Trigger Warning: This article deals with issues related to sexual violence.
After filing a complaint with the federal government against Swarthmore College for violating the Clery Act, Hope Brinn ’15 and Mia Ferguson ’15 are preparing to file a second complaint with the Department of Education (DOE) Office for Civil Rights (OCR) for violating Title IX.
“The College seems to think we are above the law, that the administration is above the law, and that perpetrators of assault on this campus are above the law,” Ferguson said. “Students remain at the college that are an active threat to other people’s safety, and that’s been brought to the administrations attention, but it hasn’t been addressed.”
Brinn and Ferguson filed their first complaint early yesterday morning with testimonies from ten other students who say the College violated their rights under the Clery Act.
The Clery Act, signed in 1990, requires all colleges and universities to document and publicly disclose reports of crime on and near their campuses. The Act came in the aftermath of the tragic rape and murder of Lehigh University student Jeanne Clery in her residence hall in 1986.
In their complaint they state that the College has systematically discouraged students from reporting their crimes to local law enforcement and from going through formal judicial proceedings. They also claim that the College has consistently underreported incidents of sexual misconduct to the Annual Clery Security Report and to the College community in campus wide communications.
This comes three days after President Rebecca Chopp announced the College would hire an external review board to conduct an independent evaluation of the College’s policies and procedures addressing sexual assault.
Students say they cannot trust the administration to fix a problem they played a leading role in. Brinn, Ferguson, and the ten other students who provided testimonies for their complaint say they believe that only through putting external pressure on the College through a federal complaint will the administration make significant change.
According to Adam Goldstein, attorney advocate for the Student Press Law Center (SPLC), within the next two months the Department of Education should announce the investigation and send a letter to the College outlining the nature of the incident. Should the DOE decide that Brinn and Ferguson’s complaints merit an investigation, the DOE will send a four person team to campus within six months to determine if the College is in violation of the Clery Act. If the panel of investigators determines that the College is in violation of the act, they will publish their findings publicly and send their report to a second panel to determine if the College should be fined. Issuing fines is the only legal action the DOE can take when they find a college in violation of the Clery Act.
Brinn and Ferguson say that they became concerned with how the College treats survivors of sexual violence a few months ago, after hearing more and more students talk about their frustrations and sometimes traumatic experiences with members of the administration.
Then, two weeks ago, while they were chalking for the referenda against Greek life, a staff member approached them and asked them if they knew about the “sexual assault cover-ups.” They didn’t.
They say that the staff member told them about hearing stories of the College systematically not documenting or investigating reports of sexual assault and, in one instance, destroying evidence associated with a sexual assault case. The staff member, who asked to remain anonymous, told The Daily Gazette they had not witnessed these events first hand, and they happened more than four years ago. They have not been substantiated. But this information motivated Brinn and Ferguson to find out more about how the College addresses sexual assault.
“That sparked my and other students’ concerns about how the administration was handling sexual assault,” Brinn said.
They both had their own experiences with the administration.
Brinn says she was a victim of continued verbal and sexual harassment by a male student. When she finally reported the harassment to the College, she says they were indifferent to her concerns. One administrator, she says, even laughed at her. She says they told her it was probably just a misunderstanding.
“Ultimately the College refused to call it sexual harassment even though it fit all the criteria for sexual harassment,” Brinn said. “They would only call it harassment by communications.”
To resolve her complaint, she says the College told Brinn and the accused neither one of them was allowed to contact the other.
Ferguson says she was sexually assaulted the fall of her freshman year. She did not report her assault to the administration but she did report it to a Residential Advisor (RA), who she trusted. Later she found out that this RA did not, as is required, file her assault as a statistic for the Clery Report.
RAs are supposed to be educated and trained to address reports of sexual assault and must report them to Clery and the Title IX coordinator.
After speaking with other survivors, they decided they needed to take legal action.
Brinn logged on to LinkedIn and reached out to Andrea Pino, the student who co-wrote a complaint with 4 other students against the University of North Carolina Chapel Hill (UNCCH) last January. They became friends on Facebook and then started talking on the phone. Now, they text almost everyday.
After filing complaints with the federal government against UNCCH for violating the Clery Act and Title IX, Pino and the lead complainant, Annie Clark, reached out to students Dana Bolger from Amherst College and Alexandra Brodsky from Yale University. Together, they formed a team of informal consultants that help students understand their rights under Clery and Title IX and help them submit formal complaints to the DOE. It has grown into a vast underground network of survivors from dozens of universities, spurring a domino effect of complaints filed against colleges and universities across the country, of which the complaint against Swarthmore is now one.
Brinn and Ferguson say the group helped them understand the Clery Act and file their complaint against Swarthmore.
In an interview with The Daily Gazette, Pino says their motivation for forming this group was not only to help disseminate information to fellow survivors but to help the country see this problem as a pervasive, national issue.
“We’re coming together and we’re framing the bigger problem so more schools are likely to connect with us because they’re able to see that what’s happening in our school has been happening at their school as well,” Pino said. “What survivors are going to find out is that they’re a lot less alone than they ever even imagined. We never want people to go through what we went through.”
In filing their complaint, Pino says they struggled not only with understanding their rights under Title IX and Clery but also how to illustrate how their university’s pervasive culture of sexual assault constituted a violation under those laws.
Just yesterday, Pino says they launched a national campaign called Know Your IX to educate all students about their rights under Title IX by the beginning of the fall semester.
Yesterday, The New York Times reported students at Occidental College, who also worked with Pino and Clark, joined the ranks with students from Swarthmore in a growing national movement against systemic Title IX and Clery violations. According to the Huffington Post, 7 other colleges are currently undergoing major reviews of their sexual assault policies, including Amherst College, Yale University, and the University of Notre Dame.
The DOE’s investigation of UNCCH is still underway and will be for a while.
Pino has been subject to severe backlash for filing the complaint against UNCCH. Her email has been hacked, her dormitory door graffitied, and a knife left in front of her room. The University didn’t take action to address these instances of retaliation until a fellow student wrote a letter to the editor of The Daily Tarheel, the campus newspaper.
“When it first happened no one really thought it was a big deal,” Pino said. “It was very difficult to process that but it really just affirmed for me just how bad the culture is for things like this to be accepted. It’s more than just sexual violence. It’s more than just vandalism. It’s really about this culture that makes this okay.”
An unsafe and silencing culture is exactly what Brinn and Ferguson are going after Swarthmore for in their complaint.
“I don’t want this to be about my case,” Ferguson said. “The Clery Act is not looking at specific perpetrators. It’s looking an entire culture and an administrative system that allows for sexual assault to occur and persist. We’re looking at a structural problem.”
Brinn and Ferguson’s complaint argues that a mistrust of the College among students has created an environment that discourages students from reporting their assaults. This is where the Clery Act and Title IX converge–and it’s unclear under which the complaint against the “hostile environment” belongs.
While the Clery Act’s central purpose is to ensure colleges are documenting and reporting crime on and near their campuses, it can also be extended to ensure that survivors of sexual assault are not discouraged or hindered from reporting their assaults.
Title IX is meant to protect students from discrimination based on sex. The “Dear Colleague” letter, published by the DOE in 2011 reminding colleges of their obligation to uphold Title IX, clearly states that failure to adequately address instances of sexual harassment, which includes acts of sexual violence, creates a hostile environment for women and a barrier to their right to an equal education.
Goldstein says these unclear demarcations between Title IX and the Clery Act have prompted the DOE to consider merging the two investigations.
“The Clery violations are going to come with Title IX investigations because a lot of the things students are alleging are really Title IX violations and not Clery violations,” Goldstein said.
“Clery is about how you count the crime whereas Title IX is about how you determine wrongdoing,” Goldstein said.
This is why most colleges, including Swarthmore, have had complaints filed against them for both Title IX and Clery violations. A joint investigation by the DOE, however, may still be a couple years down the road, if at all.
“They’ve made provisions for doing the investigations jointly, but that may not actually come to fruition,” Goldstein said.
The main distinction between the two, Goldstein outlined, is that investigations of Clery violations have a broad view. They look at how larger systems hinder survivors from reporting their assaults. The College as a whole is the main focus of the investigation, not individuals or individual cases. This investigation is usually focused on records and how the College has documented and communicated reports of sexual assault.
Title IX, on the other hand, focuses on specific instances of discrimination. This is why Title IX complaints have a 180 day statute of limitation while the Clery Act does not have one.
Part of the reason the are students filing the complaint against the College is that they do not trust an external review by an independent consultant will force the College to make significant changes.
“We’ve gone through the regular routes to get support. We’ve had conversations with the administration about this. It feels like there’s very little trust we can invest in them,” Ferguson said. “I trust many administrators with many things. I don’t trust them when it comes to sexual assault.”
In an interview with The Daily Gazette, President Rebecca Chopp says she knows the survivor community is distrustful of the College and in going through an external review; she says she hopes the College can address the issue holistically, looking at everything from personnel and procedures to policies and education.
“I think there is an incredible amount of trust we’re going to have to build. I think it’s going to take time, and it’s not going to be easy,” Chopp said. “We have to get the culture right. Trust is about how you live in a culture. It’s not just about what the administration says or something the students do, it’s about a whole cultural fabric.”
In an email to The Daily Gazette, one student who wrote a testimony for the Clery complaint said she is suspicious about how effective an external review will be and whether their findings would ever be anything more than recommendations.
She writes, “I want a review of the way sexual assault has been treated to be based on the voices of students and survivors, not the findings of the CJC or the testimony of accused assailants. Part of me is hesitant to bring potential legal action against the College before the administration has had the chance to respond to the findings of the external review but at the same time, this action is spurred by a history of inaction that can’t continue to be ignored or excused because nobody knew it was going on.”
Several students who filed the complaint shared their stories with The Daily Gazette. One said that she was afraid to report her sexual harassment to the administration. She even set up an appointment with one of the deans. Then she didn’t go. She says she’s felt too unsafe. Another wrote testimony that she was told not to report her rape.
During the first six weeks of her freshman year, she says a male student led her to the basement of one of the fraternities houses and raped her in front of other people. She says she ran home and didn’t tell anyone about it. Later, she made an appointment with a counselor on campus. She says the person asked her numerous inappropriate questions about her drinking and what she was wearing. By the end of their conversation, this survivor said the counselor had convinced her that she probably had consented to her perpetrator.
She says the counselor, who no longer works for the college, told her there was nothing she could do about it, and that she shouldn’t report it because no one would believe her. She didn’t talk about it again until this year, three and half years later.
These students’ testimonies will stay confidential and anonymous. The DOE’s findings, should they choose to investigate Swarthmore, will not be.
The complaint is filed confidentially with the DOE, meaning only the Title IX Coordinator and select administrators will be able to read the complaint in its entirety. Reports of violations of the Clery Act are posted publicly on their website. They explicitly state the offense, the required action of the college to be in compliance, and the college’s response to the finding.
If the panel of investigators can determine from their visit to campus that an individual staff member has misreported or not reported a crime, they can name that individual in the public report, though this doesn’t happen frequently. Goldstein says the panel could determine that an individual has committed a crime if a student reports having filed a sexual assault report with the College and that report is linked to a specific individual who either did not report or misreported the student’s claim.
DOE investigations are not criminal suits; they aren’t decided in a court of law. Therefore, they can’t impose penalties on individuals or force the College to change its policies.
“There’s no individual penalty under Clery, it’s the institution that’s facing a fine, but in terms of an individual’s longevity at an institution or finding a job in higher education, having the DOE report that you failed to correctly report a crime is not a career-enhancing move,” Goldstein said.
The maximum fine the DOE can impose is $35,000 per violation. However, they are not required to fine a college that’s found to have violated the Clery Act. The College does have the opportunity to appeal such a fine, and the Secretary of Education has the power to reduce the fine the fining panel suggests but cannot raise it. The fine depends on how the DOE counts the violations.
“The DOE has the discretion to count violations in a lot of different ways,” Goldstein said, describing a hypothetical situation. “If [the DOE panel] looks back to 2010 and in 2010 the College reported 5 sexual assaults and they counted actually 15 reports while they were there, how many violations is that? The first time they visit they may count that as one, the second time they visit they may count that as 10, and then, if they have to visit after that that could actually end up being 20 violations because of 10 failures to put it in the crime blotter and 10 failures to put it in the school’s report.”
According to Goldstein, the DOE has the authority to inspect anything and everything the College has. There are no privacy rights that allow the College to refuse providing any documents the investigators need. These could range from recordings of survivor testimonies or minutes of College Judiciary proceedings.
With high personnel turnover in the last several years associated with the start of the Chopp’s tenure as president and inconsistent procedures for addressing student reports of sexual assault, it is unclear how much documentation of its actions the College has.
When asked how many students inquired about going forward with College Judiciary Committee (CJC) hearings during her time serving as “observer” to the process, Associate Dean of Student Life Myrt Westphal said she could not provide a definitive number because she did not document those conversations.
“I don’t keep records of people who come and talk to me. Before the Title IX change came you did not have to discuss this with anybody,” Westphal said.
Since the College overhauled its sexual assault policies, every report to a non-confidential reporting source outlined in the wheel of resources, must notify Title IX Coordinator Sharmaine LaMar of the incident, who begins an investigation. As part of her role as Title IX coordinator, LaMar is required to document every single report and look for patterns to see if the College needs to take action. For example, if multiple students claim independently that a single student has assaulted them, LaMar can take that student to the CJC without the survivors having to testify at the proceedings.
According to Associate Dean of Student Life Myrt Westphal, since changing its policies the College has also drastically improved its ability to report assaults under Clery.
“The Clery reports are going to look much different this year than they have in the past,” Westphal said. “Every second-hand report even is now documented.”
Joanna Gallagher, associate director of Public Safety and deputy Title IX coordinator, said she was not able to release the entire crime report for 2012 because it hasn’t been made public yet, but she was able to share that Swarthmore reported 11 sexual assaults to Clery. In 2011, they reported 6. In 2010, they reported 2. In 2009, they reported 4.
Gallagher attributes the hike in numbers to students feeling more comfortable about reporting their assaults to the College.
“People are reporting it more,” Gallagher said. “There has been increased awareness, education, and support around sexual assault. [The College does] a lot of awareness.”
According to the Clery Act even confidential reporting sources, excluding mental health professionals and clergy, are required to file a report for Clery’s crime statistics. Mental health professionals and clergy are not required to file reports but are able to.
Low-reporting of sexual assault in the Clery Report is not a phenomenon unique to Swarthmore.
In statistics pulled from Clery, in 2011 186 sexual assaults were reported from a set of 129 private, 4-year colleges with 1,500-2,000 students, about 225,000 students total. That means roughly 1 in 604 women reported being sexually assaulted in 2011 at small private colleges. This statistic is an extremely inaccurate illustration of the prevalence of sexual assault on college campuses according to a study cited by the “Dear Colleague” letter. That study found that 1 in 5 women will experience sexual assault while at College. And while the Clery statistics appear to be completely useless in understanding the pervasiveness of sexual assault, they can describe, it seems, just how underreported sexual assault is.
In an interview with The Daily Gazette, Dr. Chris Krebs, who co-authored the study, said sexual violence is the most underreported of all crimes.
“Many of these women who report being victimized in our survey would have never come forward and never become an official statistic that would be reported to the F.B.I. or would be reported in state crime numbers or local crime numbers or certainly to Clery Act numbers,” Krebs said. He did say there are also institutional barriers to reporting, which includes what survivors have heard about reporting sexual assault to officials at their colleges.
“Some of those institutional barriers have to do with how they think they’re going to be treated,” Krebs said. “A lot of women on campus, even if they haven’t been victimized themselves, know someone who has been victimized and maybe that person wasn’t treated very well when they came forward.”
Ferguson said these statistics are also reported alongside college rankings and could be a deterrent to prospective students and parents if a college’s statistics are much higher than its competitors. She says there’s an institutional incentive to keep these numbers low.
“Nationally we have this issue that we have absurdly unrealistic data and absurdly unrealistic analysis about where our problems lay,” Ferguson said. “We’re saying our crime rates are really low, our sexual assault rates are really low, but that’s not the reality.”
In filing the complaint against Swarthmore, Ferguson says she hopes that survivors feel more safe reporting.
“We’d be doing the right thing and that would allow for other colleges to follow suit,” she said.
This is not the first time Swarthmore has faced this kind of legal action.
During the fall 1993, Alexis Clinansmith ‘97 accused fellow freshman Ewart Yearwood ’97 of sexually harassing and stalking her after she refused to go out with him. When Yearwood broke a deans’ order to stay away from Clinansmith, he went before the disciplinary committee. The vote deadlocked 3-3 on whether he had sexually harassed her, but the Committee did decide he violated the deans’ order.
Yearwood, who was kicked out of an elite private high school for sexual misconduct, claimed Clinansmith misinterpreted his advances as intimidation. He is a Latino from East Harlem and Clinansmith is white, and from a Michigan suburb. The claim he made was that cultural differences between him and Clinansmith caused a miscommunication between them.
In January of 1994 she filed a criminal complaint in Delaware County.
To mediate the conflict, then-President Al Bloom proposed that Swarthmore pay for Yearwood, at the College on a full scholarship, to attend another college for the spring semester of 1994. Then he would potentially be invited to return to campus.
According to news reports from the time, President Al Bloom conducted his own investigation and said he did not believe Yearwood sexually harassed Clinansmith but that he did “severely scare” her, other students, and members of faculty and staff.
In the meantime, Clinansmith applied to transfer. She was accepted to Harvard University, but decided to stay at Swarthmore because several administrators assured her that Yearwood would not return to campus, according to The Philadelphia Inquirer.
When she heard that he was invited back in September 1994, she filed a federal lawsuit to prevent him from returning to campus. Included in her suit was $100,000 in emotional damages. Finally, late that year she charged Swarthmore with failing to report harassment and assault, filing suit in federal court once again.
However, Yearwood decided to stay at Boston University, his tuition there paid by an unknown donor. Vice President Maurice Eldridge ‘61 says the anonymous donor was affiliated with the College and hoped to give Yearwood a chance to earn a college degree.
Clinansmith dropped the federal suit against Yearwood, but sued Swarthmore for discrimination in December of 1994. She claimed Swarthmore practiced discrimination against women in failing to take any action to uphold their policies meant to protect students against sexual harassment and violence. She claimed Swarthmore failed to act in numerous cases involving reports of sexual assault and rape.
According to an article by The Philadelphia Inquirer on December 23, 1994, Clinansmith dropped her original suit and filed a new one. This time, the filing against the College was for discriminating against women by not acting to protect survivors when they reported their assaults.
The Philadelphia Inquirer writes, “The suit contends that Swarthmore failed to take meaningful action in numerous other cases involving allegations of sexual harassment and even rape.”
But the paper trail ends here. No more court documents. No more newspaper articles. Neither Eldridge nor Westphal nor Dean Karen Henry, who were all at Swarthmore during Clinansmith’s time, can remember what happened. Eldridge says he believes she later transferred to Harvard, but he can’t remember what happened with the case. It seems the charges were dropped.
Unlike a civil case filed in court, if the DOE decides to investigate Swarthmore for Clery Act and Title IX violations, the complaints will not be dropped.
“I want to put the administration in a place where they can do the right thing,” Ferguson said.
As Swarthmore faces a potentially long investigation and undergoes an external review, Brinn and Ferguson say they hope to continue building a national movement to address sexual assault at universities across the country.
They welcome others to reach out to them at email@example.com. Pino and Clark also encourage students who are interested in connecting with their network to contact them at firstname.lastname@example.org.
“Survivors need to know it’s okay to share their stories, it’s okay to come out, because there are people across the country that are going to watch this story,” Pino said. “In terms of those survivors that are still silent, that are still feeling silenced, now is the time to share your story because everyone across the country is participating in this conversation and none of us are alone.”
Photo by Max Nesterak/The Daily Gazette