Doe v. Brown Univ.

• Decision Date: 28 September 2016
• Docket Number: C.A. No. 16–017 S
• Citation: 210 F.Supp.3d 310
• Parties: John DOE, Plaintiff, v. BROWN UNIVERSITY, Defendant.
• Court: U.S. District Court — District of Rhode Island

210 F.Supp.3d 310

John DOE, Plaintiff,

v.BROWN UNIVERSITY, Defendant.

C.A. No. 16–017 S

United States District Court, D. Rhode Island.

Signed September 28, 2016

J. Richard Ratcliffe, Jeffrey Biolchini, Ratcliffe Harten Burke & Galamaga LLP, Providence, RI, for Plaintiff.

Michael D. Grabo, Beverly E. Ledbetter, James M. Green, Thomas R. Bender, Office Of General Counsel, Brown University, Steven M. Richard, Nixon Peabody LLP, Providence, RI, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

William E. Smith, Chief Judge

This case arises out of a disciplinary proceeding in which Brown University ("Brown" or "University") found John Doe ("John" or "Doe") responsible for sexual misconduct against fellow student Ann Roe ("Ann").¹ The parties agreed to waive the jury demand and hold an expedited consolidated bench trial on both the merits of Plaintiff's case and his request for a preliminary injunction, which was conducted on July 19–22, 2016. The parties submitted Proposed Findings of Fact and Conclusions of Law (ECF Nos. 50 ("Doe's Post–Trial Brief") and 55 ("Brown's Post–Trial Brief")), and the Court heard closing arguments on August 16, 2016. On August 23, 2016, the Court found that Doe "is likely to succeed (at least partially) on the merits of his breach of contract claim" and issued a preliminary injunction, allowing John to return to Brown for the fall semester under the same conditions previously imposed. (Preliminary Injunction Order 2, ECF No. 57.)

It is important to make it unequivocally clear at the outset that the Court's only role in this case is to determine whether Doe's disciplinary "process [was] carried out in line with [the Plaintiff] student's reasonable expectations" based on the policies in place at the time of the incident.

Havlik v. Johnson & Wales Univ. , 509 F.3d 25, 34 (1st Cir. 2007). It is not the Court's role to determine the facts of what happened between John and Ann; to decide whether the Court would have, in the panel's position, found John responsible for sexual misconduct; to evaluate whether the Court would have made the same judgment calls on evidence and other issues as Brown did; or to determine whether the procedure John received was optimal. This Court is not a super-appeals court for sexual misconduct cases, nor is it an advisor to Brown on how it should handle these messy and unfortunate situations.

Moreover, the Court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After issuing the preliminary injunction this Court was deluged with emails resulting from an organized campaign to influence the outcome. These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court. Hopefully, they will read this decision and be educated.

Although a very close call, for the reasons explained below, the Court finds that certain procedures Brown employed in conducting Doe's hearing fell outside of a student's reasonable expectations based on the Code of Student Conduct at Brown University 2014–15 (the "2014–15 Code"), and that these procedural errors likely affected the panel's decision in Doe's case.² Accordingly, Doe is entitled a new hearing that remedies these infirmities. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law. To the extent that any finding of fact reflects a legal conclusion, it should be to that extent deemed a conclusion of law, and vice versa.

I. Findings of Fact

A. Doe's Enrollment and Orientation at Brown

Doe applied for admission to Brown in the spring of 2013. (Trial Tr., vol. II, 186:15–16, ECF No. 52.) He was accepted, chose to enroll, and his family prepaid four years of tuition, totaling $177,600. (Id. at 187:2–20.)

Prior to arriving on campus, Doe completed Brown's 2013 New Student Tutorial ("Tutorial"), which dealt with sexual encounters and relationships and was required for all incoming students. (Id. at 209:18–23.) While completing the Tutorial, Doe watched a video entitled "Brown Students Ask For Consent." (Id. at 212:13–15, 213:18–20; Ex. 46.) In the video, Brown students are interviewed and answer a series of questions: "What is consent?"; "What is not consent?"; "Do you have consent?"; and "How do you ask for consent?" (Brown Students Ask for Consent Video, Ex. 46.) The students' responses to these questions included the following:

Consent is asking and hearing a yes. ... Consent is active, not passive. It means being fully engaged and not just going along. Consent is giving permission without feeling pressured. ... I do not obtain consent by pressuring someone, by threatening someone, by coercing someone, or by forcing someone. ... Not now, means no. No does not mean keep trying. It means stop. ... I'm not sure I'm ready, means no. ... Silence is not consent. People sometimes freeze and cannot speak. The absence of yes, means no.

(Id. ) Doe testified at trial that he understood that the video stated values and principles of the Brown community. (Trial Tr., vol. II, 213:21–24, ECF No. 52.)

Doe also completed a series of questions with the Tutorial. Question 95, section 4.7 of the Tutorial instructed Doe to provide "True" or "False" responses to a series of statements. Doe responded "True" to the following "statement[ ] about sexual consent": "Consent may be invalid if there is coercion, intimidation, or threat, or if advantage is gained because a person is mentally or physically unable to communicate unwillingness." (Tutorial 23, Ex. 40; Trial Tr., vol. II, 211:5–13, ECF No. 52.) Doe testified that, by completing the Tutorial, he understood that under Brown's community principles, coercion may invalidate consent. (Trial Tr., vol. II, 211:14–18, ECF No. 52.) However, he understood coercion to require "force or threat of force." (Id. at 214:10–11.)

Doe attended freshmen orientation at Brown in the fall of 2013. (Id. at 187:21–23.) As part of the orientation, Doe was provided with a copy of the Code of Student Conduct at Brown University 2013–2014 (the "2013–14 Code"), which he reviewed. (Id. at 187:24–188:5.) Doe also attended a 90–minute session about consent, during which he again watched the "Brown Students Ask for Consent" video. (Id. at 213:25–214:3, 214:19–22.) The presentation included a PowerPoint, the last slide of which was likewise titled "Brown students ask for consent" and depicted statements and questions relating to consent (e.g. , "I'd like to talk about this first," "Are you okay with this?," "If you change your mind, we'll stop."). (Id. at 217:5–6; Brown Consent Presentation 6, Ex. 43.) This slide was also made into a flyer and posted around campus. (Trial Tr., vol. II, 218:3–4, 225:20–22, ECF No. 52.) The bottom of the slide has a sentence in small print that states: "This is meant to help well-meaning people take care of themselves and each other in sexual situations. People who don't have good intentions may manipulate the language of consent to hurt someone." (Trial Tr., vol. II, 225:5–9, ECF No. 52; Brown Consent Presentation 6, Ex. 43.) Other than this quote, Brown did not present any evidence that "manipulation" was addressed at the orientation.

In addition to the 90–minute presentation, Doe participated in a smaller group interactive session about sexual relationships and consent, which was hosted by residential peer leaders and lasted about 40 minutes. (Trial Tr., vol. II, 219:21–220:20, ECF No. 52.) Prior to November 10, 2014, Doe attended another training session at Brown addressing consent in sexual relationships. (Id. at 220:25–221:8.) The training included a discussion of the impact of coercion upon consent. (Id. at 221:9–12.) However, there was no discussion of manipulation at any of these trainings. (Id. at 221:22–24.)

B. The 2014–15 Code of Student Conduct

Doe completed his freshman year and re-enrolled in the fall of 2014, at which time Brown emailed him the 2014–15 Code. (Id. at 188:18–189:4.) The 2014–15 Code prohibits sexual misconduct as follows:

III. Sexual Misconduct

a. Sexual Misconduct that involves non-consensual physical contact of a sexual nature.

b. Sexual Misconduct that includes one or more of the following: penetration, violent physical force, or injury.

Comment: Offense III encompasses a broad range of behaviors, including acts using force, threat, intimidation, or advantage gained by the offended student's mental or physical incapacity or impairment of which the offending student was aware or should have been aware. Harassment, without physical contact, will not be deemed sexual misconduct under these provisions. Violations of Offense IIIb will result in more severe sanctions from the University, separation being the standard. Note: Some forms of sexual misconduct may also constitute sexual assault under Rhode Island criminal laws and are subject to prosecution by State law enforcement authorities—which can take place independent of charges under the University's Student Code of Conduct.

(2014–15 Code 4, Ex. 2.)³ The Code also notes that its comments "are offered as a guide to understanding the University's policies, and are not to be confused with the policies themselves. As such these comments are not binding upon the University or its designated representatives." (Id. at 3 n.1.) Doe read the 2014–15 Code in its entirety. (Trial Tr., vol. II, 199:18–20, ECF No. 52.)

Doe claims that his interpretation of the "broad range of behaviors" identified in the Comment to Section III only includes conduct enumerated in the Comment, namely force, threat, intimidation, or...