Special Examiner’s Investigation

[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.]

Sanghavi’s special examiner report, which was sent to a Brandeis University administrator, is labeled, “PRIVLEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION,” and was likely not intended for public release. The report was disclosed because of a subsequent lawsuit John Doe filed against Brandeis University alleging that the college conducted its investigation illegally and unfairly.

The 25-page document provides a rare glimpse into the generally secret process used by some universities to investigate sexual assault allegations.

Primary Source: Special Examiner’s Report

Sanghavi investigated 11 separate sexual misconduct allegations J.C. made against John Doe. This series will focus on four of the allegations, but if you want to read the full report, you are more than welcome to do so by clicking the link above.

There were no witnesses to any of the events that formed the basis of J.C.’s allegations against Doe, which meant that determining what happened during these interactions rested almost entirely on the testimony of J.C. and Doe.

Movie Incident

John Doe and J.C. began studying at Brandeis University as freshmen in Aug. 2011. At the time, John was 17 and J.C. was 18.

J.C. and Doe became very friendly within the first few weeks of school. One person interviewed by the special examiner recalled that it was “cute” that J.C. and Doe became best friends so quickly. Although J.C. was “out” as gay at the beginning of the 2011-2012 academic year, Doe was not.

According an amended complaint Doe would later file as part of a lawsuit against Brandeis, “when the two discussed the fact that John was sexually attracted to J.C., but was torn about whether to act on it, J.C. responded that he would never make the first move on a straight guy. That was a clear signal to John that he would have to initiate any sexual activity.”

This prompted what John described as the “first move” that lead to John and J.C.’s romantic relationship.

According to the special examiner’s report, J.C., Doe and a friend watched the movie “Mr. and Mrs. Smith” in the friend’s room in Sept. 2011.

J.C. and Doe were sitting on the friend’s bed and the friend was sitting in a chair next to the bed. According to J.C., during the movie, Doe placed J.C.’s hand on top of Doe’s erect penis and J.C. ‘froze.’ J.C. reported that he did not want the friend to know what was going on, so he didn’t say anything and let his hand go limp. J.C. said Doe then moved J.C.’s hand back and forth on Doe’s groin, massaging Doe’s penis.

Doe recalled watching Mr. and Mr. Smith with J.C. and remembered that Doe put J.C.’s hand on Doe’s penis during the movie. Doe said J. C. did not object. Doe recalled that he moved his hand off J.C.’s hand after approximately five seconds, but that despite this, J.C. kept his hand on Doe’s penis for the duration of the movie.

According to J.C., the day after the movie incident, he and Doe had a conversation about what had happened during the movie incident. J.C. told the special examiner Doe said he believed he was straight, but wanted to experiment with men. J.C. said that he was not interested in being in a sexual relationship with Doe as J.C. did not want to “deal with the mess” of dating someone in the closet. According to J.C., Doe said that he respected this and agreed to be friends.

According to Doe, however, the day after the movie incident, J.C. performed oral sex on Doe. J.C. said he did not remember performing oral sex on Doe the day after the movie incident.

Decision to begin dating

After the movie incident, J.C. and Doe began “quietly hooking up,” according to Doe, but did not immediately begin dating.

According to J.C., he was unsure whether he wanted to begin dating someone who was not out of the closet.

Gay people and other members of the LGBTQ community refer to “coming out” as the process of sharing the fact that they are gay, bisexual, lesbian, transgender, or nonbinary with friends, family, and others. “Staying in the closet” refers to withholding this information from friends, family, or others for any reason. The decision of whether, when, and how to come out is a deeply personal decision for every LGBTQ person to make, as coming out carries the risk of negative, hostile, or confused reactions by the people who matter most in their lives.

Doe recalled that he was conflicted about whether he wanted to come out because he was considering pursuing a future career in politics, and he feared that coming out might negatively affect his future chances as a political candidate.

J.C. said he felt coerced into starting a dating relationship with Doe because Doe said that he only would come out if J.C. promised to be in a relationship with Doe. According to J.C., this put him in an awkward position. J.C. and Doe had multiple conversations about this. According to J.C., Doe was very persistent, and J.C. finally said that he might consider being Doe’s boyfriend if Doe came out.

On or around Oct. 17, 2011, Doe told his parents and his best friends from his home town that he had a boyfriend. Both J.C. and Doe agreed that they began dating after this.

Dating Relationship

Oct. 2011 through July 2013

On or around Oct. 18, 2011, J.C. and Doe began dating. Several friends commented that J.C. and Doe got along well, with one stating that they were happy and “cuddly” with each other and had high opinions of one another.

Bathroom Incidents

According to J.C., almost every time that he used a communal restroom in a residence hall when Doe was present, Doe maneuvered himself to watch J.C. at the urinal. J.C. said he told Doe to stop every time and repositioned himself, so Doe couldn’t see J.C.’s penis, but that Doe would say something like, “I’ve seen your dick before. What’s the big deal?”

Doe reported that when he and J.C. were in the bathroom together, Doe would crane his head over in an obvious way and tell J.C. that Doe could see J.C.’s penis. According to Doe, J.C. responded by saying something like, “That’s fantastic. It’s not like you haven’t seen it before.”

Doe said he did not recall J.C. trying to reposition himself so that Doe couldn’t see J.C.’s penis. Doe also said J.C. never expressed any discomfort with Doe’s actions in the bathroom.

Doe said that looking at J.C.’s penis was a joke, because it was a humorous situation that Doe and J.C. were in a same-sex relationship and could use the bathroom together.

When informed of this explanation, J.C. responded that Doe refused to accept that J.C. was uncomfortable with Doe’s bathroom behavior, and Doe tried to sanitize his behavior by explaining that he was joking. J.C. said that although Doe joked about looking at J.C.’s penis, J.C. did not engage in such joking banter, but rather objected to Doe’s behavior.

J.C. also reported that sometimes when he was in a stall, Doe knocked on the door and asked to enter. J.C. said that in these situations, he refused to allow Doe to enter and that Doe then became upset and asked what was wrong with J.C.

Doe recalled that he and J.C. did sometimes go into a single-person stall together. He did not remember J.C. ever refusing to allow Doe to enter if Doe knocked.

J.C. said that at a certain point in their relationship, he knew that telling Doe to stop looking at his penis in the bathroom would be pointless because Doe continued his behavior despite J.C.’s multiple objections.

Sexual Contact While Sleeping

According to J.C., he woke up approximately 12 times in the middle of the night because Doe was humping him. J.C. said Doe’s hands were on J.C.’s body during these incidents, sometimes on his penis.

J.C. said he asked Doe to stop, but Doe did not. J.C. said he had to physically remove Doe’s arms from him.

According to J.C., on a few of these occasions, he asked Doe later in the morning not to engage in that behavior again, and that Doe responded by saying something like, “I’m just horny” or “Don’t you have any sex drive?” J.C. said these incidents occurred during the first half to two-thirds of his relationship with Doe.

According to Doe, however, he never woke J.C. up in the middle of the night with sexual activity. Doe said that in the morning, he sometimes woke J.C. by kissing him. Doe and Sanghavi discussed these kisses during two separate interviews.

During the first interview, Doe said if he kissed J.C. in the morning, sometimes J.C. said that he wanted to go back to sleep. Doe recalled that when J.C. said this, Doe sometimes replied, “Seriously?” and continued kissing J.C., unless J.C. indicated again that he really did want to go back to bed.

During another interview, Doe twice said that when he woke J.C. up by kissing him, J.C. “never” said that he wanted to go ack to bed.

When Sanghavi pointed out the inconsistency between this comment and Doe’s earlier account, Doe said that later in the morning, around 10:00 AM, J.C. would never say that he wanted to go back to bed, but that if Doe tried to wake him up earlier, at about 8 AM, J.C. might have said that he wanted to go back to bed.  

Performing Oral Sex on J.C.

According to J.C., approximately three to four times during his relationship with Doe, Doe offered to give J.C. ‘head’ and J.C. declined the offer, but Doe then put J.C.’s penis in Doe’s mouth. J.C. said that he was flaccid during these incidents, that he told Doe to stop, and that Doe gave up after a short time. J.C. recalled that if he objected to this sexual activity, Doe was annoyed and angrily went to bed.

J.C. said the last time one of these incidents happened was in May 2013, when Doe visited J.C. at his father’s house in North Adams, Massachusetts.

According to J.C., he asked Doe after Doe tried to perform oral sex without J.C.’s consent whether Doe realized this was sexual assault.

Based on interviews with J.C., Doe became very upset, got out of bed and lay on the floor, said that he loved J.C. too much to assault him, and commented that he could not believe that J.C. was accusing him of assault. J.C said that Doe convinced J.C. that he was wrong. J.C. asked that Doe forget about the conversation and apologized to Doe. According to J.C., the logical part of his brain was not sorry for raising the issue, but he wondered how he could accuse someone who he loved of such a horrible thing.

Doe denied that he ever performed oral sex on J.C. without his consent. Doe said he sometimes asked J.C. whether Doe could give J.C. “head.” According to Doe, if J.C. answered “No,” Doe replied “Seriously?” and moved away from J.C.

If J.C. indicated again that he was not interested, then Doe did not continue. Doe recalled that he would be annoyed if J.C. did not want Doe to perform oral sex, and would turn over.

In his amended complaint, Doe said that not once during the 21 months Doe and J.C. were together did J.C. complain to Doe that he was performing any sexual act without J.C.’s consent or was invading J.C.’s privacy.

During the first interview in which Sanghavi discussed the North Adams’ trip with Doe, he said that he remembered the trip being “normal.” Doe said J.C. did not accuse him of sexual assault during this trip. During this interview, Doe did not discuss lying on the floor.

In a follow-up interview, when Sanghavi specifically asked about lying on the floor, Doe initially said that he did not remember if he slept on the floor, then said that he thought he slept on the ground due to heat, not an argument.

Breakup

In July 2013, J.C. broke up with Doe over the phone. J.C. and others J.C. spoke with after the breakup said that he felt Doe called too often, did not stand up enough for his beliefs, and was not strong-willed or forceful enough. J.C. and Doe’s friends were surprised by the breakup.

Initial disclosure of sexual misconduct

In the fall of 2013 and the spring of 2014, J.C. was part of new student orientation at Brandeis, which included sexual assault training. J.C. said this training forced him to start thinking about what he viewed as sexual harassment within his former relationship with Doe.

J.C. said that thinking about these events overwhelmed him and kept him awake at night. J.C. said he considered ending his education at Brandeis. After thinking the matter through, J.C. decided he would continue his studies at the university.

On or around January 10 or 11, 2014, J.C. told two of his friends that he had been the victim of nonconsensual sexual activity because of Doe’s actions. Due to redactions in the special examiner’s report, it isn’t clear which statements can be attributed to each of J.C.’s friends.

Specifically, J.C. told both friends that Doe had sexually assaulted him. J.C. told one friend that Doe had not, however, raped him. J.C. differentiated rape from sexual assault by stating that rape involved penetration.

A friend who talked to J.C. said he was sobbing that the she had never seen him “anything but happy” before. J.C. told a friend that he was disgusted by Doe. The friend described J.C. as crying for a long time. 

J.C. also called his sister around this same time and said that he had been assaulted by Doe. J.C. called late at night, which according to his sister was unusual, and before he began to speak, he began sobbing and had difficulty breathing.

On January 14, 2014, J.C. filed his initial community standards report with Brandies University, which initiated the special examiner’s process.

The incidents described in this article are some of the main allegations J.C. made accusing Doe of sexual misconduct. It would now be up to Sanghavi to weigh the evidence and determine if Doe was responsible for violating the terms of the Brandeis student handbook. 

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. 

Dear Colleague Letter

[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.] 

Colleges and universities shaped their policies regarding sexual assault in response to a 2011 letter that outlined the U.S. Department of Education’s interpretation of a federal civil rights law.

Title IX (pronounced “title nine”) is a subsection of the Education Amendments of 1972, which was approved by both houses of the U.S. Congress and signed into law by President Richard Nixon.

Title IX states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

Title IX is perhaps best known for requiring schools to provide equal opportunity for men and women to participate in athletic programs.

But the law applies to many other school policies as well.

 In April 2011, Russlynn Ali, Assistant Secretary for Civil Rights at the U.S. Department of Education, an Obama Administration official, wrote a Dear Colleague letter to schools across the country.

Primary Source: 2011 Sexual Violence Dear Colleague Letter

President Barack Obama nominated Russlynn Ali, shown above, to be Assistant Secretary for Civil Rights at the Department of Education.

 Ali was appointed by Obama and confirmed by the US Senate in 2009. 

In the letter, Ali explained how the Office for Civil Rights (OCR), a subdivision of the U.S. Department of Education, interprets schools’ responsibilities under Title IX with regards to allegations of sexual violence.

Supporters of the letter believe that its guidance encourages colleges and universities to adopt policies that protect victims of sexual violence, allowing victims to continue to access higher education. Opponents of the letter believe that its requirements eliminate essential due process rights for students accused of sexual misconduct.

It might not be immediately clear from the text of Title IX that it places any requirements on colleges regarding sexual violence. The law addresses sex discrimination and doesn’t so much as mention sexual assault, sexual violence, or any similar term.

To understand Ali and the Obama administration’s interpretation of Title IX, it’s best to think of the law as if it were a Russian Matryoshka doll. A Matryoshka doll is a wooden doll that opens up to reveal a smaller doll inside. Inside the smaller doll, there is a third, even smaller doll.  

The Dear Colleague letter interprets Title IX like one of these Russian dolls. Sexual violence is viewed as a form of sexual harassment and sexual harassment is viewed as a form of sex discrimination, which the Office of Civil Rights has the power to regulate under Title IX. 

 Federal courts and the Obama Administration interpreted Title IX as if it were a Russian doll. 

The U.S. Supreme Court and federal judges created this Russian-doll interpretation of Title IX over the course of several decades through a series of interlocking legal precedents.

The Dear Colleague letter outlines several policies colleges must follow to be consistent with OCR’s interpretation of Title IX.

The letter defines sexual violence as, “physical acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.”

The letter further clarifies that it interprets Title IX’s prohibition of sexual violence to include rape, sexual assault, sexual battery and sexual coercion.

The letter requires that a school’s nondiscrimination policy cover acts of sexual harassment and sexual violence.

According to the letter, colleges and universities have a responsibility to conduct a prompt, thorough, and impartial investigation if a student alleges that he or she has been sexually victimized by another student. Colleges must conduct this investigation, even if law enforcement officers are conducting a criminal investigation into the same conduct.

The letter further outlines OCR’s requirements for how the school’s investigation should proceed.

Prior to the completion of the investigation, schools, “must take immediate steps to protect the student in the educational setting,” if necessary. Schools may also, “prohibit the alleged perpetrator from having any contact with the complainant, pending the results of the school’s investigation.”

Critics of the letter say such actions punish an accused student before he or she has been found responsible of any wrong-doing.

OCR also prohibited schools from allowing an accused student or an alleged victim to directly cross-examine the other person during the investigation.

“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.”

Opponents of the letter say that this requirement eliminated a critical protection for students accused of sexual misconduct.

Sexual violence cases are incredibly difficult to prove in the criminal justice system because juries often don’t have much more to work with than the claims of an alleged victim and the accused. That is why these trials are sometimes referred to as “he said/she said” cases.

During a criminal trial, a defendant’s lawyer can cross-examine victims if a prosecutor presents them to testify before the jury. Critics of the Dear Colleague letter say that preventing cross-examination makes it difficult for an accused student to challenge the allegations against him or her.

The Dear Colleague letter also states that these investigations must use a “preponderance of evidence” standard to determine if someone is responsible for committing an act of sexual violence. The preponderance of evidence standard requires that it be more likely than not that a student committed a violation of the school’s sexual violence policy for the student to be found guilty.

This is the standard used in civil cases in the United States, and it would be the standard applied if an alleged victim of sexual violence sued a university for failing to uphold its responsibilities under Title IX.

In criminal cases, a defendant can be convicted only if he or she is found guilty of breaking a law “beyond a reasonable doubt.” This is a significantly higher standard than the preponderance of evidence requirement.

Prior to the Dear Colleague letter, many colleges used a “clear and convincing” standard to determine if students were guilty of committing an act of sexual violence. This standard is harder to prove than “preponderance of evidence” but easier to prove than “beyond a reasonable doubt.”

By lowering the standard of proof required for a student to be found guilty, OCR made it more likely that an investigation would result in a finding that a student was responsible for committing an act of sexual violence.

The letter concludes by stating that it hopes schools voluntarily comply with its interpretation of their Title IX requirements. If OCR determines a school is out of compliance with the federal law, however, the letter states the agency may, “initiate proceedings to withdraw federal funding by the department.”

While schools are responsible for setting their own sex discrimination, sexual harassment, and sexual violence policies, they are under intense pressure to conform with OCR’s interpretation of their requirements under Title IX, at least if they wish to continue to receive federal funding.

The policy recommendations in the Dear Colleague letter played a significant role in the procedures used by Brandeis University to investigate a student accused of sexual misconduct in 2014. Brandeis’s investigation illustrates the impact that OCR’s sexual assault policies have had on college campuses throughout the US. 

The Death of Campus Due Process

How universities eliminated the rights of students accused of sexual assault

[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.] 

Introduction

 In recent months, American citizens have been engaged in a national discussion about sexual assault and sexual harassment following in-depth investigative reporting into the misconduct of powerful men in politics, the news-media and Hollywood.

Stories about the behavior of Donald Trump, Harvey Weinstein, Al Franken, Charlie Rose, and Matt Lauer, among others, have prompted a dialog about sexual misconduct in the workplace.

The severity of the allegations against each of these men is different. 

 

Each man deserves to have the allegations against him to be considered individually, as opposed to having the public reach a collective judgement for all men who are accused of sexual misconduct through the press.

The public should also judge each of the accused based upon the total weight of evidence against him. But all of their stories share the common theme of several women coming forward with allegations of sexual misconduct.

As employers, political parties, and other institutions begin considering changes to their workplace policies, they will have to define the vague and potentially broad concepts of sexual harassment and sexual assault.

Another difficult, if not impossible, challenge concerns how to create workplace sexual harassment policies that ensure victims feel comfortable coming forward, deliver punishments that are proportional to an employee’s misconduct, and provide due process for the accused.

As our country engages in this difficult, but necessary, discussion, I believe we could gain a lot by studying a related subject, the debate over the ways in which colleges and universities investigate and punish sexual harassment and sexual assault.

Over the past decade, colleges and universities across the United States have taken steps to make it easier to find students guilty of committing sexual assaults against fellow students. These changes have been adopted in response to a “Dear Colleague” letter written by an Obama administration official in 2011, which interpreted the responsibilities of colleges and universities under a federal civil rights statute.

Supporters of this letter believe that its guidance encourages colleges and universities to adopt policies that protect victims of sexual violence and allows victims to continue to access higher education. Opponents of the letter believe that its requirements eliminate essential due process rights for students accused of sexual assault.  

Last year, the Trump administration withdrew this Dear Colleague letter. That decision was just one of many ways the new administration has reversed Obama-era policies.

I believe the debate over how colleges and universities handle allegations of sexual assault is one of the most important and under-covered policy stories of the past decade.

Colleges and universities have difficult, and incredibly important, decisions to make regarding how they define, investigate, and punish sexual assault.

Consider the following scenario.

During a meeting with a college administrator, a student says they have been sexually assaulted by a fellow classmate from the same college.

What should the administrator do? They could encourage the student to file a report with the local police, which could lead to criminal charges against the alleged perpetrator. But what obligation should the school have above and beyond the role that law enforcement might play?

The school could conduct its own investigation to determine whether any school rules have been broken. But how should a school investigate such a sensitive matter? Are students and professors on college disciplinary panels qualified to adjudicate these kinds of criminal allegations? Should the school take steps to make sure the alleged victim and the accused don’t come into contact in the classroom, university housing, or on the campus as a whole? If so, when should these steps be taken?

There are no easy answers.

A student from Brandeis University, a private Massachusetts college, identified in legal documents as an anonymous “Jon Doe,” sued Brandeis, claiming the college had conducted an unfair and illegal investigation into whether he had committed sexual assault against his former boyfriend during their relationship.

John Doe v. Brandeis University provides clear examples of the challenges faced by colleges and policy-makers in determining how best to handle allegations of sexual assault on college campuses. The next several articles will examine this case in detail and analyze how it can inform our national debate about how colleges and universities should respond to allegations of sexual assault. 

 

 

Table of Contents

The Death of Campus Due Process

1.     Introduction

2.     Dear Colleague Letter

3.     The Investigation Begins

4.     Special Examiner’s Investigation

5.     Special Examiner’s Conclusions

6.     Consequences

7.     Judge Saylor’s Ruling

8.     Conclusion

9.     Commentary

Kangaroo Courts

[The following skit is a satirical take on some of the less productive ways that we often discuss sensitive issues surrounding race, gender, and other social categories. 

 

If you enjoy this comedic post, you might also enjoy my skits on sex education, President Barack Obama, MSNBC, and the 2012 Republican presidential candidates.]

In the privacy of his own home, a lawyer practices an argument he is going to present at trial.

“Your honor, due to prosecutorial misconduct, my client has effectively been subjected to the whims of a kangaroo court.” 

 

 

A kangaroo knocks down the door to the lawyer’s home and goes off on a tirade.

“I have had it with you Placentals and your anti-Marsupial bigotry. Just because your offspring develop inside your mothers’ bodies, you think you are so much better than the rest of us in the Mammalian Taxonomic Class,” the Kangaroo begins.

“I’ll have you know that kangaroos cherish the right to adequate due process in our courts," the marsupial continued. 

 

"Our defendants have the right to expert counsel; the right to cross-examine accusers, and other prosecution witnesses; the right to testify on their own behalf, or alternatively, to remain silent, to avoid self-incrimination; and the right to be presumed innocent, unless proven guilty, beyond a reasonable doubt, by a jury of their peers.

“And unlike your courts, Kangaroos actually adequately fund our public defenders.”

The human lawyer is baffled by the concept of a talking kangaroo, let alone one who can so passionately defend the right to due process.

The lawyer responds, “It’s just an old saying. It’s catchy. I didn’t realize Kangaroos even had courts.”

The Kangaroo replies, “Maybe you should do some fucking research before you go talking about subjects you know nothing about. Just like an American to go around judging the rest of the world when you don’t even have your own shit together.”

The lawyer elaborates, “I’m sorry. I didn’t mean to offend.”

With a smug look of someone who has won an unnecessary argument, the kangaroo concludes, “Next time, remember to check your privilege before you open your big mouth.”

The Kangaroo hops away.

 

Scene change to the lawyer’s bedroom, where the lawyer is asleep in bed. 

 

The lawyer awakes and remarks, “I have the weirdest dreams. I should probably spend a little less time on Tumblr.”

Cosplay Convention

It takes a lot of self-confidence to dress in public as your favorite fictional character. This weekend, costume enthusiasts gathered to share tips, tricks and ideas on how best to create these outfits at the Figments and Filaments Costuming Convention in Independence, Missouri.

The conference was held at the Hilton Garden Inn on Friday, Saturday and Sunday. I was able to attend on Sunday and take a few pictures of some great costumes.

Eva Birch, who works as a paramedic in Neosho, MO, dressed as the supervillain Poison Ivy from the Batman series. Eva has created cosplay costumes for around three years and says the hobby requires hard work, commitment and persistence. Her Facebook fan page is named The White Dragon Armory and Cosplay.

Jordie Smith dressed as the personification of a synthetic computer voice named Kaito. The voice and character were created by the Yamaha Corporation for the Vocaloid singing synthesizer. 

Jordie appeared at the convention representing the Hammerspace Community Worshop based in Kansas City. At the workshop, members can create arts, crafts, electronics and many other interesting things. You can learn more about Hammerspace Community Workshop on their website.

Mandea Bermudez wore a costume she plans to wear to the Kansas City Renaissance Festival later this year. She is part of the cosplay group Lady Dax and Squires, which has a Facebook fan page.

Michelle Lana, left, wore a steam punk costume. Amanda O’Leary wore a steam punk Red Riding Hood costume. They both work at Amanda Lynn Chainmaille in Overland Park, Kansas. The company’s website has more photos of their merchandise in action.

Hillz and Rae, the Super Sirens, have both cosplayed for many years. On Sunday, they dressed as Daphne and Velma from Scooby Doo. They have photos of some of their many other outfits on their website.

I also purchased several items from the venders at the conference. I was finally able to buy special effects contact lenses, which I thought were cool the first time I saw them used in cosplays on the website DeviantArt. I have never used contacts before, so I will make sure I consult with an optometrist before I use the product. The lenses are from U.S. Toy Magic and Costume Shop in Leawood, KS.

I bought a Raven neckless because she is my favorite character from the children’s cartoon Teen Titans. I also purchased a steam punk neckless, green tie-die shirt, Lemon Peppermint Bliss Tea and two coasters in the shape of rubix cubes.