Triple Silver Disaster, Andy Warhol (at the Wadsworth Atheneum, Hartford, CT)
Update (August 23, 2019): After three years of litigation, U.S. District Court Judge Eric C. Tostrud (D. Minn.) ruled this week that Plaintiff Elizabeth Shank has no evidence of “deliberate indifference” by Carleton College in dealing with her alleged two rapes and, on that basis, awarded Carleton College summary judgment.
The case is sad, to be sure, but this result, in our view is correct (if belated). If there is an appeal, it will fail, we predict.
Perhaps the most important point of this terrible and extremely expensive ordeal (for both Plaintiff and the Defendant) is that a relatively large institution like Carleton College can battle (and win) against such claims. The huge majority of individuals in our society cannot. We have a fine civil justice system (so long as you can afford it). For most of us, you lose even if you win; the only question is how devastating the loss will be.
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.