Just after I wrote Wednesday’s due process legal update, a federal judge ruled against Brown University in a breach of contract lawsuit brought by a student suspended from Brown for sexual misconduct. While the decision is a victory for the student plaintiff, the judge’s opinion is also a powerful reminder of how few legal rights a court may recognize at a private university. It is imperative, therefore, that prospective students and their parents read a private university’s student handbook and other policy materials before deciding to enroll. To borrow a phrase from an old FIRE awareness campaign, you really must “know before you go.”
Wednesday’s ruling is significant because it is one of the few decisions on the merits in the many lawsuits brought by students accused of sexual misconduct. While there have been a number of rulings favorable to due process and fundamental fairness over the past year, most have come in the early stages of litigation, and did not result in a conclusive finding that a university had violated a student’s rights. Here, the judge ruled, after a bench trial, that Brown had breached its contract with the student.
The case stems from a sexual encounter between plaintiff John Doe (a pseudonym) and his accuser Ann Roe (also a pseudonym) that took place during the 2014–2015 academic year. However, Roe did not file a complaint against Doe until 11 months later, by which time Brown had adopted a substantially revised Title IX policy for the 2015–2016 academic year. Although Doe was ostensibly tried under the 2014–2015 policy, the panel hearing his case was permitted to consider certain aspects of the new policy—including a very broad new definition of consent—when deciding his case.
It was this fact—the “fundamental disconnect” between the policy and procedure in place when the incident occurred versus when the case was heard—that led Chief Judge William Smith to rule that Brown had breached its contract with Doe, and that Doe was entitled to a new hearing.
But Judge Smith’s opinion also makes quite clear that the court takes no legal issue with the substance of Brown’s new Title IX policy, which employs an affirmative consent standard and uses a single-investigator model to resolve claims. For those of us who are deeply troubled by both the affirmative consent standard and the single-investigator model from a fairness perspective, this is disappointing. But it is not entirely surprising: Courts are deeply reluctant to interfere in the inner workings of university judicial systems, particularly at private institutions.
So, for example, even though the court explicitly notes that Brown’s new policy “appears on its face to make any use of manipulation a violation, everything from a bribe to the old school use of presents and flattery,” the court does not suggest that such a policy, when clearly applicable to a student’s conduct at the time of his alleged offense, would be legally problematic. Rather, the court wrote that Brown, “as a private university, has ample discretion in designing its disciplinary process.”
When we talk to the families of students facing serious misconduct charges at private universities, they often express shock at how easily the school can jeopardize a student’s future while giving him or her so few rights. This case, while a legal victory for the plaintiff, underscores this problem. So please, don’t assume when you sign that enrollment agreement with your university that they will always have your best interests in mind. Instead, really read the school’s policies and think about what it would look like if you or someone you loved was accused of misconduct.
Now more than ever, you need to know before you go.
EDITOR’S NOTE: This piece is the final installment of FIRE’s “Twisting Title IX Week,” celebrating the release of FIRE Executive Director Robert Shibley’s new book, Twisting Title IX. This week, we’re featuring a series of Title IX articles to get you caught up on how this law is being used in unconstitutional and unlawful ways to threaten civil rights on campus. To learn more, pick up Robert’s book today.