Swarthmore’s Interim Sexual Assault and Harassment Policy invites an alarming potential for bias and arbitrariness into the College’s judiciary process. Last week’s student-wide email soliciting applications for seats on the newly-formed Sexual Assault and Harassment Hearing Panel is a bureaucratic case-in-point.
Writing at the behest of the deans and Swarthmore’s Judicial Affairs Coordinator, Nathan Miller, Student Council issued an application for students interested in a spot on the new panel. Typically, Student Council representatives read applications for groups like the Student Affairs or Budget Committee. This time around, the Appointments Chair been tasked with the unenviable position of appointing students to a panel that could potentially end up expelling our peers. The Hearing Panel’s official description is as follows:
Under the Interim Sexual Assault and Harassment Policy, the Hearing Panel will be a fact-finding board comprised of students, faculty, and staff. Similar in some ways to the existing structures of the College Judiciary Committee, the Hearing Panel will take the place of the CJC for cases that involve allegations of Sexual Assault and Harassment. Each Hearing Panel will consist of a minimum of three voting members – one student, one faculty, and one staff – who will have received extensive training. Dean Nathan Miller will be present at each Hearing Panel as the Student Conduct Administrator, helping to facilitate the process.
Previously, a student representative applying for the CJC had only the vaguest idea of what kinds of cases he or she might be asked to hear, whereas the new panel explicitly advertises that it will address sexual assault. This means that the College is inviting students who hold strong opinions on the prosecution of assault and harassment to come forward and try their peers. A passion for serving on the Movie Committee is one thing. A passion for serving on the Sexual Assault and Harassment Hearing Panel is quite another.
In a court of law, members of a jury are chosen randomly, and attorneys vigorously screen for bias during jury selection. No judge with an iota of credibility would publicize the nature of an alleged crime so that local activists could appoint themselves to the jury. Yet this is precisely what Dean Miller is doing with his updated judicial policies.
Notably, the panel requires just three voting members and can be decided by a simple majority of two people. That means that one “elected” faculty member and one student activist could determine whether or not to label another student as a sexual assailant and permanently bar him from campus. Equally alarming, the Interim Report does not detail exactly what kinds of cases deserve an administrative hearing, a Sexual Assault and Harassment Panel hearing, or an external adjudicator. Swarthmore’s Handbook promises against “arbitrary and capricious” penalties, but the Interim Report places that promise in doubt. Should the College choose to hand the proceedings over to an adjudicator, the adjudicator will “assume the role of a panel.” In that case, the three-person jury, biased as it may be, sounds downright democratic.
For the folks who advocate that victims of sexual assault seek retribution through Swarthmore’s internal processes, rather than the court of law, because the process is more timely and less emotionally taxing, keep this in mind: Neither party is allowed to bring a lawyer into the hearing. Instead, they are offered an “advisor,” employed by the College, whose loyalty is ultimately with the administration. Further, keep in mind that decisions are based simply upon the likelihood that the assault “more likely than not” occurred.
It’s true that Swarthmore’s hands are somewhat tied, since it was the Federal Department of Education that mandated for campus judiciaries to lower their standard of proof from “beyond a reasonable doubt” to merely the “preponderance of the evidence.” But there is no reason for the College to set the minimum number of hearing members at just three. And there is certainly no reason for the College to solicit members for such a sensitive panel through StuCo’s normal committee applications. In a civilized society, the more serious the accusation, the more serious the procedural safeguards.
How will Swarthmore ensure basic fairness under these new proceedings? How will the College protect the accuser and the accused in what has all the trappings of a highly politicized hearing? What standard will the College apply to determine when an “adjudicator” is more appropriate than a hearing? Until these questions are addressed, this is a lawsuit waiting to happen.