Doe v. Brown Univ.

• Decision Date: 22 February 2016
• Docket Number: C.A. No. 15-144 S
• Citation: 166 F.Supp.3d 177
• Parties: John Doe, Plaintiff, v. Brown University, Defendant.
• Court: U.S. District Court — District of Rhode Island

166 F.Supp.3d 177

John Doe, Plaintiff,

v.Brown University, Defendant.

C.A. No. 15-144 S

United States District Court, D. Rhode Island.

Signed February 22, 2016

Andrew T. Miltenberg, Kimberly C. Lau, Tara J. Novack, Nesenoff & Miltenberg LLP, New York, NY, Samuel D. Zurier, Oliverio & Marcaccio, LLP, Providence, RI, for Plaintiff.

Beverly E. Ledbetter, Thomas R. Bender, Office of General Counsel, Brown University, Steven M. Richard, Nixon Peabody LLP, Providence, RI, for Defendant.

MEMORANDUM AND ORDER

WILLIAM E. SMITH

, Chief Judge.

Before the Court is a motion to dismiss (ECF No. 10) filed by Defendant Brown University (“Brown”). Plaintiff John Doe (“John” or “Doe”) filed an Opposition (ECF No. 15) and Brown filed a Reply (ECF No. 17). The parties also filed subsequent letters to the Court concerning supplemental authority (ECF Nos. 18–21). After careful consideration, the Court hereby GRANTS IN PART and DENIES IN PART Brown's motion for the reasons that follow.

I. Background

This case concerns an issue that has been the subject of increasing attention and controversy, particularly in academia, and which has garnered much recent media and scholarly commentary:¹ the manner in which colleges and universities handle allegations of sexual assault. This case is one of a number of recent actions in the federal district courts in which a male student has sued a university that found him responsible for committing sexual assault after an allegedly flawed and deficient disciplinary proceeding.² None have yet to reach the circuits.

This wave of litigation arises in the wake of the 2011 “Dear Colleague Letter,” promulgated by the U.S. Department of Education's Office for Civil Rights (“OCR”), which instructs that a university must “promptly investigate” any allegation of sexual harassment or assault when it “knows, or reasonably should know, about possible harassment” of a student, regardless of whether the harassed student actually makes a complaint. Russlynn Ali, Dear Colleague Letter, U.S. Dept. of Educ. at 4 (Apr. 4, 2011), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf. The Dear Colleague Letter further requires universities to employ the “preponderance of the evidence standard (i.e. , it is more likely than not that sexual harassment or violence occurred),” reasoning that “[t]he ‘clear and convincing’ standard (i.e. , it is highly probable or reasonably certain that the sexual harassment or violence occurred) ... [is] ‘inconsistent with the standard of proof established for violations of ... civil rights laws.” Id. at 11. Many of the recent cases, including this one, allege that the pressure on universities from the OCR has caused a backlash against male students accused of sexual assault. The basis for this contention is that, while the OCR does not have the authority to “require” universities to take specific actions, it holds the specter of loss of federal funds as a sword over the universities' heads in the event it were to find that the university failed to comply with Title IX.

In this action, Doe's version of the events is as follows.³ After a party on Brown's campus on October 11, 2014, Jane Doe (“Jane”) went back to John's room and they engaged in kissing and sexual touching. (Compl. ¶¶ 12-17, ECF No. 1.) According to John, “[t]o confirm Jane Doe's consent, John Doe asked her ‘Do you like this?’ Jane Doe nodded and responded, ‘Yes,’ guiding his hand with hers and asking him to rub her a certain way. When John Doe complied, Jane Doe moaned in pleasure, telling John Doe she reached orgasm.” (Id. ¶ 17.) When Jane left that evening, John was “unaware that Jane Doe considered herself the victim of sexual misconduct.” (Id. ¶ 19.)

On October 17, Jane reported that she was sexually assaulted by John and was interviewed by Brown Department of Public Safety Detective Jeanne Peck, who wrote a report (“Oct. 17 Public Safety Report”). On October 18, Jane filed a formal complaint concerning the events on the evening of October 11 (“Oct. 18 Complaint”). According to John, this complaint contains numerous discrepancies with the Oct. 17 Public Safety Report, including that the Oct. 18 Complaint admits that Jane told John she “liked” him touching her and never told him to stop. (Id. ¶¶ 34-35.) That evening, John received a phone call from Dean Castillo. She informed him that Brown had issued a no-contact order against him with respect to Jane based on an allegation of sexual misconduct against him. Dean Castillo also advised John that he could not leave his dorm room until he met with her and Maria E. Suarez, the Associate Dean and Director of Student Support Services, the next morning. (Id. ¶ 20.) At that meeting, Deans Castillo and Suarez informed John that Jane had made a “serious allegation of sexual misconduct” supported by “evidence of bruising.” They then informed him that Margaret Klawunn, the University's Vice President of Student Affairs, who was not present at the meeting, had ordered his immediate removal from campus for the safety of the community, and that they would help him book a flight back home. (Id. ¶ 23.) Doe's father flew to Providence immediately, and the next day, he and John met with Dean Castillo, Dean Suarez, and Vice President Klawunn. During that meeting, John was given an official letter from Vice President Klawunn informing him he was banned from campus “for an indefinite period of time,” effective immediately. (Id. ¶ 25; Ex. B to Compl., ECF Nos. 1–2, 1–8 (redacted).)

On October 20, 2014, Brown sent John a notice of the allegations against him (Ex. C to Compl., ECF Nos. 1–3, 1–9 (redacted)) and “A Guide to the Investigation Process” (Ex. D to Compl., ECF No. 1-4). (Compl. ¶¶ 30-32, ECF No. 1.) John claims that he asked Associate Dean of Student Life and Director of Student Conduct Yolanda Castillo for specific information about Brown's process, including a clear explanation of the steps Brown took from the time it learned of Jane's allegations to its first contact with John on October 18, 2014; however, Dean Castillo's general responses did not answer John's specific questions. (Id. ¶ 33.) On October 21, John received a copy of the Oct. 17 Public Safety Report and the Oct. 18 Complaint. (Id. ¶ 34.) On October 28, he submitted to Dean Castillo his personal written statement, a list of five witnesses and eight Facebook photographs of Jane Doe taken the night after the incident. John claims that the photos contradicted Jane's contention that her neck and lips had been bruised by John. (Id. ¶ 37.) Brown did not contact any of John's witnesses until after he had been formally charged, despite assuring John that it would do so. (Id. ¶ 38-39.)

On November 5, 2014, Brown sent John a letter (Ex. E to Compl., ECF Nos. 1–5, 1–10 (redacted)) notifying him that he was formally charged with the four Code violations set forth in the Notice of Allegations, and that a Student Conduct Board would hear the charges on November 14, 2014 at 9:00 a.m. (Compl. ¶ 41, ECF No. 1.) John requested a copy of certain evidence, including text messages, that were not in the inventory of evidence he had been provided. Brown failed to respond. (Id. ¶ 45.) Due to a personal family medical issue, John requested a two-week continuance so that he could sufficiently focus his time on preparing his defense of the charges. Instead, Dean Castillo granted a one-week continuance and rescheduled the Hearing to November 21, 2014. When John subsequently learned his parents could not attend the November 21 Hearing due to the persistence of the family medical issue, he renewed his request for a second week of continuance. Brown denied the request a second time. (Id. ¶ 46.) Around this same time, Brown announced that it anticipated issuing an Interim Report from a Sexual Assault Task Force that December. (Id. ¶ 47.)

At 5:17 p.m. on November 17, Brown provided John a package of 80 pages of evidence and procedural guidelines for the hearing. The package included 23 additional unsigned, unsworn statements; an addendum by Jane and another witness, K.R.; text messages between John and K.R. from October 12, 2014; and Jane's medical records from Brown Health Services from her visit on October 15, 2014. (Id. ¶ 49.) When reviewing the packet, John learned that Brown had redacted a portion of one of his witnesses' statements, in which the witness described her prior physical experience with John, which he claims bolstered the credibility of his defense. When John asked for an explanation for this redaction, he was advised that Dean Castillo redacts material that she deems irrelevant pursuant to “University policy.” (Id. ¶ 53.) Dean Castillo also excluded the majority of John's character witness letters from the record on the grounds that the authors had “no connection to Brown University” and did not possess information directly relevant to the case. (Id. ¶ 54.) On the inventory list of the final case file packet, Dean Castillo indicated that there were 15 character witnesses for John, which included six character witnesses who were non-Brown University students. However, the actual statements for the six non-Brown University students were not included in the packet and never forwarded to the student conduct board. (Id. ¶ 55.) For a third time, John requested that the hearing be rescheduled for a later date, this time so that he could adequately prepare for his defense at the hearing. In particular, John needed time to consult with medical professionals concerning Jane's medical records; his request was again denied. (Id. ¶¶ 56-57.)

On November 20—the day before the hearing—Brown informed John that it was appointing Senior Associate Dean of Residential and Dining Services Richard Bova as a substitute member of the hearing panel. John was thus unable to exercise his right under the Brown Student Code of Conduct (“Code”) to investigate the last-minute panelist for possible conflicts of interest. According to John, had he had...