Let’s discuss the latest Safety Dance court order (pdf). Day 1 of 3.

This is the best one paragraph summary of where we are:

s1

Kudos to Judge Michael Ponsor (and/or his clerk).

The central issues of the case are not so much: Is John Doe a bad guy? (Answer: Probably. It is not easy to get punished by Williams twice for sexual assault.) Nor is it: Should we believe Susan Smith? (Answer: Probably not. She is the very picture of a woman scorned.) The two key issues that the court will care about are:

1) What is the nature of the (implicit and explicit) contract between Williams and an enrolled student? The College would like to maintain that this contract is so loose that it can, more or less, kick anyone out, for any reason, and following any procedure that it chooses. As former Williams professor KC Johnson has blogged about extensively, several courts have been sympathetic to this view. Unfortunately (for Williams), courts in its jurisdiction have been less willing (at Amherst and at Brandeis) to grant the colleges free reign.[1] John Doe will argue that the College, implicitly, promises to not expel its students unfairly. Since he was unfairly expelled, the College has broken the contract.

2) Is there (and how can a plaintiff demonstrate) anti-male bias in disciplinary proceedings at Williams? This is a much harder task for John Doe, with much less support in other court cases. (Read The Campus Rape Frenzy: The Attack on Due Process at America’s Universities by KC Johnson and Stuart Taylor for more details.)

a) John Doe can try to provide evidence of anti-male comments/behavior at Williams, but we have not seen much of that in the exhibits so far. What we have seen is lots of anti-Doe comments and, to a lesser extent, anti-accused-students comments. But such complaints are more in the category of generic criticisms of the overall process itself. They aren’t anti-male per se.

b) Doe can try to argue anti-male bias on the basis of disparate impact:

Disparate impact in United States labor law refers to practices in employment, housing, and other areas that adversely affect one group of people of a protected characteristic more than another, even though rules applied by employers or landlords are formally neutral. Although the protected classes vary by statute, most federal civil rights laws protect based on race, color, religion, national origin, and sex as protected traits, and some laws include disability status and other traits as well.

Since all (?) the students punished by Williams for sexual assaults have been male, there is a case to be made. Of course, right-wingers like me think that disparate impact arguments are garbage, that we should no more expect an equal number of women (as men) to be expelled by Williams for sexual assault than we should expect an equal number of women (as men) to finish in the top 100 in the Boston Marathon. But there is no denying that, in other contexts, courts have used disparate impact to make findings of bias.[2]

Regardless of the above, however, Williams should settle this case. If they don’t, discovery will be a nightmare.

[1] I suspect that I am messing up terminology and other issues. Safety Dance is currently being adjudicated in a District Court. Could a lawyer-reader clarify whether Brandeis and Amherst precedents apply?)

[2] Has disparate impact ever worked as an argument in a college sexual assault case? Not that I know of.

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