Judge Saylor’s Ruling

[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.]

Legal background

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

The case was assigned to United States District Judge F. Dennis Saylor IV.

On July 14, 2015, Brandeis University filed a motion to dismiss the case.

On a motion to dismiss, a federal court assumes that the claims in a plaintiff’s complaint are true. Courts do this to determine whether a plaintiff could prove that a defendant broke the law, assuming all factual disputes are decided in the plaintiff’s favor.

If a plaintiff couldn’t win a case even if a judge or jury concluded all his factual claims were correct, there would be no reason to hold the trial in the first place.

At this stage in the case, the question before Judge Saylor was not whether Doe was responsible for sexual misconduct or whether Brandeis University had broken the law. Instead, Judge Saylor was merely deciding whether the case would be allowed to continue.

Saylor ruled on Brandeis’s motion to dismiss on March 31, 2016 with an 89-page opinion that was highly critical of the procedures the university had used to investigate the allegations against John Doe.

Primary Source: Judge Saylor's Ruling on Brandeis's Motion to Dismiss

High stakes

In his opinion, Saylor, citing legal precedent, wrote that schools are obligated to provide “basic fairness” to students through their disciplinary proceedings. 

Judge Saylor, shown above, was nominated by President George W. Bush. Saylor was confirmed by the U.S. Senate in 2004. 

Saylor began his analysis regarding whether Brandeis provided Doe with “basic fairness” by explaining that there were high stakes for Doe in the outcome of his investigation.

“Here, the charges made by J.C. involved a serious subject matter: a claim of repeated acts of alleged sexual assault — indeed, purported sexual ‘violence’ — over a period of nearly two years. The consequences of a finding of ‘responsibility’ for those offenses are substantial indeed.” 

Specifically, Saylor said that Doe could become ineligible for campus housing, lose opportunities to participate in campus activities or campus employment, or even be suspended or expelled for violating Brandeis school rules.

Saylor said Doe’s future colleges or jobs could require disclosure of disciplinary actions Brandeis had carried out.

According to Saylor, the investigation could also have severe consequences for Doe’s public reputation.

“A Brandeis student who is found responsible for sexual misconduct will likely face substantial social and personal repercussions,” Saylor wrote. “It is true that the consequences of a university sanction are not as severe as the consequences of a criminal conviction. Nevertheless, they bear some similarities, particularly in terms of reputational injury. Certainly, stigmatization as a sex offender can be a harsh consequence for an individual who has not been convicted of any crime, and who was not afforded the procedural protections of criminal proceedings.”

 Judge Saylor examines the Dear Colleague letter

However, Judge Saylor said private universities, like Brandeis, deserve some deference in how they discipline student behavior.

“Courts must recognize and respect the strong interest of a private university in managing its own affairs,” Saylor said. “Furthermore, ensuring allegations of sexual assault on college campuses are taken seriously is of critical importance, and there is no doubt that universities have an exceedingly difficult task in handling these issues.”

Saylor also explained that many universities, not just Brandeis, have modified their policies for investigating and adjudicating allegations of sexual assault.

“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,” Saylor said.

According to Judge Saylor, many colleges were compelled to make these changes in response to a Dear Colleague letter sent by the Obama Administration in 2011.

“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,” Saylor said. “Because the changes to the process were impelled in large part by the federal government, the issues presented here are not entirely unique, and not confined to a single campus.”

While Saylor was sympathetic to the goals of those wishing to prevent sexual assault and punish wrongdoers, he said that universities have adopted policies that eliminate valuable due process protections for students accused of misconduct. 

United States District Judge F. Dennis Saylor IV

“The goal of reducing sexual assault, and providing appropriate discipline for offenders, is certainly laudable,” Saylor said. “Whether the elimination of basic procedural protections — and the substantial increased risk that innocent students will be punished — is a fair price to achieve that goal is another question altogether.”

Saylor said these changes come at a high price for students accused of committing sexual assault. 

“Each case must be decided on its own merits, according to its own facts,” Saylor wrote. “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.”

An investigation without due process

In his ruling, Judge Saylor said Brandeis’s special examiner’s process lacked several important due process protections.

“Here, Brandeis failed to provide a variety of procedural protections to John, many of which, in the criminal context, are the most basic and fundamental components of due process of law.”

Instead, Saylor said that the procedure, “substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.”

In his amended complaint, John said he was not provided information regarding the specific allegations made against him by J.C. before he was interviewed by the special examiner.

Saylor said that John’s lack of information may have significantly hindered his ability to defend himself.

“There is little practical difference between a school failing to inform the accused of the charge against him or, as here, having informed him of the formal charge, refusing to provide him with the specific factual conduct alleged to have given rise to the charge,” Saylor wrote. “This was not a dispute about a single isolated event; it involved a lengthy and apparently tangled relationship that went on for nearly two years. Brandeis’s failure to inform John of the details of the charges appears to have had a significant adverse effect on his ability to prepare a defense.”

A major factor in the special examiner’s analysis of the wake-up morning kisses and North Adams incident was that J.C.’s story remained consistent, while Doe’s story changed.

Saylor said these inconsistencies could merely be the result of the fact that Doe was unaware of the specific allegations against him.

“Such a discrepancy, however, is exactly what one would expect where one party is fully informed of the subject matter of the inquiry and the other remains ignorant, and has to surmise the specifics of the charges over the course of the investigation.”

In a legal brief filed by Brandeis University after Judge Saylor’s ruling on its motion to dismiss, the college denied that John had to piece together the allegations against him through the special examiner’s questions. Instead, Brandeis said John was informed of the specific factual allegations against him during the special examiner’s process.

Likewise, after the conclusion of Sanghavi’s investigation, Doe was not allowed to see her full report, until after his final appeals had been exhausted. Instead, he was provided with a copy of a summary of the report prepared by a Brandeis administrator.

Judge Saylor was critical of the university’s decision to withhold the report from Doe.

“He was thus forced to defend himself in the sanctions phase of the proceeding, and to prepare his appeal, without access to the very document in which his guilt was determined,” Saylor wrote. “During the sanctions and appeals part of the proceeding, the special examiner — and every administrator and faculty member who determined John’s fate — had access to the report. John, however, did not.”

Saylor said John was also harmed during this investigation because he was not allowed to have an attorney present during his testimony before the special examiner. Many are familiar with the Miranda warning often read by police to criminal suspects, which includes the line, “you have the right to an attorney.”

But according to Saylor, John did not have this right when he was being investigated by Brandeis.

“Brandeis did not permit John to have counsel in connection with the special examiner’s investigation, either to participate actively or to render passive advice,” Saylor wrote. “Nonetheless, Brandeis engaged an outside attorney, presumably with years of experience and training, to investigate and prosecute serious charges of sexual assault and other sexual misconduct. But it expected a student, approximately 21 years old, with no legal training or background, to defend himself, alone, against those same charges.”

Doe didn’t claim in his amended complaint that he had been denied access to a lawyer during the process, and thus Brandeis did not respond to the claim in its legal briefs.

It is possible Saylor reached this conclusion based on a passage from the 2013-14 Brandeis student handbook which states that a student may have an attorney serve as his advisor if “co-existing criminal proceedings exist.”

None of the legal documents associated with Doe’s case mention any criminal charges related to J.C.’s allegations. This might have been the basis for Saylor’s conclusion that Doe was not allowed access to counsel.

Brandeis did not allow John to cross-examine J.C. or other witnesses interviewed by the special examiner. Saylor was critical of this Brandeis policy as well.

“Presumably, the purpose of that limitation was to spare J.C. the experience of being subject to cross-examination,” Saylor said. “While protection of victims of sexual assault from unnecessary harassment is a laudable goal, the elimination of such a basic protection for the rights of the accused raises profound concerns.”

Saylor quoted legal scholar John Henry Wigmore who said that cross-examination is, “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

Judge Saylor added that cross-examination is especially important in cases like Doe’s, where one of the most important issues is the credibility of an accuser.

“Here, there were essentially no third-party witnesses to any of the events in question, and there does not appear to have been any contemporary corroborating evidence,” Saylor said. “The entire investigation thus turned on the credibility of the accuser and the accused. Under the circumstances, the lack of an opportunity for cross-examination may have had a very substantial effect on the fairness of the proceeding.”

Nor was Doe allowed to cross-examine other witnesses interviewed by the special examiner. Saylor said this also made it harder for Doe to effectively defend himself.

Saylor also analyzed the role played by Special Examiner Elizabeth Sanghavi herself.

In a legal brief, Brandeis said it hired Sanghavi, “a neutral third-party attorney,” to serve as special examiner. Brandeis added that after the investigation, Sanghavi, “issued a thorough and balanced report in which she found that some, but not all, of J.C.’s allegations had merit.”

Judge Saylor was critical of giving Sanghavi such a large role in Doe’s investigation.

“Under the special examiner process, a single individual was essentially vested with the powers of an investigator, prosecutor, judge, and jury,” Saylor said. “The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.”

After the conclusion of the special examiner’s investigation, Brandeis Dean Lisa Boes provided John with a summary of Sanghavi’s report. Boes heard Doe’s response to the special examiner’s findings before concluding that Doe was responsible for violating the six school rules Sanghavi's report had concluded Doe had broken.

Doe was able to appeal this decision, reached only by two people, Sanghavi and Boes, through a university appeals board. But, as Saylor explained, the appeals board could only consider certain aspects of the proceeding investigation.

“The special examiner process, as set forth in the 2013-14 handbook permitted an appeal on only four grounds: fraud, ‘denial of rights under this process,’ ‘procedural error,’ or ‘the claim of new evidence not previously available, which would have materially affected the decision,’ Saylor said. “Conspicuously absent from that list is the ability to appeal on the ground that the special examiner’s decision was not supported by the evidence, or that it was otherwise unfair, unwise, or simply wrong. The special examiner, for all practical purposes, had the first and only say in determining John’s guilt.”

Another policy that played a key role in the outcome of Doe’s case was Brandeis’s decision to use the “preponderance of the evidence” standard to decide sexual assault cases.

But for, “virtually all other forms of alleged misconduct at Brandeis,” Saylor said Brandeis used the stricter standard of “clear and convincing evidence.”

The use of this lower standard, by itself, was not necessarily problematic, Saylor said, as the standard is often used in civil cases, even to decide important matters. Saylor was concerned by this policy, however, because of other policies adopted by Brandeis to investigate allegations of sexual assault.

“The lowering of the standard appears to have been a deliberate choice by the university to make cases of sexual misconduct easier to prove — and thus more difficult to defend, both for guilty and innocent students alike,” Saylor wrote. “The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.”

Faulty reasoning

Judge Saylor was critical of the reasoning Special Examiner Sanghavi used in her report.

Saylor said Sanghavi was wrong to conclude that John was guilty of committing “violence” by waking J.C. in the morning with kisses and continuing to kiss him after he said he wanted to go back to bed.

“To reach that result, she essentially stitched together a series of broad generalizations — kissing is a sexual activity; a sleeping person is physically incapacitated and therefore cannot give consent; the existence of a relationship is not relevant to consent; sexual activity without consent is sexual misconduct; sexual misconduct is a form of violence — to reach a conclusion that seems at odds with common sense and the ordinary meanings and definitions of words.”

Saylor was also critical of Sanghavi’s analysis that J.C.’s excessive use of alcohol after his breakup with John bolstered the credibility of J.C.’s claims that John had sexually assaulted him.

“The special examiner may have engaged in a classic post hoc fallacy, reasoning that because the alcohol abuse occurred after the breakup of the relationship, it must have been caused by the relationship,” Saylor said. “J.C.’s abuse of alcohol may have been a direct product of sexual misconduct by John, or it may have been the product of a variety of different factors.”

But Saylor’s biggest critique of Sanghavi’s reasoning was reserved for the lack of weight Saylor believed the special examiner placed on the significance of John and J.C.’s romantic relationship.

“She substantially discounted the importance of the fact that the two students were in a romantic relationship for 21 months; that they appeared happy and comfortable together; and that J.C. had never reported any sexual misconduct to anyone during that period,” Saylor said. “There are few things in life as complex as a long-term relationship. It is perhaps impossible to expect anyone to plunge into the labyrinth of a lengthy emotional and sexual relationship between two young adults and hope to emerge with a clear understanding of what happened and why.”

In her report, Sanghavi wrote, “sexual misconduct does occur in dating relationships and such conduct can occur for years,” which lead her to conclude, “The fact that Doe and J.C. were in what appeared to be a happy dating relationship and J.C. did not inform friends about his allegations in the relationship, therefore, does not bolster Doe’s credibility or weaken J.C.’s credibility.”

Judge Saylor agreed that sexual misconduct can occur in long-term relationships, but he said this fact doesn’t mean the existence of a relationship is meaningless to the context in which Doe’s alleged misconduct would have taken place.  

“The question of consent is strongly affected by the nature of the relationship between the parties,” Saylor said. “It is absurd to suggest that it makes no difference whatsoever whether the other party is a total stranger or a long-term partner in an apparently happy relationship.”

Saylor said romantic partners often learn each other’s preferences, allowing non-verbal consent to sometimes take place before sexual interactions.

“Normally, over the course of a long relationship, the parties develop implicit and explicit understandings that affect their behavior, including certain forms of non-verbal consent. Actions that might be inappropriate between strangers or casual acquaintances may be viewed entirely differently by long-term partners,” Saylor wrote. “Again, the existence of a relationship does not give someone the right to commit sexual assault. But neither is it meaningless and irrelevant when evaluating the question of consent.”

Conclusion

Saylor concluded that Doe plausibly alleged that Brandeis had denied Doe the “basic fairness” to which he was entitled. Saylor allowed Doe’s lawsuit against Brandeis to continue.