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University
(John
or
(Brown
Doe)
or
responsible
University)
for
sexual
found
John
misconduct
Doe
against
the
merits
of
Plaintiffs
case
and
his
request
for
conditions
previously
imposed.
(Preliminary
Injunction
is
important
to
make
it
unequivocally
clear
at
the
Havlik v.
Johnson & Wales Univ., 509 F.3d 25, 34 (1st Cir. 2007).
It is
panels
position,
found
John
responsible
for
sexual
It cannot be
swayed
issuing
by
emotion
or
public
opinion.
2
After
the
preliminary
injunction
this
Court
was
deluged
with
emails
tactics,
while
perhaps
appropriate
and
effective
in
one
would
think
students
and
others
affiliated
with
Moreover,
while
passionate,
before
the
were
Court.
woefully
Hopefully,
ignorant
they
about
will
read
the
this
very
close
call,
for
the
reasons
explained
based
2014-15
on
the
(the
Code
of
2014-15
Student
Code),
Conduct
and
at
that
Brown
these
these infirmities.
Findings of Fact
A.
He was accepted,
(Id. at 187:2-20.)
Tutorial
(Tutorial),
which
dealt
with
sexual
(Id. at 209:18-23.)
Video,
Ex.
46.)
The
students
responses
to
these
(Trial
95,
section
4.7
of
the
Tutorial
instructed
Doe
to
Consent
may
be
invalid
if
there
is
coercion,
is
mentally
unwillingness.
or
physically
(Tutorial
23,
Ex.
unable
40;
Trial
to
communicate
Tr.,
vol.
II,
(Id. at 214:10-11.)
(Id. at 187:21-23.)
The
about
this
first,
Are
you
okay
with
this?,
If
you
take
situations.
care
of
People
themselves
and
who
have
dont
each
other
good
in
sexual
intentions
may
(Trial
Tr., vol. II, 225:5-9, ECF No. 52; Brown Consent Presentation 6,
Ex. 43.)
smaller
group
interactive
session
about
sexual
and
lasted
about
40
minutes.
(Trial
Tr.,
vol.
II,
relationships.
(Id.
at
220:25-221:8.)
The
training
(Id.
at
221:9-12.)
However,
there
was
no
discussion
of
(Id. at 221:22-24.)
(Id. at
follows:
III. Sexual Misconduct
a. Sexual Misconduct that involves
physical contact of a sexual nature.
non-consensual
offered
as
guide
understanding
the
Universitys
policies,
and
themselves.
are
not
to
be
confused
with
the
policies
(Id. at 3 n.1.)
identified
conduct
in
the
enumerated
Comment
in
the
to
Section
Comment,
III
namely
only
force,
(Id. at 201:17-24.)
He
student
exchange
for
$1,000
sex
or
would
a
not
recovering
be
drug
considered
addict
sexual
drugs
in
misconduct.
(Id. at 229:20-232:4.)
The 2014-15 Code also gives students a number of rights in
disciplinary
proceedings,
including
[t]o
be
assumed
not
every
opportunity
to
articulate
relevant
concerns
and
New
2015-16
Sexual
Browns
Assault
(Task
administration,
Force),
faculty,
which
and
included
student
body,
members
to
of
review
assault
and
sexual
misconduct.
(Trial
Tr.,
vol.
I,
144:25145:12, ECF No. 51; Trial Tr., vol. IV, 125:10-21, ECF
No. 53.)
Violence,
Relationship
and
Interpersonal
Violence
and
or
individual
in
other
fear
of
harm,
that
immediate
would
or
reasonably
future
harm
and
place
an
that
is
10
(Id.
at 7.)
cases
misconduct
involving
sexual
charges
under
the
2014-15
define
consent
for
purposes
of
their
deliberations,
3),
which
delineates
the
procedures
for
the
receipt,
an
cases.
investigator
model
for
handling
sexual
misconduct
Under this
witnesses
(Complaint
and
Process
synthesize
3,
Ex.
the
3.)
information
The
in
investigator
report.
has
the
and
investigation
may
report
exclude
if
information
the
11
in
information
preparing
is
the
irrelevant,
Process
dictates
that
[t]he
(Id.)
investigators
The
report
(Id. at 4.)
[t]he
will
investigator
not
make
finding of responsibility.
(Id.)
become
among
increasingly
popular
finding
or
recommend
and
universities,
(Id.
responsible
for
at
5.)
the
The
Title
administration
IX
of
Council
the
Chair
hearing
is
process,
determinations
considered
or
questioning,
and
proceedings.
information
determine
not,
the
presented
an
information
appropriate
(Id.)
if
about
overall
The
in
and
the
individual
and
12
be
lines
of
of
the
role
review
the
conduct
is
investigation
or
will
inappropriate
decorum
panels
that
individuals
to
report
and
violated
to
the
University
policy
sanction).
During
(and,
if
yes,
to
determine
an
appropriate
(Id.)
the
hearing,
the
panel
convene[s]
with
the
(Id.)
The
(Id.)
complete
(Id.)
The
discretion
to
complainant
and
approve
or
respondent
deny
may
those
appear
requests.
separately
[t]he
presumption
is
(Id.)
that
investigator
has
(Id.)
(Id.)
guidance
from
the
Department
of
Educations
Office
for
the
outcome
and/or
material,
new
evidence
not
(Complaint
(Id.)
(Id.)
(Id.)
appeal based upon the discovery of new evidence, the matter will
be remanded back to the same panel that initially heard the case
for
reconsideration
in
light
of
the
new
evidence.
(Id.)
(Id.)
14
D.
29:5-12, ECF No. 52; Trial Tr., vol. IV. 30:11-13, ECF No. 53.)
Schultz
previously
served
on
the
Task
Force
and
presided
on
Title
IX
undergraduates,
Council
is
graduate
comprised
students,
and
of
faculty,
medical
staff,
student.
Throughout the
of
the
complete
at
least
Title
IX
five
Council
hours
of
presented
two
hour
(Id.)
members
were
training
(Id. at 153:10-
training
required
before
becoming
(Id. at 158:24159:19.)
session,
which
gave
that
she
informed
to
panelists
that
while
they
an
(Id.
Walsh
may
Walsh
emphasized
that
finding
of
responsible
must
(Id.)
be
During
Sacks,
Sexual
Harassment
&
Assault
Resources
&
IX
Council
members
regarding
the
impacts
of
trauma
on
guidance documents issued by OCR, which state that decisionmakers in Title IX processes should understand the potential
impacts of trauma.
(Id. at 160:7-16.)
assaulted
them
or
having
any
kind
of
interaction
with
another
training
session,
Mark
Peters,
Browns
Mens
Tr.,
vol.
I,
160:17-23,
16
ECF
No.
51.)
The
Title
IX
(Id. at 161:14-21.)
to
discuss
an
encounter
that
Ann
had
(Id. at 9:20-23.)
resources,
chaplains
such
office,
and
as
with
Doe
(Trial Tr.,
counseling
and
SHARE
advocates,
psychological
the
services.
(Id. at 9:2410:5.)
report
Title
with
Providence
Safety.
Browns
Police
Department
IX
Office,
or
Browns
as
well
as
Department
with
of
the
Public
(Id. at 10:6-9.)
numerous
text
messages
that
the
two
students
had
discussed a fantasy, but stated that she had made clear that
she
did
not
want
to
have
sexual
relationship
with
John.
18
Walsh
promptly
Complaint.
contacted
Doe
to
inform
him
of
Anns
During
(Id.)
On
(Id. at 10:2211:12.)
to
an
confidential
(CAPS).
advisor;
support
at
and
alerted
Counseling
Doe
and
that
he
could
Psychological
seek
Services
6.)
Under the Complaint Process, a respondent has five business
days
to
submit
statement
in
response
to
complaint.
in
explicit
sexual
banter
and
discussion
of
He also had a
She
(Id. at
(Id.)
Doe
She unzipped
(Id. at 4-5.)
She
He also
noted that [t]he lights came back on several times through the
encounter, and each time, Ann got up, turned them off, and came
back over to me.
(Id. at 4.)
continued to pursue him after November 10, 2014, and that she
offered no reasonable explanation for her delay in filing her
20
Complaint.
(Id. at 4-5.)
1.)
These
text
messages
included
the
following
(Id.
exchange
permitted
under
the
Complaint
Process,
who
was
Ann
and
Doe
assisted
by
Attorney
Myka
Held
of
that
Ex.
7.)
the
November
10,
2014
incident
between Doe and Ann occurred during the 2014-15 academic year,
however, the substantive charges were based on the 2014-15 Code.
(Id.)
F.
The Investigation
Consistent
external
Anns
the
investigator,
allegations
with
her
Complaint
Attorney
and
Does
Process,
Djuna
Brown
Perkins,
defenses.
to
hired
an
investigate
(Perkins
Engagement
engagement
by
Brown
on
November
4,
2015
to
the
Report,
from
Perkins
Perkins
spent
to
80-100
Doe
hours
attaching
conducting
Final
the
Ex.
investigation
17.)
and
52.)
Perkins interviewed Ann on November 13, 2015, January 8,
2016, and February 17, 2016.
22
(Id. at 1-
2.)
(Id. at 2.)
She
(Id. at
2-3.)
panel,
Perkins
other
reviewed,
text
but
messages
elected
between
not
John
to
present
to
the
and
Witness
9,
and
that
their
value.
prejudicial
(Id.
at
3.)
impact
Perkins
would
outweigh
further
their
declined
to
Perkins
declined
to
consider
(Id.)
posting
(Id.)
He based this
(Id. at 27-29.) 4
Draft,
Ex.
10;
02/29/16
Chain
between
Walsh
and
and Perkins, Ex. 11; Walsh Redline of Draft Report, Ex. 12.)
In
(Perkins
Report
First
Draft
1,
Ex.
10.)
In
her
to
cite
only
to
Offense
III
of
the
2014-15
Code.
the
Title
IX
Policy
because
the
disciplinary
case
involved
also
informed
Walsh
that
the
Respondents
I felt it
(Id.)
Walsh concurred
On March 1, 2016,
Request
for
Revisions,
Ex.
14;
Johns
Request
(See
for
As his first point, John cited to Offense III in the 201415 Code, claiming that it is vastly different than what is
stated
in
the
current
Title
IX
Policy.
(Does
Request
for
evidence
conspiracy claim.
in
(Id.)
the
(Id. at 3-6.)
of
the
Report
about
his
27
(Id. at 6.)
of
their
proposed
revisions,
Perkins
finalized
her
from Perkins to Doe, Ex. 17; Perkins Final Report, Ex. 18.)
In
report,
which
(Compare Perkins
became
Report
footnote
Second
26
Draft
in
15,
the
n.22,
final
Ex.
report.
13,
with
is
that
consent
obtained
it
by
freely
coercion
and
does
voluntarily
not
given.
constitute
Thus,
consent.
9.
When
questioned
about
this
decision
at
trial,
Perkins stated that early on, Ann had texted Witness 9 about
what
happened
with
sexual assault.
John,
and
Witness
stated
OMG,
thats
Perkins concluded that once [Ann] has locked herself into that
version of events with her friends, very unlikely that theres
going to be some piece of evidence later on, some text message
that said, yes, its true, I really had a super fun time and
were just going to keep going on this because hes a jerk.
(Id. at 181:18-23.)
Additionally,
have subpoena power, the students would have been free to refuse
that request.
Perkins
however,
the
(Id. at 153:17-19.)
decided
not
Final
Report
to
remove
contained
the
the
character
following
evidence;
limiting
instruction:
The incidents on the following pages (through the
second to last paragraph before the Conclusion on the
last page) are relevant only to the extent that they
provide context for the Complainants and Witness 9s
state
of
mind
toward
the
Respondent
and
the
Complainants motives in bringing the Complaint. They
are not relevant for any other purpose and should not
be
considered
as
evidence
that
the
Respondent
committed the acts alleged in the Complaint.
29
In footnote 43 relating to a
likewise
stated
[t]his
incident
is
relevant
to
the
of
mind
toward
the
Respondent
and
the
Complainants
After
Perkins
issuance
of
the
finalized
investigation
26:2427:8,
27:15-18.)
Walsh
stated
(Id. at
that
she
had
completed
five
conflict
that
precluded
28:5.)
Specifically,
hours
him
of
from
male
training,
but
presiding.
undergraduate
each
(Id.
on
at
the
had
27:16
Title
IX
Council participated in the mock trial program and knew John and
Ann; another male undergraduate had a friendly relationship with
Ann;
and
male
administrator,
30
Browns
Director
of
Student
Activities, was familiar with the mock trial program and its
participants.
(Id. at 27:1628:5.)
senior
undergraduate
student.
(Id.
at
26:16-18,
Consistent with
20, ECF No. 51; Trial Tr., vol. II, 30:5-9, ECF No. 52.)
Walsh
history
considered
in
because
the
such
sanctioning
information
deliberations
the
only
be
voting
(Id. at
(Id. at 32:19-
IX
Policy
as
an
option
to
consider
did
not
include
the
Title
IX
during
their
(Id. at 32:23-34:2.)
Policy
in
the
panelists
packets because she did not want them to think that they were
required to consider it.
(Id.)
On April 14, 2016, Walsh and Schultz met before the start
of the Title IX Council hearing.
that the Chairs packet included the Title IX Policy, which the
other panelists did not receive.
104:1, ECF No. 51; Trial Tr., vol. II, 34:5-9, ECF No. 52.)
Schultz, the three voting panelists, and Walsh convened at the
start of the hearing. (Hearing Notes 1, Ex. 24.)
hearing,
Walsh
took
detailed
notes
on
her
Throughout the
laptop
computer.
(Hearing Notes, Ex. 24; Trial Tr., vol. I, at 104:10-12, ECF No.
51; Trial Tr., vol. II, at 34:15-18, ECF No. 52.)
Schultz first
hearing
process,
the
voting
panelists
roles,
After
that the charges against John were brought under the 2014-15
Code
because
the
incident
at
issue
occurred
on
November
10,
2014, and Schultz read through Offense III of the 2014-15 Code.
(Hearing Notes 1, Ex. 24.)
(Id.)
it
may
be
helpful
in
thinking
about
how
the
(Id.)
(Id. at 1-2.)
that
she
found
both
Doe
and
Ann
credible:
Doesnt
says
partner.
shes
an
enthusiastic
(Id.
at
2.)
Perkins
responded as follows:
If you look at [the] text messages, it does show that
[John] is persistently making things sexual even
though [Ann] is a willing participant at times.
He
does convert things into something sexual. He did say
he asked for consent and she was enthusiastic, but
that isnt consistent with the text messages where you
can see her hesitation.
The idea that she was
willingly jumping into this sexual encounter doesnt
match, but thats for the panel to decide.
Her
version appears to be more consistent with the pattern
that is in the text messages.
(Id.)
33
(Id.)
When John and his advisor appeared before the panel, Ann
(Id.)
(Id. at 3.)
version
to,
of
the
events
leading
up
(Id.)
during
He stated his
and
after
the
Code.
requires
force
(Id.)
or
He
threat
contended
of
force
that
and
the
[i]f
2014-15
Code
Complainant
(Id.)
Ann next appeared before the panel with her advisor, while
John and his advisor adjourned to another room and listened by
telephone.
(Id. at 4.)
(Id.)
34
Title
IX
Policy
and
stated
that
consent
cannot
be
obtained
(Id.)
provided
the
(Id.)
2014-15
because
the
(Id. at 5.)
case
involved
(Id.)
Chair,
acted
as
facilitator
of
the
discussions
by
83:5, ECF No. 54; Trial Tr., vol. IV, 134:7-21, ECF No. 53.)
Schultz also told the voting panelists that the Title IX Policy
had codified Browns community standards.
testified
that
the
panels
deliberations
were
Panelist
Perkins,
Rodriguez,
difficult.
and
Schultz
all
felt
that
In addition,
this
case
was
Tr., vol. III, 23:7-9, ECF No. 54; Trial Tr., vol. IV, 64:17-20,
ECF No. 53.)
John
mixed
or
mixed
messages
in
her
texts,
ECF No. 54; Trial Tr., vol. IV, 65:12-14, ECF No. 53.)
found
both
parties
to
be
both
unappealing
(Trial
Tr.,
Schultz
vol.
IV,
65:15-18, ECF No. 53), and Rodriguez did not find either witness
wholly credible.
in
part,
based
counterintuitive
survivors.
(Id.
on
behaviors
at
the
SHARE
Advocate
exhibited
42:23-43:17,
by
(Trial
This was, at
training
sexual
52:11-25.)
about
assault
Rodriguez
[her]
degree
of
expertise
to
assess
[Ann]s
post-encounter
(Id. at 55:16-21.)
had considered the fact that Doe had previously violated a nocontact order as evidence that he did not accept boundaries.
(Id. at 24:4-7, 26:9-16.)
The panel decided to use the definitions in the Title IX
policy,
and
by
2-1
vote,
found
Doe
responsible.
(Panel
Findings 1, Ex. 27; Trial Tr., vol. III, 88:6-8, ECF No. 54.)
They
next
addressed
the
sanction.
(Id.
at
88:12-89:23.)
Schultz advised the panel that John had previously been placed
on probation by the University for no-contact order violations.
(Id.)
(Id.)
14,
Councils
2016,
Schultz
prepared
findings
and
it
sent
to
(Trial
the
of
the
panelists
Title
for
IX
review.
later
(Id.)
forwarded
the
and
its
attachment
to
Walsh.
The next day, Walsh sent the following letter to John and
Ann:
During
both
statements
[at
the
hearing],
references were made to the relevant policy and
procedures applicable in this matter.
As Djuna
37
Perkins
cites
in her
investigation
report,
the
relevant policy is the 2014-2015 Code of Student
Conduct.
The relevant process is Browns Complaint
Process, which was in effect at the time the Complaint
was submitted. The panel was provided with the 20142015 Code of Student Conduct and instructed to review
Section III (Sexual Misconduct) of the listed Offenses
when determining whether a violation of the policy
occurred.
Ive attached both documents for your reference.
Please let me know if you have any questions.
(04/14/16 Letter from Walsh to Doe and Ann, Ex. 26.)
Walsh
Also, during a
meeting that Walsh had with Ann and her advisor on April 14,
2016 after the hearing, Walsh told them several times that the
panel was under no obligation to use the consent definition
[in the Title IX Policy] and that the applicable Code was 1415 Code, but it seemed to Walsh that Ann and her advisor were
still not clear on this issue.
On
April
19,
2016,
(Id.)
Schultz
issued
the
panels
written
defines
consent
as
an
agreement
to
engage
in
38
specific
forms
of
sexual
contact
with
another
(VIIIa).
Moreover, consent cannot be obtained
through (1) manipulation or (2) the use of coercion.
Coercion is then defined as involving verbal and/or
physical
conduct,
including
manipulation,
intimidation, unwanted contact (VIIIb).
Prior to the encounter, the Respondent himself
stated his intent to manipulate in text message:
When the Complainant accuses the Respondent of trying
to manipulate her, the Respondent says, Im trying to
manipulate you a lot Appendix D at 97 (investigative
report, p. 8).
Moreover, text messages record both
the Complainants assertion that she is not interested
in sexual activity and the Respondents refusal to
accept this limit:
When [Complainant] replies that
she just wants to be friends, the Respondent says, So
do I. I just want you to be a friend I fuck the shit
out of [Appendix D at 98]. When she replies that she
doesnt know how to make herself more clear, he says,
I get it.
Just not accepting (Appendix D at 98)
(investigative report, p. 8).
Given the Respondents
refusal to accept no during his text exchanges with
the Complainant, the panel determined that, during
their encounter in the locker room, it was more likely
than not that a) the Complainant held to this limit,
b) the Respondent persisted in his refusal to accept
it, and c) the Respondent did not ask for or receive
consent as he claims to have done.
In determining an appropriate sanction, the panel
was guided by the 2014-15 Code of Student Conduct,
which states that Violations of Offense IIIb will
result in more severe sanctions from the University,
separation being the standard. It also took into
consideration prior findings in which the Respondent
was found responsible for violating the Code of
Student Conduct, as well as his violation of a No
Contact Order.
(Panel Findings 1-2, Ex. 27.)
The next day, John obtained a temporary restraining order
(TRO) from this Court based on his likelihood to succeed on
the merits of his breach of contract claim that Brown improperly
39
(ECF No.
15.)
I.
Ann
She
(Id.)
the hearing panel should not have referenced the Title IX Policy
because it substantively changed Browns definition of sexual
misconduct.
(Id. at 1.)
(Id. at 2).
He further
argued
that
procedural
errors
occurred
(Id.)
during
John
Perkins
investigation, specifically the fact that she did not obtain and
40
(Id. at 6).
He also
April
her
26,
that
2016,
the
Walsh
Court
wrote
had
entered
(Id.)
letter
to
against
TRO
Schultz
to
Brown.
best
interests
to
address
the
Courts
concerns
Walsh and
and
Ann
(Johns
each
filed
Response
(Id. at 132:15-25.)
responses
to
Anns
to
the
Appeal,
other
Ex.
partys
32;
Anns
(Johns
[u]nder
the
2014-15
Code
of
Student
Conduct,
sexual
(Id.
Codes
language
and
should
be
sanctioned
by
the
University.
(Id.)
(05/09/16
(Id.)
Katz
regarding
complaints.
its
process
in
handling
misrepresentation
(Id.)
Athletic
Parents
and
Stewardship
Advancement;
36.)
Prior
to
the
appeal
and
Colin
boards
meeting,
Schultz
had
The appeals panel met for over two hours to review the students
respective appeals.
(Id. at 10:1-2.)
discussions.
(Id.
at
10:4-5;
Trial
Tr.,
vol.
III,
the
definition
Title
IX
Policys
42
of
consent
was
written
to
hearing
panel
to
consider
whether
there
had
been
(Id. at 15:5-
the
Title
IX
Policy
definition.
(Id.
at
15:19-16:13.)
have obtained the texts between Ann and Witness 9 because of his
conspiracy
defense,
investigators
the
judgment
panel
regarding
determined
concluded
unanimously
those
unanimously
texts
was
(Id. at 19:1220:1.)
that
43
the
that
investigator
not
the
a
The panel
did
not
(Id. at 20:1821:12.)
panel
post
also
in
denied
Anns
question
is
appeal,
not
finding
pertinent
to
that
the
the
case.
(Appeal Panel Findings 1, Ex. 36; Trial Tr., vol. IV, 11:10-24,
ECF No. 53.)
After the denial of the appeals, the Title IX Office issued
a Suspension/Expulsion Authorization Form, which has the effect
of placing a transcript notation that John has been suspended
from
Brown
for
disciplinary
reasons.
(Suspension/Expulsion
Conclusions of Law
To prevail in a breach of contract claim, a plaintiff must
prove that (1) an agreement existed between the parties, (2) the
defendant breached the agreement, and (3) the breach caused (4)
damages to the plaintiff.
F.3d 34, 39 (1st Cir. 2010) (citing Petrarca v. Fid. & Cas. Ins.
Co., 884 A.2d 406, 410 (R.I. 2005)).
To establish causation,
the plaintiff must prove that the defendants breach was the
but for cause of the alleged damages.
Uvex Winter Optical, Inc., 635 A.2d 1188, 1191 (R.I. 1994)).
The relevant terms of the contractual relationship between a
student and a university typically include language found in the
universitys
student
handbook.
44
Havlik,
509
F.3d
at
34
(citation omitted).
Id.
(citing Mangla v. Brown Univ., 135 F.3d 80, 84 (1st Cir. 1998)).
Any [a]mbiguities in a contract must be construed against the
drafter of the document, Haviland v. Simmons, 45 A.3d 1246,
125960 (R.I. 2012), which in the case of a student handbook is
the university.
However,
[b]ecause
contracts
for
private
education
have
school
educational
administration
and
doctrinal
broad
discretion
responsibilities.
to
meet
Gorman
v.
its
St.
Raphael Acad., 853 A.2d 28, 34 (R.I. 2004); see also Schaer v.
Brandeis Univ., 735 N.E.2d 373, 381 (Mass. 2000) ([C]ourts are
chary about interfering with academic and disciplinary decisions
made by private colleges and universities. . . . A college must
have broad discretion in determining appropriate sanctions for
violations of its policies. (quoting Coveney v. President &
Trustees of the College of the Holy Cross, 445 N.E.2d 136, 139
(1983))).
handbook
public
Therefore,
are
policy
the
enforceable
or
law.
rules
as
long
Gorman,
set
out
as
[they
853
A.2d
in
universitys
are]
at
not
39.
against
A
rule
by
otherwise
the
arbitrary
reasonable
organizations.
and
rules
capricious
by
the
application
officers
of
of
those
violate
violated
any
public
of
the
policy
or
specific
the
terms
law;
of
2)
its
whether
contract
Brown
and/or
is
that
importantly,
the
Brown
process
provided
was
not
Does
properly
panel
with
applied.
a
new
Most
written
Based
on
this
fundamental
flaw
in
Does
process
along
with
be
perfectly
clear,
student
is
not
entitled
to
the
case
that
any
minor
technical
violation
Nor is
entitles
in
2015,
after
Brown
introduced
its
new
Title
IX
Complaint
substantive
Process
rights
procedures
under
the
applied,
2014-15
Doe
Code.
While the
retained
Some
of
his
these
relevant
concerns
and
issues,
express
salient
Code
7,
Ex.
2)
are
in
tension
with
the
Complaint
determine
what
information
to
present
to
the
panel.
(See
under
the
Code,
Brown
is
contractually
Browns
Overall
Misconduct Cases
Process
for
Adjudicating
Sexual
discretion
in
designing
its
disciplinary
process;
the
explained
above,
Brown
has
and
reviews
all
an
investigator
evidence,
interviews
witnesses,
58:3-8,
investigator
ECF
No.
is
also
52;
Complaint
permitted
to
Process
make
Ex.
credibility
3.)
The
findings;
(Complaint
48
the
investigator
questions,
and
may
also
(Id. at 5.)
hear
from
the
(Id.)
offers
accusers
robust
support
and
vigorously
Both
and
respondents
The Court
have
ample
Browns choice to
have
investigation
trained
investigator
conduct
the
is
B.
Does
primary
argument
is
that
the
panels
use
of
the
of
his
contractual
rights.
As
Doe
stated
in
his
occurred.
(See
Does
Pretrial
Mem.
16,
ECF
No.
44
offending
aware . . . .
2015-16
Title
student
was
aware
or
should
Policy
states
that
have
been
By contrast, the
[c]onsent
cannot
be
It goes on
to
provide
specific
incapacitation,
Coercion
is
including
express
harm,
or
that
definitions
but
not
defined
as
manipulation,
implied
would
of
coercion,
manipulation.
verbal
and/or
intimidation,
threats
reasonably
of
an
id.
physical
unwanted
physical,
place
(See
force,
in
7.)
conduct,
contact,
emotional,
individual
at
and
or
and
other
fear
of
(Id.) 7
told
by
its
chairperson,
Gretchen
Schultz,
that
the
The
current
policy
defines
consent
as
an
affirmative
and
willing
agreement
to
engage
in
specific
forms
of
sexual
contact
with
another
(VIIIa).
Moreover, consent cannot be obtained
through (1) manipulation or (2) the use of coercion.
Coercion is then defined as involving verbal and/or
physical
conduct,
including
manipulation,
intimidation, unwanted contact (VIIIb).
(Panel Findings 1, Ex. 27.)
Prior
to
the
encounter,
the
Respondent
himself
stated
his
cases
adjudicated
under
the
(Id.)
2014-15
Code
before
the
the
of
dictionary.
being
allowed
(Id.)
to
freely
In
Does
decide
the
case,
however,
definition
of
consent under the 2014-15 Code, the panel was given the Title IX
Policy.
Although they were told that they did not have to use
ECF
No.
53;
Panel
Findings
1,
Ex.
27.)
This
issue
was
(See 11/4/15
codified
the
community
standards.
Indeed,
the
that
reference
before
it
was
sent
to
the
students.
argues
that
the
Title
IX
Policy
was
not
new
standards
Therefore,
of
which
Brown
all
argues,
students
Doe
should
should
have
have
been
reasonably
In
obtain
consent
by
pressuring
someone,
by
I do
threatening
(Ex. 46.)
(Tutorial
23, Ex. 40; Trial Tr., vol. II, 211:5-13, ECF No. 52 (emphasis
added).)
However,
neither
the
video
nor
the
Tutorial
Therefore, a reasonable
other
similar
consensual.
states,
could
render
an
encounter
non-
do
threatening
someone.
conduct
not
obtain
someone,
by
consent
by
coercing
pressuring
someone,
someone,
or
by
by
forcing
According to
unfair,
advantage.
or
Full
insidious
Definition
means
of
especially
Manipulate,
to
own
Merriam-Webster,
http://www.merriam-webster.com/dictionary/manipulate
visited Sept. 26, 2016).
ones
(last
10
would
buying
almost
someone
encounter.
surely
flowers
or
not
(arguably
dinner
with
artful)
the
hope
of
such
a
as
sexual
the
Court
contained
finds
in
the
that
Brown
2014-15
materially
Code,
and
altered
should
not
the
have
It is not clear to
the Court whether Brown actually intends to make any and all
forms
of
Policy.
manipulation
prohibited
conduct
under
the
Title
IX
For present
56
this
case
as
Without
(Trial
Tr.,
vol.
II,
178:15-18, ECF No. 52; Trial Tr., vol. III, 23:7-9, ECF No. 54;
Trial Tr., vol. IV, 64:17-20, ECF No. 53.)
Rodriguez testified
81:4-7, ECF No. 54; Trial Tr., vol. IV, 134:13, ECF No. 53.)
Schultz
further
testified
that
she
found
both
parties
to
be
(See id. at
Moreover,
vol. III, 76:25-77:6 [Rodriguez], ECF No. 54 (Q. Was there any
particular
texts
decision?
the
or
series
of
texts
that
influenced
your
findings
clearest
letter
that
articulation,
respondent
--
they
and
found
that
actually
used
really
was
the
the
text
term
most,
in
sort
which
of
the
manipulate.).)
given
the
Title
IX
Policy
(Trial
definition
that
explicitly
fact that the panel split 2-1, and the other less significant
procedural deficiencies discussed below, it is more likely than
not
that,
absent
Browns
procedural
58
missteps,
Does
previous
To be very clear,
convened
and
its
binding
(assuming
it
finds
no
him
responsible,
other
contract
finding
will
violations
be
occur)
The preponderance of
the evidence standard merely requires that the plaintiff tip the
scale past a 50 percent likelihood of success. 11
2.
will
include
credibility
assessments
based
on
their
(Id.)
Given
will
hinge
on
the
credibility
11
of
the
complainant
and
respondent,
with
each
these
other;
responsibilities
and
indeed,
that
may
was
frequently
the
be
situation
at
odds
here.
12
In testifying
that Does assertion that he asked for consent and that Ann was
a willing participant was belied by the text messages, Perkins
was effectively telling the panel that she thought they should
find Doe responsible.
with thats for the panel to decide, she was quite clearly
still making a recommendation of a finding of responsibility, in
violation of the Complaint Process.
Findings
statement
to
1-2,
the
Ex.
panel
27.)
Therefore
likely
affected
the
the
investigators
panels
ultimate
decision. 13
3.
Doe
Investigators Report
alleges
several
problems
with
Perkins
report
(see
Does Post-Trial Br. 134-37, ECF No. 50), all of which relate
to
his
claim
that
Ann
and
Witness
had
conspiracy
to
Perkins decided
to
include
conversation
for
information
context,
on
including
events
the
leading
fact
that
up
Ann
that
and
but cautioned:
13
Doe alleges
prejudicial
impact
as
evidenced
by
the
testimony
of
to
believe
boundaries.
that
John
was
someone
who
did
not
respect
process
states
that
the
investigator
has
The
the
and
investigation
may
exclude
report
if
information
the
in
information
preparing
is
irrelevant,
the
(Complaint
to
different
conversation
get
where
Doe.
judgment
call,
Ann
While
it
and
the
was
62
Witness
Court
both
might
talked
have
reasonable
and
about
made
within
unreasonable.
See
Schaer,
432
Mass.
at
481
(The
judges
to
tell
universities
what
statements
they
may
14
allegation.
(See
Complaint
Process
4,
Ex.
(The
information
and
investigation . . . .).)
facts
learned
during
the
Perkins
comes,
at
minimum,
dangerously
close
to
an
improper
Perkins
interviews,
she
does
found
not
Ann
simply
credible;
say
she
that,
says
based
that
on
there
her
is
65
believed.
Second,
insufficient
Perkins
evidence
to
assessment
support
Does
that
there
fabrication
was
claim
was
and
the
generally
discretion
this
of
type
the
of
decision
would
investigator.
be
well
Overall,
the
the
conspiracy
claim
and
corresponding
character
went
on
to
say
that
there
was
insufficient
evidence
to
of
Does
right
[t]o
66
be
given
every
opportunity
the
calls.
Court
will
generally
not
second-guess
her
judgment
16
The Court will not dictate how Brown should handle these
issues if Doe receives a new hearing.
One obvious solution
would be for the investigator to determine that the overheard
conversation, the text messages between Ann and Witness 9, and
the character evidence are all irrelevant to the question of
consent, and to redact that information from her report. While
arguably this approach could run up against his right under the
2014-15 Code to have every opportunity to . . . offer evidence
before the hearing body or officer (2014-15 Code 7, Ex. 2), it
is clear that this right is not unlimited and an investigator
must retain the discretion to make judgment calls about
relevance.
Those calls will be respected as long as they are
not arbitrary or capricious. Another option might be to remove
the paragraphs in which the investigator comments on the merits
of Does fabrication defense - namely, footnote 26 from As
discussed further below to freely and voluntarily given, and
the final paragraph of the report before Conclusion on page
29. As stated above, without the investigators commentary that
67
4.
The
2014-15
Code
gives
Doe
the
right
to
have
every
was
required
to
give
his
statement
to
the
statements.
give
Complaint
rebuttal,
Process
but
does
that
not
At the
before
Ann.
provide
was
for
denied
rebuttal
(Id.) 18
panel
requests,
and
may
deny
rebuttal
statements.
The
and
issues,
express
salient
opinions,
and
offer
(2014-15 Code 7,
to
articulate
relevant
concerns
and
offer
Doe v. Brown
at
the
hearing.
19
That
said,
while
this
error,
standing alone, would not be enough for Doe to get a new hearing
because he has presented no evidence that, if he had been given
the opportunity to give a rebuttal, the panel would not have
found him responsible; when combined with other errors as set
forth
herein,
it
is
clear
that
Does
contract
rights
were
violated.
C.
Specifically
he contends:
141. The panels failure to address Anns delay in
reporting
violated
Johns
right
to
panel
consideration of all relevant evidence, that is,
any facts or information presented in support of
his assertion that the encounter was consensual
and that Ann was subsequently motivated by hard
19
feelings.
Moreover, it failed to consider that
human memories are transient and susceptible to
such factors as hindsight bias, suggestibility,
and anger or hostility. . . .
142. Prof. Rodriguez[s] failure to accord Anns postencounter texts, communications and actions face
value violated Johns right to a fundamentally
fair hearing and panel consideration of all
relevant evidence.
143. The panels determination that previous sexual
conduct is irrelevant, including Anns sexual
banter with John, violated Johns right to a
fundamentally
fair
hearing
and
panel
consideration of all relevant evidence.
144. Browns
consideration
of
Anns
pre-encounter
actions and texts, but only as evidence of her
hesitation, placed Johns defense at a decided
disadvantage
and
violated
his
right
to
a
fundamentally fair hearing.
145. Prof.
Rodriguez[s]
disinclination
to
pass
judgment on Anns actions biased her in Anns
favor, thereby violating Johns right to a
fundamentally
fair
hearing
and
panel
consideration of all relevant evidence.
(Does Post-Trial Br. 141-45, ECF No. 50 (citation omitted).)
Because the Court has decided that Doe is entitled to a new
panel due to Browns procedural violations, these arguments are
not outcome determinative.
the
way
Brown
chooses
to
instruct
panelists
going
forward.
This is a challenging area because it is imperative that a
court not overstep and substitute its judgment for that of the
70
panel.
the
weight
they
deem
everything presented.
appropriate,
so
long
as
they
consider
However,
Rodriguezs testimony that she did not consider any of the postencounter evidence in reaching her determination that Doe was
responsible for sexual assault is concerning.
vol. III, 45:5-8, ECF No. 54 (Q. Okay.
A. I would
(Id. at 52:11-
expertise
to
assess
[Ann]s
post-encounter
conduct
(Id. at 48:13-14.)
Yet
to interpret the
In a criminal or
like
the
counter-intuitive
nature
of
sexual
evidence.
before
However,
deliberating
that
the
it
jury
is
would
their
role
also
to
be
instructed
weigh
all
the
decide
whether
this
rises
to
the
level
of
arbitrary
and
training
on
the
effects
of
trauma,
or
that
it
should
However, given
explicit
reminding
instruction
them
that
to
all
panelists
the
evidence
before
in
they
the
deliberate,
investigators
And moreover,
consider
it,
this
could
be
presented
through
the
In contrast, if no one is
First, there is no
basis in the Code or the Complaint Process for Does claim that
he is entitled to a panel that reflect[s] the make-up of the
Brown community and take account of the perspectives of both
genders.
(Id.) 21
Doe had a
one
on
responsible.
the
appeals
panel
voted
to
find
him
not
available
had
conflicts.
(Trial
Tr.,
vol.
II,
27:15-
21
2.
Doe
Definition of Coercion
argues
that
[t]he
panels
failure
to
focus
on
be
adjudged
community
under
the
and
[t]he
norm
2014-15
Code
panels
and
finding
the
then-existing
of
responsible
that
would
reasonably
place
an
individual
in
fear
of
Doe
is
clearly
listed
as
separate
category
from
coercion
or
force;
or
(3)
by
taking
advantage
of
the
If
separate
term.
Instead,
it
stands
to
reason
that
Title
not
IX
Policy,
manipulation
that
does
place
the
other
point,
consider
the
new
panels
task
will
be
to
whether
limited
grounds
of
substantial
procedural
error
that
on
the
consider
Johns
(Compl.
2015-16
claim
Complaint
that
the
Process
decision
in
refusing
against
him
to
was
2014-15
Code
that
76
[a]ppeals
will
normally
be
considered
only
evidence.
on
the
(2014-15
Code
grounds
10,
of
Ex.
procedural
(emphasis
error
or
added).)
new
Doe
breached its implied duty of good faith and fair dealing because
the appeal officer (Sarawgi) was improperly influenced by the
phraseology of [a] crime alert [naming the plaintiff] and her
conversation
with
Martel
student affairs].
that
[t]he
[the
Universitys
Id. at 35.
relevant
terms
of
vice-president
for
contractual
relationship
university
explicitly
promises
an
Id. at 34.
appeal
[I]f
process
in
Id.
The Court
found that [i]n the absence of any probative evidence that the
appeal
officer
ignored
promised
protections,
improperly
77
Code,
reasonable
student
would
that,
in
has
made
reasonable
no
student
showing
would
that
expect
his
case
is
procedures
one
in
outside
which
what
a
is
normally followed. 22
22
4.
to
articulate
relevant
concerns
and
issues
and
50.)
that
He
further
argues
Browns
explanation
for
its
refusal on the basis that its Complaint Process does not address
sur-replies and therefore prohibits them is inconsistent with
Ms. Walshs claim that her editing of Ms. Perkins report was
permissible because the Complaint Process does not address or
forbid it.
(Id.)
right
concerns
to
and
have
every
issues,
opportunity
express
salient
to
articulate
opinions,
relevant
and
offer
(2014-15 Code 7,
(Complaint Process
It is irrelevant that
Walsh
edited
specifically
Perkins
provided
report
for
in
even
the
though
Complaint
that
was
Process.
not
Where
to
There
prohibit
was
nothing
Does
unreasonable
sur-reply.
As
about
Walsh
Browns
testified,
DENIED.
Leave
requires.
to
amend
must
be
freely
given
when
justice
so
That is not to
Id.
(citing
Forman
v.
80
Davis,
371
U.S.
178,
182
(1962)).
In
this
case,
Does
Motion
is
denied
because
the
Promissory Estoppel
Promissory
estoppel
is
an
equitable
remedy
that
is
See E.
as
substitute
for
consideration,
rendering
A.2d
18,
21
(R.I.
1985)).
Under
Rhode
Island
law,
2)
Reasonable
and
justifiable
reliance
upon
the
he
and
representation
his
that
counsel
the
detrimentally
2014-15
Code
relied
would
on
apply
Browns
to
his
the 2014-15 Code when he appeared before the panel, while the
alleged victim, Ann, focused on the 2015-16 Title IX Policy
that the panel decided would control.
There
an
obligation
to
adjudicate
the
substance
of
Does
case
under the 2014-15 Code rather than the 2015-16 Title IX Policy; 23
yet this is the same promise on which Doe bases his promissory
estoppel
claim.
If
Brown
had
represented
to
Doe
something
the
student-university
relationship
is
governed
by
23
B.
With
Attorneys Fees
respect
to
Does
claim
for
attorneys
fees,
Rhode
ADP
This
IV.
Conclusion
For the reasons set forth above, the Court concludes that
its
finding
record accordingly.
and
sanction
against
Doe
and
expunge
his
Brown from re-trying Doe on the same charge with a new panel
consistent with the policies and procedures that apply and with
the
Courts
instructions
contained
William E. Smith
Chief Judge
Date: September 28, 2016
84
herein.
Does
Motion
to