Consequences

[This article is part of the nine-part series, “The Death of Campus Due Process,” which examines the policies used by colleges and universities to investigate allegations of sexual assault.

The series examines the civil case, “John Doe v. Brandeis University.” The case concerns the college’s investigation into whether a former Brandeis student committed sexual assault against his ex-boyfriend during their relationship.

These articles might not make sense if they are read out of order. Here is the table of contents for this series. I highly encourage readers to take their time reading these posts, as many are long and detailed. I also recommend reading the hyperlinked primary-source documents to learn more about the case.]

Elizabeth Sanghavi sent her special examiner’s report to Lisa Boes, Dean of Academic Services at Brandeis University, on April 16, 2014.

On April 24, 2014, Boes read John a summary she had prepared of the special examiner’s conclusions.

According to John’s amended complaint, he requested a copy of the special examiner’s report during this meeting. John’s request was denied, his complaint stated.

Nor was John was given a copy of the report at any time while the university decided his case, according to his complaint.

However, both John and Brandeis University agreed, through separate legal briefs, that the university provided John with a copy of Boes’s summary.

Primary Source: Lisa Boes’s Summary  

Thus, John was required to defend himself against a report he wasn't allowed to read, according to his amended complaint. 

In a legal brief, Brandeis University agreed that John asked Boes, and others, for a copy of the special examiner’s report and that the university denied these requests. Brandeis admitted that neither Doe nor J.C. were allowed to read the report while their case was pending. 

Brandeis University was named after Louis Dembitz Brandeis, the first Jewish justice on the U.S. Supreme Court. Brandeis sports teams are known as the Brandeis Judges. 

According to John’s amended complaint, in response to the movie incident finding, John provided Boes with the names of witnesses who would have testified that J.C. humorously recounted the movie incident to mutual friends throughout his relationship with John. Boes declined to forward those names to the special examiner for further fact-finding, according to the complaint.

In a legal brief, Brandeis University denied that John provided Boes with these names.

On May 2, 2014, John responded to Boes’s summary by supplying additional facts and names of additional witnesses to challenge the conclusions Sanghavi reached in her special examiner’s report, according to the amended complaint.

Later that month, Boes informed John that, based on her review of the special examiner’s report and John’s response, she agreed with the special examiner’s findings on all six charges.

Boes convened a three-person panel to recommend what John’s punishment should be, according to John’s amended complaint.

The panel decided John should receive a disciplinary warning, which required him to receive sensitivity training, according to the complaint.

Both John and Brandeis University agreed, through separate legal briefs, that John received a disciplinary warning and that this was the lightest possible sanction a student found guilty of sexual misconduct could have received.

The online news organization HuffPost interviewed J.C. about Brandeis’s investigation. HuffPost reporter Tyler Kingkade wrote an article with the headline, “Brandeis University Punishes Sexual Assault with Sensitivity Training,” which was published June 11, 2014.

The article stated that Doe was found responsible for committing sexual assault, taking advantage of incapacitation, sexual harassment, physical harm, and invasion of personal privacy. This was essentially correct, although Doe was technically found guilty of sexual misconduct and lack of consent, rather than sexual assault, under the Brandeis student handbook.

The article did not, however, include any description of the actual conduct Doe was found guilty of committing, nor did it include the fact that the events in question occurred during and immediately prior to a romantic relationship between John and J.C.

John’s actual name was not used in the article.

According to the HuffPost article, J.C. was taken aback when he learned what John’s punishment would be.

“Honestly, I thought it was a joke. Did they send me the wrong letter? I read the charges, and almost nothing was happening — just a slap on the wrist.”

J.C. said filing a complaint against John, and the subsequent process, was, “probably the worst experience of my entire life, and one of the hardest things I’ve ever done. I have a lot of anger, and I’m not normally an angry person.”

Nonetheless, J.C. said that he felt he needed to act to address the “scary” problem of sexual assault.

“I just needed to do something about it,” he said. “I needed to let people know this is happening.”

Ellen de Graffenreid, Senior Vice President for Communications at Brandeis University, told HuffPost that the university’s sexual assault policies attempt to balance the need to address sexual violence with maintaining a fair process for accused students.

“Brandeis strives to be a leader in combating sexual violence and will use every means at our disposal and consistent with our values to do so,” de Graffenreid said. “At the same time, we join colleagues across the country struggling to balance our commitment to support survivors, with valuing fairness, integrity and proportionality in our conduct systems.”

De Graffenreid defended the punishment Doe received.

“Research indicates that punitive measures are unlikely to be a deterrent to other offenders,” de Graffenreid said, “and that particularly harsh mandatory sanctions can have the impact of discouraging survivors from coming forward.”

John’s punishment was light compared to what it could have been. Nevertheless, through his amended complaint, John argued that his disciplinary warning carried serious long-term consequences.

According to the complaint, John’s permanent education record states that he was responsible for committing serious sexual transgressions: sexual misconduct, lack of consent, taking advantage of incapacitation, sexual harassment, physical harm, and invading personal privacy — without any explanation of the specific conduct the special examiner concluded John actually committed.

In a legal brief, Brandeis University denied that John’s educational record contains a note stating that he was found responsible for violating these school rules.

Through his amended complaint, John said he went to college with the goal of getting into law school and pursuing a career in government or public service.

According to his complaint, however, these goals will be considerably more difficult for him to achieve due to this note on his educational record.

“John will now have to disclose and defend himself against his deeply blemished university record to every law school and professional graduate school to which he applies, government and public service employers, other prospective employers, colleagues and friends who get wind of what happened, and should he run for public office, the public.”

The complaint added that through this note on his academic record, “Brandeis has effectively labeled John as a predatory sexual offender.”

Brandeis denies these allegations from John’s amended complaint.

A university appeals board rejected John’s appeal of the university’s findings on June 20, 2014. Four days later, Boes notified John of the final outcome in his case.

According to his amended complaint, John was finally given a copy of the special examiner’s report in July 2014, after the appeals panel declined his appeal.

Everything falls apart

Both John and Brandeis agreed, through separate legal briefs, that J.C. shared the university’s findings with third parties.

In June 2014, J.C. posted Brandeis University’s final outcome letter about the case to his Facebook page, and encouraged others to share it, according to John’s amended complaint. Although J.C. blacked out John’s name, J.C. identified John by name to students and to media reporters offline, the complaint stated.

In a legal brief, Brandeis University agreed that J.C. posted a redacted version of the its final outcome letter on his Facebook page.

Both John and Brandeis agreed, in separate legal briefs, that J.C. commented on the Facebook post about the letter that John was his “attacker” who had committed, “multiple forms of rape.”

According to John’s amended complaint, a few days later, J.C. again posted on his Facebook page, repeatedly referring to John, without using John’s real name, as J.C.’s “attacker,” calling John a “sexual assailant,” and claiming that John had been given a “freebie” for “rape.”

In a legal brief, Brandeis University said it lacked sufficient information to admit or deny these allegations from John’s amended complaint.

In its article about the case, Huffpost wrote about J.C.’s decision to talk about his experiences on Facebook.

“Frustrated with the outcome of his own case, J.C. posted about it on Facebook and began receiving a flood of messages from other survivors at Brandeis,” the article stated. “It was frightening, he said, how pervasive the issue appeared to be.”

According to John’s amended complaint, in Sept. 2014, J.C. posted on his Facebook page a photograph of himself wearing a poster board that stated he had been sexually assaulted. J.C. stated he would wear the poster around campus every day until he graduated, whether or not his “attacker” was expelled, according to the complaint.

Also, according to John’s complaint, another Brandeis student loudly called John a “rapist” in front of a group of Brandeis students, and the Democratic nominee for Massachusetts Attorney General, at a National Organization for Women fundraiser.

In Oct. 2014, John received a call from his internship employer for a highly-ranked public official, informing John that the employer had been “made aware” of his situation at Brandeis from “several sources” and that John was fired, according to his complaint.

That same internship employer had promised to find John a permanent job after he graduated. The employer withdrew its promise, according to the complaint, and another prospective employer with ties to Brandeis stopped responding to John’s emails after promising to hire him for the fall semester.

In a legal brief, Brandeis University said that it lacked sufficient information to admit or deny these allegations from John’s amended complaint.

John’s amended complaint alleges, “upon information and belief,” that Brandeis administrators “leaked information about the special examiner’s findings to John’s internship employer and prospective employer or recklessly failed to exercise adequate safeguards to keep the information strictly confidential as required under federal privacy laws and Title IX regulations.”

In a legal brief, Brandeis University denied leaking this information.

Under the Obama administration’s 2011 Dear Colleague letter, colleges are allowed to share the results of a sexual assault investigation with third parties.

“A postsecondary institution may disclose to anyone — not just the alleged victim — the final results of a disciplinary proceeding if it determines that the student is an alleged perpetrator of a crime of violence or a non-forcible sex offense, and with respect to the allegation made, the student has committed a violation of the institution’s rules or policies.”

The letter also states that universities are forbidden from preventing a victim from talking about the results of the school’s investigation.

“Postsecondary institutions may not require a complainant to abide by a nondisclosure agreement, in writing or otherwise, that would prevent the redisclosure of this information.”

According to John’s complaint, the investigation and the events that followed took a serious toll on John.

“Brandeis's and J.C.'s egregious conduct has caused John severe emotional distress, including panic attacks leading to suicidal ideation on at least two occasions, loss of weight and appetite, a complete inability to sleep through the night, and anxiety and depression requiring psychological counseling.”

According to John’s complaint, after these events, John asked Brandeis University to re-open his appeal, in part because John had gathered new evidence and witnesses after receiving the special examiner’s report.

According to the complaint, Brandeis denied John’s request.

Through his amended complaint, John stated he “found the environment on campus so hostile and toxic that he accelerated his graduation date to leave a university that betrayed his trust.”

John graduated from Brandeis University on Feb. 1, 2015.

On April 9, 2015, John filed a lawsuit in federal court against Brandeis University. On June 23, 2015, John filed his amended complaint, which argued that Brandeis’s investigation had been unfair and illegal.

John Doe’s lawsuit against Brandeis University

Primary Source: John’s Amended Complaint

Primary Source: Brandeis University’s Answer to Doe’s Amended Complaint

John Doe’s 52-page amended complaint was written by his attorneys Michael Schneider and Patricia Hamill. 

Hamill is a lawyer who works for Conrad O’Brien, a law firm that represents students who are found responsible by universities for sexual misconduct. 

Attorney Patricia Hamill, shown above, represented John during his lawsuit against Brandeis University.

Hamill explained her law firm’s work defending students in a press release about Doe’s lawsuit against Brandeis.

“Conrad O’Brien represents students who have been expelled, suspended, or otherwise disciplined by their colleges following campus disciplinary proceedings for alleged sexual misconduct, which are conducted pursuant to Title IX-related guidelines issued by the OCR,” Hamill stated.

“The firm has undertaken such representations on behalf of accused male students, and has filed lawsuits on the basis that the college breached its contractual obligations with respect to its handling of the sexual misconduct allegations, conducted a fundamentally unfair process, and discriminated against the student on the basis of sex under Title IX,” Hamill continued. “The issues in these representations are cutting edge, especially with respect to the claim of ‘reverse Title IX’ violations.”

Doe’s amended complaint argued that there was scant evidence to back up J.C.’s allegations and Sanghavi’s subsequent conclusions.

According to the complaint, there wasn’t, “a trace of physical or other corroborating evidence that John ever physically harmed or sexually harassed J.C.”

“There were no medical or hospital records, 911 calls, reports to campus police or law enforcement, witnesses to any incidents, or complaints by J.C. to friends, relatives, or Brandeis personnel during the entire relationship,” the complaint continued.

Through a legal brief, Brandeis University denied these claims from John’s amended complaint.

Doe disagreed with the ways in which Sanghavi decided to define key terms in the Brandeis student handbook.

Doe’s complaint stated that the special examiner’s findings were, “based on novel notions of consent, sexual harassment, and physical harm not specified in the [Brandeis student] handbook and that are at odds with traditional legal and cultural definitions.”

The complaint added that, “the findings completely ignored the context of a romantic, dating relationship.”

According to the complaint, Sanghavi, “elevated commonplace, everyday interactions in a nearly two-year consensual relationship into serious sexual transgressions,” and that “under the special examiner’s reasoning, sexual misconduct among couples in a long-term relationship is an everyday occurrence.”

In a legal brief, Brandeis University denied this claim from John’s complaint.

Primary Source: Memorandum of Law in Support of Brandeis’s Motion to Dismiss

In a separate legal brief filed on behalf of Brandeis, the university’s attorney, Antonio Moriello, replied to these critiques by stating that Sanghavi’s analysis was informed by passages in the Brandeis handbook that Doe was required to follow.

Moriello quoted from the 2013-2014 Brandeis University student handbook which states, “prior sexual activity or an existing acquaintanceship, friendship, or other relationship that has been sexual in nature does not constitute consent for the continuation or renewal of sexual activity.”

Moriello said while Doe may disagree with relevant portions of the university handbook, Doe was nonetheless required to follow them as a condition of his attendance at Brandeis.

“Doe repeatedly alleges that the findings against him are ‘absurd,’ ‘defied common sense,’ ‘ludicrous,’ and ‘arbitrary and capricious.’ The common thread running through all of Doe’s claims is that, because Doe and J.C. had a dating relationship, consent to any and all sexual activity must be assumed,” Moriello stated.  “That is not, however, the standard set forth in the R&R. Although Doe does not subscribe to these principles, they governed the accusations that J.C. made against Doe, and the special examiner was required to apply them.”

John’s amended complaint also alleged that the special examiner’s process used in John’s case lacked critical due process protections.

The complaint stated that during the investigation, Doe was inadequately informed of the allegations against him.

“The Special Examiner asked John about ‘wake up morning kisses,’ and whether John had ‘slept on the floor’ during a visit he and J.C. had made to J.C.’s father’s house,” the complaint stated. “John was forced to try to recollect events over the course of the relationship that were not imprinted in his memory because they were unremarkable.”

Regarding the movie incident, the amended complaint stated that, “it defied reason for the special examiner to have concluded that John’s ‘first move’ leading to a 21-month consensual relationship was sexual assault.”

Regarding the North Adams incident, Sanghavi relied on inconsistencies in John’s testimony about whether or not he slept on the floor.

The complaint stated that using this as a deciding factor in whether John had committed sexual misconduct was, “nothing more than a manufactured ‘inconsistency’ elicited through a patently unfair interrogation process.”

Doe said that he was at a disadvantage in maintaining consistent answers during the investigation because in the special examiner’s process, “although the accuser knows his or her story before the investigation even begins, the accused is left in the dark concerning the facts, never knowing what the accuser and witnesses actually have said, except as filtered through the special examiner.”

In a legal brief, Brandeis University denied this claim and said John was informed of the specific factual allegations against him during the special examiner’s process.

As a result of John Doe’s lawsuit, Brandeis’s investigation would be subject to scrutiny by a federal judge. 

P.S. Happy Valentine's Day.