The Investigation Begins

[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.]

Prologue

Generally, a sexual assault or sexual harassment investigation, whether in the workplace or on a college campus, begins when a woman accuses a man of some form of sexual misconduct.

But the gender of an alleged victim, or an alleged perpetrator, doesn’t always match our expectations.

Brandeis University conducted an investigation after a young man accused his ex-boyfriend of committing sexual misconduct throughout their nearly two-year relationship.

While the names of these two young men are publicly available, I have chosen to refer to the alleged victim as “J.C.” and the accused as “John Doe.” These names are used throughout the legal documents that serve as my primary sources.

This story contains sensitive and detailed descriptions of private sexual acts. While some may prefer to leave these matters to the privacy of the bedroom, an investigation of sexual misconduct requires the examination of these actions. Public evaluation of the fairness of these investigations, and the federal policies that shape them, also requires clear and honest descriptions of these intimate sexual acts.

This series also grapples with questions of whether John Doe is guilty of serious sexual misconduct and whether J.C.’s allegations against Doe are true. The answers to these questions are far from clear. I believe the risk of reputational harm, due to an unfair rush to judgment, to both Doe and J.C. warrant the use of these code-names.

If you happen to personally know either of the young men involved, do not use any information in this series to harass them. It is clear that both have suffered serious emotional distress as a result of the events that took place during their relationship, their breakup, and/or the events that followed.

Brandeis University is located in Waltham, Massachusetts, near Boston. The college has been educating students since 1948.

 The Initial Complaint

John Doe and another male student, J.C., began studying at Brandeis University as freshmen in Aug.  2011. At the time, John was 17 and J.C. was 18. By October, they agreed to be boyfriends. They were together for 21 months before J.C. broke up with John in July 2013. I will go into greater detail about John and J.C.’s relationship later in this series.

After the breakup, they attempted to remain friends.  

In the fall of 2013, J.C. was a coordinator for new student orientation, which included sexual assault training. J.C. would later tell an investigator that the training lead him to reconsider some of the events that took place during his relationship with John.

J.C. also helped lead the Spring 2014 orientation, which included sexual assault training. Because of this training, J.C. said he decided he had to do something to ensure Doe wouldn’t treat anyone else the way J.C. believed he had been treated.

On January 14, 2014, J.C. filed a Community Standards Report (CSR) with Brandeis University, alleging that Doe had engaged in “numerous inappropriate, nonconsensual sexual interactions” with J.C. from about Sept. 2011 to May 2013. The time frame referenced in J.C.’s CSR included John and J.C.’s nearly two-year relationship and the events that immediately preceded their relationship.

Primary Source: J.C.'s Community Standards Report

In an amended compliant John would later file as part of a lawsuit against Brandeis University, John said that J.C. observed a gay male student who seemed to be attracted to John in Jan. 2014.

John said that J.C. filed his CSR the day after this student declined a Facebook “friend request” from J.C.

J.C. told an investigator that he was also motivated to file the CSR due to Doe’s behavior toward a student to whom Doe was friendly. It is possible this is the same person that Doe mentioned in his amended complaint.

J.C.’s specific allegations will be detailed at length in the next article in this series.

Interim measures

According to John’s amended complaint, immediately after J.C. filed his CSR, Brandeis banned John, “from his residence, classes, paid university job, position as community advisor, student-elected position on a prominent university board, and sequestered him in a campus facility.”

Doe’s complaint criticized this action by saying that the university, “had no knowledge of any facts underlying J.C.’s non-specific, two-sentence allegation and no information remotely suggesting John was a danger to J.C. or the Brandies community.”

In a legal brief in response to Doe’s lawsuit, Brandeis University denied these claims, saying that instead that it had placed Doe on emergency suspension after J.C. filed his initial CSR against Doe.

These actions were carried out in accordance with Brandeis’s 2013-2014 student handbook, which states, “Due to the seriousness of sexual misconduct accusations, and accompanying issues that may impact the Brandeis community, any student accused of sexual misconduct may be placed on campus restriction or emergency suspension pending the outcome of any investigation or conduct process.”

Primary Source: 2013-14 Brandeis Student Handbook

Nowhere in its legal briefs did Brandeis elaborate what specific measures it took as part of Doe’s emergency suspension.

Brandeis’s actions were permitted, and some were arguably required, under the Office of Civil Rights’ interpretation of Title IX outlined in its 2011 Dear College letter regarding sexual violence.

The letter states that prior to the completion of a sexual violence investigation, a college, “must take immediate steps to protect” the alleged victim, “in the educational setting,” if necessary. The letter further states that a college may, “prohibit the alleged perpetrator from having any contact with the complainant, pending the results of the school’s investigation.”

On Jan. 15, 2014, Doe filed his own CSR against J.C. alleging that J.C., “sexually harassed” Doe and “engaged in sexual misconduct.”

On Jan. 16, 2014, two days after J.C. filed his initial CSR, Brandeis notified Doe that J.C.’s accusations raised six potential violations of Brandeis’s “Rights and Responsibilities” handbook: sexual misconduct, taking advantage of incapacitation, lack of consent to sexual activity, sexual harassment, causing physical harm, and invasion of privacy.

On Jan. 24, 2014, Doe dropped the charge of sexual harassment against J.C., but continued his allegations against J.C. for invasion of privacy and filing false claims against Doe.

J.C. spoke with HuffPost, an online news organization, about the case in June 2014.

According to a letter from J.C.’s faculty adviser to the university Title IX officer, Brandeis initially restricted J.C. from entering the school’s dining halls and asked J.C. to step down from a campus leadership position due to the charges Doe filed against J.C.

J.C. said Brandeis rescinded these restrictions after J.C. expressed his disapproval.

J.C. said Dean of Students Jamele Adams declined to tell J.C. what restrictions were placed on Doe during the investigation. J.C. said Associate Dean of Student Life Maggie Balch told J.C. that he should expect to see Doe around campus, and should report Doe if he violated the dean’s restrictions, which J.C. said he was not allowed to know.

Ellen de Graffenreid, Senior Vice President for Communications at Brandeis University, declined to comment on specific cases, but told HuffPost that alleged victims are informed if “the accused is barred from particular areas or activities,” adding, “restrictions that might be imposed by the university unrelated to the safety of the accuser would not be shared.”

De Graffenreid declined to comment on the case, except to say there were "factual errors in the information" J.C. provided to HuffPost. She did not elaborate on which parts of J.C.'s account were inaccurate or which parts differed from the university's version of events. De Grafffenreid repeatedly cited the Family Educational Rights and Privacy Act as a reason she couldn't share information regarding specific cases.

Both Doe and Brandeis agreed, through separate legal briefs, that on three separate occasions in March 2014, J.C. sent letters to multiple university administrators —including the Title IX coordinator, general counsel, senior vice president for students and enrollment, chief legal officer, director of public safety, and vice president for human resources — referring to Doe as his "attacker" and calling Doe a threat to the safety and well-being of the entire campus.

The Special Examiner process

Beginning in the 2012-2013 school year, Brandeis modified its student handbook to include the special examiner process — a distinct disciplinary procedure for allegations of sexual misconduct, sexual harassment, and discrimination.

In April 2014, the Obama Administration “White House task force to protect students from sexual assault” released a report that expressed support for colleges that enacted “special examiner” policies, also known as “single-investigator models,” to investigate allegations of sexual assault.

“Preliminary reports from the field suggest that these innovative models, in which college judicial boards play a much more limited role, encourage reporting and bolster trust in the process, while at the same time safeguarding an alleged perpetrator’s right to notice and to be heard,” the report states.  

A special examiner would be responsible for investigating J.C.’s allegations against Doe, and Doe’s allegations against J.C.

United States District Judge Dennis Salyor, who would later consider John’s lawsuit against Brandeis, said the special examiner served simultaneously as, “the investigator, the prosecutor, and the judge who determined guilt.”

Brandeis University selected attorney Elizabeth Sanghavi to be the special examiner to investigate the allegations against Doe. 

Brandeis University chose Elizabeth Sanghavi, shown above, to be the Special Examiner in John’s case.  

According to the Sanghavi Law Office website, Sanghavi is familiar with laws that affect colleges and universities.

“Elizabeth has significant experience conducting internal investigations and advising schools on policies and procedures, having done so for the Department of Education’s Office for Civil Rights (OCR) and in private practice,” her biography states. “Elizabeth conducts internal investigations for public and private secondary and post-secondary schools on a wide range of issues, including sexual violence and harassment, retaliation, and discrimination on the basis of gender, race and disability.”

Under the special examiner’s process, John would not be allowed to cross-examine J.C.

The 2013-14 Brandeis student handbook states that during the special examiner’s investigation, interviews with the accuser and the accused, “will be conducted separately and in-person.”

John’s amended complaint stated it would be up to the special examiner, alone, what questions would be asked of J.C., John Doe, and any other supporting witnesses she would interview.

The 2011 sexual violence Dear Colleague letter says that a student accused of sexual assault should not be allowed to cross-examine an alleged victim.  

“OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing,” the letter states. “Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”

In his amended complaint, John said he wasn’t allowed to question his accuser or other witnesses, or even know exactly what they told the special examiner.

In a legal brief, Brandeis University agreed that John wasn’t allowed to directly question his accuser or other witnesses but said that John was allowed to know what they told the special examiner.

Nor was John given a detailed description of the specific allegations against him before being interviewed by the Special Examiner, according to John’s complaint. Instead, he had to piece together the accusations based on the questions the examiner asked him during his interviews.

In a legal brief, Brandeis University 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.

Sanghavi would decide whether to recommend that Brandeis find Doe responsible, by a "preponderance of the evidence,” for violating various Brandeis policies relating to sexual misconduct.

Judge Saylor would later explain, “for virtually all other forms of alleged misconduct at Brandeis,” a student must be found guilty by “clear and convincing evidence,” a higher standard than the one used by the university for sexual misconduct cases.

But Brandeis was required to use this lower standard due to the Obama administration’s interpretation of Title IX in its 2011 Dear Colleague letter.

“In order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred),” the letter states. “The ‘clear and convincing’ standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX.”

It would be up to Sanghavi to interview J.C., Doe, and other witnesses to decide whether to recommend that Brandeis find Doe responsible for violating school rules by engaging in sexual misconduct.