Last week, a Vermont federal court halted Middlebury College’s expulsion of a student accused of sexual misconduct, pending further legal proceedings. The court issued a preliminary injunction, which may be granted only when a party can show both that they have a likelihood of success on the merits and that they would suffer irreparable harm without the injunction.
According to the plaintiff, he was accused of sexual misconduct by a non-Middlebury student while on a study-abroad program in the fall of 2014. Using its own policies and procedures, the study-abroad program held a hearing on those allegations and found the student not responsible. Middlebury was informed of all of this, and the student returned to campus in January 2015. The plaintiff alleges that after learning that the complainant planned to file a complaint with the Department of Education’s Office for Civil Rights (OCR), Middlebury opened a new investigation into the allegations and, with no hearing, found him responsible and expelled him. He now stands to lose an $85,000-per-year job offer that is contingent upon his graduation from Middlebury.
The court’s grant of the preliminary injunction is significant because it acknowledges the potentially serious and irreparable harm to a student of being expelled for sexual misconduct. There is something yet more amazing about this case, however, and it is the jaw-dropping hypocrisy of Middlebury College. As I mentioned earlier, the usual standard for a preliminary injunction is that the party requesting one must show “a likelihood of success on the merits.” However, according to footnote 7 of the opinion:
Middlebury argues a higher standard—requiring Plaintiff to demonstrate “‘a clear or substantial likelihood of success on the merits’”—applies because an injunction will provide Plaintiff with substantially all the relief sought and the relief cannot be undone and because Plaintiff seeks to alter rather than maintain the status quo. (Doc. 15 at 10-11 (quoting Koppell v. N.Y. State Bd. of Elections, 153 F.3d 95, 96 (2d Cir. 1998)).)
Yes, you read that correctly: Middlebury College, which is willing to brand students as rapists without a hearing and using a low, “preponderance of the evidence” standard, asked the court to use a higher standard than is ordinarily required to rule on the preliminary injunction. And Middlebury can’t simply blame OCR for their low evidentiary standard—although OCR does now require colleges to use the preponderance standard, Middlebury was already using it prior to that mandate.
So when it’s a student’s future at stake, the lowest standard of evidence, without so much as a hearing, is just fine for Middlebury. But when its own interests are at stake—well, that’s a different story. Those who know me know I am rarely rendered speechless, but words really do fail me when it comes to the absolute hypocrisy and tone-deafness of Middlebury’s request. I hope someone at the college understands and is embarrassed by this obvious double standard.
The Torch will keep you apprised of developments in this case as it proceeds.