Doe v. Trustees of Dartmouth College

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Doe
v. Civil No. 21-cv-085-JD
Opinion No. 2021 DNH 107
Trustees of Dartmouth College
O R D E R
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
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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.2
1 John Doe and Sally Smith are pseudonyms, used to protect
the privacy of those persons.
2 The alleged sexual assault occurred during Dartmouth
College’s “Winter Carnival,” an event at which many Dartmouth
students “drank alcohol heavily.” Doc. 1 ¶ 37.
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Doe, 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
3 Doe attached both policies to his complaint. Doc. 1-1, 1-
2.
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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
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“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 described
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below). 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 and
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Respondent 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 include
4 Specifically, the PRP states the following: “In all stages
of the process, Dartmouth will apply the preponderance of the
evidence standard (i.e., more likely than not) when determining
whether Dartmouth policy has been violated.” Doc. 1-2 at 8, PRP
Art. IV.
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suspension. 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 to
5 The identity of the Investigator is not stated in Doe’s
complaint.
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participate 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 Investigator interviewed Smith, Doe, and other
witnesses, and she gathered other evidence from witnesses and
Dartmouth through video conferencing. The Investigator
interviewed Smith three times: on March 27, May 28, and June 24,
2020. She interviewed Doe twice: on April 9 and June 5, 2020.
The Investigator interviewed seventeen other witnesses between
April 2 and June 18, 2020.
The Investigator issued a preliminary report on July 31,
2020, which recited the gathered evidence in accordance with the
PRP but did not make any conclusion about responsibility. Doe
and Smith submitted responses to the report.
On August 24, 2020, the Investigator issued her final
report.6 Applying the preponderance of the evidence standard,
6 Dartmouth filed, under seal, the complete final report
with its motion to dismiss. Doc. 16. In the complaint, Doe
discusses the final report and its language at length. Doe does
not challenge the authenticity of the final report submitted by
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she found that Smith was not “incapacitated” at the time of the
alleged sexual assault. The Investigator, however, concluded,
by a preponderance of the evidence, that Doe had sexual
intercourse with Smith without her consent, in violation of the
SMP. Doc. 1 ¶ 95. As to this conclusion, Doe alleges that the
Investigator referred to a standard (“valid consent”) that is
neither defined nor contained within the SMP.7
Dartmouth. Because the final report is central to Doe’s claims
and because its authenticity is not disputed, it “effectively
merges into the pleadings” and the court “can review it in
deciding a motion to dismiss under Rule 12(b)(6).” Beddall v.
State Street Bank and Tr. Co., 137 F.3d 12, 16-17 (1st Cir.
1998).
7 In the final report, the Investigator describes the
standard for “consent” as applied in her investigation as
follows:
“Consent” is an affirmative and willing agreement to
engage in specific forms of sexual contact with
another person. Consent requires an outward
demonstration, through mutually understandable words
or actions, indicating that an individual has freely
chosen to engage in sexual contact. Consent cannot be
obtained through:
1. the use of coercion or force; or
2. by taking advantage of the incapacitation of
another individual.
Silence, passivity, or the absence of resistance does
not imply consent. It is important not to make
assumptions; if confusion or ambiguity arises during a
sexual interaction, it is essential that each
participant stop and clarify the other’s willingness
to continue. Consent can be withdrawn at any time.
When consent is withdrawn and outwardly communicated
as such, sexual activity must cease. Prior consent
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After the Investigator completed the final report, a
Hearing Panel was convened in accordance with the PRP.
Initially, the Hearing Panel was comprised of Kate Burke,
Katharine Strong, and Ted Stratton. Doe, however, objected to
the composition of the panel on the basis of race. He argued
that the all-white panel would be unable to fairly consider the
allegations against him. Doe requested that an African-American
individual be added to the Hearing Panel.
In response to Doe’s objection, Clemens appointed Jedrek
Dineros to the Hearing Panel. Clemens told Doe that, to her
knowledge, Dartmouth did not have any African-American
does not imply current or future consent; even in the
context of an ongoing relationship, consent must be
sought and freely given for each instance of sexual
contact. An essential element of consent is that it be
freely given. Freely given consent might not be
present, or may not even be possible, in relationships
of a sexual or intimate nature between individuals
where one individual has power, supervision or
authority over another. In evaluating whether consent
was given, consideration will be given to the totality
of the facts and circumstances, including but not
limited to the extent to which a Complainant
affirmatively uses words or actions indicating a
willingness to engage in sexual contact, free from
intimidation, fear, or coercion; whether a reasonable
person in the Respondent’s position would have
understood such person’s words and acts as an
expression of consent; and whether there are any
circumstances, known or reasonably apparent to the
Respondent, demonstrating incapacitation or lack of
consent.
Doc. 16 at 4.
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individuals available to serve on the Panel and that Dineros
identified as “BIPOC”.8
On September 1, 2020, Doe submitted a statement to the
Hearing Panel in response to the Final Report. Smith submitted
a statement on September 8, 2020. On September 24, 2020, the
Hearing Panel affirmed the Investigator’s findings and
conclusions. The Hearing Panel suspended Doe from Dartmouth for
eight terms (two academic years). Doe requested further review
of the Hearing Panel’s decision on October 1, 2020. The Dean of
Dartmouth College upheld the panel’s findings and the suspension
on October 12.
D. Chat Group & Alleged Retaliation
During his time at Dartmouth, Doe was a member of a chat
group “comprised of approximately 300 African American Dartmouth
Students and Alumni.” Doc. 1 ¶ 63. On June 5, 2020, several
months after the alleged sexual assault and in the midst of the
investigation, the topic of sexual misconduct arose in the chat
group. When the topic of sexual misconduct arose, one of
Smith’s friends, identified in the complaint as Witness #2,
removed Doe from the group. The removal was public, and one of
8 BIPOC stands for “Black, Indigenous, and/or Person of
Color.” Doc. 1 ¶ 139. Clemens did not know how Jedrek self-
identified in terms of race or ethnicity more specifically.
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Doe’s classmates asked Doe why Witness #2 removed him from the
group. Doe reported Witness #2 to the Investigator and Clemens,
alleging that Witness #2 had violated the SMP by retaliating
against him for defending himself in the investigation of
Smith’s report. Clemens found that the Title IX Office did not
have jurisdiction because the chat group was not Dartmouth-
sponsored or Dartmouth-controlled and the allegations were
beyond the scope of the SMP.
E. Claims
Doe raises several claims of race and gender-based
discrimination in his complaint. He also alleges that Dartmouth
breached the student-college contract and acted negligently.
Specifically, he makes the following claims:
• Count I: violation of Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681, et seq.;
• Count II: violation of Title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d, et seq.;
• Count III: breach of contract;
• Count V:9 breach of the covenant of good faith and fair
dealing;
• Count VI: violation of Doe’s entitlement to equal rights
under the law, 42 U.S.C. § 1981; and
• Count VII: negligence
Doe requests injunctive relief as well as damages.
9 The complaint does not contain a Count IV.
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Discussion
Dartmouth moves to dismiss the complaint, arguing that Doe
fails to plead factual matter that raises his claim of unlawful
discrimination above a speculative level. Doe objects.
Dartmouth filed a reply, and Doe filed a surreply.
A. Count I (violation of Title IX)
Title IX prohibits colleges that receive federal funding
from discriminating on the basis of sex or gender. See 20
U.S.C. § 1681(a); Haidak v. Univ. of Massachusetts-Amherst, 933
F.3d 56, 74 (1st Cir. 2019). Specifically, “[n]o person in the
United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance.” § 1681(a). In Count I, Doe
advances three distinct theories about how Dartmouth violated
Title IX, namely, “erroneous outcome,” “selective enforcement,”
and “deliberate indifference” theories. See Haidak, 933 F.3d at
73-74 (noting “erroneous outcome” and “selective enforcement” as
distinct theories for attacking a college disciplinary
proceeding under Title IX); Doe v. Amherst Coll., 238 F. Supp.
3d 195, 223 (D. Mass. 2017) (discussing deliberate indifference
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theory for Title IX violation). Dartmouth argues that Doe
cannot prevail on any theory.
1. Erroneous Outcome
To succeed on an erroneous outcome theory, a plaintiff must
demonstrate “articulable doubt” about the outcome of the
challenged disciplinary proceeding and allege facts “indicating
that ‘gender bias was a motivating factor.’” Doe v. Trustees of
Boston Coll., 892 F.3d 67, 89-90 (1st Cir. 2018). In its motion
to dismiss, Dartmouth argues that Doe has not made any non-
conclusory allegations that gender bias was a motivating factor
in Dartmouth’s finding that he violated Dartmouth’s sexual
misconduct policy and suspension of him from the college. Doe
responds that he was presumed guilty of sexual assault because
he is a male football player and that the Investigator and
Hearing Panel ignored, because of his gender, substantial
evidence that he presented supporting his innocence.
Even assuming that there is “articulable doubt” about the
outcome of the disciplinary proceeding, Doe’s complaint lacks
sufficient non-conclusory allegations to plausibly claim that
gender bias was a motivating factor in Dartmouth’s decision.
See Doe v. Harvard Univ., 462 F. Supp. 3d 51, 62 (D. Mass. 2020)
(dismissing erroneous outcome Title IX claim that satisfactorily
alleged procedural flaws and an erroneous outcome but failed to
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connect those errors with non-conclusory allegations of gender
bias). Doe relies on the Investigator’s own gender (female) and
her background to support an inference of gender bias. For
example, Doe alleges that she participated in a panel entitled
“Off Field Athlete Conduct Issues: Sexual & Domestic Violence,”
which, Doe claims, establishes “a connection between being a
male athlete and sexual violence.” Doc. 1 ¶ 135(H). Being an
athlete is not a protected status under Title IX, and the
Investigator’s participation in a panel about sexual violence by
student athletes does not lead to a plausible inference of bias
against males.
Doe also alleges that the Investigator’s characterization
of the facts evidences a gender bias against males. For
example, Doe alleges that the Investigator’s reference in her
report that he was not wearing a shirt under his jacket when he
met Smith the night of the incident supports an inference of
gender bias, because she ignores that many men sleep without a
shirt. That Doe was not wearing a shirt was undisputed,
however, and the Investigator’s brief discussion of that fact
was, in context, consistent with its relative importance to the
issues. Specifically, the Investigator referenced Doe’s jacket
when he met with Smith as a background detail within the larger
context of recounting Smith’s testimony and point of view, in
which Smith – not the Investigator – made note that Doe was not
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wearing a shirt. Doc. 16 ¶ 44 (discussing Smith’s version of
events and stating that Smith said that she wanted to make
“clear” to Doe that she was not going to have sex with him after
she noticed that Doe was shirtless and after he inquired about
her roommate’s whereabouts); id. at p.42 (“In explaining the
context of these statements, [Smith] said that she told [Doe]
this when she noticed he had taken off his jacket and was not
wearing a shirt and after he checked [the roommate’s] room and
saw that she was not there because [Smith] did not ‘want him to
get the wrong idea’ about why she had reached out to him that
night.”). Therefore, the discussion in the final report about
Doe’s state of dress the night of the incident does not
plausibly suggest a gender bias.
Doe also alleges that Dartmouth was under external and
internal pressure to address sexual violence and that Dartmouth
administrators subscribed to a belief that individuals who
report misconduct should be believed versus the accused. Doe
interprets these alleged beliefs as suggesting a bias against
men. Doe, however, conflates facts that suggest a possible bias
against individuals accused of sexual misconduct, who may be of
any gender, with facts that suggest a plausible bias against
men.10 See Doe v. Harvard Univ., 462 F. Supp. 3d at 62
10 Dartmouth’s written policies do not differentiate among
genders.
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(rejecting argument that external and internal pressure on
schools to address sexual violence issues creates a gender bias
against men). Similarly, Dartmouth’s various activities aimed
at raising awareness about sexual violence against women on
college campuses do not lead to a plausible inference of gender
bias against men. In sum, Doe’s allegations of gender bias
leading to an erroneous outcome in his disciplinary hearing are
speculative and therefore fail to meet the threshold to state a
claim under Rule 12(b)(6). See Doe v. Western New England
Univ., 228 F. Supp. 3d 154, 188 (D. Mass. 2017) (adopting report
and recommendation that rejected Title IX claim that relied on
Title IX officer’s “words” and “demeanor” to establish gender
discrimination); Dismukes v. Brandeis Univ., 2021 WL 1518828, at
*4 (D. Mass. Apr. 16, 2021) (“Dismukes’s entire assertion of
gender bias arises from the fact that he is a man, his accuser
is a woman, and the individuals who conducted the informal
investigation were women.”); Doe v. Harvard Univ., 462 F. Supp.
3d at 62.
2. Selective Enforcement
Doe alleges that Dartmouth selectively enforces its sexual
misconduct policies against men, as it referred Smith’s report
for investigation but refused to refer his report against
Witness #2 and/or Smith for retaliation. Dartmouth moves for
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dismissal on the ground that Doe’s report and Smith’s report
were dissimilar. Dartmouth asserts that Doe’s report did not
involve any Dartmouth program or activity that would implicate
the SMP while Smith’s report did. Additionally, Dartmouth
contends that the circumstances of Doe’s report for retaliation
were not similar to Smith’s report of sexual assault.
Doe responds that identical reports of misconduct are not a
necessary element for two individuals reporting misconduct to be
similarly situated and that Dartmouth’s refusal to exercise
jurisdiction for purposes of his report was incorrect. Doe also
notes that the standard on which Dartmouth/Clemens declined to
exercise jurisdiction (the activity was not part of Dartmouth-
sponsored or -controlled activity) is more narrow than the
standard in the SMP, which includes activity that has continuing
adverse effects on Dartmouth premises or in a Dartmouth
educational activity.
To succeed on a Title IX claim based on a selective
enforcement theory, a student must demonstrate that the school’s
decision to initiate a disciplinary proceeding, or the severity
of the imposed sanction, was affected by the student’s gender.
Haidak, 933 F.3d at 74. Notwithstanding the dispute about
whether Clemens correctly determined that the SMP did not cover
Doe’s report that Witness #2/Smith retaliated against him for
defending himself against Smith’s report that he sexually
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assaulted her, Doe has not alleged sufficient facts to state a
claim for a Title IX violation on the basis of selective
enforcement. Specifically, Doe has not alleged facts from which
a plausible inference can be made that Clemens’s finding that
the SMP did not apply to Doe’s report was affected by Doe’s
gender.
Doe compares the treatment of his report to the treatment
of Smith’s report, but this comparison is not sufficient to
raise a plausible inference of gender bias. Smith’s report
about Doe was dissimilar to Doe’s report, as there was no
question about the SMP’s applicability to the conduct reported
by Smith (sexual assault occurring in an on-campus dorm). In
contrast, the applicability of the SMP to the conduct reported
by Doe was questionable, considering that the conduct involved a
chat group that was not directly affiliated with Dartmouth.
Considering the facts that have been alleged about the two
reports, Smith’s report about Doe is not a proper comparator
from which gender or sex-based discrimination can be reasonably
inferred. Further, Doe has not alleged other facts that would
be sufficient for a jury to reasonably infer that his gender was
a factor in Dartmouth’s decision not to pursue his report of
retaliation. Accordingly, Doe has not stated a claim for relief
based on his selective enforcement theory.
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3. Deliberate Indifference
Dartmouth contends that Doe’s theory that Dartmouth
violated Title IX by acting with deliberate indifference to
sexual harassment fails because he does not allege that
Dartmouth was deliberately indifferent to conduct that amounts
to sexual harassment. Doe responds that, as a result of his
removal from the chat group, he was subjected to rumors about
sexual misconduct, which constitute sexual harassment under
Title IX.
“Title IX provides a remedy for students, regardless of
their sex or gender, who can establish a school's response to
their allegations of sexual harassment, including claims of
sexual violence, demonstrates deliberate indifference.” Doe v.
Amherst Coll., 238 F. Supp. 3d at 223. A deliberate
indifference Title IX claim requires a demonstration of sex-
based harassment that occurred in the college’s programs or
activities, a deprivation of educational opportunities, and that
the defendant was in a position to address the harassment but
had a clearly unreasonable response. Doe v. Brown Univ., 896
F.3d 127, 130 (1st Cir. 2018); Doe v. Pawtucket Sch. Dep’t, 969
F.3d 1, 9 (1st Cir. 2020).
Doe has not alleged facts sufficient to sustain a claim for
deliberate indifference to sexual harassment. He has not
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alleged facts showing that he was subjected to sexual harassment
or that Dartmouth acted clearly unreasonably by concluding that
Witness #2’s removal of Doe from the chat group was not within
the scope of the SMP. While Doe alleges that he was subjected
to rumors because he was removed from the chat group, Doe does
not allege facts that show Dartmouth acted with deliberate
indifference to any report he made about those rumors being so
severe or pervasive that they constituted sexual harassment.
Rather, the allegations taken in Doe’s favor show that, at most,
Dartmouth misconstrued whether its sexual misconduct policy
covered the retaliation alleged by Doe.
For the foregoing reasons, Doe has failed to state a claim
for relief as to Count I, violation of Title IX, based on any of
his three theories. Accordingly, Count I is dismissed.
B. Race Discrimination - Count II (Violation of Title VI of
Civil Rights Act, 42 U.S.C. § 2000d) and Count VI (Equal
Rights, 42 U.S.C. § 1981)
Dartmouth argues that Doe’s claims under Title VI of the
Civil Rights Act and § 1981 fail because he does not allege
facts showing that it engaged in intentional, race-based
discrimination against him. Dartmouth argues that, without
supporting facts, Doe’s allegations that the Investigator and
Hearing Panel were motivated by implicit bias are not sufficient
to support an inference of intentional discrimination. Rather,
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Dartmouth contends, Doe only speculates that racial bias played
a part in the outcome of the disciplinary proceedings based on
tenuous inferences drawn from unsupported assumptions about the
Investigator’s experiences and the language she used in the
Final Report. Dartmouth also contends that the Hearing Panel’s
lack of an African-American or Black participant does not
support, on its own, a claim of racial bias and that Doe’s
allegations that Dartmouth’s Title IX office treated reports of
sexual misconduct involving white and Black football players
differently are insufficient to sustain his claim.11
Doe objects, arguing that there are several circumstantial
facts that, he contends, give rise to a plausible inference of
racial discrimination. He argues that, for the purposes of
alleging a plausible claim for relief, his claim of differential
treatment of Black and white football players by the Title IX
11 At times in its motion to dismiss, which was brought
under Rule 12(b)(6), Dartmouth suggests that Doe must provide or
point to “evidence” to support his claims. See doc. 14 at 9
(“Bias on the part of the Panel cannot be presumed but must be
demonstrated by evidence in the record . . . . Doe cites no
such evidence.”). Rule 12(b)(6), however, does not require Doe
to identify or provide specific evidentiary material in support
of his claims. See Hamann, 937 F.3d at 88. Rather, the factual
allegations (as opposed to legal conclusions) made in the
complaint, taken as true, must be sufficient to support a
plausible inference that intentional racial discrimination
occurred in this case. See id.
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office is sufficient to raise a claim of intentional racial
discrimination.
Under § 198112 and Title VI of the Civil Rights Act,13 to
defeat a motion to dismiss under Rule 12(b)(6), a plaintiff must
allege facts from which plausible inferences can be made that
(1) the defendant discriminated against the plaintiff on the
basis of race; (2) the discrimination was intentional; and (3)
the discrimination was a substantial or motivating factor for
the defendant’s actions. Goodman v. Bowdoin Coll., 380 F.3d 33,
34 (1st Cir. 2004).
Intentional racial discrimination can be inferred from
disparate or differential treatment of races. See Hill v.
Airborne Freight Corp., 212 F. Supp. 2d 59, 65 (E.D.N.Y. 2002)
(sustaining jury’s verdict finding intentional racial
12 Section 1981 states the following: “All persons within
the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other.” 42 U.S.C.
§ 1981.
13 Title VI of the Civil Rights Act states the following:
“No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.”
42 U.S.C. § 2000d.
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discrimination in violation of § 1981 in part on the basis of
evidence of differential treatment); Lopez v. Webster Central
Sch. Dist., 682 F. Supp. 2d 274, 283 (W.D.N.Y. 2010) (examining
claim of illegal racial discrimination evidenced by differential
treatment under Title VI). Regardless of the type of
circumstantial evidence used to support the claim, the pleading
must support a connection “between the university’s actions and
racially discriminatory motivations.” Doe v. Harvard Univ., 462
F. Supp. 3d at 67.
Doe has alleged minimally sufficient facts to raise
plausible claims of unlawful intentional racial discrimination
under § 1981 and Title VI of the Civil Rights Act.
Specifically, Doe alleges that, since 2005, “at least 9 Black
male football players were suspended or expelled following Title
IX proceedings whereas no Title IX complaints against white
football players were referred by the Title IX office for formal
investigation during that same time period.” Doc. 1 ¶ 157. In
addition, “in at least one case from 2005 to the present, a
white student athlete was allowed [to] delay the imposition of a
suspension as a result of a Title IX investigation so that he
could complete his athletic season . . . .” Id. Doe alleges
that Black football players, including himself, were not offered
the same opportunity to defer a suspension.
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Dartmouth contends that Doe’s allegations of differential
treatment are insufficiently specific or comparatively similar
to Doe’s case to support an inference that intentional racial
discrimination occurred. Although Doe does not plead specifics
about the sexual misconduct reports about white football players
that were not referred by the Title IX office, at this stage it
is not necessary to do so because the circumstances of the
alleged comparators are facially similar to those of Doe’s case
(i.e., reports of sexual misconduct made to the Title IX office
against football players or other student athletes) and the
specifics that Dartmouth asks Doe to plead (i.e., the specific
nature of the charges of sexual misconduct made against white
football players) are likely within Dartmouth’s control and not
Doe’s control. See Doe v. Harvard Univ., 462 F. Supp. 3d at 67
(“Plaintiff has provided a comparator group – Caucasian students
accused of similar sexual misconduct – coupled with the
allegation that the comparator group was treated differently due
to their race. At this stage of litigation, Plaintiff does not
need to do more.”); see also Menard v. CSX Transp., Inc., 698
F.3d 40, 44-45 (1st Cir. 2012) (explaining that district courts
may provide “some latitude” in pleading a plausible claim for
relief through allegations made on “information and belief” when
the allegations are more than merely speculative and some of the
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27
information needed to prove the claim is in the control of the
defendant).14
Dartmouth also contends that Doe’s allegations of
differential treatment do not support a claim of intentional
racial discrimination because Doe “fails to account for the
possibility that no students made or ultimately decided to
pursue any Title IX complaints against white football players”
during the fifteen year period between 2005 and Doe’s complaint.
Doc. 14 at 11. In its reply, Dartmouth goes further and
contends that Doe “alleg[e]s that complaints of sexual
misconduct have been made only against Black football players,
not white football players.” Doc. 22 at 6. Doe, however, does
not allege in his complaint that complaints about sexual
misconduct have only been made against Black football players,
nor does Dartmouth’s speculation about possible or even
plausible explanations for the differential treatment based on
facts outside the complaint aid its argument in support of
dismissal under Rule 12(b)(6). See Carpenter, 937 F.3d at 92
(explaining that the court accepts the plausible non-conclusory
14 Doe’s allegations about how Dartmouth treated allegations
of sexual misconduct about Black and white athletes differently
were pleaded “upon information and belief.” In this case, the
court accepts the allegations that are pleaded upon information
and belief because they are narrowly-tailored, non-conclusory,
and the truth of the allegations can likely be determined by
information that is within Dartmouth’s control. See Menard, 698
F.3d at 44-45.
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allegations of the plaintiff and cannot grant a motion to
dismiss based on competing alternative inferences posited by the
defendant). Rather, in his complaint, Doe alleged that no
reports about white football players were referred from the
Title IX office for formal investigation, while nine reports
about Black football players were referred, and those referrals
ultimately resulted in suspension or expulsion of the Black
students. It is reasonable to infer, for purposes of the
current motion, that at least some reports about white football
players were made to the Title IX office but not referred.
Of course, discovery may reveal additional facts beyond
those alleged in the complaint that show that any reports
accusing white football players of sexual misconduct that were
not referred by the Title IX office are insufficiently similar
to Doe’s case to sustain his claim of intentional racial
discrimination or that the differential treatment occurred for a
race-neutral reason. Nonetheless, at this stage Doe has alleged
sufficient facts to raise a plausible claim of intentional
racial discrimination as to Counts II and VI. See Doe v.
Harvard Univ., 462 F. Supp. 3d at 67.15
15 Because Doe has satisfied his burden of pleading a
plausible claim as to intentional race discrimination in Counts
II and VI through his allegations of differential treatment, the
court does not address Dartmouth’s arguments that the other
circumstantial facts that Doe alleged in support of his racial
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29
C. Count III (Breach of Contract)
As to Doe’s breach of contract claim, Dartmouth argues,
referring generally to its arguments as to gender and race
discrimination, that it did not breach the contract terms in its
sexual misconduct policy.16 Dartmouth’s vague reliance on its
arguments about Doe’s gender and race discrimination claims is
not sufficient to demonstrate that his breach of contract claims
should be dismissed. Unlike the discrimination claims, Doe’s
breach of contract claim does not require him to allege facts
from which intentional race or gender discrimination can be
inferred. See Lassonde v. Stanton, 157 N.H. 582, 588 (2008)
(“‘A breach of contract occurs when there is a failure without
legal excuse[] to perform any promise which forms the whole or
part of a contract.’”) (quoting Poland v. Twomey, 156 N.H. 412,
415 (2007)). Beyond its reference to its arguments about Doe’s
race and gender discrimination claims, Dartmouth did not offer
any further explanation about why Doe’s breach of contract claim
should be dismissed. See Coons v. Industrial Knife Co., 620
discrimination claims are insufficient to support the claims on
their own.
16 In response to the substantive arguments made against
dismissal by Doe, Dartmouth elaborates on its argument in its
reply brief. This elaboration, however, does not cure
Dartmouth’s initial failure to develop any argument sufficient
to dismiss Doe’s breach of contract claim.
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30
F.3d 38, 44 (1st Cir. 2010) (explaining that “judges are not
obligated to do a party's work for him” and that district
court’s are “free to disregard” arguments that are not developed
in briefs); Timmins Software Corp., v. EMC Corp., 502 F. Supp.
3d 595, 606 (D. Mass. 2020) (explaining that superficial
arguments may be deemed waived) (citing United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). Dartmouth’s motion to
dismiss Doe’s breach of contract claim, Count III, is denied.
D. Count V (Breach of Implied Covenant of Good Faith and
Fair Dealing)
As with its argument about Doe’s breach of contract claim,
Dartmouth asserts that it did not breach any implied covenant of
good faith and fair dealing and refers generally to its
arguments that it did not engage in race or gender
discrimination. Dartmouth did not develop an argument in favor
of dismissal sufficient for the court to address. See Coons,
620 F.3d at 44. The motion to dismiss is denied as to Count V.
E. Count VII (Negligence)
As to Count VII, negligence, Dartmouth argues that Doe
cannot succeed on a theory that Dartmouth negligently failed to
perform its contract and cannot claim damages for economic
losses. Dartmouth contends that Doe has not alleged that it
breached any duty it owes to him independent of its contract
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31
with him. Doe expresses doubt about Dartmouth’s contention that
it did not breach any duties to Doe outside of its contract, and
he argues that Dartmouth has an independent common law duty not
to discriminate or to provide certain procedural protections in
university disciplinary proceedings. In support, Doe cites a
case from the Eighth Circuit and a case from the Eastern
District of Pennsylvania, contending that these courts have held
that universities can be liable for negligent administration of
disciplinary proceedings.
To state a claim for relief for negligence, the plaintiff
must plead facts showing that (1) the defendant owed the
plaintiff a duty; (2) the defendant breached that duty; and (3)
the breach proximately caused the plaintiff’s injuries. Coan v.
New Hampshire Dept. of Envir. Servs., 161 N.H. 1, 7 (2010).
Under New Hampshire law, a negligence claim cannot be based on a
negligent failure to perform contractual promises. Lawton v.
Great Sw. Fire Ins. Co., 118 N.H. 607, 609, 615 (1978) (“In this
jurisdiction, however, a breach of contract standing alone does
not give rise to a tort action.”); see also Broadus v. Infor,
Inc., 2019 WL 1992953 (D.N.H. May 6, 2019).
To the extent Doe brings his claim based on breaches of the
promises Dartmouth made to him in their contract, Doe’s claim
fails. See Lawton, 118 N.H. at 609, 615. Doe has also failed
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32
to allege that Dartmouth owed him any separate duties beyond the
promises made in their contractual relationship.
Neither case cited by Doe is applicable to his claim, which
is brought under New Hampshire law. Doe v. University of St.
Thomas is distinguishable because it applied Minnesota law,
which unambiguously established that a common law duty of care
existed as to a private school’s expulsion of students. 972
F.3d 1014, 1017 (8th Cir. 2020). In the other case cited by
Doe, Jackson v. Trustees of the University of Pennsylvania, 2019
WL 309729, at *9 (E.D. Pa. Jan. 23, 2019), there is no analysis
of the pertinent issue, which is whether colleges owe an
independent duty to students accused of disciplinary infractions
to handle disciplinary proceedings with reasonable care. Doe
did not cite any case from New Hampshire courts in support of
his negligence claim, let alone a case that indicates New
Hampshire courts would recognize the independent tort duties
that Doe argues Dartmouth breached, which do not appear to be
universally recognized. Cf. Doe v. Amherst Coll., 238 F. Supp.
3d at 228 (applying Massachusetts law and dismissing claim for
failure to adhere to university policies because plaintiff did
not show that defendant had a duty in tort to adhere to
policies); Cioffi v. Gilbert Enters., Inc., 769 F.3d 90, 94 (1st
Cir. 2014) (“[I]t is not [the court’s] place to do a party’s
homework for her.”); Coons, 620 F.3d at 44 (noting that adequate
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33
development is particularly necessary where the argument “raises
complexities that defy an easy answer”). Accordingly, Doe has
not shown that he has stated a plausible claim of relief for
negligence. Therefore, Count VII is dismissed.
Conclusion
For the foregoing reasons, Dartmouth’s motion to dismiss
(doc. no. 13) is granted in part and denied in part. The motion
is granted as to Counts I (sex discrimination in violation of
Title IX) and VII (negligence). The motion is denied as to
Counts II and VI (race discrimination in violation of Title VI
and § 1981), Count III (breach of contract), and Count V (breach
of implied covenant of good faith and fair dealing).17
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 8, 2021
cc: Counsel of Record.
17 As noted above, Doe’s complaint does not contain a Count
IV.
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