By: Brett A. Sokolow, Esq.
My career has been marked by an insistence on elevating the rights of victims, yet I must be equally insistent when the rights of an accused student are trampled. I frequently serve as an expert witness in many types of litigation, mostly on behalf of colleges and universities, or on behalf of victims of sexual assault or sexual harassment. I have never been an expert in a case against a college before, but I served as the plaintiff’s expert witness in this case. I felt compelled to do so by the facts and the potential national implications of this case. This was also the first time I have been engaged as a witness on behalf of a student accused of a sexual assault. Though this case wasn’t about the actual alleged assault, but about the process by which the complaint was processed by the university, I don’t believe the actions John Doe was accused of constituted a sexual assault.
Rather than give John Doe his measure of fair process, Sewanee expediently forced him out of the institution. This case represents the first time that a federal court has ever found that a college negligently constructed and applied a conduct process. The implications of this are profound. All cases that have come before it were decided on either breach of contract or due process grounds. This case creates a federal precedent that we must take reasonable care in both composing and implementing a conduct process, and that failure to do so makes for a breach of the duty of reasonable care. Doe’s family spent many times the amount of the award to prove that their son was not a rapist, but had been labeled one without reasonable cause or a fair process. The family’s efforts were vindicated through the unanimous finding of the nine member jury.
As Doe’s expert witness, I testified for over two days providing my opinion on a litany of missteps that deprived Doe of essential procedural fairness. I contended that Sewanee’s application of its rules injured Doe, and that the procedures themselves had been constructed negligently, so as to be unfair to any student subjected to them. My conclusions, supported by the jury’s finding, that Sewanee failed to meet the standard of care, were based on the following:
- Sewanee allowed the alleged victim to determine the charge, rather than making that a decision of the Dean of Students;
- Sewanee proceeded to charge Doe without adequate evidence to do so, giving him little more than 24 hours to prepare for the hearing;
- Sewanee failed in its gatekeeper responsibilities by charging Doe immediately upon receiving the complaint, without any investigation first into its adequacy or accuracy;
- Sewanee appointed an untrained assistant dean to conduct the investigation, his first ever;
- Sewanee failed to interview four critical witnesses in this investigation, and negligently decided to interview neither the alleged victim nor the accused student, Doe;
- Sewanee heard the complaint before an insufficiently trained panel, which was chaired by the same dean of students who convened and supervised all other aspects of the process;
- Sewanee failed to adequately train its investigators, administrators, advisors, hearing panelists and appeals officers on Title IX, sexual misconduct, and procedural fairness;
- Sewanee prevented the accused student from attending the hearing, except to give his own testimony;
- Sewanee needed expert testimony at the hearing to inform the panel, and failed to arrange for it;
- Sewanee prohibited the student from access to the findings of the investigation, the testimony of any witness and only gave him a copy of the complaint 45 minutes prior to the hearing, which resulted in Doe’s inability to adequately respond to the charges. This was compounded by a university-imposed “no contact” order that prevented Doe from preparatory communication with anyone about the case, including those who might be witnesses in his favor;
- Sewanee failed to disclose to Doe exculpatory pieces of evidence, including the fact that a university police officer had encountered the alleged victim earlier in the evening, had determined that she was not drunk and that the alleged victim consumed no additional intoxicants subsequent to the interaction with the police officer;
- Sewanee’s dean of students, the guardian of the process, failed to play an objective and impartial role with respect to the many hats he wore throughout the process;
- Sewanee kept no records of the hearing proceeding, and required Doe to destroy his, impeding a fair appeal to the president, who was unduly influenced by the dean of students.
This case and its outcome are remarkable for the basis of the jury’s finding of liability. Almost all cases to date that challenge college and university discipline have been brought on the basis of a contract claim (alleging the university failed to follow its own rules), or (for public universities only) on due process grounds (alleging that the university failed to protect the procedural rights of an accused student).
This is the first case of its kind to find for the plaintiff in a negligence action. It establishes that for both public and private colleges, there are customs and practices of the field that must be met, or liability in negligence may result. While this case imposed no punitive damages, it opens the door to permit juries to do so in the future for any process that is structured negligently and results in detriment to a participant.
At the trial, I said, “When colleges don’t do the right thing by victims, it has been my job to say so. To be principled, I also have to be willing to say so when I believe that a college did not do right by a student accused of sexual misconduct.” This point is illustrated through the work of organizations like NCHERM (www.ncherm.org), which helps to define, implement and train on practices that ensure campus conduct hearings are appropriately fair to all students.
In campus proceedings, we hold the well-being of an alleged victim in our hands, but we can also substantially impact the reputation, financial and emotional well-being of an accused student, staff or faculty member. Getting to the right conclusion by the right process is the message of this case for all colleges and universities going forward. A model policy and procedure have been posted online at www.atixa.org for members of The Association of Title IX Administrators.
Brett A. Sokolow, Esq., is the Managing Partner of NCHERM, the National Center for Higher Education Risk Management, in Malvern, PA. NCHERM is a law and consulting firm focused on best practices for campus health and safety. As a not-for-profit organization, many of NCHERM’s models and intellectual property are posted for free on its website, www.ncherm.org. Additionally, Sokolow serves as Executive Director of two membership associations serving higher education and schools, ATIXA—the Association of Title IX Administrators (www.atixa.org) and NaBITA – the National Behavioral Intervention Team Association (www.nabita.org).