In January 2018, I wrote about the Kafkaesque campus sexual assault tribunal at Johnson & Wales alleged in lawsuit.

The case involved all-too-common really troubling procedural twists:

A male student expelled from Johnson & Wales University in Providence, RI, has commenced suit in federal court in Massachusetts, where he lives, claiming he was unlawfully held responsible and expelled after an unfair, prejudged internal judicial process that violated not only ordinary norms of fairness, but also the university’s own guidelines.

The facts alleged and issued involved are all too familiar for these type of cases, according to the detailed factual allegations:

  • The male and female students had at least six sexual encounters, only two of which were at issue.
  • The female did not complain for one year.
  • The complaint was instigated by the female’s boyfriend, but the boyfriend could not be cross-examined because he served as the female student’s hearing advisor.
  • The accused male student was not given a copy of the complaint, he only had it read to him not long before the hearing.
  • The investigator who gathered the facts expressed support for the female student from the start.
  • The entire process from complaint to adjudication took only five weeks.
  • There was a short time to appeal, during which time the male student retained counsel, but the university would not provide the attorney with a copy of the complaint.
  • There was not record of the adjudication. making internal appeal and court challenge difficult

The case was transferred from Massachusetts federal court to Rhode Island federal court, because the events took place in Rhode Island.

A federal court judge left much of the case intact after a motion to dismiss, Court: Expelled male student can proceed on key claims against Johnson & Wales U. The judge ruled from the bench, so there wasn’t a written opinion, but here was the Text Order:

TEXT ORDER For reasons state in today’s hearing, 26 Motion to Dismiss for Failure to State a Claim is granted in part and denied in part as follows: The motion as to Count 3 is granted as to promissory estoppel, as to Count 4 is denied as to Title IX; as to Count 5 is granted as to intentional infliction of emotional distress; as to Count 6 is denied as to negligent inflection of emotion distress, and as to Count 7 is granted as to injunctive relief as a separate cause of action. – So Ordered by District Judge John J. McConnell, Jr. on 5/14/2018. (McGuire, Vickie) (Entered: 05/14/2018)

The case proceeded through discovery, and was reassigned to another judge who just ruled that key breach of contract claims, but not a Title IX claim, survived summary judgment and could proceed to trial. (Order here)

Prof. K.C. Johnson has a summary of the ruling, in which the student’s right to a “fair” hearing under J&W’s policies was the basis of the breach of contract claim:

At oral argument last month, McElroy seemed dubious about the Title IX count (which, given relevant First Circuit precedent, is very difficult for an accused student to meet in any case). Her ruling suggested that Doe would need a “smoking gun” or highly unusual statistical evidence to prove a sufficient degree of gender bias.

The ruling’s breach of contract section, however, provided a complete victory for the accused student—and with language that resembled McConnell’s broad Title IX rhetoric from the motion to dismiss decision….

“’Fair,’” McElroy correctly noted, “is not a term with a commonly accepted definition. It is conclusory: its precise meaning fluctuates with the context in which it is used.” Accordingly, the specifics of the case at hand mattered—and, indeed, procedures that might be fair in the context of a plagiarism allegation might not be in the context of a Title IX adjudication. Did fairness require the types of procedural protections—notice, access to relevant evidence, ability to submit questions of adverse witnesses—that JWU denied to Doe? McElroy concluded that “in the context of an uncounseled college junior, facing the frightening and very serious prospect of possible expulsion from school, in a case of contrary ‘he said/she said’ allegations, a reasonable juror could determine that the meaning of ‘fair’ includes being provided more protections than Doe alleges he received.”

McElroy addressed the matter in greater detail in an extended footnote. “It appears,” she observed “that JWU put a significant burden on Doe to ascertain the details of the process, rather than provide him with a detailed description.” For instance, “a reasonable jury could find that requiring Doe to discern what questions he should ask (e.g., could he propound written questions before Ms. Smith was interviewed by the panel or after she gave a statement; could he make an opening or closing statement, what would constitute ‘personal knowledge’ by a witness, would a roommate sleeping in the room close to the bathroom who heard nothing be a witness ‘with personal knowledge,’ etc.), is unfair when students are strangers to such a process and rely entirely on what is told to them to inform their understanding of what they are up against.” Her conclusion? “A reasonable juror could decide that it is not ‘fair’ to require a student who knows little or nothing to figure out what s/he does not know in order to ask productive questions.”

The Judge summarized the male students’ procedural complaints, and which assertions JWU disputed:

1. he was never given a copy of what was an 18-page statement by Smith; it was read to him at a “Pre-Hearing Conference” shortly after he was charged and he was allowed, in the presence of another student whom he chose as his “advisor,” to take notes. That is undisputed.
2. the process was not sufficiently explained to him, in that he was not told “how and if he could question any witnesses, bring any witnesses, bring and/or submit any evidence, whether there would be opening statements or closing statements.” JWU asserts that Doe was adequately informed and that he was told at least twice he should ask questions if he did not understand something or wanted more information. Doe disputes that the explanation was adequate but does not dispute he was told he could call with questions.
3. he was allowed to listen to the adjudication panel’s questioning of Mary Smith, but he was not allowed to question her or any witnesses. In JWU’s description of the process, and the Affidavits of the panelists questioning the students (EFC 54, 55, 56L it is clear that while the panelists went back and forth between the two students twice, they did not ask Doe whether he had any questions he wanted propounded to Smith.
4. the standard of proof was preponderance of the evidence. 5 JWU agrees.
5. the hearing was not transcribed, and no other record was made of it. JWU agrees.
6. his appeal should have been granted because there was new evidence of a postincident lnstagram posting by Smith. JWU contends this is not grounds for an appeal and that the evidence was not new.
7. JWU has conducted its disciplinary procedures in a gender discriminatory way. The factual assertions Doe makes in support of this contention are noted infra at n.11. JWU does not contest the specific facts Doe points to but maintains they do not demonstrate gender discrimination.

Here is the key part of the ruling:

I find that in the context of an uncounseled college junior, facing the frightening and very serious prospect of possible expulsion from school, in a case of contrary “he said,” “she said” allegations, a reasonable juror could determine that the meaning of “fair” includes being provided more protections than Doe alleges he received. 10

FN 10: For example, it appears that JWU put a significant burden on Doe to ascertain the details of the process, rather than provide him with a detailed description. It gave him copies of the relevant policies and publications, it told him he could bring “relevant” materials and “witnesses with personal knowledge” and that the Director of Student Conduct was available to answer questions. In a subsequent letter, Director Gray reiterated that he should contact her if he had any questions. A reasonable jury could find that requiring Doe to discern what questions he should ask (e.g., could he propound written questions before Ms. Smith was interviewed by the panel or after she gave a statement; could he make an opening or closing statement, what would constitute “personal knowledge” by a witness, would a roommate sleeping in the room close to the bathroom who heard nothing be a witness “with personal knowledge,” etc.), is unfair when students are strangers to such a process and rely entirely on what is told to them to inform their understanding of what they are up against. A reasonable juror could decide that it is not “fair” to require a student who knows little or nothing to figure out what s/he does not know in order to ask productive questions.

The Trump administration, through Betsy DeVos, is trying to bring due process and fairness to a lawless kangaroo court campus tribunal system, enabled by Obama administration social justice warriors, that ruins lives with reckless abandon.

Needless to say, the kangaroos do not take kindly to these reforms.

 
 
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