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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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EphBlog Appears in Safety Dance Court Documents

Latest filings in Safety Dance feature the College’s attempt to unmask John Doe, justified, in part, by citing EphBlog. Should we be horrified or proud?

The Memo in Support of Motion for Reconsideration provides the College’s argument.

mem1

1) What do readers think of the College’s attempt to unmask John Doe? Seems sleazy to me!

2) What do attorneys (especially MRL ’91 and WW) think? Is this a negotiating ploy?

Here is part of what Doe’s attorney Stacey Elin Rossi wrote in that e-mail:

mem2

Harsh but fair? Susan Smith has not come off looking good so far . . .

By the way, why was Rossi sending Smith e-mails like this last summer? John Doe’s complaint is with Williams refusal to grant him his degree. How was Smith still a part of the conversation in August?

mem3

The other (unnamed) blog is Academic Wonderland, maintained by former Williams faculty member KC Johnson. Should we be proud or embarrassed to be called out by Williams’s counsel in this context? Should we be upset not to be mentioned by name? Also, any lawyers care to chime on about our use of a photo from the Internet Archive? Do we really need anyone’s “permission?”

The Attachment 2 to Memo Reconsideration is a screenshot of EphBlog. I believe that this is the second time that EphBlog has appeared in a court document. Who among our loyal readers remembers the first?

John Doe’s attorney argues against in the Reply Memo in Opposition to Motion for Reconsideration.

mem4

Did College attorneys Daryl Lapp and Elizabeth Kelly really violate an (important?) rule of civil procedure? I have my doubts. They seem like serious players, as one would expect of the attorneys hired by Williams. (Harvard hires few idiots.) Comments welcome!

mem5

Seems to be that Rossi has the better argument here. Am I missing something?

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Swart ’56 on Brackenridge

Our own Dick Swart ’56 added this comment (two years ago) to the Record article we discussed the other day:

The news as reported in this story is greatly dismaying to me as a parent and as an alumnus. I feel great sympathy for the victim and for her Alumni parents who felt so good as their daughter. entered her freshman year. I see the college attitude and policies as being developed with proper inputs, guarantees of confidentiality, and recently-enhanced and improved methods of investigation.

Yet the criticisms seem valid. In particular:

• The victim’s perception of the college not wanting to ruin the perpetrator’s life at this early stage when as she observes, hers has already been ruined.It is my guess that the perps will almost certainly be male and the victims female. Is the college standing in loco parentis at the final moment of judgement despite the rigorous process of investigation and determination of guilt?

• The parents’ belief as alums that their daughter was going to a safe place and their subsequent disappointment at the eventual steps taken.

• The separate but related question of the sanctity of mens sports, in this case hockey.

From the story cited above:

“She also hopes to bring into question a college culture she sees as too protective of athletes. “On the Williams campus, it should hopefully generate a conversation about this individual case and the fact that a winning team is not worth sexual assault on campus,” Lexie says.

Lexie and her parents believe that a culture of older, experienced hockey players — admitted as freshmen — played a role in her assault. Her alleged assailant was admitted as a 20-year-old after a year in a Canadian league. That same year, the college accepted five other freshmen hockey players, ranging in age from 19 to 22 years old, who had delayed entering college to play hockey.

• The victim’s treatment on campus by fellow students following the rape. If as the story reports, the word “heartless” comes to mind.

I believe that the statements by the college on policies and practices being referred to by different levels of administration will be seen as a screen and a shield for protection of the College rather than the protection of the victim involved.

Perhaps the college’s best course of action in cases like this is to turn the matters over to the proper level of local police and court authority.

“In loco Parentis” may not be a fitting role for a college in these more open times. Particularly in cases in which the punishments more accurately and appropriately are civil matters.

Dick Swart 1956

Would the College’s handling of the Safety Dance case cause Dick to revisit these suggestions? Should it?

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WBUR on Brackenridge

brackenridge

From WBUR in May 2014:

Amid increasing scrutiny nationwide of college administrators’ response to sexual assault cases, a former Williams College student and her parents have accused leaders at that college of mishandling her assault case.

Lexie Brackenridge, and her parents, Heidi and Alec Brackenridge, of Boston, also oppose the expected return to campus this fall of the alleged assailant.

(WBUR policy does not identify victims of sexual assault without their permission. In this case, both the woman and her parents agreed to be publicly identified.)

Lexie says the assault happened during her first semester at the private four-year institution in the Berkshires, during a party where alcohol was served.

“In October of 2012, I was sexually assaulted by a member of the men’s hockey team on campus at Williams,” Lexie says.

Lexie says she went to her alleged assailant’s room, and at that point realized how drunk and drugged he seemed to be. She does not want to discuss further details, because, she says, she does not want to re-victimize herself.

The next day, Lexie’s mother picked her up and drove her home to Wayland, where the family lived at the time. Lexie received medical attention. Her parents consulted an attorney. He advised against pressing charges, warning them that a trial would take two years and take their daughter out of college.

After a couple of weeks, Lexie returned to Williams. She met with two deans who, she says, persuaded her to file a complaint in the college’s disciplinary system against her alleged assailant. Originally, she says, she had refused.

“And they encouraged me that it would be very confidential,” Lexie says, “and the direct quote from Sarah Bolton, who is a dean at the college, she said that: ‘We want him off campus by tomorrow.’ ”

(WBUR is not naming the alleged assailant because no criminal charges were filed.)

When interviewed last week by WBUR in her office at Williams, Bolton said the college was unable to comment on the specifics of the case.

Lexie filed a complaint. The dean investigated. But Lexie was frustrated that she was not able to read what witnesses had said. She was also frustrated with the number of witnesses: 30, she says. Word got out that she was accusing a popular hockey player of raping her, and students — even some she had thought were her friends — started to turn against her.

Like other college officials, Bolton is in a tough spot. She can’t talk about the specifics of any case. But she can talk about how the college investigates reports of sexual assaults. And it does involve gathering information from as many witnesses as possible.

Bolton admits that it’s hard to maintain confidentiality at a small college.

“Often, the students know one another really well. They’re parts of the same social circles,” Bolton says. “And in a small community, the social pressures that build around that, and the way that pushes against reporting are things that we’re really concerned with.”

As word leaked out on campus about Lexie’s accusation, some of the witnesses changed their stories — among them, a friend of Lexie’s who started to date one of the hockey players. Lexie says the hockey player who assaulted her and a teammate concocted a false alibi, proved wrong by their ID card swipe records. Lexie says she received a letter from Bolton informing her that the two men had created a false story.

“And that’s why the dean of the college, that was one of the reasons that she was finding him guilty, but the boy who lied with him was never punished,” Lexie says.

The student Lexie says lied to help her alleged assailant concoct an alibi did not respond to a request for comment.

In an exchange on Facebook, the man Lexie accused of sexually assaulting her initially asked why WBUR wanted to talk to him. Informed that the Brackenridges are opposing his return, and that it was important to get his side of the story, he did not respond. That day, he deleted his Facebook page.

In 2012, Bolton was the chief judicial officer in sexual misconduct cases. She would look at the testimony and other evidence, such as patterns of students moving in and out of buildings. She would then decide whether it was more likely than not that the accused student violated the code of conduct, and if so, how. Then she would decide what the appropriate sanction would be.

Bolton found the alleged assailant had violated the code of conduct, and suspended him for three semesters.

“In our old process, both parties have a right of appeal, and they could appeal, under that old process, for any reason, whether they felt that I’d found the facts incorrectly or just simply that the sanction was inappropriate,” Bolton says.

The student appealed to a committee of four students and four members of the faculty, “who would reassess the evidence and decide whether there had been a violation of the code of conduct, and then redetermine what an appropriate sanction would be,” Bolton says.

The disciplinary committee confirmed Bolton’s initial decision in the case.

“My rapist was suspended for three semesters after being found guilty of sexual assault,” Lexie says. She remembers sitting in an office with the dean who had been assigned to her. She asked why her alleged assailant was suspended and not expelled.

“As they said, an expulsion would ruin their life, and they weren’t looking to do that, never mind that my life had been openly ruined by this man,” Lexie says.

Williams College estimates based on a 2011 survey that 50 sexual assaults occur on campus every year. According to the college’s website, the year Lexie reported she was sexually assaulted, she was one of six people; one took legal action; three, including Lexie, pursued disciplinary action; one student was suspended for two semesters; the other student who had been suspended for three semesters appealed, and was expelled.

Lexie says it became clear to her that as long as she was at Williams, it would be hard for her to focus on her academics because of the way she says some of the members of the hockey team kept harassing her.

“And one of the main occurrences, when it really, I would say, hit its peak was when they surrounded me and started throwing beer cans at my head and screamed that I should have kept my mouth shut,” Lexie says. She says the beer cans were full. She says the witnesses were the hockey team and one woman who a week after the incident started dating a hockey player. Neither the woman nor the hockey players responded to requests for comment.

The next morning, Lexie says, she reported the assault to the dean who had been assigned to help her. The college never disciplined the hockey players, Lexie says.

Bolton points out that retaliation is a violation of Williams’ code of conduct.

“We have in place strong policies that forbid people to take revenge on people who have reported,” Bolton says. “But you can have all of those things in place and still, social backlash can happen.”

Lexie says she finally decided to transfer after she found out she and a friend would be assigned housing with the hockey team her sophomore year. She is finishing her sophomore year at Columbia University, in New York.

Again, Bolton says she cannot discuss the specifics of the case, but says the college does make housing accommodations for a student who experiences an assault.

Lexie did not seem to get that message.

“And I think that the way in which the Williams administration handled it, it made it exceedingly clear that I was not welcome on that campus and that I was essentially being used as an example of why people should not come forward on that campus,” Lexie says.

Lexie says three Williams women have told her that after seeing how she was treated, they decided not to report sexual assaults against them.

Last fall, during his suspension, the man Lexie says raped her was arrested for possession of marijuana, according to a local news report. He had also been listed on the roster of a hockey team called the MILF Hunters, which Lexie’s parents say demonstrates that he has no remorse about what he did to their daughter.

Bolton says students must abide by the code of conduct even when they are suspended. But minor violations of the code would not prevent a student from coming back.

“There are things that are not permitted in our code of conduct for which we ordinarily have just a warning conversation with a student,” Bolton says. “Underage drinking is an example of that. So are low-level drug violations.”

Heidi Brackenridge, Lexie’s mother, opposes the alleged assailant’s return to Williams this fall, in part because she’s worried he may assault another student.

“My best friend’s daughter will begin as a freshman in the fall, and it appalls me that they would be willing to take that risk, and I don’t understand why they would,” Heidi says.

The Brackenridges say when the alleged assailant was suspended, they never expected him to be allowed back on campus. But Bolton explains that if she tells a student he is suspended for a fixed period of time, he receives a letter saying he is eligible to return in a particular semester. The letter may contain additional requirements.

“You might say you are required to receive alcohol treatment,” Bolton says. “And if they meet those requirements, then they are eligible to return on the date that we specify in the letter.”

Bolton says the college expects that students it finds have violated its code of sexual conduct may come back.

“Certainly students do return to campus following suspensions and reintegrate and succeed,” Bolton says.

By speaking out, Lexie says she intends to protect the next woman and to prevent anyone else from being placed in her position. She also hopes to bring into question a college culture she sees as too protective of athletes.

“On the Williams campus, it should hopefully generate a conversation about this individual case and the fact that a winning team is not worth sexual assault on campus,” Lexie says.

Lexie and her parents believe that a culture of older, experienced hockey players — admitted as freshmen — played a role in her assault. Her alleged assailant was admitted as a 20-year-old after a year in a Canadian league. That same year, the college accepted five other freshmen hockey players, ranging in age from 19 to 22 years old, who had delayed entering college to play hockey.

“So I think that yes, there’s obviously an athletic component that comes into play here, and I think an entire team mentality was also facilitated and created by their coach and also by that team themselves: ‘Hey, this is our teammate. We have to stick by him no matter what.’ ”

The head coach of men’s ice hockey at Williams, Bill Kangas, did not return a request for comment.

Lexie’s parents say Williams seems to have changed since they were students there in the 1980s.

But the college’s new director of sexual assault prevention and response, Meg Bossong, says sexual assault on college campuses is not something new.

“Those experiences were happening for decades, and we’re just talking about it a lot more publicly now,” Bossong says.

Heidi Brackenridge says she felt good when her daughter decided to attend Williams.

“It was a place that we felt safe,” Heidi says. “And it was a place that we trusted. And I can even remember talking about when Lexie was accepted how nice it was to drop her at a place where we thought, ‘Ah, it’s familiar. We know it. We loved it.’ ”

Alec Brackenridge says he and his wife were naive because they believed that their daughter would be protected by the college’s disciplinary process.

“Instead, I feel like the college was protecting themselves and making it possible for the assailant, the guy who raped our daughter, to get back on campus,” Alec says.

This spring, the college changed the way it investigates and adjudicates accusations of sexual assault. Professionals come in from off campus to conduct the investigations. And a panel from the student affairs staff now decides the cases.

Bolton says the changes are meant to instill confidence in victims of sexual assault so that they will file complaints.

“If students don’t believe that we will take these matters seriously, that we will listen to them carefully and support them through the process, then they simply won’t come forward, and we won’t have an opportunity to support them or to address the issues that may be happening,” Bolton says.

The Brackenridges have written to trustees, a former Williams College president, professors and alumni, many of whom are up in arms about the treatment Lexie received.

Williams College trustees and officials, in correspondence obtained by WBUR, indicate it’s unlikely the school will reverse a judicial decision to allow the accused student to return.

Indeed, the accused student is now a senior, proudly wearing the purple and gold while playing ice hockey for the Ephs.

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Record Reporting on Brackenridge

This 2014 Record article on the fall 2012 Brackenridge case is excellent. Kudos to Lauren Bender ’15.

A case of sexual assault at the College attracted media attention on Monday when a former student came forward to talk about her experience. Lexie Brackenridge, a current sophomore at Columbia who transferred from the College after she was sexually assaulted in fall 2012, discussed her treatment by the school’s administration and accused the College of mishandling her assault case.

The College responded quickly. President Adam Falk sent an all-campus email, which stated, “No sexual misconduct, including sexual assault, can have a place at Williams. We must all work together diligently to prevent it … Specific cases are confidential to protect the complainant, the respondent, and the students who were spoken to as part of the investigations. The future integrity of these processes depends on student confidence in their remaining confidential. Our commitment to confidentiality is firm, even if one party chooses to go public.” Falk’s email also included a link to his official statement on the matter.

Dean Bolton also sent an email to the student body, offering students the opportunity to gather in Dodd at 8 p.m. on Tuesday to discuss issues around sexual assault. An email was also sent to parents, assuring them that “In the matter raised by the former student and her parents, the College, as always, followed faithfully and fully its established written procedures in both adjudication and support.”

If not for the controversy unleashed by the Brackenridge family, would John Doe ’16 have been granted his degree in June? I don’t know.

The comment thread for this article is off the hook, as the kids say.

Would it be worth a week of commentary to go through the article, with the benefit of knowing some of the details about how Williams policy has evolved in the past four years?

Rest of article below the break: Read more

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Brackenridge in The Record

Lexie Brackenridge wrote in the Record two years ago:

In October 2012, when I was a 17-year-old first-year student, I was raped at Williams College by a 21-year-old freshman hockey player. I reported the assault to the dean’s office, and an investigative panel was appointed. The panel found the perpetrator guilty of sexual assault, suspending him from Williams for three semesters. My rapist appealed the finding, and the second trial once again found him guilty of sexual assault. At the end of the three-month ordeal, my attacker was suspended for three semesters from Williams. At the time, neither my parents nor I focused on his being suspended rather than expelled; it never occurred to us that the suspension was merely administrative and that Williams would readmit a known sexual assailant. By coming forward and sharing my story, my intentions are to encourage the College to take the adequate measures to prevent another student from being put in the position that I was: victimized, threatened and overwhelmingly isolated.

Read the whole thing. Rest of article below the break. Read more

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Amended Complaint in Safety Dance

An Amended Complaint has been filed in the Safety Dance sexual assault case. Most of it is the same as before, but there are some changes, especially at paragraph 174 (a-m) (pages 36ff) and 262 v and vi (page 64).

Highlights:

dance

Swear that I am not making this up! First, are we allowed to comment on the wonderful vibrancy that has come (via affirmative action?) to the Williams campus? Back in the day, if you were in a serious public relationship with girl A, it was considered bad form to rub up against girls B, C and D. Is this less true in Latin culture? Should Williams strive to encourage different behavior among its students?

Dick Swart’s ’56 classic question is, as always, relevant: Where did these people prep?

Second, I claim vindication on naming this scandal Safety Dance. Recall the song lyrics:

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.

Is it time for EphBlog to make a spoof video, changing the words of the song to match more closely the facts of this case?

saylor

Can we get some lawyer input as to whether the Brandeis case will be used as precedent here? John Doe’s attorney certainly hopes so!

groom

I think that is a good summary of the key points from John Doe’s point of view.

If a female student can have sex with a male student for two years and then, after a vicious personal falling out, accuse him of a one-time assault that happened in the middle of that two year period, provide no contemporary evidence, and cause the College to refuse to give him his degree, I think we are going to see a lot more men spend four years at Williams without a BA to show for the effort.

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Globe on Brackenridge

EphBlog failed to provide sufficient coverage of this high profile sexual assault case from four years ago. Before this history disappears, let’s spend a few days reviewing the record. From The Boston Globe on May 24, 2014:

Williams College roiled by report of rape
Students, alumni outraged, say case was mishandled

Allegations that administrators at Williams College mishandled a student’s report of being raped and subsequently harassed has sparked outcry among students, faculty, parents, and alumni, some of whom have vowed to withhold donations until changes are made.

Hundreds have signed a petition calling for action by the liberal arts school in Western Massachusetts. On Friday, the school’s president issued the latest in a series of statements assuring the community that it takes sexual assault seriously.

“This has gone off like a pack of fireworks in a pack of fireworks,” said Anne Lindsay Fetter, who graduated from Williams in 1985 and is vowing to withhold donations to the college. “I’ve never seen the alumni association so enraged over anything before.”

The uproar began when Lexie Brackenridge, a 19-year-old from Boston, wrote in a student newspaper column last week that she had been raped in October 2012 when she was a 17-year-old freshman.

Administrators, she wrote, persuaded her to not seek legal action against her alleged assailant, a 21-year-old student who played for the men’s hockey team. Instead, school officials had her file a complaint through the school’s judicial system, Brackenridge wrote.

During that three-month process, she said she was repeatedly harassed by other members of the hockey team.

“In one instance, they surrounded me, threw full beer cans at my head and chanted that I should have kept my mouth shut,” she wrote. “When I spoke to the deans about the incident, I was told that everyone was ‘exhausted’ from dealing with the case and that perhaps it would be better if we all just ‘took a little break.’ ”

She said her alleged assailant was ultimately found responsible for the act, and administrators suspended him for three semesters, a punishment she described as “a mere slap on the wrist.”

An attorney for the alleged assailant, who could not be reached Friday night, told WBUR previously that he denies the allegations against him.

Brackenridge has since transferred to Columbia University in New York, where she was a sophomore this year.

Brackenridge and her parents, who are Williams alumni, have launched a campaign to raise awareness about what happened and to try to stop it from occurring again. Hundreds of fellow students and alumni have backed the family’s demand that the school take steps to improve.

An online petition launched this week by Brackenridge calls on the school to change how it investigates sexual assault and disciplines offenders. It has collected more than 650 signatures.

“I was really blown away by the response I received,” Brackenridge said in a phone interview Friday, noting how classmates, alumni, friends, family, faculty, advocates and even strangers have expressed support.

“I was not expecting anything of this magnitude,” she said. “I’ve had so many people say I’m proud you came out and told your story.”

School officials, citing privacy laws, have said they cannot comment in detail about the case. Williams spokesman Jim Kolesar on Friday reiterated previous statements from the college that it feels “very confident” it has followed proper policies and procedures “in every case including this one.”

“The college has been working intensively on this for years,” he said. “It’s urgent work that needs to be done, and we’ll continue to work on this.”

Administrators have issued numerous statements about the topic since Brackenridge’s account was published. College dean Sarah Bolton wrote a lengthy reaction to the petition, responding individually to its demands.

On Friday, the college’s president, Adam Falk, sent a letter to alumni and parents saying that Williams has a “culture of commitment to ending sexual assault.”

“Sexual assault is horribly, devastatingly destructive,” he wrote. “Williams is not immune from this destructive force.”

He assured that battling the problem is a priority.

“Addressing sexual assault at Williams — through prevention, awareness, and education efforts; support and care of survivors; and the strengthening of our disciplinary processes — has been a primary concern of mine since I became president in 2010,” he added. “We want more light on this issue, not less.”

But many said they are not satisfied with the school’s reponse.

“I view it as pure PR spin drafted by a lawyer to skirt any legal problems,” said Fetter, one of the alumni upset with the sexual assault report. She is vowing not to give another penny to her alma mater “until I see some concrete action.”

Fetter said she, too, was a victim of a sexual assault when she attended Williams some three decades ago. She alleged that her complaint was dismissed by school officials.

“I see there’s a clear need to address the issue of social justice, and I think Williams is a premier school and it needs to take the lead on revamping the policies in place,” said Fetter, who now lives in California and is a researcher and teacher at Walden University. “I’m outraged. This is not acceptable.”

Brackenridge said she is “frustrated, offended, and hurt” by the school’s response and that no one from the college has reached out to her directly.

“If the school truly wants to reform their policies they should talk to the victims themselves,” she said.

But, she vowed she and her supporters won’t quit.

“The large amount of support I have backing me — whether it’s in the Williams community or the countless women from across the country backing me — it’s not going to go away,” she said.

Brakenbridge’s father, Alex, said he has been inspired by his daughter coming forward and called the outpouring of support “tremendously heartening.”

He said the school’s response has been cold and lacking respect.

“We want a constructive dialogue and we hope something positive can come from this,” he said.

The controversy comes amid growing activism around the problem of campus sexual assault and three weeks after the White House unveiled new guidelines for schools to follow in their efforts to address the issue.

Federal officials disclosed this month that six schools in Massachusetts, one in New Hampshire, and another in Connecticut were among 55 nationwide under investigation for potentially mishandling complaints of sexual violence and harassment.

Since that time, the number of schools being probed has grown from 55 to 60.

The five additional schools under investigation by the US Department of Education for possible Title IX violations are: The University of Alaska, the University of Delaware, Elmira College in New York, The University of Akron in Ohio, and Cisco Junior College in Texas, according to an updated list the US Education Department provided to the Globe Friday.

Meanwhile, in the past several weeks, administrators from at least two other local schools have been accused of failing to address rape reports appropriately.

A former Northeastern University student who said she was raped there filed a federal complaint with the Department of Education two weeks ago against the school alleging that administrators improperly handled her case and violated Title IX, a law that mandates gender equality in campus life.

Another alleged rape victim, a student at Brown University in Providence, this week filed a federal complaint against her school, accusing administrators there of similar violations.

As of Friday, neither of those schools, nor Williams, are under investigation for their alleged violations. But federal officials have said that they review directly filed complaints as well as public allegations before determining whether to launch a probe.

Northeastern spokeswoman Renata Nyul said in a statement that while privacy laws prevent the school from commenting on specific cases, “we take reports of sexual assault very seriously and we investigate every allegation promptly.”

Brown spokeswoman Marisa Quinn said the university has not been formally notified of a complaint, but administrators “recognize the seriousness of our obligations under the Clery Act and Title IX.”

If I were John Doe’s attorney, I would highlight the pressure that Williams is under to demonstrate that it is serious about combating sexual assault. Would Doe be punished as severely if Brackenridge and her parents had not raised such a hue and cry?

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Latest Documents from Safety Dance

Here (Proposed TRO Order2, Motion and Memo for Ex Parte TRO and 12_8_16 Court Order) are the latest court documents from Safety Dance.

1) Comments from our lawyer readers are welcome! What do these documents mean?

2) New argument is that the College’s refusal to give Doe his degree prevented him from applying to law school early. They are demanding that the College give his degree now so that he can apply via the regular decision process. This strikes me as smart (even if going to law school would probably be a bad idea for Doe.)

3) Is there another college sexual assault case in which the accused has completed all the requirements for a degree but the college refuses to grant it to him? I have not heard of one.

4) Looks to me like Williams has to provide an answer by December 22. Why won’t they just settle and give Doe his degree?

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Ashe Schow on Safety Dance

Ashe Schow, writing at Watchdog.org, provides a useful timeline of the events associated with Safety Dance. I have put the entire article below the break for posterity. Comments:

1) Would be great to get a shout-out for EphBlog or at least a reference to our name for the scandal: Safety Dance. How about it Ashe? ;-) At the very least, Schow ought to report how the initial version of the filings included both Doe and Smith’s real names. That is interesting!

2) The article is, by far, the best source for a clear timeline of the event associated with the case. Highly recommended.

3) However, is there a mistake in the first paragraph?

A male student from Williams College in Massachusetts accused his ex-girlfriend of sexual assault. A month later, she made a counterclaim against him. Guess whose accusation was taken seriously.

I don’t think (corrections welcome) that Doe ever accused Smith “sexual assault.” He accused her of assault (and/or battery) because she slapped him after the dance from which the scandal takes its name.

4) Given the editorial positioning if the Watchdog, I am surprised that Schow does not use Smith’s real name. Should I be?

Read more

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College Fix on Safety Dance

They start with a great headline:

College employee falsely accused student of rape so she wouldn’t get fired, lawsuit claims

This is much better than our first effort since it mentions the (obviously false) rape accusation. After reading the material associated with the case, no reasonable person would believe that John Doe sexually assaulted Susan Smith. However, I don’t think that Smith used the false rape accusation to avoid getting fired. The timing does not work out. This is much more likely to be a women-scorned scenario.

Williams College is withholding a former student’s diploma based on transparently false rape accusations by a college employee – his former lover – who believed her job was jeopardized by him, a new lawsuit claims.

The former student accused the once-religious private school of conducting an “inherently flawed” and “fundamentally unfair” rape investigation, in violation of his Title IX rights, and violating federal education privacy law.

1) Again, the most important (and indisputed!) facts of the case are that Smith/Doe were having sex for a year, then something happened one night, then they continued to have sex for another year. Now, obviously, sexual assault can occur in the middle of a long-standing sexual relationship. But there ought to be a fairly high standard of evidence required if you are going to ruin someone’s life in this scenario.

2) Why the College Fix uses the (accurate) description of “once-religious private school” for Williams is a mystery to me. Is this some sort of weird right wing tic?

To investigate the employee’s claims, the college hired the same person named in a lawsuit against nearby Amherst College that said her work was rushed and one-sided in favor of the accuser.

That would be Allyson Kurker, another person who makes money off of the weaponizing of sexual relationships in college. If you are accused of sexual assault, the last thing you want is Kurker to investigate the claim. From KC Johnson:

In the deposition, Kurker made clear that when accusers change their minds about whether they were sexually assaulted, what they previously said about their attack isn’t relevant to her inquiry. She added that she was interested in contemporaneous writings from the accuser only “to the extent that the incident is being described as nonconsensual.” Kurker continued: “The only e-mails that I would have found material” were those in which A.S. had described the incident as nonconsensual. This standard suggests that Kurker sees her job as not searching for—indeed, arguably concealing—potentially exculpatory evidence.

And Williams still hired her! There are dozens of Massachusetts attorneys who would love to get money from the College to investigate sexual assault claims. Why would Williams hire someone like Kurker who is so obviously biased against the accused? The naive answer is that Williams is incompetent, that it did not know about Kurker and did not bother to check out her previous work. The scary answer is that Williams knew all about Kurker, knew that she was biased against the accused and hired her anyway because, after all the complaints over the Lexie Brackenridge case, the College wanted to collect some scalps.

In May [2016], with less than a month before Doe’s graduation, Smith filed a counter-complaint with the Title IX office alleging that he had “displayed abusive behavior towards her during the past two years.”

Smith’s initial complaint provided few details as to the nature of her claim. During the Title IX investigation, which took place over several weeks and included several interviews with witnesses provided by Smith, she made several new allegations.

That timing is the strangest part of the case. It is May 2016. Smith graduated in 2015. Doe is weeks away from graduation. She tried to get him thrown up on trumped up honor code violations and failed to do so. She has been employed by Williams for almost a year but has been (I hope!) told that, given her behavior in striking (!) a student, the College will not be renewing her contract. The relationship between Doe/Smith has been over (really??) for months. So, why file a complaint now?

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First Impressions of Record Coverage of Safety Dance

A week and 2 days after its release, the lawsuit filed against Williams for botching a Title IX case (and violating FERPA, Mass. Privacy Act, etc.) has finally found its space on the Record.

First impressions/issues:

1. Why does the reporter keep using the word “allegedly” to describe materially factual events? For example:

After this event, Smith allegedly emailed former Dean of the College Sarah Bolton, stating that she had written essays for Doe in violation of the College’s Honor Code.

This is not an allegation. This is a material fact that is founded on material evidence, i.e. the actual email. So either there is confusion about the definition of the word “allegedly” or this is sloppy reporting.

2. The only contribution this coverage yields are neutered quotes from the college, but alas, we can only go to war with the army we have. Notably, Dean Sandstrom is quoted saying “Williams is committed to the safety of all its students.” This is logically equivalent to when someone says “I’m not a/an____…” and then later follows with an inevitable “but…” One example that comes to mind (first pointed out by Professor Michael Lewis earlier this year in the Record) is President Falk when he said, in an all campus email, “Free speech is a value I hold in extremely high regard” and following with his inevitable “but” of disinviting speakers. Draw your own conclusions, but I see a pattern.

3. Why did it take 9 days from the release of the lawsuit for this to be published if all we get is an “alleged” summary of “alleged” events?

Either way, the article is suggestive of a first in many, since it leaves many crucial questions unanswered, so hopefully, we can anticipate that more substantive reporting will follow.

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Student Commentary on Safety Dance Complaint

Much of our best material comes from our commentators. For example, “wasting his tuition ’17” — who really ought to join us as an author — shared these thoughts:

As I ponder this case, there are two things most immediately clear to me: (1) given that this is John Doe’s lawsuit, the reporting of some details may have inevitably been skewed to his benefit, and as we don’t have the full side of Susan Smith, it is hard to ascertain who did what, and (2) what is factually verifiable by the complaint is the manhandling of the case by the College administration. Although Williams graces us with the luxury of choice with this case, I think that Pandora’s box is what should be investigated. There are many dimensions to this.For example, we can consider the different, colorful ways the Dean’s Office engages in college policy:

52. On the basis of information presented by Bolton behind closed doors and without affording John the opportunity to respond, the Committee said that it had no choice but to recommend expulsion as John’s sanction.


It is interesting that around this time, a group of Williams students were fervently campaigning for student representation in the Honor Code Committee (see: 8+4 Resolution). Was that related?

Another:

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.

This knowing, explicit admission by a ranking Dean in Hopkins Hall of a flawed investigatory process suggests either tacit acceptance of this “unfair” process by a longtime administrator, or this longtime administrator’s incompetence at failing to do anything about it. If it is the latter, we ought to remember that Dean Dave’s experience prior to his current role is in coaching tennis, so we surely can’t blame him.

From the complaint that keeps on giving, we have:

The code of conduct, honor hearing procedures, violation reporting procedures, appeal procedures, etc. are ever-changing and continually edited with no notice to the students. The students have no way of knowing what the policies and procedures were at a past time unless they had downloaded the information themselves. A relevant example exists at http://sites.williams.edu/honor-system/suspected-violations/. Sometime at the end of March 2016, Plaintiff’s attorney cited the procedure when preparing this Complaint copying the standard for staff-reported infractions (see above). Since transcribing that information, changed sometime in April or May 2016, the procedure now states, “It is up to the Faculty Chair, in cooperation with the Student Chair and the Dean of the College, to determine whether to proceed with a hearing.” Before, it was solely up to the Faculty Chair and Student Chair to determine whether to proceed with a hearing.

Where are the accountability measures for changing policies? Who makes these changes? I’ve been here for three and a half years, and while I’ve yet to hear of any such procedures, there are many examples of the enforcement of these mystery policies by the Dean’s Office. One such example can be gleaned from our trove:

Also on March 8, 2016, Bolton told John and Lady Doe that John was “not allowed to appeal the sanction,” and that he can only appeal the fact finding portion of the hearing. The Honor Committee Appeals Procedures contain no provision barring students from appealing the sanction.

I’ve tried, and have yet to find any such procedures as well. This issue is not limited to the Honor Code Committee. The Committee on Academic Standing is gaining quite a reputation for making backwards decisions and telling students they are unable to appeal them, and then not saying why. Notably, there is also an athletics coach on that faculty standing committee. Same in the Honor Code Committee.

We further see how this just keeps getting better for Dean Sandstrom in an email she sent to John Doe:

The investigative report carefully lays out the relevant college policies that were in effect in 2013-2014, 2014-2015, and currently (see pages 4-8). While there were some shifts in specific language over time, there was always a code of conduct which prohibited sexual misconduct of any kind.

Who approves these “shifts in specific language”? Do the trustees? Does President Falk? I’ve also never seen these policies on printed paper; most are online, which makes it very easy for Dean Sandstrom slip in a word or two, as she or someone over there at Hopkins Hall clearly had. Again, where is the accountability? Who makes these decisions, and what processes and considerations do theses “shifts in specific language” go through?

For yet another example of curious specific language:

The College’s procedures limit appeals to i) significant procedural lapses or ii) the appearance of substantive new evidence not available at the time of the original decision. As such, the accused’s right of appeal remains highly circumscribed.

I find the word “lapses” in the phrase “significant procedural lapses” pretty interesting, but seeing as the college prefers to operate with a generous degree of flexibility with its definitions, I think one question we can reasonably ask is, lapses by whom? Since there was no new material evidence and it doesn’t seem like he did anything material in between appeals, did the Dean’s Office explicitly admit to incompetence by way of “significant procedural lapses” on their part by allowing him the opportunity? Is this the reason behind the last day (June 30, 2016) ex-Dean Bolton and Susan Smith shared at Williams?

Last one, I promise:

On October 21, 2016, the Hearing Panel convened. The Panel consisted of Ninah Pretto from the Dean’s Office; Steve Klass, Vice President for Campus Life; and Aaron Gordon, Administrative Director of Divisional Affairs and Vice President for Campus Life.

College policy says that the hearing panel is appointed by the Dean of the College and the three are drawn from a pool of staff who have been trained on such matters. I am curious as to what the policy means by “trained”. Steve Klass, who may warrant the benefit of the doubt given his experience here, and Aaron Gordon have careers built on operational roles and financial matters, it would seem, not sexual abuse cases. See here and here. Ninah Pretto, based on her LinkedIn, spent much of her career prior to Williams on immigration documentation and compliance, which, while valuable, do not constitute training in handling such cases. Why were three individuals inexperienced in these matters appointed to the hearing panel?

Curious to know your thoughts on these, and if you think they’re worth looking into as well. This is what I’m bothering my friends in the Record about right now, since a bunch of them are currently “torn” because they know either both or one of the parties.

The top few are great points that the Record ought to cover in detail. Contrary to some ill-informed commentary earlier, the Record comes out tonight. Perhaps you would join us as an author to provide a detailed analysis of their coverage?

But your later points are less relevant because they are the inevitable result of weaponizing Title IX in order to control the sexual relations among Williams students. Once you try to do this, endless language changes, regardless of who approves them, are unavoidable.

My current position: The College should dial back its sexual assault bureaucracy dramatically and stop using expulsion in such a ham-handed fashion. Give John Doe his degree and call it a day. To continue down this path is to ensure numerous embarrassing law suits — and destroyed lives — for years to come.

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Are Sexual Assault Investigations Biased Against Poor Minority Males?

Will the Record mention some of the sensitive PC issues associated with Safety Dance? For example:

only

True? Probably. Certainly, 90%+ of the cases must be against men. But the Record ought to find out the truth. Williams can’t reveal the students involved in individual cases, but it can discuss the overall statistics. It probably won’t but the Record should push the College to explain why not. If students in category X are much more likely to commit sexual assault, shouldn’t Williams admit fewer of them and/or devote more energy to educating them?

Even if Williams can’t admit fewer men, should it change the mixture of men which it admits?

ecu

I have talked to enough recent students to know that minority men on financial aid are much more likely to be charged with sexual assault at Williams and punished for it. John Doe fits this pattern. (The same is also true of varsity athletes, especially those playing helmet-sports.)

Recall that in the recent Amherst case (investigated by the same attorney (Kurker) who Williams employed on this case), the accused student’s lawyer claimed that:

After the College [Amherst] adopted its new policies and procedures regarding sexual misconduct in May 2013, it aggressively began to prosecute alleged perpetrators. On information and belief, in doing so, the College targeted male students of color. In particular, on information and belief, the only students who have been sanctioned with separation from the College (forced leave, suspension, or expulsion) as a result of allegations of sexual misconduct have been male students of color.

My friends on the Alt-Right would claim that, first, minority men are much more likely to commit sexual assault than white men in the general population, so it stands to reason that the same dynamics would apply to elite colleges. Second, they would be perplexed at how often “minority” in this context means “Asian-American,” as in the headline cases at Amherst and Vassar. Asian-Americans are, of course, much less likely to commit sexual assaults than whites. Is sexual assault by Asian-American men on college campuses more likely than we might naively expect or is it that the college justice system is biased against them? Save this debate for another day.

The last PC issues worth pondering concern class and culture. Consider some of the speech/actions that John Doe is accused of:

Susan brought John as her date to her 100 Days Dance. They had an argument, and she told him that she wanted to leave the party because they weren’t enjoying it. John and Susan walked towards the door, but as she walked out of it, he stayed at the door and said something like, “Oh, you can’t come back in now.”

(Susan stated that once a person left the dance, the College did not allow reentry.) At the time that John tricked Susan into leaving the dance without him, he knew that she did not have her phone or ID with her because he was holding them. Without these things, she was forced to sit outside of her dorm (Dodd House) in 19-degree weather, in only a dress and heels, as she waited about an hour for someone to come by to let her in to the building.

This is one of many (not uncontested!) examples of John Doe acting like a cad. But, as the Exploring Diversity Initiative at Williams is designed to teach, cultures differ. In Ecuador, men are expected to treat women in a certain fashion. That particular example of diversity may not be what Williams is interested in having more of. Should the College, therefore, prefer applicants from some cultures over those from others?

Side note: John Doe, on his Linked-In reports that he is Williams College 2011-2015. The first problem, obviously, is that he is implying that he has a Williams degree when, in fact, he does not. The second problem is that this suggests (since he didn’t complete the required course work until the spring of 2016) that he took time off from Williams. There is at least one anonymous suggestion that the College forced him to take time off because of his behavior towards a female student. Any truth to that? Would that explain why Williams has come down so hard on him when the facts of this case, alone, would not justify such an extreme punishment?

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Notes for Record Reporting on Safety Dance

The leadership of the Record — Matthew Borin, Zoe Harvan and Christian Ruhl — faces some difficult questions in covering “Safety Dance,” the latest sexual assault controversy at Williams. Reader comments are wanted on all the below.

1) Do they mention the real name of the accused, currently called John Doe in the legal filings? We all know his name, both because of anonymous unmaskings at EphBlog and because his attorney was sloppy in her initial legal filings, as pointed out by MRL ’91. I am unaware of any journalistic standard which protects privacy in a case like this. But the Record, out of sympathy for a fellow Eph, may not want to out him for all of Google to see.

2) Do they mention the real name of “Susan Smith,” the student who accused Doe? There is a journalistic standard — as a Williams official has repeatedly told me! — that reputable publications do not publish the names of reported victims of sexual assault. But, in those cases, the reported victim has no other status in the story beyond that of victim. In this case, Smith is an admitted perpetrator. No one contests that she slapped Doe.

Imagine if the Record had gotten a copy of this March 13, 2016 cease-and-desist letter (pdf) from Doe’s attorney to Smith. It accuses a college employee (Smith) of assaulting a student (Doe). Would that be newsworthy? Of course! Would the Record be justified in publishing both Doe and Smith’s real names? Of course! So, Smith’s name would (should) have appeared in the Record back in March. Her actions alone justify a lack of anonymity. But then, two months later, she accuses Doe of a sexual assault that occurred a year prior. Does that after-the-fact accusation mean that the Record is not allowed to publish her name with regard to a different, albeit connected, news event? I don’t know.

3) Should the Record use material that was (incompetently?) redacted from the filings? Consider page 42 from exhibit 13 pdf. In the PDF, it looks like:

redact

Many of the filings feature this sort of heavy redacting (for reasons that are unclear to me). But, if you just copy-and-paste that into a text processor, you get:

Susan’s Third Interview

The alleged incident of non-consensual sex occurred on Labor Day in 2014, on the night that Matias Crespo hosted his first party of the semester. Susan responded to John’s contentions as follows:

o Susan estimates that she and John only attended two parties in Matias’s room that semester.

o Susan maintained that, with the exception of the September incident, she and John never had sex after consuming any alcohol. She disputed John’s contention that on some occasions, they would have sex after drinking between one and three drinks each. She stated that when they went out they would drink to the point of such intoxication that they would throw up together in their room, but they never had sex after drinking.

o With respect to Susan’s level of intoxication that night, she believes that John observed her shot-gunning a beer because he was also shot-gunning beers. She also recalls that she was drinking shots of Fireball.

o Susan’s last recollection before engaging in sexual intercourse was of her leaving Matias’s room. During sex, she recalls that she was “physically trying” to get away from John by attempting to “shift out from under him,” but he was restraining her, using his body weight and strength to “hold [her] down.” NB: Susan described herself to Ms. Kurker as “lying on her stomach.”

And so on. Everything in the filings that has been redacted is actually available. Should the Record use that information in its reporting?

4) Should the Record give EphBlog credit and/or reference our reporting in any way? If it only uses documents that it, on its own, got from PACER, then it probably does not have to, unless the reporter first found out about the case by reading EphBlog. Or maybe it should credit KC Johnson? Either way, if the Record uses filings that we have provided, then it ought to credit EphBlog. Specifically, I bet that if the Record uses the non-redacted (or sloppily redacted) filings — which it almost certainly got from us — it ought to mention EphBlog. It should not pretend that it is using documents from PACER unless it has gotten them from PACER itself.

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Scandal Name: Safety Dance

We need a name for the latest Williams controversy. Let’s go with “Safety Dance.” Why? Recall this detail from the complaint:

On the night of December 5, 2015, John attended a party on the Williams campus. While dancing with another woman, employee Smith confronted him for dancing with someone other than herself as she wanted to dance with him. When John walked away, Smith followed John. The time was sometime between 11:30 pm of December 5, 2015 to midnight of December 6, 2015. Smith followed John all the way to his dormitory. John pointed out Smith’s wrongdoing, that she had violated the terms of her employment by attending a student party, as Smith held the position of Alumni Coordinator at Williams. Smith slapped John. She also grabbed and took away his phone. John retreated to his room. Smith escalated the situation even further afterwards by telephoning John’s sister, Lady Doe.

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 . . .

PS. Not too late for readers to suggest a better scandal name . . .

UPDATE: Following conversations with both sides, and feedback from the EphBlog community, we have decided not to publish either John Doe’s and Susan Smith’s real names. We ask that commentators abide by this decision, although everyone is free to continue to argue about whether or not this decision is the correct one. Some post-hoc editing of prior posts will now begin. Apologies for any confusion that this causes in making sense of the comment threads.

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