University Student Gets Trial on Fairness of Sex Assault Hearing

Johnson & Wales University may have violated the contract rights of a male student accused of sexual assault by not providing him with a fair chance to call witnesses and ask “productive questions,” the District of Rhode Island ruled.

The contract rights of the student, who is suing under the pseudonym John Doe, derive from the university’s Student Code of Conduct and its Conduct Review Process, the court said Nov. 26. Doe’s lawsuit grew out of his expulsion from Johnson & Wales after he was accused of twice continuing to engage in what had been consensual sexual intercourse with a female student after she complained of pain.

The contract assured Doe that the disciplinary complaint process would be fair, the U.S. District Court for the District of Rhode Island said. The term “fair,” it said, doesn’t have “a commonly accepted definition.”

But in the context, the question is whether the university was as “fair” with Doe as he reasonably could have expected, Judge Mary S. McElroy said. A jury could find that it wasn’t, she said.

Doe was a college junior proceeding without a lawyer and “facing the frightening and very serious prospect of possible expulsion,” the court said. The university provided him with copies of its relevant policies and procedures, but that information didn’t make clear what questions Doe could ask or when and to whom he could pose them. Doe also wasn’t told whether he could make opening and closing statements at his hearing or who qualified as a potential witness, the court said.

He likewise was never provided a copy of Mary Smith’s 18-page complaint against him, and instead was only read the statement and told he could take notes. The panelists who conducted the hearing went back and forth questioning Doe and Smith but never asked Doe if he had any questions for his accuser, McElroy said.

The court dismissed Doe’s negligent infliction of emotional distress and Title IX of the 1972 Education Amendments Act sex discrimination claims against the university. The Title IX claim failed because he didn’t show male students were disproportionately charged with sexual assault compared to females when accused of sexual assault, the court said.

Ehrhard & Associates P.C. represents Doe. Nixon Peabody LLP represents the university. Higgins, Cavanagh & Cooney LLP represent Smith as an interested party.

The case is Doe v. Johnson & Wales Univ., 2019 BL 456654, D.R.I., No. 1:18-cv-00106, 11/26/19.

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