Over eight years after the US Department of Education’s Office for Civil Rights’ [“OCR”] issued its April 4, 2011 “Dear Colleague” letter on campus sexual assaults, the torrent of lawsuits continues, filed primarily by male students who claim they were unjustly disciplined in adjudicatory processes that were prosecuted ineptly or in bad faith. As this body of law has evolved, courts have been giving increasing credence to process-related constitutional and contractual legal theories, but they have routinely dismissed claims that the challenged discipline was driven by the student’s gender in violation of Title IX. It was, therefore, noteworthy when the United States District Court recently declined to do so in Harnois v. University of Massachusetts at Dartmouth. One would be hard-pressed to find more egregious allegations than those in Harnois.

The plaintiff, John Harnois, is a disabled veteran who enrolled at the University to pursue a doctorate in Oceanography. Harnois had a prior criminal conviction, which he disclosed, but he was assured that it would be kept confidential. In May 2016, however, near the end of Harnois’ first year, Assistant Vice Chancellor for Student Affairs Cynthia Cummings summoned him to a meeting…

…In Aug. 2016, the University informed Harnois that it could not substantiate any violations. Nonetheless, it issued him a written sanction, limited his interactions with other students, confined him to “a remote, supervised workspace,” removed his faculty thesis advisor, and changed his matriculation status to a non-thesis degree candidate, an outcome that would seem analogous to a criminal defendant being found not guilty but still being sentenced. Perhaps not surprisingly, Harnois requested a leave of absence to seek stress-related psychological treatment.

Harnois’ subsequent lawsuit included four Title IX claims, including selective enforcement and erroneous outcome. “Selective enforcement” is just that – an assertion that the disciplinary process was applied selectively to a student based on gender…Unlike prior cases, in which the plaintiffs had been unable to draw a causal link between such speculative contentions and their own plights, Harnois had Cummings’ purported threat “to ‘get his kind,’” which was interpreted to mean “men.” Thus, the court held that Harnois had sufficiently alleged gender as a “‘motivating factor’ in the decision of UMass Dartmouth to initiate a baseless Title IX investigation.” The court also declined to dismiss Harnois’ erroneous outcome claim, which requires evidence that casts doubt on the accuracy of a Title IX investigation’s outcome and shows gender bias to be a “motivating factor” behind it.

The survival of Harnois’ selective enforcement and erroneous outcome claims is a result that has eluded most, if not all, of the plaintiffs who have brought similar claims against their respective schools, a dubious distinction for UMass Dartmouth.

In many cases, the truth lies somewhere between a plaintiff’s sometimes hyperbolic allegations and a defendant’s flat denials. Harnois, however, has alleged conduct that, if true, should be easy for him to prove, such as whether there were any preexisting complaints against him, whether the University solicited complaints once its investigation began, and whether he was sanctioned despite not having violated either school policy or Title IX. If he can establish that such inequitable and unfair treatment occurred, he will still need to establish the defendants’ motive. if Harnois can convince a jury regarding the genesis, handling, and consequences of the Title IX investigation, it will not be difficult for jurors also to accept his claim that Cummings threatened him and that that alleged threat constituted gender bias.

jdsupra.com

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This year has featured a number of important breach of contract victories for accused students in New England. An accused student from Boston College prevailed in the first post-Dear Colleague letter jury trial, in September. In a detailed ruling, Judge Alfred Covello denied summary judgment to Yale in the Jack Montague case, prompting the university to settle. And a settlement also occurred in the Quinnipiac College case after Judge Janet Arterton denied summary judgment to the school (on Title IX grounds as well). Another denial of summary judgment occurred in the Bard lawsuit.

The latest university to experience a denial of its breach of contract summary judgment motion was Johnson & Wales University, in Providence; Judge Mary McElroy issued a ruling late Tuesday afternoon on the motion. The facts of the case: A male and female student had a brief, casual sexual relationship. Many months later, the female student’s new boyfriend told the JWU police that her final two encounters with her ex-boyfriend were nonconsensual. The female student elected not to file Title IX charges—only to change her mind a few months later.

The case was assigned to U.S. District Judge John McConnell. McConnell seemed troubled by JWU’s refusal to turn over the training materials. More broadly, he noted that, given the facts of the case as alleged in the complaint, he could “find no reason at all as to why . . . the result was Mr. Doe’s expulsion. The hearing on JWU’s summary judgment motion was delayed to accommodate Doe’s lawyer, James Ehrhard, who had a trial in another case. Shortly thereafter, McConnell turned the case over to the newly-confirmed Nancy McElroy, originally an Obama nominee. In its briefs, JWU urged near-total deference by the court to university decision-making. Judge McElroy disagreed. She relied heavily on the First Circuit’s 2018 Boston College (BC I) decision, in which a panel with no overlap to the BC II panel articulated a much less deferential role for the federal judiciary in determining whether fairness case should proceed to trial. The BC II case, she argued, “presented a very different situation” than the JWU matter. “’Fair,’” McElroy correctly noted, “is not a term with a commonly accepted definition. It is conclusory: its precise meaning fluctuates with the context in which it is used.” Accordingly, the specifics of the case at hand mattered—and, indeed, procedures that might be fair in the context of a plagiarism allegation might not be in the context of a Title IX adjudication.

McElroy therefore offered a broad definition of fairness that relied on a common sense application of the concept. In this respect, her ruling joins a handful of cases—Brandeis, Amherst, George Washington, Notre Dame, Yale—where courts, encountering a complaint of a seemingly innocent student arbitrarily found guilty, have shown scant deference to the university finding and instead have stressed the need for a truly fair adjudication.

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