Monday, April 04, 2016

Title IX Aside, Disciplined Students Prevail in Two Recent Decisions

In two recent decisions, students who had been disciplined for sexual assault prevailed in some way (one outright, one by defeating the university's motion to dismiss) in their claims challenging the disciplinary process used by the university.  As I describe each of them in some detail, you will notice that neither decision involves a Title IX claim. But both belong on the Title IX Blog, for two reasons.  First, the fact that plaintiffs prevailed on claims other than Title IX (i.e., a claim that the school's procedures or procedural violations resulted from bias against men) supports my suspicion that Title IX claims are for the most part misplaced in disciplined student cases -- there are better source of law to address the fairness of university's procedures that don't add the unnecessary distraction of a reverse-discrimination argument. Second, with one caveat, the examples of procedures that the judges in these cases found were or could possibly be deemed unfair are not procedures required by Title IX as spelled out in the Department of Education's Dear Colleague Letter (the caveat being the judge's discussion of the preponderance of evidence standard in the Brandeis case, discussed below).  Bottom line is that it is possible for universities to comply with Title IX and provide a fair process to students disciplined for sexual assault, and nothing in these recent decisions changes that.

Doe v. George Mason University

In this case, a federal court ruled in favor of the plaintiff's motion for summary judgment, a rare outcome in which the plaintiff wins without trial. The plaintiff is a former student who was expelled for sexual assault of a female classmate, his ex-girlfriend, with whom he had had a BDSM relationship. She reported to university officials that he had been sexually abusive and a hearing was held.  The panel initially found him not responsible, based on his defense that both parties had agreed to rough sex and the designation of a safe word to withdraw consent. On appeal, however, an assistant dean of students reversed the panel's determination and the plaintiff was expelled, and the plaintiff sued, eventually moving for the fore-mentioned summary judgment.  

The court agreed that the uncontroverted facts established a violation of his constitutional right to due process.  The Assistant Dean who served as the decisionmaker on appeal did not explain the factual basis for reversing the panel, but during the discovery phase of litigation, the plaintiff discovered that the conduct he was being punished for was something outside the scope of the notice of the charges against him.  Notice of the charges is a fundamental component of due process, since only a person who is on notice of the charges can adequately prepare to defend himself at a hearing.   Another due process violation occurred during the appeal process when the Assistant Dean held separate, closed meetings with the individual members of the disciplinary panel, the complainant, and the respondent, without informing the respondent about the content of those meetings that could have provided him an opportunity to respond. Moreover, evidence in the record that the Assistant Dean had "made up his mind so definitively that nothing plaintiff might have said [in the appeal process] could have altered his decision" is a rare example of decisionmaker bias severe enough to warrant a due process violation on its own.  

Having prevailed on the merits of his due process claim, the court agreed that he should be reinstated at least for now.  The court emphasized that due process is not focused on the result of a hearing, but the means used to reach it.  It is possible, the court acknowledged, that the plaintiff may in fact deserve to be expelled. The only issue this opinion decides is that the process the university engaged in to reach that decision was constitutionally flawed.  Yet, the court refrained from immediately ordering that the university correct its procedural errors by holding a new hearing.  Instead, the court decided to invite the parties to brief the matter of remedy prior to a final decision on that issue.

Doe v. Brandeis University

In the second case, a federal judge in Massachusetts denied Brandeis University's motion to dismiss breach of contract claims filed by a student disciplined for sexual assault. Unlike George Mason University discussed above, Brandeis is a private university and therefore is not subject to the Constitution's due process clause. However, the judge determined that private universities implicitly agree as a matter of contract to treat students with "basic fairness," including procedural fairness similar to due process.

Like in the case described above, the court focused on the university's failure to provide the disciplined student with sufficient notice of the charges against him, which, like the case above, arose out of conduct over the course of a long-term relationship between the plaintiff and his ex-boyfriend. Given the span of time in question, the university's failure to provide notice made it particularly difficult for the plaintiff to surmise and thus defend against the precise misconduct that was under scrutiny.  Additionally, Brandeis allegedly denied the plaintiff the right to counsel, prohibited him from having any opportunity -- not even through an intermediary -- to cross-examine the complainant, and similarly prohibited his access to the investigator's report as well as the statements of witnesses and other evidence against him, which similarly impaired his ability to defend himself. The judge also expressed concern that Brandeis's process permitted the same official who investigated the complainant against the plaintiff also served as "prosecutor, judge, and jury" while simultaneously restricting the plaintiff's right to appeal that decision.  And he additionally noted that the university's use of preponderance of evidence standard was "particularly troublesome in light of the elimination of other basic rights of the accused."  This part of the decision is notable because the preponderance standard is something that the Department of Education has required as a matter of Title IX compliance.  However, the judge does not isolate the preponderance standard as an independent grounds for concluding that Brandeis's process may lack basic fairness, so I don't read this decision as prohibiting universities from using it.

Additionally, the judge concluded that "basic fairness" extends to the substance of decision as well as the procedure that it was reached.  In this case, the university is alleged to have applied "novel notions of consent, sexual harassment, and physical harm" that are "at odds with traditional and legal and cultural norms and definitions."  The judge agreed that this allegation could also constitute a breach of contractual right to basic fairness.  For example, it does not appear that the investigator scrutinized the charges of sexual misconduct that the complainant alleged occurred prior to the onset of their long-term relationship.  While the judge noted that it is possible for someone to enter into a long-term relationship with someone who has abused them, the investigator apparently did not even consider other possibilities, such as that the complainant's memory of those events were clouded by his feelings for the plaintiff arising from the breakup, or by his subsequent alcohol abuse, or by the "suggestive effect" of sexual assault training he later received.

The judge also criticized the investigator for not taking into account that some of the sexual conduct that the plaintiff was punished for occurred in the context of a long-term relationship, which affects the way partners convey consent. For example, one of the grounds for sexual misconduct was the plaintiff having kissed the complainant in his sleep.  The judge criticized the investigator for automatically concluding that the plaintiff had not obtained consent on the grounds that sleep is incapacitation, without taking into account the reality that couples in long-term relationships tend to rely more on implicit than explicit means of establishing consent.

Having prevailed over the university's motion to dismiss, the plaintiff will now be able to continue the litigation to its next phase, discovery, after which it is possible that the case could be resolved by summary judgment, or alternatively, proceed to trial.  Of course, settlement is always a possibility in any case, and defendants are sometimes more willing to settle after losing a motion to dismiss.

Doe v. Rectors and Visitors of George Mason University, (E.D. Va. Feb 25, 2016).