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More Safety Dance Documents

Here are some more Safety Dance court documents: 132-main, P Counter Facts, and P reply to D response in opposition.

Any comments from our legal readers? My sense is that readers do not want more writing from me about this sad case.

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Safety Dance Update, 3

Two new filings (Statement of Facts and Memo for Motion of Summary Judgment) in the Safety Dance case provide an occasion to revisit the biggest sexual assault case at Williams since Brackinridge or Gensheimer/Foster. Day 3.

The change Sandstrom refers to concerns affirmative consent. “No,” obviously, means “No.” But, just a few year ago, it was assumed that, if someone did not want to do something, they had an obligation to say so. Now, the standard is one of “affirmative consent.” It is every Eph’s obligation to ask for, and receive, permission for every sexual act. John Doe was, officially, thrown out of Williams, not for ignoring Jane Roe’s protestations but for (allegedly) not ensuring that Jane Roe said “Yes.”

This is very bit as insane as it sounds. Consider:

How many times has Maud Mandel sexually assaulted her husband since arriving at Williams?

I am 100% serious in asking this question. Consider:

The Williams College Code of Conduct requires affirmative consent for all sexual activity.

Consent means that at the time of the sexual contact, words and conduct indicate freely given approval or agreement, without coercion, by all participants in the sexual contact. Consent may not be inferred from silence or passivity.

Williams also defines “sexual activity” very broadly, as “any sexual touching, however slight, with any body part or object, by any person upon any other person . . .”

So, if Maud Mandel, without asking (and receiving!) explicit permission, has ever kissed her husband goodbye in the morning, or given him an affectionate pat on the behind as he walked out the door, or . . . anything really — then she has committed sexual assault and should, like John Doe, be kicked out of Williams.

This is, of course, nonsense. No normal person thinks that people, like Maud Mandel, in a relationship need to get permission for every single sexual activity ahead of time. But that is still the official policy at Williams, a policy which is used as a stick the ruin the lives of men — many of them poor and/or minority — much less powerful than Maud Mandel.

If John Doe deserves to be kicked out of Williams, than Maud Mandel is guilty of sexual assault.

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Safety Dance Update, 2

Two new filings (Statement of Facts and Memo for Motion of Summary Judgment) in the Safety Dance case provide an occasion to revisit the biggest sexual assault case at Williams since Brackinridge or Gensheimer/Foster. Day 2.

The more I read about Safety Dance, the more angry I become. Bolton/Bossong/Camancho sought to ruin John Doe’s life even though, at most, his crime was to be a bad boyfriend. Maybe they had it out for Doe because he was a first-gen minority male? They would never have pulled this crap against someone who looked like me, who came from a family of wealth and privilege . . .

Or maybe they would have screwed over a rich white guy just as hard . . .

Would that make them better people or worse?

Maud Mandel: Settle this case before it goes to trial.

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Safety Dance Update, 1

Two new filings (Statement of Facts and Memo for Motion of Summary Judgment) in the Safety Dance case provide an occasion to revisit the biggest sexual assault case at Williams since Brackinridge or Gensheimer/Foster. Day 1.

1) Why do I call this case “Safety Dance?”

And the lyrics from the song “Safety Dance”:

We can dance if we want to
We can leave your friends behind
‘Cause your friends don’t dance and if they don’t dance
Well they’re no friends of mine.

I say, we can go where we want to
A place where they will never find
And we can act like we come from out of this world
Leave the real one far behind
And we can dance

Alas, John Doe has discovered that, leaving the real world far behind, is not so easy when it comes to the sexual assault bureaucracy at Williams . . .

2) Key facts:

This is nuts! Does anyone disagree? Read the full document for details, but it is not disputed that Smith only complained about the alleged assault after her attempts to get Doe thrown out for a never-happened honor code violation failed.

I am honestly curious to know if there are readers who agree with the College’s decision to throw Doe out, denying him his degree even though he has completed all the requirements for graduation. Contrary opinions welcome!

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Reunion Rape, 5

The election for Berkshire District Attorney has generated lots of discussion (here, here, here and here) at EphBlog. Especially interesting have been the comments (e.g., here) from Interloper, who really ought to join us as an author. Andrea Harrington won the primary but incumbent Paul Caccaviello is running ran a (hopeless? hopeless!) write-in campaign. What matters to us, however, are these news stories about an (alleged) rape at reunion in 2016. As one of the four highest profile sexual assaults cases at Williams in the last 20 years — the other three are Gensheimer/Foster, Brackenridge and Safety Dance — this merits a week’s worth of discussion. Day 5.

Good news or bad news for Williams?

Policies in the DA’s office around assault and rape, particularly at Williams, became an issue in the DA primary campaign over the summer when allegations surfaced of prosecutorial dismissiveness for rape allegations at Williams. The school reported the existence of allegation of over 40 rapes and assaults in recent years to police, but only one case was prosecuted by the DA’s office. Andrea Harrington, the Democratic nominee, and her allies see that as part of a history of looking the other way by the office, particularly at concerns incidents at the college.

Harrington announced in August that, if elected, she would “review all un-indicted complaints of sexual assault received by the District Attorney’s office in the last 15 years, including processing all untested rape kits.” Such a proposal would require a lot of work and would likely include a review of the conduct of the office with respect to a local college and law enforcement handling of evidence.

“I will make sure that we do a complete and thorough review of all rape and sexual assault cases which are within the 15 year statute of limitations,” Harrington said in a statement to The Greylock Glass.

1) Unless I am mistaken, there has no been a case of “stranger” rape at Williams in several decades, if ever. That is, every reported sexual assault has included the name of the alleged perpetrator (or has been a case in which the alleged victim knew the name of her attacker and declined to provide it). In other words, “processing all untested rape kits” is a giant waste of time, but does serve as a signal to all Harrington’s progressive supporters that she is one of them.

2) To the extent that this also refers to sexual assault cases in which the attacker is unknown, it might make sense. Indeed, it might make sense for Harrington to enlist some Williams faculty and students in the search because her small office may lack the resources for work like this:

In an astonishing bit of work, police were able to track down the man they suspect of being the Golden State Killer after matching his DNA with the DNA of distant relatives thanks to a commercial genetics testing company.

Wouldn’t it be cool if Williams could help Harrington bring some rapists to justice? On this surely all Ephs can agree.

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Reunion Rape, 4

The election for Berkshire District Attorney has generated lots of discussion (here, here, here and here) at EphBlog. Especially interesting have been the comments (e.g., here) from Interloper, who really ought to join us as an author. Andrea Harrington won the primary but incumbent Paul Caccaviello is running ran a (hopeless? hopeless!) write-in campaign. What matters to us, however, are these news stories about an (alleged) rape at reunion in 2016. As one of the four highest profile sexual assaults cases at Williams in the last 20 years — the other three are Gensheimer/Foster, Brackenridge and Safety Dance — this merits a week’s worth of discussion. Day 4.

Maybe John Pucci is neither a knave nor a fool. He is merely a hired gun, saying whatever his clients want or, much worse, saying whatever he thinks will cause his clients to give him more money. (Informed commentary welcome!) But, surely, we can all agree that this would be a horrible idea?

“But when the district attorney’s office learns that there are as many as 73 sexual assaults that have occurred in the last four years at Williams, they have a duty to investigate,” said Pucci. “And this is not that complicated. It’s stunning to me that Caccaviello can step back and say ‘we inferred they didn’t want to cooperate.’”

Pucci says the DA’s office could have initiated a basic criminal prosecution investigation.

“You contact Williams College. You ask them for their reports and interviews of the victims. If they don’t want to give them to you, you issue a grand jury subpoena,” he said. “The district attorney in Berkshire County has a grand jury standing and available. They issue a simple piece of paper to Williams, Williams gives them the name of the victims, and then they do the basics. The basics are laid out in the Massachusetts Executive Office of Public Safety and Security guidelines for sexual assault investigations.”

This is madness! Does Pucci really believe it or is he just saying what his clients want? Or is he just saying what he thinks his clients want to hear?

1) Has any DA in Massachusetts, or in the US, ever done this? Not that I know. (Perhaps former Williams faculty member KC Johnson, co-author of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, can comment?)

2) What would happen if Harrington did this? I assume that Williams would fight tooth-and-nail. Am I wrong? Perhaps someone at Williams — Meg Bossong ’05? — would like to see more prosecutions of Williams students? Informed commentary welcome!

3) What would happen in the courts? Harrington subpoenas. Williams resists. The judge rules that . . . What do our Eph lawyers think?

4) How does this issue — and her general relationship with Williams College — tie into Harrington’s ambitions? Unlike Caccaviello — a time-serving mediocrity who would have been happy as DA for 20 years — Harrington clearly aspires to greater things. There are two strategies that a backwoods DA might take in climbing the greasy pole of MA Democratic politics: work with powerful local institutions like Williams (in the expectation of future back-scratches in return) or relentlessly attack them in a bid to build name-recognition. Assume that Harrington wants to be a Senator someday. What advice do you have for her?

Background: WW points out that the details of the accusation are horrific (pdf). Key points:

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Reunion Rape, 3

The election for Berkshire District Attorney has generated lots of discussion (here, here, here and here) at EphBlog. Especially interesting have been the comments (e.g., here) from Interloper, who really ought to join us as an author. Andrea Harrington won the primary but incumbent Paul Caccaviello is running ran a (hopeless? hopeless!) write-in campaign. What matters to us, however, are these news stories about an (alleged) rape at reunion in 2016. As one of the four highest profile sexual assaults cases at Williams in the last 20 years — the other three are Gensheimer/Foster, Brackenridge and Safety Dance — this merits a week’s worth of discussion. Day 3.

There is no doubt that the alleged victim and her husband are spending serious money in their quest for justice.

Reading from a statement, Caccaviello told WAMC that the Williamstown Police Department conducted a more than two-month investigation that included interviews with 23 witnesses — 10 of which he said were named by Pucci.

“Prosecutors are duty bound to bring a charge only when there is evidence to support the allegation,” said Caccaviello. “Experienced prosecutors and law enforcement reviewed the matter and concluded that there was not a reasonable basis to bring a charge.”

The timing is unclear (to me).

1) When was the assault reported?

2) Why was the rape kit collected at Mt. Sinai (in NYC?) instead of near Williamstown?

3) When did the investigation start?

4) What are the basic facts of the case? I suspect (but do not know) that this is a classic he-said/she-said case in which no one disputes that two people went somewhere alone and then had sex. The debate is over the existence, or lack thereof, of consent.

5) Eoin Higgins has provided some impressive coverage of this case. The Record ought to, at least, interview him.

Side note:

The school reported the existence of allegation of over 40 rapes and assaults in recent years to police, but only one case was prosecuted by the DA’s office. Andrea Harrington, the Democratic nominee, and her allies see that as part of a history of looking the other way by the office, particularly at concerns incidents at the college.

Which case was “prosecuted by the DA’s office?” I have not heard anything about a sexual assault prosecution involving Williams since Gensheimer/Foster.

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Reunion Rape, 2

The election for Berkshire District Attorney has generated lots of discussion (here, here, here and here) at EphBlog. Especially interesting have been the comments (e.g., here) from Interloper, who really ought to join us as an author. Andrea Harrington won the primary but incumbent Paul Caccaviello is running a (hopeless?) write-in campaign. What matters to us, however, are these news stories about an (alleged) rape at reunion in 2016. As one of the four highest profile sexual assaults cases at Williams in the last 20 years — the other three are Gensheimer/Foster, Brackenridge and Safety Dance — this merits a week’s worth of discussion. Day 2.

Gossip about this event has been swirling around Williams ever since it occurred. I first heard about it in February 2017. An anonymous alum wrote me:

The reason I have been looking into Falk’s background is that something terrible happened at reunion this past June, involving allegations of sexual assault and rape of an inebriated Alumnus. The accused – her former classmate – is one of the wealthiest members and single largest donors in their Williams class. Suffice it to say that Adam Falk’s response (or lack thereof) has not pleased the victim or her husband (also an Alum in the same class). Understanding what motivates Falk (money, money, money), and getting a better sense of his personal morality goes a long way in explaining his behavior.

1) I suspect that this alleged assault was behind some of the cryptic comments made at EphBlog which connected the resignation of the previous DA, David Capeless, to Falk’s departure. I still think this claimed connection is nonsense. Falk was on his way out. This controversy played no role. (Contrary opinions welcome!)

2) You only truly understand a controversy if you can make the best possible case for both sides. Can you pass the ideological Turing Test? In this case, the key dispute is over the alleged sexual assault. Is the Williams alumna telling the truth or is she not? Make the best possible case for each side in the comments.

3) Should we use the names of the people involved? EphBlog would certainly never publish (without her consent) the name of someone who reported a sexual assault to the police. But what about the accused, someone who is, by all accounts, a fairly prominent member of the class of 1991? What about the husband of the alleged victim? He is neither victim nor accused, but he is (?) also a key part of this story. He may or may not share the last name of the alleged victim.

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Reunion Rape, 1

The election for Berkshire District Attorney has generated lots of discussion (here, here, here and here) at EphBlog. Especially interesting have been the comments (e.g., here) from Interloper, who really ought to join us as an author. Andrea Harrington won the primary but incumbent Paul Caccaviello is running a (hopeless?) write-in campaign. What matters to us, however, are these news stories about an (alleged) rape at reunion in 2016. As one of the four highest profile sexual assaults cases at Williams in the last 20 years — the other three are Gensheimer/Foster, Brackenridge and Safety Dance — this merits a week’s worth of discussion. Day 1.

The accusation:

“I was involved in a case in which I represented a woman who was sexually assaulted at Williams. Let me back up a step and say that I don’t want to make this interview about a single case. I think there’s a much broader and bigger picture of what’s happening at Williams College that really needs to come to light and be focused on,” Pucci told WAMC. “There was a rape at Williams College. The victim and her husband came to me because they were unsatisfied with what was happening at the DA’s office — there was a lack of communication.”

He said they approached him to serve as a lawyer and councilor to ensure their voices were heard.

“From the beginning, the district attorney’s office feigned an interest and oversaw a faux investigation in which barely half of the witnesses were identified, in which my client had had a physical rape exam and it had found a vaginal tear, a very significant finding, and the district attorney’s office would not complete the forensic testing in the case,” said Pucci.

1) Recall that I accused Pucci of being “either a knave or a fool” I was wrong! He is getting paid (big bucks?) to involve himself in this case.

2) I believe — corrections welcome — that the case involves three people from the class of 1991, back at Williams in June 2016 for their 25th year reunion. I think that the alleged assault took place in the Greylock dorms.

There is a lot to unpack here, which is why we will have a week of discussion.

UPDATE: Latest news article here.

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Sex Crimes

From the latest Clery Report:

It is a weird world when sex crimes are common and robbery is unheard of . . .

Does the below mean that there were no arrests for any sex-related crimes?

Curious what those weapons charges were about . . .

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Clery Report

Latest Clery Report is available (pdf):

To the Williams Community,

The College’s Annual Security and Fire Safety Report was published online in September 2018 and can be viewed at – https://security.williams.edu/files/2018/10/Clery-2018.pdf.

The Annual Security Report discloses information concerning campus safety and security policies and procedures, as well as statistics regarding certain types of crimes reported to the campus and local law enforcement during the calendar year 2017.

This report includes:

· Policies and procedures
· Security awareness programs
· Crime Prevention
· Security of and access to College facilities
· Campus Safety Authorities, CSA
· Possession, use, and sale of alcoholic beverages and illegal drugs
· Sex offenses and the sex offender registry
· Violence Against Women Act VAWA
· Reporting of crimes and emergencies
· Emergency notification systems
· Crime statistics for the years 2015, 2016, and 2017

The Annual Fire Safety Report includes:

· Fire safety policies
· Fire statistics for on-campus student residences 2015, 2016, and 2017
· Fire safety systems, alarm monitoring, and sprinkler systems
· Fire drills
· Policies relating to portable electrical appliances
· Evacuation procedures
· Fire safety training

Together, these reports provide students, prospective students, employees, and prospective employees with key information regarding the security of the campus and surrounding areas, and ultimately, create a safer, more secure campus environment. To request a paper copy of the current Annual Security and Fire Safety Report, please contact our Associate Director for Clery Compliance and Training, Alison Warner at 413-597-4444 or by email at awarner@williams.edu

Regards,

Alison Warner
Associate Director of Clery Compliance And Training

I will have some thoughts tomorrow.

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KC Johnson on Safety Dance

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?

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Latest Legal Filing from Safety Dance

Here (107-main) is the latest legal filing in the Safety Dance sexual assault case. Here (107-1, 107-2, 107-3, 107-4, 107-5, 107-6, 107-7, 107-8, 107-9, 107-10, 107-11) are the exhibits.

Case summary: Male Williams student engages in two year long sexual relationship with female student-then-employee. At the end of that relationship, female employee physically assaults male student. Male student reports assault which goes ignored by Williams. After male student pushes for the complaint to be investigated, female employee makes retaliatory counter complaint, alleging she had been subjected to two years of “abuse” by the student. At the eleventh hour into the investigation, nearly three years after the commencement of their relationship, employee alleges that the two had sex eighteen months earlier without the female providing “affirmative consent.” That is, the male is not accused of a “rape” that any US prosecutor would ever pursue. The woman did not resist or say any form of “No.” Male student finishes all requirements for graduation but Williams expels him for sexual assault and refuses to give him his degree. He has sued.

My comments are mostly the same as they were 10 months ago:

1) Reader (especially lawyer) comments are welcome! What is your sense of John Doe’s odds of success?

2) Should we spend a week going through these filings? Reader interest seems to be lagging.

3) Why won’t the Record cover this story? It is incompetence, political correctness or something else? I am honestly curious . . .

4) Why won’t the College just give Doe his degree? I could, perhaps, understand why the College might fight to enforce an expulsion if settlement required allowing the accused student to come back on campus. But why the Ahab-like insistence om preventing Doe from getting his degree?

5) Can anyone provide more details on educational options for students expelled from places like Williams? Several students (how many?) have been expelled from Williams over the last 5 years for sexual assault. What happens to them? Presumably, they still want/need a college degree? Are they allowed to transfer to other schools? Can they use their Williams credits? I don’t know . . . but surely our readers do! In case it matters, Doe is a New York State resident. Could he transfer (almost) all his credits to some SUNY school, take a class or two, and then get his degree? Or would SUNY deny his transfer application because of his expulsion from Williams?

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@WilliamsRapists

wr1

The Record should cover this story without, obviously, mentioning the names of the anonymously accused. Former faculty member KC Johnson chimes in with:

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Title IX Update

Useful update on Title IX from former Williams professor KC Johnson:

Education Secretary Betsy DeVos on September 22 formally rescinded the Obama administration’s commands that universities use unfair rules in sexual-misconduct investigations—rules that had the effect of finding more students guilty of sexual assault. And she appears also to be preparing for far more forceful due-process protections down the road.

Those follow-on regulations could require schools to presume that accused students are innocent unless proven guilty, to allow rigorous cross-examination of accusers, and perhaps also to grant the accused the unqualified right to appeal adverse decisions, and more.

Meanwhile, the modest improvements that DeVos included in the “interim guidance” of September 22 let universities know how to comply with the Education Department’s requirements during the time between the end of the Obama decrees and the final adoption of new, carefully considered regulations.

Read the whole thing.

At a recent meeting with alumni, President Falk suggested the following: First, the College had already incorporated most of the suggestions on the Obama era guidance, even before that guidance was made, so DeVos decision really doesn’t effect Williams. (Is that true? Perhaps the most important change involved the change in burden of proof standards, and I don’t remember that changing before Obama’s guidance.) Second, Falk suggested that, despite whatever DeVos might suggest, the College would continue to do what it thinks best to fight the scourge of sexual assault at Williams.

Has anyone who has gone through the details of the Safety Dance case think that Williams is on the right track? I don’t.

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DeVos Speech on Due Process

Former Williams professor KC Johnson writing (with Stuart Taylor) in the Wall Street Journal:

Education Secretary Betsy DeVos has made clear her intention to correct one of the Obama administration’s worst excesses—its unjust rules governing sexual misconduct on college campuses. In a forceful speech Thursday at Virginia’s George Mason University, Mrs. DeVos said that “one rape is one too many”—but also that “one person denied due process is one too many.” Mrs. DeVos declared that “every student accused of sexual misconduct must know that guilt is not predetermined.”

This might seem like an obvious affirmation of fundamental American principles. But such sentiments were almost wholly absent in discussions about campus sexual assault from the Obama White House and Education Department. Instead, as Mrs. DeVos noted, officials “weaponized” the department’s Office for Civil Rights, imposing policies that have “failed too many students.”

Indeed. Do any of our readers think that the John Doe of Safety Dance should be denied, forever, his Williams degree even though he has completed all his classes?

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Ending Kangaroo Courts

Latest from former Williams professor KC Johnson:

Is the Education Department preparing to dial back the Obama administration’s assault on campus due process?

Beginning in 2011, the Obama administration used Title IX—the federal law banning sex discrimination at schools that receive federal funds—to pressure colleges and universities into adopting new procedures for handling sexual-misconduct complaints. At most schools, accused students already faced secret tribunals that lacked basic due-process protections. But the Education Department mandated even more unfairness. It ordered schools to lower the standard of proof to “preponderance of the evidence” instead of the “clear and convincing evidence” standard that some schools had used. It required schools to permit accusers to appeal not-guilty findings and discouraged allowing students under investigation to cross-examine their accusers.

Does anyone know exactly what occurred at Williams and when? The above is, I think, consistent with what we have seen, especially the change in the standard of proof. Perhaps even more important was the change in venue. Back in the day (when?) sexual assault was adjudicated at Williams (in those cases with no police involvement) in the same way as any honor code violation: by a committee run and controlled by students. Now, the Honor and Discipline Committee does not hear those cases. They are handled by administrators/faculty with no student involvement.

As always, the more students are involved in activity X, the better for Williams. I have much more faith in the ability of students to judge these cases than I do in folks like Sarah Bolton.

[Trump appointee] Ms. Jackson has one of the most thankless jobs in Washington — seeking to vindicate procedural norms and basic fairness on an issue that triggers intense emotional responses. She deserves all the support she can get.

Indeed. I doubt that anyone who matters at Williams agrees . . .

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Fraud Jessica Torres ’12 in the New York Times

From The New York Times:

In recent years, on campus after campus, from the University of Virginia to Columbia University, from Duke to Stanford, higher education has been roiled by high-profile cases of sexual assault accusations. Now Education Secretary Betsy DeVos is stepping into that maelstrom. On Thursday, she will meet in private with women who say they were assaulted, accused students and their families, advocates for both sides and higher education officials, the first step in a contentious effort to re-examine policies of President Barack Obama, who made expansive use of his powers to investigate the way universities and colleges handle sexual violence.

Meanwhile, groups like Know Your IX, which teaches students their rights under the federal law, have been promoting a hashtag on Twitter, #DearBetsy, and asking people to post their personal stories about sexual assault on Twitter. Jessica Torres, a 27-year-old Democratic strategist, tweeted to Ms. DeVos that she had been raped as a student at Williams College.

“My concern is we’re going back to the years when women and queer students were absolutely terrified of coming forward,” Ms. Torres said in an interview.

The tweet in question:

jt

1) Jessica Torres is a fraud. By committing the 2011 Prospect House hate hoax, she did more damage to the Williams community than any other student in the last decade.

2) Do New York Times Erica Green and Sheryl Stolberg reporters know how to use Google? If you are going to quote someone making a serious accusation, then the least you ought to do is to look into their past. Couldn’t they have found someone who isn’t a documented liar to demonstrate the point that false accusations of rape are not a major problem?

3) If Jessica Torres was raped at Williams, then I would urge her to report the crime to the Williamstown police. Law enforcement in Massachusetts takes sexual assault very seriously. Her assailant should be apprehended, charged, tried and, if found guilty, punished. However, if she made up the accusation after the Williams administration got a little to close in its investigation of the hate hoax, I would recommend that she restrict her public statements to other topics. [UPDATE: Thanks to comment below for clarifying the timing. Torres committed the hate hoax after her (false?) rape report, not before it.]

Back to the article:

Investigative processes have not been “fairly balanced between the accusing victim and the accused student,” Ms. Jackson argued, and students have been branded rapists “when the facts just don’t back that up.” In most investigations, she said, there’s “not even an accusation that these accused students overrode the will of a young woman.”

“Rather, the accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right,’” Ms. Jackson said.

This quote is causing rage among a certain segment of the Eph commentariat. And that is OK! Ephs differ in their assessments of the problem of sexual assault on campus and what to do about it.

But, as always, at EphBlog, we are interested in the data. Do 90% of the cases at Williams look like that or not? If only the College would tell us . . .

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Amended Complaint

Here is the 3rd Amended Complaint for the Safety Dance sexual assault case.

1) If you are interested in a week-long review, please let me know! As best I can tell, reader interest is lagging . . .

2) Summary: Male Williams student engages in two year long sexual relationship with female student-then-employee. In middle of that relationship, it is alleged that the two had sex without the female providing “affirmative consent.” That is, the male is not accused of a “rape” that any US prosecutor would ever pursue. The woman did not resist or say any form of “No.” Male student finishes all requirements for graduation but Williams expels him for sexual assault and refuses to give him his degree. He has sued.

It is a hard case to summarize! If anyone has a better version, leave it in the comments so that I can use it going forward.

3) I have not read the whole Complaint. (What do our readers think?) But it still seems sloppy to me, e.g.,

fulltime

It is impossible (?) to be a “full-time” student at Williams for 5 years. And there is no reason for Rossi, Doe’s attorney, to claim otherwise! Isn’t it the case that Doe was thrown out of Williams for a semester (if not a full year) because of a prior sexual assault case? And, during that time, he was not, I think, a student at Williams. (Although maybe you are still, officially, a Williams student even if you are currently away?)

4) Why won’t the College just give Doe his degree?

purpose

Does anyone disagree? I could, perhaps, understand why the College might fight to enforce an expulsion if settlement required allowing the accused student to come back on campus. But why the Ahab-like insistence om preventing Doe from getting his degree?

5) Can anyone provide more details on educational options for students expelled from places like Williams?

restrictions

Several students (how many?) have been expelled from Williams over the last 5 years for sexual assault. What happens to them? Presumably, they still want/need a college degree? Are they allowed to transfer to other schools? Can they use their Williams credits? I don’t know . . . but surely our readers do! In case it matters, Doe is a New York State resident. Could he transfer (almost) all his credits to some SUNY school, take a class or two, and then get his degree? Or would SUNY deny his transfer application because of his expulsion from Williams?

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Safety Dance Continues III

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

s3

Other highlights:

1) Good sign for Doe that the Court recognizes the sloppiness/malice of the Williams process. They were out to get Doe from the beginning and, in the end, they got their (former) Eph.

2) New complaint is due May 12. Let’s hope (?) that Rossi, Doe’s attorney, gets her act together and produces a better pleading.

3) Any predictions? I guess (?) that it made sense for the College to fight up until this point on the (realistic?) chance that the case might have been thrown out. But now? Settle the case! Give Doe his degree.

Do other readers think the College should fight? If so, why?

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Safety Dance Continues II

Let’s discuss the latest Safety Dance court order (pdf). Day 2 of 3.

s2

rossiThat is a fairly harsh smackdown of Doe’s attorney, Stacey Elin Rossi. Are such direct criticisms of lawyerly competence common in court decisions? Are they justified in this case? Does this sort of language provide us with any clues as to where Judge Posner’s sympathies may lie?

lapp As we have commented before, no courtroom battle between the rich (Williams College and its highly experienced lead attorney Daryl Lapp) and the poor (John Doe, the son of poor Ecuadoran immigrants) is ever fair. But Lapp has been involved in several (a score?) of cases like Safety Dance. I believe that this is Rossi’s first. (Although the way that Title IX has evolved at Williams and elsewhere, she may eventually build up a thriving business. Informed legal commentary welcome!

The decision continues:

The evidence of gender-based discrimination offered in the complaint is thin. The unusual feature of this case, however, is that Plaintiff alleges that he was himself a victim of harassment, and even a physical assault, by the party he was alleged to have victimized. His allegations include claims that his own complaints of harassment were treated with less seriousness than the alleged victim’s complaints and that responsible administrators were more solicitous of her because of her gender than of him. At this stage, these allegations are sufficient to boost the complaint over the Rule 12 threshold.

A fair reading of the documents so far would convince most people that Doe’s allegations are most likely true. Smith, while a Williams employee, did slap him. His complaints were, obviously, treated much less seriously. The College was incredible solicitous of Smith. (And we still need to figure out how she got hired by Williams in the first place.) But the College will argue that, even if all of that is true, it was not driven by anti-male bias and that, therefore, Title IX does not apply. How can Doe demonstrate otherwise? What aspects of the case would you urge him to focus on?

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Safety Dance Continues I

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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March Safety Dance Hearing

Latest update on Safety Dance:

Electronic Clerk’s Notes for proceedings held before Judge Michael A. Ponsor: Motion Hearing held on 3/28/2017 re [29] MOTION for Reconsideration filed by Williams College, [31] MOTION to Dismiss for Failure to State a Claim filed by Williams College, [4] First MOTION for Preliminary Injunction John Doe v. Williams College filed by John Doe. Arguments heard. Court denies Motion for Reconsideration, denies Motion for Preliminary Injunction. Court takes Defendant’s Motion to Dismiss under advisement. Orders to issue. (Court Reporter: Sarah Mubarek, Philbin & Associates, 413-733-4078) (Attorneys present: Rossi, Lapp, Kelly) (Healy, Bethaney)

Can anyone interpret this?

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Safety Dance Affidavits

Latest filings in the Safety Dance case include: Affidavit 1, Affidavit 2 and Revised Memo in Opposition to Motion to Dismiss.

1) Why won’t the Record cover this case? I don’t think that they have provided a single update after their original article.

2) Why won’t the College settle? Just give Doe his degree and move on.

3) The longer this drags on, the worse things like for Williams. Check out those affidavits!

aff

This is from current (!) Williams employee Brian Marquis. I do not think that the Brzezinski he is referring to his Mika . . .

Settle the case!

How much of this heartburn does Adam Falk want? Consider the other affidavit, from current (!) Williams Security (!) officer Joshua Costa.

aff2

Settle the case!

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Overheard at Paresky: MORE Court Documents?!

(Hi everyone! I’m concerned eph, a member of the class of ’17 and your newest EphBlog author! Introduction post to follow – meanwhile, here’s the beginning of a new EphBlog series entitled “Overheard at Paresky”, where we’ll be discussing concerns of current students! Any news, tips, or leads you want to share, drop a comment or shoot me an email at concernedeph17 at gmail dot com!)

As two students enjoy their honey-nut buns on the bench outside Lee’s on a warm, sunny day:

Dude, I read the newest court documents on that sexual assault lawsuit. Did you see that part where there’s an actual ******* whistleblower that said they actually train committee members by telling them that the college’s rep is #1, like how disgusting is that, and that they just do whatever they want…

Indeed – an accurate account! Find the quote in the court documents here. While the skeptical among us may not be inclined to believe the words of one whistleblower, consider this quote from Dean Dave Johnson in John Doe’s original filing:

63. On March 8, 2016, Dean Johnson admitted to John and John’s sister, Lady Doe, that the disciplinary process is “unfair to students” and that the procedures are deliberately written in a way that allows Williams to maneuver itself in its favor. Johnson also stated that Pelaez should not have been aware of the outcome of the hearing or the likelihood of an appeal.

Corroboration! … or is Dean Johnson the whistleblower? Now we know that there’s an unfair adjudication process for students that at least one well respected, senior Dean knows about it.

And yet, still, here we are? *Sigh* More posts on this to come.

To the next point and to be fair, the administration does have a crucial responsibility to uphold the college’s reputation. Williams’ reputation is an asset – it’s how we all get jobs and into grad school! In fact, I am sure many of us came here because of the school’s reputation as an excellent institution of higher education. Even against the backdrop of a dodgy administration, Williams is a wonderful college filled with great and caring professors and staff and awesome students and kind alums, all of whom are very intelligent. Interestingly, though, because this issue is now, well, a lawsuit (hence public), Hopkins Hall did not even meet its supposedly greatest one priority! Instead, prospective students (and their parents!) will now be able to see and smell all our ghastly, dirty laundry. Gross!

Would readers be interested in more student perspectives on the current sexual assault lawsuit? The Record, unfortunately, doesn’t have much, but I am more than happy to pick up the slack!

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Safety Dance Second Amended Complaint

Here (zip) is a link to a zip folder of all the documents (including exhibits) associated with the latest amended complaint in the Safety Dance sexual assault care and here (pdf) is a highlighted version. Don’t have time to read all that? No worries. Former William professor KC Johnson provides this summary:

(1) Both parties to the case were unappealing. But unappealing students deserve fair treatment just as much as appealing ones.

(2) The accuser was a Williams employee, but received kid-gloves treatment throughout by Williams—in a way that would have been inconceivable if the employee were a man and the student he allegedly mistreated a woman.

(3) The employee had a pattern of filing what appear to have been retaliatory complaints against the student. Williams not only refused to treat the complaints as retaliatory, but refused to consider the effects of the first complaint’s failure on the employee’s credibility for the second complaint.

Beyond the troubling elements from the original complaint, the amended complaint raises four new areas of concern with how Williams handled the case:
Read more

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Safety Dance Defense Exhibits

Here are some of the defense exhibits from the Safety Dance sexual assault case: Exhibit E, Exhibit D, Exhibit C, Exhibit B, and Exhibit AA. From the last of these:

scorn

I realize that John Doe was probably an affirmative action admission at Williams, due to his ethnicity (Ecuadoran-American) and family income (low). But is it too much to ask that he get the quotation correct?! It is “like a woman scorned,” not “than a woman scorned.” Then again, perhaps we should be proud that accused-rapist Ephs are even educated enough to make a literary reference at all!

Does anyone have the energy to go through all 80+ pages of this document? Not me! But I can’t help quoting this section:

scorn2

Throughout, the red text is John Doe’s comments. From the document:

“literally all I ever wanted was to dance with you is that’s too much to ask?”

From the lyrics to Safety Dance:

‘Cause your friends don’t dance and if they don’t dance
Well they’re no friends of mine.

I rest my case.

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Doe Expelled; Hearing Set for March 28

Latest update about the Safety Dance case includes these two documents: Williams – motion for new scheduling order and Feb 17 2017 Order. Key section:

doe_out

In other words, Doe’s appeal failed. He has been permanently expelled from Williams, even though he has completed all the requirements for a degree. Comments:

1) The Order highlights the set of documents that we will soon get to read, before the hearing on March 28. I am not sure if we will learn much more than we already know. John Doe behaved problematically throughout his time at Williams. But to expel him based a completely implausible accusation of sexual assault, an assault that happened in the middle of a two year consensual sexual relationship, is a travesty of justice.

2) The Record should provide more coverage of this case and should send a reporter to the March 28 hearing.

3) Biggest winners are the attorneys. Rossi/Kelly/Lapp are all going to get to bill many more hours than if the case were just settled.

4) Does anyone know why the College is insisting on continuing on this path? I could, maybe, understand that, if Doe were still a student, the College might want to permanently prevent him from coming back to campus. But he has completed all his course work. He has walked in the graduation ceremony. What possible purpose does this vindictiveness serve?

Readers should let me know if they want more or less coverage of this case.

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Witch Hunt on the Quad

Glowing review for former Williams professor KC Johnson’s latest book:

In 1692, the Massachusetts Bay Colony found itself in the grip of a moral panic. Seemingly rational people turned on their neighbors, accusing them of witchcraft. The subjective testimony of children and “spectral” evidence, which only the accusers could see, were the basis for the arrest of more than 140 innocent people. Nineteen were hanged.

Today America is in the grip of another moral panic. We’re not afraid of witches but rapists, whom we are told lurk at our nation’s colleges in numbers that render the quad a more dangerous environment for women than downtown Detroit. In “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” KC Johnson and Stuart Taylor Jr. dismantle this myth of a campus rape crisis and show how, with alarming frequency, colleges mistreat students accused of assault by failing to allow them any meaningful opportunity to prove their innocence.

At the same time that activists are expanding the definition of sexual assault, university disciplinary committees are systematically depriving accused students of basic due process protections. At the directive of the Department of Education, many campus tribunals today assign blame if there is a 51% chance that the accuser is telling the truth (the “preponderance of the evidence” standard). Many schools do not allow the accused to cross-examine their accusers. Some refuse to allow accused students legal representation and deny them the opportunity to present exculpatory evidence or witnesses in their defense.

According to the authors, Mr. McLeod is one of more than 100 students who are currently suing their former colleges or universities for wrongly punishing them for sexual misconduct. They recount so many examples that at times the book feels like the movie “Groundhog Day” and the reader soon forgets whether he is reading about a case out of Amherst or Michigan or Yale or USC—to name just a few of the many schools at which miscarriages of justice have occurred.

Unlike in Salem, where there were no witches, there are indeed too many instances of rape on campus. But as Messrs. Johnson and Taylor show powerfully, the current system has its own victims and ultimately undermines the credibility of actual rape survivors whose cases belong in court, not in Kafkaesque administrative tribunals.

Exactly right. Should we be pleased or sad that the Safety Dance court case happened too late for Williams to be featured in the book?

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College Reply on Safety Dance

KC Johnson provides an excellent update/summary on the College’s latest filings (Memo in Support of Motion to Dismiss, Memo v PI and for stay and Kurker Memo) on Safety Dance. Comments:

1) KC’s summary and comments are perfect. Read them! For history’s sake, I have copied them in their entirety below the break.

2) The next hearing in the case is scheduled for January 11. Does anyone have details on exact time/location? Perhaps a reader will be there . . .

rossi3) Does anyone else have the sense that Doe’s attorney is overmatched? Has she ever litigated a case like this in the past? How do attorneys with law degrees from Western New England University School of Law stack up, on average, with attorneys with degrees from Northwestern? As EphBlog likes to point out, money talks (and often wins), and you can be certain that Williams is paying its attorneys much more than Doe can afford to pay his . . .

lapp4) Stop being so snotty EphBlog! And, besides that, Rossi (Doe’s lawyer) has an undergraduate degree from Columbia while the College’s main attorney (Daryl Lapp) has a BA from Swarthmore. Call it tie.

5) How much money have Doe and Williams spent so far? How much can they expect to spend if this case goes to trial? (I would love to get some reasonable estimates from our attorney readers.)

6) Although the details are confusing (to me), it appears that, officially, the College expelled Doe for a single instance of sexual assault against Smith. (She accused him of a variety of violations, including various forms of “relationship abuse.”)

date

First, assuming that this is correct, that the key event happened on September 1, 2014 (in the middle of their approximately two year relationship), did this occur on the Williams campus? (Classes were not in session but perhaps Smith/Doe arrived early.) Second, would it (should it?) matter if it occurred off campus? I can understand (maybe!) why the College feels the need to regulate events on campus. But to do so off-campus seems insane . . .

7) The College is pulling no punches:

punches

EphBlog readers knew about Doe’s prior record two months ago.

8) Can anyone explain the logic of Doe pursuing this case while the College is still going through its own process?

appeal

If I were the Court, I would find this persuasive. Why not wait until the College rules on Doe’s appeal of his expulsion? But, if I were the Court, I would also press Williams on just how long its appeal process is going to take. And, if I were a cynic, I would note that all the lawyers involved benefit from maximizing the paperwork generated and time spent on the dispute . . .

Would readers like me to spend a week going through these documents item by item? Or should I move on to other stuff?

UPDATE: John Doe has filed a Withdrawal of Opposition v Motion to Stay, meaning, I think, that there will be no hearing until after February 28, at which point the College plans to issue its ruling on Doe’s appeal of his expulsion.

UPDATE II: KC Johnson notes that the Motion to Stay has been granted, with the next hearing scheduled for March 2. So, it looks like the judge agreed with EphBlog (unsurprisingly!) and will wait for the College to rule on Doe’s appeal.

Read more

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