Investigation has historical context
With Brandeis currently on the list of over 75 colleges and universities that are under federal investigation by the Department of Education’s Office of Civil Rights for potential noncompliance with Title IX, the University could face, at worst, a loss of federal funds if an agreement to improve policies to meet federal standard is not reached. Although the University has been handling cases of sexual misconduct for decades, the implementation of the adjudication process in comparison with the Department of Education standards laid out in the April 2011 “Dear Colleague” letter is in question.
The OCR is currently investigating on behalf of the accused party in a case chronicled in a June 24 Justice article. The accused student was found responsible for sexual misconduct through a Special Examiner’s Process.
According to a letter from the department obtained by the Justice, the main components of the accused student’s complaint against Brandeis include the University’s failure to address a complaint of sexual misconduct that he also filed against accusing party, his allegations that he was wrongly disciplined due to this mishandling and his allegation that the University failed to equitably consider his counter-allegations.
Following its investigation, the department’s website outlines, should the department find that there is sufficient evidence to support a conclusion of noncompliance with Title IX, the department will engage in negotiations with the University in order to reach a resolution agreement.
Resolution agreements generally involve an agreement on the University’s behalf to reform policy and meet the Title IX compliance standards that the OCR determines, as demonstrated by previous resolution agreements on the department’s website.
The agreements state how the university or college involved must improve its sexual misconduct procedures and meet the standards that it failed to meet.
However, the University has made several changes to its policy already, including clarifying the Special Examiner’s Process and definitions of consent as well as which punishments accompany certain offenses.
Should the University and the department not reach a resolution agreement, the department of may refer the case to the Department of Justice or refuse to grant financial assistance to the University “where appropriate,” the department website reads.
This is not the first time that the University’s sexual misconduct policies and procedure have been in question in a legal context. The 2000 case Schaer v. Brandeis University provides a comparison to the current ongoing Title IX investigation, in which the department is investigating on behalf of the accused party.
In 1996, David Schaer ’97 made similar complaints regarding the University’s adjudication process in a lawsuit filed against Brandeis, stating that the University denied him due process in its investigation of his alleged sexual misconduct.
In 1996, Schaer was suspended from the University for the summer after being accused of sexual misconduct by a female student. The University found Schaer responsible for engaging in unwanted sexual activity and “creating a hostile environment,” the Oct. 5, 1999 Justice article reads.
Some of the evidence used against Schaer during the conduct process included witness testimonies that the complainant “looks like a rape victim,” and a reference by a witness to Schaer as a “self-motivated, egotistical bastard who had no respect for women,” according to a Sept. 26, 1999 Justice article.
Schaer did not believe he was subjected to a fair assessment and filed a complaint against the University with the Middlesex Superior Court in June 1996.
Schaer claimed that the University was responsible for a breach of contract in their findings and punishment, arguing that he was denied due process.
The case was dismissed. Schaer appealed the decision, and the state appeals court agreed that his case could be heard.
However, in September 2000, the Supreme Judicial Court of Massachusetts dismissed the case in a 3-2 decision.
The Court ruled that the contractual agreement—in this case, the Rights and Responsibilities handbook, the terms of which every Brandeis student agrees to upon matriculating at the University—was not violated.
The dissenting opinions came from Justice Rederick Ireland, who claimed that the University did, in fact, violate its own procedures, and Justice Judith Cowan, who claimed that the case raised enough questions about the University procedure to be heard, according to the Sept. 26, 2000 Justice article.
Finding the University guilty of breaching a contract in the Schaer lawsuit would have simply forced the University to compensate for damages caused to the defendant.
Former Assistant Provost for Graduate Students Alwina Bennett was quoted as stating in the Oct. 5, 1999 Justice article that “[w]e’re not a court. Our process has never been intended to be a court.” It was also noted in the article that the University gave more rights to all participants in the conduct process than legally required.
Today, universities have a legal obligation to handle sexual misconduct cases, which is detailed in the April 2011 “Dear Colleague” letter. The letter addresses the rights of survivors and individuals involved in the adjudication process, and explains Department of Education preferences and requirements for grievance and investigation procedures.
Although the letter expresses a requirement for schools to take steps to protect complainants—including interim steps even prior to the final outcome of the investigation—it also determines that there must be “equitable grievance procedures.”
Both the accuser and accused, under Title IX and in the letter, must have the same opportunity to have others present for any and all proceedings and must be informed of the outcome of any disciplinary proceeding.
The letter also identifies a particular standard that universities must make in such decisions—preponderance of the evidence. This means that it is “more likely than not” that the incident occurred. “In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints,” the letter reads.
The University implemented changes consistent with both the directives of the department and best practices in higher education during the 2012 to 2013 academic year.
Brandeis created the Special Examiner’s Process for which “generally outside consultants were employed for the complex investigations of sexual misconduct,” wrote former Senior Vice President for Communications Ellen de Graffenreid in a June 30 email to the Justice. A “preponderance of the evidence” standard was also adopted.
“Brandeis staff members have striven in every way to meet the spirit and letter of all of these changes, including the ongoing interpretations of Title IX and directives of the Violence Against Women Act,” wrote de Graffenreid. “We continue to constantly evolve our entire conduct code and process, for compliance as well as seeking the best ways to support our student community.”
However, whether or not these policies were properly applied is also in question. Despite procedural compliance with such guidelines, implementation standards are currently in question, specifically in regard to following the “preponderance of the evidence” standard and allowing for equitable grievance procedures.
The accused party noted that his witness list was not fully utilized and some of his witnesses’ statements were ignored. “I was found responsible for these instances with little regard for any fairness during the process,” the accused student told the Justice in a June 24 article.
The Department of Education letter states that, simply because the complaint has been opened for investigation, the OCR has made no determination about the merit of the complaint, and will act as a “neutral fact-finder.”
There is no known timeline for when the investigation will be complete.