Doe v. Brandeis: In a Unique Decision, Federal Judge Found Lack of “Basic Fairness” in College Sexual Misconduct Proceedings

Six months ago a judge in the federal district court in Massachusetts issued what many people who litigate cases surrounding college sexual assault adjudications consider the most comprehensive decision on the topic. In Doe v. Brandeis University, Judge Dennis Saylor denied Brandeis University’s motion to dismiss the complaint by its former student as to claims that Brandeis breached its contractual duties towards him, handled his case with negligence, and used a fundamentally unfair process to evaluate the accusation against him.

The case arose out of a January 2014 sexual assault complaint against John Doe by his former boyfriend. Under Brandeis’ policy, the complaint was investigated by a Special Examiner who also decided whether John Doe was responsible for sexual assault. (This “single investigator” model, promoted by the White House, has gained significant traction with schools nationwide in the last three years, despite significant concerns about its fairness).

Despite noting that “the Handbook is no model of clarity,” the judge nonetheless found for Brandeis on most of the contract claims based on Doe’s allegations that Brandeis failed to follow its Handbook. The judge similarly rejected most of Doe’s tort claims, with the exception of a claim for negligent supervision based on Brandeis assigning an administrator with no familiarity with the process as the final decision maker in the case. The judge was skeptical that Doe could prevail on the claim, but allowed it to survive the motion to dismiss.

The judge, however, was not so hesitant when it came to addressing Doe’s claims that the process Brandeis used violated basic notions of fairness.

In setting out the case, the judge noted that a private university like Brandeis does not owe much in the way of process to its students, but “the university must provide its students with some minimum level of fair play.” After a review of the cultural and political context in which the case arose, Saylor determined:

Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. . . . 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 provided a fair opportunity to defend himself and an impartial arbiter to make that decision.

The judge found that Doe had alleged a lack of both procedural and substantive fairness in Brandeis’ process. Procedurally, the court faulted the same issues we have long found concerning about school sexual assault policies:

• Failure to provide a thorough account of the charges to Doe (specifically finding unfairness when the school “refus[ed] to provide him with the specific factual conduct alleged to have given rise to the charge”).
• No right to counsel (“[Brandeis] expected a student, approximately 21 years old, with no legal training or background, to defend himself, alone, against those same charges.”)
• No right to confront accuser (“The entire investigation thus turned on the credibility of the accuser and the accused. Under the circumstances, the lack of an opportunity for cross-examination may have had a very substantial effect on the fairness of the proceeding.”)
• No right to examine witnesses (“John was not provided an opportunity to cross-examine any of those witnesses, or indeed to be advised of the substance of their testimony.”)
• No right to examine evidence or witness statements (“John had no opportunity to review any statements [witnesses] may have provided.”)
• Impairment of right to call witnesses and present evidence (“John was not informed of the details of the case against him until after the Special Examiner had prepared her Report . . . John then attempted, unsuccessfully, to submit additional evidence . . .”)
• No access to Special Examiner’s report (“He was thus forced to defend himself in the sanctions phase of the proceeding, and to prepare his appeal, without access to the very document in which his guilt was determined.”)
• No separation of investigatory, prosecution, and adjudication functions (“The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.”)
• No right to effective appeal (“Conspicuously absent from the list is the ability to appeal on the ground that the Special Examiner’s decision was not supported by the evidence, or that it was otherwise unfair, unwise, or simply wrong.”)
• Lowered burden of proof to the “preponderance of the evidence” (“Here, however, the lowering of the standard appears to have been a deliberate choice by the university to make cases of sexual misconduct easier to prove . . . .”)

The judge then turned to the question of whether the proceeding that Brandeis subjected Doe to was substantively fair. He determined that there was “reason to believe that the Special Examiner decided John’s guilt to a substantial degree on unfair generalizations, stereotypes, or logical fallacies.” The judge noted, in particular, the following:

• That the Special Examiner failed to consider why the complainant entered into a 21-month long relationship with Doe after allegedly being assaulted, and failed to report the assault or any other misconduct for two years, and instead dismissed those facts based on generalizations about how some victims of inter-partner violence act.
• That the Special Examiner “entirely dismissed the significance of the long-term relationship in evaluating John’s behavior,” when, according to the judge “[n]ormally, over the course of a long relationship, the parties develop implicit and explicit understandings that affect their behavior, including certain forms of non-verbal consent . . . . the existence of a relationship does not give someone the right to commit sexual assault. But neither is it meaningless and irrelevant when evaluating the question of consent.”
• That the Special Examiner decided the complainant’s abuse of alcohol after his relationship with Doe ended bolstered his claim that he was sexually assaulted, which the judge decried as “application of broad generalizations or post hoc ”

The judge’s willingness to take on the issue of what constitutes a fundamentally fair procedure was an unusual move, even as more cases challenging college sexual assault procedures make their way to state and federal trial and appellate courts. Many courts have dismissed these cases by finding that plaintiffs have failed to plead claims under Title IX (arguing that the result was the product of gender bias), or a contract violation (arguing the school did not adhere to its own policies). In the last six months, Doe v. Brandeis has not yet had the impact on this area of the law that some of us might have hoped. As will be discussed in a subsequent blog post, only one case has cited Brandeis in addressing the merits of a challenge to a university sexual misconduct proceeding, and there the court was careful to distinguish Doe v. Brandeis from the case under consideration, and to there explicitly state that the school’s policies were acceptable. Time will tell if Brandeis will remain an outlier in the court decisions on college sexual misconduct procedures, or if more courts will step up to address the question of what type of fairness college students are due, and whether the current Title IX procedures on campus provide that fairness.