Three Minds, All Swearing To The Exact Same Words

If I haven’t mentioned it in a while, K.C. Johnson has done the heavy lifting of chronicling the intersection of crim law and academic insanity, starting with the Duke Lacrosse fiasco and continuing with the ongoing Title IX fiasco. Tracking cases isn’t always fun, but KC has been a critical resource, without which much of what’s gone wrong would blend into the abyss. And the least I can do is thank him for his efforts, which have enabled me to not only stay relatively abreast of developments, but see this bit of amazing wildness from the Johnson & Wales University case.

As Judge Mary McElroy noted in her ruling, this matter was unusual in that the student’s lawyer, James Erhard, made “his case for an unfair proceeding virtually entirely on facts put forth or acknowledged by JWU itself.” That material included affidavits justifying their guilty votes filed by the three members of the JWU disciplinary panel: Assistant Director of Clubs Elizabeth Zmarlicki, Assistant Director of Residential Communities Caitlin Codding; and Culinary Associate Instructor Tim Brown, whose job, he says, “enables him to shape the pastry chefs of tomorrow.” Each member of the panel appears to be an at-will employee, as opposed to students or tenured faculty who might have been less susceptible to feeling pressured by the school. Zmarlicki and Codding had never previously served on a Title IX tribunal.

The three individuals chosen for the panel that decided the fate of a male student may not necessarily reflect the competence level in every Title IX case, but it’s hardly unusual. Even if Tim Brown was tenured, would you want your son’s life decided by a guy whose skills enable him to shape the pasty chefs of tomorrow?

But they were the three panelists, and so submitted their individual affidavits explaining why these three diverse, independent, totally well-trained and unbiased individuals decided to condemn the student to Title IX purgatory.

According to Zmarlicki, her training led her to approach the case “without any predisposition or bias,” allowing her to reach a decision with “an open mind.” Codding said that she too approached the case “without any predisposition or bias,” allowing her to reach a decision with “an open mind.” What about Brown? He affirmed that he approached the case “without any predisposition or bias,” allowing him to reach a decision with “an open mind.”

Oddly similar.

Zmarlicki testified that the panel asked “probative” questions of both John and Mary, but she didn’t say what any of those questions were. According to Codding, the panel asked “probative” questions of each student, but she, too, couldn’t identify any of those questions. And Brown? He recalled the panel asking “probative” questions of John and Mary—questions that his affidavit didn’t detail.

Even odder.

Zmarlicki affirmed that despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” she made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” Codding, despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” And Brown? Despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” he made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.”

Really?

Zmarlicki claimed that the panel engaged in a “lengthy” deliberation (but couldn’t recall the “precise duration” of their discussions). Codding also deemed the deliberations “lengthy” but couldn’t recall the “precise duration” of their discussions. And Brown? The panel deliberated for a “lengthy” period of time—but he couldn’t remember the “precise duration” of their discussions.

Oh, come on. As KC notes, had this happened on students’ exams, they would be brought up on plagiarism charges. Couldn’t the lawyers for the J&W even be bothered to come up with synonyms? But even assuming that the fault here lay not with the individuals, who may not have been aware that the lawyers used the exact same words in each affidavit, so as to make the three panelists look like deceitful puppets, what of the underlying case?

Beyond the absurdity of three people affirming their fairness by using the exact same words, over and over again, to describe what were purportedly their personal recollections, the absence of the complaining witness, B.K., from the affidavits was striking. All three panelists said they read the case file. So they knew that Mary’s new boyfriend filed the original complaint and was a key witness in the case. Yet none expressed concerns that they never heard from him. Nor did they seem worried that they hadn’t been able to hear from John’s roommates, whose versions of events backed John, not Mary. None of the affidavits explain why the panel members didn’t press JWU officials to ensure they heard from all relevant witnesses despite each of them claiming they operated with a “fair mind.”

While it’s easy to call these campus sex tribunals names that insult marsupials, they fail to pass scrutiny substantively case after case. Glossing over the conclusions with the sort of words of putative fairness as reflected in the triple threat of affidavits, while ignoring the flagrantly improper motives for the complaint is not merely normal for these cases, but vehemently defended by colleges as reflecting their support for the “survivors,” who deserve to be believed when the witnesses that can prove the falsity of the accusations aren’t allowed to give testimony.

Some might think the attacks on Title IX sex policing hyperbolic or, worse, dismissive of the perspective of women in their feelings about sex and rape. After all, the three members of the J&W sex tribunal all swore they went into the hearing with a “fair mind,” and what cause does anyone have to doubt their sworn words, even if the words of all three were exactly the same?

7 thoughts on “Three Minds, All Swearing To The Exact Same Words

  1. L. Phillips

    I’m sure the remainder of your observations were lyrical and mercilessly on point, but I’m still stuck on “Assistant Director of Clubs” and “Assistant Director of Residential Communities”. WTFO?!!

    Have grandkids coming up and we plan on assisting with their college tuition. Also plan on determining if the university of their choice has an AD of Clubs or Residential Communities – or a Director of either for that matter. If it does the kids and our money will go elsewhere.

    Reply
    1. Hunting Guy

      Humm,Assistant Director of Clubs.

      That actually sounds like a fun job. Do you write the regulations for size, weight, composition, etc.?

      Do you test them and if so, on what?

      Oh, so many possibilities.

      Reply
  2. Sacho

    Looks like summary judgement was granted for the Title IX count, as usual. We discuss these issues collectively under that moniker, but it seems so far, outside of McKinnon’s wishful thinking, they’re almost completely unrelated. Universities claimed they were implementing policies in response to the letter, but the policies are still there now that it has been rescinded.

    In the end we have alleged code of conduct breaches and students filing complaints about railroaded investigations. JWU’s code contains a plethora of prohibited activities – harassment, assault, theft, taking drugs & alcohol, and so on – how is it that the “Title IX” investigations are seemingly the only ones botched hard enough to appeart in court? Is there a “Drugs & Alcohol” coordinator like the “Title IX” one? What does Title IX have to do with any of this?

    Reply
  3. Pingback: ‘Mindless automatons’: Title IX adjudicators separately used identical language to defend guilty finding | The College Fix

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