Occidental Belatedly Attempts to Seal Case Documents—and Fails

In February, former Occidental College student “John Doe” filed a pseudonymous lawsuit against the institution, alleging that the college did not grant him a fair hearing before expelling him for an alleged sexual assault. With the stunningly bad facts of the investigation and disciplinary process made public, Occidental and its lawyers are trying—unsuccessfully—to get the cat back into the bag.

The files relating to the case are well worth examining. Among them are text messages documenting the accusing student’s planning to sneak out of her dorm room and into Doe’s room with the express purpose of having sex, as well as one professor’s alleged statement to 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.’”

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. Occidental attorneys argued that the report contained “sensitive, confidential and personal information,” but the judge stated, “I don't understand why [it] is so pressing in June when it wasn't so pressing in February.”

The late timing of the request for the documents to be sealed not only casts doubt upon its necessity and motive, but also renders it functionally useless—since, as experienced Internet users know, one cannot really erase anything from the Internet.

That didn’t stop Occidental from trying, though. 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.

FIRE hopes that with sunlight shining on cases like these, colleges and universities will change how they handle sexual assault cases. As Torch readers know, there’s a growing number of students suing their colleges and universities alleging that they were denied due process before being punished for alleged sexual assaults. Add that growing list of lawsuits to the scores of institutions already under investigation by the Office for Civil Rights for potential Title IX violations, and it’s clear that the present system is broken. As my colleague Will Creeley wrote last Friday, “Relying on the campus judiciary to handle serious crimes like rape continues to fail all involved.”

Institutions of higher education are caught between a rock and a hard place, and college administrators are increasingly speaking out on the issue, too. Los Angeles Times reporter Teresa Watanabe relayed concerns from Butte College administrator Al Renville in an article published last month:

What's frustrating for college administrators is that we are not a police entity. We have no subpoena power, no way to compel testimony, no forensics ability. … But we are responsible for investigating these cases and ultimately to make recommendations. … The feds basically have given us a huge responsibility with absolutely no funding. … Yet they're saying: “You better do it right or we're going to come in and fine you.”

A careful look at the Occidental case—or any number of the other sexual assault cases brought into the spotlight lately—makes clear that colleges simply aren’t qualified to adjudicate sexual assault cases. At least we can rest assured that important evidence demonstrating the inadequacy of the current system will remain in the public eye.