Earlier this spring, a student filed a due process lawsuit against Brandeis, charging that he was disciplined under a procedure different from the one that existed when he arrived on campus. In one respect, the facts of this case are atypical. After a nearly two-year relationship (between two male students) ended, the accuser appears to have reinterpreted the relationship as sexual assault. In another respect, though, this case is quite typical—a highly dubious procedure produced a questionable result.
Brandeis recently filed a motion urging the district court to dismiss the claim. (You can read the college’s filing here.) A key claim by the accused (who filed under a pseudonym) was breach of contract—that Brandeis was obligated to follow the disciplinary procedure that existed when he matriculated to the school. Instead, the college transformed a procedure that originally included a hearing and judgment based on “clear-and-convincing” evidence into the administration’s preferred “preponderance-of-evidence” standard. That standard called for a “single investigator” in which the accused student loses any right to cross-examine his accuser (or other witnesses), or even to hear what accusing witnesses have to say.
Brandeis doesn’t deny what it did, but astonishingly describes substituting one wholly different procedure for another as merely a “tweak” to its rules — part of the college’s “evolving” disciplinary standards and therefore not a breach of contract. How so? Brandeis didn’t wholly substitute one set of procedures for another in all student disciplinary cases, the college maintains, but did so “for only a narrow subset of student misconduct.” Here’s how Merriam-Webster defines tweak: “to make usually small adjustments in or to fine-tune.” It seems to me wholly replacing a procedure is a bit more than a small adjustment, or fine-tuning.
Even if the procedural change was more than a tweak, Brandeis claims it had good reason for acting as it did. Why? The “Dear Colleague” letter “explains that cross-examination and confrontation of the accuser would actually violate Title IX.” But in fact that letter offers no such explanation. In 2011, the Office of Civil Rights did assert—as part of its more general attack on due process rights of the accused—that despite nearly four decades of policy where this issue went unmentioned, it heretofore would “strongly discourage” cross-examination, even in instances where the accuser was the sole witness against the accused.
But strong discouragement is not the same as an actual violation. At most, the Dear Colleague letter maintains that cross-examination “possibly” [emphasis added]—not “actually,” as Brandeis claims—might create a hostile learning environment, allowing an appeal to Title IX. If Brandeis can’t even accurately describe its obligations under the Dear Colleague letter, why should the court trust its description of the contested facts in the case?
Beyond the procedure, Brandeis aggressively maintains that the single investigator’s conclusions—based on unsworn testimony that she did not record, notes of which she did not provide to the accused student—were just. In so doing, the college essentially concedes that its standards for determining what is or is not sexual assault are almost wholly arbitrary.
Brandeis asserts that “the common thread running through all of [the accused] claims is sexual, because [the accused] and [the accuser] had a dating relationship, consent to any and all sexual activity must be assumed.” But this isn’t what the lawsuit maintains. Rather, the lawsuit suggests that the existence of a long-term relationship must be a factor in evaluating the viability of the accuser’s after-the-fact, post-bad-breakup claims.
For instance: one infraction determined by the investigator (a former OCR staffer) was an alleged unwanted advance by the accused (at that point a closeted gay man) toward the accuser (at that point openly gay)—just before the two commenced their long-term relationship. Both sides agree the advance occurred. If the two didn’t have a 21-month relationship that began just after the alleged unwanted advance, perhaps the accuser’s tale might have some credibility. But surely the context matters here; and if the advance was unwanted, why did the accuser, who was open about his sexuality, decide nonetheless to initiate and maintain a long-term relationship with his alleged assaulter?
Similarly, Brandeis defends its investigator’s “balanced” conclusion that the accused student committed sexual misconduct by: (a) sometimes waking up his sleeping boyfriend with kisses; (b) sometimes staring at his long-term boyfriend’s nude body in the communal showers; and (c) sometimes getting “sulky” when the two didn’t have sex. Even if true, by those standards one or both partners of virtually any long-term couple at Brandeis (or anyplace else) could be deemed a rapist by the college. By describing behavior customary to many long-term relationships as sexual assault, Brandeis trivializes actual sexual assault.
One final point: somewhat oddly, Brandeis cites to the DePauw decision to justify its motion to dismiss. It seems to me that Judge Lawrence, in the DePauw case, did exactly what Brandeis wants court not to do here: he meaningfully examined the college’s procedures and evidence, took testimony in open court, and concluded that very little basis existed for the college’s decision to brand Ben King a rapist.
Will we see a similarly engaged court in Massachusetts?