A federal judge granted parts of the University’s motion to dismiss a lawsuit brought by an alumnus over alleged mishandling of a sexual misconduct investigation on Thursday. However, the 89-page memorandum sustains that the alumnus has a plausible case that the University did not act with “basic fairness” when investigating him for sexual misconduct. The parts of the alumnus’s case that were not dismissed will proceed to a separate court.

The case concerns two students who were in a relationship when the alleged instances of misconduct occurred. In January 2014, several months after the relationship ended, the complainant — referred to in the memorandum as “J.C.” — filed a community standards report. J.C. alleged that his ex — referred to as “John Doe,” — had “numerous inappropriate, nonconsensual sexual interactions with me” until around May 2013, according to the CSR, which is quoted in the memorandum.

The University investigated the CSR’s claim under the 2013 to 2014 version of the Special Examiner’s Process, which had been the University’s method for investigating sexual misconduct cases since the previous academic year. At the time, the Special Examiner — a legal expert who is hired from outside the University to investigate misconduct cases — was responsible for both gathering the facts of the case and determining guilt while a separate panel of administrators would decide any sanctions for the guilty party.

Part of John Doe’s case that was upheld as plausible last week argues that the process itself granted him too few rights to adequately defend himself and violated private universities’ requirement to conduct disciplinary hearings in a manner of “basic fairness.”

In the memorandum, Judge Frank Dennis Saylor wrote that the Special Examiner’s Process was “secret and inquisitorial.” He sustained Doe’s complaint as reasonable that the process, in the 2013 to 2014 academic year, did not grant the accused the right to see information about what they are accused of beyond the brief explanation in the CSR. Throughout the process, the only information Doe knew about what he was accused of came from the two sentences-long statement in the CSR, according to Saylor’s memorandum.

Saylor also criticized that the process did not grant respondents the right to counsel, even as the accused was being questioned by the Special Examiner, who was a lawyer. The Special Examiner’s Report in Doe’s case concluded that Doe’s testimony was less credible than J.C.’s because Doe contradicted himself on the specifics of one incident, but the memorandum argues that these misstatements are understandable if one does not know what they are being interrogated about.

In addition, Saylor criticized the 2013 to 2014 Special Examiner’s Process for not granting respondents the right to cross-examine their accuser or the right to read the Special Examiner’s Report finding them guilty before the process is concluded. Doe “was thus forced to defend himself in the sanctions phase of the proceeding, and to prepare his appeal, without access to the very document in which his guilt was determined,” according to Saylor.

The current version of the Rights and Responsibilities handbook does not let the Special Examiner decide guilt in a case; instead, their report makes a recommendation to an Outcomes Administrator, who decides guilt and sanctions. Moreover, respondents can now choose an advisor to counsel them throughout the process but must still accept or deny responsibility for sexual misconduct based mainly on information written in a CSR. While an administrator meets with both the complainant and respondent before the Special Examiner begins investigating the case, that administrator does not need to tell the respondent anything about their interview with the complainant.

In addition, accused students are now given a copy of the Special Examiner’s Report before the Outcomes Administrator makes a determination of guilt and are given five business days to submit new information or arguments. The complainant and respondent never meet or cross-examine each other throughout the process.

Saylor criticized the Special Examiner’s reasoning in several areas; he called it “absurd” that the Special Examiner disregarded the fact that the students were in a relationship as a factor in “the question of consent,” and wrote that although sexual assault does occur in relationships, “over the course of a long relationship, the parties develop implicit and explicit understandings that affect their behavior, including certain forms of non-verbal consent.” Moreover, he said that the Special Examiner’s decision that J.C.’s increased alcohol use after the relationship ended makes his accusations more credible is potentially fallacious logic because it did not acknowledge any other reasons J.C. may have begun to drink more, such as grief for a late family member.

In an email to the Justice, Interim Vice President for Communications Judy Glasser wrote that “Brandeis University will not comment on the specifics of any case. We are confident that we have policies and procedures in place to promptly and equitably investigate and adjudicate allegations of sexual misconduct affecting the Brandeis community. We are also confident that we acted appropriately in the investigation of the complaint that gave rise to this lawsuit. Brandeis will continue to vigorously defend itself against the claims made in this case.”