Former Williams professor KC Johnson, co-author (with Stuart Taylor) of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, sent in this analysis (doc) of the latest filings in the Safety Dance sexual assault case:
There have been some new filings in the Title IX/due process lawsuit against Williams. I’ve summarized the case previously, so won’t repeat what I wrote. Unique among the 200 or so lawsuits filed by accused male students, Williams features an accuser who also was a college employee. And at several points in the process, Williams administrators appeared to favor their employee over their student—in a manner that likely would have generated outrage if the genders had been reversed.
The new filings deal with attempts by the accused student’s lawyer to depose President Falk and two members of the college disciplinary panel that voted to expel her client. The judge previously had limited the number of depositions to ten per side.
There are, however, two items of potential interest included in the filings.
The first: as part of the discovery process, the accused student has obtained the training material that Williams uses for its Title IX adjudicators. (Since 2011, the federal government has required colleges to train adjudicators in sexual assault cases—and only sexual assault cases.) To the best of my knowledge, no college or university has voluntarily publicized its training material; my co-author Stuart Taylor and I obtained around a dozen schools’ training materials and analyzed their overwhelmingly one-sided nature. For a comparison to the criminal justice system: imagine if, in rape and sexual assault trials and only in those trials, the prosecutor could require jurors to spend 3-5 hours reading general material on the topic that the prosecutor herself selected—and then could deny the defense attorney any chance to see the material at any point in the process.
Williams’ training material is less unfair than that of some other institutions (for a particularly egregious example, see pages 20-21 of this decision against Penn, which eventually led the college to settle the case). Williams, typically, has filled its training with frightening statistics that say nothing about the specifics of the case the panel is supposed to judge. (One slide, for instance, claims—without citation—that 21% of college students experience dating violence from their current partner.) More problematically, the training (which is supposed to be gender-neutral, since males as well as females can be victims of sexual assault, and because gender-biased training risks violating Title IX) appears to presuppose that sexual assault victims are female, listing “toxic masculinity” as a cause of sexual assault. Would a Williams adjudicator, faithfully following this type of training, have decided to overlook the accuser’s dubious conduct? Even more problematically, the training includes a slide entitled “Meet Frank,” an apparent reference to a composite character—from decades ago—from researcher David Lisak. An exposé in Reason raised significant questions about Lisak’s credibility in his use of “Frank,” who the researcher inaccurately presented as a single person rather than a collection of quotes. The training also has several slides about trauma-informed investigation, a controversial theory debunked by Emily Yoffe in a high-profile Atlantic article.
Also striking is what the training doesn’t contain. It doesn’t, for instance, mention the presumption of innocence. Or the need for fairness. Or the importance of allowing the accused student a meaningful opportunity to defend himself.
In short, the training appears designed to make it more likely that a Williams disciplinary panel will return a guilty finding when considering sexual assault allegations.
The second item from the filings: the accused student’s lawyer included a snippet of the deposition from the investigator Williams hired for the case, an employment lawyer named Allyson Kurker. The deposition has little of substance, though Kurker’s confusion about Williams’ standards is a little striking.
More interesting here is Williams’ decision to hire Kurker in the first place. In Title IX litigation, Kurker is best-known as the investigator in an Amherst case that might well be the single most unfair adjudication of any in the country since the 2011 change in policy. (The student sued Amherst, easily survived a motion to dismiss, and then the college settled.) Kurker’s investigation failed to uncover critical, exculpatory text messages sent on the night of the incident by the accuser. Then, in depositions, she attempted to dismiss the texts’ significance on grounds that the relevant texts would have been those that corroborated the accuser’s story.
Given that record, what was the process used by Williams in hiring Kurker?
In terms of where the case might go from here, two thoughts. First, on Friday, the judge in the Williams case, Michael Ponsor, ruled in favor of UMass in a lawsuit filed by an accused student named James Haidak. Though Ponsor gave a token acknowledgement to the due process concerns, most of his lengthy opinion outlined his very forgiving standard toward college actions.
Despite some factual differences, the UMass and Williams cases have at least one important similarity: in both cases, the accused student was a highly unsympathetic figure. There’s certainly nothing in Ponsor’s holding to suggest that he (unlike judges in many of the dozens of due process cases in which the college has been on the losing end) is a judge who’s particularly concerned about the problem of unfair campus adjudication procedures.
On the other hand: while only around two dozen accused students have survived motions to dismiss on Title IX claims, colleges have been vulnerable in cases where the female student also appeared to have committed some form of misconduct, yet the institution only investigated and punished the male student. For a particularly obvious example of this pattern, see page 37 of the decision in the Amherst case.
Usually, these cases involve a single incident (for instance, sex when both parties are extremely drunk, and so neither student had the ability to consent under often-restrictive college rules). The Williams case doesn’t feature such a fact pattern—but in one respect, it’s worse: the college seemed indifferent to the possibility that a female employee was filing retaliatory complaints against a student. If, in the end, Williams loses this case, the college’s decision to so blatantly favor one party in a deeply dysfunctional relationship will likely be the reason why.
Why won’t (can’t?) the Record cover this important case, especially stuff like the absurdity of hiring Kurker?
By the way, is Kurker still working for Williams?