A January 12 lawsuit alleges that Dartmouth College expelled a male student based on a biased investigation that ignored both parties’ wishes, overwhelming evidence, college policy, and federal law.

Lawyers for “John Doe,” an anonymous student at the New Hampshire Ivy League, are seeking a trial by jury in the United States District Court District of New Hampshire. The lawsuit calls on Dartmouth to reinstate Doe as a student, expunge his record, and award him compensatory damages.

"Why could we not expel a student based on an allegation?"

The Encounters

According to the lawsuit, Doe first met “Sally Smith,” an anonymous female Dartmouth student, over Dartmouth’s 2016 Sophomore Summer, and in late July, the pair “had a consensual sexual interaction.” During that episode, Smith told Doe that “she was interested in sadomasochistic (‘S&M’) sexual practices” and commenced “slapping him across the face.”

On August 4, the two independently attended an evening party at Doe’s fraternity. Doe drank “approximately 36 ounces of a drink that was predominantly hard alcohol” within the span of one hour, and his last memory was throwing up into a trash can. He did not remember seeing Smith before he blacked out.

When Doe woke up in his bed on August 5, he found Smith beside him and they “engaged in consensual sexual intercourse.” Smith then told Doe that “things had gotten a bit ‘rough’” during their “sexual encounter the previous night,” which Doe did not remember.

The lawsuit argues that due to his conspicuous consumption off alcohol, Doe had “not been capable of consenting to sexual activity” with Smith.

Following the conversation, Smith left the room and Doe fell asleep. When he awoke, he “noticed that he had bruises and scratches on his arms and back, that his nipple was bleeding, and that he was experiencing extreme pain in his genitalia.”

Smith sent Doe a text later that day with pictures of her own bruises, stating that the previous night had been “fun.” When they talked that afternoon, she revealed that they had participated in “rough foreplay,” which included “slapping each other” and falling off the bed multiple times. She also admitted that Doe had asked her to leave multiple times during the encounter.

Doe was disturbed by these revelations, while Smith “indicated she wanted to have sexual intercourse” with Doe, who turned her down. Smith then made a comment about “a friend of hers who had been falsely accused of sexual assault,” and said that if Doe agreed to sex, it would “help his ‘case.’”

Doe held his ground and attempted to avoid her thereafter.

The Investigation

In October, Smith spoke to Heather Lindkvist, then Dartmouth’s former Title IX Coordinator, and “filed a complaint of physical assault against John Doe.” Smith made explicitly clear that the sexual encounter had been consensual (ignoring Doe’s intoxication), and that her complaint was limited to the bruises she received from the sadomasochistic activities.

Lindkvist ignored this distinction and launched an investigation targeting Doe under Dartmouth’s procedures for handling sexual assault instead of the college’s Committee on Standards, the body responsible for handling offenses of a non-sexual nature. The college chose Nancy Sheahan, a former prosecutor and attorney specializing in government defense, to investigate Doe for “sexual misconduct” and “actions that could harm another student.”

Doe then filed a complaint against Smith on November 2 for “assaulting him” and for “engaging in sexual acts with him…when he could not consent because he was incapacitated by alcohol.”

Dartmouth instructed Sheahan to include these allegations in her investigation.

Both Doe and Smith submitted photographic evidence of their injuries “showing bruises and in John’s case, scratches.” Smith submitted text messages with Doe and with her friends, which confirmed that she knew Doe was “super blacked” [severely drunk] at the time.

Smith told Sheahan that she had “engaged in sexual acts” with Doe and “instigated a wrestling match” with him. She stated that she was “on top of John Doe during their entire encounter” and that Doe’s participation was due to his state of intoxication. Despite these admissions, she insisted that “this is not a nonconsensual sex case.”

Her text messages to a friend the morning after the encounter confirmed that she was “so so in to” the “rough play” they had engaged in, and that she believed they had been “both fully consensual.”

After receiving Sheahan’s final report in early January 2017, the pair reached an agreement that they would both drop their charges and Doe “would voluntarily stay off campus until she graduated.” When Doe’s lawyer shared this development with the college in February, however, Dartmouth refused to end the investigation.

Dartmouth notified both students on March 3 that it had found Doe responsible for “putting another student at risk of physical harm,” but not for sexual misconduct, and had not found Smith responsible for any violations.

The Sentencing

Dartmouth’s Interim Director of Judicial Affairs, Katharine Strong, initially tried to convene a sexual misconduct disciplinary panel, contrary to the college’s procedure. After a reminder from Doe, she agreed to convene a Committee on Standards (COS) Misconduct Panel and asked Doe to submit a sanctioning statement. Both Doe and Smith submitted statements reminding the panel that they had come to a mutual settlement.

Strong “stated that she would be creating a 1.5-page summary of the investigator’s 531-page investigation report” that would constitute the only evidence available to the panel. The abridged report did not contain the evidence showing that Smith had initiated the physical altercation and had told her friends that she enjoyed it.

On March 29, Doe received notification from the college that the COS panel had imposed a sanction of “immediate separation” on him. Doe appealed both the investigator’s findings and the sanction on April 5, citing bias and procedural irregularities. Dean of the College Rebecca Biron heard the appeal on May 2 and upheld both decisions.

The Aftermath

The lawsuit claims that the procedure violated Dartmouth’s policy on COS hearings, which states that accused students are “entitled to request witnesses, to present information and argument, and to hear and question the information presented during a hearing.”

While the policy also states that students are “expected to attend their own COS hearing,” the lawsuit alleges that Strong did not permit Doe or Smith to attend the hearing or present any type of statement to the members of the panel. Doe’s lawyers argue that this and other violations of Dartmouth’s own procedures constitute a breach of contract, and that the lack of a “preponderance of evidence” is a breach of federal policy.

They also make the case that individuals involved in the process, particularly Biron, harbored “biased views against men accused of sexual assault,” citing an article Biron wrote in 2014, which equated a Dartmouth student found not guilty of rape to convicted murderer Oscar Pistorius.

Samantha Harris, the Vice President of Policy Research at the Foundation for Individual Rights in Education (FIRE), told Campus Reform that FIRE keeps track of lawsuits arising from university mishandling of sexual assault cases. FIRE currently knows of 210 such cases, many of which contain breach of contract allegations stemming from procedural discrepancies with written policy.

Harris said that these cases have met with mixed outcomes, particularly when they allege sex discrimination, which is harder to prove than breach of contract. She pointed to a 2015 case at Washington and Lee University, in which the court found that a student plaintiff had plausibly alleged gender bias based on a school official's article arguing that even consensual sex constitutes sexual assault if the woman later comes to regret it due to internal reservations.

FIRE, which rates colleges and universities on a number of metrics relating to individual rights, assigned Dartmouth a grade of “F” for its lack of due process in cases of sexual misconduct.

The lawsuit points to a heated climate concerning issues of “violence against women and sexual misconduct,” arguing that the administration let this pressure overpower the facts of the case. A 2014 speech by Amanda Childress, the head of Dartmouth’s center for combating sexual violence, lends credence to this claim.

“Why could we not expel a student based on an allegation?” she asked a conference on sexual assault. “It seems to me that we value fair and equitable processes more than we value the safety of our students. And higher education is not a right. Safety is a right. Higher education is a privilege.”

Dartmouth College, the Dartmouth Title IX office, and Rebecca Biron all declined to comment. Nancy Sheahan and Doe’s lawyers did not respond to requests for comment.

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