Note: The article below was submitted, anonymously, by a Colgate member and is not necessarily representative of Colgate's AAUP chapter's position. -ed
The AAUP has made it clear in its recent publication on
campus sexual assault (found at:
http://www.aaup.org/report/campus-sexual-assault-suggested-policies-and-procedures
) that faculty have a role to play in efforts to address the issue of sexual
assault on campus and that our voice can help guide policies that address the
issue issues of sexual violence on campus while respecting the rights of both
victims and accused.
This is especially true here where a new, untried harassment
policy and its associated disciplinary body with hearing power over students, staff,
and faculty called the Equity
Grievance Panel (EGP) has already led to controversy within the university and
is now the at the center of a civil rights lawsuit against Colgate and sixteen
individual administration, faculty and staff members involved with the Plaintiff’s
EGP process.
We are bringing this lawsuit to the faculty’s attention
because we believe that the allegations of civil rights abuses it contains
require explanation and action on the part of those responsible for setting our
policies, and because we need to insure that such behavior will never recur. By
denying the appeal of the student on behalf of whom the lawsuit was filed, which
detailed the violations to his civil rights, the administration asserted that these
actions constitute acceptable behavior on the part of our institution; we believe this cannot stand unchallenged.
This lawsuit also puts faculty members on notice that we can
be held individually liable even if
we believe we are simply following policy and procedure, if those procedures are
the cause of the violation of someone’s rights. It is therefore contingent on
each of us to be aware of the policies we have in place as well as their
implications. We need to make decisions based on our own professional and
ethical understandings and actively resist any policy or action that has the
potential to violate someone’s rights.
The Lawsuit
In order to understand our concern over these issues, it is
necessary to share some details of what happened to result in a civil rights
suit against Colgate by an international student who was expelled through the
EGP process.
The suit alleges illegal, discriminatory, inconsistent, and disproportionate
behavior on the part of Colgate and its employees, the sixteen individual named
Defendants. Further, the
Plaintiff was subjected to a “flawed disciplinary process, rotten with bias,
that failed to comport with the most basic notions of fairness.”
Excerpts taken directly from the Complaint are below [n.b.:
the complaint is nearly 50 pages long so the following is abridged and redacted
to remove identifying details]:
The Allegations
In the spring of 2013, a Colgate
student with whom [the Plaintiff] once had a brief relationship, alleged that
he had once pushed her in 2012. She claimed to be reporting the incident—a year
after it happened—because of an incident from 2011 involving [the Plaintif]f
and another student, [the Plaintiff’s girlfriend]. Colgate already knew about
the 2011 incident and had imposed a no-contact order at the time, which the
girlfriend later asked be lifted. The
student’s 2013 allegations, given their timing and nature, were inherently
suspicious; indeed, they were made out of jealously because [the Plaintiff] had
rekindled his relationship with his girlfriend.
Colgate waited more than a month
after receiving the allegations before contacting the girlfriend, at which
point she made clear that she had no complaint about the Plaintiff —in fact,
they were still extremely close.
Before anyone had spoken to [the
Plaintiff, an administrator decided] that [the Plaintiff] would be placed on
interim suspension.
[This administrator] did not
disclose the fact that s/he had a conflict of interest due to a close advising
relationship with [the girlfriend].
The Department of Education’s
Dear Colleague Letter provides: “any real or perceived conflicts of interest
between the fact-finder or decision-maker and the parties should be disclosed.”
Coercive Interrogation
[The Plaintiff] and [the
girlfriend] went to the Campus Safety Office together on March 22, 2013,
arriving around 2:30 p.m.
Off and on for more than six
hours, [Campus Safety] aggressively questioned [the Plaintiff]. [S/he]
consistently accused him of wrongdoing, used sharp, leading questions, and
twisted his words. It was clear that [Campus Safety] had already made up
[their] mind about the facts and was not seeking the truth. At no time [was the
Plaintiff] allow[ed] to freely tell his side of things.
[The Plaintiff] was never told
that he had the option not to speak with [Campus Safety] or that he had the
right to seek counsel or to have a representative of his choice with him. [The
Plaintiff] was not told what the allegations against him were.
Upon information and belief,
before [the Plaintiff]’s interrogation, a faculty member had alerted [Colgate
administration] to his/her concern that [Campus Safety] had entrapped a student
during an interrogation and misrepresented what the student had said. Upon
information and belief, Colgate has taken no action to prevent this from
happening to other students.
At approximately 7:30 p.m., [the
Plaintiff stated] that he was feeling faint and dizzy from having not eaten all
day. [The Plaintiff] was not permitted to leave the room to eat.
Following the interrogation, [Campus
Safety] prepared a report which misconstrued and misstated many of the things
that [the Plaintiff] had said.
[The Plaintiff was] provided a
letter, evidently prepared earlier in the day and before [the Plaintiff]’s
interrogation, stating that he had been placed on interim suspension. The
letter misstated [the student who contacted Campus Safety]’s allegations by
claiming that [the Plaintiff] had “choked” her when she had made no such
allegation.
[A Colgate counselor] had been
called to the Campus Safety Office. S/he asked to speak with [the Plaintiff] in
private at which point, s/he asked him if he was feeling suicidal or like he may
harm himself. He answered no.
[The counselor] then called [three
administrators] back into the room and told [the Plaintiff] to tell them what
he had told him/her alone in confidence.
The False Imprisonment
Absent legal authority or
justification, Colgate imprisoned [the Plaintiff] against his will for more
than thirty-six hours in a dirty, cramped, basement room secured by Campus
Safety Officers.
On March 22, 2013, at the Campus
Safety Office, [the Plaintiff was] told that he would be held in the basement
of Curtis Hall until his disciplinary hearing [scheduled for 10 day later], and
that he would not be allowed to go anywhere else.
[The Plaintiff was told] that if
he wanted to forego staying in the basement of Curtis Hall, he could return [home
and] the University would pay for the flight.
[Two Campus Safety Officers]
then escorted [the Plaintiff] to Curtis Hall where they directed him to the
deserted basement and to a cramped and dirty room, which had no linens or
pillows. The basement had no cellular reception and no Wi-Fi, which prevented [the
Plaintiff] from communicating his whereabouts to his family or friends.
The next day, March 23, 2013,
after he awoke, [the Plaintiff] realized that there was no drinking water
available in the room. [The Plaintiff] asked the Campus Safety Officer guarding
the door for drinking water, but no water was provided at that time.
Around 3:00 p.m., [a Professor]
called the Campus Safety Office and requested that [the Plaintiff] be allowed
to leave Curtis Hall and stay with him/her off campus. [The Professor’s]
request was denied. S/he was later told that the request would be sent to [an
administrator and was eventually approved].
Upon information and belief,
other students who have been placed on interim suspension have been housed
off-campus in a hotel paid for by Colgate.
After the False Imprisonment
Colgate administrators contacted
[the Plaintiff]’s family and warned that he would be criminally charged if he
did not return home.
Upon information and belief, on
March 25, 2013, [Campus Safety] called [the girlfriend] and intimidated and
pressured her to provide a written statement as soon as possible.
During the meeting with [the
girlfriend], [Campus Safety] made comments that [the Plaintiff] was violent
towards women due to his cultural background and nationality and questioned
whether [he] would be able to overcome twenty years of “cultural grooming.”
Upon information and belief, on
March 26, 2013, [the girlfriend] met with [an administrator] to express her
concerns of bias influencing the outcome of [the Plaintiff]’s disciplinary
process.
Upon information and belief, on
March 28, 2013, [the girlfriend] met with [another administrator] to express
the same concerns.
Harassment by Campus Security
Officers
On March 29, 2013, [the
Plaintiff] went to the Campus Security Office to review the evidence that would
be used against him at the hearing.
During that time, a Campus
Safety Officer intimidated and aggressively questioned [him]. He harassed [the
Plaintiff] for taking too long to review each page and about the notes that he
was taking.
At some point, another Campus
Safety Officer joined in harassing [the Plaintiff], and told him that his time
was “over.” At some point, [the Plaintiff was] told that he was “done for
tonight.”
Eventually, feeling too
intimidated to remain at the Campus Safety Office, [the Plaintiff] sent a text
message to [a professor] to ask him/her to pick him up. [One of the Campus
Safety Officers] demanded to know who [the Plaintiff] was texting.
The Hearing
The use of the Equity Grievance
Process in [the Plaintiff]’s case was improper as it is intended for
“complaints of sexual harassment, sexual assault, or other forms of discriminatory
and bias-related harassment,” yet none of the allegations in [the Plaintiff]’s
case involved such conduct.
[Campus
Safety] presented the case against [the Plaintiff] based on his/her biased and incomplete
investigation.
Neither
[the woman who contacted Campus Safety] nor [the girlfriend] testified at the
hearing.
One of the panel members asked [the
Plaintiff], in sum and substance, if he believed that his religion or culture
was the reason for his actions.
Upon information and belief,
after the hearing ended [an administrator] made several false statements to the
hearing panel, including: (i) [the Plaintiff] had been confined at Curtis Hall
for his own protection because he was suicidal; (ii) there was no relationship
between [the woman who contacted Campus Safety] and [the girlfriend], when in
fact they had been suitemates and [she] was clearly jealous of the fact that [the
Plaintiff] had rekindled his relationship with [his girlfriend]; and (iii)
there were no similar cases to compare appropriate sanctions.
The Appeal
On
or about April 10, 2013, [the Plaintiff] submitted a thorough appeal statement,
supported by a lengthy statement from [the girlfriend].
On May 1, 2013, [the Appeal
Officer] denied [the Plaintiff]’s appeal [in a] letter [that] contained
numerous inaccuracies and baseless conclusions.
For instance, [the Appeal
Officer] dismissed the bias in [the] investigation because it occurred before
the EGP hearing, and therefore, according to [the Appeal Officer], was not a
proper basis for appeal since the University’s policy allowed for consideration
only of procedural errors that occurred “during the EGP hearing.” [The Appeal
Officer] apparently chose to ignore the facts that: (i) [Campus Safety] was the
only person who testified against [the Plaintiff] at the EGP hearing; (ii) [Campus
Safety]’s biased investigation was used against [the Plaintiff] at the EGP
hearing; (iii) [Campus Safety]’s inaccurate report of [the] coercive
interrogation of [the Plaintiff] was, upon information and belief, provided to
the hearing panel; (iv) [the girlfriend]’s initial statement, which, upon
information and belief, was provided to the hearing panel, was compelled by [Campus
Safety], and [she] was never told that her statement would be used as evidence
at a disciplinary hearing; and (v) the subsequent statement [the girlfriend]
submitted in support of [the Plaintiff]’s appeal explained the serious and
pervasive bias she experienced during her meetings with [Campus Safety].
[The Appeal Officer] also
claimed that the bias and errors in [the] investigation, “even if they occurred
in the manner you describe,” did not constitute violations of the University’s
policies or procedures.
Regarding [the Plaintiff]’s
false imprisonment, [the Appeal Officer] concluded that “it does not appear
that the University acted unreasonably under the circumstances.”
Regarding the failure of [an
administrator] to properly disclose the conflict of interest created by his/her
relationship with [the girlfriend, the Appeal Officer] acknowledged that “the
University would expect an official to recuse him or herself in cases of
substantiated bias or potential conflict of interest.”
Yet, [the Appeal Officer] concluded that [the administrator’s] failure to
recuse him/herself from the disciplinary process was not error.
[The Appeal Officer] mentioned
an expulsion case which [the Appeal Officer] said was comparable. Upon
information and belief, that case involved a student who had been accused of
sexual assault by two different women, and both women actively pursued the
charges and participated in the hearing. Accordingly, that case is not
comparable.
After the Appeal
The day that [the Appeal
Officer] denied [the Plaintiff]’s appeal, [administrators] contacted [the
Plaintiff] and told him, untruthfully, that he must leave the country
immediately because his student visa was terminated when he was expelled.
Upon information and belief,
several meetings were held with Colgate faculty and administrators to discuss
what had transpired with [the Plaintiff].
Upon information and belief, at
one of these meetings, the President was confronted with what had happened to [the
Plaintiff], and he said that he was aware of the situation. Upon information
and belief, the President said, in sum and substance, “when [Campus Safety]
tells me someone has the profile of an abuser, I believe [them].”
Despite the fact that [the
girlfriend] admitted in both of her statements that she was responsible for
physical violence against [the Plaintiff], upon information and belief, she was
never disciplined.
Upon information and belief,
there is a disparity in the proportion of minority male students at Colgate who
are subjected to disciplinary proceedings through the EGP.
The lawsuit thereby alleges violations of the IVth and XIVth
amendments of the U.S. Constitution, discrimination prohibited by Title VI of
the U.S. Civil Rights Act and Title IX of the U.S. Education Amendment, violations
of New York State Human Rights law, illegal imprisonment in violation of New
York State law, negligence and breach of contract, and intentional infliction
of emotional distress, among others.
Individually-named defendants either committed the above
offenses or
are accused of being aware that the student’s right to equal
protection under the law was violated and had “the power to prevent it but
refuse[d] or neglect[ed] to do so” in violation of 42 USC 1986, Neglect to
Prevent Interference with Civil Rights. Under this federal code, every Colgate
employee who participated in the student’s disciplinary process is individually
liable and has been named as a Defendant in the lawsuit. This is why it is so important for faculty to
be aware of their responsibilities and legal liabilities.
Finally, we want to inform the faculty that another
international student was recently placed on interim suspension and also subsequently
expelled through the EGP for allegations that did not include sexual violence,
once again with no complainants or witnesses against him present at the EGP
hearing. As of this writing, his case is under appeal.