled. The complaint against him was among those heard by what was then a new Sexual Misconduct Hearing Board, created in an overhaul of Amherst College’s sexual assault complaint and hearing process during the 2012 to 2013 school year. The new procedures called for the hiring of an external investigator to conduct interviews, collect other evidence and produce a report in the wake of a complaint.

The changes followed several highly publicized accusations from students who alleged that Amherst College had failed sexual assault victims, whose complaints were previously heard by a general Committee on Discipline that included Amherst College students and staff.

College officials promised the new system would be more effective and sensitive.

Administrators found the sexual assault complaint process being criticized again this spring, though — but not by alleged victims. In May, the man accused of the 2012 rape and later banished from the school filed a lawsuit in U.S. District Court arguing that he was wrongly expelled because the college’s investigation was “grossly inadequate” and the hearing “deeply flawed.”

He and the woman are identified in court documents by the pseudonyms John Doe and Sandra Jones.

The documents filed with Doe’s suit — which include a 146-page transcript of the 2013 hearing, down to every last “um” and “gesundheit,” as well as a written report put together by the investigator — provide a detailed look at the investigation phase that follows a sexual assault complaint, and what goes on behind the closed door of a Sexual Misconduct Hearing.

An outside investigator

Court records show that after Jones filed the formal complaint Sept. 28, 2013, she and Doe provided a list of possible witnesses to the outside investigator hired by the college: attorney Allyson Kurker of the Waltham firm Kurker Paget.

Kurker conducted separate interviews with Jones, Doe and four witnesses at the Lord Jeffery Inn in downtown Amherst on Nov. 11, 2013. She spoke to two more witnesses on the phone and obtained copies of text and Facebook messages before writing her report.

She presented the 34-page report at the hearing a month later with her “impressions” of her interviewees’ credibility, but did not recommend whether Doe should be found responsible or not.

Caroline Hanna, Amherst College’s director of media communications, declined to answer most questions posed by the Gazette about how the general investigation and hearing process in place for the 2013 case differed from the previous process — for example, whether the work conducted in the Jones / Doe case by the external investigator prior to the hearing would previously have been conducted by someone from the college.

“As you are inquiring about processes that are in part the subject of the lawsuit, I will have to decline responding to those for now,” Hanna said in an email.

Hanna did confirm that the members of the three-member hearing board are selected from outside the Amherst College community and are appointed for each particular case.

Regarding the practice of having a person serve as a go-between so the complainant and defendant do not have to directly question each other during the hearing, Hanna said that policy preceded the changes enacted in the 2012 to 2013 school year.

“At hearing, involved students have the opportunity to present their own account of the events to the hearing board and to pose their questions to anyone who provides information to the hearing board,” she said.

After considering the evidence presented, the hearing board decides whether to find an accused student responsible for violations of the school’s sexual misconduct policy. In the event of a violation, the board “will impose appropriate sanctions by selecting from the range of sanctions outlined in the Student Conduct Process,” according to a description of the process posted to the college’s website.

Saundra Schuster, a partner at the Ohio-based National Center for Higher Education Risk Management, said that colleges and universities across the country are struggling to come to terms with a dawning realization that current practices were “inadequate and inappropriate to address incredibly complex and personal issues of sexual assault adjudication.”

“I’m not a fan of hearing boards at all,” she said, calling the approach a quasi-public process because of how many people are involved. “It’s such a violation of both parties’ human dignity to expose them to that.”

But, she said, most colleges do still use the practice to decide sexual assault complaints. In her role as an advisor and trainer for administrators to these schools, she said, she encourages sensitive practices and thorough investigations.

Any school’s sexual assault complaint process is never going to be simple, she said.

“There’s no right way” to do it, she said, but she hopes to show institutions that there are better ways.

Lawsuit complaint, response

In the complaint, Doe’s attorneys — of the Boston firm Todd & Weld — argue that the college’s investigation was incomplete because Kurker did not try to obtain text messages that Jones allegedly exchanged with a friend after the incident. She also did not try to interview a man with whom Jones allegedly spent the rest of the night in her room, Doe argues.

When Doe obtained the text messages from both men in April 2014, he asked the college to reopen his case because he believed the texts showed that she was not in distress after the incident. The college refused, the suit states.

In a response to the suit filed July 20, attorneys for the college denied the allegations and refuted many of the plaintiff’s claims about the hearing process. The defendants are Amherst College, Larimore, President Carolyn “Biddy” Martin, Laurie Frankl, the college’s Title IX coordinator, and Susie Mitton Shannon, the former Title IX coordinator for students, and Torin Moore, assistant dean of students and director of residential life, who served as Doe’s advisor during the hearing process.

“The College’s disciplinary process was conducted with fundamental fairness, in good faith, and in full compliance with the College’s policies and the law,” Boston attorney Scott A. Roberts wrote in the response on behalf of the administrators. “And the College’s decision that it would not ‘reopen’ a disciplinary proceeding based on documentation that was presented for the first time several months after the appeals period had expired was not arbitrary, capricious, or discriminatory.”

The parties are due back in U.S. District Court in Springfield for a scheduling conference Sept. 8 before Judge Katherine A. Robinson.

The original judge on the case, Michael A. Ponsor, recused himself July 27. He did not give a specific reason, but cited a section of federal law that allows judges to take themselves off cases if their impartiality could be questioned.

Anatomy of a hearing

As colleges and universities struggle to find a fair and sensitive way to adjudicate sexual assault complaints, many have reconsidered the makeup of the boards that hear them.

Under the current Amherst College policy, complaints are heard by a board of three people “from the community, including the Five College Consortium” — but not from Amherst College. The members must have prior experience in, and complete annual training on, topics such as the dynamics of sexual misconduct and asking for and receiving “sensitive information.” It is not clear who conducts the trainings.

The college’s provost can conduct a hearing if a hearing board “cannot reasonably be convened,” the policy states.

According to court documents, the three board members who ultimately expelled Doe were Todd Porter, then the associate director of residential life at Mount Holyoke College; Araina Muniz, a hall director at Hampshire College; and Eric Hamako, program coordinator of the Office of Institutional Diversity and Equity at Smith College.

Muniz and Hamako did not return messages seeking comment, and Porter declined to be interviewed for this article.

Schuster applauded the fact that Amherst College can draw on trained staff from other universities, as their impartiality is less likely to be questioned and students won’t have to worry about running into their adjudicators later on campus.

“I think it’s great,” she said.

While some colleges, including Amherst, no longer have students serve on hearing boards, Schuster thinks students can be valuable board members if educated properly.

“They ask the best kind of questions,” she said. “They know the culture.”

Throughout most of the Sexual Misconduct Hearing involving Doe and Jones, there were between 12 and 13 people in the room. Schuster said hearings like that — with too many people, in her opinion — are common.

“I call that a party. It’s not the environment where I’m about to explain how someone put their hand down my shirt,” she said. “I call that a tribunal.”

Larimore, the Amherst College dean of students, chaired the hearing but did not participate in deliberations. Also there but not actively participating, according to the transcript, were Shannon, the administrator to whom Jones had first reported that she was raped, Lisa Rutherford, the college’s attorney, and Laurie Frankl, the college’s Title IX coordinator.

Jones’ advisor, Professor C. Rhonda Cobham-Sander, and Doe’s advisor, Moore, assistant dean of students and director of residential life, were present and could confer privately with them, but were not allowed to speak in the hearing. Doe and Jones were not allowed to have attorneys present, according to college policy.

Also participating in the hearing were Doe’s four witnesses: Doe’s former roommate, a friend, Jones’ former roommate, and a student who witnessed Doe and Jones kissing in the dorm’s common area.

Jones’ only witness at the hearing was L.R., a student activist for sexual respect who claimed Doe admitted the assault to her while asking for advice about what he should do — an allegation he denied.

Hearing process

At the beginning of the hearing, Larimore explained how the process would work and reminded everyone present that he would determine whether questions from the board and from Jones and Doe were relevant and would be allowed.

In accordance with Amherst College’s new policy to allow complainants and respondents to participate in the hearing without seeing each other, a divider was put up in the room, according to Doe’s lawsuit. The suit does not state whether it was Doe or Jones who asked for the divider.

Jones, who has a speech impediment, was also allowed to have a classmate read her statements and questions as she typed them on a computer, according to court documents.

Both students repeatedly asked for breaks to leave the room throughout the hearing.

First up in the hearing was Kurker, who summarized what Doe, Jones and the witnesses said in their interviews. She also explained that she questioned L.R.’s claim that Doe admitted to the assault, because Doe and his witnesses all stated that he did not remember the night at all.

The hearing board members, Doe and Jones were all allowed to question Kurker about her investigation and her thoughts on the content of the interviews.

Doe and Jones were asked to give opening statements, and then answered questions from the board and from each other. The process of the accuser questioning the accused — and vice versa — involved the students typing questions that Larimore read aloud.

Among the questions Doe and the board members asked Jones were inquiries about when the encounter became nonconsensual — right down to what specific sexual position they were in. Jones asked Doe, among other things, what his definition of “blacked out” was.

After Doe and Jones questioned each other, the five witnesses were brought in one-by-one to offer any statement they wanted, and then to be questioned by the students and the board.

Doe and Jones gave closing statements. In her statement — read by her assisting student — Jones said there was little discrepancy between her account and Doe’s, because Doe claimed not to know what happened that night.

“Regardless of whether he remembers the night or not, he is still forever responsible for the hurt he caused,” she typed.

Doe’s closing statement took an apologetic tone, though he denied doing anything wrong.

“I feel remorse for (Jones), the witnesses and everyone else involved in this process because it will never be pretty. I don’t doubt or dismiss (Jones’) feelings,” he said. “I am certain that it is out of my character to conduct myself in the ways that were alleged today.”

Due process

Schuster said that for decades, colleges and universities have tried to deal with sexual assault complaints by recreating court-like proceedings because they believe — incorrectly, she says — that due process must include a hearing.

But, she believes due process only means that a person must have a right to respond to allegations against him or her, which he or she can do through the investigation process if it is “thorough, reliable and impartial.”

Instead of a hearing board like that at Amherst College, Schuster advocates for a model involving civil rights investigators who are not building a case against anyone, but instead strategically working to find all the relevant information.

“I believe it’s the best way to protect both parties’ human dignity,” she said.

In that model, she explained, two specially-trained sexual assault investigators collect information and interview witnesses and involved parties, then collaborate to write a report.

At Amherst College, Kurker did not recommend a finding to the hearing board, but Schuster said she thinks its best to have investigators make a recommendation about culpability, since they were the ones who interviewed witnesses and know the case best.

“They have that 100-foot view,” she said.

Next, she said, the Title IX coordinator or a designee determines if the recommended finding is supported by the investigation and writes a decision agreeing with the recommendation or rejecting it — maybe seeking more fact-finding. The decision then goes to a higher official, maybe a dean or board, to confirm or veto, followed by an appeal process. This process also differs from Amherst College’s because there, the hearing board makes the finding of responsibility and assigns sanctions.

A college using this approach could also allow a student to request a hearing before a board if he or she did not agree with the dean’s decision, Schuster said.

“I’m encouraging schools to evolve, and telling them the jury of your peers thing is appropriate for criminal court — but not necessary and not necessarily humane” in sexual assault cases, she said.

Schuster’s recommendation also contrasts with the sexual assault complaint process at the University of Massachusetts Amherst, where the Student Conduct Hearing Board hears complaints. Unlike Amherst College, the board is made up of three to five specially trained students and staff, and it makes a recommended finding to the Dean of Students Office, which makes the final decision and levies any sanctions.

And while there is no external investigator, a “case administrator” from the Dean of Students Office investigates based on information provided by the involved students, and presents facts to the board. The students are allowed to have an attorney present, as Doe and Jones were not.

Daniel J. Fitzgibbons, a spokesman for UMass, said that Title IX — as well as past court rulings about sexual assault complaint processes — make it clear that due process for students means they are notified of accusations and allowed to review and refute evidence. Title IX requires colleges and universities to meet that standard, but does not say that they need to function like courts, even if the complaint involves allegations of criminal activity.

“It’s clearly not a criminal court. It’s a different process involved,” he said. “But there’s still a standard of evidence.”

Schuster said that while she prefers a process that favors investigators over hearing boards, she works with colleges to improve whatever process they choose.

“There’s no one-size-fits-all,” she said.

Rebecca Everett can be reached at reverett@gazettenet.com.


 


Daily Hampshire Gazette Office

115 Conz Street
Northampton, MA 01061
413-584-5000

 

Copyright © 2020 by H.S. Gere & Sons, Inc.
Terms & Conditions - Privacy Policy