“I obviously went through it, but to put [it] into words is harder.”
The voice on the other end of the line is unsteady.
Joshua, a 21-year-old Swarthmore College student, is calling from his home in California—three time zones and 2,800 miles away from the prestigious campus 30 minutes outside Philadelphia. He’s back on the West Coast for the summer, tackling unfinished coursework after leaving school a few weeks early.
But, on this late July evening, he’s recalling the night last fall when he was raped, and the details of how Swarthmore mishandled his case. (Joshua is a pseudonym; he spoke to RH Reality Check on condition of anonymity for fear of retaliation by Swarthmore’s administration.)
Joshua’s story is one of 13 testimonies accompanying the May 22 federal complaint filed with the Department of Education’s Office of Civil Rights (OCR) alleging Swarthmore violates Title IX of the Education Amendments of 1972—which prohibits schools receiving federal funding from discriminating on the basis of sex, a mandate extended to sexual harassment and sexual violence—by creating a “hostile environment” and discouraging students from reporting or pursuing disciplinary action against sexual misconduct. The same day, students from the University of Southern California, the University of California, Berkeley, and Dartmouth College lodged similar complaints.
In September 2012, after a big fraternity party on campus, Joshua was brutally and violently raped in the bedroom of an apartment rented by a friend of his assailant—a member of one of Swarthmore’s fraternities who, sometime just before the attack, went on a rant about which male students were “’faggots’ or ‘faggoty’ and if they were ‘so faggy,’ they needed to get slapped,” Joshua recounted.
He was then harassed by his offender through an online forum called (Like) Like a Little, which was created to gossip with and about Swarthmore students. Joshua considers the harassment an intimidation tactic intended to silence him. Under multiple pseudonyms, his rapist called him a “faggot,” “the admission’s mistake,” and “a pathological liar,” but his true identity was discovered after Swarthmore’s Department of Public Safety launched an investigation following a report filed by Joshua. Although the office found evidence of sexual harassment, Joshua said the rapist was at the time not penalized. “That’s … what caused me to really crack, because I watched him get away with something again,” he told RH Reality Check.
After learning he was not this rapist’s only victim, Joshua reported the September assault to Department of Public Safety Director Michael Hill and Associate Director Joanna Gallagher, who was also Title IX deputy coordinator at the time.
“I felt angry to hear that somebody else also experienced the same thing and even more graphic, and repeated,” Joshua told RH Reality Check. “It was just a crazy amount of power that [he] exhibited over people on campus, and he has the ability to keep people quiet, so I just decided to break the silence finally.”
The Department of Public Safety, which oversees campus security and handles campus emergencies, launched an investigation. It also opened a case with the College Judiciary Committee (CJC), the judicial body that tries “major infractions of College regulations.” The CJC has the authority to impose punitive sanctions, including fines, community service, suspension, and expulsion.
The handling of his case, Joshua said, was “sub-par,” with red flags at every turn. For instance, he said the case was delayed so the defendant could submit more witnesses, but Joshua was told he wasn’t allowed to do the same. (Joshua also finds it suspicious that the defendant was allowed to use a school administrator as his trial support person; that is permitted under CJC procedure.)
Joshua then had to relive what happened “over and over again” during the four-and-a-half-hour trial. Swarthmore’s dean of students, Liz Braun, who served as convener, repeatedly questioned his state of intoxication the night of the assault, per alleged observations from a defendant’s witness, and the panel worked to determine how sexuality played a role in a male student’s rape—“how a gay person can rape another gay person.”
According to Joshua, the person who assaulted him argued he was aware of “inch measurements” and how deep the penetration went—the implication being that there was consensual sex. “Then I was asked by Dean Braun whether or not I could corroborate the inch measurements,” he said. “[The assailant] was acting like there was a ruler on site at the rape.” In an email, Joshua noted that the assailant “later proceeded to mold his account of events into a situation in which I was forcing him to have sex with me (forcing himself to insert).”
The rapist was found guilty of sexual assault and expelled in May—the first student to face expulsion at Swarthmore in ten years, claim Joshua and Hope Brinn (class of 2015), one of the main complainants behind the OCR charge.
“The College Judiciary Committee process is in the most dire need of reform,” Brinn told RH Reality Check. Brinn reported experiencing sexual harassment and sexual assault on two separate occasions within the last two years, and said she was met with “deliberate administrative indifference” by the school. ”Students found responsible for committing sexual assault were able to appeal their decision and then before the appeal was final, transfer to another school without anything on their record or on the college’s.”
While campus judicial procedures do not explicitly state it’s possible for students to leave school without anything on their record during the appeals process, they do note that a CJC hearing will not move forward if a student accused of sexual misconduct withdraws from Swarthmore before the case is tried. The only way a trial will continue, though, is if the student applies for readmission; the case would have to be heard prior to re-entry. This means an accused student could conceivably withdraw from the college and attend a different one, with none the wiser to the accusations brought against him.
Under OCR’s Microscrope
On July 12, the OCR announced it’s opening an investigation into the Title IX complaint against Swarthmore. According to a letter obtained by RH Reality Check that was sent from the Philadelphia OCR office to the main complainants, Brinn and fellow student Mia Ferguson (class of 2015), the pair allege that Swarthmore contributed to a sexually hostile environment in part by retaliating against Brinn when a senior resident advisor told other students about Brinn’s experience with sexual assault.
The two students also claim Swarthmore “refuses” to provide survivors with living and academic accommodations, and drags out investigations beyond the general 60-day time frame set by the OCR in a 19-page federal guide released in April 2011 on how institutions should respond to campus sexual assaults. Many of the testimonies in the Title IX grievance include unresolved cases that have been open for more than 60 days, Ferguson said.
Just a week after the OCR opened its investigation into Swarthmore, Dartmouth and the University of Southern California became the latest institutions to go under the OCR’s microscope.
“There is a myth that Swarthmore has somehow been operating differently than every other elite institution just because it is ‘liberal,’” Brinn told RH Reality Check. “That is false. It is an old boys’ network just like any other elite school. An institution with as much money as Swarthmore is bound to have corruption like this regardless of how ‘progressive’ it is.”
In the late fall of 2012, 19-year-old Brinn, a native of Wilmington, Delaware, found herself among the 27 percent of college women who’ve experienced unwanted sexual conduct, according to the National Sexual Violence Resource Center (NSVRC). She was stalked and harassed by a fellow student, who not only broke into her room while she was undressed, refusing to leave, but would send her “furious, irrational rants via email and text with threats.” He also called her in the middle of the night screaming.
When Brinn reported the sexual harassment to the administration, her complaints were met with disbelief. She says Gallagher, then the Title IX deputy coordinator, questioned what Brinn did to “cause him to act like this,” while then-Title IX Coordinator Sharmaine LaMar, also Swarthmore’s director of equal opportunity, “immediately burst into laughter.” It was “certainly not sexual harassment” because sexual harassment “has to be repeated,” LaMar said, according to Brinn.
(While the Swarthmore student handbook defines sexual harassment as either quid pro quo or “usually repeated or persistent” unwanted sexual or sex/gender-discriminate action, the OCR simply defines it as any unwelcome action “sexual in nature” that creates an adverse environment for the student. The federal department also specifically states the conduct “does not necessarily have to be repetitive.”)
Although the offender admitted his actions to Gallagher, he was not punished, Brinn said. At the end of her case, the school reported it as “harassment by communications.”
“I want Swarthmore to be compliant with the law,” Brinn told RH Reality Check. Since filing the federal complaint, Brinn has also reported experiencing a “much more gruesome assault” during her freshman year, which is currently being investigated. “I want my emails to stop getting ignored. I want to stop being told that I’m lying about what administrators have told me. I want my assault to be called by its proper name. I want the process to be more transparent. I want these things not just for me but for all survivors on campus.”
The Title IX complaint also alleges Swarthmore staff enforcing Title IX are improperly trained, and that the school retaliated against Brinn a second time when it allowed the college’s student council president to erase her chalkings—a “typical form of political expression at Swarthmore,” she said—about her experience with sexual assault on campus, on the directive to remove anything offensive. The OCR will not investigate these two claims, noted the letter, because Title IX doesn’t regard specific training and it couldn’t determine the erasure to be adverse.
“The thing about Title IX is that it’s a lot of common sense,” Ferguson told RH Reality Check. The 19-year-old Massachusetts native reported being raped by a close friend in her residence hall the week of her birthday in November 2011. Her case is still pending, and there has been no movement. “You support a student. You help that student figure out what to do. You listen to that student, even if you think that maybe their story is confused and muddled. … You give access to other resources, and that wasn’t happening. That’s what’s bothersome. There’s so much basic stuff that seems to be missing.”
The OCR charge was filed a little over a month after Ferguson and Brinn lodged a federal complaint with the Department of Education, on April 18, complete with 22 testimonies, alleging the school has violated the Clery Act. Enacted in 1990 and amended in 2008, the Clery Act requires colleges to report and make public sexual assault and harassment incidents. The Department of Public Safety’s most recent Clery Act crime statistics show only 12 reported forcible sex offenses on campus and six in residential facilities between 2009 and 2011. (Ferguson said she knows the statistics have yet to be updated with her case.) There were zero reported non-forcible sexual offenses, which include incest and statutory rape.
According to the NSVRC, 15 percent of college men and 20 to 25 percent of college women experience rape during their college years. A study from 2002 also found that, at one college, 63.3 percent of men who “self-reported acts qualifying as rape or attempted rape admitted to committing repeat rapes.”
This isn’t the first time Swarthmore has faced legal action regarding sexual assault. As pointed out in Swarthmore’s The Daily Gazette, the liberal arts institution was hit with a federal lawsuit lodged by student Alexis Clinansmith in August 1994, alleging Swarthmore failed to protect her from sexual harassment by a fellow enrollee. The lawsuit was amended later that year to include claims Swarthmore violated federal law by exhibiting “a pattern and practice of discriminatory conduct toward its female students.” And, much like Brinn and Ferguson’s perspectives on Swarthmore’s processes, Swarthmore students who attended the school 20 years ago criticized the college’s handling of Clinansmith’s original case.
“The problem for me was it didn’t seem any leadership has historically tried to change structural policy at all,” Ferguson told RH Reality Check. “There are a lot of big question marks just around the basic common sense that seems to be lacking, and it all came together in all these violations that were being entirely overlooked, if not dismissed by the leadership.”
Specifically, Ferguson said the school’s leadership has dismissed egregious violations by specific staff members. Brinn, Ferguson, and Joshua all point to Tom Elverson—a former Swarthmore drug and alcohol counselor and vice president of alumni relations who also served as a liaison to the fraternities—as an administrator who’s flagrantly violated federal law. According to all three parties, the dean was known for saying, ”I am first and foremost a DU [Delta Upsilon International Fraternity] brother, second an alum, third a drug and alcohol counselor, and fourth an administrator.” He allegedly claimed to be a confidential resource for students. Though Elverson, who was cited in the Title IX complaint, was required to report incidents of assault and misconduct, the complainants all say he actively and repeatedly refused to do so. He has since been let go after his dual position of drug and alcohol counselor and fraternity liaison was eliminated.
When asked why, despite student claims of impropriety, Elverson was allowed to stay in his role for at least eight years before termination, and why Braun has been allowed to continue in hers, Secretary of the College Nancy Nicely responded that the “characterization of individual staff members is completely incorrect” and the “entire staff is dedicated to addressing this issue proactively, fairly, firmly and with the highest possible commitment.”
“Let me emphasize that nothing is more important to us than the safety and security of every member of this community,” Nicely wrote to RH Reality Check in an email, adding that Swarthmore plans to cooperate “fully” with the Department of Education. “We will not allow sexual discrimination, harassment, abuse, assault, or misconduct to exist unaddressed on this campus.”
“We are committed to devoting significant resources to making sure that we not only meet the letter and spirit of the fast-evolving laws on the issue, including Title IX and the Clery Act, but that we continue to evolve with and embody best practice in addressing these issue”s proactively,” she added.
A “Sea Change” Caused by a National Movement
At the time of the chalking incident, Brinn said she didn’t know what to do, but she knew she needed to do something. So she contacted Andrea Pino and Annie Clark, two sexual assault survivors who filed a Title IX federal complaint against their school, the University of North Carolina-Chapel Hill, earlier this year. (UNC is currently under investigation twice over, for allegations that it mishandled sexual assault and for retaliating against a student and complainant named Landen Gambill.) Brinn then connected with Pino—who assured her everything she experienced by the school was, in fact, illegal and guided her through the steps to file a federal complaint—and was invited to join the IX Network, a private Facebook group that’s brought together survivors and activists to “talk strategy and get support.” (The group is also behind the federal complaint filed against Occidental College.) The group, of which Ferguson is also a core member, is focused on helping students file complaints, discuss best policies and procedures for colleges and universities, and educate students about their rights. The expanded group, IX Connection, now has over 600 members from 50 different institutions.
On August 6, the IX Network, with other survivors, activists, and allies, launched Know Your IX (KY9), a campaign to disseminate information and educate students about their Title IX and Clery Act rights. The movement also serves as a means to empower members of academia to stop and prevent sexual violence by providing guidance on grassroots activism and advocacy on and off campus.
Know Your IX follows the network’s other campaigning effort, a Change.org petition, which now with over 170,000 signatures, pressuring the Department of Education to hold educational institutions fully accountable for not complying with federal law. The petition has the backing of Alexandra Brodsky, a KY9 member who, along with 15 classmates, filed Clery Act and Title IX complaints against Yale University in 2011 for creating a “sexually hostile environment.” The school was found to have “serious and numerous” Clery Act violations and was fined $165,000 in May of this year.
(RH Reality Check Online Community Manager Wagatwe Wanjuki is also involved in the above campaigns.)
“The reason people come forward, the reason we’re all part of this network, is because we want our peers to be protected and supported moving forward,” Ferguson said. “It’s not about seeking retribution even against the schools that have traumatized us. It’s about making sure our peers are safe in the future.”
As for Swarthmore’s future, the college plans to implement a series of changes to its sexual assault policies and procedures over the next year, such as hiring a new Title IX coordinator (LaMar was moved out of her role and replaced by Patricia Fischette, former trauma therapist at Swarthmore, in the interim) and reviewing “the role of alcohol and other drugs in creating an environment that can contribute to sexual conduct.” These proposed changes were informed by an interim report by Margolis Healy and Associates, a Vermont-based campus safety assessment consulting group, that was commissioned in mid-April to review the school’s policies and procedures. “We undertake this important work in the midst of a sea change occurring related to the federal laws and regulations governing how colleges and universities respond to sexual misconduct,” Swarthmore President Rebecca Chopp wrote in a July statement to the Swarthmore community.
In an April statement, Chopp wrote, “I want to state very plainly something that Dean Braun and I have consistently said for the last three years—we have zero tolerance for sexual assault, abuse, and violence on our campus.”
Kristen Houser, vice president of communications and development at the Pennsylvania Coalition Against Rape, says zeroing in on the role alcohol and drugs play in sexual misconduct is counterproductive unless colleges first recognize that sexual offenders choose who, when, how, and where to commit sexual assault, and start focusing on offender behaviors rather than victims’ responses.
“Alcohol doesn’t make you a bank robber. It doesn’t make you commit grand-theft auto. Rape is not a miscommunication to penetrate the anus, vagina, or mouth of another person with your own genitals or with a foreign object,” Houser told RH Reality Check. “It’s easy to ignore how ugly and invasive and violent, and what a personal violation, it is. Every time an assailant chooses to commit a rape, it’s absolutely a choice.”
Come the 2014-15 school year, universities and colleges across the country will have to comply with the recently passed Campus Sexual Violence Elimination Act (or Campus SaVE), approved in February as part of the reauthorized Violence Against Women Act (VAWA). Under Campus SaVE, which was first introduced by Sen. Bob Casey (D-PA), postsecondary institutions receiving federal student aid are required to adopt and disclose sexual assault and other intimate partner violence policies in their annual security reports; follow baseline tenets strengthening survivor protections and guaranteeing counseling, legal aid, and medical care; and expand program requirements to include prevention awareness and bystander intervention.
Similarly, on July 2, the Pennsylvania General Assembly enacted an education statute mandating sexual violence awareness education at higher education institutions and private schools. Per the law, programs must include a discussion of sexual violence and consent, “including an explanation that the victim is not at fault,” medical and legal assistance, and possible reproductive and sexual health outcomes. It also requires schools to use discretion and protect survivor confidentiality, as well as educators from campus security and local police, campus health centers, women’s and rape crisis centers, and campus psychological and student affairs services.
Ferguson says that while the recommendations “look great,” they neglect issues and solutions the IX Network has access to. According to Ferguson, the administration has not fully engaged the network or Swarthmore’s students; if they had, the administrators would have a better understanding not only of Swarthmore’s downfalls, but the problems arising at colleges nationwide, and would have the opportunity to exceed where other institutions, like Amherst College and Williams College—two liberal arts institutions typically ranked above Swarthmore on “best of” lists—fail. (Nicely insisted students are a “critical part” of Swarthmore’s “current and future planning and response.”)
“I feel like this could be the only way to get Swarthmore to change,” Joshua said. If Swarthmore is found in violation of federal law, the Department of Education could impose a hefty fine on the college. “They’re bringing up little anecdotal things they’re doing [to change], but probably the best way to get Swarthmore to understand is to have a financial burden for every burden they’ve caused on the psychological [well-being] of the student body and people who’ve graduated.”