Otherwise will ‘intimidate’ everyone in other sexual misconduct investigations
Washington University in St. Louis has twice earned the lowest ranking in America for sexual misconduct policies in the annual due-process report by the Foundation for Individual Rights in Education.
These aren’t outliers for WUSTL, best known for being mentioned in an episode of The Office, since FIRE has only issued its report twice. It earned a score of zero on the 2017 report and one on the 2018 report. The scale is 20.
The private university does not offer “timely and adequate” written notice to accused students, time to prepare with evidence, impartial fact-finders, “meaningful” hearing process, the right to present to fact-finders or meaningful cross-examination, active participation of an advisor, or meaningful right to appeal.
It neither uses the “clear and convincing” evidence standard, the next step above the coin-flip “preponderance” standard, nor requires unanimity from adjudicators in decisions. Its sole improvement in 2018 was less-than-total presumption of guilt.
If you didn’t think WUSTL could get any worse, look at its moves in court.
Following an ambiguous order from a federal judge in a due-process lawsuit by a student accused of sexual misconduct, WUSTL wants the lawsuit sealed. Completely. Including FIRE’s due-process report that names and shames the university.
In an opposition filing Monday, the university said the “excessive detail in the Complaint and the sensitive nature of the subject matter” should render it unavailable to the public in any form.
The anonymous student admitted to an error identified by the university: that “identifying information of the parties as well as nonparty witnesses” was incorrectly included in the exhibits when the suit was filed Feb. 22. He asked the court for permission to file the exhibits under seal.
That wasn’t enough for WUSTL. It claims the complaint itself and docket entries, which were posted online, can also identify parties and witnesses.
The judge ordered the student to refile the complaint and attached exhibits under seal and use “the initials of nonparties” in exhibit names. He asked the judge for permission to unseal several exhibits, including one that includes the name and photo of a member of the adjudication panel who showed “bias.”
“Given the sensitive nature of the subject matter, coupled with these early difficulties in
maintaining appropriate confidentiality, there is good cause” to seal the lawsuit entirely, WUSTL argues in the Monday filing:
It would infringe upon the privacy rights of the complainant [accuser], the respondent [accused], and the non-party witnesses to that investigation [including WUSTL staff] if their identifying information were to be disclosed to the public. Such disclosure would also serve to intimidate parties, witnesses and panel members in other sexual assault investigations and deter them from participating in the process out of fear that their identities could be later revealed in the public record.
The university claims that the 88-page lawsuit – since redacted by the plaintiff – is “unnecessarily detailed and graphic” to the point that the very “context of the narrative” could identify individuals.
This context? “References” to the student organization where the accuser and accused met; her ex-boyfriend’s initials; a description of the accused student’s “alleged sexual incident” with his ex-girlfriend; “other incidents of excessive alcohol consumption and the taking of psychiatric medications.”
The university also cites “references” to a student protest where the accuser allegedly spoke about the accused. “It would not take much effort to connect the dots and determine the identities of those involved,” particularly because the lawsuit uses “real initials.”
The College Fix has covered due-process lawsuits by accused students for several years, and none of these purported violations of confidentiality is unusual. They are standard operating procedure, to the point where the summaries issued by judges include the same details.
One particularly notable incident: A California appeals court included the name of the potentially hallucinatory medication the accuser was taking – hidden by the university – when she accused another student of sexual assault.
WUSTL wants the entire record hidden from the public “at least until” the judge rules on whether the accused student can seek relief.
The filing was flagged by Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation. He noted that FIRE’s 2017 report – where WUSTL received a zero – was among the exhibits the university wants to hide.
Ironically, one of the exhibits that @WUSTLnews wants to keep secret is…@TheFIREorg survey ranking it 53rd out of 53 schools (0 out of 20 in terms of rights provided) in terms of fairness in adjudications. Here's a link to the survey:https://t.co/JDQ4xZ5ZT5 pic.twitter.com/Zww0NnYQ8l
— KC Johnson (@kcjohnson9) March 11, 2019
Johnson provided The Fix a list of the exhibits from the docket and said the accused student “wanted exhibits from the investigation sealed but not the others.”
The exhibit names only identify the accuser as “Jane” or “Jane Doe,” use honorifics and last names for those who appear to be witnesses (“Exhibit Panel Interview”), and identify individuals in text conversations by their initials.
The only person named in the docket list is Vice Chancellor for Student Affairs Lori White. She shows up in a letter expelling the plaintiff and a “2019 Letter.”
Judging by the exhibit names, the list includes other public documents besides the FIRE report. They include a 2017 “Dear Colleague” letter (probably this one), “Improving WashU’s Response” (a likely candidate) and “University Under Investigation” (a student newspaper report).