Are your college’s or university’s policies and procedures nimble enough to deal with a sexual assault that occurs in a study abroad program? Middlebury College found out the hard way that its policies and procedures were not sufficient.
In September of 2015 a United States District Court (District of Vermont) issued a preliminary injunction to stop the expulsion of a male student who allegedly sexually assaulted another student (who was not a Middlebury College student) during a study abroad program conducted by the School for International Training “SIT” (what is known in higher education parlance as a Third Party Provider “TPP”).
In November of 2014 the Plaintiff, a student at Middlebury College, was accused of sexual misconduct during the SIT program. SIT in accordance with its procedures investigated the matter, conducted a hearing, and found that the plaintiff was not responsible for a sexual misconduct offense.
Plaintiff returned to Middlebury in January 2015. The complainant, not satisfied with SIT’s decision, notified Middlebury that she intended to file a complaint with the Department of Education’s Office of Civil Rights. Although I do not know whether this was the triggering factor, in January 0f 2015 Middlebury decided to conduct its own de novo investigation of the complainant’s allegation. The investigation was grounded on whether the plaintiff represented a threat to the Middlebury community, even though its study abroad policies said that disciplinary matters occurring during a study abroad program would be subject to that program’s disciplinary procedures.
The investigation, that took 5 months to complete, was conducted by a lawyer hired by Middlebury College. Based upon the lawyer’s report, and without a hearing, in July of 2015 plaintiff was found to represent a threat to the campus community and a sanction of expulsion was issued. Plaintiff’s appeal was denied.
In August 2015 plaintiff filed suit against Middlebury and sought a preliminary injunction to stop the expulsion. In addition to alleging he was likely to succeed on the merits, plaintiff alleged that he would suffer irreparable harm as he had a job offer that was contingent on his graduation from Middlebury. The court issued the preliminary injunction under the usual standards for whether an injunction should issue.
The court found that plaintiff would suffer irreparable harm if the expulsion was allowed to proceed as money damages would not be an adequate remedy for plaintiff’s loss of his senior year in college, the delay in the completion of his degree, or the loss of the job he was offered. Uniquely, the court also found that as a component of irreparable harm that “[p]laintiff would have to explain, for the remainder of his professional life, why his education either ceased prior to completion or contains a gap.”
The court also found that there were serious questions of whether Middlebury violated its policies by conducting a second investigation, after the plaintiff was exonerated by his study abroad program following an investigation and hearing. The court grounded this finding on the basis that Middlebury’s policies did not authorize a second investigation after it had been investigated and decided by SIT in plaintiff’s favor. The court noted that Middlebury’s polices pertaining to its study abroad programs indicated that plaintiff would be subject to the policies and discipline of a host institution, in plaintiff’s case SIT.
I do question whether the court’s decision would have been different if the complainant had been a student at Middlebury. The court considered this factor and reasoned that because the complainant was not a Middlebury student, allowing plaintiff to continue attending Middlebury would not have a direct effect on the complainant. If she had been a student at Middlebury the court may have had a more difficult decision due to the fact that plaintiff’s continued attendance at Middlebury could have raised the specter of the court permitting the creation of a hostile educational environment.
It appears that due to Middlebury College’s precarious legal position it recently settled the case. This outcome was reported in a story in The Barre Montpelier Times Argus. In the article a Middlebury representative stated that the plaintiff would complete his education elsewhere, but would not comment further on the case. Although I do not have any knowledge of the particulars of the settlement, I can surmise that plaintiff is being allowed to satisfy his Middlebury degree requirements elsewhere and that any record of an adverse finding by Middlebury College would be expunged.
So what lesson is to be learned from this case? To go back to the question I asked in the first instance, colleges and universities may want to consider examining and revising their policies as necessary to ensure that there is no ambiguity that they can deploy their disciplinary procedures regardless of the finding of a disciplinary process used by a third party (host) study abroad program. This case illustratees that a college/university might be vulnerable for challenge by an aggrieved student if an institution’s policies are not crystal clear on this point.