Doe v. Trs. of Dartmouth Coll.

2021 DNH 107

John Doe v. Trustees of Dartmouth College

Civil No. 21-cv-085-JD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

July 8, 2021

ORDER

John Doe brings this suit, related to his suspension from Dartmouth College for sexual misconduct, alleging that Dartmouth violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.; violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.; breached the student-college contract; breached the covenant of good faith and fair dealing; engaged in racial discrimination that violated his entitlement to equal rights under the law, 42 U.S.C. § 1981; and injured him through negligent acts or omissions. Dartmouth moves to dismiss the complaint. Doe objects.

Standard of Review

In considering a motion to dismiss, the court asks whether the plaintiffs have made allegations that are sufficient to render their entitlement to relief plausible. Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). The court accepts all well-pleaded facts as true and draws all reasonable inferences in the non-moving party's favor. Hamann v. Carpenter, 937 F.3d 86, 88 (1st Cir. 2019). The court, however, disregards conclusory allegations that simply parrot the applicable legal standard. Manning, 725 F.3d at 43. To determine whether a complaint survives a motion to dismiss, the court should use its "judicial experience and common sense," but should also avoid disregarding a factual allegation merely because actual proof of the alleged facts is improbable. Id.

Background

A. Alleged Sexual Assault

In the early morning of February 9, 2020, Sally Smith, a student at Dartmouth was walking back to her dorm after having consumed a large amount of alcohol.¹ At approximately 1:41 A.M., Smith called Doe, who was also a student at Dartmouth, and asked him for help returning to her dorm room because she could not remember where it was, presumably as a result of intoxication. Smith contacted Doe, specifically, because Doe did not drink.²Doe, who had been sleeping, agreed to meet Smith. Doe put on a coat and shoes. He did not put a shirt on underneath his coat.

Doe met with Smith. He did not know where Smith lived. Smith led Doe to her dorm. In Smith's dorm room, Smith and Doe talked for a while about the events of the night that led to her calling Doe for assistance. Smith and Doe "began kissing and progress[ed] to further sexual contact." Doc. 1 ¶ 41. Doe asked Smith twice if she wanted to have sexual intercourse, and Smith responded affirmatively both times. Doe and Smith attempted intercourse. No penetration occurred. Doe left and went back to sleep in his room. A few days later, Smith reported to Dartmouth's Title IX office and the Hanover Police Department that Doe had sexually assaulted her.

B. Dartmouth Policies & Procedures

When Smith made her report about the sexual assault, Dartmouth had two written policies applicable to allegations of sexual assault by students: the "Sexual and Gender-Based Misconduct Policy" ("SMP") and the "Process for Resolving Reports Against Students" ("PRP").³

1. Sexual and Gender-Based Misconduct Policy

The SMP applies to certain conduct that is related to Dartmouth either by location, context, or effect. Specifically, the SMP governs conduct that "occurs on Dartmouth premises or premises leased by or otherwise under the control of Dartmouth"; that occurs "in the context of a Dartmouth employment, education, or research program or activity, including but not limited to Dartmouth-sponsored, Dartmouth-funded or otherwise Dartmouth supported study off campus and/or abroad, research, internship, mentorship, summer session, conferences, meetings, social events, or other affiliated programs or premises, either online or in person"; or that "regardless of location or context, has continuing adverse effects occurring on Dartmouth premises or in any Dartmouth employment, education, or research program or activity." Doc. 1-1 at 3, SMP Art. III.

The SMP prohibits, among other misconduct, "sexual assault," which it defines as "having or attempting to have sexual contact with another individual without consent." Id. at 8, SMP Art. VII.B. It defines "sexual contact" to include "sexual touching" as well as sexual intercourse. "Consent" is defined as "an affirmative or willing agreement to engage in specific forms of sexual contact with another person" and"consent cannot be obtained . . . [b]y taking advantage of the incapacitation of another individual." Id.

2. Process for Resolving Reports

When prohibited conduct is reported to Dartmouth's Title IX office, the PRP sets out a multi-step resolution process. The first step requires the Title IX coordinator or deputy coordinator to determine whether the Title IX office has "jurisdiction", that is, whether Title IX's scope covers the reported conduct. If the Title IX office's "jurisdiction" exists, the Title IX office proceeds to an "Initial Assessment," which consists of an investigation and making a determination as to whether the SMP applies to the report. In addition, the Title IX office determines whether informal or formal resolution as well as remedial protective measures are appropriate.

If the Title IX office refers the report for formal resolution, as it did with Smith's report, the Title IX office "will appoint one or more trained investigators to conduct a prompt, thorough, fair and impartial investigation." Doc. 1-2 at 10, PRP at Art. VII.A.2. "The role of the investigator will be to gather information through interviews of the Complainant, Respondent, and witnesses and synthesize the information in a report that will be provided to the Complainant, Respondent, and the Title IX Hearing Panel (which is constituted as describedbelow). The investigation report will include all relevant information provided by either party that will be used in the determination of responsibility or sanction." Id.

Under the policy, "[a]ny investigator used by Dartmouth will receive annual training on the issues related to sexual and gender-based harassment, sexual assault, dating violence, domestic violence, and stalking, and on how to conduct an investigation that is fair and impartial, provides parties with notice and a meaningful opportunity to be heard, and protects the safety of complainants while promoting accountability." Id. at 11. An investigator "will be impartial and free from conflict of interest or bias." Id.

At the beginning of an investigation, the Title IX coordinator "will" notify the Complainant and Respondent about the nature of the reported conduct and the reported policy violations. "If the investigation reveals the existence of additional or different potential policy violations . . . the Title IX Office will issue a supplemental notice of investigation." Id.

After fact-gathering concludes, the investigator is directed to produce an initial investigation report, which contains a summary of all relevant information gathered both supporting and detracting from the accounts of the Complainant, Respondent, or other witnesses. Both the Complainant andRespondent are then provided an opportunity to provide feedback to the investigator, and the investigator then produces a final investigative report, which includes a finding as to whether there is, by a preponderance of the evidence,⁴ sufficient information to support responsibility for a violation of the SMP.

After the final investigative report is completed, a "Title IX Hearing Panel" convenes to review the finding of responsibility for procedural error that substantially affected the outcome and for proper application of the evidentiary standard. The Hearing Panel is typically comprised of Dartmouth's Director of the Office of Community Standards and Accountability, the Dean responsible for Student Affairs, and a trained staff member who holds an appointment outside of both the Complainant's and Respondent's declared majors or areas of concentration or school. Either party can challenge the composition of the Hearing Panel to the Title IX coordinator on the ground of actual bias or conflict of interest. After a determination of responsibility is made, the Hearing Panel determines the appropriate sanction, which can includesuspension. A final determination can be appealed based on substantial procedural error or bias that materially affected the outcome and/or sanction as well as new evidence not reasonably available at the time of the hearing.

C. Dartmouth Investigation & Hearing

On February 26, 2020, Kristi Clemens, who was Dartmouth's Title IX coordinator, e-mailed a notice to Doe informing him that Smith had alleged that he sexually assaulted her on February 9, 2020. Doe was also notified that an attorney, who was white and female, at a New England law firm (the "Investigator")⁵ had been retained to investigate Smith's report.

As part of the investigation process, Doe provided a written account to the Investigator about his relationship with Smith and their interactions on February 8 and 9, as well as his response to Smith's allegations. In March 2020, Dartmouth told Doe that it would conduct the investigation remotely as a result of the COVID-19 pandemic. See doc. 1 ¶¶ 126-127 (alleging that Dartmouth in March 2020 announced that it would conduct the remainder of the Spring 2020 term online and that Dartmouth told Doe it would continue the investigation remotely). Doe requested that the interview occur in person, and Doe offered toparticipate in an in-person interview that complied with Center for Disease Control guidance relative to the COVID-19 pandemic (i.e., socially distanced and masked). Doe was concerned that "the nature of video conferencing makes it difficult for one to look the other in the eye when answering questions" and that the situation would negatively affect the Investigator's ability to make credibility determinations. Id. ¶ 128. Clemens denied Doe's request for an in-person interview.

The...