The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Although the general rule on America's campuses today is that students accused of sexual assault are denied a fair chance to defend themselves, some schools stand out for their special zeal on the matter.
This list includes Amherst, Swarthmore, Occidental, Columbia and Brown; this post examines Brown, which has been sued by at least four accused students in recent years. It has not prevailed in any of those cases, with one pending. Yet even as the university was suffering multiple defeats in the courts, it has revised its procedures— under strong pressure from students and some faculty—to weaken the meager protections that accused students once had.
These changes led to the first full-scale trial in a campus sexual assault lawsuit since before April 2011, when the Obama administration required colleges to adopt procedures more likely to find students guilty. The trial occurred this past summer, before Chief Judge William Smith of the U.S. District Court in Providence. The public nature of the proceedings exposed in detail the troubling execution of Brown's secretive process.
The case began in November 2014, when two members of the Brown debate team (whom we'll call Sarah Sanders and Joe Jones) engaged in a brief period of flirtation, including hundreds of text messages. Jones made clear he wanted to have sex with Sanders but had no interest in a relationship. At one point he texted her that he wanted to "manipulate" her—an especially unfortunate choice of words, as it turned out—into agreeing with him. The two eventually had sex while watching a movie. Later, Sanders told a roommate that she wanted to hook up with Jones again. And the two briefly continued to flirt through texts. Then Jones told Sanders that he wanted to have sex with one of her friends and asked her to put in a good word for him. Sanders passed this along to the friend, whose reaction was, understandably, very negative.
Under prodding from the same friend, Sanders eventually came to decide that she had not consented to sex with Jones while watching the movie, and thus that he had sexually assaulted her. Sanders never reported this alleged crime to the police. And unlike most campus sexual assault accusers, she had not been drinking that night (nor had Jones), and thus could not claim that she had been incapable of giving legal consent.
Sanders did, however, file a sexual assault claim with Brown, around a year after the alleged sexual assault. A few months before, Brown had begun the 2015-2016 academic year by expanding its definition of sexual assault, as discussed below. Moreover, the university adopted new procedures for adjudicating sexual assault allegations. Under these procedures, the Title IX office hires an investigator, who produces a preliminary report for the university. The case then proceeds to the Title IX Committee, chaired by Professor Gretchen Schultz, a specialist in gender and sexuality studies. As a non-voting member, Schultz chooses three panelists (all members of the Brown community) to hear cases with her. That panel hears separately from the investigator, the accuser and the accused student; the accused student cannot cross-examine either the investigator or his accuser. In the case at trial, Schultz was also a non-voting member of a three-person panel assigned to hear Jones's appeal, and thus participated in the discussion about whether a decision in which she had played a part was wrong.
Following 2014 Obama administration guidance that colleges provide "training" for members of sexual assault disciplinary panels, all members of the panel that heard Jones's case received training from university administrators. While Brown, like all other universities, has refused to publicly release its training materials, the gist of the materials that have leaked from Stanford, Middlebury and some others raises serious questions about the fairness of these items. It's as though criminal prosecutors were permitted to show jurors materials designed to make them more likely to convict, in secret meetings closed to the defense.
One of the Brown panelists, Associate Dean Besenia Rodriguez, testified to Smith that the school's training had led her to ignore the fact that Sanders sent text messages after the incident discussing the encounter in a highly positive fashion and referencing a "plan" to again have sex. As Smith later observed, Rodriguez's admission that she chose to ignore this highly relevant, seemingly exculpatory evidence likely violated Brown's own procedures. It also showed the danger of one-sided training.
Under the 2014 rules that were in effect during the incident, Jones had clearly not violated the school's definition of sexual assault (sexual contact with a partner who was incapacitated or being coerced). But in its 2015 rule changes, Brown substantially broadened the definition of consent to include "manipulation." By this absurdly vague definition, Smith observed, even "the old school use of presents and flattery" arguably could convert consensual sex into assault. And conveniently for Brown's guilt-presuming system, Jones's use in a 2014 text of the word "manipulate"—whatever he meant by that—at least superficially fit the 2015 definition (whatever that was supposed to mean) like a glove.
But how could a fair process hold Jones culpable for violating a definition that didn't exist at the time of the clearly consensual sex? Indeed, Brown officials had told him that he'd be judged according to the 2014 definition. Schultz, however, instructed the panelists that they could use the 2015-2016 definition in their deliberations. She failed conspicuously to provide a coherent justification for this when cross-examined in court.
This was too much for Smith, even though he had made clear at several points how reluctant he was to intervene in the matter. He vacated Brown's finding against Jones. Before doing so, he got a taste of the campus contempt for due process. A student named Alex Volpicello organized a student letter-writing campaign to pressure the judge to uphold Brown's judgment. Such intimidation had worked time and again on the Brown administration. But it appears to have backfired with Smith. He wrote that federal courts "cannot be swayed by public opinion"; that the pressure campaign was improper; and that 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."
Despite his victory, it appears that, at least in the fall semester, Jones did not return to Brown.
The courtroom performances of Brown's officials typified that of other college administrators around the country when confronted with hard questions by lawyers, who are usually silenced in campus disciplinary processes. In this respect, lawsuits like those against Brown perform a vital public service. By dragging the campus kangaroo courts out of the shadows and into the sunlight, they almost invariably shock observers who have some idea what fairness looks like.