Judge rips Brandeis for handling of sexual assault case

Printed from: http://newbostonpost.com/2016/04/01/judge-rips-brandeis-for-handling-of-sexual-assault-case/

BOSTON — A federal judge on Thursday rejected Brandeis University’s bid to squash a lawsuit by a student disciplined under its sexual assault policies, ripping the Waltham university’s approach to adjudicating such claims.

In an 89-page opinion supporting his decision to allow the lawsuit to move forward, U.S. District Court Judge F. Dennis Saylor IV criticized Brandeis for “appear[ing] to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.”

The lawsuit before Judge Saylor stems from an allegation made to Brandeis administrators by a male student (referenced in the complaint only as J.C.) that his former boyfriend (referenced as John Doe) sexually assaulted him in the period leading up to and during their 21-month relationship.

The accuser acknowledged that the two men had a long-term, monogamous relationship, but claimed that he was once awakened by his then-boyfriend with a kiss and sexual overture and that his partner once patted his groin as the two watched a movie.

Moakley Courthouse in Boston (Wikipedia)

Moakley Courthouse in Boston (Wikipedia)

The opinion by Judge Saylor notes that J.C did not accuse his former boyfriend of assault until months after their breakup after he “attended two sessions of university-sponsored ‘sexual assault training,’ which began (in his words) to change his ‘thinking’ about his relationship with Doe.”

After investigating J.C.’s claims, Brandeis issued Doe a disciplinary warning and ordered him to undergo mandatory education training.

Doe claims in his lawsuit that Brandeis then inappropriately leaked the confidential findings culled by a special examiner assigned to his case, causing him to be dismissed from an internship with a “high-ranking public official.” Doe claims he also had other job offers withdrawn as a result of the leaks.

Brandeis’s special examiner happened to be Elizabeth Sanghavi, a Brookline attorney who previously worked for the Office of Civil Rights at the U.S. Department of Education under President Barack Obama. On her law office’s website, Sanghavi lists herself as the co-author of a policy paper urging colleges and universities to adopt the Obama administration’s 2011 interpretation of Title IX sexual assault policies, known as the “Dear Colleague” letters.

The OCR’s letters from 2011 informed schools that OCR would investigate and potentially revoke federal funding under Title IX of schools that did not alter their disciplinary procedures to adopt lower burden-of-proof standards. The OCR ordered new standards be based upon the “preponderance of the evidence” standard, as opposed to the higher “clear and convincing evidence” standard typically applied in such administrative proceedings or the most stringent proof “beyond a reasonable doubt” standard used in criminal cases.

Brandeis in 2014 happened to be the subject of such an investigation — although in this case the investigation happened to focus on Doe’s allegation that he was unfairly disciplined.

Reviewing only the facts that are not in dispute, Saylor said that the two men retained a friendship for about four months after their breakup, but that the relationship began then to deteriorate as J.C. began to abuse alcohol.

Saylor noted that J.C. filed his complaint against Doe in January 2014, nearly two and a half years after the two began dating.  During the same month, J.C. “observed” that another gay male student appeared to be attracted to Doe and that Doe believed that J.C. became jealous. According to the lawsuit, J.C. sent the unidentified male student a Facebook friend request, which that student denied.

J.C. filed his complaint the following day, the lawsuit states.

Although withholding judgment on whether Brandeis violated Doe’s rights, Saylor cautioned that “[i]t is not enough simply to say that such charges 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.”

Saylor said that by 2014, “Brandeis’s policy in sexual misconduct cases had eliminated a hearing of any kind.”

“Instead, it had instituted a procedure under which a ‘Special Examiner’ was appointed to conduct an investigation and decide the ‘responsibility’ of the accused. That procedure was essentially a secret and inquisitorial process.”

Among the procedures Saylor identified was the fact that Doe was not allowed to know the details of the charges, to see evidence, retain counsel or confront his accuser.

Saylor also referenced Harvard University’s decision to adopt a blanket policy for dealing with sexual assault allegations, one that relies heavily on “preponderance of evidence” standards. He noted that 28 members of the Harvard Law School faculty in October 2014 signed on to an op-ed denouncing the school’s decision to drop due process standards.

“Like Harvard, Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process,” Saylor wrote.

Brandeis officials have previously said they cannot comment on pending litigation.

Read Saylor’s decision:

  Saylor Decision

Contact Evan Lips at [email protected] or on Twitter at @evanmlips.

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