April 6, 2016

Doe v. Brandeis University : Implications for University Disciplinary Systems and Policies

Last Thursday, the U.S. District Court for the District of Massachusetts issued one of the strongest rebukes of a university disciplinary system since the Department of Education’s issuance of a 2011 “Dear Colleague” letter on campus sexual assaults and a university’s obligations under Title IX. In Doe v. Brandeis University, No. 15-11557-FDS, the district court held that a student disciplined by Brandeis University on sexual misconduct charges could proceed with his legal challenge to the disciplinary process on basic fairness grounds, concluding that the student plausibly alleged “that Brandeis denied [the student] the ‘basic fairness’ to which he was entitled.” As the court itself recognized, the issues presented are “not unique” and “not confined to a single campus.” Universities should consequently exercise caution in reducing the due process protections afforded to students accused of sexual misconduct, and in relying on the Dear Colleague Letter as a justification for doing so.

Case Background

Brandeis University initiated disciplinary proceedings against a student, John Doe, who allegedly engaged in sexual misconduct with another student, J.C. The two students had been in a romantic relationship; J.C. alleged that Doe engaged in “violence” and nonconsensual sexual misconduct during their time together—21 months in total. J.C. did not file his complaint until six months after their relationship had ended.

In the wake of the Dear Colleague Letter, the university had recently adopted a comprehensive, multistep process for addressing claims of sexual misconduct by students, mostly overseen by a “special examiner” appointed by the university who served as the investigator, prosecutor, and trier of fact. The special examiner was tasked with preparing a report that summarized the relevant facts, made credibility determinations, and ultimately made findings about whether the accused was responsible for any or all of the charges in the complaint. In making such findings, the special examiner used the preponderance-of-the-evidence standard, not the clear-and-convincing standard employed by the university in all other cases of student discipline. Under Brandeis’s updated disciplinary system, the accused student had no right to see the accuser’s statement or supporting materials. Nor was he given the opportunity to confront or cross-examine his accuser or the accuser’s witnesses.

The special examiner in Doe’s case submitted a report concluding that it was “more likely than not” that Doe was responsible for sexual misconduct and physical violence against J.C. Brandeis’s Dean of Academic Services accepted the special examiner’s report in its entirety. The report was then forwarded to a three-member panel comprised of university administrators and faculty members, so that the panel could determine which sanction to impose. The panel rubberstamped the Dean’s finding, as it had no authority to reverse or modify the Dean’s determination as to responsibility. Doe received what he described as “the lightest sanction possible”—a “disciplinary warning.” He unsuccessfully appealed the Dean’s decision to a panel of three university faculty members. As a practical matter, the appeal process offered little possible relief, as it was “narrowly limited,” with the Dean’s decision reversible only on grounds of fraud, the denial of rights provided by the code of conduct, procedural error or the existence of previously unavailable new evidence that would have materially affected the decision.

Doe sued Brandeis, alleging (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) estoppel and reliance; (4) negligence; (5) defamation; (6) invasion of privacy; (7) intentional infliction of emotional distress; and (8) negligent infliction of emotional distress. Brandeis filed a motion to dismiss the complaint.

The Court’s Decision

In an 89-page opinion, Judge F. Dennis Saylor IV of the U.S. District Court for the District of Massachusetts held that Doe had pled enough to move forward with certain of his claims—specifically, the breach-of-contract claim, the good-faith-and-fair-dealing claim, and a negligent-supervision claim.  Judge Saylor’s discussion of the breach-of-contract claim—which was largely premised on the absence of basic fairness required under Massachusetts law—is of particular interest to universities. On the question of basic fairness, Judge Saylor drew two conclusions.

First, on the facts alleged, the plaintiff successfully pled that Brandeis’s process was procedurally unfair. Because Brandeis did not provide the accused with the facts underlying the charges against him, deprived the accused of the right to confront his accuser or the accuser’s witnesses and denied the accused access to evidence, witness statements, and the special examiner’s report, Judge Saylor determined that the complaint “plausibly allege[d] that the procedures employed by Brandeis did not provide [Doe] with the ‘basic fairness’ to which he was entitled.” The court also found troubling the fact that the special examiner was “a single individual essentially vested with the powers of an investigator, prosecutor, judge, and jury.” Coupled with the lack of an effective appeal, the special examiner’s role could be perceived as procedurally unfair. The court noted that the burden of proof for sexual-misconduct claims—a preponderance-of-the-evidence standard—was “particularly troublesome,” given that all other allegations of student misconduct required proof satisfying the higher “clear and convincing” standard.

Second, the plaintiff successfully pled that Brandeis’s process was substantively unfair. The court concluded that the special examiner failed to scrutinize J.C.’s delay in filing the complaint, failed to consider the importance of J.C. and Doe’s 21-month-relationship, and accorded too much significance to J.C.’s alcohol abuse in making credibility determinations. (By relying mostly on generalizations, the special examiner had essentially determined that J.C.’s alcoholism was the result of Doe’s history of sexual assault, and that the alcoholism was itself evidence of sexual misconduct.) Thus, the district court allowed Doe to proceed with his claims against Brandeis.

Implications of the Decision

The Doe decision represents the strongest critique of any university’s sexual assault disciplinary procedures since the Department of Education issued its Title IX Dear Colleague Letter on sexual violence in April 2011. To be sure, the court acknowledges a private university’s wide latitude in “academic and disciplinary decisions,” and merely holds that the plaintiff’s lawsuit has enough merit to proceed past the dismissal stage. But Doe’s conclusion that the plaintiff plausibly alleged that he was not even provided with “basic fairness,” and its palpable skepticism as to the university’s use of an “essentially secret and inquisitorial process” to “reach a conclusion that seems at odds with common sense,” is an unambiguous rebuke of the procedures adopted by Brandeis and other universities in the wake of the Dear Colleague Letter. The potentially broad implications are acknowledged in the opinion itself, which describes the issues presented as “not entirely unique” and “not confined to a single campus,” and proceeds to identify “substantial similarities” between Brandeis’s sexual misconduct policies and those adopted by other universities.

Brandeis did not expressly defend its procedures on the ground that they were required by Title IX; the court recognized, however, that the loosening of due process protections at Brandeis and elsewhere “has been substantially spurred” by the Dear Colleague Letter. But other than the lower preponderance standard, which the court found “not problematic, standing alone,” id. at 70, most of the procedural changes adopted by Brandeis, including the deprivation of a hearing and of an effective appeal, were not required by the Dear Colleague Letter. The Doe decision therefore suggests that courts—the final arbiters of due process—may be growing wary of universities’ overbroad interpretation of the Dear Colleague Letter. After Doe, universities should exercise caution in relying on the Dear Colleague Letter as a justification to reduce an accused’s due process protections.

The strong wording of the Doe decision is a clear shot across the bow for universities that have relaxed their procedural safeguards for those accused in recent years. Whether or not they ultimately succeed on the merits, allowing lawsuits such as Doe to proceed to discovery may entail significant litigation expense for universities, to say nothing of unwelcome publicity and reputational harm. The decision may also herald a change in public (and judicial) opinion that could influence future rulemaking and guidance from DOE itself. In the meantime, universities should carefully balance Title IX’s goals of reducing campus sexual assault against an accused’s due process protections and the potential legal exposure identified by the district court in Doe.