Amherst: We Don’t Need to Consider Exculpatory Evidence Discovered After Appeal Period Closed

In response to a complaint filed in federal court this past May, Amherst College filed a response on Monday staunchly defending its expulsion of a student for sexual misconduct as well as its subsequent refusal to consider new evidence in the case.

The case, Doe v. Amherst College, stems from a sexual encounter between two Amherst students that took place in February 2012, about which the female student filed a sexual misconduct complaint in October 2013. The accuser claimed that while the encounter was initially consensual, she withdrew her consent while performing oral sex on the accused—her roommate’s boyfriend—at which point he held her head down and forced her to finish. The accused student, who had been drinking heavily, told Amherst’s investigator that “he had experienced a blackout” and did not remember the sexual encounter. After a hearing that the accused student alleges was deeply flawed and unfair (for more on that, see Professor KC Johnson’s discussion of the case at Minding the Campus), Amherst expelled the accused student in December 2013. He filed a federal lawsuit against Amherst in May 2015.

In addition to challenging the procedures used to investigate his case and find him responsible for sexual misconduct, the accused student’s lawsuit alleges:

[A]fter the disciplinary process had run its short course, the plaintiff discovered, and submitted to the College, irrefutable documentary evidence—text messages previously concealed by the complainant—which disclosed that the very night the sexual encounter occurred, the complainant had admitted that not only had she consented to the sex, but that she was its moving force. Nevertheless, Amherst has refused to take any action to correct or remediate the wrong committed against plaintiff.

In its answer to plaintiff’s complaint, Amherst somewhat shockingly defends its refusal to consider the text messages on the grounds that under its internal procedures, appeals based on new evidence may be made only within seven days of the university’s decision in a case:

[T]he College’s decision that it would not “reopen” a disciplinary proceeding based on documentation that was presented for the first time several months after the appeals period had expired was not arbitrary, capricious, or discriminatory.

Amherst’s reply also attempts to deflect attention away from the new text messages by noting that “much”—but not all!—of the new documentation would not have been relevant to the college’s decision.

If there truly are exculpatory text messages that were discovered only after the college’s appeal process had concluded, the college’s refusal to consider those messages because of its seven-day rule is outrageous. If true, the injustice is reminiscent of that experienced by Caleb Warner at the University of North Dakota. In that case, the university refused to rehear the case of a student found responsible for sexual misconduct, despite the fact that the student’s accuser was charged by local police with lying about the alleged assault. The university’s justification: Warner had not filed his appeal within the five-day period allowed by the university, even though the new evidence did not come to light until well after those five days had passed. (Eventually, under intense public pressure, the university did overturn the finding of responsibility.)

The lawsuit against Amherst is in its early stages, and we will keep you apprised of any developments in the case.