The College Fix

Punished him despite lack of evidence in Title IX investigation

Representing oneself in court is very difficult, let alone in a Title IX case where a wide array of facts, procedures and legal precedent must be carefully laid out.

It’s all the more noteworthy that a disabled veteran suing his former university for  anti-male bias has successfully represented himself, to the point where his lawsuit will move into discovery.

A federal judge refused to dismiss several claims against the University of Massachusetts-Dartmouth by John Harnois, who was a Ph.D. candidate in oceanography at the public university.

U.S. District Judge Richard Stearns approved four variations of Title IX claims against various university officials to move forward Oct. 28: selective enforcement, erroneous outcome, creation of a hostile environment  and Title IX retaliation. Other approved claims were for due process and state civil rights violations.

While these claims have survived the motion-to-dismiss phase, many of the defendants may be able to strike or modify them at the summary judgment stage. That’s because of “qualified immunity” granted to state employees.

“Without a more comprehensive and balanced fleshing out of the facts, any decision on the issue of qualified immunity would be premature,” Stearns wrote in a footnote.

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Harnois alleges that multiple faculty members engaged in discriminatory behavior based on his gender. The university performed a frivolous Title IX investigation and spread sensitive information that has delayed his studies and caused severe emotional distress, he claims.

At a 2016 meeting, faculty members alleged that Harnois didn’t disclose all of his past criminal history when applying to the graduate program. They also claimed that undergraduate students had filed multiple complaints against Harnois, but refused to provide details before banning him from campus and launching an investigation.

Despite an admitted lack of evidence to find him guilty, the university issued a written “warning” that isolated him in his studies and demoted him to an apparently slower graduation track, the suit claims.

Stearns took seriously the former student’s argument that the university made him a whipping boy in response to “funding pressures” from the U.S. Department of Education and a “costly gender discrimination lawsuit” by a female employee.

“These allegations, collectively, if believed by a jury, are sufficient to support an inference that Harnois’s gender was a ‘motivating factor’ in the decision of UMass Dartmouth to initiate a baseless Title IX investigation,” the judge wrote.

Official allegedly promised to ‘get your kind’ after he refused to withdraw

Prof. John Buck (left) recommended the school to Harnois and agreed to be his Ph.D. supervisor, according to the suit.

When applying to the school, Harnois disclosed a prior criminal conviction to Scott Webster, director of graduate studies and admissions, who assured him that “he and his staff would keep the conviction confidential.” Assistant Vice Chancellor of Student Affairs Cynthia Cummings “knew that Webster had reviewed Harnois’s disclosure statement,” the suit claims.

He started school in September 2015 with the understanding that he was joining a master’s degree “FastTrak program” that would accept him into the Ph.D. program after completing a research proposal.

Harnois maintained a 4.0 GPA and was accepted into a “prestigious bioacoustics summer program” the following spring. Duke University then recruited him for a summer internship.

On May 4, 2016, however, Cummings and Assistant Vice Chancellor Deborah Majewski accused Harnois of “fraudulently disclosing” his criminal history in his application.

If he did not withdraw, Cummings threatened a Title IX investigation into multiple complaints regarding Harnois’s alleged misconduct that “created a hostile learning environment,” the suit says.

When he pushed for specifics, however, Cummings would only say complaints had been received “as early as December of 2015.” She also pushed Harnois to agree in writing that his coming back to campus would be counted as trespass.

Cummings’ carrot for his voluntary withdrawal would be no Title IX investigation, the continued secrecy of his criminal history, and “excellent letters of recommendation” to matriculate elsewhere. Harnois construed this as attempted blackmail, and his requests to speak with his mentor Buck were denied.

When Harnois refused the offer, Cummings allegedly promised to “get your kind with a Title IX investigation,” according to a footnote in the order. Harnois was suspended that very day due to an “impending Title IX investigation” and failure to disclose his “more extensive” criminal history on his application.

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After the suspension, Cummings and Majewski (right) ordered Harnois’s dean to convene an “unprecedented,” mandatory “all hands meeting” that disclosed his suspension, Title IX investigation and campus ban. Dean Steven Lorenz “intimated that students should avoid speaking with Harnois” and “should consider him dangerous,” the suit claims.

Harnois was informed of his procedural rights May 9 but the university banned him from using Buck as his advisor. Later that month the alleged retaliation ramped up: Cummings and an anonymous “Professor Doe” told university police Harnois had logged into a campus computer, violating his no-trespass order.

Police went as far as to confiscate Harnois’s computer for forensic examination but “failed to uncover any violation” that a trespass had occurred.

The vagueness of the complaints continued on July 15, when he and his attorney met with Cummings, Majewski, and Director of Inclusion David Gomes for an investigative interview, the suit claims.

The officials did not identify his accusers or detail their allegations, and conducted his interview “in an adversarial manner.” Some questions were vague to the point that he “was unable to answer them,” and his requests for written copies of the questions were denied.

In August Harnois started suffering “panic attacks, insomnia, headaches, depression, PTSD flashbacks, loss of hair and hair color, and grinding of teeth so severe that two molars cracked,” as a result of the investigation, he says.

Even when Majewski told him Aug. 30 that there was insufficient evidence to find any policy violations, Harnois was “sanctioned with a warning in writing,” including that any repeat behavior would incur “immediate harsh penalties.”

He was confined to a “remote, supervised workspace” with limited interactions with students and banned from the graduate student “work area,” while losing Buck as thesis advisor. Harnois says his dean demoted him from the fast-track program to a “non-thesis degree candidate” status.

He took a leave of absence to receive psychological treatment after his on-campus work environment became “hostile and toxic.”

‘Official solicitation of baseless complaints’ from female students

Despite representing himself in court, Harnois successfully brought his Title IX claims into discovery. He argued that the “I’ll get your kind” threat from Cummings (left) was a form of selective enforcement that showed she intended to discriminate against him as a male.

Judge Stearns found that all of his arguments suggest gender as a possible motivating factor for the university’s “baseless Title IX investigation.”

They include that UMass Dartmouth acts on its belief that males “exclusively” commit sexual assault and that it was under federal investigation for possible Title IX violations. Its then-recent settlement of a female employee’s discrimination lawsuit also “hypersensitized” the university to the threat of similar suits, to the extent that it undertook “preemptive and precipitous investigation” of males.

Stearns cited the “alleged procedural flaws” that may have led to an erroneous outcome, including the university’s “official solicitation of baseless complaints from Harnois’s female fellow students” and its failure to interview any of Harnois’s witnesses.

The university also discounted the likelihood that multiple students accused Harnois because he had discovered and reported an on-campus “cheating scandal,” which Stearns considers “potentially exculpatory evidence.” The judge cited public statements by officials that may suggest they hold an “indiscriminate belief in the truth of Title IX complaints.”

“Finally and most forcefully, Harnois asserts that he was subjected to sanctions without any finding of a disciplinary violation,” Stearns wrote.

Federal judge refuses to toss lawsuit by disabled veteran against UMass Dartmouth by The College Fix on Scribd

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The “deliberate indifference/hostile environment harassment” claim is going forward because Harnois sufficiently alleges the university facilitated his mistreatment, including “unfounded allegations” and a blind eye to “actual harassment,” on account of his gender.

When he complained about the biased investigation, the university plausibly created such a hostile environment in retaliation that no “reasonable person could expect to endure under the circumstances.”

Stearns allowed the procedural due process claim to proceed, finding that “although sketchy, the collective allegations of a denial of basic due process rights is disturbing enough to merit further development of the facts on discovery.”

The judge cited Harnois’s claims that no “exigency” justified his immediate suspension, and that he was never given specific charges, a copy of the investigation report, or the opportunity to appeal Cummings’ sanctions after his exoneration.

Harnois convinced the judge to approve state civil rights claims that Cummings and Majewski “coerced, intimidated and threatened” him into leaving the university, including by “repeatedly” threatening to share confidential information about him and issuing “extreme and unwarranted interim sanctions.”

Even the student’s defamation claim against Cummings, Majewski, and “Professor Doe” will move forward. That’s due to allegedly false comments they made to Duke University during Harnois’s internship, to UMass Dartmouth faculty and even to campus police.

Some of Harnois’s more inventive claims had varying results. For example, regarding his mentor relationship with Buck, the judge allowed his claim of “intentional interference with third party advantageous relations” against Cummings but not against Majewski.

Case moves forward on due process grounds in part bc university refused to share investigative report with accused student. pic.twitter.com/ArPxcwWQCk

— KC Johnson (@kcjohnson9) October 28, 2019

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IMAGE: CC7/Shutterstock

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