College Reacts to Negative Press by Attempting to Seal Court Documents Exposing Its Ridiculous Actions

June 27, 2014

By Tim Cushing at TechDirt

I don’t know what possesses certain individuals and entities to address their screwups by attempting to bury them, especially in an age where a wealth of information is still (mostly) a Google search away. Whatever happened to taking responsibility for errors of judgement? By opting for the “hasty burial” method of reputation management, these entities almost invariably direct more attention to the very thing they wanted everyone to forget. It happens so frequently, it even has its own name.

Occidental College expelled a student over rape allegations, opting to take the path well knee-jerked, rendering its decision before all the facts were in. The facts didn’t seem to indicate a rape had occurred (something investigating officers agreed with).

The student, identified only as “John Doe,” had sex with his accuser on September 8th, 2013, according to details of the case obtained by the Foundation for Individual Rights in Education. Both Doe and his accuser had been drinking. By several accounts, the sex was consensual. The accuser sent Doe a text messagebeforehand asking him if he had a condom. She also texted a friend and clearly announced her intention to have sex with Doe.

But rape was declared in the sober light of day, thanks in part to an assistant professor’s bizarre profiling of Doe as a rapist.

After that night, the accuser spoke with several Occidental employees, including Danielle Dirks, an assistant professor of sociology. Dirks told the accuser that Doe “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports team], and was ‘from a good family.’”

Classic rapist. High grades, played sports, good family. Occidental obviously holds its rapists to a higher standard, seeing as Doe fit right in with “the other rapists on campus.”

One week later, the rape complaint was filed. The police, as mentioned above, investigated it and deemed the interaction to be drunken sex between two consensual adults. Occidental College, however, was feeling the pressure from up top — specifically, a recent federal investigation into its rape prevention policies. So it overreacted.

[T]he college hired attorney Marilou Mirkovich to investigate the matter. Mirkovich concluded that the female student did indeed consent to sex. However, since she was intoxicated, her consent was invalid, according to Mirkovich.

(Interesting point, but wouldn’t that mean they raped each other? Or is consent vis-a-vis intoxication completely malleable to each situation, in order to better comply with societal expectations?)

This was all Occidental needed to justify expelling Doe… who then sued the school for denying him due process. When this happened, all of the above became public knowledge. And it made Occidental look bad, which is something the school cannot abide. But rather than settle with Doe and admit the whole “investigation” was a farce, it decided it still had plenty of “stupid” left in its tanks.

So it’s unsurprising that Occidental would be unhappy about these documents being displayed online for all to see and judge. It is equally unsurprising, however, that yesterday a Los Angeles County Superior Court judge denied the college’s request to seal certain documents relating to the case—specifically, approximately 180 pages comprising an investigative report and accompanying evidence that included interviews with witnesses and the alleged victim.

Unsurprising, indeed. And yet, the university attempted to bury its embarrassment with a straight face, expressing a completely belated “concern” about the personal information contained in the investigative report… four months after it went public. To which the judge responded:

I don’t understand why [it] is so pressing in June when it wasn’t so pressing in February.

That’s the power of negative press. That open-and-shut investigation that forced a dangerousrapist valedictorian off campus was suddenly an ugly, festering byproduct of Occidental’s desire to show the US Government that was Very Serious about combating sexual assault and completely willing to offer up as many scapegoats as needed until the pyre of shame receded to an easily-ignored flicker. It was even willing to find as many “experts” as needed to paint Doe into the “rapist” corner, even if the supporting statements made were facially moronic.

But just asking the judge wasn’t enough. Occidental tried to get FIRE (Foundation for Individual Rights in Education) to pull its coverage while awaiting the judge’s incredulous/sarcastic response.

On Monday, FIRE received a fax from the law firm Sidley Austin LLP asking us to remove the investigative report and adjudicator’s decision from our website until the court had made a decision on the confidentiality of those materials. We did not do so.

Occidental managed to bully one student off of its campus, but its limited reach means everyone else remains unaffected, no matter how many requests its law firm sends out. The judge’s refusal to assist in patching up the school’s self-inflicted wounds should send a message to other entities that find themselves in similar situations. Before attempting a quick burial, consider the possibility that doing so will only result in wider coverage. If you still feel your temporarily wounded pride is worth more than your long-term reputation, go ahead. But don’t be surprised if it only results in more criticism.

[Defense lawyer Scott Greenfield also has some fine thoughts on Occidental (and the law's intrusion into bedrooms/dorm rooms) at Simple Justice, included here mainly because of this tweet.]

Schools: Occidental College Cases: Occidental College: Student Found Guilty of Sexual Assault After Incapacitation Standard Is Misapplied