By David Frank
The Daily Record Newswire
Brown and Duke Universities have more in common than you might think.
Both are Top 10 schools that cost $38K a year.
Both can rattle off alumni lists that include U.S. senators, Supreme Court justices and Nobel Prize winners.
And neither seems overly concerned with that thing called due process we lawyers tend to get all hot and bothered about.
Case in point: A federal judge in Providence is currently overseeing a lawsuit brought by William R. McCormick III, who claims he was tossed out of Brown during his freshman year over false rape allegations brought by a fellow student.
McCormick earned a 2005 scholarship to the Ivy League school by finishing sixth in his class in Waukesha, Wis., with a 4.0 GPA and a 95th percentile ranking on the ACT exam.
His 43-0 record as a high school state champion wrestler didn’t hurt either.
On Sept. 12, 2006, six months after we learned about the appalling rush to judgment in the Duke University lacrosse scandal, a freshman classmate accused McCormick of rape.
The 275-pounder says in court papers that school officials shot down all efforts allowing him to clear his name, in part because his accuser’s father is a powerful Brown grad who donated “very substantial sums of money” to the university.
McCormick claims his classmate initially accused him of stalking, and then — encouraged by her friends and dorm advisor — reported she had been raped.
The following day, McCormick says, the school informed him he had been accused of “sexual misconduct.” But it violated its own policies by failing to provide him with a copy of the complaint or the substance of the allegations against him.
Instead, school administrators, who never reported the rape claims to police, barred McCormick from campus, drove him to the airport, and handed him a one-way ticket home pending a full hearing.
“The thought that with all of the people involved in this matter at different levels, a determination is made to not tell law enforcement, even the Brown police — I’m having trouble getting that,” U.S. District Court Judge William E. Smith told the lawyers in the case at a recent hearing.
Michael Burch, an assistant wrestling coach who was McCormick’s faculty advisor, says he repeatedly asked Brown officials to bring in trained investigators.
“I said countless times that I didn’t understand why they weren’t involving the police,” he says. “You’re alleging a first-degree violent rapist is out there, and you’ve facilitated his exodus out of the state, and yet you’re not even bothering to call in the police?”
Attempts to collect exculpatory witness statements, Burch says, were rejected.
Requests to run DNA tests on the accuser’s clothing and efforts to check her cell phone records, which typically play a huge role in sexual assault cases, were similarly shot down.
After the snap judgments made in the Duke fiasco, I’m not about to draw any conclusions as to whether McCormick or his accuser is lying.
But if what McCormick says is true, how can Brown explain treating one of its own in such a constitutionally challenged way?
The school’s lawyer, Steven M. Richard of Nixon Peabody in Providence, declined to comment. A university spokeswoman could not be reached for comment prior to deadline. But in May, Brown University President Ruth Simmons called McCormick’s allegations “utter poppycock.”
Boston civil rights lawyer Harvey A. Silverglate, who has been following the case closely, has a different take on the matter.
“These campus tribunals, whether for rape or anything else, are the quintessential kangaroo courts,” he says. “What you get in the midst of institutions that are supposed to be devoted to rationality, to developing facts and drawing reasonable conclusions, are these bizarre tribunals where the facts simply do not matter.”
Silverglate, who was involved in a 2000 discipline case in Massachusetts involving Brandeis University, says colleges are more interested in public relations than due process.
“It is an outrage for both the accused and the accuser,” he says. “Nobody who actually has a brain would think the procedures at Brown, Duke or here in [Massachusetts] are fair.”
The parties are currently fighting before Judge Smith over how and when the alleged rape victim can be deposed. Her lawyer says an agreement reached in 2006 precluded McCormick from filing his complaint. In exchange for McCormick agreeing not to sue, his accuser reportedly promised not to pursue criminal charges.
Meanwhile, McCormick’s lawyer, J. Scott Kilpatrick of Providence, says the agreement was made under duress and is unenforceable.
In a June 18 filing, he wrote that “it is time to proceed with what Brown didn’t do and what local law enforcement never had the opportunity to do, investigate and determine the veracity of the allegation of forcible rape.”
While the federal case will go a long way toward determining whether the alleged conduct rises to the level of civil liability, journalist Stuart Taylor Jr., a Harvard Law graduate who co-authored a must-read account of the Duke debacle, says it’s not hard to see the stunning similarities between the two cases.
“The rank lack of due process characterizes both,” he says. “The fact that [McCormick] didn’t get a fair process seems utterly clear.”
