Amherst College has settled a lawsuit brought last June by a student identified only as John Doe. Doe filed the lawsuit after the college withheld his diploma because of a sexual assault allegation from 2009 that had long since been resolved—or so he thought. After the allegations arose initially, Doe was placed on medical leave for a year and required to see a psychiatrist before petitioning for readmission. After successfully completing the college’s requirements, Doe was readmitted and continued his studies without incident.
Just before graduation, however, in the midst of intense scrutiny by the public and the U.S. Department of Education’s Office for Civil Rights (OCR), Doe’s complainant told Amherst that he was not satisfied with its handling of the case. As a result, the college informed Doe that it would withhold his diploma until it conducted a formal adjudication of the allegations and imposed any additional sanctions, arguing that the university’s initial actions against Doe were not “disciplinary” in nature.
Amherst—one of nearly 100 institutions under investigation by OCR for their handling of sexual misconduct allegations—isn’t the only college to reopen cases years after the alleged violations occurred. Last November, my colleague Ari Cohn reported on Swarthmore College’s settlement with its own John Doe, whose lawsuit alleged that the college failed to adhere to its own policies after reopening a case against him that had been previously closed without any charges. Reviving closed cases is just one of the ways colleges are disregarding due process principles in their attempts to demonstrate that they take claims of sexual assault seriously.
Although the terms of Amherst’s settlement are not public, it is significant that Amherst ultimately decided it was not worthwhile to attempt to defend its actions in court. Colleges and universities that are tempted to reopen closed cases should instead focus on what steps they can take without subjecting accused students to punishment without a fair hearing. After all, students cannot always retain exculpatory evidence indefinitely after their cases have been closed, and the fact-finding process is more difficult, if not virtually impossible, years after an alleged incident. Without forensic training, subpoena power, and many other tools the criminal justice system has, adjudicating these cases is hard enough for colleges even when they attempt to do so in a timely manner.
As FIRE has argued before, though, colleges are well-equipped to provide many remedies for complainants, and some of these can be provided long after an alleged attack. For example, institutions can provide counseling for alleged victims or grant certain academic or housing accommodations.
It is also significant that in recent resolution agreements with institutions under investigation for Title IX violations, OCR has explicitly stated that the process of reviewing past cases need not include readjudication of resolved claims. For example, OCR’s agreement with Southern Methodist University says that SMU will review complaints made since the 2012–13 academic year. It continues:
The University will take appropriate action to address any problems identified in the manner in which these complaints were handled; including providing appropriate remedies that may still be available for the complainants in these cases, such as counseling or academic adjustments, though the University is not expected to reinvestigate or rehear matters that have been finally resolved under University policy.
Similarly, OCR’s agreement with Princeton University requires the university to review complaints going back as far as 2011, but includes the same warning.
The message should be clear: Even universities that agree to review closed cases for self-assessment purposes or to provide resources for complainants should not use those reviews as an opportunity to further punish students who have already had their cases dropped or resolved in their favor.
Amherst’s settlement comes on the heels of Saint Joseph’s University settling a lawsuit by a former student who alleged that the university violated Title IX by expelling him without a fair hearing. FIRE hopes that in light of these developments, colleges and universities will start to consider their students’ due process rights before they are brought to court.