©2016 Kenneth N. Margolin
On March 31, 2016, the United States District Court for the District of Massachusetts (Judge F. Dennis Saylor IV), in the case of John Doe v. Brandeis University, issued an important decision on campus sexual assault proceedings. While the decision was at a preliminary stage of the lawsuit – the Court denied several counts of the University's Motion to Dismiss the action – Judge Saylor lambasted the University for finding a male student "responsible" of sexual assault of his long-time boyfriend, in a process that did not adequately protect the rights of the accused. Much of Judge Saylor's criticism of Brandeis' Title IX procedures would apply to most colleges or universities in the country.
Judge Saylor noted that even though college sexual assault disciplinary proceedings are not criminal, the impact on the accused if found responsible bears some similarities to the impact of a criminal conviction. He was especially concerned with the permanent taint on the accused's transcript, a universal feature of college Title IX sexual assault rules. Even though federal courts do not generally tell private universities how to conduct their affairs, he wrote that the law requires that "the university must provide its students with some minimum level of fair play." He questioned whether the elimination of basic procedural protections to the accused in order to make it easier for sexual assault victims to prove their cases, was a fair tradeoff, given the "substantially increased risk that innocent students will be punished." Judge Saylor reminded colleges that whether or not an accuser was a "victim" "is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning." With that understated comment, Judge Saylor put his finger directly on the witch hunt mentality that pervades American colleges on the sexual assault issue.
Particularly important was the Court's recognition that what constitutes basic procedural fairness must bear some relationship to the interests at stake for the accused; i.e., the greater the stakes, the greater must be the procedural protections. That true sexual assault victims have historically often not been taken seriously, is no justification for scant protections for the accused. Every allegation, the judge recognized, must be decided on its own merits. Among the absent procedural protections which troubled Judge Saylor were: (1) no right to counsel presenting the accused's case; (2) no right to confront and cross-examine witnesses; (3) inadequate notice of the details of charges, until the accused is required to tell his version of events; (4) the weak "preponderance of the evidence" standard to find an accused "responsible;" (5) ineffective appeal rights, in that arbitrariness and capriciousness, and a finding not sustained by the evidence, were not grounds for an appeal.
No deference was shown to the federal Department of Education, which in its April 4, 201l "Dear Colleague" letter mandated that all schools receiving federal funds – nearly all colleges and universities in the country – use the "preponderance of the evidence" standard in campus sexual assault deliberations,. "The lower standard may thus be seen," Judge Saylor wrote, "as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused."
In his John Doe v. Brandeis University Decision, Judge Saylor, like the child in the fable, "The Emperor's New Clothes," saw through a delusion, in this case, the claim fostered by the federal government and accepted with little protest by academia, that it is just to permanently damage a student's reputation after depriving him of the meaningful ability to defend himself. In the Brandeis University case, the federal court asserted its traditional role as guardian of our liberties. Let us hope that the decision is followed by many more that will ultimately dismantle the dangerous madness of unfair university sexual assault proceedings.