It would seem fairly self-evident that when a college or university establishes procedures for handling sexual misconduct claims, it should actually follow them. That, however, was not the case in Matter of John Doe v. Skidmore College, a recently issued decision by the State of New York Supreme Court, Appellate Division. Given what it termed “multiple failures that . . . taken together, demonstrated a lack of substantial compliance” with Skidmore College’s investigatory and adjudicatory protocols, the court nullified the plaintiff’s expulsion for sexual misconduct, once again demonstrating the obvious difficulty some colleges and universities have in implementing the most elementary procedural safeguards in student-on-student sexual harassment cases.
Skidmore arose from a January 2014 encounter between the plaintiff and a fellow student. Both agree that after spending several hours together in the plaintiff’s dormitory room, they voluntarily laid down on his bed, kissed, removed all or some of their clothes, and agreed in advance not to engage in sexual intercourse. Twenty-two months later, in October 2015, the other student filed a complaint against the plaintiff, claiming that he had, in fact, coerced her into committing oral sex. In response, Skidmore’s deputy Title IX Coordinator initiated an investigation.
Skidmore apparently does not provide accused students with hearings; rather, in this case, following initial interviews of the complainant, the plaintiff, and nine witnesses, the investigator drafted a preliminary report, permitted both students to submit written responses, then interviewed a tenth witness in conjunction with a second interview of the complainant, after which the investigator drafted a second report, to which the plaintiff responded in writing, and then issued a final report, a copy of which was provided to both students, who were then allowed to address an adjudicatory board in separate sessions.
In the course of carrying out the investigation, however, there were serious procedural missteps that would ultimately undermine Skidmore’s handling of the case. For example, although Skidmore’s policies required it to provide the plaintiff with the relevant “factual allegations,” the school did not do so. Thus, the plaintiff “was required to . . . respond to the investigator’s questions . . . with no knowledge of the specific allegations against him.” Although obviously problematic in its own right, this deviation from Skidmore’s policies was compounded in the investigator’s final report, which iterated the complainant’s accusation of oral sex but then inexplicably noted that during his interview, the plaintiff – who, again, had no idea at that juncture of the specific claims against him – had not mentioned the oral sex allegation.
Additionally, during the course of the investigation, the complainant made a new accusation, claiming that the plaintiff had performed oral sex on her; the investigator, however, did not apprise him of that claim until including it in the final report. Thus, his only opportunity to respond to this new allegation was during the fifteen-minute session with the adjudicatory panel. In fact, as the court noted, Skidmore allocated him only fifteen minutes “to address the panel about the entire report, which comprised over 100 pages.” Not surprisingly, the court held “that the assertion of a new allegation for the first time at the close of the investigation, without giving [the plaintiff] a meaningful opportunity to respond . . . impaired his ability to present a defense.” Furthermore, because the adjudicatory panel did not specify the alleged conduct upon which it predicated the expulsion, it was impossible to determine whether this eleventh-hour allegation motivated it.
The court cited further flaws in the investigation, including the joint interview of the complainant and the tenth witness, which violated Skidmore’s requirement that all witnesses be interviewed separately, and it criticized the inclusion in the final report of the tenth witness’ written statement and the investigator’s interview notes as “they concerned a different incident.” As to the recommendation to expel, the Appellate Division faulted the panel’s consideration of a prior incident in which the plaintiff had made an inappropriate remark to a female student in a group, noting that it did not constitute the sort of “substantially similar” prior conduct that Skidmore’s policies allow to be introduced.
Thus, as “both the determination relative to the violations and the recommendation [of expulsion] were not made in substantial compliance with [Skidmore’s] policy,” the Appellate Division “annulled” them as arbitrary and capricious and Skidmore was “directed to reinstate [the plaintiff] as a student and expunge all references to this matter from his school record.”
WHAT DOES IT MEAN?
Reviewing the court’s decision calls to mind the Dierks Bentley song title, “What Was I Thinkin’?” After all, given that the interview’s purpose was to obtain the accused’s response to specific allegations, how could the investigator think it a good idea not to tell him what the allegations were? It is analogous to asking directions but declining to say where you are going. Similarly, in what universe would it seem appropriate to include a new accusation in the final report without having even mentioned it to the accused? As important as a thorough and fair investigation is to both the accuser and the accused, this is not quantum physics. Nonetheless, Skidmore is but the latest college or university that has found itself the defendant in a lawsuit brought by students challenging the school’s fundamental, and totally avoidable, mishandling of its disciplinary process.
A now-retired client used to say: “If it’s not in writing, it doesn’t exist.” Conversely, though, if it is in writing, it does exist, and when that written document delineates policies and procedures for something as critical as an investigation into student-on-student sexual misconduct, it is imperative for the school to ensure that, first, the policies are equitable, and, second, that the school follows those policies.