John Doe v. P Trustees of Dartmouth College

2022 DNH 085

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John Doe

v. Civil No. 22-cv-018-LM Opinion No. 2022 DNH 085 P Trustees of Dartmouth College

ORDER In the summer of 2020, John Doe and Sam Smith—whom the court refers to

using pseudonyms—were roommates and fourth-year medical students at

Dartmouth’s Geisel School of Medicine. Following a disputed incident between the

two students in which Doe performed oral sex on Smith, both Doe and Smith filed

Title IX complaints against one another. Dartmouth found Doe responsible for

sexual assault and expelled him. Dartmouth found Smith not responsible. Doe

then filed suit in this court, alleging Title IX sex discrimination and breach of

contract.

The court previously denied Doe’s motion for a preliminary injunction that

would have allowed him to return to Dartmouth, finding that that Doe had not

shown he would suffer irreparable harm absent an injunction. Doc. no. 33.

Presently before the court is Dartmouth’s motion to dismiss. Doc no. 24. Doe

objects, and Dartmouth filed a reply. For the following reasons, the court grants

Dartmouth’s motion in part and denies it in part.

1 LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), the court must accept the

factual allegations in the complaint as true, construe reasonable inferences in the

plaintiff’s favor, and “determine whether the factual allegations in the plaintiff’s

complaint set forth a plausible claim upon which relief may be granted.” Foley v.

Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (internal quotation marks

omitted). A claim is facially plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In considering a Rule 12(b)(6) motion, the court may consider documents if

they are integral to or sufficiently referenced in the complaint or if the parties do

not dispute their authenticity without converting the motion into one for summary

judgment. Ironshore Specialty Ins. Co. v. United States, 871 F.3d 131, 135 (1st Cir.

2017). In this case, the parties agree that those documents include the relevant

Dartmouth written policies, as well as the record of the Title IX proceedings

involving Doe and Smith.

BACKGROUND

I. Alleged sexual assault and aftermath

On the evening of July 11, 2020, Doe and Smith ordered take-out sushi,

drank beer and cocktails, and watched a movie during which they both fell asleep

on the couch. In the early morning hours of July 12, a disputed incident occurred.

2 The parties agree that Doe performed oral sex on Smith, though they disagree about

who initiated the interaction and whether each man was capable of consenting to it.

Doe alleges that when he was asleep on the couch, he woke up to Smith

running his fingers through Doe’s hair. Doe opened his eyes to see Smith’s exposed,

erect penis. Smith lifted Doe’s head towards Smith’s penis, and Doe performed oral

sex on Smith. After an unknown amount of time, Doe became tired, stopped, and

fell back asleep on the couch. Doe was “blackout drunk” at the time, and thus

remembers the incident only in fragments. Doc. no. 1 ¶ 26.

Smith, on the other hand, asserts that he woke up to a sensation of

“caressing” around his penis. Id. ¶ 92. Smith stated that as he was opening his

eyes, he saw his underwear was pulled down and saw Doe kneeling between his legs

looking up at him. He then saw Doe perform oral sex on him. Smith then jumped

up and ran into another room.

The next thing that Doe remembers is Smith waking him up and telling him

that he needed to speak with him. Smith told Doe that he was uncomfortable with

what had just happened. Doe did not remember what had happened and was

unnerved when Smith explained it to him. During the conversation, Doe was still

feeling nauseous from the alcohol and vomited multiple times. Doe apologized to

Smith, explaining that he did not remember what happened. After Doe sobered up,

however, he realized that he had been taken advantage of by Smith, not the other

way around.

3 A couple days after the incident, Doe received a call from his mother, telling

him that his aunt was in the hospital. Feeling overwhelmed, Doe drove to a bridge

in Vermont, got on the ledge, and prepared to jump. In that moment, Doe realized

that harming himself would only hurt his family more. Doe then got down from the

ledge, called his father, and told him what had happened. Doe decided to take a

leave of absence from Dartmouth to both support his family and seek mental health

treatment. Doe did so and returned home to California.

II. Smith’s Title IX complaint

Nine months later—around April 2021—Smith asked Dartmouth’s Title IX

Coordinator whether Doe was returning to Dartmouth. The Title IX Coordinator

informed Smith that Doe would return in the spring of 2022, while Smith was still

enrolled. Doe alleges this information was incorrect, as he had informed the

Registrar that he intended to return in the fall of 2022, after Smith had graduated.

Because he was concerned that Doe would be in school with him, Smith filed

a Title IX complaint against Doe on April 28, 2021. Doe then received notice of the

complaint. The notice described the allegation that Doe “sexually assaulted [Smith]

by having oral intercourse with him while he was asleep.” Doc. no. 1 ¶ 47.

III. Doe’s Title IX complaint

A month and a half later, Doe filed his own Title IX complaint against Smith,

alleging that Smith had engaged in sexual misconduct by initiating oral intercourse

4 with Doe while Doe was incapacitated due to alcohol. The next day, the Title IX

Coordinator issued a Notice of Investigation to both men regarding Doe’s complaint.

IV. Dartmouth Policies & Procedures

At the time Smith and Doe made their complaints, Dartmouth had three

relevant written policies, as detailed below. The first two apply to allegations of

sexual assault by students. The third outlines the school’s records disclosure policy,

which is relevant to the Title IX Coordinator’s disclosure to Smith of when Doe

planned to return to school.

A. Sexual and Gender-Based Misconduct Policy (“Misconduct Policy”)

The Misconduct Policy outlines seven types of prohibited conduct, one of

which is sexual assault. It defines sexual assault as follows, separately listing

“sexual intercourse” and “sexual touching”:

Sexual assault is having or attempting to have sexual contact with another individual without consent. . . . Sexual contact includes:

1. sexual intercourse (anal, oral, or vaginal), including penetration with a body part (e.g., penis, finger, hand, or tongue) or an object, or requiring another to penetrate themselves with a body part or an object, however slight; or

2. sexual touching, including, but not limited to, intentional contact with the breasts, buttocks, groin, genitals, or other intimate part of an individual’s body.

Doc. no. 1-1 at 8.

5 Next, the policy defines consent, noting that consent cannot be obtained

through taking advantage of the incapacitation of another individual. As to

incapacitation, the policy states that “[i]ncapacitation is the inability, temporarily

or permanently, to give consent because an individual is mentally and/or physically

helpless, asleep, unconscious, or unaware that sexual activity is occurring.” Id. at

10. The incapacitation section specifically defines incapacitation due to alcohol or

other drugs as “a state beyond impairment or intoxication.” Id. at 11.

Incapacitation due to alcohol does not require that an individual be unconscious.

Rather, the policy states that in these instances, “evaluating incapacitation requires

an assessment of how the consumption of alcohol and/or drugs affects a person’s

decision-making ability; awareness of consequences; ability to make informed,

rational judgments; capacity to appreciate the nature and quality of the act; or level

of consciousness.” Id.

B. Process for Resolving Reports (“Process Policy”)

The Process Policy outlines Dartmouth’s process for resolving sexual

misconduct reports against students. The school has both an “informal” resolution

process and a “formal” one. The complainant may elect to have their complaint

follow the formal resolution process—as both Doe and Smith did here.

Under the formal process, the Title IX Office appoints a trained investigator.

The Process Policy specifically states that the investigator will conduct “a prompt,

thorough, fair and impartial investigation.” Doc. no. 1-2 at 10. The Title IX Office

6 has discretion to decide whether to appoint an internal investigator (i.e., a

Dartmouth employee), or to hire an external investigator (as it did here).

One aspect of the formal process is notice. The policy states that the “Title IX

Coordinator will notify the Complainant and the Respondent, in writing, of the

following information.” Id. It then lists nine types of information, including the

names of the complainant and respondent; the date, time, location of the reported

conduct; the name of the investigator; and information about the investigatory

process. Relevant to Doe’s claim, the notice must include “the reported policy

violation(s)”—i.e., the relevant violation from the Misconduct Policy. The Process

Policy then states that “[i]f the investigation reveals the existence of additional or

different potential policy violations . . . the Title IX Office will issue a supplemental

notice of investigation.” Id. at 11.

During an investigation, the investigator meets separately with the

complainant, respondent, and relevant witnesses as well as gathers any

documentary evidence. Once the fact-gathering portion of the investigation

concludes, the investigator issues an initial investigation report. That report is

shared with the complainant and respondent, and each has the opportunity to

respond. After reviewing the parties’ responses—and additional information as

needed—the investigator prepares a final report. In the final report, the

investigator determines whether the respondent violated the Misconduct Policy

using a preponderance of the evidence standard.

7 Next, after the final report is issued to the parties, a Title IX Hearing Panel

convenes to review the investigator’s finding. The panel consists of three

Dartmouth employees: the Director of Judicial Affairs, a dean, and a trained staff

member. These employees must be “fair and impartial decision-makers.” Id. at 16.

The panel looks at “whether (1) there was a material procedural error that

substantially impacted the outcome, or (2) the preponderance of the evidence

standard was not appropriately applied by the investigator.” Id. at 16. If the panel

upholds a finding of responsibility, the panel determines the appropriate sanction.

Sanctions can include anything from a warning to expulsion.

Finally, there is an internal appeals process. Either party has the right to

appeal a final determination on the grounds of “(1) Substantial procedural error or

bias that materially affected the outcome and/or sanction; or (2) New evidence not

reasonably available at the time of the hearing.” Id. at 22. For graduate students,

the Dean of their school considers the appeal.

The end of the Process Policy states that “Dartmouth will seek to complete its

investigation and disciplinary process, if any, in a prompt, fair, and impartial

manner following the issuance of the notice of the investigation.” Id. at 24. A few

lines down, it then reiterates that “Dartmouth’s overarching goal is that all

Complaints be investigated in a prompt, fair, and impartial manner.” Id.

8 C. Student Education Records Policy (“Records Policy”)

Finally, the Records Policy deals with disclosure of student information. The

Records Policy’s stated purpose is to define the guidelines for the use and release of

student education records in accordance with the U.S. Family Educational Rights

and Privacy Act (“FERPA”).

The Records Policy states Dartmouth will not disclose personally identifiable

information from a student’s records without that student’s consent. Doc. no. 17-4

at 4. “Directory information,” however, is exempted from this requirement and may

be released without the student’s consent. Id. Directory information includes,

among other things, a student’s “dates of attendance” and “enrollment status.” Id.

III. Dartmouth Investigation & Hearing

Turning to the investigation of Smith’s and Doe’s complaints, Dartmouth

appointed an outside investigator, attorney Michael J. Stackow. Stackow

interviewed Doe three times, Smith twice, and nine other witnesses. He also

collected and reviewed documentary evidence including text messages and emails.

About three months after Smith filed his complaint, Stackow issued an initial

report, to which the parties responded. Stackow then issued a final report on

August 31, 2021. Stackow’s general conclusions were that there was sufficient

evidence to find that Doe had sexually assaulted Smith but there was insufficient

evidence that Smith had sexually assaulted Doe.

9 Specifically, as to Smith’s allegations against Doe, Stackow found there was

“sufficient evidence to support a finding, by a preponderance of the evidence, that

[Doe] engaged in sexual contact with [Smith] at a time when [Smith] was unable to

consent because he was incapacitated due to being asleep.” Doc. no. 17-24 at 51

(emphasis omitted). Stackow described Smith’s account that he was asleep on the

couch and felt a sensation as if someone was “caressing” his penis, which he

described as feeling similar to a sexual dream. Id. at 46. Smith was then in the

“process of waking up” and shifted his body and saw that his underwear was pulled

down and his erect penis was exposed, with Doe kneeling in front of him. Id. After

Smith shifted his body, Doe took Smith’s penis with his left hand, put it in his

mouth, and began performing oral sex. Smith then ended the encounter by

standing up and walking to his bedroom. Overall, Stackow found Smith’s account

“credible in its level of detail and specificity.” Id. at 43.

As to Smith’s incapacitation, Stackow wrote that Smith “was asleep when the

sexual contact began.” Id. at 51. He summarized the Misconduct Policy, stating

that being asleep is a form of incapacitation, and that one cannot consent to sexual

contact when they are incapacitated. He stated that he found “by a preponderance

of the evidence standard that [Smith] was incapacitated and unable to consent to

the sexual contact.” Id.

Next, as to whether Smith otherwise consented, Stackow found insufficient

evidence that Smith made any “outward demonstration” indicating that he had

“freely chosen to engage in sexual contact.” (Under the policy, such a demonstration

10 could have constituted consent.) Doc. no. 1-1 at 9. Specifically, Stackow found that

there was insufficient evidence that Smith had run his hand through Doe’s hair—as

Doe contended. Moreover, Stackow determined that even if Smith had done so, that

gesture would not have constituted consent.

On the other hand, as to Doe’s allegations against Smith, Stackow found that

Smith had not sexually assaulted Doe. Specifically, Stackow found that Doe

demonstrated through his physical actions—specifically grabbing Smith’s penis and

placing it in his mouth—that Doe initiated the sexual contact. Though Doe did not

dispute that he had performed oral sex on Smith, he argued that he was unable to

consent to the act because he was incapacitated due to alcohol. To this, Stackow

found that Doe “may have subjectively experienced an alcohol-induced fragmentary

blackout,” but that Doe’s actions of initiating and performing the oral sex were

inconsistent with him being incapacitated. Doc. no. 17-24 at 51-52. As to Doe’s

credibility, Stackow found that Doe’s “inability to provide detail or specificity about

the event negatively affected the reliability of the other information he provided.”

Id. at 45. In sum, Stackow found that Doe was not unable to consent due to

incapacitation.

Before the Hearing Panel convened, Doe submitted a written response to

Stackow’s Final Report. Doe pointed out that the policy violation he was on notice

of was “having oral intercourse with [Smith] while he was asleep.” Doc. no. 17-34 at

1. But Doe contended that Stackow did not find that this precise form of

misconduct took place. Instead, Doe argued that Stackow found only “caressing”

11 had taken place while Smith was asleep, but that the oral sex took place after

Smith had woken up.

The panel rejected Doe’s argument that he received improper notice and

upheld Stackow’s findings. Further, the panel determined that Doe should be

expelled from school. Doe submitted an appeal to the Dean of the medical school,

which the Dean denied.

IV. Claims

Doe then filed suit in this court, alleging both sex discrimination and that

Dartmouth breached the student-college contract. Specifically, Doe 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: Breach of contract by failing to provide sufficient notice;

• Count III: Breach of contract by failing to appropriately apply the preponderance of the evidence standard by failing to consider the standard for incapacitation by alcohol;

• Count IV: Breach of contract by applying the preponderance of the evidence standard differently to Doe because he is male; and

• Count V: Breach of contract by revealing Doe’s intended date of return to school to Smith.

Doe requests both damages and injunctive relief.

DISCUSSION

Dartmouth moves to dismiss under Rule 12(b)(6), arguing that Doe fails to

state any claims upon which relief can be granted.

12 I. Count I: 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; Haidak v. Univ. of Mass.-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.” 20 U.S.C. § 1681(a). This provision is enforceable

through an implied private right of action. Doe v. Trs. of Bos. Coll., 892 F.3d 67, 90

(1st Cir. 2018) (Bos. Coll. I).

Doe alleges that Dartmouth violated Title IX by considering the evidence that

he was “blackout drunk” differently because he is male. Stackow found that Doe’s

inability to provide detail or specificity about the incident detracted from his

credibility. But Doe’s memory contained gaps because, as Stackow found, Doe

experienced an “alcohol-induced fragmentary blackout.” Doc. no. 17-24 at 51. Doe

alleges that if a female student stated that she had performed nonconsensual oral

sex while blackout drunk, the school would not find that her gaps in memory

undermined her credibility. Specifically, Doe alleges that “[u]pon information and

belief,” Dartmouth has credited intoxicated female students alleging sexual assault

against male students “when the female student could not remember specific details

of the alleged assault either at all or at least could not remember details of the

alleged events in a linear fashion in similar circumstances.” Doc. no. 1 ¶ 120.

13 Based on this argument, Doe advances theories of both “erroneous outcome”

and “selective enforcement.” Dartmouth argues that Doe cannot prevail on either

theory. The court examines each in turn.

A. Erroneous outcome

An erroneous outcome claim has two elements. A plaintiff must (1) “allege

particular facts sufficient to cast some articulable doubt on the accuracy of the

outcome of the disciplinary proceeding” and (2) show a causal connection between

gender bias and the outcome of the proceeding. Bos. Coll. I, 892 F.3d at 90 (citing

Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d. Cir. 1994)). To show the first element—

articulable doubt—a complaint can, for example, allege a “particular evidentiary

weakness” or “particular procedural flaws affecting the proof.” Yusuf, 35 F.3d at

715.

As to the second element—causation—the parties disagree about the

appropriate standard. Doe argues that the court should apply the causation

standard that the Second Circuit adopted in Yusuf, that is, that “gender bias was a

motivating factor behind the erroneous finding.” Id. The First Circuit has used the

“motivating factor” standard previously, though in those cases the parties agreed it

applied. See Bos. Coll. I, 892 F.3d at 90; Haidak, 933 F.3d at 74. For its part,

Dartmouth cites out-of-circuit precedent examining the statutory language of Title

IX and holding that Title IX cases require the higher standard of but-for cause. See

Sheppard v. Visitors of Va. St. Univ., 993 F.3d 230, 236-37 & n.7 (4th Cir. 2021)

14 (citing Bostok v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1739 (2020)) (comparing the

language of Title IX to that of Title VII and noting that the Supreme Court has held

that Title VII requires but-for cause). At this stage, the court need not resolve this

dispute because—as will become apparent—Doe states an erroneous outcome claim

under even the higher standard of but-for cause.

Looking to Doe’s case, Doe first argues that there was “articulable doubt”

because Dartmouth’s proceeding suffered from “particular procedural flaws

affecting the proof.” Yusuf, 35 F.3d at 715. Specifically, Doe alleges that

Dartmouth wrongly applied the preponderance of the evidence standard by finding

that Doe, an intoxicated student who “subjectively experienced an alcohol-induced

fragmentary blackout,” lacked credibility because he could remember some but not

all of the specific details of the event in a way that it would not have done if Doe

were female. Drawing inferences in Doe’s favor as the court must at this stage, the

court finds that Doe has plausibly alleged articulable doubt. Given that the

evidence was largely Smith’s word against Doe’s, Dartmouth’s discounting of Doe’s

credibility based on his intoxication raises articulable doubt as to the outcome of the

proceeding.

Turning to the second element, to show causation, a plaintiff needs more

than “superficial assertions of discrimination, but must establish that ‘particular

circumstances suggest that gender bias’” caused the outcome. Bos. Coll. I, 892 F.3d

at 91 (brackets omitted). For example, a plaintiff’s “allegations might include, inter

alia, statements by members of the disciplinary tribunal, statements by pertinent

15 university officials, or patterns of decision-making that also tend to show the

influence of gender.” Yusuf, 35 F.3d at 715. A plaintiff may rely on circumstantial

evidence alone to show causation in a Title IX claim. Bos. Coll. I, 892 F.3d at 92.

One difficulty in these types of cases is that the best evidence of a pattern of

decision-making is generally in the possession of the university—that is, data

showing the evidence and outcome in comparable prior cases. Doe v. Brown Univ.,

166 F. Supp. 3d 177, 187 (D.R.I. 2016). As such, where plaintiffs allege a pattern of

discrimination without data of the pattern, courts have grappled with whether their

allegations meet the pleading standard. Id. at 186 (noting disagreement about

whether “absent any female comparators at the pleading stage, . . . the allegation

that schools are concerned about appearing too lenient on male students accused of

sexual assault, and therefore those students are systematically found guilty

regardless of the evidence, [is] a factual allegation—which must be credited—or a

conclusory legal allegation—which does not get the presumption of truth”).

On the one hand, where plaintiffs allege only conclusory allegations of a

pattern of discrimination, courts dismiss the complaint. For example, in Doe v.

University of Massachusetts-Amherst, the plaintiff alleged that “‘male respondents

in sexual misconduct cases at [the University] are discriminated against solely on

the basis of sex’ and are ‘invariably found guilty, regardless of the evidence, or lack

thereof.’” 2015 WL 4306521, at *9. The court found that the statements were

“unsupported by even minimal data or credible anecdotal references” and thus were

conclusory allegations that did not meet the pleading standard. Id. Similarly, in

16 Doe v. Western New England University, the court dismissed plaintiff’s Title IX

claim where his complaint contained only “bare averments of motive” that the

university had “prejudice and bias against him” because he was male. 228 F. Supp.

3d 154, 188 (D. Mass. 2017). There, the court noted that plaintiff alleged no facts

asserting that a similarly-situated female student would have been treated

differently. Id. at 189; see also Doe v. Trs. of Dartmouth Coll., No. 21-cv-085-JD,

2021 WL 2857518 (D.N.H. July 8, 2021) (dismissing Title IX claim where plaintiff

alleged only speculative assertions that bias could have caused the outcome); Doe v.

Harvard Univ., 462 F. Supp. 3d 51, 62 (D. Mass. 2022) (dismissing Title IX claim

where complaint contained only a conclusory allegation of gender discrimination).

On the other hand, in Doe v. Brown University, the court declined to dismiss

plaintiff’s claim where plaintiff cited a handful of comparable cases. Specifically,

the plaintiff alleged that “[u]pon information and belief” the university’s handling of

his case “fit[] within a pattern of showing gender bias toward female students in

cases of sexual misconduct,” and named two prior cases as well as other instances

documented in student newspapers from specific dates. 166 F. Supp. 3d at 189.

There, in support of its motion to dismiss, the university cited a Sixth Circuit

opinion which found that “one case [filed six years earlier] by an individual who was

subjectively dissatisfied with a result does not constitute a ‘pattern of decision-

making.’” Id. at 190 (citing Mallory v. Ohio Univ., 76 Fed. Appx. 634, 640 (6th Cir.

2003)). But the court was unmoved by the university’s argument. Id. It noted that

the Sixth Circuit was deciding summary judgment, not a motion to dismiss. Id. It

17 found that although the isolated prior examples plaintiff cited would likely not be

enough to prevail at the summary judgment stage, they were—along with other

allegations—sufficient to survive a motion to dismiss. Id. The court held that

plaintiff’s allegations had “created a reasonable expectation that discovery may

yield evidence of the defendant’s allegedly tortious conduct.” Id. at 189.

Turning to Doe’s case, the court finds that as in Brown University, Doe has

made more than conclusory allegations of discrimination. Unlike in the cases where

courts dismissed the Title IX claim, Doe has asserted “credible anecdotal references”

about similarly-situated female students being treated differently. See Univ. of

Mass.-Amherst, 2015 WL 4306521, at *9. Specifically, he alleges that “[u]pon

information and belief,” Dartmouth has credited intoxicated female students

alleging sexual assault against male students “when the female student could not

remember specific details of the alleged assault either at all or at least could not

remember details of the alleged events in a linear fashion in similar circumstances.”

Doc. no. 1 ¶ 120. As in Brown University, this “upon information and belief” claim

is “a permissible way to indicate a factual connection that a plaintiff reasonably

believes is true but for which the plaintiff may need discovery to gather and confirm

its evidentiary basis.” 166 F. Supp. 3d at 190 (citation omitted). Moreover, viewing

the pattern of discrimination that Doe alleges in the light most favorable to Doe, it

is sufficient to allege that discrimination was the but-for cause of the school’s

finding that Doe lacked credibility and therefore the finding that he was responsible

for sexual misconduct. Whether evidence uncovered in discovery will substantiate

18 Doe’s claim of a pattern remains to be seen. But at this stage, viewing the facts in

the light most favorable to Doe, he has sufficiently stated a plausible claim for

relief.

Against this conclusion, Dartmouth argues that there can be no gender bias

in this case because both Smith and Doe are male. The court does not see why that

bars the possibility of gender discrimination in how the school assesses the

credibility of intoxicated students of various genders.

In sum, the court finds Doe has stated a claim of Title IX discrimination on

theory of erroneous outcome.

B. Selective enforcement

Doe also alleges Title IX discrimination on a selective enforcement theory.

For a selective enforcement claim, a plaintiff must allege that “the severity of the

penalty and/or the decision to initiate the proceeding was affected by the student’s

gender.” Haidak, 933 F.3d at 74 (citing Yusuf, 35 F.3d at 715). Specifically, a

plaintiff must show that “a similarly-situated member of the opposite sex was

treated more favorably than the plaintiff due to his or her gender.” Doe v. Rollins

Coll., 352 F. Supp. 3d 1205, 1211 (M.D. Fla. 2019); Haidak, 933 F.3d at 74. “Unlike

an erroneous outcome claim, a plaintiff can prevail on a selective enforcement claim

without disturbing the factual findings made in a disciplinary proceeding.” Doe v.

Amherst Coll., 238 F. Supp. 3d 195, 222 (D. Mass. 2017).

19 Doe has not shown that a selective enforcement theory is applicable under

the facts here. He does not allege that the decision to initiate the proceeding was

affected by his gender; indeed, Dartmouth proceeded with both Doe’s and Smith’s

complaints. And he does not allege facts that suggest a similarly-situated female

student would have received a lesser penalty under the facts. Indeed, Doe does not

appear to take issue with the severity of the penalty imposed in this case. The court

thus grants Dartmouth’s motion on the selective enforcement theory.

B. Counts II-V: Contract claims

Next, Doe alleges various breach-of-contract claims. To state a claim for

breach of contract under New Hampshire law, a plaintiff must allege (1) that a

valid, binding contract existed between the parties, and (2) that the defendant

breached the terms of that contract. Wilcox Indus. Corp. v. Hansen, 870 F. Supp.

2d 296, 311 (D.N.H. 2012) (citing 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.” Lassonde, 157 N.H. at

588. The proper interpretation of a contract is a question of law for the court.

Gamble v. Univ. Sys. of N.H., 136 N.H. 9, 13 (1992). The court determines the

meaning of the contract based on how a reasonable person would understand it.

See id.

Under New Hampshire law, the college-student relationship is contractual in

nature. Anderson v. Trs. of Dartmouth Coll., No. 19-cv-109-SM, 2020 WL 7129968,

20 at *10 (D.N.H. Dec. 4, 2020) (citing Gamble, 136 N.H. at 13). Courts have concluded

that student handbooks and other materials may set out the terms of a contract

between a university and its students. See, e.g., Nierenberg v. Trs. of Dartmouth

Coll., No. 2152016CV00259, 2017 WL 10259668, at *2 (N.H. Super. Ct. July 7,

2017). Here, the parties do not dispute that the Misconduct Policy, Process Policy,

and Records Policy set out the terms of valid contracts between Dartmouth and its

students. The question, then, is whether Dartmouth breached those contracts.

1. Count II: Notice

Doe’s first claim of contract violation is that Dartmouth did not fulfill its

obligation under the Process Policy to provide notice. In essence, Doe argues that

he received notice that he was being investigated for one violation, but then was

found responsible for another. Specifically, Doe received notice that he was being

investigated for performing oral sex on Smith while Smith was asleep, but then he

was found responsible for a different violation—sexual touching of Smith while

Smith was asleep. Under the Misconduct Policy, sexual touching and sexual

intercourse (which includes oral sex) are separate forms of misconduct. See doc. no.

1-1 at 7-8. Doe argues that he cannot be found responsible for sexual touching

when he did not receive notice of that potential violation.

In moving to dismiss, Dartmouth first argues that, contrary to Doe’s

contention, Doe was in fact found responsible for oral sex—consistent with the

notice he received. Stackow’s final investigative report found “that there is

21 sufficient evidence to support a finding, by a preponderance of the evidence, that

[Doe] engaged in sexual contact with [Smith] at a time while [Smith] was unable to

consent because he was incapacitated due to being asleep.” Doc. no. 17-24 at 51

(emphasis changed). The written report does not specify whether “sexual contact”

refers to oral sex or sexual touching.

Construing reasonable inferences in Doe’s favor, the court finds that the

violation for which Dartmouth found Doe responsible was sexual touching while

Smith was asleep. Specifically, Smith stated to Stackow that he felt “caressing”

while he was asleep, and oral sex only once he woke up. Doc. no. 17-24 at 9. He

described the caressing as a feeling like someone was “jerking [him] off,” id. at 11—

i.e., sexual touching. This evidence gives rise to a reasonable inference that

Dartmouth found Doe responsible for the act of sexual touching of Smith, not oral

sex, while Smith was asleep.

The next question, then, is whether Dartmouth violated its notice obligations.

The Process Policy spells out the notice Dartmouth must provide. It specifies that

that the school will provide notice of, among other things, “the reported policy

violation(s).” Doc. no. 1-2 at 10. It then goes on to state that “[i]f the investigation

reveals the existence of additional or different potential policy violations, including

a violation of an interim protective measure, the Title IX Office will issue a

supplemental notice of investigation.” Id. at 11. Drawing inferences in Doe’s favor,

because “sexual intercourse” and “sexual touching” are separately delineated in the

Misconduct Policy, they are separate “policy violations” for notice purposes.

22 Dartmouth argues that even if Stackow found that Doe only committed

sexual touching of Smith’s penis while Smith was asleep—and then performed oral

sex once Smith woke up—Doe’s notice argument fails. It argues that as a practical

matter, Doe was fully appraised of Smith’s allegations (that Doe touched Smith’s

penis while Smith was asleep, Smith woke up, Doe performed oral sex on Smith).

Dartmouth asserts that Doe has not alleged that if he had adequate notice, he

would have offered some other evidence or made some other defense that would

have changed the outcome. Essentially, Dartmouth argues that Doe has failed to

show prejudice. On his part, Doe states in a footnote in his objection to Dartmouth’s

motion to dismiss that “it would have changed the emphasis of Doe’s defense if he

understood the shifting nature of the claim.” Doc. no. 34 at 13 n.4.

Doe need not allege in his complaint how the purportedly inadequate notice

harmed him because, under New Hampshire law, a plaintiff need not allege

damages to sufficiently plead a breach of contract claim. Wilcox Indus., 870 F.

Supp. 2d at 311. In other words, a plaintiff must prove damages to ultimately

prevail on the contract claim, but in the complaint he need not allege damages

separately from the breach. Id. (“[I]t would appear in a tort claim, breach of duty

and injury are separate elements while, in a breach of contract claim, a breach is

presumed to cause injury.” [citation omitted]).

Nonetheless, Dartmouth argues that based on the language of the contract,

Doe had no reasonable expectation that he could overturn the finding in his case

based on a procedural error that did not result in harm or prejudice. Dartmouth

23 analogizes this case to Doe v. Stonehill Coll., Inc., CA. No. 20-10468-LTS, 2021 WL

706228, *13 (D. Mass. Feb. 23, 2021). There, the plaintiff alleged that the school

failed to share with the plaintiff a specific statement by the complainant—which,

under the school’s policy, it should have turned over. Id. Yet this evidence was

cumulative to other evidence the plaintiff had received and the plaintiff did not

allege how his lack of knowledge of the complainant’s statement prejudiced him. Id.

The court found that the school’s policy took into account the potential for minor,

non-prejudicial errors. Id. Specifically, the policy stated that appeals would be

considered based on “[f]ailure to follow the process or procedures outlined within

this Policy, which resulted in significant prejudice such that it impacted the

outcome. Minor deviations from designated procedures will not be the basis for

sustaining an appeal unless significant prejudice results.” Id. Thus, the court

found that “the reasonable expectation set by the Policy is that a student is entitled

to a disciplinary process free from errors that cause significant prejudice and affect

the outcome, not that a student is entitled to a process entirely free from minor

errors.” Id. Finding the error minor, the court held the allegation of a contract

violation insufficient and dismissed the contract claim. Id.

Like the policy in Stonehill College, Dartmouth’s policy contains a caveat that

students only have right to appeal the school’s determinations in certain

circumstances. Specifically, students only have a right to appeal on two “limited

grounds.” Doc. no. 1-2 at 22. One of those limited grounds is “[s]ubstantial

procedural error or bias that materially affected the outcome and/or sanction.” Id.

24 Dartmouth argues that allegedly improper notice does not qualify because it did not

materially affect the outcome.

Yet unlike the plaintiff in Stonehill College, Doe argues that he would have

changed his strategy if he had the proper notice. See doc. no. 34 at 13 n.4.

Construing reasonable inferences in Doe’s favor, the court agrees. Looking at Doe’s

response to Stackow’s final report, Doe’s first articulated concern relates to the

notice issue. Doc. no. 17-34 at 1. Given that this was Doe’s foremost concern with

Stackow’s final report, it is reasonable to infer at this stage that proper notice would

have affected Doe’s defense strategy, and thus could have “materially affected” the

outcome of the proceedings. Doc. no. 1-2 at 22. Thus, the court finds that Doe has

adequately stated a claim that Dartmouth violated the policy by failing to provide

proper notice. In sum, Dartmouth’s motion to dismiss Count II is denied.

2. Count III: Doe’s intoxication

In Count III, Doe alleges that Dartmouth failed to provide a fair, thorough,

and impartial investigation, as the Process Policy requires. Specifically, Doe alleges

that Dartmouth failed to properly apply the preponderance of the evidence standard

when considering evidence that Doe was impaired by alcohol to the point of

incapacitation. Doe points out that Stackow found that Doe may have been

“blacked out” due to alcohol during the incident, and yet also found that Doe

initiated and consented to the sexual contact between him and Smith. Doe argues

that these two findings are inconsistent, because under the Misconduct Policy a

25 student cannot consent if they are incapacitated due to alcohol. The Misconduct

Policy defines incapacitation as “a state beyond impairment or intoxication” and

specifies that that “[w]here alcohol or other drugs are involved, evaluating

incapacitation requires an assessment of how the consumption of alcohol and/or

drugs affect a person’s decision-making ability; awareness of consequences; ability

to make informed, rational judgments; capacity to appreciate the nature and quality

of the act; or level of consciousness.” Doc. no. 1-1 at 11. Based on the fact that an

incapacitated student cannot consent to sexual activity under the Misconduct

Policy, Doe argues that he also cannot be found culpable of sexual misconduct.

Doe analogizes his case to Amherst College, 238 F. Supp. 3d 195. There, the

court denied a motion to dismiss where the plaintiff argued that because the

hearing board found that he was “blacked out” drunk, there was insufficient

evidence under the terms of the school’s policy that he could be responsible for

sexual misconduct. Id. at 216. The hearing board found that the plaintiff’s account

of being “blacked out” was credible, but that “being intoxicated or impaired by drugs

or alcohol is never an excuse for sexual misconduct and does not excuse one from

the responsibility to obtain consent.” Id. at 213 (brackets omitted). Amherst’s

relevant policy was similar to Dartmouth’s, in that it defined incapacitation as “a

state beyond drunkenness or intoxication,” and stated that an incapacitated

individual is incapable of giving consent. Id. at 206. When he filed suit, the

plaintiff argued that the school’s policy did not address the problem of an

incapacitated individual failing to obtain consent from a non-incapacitated person.

26 Id. at 213. The court agreed, concluding that at the motion to dismiss stage, “a

student reading the Policy could reasonably expect that while ‘blacked out’ they

could be victims of sexual misconduct, but their own actions could not violate the

Policy.” Id. It thus denied the school’s motion to dismiss on that count. Id.

The court is not persuaded by the reasoning of Amherst College. It would be

unreasonable to give Dartmouth’s Misconduct Policy an interpretation that allows

students to be absolved from their own acts of sexual misconduct solely because

they were voluntarily incapacitated by alcohol. See Gamble, 136 N.H. at 13 (the

court determines the meaning of the contract “based on the meaning that would be

attached to it by reasonable persons”).

Doe also alleges that “Dartmouth breached its contract with Doe by

instituting and implementing an investigation and adjudication that did not

comport with basic elements of fundamental fairness, including procedural and

substantive fairness.” Doc no. 1 ¶ 134. While Massachusetts law recognizes a

theory of “basic fairness” in college disciplinary proceedings stemming from the

implied covenant of good faith and fair dealing, Sonoiki v. Harvard Univ., -- F.4th --,

2022 WL 2128619, at *15 (1st. Cir. 2022), the parties have not cited any case

showing that the New Hampshire Supreme Court has adopted this theory. There

may be a requirement of basic fairness stemming either from the implied covenant

of good faith and fair dealing under New Hampshire law, see Nierenberg, 2017 WL

10259668, at *4, or simply from the Process Policy’s assurances that the school will

investigate complaints in a “prompt, fair, and impartial manner.” Doc. no. 1-2 at 24

27 (emphasis added). Doe v. Trs. Of Bos. Coll., 942 F.3d 527, 534 n.6 (1st Cir. 2019)

(Bos. Coll. II) (under Massachusetts law, noting that when a school contractually

promises basic fairness, any implied duty of basic fairness becomes superfluous).

Regardless of the source of such a requirement, Doe fails to allege how any principle

of fairness would be violated by the school finding him responsible for sexual

misconduct even though he “may have subjectively experienced an alcohol-induced

fragmentary blackout.” Doc. no. 1 ¶ 104.

The court thus grants Dartmouth’s motion to dismiss as to Count III.

3. Count IV: Different treatment on account of gender

In Count IV, Doe alleges that Dartmouth failed to fulfill its contractual

obligation to provide a fair and impartial investigation because it discriminated

against him on the basis of gender. His allegation here largely mirrors his Title IX

sex discrimination claim: he alleges that, upon information and belief, Dartmouth

has credited the accounts of intoxicated female students despite their fragmentary

memories, but in his case Dartmouth found that his fragmentary memory detracted

from his credibility.

The Process Policy makes clear that Title IX investigations must be fair and

impartial. See, e.g., Doc. no. 1-2 at 7 (“Formal resolution begins with a thorough,

impartial, and reliable investigation.”); id. at 10 (“The Title IX Office will appoint

one or more trained investigators to conduct a prompt, thorough, fair and impartial

investigation.”); id. at 16 (“A Title IX Hearing Panel consists of fair and impartial

28 decision-makers.”); id. at 24 (“Dartmouth’s overarching goal is that all Complaints

be investigated in a prompt, fair, and impartial manner.”).

When reviewing whether a university hearing body has acted fairly and

impartially, the First Circuit has stated that “a presumption of impartiality favors

the administrators, and the burden is upon the party challenging the action to

produce evidence sufficient to rebut this presumption.” Bos. Coll. I, 892 F.3d at 84

(brackets omitted). To that end, allegations of impartiality cannot be based on

“speculation or inference.” Id.

Here, Doe has alleged that upon information and belief, Dartmouth has

treated similarly-situated female students differently. At this stage, Doe has

plausibly alleged a claim of gender bias for the same reasons as with his Title IX

gender discrimination claim. The presumption of impartiality does not change the

result at this stage where the court must draw reasonable inferences in Doe’s favor.

Given his “upon information and belief” comparators, he has alleged more than

“speculation or inference” of gender bias. See Bos. Coll. I, 892 F.3d at 84.

Dartmouth’s motion to dismiss Count IV is denied.

4. Count V: Disclosure of information

Doe’s final contract claim relates to the Title IX Coordinator’s disclosure to

Smith that Doe intended to return to school in spring 2022. Doe alleges both that

this information was incorrect (he did not plan to return to school until after Smith

29 had graduated) and that it could not be disclosed without his consent under the

Records Policy that Dartmouth adopted in accordance with FERPA.

Dartmouth moves to dismiss this claim, arguing that Doe failed to allege that

the disclosure violated the Records Policy. Further, Dartmouth argues that even if

Dartmouth did violate the policy, Doe’s expulsion was not a foreseeable consequence

of the breach.

FERPA does not create a private right of action, but if a school violates the

records policy that it adopts in accordance with FERPA, that violation can support a

breach of contract claim. See Frank v. Univ. of Toledo, 621 F. Supp. 2d 475, 485

(N.D. Ohio 2007). Dartmouth’s Records Policy states that in general, it will not

disclose personally identifiable information from a student’s education records

without the student’s consent. “Directory information” is exempted from this rule,

and the school may release directory information without the student’s consent.

Doc. no. 17-4 at 4. Directory information includes, among other things, “dates of

attendance” and “enrollment status.” Id.

The issue is whether these terms include not only current and prior

enrollment and dates of attendance, but also a student’s future intended dates.

FERPA’s regulations define “dates of attendance” as “the period of time during

which a student attends or attended an educational agency or institution.” 34

C.F.R. § 99.3. Dartmouth’s Records Policy states that one of its purposes is to

define the guidelines related to use of student records, in accordance with FERPA.

Similarly, the U.S. Department of Education Federal Student Aid

30 Office provides in its glossary, “[e]nrollment status is reported by the school you

attended, and indicates whether you are, or were, full-time, three-quarter time,

half-time, less than half-time, withdrawn, graduated, etc.” Glossary, Federal

Student Aid, https://studentaid.gov/helpcenter/answers/topic/glossary/articles (last

visited June 1, 2022) (emphasis added). Under both of these definitions, then,

“dates of attendance” and “enrollment status” refer to present and past dates—not

future ones.

At this stage of litigation, the court finds that Doe has persuasively argued

that “dates of attendance” and “enrollment status” comport with the FERPA

regulations and financial aid website definitions, respectively. That is, they refer

only to past or present dates and status, not to intended future ones. Under this

interpretation, Doe has plausibly alleged that Dartmouth violated the policy by

disclosing when Doe intended to return.

Next, Dartmouth notes that FERPA only protects information in a student’s

“education records.” Dartmouth argues that if what the coordinator disclosed was

incorrect, it did not come from Doe’s education records. Yet Dartmouth neither

gives support for this assertion, nor states where else the information would have

come from. At this stage, Doe has plausibly alleged that that the information about

when he intended to return came from his education records.

Finally, Dartmouth argues that even if the Title IX’s Coordinator’s disclosure

did violate the Records Policy, that violation cannot support a breach of contract

claim because Doe can only recover for harm that is a foreseeable consequence of

31 the breach. See Indep. Mech. Contractors, Inc. v. Gordon T. Burke & Sons, Inc., 138

N.H. 110, 113 (1993). The court finds that Doe has plausibly alleged that his

expulsion was a foreseeable consequence of the breach. It was reasonably

foreseeable that informing Smith that Doe would return to campus while Smith was

still enrolled might lead Smith to file a complaint against Doe so that the two would

not have to be on campus together. Given the nature of the case, it was also

reasonably foreseeable that Smith’s filing of a complaint would lead to Doe’s

expulsion. In sum, the court denies Dartmouth’s motion to dismiss Count V.

CONCLUSION

For the foregoing reasons, the court denies in part and grants in part

Dartmouth’s motion to dismiss (doc. no. 23). As to Count I (Title IX) the motion is

denied with respect to the erroneous outcome theory but granted with respect to the

selective enforcement theory. As to the other counts, the motion is denied as to

Count II (Contract – notice), Count IV (Contract – sex discrimination), and Count V

(Contract – disclosure of information). The motion is granted as to Count II

(Contract – Doe’s intoxication).

SO ORDERED.

__________________________ Landya McCafferty United States District Judge July 12, 2022 cc: Counsel of Record