Right before Christmas 2022, the First Circuit Court of Appeals reinstated a case by a student at Stonehill College, a small school of less than 2,500 students in Easton, Massachusetts who had sued after being expelled by a Title IX campus court. The First Circuit reversed the decision of the District Court of Massachusetts, which had dismissed the case in its entirety. By reinstating the lawsuit, the First Circuit held that Stonehill may have failed to provide the student with a fundamentally fair disciplinary process and failed to follow its own rules by expelling the student.
The First Circuit’s decision provides several takeaways for students facing a Title IX conduct process on campus.
Heavy Petting Leads to a Sexual Assault Accusation
Stonehill expelled the plaintiff, “John Doe,” over an incident in November 2017, shortly after John Doe got to campus as a freshman. “Jane Roe,” another student, accused John Doe of sexually assaulting her. They had initially developed an interest in each other over the first few months of school, and on at least two occasions they engaged in heavy petting that Jane Roe did not dispute was consensual. A third encounter happened in the early morning of November 19, 2017. Jane Roe claimed John Doe touched her after she said, “stop, I’m drunk. I don’t want to do anything with you.” She also claimed that she gave other indications that she did not want any more sexual touching. (There was no accusation of forced intercourse, only sexual touching.)
John Doe remembered the night’s events very differently. He insisted the encounter was consensual and had played out much the same as their previous sexual encounters. According to John, he received a Snapchat message from Jane Roe in the early morning hours of November 19, asking him to walk her to her room from another dormitory. He was eager to oblige but had difficulty locating her. He eventually found her, and she eventually invited him into her dorm room. Once inside, she slipped into more comfortable clothes and the two lay down on her bed. They then began the kind of petting they had engaged in before.
John Doe claimed that Jane Roe began to moan and make other gestures consistent with her consent on previous occasions. Eventually, however, he noticed that Jane Roe was breathing heavily and asked if she was “OK.” At that point, she said, “it’s not you. It’s OK,” and then she seemed to fall asleep. At that point, John Doe stopped any further touching and left.
The next morning, Jane Roe contacted John Doe again on Snapchat. She stated, “that wasn’t consensual” and “that wasn’t okay.”
For his part, John Doe immediately apologized, saying, among other things, “Please forgive me for being a drunken idiot.… I’m so really sorry, I know I fucked up. I totally misread the situation.” John Doe later claimed that he did this to placate Jane Roe. He said he was entirely sober and only apologized to try to make Jane Roe feel better “about herself.”
The Title IX Process at Stonehill
On November 20, 2017, Jane Roe filed a Title IX complaint, which Stonehill College acted upon immediately.
Jane Roe claimed to have been so intoxicated that she was “incapacitated,” but her story about how drunk she was evolved over time. Jane Roe was also sober enough, at least a few hours after her encounter that night with John Doe, that she could converse with another student in the dorm. John Doe asked Stonehill to identify and interview witnesses who could testify about how drunk she was, where she had been drinking, and other details. Stonehill did not.
Importantly, Jane Roe did not tell the Title IX office that she and John Doe had twice engaged in consensual sexual touching in the same way they did on November 19. She only revealed this later in the process, and only after the investigators asked her questions in a second interview after learning of their sexual relationship from John Doe. She then admitted to the pre-existing pattern of their relationship, which the Title IX office characterized as a “clarification.”
Stonehill Refuses to Follow Its Policies
In Massachusetts, as in most states, the policies and handbooks of the university or college form binding contracts with the student. This meant that Stonehill is legally obligated to follow its own rules. Massachusetts law further imposes a standard that enforces the policies according to a student’s “reasonable expectations” arising from the policy language and rules.
Among Stonehill’s promises was also that it would be “fair,” and therefore, the First Circuit held that Stonehill was required to provide fundamental fairness in its Title IX proceedings. After reviewing the record, the First Circuit Court of Appeals found numerous possible breaches of contract and indications that Stonehill had not been fundamentally fair to John Doe:
- In a report provided to John Doe giving him an opportunity to see and respond to the evidence against him, Stonehill omitted evidence that it later relied upon to expel him.
- Stonehill’s policy promises to provide notice of witnesses who will be interviewed and an opportunity for the accused to submit questions to be asked of the witnesses. Yet Stonehill did not tell John Doe that it intended to interview Jane Roe a second time (and this was the crucial interview in which she “clarified” leaving out the fact that she had already had a pattern of sexual touching with John Doe).
- It was not fair, the court found, that Stonehill failed to “adequately probe the veracity of the most important part of [Jane Roe’s] account.”
- Stonehill also failed to investigate whether Jane Roe had in fact been drinking that night, and, if so, to what extent. This was an important aspect of the investigation, given Roe’s allegation that she was “significantly impaired … to the point of incapacitation.”
- Stonehill also failed to provide any description of how investigators elicited Jane Roe’s “clarification” of why she concealed the “highly relevant information about her relationship with [John Doe] before the November 19 incident”—information especially relevant because the previous pattern of their sexual touching closely followed John Doe’s account of the night in question.
- Finally, Stonehill counted John Doe’s apology of the following morning as nothing less than “contemporaneous objective written evidence of non-consent.” The First Circuit found that this could not be an admission because John Doe disputed that he ever intended to admit to non-consensual sexual acts. John Doe said he sent the messages to make Jane Roe feel better, especially because she had often talked to him about being “scared” and “overwhelmed” in the past, and threw in a reference to himself being drunk, which he later said he was not.
It was important to the court that Stonehill had credited, without critical inquiry, Jane Roe’s “clarification” without asking her why she omitted the prior sexual relationship and their established patterns of sexual involvement. Along with her descriptions of her drunken “incapacity,” this constituted a significant inconsistency in her telling of the story.
By contrast, John Doe was not allowed to “clarify” why he sent the Snapchat messages the next morning. No matter what he said, these messages were treated as “damning admissions,” in the words of the District Court. But the First Circuit reversed the District Court, holding that Stonehill “fail[ed] to grapple with the complex credibility assessment presented by Doe’s and Roe’s conflicting accounts.”
John Doe’s Title IX claims did not fare as well. The First Circuit affirmed the dismissal of these claims in the District Court because John Doe could not show sufficient evidence of gender bias. What he was able to show, at most, was bias against the accused.
Takeaways from Doe v. Stonehill
There are a couple of takeaways from the Stonehill case.
- Be careful what you apologize for.
First, when a conflict arises in any personal relationship, especially where there is general care and respect for the other person, and even more so when there is sex involved, it is perfectly natural to want to apologize.
If you are on campus, however, given the nature of campus Title IX bureaucrats, remember that any apology can and will be used against you. When you are accused of something you did not do, do not apologize for it. This doesn’t mean you should be a jerk. It is perfectly natural to try to comfort a person who is obviously upset. But you can apologize respectfully while denying false accusations. For example, John Doe could have said, “I’m genuinely sorry, but that is simply not what happened. I would never do that.”
You can even try to get more information through an apology. John Doe could have said, “I am sorry, there seems to be a misunderstanding. We didn’t do anything last night that we had not done before, so I’m confused, but I want you to feel safe. I would never hurt you. What exactly do you think happened?”
At Allen Harris, we have had cases in which, after an encounter, especially if the couple falls asleep together and are intoxicated, the accuser believes they may have had sex or does not remember anything the next morning and assumes they had sex. These can be misunderstandings with catastrophic circumstances imposed by the Title IX office. Creating a respectful record via text messages or other social media can be an important way of defending yourself.
Instead, in the Stonehill case, John Doe apologized by claiming to have been drunk and to have misread the situation. At least according to him, at the time, he wanted to bend the truth to make Jane Roe feel better. Although the First Circuit found that this should not automatically count as a “damning admission” of wrongdoing, there is no getting around the fact that John Doe will still have a serious issue of credibility in front of any jury. Why would anyone claim they were drunk when they were not? How can John Doe complain that Jane Roe lied about being intoxicated while saying he lied about being intoxicated? And why would anyone claim responsibility for something they didn’t do?
The simplest explanation is that John Doe was not telling the truth, which was what Stonehill thought when they expelled him.
By the same token, the simplest explanation for Jane Roe’s failure to mention her past sexual encounters with John Doe was so that she could conceal the truth. Perhaps she was concerned it would make her look bad, or it would explain John Doe’s behavior as consensual – whatever the motive, it doesn’t change the fact that she withheld significant information from the investigator. Normally, this undermines any party’s credibility. Jane Roe’s inconsistency was hardly a mere “clarification.”
If Stonehill had truly applied the preponderance of the evidence, in a case where both students appear to have a problematic relationship to the truth, there is not more evidence favoring one party over another, and the finding should have been not responsible. Instead, Stonehill swept Jane Roe’s inconsistencies under the rug and punished John Doe for every one of his inconsistencies.
Sadly, this pattern is all too common in Title IX investigations.
The main reason the First Circuit found that Stonehill acted unfairly is that the school did not treat Jane Roe and John Doe in the same way. Stonehill accepted Jane Roe’s flip-flopping as “clarification.” But they found John Doe’s explanation for his Snapchat “mea culpa” undermined his credibility.
- Beware of Snapchat and carefully document messages about a false accusation
There is another takeaway as well about social media. The ubiquitous use of Snapchat among students is understandable, but because the messages disappear, Snapchat is treacherous if things blow up. The app leaves no record of messages. One solution is to take a picture of important messages with another device or switch to a different app or text messages, so the record of your conversation is preserved—especially if you believe you are being targeted with false accusations.
- The First Circuit is hard on Title IX claims
A last takeaway is that the First Circuit is reluctant to infer gender bias where a school deviates from its policy and exhibits clear bias against the accused male student. Although John Doe now has the right to continue his lawsuit against Stonehill, his Title IX claims—including the possibility to recover legal fees that come with them—remain dead on arrival. The First Circuit is emerging as one of the more inhospitable appellate circuits for accused-side lawsuits against colleges and universities. It has not gone as far as other circuits to ensure the right to cross-examination, for example.
In the First Circuit (which covers most of the colleges and universities in New England—in the states of Massachusetts, Maine, New Hampshire, Rhode Island—but also Puerto Rico), it is all the more important that, whether you are a victim or an accused student, you seek out experienced attorneys who are familiar with Title IX campus conduct proceedings.
The case is Doe v. Stonehill Coll., Inc., No. 21-1227, __ F.3d __, 2022 U.S. App. LEXIS 34472 (1st Cir. Dec. 14, 2022).
