More on Vassar’s Rigged Sex Hearing

By KC Johnson
May 19, 2014

Controversy over one of the worst college hearings on sexual misconduct is moving right along. Vassar has requested summary judgment in the lawsuit of former student Peter Yu; last week, Yu’s attorneys filed a motion opposing Vassar’s request. The filing should get wide reading; in light of the administration’s efforts to ensure that more male students share Yu’s experience, this filing should join James Taranto’s exposé of Auburn of required reading on how a rigged process works.

Here’s the summary of affairs from the filing: “On March 7, 2013, a Star Chamber ‘hearing’ was held on the charge of sexual misconduct. The hearing panel consisted of four faculty members despite Yu’s request for a student on the panel and despite [Mary Claire Walker] being the daughter of a Vassar College faculty member. Yu had to act as his own lawyer. Only unsworn ‘testimony’ was given by [Walker] and the student witnesses. The hearing panel took such unsworn testimony at face value as a matter of practice, thus effectively negating any burden of proof, and also relied on the flawed investigator’s report. Right after the hearing, the three voting members of the panel found Yu guilty of sexual misconduct and ruled he should be expelled. The next day, March 8, 2013, only nine days after first being informed of the sexual misconduct charge, Yu was expelled, putting a disabling black mark on his record.”

Here’s my summary of the Yu-Walker sexual encounter, from an earlier article here:

“The two students consumed alcohol at a (rowing) team party in February 2012; one of Walker’s friends seems to have thought she was very drunk. After the party ended, Walker accompanied Yu back to his room. They started to have intercourse, but Yu’s roommate entered the room and interrupted them; Walker then said she didn’t want to go any further, and she left. The complaint quotes numerous, seemingly cordial Facebook exchanges between Walker and Yu over the next year, before Walker–on last day she could under Vassar procedures, a fact that is critical in retrospect–made a campus claim of sexual assault. She never filed a criminal complaint, nor did she, it seems, obtain a medical exam after her evening with Yu.”

Given the dubious nature of Vassar’s behavior, the Yu case is important in and of itself. But the filing also sheds light on three elements related to the current debate over campus sexual assault practices.

First: the idea that college procedures are wildly tilted against accusers–the basis of the myriad Title IX complaints filed against colleges and universities around the country–is divorced from reality. In the Vassar case, two witnesses that Yu requested be heard were not interviewed by Vassar and did not attend his hearing. Yu received Vassar’s investigative file (what amounts to the “discovery” in the case) three days before the hearing–and, as with all Vassar students accused of sexual assault, he didn’t have the right to counsel during the college proceedings. He confronted a panel of three faculty members, at the request of Walker, whose father teaches at Vassar. (That a panel confined to colleagues of the accused student’s father might be biased does not appear to have troubled the Vassar administration.) Once found guilty, the appeals process was meaningless, since the tape of Yu’s hearing was inaudible and the filing claims that Vassar never even gave Yu a copy of the written decision in the case before expelling him.

These one-sided procedures explain what appears to be a one-sided consideration of the evidence. To an even greater extent than the Harris case at St. Joe’s, Yu appeared to possess highly exculpatory, written evidence–a series of Facebook messages from Walker that even Vassar’s investigator (much later, when under oath) conceded contradicted Walker’s version of events. In a passage that commentator Christina Hoff Sommers could use as Example A in her concerns about equating drunken, but consensual sex, with rape, Walker wrote to Yu, “I did not treat you very well, and it was disrespectful on my part to do what I did because I was drunk.”

In what way did Vassar consider this material? In the judgment against Yu, under the heading of “information NOT considered in reaching a decision,” Vassar’s written decision contained a highly unusual scratched-out item: “Facebook chat because it occurred after the in….” In other words: the tribunal appeared to admit that it hadn’t considered the highly exculpatory evidence, before someone (perhaps the college counsel?) figured out such a concession could be legally problematic. But despite the tribunal modifying the record, there’s no reason to believe the panel gave any weight at all to how Walker’s own written words contradicted the story she told.

Second: the Task Force and OCR champion the idea of specially-trained sexual assault panels. At Stanford, to take one high-profile example, these panels worked to undermine any chance of guilt. At Vassar, the training seemed to be of a softer variety. Yu’s case was decided by the Interpersonal Violence Panel–whose procedures Vassar refuses to post online or make publicly available to outsiders. In depositions, according to Yu’s filing, the three members of the IVP “could remember little from these training sessions.” (One of the three panelists answered “I don’t know” or “I don’t recall” more than 100 times in her deposition.) But they did recall two things: despite the obvious relevance of such material to determining the truth, they weren’t to show any interest in the level of intoxication of the male student; and they weren’t to ask whether the accuser had gone to police or had sought medical assistance.

Third: in the Task Force report, the administration encouraged colleges to abandon any semblance of an adversarial process and allow an investigator (hired, of course, by the college and therefore subject to financial and ideological pressure from the college) to resolve the case. How did that aspect of the affair work for Yu?

According to the filing, Vassar’s Title IX investigator, who had been on the job for nine months, “could not remember any training he received.” The investigator subsequently admitted–at his deposition in the lawsuit–that Walker’s Facebook messages undermined her statement to the Vassar tribunal, but that he didn’t recognize the problem during his inquiry. And he added that while he looked into Walker’s alleged intoxication, it wasn’t Vassar’s policy to inquire about the alleged intoxication of the male student. Yet since Vassar (like most schools) holds that sex after a certain level of intoxication constitutes rape, how can the level of intoxication of both parties not be relevant? This would seem to be a Title IX issue of treating females differently than males.

It seems all but certain that in future years, lots of male students will suffer Yu’s fate. Parents of future students would be well-served in taking a look at how Vassar treated him.