The United States District Court for the District of Massachusetts issued an 89 page decision that took aim not only at private higher educational institutions’ use of the increasingly popular investigatory model for processing cases of sexual assault, but the court also called into question aspects of the sexual harassment/assault guidances that have been issued by the U.S. Department of Education’s Office for Civil Rights.
In this case a Brandeis University student, who had been involved in a nearly two year relationship with another student, was found to have been responsible for sexual misconduct. This finding was made by a Special Examiner who conducted the investigation, determined the facts of the matter, and made the decision in the case in the absence of the accused and the accusing students being afforded the opportunity to participate in a disciplinary hearing. This sort of process, which is called an investigatory model, has gained popularity on college campuses for the handling of sexual misconduct allegations in the wake of the recent and frequent pronouncements by the U.S. Department for Education’s Office for Civil Rights about the need for colleges and universities to promptly and effectively address instances of sexual misconduct.
Let’s be blunt and to the point here. This court in this case was deeply skeptical and critical of the fundamental fairness of these investigatory models. The court openly questioned whether they were adopted in an effort to make it easier to find someone responsible for sexual misconduct because of the pressure being exerted by the Office for Civil Rights. On pages 10-12 of the court’s opinion, the court set the table for its finding that these investigatory models for handling student discipline may deny students the “basic fairness” to which they are entitled. The court was unsparing in its criticism, most pointedly stating that:
When considering the issues presented in this case, it is impossible to ignore entirely the full context in which they arose. In recent years, universities across the United States have adopted procedural and substantive policies intended to make it easier for victims of sexual assault to make and prove their claims and for the schools to adopt punitive measures in response. That process has been substantially spurred by the Office for Civil Rights of the Department of Education [by the issuance of its Dear Colleague Letters] demanding that universities do so or face a loss of federal funding. The goal of reducing sexual assault, and providing appropriate discipline for offenders, is certainly laudable. Whether the elimination of basic procedural protections–and the substantially increased risk that innocent students will be punished–is a fair price to achieve that goal is another question altogether.
[After discussing that other higher education institutional have been adopting similar models, the court went on to note]
Like Harvard, Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts. If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provide a fair opportunity to defend himself and an impartial arbiter to make the decision.
Upon the conclusion of its blistering treatment of the fairness of Brandeis’ sexual misconduct process, the court concluded that the complainant set out a plausible claim that Brandeis denied him the “basic fairness” to which he was entitled and declined to dismiss the action brought by the respondent-plaintiff. The court went into further detail later in the decision (pages 60-72) about how various elements of Brandeis’ investigatory process contributed to the court’s determination that the respondent-plaintiff may have been denied the basic fairness to which he was entitled. The procedural defects that were concerning to the court were the following.
- No Right to Notice of Charges. The complaining student who made the allegations was not required to provide a full account or thorough statement of his allegations, thus leaving the responding student to defend himself against vague and open ended charges that he had numerous inappropriate non-consensual sexual interactions with the complainant over nearly a two year period.
- No Right to Counsel. The responding student did not have a right to counsel, in connection with the investigatory process, who could either participate actively or provide passive advice.
- No Right to Confront Accuser. Brandeis did not permit the responding student the right to engage in cross examination of his accuser either directly or through his counsel. In footnote 35 the court takes a direct swipe at OCR’s April 2011 DCL whereby OCR strongly discouraged allowing an alleged perpetrator to question an alleged victim directly as it may be traumatic or intimidating, and thereby possibly escalate or perpetuate a hostile environment. The court takes direct aim at OCR’s position by stating: “[w]hile protecting victims of sexual assault from unnecessary harassment is a laudable goal, the elimination of such a basis protection for the rights of the accused raises profound concerns … [and] the entire investigation turned on the credibility of the accuser and the accused … the lack of an opportunity for cross examination may have had a very substantial effect on the fairness of the proceeding.”
- No Right to Cross-Examine Witnesses. The court also found fault that the responding student was not provided the opportunity to examine other witnesses who were relied upon by the Special Examiner.
- No Right to Examine Evidence or Witness Statements. Brandeis did not provide the respondent the right to examine, and refused to provide, any corroborating/contemporaneous evidence (such as emails texts, emails, witnesses statements, or notes of witness interviews).
- Impairment of Right to Call Witnesses and Present Evidence. The court also severely criticized Brandeis for not having a hearing in sexual misconduct cases that would have allowed the respondent-plaintiff to present his own evidence (the court noted that in all other student disciplinary matters at Brandeis an accused student has the right to present witnesses on their behalf).
- No Access to Special Examiner’s Report. The court found fault that the respondent was not provided with a copy of the Special Examiner’s report until all phases of the process had been completed, including the appeal phase. Yet the faculty and administrators who were a part of the sanctions and appeal process had access to the report, leaving the respondent to defend himself without access to the document through which his guilt was determined. The court opined that this was contrary to the basic principles of justice and fair play (see footnote 38).
- No Separation of Investigatory, Prosecution and Adjudication Functions. The court criticized the Special Examiner process because a single person had the powers of an investigator, prosecutor, judge and jury. The court discussed the dangers of combining these powers in one person, and how that danger can be mitigated if there is a review by a neutral party, but that right of a neutral review was not effectively provided in Brandeis’ process.
- No Right to Effective Appeal. The court found that Brandeis’ appeal standards were lacking because it did not provide as a basis for an appeal that the Special Examiner’s decision was not supported by the evidence or that it was otherwise unfair, unwise, or simply wrong.
- Burden of Proof. Lastly the court noted that it was troubled that Brandeis uses a “preponderance of the evidence” standard in sexual misconduct cases–making it easier to prove–whereas in nearly all other disciplinary cases the more demanding standard “clear and convincing” standard of proof is used. The court brusquely stated: “[t]he lower standard may thus been seen, in context, as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.” The court makes this critique despite its observation that the lower standard has been mandated by the United States Department of Education’s Office for Civil Rights.
This is a lengthy decision that covers a lot of ground. Yet I have focused on the “procedural fairness” findings by the court as this is the most significant portion of the court’s decision. Although the court stated that its decision is not meant to state what the bare minimum of procedural protections are required in a private institution’s disciplinary system, the court in its conclusion on pages 71-72 edges awfully close to indicating that in cases that have significantly serious charges–such as those involving sexual assault charges–that the lack of these procedural elements can result in a court’s finding that a student was denied their right to a fundamentally fair process.
This decision presents a significant challenge for counsel for private institutions and whether, based on this decision (particularly in Massachusetts), they should advise their institutions to review and revise their campus discipline systems to address the procedural concerns that were pressed by the court.
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