Wednesday, February 24, 2016

Victory for college men in federal court: A college's attempt to comply with the "Dear Colleague" letter may be a breach of contract (among other things)

An explosive opinion was handed down by a federal court in Rhode Island on Monday, Doe v. Brown Univ., 2016 U.S. Dist. LEXIS 21027 (D.R.I. Feb. 22, 2016). Judge William Smith refused to dismiss a complaint filed by a male student who was suspended from the school for 2.5 years after being found responsible for sexual misconduct in connection with the alleged sexually assault of a female student. John Doe claimed the encounter was entirely consensual. We won't chronicle the court's lengthy decision in detail, but a few things are noteworthy.

The court looked with a jaundiced eye at the way colleges handle allegations of sexual misconduct: ". . . there is a fundamental question whether the way in which universities have chosen to respond to allegations of sexual misconduct in response to the Dear Colleague Letter is appropriate given the criminal nature of some of the allegations involved . . . ." The court referenced the perceived backlash against male students created by the climate of guilt fostered by the "Dear Colleague" letter. It cited some writings familiar to our regular readers: See, e.g., Max Kutner, The Other Side of the College Sexual Assault Crisis, Newsweek (Dec. 10, 2015) and 28 Members of the Harvard Law School Faculty, Opinion, Rethink Harvard's Sexual Harassment Policy, The Boston Globe (Oct. 15, 2014),

The court noted: "'It is well established that a school's failure to prevent or remedy sexual harassment of a student, including sexual assault, may violate Title IX.' . . . . However, 'it is equally well established 'that Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline.'" The court proceeded to detail the male student's allegations to determine whether, if true, they stated a claim for which relief may be granted (which will allow the case against Brown to proceed to discovery). The court held that Doe has pled "facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding." Among other things, John Doe alleged that Brown ignored exculpatory evidence, including the alleged victim's own testimony in the her complaint to the school that she had in fact articulated consent. Further, he has "allege[d] particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding." Most important, he has alleged particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding. The court wrote:
Plaintiff's Complaint in this case does include specific allegations related to gender bias as opposed to bias against students accused of sexual assault. Specifically, the Complaint includes the following allegations concerning Brown's gender bias:

• Upon information and belief, one former Brown employee stated that Brown treats male students as "guilty, until proven innocent," that Brown has "loaded the dice against the boys" and that the fact-finding process in cases of sexual misconduct at Brown operates under the assumption that it's always the "boy's fault." (Compl. ¶ 98, ECF No. 1.)

• Upon information and belief, one Brown professor stated that "there is gender bias that is overwhelming at Brown" when referencing sexual misconduct cases at Brown. (Id. ¶ 100.)

• Upon information and belief, in December 2014, a Brown professor held a [27] debate to discuss rape issues on campus. During the debate, one female debater remarked that males are "bad" and females are "victims" when it comes to sexual misconduct. The Brown professor stated that these remarks are consonant with the culture of thinking on Brown's campus. (Id. ¶ 101.)

• Upon information and belief, Brown's handing [sic] of John Doe's case fits within a pattern of showing gender bias toward female students in cases of sexual misconduct, including its conduct in: (i) McCormick v. Dresdale, supra; (ii) a sexual misconduct case against former Brown student Adam Lack (Class of 1997); and (iii) other instances documented in the Brown Daily Herald (April 29, 2010) and the Brown Spectator (May 26, 2012). (Id. ¶ 123.)
Among the most surprising aspects of the decision was the vitality of John Doe's claim for breach of contract. The court held that the student handbook constitutes a contract, and the school is bound to honor the promises it creates. Among the most explosive aspects of the decision: the court held that the school's attempt to comply with the "Dear Colleague" letter can be a breach of contract:
Doe first alleges that Brown failed to conduct a pre-charge investigation of Jane Doe's complaint prior to directing Plaintiff's immediate removal from campus. (Pl.'s Opp'n 26, 28, ECF No. 15.) Doe alleges [37] this to be a violation of the statement in Brown's Code that "[s]tudents and student organizations charged with offenses" have the "right[] . . . [t]o be assumed not responsible of any alleged violations unless she/he is so found through the appropriate student conduct hearing." (Ex. A to Compl. at 7, ECF No. 1-1.) Brown counters that "[n]owhere is there any such restriction imposed upon Brown regarding interim measures during an investigation and a disciplinary process. In fact, the OCR in its Dear Colleague letter specifically mandates that a university may invoke interim measures as part of its Title IX response to sexual harassment allegations." (Def.'s Reply 15, ECF No. 17.) However, the Code also states that "[a]ll members of the Brown University Community are entitled to . . . the right to attend, make use of or enjoy the facilities and functions of the University subject to prescribed rules." (Ex. A to Compl. at 3, ECF No. 1-1.) The question here is not whether Brown was following the OCR's guidance; it is whether Brown's actions violated the reasonable expectations of a student based on its Code. The Court finds that, taking Doe's allegations as true, Brown's decision to ban him from campus prior to conducting an investigation states a plausible claim for a breach of the rights outlined in the Code to be assumed not responsible until proven otherwise, and to enjoy use of Brown's facilities.
In addition, and also very important, the school's conduct restricting John Doe from presenting his case may also be a breach of contract:
Doe next alleges that Brown failed to allow him "an opportunity to offer a relevant response" to the evidence against him, as required by the Code. (Pl.'s Opp'n 27, 29, ECF No. 15; see Ex. A to Compl. at 7, ECF No. 1-1.) Specifically, Doe contends that Brown:

improperly redact[ed] relevant information from Plaintiff's evidence, assembl[ed] Plaintiff's text messages out of order and out of context, exclude[ed] the majority of Plaintiff's character witness statements that spoke to his credibility, disallow[ed] Plaintiff from making a full "midpoint" statement, in violation of the Opening and Questioning Timeline, and refus[ed] to consider the Facebook photos showing lack of any "bruising" on Jane Doe based on baseless privacy concerns.

(Pl.'s Opp'n 29, ECF No. 15.) Although the term "relevant" is vague and undefined, the Court finds that Plaintiff has - at the motion to dismiss stage - presented sufficient allegations to state a claim that he was prevented from presenting a "relevant" response. In particular, the fact that Plaintiff was prevented from making his "midpoint" statement may be a violation of the Code, depending on what the facts show.
All in all, this is among the best decisions to date handed down for presumptively innocent college students accused of sexual assault. It ought to send shockwaves through the rarefied halls of academia.