Of all the campus cases since the Dear Colleague letter, the Amherst case is the worst. This case featured a student (JD) who not only could use his accuser’s own words to prove his innocence, but could demonstrate from the college’s own findings that he was, plausibly, a sexual assault victim—and yet the college culminated a biased process by expressing disinterest in his evidence. If Amherst could get this lawsuit dismissed, it would be hard to imagine any set of facts in which an accused student could be certain of prevailing.
On Tuesday, however, Judge Mark Mastroianni, an Obama appointee, allowed the lawsuit to proceed. You can read the decision here. I’ve written extensively about the Amherst case, and also the May 2016 hearing that led to the ruling. Robby Soave also has an excellent summary of the ruling.
The ruling keeps alive all of the core elements of the lawsuit—the breach of contract claim that Amherst didn’t even follow its own rules; the good faith/fairness claim; and the Title IX claim. Mastroianni allowed multiple aspects of the Title IX claim to proceed, including a claim of deliberate indifference for Amherst’s unwillingness to investigate the accusing student (who I’ll call A.S.) for possible sexual assault. He also seemed to anticipate that at the next stage of the case, Amherst would try and get around the breach of contract claim by suggesting that the student handbook wasn’t a contract.
The only major claim he dismissed was JD’s racial discrimination claim, with the judge noting that no specific evidence existed to corroborate the claim. This is true. It’s also true that Amherst’s own sexual assault policy Oversight Committee was the organization that initially made the claim, “despite,” Mastroianni noted, “being unable to document past instances of racial disparities in disciplinary proceedings.” (The committee’s “evidence” focused around a claim that white students would find it easier to hire lawyers.) The judge didn’t explore what it said about Amherst’s overall procedural unhealthiness that an important sexual assault committee could offer fact-free musings based on nothing more than stereotypes.
Most of the ruling was what could have been expected given the strength of the claim. But two aspects of the ruling stood out as a bit surprising.
Judge Mastroianni’s Impressions
There’s little reason to believe that Mastroianni was eager to make this decision. In a case at UMass, he sided with the university, despite ample grounds for doubting UMass’ fairness. In this case, he waited nine months (and a day) after the hearing in the case to render his decision, which cited every recent 1st District campus sexual assault decision but one—the Brandeis opinion written by Judge Saylor. Saylor’s was, by far, the most comprehensive sexual assault opinion in explaining the shortcomings of a college or university disciplinary process, and the opinion was extensively discussed (by both sides) in the May hearing.
Mastroianni didn’t explain why he didn’t cite the Brandeis opinion. But at the very least, his choice suggests a judge who isn’t eager to vindicate the rights of accused students. That background makes all the more remarkable some of the passages from Mastroianni’s opinion, with emphasis added in each case.
Here’s how he described A.S.’s behavior on the night in question: “In the course of the text message exchange, [A.S.] stated that she ‘fucked’ Doe and proposed lying to others about what happened, expressing concern about the fact that others, including RM, had seen her kissing Doe in the common room, and her belief that Doe ‘was too drunk to make a good lie out of shit.’”
Here’s how he described JD’s approach to the hearing: “Doe relied on the investigation conducted by [Allyson] Kurker as he prepared for the hearing. No College employees, including his advisor, Torin Moore, Assistant Dean of Students and Director of Residential Life, advised him to conduct his own investigation. Indeed, based on his conversations with Moore and [Title IX deputy coordinator] Mitton Shannon, he believed a confidentiality policy prevented him from conducting his own investigation or even seeking emotional support from other students. Doe had no knowledge or experience with disciplinary hearings, let alone the experience or knowledge necessary to effectively advocate on his own behalf, and he was emotionally distraught.”
Here’s how he described the hearing and the omission of the key evidence: “Twice during the hearing, references were made to [A.S.]’s text message exchanges after Doe had left her room; text exchanges that were not obtained and reviewed by the investigator or otherwise presented to the Hearing Board . . . Jones was not asked to produce the text messages.”
And here’s how he described the text messages: “The text messages [A.S.] and DR exchanged directly discuss the interactions between [A.S.] and Doe. On their face, the text messages suggest that [A.S.] viewed herself as the initiator of the sexual activity. They also include expressions of hatred of Doe, initiated by DR, to which [A.S.] agreed . . . These texts can be read in a way that raises additional questions about the credibility of the version of events [A.S.] gave during the disciplinary proceeding against Doe.”
To be sure, Mastroianni noted that “at this stage in the litigation, the court must accept as true the factual allegations made by Doe and must make any reasonable inferences favorable to his position.” But this is a very unusual case, given the volume of information provided in the complaint. (Representing an innocent client broadened the tactics open to JD’s legal team.) JD’s lawsuit included all the evidence Amherst possessed (or should have possessed) to adjudicate his case—the hearing transcript, the investigator’s report, the text messages. The “facts” as presented by JD—and as described above by the judge—are unlikely to change later in litigation.
Of course, judges can and do find for colleges even when they believe the accused student might be innocent. (Recall the Case Western Reserve case.) But the fact that Mastroianni appears to have formed accurate impressions about many of the key facts in the case can’t be seen as a good sign for Amherst. That these passages came from a judge who didn’t appear ideologically inclined to side with the accused student makes them all the more powerful.
A.S.’s Record as an Accusers’ Rights Activist
In allowing the Title IX portions of the lawsuit to proceed, Mastroianni avoided any mention of the important 2nd Circuit Columbia case. That decision suggested that a frenzied campus atmosphere (which Amherst experienced to an even greater degree than Columbia) could in and of itself provide the necessary baseline to allow a Title IX complaint to survive a motion to dismiss. As with the omission of the Brandeis decision, Mastroianni appears to have chosen to ignore the most favorable decisions for accused students.
Instead, Mastroianni relied on two other “credible anecdotal references” to sustain the Title IX complaints. First was the fact that, according to the disciplinary panel’s own findings, JD was blacked out at the time A.S. initiated sex with him, thus rendering him incapable of consenting, but Amherst never investigated the accusing student for sexual assault. Second was A.S.’s record as a campus accusers’ rights activist.
As Mastroianni explained, the complaint “also alleges that at the time [A.S.] filed her complaint she was involved in a student-led movement to compel the College to change the way it handled sexual assault allegations, including by expelling a male student accused of sexual misconduct. He further asserts the College was actively trying to appease the student-led movement and was aware both [A.S.] and LR were involved with the student-led movement.” In fact, the opinion (in various ways) references A.S.’s involvement in the campus accusers’ rights movement four times.
In the process, Mastroianni gave unusual attention to a document that received comparatively little attention in the briefings, and virtually no attention in the May oral argument—JD’s internal appeal at Amherst. You can read the document here, and Amherst’s cursory rejection of the appeal here.
In the appeal, JD brought attention to remarks that A.S. made after the hearing panel rendered its decision. The remarks themselves are blacked out, but A.S. did have an interview with the Huffington Post that was published as the college was considering the appeal. In a passage that could easily be read as a pressure tactic against the college, A.S. told Tyler Kingkade, “The typical laptop thief is suspended for five semesters. Rapists are not suspended for that long, if at all. No rapist convicted by a hearing board has been expelled from Amherst in 20 years. That’s unacceptable and something Amherst has to change immediately.” Kingkade did not identify A.S. as an accuser in a pending sexual assault appeal.
JD noted that two of his witnesses—seeing A.S.’s comments—recognized that the zeal with which she advanced a broader accusers’ rights agenda might well have given her a motive to lie. But Amherst denied the appeal, suggesting, “Whatever broad political agenda [A.S. and LR] may have had or not is immaterial to the panel’s decision.” Imagine the reaction of an Amherst professor if a student made that sort of argument about evidence in a research paper.
By establishing as central to the case A.S.’s accusers’ rights activism—particularly at the time of the hearing panel’s decision—Mastroainni’s opinion undercut the already extremely dubious rationale by which Judge James Robart not only denied JD an opportunity to depose A.S., but allowed A.S. to avoid producing relevant documents.
In the subpoena, JD asked for, among other things, “all communications, including text messages or emails, between you and anyone else on February 5, 2012”; “all notes, journal/diary entries, recordings, transcripts, or other memoranda by you relating to Your Complaint, the Investigation, John Doe, [and] the John Doe Disciplinary Process”; and “any and all communications with witnesses in the John Doe Disciplinary Process concerning the topic of sexual misconduct, the John Doe Disciplinary Process, Your Complaint, John Doe, and/or your interactions with John Doe on February 4-5, 2012.”
Robart quashed the subpoena first by suggesting that being deposed and (to a lesser extent) having to turn over documents would traumatize A.S.—though, of course, if A.S. filed a false accusation, it’s hard to see why the trauma from having to re-live that unfortunate decision would be relevant. Second, Robart claimed that Amherst officials could supply all the relevant material—though, of course, many of the documents that JD requested would never have come into the possession of Amherst officials.
Now that Mastroainni has placed A.S.’s contemporaneous accusers’ rights activism front and center, Robart’s claim that A.S. would possess no relevant information is unsustainable. The circuitous reasoning of his initial decision to quash the subpoena makes it entirely possible Robart will refuse to back down. But given that Mastroainni’s opinion suggests that it’s plausible, based on the facts before the court, to deem A.S. a possible perpetrator of sexual assault, perhaps it’s time for Robart to drop the trauma claim.
To date, Mastroainni’s important decision has received no mention in the Amherst student newspaper.