Penn Loses Round One In 'Pillow Talk' Conspiracy Case

By Ralph Cipriano
for BigTrial.net

A Philadelphia Common Pleas Court judge on Thursday denied the University of Pennsylvania's request to have Mackenzie Fierceton's lawsuit against the university transferred to Commerce Court.

If the judge had granted the university's request, the Fierceton case would have been transferred to a court where judges routinely and quietly settle business disputes out of the public eye, and often, without a jury trial. 

But now Penn is stuck where it doesn't want to be, in Common Pleas Court. That's where Fierceton's lawyer is demanding a major jury trial, when the university's brutal inquisition of an already physically abused student will be on prime display as the overriding issue in the case.

It doesn't look pretty for Penn. 

And if that wasn't bad enough, on Friday, the Chronicle of Higher Education, which just did a major takeout on the Fierceton case, headlined "The Dredging," published a lengthy, five-page letter to the editor from a couple of Penn's own professors who served as Fierceton's academic advisors.

In the letter, the two Penn professors blasted Penn's "shameful" treatment of the grad student "who has had, all agree, a deeply traumatic life so far."

In short, it was a bad week for Penn.

The judge's order

In a one-sentence order, Judge Nina Padilla denied Penn's request to have the Fierceton case moved from Common Pleas Court to Commerce Court. 

Why?

The judge explained in a one sentence note that, "The facts alleged in the complaint fail to satisfy the Commerce Program criteria as this matter arrises from Defendants' alleged interference in [Fierceton's] ability to continue her education in general and at the University of Oxford as a Rhodes Scholar."

That sure sounds like trouble for Penn.

Fierceton's lawsuit

On Dec. 21st, Big Trial broke the story about Fierceton's lawsuit charging that top officials at the University of Pennsylvania had allegedly conspired with journalists at The Philadelphia Inquirer to smear Fierceton, after she had just won a prestigious Rhodes scholarship.

The lawsuit claimed that Penn officials also targeted their own grad student for retaliation after she became a key witness in a wrongful death lawsuit filed against the university.

As part of the alleged conspiracy, the lawsuit claims, Penn officials conducted a "sham" investigation that forced the student to voluntarily give up her Rhodes scholarship, after Penn officials threatened to [A] rescind Fierceton's undergraduate degree, [B] withhold her master's degree, and [C] send her to jail for fraud because she had allegedly misrepresented herself in an application to become a Rhodes scholar.

The lawsuits lists as defendants the university and its trustees, as well as three allegedly heavy-handed Penn officials: Beth Winkelstein, interim provost; Wendy White, senior vice president and general counsel; and Louisa Shepard, news officer for the Office of University Communications.

The lawsuit, filed by attorney Dion Rassias of The Beasley Firm, claims that as part of the conspiracy to smear and retaliate against Fierceton, Louisa Shepard, Penn's news officer, leaked "false and baseless accusations" against Fierceton to her husband, Gabriel Escobar, editor and senior vice president of the Inquirer, as well as "presently unnamed co-conspirators at The Philadelphia Inquirer."

As a result of what the lawsuit describes as "orchestrated pillow talk" between Shepard and Escobar, the "conflict-laden editor" of the Inquirer subsequently assigned Pulitzer-Prize winning reporter Wendy Ruderman to conduct a year-long investigation of Fierceton, the purpose of which was to "dig up any dirt possible." The alleged hit piece, however, was never published.

Penn and the Inquirer's response --  stonewalling, but it ain't working

While Penn officials and the Inquirer's reporter, editor, and publisher have stonewalled all inquiries from Big Trial about the lawsuit -- and the Inquirer has deliberately failed to inform its own readers about what's going on in the courts -- the Fierceton story has been picked up in the media by The Chronicle of Higher Education, the New York Post, the United Kingdom's Daily Mail, gawker.com, yahoo! news, Business Insider, and News Nation TV host Ashleigh Banfield. 

That's not to say in the Fierceton case that the news media has covered itself in glory. Of the bunch, the Chronicle is the only news outlet that did any actual reporting. In addition, some of the news outlets seem to have forgotten that of the protagonists, Penn's officials were allegedly the adults in the room. And of course the corrupt news media has turned a blind eye toward the Inquirer's own central role in the alleged conspiracy.

Penn, in its arrogance, hasn't seemed to learn anything, even after their heavy-handed excesses have been exposed in the legal case.

In  Common Pleas Court, Morgan, Lewis & Bockius LLP, the law firm defending Penn, has doubled down on the university's continuing campaign to destroy one of their own grad students by claiming that everything that Penn did to Fierceton was all her fault. 

"Mackenzie Fierceton was selected as a Rhodes Scholar because she offered an inspiring story -– an ambitious and driven student who succeeded in the face of extraordinary odds, having grown up in the State of Missouri’s foster-care system, 'bouncing' from one location to the next, the first in her family to attend college," Penn's legal brief states.

"That story unraveled after acquaintances from her hometown -- who knew Fierceton as Mackenzie Morrison, before she changed her name –- read about her selection as a Rhodes Scholar and wrote to Penn and the Rhodes Trust, saying that her claims of hardship were made up for personal gain."

"After those who knew Fierceton raised questions about her story, it was investigated – - not just once, but several times, and not just by Penn faculty and staff, but also the Rhodes Trust," Penn's legal brief states.

"Those investigations revealed that for the first 17 years of her life, Fierceton was raised by her mother, Dr. Carrie Morrison, an accomplished physician. Fierceton grew up in a wealthy community and attended an elite private school in a St. Louis suburb," Penn's lawyers state. "She entered foster care only at the age of 17, after making a complaint of abuse against Dr. Morrison  –- a complaint that a court later found not to be credible."

"Every objective and careful reviewer of the facts in this case –- including the Rhodes Trust, Penn’s Office of Student Conduct, a faculty committee from Fierceton’s graduate school at Penn, and a hearing panel consisting of faculty and students from other Penn schools –- concluded that Fierceton had not been truthful," Penn's lawyers state.

If only this was true, Penn would be in great shape in the legal battle against Fierceton. But it isn't, as two of Penn's own professors would subsequently explain, in great detail. 

The Penn professors' letter that eviscerates Penn

In their five-page letter to the editor of the Chronicle of Higher Education that was published Friday, Penn political science professors Anne Norton and Rodgers Smith eviscerated Penn's entire defense of its actions in the Fierceton case.

Besides blasting their own university, the two professors blame any misinterpretation of Fierceton's own personal story on the Inquirer for faulty reporting.

It's quite a takedown, and an inside job all the way. And when digested, it makes the actions of Penn's officials appear even more sinister than previously reported.  

"We have long seen the University of Pennsylvania as committed to educating and supporting its students," wrote the two professors who served as Fierceton's academic advisors during her dispute with Penn.

"We are deeply disappointed that in this case, its response has been prejudicial and prosecutorial," the two Penn professors wrote. "The conduct of senior administrators at Penn has violated published policies, principles, and procedures, and disdained the most fundamental commitments we have as academics: to do honest research and advance the welfare of our students."

"The Philadelphia Inquirer article on Mackenzie’s Rhodes Scholarship did have errors, and Penn did have to investigate and respond when anonymous St. Louis sources pointed them out," the two professors wrote about the Inky puff piece that started this own debacle.

"The right response would have been first to find out how those errors occurred, by reviewing with Mackenzie what she had said and why, by examining any changes introduced by the Inquirer reporter, and by examining Penn’s own advising, nominating, and publicity practices."

"The result might well have been a joint statement by Penn and Mackenzie to the media and to the Rhodes Trust describing her background more fully and correcting common misunderstandings about foster care," the two professors wrote.

"It might well have been even more appropriate to ask the Inquirer to issue a correction if, as we believe, the disputed phrase about her time in foster care came not from Mackenzie but from the reporter," the two professors wrote.

Penn's interrogation and abuse of Fierceton

Instead, the professors wrote, Penn Deputy Provost Beth Winkelstein subjected Fierceton to "a grueling interrogation focused on whether she had described her experiences of abuse accurately."

"This interrogation violated multiple university norms on disciplinary procedures and trauma-informed investigation," the two professors wrote. Winkelstein also proceeded as though "Mackenzie was guilty of malicious misrepresentation."

Winkelstein then wrote a letter to the Rhodes Trust "that contained blatant errors — errors that a simple glance at Mackenzie’s Penn file would have prevented," the two professors wrote.

"Both Mackenzie’s place of birth and name at birth were incorrect. Mackenzie’s application materials clearly stated her attendance at the private high school she purportedly concealed. Winkelstein also falsely charged that Mackenzie had misrepresented herself to her recommenders, without consulting the recommenders."

"No honest researcher would conduct so careless an investigation," the two professors wrote. "No responsible administrator would forward charges that would harm a student without a thorough investigation, and even carelessness cannot account for inventing a false charge."

"Penn’s central administrators appear to have unilaterally concluded early on that Mackenzie was a serial liar," the two professors wrote. "They reached this conclusion not through a formal investigation but through a covert process in which Mackenzie never had an opportunity to refute the sources."

Penn's "secret knowledge" that may not be true

"One senior administrator contended to one of us in the fall that the administration 'knows things you don’t know' that it could not reveal — as if secret 'knowledge,' arrived at without due process, could ever justify public punishments," the two professors wrote.

"We believe, moreover, that whatever Penn’s central administrators believe they secretly 'know' is not the truth.

"There are, however, things Penn knows, but refuses to acknowledge," the two professors wrote. " Since at least March of 2021, Penn has had access to the more than 80 exhibits Mackenzie assembled establishing her veracity."

"Mackenzie’s evidence also included extensive testimony to her abuse: from teachers, nurses, doctors, detectives, and others," the two professors wrote. "The testimony speaks to more than a decade of trauma. Penn has refused to believe that evidence, preferring instead to forward a narrative that casts Mackenzie as a grifter."

"Why did Penn’s central administrators decide that Mackenzie was a con artist, prior to any formal investigations, and without consulting any of Mackenzie’s teachers, advisers, or classmates at Penn?" the two professors wrote.

"The university’s recent brief suggests answers. It reveals that Penn’s General Counsel Wendy White conducted her own investigation prior to the one administered by Penn’s Office of Student Conduct, and concluded that Mackenzie’s account of abuse by her biological mother was 'fictitious.' ” 

"As the Chronicle’s article notes, neither the Rhodes Trust nor Penn’s Office of Student Conduct (OSC) ever contended this account was 'fictitious,' ” the two professors wrote.

"They made no determination. A Missouri court concluded, on appeal of a prior conviction, that while it was indeed possible that her biological mother had injured Mackenzie, the court lacked 'a preponderance of evidence' to decide just what the mother’s culpability was in an interaction in which, after all, only those two were present."

"General Counsel White simply made her own personal determination of guilt and has acted upon it, disregarding all evidence to the contrary," the two professors wrote.

Penn's reprisals against Fierceton

"Once Penn administrators wrongly convinced themselves that Mackenzie was a seriously disturbed pathological liar, a compassionate response might have been to suggest counseling," the two professors wrote.

"Instead, the General Counsel and the now Interim Provost embarked on a campaign of silencing and intimidation. Mackenzie was repeatedly threatened with the loss of her undergraduate degree and the Master’s degree in social work she was in the process of completing. These threats flew in the face of the University policies, procedures, and its responsibilities to support students."

"Mackenzie has no family and no financial resources," the two professors wrote. "So, threatened with the loss of her sole resource, academic credentials she has earned with distinction, she withdrew from the Rhodes."

"Penn then launched the OSC [Office of Student Conduct] investigation, promising to focus it on Mackenzie’s Rhodes, graduate, and undergraduate applications — though it proved to be a three-month effort to find every possible discrediting instance of misrepresentation in Mackenzie’s life."

"This effort descended to such absurdities as questioning her serving as doula to one of her foster mothers. (Mackenzie furnished her doula certificate and a photo of her with her arms still wet with blood from the birth)."

"Despite this extended effort, the OSC report concluded it could identify only one 'inaccurate' statement in those three applications, though it viewed some of her other phrasing as misleading. The one 'inaccurate' statement was her checking 'first generation' when she applied to the Master’s program in Penn’s School of Social Policy and Practice."

"Penn’s undergraduate admissions office, which had full information on her background, initially classified Mackenzie as 'first generation,' and after matriculating, she joined Penn’s FGLI community," which stands for First Generation Low Income.

FGLI defines first generation to include those who “have a strained or limited relationship” with their college educated family members, which would include Fierceton's biological mother, a St. Louis doctor, the two professors wrote.

"No Penn administrator or adviser ever told Mackenzie not to use this definition in applications," the two professors wrote.

Penn's secret collaboration with Fierceton's alleged abusers

"The OSC report was also sullied by the repeated citation of unnamed 'witnesses' and unidentified sources" that OSC "later admitted . . . included Mackenzie’s abusers," the two professors wrote, referring to her biological mother and the mom's boyfriend.

"When Rogers Smith, serving as Mackenzie’s academic advisor for the OSC investigation and later hearing, communicated with those involved, as the University’s Charter states such advisors have a right to do, the OSC Hearing Officer banned him from obtaining any clarifications that might assist Mackenzie," the two professors wrote. "Penn employees holding administrative positions below the top officers received explicit warnings not to seek to aid Mackenzie."

"In short, Penn’s administrators decided, well before any formal investigations, that Mackenzie was guilty of far more than either the Rhodes Trust or the OSC investigation ultimately deemed her to be," the two professors wrote. "They then created novel procedures that limited advocacy on Mackenzie’s behalf, while keeping the university’s own role in shaping her applications out of sight and free from scrutiny."

The two professors then turned their attention to Penn's legal defense of its actions, which only serve to further the abuse of Fierceton.

"In its recent brief, Penn continues to make allegations that go beyond the results of its own OSC investigation, accusing Mackenzie of repeated 'fraud, deceit, and misrepresentation,' portraying her as someone who would stop at nothing to gain unearned successes in pursuit of her blind, selfish ambition — to become a social worker and a scholar of social work."

"We see this portrait of Mackenzie Fierceton as preposterous," the two professors wrote. "In any case, we believe that even when our students err, they deserve our sympathetic support, though they must be held responsible for those errors."

"In the case of Mackenzie, no malicious fraud has ever been shown, and the sole alleged “error” is one of interpretation," the two professors wrote.

"She has been honest in her accounts of her FGLI status, in how she portrayed herself to her recommenders, and in her accounts of her experience of abuse," the two professors wrote.

"If Penn administrators thought otherwise, they were still bound to investigate properly, to follow their stated policies, and to observe the trauma-informed practices they tout on their websites."

"Instead, since November 2021 Penn has treated Mackenzie with prejudice, denials of due process, and simple cruelty . . . They have collaborated with people Mackenzie has identified as her abusers and deliberately concealed that collaboration."

"This letter, despite its length, does not convey the full extent of misconduct from Penn’s senior administrators," the two professors concluded. "Penn’s failures are the true moral failures in this shameful and disheartening story."