University News

Judge invalidates Brown ruling in sexual assault lawsuit

U.S. District Court rules in favor of student due to retroactive application of new consent definition

By
Senior Staff Writer
Thursday, September 29, 2016

Updated Sept. 29 at 12:44 a.m. 

Chief Judge William E. Smith ruled in favor of an undergraduate, referred to as John Doe in court documents to protect his identity, in a case against the University yesterday. The case concerned a University disciplinary hearing that found Doe guilty of sexual misconduct. Doe was subsequently suspended from the University until the woman he was found guilty of sexually assaulting — an anonymous Ann Roe — was slated to graduate in fall 2018.

The ruling ordered the University to expunge Doe’s record but also stated “nothing in this order prevents Brown from re-trying Doe on the same charge with a new panel consistent with policies and procedures that apply,” according to the court documents.

Several of the claims against the University were dismissed, including the claim that the University “encourages allegations of misconduct, offers accusers robust support and vigorously prosecutes complaints, while affording scant resources to the accused.” The judge also denied that “there was bias in the gender makeup of the University’s Title IX Council,” and “that the University should pay (Doe’s) attorneys’ fees,” according to a University press release.

The ruling means that Doe has the option to return to campus, though he is currently not taking courses at Brown, according to the release. “The University will make a determination on what, if any, further action is needed should he indicate his intent to return to campus,” according to the release.

The University will not appeal the decision, wrote Brian Clark, director of news and editorial development, in an email to The Herald.

In June the judge, gave a preliminary injunction barring the University from suspending Doe, claiming that the suspension would cause him “irreparable harm for which an award of monetary damages would not be sufficient,” The Herald previously reported.

The ruling

Smith explicitly stated in the findings of fact and conclusions of law that the court’s role is to determine whether the disciplinary process was “in line with (the plaintiff’s) expectations based on the policies in place at the time of the incident.”

“It is not the court’s role to determine the facts of what happened between (Doe) and (Roe); to decide whether the court would have, in the panel’s position, found (Doe) responsible for sexual misconduct; to evaluate whether the court would have made the same judgement calls on evidence and other issues as Brown did; or to determine whether the procedure John received was optimal,” according to the court documents.

In referring to the court not being “swayed by emotion of public opinions,” Smith may have been referring to a widely circulated Facebook post by Alex Volpicello ’18 encouraging students to email Smith about the case. “These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this,” the court documents stated.

Overall, Smith determined that “the court must answer in this case: whether Brown’s rules and procedures, on their face, violate public policy or the law; whether Brown violated any of the specific terms of its contract and/or applied its rules arbitrarily and capriciously in Doe’s case; if there was a breach of contract, whether that breach of contract caused Doe’s damage,” according to the court documents. Smith determined that the disciplinary hearing is not against public policy or the law, but that “the process was not properly applied.”

“Brown provided Doe’s panel with a new written policy that was not in existence at the time of the incident, while explicitly telling Doe that the old policy would be used, and the panel used that new policy to find Doe responsible,” the ruling stated.

Smith also stated that the case was “uniquely postured” because the alleged assault occurred in 2014, and the hearing was conducted the following year, after the new Title IX policy had been introduced. Smith also ruled that “for this case and any others remaining under the 2014-15 Code, Brown is contractually required to provide the rights it promised students in the Code.”

The timeline

The court documents from the conclusion of the case lay out the timeline of alleged assault and disciplinary hearing process. Roe filed a complaint in the Title IX office Oct. 30, 2015 alleging that Doe sexually assaulted her Nov. 10, 2014. The investigation of the complaint began Nov. 4, 2015 and was conducted by an external investigator, Djuna Perkins. The final report was filed March 12.

A draft of Perkins’ report initially included that Doe had violated the Title IX policy — which was adopted in 2015 — but Amanda Walsh, Title IX program officer, rewrote the language of the report such that it only cited the 2014-15 University code of conduct.

March 1, a draft of the report was shared with Doe and Roe. Walsh then scheduled a Title IX Council hearing for April 14. The panel included Senior Associate Dean for Curriculum Besenia Rodriguez, Deputy Director of the Swearer Center for Public Service Katherine Trimble and Kimberley Charles ’16. Gretchen Schultz, professor of French studies, served as the Title IX council chair, though she was not a voting member of the panel.

Walsh presented Schultz with a copy of the Title IX policy “because there was no definition of consent in the 2014-15 code, and (Walsh) wanted panelists to have the Title IX policy as an option to consider during their deliberations if they elected to do so,” according to the court documents. Schultz provided the panel members with the 2014-15 code of conduct and “reminded the panel that the 2014-15 code did not define consent. She then read the current definition of consent in the Title IX policy and told the panel that, although they were not required to use that definition, ‘it may be helpful in thinking about how the University has viewed consent,’” according to the court documents.

Walsh also presented Schultz with Doe’s previous conduct history, which revealed that Doe had previously violated a no-contact order, which Rodriguez said factored into her vote on the case, according to the court documents.

The panel voted 2-1 that Doe had violated the Title IX policy. Given that Doe “had previously been placed on probation by the University for no-contact order violations,” the panel ruled to suspend Doe until after Roe graduated.

April 19, Schultz released the panel’s written decision, stating, “Because the 2014-15 Code of Student Conduct does not explicitly define consent, the panel referred to the current Title IX policy,” according to the court documents.

Doe and Roe both appealed the decision April 25. Roe argued that Doe should be expelled from Brown. Doe argued that the panel “should not have referenced the Title IX policy because it ‘substantively changed Brown’s definition of sexual misconduct,’” according to the court documents.

Schultz oversaw the panel for both appeals, which consisted of Amariah Becker GS, Manager of Athletic Parents and Stewardship Advancement Alexandra Karppinen and Deputy Director of Athletics Colin Sullivan. The panel decided against all of Doe’s appeals, though one panelist voted to grant Doe’s appeal “because it was a procedural error to provide the panel with the Title IX policy definition.” The panel also denied Roe’s appeal.

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