News from Williams

Adoption of the Dear Colleague letter in 2011—coupled with campus pressure from activists and their faculty and administrative allies—has paved the way for all sorts of procedural abuses in campus sexual assault cases. This new system is one that’s ripe for abuse and favoritism, in all sorts of ways. The latest example comes in a lawsuit filed against my former employer, Williams College. (You can read the complaint here.)

The case revolves around the actions of a former Williams employee, who worked in the Alumni Relations office for the 2015-2016 academic year. She came to the job after graduating from Williams. For more than a year before she graduated, the employee dated another Williams student—identified as John Doe in the complaint—who was one year behind her academically. The two were close enough that the employee knew Doe’s computer password and (allegedly) his Facebook and Snapchat passwords.

It seems to have been an uneven relationship; in October 2014, the employee (then still a student) wrote to Williams dean Sarah Bolton indicating that she and Doe had a (verbal) argument. (Bolton departed Williams last summer and is now president at the College of Wooster.) Because “he ended up calling me selfish and telling me he can’t even look at me,” the future employee reported, she’d need to take a week off from school to recover emotionally. The e-mail contained no hint of any allegation of physical misconduct by Doe. Bolton responded very sympathetically, despite the extreme nature of the request (a week off from classes) given the conduct alleged (a personal insult).

The employee, moreover, considered Doe to be faithful (the specifics here remain in dispute). And when she claimed to have uncovered evidence of this (by checking on Doe’s Facebook, through means that remain disputed), she—oddly—informed Doe’s sister of his infidelity. Nonetheless, she evidently recovered from her emotional trauma sufficiently to graduate and decided to accept a job at Williams—in part, she later claimed, to stay close to Doe.

The relationship reached a new nadir at a December 2015 party. Doe was there with another female student; the employee saw him, got upset, and some sort of argument (initiated by the employee) ensued, which culminated in the employee grabbing Doe’s phone and hitting him across the case. Doe threatened to call security—which the employee believed might lead Williams to fire her. So after leaving the party, she called Doe’s sister—who subsequently produced documentation that the call occurred, and who recalled the employee as frantic:


Very shortly after the the employee-Doe’s sister conversation ended, the employee emailed Dean Bolton. At 2.27am, on the morning of Sunday, December 5, 2015, she explained that she had been “too beaten (emotionally) to show up for work” in the past week. (It’s rather hard to miss a pattern here.) Issuing what she described as a “cry for help,” the employee claimed that Doe had “taunted” her at the party. She then charged that Doe had committed academic misconduct, by maneuvering her into helping him write papers for his Spanish courses. (Both accuser and accused are of Hispanic descent.) Here is a copy of the late-night, post-party email.



The December 2015 email, like its October 2014 counterpart, contained no hint of any allegation of physical misconduct by Doe.

Despite the employee’s email constituting an admission that she had violated Williams policy by continuing a relationship of some type with Doe (college policy: “All faculty and many staff are potentially in a position of power with regard to students; hence, sexual relationships between employees and students are in almost all cases inappropriate”), Bolton does not appear to have taken any action against the employee. But Williams did file disciplinary charges against Doe for academic misconduct, claiming that he failed to submit his own work in three separate courses.

When I taught at Williams, I served two years as a faculty member of the Honors Committee. (The then-structure had a committee of five students and four professors, but only the students could vote.) The committee procedures essentially (and not unreasonably) presumed guilt–the accused student had no right to discovery, no right to a lawyer, and was facing a panel that would need to dismiss the findings of a Williams professor (who normally would be the figure bringing a plagiarism/academic integrity charge to the committee) to find him not guilty.

This case was unusual, however, in that the allegation came not from any of Doe’s professors–but from a Williams employee in the alumni affairs office. And Doe was able to prove his innocence on the academic dishonesty allegations. The committee itself found him not guilty of two of the allegations against Doe; a third was dismissed on appeal.

The result of the academic integrity inquiry thus provided Williams with critical, and troubling, evidence that one of its employees had leveled serious, uncorroborated allegations against a student with whom she’d had an inappropriate romantic relationship. Yet, again, the complaint indicates that no record exists of an attempt to discipline the employee. Indeed, in its most explosive allegation, the complaint claims Dean Bolton assured the employee that Doe’s expulsion was virtually assured, despite firm college rules that preclude someone in Bolton’s position discussing another student’s disciplinary proceedings with someone in the employee’s position. Ironically, Doe knew about the call because he happened to be in the room, with the employee, at the time. (It goes without saying that the relationship between these two was not a model for an ideal partnership.)

The strain from the academic integrity claim finally brought about an end to the Doe-the employee relationship, in early March 2016. But the employee—who was, to reiterate, still operating under rules that held “sexual relationships between employees and students are in almost all cases inappropriate”—appears to have wanted to rekindle matters. According to a letter sent by Doe’s lawyer, Stacey Elin Rossi, the employee flooded Doe with calls and texts in the days after their final breakup:



Doe responded to none of these calls, and his lawyer sent to the employee a cease-and-desist letter. Doe and his lawyer also met with Dean Bolton and the college counsel, placing Williams on notice about its employee’s behavior. One month later, on April 13, 2016, Doe filed a Title IX complaint against the employee, claiming gender-based harassment. For reasons that remain unexplained, Williams appears not to have investigated this complaint against its employee—formally presented by Doe’s lawyer to Williams’ Title IX coordinator—for nearly another month. According to the complaint, the college offered no reason for its decision not to promptly open an investigation into its employee’s behavior.

Then, on May 10, Doe received a notice from the same Title IX coordinator—informing him that the employee had filed an allegation of against him. The charge? “Abusive behavior toward her in the past two years.” The letter provided no more specifics.

At that point, only weeks away from his graduation, Doe found himself subjected to Williams’ Title IX procedure. (Only now did the college open an investigation into his April complaint, as well. Conducting the investigations simultaneously allowed Williams to avoid treating the employee’s May complaint as retaliation for Doe filing a Title IX complaint against her.) Doe soon discovered that the allegations included a claim of sexual assault—which was first floated by the employee only after Doe had filed a Title IX complaint against her. According to the complaint, Doe also was charged with “relationship abuse,” even though that concept wasn’t added to the college disciplinary code until October 2015, well after many of the events at issue in the case. A Williams official claimed that the wording change in the policy merely formalized preexisting “general guidelines”—but this precise argument, when Brown tried it, was rejected by Judge William Smith.

Williams has adopted a modified version of the single-investigator model, and the college turned to an eastern Massachusetts employment attorney named Allyson Kurker. Those familiar with campus due process matters might recognize Kurker’s name—she’s the “investigator” who handled the high-profile Amherst due process case. In that case, she failed to discover exculpatory text messages sent by the accused, and later testified that her failure was irrelevant, since she was interested in discovering contemporaneous texts only “to the extent that the incident is being described as nonconsensual.”

Doe was permitted to walk with his class, but couldn’t receive his degree. In September, Kurker’s investigation (which included an opportunity for Doe to respond in writing) concluded. (The complaint includes a copy of Kurker’s report, but most of it is redacted, so—unlike in the Amherst case—there is no way to comment on the clarity of Kurker’s work.) After both the employee and Doe produced an additional round of written responses, Kurker allegedly penned a revised written report (which Doe did not receive, for reasons Williams did not explain). The college also rejected Doe’s request for the transcripts of interviews between Kurker and witnesses. Moreover, since by fall 2016 the employee was no longer working for the college (her LinkedIn page has no indication of where she currently works), there was no possibility of sanction from Doe’s against her.

Last week, a panel of three college administrators informed Doe that they had found him guilty of sexual assault—citing to an incident in September 2014. That the relationship continued for another 18 months after the alleged assault, and that even Williams’ procedures found the employee’s initial claims of academic misconduct non-credible, and that the employee appears to have engaged in (at the very least) professionally dubious conduct toward Doe, and that the employee made two separate allegations to Dean Bolton without mentioning the alleged September 2014 incident, appears not to have impacted the committee’s evaluation of the employee’s credibility. Much as in the Brandeis case, the decision to analyze a single event in isolation (and ignore how the totality of the relationship between the two parties might affect the credibility of the accuser) produced an odd result.

Unanswered, from the complaint:

  • Why did Williams not punish its employee for violating the college’s policy regarding dating students?
  • Why did Williams not immediately investigate Doe’s Title IX complaint alleging harassment by a college employee of a student?
  • Why did the college downplay or ignore the evidence that appeared to eviscerate its employee’s credibility?

The case has been assigned* to Judge Michael Ponsor.

*–additions and edits for clarity.

At UCSD, “Where Is the Kangaroo?”

California law gives to state courts some discretion in reviewing the determinations of administrative hearings—which includes campus sexual assault tribunals. As a result, some of the most pro-due process decisions (UC-San Diego, USC) have come from California state courts.

On October 12, Judge Joel Pressman’s important decision was reviewed by a three-judge appellate panel. While it’s always dangerous to predict an appeals outcome from oral argument, it was clear that all three justices (Richard Huffman, Joan Irion, and Gilbert Nares) had concerns about the fairness of the UCSD system.

A quick summary: in this case, the accuser made two charges—that the male student raped her, and then sexually assaulted her the following morning. A UCSD investigator spoke to 14 witnesses, but wasn’t able to corroborate the first claim. But even though something these 14 witnesses said caused the investigator to doubt the accuser’s credibility, notes of these interviews (and even the identity of the parties!) wasn’t shared with the accused student. Regarding the incident the following morning—to which there were no witnesses—both the investigator and a UCSD panel deemed it more likely than not the accuser was telling the truth. UCSD never gave the accusing student a copy of the accuser’s previous statements to UCSD. The panel chair also refused to ask 23 of the 32 questions the accused student submitted.

The hearing’s highlight came almost immediately. After a brief opening statement by Grant Davis-Denny, who represented the University of California system, Justice Huffman interrupted to express his concern with the basic unfairness of the UCSD system. The two other judges quickly chimed in their agreement. Then Huffman noted, “When I . . . finished reading all the briefs in this case, my comment was, ‘Where’s the kangaroo?’”


The judges repeatedly expressed specific concerns about the procedures UCSD used, and why any university interested in fairness would have employed them. After a bit of pushback, Justice Irion was able to extract from Davis-Denny that it was this public university’s responsibility to produce a fair hearing:


Justice Huffman reiterated the value of fairness:


And here’s Justice Huffman wondering why—in a case that solely came down to the credibility of the two students—UCSD wouldn’t have turned over the notes from interviews with the 14 witnesses that had led UCSD’s own investigator to conclude that regarding the first of her two allegations, the accuser was not sufficiently credible for the university to bring charges:


Justice Irion made a similar point about the university’s decision to withhold the identities and the notes from the witness interviews. She was flabbergasted when Davis-Denny argued that withholding this information was justified because there was “no evidence in the record” that this (obviously relevant) information was relevant:


Davis-Denny attempted to respond to this argument by claiming that granting the accused student’s request would require full-scale civil discovery (Justice Irion was incredulous)–and then suggesting that it was at least possible, if unlikely, UCSD’s investigator didn’t rely on the interview notes in preparing her report.


Justice Nares, meanwhile, was especially concerned by the unfairness of UCSD’s “indirect” cross-examination, in which the accused student has to produce written questions in advance, which the panel might (or, this case, mostly might not) ask:


And like his colleagues, he was concerned with UCSD’s withholding of the notes:


In strongly discouraging cross-examination of accusers, the Office for Civil Rights has implied—but never directly stated—that cross-examination (which the legal scholar John Henry Wigmore, described cross examination as the, “greatest legal engine ever invented for the discovery of truth”) is somehow harmful to the pursuit of truth in college sex tribunals. The UCSD attorney dropped any pretense, and made the argument openly:


Finally, UCSD (in a line of argument often heard in discussions about campus sexual assault claims) championed the idea that due process means the college doing the minimum legally possible. Davis-Denny’s implication that this minimum essentially removed any role for judicial oversight drew a sharp rebuke from Justice Irion:


The judges also had tough questions for the accused student’s lawyer, Andrew Chang—but the questions here dealt with specifics of the case, not the basic unfairness of the system.

The decision remains pending.