Walker ruling said to be imminent

Author: Ben Salkowe

According to attorneys and Middlebury College officials involved in a lawsuit filed by O'Neil Walker alleging racial discrimination by the College a ruling in the case is imminent. The College suspended Walker last spring after two campus judicial boards found him guilty both of "behavior unbecoming of a Middlebury student" and "disrespect for persons and property," after he was accused of entering another student's room unauthorized.

Walker maintained his innocence through both hearings and said the proceedings against him had been unfairly conducted. Immediately following his suspension, Walker filed suit in Addison County Superior Court against the College alleging that the judicial process had misidentified him in an instance of racial discrimination.



Confusion and intrusion



The events that led up to Walker's current lawsuit against the College began long before protesters gathered outside Old Chapel last May, or even before David Hawkins '05, who identified Walker as a suspect, awoke to find a stranger in his room last January.

At approximately 4 a.m. on the morning of Saturday, Nov. 4, 2004, a first-year male student living in Ross Commons awoke to find another male crouched by his bed. The student contacted Public Safety and on Nov. 12, Public Safety Officer David Delphia took a statement from the first-year in which he described the intruder as wearing a dark shirt and khaki pants, having very short hair and walking out of the room in a crouched position. The first-year told Daniel Gaiotti, assistant director of patrol operations, that he had not noticed the race of the intruder, but confirmed his original description that the intruder had short, dark hair that was about an inch long.

Only a week after the first intrusion, a second and more frightening incident was reported at 5:30 a.m. on Sunday, Nov. 14. This time the victim was a sophomore male in Hadley Hall. According to a summary of the student's statement prepared by Public Safety, "[The student] felt a hand rubbing his penis, which woke him up and startled him. He did not recognize the person, but described his skin as very dark." The victim jumped out of his top bunk bed to confront the intruder, who reportedly ran out of the room. Public Safety officers were called to the scene, but were unable to locate the intruder.

Later the same day, Lisa Boudah, associate dean of Student Affairs and director of Public Safety, met with the victim. The reported physical description was a male with "dark skin" and "African-American features," who was roughly six feet tall and 180-190 lbs. The victim reported that the intruder had been wearing a sweatshirt with the hood over his head, and described the intruder's hair visible from under the hood as "nappy."

That evening Boudah sent an all-campus community alert to all students and commons officials. While the alert did not highlight the incident as a sexual assault - it only mentioned "touching" - it did include the victim's description of the intruder's hair. A number of community members responded to Public Safety complaining about the racial undertones of the description, and the alert was promptly revised. The first racial tensions of the case had surfaced.

After the crime alert was issued, yet another student came forward. On Nov. 15, a first-year male living in Allen Hall approached Melody Perkins, assistant director of administration for Public Safety, with what he felt might be relevant information. The student reported that between 3 a.m. and 4 a.m. on Nov. 13, the night before the Hadley incident, a black male had stuck his head in the first-year's room. When asked if he needed help, the intruder left. The first-year reported that the male was just less than six feet tall, college-age with short hair and wearing a sweatshirt.

The following weekend Ross was placed under 24-hour lockdown with the exception of the dining hall, which was kept open strictly for dining hall hours from 7 a.m. to 9 p.m. The vague language of the crime alerts and the annoyance of a lockdown made the intrusions a campus-wide joke with many students referring to "the Ross Toucher" as a case of administrative overreaction to intoxicated students mistaking rooms.

"I think they were just both drunk," said Caryn LoCastro '07 last November in reference to the Nov.14 crime alert and another unrelated alert that had been released earlier. "Drunk guys go into the wrong rooms all the time, sometimes they pee in other people's rooms because they think it's a bathroom."

Hesitant to disclose more information on the nature of the intrusions, and with investigations underway, Boudah cautioned students that the situation seemed more serious. "This type of situation feels a little different," Boudah, told The Middlebury Campus just after the fourth incident. "Maybe people go to a wrong room, but this has a different feeling. People don't appear to be intoxicated - they know they're going in the wrong room."

While Public Safety says it investigates all cases independently, similarities in the three Ross intrusions were surfacing. Two additional incidents of room intrusion had occurred on campus in the semester, but the incidents were of males intruding in female rooms, had varying suspect descriptions and according to Public Safety, they were of a different nature than the Ross intrusions. To this day those incidents remain unsolved. The three Ross intrusions, however, were showing patterns. In the absence of clear suspects and in the face of repeated room intrusions, Ross Commons was placed under a 24-hour lockdown.

Then, in January, a fourth intrusion occurred. This time the victim would ultimately name a suspect.

On Jan. 30, Hawkins reported waking up at 6 a.m. to find a black male lying next to his bed in LaForce Hall. According to a timeline prepared by Boudah and Associate Dean of Student Affairs Karen Guttentag, "[Hawkins] jumped to the floor and turned on the light, confronting the intruder. The male said he was Kevin Jones or Johnson. When [Hawkins] took out his cell phone to call Public Safety to confirm the male's identity, the male became angry, grabbed the phone and threw it against the wall."

Again, Boudah released a community crime alert that afternoon. This time the intruder was described as a black male, with a light complexion, 5'10" to 5'11" tall and with short dark hair one to two inches long.

The following day Hawkins spoke with Boudah about his interactions with the intruder. Hawkins told Boudah he had identified several possible suspects in the College "New Faces" book. Public Safety Officer Edward Dolback checked on the names given by Hawkins, but one was abroad and the other two Boudah later determined were not enrolled that semester.

Meanwhile, a final pair of intrusions occurred.

This time two intrusions were reported on the same evening on the same hall. At 1 a.m., and later between 2 a.m. and 3 a.m., two male first-year students on the same floor in Hadley Hall were victims of two separate intrusions. In the first incident the student reported being awakened by the closing of a door, and 20 minutes later seeing a male step in his room, "approximately 5'10" to 5'11" tall, black, lanky [and] wearing a knit hat with ear flaps under the chin ties," according to the student's report. The student yelled at the intruder, who left.

Just after that intrusion, the other male first-year involved also awoke to the sound of his door closing, and after getting up to look outside in the hall, reported seeing a male running down the hall in a winter coat and wearing a winter hat with earflaps.



A suspect is identified



Eight days after Hawkins' intrusion, on Feb. 11, Walker became a suspect in the investigation.

It was on that evening that Hawkins encountered Walker at Middlebury Discount Beverage and first
claimed to recognize Walker as his intruder. Hawkins confronted him and asked who he was and whether he had been in his room. Walker identified himself to Hawkins but said he had had not been on campus during the intrusion.

Hawkins e-mailed Boudah that night to say he was "almost positive" Walker was the intruder. Several days later Hawkins told Boudah he was "95 percent sure" and requested a no contact order.

Walker, however, did not appear to fit any model of a repeated intruder. A soft-spoken student who was in the College Orchestra and on the cheerleading squad, he was the first in his family to go to college. He was awarded a Posse scholarship to attend Middlebury and planned to attend law school after graduation.

Boudah went on to interview Walker multiple times. According to the report prepared by Boudah and Guttentag, Walker told her he had been with friends in town the night before Hawkins' room was intruded upon. He said he returned to his room in Hadley alone at 3 a.m. and awoke early the next morning for breakfast before taking a bus to New York City. "[Boudah] questioned this, as there are no buses departing from Middlebury on Sunday afternoon for New York City. Upon reviewing his bus receipt, it was confirmed that he had traveled on the bus on Monday, Jan. 31," the report said.

It was in this second interview that Boudah "confronted [Walker] with her suspicions that he [had] been entering student rooms without authorization, and he denied these assertions."



Judicial process on trial



If the confusing barrage of crime alerts related to the intrusions had frustrated students trying to make sense of the situation, the secrecy and confidentiality of the judicial process by which Walker was judged before two separate boards of administrators, faculty and peers infuriated those trying to understand what was happening.

Walker was brought first before the Community Judicial Board (CJB) - an eight-member board consisting of the Dean of Student Affairs, one staff member, two faculty members and four students. The CJB unanimously found Walker guilty of "behavior unbecoming of a Middlebury student" and "disrespect for persons and property." His penalty was suspension through spring 2006 with the possibility for Walker's readmission in fall 2006, provided that he pursues therapy. Walker appealed the decision to the Judicial Appeals Board (JAB), which granted the appeal solely on the basis of a procedural error in the first hearing. The inclusion of access card records as evidence in the first hearing, when those records should have been destroyed after 60 days in accordance with College privacy policies, was deemed grounds for appeal.

The JAB upheld the CJB's decision, but reduced the penalty to allow Walker readmission in the spring of 2006.

To this day the deliberations of the judicial boards are largely unknown. What is known is that Hawkins was the only victim of an intrusion to identify Walker as the intruder. None of the other victims were able to say that Walker had been in their rooms. "The delayed identification, and the mistaken identification of other African Americans, raises a serious doubt regarding the reliability of his identification, especially given established principles of own-race bias in eyewitness identification," Walker said in a statement following his suspension.

Access card records introduced in the hearings supported both Walker's alibi and the intrusions for which he was blamed for. Any additional information or testimony that found Walker guilty before the judicial boards was barred from public access by Walker's request for a confidential hearing at the start of the proceedings.

I realize that I attend school with students who have had limited encounters, if any at all, with blacks before coming to Middlebury College, Walker wrote in an e-mail that spread to students across campus. However, this is a liberal arts college with many highly educated students who are aware of differences and are capable of articulating distinguishing features of a person (regardless of race) that they encounter.

With no further options for appeal within the College judicial system, Walker took the next step. Represented by two Middlebury attorneys, a friend's father, Robert Weltchek, and eventually the civil rights lawyer William Murphy, Jr., Walker filed suit against the College in the Vermont Superior Court of Addison County.



National media turns an eye



The night before Walker first appeared in court to press charges of racial discrimination against the College, an e-mail including a statement by Walker was rapidly forwarded to every corner of the campus, sometimes under the subject line: "Ross Toucher Court Case Today".

The e-mail and word of mouth brought hundreds of students to the courthouse on May 10 for the case's first hearing. If racial tensions had been building throughout the year, they were at a boiling point that afternoon. About 75 students were allowed into the courthouse, and more than a hundred more stood outside. Following the hearing many of those students returned to campus and staged a protest outside Old Chapel.

President Ronald D. Liebowitz sent an e-mail to all students the following morning asking for an all campus meeting. "A number of issues have arisen on campus in recent weeks that have created concern among students about the campus climate with regard to diversity," Liebowitz wrote. "Because I feel that it is important for us to have an opportunity to share these concerns before people leave for the summer, I would like to hold an open meeting this afternoon, at 5 [p.m.] in McCullough."

For several hours that evening Liebowitz fielded complaints, criticisms and questions from a frustrated body of students seeking explanations. Campus issues of race and discrimination had burst into discussion - students sometimes arguing with each other in addition to with the President. Citing the President's limited role in judicial board proceedings, Liebowitz said he had no involvement with the decisions and would not overturn them. Citing confidentiality restrictions and a pending lawsuit, Liebowitz said he was unable to answer questions about the Walker case proceedings.

Over the course of the summer, the national media took up the story. The Village Voice ran a May 31 story under the headline: "Busted for Blackness at Middlebury: How a Bronx senior with a sterling record got kicked out of a tony Vermont college." National Public Radio ran a segment on the story July 19. Online petitions and countless blog entries have spread through cyberspace assailing the College's handling of the situation.

Speaking of the College's judicial boards, Murphy, the civil rights lawyer representing Walker told The Village Voice, "It was a kangaroo court. No lawyers were allowed in, and the burden of proof was set very low."

But College administrators have stood by their judicial process. "If I had believed that Mr. Walker's race was prejudicially or inappropriately considered in the process of the underlying investigation, or the charge process, I would not have supported the pursuit of discipline as I did," wrote Marichal Gentry, associate dean of the College, in an affidavit to the court. Gentry is also black.

In an interview this week, Weltchek cautioned that the media reports of the case had in some cases lost focus on the actual issues at hand. "We were in court for two full days and no reporters were present," he told The Campus. "No one [was] in the courtroom to report the facts as they saw them."

For now the emotions and frustrations will have little impact on the future for Walker or the College, as both await a ruling that could come from the court any day now.

Walker's lawyers would not say whether or not they intended to appeal a ruling if it sustained the College's judicial actions.


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