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Jim Kenyon: Will sex assault suspension lawsuit lead to Dartmouth’s day in court?

Valley News Columnist
Published: 7/17/2021 9:55:07 PM
Modified: 7/17/2021 9:55:07 PM

Hoping to put a quick end to a suspended student’s federal lawsuit alleging racial discrimination during a sexual assault investigation, Dartmouth gave it the ol’ college try.

It brought in a so-called Biglaw firm from Boston to argue that the case should be thrown out for lack of merit.

U.S. District Court Judge Joseph DiClerico’s July 8 order dashed Dartmouth’s hopes.

DiClerico is allowing the case to move forward, ruling that the unnamed Black student, who was on Dartmouth’s football team, had “satisfied his burden of pleading a plausible claim as to intentional race discrimination.”

The judge dismissed other parts of the lawsuit, including the claim that “gender bias was a motivating factor in Dartmouth’s decision” to suspend him.

Still, Dartmouth is in the uncomfortable position of having to defend its actions in a student disciplinary proceeding that until now it could cloak in secrecy.

The lawsuit was filed in federal court in Concord after Dartmouth suspended the student for two years last September for violating the college’s sexual misconduct policy.

To better understand how federal cases such as this can unfold, I contacted John Greabe, a University of New Hampshire law school professor who teaches constitutional law and civil procedure. Before we talked, Greabe was good enough to read up on some of the case’s court filings online.

The judge’s order “starts the process of (both sides) generating evidence for trial,” Greabe said. Both sides will gather evidence through depositions and documents to bolster their arguments.

The male student was accused of sexually assaulting a woman in her dorm room during Winter Carnival Weekend in February 2020. (Citing privacy concerns, the suit doesn’t name either of the students involved.)

According to court documents:

The two students became friends after they arrived at Dartmouth in the fall of 2018. On Feb 9, 2020, at about 1:30 a.m., the woman, whose race hasn’t been disclosed, called the male student, who was asleep in his room. After attending a campus party, the woman called him for “help returning to her dorm room because she could not remember where it was, presumably as a result of intoxication.”

What happened during their physical encounter in her room and whether it was consensual is disputed.

A few days later, the woman reported the incident to Hanover police and Dartmouth’s Title IX office, which handles alleged sexual misconduct complaints under a 1972 civil rights law. She decided not to pursue a criminal complaint, but cooperated in the college’s internal investigation. The male student cooperated as well.

In his lawsuit, the student points out that the key players in the investigation — from the outside female attorney hired to look into the matter to the dean who denied his appeal — are all white.

The three Dartmouth administrators who were originally appointed to act as the jury in the case were all white too.

Before the hearing to decide his fate — and possibly his college football career as well as his chances of getting into graduate school — the accused student questioned the panel’s lack of racial diversity.

“We do not have anyone who I am aware identifies as African American available to serve on this hearing panel,” Kristi Clemens, Dartmouth’s Title IX coordinator, responded to him via email.

“It is a striking fact,” Greabe said.

The judge’s order gives life to the suit’s claim that the case is representative of what’s been going on for a while in Dartmouth’s confidential investigations.

Since 2005, the suit alleges, Dartmouth has suspended or expelled eight other Black football players following Title IX proceedings. During that same time, no Title IX investigations were initiated against any white football players.

Lawyers for Locke Lord, the Boston firm hired by the college, argued the accused student’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.”

But apparently DiClerico, the judge in the case, was intrigued enough to want to hear more. So far, the student has “alleged sufficient facts to raise a plausible claim of intentional race discrimination,” he wrote.

After both sides finish gathering evidence, Greabe said, Dartmouth will likely ask the judge to grant it summary judgment. In legal parlance that means Dartmouth will argue the evidence is so one-sided in its favor that the case shouldn’t even go to trial.

If the judge denies that request, chances of reaching an out-of-court settlement increase, Greabe said.

For no reason other than that trials can be expensive. Law firms of Locke Lord’s stature are known to charge $1,000 or more per hour for its top attorneys.

On the flip side, lawyers for plaintiffs in federal civil rights cases often work on a contingency basis. They only get paid if there’s an out-of-court settlement or a favorable jury verdict. (The lawyers’ share can vary, but it’s usually one-third or more.)

I emailed Locke Lord and Shaheen & Gordon, the Concord-based firm representing the suspended student, but didn’t hear back from either last week.

Dartmouth’s incentive to settle is straightforward: It avoids a public airing of its internal investigations, which may or may not treat all students equally.

In talking with other attorneys who handle civil rights lawsuits but aren’t involved in this case, I came to understand why the Black student’s lawyers might also want to avoid a trial.

There’s no getting around that the suit case stems from a sexual assault allegation. Some jurors might not be willing to look beyond that.

And in a predominantly white state like New Hampshire how would a Black plaintiff fare any better before a jury than he did with an all-white Dartmouth tribunal?

Jim Kenyon can be reached at jkenyon@vnews.com.




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