MOVING TO FRONT FROM SATURDAY (APRIL 2)
Brandeis's motion to dismiss the lawsuit brought by a gay student found to have violated the school's sexual harassment policies was denied; an excerpt from the linked article (which includes further links to the opinion):
A judge rebuked Brandeis University for denying fundamental due process rights to a student who was found guilty of sexual misconduct for a variety of non-violent offenses: most notably, because he had awakened his then-boyfriend with nonconsensual kisses.
The process that Brandeis employed to investigate the matter was "essentially secret and inquisitorial," according to Dennis Saylor, a federal judge who ruled that the accused student's lawsuit against Brandeis should continue.
This is a significant victory for advocates of due process in campus sexual misconduct investigations. It's also an implicit skewering of affirmative consent as official policy. The accused, "John Doe," was found responsible for stolen kisses, suggestive touches, and a wandering eye—all within the context of an established sexual relationship. His former partner and accuser, J.C., did not file a complaint with the university until well after the incidents took place. In fact, J.C.'s participation in Brandeis' "sexual assault training" program caused him to re-evaluate the relationship.
The two began dating in the fall of 2011. They broke up in the summer of 2013. In January 2014, J.C. made a two-sentence accusation against Doe, who was not informed of the nature of the charges against him. He was also denied a lawyer, the opportunity to evaluate evidence against him, and the opportunity to cross-examine witnesses, including his accuser. Brandeis uses the "special investigator" model to handle sexual assault disputes: a single administrator reviews the charges, investigates them, and makes a decision. There was no panel hearing. There was just one person's decision....
The Court's discussion of "basic fairness" beginning at page 60 of the opinion may be of particular interest; an excerpt, relevant to our recent discussions of the standard of proof:
Here, the charges made by J.C. involved a serious subject matter: a claim of repeated acts of alleged sexual assault—indeed, purported sexual “violence”—over a period of nearly two years. The consequences of a finding of “responsibility” for those offenses are substantial indeed. As an initial matter, sanctions for violations of Brandeis’s community standards include ineligibility for campus housing, loss of the opportunity to participate in campus activities or employment, suspension, and expulsion. (2013-14 Handbook § 21.1).29 A finding of responsibility for sexual misconduct can also have significant consequences off-campus. Post-graduate educational and employment opportunities may require disclosure of disciplinary actions taken by a student’s former educational institution. In addition, Brandeis also reserves the power to disclose records of disciplinary actions to other educational institutions without the consent of the student....
Finally, a Brandeis student who is found responsible for sexual misconduct will likely face substantial social and personal repercussions. It is true that the consequences of a university sanction are not as severe as the consequences of a criminal conviction. Nevertheless, they bear some similarities, particularly in terms of reputational injury. Certainly stigmatization as a sex offender can be a harsh consequence for an individual who has not been convicted of any crime, and who was not afforded the procedural protections of criminal proceedings....
The Court concluded that Brandeis's procedured violated several aspects of "basic fairness."
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