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Since OCR issued its April 4, 2011, “Dear Colleague” letter, more than 90 students have brought lawsuits alleging they were denied a fair hearing in campus sexual assault proceedings. When I wrote my on how these lawsuits were faring, I characterized them as an “uphill battle” for plaintiffs. While the atmosphere for these plaintiffs is still uncertain, however, the landscape has begun to change for the better.

Just last month, I wrote about several new decisions that allowed accused-student plaintiffs’ claims against their universities to move forward. And in the five weeks since that writing, there have been four more such decisions.

In perhaps the most significant decision to date on this issue, a Massachusetts federal judge allowed a student’s breach of contract claims to move forward against Brandeis University. While a number of previous rulings have allowed such claims to move forward, those opinions have been limited strictly to the facts of the case and contain little, if any, language that can be cited by other students in the same position. By contrast, the judge in this case spoke not only to the specific facts of the plaintiff’s case, but also to the broader importance of fundamental fairness in campus sexual misconduct proceedings. For this reason, the opinion is of great significance to advocates for campus due process.

In this case, the student, known only as John Doe, was disciplined for sexual misconduct after his ex-boyfriend accused him of having had “numerous inappropriate, nonconsensual sexual interactions” with him over the course of their nearly two-year relationship. Brandeis found him responsible for sexual misconduct for, among other things, having awoken his then-boyfriend up by kissing him while he was asleep, as well as for staring at his body while the two were using a communal bathroom. The student alleged that the process by which he was found guilty was a “secret, inquisitorial” process in which he had no opportunity to confront his accuser or the witnesses against him, and in which he did not even learn the specific factual bases for the charges against him until after he had been found responsible.

In considering the student’s complaint, Judge Dennis Saylor held that the court must look not only at the specific contractual promises that Brandeis made to its students, but also at “whether it provided ‘basic fairness’ to the student.” On this point, Judge Saylor found Brandeis’ process to be lacking:

John was charged with serious offenses that carry the potential for substantial public condemnation and disgrace. He was required to defend himself in what was essentially an inquisitorial proceeding that plausibly failed to provide him with a fair and reasonable opportunity to be informed of the charges and to present an adequate defense. He was ultimately found “responsible,” and received a penalty that may permanently scar his life and career. Under the circumstances, the complaint plausibly alleges that the procedures employed by Brandeis did not provide him with the “basic fairness” to which he was entitled.

Judge Saylor took a particularly dim view of Brandeis’ use of a single-investigator system—something ��ݮ��ƵAPP���� has been sounding the alarm about for some time—to resolve complaints of sexual misconduct:

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.

Significantly, the opinion also addressed the broader issue of how campuses should handle claims of sexual misconduct, emphasizing that the goal of securing justice for victims cannot justify denials of due process:

Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. 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.

Judge Saylor was not the only judge to speak to the broader issue of campus sexual misconduct adjudications.

In a ruling issued less than a week after the Brandeis decision, a California state appellate court also emphasized that universities cannot deny students the right to basic due process in the name of addressing campus sexual assault. In that case, which stemmed from a group sexual encounter, a University of Southern California student was initially held responsible for committing a sexual assault. A university appeals board overturned that finding, but

nonetheless held that John [Doe] violated two sections of the student conduct code: He “encouraged or permitted” other students to slap Jane [Doe] on the buttocks during the sexual activity, which the parties agree was not consensual, in violation of Student Conduct Code section 11.44C (section 11.44C), and he endangered Jane by leaving her alone in the bedroom when the involved parties dispersed in violation of Student Conduct Code section 11.32 (section 11.32).

The judge ruled that because the student was investigated for one conduct violation (engaging in nonconsensual sexual activity) but was disciplined for another (encouraging others and endangering the alleged victim), he was denied a meaningful opportunity to defend himself:

We recognize that universities need adequate tools to address the very serious and sensitive problem of sexual assault on campus. But it is not too heavy a burden to require that students facing disciplinary action be informed of the factual basis for the charges against them.

In this ruling, a Virginia federal judge allowed a James Madison University (JMU) student’s due process claim to proceed against the school. After being charged with sexual misconduct, JMU provided the plaintiff with a hearing, at which he was found not responsible. The plaintiff’s accuser appealed that finding, and the appeals board reversed the decision, suspending the plaintiff for five-and-a-half years. The plaintiff alleged that he was not allowed to appear before the appeals board; was not shown new evidence submitted by his accuser on appeal; was not given the names of the people hearing his appeal; and was not given notice of the appeals board’s meeting.

The court held that based on these facts, the plaintiff had stated a viable due process claim:

[T]he court concludes that Doe alleges sufficient facts to state a procedural due process violation against [JMU officials]. To be sure, JMU provided Doe with adequate process at the hearing stage of the disciplinary proceedings. Under the facts alleged, however, it did not afford him such process at the appeal stage. There, JMU subjected him to a second fact-finding trial but severely limited his ability to defend himself.

While this case moved forward on a sex-discrimination claim, it was a frustrating decision on the due process front. The court clearly recognized that the plaintiff had been subjected to an unfair process—among other things, the plaintiff alleged that while his own representative was not allowed to meaningfully participate in the proceeding, the university used an experienced attorney to present its own case. However, the court felt legally constrained by the fact that the relevant law—Indiana state law and the law of the Seventh Circuit, of which Indiana is a part—simply does not guarantee public university students much in the way of due process:

Although Marshall asserts a number of compelling arguments why he should have received more due process given the gravity of the charges he faced and the severity of the punishment imposed, the Court must agree with the Defendants. … As the law stands in Indiana and in the Seventh Circuit, the Defendants were not required to give Marshall any more process than he received; and, therefore, dismissal of Marshall’s due process claims is warranted.

The court did, however, allow Marshall’s Title IX sex discrimination claim to proceed to the next stage of litigation.

Initially, a number of judges dismissed plaintiffs’ Title IX claims for failing to offer particularized evidence of sex discrimination. This put plaintiffs in an untenable situation, because it is difficult to obtain this kind of particularized evidence without discovery—and discovery does not begin until after the motion-to-dismiss stage.

More recently, judges have begun acknowledging this conundrum and are allowing plaintiffs to proceed to discovery on their Title IX claims. The judge in this case took the same approach:

[A]lthough Marshall’s pleading may lack the contours of more particularized facts, the Defendants do not deny that they are in sole possession of all information relating to the allegations made by and against Marshall, notably refusing, at all times, to share such information with Marshall or his attorneys. In this regard, the Defendants cannot have it both ways, restricting access to the facts and then arguing that Marshall’s pleading must be dismissed for failure to identify more particularized facts. Instead, whether the facts alleged sufficiently ultimately support a claim for intentional gender discrimination under Title IX is a question for a later stage in this litigation, after fair and robust discovery by both sides.

Overall, these four decisions are very encouraging for those of us advocating for greater due process protections in campus sexual-misconduct proceedings. It is particularly heartening to see judges viewing these cases in the broader context of a campus climate where students accused of serious misconduct are often found responsible with little to no due process. This area of the law continues to evolve rapidly, and we will continue to bring you these legal updates as they develop.