A district court recently denied summary judgment to Johnson & Wales University in a lawsuit filed by an accused student, clearing the case for trial. (Since issuance of the Obama-era Dear Colleague letter, only two trials in this area have occurred—Boston College and Brown—both ending in victories for the accused student.) The trial will focus on whether JWU’s handling of the case violated an explicit promise of fair treatment for the accused that its procedures provided.
As Judge Mary McElroy noted in her ruling, this matter was unusual in that the student’s lawyer, James Erhard, made “his case for an unfair proceeding virtually entirely on facts put forth or acknowledged by JWU itself.” That material included affidavits justifying their guilty votes filed by the three members of the JWU disciplinary panel: Assistant Director of Clubs Elizabeth Zmarlicki, Assistant Director of Residential Communities Caitlin Codding; and Culinary Associate Instructor Tim Brown, whose job, he says, “enables him to shape the pastry chefs of tomorrow.” Each member of the panel appears to be an at-will employee, as opposed to students or tenured faculty who might have been less susceptible to feeling pressured by the school. Zmarlicki and Codding had never previously served on a Title IX tribunal.
At a minimum, this was an ambiguous case. The accuser, identified in court documents as Mary Smith, waited months before coming forward, alleging sexual assault in the fifth and sixth examples of sexual contact in a long-extinguished relationship. Even then, the charges were initiated not by her, but by her boyfriend, B.K., who then was allowed not to testify at the hearing because he served as Mary’s advisor. Unlike many campus cases, the accused student, identified here as John Doe, vehemently denied the first alleged incident even occurred—and seemed to have support for that proposition from his roommates. And as to the second, which John maintained was consensual, even Mary, according to the JWU complaint report, “was not sure if what occurred was considered sexual assault.”
The affidavits from the three JWU panel members offered identical sentiments and, often, language—suggesting that they either collaborated on the documents after the fact or exhibited a degree of groupthink that raises questions about the fairness of the proceedings.
According to Zmarlicki, her training led her to approach the case “without any predisposition or bias,” allowing her to reach a decision with “an open mind.” Codding said that she too approached the case “without any predisposition or bias,” allowing her to reach a decision with “an open mind.” What about Brown? He affirmed that he approached the case “without any predisposition or bias,” allowing him to reach a decision with “an open mind.” The three JWU employees did not explain how they came up with the exact same formulation to describe how they approached to the case. (Couldn’t one of them, at least, have used synonyms to make things less obvious?) The university’s position is that outsiders must trust that when these JWU employees said, using the exact same words, that they acted without bias and with open minds, they actually did so: JWU neither recorded nor kept a transcript of the hearing.
Zmarlicki testified that the panel asked “probative” questions of both John and Mary, but she didn’t say what any of those questions were. According to Codding, the panel asked “probative” questions of each student, but she, too, couldn’t identify any of those questions. And Brown? He recalled the panel asking “probative” questions of John and Mary—questions that his affidavit didn’t detail. Again, couldn’t one of the panelists have come up with another word to describe their questioning strategy?
How did each panelist reach the decision? Zmarlicki affirmed that despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” she made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” Codding, despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” And Brown? Despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” he made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” If this trio were JWU students, they would have been brought up on plagiarism charges.
Zmarlicki claimed that the panel engaged in a “lengthy” deliberation (but couldn’t recall the “precise duration” of their discussions). Codding also deemed the deliberations “lengthy” but couldn’t recall the “precise duration” of their discussions. And Brown? The panel deliberated for a “lengthy” period of time—but he couldn’t remember the “precise duration” of their discussions. These statements make no sense: according to their affidavits, each panelist approached the case in the exact same way and responded to the evidence presented in the hearing identically. If their affidavits are truthful, their deliberations should have taken 60 seconds.
Beyond the absurdity of three people affirming their fairness by using the exact same words, over and over again, to describe what were purportedly their personal recollections, the absence of the complaining witness, B.K., from the affidavits was striking. All three panelists said they read the case file. So they knew that Mary’s new boyfriend filed the original complaint and was a key witness in the case. Yet none expressed concerns that they never heard from him. Nor did they seem worried that they hadn’t been able to hear from John’s roommates, whose versions of events backed John, not Mary. None of the affidavits explain why the panel members didn’t press JWU officials to ensure they heard from all relevant witnesses despite each of them claiming they operated with a “fair mind.”
Perhaps JWU simply assumed a summary judgment win was inevitable. Now, however, the school is left with a trial on a record claiming that three people, from three different parts of the university, described the case and their actions regarding it in identical ways. A legal strategy that presents their own decisionmakers as either mindless automatons or so uncertain of the facts that they needed to have their recollections written by someone else seems like a bad look for any university.