In a somewhat testy two-hour hearing earlier today, Judge Mark Mastroianni seemed inclined to allow perhaps the most important of the college due process cases—that filed against Amherst College—to proceed, though he asked tough questions of both sides, and offered a troubling comment at the very end of the hearing.
As a reminder: Amherst is the case in which the accusing student, who I’ll call A.S., withheld text messages from Amherst’s hired investigator and from Amherst’s disciplinary panel. It’s not hard to figure out why she withheld these text messages—they feature her describing the sexual encounter not only as consensual but as one that she seemed to initiate, and they also have her expressing frustration that the accused student was too drunk to come up with a convincing lie to explain the situation to their friends. When the accused student finally tracked down these texts, Amherst said it was too late to consider them, even though they eviscerated A.S.’s credibility, and he was out of luck. This decision to close itself off from pursuit of the truth, the student’s attorney (Max Stern) noted, was the “worst” aspect of Amherst’s performance in the case.
No Amherst administrator or lawyer has ever denied that these texts were exculpatory (though the college’s hired investigator appeared to do so in her deposition), and the school has struggled to offer a consistent explanation as to why the texts either didn’t appear in the hearing or were irrelevant to the outcome. In the college’s initial filings, Amherst’s attorney, Scott Roberts, appeared to blame A.S.’s roommate for failing to tip off Investigator Allyson Kurker as to the existence of the texts. In her deposition, Kurker suggested that the texts were irrelevant, since she only desires written material from accusers after the point the accuser has made a rape claim. This is a convenient way of confining her search to inculpatory evidence.
In today’s hearing, Roberts offered another explanation why the texts should be beyond the purview of the courts: they were considered by the disciplinary hearing panel, which decided that whatever inconsistencies by A.S. they showed, these inconsistencies were balanced off against the inconsistencies of the accused student’s testimony.
This argument was remarkable in three respects:
- First, Roberts never explained how the disciplinary committee could have fairly or thoroughly evaluated texts it had never read;
- Second, he misleadingly suggested that A.S. didn’t reference both parties to whom she texted in her hearing—she told the three non-curious panelists that she had texted a student to come over and comfort her after the “assault,” when in fact she had texted this male student to come over before her interaction with the accused student, and her purpose wasn’t comfort but to have sex with him;
- Third, Roberts’ claim that the accused student’s testimony about recalling events earlier in the evening but not any involvement with A.S. was fully consistent with the Amherst panel’s own finding that the accused student was experiencing an alcoholic blackout at the time of the intercourse but not earlier, so his testimony wasn’t inconsistent at all. Roberts suggested otherwise by implying that the accused student’s roommate was more credible on whether the accused student was blacked out than the finding of Amherst’s own disciplinary panel.
Judge Mastroianni didn’t appear convinced by Roberts’ contention, and the nature of the text messages came up in questions he asked of both sides. In a back and forth with Stern, Mastroianni wondered whether Amherst had an explicit requirement to track down the text messages (which were, after all, the most important evidence in the case). Stern conceded that no explicit requirement existed in the Amherst code, but the expectation fell under the code’s general promise of a “thorough, fair, and impartial” investigation.
To Roberts, on the other hand, these words were window-dressing. “Thorough,” “fair,” and “impartial” mean whatever Amherst desires, he reasoned. Because the college included the language in its disciplinary code, the provisions of the disciplinary code must be thorough, fair, and impartial. (This line of argument contained an Alice-in-Wonderland quality.) It’s legally OK, Roberts later added, for a college’s “thorough, fair, and impartial” to be “biased in favor of alleged victims.” This was a rather postmodernist approach to the language of college disciplinary codes. (Disturbingly, Roberts’ bio reveals that he has overseen seminars on how universities should conduct Title IX inquiries, and has “served as independent fact finder in multiple cases involving allegations of sexual misconduct in violation of Title IX.” One can only imagine what kind of a “fair” process those accused students received.)
Fairness was a main theme of the hearing, which in many ways was focused on two dueling decisions—Judge Saylor’s recent decision in the Brandeis case, and Judge Mastroianni’s own decision in UMass. The latter was hardly due-process friendly (Roberts, by my count, mentioned it nine times, contending it “set the bar” on the issue), but also didn’t involve a claim of actual innocence. Saylor’s paean to the importance of fairness—the most important decision in favor of an accused student to date—would clearly sink Amherst, and Roberts spent considerable time attacking it. He also produced a colored chart arguing that Brandeis’ procedures were much more unfair than Amherst’s, and therefore even if Mastroianni accepted Saylor’s reasoning, it shouldn’t apply to Amherst—whose approach to the case he portrayed as characterized by “basic fairness at all times.”
On the main subject of the hearing, Amherst’s motion for a judgment on the pleadings, Roberts spoke for around 55 minutes, and had an odd tendency to misrepresent the arguments made in the accused student’s complaint. As a result, some of his responses seemed ineffective. (Mastroianni didn’t interject for significant lengths of time, so it sometimes was hard to get a sense of his thoughts.) For instance, he repeatedly insinuated that the accused student being upset or disappointed with the disciplinary panel’s decision was the primary basis for the lawsuit, and seemed not to understand the accused student’s Title IX claim—especially its claim that Amherst treated him differently than A.S. because it investigated him for sexual assault but not her, even though the disciplinary panel found that he was blacked out and thus incapable of consenting to sex. (No one denies that A.S. consented to the opening part of the sex.) Amherst’s code distinguishes between sex while drunk, in which a student can consent, and sex while incapacitated (like the accused student in this case), in which a student can’t consent. But Roberts, who argued for a strictly literal reading of the disciplinary code for the rest of his argument, urged Mastroianni to avoid what would be a “no sense” interpretation: that by writing an incapacitated student couldn’t consent to sex, Amherst actually meant that it wrote.
Other than praising Mastroianni’s decision in the UMass case and condemning Judge Saylor’s decision in the Brandeis case, a Massachusetts state case (Schaer) and a First Circuit case (Fitzgerald) were the key elements in the Amherst argument. But Fitzgerald involved allegations of sexual harassment by parents of a kindergarten student. The idea that one of the nation’s finest liberal arts colleges thinks a case involving a five-year-old indicates the appropriate level of Title IX rights for its own students is quite remarkable. And Schaer, which Amherst wanted to use for the argument that its expectations of reasonableness, not a student’s, is more ambiguous than the college’s lawyer argued, as Mastroianni pointed out in a question. He deemed the issue “frankly, . . . an important point.”
A final point, on tea leaves. Near the start of the hearing, Mastroianni twice referenced that Amherst would have the opportunity to challenge the plaintiff’s assertions at a later stage. Of course, if he dismisses the case, there’d be no later stage, so the remarks could be interpreted as suggesting he’s inclined to allow the case to move forward. On the other hand, he ended the hearing by noting that he had looked at cases with “similar concepts” in the UMass case—where he decided in favor of the university. Saylor’s Brandeis opinion hadn’t been handed down at the time of the UMass, and the issue of fairness seems to be the central one right now.