Wednesday, July 16, 2014

Witch hunt at Amherst: Student is prevented from graduating because of an alleged sexual assault in 2009 -- even though he was already punished for it in 2010

In perhaps the most appalling display of academic hubris I can recall -- prompted by the Department of Education's crackdown on sexual assault -- Amherst College has taken punitive action against a college senior that, if permitted to stand, could have widespread and frightening implications for countless college men across America.  An Amherst senior, identified in court papers as "John Doe" (that's how we'll refer to him), was supposed to graduate magna cum laude a few weeks ago, but two weeks before graduation, Amherst told him it was withholding his degree and rescinding his post-graduation fellowship. Why? Because a claim that John Doe sexually assaulted his freshman roommate in 2009 (Doe has always vehemently maintained it was consensual) -- a claim for which Amherst already punished Doe -- resurfaced when the college's Title IX coordinator was made aware of it and undertook her own review of the record. Now, John Doe can't graduate, and Amherst is reopening the investigation to do it the "right" way.

The following information is gleaned from John Doe's complaint filed in a US District Court. The alleged sexual assault occurred in December 2009, and the alleged victim reported it to Amherst officials shortly thereafter but did not file a complaint in accordance with the provisions of the school's handbook. At the start of the 2010 spring semester, John Doe had two other alcohol-related incidents that resulted in reports to Amherst officials. In March of 2010, John Doe met on multiple occasions with Amherst administrators and was interrogated by two deans with respect to each incident and the underlying causes of his behavior. (John Doe believes the alleged sexual assault victim also met with Amherst officials.) While John Doe vehemently denied the sexual assault allegation, he acknowledged that he was struggling to come to terms with his own sexual identity and that he had been using alcohol to suppress and avoid these feelings.

At no time was John Doe provided with a complaint or any other document detailing the alleged sexual assault because the alleged victim did not initiate a complaint in accordance with the terms of the college handbook. At the end of this process, Amherst gave John Doe less than one week to vacate the premises and leave Amherst. On March 27, 2010, he boarded a plane back to South Africa, where he is a citizen.

Amherst provided a writing memorializing the reasons for, and the terms of, John Doe's departure. In the writing, Amherst stated that a determination had been made that John Doe had “engaged in multiple episodes of improper, non-consensual personal contact with other students,” including the alleged sexual assault victim. These actions, the school said, "violated the standards of the Honor Code.” While said violations “could have resulted in disciplinary action being taken . . . , including a likely disciplinary suspension,” Amherst “took into consideration the fact that [John Doe’s] alcohol use and resulting behavior reflected some deeper personal issues with which [he] had been struggling for some time.”  Accordingly, Amherst “decided to place [John Doe] on a medical withdrawal, rather than impose a disciplinary suspension, in order to allow [him] the opportunity to address those issues in a therapeutic, rather than a punitive, manner.” However, “[t]he conditions associated with [this] medical withdrawal” mandated that John Doe spend “the remainder of the year away from Amherst.” They also required him to: (i) “seek treatment from a licensed mental health professional . . . during his time away”; (ii) “provide a statement,” in his application for readmission, “identifying the extent to which [his] mental health concerns had been addressed”; (iii) “submit a letter from [his] treating physician, psychologist, or psychiatrist, confirming [his] readiness to resume full-time study at Amherst College”; and (iv) permit his therapist to speak with Amherst representatives.

The complaint that John Doe filed avers:
Before being forced to leave campus, [John Doe] could have invoked and exercised certain procedural rights pursuant to the 2009-10 Honor Code. . . . For example, [John Doe] could have contested [the dean of students'] authority to make a finding of Honor Code violations by noting that [according to the terms of the Honor Code, contained in the student handbook that John Doe agreed to abide by] such a finding could only be made by the Committee on Discipline following his receipt of a signed written complaint and a “fair and unbiased hearing.” . . . . [John Doe] ultimately chose to surrender these rights in exchange for certain benefits, including the following representation made by [the dean of students] about how Plaintiff’s departure from the College would be noted on his transcript: “A notation of ‘W’ will appear on your transcript for each of your spring semester courses and will not figure into the computation of your grade point average.
The complaint further avers: "Upon information and belief, [the alleged sexual assault victim] was made aware of the sanctions imposed by [the dean of students] and did not object to them or file an appeal with the President of the College alleging procedural error or challenging the appropriateness of the sanctions."

During the nine months John Doe spent in South Africa, he complied with the conditions of his medical leave, and at the end of 2010 was readmitted to Amherst, having demonstrated his readiness to resume full-time study there. But Amherst imposed a “set of behavioral conditions" for his return. These conditions required John Doe to: (a) “remain on probation through graduation”; (b) obtain counseling and allow the Dean’s office to monitor it; (c) meet weekly with a Dean and the Assistant Director of Health Education; (d) accept restricted access to certain residence halls; (e) leave campus “during times when the college is officially closed”; and (f) “not initiate contact with [his] former roommate, [the alleged sexual assault victim].” The dean of students concluded the letter by warning John Doe that “any breech of this contract and/or any violation of the Amherst College Honor Code may result in further disciplinary action . . . up to, and including dismissal.”

From the time of his return to Amherst to the present, John Doe complied with the terms of his probation and has not had any further violations of the school's honor code.

Following John Doe's return to the school, the complaint details the Department of Education's crackdown on sexual assault, and it notes that Amherst's handling of sexual assault claims came under scrutiny. Against that backdrop, fast forward to May, 2014. Out of the blue, John Doe was summoned to a meeting with Amherst administrators who told him he wouldn't be graduating now because the school was launching another investigation into the 2009 sexual assault claim. It seems the alleged sexual assault victim “had recently called the college to express dissatisfaction with the handling” of the case. This dissatisfaction prompted the school's Title IX coordinator to reopen the matter. She "discovered" that the College failed in 2009 to comply with Title IX law and with the Student Handbook.

John Doe's complaint alleges that "[t]he relationship between students and private colleges is contractual in nature, and each party to the contract owes to the other certain duties . . . " (Generally, that is correct, and we assume the court in this case will agree. We note that the law is not firmly settled on this question in Massachusetts. Bleiler v. College of the Holy Cross, 2013 U.S. Dist. LEXIS 127775 (D.Mass. 2013).)

It appears that many of the procedures for handling sexual assault claims outlined in the college handbook in effect at the time of the alleged incident and when punishment was meted out were not followed in the aftermath of the report of the alleged 2009 sexual assault. Among other things, no complaint was ever filed in accordance with the handbook's honor code. Nevertheless, the college decided to punish John Doe for the alleged sexual assault and other misconduct, and John Doe accepted the punishment without contesting it. He fully performed all of the conditions imposed on him.

Now the school contends that since it failed to abide by the terms of the handbook and Title IX back in 2010, it must reopen the disciplinary proceedings against John Doe and keep him from graduating. The decision is not only an appalling bow to outside political pressures, it turns settled law on its head.

The case should be decided on the basis of fundamental contract law principles. In 2010, John Doe and Amherst modified the terms of the handbook or, at the very least, Amherst waived certain of the terms of the handbook in arriving at the punishment. (Let's pause to explain that parties to a contract are permitted to waive -- voluntarily relinquish a known right -- the terms of a contract or expressly modify a contract's terms after contract formation. Even contracts that contain "no oral modification" clauses can be altered by express oral agreement or waiver -- the  parol evidence rule has no application to post-formation waivers or modifications. As the late Justice Michael Musmanno of Pennsylvania explained, "[e]ven where the contract specifically states that no non-written modification will be recognized, the parties may yet alter their agreement....The pen may be more precise in permanently recording what is to be done, but it may not still the tongues which bespeak an improvement in or modification of what has been written." Wagner v. Graziano Constr. Co.., 390 Pa. 445, 448, 136 A.2d 82, 84 (1957).)

If the terms of the punishment constituted a modification of the handbook, since John Doe fully complied with the conditions imposed on him for his punishment, the school is in breach of the modified contract by refusing to allow John Doe to graduate.

If the punishment is considered a waiver by Amherst of the terms of the handbook, John Doe relied on the waiver (is there any doubt that John Doe would have contested being exiled to South Africa for nine months in 2010 if he had known he would be prevented from graduating four years later?), so the school is estopped from now claiming the punishment it imposed may not have been sufficient. Restatement (Second) Contracts § 84, comment b.

Whether the arrangement is deemed a modification or a waiver, Amherst has no legal right to do what it did. But the lawsuit raises a host of other issues. For example, John Doe claims that at Amherst, no female or heterosexual student who was placed on probation and subjected to other disciplinary measures for a violation of the honor code has ever been subjected to additional penalties for the underlying incident absent a violation of probation.

Amherst's fear-based punitive action is not only a breach of contract, it is affront to fundamental notions of fairness that the prohibition against double jeopardy is premised upon. But this case has broader implications. Will schools now think it is fair game to reopen every sexual assault claim that didn't end in expulsion, no matter how many years after the incident, and regardless of whether the accused was already punished for the alleged misconduct? Once those floodgates are opened, the courts will be overrun with law suits.

We will be monitoring this case, but make no mistake, Amherst's action is very troubling on a host of levels. It is a frightening barometer of how far the academy has strayed from common sense, decency, and justice.