Triple Silver Disaster, Andy Warhol (at the Wadsworth Atheneum, Hartford, CT)

Update (March 13, 2019): In the thread of posts, below, we have made our views of the case of Shank v. Carleton College clear. Some might even say we’ve been “shrill” or that we’re inappropriately “taking sides.” (We cop to “taking sides” but reject that it is inappropriate or unwarranted.)

Linked here is Ms. Shank’s memorandum of law in opposition to Carleton’s motion for summary judgment.

In our view, this lawsuit is an injustice and a disaster. The suggestion that Carleton College intentionally inflicted emotional distress on Ms. Shank or that its actions (or omissions) could result in punitive damages is preposterous and irresponsible over-reaching. (As pointed out in the title of this post, Ms. Shank sought a one-on-one meeting with an alleged rapist. A Carleton employee allegedly first introduced the idea, according to Ms. Shank. Ms. Shank seeks to impose punitive damages on the college for acquiescing to what, no one contests, was her own request.)

Maybe there is a claim that the college’s acts or omissions in dealing with Ms. Shank fell short or triggered liability for negligence or federal law governing educational institutions (though we think not). (Few will deny that colleges are aware of under-age drinking, that they do not go to great lengths to stop it, and that drinking is a huge causal factor in many sexual assaults. On the other hand, can we not agree that college students bear some responsibility (almost all of the responsibility) for their own under-age drinking? Or that the correlation between under-age drinking and sexual assault is quite far from 1:1?)

To demonize the school for “deliberate indifference” or “intentional infliction of emotional distress” under the undisputed facts of this litigation, however, is, in our view, beyond the pale.

Update (February 18, 2019) (under the headline: Carleton College is Against the Ropes But Way too Soon to Call the Fight): We will be interested in the response to Carleton College’s motion for summary judgment in the case brought against the college by a former Carleton student, Ms. Elizabeth Shank. In the posts below, we discuss Ms. Shank’s claims that arise from two different alleged sexual assaults she allegedly experienced at Carleton at the hands of two different fellow students (one during her very first week at the school, the other a year-and-a-half later).

As we point out in the previous post, below, colleges are placed in an unwinnable situation where they have to balance the interests of accusers, the accused, fellow students, parents, faculty, alumni, the public (including law enforcement) (and undoubtedly additional stakeholders clever readers can list). They want, of course, to placate every stakeholder. This might be inherently impossible in many cases, most cases, or, maybe even all cases.

Most importantly, colleges won’t know exactly what happened (on 9/12/11 and the Spring of 2013 in the case of Ms. Shank). The only certainties are (1)  they will never know; and (2) what happened will be sharply contested.

We have taken the position consistently in this case that Ms. Shank’s claim against Carleton College for “intentional emotional distress” is preposterous and that her claim for punitive damages against the college is as well. Nevertheless, the U.S. District Court (D. Minn.), to date, has refused to throw out either of these claims.

Will Carleton face the triple silver disaster: 1) the threat of a trial, on (2) a claim of intentional infliction of emotional distress, and (3) the threat of punitive damages? If so, we hope that Carleton will take it to and through trial and then, if unsuccessful, will appeal. There are limits as to what a college can do. In our view, the implications of the claims in this case go far beyond that.

Update (October 19, 2018) (under the headline: An Editorial re: A College, Alleged Rapes, and the Propriety of Punitive Damages against the School):  Minnesota Litigator seems to be on a bit of a dry spell on correct predictions and was way off as to the plaintiff’s motion to amend her complaint to add a claim for punitive damages in the case described below against Carleton College. In our defense, the Court (where there was contrary precedent) applied a far more permissive legal standard to the motion than we had anticipated. 

We will watch with interest whether Carleton objects to U.S. Mag. Judge Hildy Bowbeer’s ruling and seeks reversal by U.S. District Court Judge Eric C. Tostrud (D. Minn.).

Update (September 17, 2018 (later that same day)): As if timed to go with our post below, St. Olaf College has been sued today by a student accused of improper sexual conduct (rape)

Update (September 17, 2018): For several years now, we have recognized the incredibly difficult position that colleges and universities find themselves in with the #MeToo era.

Consider the gale force winds butteting these institutions during their high wire acts, balancing between truth, falsity, credibility, and provability, the interests, feelings, and futures of accusers and accused, victims and perpetrators, guilty and innocent, not to speak of the institutions’ many and varied communities and stakeholders.

No net.

The case described below involves Carleton College, my alma mater, and I will readily cop to bias. I have always held the college in high regard and I still do. This one’s close to home and, therefore, it should come as no surprise that I take the college’s side as to the motion for punitive damages against the school, recently brought against the school. But still.

Punitive damages are extremely difficult to get under Minnesota law. (We discuss this here and here.)

Honestly, to suggest that the alleged acts and omissions of Carleton rise to the level of warranting punitive damages seems to me to be outrageous.

Here is Carleton’s response to plaintiff’s motion of punitive damages. In reading both memoranda and, in particular, pages 4-5 in the plaintiff’s memo listing the plaintiff’s “indictable offenses” (that is, the factual bases alleged to warrant punitive damages), the almost impossible demands put on colleges in the cross-fire cries out.

This is not intended to trivialize the important issues raised nor the vital duties and responsibilities that all higher educational institutions owe to their students and the broader community. They must do all they reasonably can to provide a safe environment to all. But the plaintiff’s claims against Carleton don’t meet the criteria to establish a “prima facie” case of “clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.”

Update (January 10, 2017)(under the headline: Did My Alma Mater Intentionally Inflict Emotional Distress on a Student?): I criticized plaintiff in the case described below for including a claim for intentional infliction of emotional distress (“IIED”) as “going too far” but, as shown on pages 20-23 of the linked Order from U.S. District Judge Patrick J. Schiltz (D. Minn.), the claim survived Defendant Carleton College’s motion to dismiss (barely).

Judge Schiltz assumed for purposes of deciding the motion that Carleton College “coerced” the Plaintiff to confront her alleged rapist “one on one,” and Judge Schiltz held that such conduct, if proved, could be found “extreme and outrageous,” “intentional or reckless,” and found to have caused the Plaintiff “severe emotional distress.”

I get that. I will go farther. I will agree with that. So I agree that plaintiff’s IIED claim should have survived a motion to dismiss. On the other hand, I find it unfathomable that Carleton College would “force” or “coerce” a student to one-on-one meeting with her accused rapist. The definition of “coerce” is “to persuade an unwilling person to do something by using force or threats.” In my view, “force” or “coerce” cannot be synonyms for “encourage,” “urge,” or “persuade,” — all of which might have been unreasonable approaches (if this is what happened) but not “atrocious” IIED, imho.

On the other hand, the result of our recent national election is unfathomable to me. But it happened.

Original post (May 16, 2016) (under the headline: Shank v. Carleton College: Drafting a Complaint, Threading a Needle, Striking a Balance): I recently high-lighted a multi-million dollar contract case where the Plaintiff’s complaint was a mere six pages. In many posts, over the years, I have noted excessively long complaints, which are annoying to courts and ineffective as advocacy (here is an example; here is another).

The is no magic answer. There is no “optimal” complaint length. Different cases call for different strategies. Does Elizabeth Shank help or hurt her case against Carleton College for its response to her alleged rapes with a recently filed 49-page complaint? Is the complaint drafted as a public document for the general public or for the court? (The case has been assigned to U.S. District Court Judge Patrick J. Schiltz (D. Minn.) who is not a fan of sprawling complaints.)

As for the merits of Ms. Shank’s lawsuit, time will tell. As a Carleton grad and Carleton dad, I suppose I won’t be on the jury. Admitting my bias, I think that Plaintiff does herself no favors by adding a count for intentional infliction of emotional distress against the school (see p. 43). Suggesting that the college intentionally caused her “physical injury and severe mental and emotional distress” seems to me to go too far.

Whether it is Carleton or any other college, such allegations are unfortunately predictable and colleges are stuck between risks of lawsuits by alleged perpetrators and alleged victims (here is a complaint against Macalester College by an accused perpetrator).

 

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