Doe v. Brandeis Univ.

Decision Date08 February 2023
Docket NumberCivil Action 20-CV-12162-AK
PartiesJOHN DOE, Plaintiff, v. BRANDEIS UNIVERSITY, Defendant.
CourtU.S. District Court — District of Massachusetts


Hon Angel Kelley United States District Judge

This is a Title IX action in which a former Brandeis University (Brandeis) student seeks monetary and injunctive relief against the university, alleging that it unlawfully adjudicated a sexual assault allegation filed against him. In addition to his Title IX claim, the plaintiff-who is proceeding under the pseudonym John Doe (Doe) [see Dkt. 7]-brings Massachusetts law claims for breach of contract, breach of the covenant of good faith and fair dealing, and negligence. The parties have cross-moved for summary on all counts. For the following reasons, Doe's motion for summary judgment will be DENIED, and Brandeis' motion will be DENIED as to Counts 1 and 5[1] and GRANTED as to Counts 2, 3, and 4.


In evaluating these cross-motions for summary judgment, the Court relies on the statements of material facts and the attached exhibits the parties have submitted. The Court accepts as true each alleged material fact to the extent it has not been disputed by the opposing party, and considers contested each material fact that one or both parties has disputed.

A. Brandeis' Sexual Misconduct Policy

Brandeis is a private university in Massachusetts. [Dkt. 46 (“Def. SMF”) ¶ 1]. Doe is a former student who enrolled at Brandeis in Spring 2018. [Def. SMF ¶ 2]. At all times relevant to this action, Brandeis published a Student Handbook that incorporated the university's Sexual Misconduct Policy (“the Policy”). [Dkt. 48-2, (“Policy”)]. Brandeis displayed the Policy on its website at all times, and retained the right to revise it at any time.

The Policy prohibits various forms of sexual assault, including non-consensual sexual contact, forced sexual contact, non-consensual sexual intercourse, and forced sexual intercourse. [Policy at 4-6]. It defines “consent” as an affirmative, voluntary, knowing, and continuous agreement to engage in a specific form of sexual activity” that “must be obtained before engaging in any sexual activity,” “must be received for each individual sexual act,” and “ may be withdrawn at any time.” [Id. at 8].

The Policy further establishes a resolution process as “the internal University disciplinary procedure that is available to student .. to address violations of this Policy.” [Id. at 12]. When Brandeis receives notice of a possible violation of the Policy, the Office of Equal Opportunity (“OEO”) “will attempt to communicate with the person who experienced the alleged conduct regarding that incident” and “discuss the available options for addressing the conduct.” [Id.] The person who experienced the alleged violative conduct has the option to initiate either an informal or formal resolution process. [Id.] When this person chooses to initiate the resolution process, their report becomes a complaint. [Id.] There is no time limit following an alleged violation of the policy for a person to submit a complaint, and the policy establishes a “goal ... to complete the Resolution Process within 90 days from the initiation of the complaint.” [Id. at 13]. However, the policy anticipates that “more or less time may be required to complete the process” and provides that the parties will be “kept informed, in writing, at least every 30 days, regarding the progress of the Resolution Process.” [Id.]

The formal resolution process, which Brandeis undertook against Doe, requires the initiating party to speak with OEO about their complaint. [Id. at 15]. The initiating party must provide a statement including the name of the responding party, the date and location of the incident, and any witnesses who may have information. [Id.] The initiating party should also identify any relevant documents. [Id.] After the complaint is initiated, Brandeis will provide the responding party with “a Written Notice of Complaint outlining the allegations raised and providing information about the Formal Resolution Process.” [Id. at 16]. The responding party will then have the opportunity to meet with OEO to review the Notice of Complaint and discuss the process. [Id.] The responding party has an opportunity at this point to accept responsibility for the conduct outlined in the complaint; if he or she does, the matter is referred to the Dean of Students Office for sanctioning. [Id.] If the responding party does not accept responsibility, he or she has the option to provide a written or oral statement to OEO outlining their response to the complaint, and may identify additional witnesses and documents. [Id.]

Assuming the responding party does not accept responsibility, the process proceeds to an investigation. [Id.] The Director of OEO assigns the complaint to one or more investigators who have been “specially trained to address issues of discrimination, harassment and sexual misconduct.” [Id. at 17]. The investigator's responsibility is to conduct “a prompt, equitable, fair, thorough and impartial investigation into the allegations raised.” [Id.] The parties bear the obligation to make themselves available to the investigator, to provide true and complete information, to comply with instructions from university officials, and to “inform the Investigator about what information they believe is relevant to the complaint and do their best to preserve any information they may have in their possession.” [Id.] The investigator reviews the parties' statements and all documents the parties identify as relevant, interviews the parties and witnesses, and may consult with expert witnesses at their discretion. [Id. at 17-18].

Upon conclusion of the investigation, the investigator prepares a report summarizing relevant facts. [Id. at 19]. The investigator is empowered, at this stage, to draw conclusions as to the credibility of the parties, witnesses, and documents. [Id.] The parties are each given an opportunity to review the investigative report and any referenced documentation, and to provide comments. [Id.] If the parties provide comments, the investigator may conduct further investigation and prepare a written addendum, which the parties may again review, but without further opportunity to comment. [Id.] The investigation phase closes once the parties have had an opportunity to review the addendum. [Id.]

The investigator submits the completed investigative report to a Decision-Making Panel (“DMP”) of three university employees “trained in the resolution of issues of discrimination, harassment and sexual misconduct.” [Id.] The Director of OEO, or her designee, has the sole discretion to appoint members of the DMP. [Id.] OEO must communicate the names of the panel members to the parties during their review of the investigative report, and the parties must immediately alert OEO if they believe there to be any possibility of a conflict of interest. [Id. at 19-20]. The Director of OEO, or her designee, has the sole discretion to replace a DMP member, and once the DMP receives the investigative report, the parties may no longer raise conflict of interest concerns. [Id. at 20]. The DMP may consult with the Director of OEO or her designee regarding questions about the process, and may also submit questions to the investigator. [Id.]

The DMP must find the responding party “Responsible” or “Not Responsible” for violating the Policy by a majority vote, based on its review of the investigative report and supporting documentation. [Id.] The panel applies a “preponderance of the evidence standard -that is, whether the facts presented in the Investigative Report support a finding that it is more likely than not that Brandeis University policy was violated.” [Id.] The DMP issues a written decision of its findings that is submitted to the Director of OEO. [Id.] If the responding party is a student and is found responsible, the matter is referred to the Dean of Students Office for imposition of sanctions.[2] [Id.] Sanctions may include, but are not limited to, denial of privileges, disciplinary warning, disciplinary probation, suspension, dismissal and any other sanction noted in the Rights and Responsibilities handbook.” [Id.] The parties are simultaneously notified in writing of the final outcome; this notice may or may not disclose the assigned sanction. [Id.]

Each party is entitled to appeal the notice of final outcome unless he or she did not particulate in the investigation. [Id.] The appeal must be submitted to OEO in writing within 5 days of the parties' receipt of the notice of final outcome. [Id.] The only grounds upon which a party may appeal are procedural error and new information, and the appellant must specify which grounds he or she is appealing on. [Id. at 21]. A procedural error appeal alleges that (i) the procedural requirements of the Formal Resolution Process were not followed and (ii) that deviation from the process had an adverse impact on the outcome of the complaint against the appellant.” [Id.] A new information appeal alleges that information that “could have impacted the outcome of the complaint” became available after the issuance of the outcome, and requires the appellant to present the information, “show why it was unavailable prior to the final outcome; and show that the new information could have altered the outcome of the complaint.” [Id.] The appellee may respond to the appellant's assertions in writing within 5 days. [Id.] The appeal is adjudicated by a University Appeals Board (UAB) of three university employees “trained in the resolution of issues of discrimination, harassment and sexual misconduct.” [Id.] The UAB is chosen at the sole discretion of...

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