The Hunting Ground and UNC

Any fair-minded observer would already have recognized The Hunting Ground (broadcast tonight on CNN, the “most trusted” name in news) as propaganda. Emily Yoffe’s Slate investigation exposed the film’s extraordinarily misleading treatment of a case at Harvard Law. Stuart Taylor did the same for how the film discussed a case at Florida State. Ashe Schow caught a staffer affiliated with the film doctoring film-related Wikipedia entries. And an e-mail from one of the film’s producers, Amy Herdy, featured Herdy confessing, “We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side.”

From the standpoint of someone like Herdy, the story told by another Hunting Ground protagonist, former UNC student Andrea Pino, is ideal. Because Pino never reported her alleged assault to police, and identified neither her alleged assaulter nor anyone else in her story, the UNC accuser’s narrative is unfalsifiable. And she clearly is a believer in the film’s storyline: in her telling, nearly 50 percent of the women in her dorm were sexually assaulted in either their first or second year at school, a rate that far exceeds even the Obama administration’s wild claims.

Pino says that in 2012, she was violently raped—leaving her bloodied—at an off-campus party by another student, whose identity she didn’t know and who she never saw again. (How, therefore, she knew that her alleged attacker was a UNC student remains unclear.) Even though she was allegedly left bloodied by her attack, no one else at the party seems to have noticed what happened to her. (Note the similarity to the bloodied “Jackie” in Rolling Stone, whose wounds party attendees and friends likewise failed to notice.) Pino reported her attack neither to the Chapel Hill Police nor to UNC (the latter at least in part because friends discouraged her from doing so), though since she couldn’t identify her attacker, who might not have even been a UNC student, it’s not clear how UNC could have adjudicated the case anyway.

Pino’s story is one of several campus rape narratives targeting institutions like Yale and Amherst and Occidental, produced by a loosely connected network of activists first identified (ironically, given its generally terrible coverage of this issue) by the New York Times. These narratives differ in specifics and location, but have basic similarities: the attacker is not identified, the attack itself is often oddly incidental to the narrative, and the focus is on other parties—one or more employees of the institution, sometimes along with the accuser’s friends—who behaved in an unfathomably horrific fashion.

The villain of Pino’s campus rape narrative is an unidentified UNC academic, who allegedly told her that she was “lazy” in a discussion after the alleged assault. But the specifics of who made the “lazy” comment, and under what circumstances, have varied widely.

Here’s how she portrayed it in an essay for the Huffington Post:

I went to Academic Advising to ask about dropping a class and told the advisor that I didn’t need the course and was dealing with a difficult personal trauma.

“It’s just a ten-page paper. You’re just lazy, aren’t you?”
“I’m going through a lot.” (I was raped, please let me tell you.)
“It’s March — everyone is going through ‘a lot.’ If you can’t handle Carolina, then say it.”

Yet here is the same vignette, as paraphrased by the pro-accuser reporter Allie Grasgreen in Inside Higher Ed:

After being raped at an off-campus party in March 2012, Pino felt let down by the people and policies that were supposed to protect her (an academic adviser told her she was lazy when her experience impacted her performance in the classroom; other students told her reporting the rape wouldn’t do any good; her resident assistant wasn’t supportive).

In this version, the academic administrator who offered the “lazy” comment seems to have known of her rape allegation. The portrayal by pro-accuser Katie Baker of BuzzFeed is similar: “an academic advisor had called her ‘lazy’ for seeking medical withdrawal from classes due to assault-related post-traumatic stress disorder.”

And here’s Pino, in her own words, offering a completely different rendition of the “lazy” comment, to ESPNW in a column labeling her one of two “heroes”:

When I went public, I was told I was creating a hostile environment at UNC. When I explained to a professor what was happening and how it was affecting my grades, I was told I was lazy, and it was suggested that maybe I couldn’t handle Carolina. I dropped that class. Then I dropped 11 more classes after that. I’m still not an official graduate.

So here, the “lazy” comment came from a “professor,” not an academic administrator, and this professor not only was aware that Pino’s claimed victim status, but was aware of her campus activism. The dropping of 12 classes, moreover, would suggest a span of either two or three terms in which every course was dropped.

To the best of my knowledge, no reporter who has written about Andrea Pino’s tale has ever asked her to identify the unnamed academic administrator/professor who told her she was lazy after hearing of her unidentified trauma/rape/anti-rape campus activism.

Perhaps there is an unnamed UNC academic administrator/professor who’s as callous as Pino has portrayed him or her. That said: any academic administrator or professor calling a student “lazy” to her face at a politically correct institution such as UNC stretches believability. But given how extraordinary this alleged behavior was—a “lazy” charge in response to a rape claim or clear emotional trauma—wouldn’t at least one reporter have wanted to get the other side of the story? None, to date, have done so—and it’s no surprise that The Hunting Ground filmmakers demonstrated scant interest in checking into Pino’s tale.

Unlike the film’s Harvard Law or FSU protagonists, Pino’s story, again, can’t be falsified. But her inability to offer a consistent portrayal of her central vignette—coupled with the filmmakers’ clear bias—should raise grave doubts about her credibility.

Embarrassing Filing from Amherst

The Kafka-like case at Amherst now proceeds, after the college filed a motion essentially requesting the dismissal of all claims. (I’ve written about the case previously at Minding the Campus.) A quick summary: Amidst a campus frenzy about sexual assault, an exceedingly weak case was filed against an Asian-American student in fall 2013. The accusing student in the case (who I’ll call “AS”) at the very least misled the college investigator about the existence of contemporaneous text messages that contradicted the version of events that she told throughout the case, and misled the potted-plant disciplinary panel about the messages’ substance. Denied this critical evidence, Amherst found the accused student guilty of sexual assault and kicked him out of school; when the key text messages were discovered months later, the college said this information came in too late.

Two central takeaways from Amherst’s filing from a few weeks back, which you can read here:

(1) The college should be embarrassed by the arguments its outside counsel offered. In virtually any circumstance other than this, any institution of higher learning—much less an elite liberal arts college such as Amherst—would never express indifference to the truth, or suggest that the investigator need only to half-heartedly “try” to obtain important data, or dismiss as invalid the experiences of students of color on campus. That Amherst’s motion expressed such sentiments reflects a college whose panicked response to sexual assault allegations has caused it to lose its way.

(2) The filing suffers from a seemingly fatal flaw: While chastising lawyers for the accused student for allegedly seeking to “retry [the] disciplinary action,” Amherst’s filing does just that. The college in several ways impeaches its own investigator—and on one front implicitly impeaches its own hearing panel. The college also makes claims about the veracity of the accused student (who I’ll call “JD”) that the reports of neither the investigator nor the disciplinary panel offered. Since through this tactic Amherst has effectively conceded that the facts are in dispute and the reports of neither its investigator nor the disciplinary panel can be wholly trusted, the case should go to a jury. Whether that will happen, given the judge assigned to the case (author of a very troubling opinion regarding a case at UMass), remains unclear.


Amherst’s basic argument is that under its procedures, the college had no obligation to look for exculpatory evidence, or to meaningfully challenge AS’s version of events in any way; and therefore a federal court has no authority to reconsider the college’s judgment. It seems hard to believe that in any other capacity indifference to the truth would serve as a legitimate interest for a school like Amherst.

Text Messages

The heart of this case, AS’s contemporaneous text messages, contradicted her story in multiple respects. Amherst struggles to develop a consistent response to handling the text-message issue (other than to minimize it). The college’s four strategies were:

(1) Demand utter deference. In a sharp departure from its answer to JD’s complaint, Amherst’s motion largely avoids the indefensible claim that the text messages aren’t important to evaluating AS’s (lack of) credibility. Instead, the college argues that a tradition of “judicial reluctance to intrude on internal decisions by private colleges” means the court shouldn’t second-guess the conclusion of the disciplinary panel. “The evidence presented to the hearing board supported its finding,” the college’s finding concludes. Translation: The disciplinary panel got the decision right, because it didn’t have access to the key evidence in the case; and the only issue before the court is whether the panel followed procedures and made a plausible decision based on this critically incomplete evidence package.

(2) Explain that Amherst’s procedures don’t really care about exculpatory evidence. It’s true that Amherst’s investigator, Allyson Kurker, didn’t uncover the key evidence in the case. But that’s OK, according to Amherst’s outside counsel, because under the college procedures, all the investigator has to do is “try” to obtain key evidence. And Kurker satisfied her burden, according to Amherst, because she once asked AS about whether she had any relevant written evidence, and didn’t follow up after AS misled her—even though AS herself testified in the hearing about having texted people on the night of the incident. That AS misled the investigator (and the hearing tribunal) is irrelevant, since Amherst, the college’s outside attorneys explain, is not “charged with seeking to obtain” exculpatory evidence.

(3) Celebrate finality. Amherst channels a line of argument sometimes seen among ardent opponents of judicial review in death penalty cases: As “Amherst and all students who participate in sexual misconduct proceedings have a justifiable interest in the finality of those proceedings,” the college’s new policy prohibits introduction of “new evidence after a disciplinary proceeding has finally concluded.” As a result, there is “nothing” at Amherst “that provides any basis for the College to vacate findings, reopen proceedings, or reinvestigate matters upon the submission of such evidence after a final appeal.” Can anyone imagine any other circumstance in which an elite liberal arts college would proudly affirm its indifference to the truth, and its refusal to consider new evidence that undermined the previous positions advanced by the college, or (for instance) by a faculty member at the college in his or her scholarship?

(4) Blame JD’s attorneys for having the temerity to raise the issue. “Employing a tactic sometimes used by those charged with sexual misconduct,” the college’s outside counsel fumes, “Doe goes on the offensive against [AS], accusing her of promiscuity and deceit.”

Given that AS was deceitful in her portrayal of the text messages to both the investigator and the hearing panel, it’s not clear to me why JD’s attorneys should be faulted for noting this fact. Amherst’s argument appears to be because other, unknown, figures charged with sexual misconduct might have wrongfully accused their victims of deceit, JD should be precluded from observing that the text messages plainly show that AS was deceitful. Carried to its logical conclusion, the Amherst argument amounts to saying that if an accuser lies, the person she wrongfully accused shouldn’t be able to point out his accuser’s deceit.

JD’s complaint, meanwhile, does not accuse AS of “promiscuity.” It does contain an affidavit (which you can read here) from the student AS invited to her room for sex, and it also contains text messages about that sexual encounter. This material was included, however, not to show AS’s alleged promiscuity, but to show how she misled the disciplinary tribunal. The affidavit of this student—the first person to see AS after an encounter she now alleges traumatized her for years—portrays her as acting normally. And contrary to what AS told the disciplinary hearing, the text messages show that she had invited the other male student to her room before she had any interaction with JD on the night of the incident, and that her goal once the student arrived in her room was not to be comforted from trauma, but to have sex. What she told the panel, in short, does not reflect the contemporaneous written record, or the affidavit from the student who saw her after the incident with JD.

Amherst concludes that “it was up to the Hearing Board to determine whether any discrepancy existed between what [AS] told the investigator and later told the Hearing Board, whether any discrepancy was the result of a lapse in memory or a falsehood, and what impact, if any, a discrepancy had upon the Board’s overall assessment of Jones’s credibility.” But AS’ deceit in her interview with the investigator about the existence of key evidence, and her unwillingness to produce this key evidence, denied the disciplinary panel the means to fairly evaluate her credibility.

The Credibility of Amherst’s Investigatory Process

The most bewildering section of Amherst’s motion comes in its treatment of its hired investigator, an eastern Massachusetts attorney named Allyson Kurker. Kurker, it’s true, performed only a perfunctory investigation. She spent fewer than 24 hours on campus interviewing witnesses, and allowed AS to fool her about the critical exculpatory text messages. In short, she failed even by her own standards, as she laid out in a 2014 essay—that is, she did not “identify all tangible evidence relating to the incident” (since she didn’t get the key texts), nor did she “identify all witnesses” (since she didn’t hear from the student who saw AS right after the incident). Yet given that the job of Amherst’s outside counsel is to defend their client’s behavior, it seems odd that that the college would challenge in two key ways the investigator’s findings. (Kurker did not respond to a request for comment from me.)

The first disparity comes in the treatment of AS’s main corroborating witness, a campus rape activist named Liya Rechtman. Rechtman, who served as a student member of the Amherst committee that designed the college’s new, guilt-presuming policy, claimed that the accused student, in a private conversation to which there were no witnesses, effectively confessed the crime to her. In her report, Kurker expressed strong doubt about Rechtman’s credibility, noting that her testimony “raised questions,” in part because it “deviates so dramatically” from the testimony of other witnesses. At the disciplinary hearing, Kurker testified that she “was and still am confused” by Rechtman’s tale—and in response to a question from one of the panelists, consumed two pages of the hearing transcript describing her multiple concerns with Rechtman’s convenient tale. These problems included Rechtman’s bizarre claim that the accused student had confessed to her (a person he seems to have barely known) that he violated AS in ways that even AS never had claimed. (Rechtman did not respond to two requests for comment from me.)

In its filing, however, Amherst portrays Rechtman as a credible witness, and accuses JD—motivated by “fury”—as launching a “barrage . . . insinuating that she orchestrated the charge against him and testified falsely so that he would be driven from campus.” But the evidence that the complaint uses to castigate Rechtman comes from her own words and from Kurker, not from anyone associated with JD’s defense team. Does Amherst no longer accept Kurker’s portrayal of Rechtman’s credibility problems? And if not, what other portions of its own investigation has Amherst repudiated?

The second disparity comes in the treatment of JD’s status. The disciplinary hearing informed JD, in writing, that “your account of being ‘blacked out’ is credible.” The board appears to have relied heavily on Kurker’s inquiry in making this finding; in her testimony, she noted that the “respondent does not have any memory of that evening,” and of his interaction with AS.

There seemed to be no dispute of JD’s blackout status—until Amherst’s motion, which on multiple occasions, suggested that JD did remember the evening, implying that he (like AS with the text messages) had somehow fooled Kurker.

Amherst’s position on this point is more extreme even that that of AS, who had no doubt about JD’s intoxication level. One of the text messages that she improperly withheld from the college contained a discussion right after the incident that revolved around whether her having performed oral sex on her roommate’s boyfriend could be concealed. She texted, “I’m pretty sure [JD] was too drunk to make a good lie out of shit.” Did, as it appears, this problem leave the task of lying solely to AS? Neither the investigator nor the hearing panel got to consider that question, because AS didn’t share this text message with Amherst.

So, with regards to Kurker, Amherst’s argument appears to be the following: The court should wholly defer to the college’s investigation, even though its investigator wrongly questioned the credibility of a campus rape activist; wrongly portrayed JD as having no memory of the incident because of an alcoholic blackout; and couldn’t uncover the key evidence in the case. For good measure, the college’s outside counsel also maintains that the court should wholly defer to the college’s investigation even though Amherst apparently no longer believes, as the disciplinary panel did, that JD’s “account of being ‘blacked out’ is credible.”

College Double-Speak

First: Under Amherst’s guilt-presuming policies, the accused student can’t have a lawyer in the hearing, can’t see the accuser during the hearing, and can’t cross-examine the accuser. Instead, the accused student must submit questions in writing to the hearing panel and hope the hearing panel asks them. And yet, risibly, here’s how Amherst describes the proceeding: “Doe then questioned [AS].” Would anyone reading that sentence get a sense of how Amherst actually ran its proceedings?

This unfair structure was critical in this case, since AS admitted during the hearing that she had texted with someone about the incident, even though she had said something else to the investigator; and that someone came to her room shortly after the incident, even though the investigator didn’t speak to this person. Neither of these issues were explored in any detail during the hearing. (Indeed, Amherst proudly notes in its filing that the college policy doesn’t even require the school to interview any key witnesses in the case, as long as that witness isn’t the accuser or the accused. So much for the pursuit of truth.)

Second: since Amherst forbids students facing life-altering charges from having access to an attorney during the hearing, the college provides the accused student with an “advisor.” JD’s advisor, Torin Moore, performed so poorly that he’s one of the targets of the lawsuit.

Here’s how Merriam-Webster defines advisor: “a person who gives advice especially professionally.” In its filing, here’s how Amherst describes Moore’s role: to “guide the student through the pre-hearing” and (possibly) “accompany the student” to the hearing. In other words, a glorified hall monitor. Would anyone encountering the term “advisor” think that the definition is actually that offered by Amherst?

Double-speak, indifference to truth, unfair procedures—sadly, all too common on today’s college campuses.

Weaponizing Title IX at Middlebury

[originally published at Minding the Campus.]

Last week came two more court decisions involving due process and campus sexual assault. The first, which involved a student at Case Western Reserve University, had Judge Christopher Boyko (a George W. Bush appointee) ruling that it was plausible the accused student was innocent and the CWRU had manufactured inculpatory evidence—but there was nothing he could do to remedy the problem. The second, which involved a student at Middlebury College, had Judge J. Garvan Murtha (a Clinton appointee) issuing a preliminary injunction preventing Middlebury from expelling the student. You can read Judge Murtha’s decision here.

The Middlebury case was factually and procedurally complicated. But it offers three issues of importance:

(1) Title IX can be weaponized, with the accuser using the threat of a complaint with the Office for Civil Rights (OCR) to effectively force a college to do her bidding.

(2) In what seems like a first, a college assumed jurisdiction over a sexual assault case that involved an allegation filed by a student from another school.

(3) The case provides a rare behind-the-scenes view of the extraordinarily one-sided training that “impartial” campus adjudicators receive.

The Incident

In fall 2014, a male junior applied to study abroad for the semester; Middlebury’s study abroad program is run not by the college but by an institution called School for International Training (SIT), which is based in Brattleboro, around two hours from the Middlebury campus. SIT is a U.S. university, subject to Title IX, and Middlebury’s guidelines make clear that students in the program will be subject to SIT rulings for honors code violations while they’re abroad. The guidelines are silent about student conduct issues.

The background to the allegation was rather tawdry. On November 7, 2014, after what appears to have been a night of considerable drinking, the male student came back to his room with two female students in the study abroad program, at least one of whom wasn’t from Middlebury. His roommate was away, and so the three of them decided to sleep together in his room, pushing the two beds together, with the male student sleeping between the female students. At some point in the evening, the male student became sexually active with one of the female students (who initiated this contact remains in dispute). The other student (a friend of the female student, and a former romantic partner of the male student) eventually saw what was going on—and got up, retiring to her own room.

The incident was, at the least, embarrassing; it threatened the social equilibrium between the female student and her friend. But the female student soon claimed that the intercourse was nonconsensual; she filed a sexual assault claim through SIT. (There’s no indication she went to the police.) SIT, in turn, informed Middlebury that it planned to investigate the allegations; it then would conduct a hearing according to its own policies (which conform to OCR guidelines). Middlebury made no attempt to assert jurisdiction over the case. SIT convened a hearing at which both parties, and the other student who was in the bed, testified. The hearing also considered contemporaneous text messages between the three. Both the transcript of that hearing, and the text messages, were not included in the public documents filed in the case, so it’s impossible to comment confidently about the merits of the allegation. But the SIT hearing found the male student not culpable for sexual assault. The accuser elected not to exercise her OCR-right to appeal the finding at SIT.

That decision, it would seem, should have ended things. An accused student had been charged. A hearing had been held, at which he was acquitted. The accuser did not appeal.

Middlebury Intervenes

But the accuser elected to pursue another path. She still didn’t go to the police. Instead, working through the Title IX coordinator at her own institution, she wrote to an administrator at Middlebury, with an ill-concealed threat: “I am pursuing,” said she, “a complaint with the office of [sic] civil rights.” And suddenly Middlebury, which heretofore had unquestioningly accepted SIT’s coordination of the case, decided that it would conduct a second investigation—even though the accuser wasn’t a Middlebury student. To the best of my knowledge, this is the only publicized case since issuance of the “Dear Colleague” letter in 2011 in which an institution has asserted jurisdiction over a claim that didn’t involve two students from the college. If established as a precedent, the expansion of the parallel justice system championed by the Obama administration would be dangerous, and massive.

In addition to her threat about filing a complaint with OCR, the accuser passed along information about the case that she said corroborated her view of events. She also claimed that SIT’s investigation had violated Title IX because SIT’s investigator hadn’t spoken to her academic advisor (why that would be relevant the accuser didn’t say) and hadn’t spoken to unspecified witnesses (what these witnesses might or might not have said the accuser didn’t tell Middlebury). Though OCR, not Middlebury College, has authority to decide whether SIT’s actions conformed to Title IX, Middlebury Dean Karen Guttentag had heard enough. The college would effectively set aside SIT’s finding, the dean later testified, based on theaccuser’s “perceptions of SIT’s investigation and hearing process.” You can read the dean’s affidavit here.

This rationale was nothing short of extraordinary. The files contain no indication that Guttentag had asked anyone at SIT whether the accuser’s “perceptions” of SIT procedures were based in reality. But with a clear threat that if Middlebury didn’t go along, the accuser would add the college to her already-filed claim against SIT, the college leapt into action, more than two months after the allegations and well after SIT had already acquitted the student.

Guilt and Middlebury

Middlebury’s decision meant that the accused student would be subjected not only to a double-jeopardy scenario, but a very different procedure. Unlike SIT, Middlebury has adopted the Obama administration’s preferred approach of bypassing a hearing (lest it re-traumatize an accuser who, at that stage of the process, the college doesn’t know is telling the truth) and turning things over to a single investigator. The investigator submits a report to a college administrator, who then interviews the accused student, but in every case since 2012 in which the investigator had branded the accused student a rapist, the college has accepted the finding. Middlebury referred this case to an investigator named Nell Coogan, whose website indicates no background in criminal investigation or law enforcement.

Middlebury has clear ideas on how sexual assault investigations should be conducted; the firm Margolis Healy trains college officials on the matter. The firm’s guidelines, as based on a 2012 training session, seem designed to ensure that the college gives every conceivable benefit of the doubt to the accuser. You can see the guidelines here; note how heavily Margolis Healy relies on the now-discredited researcher David Lisak, who is mentioned eight times, to explain how colleges should respond to sexual assault allegations.

Investigators, Margolis Healy instructed Middlebury officials, must not approach the case with “skepticism.” Indeed, they must “start by believing” the accuser. The discussion with the accuser must not involve the investigator interrogating her; “This is not the time for ‘just the facts.’” (If not then, when?) The investigator must avoid “victim blaming” questions, such as asking the accuser why she did something. “Use what we know” about campus sexual assault—that the “non-stranger sexual offender” says to himself, “I am going to have sex tonight. If it is consensual, fine. But, I am going to have sex tonight.” While the investigator must “start by believing” the accuser, the Middlebury official must begin by wondering if the accused is “who he said he is.” Margolis Healy counseled Middlebury investigators against using the term “accuser” (“victim” or “survivor” is preferred).

The report prepared by the investigator “should not include . . . consensual language” or anything indicating “mutual participation.” But what if the intercourse was consensual, or involved mutual participation? Nor should the investigator’s report include the following language: The “victim has inconsistencies with her story.” But what if she does? Nor should the report conclude that “the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect.” But what if the accuser isn’t credible? According to Middlebury’s training, that outcome seems impossible.

With this background, and given the looming threat of a Title IX complaint if Middlebury didn’t do what the accuser wanted, the college returned a guilty finding, and recommended expulsion days before the accused student was to begin his final year at Middlebury. The accused student sued, noting that the college’s decision not only would end his Middlebury career, but also would rob him of a job offer that he had already lined up after graduation.

The Court Case

In filings before Judge Murtha, the two sides partially re-litigated the case. The accused student contended that SIT’s finding was correct, and that the accuser had substantially enhanced her allegations over the course of the inquiry. Middlebury countered that the accused had changed his story, and denied that kicking the accuser out of school and costing him his job would constitute irreparable harm for him. Middlebury administrators and its investigator also produced unintentionally comical affidavits claiming that the guilt-presuming training that Middlebury arranged for them to receive had no impact on how they investigated sexual assault allegations.

Judge Murtha understandably was skeptical about college officials’ newfound commitment to objectivity. His ruling was a preliminary one, but he noted that “Middlebury’s policies did not authorize a second investigation and de novo evaluation of the allegation of sexual assault after it had been decided in Plaintiff’s favor by SIT, the sponsor of the study abroad program during which the alleged misconduct occurred, to whose discipline Plaintiff was subject.”

The accused student thus can complete his senior year. But how will Judge Murtha rule on the merits of the case?

Amherst’s Version of Kafka

[Originally published at Minding the Campus.]

Kafka was born too early to write about Amherst College. At campus hearings on claims of sexual assault, procedures are relentlessly stacked again males and evidence of innocence doesn’t count. Amherst expelled a student for committing rape—despite text messages from the accuser, sent  immediately after the alleged assault, (1) telling one student that she had initiated the sexual contact with the student she later accused (her roommate’s boyfriend); (2) inviting another student to her room for a sexual liaison minutes after she was allegedly raped.

Amherst, on grounds that the accused student (who, per college policy, had no attorney) didn’t discover the text messages until it was too late, has allowed the rape finding to stand, even though the college’s decision relied on the accuser’s credibility (which is now non-existent). Amherst faces a due-process lawsuit in the case. You can read the complaint here.

A Goal of Empowering Victims

The expelled student’s complaint begins by noting the hostile campus attitude toward due process—both from pressure from the Education Department’s Office of Civil Rights, and because of a highly-publicized 2012 article from a student and self-described “survivor” who claimed that the college mistreated her. (Wendy Kaminer summarized the case in The Atlantic.) The outcry prompted Amherst to cancel classes for a day to discuss the issue, led to the forced resignation of the college’s sexual assault coordinator, and caused Amherst to change its sexual assault adjudication procedures to focus on “empowering victims,” rather than on, say, pursuing fairness and justice in its hearings.

These procedures, unsurprisingly, are wildly one-sided. Amherst adopted an “affirmative consent” standard; its policies do not explain how an accused student can prove he obtained this consent short of video-taping any sexual encounter. Regarding alcohol, the school deems it important that “anyone engaging in sexual activity be aware of the other person’s level of intoxication.” (How this should be done, Amherst doesn’t say.) Awareness, the college adds, might not even be enough, since “an individual may experience a blackout state in which he/she/they appear to be giving consent, but do not actually have conscious awareness or the ability to consent. How an accused student is supposed to know that someone appearing to give consent is actually in a “blackout state” Amherst, again, doesn’t say.

An Attorney with No Role

Once the complaint is filed, an investigator, who lacks subpoena power, interviews the accuser and the accused student; beyond that, the college promises only that the investigator will make a “good faith effort” to speak to relevant witnesses, and will “try” to obtain relevant physical or medical evidence. If the investigator’s “good faith” effort doesn’t track down relevant witnesses, the policy presumes that the accused student won’t be able to call those witnesses before the hearing.

“Attorneys cannot participate in the Hearing Board process” at Amherst (although, the college helpfully notes, the accused student can hire an attorney—at his own expense—and have the attorney present on campus the day of the hearing, perhaps for a very expensive form of virtual, moral support). The attorney-less accused student does receive an “advisor” from the campus community, but this advisor “is not an advocate for the student.”

Amherst does not permit theaccused student to directly cross-examine his accuser; he can only submit questions to the panel chair, who may ask or reject the questions as the chair chooses. Effective cross-examination under such circumstances is all but impossible—even more so since the accuser is allowed to write responses, rather than respond to questions orally. Any guilty finding is “permanently noted on the student’s record.”

Ever Leaning Toward Guilt

Panel members, who are drawn from the Five Colleges consortium (Mount Holyoke, Amherst, Hampshire, and Smith Colleges, and the University of Massachusetts at Amherst), receive annual “training regarding, the dynamics of sexual misconduct, the factors relevant to a determination of credibility, the appropriate manner in which to receive and evaluate sensitive information, the manner of deliberation, and the application of the preponderance of the evidence standard.”

Amherst doesn’t reveal what this training entails (recall that the only school whose panel training did become public, Stanford, used blatantly guilt-presuming training). Panelists come not from the general student body or even faculty but from the world of student life or institutional diversity, areas likely to tilt toward a guilt-presuming ideology even amidst the consortium’s politically correct mindset.

Panel members in this case included two student life officials (one from Mt. Holyoke, the other from Hampshire) and Eric Hamako, whose Ph.D. in “Social Justice Education” produced a dissertation focused incorporating “stronger anti-racist frameworks into those educational efforts.” (Hamako, who then worked for Smith, could not be reached for comment; the other two administrators did not respond to a request for comment.)

This was not a panel, in short, that seemed likely to go out of its way to critically examine a rape accuser’s allegation, or to stand up for due process, particularly given the ideological climate at Amherst in the 2013-2014 academic year. Additionally, since all panelists were administrators (like Amherst’s former sexual assault coordinator), they lacked the protections of tenure if they made an unpopular decision.

Alcohol and Activism

The incident dated from the early morning hours of February 5, 2012, when the accused student (who filed the suit pseudonymously, as John Doe) was a sophomore. After a night of heavy drinking by Doe, he accompanied the accusing student (who I’ll call AS) back to her room, where she performed oral sex on him. (Doe had no recollection of the sexual encounter, a claim that even Amherst’s tribunal found “credible.”) When news of her having hooked up with her roommate’s boyfriend got around, a former friend recalled that AS (unsurprisingly) “lost her group of friends.”

AS’s new group of friends, much like Rolling Stone’s “Jackie” in the UVA case, came from campus victims’ rights circles. AS first mentioned the alleged assault in a column from an activist campus website to which she regularly contributes and which reflected the viewpoint of the most extreme campus victims’ rights advocates—though the thrust of the column focused on her friends (unsurprisingly) turning on her after the hookup.

AS also was friendly with a leading anti-due process activist on campus, Liya Rechtman, to whom Doe had reached out after publication of AS’s column, to ask if he could have in any way mistreated AS. Rechtman claimed that this conversation amounted to a confession, an interpretation even Amherst’s investigator said left her “confused.”

Twenty-one months after hooking up with her roommate’s boyfriend, AS filed a claim of sexual assault. She did not go to the police, and of course had not sought medical attention after the alleged attack. But she did claim to have one contemporaneous piece of evidence that the attack traumatized her. She told the college, she asked a friend to come over and spend the night with her after her encounter with Doe. No evidence exists that Amherst asked her to identify this friend, who did not testify in her hearing.

The Hearing

As it turned out, the case would be the first under Amherst’s new, guilt-presuming policies. While the accuser waited 21 months to file her charges, Doe received ten days before he met with the investigator; thirty-eight days after Doe was notified of the charges, the disciplinary board decided to expel him.

The two sides’ contrasting advisors reflected Amherst’s warped ideological climate on sexual assault issues. Though technically the advisor “is not an advocate for the student,” AS’s advisor clearly did sympathize with her. Rhonda Cobham-Sander, a tenured professor of Black Studies and English who specializes in post-colonial literary theory, was an influential figure on campus. Amherst’s first diversity czar, she delivered a victims’ rights-oriented address after the 2012 sexual assault controversy.

Doe’s advisor, on the other hand, was an Amherst administrator (who lacked tenure protections) named Torin Moore, whose academic training came not in the law or in anything related to civil liberties but instead in “social justice education.” Moore’s performance was so lackluster that Doe eventually would sue him. Neither Moore nor Cobham-Sander responded to requests for comment about whether they were aware of the full scope of evidence in the case.

The college’s hired investigator, Allyson Kurker, interviewed most of the witnesses in one day; Kurker did not respond to a request for comment about whether she was satisfied her inquiry uncovered sufficient evidence. An attack that AS initially described as wholly non-consensual came to be seen as consensual before changing during a “break” in the oral sex. “I can’t say it was clear to me” when the assault allegedly became non-consensual, Kurker admitted in the hearing. (You can read the hearing transcript here.)

Once the hearing began, AS repeatedly presented herself as too traumatized to articulate her thoughts verbally. (She had no such problem, according to Kurker’s report, when the investigator asked her questions.) Asked whether the two went to her room voluntarily to hook up, AS replied, “Yes. Well—although in would like to say that I did feel some—I did like well feel like well some—I did . . . I did like well feel like well some like . .  . well . . . some like . . . like . . . some like well pressure to do so.”

Panel member Hamako wondered about this “pressure,” which AS hadn’t previously mentioned, yielding this response: “So as we were making out in the common room, so some of the students there, so I think, so I think, so I think, [another student] included, were just like, well, chanting like well, things about me. Like, like, like, like, I mean, like, like, I mean, like, I mean like this, I mean like, I mean like, I mean like slut, and like that kind of thing. And they also like told us, get a room, so, yeah.” How that reaction (even if accurate) could be held against Doe was left unclear, since Hamako didn’t follow up.

I Didn’t, I Didn’t, I Didn’t

In perhaps the critical section of the hearing, when a panel member wanted to know what AS did after the alleged assault, she responded, “So after he like walked out, I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . .” On cue, the panel then allowed AS to type a response—an option that AS repeatedly pursued during the hearing. In her written response, the accuser claimed that after Doe left her room, she felt “very alone and confused,” so texted a friend to come over and spend the night with her.

In fact, as Doe’s attorneys later would discover, AS had texted two people after the hookup—a friend, and a possible paramour. Even before hooking up with Doe, AS had texted the other male student, telling him, “I mean I happen to have my room to myself this weekend, if you wanted to come over and entertain me.” After she finished with Doe, AS resumed flirtatious texting with the male student, who came to her room and spent the night with her. He found her “friendly, flirtatious, and spirited,” and not “anxious, stressed, depressed, or otherwise in distress.” You can read these text messages here.

Just after Doe left her room, AS also had (as she told the disciplinary panel) texted a friend. But (contrary to what she told the disciplinary panel) she didn’t invite the friend over to her room. Instead, she informed the friend, “Ohmygod I jus did something so fuckig stupid.” Coarse language from her in subsequent texts implied an awareness that she had initiated sexual contact with the student she later accused of rape. AS was upset in these messages—but not from being raped.

Rather, she worried (not unreasonably) about the fallout of a sexual liaison with the boyfriend of her roommate, who “would literally never speak to me again” if she found out. AS continued texting her friend after the male student arrived; she described her attitude toward her guest: “Like, hot girl in a slutty dress. Make. Your. Move. YEAH.” At 5am, she sent another text to the friend indicating that some sort of sexual liaison had occurred with her male visitor. You can read these text messages here; the critical messages are on pp. 6-8.

AS mentioned none of these exchanges to the panel. But since Amherst, like all colleges, lacks subpoena power, it had no way to obtain text messages from the night of the alleged assault. In a campus climate predisposed to believe all but the most non-credible accusers (and even, sometimes, the wholly non-credible, as the UVA case demonstrated), the panel didn’t probe too much. After AS’s “so I didn’t” non-response, panel members gently turned to questions about how knowledge of her hookup with her roommate’s boyfriend affected her relationship with their common friends. “They all felt they had to side with [the roommate] and stop speaking to me,” AS complained.

The Outcome

Despite an accuser who offered borderline non-coherent responses that subtly expanded on her initial story, the panel ultimately accepted her credibility. It ruled that while Doe likely was “blacked out” during the oral sex, “[b]eing intoxicated or impaired by drugs or alcohol is never an excuse.” Since AS said she withdrew consent at some point during the sexual act, and since Doe couldn’t challenge that recollection, the panel was at least 50.01 percent inclined to believe the accuser’s tale.

(The panel members offered no explanation as to why or how they reached this decision.) The panel recommended immediate expulsion for Doe. For good measure, panel members also urged him (but not, it seems, AS) to obtain alcohol counseling. You can read the panel’s thread-bare decision here.

Amherst’s case depended entirely on AS’s credibility. During the spring 2014 semester, Doe hired an attorney—who managed to discover the text messages quoted above, messages that all but eviscerated AS’s credibility. But according to the complaint, even when confronted with this new—and transparently exculpatory—evidence, Amherst declined to reopen the case.

Once again: this is a case in which an accuser (to put it charitably) misrepresented written evidence vital to her credibility, and this same material, her words, showed—if anything—that she initiated sexual contact against a student who even Amherst’s panel described as “blacked out.” And yet, according to Amherst, AS is a sexual assault “survivor.”


This blog will collect some of my posts from elsewhere, and also will feature original content on matters addressing campus due process and campus intellectual diversity. I plan to keep the blog open through publication (tentatively scheduled for late 2016) of the new book by Stuart Taylor and me on campus due process.