A win for due process at Brown University

Judge William E. Smith, a George W. Bush appointee, allowed an accused student’s lawsuit against Brown University to survive the school’s motion to dismiss. Such requests have been difficult for accused students to overcome in the past, and Smith notes as much in his ruling.

Most notably, Smith called out Judge Jesse Furman (not by name) — a President Obama appointee — for dismissing a lawsuit from an accused student suing Columbia University. Smith argued that Furman created an impossibly high bar for the plaintiff in that case by demanding that they provide evidence of gender bias in order to survive a motion to dismiss.

“One particular challenge in these types of cases is that the best information for discerning whether alleged discrimination was based on the plaintiff’s gender as opposed to his status as an accused student is generally in the possession of the defendant: namely, what are the overall outcomes of such cases and, more specifically, how have cases been handled in which the accused student is female and/or the alleged victim is male?” Smith wrote.

Furman suggested in the Columbia case that he wasn’t necessarily saying a student had to prove bias to survive a motion to dismiss, yet went on to say the student needed data relating to the number of women accused at the university or another university. Smith argued that records like this are not public and would likely be unattainable by a suing student before discovery. Smith also wrote that the evidence Furman required is “more akin to what would be required at summary judgment.”

Thus, Smith upheld the student’s allegation that he was discriminated against because of his male gender, which led Brown to reach an erroneous outcome in suspending him for two-and-a-half years.

The accused student’s lawsuit also argued a breach of contract with Brown over the school’s treatment of him once he was accused. The student argued 11 counts of a breach of contract, and Judge Smith upheld seven while granting Brown’s motion to dismiss the other four.

On one count, Smith found that Brown violated its own code of conduct when it treated the accused student as guilty from the start and banned him from school resources, even though the code allows all students access to its facilities. Brown also erred, according to Smith, when it allowed an administrator not specifically named in the code of conduct as having the authority to remove a student from campus to ban the accused student from the campus.

Brown also stated in its code of conduct that the school “will respond to requests from respondents and complaining witnesses during the prehearing phases of the student conduct procedures.” The accused student alleges the school did not respond to several of his requests for the evidence against him and for additional time to respond to the evidence he was provided. Smith upheld this breach of contract claim as well.

Smith also upheld the student’s claim that he was not provided “an opportunity to offer a relevant response” to the evidence against him, specifically when he was denied the chance to make a statement in the middle of his hearing when he was entitled to do so. Brown also failed to provide the student with “a reasonable length of time to prepare a response to the charges,” after the school gave him just four days to respond to 80 pages of evidence, including medical records.

Judge Smith also upheld the student’s breach of contract claims when it comes to the lack of “every opportunity” to participate in the disciplinary process and when he was denied the required two-day notice to investigate a member of the hearing panel for bias.

Smith makes sure to note that the facts gathered during discovery may not prove what the accused student alleges, but that his claims are enough to clear a motion to dismiss and move on to the next phase.

The accused student did not receive a slam dunk from Judge Smith. Several of his claims were dismissed, including his claim of “deliberate indifference.” Smith accepts Brown’s argument that deliberate indifference claims “are typically brought in cases where a school has ignored a victim’s complaint of sexual harassment or assault.”

While Smith did a lot of good in this judgment, it’s difficult to see how a falsely accused student shouldn’t also be able to bring a claim of deliberate indifference, when they are the victim in the case.

Of the breach-of-contract claims alleged by the accused student, Smith dismissed four, including one suggesting Brown should have provided the student off-campus housing when it banned him from his dorm after the accusation. Smith also didn’t accept the argument that Brown didn’t apply its alcohol policy to the accusing student, even though she was underage and drinking as well. Smith wrote that Brown made no promise in its rule book that it would uniformly enforce the policy.

Smith also dismissed the student’s claim that the school “fail[ed] to review evidence/witnesses offered by [the] plaintiff prior to making the determination to file the charges.” Smith said that Brown’s rules was only required to collect evidence, and not required to properly consider the evidence.

Another breach-of-contract claim was dismissed because Brown only required seven days for the initial file to be submitted, allowing additional information to be submitted up to four days before a hearing.

The accused student in this case received a major win in surviving a motion to dismiss in federal court, when many other students have failed. The saddest part, however, is that many of his breach-of-contract claims were only upheld because Brown broke its own policies, meaning that if Brown’s policies were horribly lacking in due process — but it followed those procedures — the student likely would have had most of his claims dismissed.

This would set up an incentive for schools to provide accused students with no meaningful way to defend themselves and avoid a breach-of-contract claim.

The accused student’s attorney, Andrew Miltenberg (who was also the attorney for the dismissed Columbia case), told the Washington Examiner that he was pleased with the judge’s decision and the precedent it set for future accused student lawsuits.

“Up until now, courts have misapplied the legal standards or otherwise refused to acknowledge the very serious ramifications that sexual assault allegations have on the accused,” Miltenberg said.

“Most important however, is that Judge Smith offers groundbreaking analysis in stating: ‘Requiring that a male student conclusively demonstrate, at the pleading stage, with evidence and/or data analysis that female students accused of sexual assault were treated differently is both practically impossible and inconsistent with the standard used in other discrimination contexts,'” Miltenberg added. “We expect this decision to have a significant impact on the manner in which courts view Title IX cases.”

Brown University did not immediately respond to a request for comment.

Ashe Schow is a commentary writer for the Washington Examiner.