District of Massachusetts Judge Dennis Saylor was patient and thorough. With an opinion running 89 pages, maybe a little too thorough. When a judge finds it advisable to include a table of contents in a decision, one begins to curse the creation of word processing software. If the Supreme Court could decide Brown v. Board of Ed. in 12 pages, well.
To save you from reading the first 60 pages, the short story is that there was a sexual relationship between two gay men that eventually ended. A couple years later, after one took a university “sexual assault training course,” he decided he had been raped. The “victim” submitted his two sentence complaint:
Starting in the month of September, 2011, the Alleged violator of Policy [John] had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013.
Brandeis cranked up its finely tuned disciplinary machine, carefully crafted in 2014 to comply with the outcome demanded by the Department of Education, Office of Civil Rights, and branded the accused a sexual predator. As Judge Saylor explains, the disciplinary mechanism had few moving parts:
Among other things, under the new procedure,
- the accused was not entitled to know the details of the charges;
- the accused was not entitled to see the evidence;
- the accused was not entitled to counsel;
- the accused was not entitled to confront and cross-examine the accuser;
- the accused was not entitled to cross-examine any other witnesses;
- the Special Examiner prepared a detailed report, which the accused was not permitted to see until the entire process had concluded; and
- the Special Examiner’s decision as to the “responsibility” (that is, guilt) of the accused was essentially final, with limited appellate review—among other things, the decision could not be overturned on the ground that it was incorrect, unfair, arbitrary, or unsupported by the evidence.
When the student sued, Brandeis’ response was “so?” Recognizing that it was a private institution, and therefore not subject to the full panoply of constitutional rights that would otherwise apply to a government entity, Judge Saylor held:
Nonetheless, Brandeis’s authority to discipline its students is not entirely without limits. Although the relationship between the university and its students is essentially contractual, the university’s disciplinary actions may also be reviewed by the courts to determine whether it provided “basic fairness” to the student. While that concept is not well-defined, and no doubt varies with the magnitude of the interests at stake, it is nonetheless clear that the university must provide its students with some minimum level of fair play.
Aside from the mandate of due process required of state schools, there is an implied covenant of good faith in every contractual relationship. That includes private colleges.
When considering the issues presented in this case, it is impossible to ignore entirely the full context in which they arose. In recent years, universities across the United States have adopted procedural and substantive policies intended to make it easier for victims of sexual assault to make and prove their claims and for the schools to adopt punitive measures in response. That process has been substantially spurred by the Office for Civil Rights of the Department of Education, which issued a “Dear Colleague” letter in 2011 demanding that universities do so or face a loss of federal funding.
The goal of reducing sexual assault, and providing appropriate discipline for offenders, is certainly laudable. Whether the elimination of basic procedural protections—and the substantially increased risk that innocent students will be punished—is a fair price to achieve that goal is another question altogether.
Judge Saylor’s recognition of the separate issues of disease and cure is important, as it eludes consideration by almost every campus Title IX administrator ever.
Like Harvard, 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.
This is either too obvious to be worthy of expressing, or too offensive to warrant acceptance, depending on what altar you pray at.
Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome, and a fair and neutral fact-finder, not predisposed to reach a particular conclusion.
Judge Saylor goes on to deconstruct, piece by piece, the failings of the Brandeis finely tuned, government-approved, disciplinary machine, and its ultimate failure to provide either procedural or substantive due process. The opinion in its entirety is worth reading, and if that demands too much of you, then go to page 60 and read from there.
Judge Saylor concludes that the procedure employed by Brandeis to railroad its student was deficient in almost every respect, even recognizing the excuses proffered for why college discipline is “different.”
Again, this was not a criminal proceeding, and Brandeis is not a governmental entity. Nonetheless, the stakes were very high. 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.
Scream “believe the victim” all you want, but the law requires that colleges, whether public because of the Constitution, or private because of the requirement of good faith, provide all their students with the protections of due process, particularly given the seriousness of an accusation of sexual misconduct.
Brandeis, named after the first Jewish Supreme Court justice, has as its mascot the “judge.” To call this a disgrace to Louis Brandeis’ legacy is easy. Brandeis University has been judged and found wanting. Badly.
But the larger failing is that this isn’t about Brandeis alone, or some insanity affecting Massachusetts colleges. This goes to the insanity stemming from Catherine Lhamon’s abuse of her power to further her personal agenda, and the refusal of colleges and universities to stand up for their students and say no, forcing students to take to federal courts to obtain the relief that should have been obvious to the school’s mascot. It shouldn’t require a federal case to stop the Lhamons from imposing their politics on higher education.