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Judge comments on sexual assault adjudication process

By Abigail Gardener

Section: News

May 6, 2016

Judge Saylor both affirmed and denied elements of a motion to dismiss charges against Brandeis University, stemming from procedural misconduct in the adjudication of sexual assault charges. The March 31 ruling details the ways in which Brandeis’ previous policy hindered the due process rights of the accused.

The “John Doe” student suit against the university alleged that the policy for dealing with sexual misconduct, outlined in the 2013-14 student handbook, was unfair for the accused. Doe was accused of sexual misconduct by the student “J.C.” whom he dated for 21 months. Doe was found guilty of four out of 12 allegations of sexual misconduct and given a “Disciplinary Warning,” a permanent notation on his educational record.

Doe argued this constituted a breach of his contract with the university, which resulted in negligence and defamation. Judge Saylor was not ruling on the validity of the sexual misconduct nor was he ruling on Doe’s charges against Brandeis. In a motion to dismiss, the judge decides whether there is enough evidence that one could conceivably argue a claim at trial. Saylor evaluated whether one could argue the process Brandeis used with Doe was substantively and procedurally “unfair.”

Fairness is essentially determined by the judge’s own discretion. Brandeis is a private university and is not subject to the requirements of the Sixth Amendment. As such, Saylor based his decision on the “basic fairness” doctrine, which private institutions are required to provide, stating that universities must provide students with a “minimum level of fair play.” Doe argued that he did not receive this minimum level.

The case grapples with an evolving system of adjudication. Universities across the country have updated policies in response to the Office for Civil Rights of the Department of Education’s 2011 “Dear Colleague” letter, which encouraged universities to either change policies or face funding deficiencies. As a result of this push, new policies tend to err on the side of caution, enhancing the rights of the accuser while, in some cases, substantially impairing the rights of the accused.

When Doe entered Brandeis as a first-year, he signed a contract agreeing to abide by the 2011-12 student handbook. Using this handbook, claims of student misconduct were dealt with through the “Student Conduct Hearing Process.”

Under this process, any student charged with serious misconduct was given the right “to be informed of the charges against him in detail.” They also had a right to request a hearing before a Student Conduct Board. During the hearing, both the accused and the accuser had “the right to view and question all evidence and reports presented” and “to question all witnesses appearing.”

Brandeis updated its policies for the 2012-13 academic school year, replacing the “Student Conduct Hearing Process” with a “Special Examiner’s Process.” The university could then appoint a Special Examiner to investigate accusations of sexual assault and make recommendations to the Dean of Student Life. “The accused was given an opportunity to meet (separately) with the Special Examiner during the investigation and to submit his own evidence, but was provided little else in terms of procedural protection.”

Judge Saylor found the concept of a Special Examiner’s process to be concerning in terms of due process, noting “the Special Examiner was simultaneously the investigator, the prosecutor, and the judge who determined guilt.”

Judge Saylor denied Brandeis’ motion to dismiss the breach of contract charges on several grounds. He found that the university had failed to provide Doe with a copy of the Special Examiner’s Report, which he asked for to use in filing an appeal. Brandeis had not maintained the confidentiality of Doe’s educational record; they had also failed to uphold basic fairness.

Saylor dismissed Doe’s claim that many of the changes to the adjudication process constituted a breach of contract, because the university followed its policies as laid out. However, Saylor concluded it is possible to argue breach of contract because these policies violated “basic fairness.”

Saylor said Brandeis may have denied Doe basic fairness for 10 reasons, including that Doe was not informed of the charge against him.

“John repeatedly asked university officials to inform him of the factual bases for the charges against him. He had not been provided with anything more than J.C.’s vaguely worded accusation,” wrote Saylor. Doe was also not allowed to confront his accuser or witnesses brought against him and was not allowed to conduct cross examination. He also said Doe’s ability to call his own witness and present his own evidence was impaired because he did not know the charges against him.

Elements of the Special Examiner’s investigation were based on credibility, finding Doe’s lacking. The Judge noted that the examiner found Doe’s boyfriend’s alcohol usage to be a product of the misconduct, rather than a prior issue. “She substantially discounted the importance of the fact that the two students were in a romantic relationship for 21 months; that they appeared happy and comfortable together; and that J.C. had never reported any sexual misconduct to anyone during that period.”

Since the 2013-14 handbook, changes have been made to the adjudication process. Brandeis now requires a co-examiner to assist in fact finding. Copies of the Special Examiner’s Report must be provided to all parties throughout the case. A detailed description of the alleged misconduct is filed with the initial report. The director of the Department of Student Rights and Community Standards determines the degree of evidence prior to beginning the adjudication process.

The motion to dismiss was granted on: estoppel and reliance, defamation, invasion of privacy and intentional infliction of emotional distress. Judge Saylor denied the motion to dismiss the following charges against Brandeis: breach of contract, breach of the implied covenant of good faith and fair dealing, negligent infliction of emotional distress and negligent supervision. These charges may proceed to trial unless John Doe and the university reach a settlement agreement.

The law firm Goodwin Procter analysed the implications of this ruling in an article on their website.

“[M]ost of the procedural changes adopted by Brandeis, including the deprivation of a hearing and of an effective appeal, were not required by the Dear Colleague Letter. The Doe decision therefore suggests that courts—the final arbiters of due process—may be growing wary of universities’ overbroad interpretation of the Dear Colleague Letter,” the article reads

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