BIG WIN! Male Student Gets Trial on Fairness of Johnson & Wales Sex Assault Hearing
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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