Edwin Bleiler, a former student at College of the Holy Cross in Worcester, Massachusetts, has filed a lawsuit (first in Massachusetts Superior Court, later removed to federal court) alleging violations of Title IX and due process relating to his expulsion on sexual misconduct grounds. A copy of the complaint can be found here (as Exhibit A), and the answer from Holy Cross can be found here (PDF).
According to the complaint, in early May 2011, a female student alleged to Holy Cross that Bleiler had engaged in sexual intercourse with her while she was intoxicated and incapable of effective consent. Bleiler’s subsequent disciplinary hearing was held on May 18. While the specific composition of the five-member hearing board is unclear, Bleiler alleges that the two student board members were friends of the accuser, and arguably had conflicts-of-interest that were ignored by the administrator who organized the hearing. Further, according to the complaint, this administrator’s impartiality was also questionable, as she had appeared on National Public Radio contending that most rapes go unreported, with the offenders going free. Following conviction by the hearing board, Bleiler was expelled on May 26.
There are some factual disputes: Bleiler alleges that the accuser was in fact not intoxicated, for instance. But the central issues are that the complaint alleges (1) that the Holy Cross sexual misconduct policy treats men differently from women, in violation of Title IX; and (2) that Bleiler’s particular disciplinary hearing was fundamentally unfair, in violation of both the Holy Cross Student Handbook and common understandings of due process.
First, the Holy Cross sexual misconduct policy notes that "consent may never be given by … those who are incapacitated as a result of alcohol or other drug consumption." Bleiler’s complaint highlights an important distinction between "intoxication" and "incapacitation," a distinction that FIRE has noted before. Since Holy Cross apparently presumed that someone who is intoxicated is "therefore" incapable of consent, it has effectively rendered the more exacting requirement of actual "incapacitation" a dead letter in its policy. Furthermore, Bleiler alleges that, in practice, the policy means that when male and female Holy Cross students, both of whom are drunk, have sex, the man may face expulsion but the woman may not, even absent any additional evidence of coercion, manipulation, or force. While the words of the policy appear neutral, Bleiler alleges that, as applied by Holy Cross, the policy effectively is enforced differently against men as opposed to women and therefore may violate Title IX.
With regard to the second issue, the student handbook at Holy Cross guarantees that all students have the "right to a fair process which is appropriate in the circumstances." In addition, a student has the right to appeal a disciplinary decision if (1) he or she can demonstrate a lack of fairness; (2) he or she can demonstrate a violation of process; or (3) during the proceedings, new, material facts have come to light. These terms-"fairness," "fair process," and "violation of process"-imply that Holy Cross contractually guarantees its incoming students fundamental rights in disciplinary proceedings. Alleged violations of fundamental fairness on the part of Holy Cross include failure to record the proceedings, failure to sequester witnesses during the investigation, and admission of the accuser’s previous sexual history.
Furthermore, the student handbook provides that hearing board members are "expected to disqualify themselves … if they suspect a potential conflict with any party participating in a board hearing." The student board members and the administrator who appeared on NPR arguably have biases that should have disqualified them from involvement in the hearing process. By participating, they appear to have violated both commonsense notions of fundamental fairness as well as the contractual obligations of Holy Cross.
Put another way: Holy Cross has a contractual obligation to its students to follow its own procedures, and the student handbook is a part of this contract. By stacking the hearing board with friends of the accuser and failing to entertain accusations of bias, Holy Cross may have violated these obligations in Bleiler’s case.
This argument may seem familiar, because it is quite similar to the situation in Brandeis v. Schaer, 735 N.E.2d 373 (Mass. 2000), a case in which FIRE was involved over ten years ago. Several commentators have noted that Schaer stands for the proposition that universities must follow their own contractual promises, and must ensure that disciplinary hearing procedures follow at least some minimal due process. Other holdings from the United States Court of Appeals for the First Circuit (the jurisdiction of which includes Massachusetts) also establish that the "student-college relationship is essentially contractual in nature" and that the "terms of the contract may include statements provided in student manuals and registration materials," as the First Circuit held in Mangla v. Brown University, 135 F.3d 80, 83 (1st Cir. 1998).
Failing to live up to Holy Cross’s contractual guarantees of due process in the case of Edwin Bleiler not only harms him, it threatens all the other students at Holy Cross as well. Quite simply, throwing out procedural rights risks convicting the innocent and ruining lives. Students making a decision about which college to attend next year should make sure that they review and compare the student handbooks and associated materials that colleges provide, and when they attend college in the fall, it would be a good idea to keep a hard copy of the student handbook on hand.