The deadline to appeal Yale College Dean Jonathan Holloway’s decision that a sexual encounter between two undergraduates — first reported in the News last Friday — did not violate University sexual misconduct policy passed yesterday evening.

On Friday afternoon, Holloway, in his capacity as final decision maker in cases involving undergraduates, accepted the University-Wide Committee on Sexual Misconduct’s finding that the male student — the respondent — had not violated Yale’s sexual misconduct policy. Holloway did not provide a reason for his decision in the letter sent to the complainant, a copy of which was obtained by the News.

According to UWC procedure, the complainant had until 5 p.m. yesterday — five days after the initial decision — to file an appeal to Provost Benjamin Polak. However, she told the News that she chose not to appeal because she did not feel she had the grounds to do so under UWC policy.

UWC policy states that either party can file an appeal under only two conditions: if there had been a “procedural error” that prevented the panel or decision maker from fairly judging the matter, or if additional evidence not reasonably available prior to the hearing could be presented.

Neither University Title IX Coordinator and Deputy Provost Stephanie Spangler nor UWC Chair David Post could be reached for comment Wednesday.

“[The UWC] made it very clear in its email to me that I could only appeal if I thought there was some kind of procedural error or if I had new evidence,” the complainant said. “I don’t have any new evidence, and [during the process] they meticulously asked me about everything, so I don’t think that in its eyes the conclusion counts as procedural error.”

She added that she never felt that the panel members were biased against her during the process and that the only deviation she noticed from UWC procedure was the lack of adherence to stated deadlines.

In the complainant’s case, the fact-finder was appointed after the deadline had passed. The fact-finder, required by the UWC guidelines to be independent of the University, was a supervisor at the Yale Child Study Center.

In addition, the final decision-maker’s ruling is supposed to be rendered within 14 days of the final hearing, but Holloway did not release his decision until 17 days later.

“I don’t know if they made an error in procedure other than completely screwing up their own timeline,” the complainant said.

She added, however, that she did not think appealing on the basis of timeline errors would yield a different outcome.

The process, the complainant said, has been “exhausting and emotionally draining.” She said she did not want to prolong a process that she felt would not help her anyway.

“Finding the procedural error seems like something you shouldn’t foist upon students’ shoulders to notice,” she said. “If there’s a procedural error, [the UWC] should be aware of it.”

Still, School of Management professor and former UWC member Constance Bagley, who was not involved in the complainant’s case, said that, in her experience, the committee always tried its best to adjudicate cases in a timely manner.

If there were delays, she said, they likely occurred because of conflicts in panelists’ schedules.

“Having been on the UWC, I can frankly say that there was no evidence that there were anything other than very good faith efforts to get everyone together as fast as possible,” Bagley said.

Bagley — who was co-chair of the Women Faculty Forum’s ad hoc working group on sexual misconduct and an author of the report that led to the UWC’s creation — is no stranger to gender issues at the University.

In December 2013, Bagley filed a lawsuit against the University and three high-profile faculty at the School of Management, alleging that she was not appointed to her position due to her gender and age.Bagley’s case, however, was not adjudicated through the UWC — three separate committees were convened to review the process through which she was appointed.

The complainant, whose case was detailed in Friday’s story, is not the only student to decide against appealing a decision due to not meeting the grounds to file an appeal and running out of energy to prolong the process. Last year, another undergraduate complainant chose not to appeal then-Yale College Dean Mary Miller’s decision after the UWC ultimately found no violation of sexual misconduct policy. She said she also did not meet Yale’s grounds to file an appeal.

Though the UWC adhered to its timeline in her case, she added that she wanted to end her involvement with the process.

“I ran out of time, energy and emotional depth to continue dealing with what had happened, with what had happened with my respondent and dealing with the administration,” she said.

Though she would not comment specifically on Yale’s policy for appealing a final decision on alleged sexual misconduct, Harvard Law Professor Janet Halley said the grounds to appeal decisions on sexual misconduct at Harvard are too narrow. Harvard’s sexual misconduct appellate policy is similar to that of Yale’s — the complainant and respondent can appeal on the grounds of a procedural error that may change the outcome of the decision or on the availability of new substantive and relevant information that could also change the outcome of the decision not available at the time of investigation.

“The [Department of Education Office for Civil Rights] does not require that the appeal be that narrow,” Halley said. “It could be a normal appeal process that would allow some level of challenge to the fact-finding and to the legal standards applied.”

Still, Bagley said that narrow grounds for appeals are not inherently bad. In fact, she said that initially, the Women Faculty Forum wanted narrow grounds for appeal in order to preserve the UWC’s authority to adjudicate cases.

History of science and medicine professor and former Chair of the Executive Committee William Summers said that the current grounds for appealing a final decision are legitimate. Summers authored a letter addressed to University President Peter Salovey and printed in the News on Nov. 6 in which he suggested the University implement a second-level appeal committee to prevent administrators’ potential conflicts of interest from interfering with independent recommendations.

Still, Summers said he would trust the UWC’s decision in this case, as did Holloway.

Summers recommended that an independent review committee be tasked with reviewing UWC decisions and recommendations. A similar structure exists for the Executive Committee.

Bagley said the original report that led to the creation of the UWC in 2011 envisioned the UWC as the sole adjudicative body in sexual misconduct cases. It did not suggest that a final decision-maker should exist. It did, however, allow the provost to stay the imposition of sanctions if he or she found them inappropriate.

She added that since the University has created the position of final decision maker, it should also implement a higher-level committee to hear potential appeals. Such a committee would add a layer of accountability, since the decision maker has the power to ignore UWC recommendations, she said.

“The biggest concern I have is that even though a decision-maker explains his or her reasoning to the [UWC], the committee at that point can’t do anything else and is stuck with the decision,” Bagley said. “If we’re going to have a decision maker, maybe we need a further level of review that looks at the reason given by the decision-maker and decides whether those are valid grounds for rejecting the recommended sanctions by the UWC. Who is watching the watchers?”

  • flopsy

    “[The UWC] made it very clear in its email to me that I could only appeal if I thought there was some kind of procedural error or if I had new evidence,” the complainant said. “I don’t have any new evidence, and [during the process] they meticulously asked me about everything, so I don’t think that in its eyes the conclusion counts as procedural error.”

    Bit of a 180…

    • alex

      A 180 from what, specifically?

      • flopsy

        ““I don’t remember going up the stairs. I could’ve been crawling for all I know,” she said. “I think it’s ridiculous that when I say I can’t remember and he says this is what happened, his word automatically counts as a preponderance of evidence.”

        She also criticized the panel’s decision to focus exclusively on her level of incapacitation that night and ignore the context of her and her respondent’s previous relationship.”

        This passage from the original piece (http://yaledailynews.com/blog/2014/11/07/after-uwc-complaint-two-students-wait) coupled with a number of other quotes made it seem as if the complainant was gearing up for an appeal

        • alex

          Yes, I think she would want an appeal, if you could appeal on the basis that the panel focused on the wrong things, took his word over hers, etc… but you can’t. If you read the quote you initially posted, you will see that you can only appeal if there is new evidence (nothing suggests there is) or if there was a procedural error (nothing suggests there was).