Doe v. Brown University (210 F. Supp. 3d 310, 2016)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

William E. Smith, Chief Judge

This case arises out of a disciplinary proceeding in which Brown University (“Brown” or “University”) found John Doe (“John” or “Doe”) responsible for sexual misconduct against fellow student Ann Roe (“Ann”). The parties agreed to waive the jury demand and hold an expedited consolidated bench trial on both the merits of Plaintiffs case and his request for a preliminary injunction, which was conducted on July 19-22, 2016. The parties submitted Proposed Findings of Fact and Conclusions of Law (ECF Nos. 50 (“Doe’s Posb-Trial Brief’) and 55 (“Brown’s Post-Trial Brief’)), and the Court heard closing arguments on August 16, 2016. On August 28, 2016, the Court found that Doe “is likely to succeed (at least partially) on the merits of his breach of contract claim” and issued a preliminary injunction, allowing John to return to Brown for the fall semester under the same conditions previously imposed. (Preliminary Injunction Order 2, ECF No. 57.)

It is important to make it unequivocally clear at the outset that the Court’s only role in this case is to determine whether Doe’s disciplinary “process [was] carried out in line with [the Plaintiff] student’s reasonable expectations” based on the policies in place at the time of the incident. Havlik v. Johnson & Wales Univ., 509 F.3d 25, 34 (1st Cir. 2007). It is not the Court’s role to determine the facts of what happened between John and Ann; to decide whether the Court would have, in the panel’s position, found John responsible for sexual misconduct; to evaluate whether the Court would have made the same judgment calls on evidence and other issues as Brown did; or to determine whether the procedure John received was optimal. This Court is not a super-appeals court for sexual misconduct cases, nor is it an advisor to Brown on how it should handle these messy and unfortunate situations.

Moreover, the Court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After issuing the preliminary injunction this Court was deluged with emails resulting from an organized campaign to influence the outcome. These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court. Hopefully, they will read this decision and be educated.

Although a very close call, for the reasons explained below, the Court finds that certain procedures Brown employed in conducting Doe’s hearing fell outside of a student’s reasonable expectations based on the Code of Student Conduct at Brown University 2014-15 (the “2014-15 Code”), and that these procedural errors likely affected the panel’s decision in Doe’s case. Accordingly, Doe is entitled a new hearing that remedies these infirmities. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law. To the extent that any finding of fact reflects a legal conclusion, it should be to that extent deemed a conclusion of law, and vice versa.

I. Findings of Fact

A. Doe’s Enrollment and Orientation at Brown

Doe applied for admission to Brown in the spring of 2013. (Trial Tr., vol. II, 186:15-16, ECF No. 52.) He was accepted, chose to enroll, and his family prepaid four years of tuition, totaling $177,600. (Id. at 187:2-20.)

Prior to arriving on campus, Doe completed Brown’s 2013 New Student Tutorial (“Tutorial”), which dealt with sexual encounters and relationships and was required for all incoming students. (Id. at 209:18-23.) While completing the Tutorial, Doe watched a video entitled “Brown Students Ask For Consent.” (Id. at 212:13-15, 213:18-20; Ex. 46.) In the video, Brown students are interviewed and answer a series of questions: “What is consent?”; “What is not consent?”; “Do you have consent?”; and “How do you ask for consent?” (Brown Students Ask for Consent Video, Ex. 46.) The students’ responses to these questions included the following:

Consent is asking and hearing a yes. ... Consent is active, not passive. It means being fully engaged and not just going along. Consent is giving permission without feeling pressured. ... I do not obtain consent by pressuring someone, by threatening someone, by coercing someone, or by forcing someone. ... Not now, means no. No does not mean keep trying. It means stop. ... I’m not sure I’m ready, means no. ... Silence is not consent. People sometimes freeze and cannot speak. The absence of yes, means no.

(Id.) Doe testified at trial that he understood that the video stated values and principles of the Brown community. (Trial Tr., vol. II, 213:21-24, ECF No. 52.)

Doe also completed a series of questions with the Tutorial. Question 95, section 4.7 of the Tutorial instructed Doe to provide “True” or “False” responses to a series of statements. Doe responded “True” to the following “statement[] about sexual consent”: “Consent may be invalid if there is coercion, intimidation, or threat, or if advantage is gained because a person is mentally or physically unable to communicate unwillingness.” (Tutorial 23, Ex. 40; Trial Tr., vol. II, 211:5-13, ECF No. 52.) Doe testified that, by completing the Tutorial, he understood that under Brown’s community principles, coercion may invalidate consent. (Trial Tr., vol. II, 211:14-18, ECF No. 52.) However, he understood coercion to require “force or threat of force.” (Id. at 214:10-11.)

Doe attended freshmen orientation at Brown in the fall of 2013. (Id. at 187:21-23.) As part of the orientation, Doe was provided with a copy of the Code of Student Conduct at Brown University 2013-2014 (the “2013-14 Code”), which he reviewed. (Id. at 187:24-188:5.) Doe also attended a 90-minute Session about consent, during which he again watched the “Brown Students Ask for Consent” video. (Id. at 213:25-214:3, 214:19-22.) The presentation included a PowerPoint, the last slide of which was likewise titled “Brown students ask for consent” and depicted statements and questions relating to consent (e.g., “I’d like to talk about this first,” “Are you okay with this?,” “If you change your mind, we’ll stop.”). (Id. at 217:5-6; Brown Consent Presentation 6, Ex. 43.) This slide was also made into a flyer and posted around campus. (Trial Tr., vol. II, 218:3-4, 225:20-22, ECF No. 52.) The bottom of the slide has a sentence in small print that states: “This is meant to help well-meaning people take care of themselves and each other in sexual situations. People who don’t have good intentions may manipulate the language of consent to hurt someone.” (Trial Tr., vol. II, 225:5-9, ECF No. 52; Brown Consent Presentation 6, Ex. 43.) Other than this quote, Brown did not present any evidence that “manipulation” was addressed at the orientation.

In addition to the 90-minute presentation, Doe participated in a smaller group interactive session about sexual relationships and consent, which was hosted by residential peer leaders and lasted about 40 minutes. (Trial Tr., vol. II, 219:21-220:20, ECF No. 52.) Prior to November 10, 2014, Doe attended another training session at Brown addressing consent in sexual relationships. (Id. at 220:25-221:8.) The training included a discussion of the impact of coercion upon consent. (Id. at 221:9-12.) However, there was no discussion of manipulation at any of these trainings. (Id. at 221:22-24.)

B. The 2014-15 Code of Student Conduct

Doe completed his freshman year and re-enrolled in the fall of 2014, at which time Brown emailed him the 2014-15 Code. (Id. at 188:18-189:4.) The 2014-15 Code prohibits sexual misconduct as follows:

III. Sexual Misconduct

a. Sexual Misconduct that involves non-consensual physical contact of a sexual nature.

b. Sexual Misconduct that includes one or more of the following: penetration, violent physical force, or injury.

Comment: Offense III encompasses a broad range of behaviors, including acts using force, threat, intimidation, or advantage gained by the offended student’s mental or physical incapacity or impairment of which the offending student was aware or should have been aware. Harassment, without physical contact, will not be deemed sexual misconduct under these provisions. Violations of Offense Illb will result in more severe sanctions from the University, separation being the standard. Note: Some forms of sexual misconduct may also constitute sexual assault under Rhode Island criminal laws and are subject to prosecution by State law enforcement authorities—which can take place independent of charges under the University’s Student Code of Conduct.

(2014-15 Code 4, Ex. 2.) The Code also notes that its comments “are offered as a guide to understanding the University’s policies, and are not to be confused with the policies themselves. As such these comments are not binding upon the University or its designated representatives.” (Id. at 3 n.1.) Doe read the 2014-15 Code in its entirety. (Trial Tr., vol. II, 199:18-20, ECF No. 52.)

Doe claims that his interpretation of the “broad range of behaviors” identified in the Comment to Section III only includes conduct enumerated in the Comment, namely force, threat, intimidation, or incapacitation (Id. at 201:17-24.) He admitted at trial that, under his interpretation, offering a poor student $1,000 or a recovering drug addict drugs in exchange for sex would not be considered sexual misconduct. (Id. at 229:20-232:4.)

The 2014-15 Code also gives students a number of rights in disciplinary proceedings, including “[t]o be assumed not responsible of any alleged violations unless she/he is so found through the appropriate student conduct hearing” and “[t]o be given every opportunity to articulate relevant concerns and issues, express salient opinions, and offer evidence before the hearing body or officer.” (2014-15 Code 7, Ex. 2 (emphasis added).) Regarding appeals, the 2014-15 Code states:

Appeals will normally be considered only when: (1) there is relevant new evidence that was not reasonably available to be presented to the original hearing authority and that in the judgment of the Appeal Officer the introduction of the information may have changed the finding by the original hearing authority; or (2) when a substantial procedural error by the University or hearing body/officer is demonstrated and in the reasonable judgment of the Appeal Officer such error is sufficient enough that it may have affected the decision of the original hearing authority.

(Id. at 10-11.)

C. The Sexual Assault Task Force and the New 2015-16 Title IX Policy and Complaint Process

During the fall 2014 semester, Brown convened a Task Force on Sexual Assault (“Task Force”), which included members of Brown’s administration, faculty, and student body, to review Brown’s practices, policies, and procedures addressing issues of sexual assault and sexual misconduct. (Trial Tr., vol. I, 144:25-145:12, ECF No. 51; Trial Tr., vol. IV, 125:10-21, ECF No. 53.) Based on the Task Force’s recommendations, in the fall of 2015, Brown adopted a new Sexual and Gender-Based Harassment, Sexual Violence, Relationship and Interpersonal Violence and Stalking Policy (“Title IX Policy”) (Ex. 4). (Trial Tr., vol. I, 147:24-148:13, ECF No. 51.)

The Title IX Policy defines “consent” as follows:

Consent is an affirmative and willing agreement to engage in specific forms of sexual contact with another person. Consent requires an outward demonstration, through mutually understandable words or actions, indicating that an individual has freely chosen to engage in sexual contact. Consent cannot be obtained through: (1) manipulation; or (2) the use of coercion or force; or (3) by taking advantage of the incapacitation of another individual.

Silence, passivity, or the absence of resistance does not imply consent. It is important not to make assumptions; if eonfusion or ambiguity arises during a sexual interaction, it is essential that each participant stops and clarifies the other’s willingness to continue.

Consent can be withdrawn at any time. When consent is withdrawn, sexual activity must cease. Prior consent does not imply current or future consent; even in the context of an ongoing relationship, consent must be sought and freely given for each instance of sexual contact.

An essential element of consent is that it be freely given. Freely given consent might not be present, or may not even be possible, in relationships of a sexual or intimate nature between individuals where one individual has power, supervision or authority over another. More information, policy and guidance regarding such relationships can be found below.

In evaluating whether consent was given, consideration will be given to the totality of the facts and circumstances, including but not limited to the extent to which a complainant affirmatively uses words or actions indicating a willingness to engage in sexual contact, free from manipulation, intimidation, fear, or coercion; whether a reasonable person in the respondent’s position would have understood such person’s words or acts as an expression of consent; and whether there are any circumstances, known or reasonably apparent to the respondent, demonstrating incapacitation or fear.

(Title IX Policy 6-7, Ex. 4.) Coercion is defined as “verbal and/or physical conduct, including manipulation, intimidation, unwanted contact, and express or implied threats of physical, emotional, or other harm, that would reasonably place an individual in fear of immediate or future harm and that is employed to compel someone to engage in sexual contact.” (Id. at 7.) Unlike the Title IX Policy, the 2014-15 Code did not give a specific definition of consent. (Trial Tr., vol. II, 79:6-17, ECF No. 52.) When adjudicating student disciplinary cases involving sexual misconduct charges under the 2014-15 Code, the Student Conduct Boards would look to available sources to define “consent” for purposes of their deliberations, including the dictionary and Brown’s sexual education website. (Id. at 75:11-76:11.)

In the fall of 2015, Brown also adopted a new Complaint Process Pursuant to the Title IX Policy (“Complaint Process”) (Ex. 3), which delineates the procedures for the receipt, investigation, and informal and formal resolution of complaints alleging student sexual misconduct. (Trial Tr., vol. II, 4:5-24, ECF No. 52.) Unlike the previous model where evidence was presented directly to a hearing panel, the new Complaint Process uses an “investigator model” for handling sexual misconduct cases. (Trial Tr., vol. I, 38:1-12, ECF No. 51.) Under this model, there is a single investigator, whose role is to gather “information through interviews of the complainant, respondent, and witnesses and synthesize the information in a report.” (Complaint Process 3, Ex. 3.) “The investigator has the discretion to determine the relevance of any witness or other evidence and may exclude information in preparing the investigation report if the information is irrelevant, immaterial, or more prejudicial than informative.” (Id.) The Complaint Process dictates that “[t]he investigator’s report will include credibility assessments based on their experience with the complainant, respondent, and witnesses, as well as the evidence provided.” (Id. at 4.) However, it also states that “[t]he investigator will not make a finding or recommend a finding of responsibility.” (Id.) The investigator model has become increasingly popular among colleges and universities, particularly “peer institutions of Brown.” (Trial Tr., vol. II, 57:15-20, ECF No. 52.)

Under the Complaint Process, Brown has established a Title IX Council to adjudicate charges and review appeals. (Complaint Process 5-6, Ex. 3.) At the hearing to adjudicate charges, the Chair of the Title IX Council presides as a non-voting panelist and three members of the Title IX Council preside as voting panelists. (Id. at 5.) The Title IX Council Chair “is responsible for the administration of the hearing process, including procedural matters and decisions leading up to the hearing, determinations about information that vSdll be considered or not, appropriate and inappropriate lines of questioning, and the overall decorum and conduct of the proceedings.” (Id.) The panel’s role is “to review the information presented in the investigation report and to determine if an individual or individuals violated the University policy (and, if yes, to determine an appropriate sanction).” (Id.)

During the hearing, the panel “convene[s] with the investigator (although the Chair has the discretion to determine if a meeting with the investigator is not necessary)” and raises any questions regarding the investigator’s report. (Id.) The complainant and respondent are not allowed in the hearing room during this phase of the proceeding. (Id.) The panel may also request to hear from one or more witnesses, however, the Chair has complete discretion to approve or deny those requests. (Id.) The complainant and respondent may appear separately before the panel to make an oral statement regarding the facts and be questioned by the panel. (Id.) Throughout the hearing process, “[t]he presumption is that the investigator has identified and interviewed all relevant witnesses and supplied the information necessary for the hearing panel to render its decision and determine sanctions.” (Id.) The panel convenes to deliberate and render a decision, by majority vote, regarding whether or not the respondent has violated University policy by a preponderance of the evidence. (Id.) This process marks a significant departure from Brown’s former adjudication system, in which the panel would review all of the evidence and hear the witnesses live, and then make findings. (Trial Tr., vol. IV, 139:21-140:14, ECF No. 53.)

Under the Complaint Process, Brown seeks to complete the investigation and the panel hearing within 60 days in accordance with guidance from the Department of Education’s Office for Civil Rights (“OCR”). (Id. at 6-7; Trial Tr., vol. I, 164:5-17, ECF No. 51.) Both the complainant and respondent have the right to appeal a Title IX Council panel’s decision “based on the limited grounds of substantial procedural error that materially affected the outcome and/or material, new evidence not reasonably available at the time of the hearing.” (Complaint Process 6, Ex. 3.) Each student may file a written response to the other student’s appeal. (Id.)

Appeals are reviewed by an appellate panel comprised of the Title IX Council Chair as a nonvoting member and three voting members. (Id.) If the appellate panel grants an appeal based upon a substantial procedural error, the matter will be heard by a new hearing panel. (Id.) If the appellate panel grants an appeal based upon the discovery of new evidence, the matter will be remanded back to the same panel that initially heard the case for reconsideration in light of the new evidence. (Id.) “Following reconsideration, the finding of the hearing panel or the sanction imposed by the decision-maker will be final and not subject to further appeal.” (Id.)

D. Selection and Training of Title IX Council Members

Gretchen Schultz, a tenured professor of French Studies, serves as the Title IX Council Chair. (Trial Tr., vol. II, 29:5-12, ECF No. 52; .Trial Tr., vol. IV. 30:11-13, ECF No. 53.) Schultz previously served on the Task Force and presided on Student Conduct Board panels that adjudicated sexual misconduct charges under the Code. (Trial Tr., vol. IV, 32:19-22, 45:2-5.) Brown’s Title IX Council is comprised of faculty, staff, undergraduates, graduate students, and a medical student. (Trial Tr., vol. 1,153:11-16, ECF No. 51.) Throughout the 2015-16 academic year, Brown’s Title IX Officer, Amanda Walsh, oversaw the selection of the Title IX Council. (Id. at 153:10-156:4.) She attempted to find members who would approach the cases fairly and offer balanced viewpoints. (Id.)

All of the Title IX Council members were required to complete at least five hours of training before becoming eligible to serve on a hearing panel. (Id. at 158:24-159:19.) Walsh presented a two hour training session, which gave an overview of Title IX and Brown’s policies and procedures. (Id. at 162:14-163:9; Walsh Title IX Presentation, Ex. 45.) Walsh testified that she informed panelists that while they may believe a complainant or feel sympathy for him or her, it does not necessarily mean that they should find the respondent to be “responsible.” (Trial Tr., vol. I, 169:17-170:10, ECF No. 51.) Walsh emphasized that a finding of “responsible” must be supported by a preponderance of the evidence. (Id.) During training, panelists were also instructed that they are “supposed to consider all of the evidence.” (Trial Tr., vol. Ill, 45:9-12, ECF No. 54.)

Alana Sacks, a Sexual Harassment & Assault Resources & Education (“SHARE”) advocate, presented a training session to Title IX Council members regarding the impacts of trauma on sexual assault victims. (Trial Tr., vol. I, 160:1-16, ECF No. 51.) Brown states that it provided this training to comply with guidance documents issued by OCR, which state that decision-makers in Title IX processes should understand the potential impacts of trauma. (Id. at 160:7-16.) During her presentation, Sacks stated that some reactions of sexual assault survivors might be coun-terintuitive, for example not being able to recount a consistent set of facts, or “communicating with someone who has assaulted them or having any kind of interaction with someone who has assaulted them.” (Tr. of Deposition of Alana Sacks, 72:23-74:11, Ex. 48.)

At another training session, Mark Peters, Brown’s Men’s Health Coordinator, addressed the social norms and expectations of males. Walsh testified that she chose this session to offer “another point of view or additional contextual information.” (Trial Tr., vol. I, 160:17-23, ECF No. 51.) The Title IX Council members also participated in a mock hearing addressing a fictional disciplinary case. (Id. at 161:14-21.)

E. Ann’s Complaint and Doe’s Response

During late September or early October 2015, Ann met with Walsh to discuss an encounter that Ann had with Doe approximately one year prior, in November 2014. (Trial Tr., vol. II, 9:9-19, ECF No, 52.) Ann asked about options available to her. (Id. at 9:20-23.) Walsh reviewed Brown’s remedial and safety resources, such as confidential SHARE advocates, the chaplain’s office, and counseling and psychological services. (Id. at 9:24-10:5.) Walsh also indicated that Ann may file a report with Brown’s Title IX Office, as well as with the Providence Police Department or Brown’s Department of Public Safety. (Id. at 10:6-9.)

On Friday, October 30, 2015, Ann filed a complaint in the Title IX Office alleging that Doe had sexually assaulted her on November 10, 2014. (Ann’s Complaint, Ex. 5; Trial Tr., vol. I, 32:22, ECF No. 51.) Specifically, Ann alleged the following:

On November 10, [2014] I got into campus very late due to travel delays. Around 2am, I met [John] at the campus center to watch a movie in a public place. When I arrived at the campus center he brought me back to a secluded room and had his laptop up for the movie. Once he started the movie, he physically grabbed my face to kiss me. I immediately turned my head away to • indicate my lack of consent and verbally told him that I don’t want to kiss him. This also was meant to confirm that his sexual advances were unwanted. Rather than respecting my wishes, [John] kissed me on the cheek and then asked, “may I?” I was upset and confused, so asked, “may I what?” [John] then forced his fingers into my vagina to sexually assault me. I froze and did not respond. In my head, all I could think is that I wanted this to be over with, so when he kept kissing me I didn’t resist. During the assault he said, “I know you want to fuck me right now.” Fearing he would do more to me, I told him I really couldn’t as an attempt to avoid him raping me. He replied, “well at least give me a blowjob then.” I repeatedly stated that I did not want to and tried to avoid angering him by stating “I really shouldn’t” and “I wasn’t sure,” but I never wanted to and wanted to leave as soon as possible. [John] kept replying, “I know you want to” and I knew I wasn’t going to be able to leave unless it happened. I felt I had no choice to avoid being raped, so submitted to this coercive badgering out of fear and gave him oral sex. At one point, I stopped the oral sex and he said “put my dick back in your mouth.” Around 3 a.m., I finally could leave and told him on the way out, that he was the kind of person that makes people do things they don’t want to do. He again said, “I know you wanted to” as I was leaving. I then went home in shock and upset about what happened and just wanted to sleep.

(Ann’s Complaint 2, Ex. 5.) Ann’s Complaint also described and attached numerous text messages that the two students had exchanged leading up to the encounter, many of which are very sexually explicit. (Id. at 1-2; see Text Messages 1-133, Ex. 19.) Ann acknowledged that she had “engaged in some banter” and “discussed a fantasy,” but stated that she had made clear that she did not want to have a sexual relationship with John. (Ann’s Complaint 1-2, Ex. 5.) Ann’s Complaint did not include any text messages from after the incident. (Trial Tr., vol. II, 91:3-6, ECF No. 52.)

Walsh promptly contacted Doe to inform him of Ann’s Complaint. (Trial Tr., vol. II, 10:10-14, ECF No. 52.) During the evening of Sunday, November 1, 2015, Walsh sent an email to Doe requesting that he meet with her the next day. (Id.) On Monday, November 2, 2015, Walsh met with Doe to discuss Ann’s Complaint. (Id. at 10:22-11:12.) Walsh provided Doe with a copy of Ann’s Complaint and the Complaint Process; informed Doe that if he needed academic assistance, he should contact Dean Suarez in Brown’s Office of Student Life; informed Doe of his right to an advisor; and alerted Doe that he could seek confidential support at Counseling and Psychological Services (CAPS). (Id. at 11:2-22; 11/3/15 Letter from Walsh to Doe, Ex. 6.)

Under the Complaint Process, a respondent has five business days to submit a statement in response to a complaint. (Complaint Process 3, Ex. 3.) Walsh agreed to Doe’s request for an extension due to his course work and a mock trial tournament during the response period. (11/3/15 Letter from Walsh to Doe, Ex. 6.) Walsh granted a 24 hour extension, allowing Doe to file his statement by 5 p.m. on Tuesday, November 10, 2015. (Id.; Trial Tr., vol. II, 12:1-12, ECF No. 52.)

On November 10, 2015, Doe filed his statement responding to Ann’s Complaint. (Doe’s Response to Complaint, Ex. 8; Trial Tr., vol. I, 43:15-22, ECF No. 51.) Doe presented a different interpretation of the text messages, noting that, based on Ann’s participation in explicit sexual banter and discussion of fantasies, “she did appear open to a sexual relationship with me.” (Doe’s Response to Complaint 2, Ex. 8.) He also had a very different version of the encounter on November 10, 2014, stating that “[Ann] was an active participant, got up two or three times to turn off the lights, and then cuddled with me. Had she been afraid at any point, she could have yelled for help as there were other people in the building, or simply left. She did neither. In fact, she seemed to enjoy herself.” (Id. at 4.) According to Doe, he and Ann were “squeezing] each other tightly and vigorously kiss[ing]” and “Ann pushed me on my back and got on top of me with her legs straddling me.” (Id.) Doe continued, “I reached my hand into Ann’s pants after she told me that I could. She subsequently lifted her butt up and pulled her sweatpants down as I helped her. ... After I finished fingering [Ann] she told me that it was her turn. She unzipped my pants and together we pulled them down to my ankles. She then proceeded to give me oral sex.” (Id. at 4-5.) He also noted that “[t]he lights came back on” several times through the encounter, “and each time, Ann got up, turned them off, and came back over to me.” (Id. at 4.) Doe further explained that Ann continued to pursue him after November 10, 2014, and that she offered no reasonable explanation for her delay in filing her Complaint. (Id. at 4-5.) He attached “a complete, unedited log of [their text messages],” noting that the log “begins a day earlier than what Ann provided [with her Complaint] and includes subsequent texts that she deleted from what she provided.” (Id. at 1.) These text messages included the following exchange several days after the incident:

Respondent: Remember to pretend like' you didn’t give me a mind blowing blow-job [winking emoji]

Complainant: Only if you remember to pretend you’re not imagining fucking the shit out of me the whole time ...

Respondent: Only if I pretend like you don’t want me to fuck you until you orgasm the whole time

Complainant: Good. So no one will suspect how much you want to cum inside me in Cali [smiling emoji]

Respondent: And no one will suspect how much you want me to make you my little slut for a night

Complainant: Perfect, sounds like we’ve got a plan [winking emoji] [I]m super pumped for the drunk scrimmage but more excited to see you finally! Haha

(Perkins Report 23, Ex. 18 (quoting Text Messages 134-35, Ex. 19).)

As permitted under the Complaint Process, Ann and Doe retained attorneys to act as their advisors. (Trial Tr., vol. II, 5:16-17, ECF No. 52.) Ann selected Attorney Laura Dunn of SurvJustice, who was assisted by Attorney Myka Held of that organization, and Doe selected Attorney J. Richard Ratcliffe. (Id. at 5:19-25.) Shortly after Doe received Ann’s complaint, Brown informed Attorney Ratcliffe on November 4, 2015 that the University would apply the Complaint Process to investigate and adjudicate the matter. (11/4/15 Email from Michael Grabo to Ratcliffe, Ex. 7.) Because the November 10, 2014 incident between Doe and Ann occurred during the 2014-15 academic year, however, the substantive charges were based on the 2014-15 Code. (Id.)

F. The Investigation

Consistent with the Complaint Process, Brown hired an external investigator, Attorney Djuna Perkins, to investigate Ann’s allegations and Doe’s defenses. (Perkins Engagement Letter, Ex. 9.) Perkins’ investigation spanned over four months from her engagement by Brown on November 4, 2015 to the completion of her report on March 12, 2016. (See id.; 3/12/16 Email from Perkins to Doe attaching Final Report, Ex. 17.) Perkins spent 80-100 hours conducting the investigation and drafting her report. (Trial Tr., vol. II, 144:21-25, ECF No. 52.)

Perkins interviewed Ann on November 13, 2015, January 8, 2016, and February 17, 2016. (Perkins Final Report 1, Ex. 18.) She interviewed John on November 19, 2015 and February 2, 2016. (Id.) Between December 3, 2015 and February 12, 2016, Perkins interviewed 11 witnesses identified by Ann and John. (Id. at 1-2.) She attempted to reach three other witnesses who did not respond or declined to be interviewed. (Id. at 2.)

One of the witnesses whom Perkins interviewed had seen Ann shortly after the incident and recounted the following:

Witness 1 said she told the Complainant about her day, and then the Complainant said, “Oh my God, I have to tell you something. Do you guys remember that guy [the Respondent] I’ve been telling you about?” When Witness 1 and the Complainant’s roommate said they did, Witness 1 said the Complainant said, “I just hooked up with him. It was like really weird because we were just in Faunce and hooked up.” The Complainant told them' she and the Respondent had gone to some out-of-the-way room in Faunce and turned the lights off. Witness 1 said the Complainant made the whole thing sound “sexy and cool.” Witness 1 said [Ann’s roommate] asked if they had sex and the Complainant said, “No, but.it was really hot. I mean, you know it wasn’t recripocal because he only fingered me—he didn’t eat me out—but we' might hook up again, I don’t know.” Witness 1 said the Complainant made it sound as if she wished they had done more. The Complainant also said she had given the Respondent a “blowjob.” Witness 1 could not recall if the Complainant provided any other details of their encounter. Witness 1 said when the Complainant told the story, she was her typical “happy, bubbly” self. Witness 1 did not recall the Complainant saying she did not want any of the sexual activity to occur, and never mentioned that the Respondent had pressured her into hooking up or doing any of the things they did.

(Perkins Final Report 16-17, Ex. 18.)

Perkins reviewed and included in her report the entire set of text messages between John and Ann. (Id. at 2-3 n.3.) She also included an excerpt of a set of text messages involving John and another female student (Witness 8), for the limited purpose of corroborating the fact that Ann had put in a “good word” for John with Witness 8; and an excerpt of text messages between John and Ann’s friend, Witness 9, to be considered “only to the extent they may shed light on the Respondent’s state of mind on the night of November 10, [2015], and to the extent they may shed light on the Respondent’s claim that the Complainant conspired with Witness 9 to fabricate the allegations.” (Id. at 2-3.) Perkins reviewed, but elected not to present to the panel, other text messages between John and Witness 9, and between John and another female student (Witness 10), due to a concern that their prejudicial impact would outweigh their probative value. (Id. at 3.) Perkins further declined to consider communications that John sent to mock trial members and its governing board during the summer of 2015, again out of concern about their potential prejudicial impact to him. (Id.) Finally, Perkins declined to consider a Faeebook posting provided by Witness 9 because it was not directly relevant to the allegations in Ann’s complaint against John. (Id.)

As noted above, John claimed that Ann and Witness 9 had a “conspiracy” to fabricate the claim against him. He based this allegation on the following conversation overheard by Witness 11:

On October 30, 2015, [Witness 11] states that he was in the Ratty in line to get food when he recognized the Complainant directly ahead of him in line. The Complainant was talking to a female friend. The friend was crying and the Complainant was comforting her. The Mend said, ‘We failed. We messed up. It didn’t work. Every time we try and get him on something it doesn’t work.” Witness 11 states that several times he heard the Complainant and her Mend say the Respondent’s name. He also recalled the Complainant saying, We’ll get him. My uncle is an important lawyer in New York and [the Respondent] can’t keep countersuing us.” Witness 11 also heard one of them say, We’ll figure this out, we’ll get [Witness 14] to do something.”

(Id. at 28-29.) Ann and Witness 9 described a series of events leading up to this conversation in which John had behaved badly, including the violation of a no-contact order. (Id. at 27-29.)

On February 29, 2016, Perkins sent an initial draft of the investigation report to Walsh for review. (See Perkins Report First Draft, Ex. 10; 02/29/16 Email Chain between Walsh and Perkins, Ex. 11.) Walsh responded that day with her red-lined revisions and comments. (See 02/29/16 Email Chain between Walsh and Perkins, Ex. 11; Walsh Redline of Draft Report, Ex. 12.) In a section entitled “Relevant Policy Sections,” Perkins’ listed: (1) Offenses VILA and VTI.B and the definitions of consent and coercion in Brown’s Title IX Policy, and (2) Brown’s 2014-15 Code. (Perkins Report First Draft 1, Ex. 10.) In her revisions, Walsh rewrote the language under the “Relevant Policy Sections” to cite only to Offense III of the 2014-15 Code. (Walsh Redline of Draft Report 1, Ex. 12.) Walsh stated that she deleted the citations to the offenses and definitions under the Title IX Policy because the disciplinary case involved charges against Doe under the 2014-15 Code. (Trial Tr., vol. II, 21:15-19, ECF No. 52.)

Perkins also informed Walsh that “the Respondent’s ‘conspiracy’ claim ... forced me to include some information about the Respondent’s interaction with [Witness 9]. I felt it was important to include some discussion of the claim because he was so adamant about me interviewing [Witness 11] and I think it is this conversation that convinced him there was some sort of conspiracy against him.” (02/29/16 Email Chain between Walsh and Perkins 1, Ex. 11.) She added that “if, now that he sees this explanation, he accepts it, I thought it would be easy to simply redact that section so that there is no mention of the [Witness 9]-Respondent interactions.” (Id.) Walsh concurred with this decision. (Id.; Trial Tr., vol. II, 23:23-24:12, ECF No. 52.)

After receiving Walsh’s input, Perkins revised the draft. (Trial Tr., vol. II, 104:16-21, ECF No. 52.) On March 1, 2016, a draft of the investigation report was shared with John and Ann, consistent with the Complaint Process. (See Perkins Report Second Draft, Ex. 13.) On March 4, 2016, John and Ann submitted their comments and proposed revisions to the draft report. (See Ann’s Request for Revisions, Ex. 14; John’s Request for Revisions, Ex. 16.)

As his first point, John cited to Offense III in the 2014-15 Code, claiming that it is “vastly different” than what is stated in the current Title IX Policy. (Doe’s Request for Revisions 1, Ex. 16.) John also took issue with footnote 22 of the draft report, stating the following:

Quite a bit of your report, including footnote 22, focusses [sic]-on the possibility that I coerced [Ann] to engage in sexual conduct. That, however, is not part of the 2014 definition of this offense. The term coerce does not appear in that definition, so I respectfully suggest that your statement in footnote 22 that “the central issue in this case .... [is] whether the consent was obtained through coercion” is incorrect. In any event, because panels are now trained to apply a different definition of sexual misconduct than what applies in my case, this distinction is important and should be conspicuously set forth in your report. Furthermore, your report does not contain a definition of “coercion,” which is the “use of force or intimidation to obtain compliance.” There is absolutely no evidence that I intimidated or threatened the Complainant in order to satisfy my sexual desires.

(Id. at 1-2.) Citing again to footnote 22 of the draft report, John further claimed that the investigator should have obtained a full set of text messages between Ann and Witness 9 based upon his conspiracy claim. (Id.) Doe’s letter also referred to the character evidence in the section of the Report about his conspiracy claim. (Id. at 3-6.) Doe contended that “[t]hese paragraphs far outweigh any relevance they have to the issues the panel must consider and should be removed.” (Id. at 6.)

Ann requested a number of changes to the report as well. (See Ann’s Request for Revisions, Ex. 14.) Her advisor also wrote a letter requesting certain changes, including that the excluded text messages between Doe and Witness 9 be considered as evidence of a pattern of behavior. (See id. at 19-20.)

After considering both students’ comments and incorporating certain of their proposed revisions, Perkins finalized her report and issued it on March 12, 2016. (See 03/12/16 Email from Perkins to Doe, Ex. 17; Perkins Final Report, Ex. 18.) In response to Doe’s comments, Perkins rewrote footnote 22 in the draft report, which became footnote 26 in the final report. (Compare Perkins Report Second Draft 16, n.22, Ex. 13, with Perkins Final Report 16-16, n.26, Ex. 18.) Among her revisions, Perkins added language in the footnote stating that “[t]he 2014 Code of Student Conduct forbids ‘non-consensual physical contact of a sexual nature.’ Implicit in any common understanding of consent is that it is freely and voluntarily given. Thus, consent obtained by coercion does not constitute consent.” (Perkins Final Report 15-16 n.26, Ex. 18.)

Perkins did not request the text messages between Ann and Witness 9. When questioned about this decision at trial, Perkins stated that early on, Ann had texted Witness 9 about what happened with John, and Witness 9 stated “OMG, that’s sexual assault.” (Trial Tr., vol. II, 181:9-13, ECF No. 52.) Perkins concluded that “once [Ann] has locked herself into that version of events with her friends, very unlikely that there’s going to be some piece of evidence later on, some text message that said, yes, it’s true, I really had a super fun time and we’re just going to keep going on this because he’s a jerk.” (Id. at 181:18-23.) Additionally,

because these two were so close, it was likely that it was going to really be that there would be many, many messages and that it would really bog down the investigation. And these are, unlike in a civil case, where of course you’d get access to that because maybe there’d be some nugget that would either lead you to that conclusion or some other relevant conclusion, these eases are supposed to be completed within 60 days. There had already been significant delay in the case ....

(Id. at 182:5-13.) Perkins also noted that because she did not have subpoena power, the students would have been free to refuse that request. (Id. at 153:17-19.)

Perkins decided not to remove the character evidence; however, the Final Report contained the following limiting instruction:

The incidents on the following pages (through the second to last paragraph before the Conclusion on the last page) are relevant only to the extent that they provide context for the Complainant’s and Witness 9’s state of mind toward the Respondent and the Complainant’s motives in bringing the Complaint. They are not relevant for any other purpose and should not be considered as evidence that the Respondent committed the acts alleged in the Complaint.

(Perkins Final Report 27, Ex. 18.) In footnote 43 relating to a September 26, 2015 interaction between Doe and Witness 9, the Report likewise stated “[t]his incident is relevant to the extent it provides context for the Complainant’s and Witness 9’s state of mind toward the Respondent and the Complainant’s motives in bringing the Complaint,” but “[i]t is not relevant - for any other purpose and should not be considered evidence that the Respondent committed the acts alleged in the Complaint.” (Id. at 27 n.43.)

6. The Title IX Council Hearing

After Perkins’ issuance of the finalized investigation report, Walsh addressed the composition of the Title IX Council panel that would preside at the hearing. (Trial Tr., vol. II, 26:1-3, ECF No. 52.) Walsh reviewed all of the Title IX Council members who had no conflicts in the matter, had completed the required training, and had scheduling availability. (Id. at 26:4-14, 26:24-27:8, 27:15-18.) Walsh stated that she considered as panelists all three male Title IX Council members who had completed five hours of training, but each had a conflict that precluded him from presiding. (Id. at 27:16-28:5.) Specifically, a male undergraduate on the Title IX Council participated in the mock trial program and knew John and Ann; another male undergraduate had a friendly relationship with Ann; and a male administrator, Brown’s Director of Student Activities, was familiar with the mock trial program and its participants. (Id. at 27:16-28:5.)

Walsh scheduled the Title IX Council hearing to occur on April 14, 2016 before Schultz, as the Title IX Council Chair and a non-voting panelist, and the following three voting panelists: Besenia Rodriguez, Brown’s Associate Dean for Curriculum; Kate Trimble, Deputy Director of Brown’s Swearer Center; and Kimberly Charles, a senior undergraduate student. (Id. at 26:16-18, 27:10-14, 29:5-6; Panel Findings 1, Ex. 27.) Consistent with the Complaint Process, the panelists received the investigation report and the various appendices attached to it (including all of the text messages between John and Ann) prior to the hearing. (Trial Tr., vol. II, 30:1-17, ECF No. 52; Trial Tr., vol. III, 72:23-73:5, ECF No. 54.) They also received copies of the 2014-15 Code and the Complaint Process. (Trial Tr., vol. I, 102:18-20, ECF No. 51; Trial Tr., vol. II, 30:5-9, ECF No. 52.) Walsh additionally provided Schultz, as the Title IX Council Chair, with two items that were not included in the panelists’ packets. (Trial Tr., vol. II, 32:11-34:2, ECF No. 52.) One was John’s conduct history because such information would only be considered in the sanctioning deliberations if the voting panelists found John to be responsible for the charges. (Id. at 32:16-19.) The other was the Title IX Policy. (Id. at 32:19-21). Walsh stated that she included the Title IX Policy in Schultz’s materials because there was no definition of consent in the 2014-15 Code, and she wanted the panelists to have the Title IX Policy as an option to consider during their deliberations if they elected to do so. (Id. at 32:23-34:2.) She did not include the Title IX Policy in the panelists’ packets because she did not want them to think that they were required to consider it. (Id.)

On April 14, 2016, Walsh and Schultz met before the start of the Title IX Council hearing. (Id. at 30:20-32:5, 34:5-9; Trial Tr., vol. I, 103:18-20, ECF No. 51.) Walsh told Schultz that the Chair’s packet included the Title IX Policy, which the other panelists did not receive. (Trial Tr., vol. I, 103:21-104:1, ECF No. 51; Trial Tr., vol. II, 34:5-9, ECF No. 52.) Schultz, the three voting panelists, and Walsh convened at the start of the hearing. (Hearing Notes 1, Ex. 24.) Throughout the hearing, Walsh took detailed notes on her laptop computer. (Hearing Notes, Ex. 24; Trial Tr., vol. I, at 104:10-12, ECF No. 51; Trial Tr., vol. II, at 34:15-18, ECF No. 52.) Schultz first reviewed a hearing checklist, which addressed the standard of evidence, clearance of conflicts, the Chair’s role to administer the hearing process, the voting panelists’ roles, confidentiality, and sanctions upon a finding of responsibility. (Hearing Notes 1, Ex. 24; Hearing Checklist 1-2, Ex. 23.) After reviewing the checklist’s items, Schultz reminded the panelists that the charges against John were brought under the 2014-15 Code because the incident at issue occurred on November 10, 2014, and Schultz read through Offense III of the 2014-15 Code. (Hearing Notes 1, Ex. 24.) Schultz reminded the panel that the 2014-15 Code did not define consent. (Id.) She then read the current definition of consent in the Title IX Policy and told the panel that, although they were not required to use that definition, “it may be helpful in thinking about how the University has viewed consent.” (Id.)

Perkins appeared before the panel and answered a number of questions, which are documented in Walsh’s notes. (Id. at 1-2.) Among the questions was an inquiry from Schultz after Perkins stated that she found both Doe and Ann credible: “Doesn’t someone have to be lying? [Ann] says she said no and [John] says she’s an enthusiastic partner.” (Id. at 2.) Perkins responded as follows:

If you look at [the] text messages, it does show that [John] is persistently making things sexual even though [Ann] is a willing participant at times. He does convert things into something sexual. He did say he asked for consent and she was enthusiastic, but that isn’t consistent with the text messages where you can see her hesitation. The idea that she was willingly jumping into this sexual encounter doesn’t match, but that’s for the panel to decide. Her version appears to be more consistent with the pattern that is in the text messages.

(Id.)

After the panel’s session with the investigator, the Chair asked the panelists whether they would like to hear from John or Ann next. (Id.) The panelists chose to meet with John first. (Id.) When John and his advisor appeared before the panel, Ann and her advisor were in another room and listened by telephone. (Id.) John began by asking if he would be allowed to present a rebuttal after Ann’s presentation, and Walsh responded that the process does not permit rebuttal statements and the panel had decided to hear him first. (Id.)

John denied any non-consensual sexual misconduct, calling the case a “lie that got bigger.” (Id. at 3.) He stated his version of the events leading up to, during- and after the November 10, 2014 incident. (Id.) John also argued that the investigator’s references to “coercion” were improper under the 2014-15 Code. (Id.) He contended that the 2014-15 Code “requires force or threat of force” and “[i]f Complainant attempts to allege that there were [attempts of coercion], they wouldn’t fall under [the Code].” (Id.)

Ann next appeared before the panel with her advisor, while John and his advisor adjourned to another room and listened by telephone. (Id. at 4.) Ann described the November 10, 2014 incident very differently, claiming that John sexually assaulted her. (Id.) Ann referred to the definition of consent under the Title IX Policy and stated that consent cannot be obtained through manipulation, coercion or force. (Id.)

Following Ann’s appearance, the panel prepared to proceed to its deliberations. (Id.) Walsh reminded the panel that they were provided the 2014-15 Code because the case involved .'a November 10, 2014 incident. (Id. at 5.) They were provided with the Complaint Process because its procedural measures were in effect as of the filing of Ann’s Complaint on October 30, 2015. (Id.) Walsh left the hearing room after these comments, as the Title IX Officer does not participate in the panel’s deliberations. (Id.; Trial Tr., vol. II, 41:22-42:2, ECF No. 52.)

H. The Panel’s Deliberations and Decision

During the panel’s deliberations, Schultz, as the Title IX Council Chair, acted as a facilitator of the discussions by asking questions, offering guidance, and conducting straw votes of the three voting panelists. (Trial Tr., vol. III, 82:22-83:5, ECF No. 54; Trial Tr., vol. IV, 134:7-21, ECF No. 53.) Schultz also told the voting panelists that the Title IX Policy had codified Brown’s community standards. (Trial Tr., vol. IV, 90:20-25, ECF No. 53.)

Schultz testified that the panel’s deliberations were “lengthy.” (Trial Tr., vol. IV, 134:13, ECF No. 53.) Panelist Besenia Rodriguez likewise testified that the panel spent “quite a while” in its deliberations and “a lot of time” discussing the case. (Trial Tr., vol. Ill, 81:4-7, ECF No. 54.) In addition, Perkins, Rodriguez, and Schultz all felt that this case was “difficult.” (Trial Tr., vol. II, 178:15-18, ECF No. 52; Trial Tr., vol. Ill, 23:7-9, ECF No. 54; Trial Tr., vol. IV, 64:17-20, ECF No. 53.) Both Schultz and Rodriguez testified that Ann gave John “mixed signals” or “mixed messages” in her texts, both before and after the incident. (Trial Tr., vol. Ill, 23:13-15, ECF No. 54; Trial Tr., vol. IV, 65:12-14, ECF No. 53.) Schultz found both parties to be “unappealing” (Trial Tr., vol. IV, 65:15-18, ECF No. 53), and Rodriguez did not find either witness wholly credible. (Trial Tr., vol. Ill, 23:10-12, ECF No. 54.)

Rodriguez testified at trial that she did not consider any of Ann’s post-encounter conduct, including the text messages and the testimony of Witness 1, as “evidence as to whether or not [Ann] had been sexually assaulted one way or another.” (Trial Tr., vol. Ill, 42:17-22, 45:5-8, ECF No. 54.) This was, at least in part, based on the SHARE Advocate training about counter-intuitive behaviors exhibited by sexual assault survivors. (Id. at 42:23-43:17, 52:11-25.) Rodriguez concluded, based on the SHARE presentation, “that it was beyond [her] degree of expertise to assess [Ann]’s post-encounter conduct ... because of a possibility that it was a response to trauma.” (Id. at 55:16-21.) Rodriguez also testified that she had considered the fact that Doe had previously violated a no-contact order as evidence that he “did not accept boundaries.” (Id. at 24:4-7, 26:9-16.)

The panel decided to use the definitions in the Title IX policy, and by a 2-1 vote, found Doe responsible. (Panel Findings 1, Ex. 27; Trial Tr., vol. III, 88:6-8, ECF No. 54.) They next addressed the sanction. (Id. at 88:12-89:23.) Schultz advised the panel that John had previously been placed on probation by the University for no-eontact order violations. (Id.) The panel determined that John should be suspended and kept off campus until after Ann graduated. (Id.)

Schultz informed Walsh of the panel’s decision. (Trial Tr., vol. II, 43:16-25, ECF No. 52.) During the afternoon of April 14, 2016, Schultz prepared a draft of the Title IX Council’s findings and sent it to the panelists for review. (04/14/16 Email from Schultz to Panelists and Walsh, Ex. 25.) She later forwarded the email and its attachment to Walsh. (Id.) The next day, Walsh sent the following letter to John and Ann:

During both statements [at the hearing], references were made to the relevant policy and procedures applicable in this matter. As Djuna Perkins cites in her investigation report, the relevant policy is the 20H-2015 Code of Student Conduct. The relevant process is Brown’s Complaint Process, which was in effect at the time the Complaint was submitted. The panel was provided with the 20H-2015 Code of Student Conduct and instructed to review Section III (Sexual Misconduct) of the listed Offenses when determining whether a violation of the policy occurred.

I’ve attached both documents for your reference. Please let me know if you have any questions.

(04/14/16 Letter from Walsh to Doe and Ann, Ex. 26.) Walsh stated that she wrote this letter to the students because of Ann’s statements to the panel referencing the Title IX Policy. (Trial Tr., vol. II, 44:8-22, EOF No. 52.) Also, during a meeting that Walsh had with Ann and her advisor on April 14, 2016 after the hearing, Walsh told them several times that the “panel was under no obligation to use the ‘consent’ definition [in the Title IX Policy] and that the applicable Code was ’14-’15 Code,” but it seemed to Walsh that Ann and her advisor were still not clear on this issue. (Id.)

On April 19, 2016, Schultz issued the panel’s written decision, which states as follows:

Because the 2014-15 Code of Student Conduct does not explicitly define consent, the panel referred to the current [Title IX] Policy, which codified Brown University’s existing community standards with respect to “maintaining a safe learning, living, and working environment where healthy, respectful, and consensual conduct represents campus cultural norms” (II).

The current policy defines consent as “an affirmative and willing agreement to engage in specific forms of sexual contact with another” (Villa). Moreover, “consent cannot be obtained through (1) manipulation or (2) the use of coercion.” Coercion is then defined as involving “verbal and/or physical conduct, including manipulation, intimidation, unwanted contact” (VUIb).

Prior to the encounter, the Respondent himself stated his intent to manipulate in text message: “When the Complainant accuses the Respondent of trying to manipulate her, the Respondent says, ‘I’m trying to manipulate you a lot’ Appendix D at 97” (investigative report, p. 8). Moreover, text messages record both the Complainant’s assertion that she is not interested in sexual activity and the Respondent’s refusal to accept this limit: “When [Complainant] replies that she just wants to be friends, the Respondent says, ‘So do I. I just want you to be a friend I fuck the shit out of [Appendix D at 98]. When she replies that she doesn’t know how to make herself more clear, he says, T get it. Just not accepting’ (Appendix D at 98)” (investigative report, p. 8). Given the Respondent’s refusal to accept “no” during his text exchanges with the Complainant, the panel determined that, during their encounter in the locker room, it was more likely than not that a) the Complainant held to this limit, b) the Respondent persisted in his refusal to accept it, and c) the Respondent did not ask for or receive consent as he claims to have done.

In determining an appropriate sanction, the panel was guided by the 2014-15 Code of. Student Conduct, which states that “Violations of Offense Illb will result in more severe sanctions from the University, separation being the standard.” It also took into consideration prior findings in which the Respondent was found responsible for violating the Code of Student Conduct, as well as his violation of a No Contact Order.

(Panel Findings 1-2, Ex. 27.)

The next day, John obtained a temporary restraining order (“TRO”) from this Court based on his likelihood to succeed on the merits of his breach of contract claim that Brown improperly used the Title IX Policy instead of the 2014-15 Code. (ECF No. 15.)

I. Appeals Filed by John and Ann

Both Ann and John appealed from the panel’s decision on April 25, 2016. (Ann’s Appeal, Ex. 29; Doe’s Appeal, 30.) Ann appealed from the imposed sanction, arguing that John should have been expelled from Brown. (Ann’s Appeal 1, Ex. 29.) She cited to a Facebook posting that John made within a few hours after the issuance of the decision, which she claimed was seen by many students and sought to perpetuate a hostile educational environment and retaliate against her. (Id.)

John based his appeal on “substantial procedural error and the overwhelming weight of the evidence that is contrary to the Panel’s finding.” (John’s Appeal 1, Ex. 30.) John claimed that the hearing panel should not have referenced the Title IX Policy because it “substantively changed Brown’s definition of sexual misconduct.” (Id. at 1.) He noted that “manipulation” is not included in Offense III of the 2014-15 Code, but is within the scope of the 2015-16 Title IX Policy. (Id. at 2). He further contended that “ ‘manipulation’ is not comparable to the examples of sexual misconduct provided in the 2014 Code.” (Id.) John also argued that procedural errors occurred during Perkins’ investigation, specifically the fact that she did not obtain and review texts between Ann and Witness 9. (Id. at 6). He also challenged Perkins’ inclusion of the character evidence. (Id.)

On April 26, 2016, Walsh wrote a letter to Schultz to inform her that the Court had entered a TRO against Brown. Walsh suggested to Schultz that, as the Title IX Council Chair who would preside over the appeal panel, “[i]t would be in the University’s best interests to address the Court’s concerns regarding any procedural errors before the case becomes final.” (04/26/16 Letter from Walsh to Schultz, Ex. 31.) Walsh and Schultz also met a day or two later to discuss the upcoming appellate process because it was the first appeal to be heard by the Title IX Council under the Complaint Process. (Trial Tr., vol. 1,132:2-6, ECF No. 51.) On April 29, 2016, Walsh took a maternity leave from the University. (Id. at 132:15-25.)

John and Ann each filed responses to the other party’s appeal. (John’s Response to Ann’s Appeal, Ex. 32; Ann’s Response to John’s Appeal, Ex. 33.) John also attempted to submit a sur-reply to Ann’s response to his appeal, which he submitted to Jessica Katz in Brown’s Title IX Office. (John’s Sur-Reply, Ex. 34.) Specifically, he contended that Ann made a misrepresentation on page 4 of her response, where she wrote that “[u]nder the 2014-15 Code of Student Conduct, sexual misconduct is committed ‘against a person’s will’ .... ” (Id. at 1.) John argued that Ann had purposefully misstated the Code’s language and should be sanctioned by the University. (Id.) On May 9, 2016, Katz informed John that the