Williams has now filed its motion to dismiss (which you can read here) in the due process lawsuit about which I previously wrote. In the filing, Williams aggressively defends its finding of guilt against the accused student, and includes the full report prepared by the college’s hired investigator, Allyson Kurker. (In his lawsuit, the student had partially redacted the report.) But, curiously, the college allows to stand unchallenged the timeline of the case, which is the strongest argument in favor of the accused student.
In the realm of campus due process cases, events at Williams are unusual, in multiple respects. In contrast to the norm in these cases, the two parties had a lengthy (and dysfunctional, to put it mildly) relationship. At the critical points in the case, the accuser was an employee of the school, though their relationship began when both were Williams undergraduates. Finally, unlike many due process lawsuits, this was a he-said/she-said case in which the sexual assault allegation was not disprovable (unlike, for instance, the case at Amherst), and in which the accuser’s excuse for waiting more than a year to report was, at least, not implausible (unlike, say, the Jack Montague case at Yale).
Given its importance, which the Williams filing has now basically confirmed, it’s worth repeating the timeline of key events in the case. While these two people seem to have been arguing almost from the start of their relationship, they only brought their problems to the attention of the college beginning in late 2015:
- Dec. 5, 2015: The accused student attended a party, at which he danced with another woman. The Williams employee confronted him, slapped him (after, she said, he swore at her), and took his phone.
- Dec. 6, 2015 (early morning hours): The employee emailed then-Williams dean Sarah Bolton, claiming that her wayward boyfriend had committed academic misconduct in three classes, by allowing her to write his papers for him. Shortly thereafter, she posted a message on the accused student’s Facebook page, informing him, “There isn’t anything in this world you can do to heal the wound you’ve made in me tonight.”
- Dec. 6, 2015 (mid-morning): The employee e-mailed the accused student, telling him, “Come get your phone. I need to talk to you . . . I did something bad . . . I’m sorry.”
Williams adjudicated this claim, but the accused student was found not guilty.
So, the undisputed record is: after a fight at a party (at which a college employee—perhaps verbally provoked, perhaps not—slapped a Williams student), the employee filed a claim of misconduct against the student. The college would deem that claim to be unsubstantiated.
- March 8-12, 2016: After the strain of the academic misconduct finally ended their relationship, the employee called the accused student 48 times and texted him nine times, as reflected in his phone records.
- March 13, 2016: The accused student’s lawyer sent a cease-and-desist letter to the employee, cc’ing it to Dean Bolton.
- March 14, 2016: The accused student’s lawyer met with Dean Bolton and Williams’ college counsel to express concerns about a Williams employee harassing her client.
- April 7, 2016: Williams issued a mutual no-contact order between the student and the employee.
- April 13, 2016: The accused student filed a formal complaint with Williams against its employee.
So, the undisputed record is: despite having been informed that an employee was allegedly harassing one of its students on March 13-14, and despite receiving a formal complaint about the matter on April 13, Williams did not open an immediate investigation.
- April 27, 2016: Dean Bolton informed the employee that the student had been cleared of the plagiarism allegations. (Normally, FERPA would prevent the sharing of such information, but Williams claims its actions were permissible, because the employee was the accuser in the plagiarism case.) Bolton told the employee (two weeks after the college had received a formal Title IX complaint about the employee’s behavior), “For now, the most important things are to continue to get support, and to ensure that you are safe.”
- May 10, 2016: The student was informed that the employee had filed a complaint against him, alleging that he had “displayed abusive behavior towards her during the past two years.” Williams hired the investigator made (in)famous by the Amherst case, Allyson Kurker, to investigate.
- Late spring 2016: In her initial interview with Kurker, the employee escalated her allegations, claiming that on one night in September 2014 (around 18 months before the end of their relationship), she hadn’t consented to have sex with the student. (This claim does not appear to have been part of the initial complaint she filed in May 2016.) The employee (who was at the time a Williams student) said she was drunk at the time. There were no witnesses to the incident, nor (it seems) did any contemporaneous electronic evidence exist. Two friends of the employee testified that she had told them about the incident, although one admitted that this disclosure came only in July 2016, after the employee first made the allegation to Kurker.
Williams had two choices in this (ugly) case. It could have treated these three sets of allegations as connected. In so doing, it likely would have concluded that a college employee who made an unsubstantiated misconduct allegation against a student (after a fight at a party), and who was then charged with harassing the same student, subsequently filed a retaliatory complaint, and any evaluation of the employee’s credibility needed to be viewed through the prism of the first two allegations.
Williams, of course, didn’t choose that approach. Instead, it effectively evaluated the sexual assault claim as if the accuser’s credibility hadn’t already (fairly or not) been eviscerated by her unsubstantiated earlier allegation. It found the student guilty of sexual assault, and expelled him. In its motion to dismiss, the college claims it had no choice but to follow this course, because federal law requires it to investigate all sexual assault complaints.
In its filing, the college cites to Judge Saylor’s important Brandeis decision—but a college evaluating a sexual assault complaint devoid of the context of the relationship between the two parties is one of the central faults to which Saylor attributed to Brandeis. Following the Brandeis precedent almost certainly would end in a Williams defeat.
Williams’ brief makes three basic arguments: (1) the college’s process was eminently fair; (2) this issue was a private one between two people, irrelevant to either the accuser’s status as a college employee or her gender; (3) the accused student’s disciplinary past implicitly provides support for the college’s handling of this case.
(1) Williams asserts that its “handling of student discipline is entitled to considerable deference,” and it also suggests that the accused student made no meaningful allegations of wrongdoing against the three disciplinary panelists who ultimately found him guilty. The college, the Williams brief asserts, followed its procedures, and that’s all it needed to do. Moreover, Williams argues, even if Dean Bolton were biased against the accused student (the college denies this point, but the dean’s sympathetic email to an employee against whom a Title IX complaint had been filed is tough to explain), she no longer works for Williams, and left the college before the final decision to expel occurred.
The college’s suggestion that its handling of the case was fundamentally fair depends on the court accepting its decision not to treat the May 2016 complaint as the culminating event in a pattern of allegations or odd behavior by the college employee, and on accepting its argument that a dean allegedly prejudicing the process at the start isn’t relevant as long as the dean wasn’t the final decisionmaker.
Given the wide range of court decisions on this issue—a California appeals court, after all, has upheld a procedure that one of its members compared to a kangaroo court—perhaps this argument will be enough for Williams to prevail.
(2) The Williams brief distances itself from the accuser in one important way. The college can’t be held liable for its employee’s alleged misconduct toward one of its students, it argues, because her “alleged conduct was not committed within the scope of her employment”; the “conduct all occurred in the context of the parties’ personal relationship, having nothing to do with her employment in the Alumni Office.”
It’s true that unlike, say, Alexander v. Yale (which involved a professor allegedly harassing a female student in his class), the employee didn’t encounter the accused student on her job. On the other hand, the Williams argument seems to absolve the college of lots of responsibility to investigate employee misconduct by claiming it’s “personal” and unrelated to “employment.”
The college brief goes to great lengths to deny the student’s gender discrimination claim, arguing (citing to the relevant case law on this issue) that he can’t show different, and more favorable, treatment by a similarly situated female accused student. (Given that 99 percent of accused students in campus sexual assault cases are male, and given the odd general circumstances of the case, there obviously is no identically situated female accused student.) But, back in the real world, imagine if Williams employed a male in the alumni affairs office who: (1) carried on a romantic relationship with a female student, despite discouragement from college guidelines; (2) physically confronted the female student at a party; (3) right after the fight, made an early-morning-hours academic misconduct claim about the female student that the college eventually dismissed; and (4) had an episode of possibly stalker-ish behavior toward the same female student.
Does anyone believe that if this hypothetical male employee then filed a sexual assault complaint against the female student that Williams would have taken the complaint seriously?
(3) The Williams brief points to the accused student’s previous disciplinary record (a one-year suspension for unspecified sexual misconduct—not involving the employee—and a finding of academic misconduct for which he received an F). This record is obviously relevant to the decision to expel, which was justified once the guilty finding had come in.
Williams leaves the implication that because the student was found (through Williams’ procedures, of course) to have committed some type of sexual misconduct in the past, he should be deemed less credible in this case. But that argument undermines the college’s case regarding the employee’s credibility. Having already been found guilty of cheating, presumably it was more likely that the accused student, per the Williams’ brief’s insinuation, would be found guilty a second time in the academic misconduct case. That he wasn’t would seem to call into question the employee’s credibility, since she made the allegation.
In another filing, Williams faults the student’s lawyer for an inflammatory e-mail she sent to the employee, which discussed the possibility of a lawsuit and the ways in which a lawsuit could show “how dishonest, narcissistic and emotionally unstable” the employee was. This issue has attracted the attention of Judge Ponsor, who (on his own initiative) has called for it to be discussed at the next hearing.
Williams’ supplemental brief also contains the curious claim that it uses “the preponderance of evidence pursuant to federal law.” Of course, federal law requires no such thing, as even Obama administration officials have conceded.
Based on the filings to date, the parties in this case are not particularly sympathetic. But even unsympathetic students are supposed to receive a fair process.
A hearing on the case (though not on Williams’ motion to dismiss) is scheduled for January 11. [Update, Jan. 5: The judge postponed the 1-11 hearing, and has now scheduled a hearing, to cover all matters, for Thursday, March 2.]