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.
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.”
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.