United States District Court, D. Rhode Island
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.
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: 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. 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. 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 timely notice, he would have uncovered that Dean Bova was involved in a prior sexual assault case at Brown that was allegedly mishandled and resulted in a lawsuit, McCormick v. Dresdale. ( Id. ¶ 62.)
Brown went forward with the hearing on November 21, 2014. John alleges a number of procedural deficiencies in the hearing process including:
His faculty advisor's cross-examination of Jane was ineffective, in part because the advisor refused to make use of an extensive outline from John that detailed the multiple inconsistencies in Jane's reports. ( Id. ¶ 69.)
Jane's advisor requested (without stating any justifying reason) that John be stopped from speaking only a few seconds into his mid-point testimony, and the Panel granted this request. John had given a very limited opening statement, anticipating that he would present the majority of his arguments in the mid-point statement, after Jane had testified. As a result, John was prevented from presenting many of his arguments. ( Id. ¶ 74.)
On December 2, 2014, John was found "responsible" for all four Charges, namely: (i) Actions resulting in physical harm to others; (ii) Sexual Misconduct: non-consensual sexual contact; (iii) Sexual Misconduct: non-consensual sexual penetration; and (iv) illegal possession or use of alcohol. ( Id. ¶ 82.) John was sanctioned with a 2.5 year suspension. ( Id. ¶ 83.) He subsequently filed an internal appeal, which was denied by Deputy Provost Joseph Meisel. ( Id. ¶¶ 85-86.)
It is worth stating at the outset that ensuring allegations of sexual assault on college campuses are taken seriously is of critical importance, and there is no doubt that universities have an exceedingly difficult task in handling these issues. Equally important is the fact that claims of "sexual misconduct" may in some cases, like this one, also be accusations that constitute serious felonies under virtually every state's laws, which carry penalties ranging from years to life in prison. While there is a fundamental question whether the way in which universities have chosen to respond to allegations of sexual misconduct in response to the Dear Colleague Letter is appropriate given the criminal nature of some of the allegations involved, the issue before the Court at present is only whether - taking the facts pled in the Complaint as true and making all reasonable inferences in favor of the plaintiff - he has stated a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has explained that:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.... The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'"
Id. at 678 (quoting Twombly, 550 U.S. at 556-57). This is the standard that the Court must adhere to; it may not weigh evidence at this stage. See Twombly, 550 U.S. at 556 ("[O]f course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable...."); Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013) ("[I]t is manifestly improper to import trial-stage evidentiary burdens into the pleading standard.").
The First Circuit has instructed that "[t]he plausibility inquiry necessitates a two-step pavane." Id . (citing Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013)). The court must first differentiate between "the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Id . (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Next, "the court must determine whether the factual allegations are sufficient to support the reasonable inference that the defendant is liable for the misconduct alleged.'" Id . (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)). Moreover, the First Circuit has "emphasize[d] that the complaint must be read as a whole" and thus "[t]here need not be a one-to-one relationship between any single allegation and a necessary element of the cause of action." Id . (quoting Rodríguez-Reyes, 711 F.3d at 55). With this standard in mind, the Court now turns to an analysis of Plaintiff's claims.
A. Title IX
Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Title IX "is enforceable through an implied private right of action... for monetary damages as well as injunctive relief." Yusuf v. Vassar Coll., 35 F.3d 709, 714 (2d Cir. 1994). The analysis of a Title IX violation is similar in many respects to Title VII, with the exception that, unlike a Title VII claim, a Title IX claim may not be premised on the "disparate impact" a policy has with respect to a protected group. Doe v. Columbia Univ., 101 F.Supp. 3d 356, 367 (S.D.N.Y. 2015). Therefore, "[i]t is not enough to show that a policy or practice disproportionately affects one sex"; instead, "a plaintiff must ultimately show that the defendant discriminated against him or her because of sex; that the discrimination was intentional; and that the discrimination was a substantial' or motivating factor' for the defendant's actions." Id . (emphasis in original) (citing Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001)). "It is well established that a school's failure to prevent or remedy sexual harassment of a student, including sexual assault, may violate Title IX." Id. at 366. However, "it is equally well established that Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline.'" Id. at 367 (quoting Yusuf, 35 F.3d at 715).
1. Erroneous Outcome
In Yusuf, the Second Circuit developed a framework for cases attacking university disciplinary proceedings on the ground of gender bias, which "fall generally within two categories" - "erroneous outcome" and "selective enforcement." 35 F.3d at 715. Although the First Circuit has not directly confronted the issue, district courts in the First Circuit have looked to the framework established in Yusuf, subject to the heightened pleading standard set forth in Twombly and Iqbal. See Doe v. Univ. of Massachusetts-Amherst, No. CV 14-30143-MGM, 2015 WL 4306521, at *8 (D. Mass. July 14, 2015).
In the first category, "erroneous outcome" cases, "the claim is that the plaintiff was innocent and wrongly found to have committed an offense." Yusuf, 35 F.3d at 715. A plaintiff making an erroneous outcome claim must first "allege particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding." Id . Once the plaintiff has established doubt concerning the accuracy of the proceeding, they must next "allege particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding." Id . (citations omitted). The Yusuf court noted that "[s]uch allegations might include, inter alia, statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender." Id.
In the second category, "selective enforcement" cases, the "claim asserts that, regardless of the student's guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student's gender." Id . Here, Doe has pled a Title IX claim based on an erroneous outcome (Compl. ¶¶ 106-39, ECF No. 1), but not selective enforcement.
On the first prong of Yusuf, the Court finds that Doe has pled "facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding." Yusuf, 35 F.3d at 715. Taking the facts in Doe's Complaint as true and drawing all reasonable inferences in his favor, Brown ignored exculpatory evidence, including the victim's own testimony in the Oct. 18 Complaint that she had in fact articulated consent. (See Compl. ¶ 35, ECF No. 1.) The question is therefore whether Doe has pled sufficient facts to plausibly allege that Brown discriminated against him based on his gender.
In the wake of Twombly and Iqbal, district courts have struggled to discern the line between "plausibility" and "sheer possibility, " and this recent wave of college sexual assault claims has been equally vexatious. In particular, because Yusuf was decided before Twombly and Iqbal, courts lack guidance on what qualifies as "particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding." Yusuf, 35 F.3d at 715. In Yusuf, the court found that the plaintiff's alleged deficiencies in his disciplinary proceeding coupled with his allegation "that males accused of sexual harassment at Vassar are historically and systematically' and invariably found guilty, regardless of the evidence, or lack thereof'" to be sufficient. Id. at 716. The court reasoned that:
Similar allegations, if based on race in employment decisions, would more than suffice in a Title VII case, and we believe they easily meet the requirements of Title IX.
The allegation that males invariably lose when charged with sexual harassment at Vassar provides a verifiable causal connection similar to the use of statistical evidence in an employment case. See, e.g., Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990). We need not pause at the pleading stage of the proceedings to consider issues regarding what statistical sample would be significant or what degree of consistency in outcome would constitute a relevant pattern.
Yusuf, 35 F.3d at 716. However, courts have split on whether allegations along these lines - that due to pressure from the OCR, men accused of sexual assault are invariably found guilty - pass muster after Iqbal and Twombly. Put another way, absent any female comparators at the pleading stage, is the allegation that schools are concerned about appearing too lenient on male students accused of sexual assault, and therefore those students are systematically found guilty regardless of the evidence, a factual allegation - which must be credited - or a conclusory legal allegation - which does not get the presumption of truth.
For example, the court in Univ. of Massachusetts-Amherst granted the defendant's motion to dismiss because "Plaintiff has not cited examples of any comments that targeted him based on his gender - as opposed to his status as a student accused of sexual assault - or any conduct suggestive of gender bias." 2015 WL 4306521, at *8. Likewise, the court in Columbia, on which Brown heavily relies, found that "while Columbia may well have treated Jane Doe more favorably than Plaintiff during the disciplinary process, the mere fact that Plaintiff is male and Jane Doe is female does not suggest ...