A former Brandeis student is suing the university after it gave him a disciplinary warning for violating its code of sexual misconduct. He's claiming the investigation into the alleged misconduct deprived him of due process and the disciplinary warning jeopardizes his goal of attending law school and pursuing a career in public service and politics.
The ex-student has not identified himself in the lawsuit, instead using the name "John Doe." Brandeis is opposing his request for anonymity. WBUR is not naming the student because he has not identified himself publicly. WBUR is also not naming his accuser — the student's former boyfriend — so as not to identify the accused student by association.
As we reported last year, the student's ex-boyfriend claimed the student had non-consensual sexual interactions with him.
To investigate the case, Brandeis used a special examiner, who concluded that the student caused his ex-boyfriend physical harm, committed sexual misconduct and acted without his ex-boyfriend's consent.
In his lawsuit, the student suing the school says he was asked by the special examiner to remember events that occurred over the course of a nearly two-year-long relationship that he says were not imprinted in his memory because to him they were unremarkable. In her report, of which WBUR obtained a summary, the examiner found his responses inconsistent. Because she found his ex-boyfriend's responses more consistent, she found the ex-boyfriend, on the whole, more credible.
In his lawsuit, the student claims that by using a special examiner — a growing trend on college campuses — Brandeis deprived him of the most basic elements of fairness and due process. He says in the suit he never had an opportunity to confront his accuser, question witnesses or present a defense. He says he never knew what his accuser had said about him or what the factual basis for the charges against him were, and that he was never allowed to read the examiner's report. He says it was only after the examiner found him responsible of the charges against him that he learned of the specific conduct he was alleged to have engaged in.
Only then, he says, was he provided with the special examiner's report.
The student claims that Brandeis should have given him a hearing, something he says he did not get with the special examiner process.
The U.S. Department of Education, which is currently investigating how Brandeis handled this case, said in a statement that investigations "may include a hearing to determine whether the conduct occurred, but Title IX does not necessarily require a hearing."
Title IX is the federal law that regulates how colleges handle sexual assaults.
Brandeis says it won't comment on the specifics of this or any case. But the university did release a statement. It reads:
Our processes and policies are in compliance with Title IX, and we are confident that we acted appropriately in the investigation of the complaint that gave rise to this lawsuit. We plan to vigorously defend ourselves against the claims made in this case.
The student's ex-boyfriend would not comment on the lawsuit, but issued a statement pointing out that the examiner found the student responsible for sexual misconduct.
In the lawsuit the student also claims Brandeis either leaked the findings of the special examiner to current and prospective employers, or failed to protect the confidentiality of the findings. As a result, he says, he lost his internship with a high-ranking elected official, and an employer who he says had promised to hire him stopped responding to his emails. He says one fellow student accused him of rape in front of then-Attorney-General-elect Maura Healey and other students at a political function.
The student blames Brandeis for his panic attacks that led to his considering suicide, inability to sleep and depression.
He also says David Bunis, the chief legal officer at Brandeis, privately told him that it was unlikely the special examiner's findings were supported by the standard of evidence required by Brandeis and federal guidelines. That standard is preponderance of evidence, the same standard used in civil lawsuits. Nevertheless, Brandeis did not overturn the findings.
Bunis did not respond to an email requesting comment, and Brandeis declined to comment on what Bunis is alleged to have said.
A growing number of schools, including Williams College and Amherst College, are using independent investigators to investigate sexual misconduct allegations on campus.
Film producer Amy Ziering recently discussed that trend at an Amherst screening of her documentary about sexual assault on campus, "The Hunting Ground."
"Schools that hired an independent investigator to investigate these crimes, I found at least the survivor experience was much more positive," Ziering said in response to a question about how students can approach university administrators when seeking reforms to a school's handling of sexual assault. "A really qualified independent investigator really then does take away the conflict of interest. You feel like you're getting a fair shake. They're trained and understand how to better investigate and adjudicate these cases."
Ziering did warn that schools, in their haste to hire investigators, could be hiring some who are not qualified.
The trend toward special investigators is one that Kimberly Lau sees as unfair to students accused of sexual assault. She's a senior litigator at a New York law firm that represents about 30 students suing their college or university after they were accused of sexual misconduct. Her firm has represented students at Wesleyan University, Brown University, UMass Amherst and Brandeis.
"So then at the end of the day, you have this one person in charge of doing fact finding, interviewing and then making a recommendation," Lau said. "And so it's almost like a judge, jury and executioner sort of system."
Since the student suing Brandies was issued a disciplinary warning, the school has changed its policies. It now requires the special examiner's report be provided to both the accused and accuser so they can challenge it. And the university prohibits the parties from revealing anything about the proceedings to anyone who does not have a need to know. There's also a staff or faculty member who acts as co-examiner.
In his lawsuit, the student says two Brandeis administrators asked that the case be reopened, but he says Brandeis' senior vice president for student affairs, Andrew Flagel, denied the request.
Flagel did not respond to an email requesting comment. Brandeis declined to comment on whether any administrators argued for reopening the case, or whether Flagel denied the request.