Doe v. Brown University: In Narrow Decision, Federal Court Finds Brown Failed to Follow its Policy on Sexual Misconduct Adjudications

I previously wrote about a Massachusetts federal district court decision that was groundbreaking because it tackled the question of whether a private university’s sexual misconduct investigation and disciplinary procedure was fundamentally fair, and concluded that it was not. Last week another local federal court weighed in on the college sexual misconduct issue and found in favor of the accused student, but went in a distinctly different legal direction.

John Doe v. Brown University is one of the few cases on this issue to proceed all the way to trial. The case arose out of a November 2014 sexual encounter between John Doe and Ann Roe. Roe complained about the incident in November 2015, and the case was heard by Brown in 2016. Notably, in fall 2015 Brown adopted a new Title IX policy that contained Brown’s first definition of consent, and a new process for handling sexual misconduct cases. While Brown informed its investigator and panel that the case against Doe would proceed under the 2014-2015 policy that was in effect at the time of the incident, Brown also provided the panel with the 2015-2016 policy and specifically told the panel that that policy codified the community’s understanding of consent, so they could look to it if it assisted them.

The trial was held before a judge in the United States District Court for the District of Rhode Island in July 2016, on the merits of the case and on Doe’s request for a preliminary injunction. In August 2016 the court issued a preliminary injunction to allow Doe to return to Brown for the fall semester. In September the judge decided the merits of the case.

The portion of the opinion that has garnered widespread attention was the judge’s need to remind the public of the independence of the judiciary, and the role he played in the case. In a scathing section of the opinion the judge noted that

[T]he Court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After issuing the preliminary injunction this Court was deluged with emails resulting from an organized campaign to influence the outcome. These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court. Hopefully, they will read this decision and be educated.

It is not surprising in today’s climate that student activists would attempt to inappropriately sway a judge’s consideration of a pending case (particularly right after a similar campaign to target the elected California judge in the Brock Turner case resulted in him declining to hear any future criminal cases). Nor is it surprising that in the midst of this national panic over college sexual assault cases a judge would strive to insulate his decision from the wrath of such activists by deciding it in the narrowest way possible. That seems to be precisely what the judge in the Brown case did, noting that the case was “a very close call,” stating that his reasoning applied only to a very unique subset of cases, and devoting a footnote to making clear: “This is not to say that the Court passes judgment on whether the outcome – that Doe was found responsible – was an error. The Court makes no finding as to Doe’s responsibility; that is for the Brown panel to decide if it chooses to re-present the matter after correcting the errors cited.”

The court first decided that Brown’s procedures themselves were not against public policy or the law. The court found Brown’s use of a single investigator model to be acceptable, and explicitly distinguished Brown’s procedures from Brandeis’ – indicating that unlike Brandeis, Brown’s procedures were not “secret and inquisitorial” and students at Brown were provided with sufficient information during the process.

The court instead rested its decision in favor of John Doe on the fact that while the panel hearing his case was told to use Brown’s 2014-2015 sexual misconduct policy (which did not have a definition of consent), it was also given the school’s 2015-2016 policy and were told that that policy codified “community standards.” The panel did use the 2015-2016 definition of consent (in particular, that “manipulating” someone into having sexual relations is non-consensual) to find Doe responsible for sexual misconduct. Brown argued that the definition of consent merely codified the existing community expectations, which Doe should have reasonably understood even based on the 2014-2015 code. The court looked at definitions of “manipulation” and determined that in creating a definition of consent that included “manipulation”, Brown “materially altered the standard contained in the 2014-2015 Code and thus that a reasonable student would not have expected “manipulation” to be prohibited by the 2014-2015 Code. Because the panel relied heavily on a text message from Doe to the complainant where he said “I’m manipulating you a lot,” Doe had proved that the procedural error of providing the panel with the 2015-2015 Code had led them to find him responsible.

The court noted other procedural errors as well. For example, when the investigator, who under the policy was not supposed to make a recommendation as to whether the panel should find an accused student responsible or not, testified to the panel she inappropriately indicated that she thought they should find Doe responsible, which the panel appeared to rely on. The court also faulted the investigator for failing to include all of the relevant evidence relating to Doe’s argument that the complainant and a friend had conspired to make a false allegation against him. In justifying that decision, the investigator again indicated her view as to the merits of a portion of the case, which was supposed to be determined by a hearing panel. The court also found that under the 2014-2015 policy Doe should have been permitted to make a rebuttal statement, which he was not allowed to do. Finally, in dicta the court addressed Doe’s argument that the training panelists received on conducting “trauma-informed” investigations led to procedural error because one panel member explicitly stated she did not consider any of the post-encounter evidence presented by Doe, deeming it not relevant.  (The evidence included explicit sexual talk between the parties and plans for a subsequent sexual encounter, as well as witness testimony that the complainant had a positive description of the encounter with Doe). The court found that “a training presentation was given that resulted in at least one panelist completely disregarding an entire category of evidence,” and noted that that error comes “close to the line” of what is arbitrary and capricious.

Despite noting these errors, and finding for Doe, the judge strongly indicated to Brown that the evidence was sufficient to find Doe responsible should his case be evaluated again. The judge said that the panel’s interpretation of Doe’s texts was not unreasonable, and “[h]ad the panel arrived at this interpretation on their own, there would be no issue.” The judge went on to detail exactly how the investigator could salvage her report of the case – for example, by simply excluding all, rather than only some, of the evidence Doe presented of a conspiracy to falsely accuse him of sexual assault (which consisted of testimony about a conversation a witness overheard between the complainant and a friend and text messages between Doe and a particular witness).

The federal court in Brown was able to rest its decision on the clear contractual violation of applying a policy that was not in effect at the time of the incident to Doe’s case, and thereby avoided having to address the fairness of the university’s procedures. The court nonetheless pointed to a few concerning elements of the investigation and training that are common to most of the schools where we have had cases: the role of the single investigator, concerns about respondents being able to submit relevant evidence, and the impact of the new “trauma-informed” model of investigation on how evidence is considered. While not the bombshell decision that Brandeis was a few months ago, Brown nonetheless has important insights for both universities and lawyers representing students in these proceedings.