Judge McElroy, Fairness, and Johnson & Wales

This year has featured a number of important breach of contract victories for accused students in New England. An accused student from Boston College prevailed in the first post-Dear Colleague letter jury trial, in September. In a detailed ruling, Judge Alfred Covello denied summary judgment to Yale in the Jack Montague case, prompting the university to settle. And a settlement also occurred in the Quinnipiac College case after Judge Janet Arterton denied summary judgment to the school (on Title IX grounds as well). Another denial of summary judgment occurred in the Bard lawsuit, although Judge George O’Toole didn’t offer a written opinion outlining his rationale.

The latest university to experience a denial of its breach of contract summary judgment motion was Jonson & Wales University, in Providence; Judge Mary McElroy issued a ruling late Tuesday afternoon on the motion. The facts of the case: A male and female student had a brief, casual sexual relationship. Many months later, the female student’s new boyfriend told the JWU police that her final two encounters with her ex-boyfriend were nonconsensual. The female student elected not to file Title IX charges—only to change her mind a few months later.

The case contained an unusual number of unfair elements. Perhaps most seriously, JWU allowed the boyfriend—who was, after all, the person who filed the original complaint—to serve as the female student’s hearing advisor, thus shielding him from questioning by the disciplinary panel. The accused student wasn’t allowed to take a copy of the accuser’s 18-page statement for review before the hearing. He couldn’t submit questions to be asked of the accuser. The complaint suggested that the preponderance standard was inherently unfair given the other procedural shortcomings of the JWU system. And after the inevitable guilty finding ensued, JWU (for reasons it didn’t explain) denied to the accused student’s lawyer a copy of the training materials given to the disciplinary panelists. The appeal was denied (Doe claimed he had new exculpatory evidence), and Doe sued.

The case was assigned to U.S. District Judge John McConnell. JWU didn’t even try to dismiss the breach of contract claim, focusing instead on the Title IX count. McConnell seemed troubled by JWU’s refusal to turn over the training materials. More broadly, he noted that, given the facts of the case as alleged in the complaint, he could “find no reason at all as to why . . . the result was Mr. Doe’s expulsion. The only inference that one could draw from that considering all the facts is that gender played a role.” This was one of the broadest Title IX holdings of the dozens of accused student lawsuits that have survived a motion to dismiss their Title IX count. But the May 2018 ruling attracted comparatively little attention, perhaps because McConnell delivered it from the bench.

The hearing on JWU’s summary judgment motion was delayed to accommodate Doe’s lawyer, James Ehrhard, who had a trial in another case. Shortly thereafter, McConnell turned the case over to the newly-confirmed Nancy McElroy, originally an Obama nominee who was confirmed earlier this year as part of a package deal between the White House and Senate Democrats.

At oral argument last month, McElroy seemed dubious about the Title IX count (which, given relevant First Circuit precedent, is very difficult for an accused student to meet in any case). Her ruling suggested that Doe would need a “smoking gun” or highly unusual statistical evidence to prove a sufficient degree of gender bias.

The ruling’s breach of contract section, however, provided a complete victory for the accused student—and with language that resembled McConnell’s broad Title IX rhetoric from the motion to dismiss decision.

In its briefs, JWU urged near-total deference by the court to university decision-making. And although the JWU procedures had promised Doe “every reasonable effort to be fair to all involved” and a resolution that was “prompt, fair and impartial,” university filings implied this language was superfluous, and the circumscribed procedures that Doe received in the case were all to which he was entitled. The university expanded on this point in a four-page single-spaced letter informing the court of the recent First Circuit Boston College decision (BC II), which it argued “mandated federal restraint.”

Judge McElroy disagreed. In so doing, she relied heavily on the First Circuit’s 2018 Boston College (BC I) decision, in which a panel with no overlap to the BC II panel articulated a much less deferential role for the federal judiciary in determining whether fairness case should proceed to trial. The BC II case, she argued, “presented a very different situation” than the JWU matter.

“’Fair,’” McElroy correctly noted, “is not a term with a commonly accepted definition. It is conclusory: its precise meaning fluctuates with the context in which it is used.” Accordingly, the specifics of the case at hand mattered—and, indeed, procedures that might be fair in the context of a plagiarism allegation might not be in the context of a Title IX adjudication. Did fairness require the types of procedural protections—notice, access to relevant evidence, ability to submit questions of adverse witnesses—that JWU denied to Doe? McElroy concluded that “in the context of an uncounseled college junior, facing the frightening and very serious prospect of possible expulsion from school, in a case of contrary ‘he said/she said’ allegations, a reasonable juror could determine that the meaning of ‘fair’ includes being provided more protections than Doe alleges he received.”

McElroy addressed the matter in greater detail in an extended footnote. “It appears,” she observed “that JWU put a significant burden on Doe to ascertain the details of the process, rather than provide him with a detailed description.” For instance, “a reasonable jury could find that requiring Doe to discern what questions he should ask (e.g., could he propound written questions before Ms. Smith was interviewed by the panel or after she gave a statement; could he make an opening or closing statement, what would constitute ‘personal knowledge’ by a witness, would a roommate sleeping in the room close to the bathroom who heard nothing be a witness ‘with personal knowledge,’ etc.), is unfair when students are strangers to such a process and rely entirely on what is told to them to inform their understanding of what they are up against.” Her conclusion? “A reasonable juror could decide that it is not ‘fair’ to require a student who knows little or nothing to figure out what s/he does not know in order to ask productive questions.”

McElroy therefore offered a broad definition of fairness that relied on a common sense application of the concept. In this respect, her ruling joins a handful of cases—Brandeis, Amherst, George Washington, Notre Dame, Yale—where courts, encountering a complaint of a seemingly innocent student arbitrarily found guilty, have shown scant deference to the university finding and instead have stressed the need for a truly fair adjudication.

Barring a settlement, the case will now proceed to trial—which would make it the third post-Dear Colleague letter accused student trial, after the BC case and the January 2020 scheduled trial in the Bard case.

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