Former student opposes motion to dismiss lawsuit

by Christina Jedra / Beacon Staff • October 30, 2014

The lawyer representing a former student suing Emerson for mishandling her rape case has filed an opposition to the school’s motion to dismiss her lawsuit, according to court documents submitted Oct. 24. 

In the opposition, Jillian Doherty’s lawyer, David P. Angueira of Swartz & Swartz, counters several arguments made on behalf of Emerson and four administrators. In their motion to dismiss, filed Sept. 29, the administrators deny the violation of any laws and allege the defendants provided a “timely and reasonable” response to Doherty’s report of rape. 

In this preliminary stage, before a trial has even been scheduled, the lawyers for Doherty and Emerson are debating whether a legal case exists, and have not yet asked the court to determine whether the defendants are guilty.

Doherty’s opposition largely takes issue with Emerson’s attempt to dismiss accusations that defendants violated Title IX, a federal law that prohibits gender discrimination within institutions that receive federal funding. 

The opposition states the defendants “breached a duty owed to the Plaintiff by not taking necessary precautions to avoid sexual assaults on campus, and they negligently and intentionally caused her emotional and psychological harm with their negligent and outrageous mishandling of the Plaintiff’s Title IX investigation.” 

According to the lawsuit, filed Aug. 8, Doherty was raped by a male student in his dorm room in April 2012. Her complaint alleges the defendants did not take proper precautions to prevent sexual assaults on campus and failed to respond adequately after she reported  the incident in March 2013. In addition to allegations of Title IX violations, Doherty’s initial lawsuit complaint includes claims of negligence, negligent and intentional infliction of emotional distress, and violation of the Jeanne Clery Act, which requires colleges to report campus crime information. 

Emerson denied legal liability for all of these claims in the motion to dismiss. The opposition to the motion counters Emerson’s defense in regards to Title IX and the negligence claims. It does not defend the Clery Act count; Emerson’s lawyers had argued in their motion that the statute could only be enforced by the Department of Education, not through civil lawsuits.

Doherty and Angueira did not respond to requests for comment. 

Emerson is legally entitled to file a reply to this opposition, but in an email to the Beacon, Christine Hughes, vice president and general counsel for Emerson, said whether the college will do so is “still under consideration.” 

The opposition counters Emerson’s denial of the three claims of negligence alleged by Doherty and states there is sufficient evidence for a jury determination. The document contests Emerson’s claim that “there is no duty for a school to protect others from the criminal or wrongful acts of third persons,” a portion of the college’s motion to dismiss that garnered criticism on social media. 

“It is indisputable that colleges have a duty to protect their students from criminal acts of third parties,” the opposition states. “The Plaintiff reasonably relied and expected that the college would protect her and educate her against unwanted sexual conduct, and she reasonably relied upon the individual Defendants to help her after she reported her rape.”

The opposition criticizes Emerson for allegedly neglecting to educate its students about consent and rape, and failing to implement and enforce its own stated policies.

In her email, Hughes clarified Emerson’s legal stance on protecting students from criminal acts.

“Emerson agrees that we have a legal and moral responsibility to take reasonable steps to protect students against foreseeable third-party criminal acts,” she wrote. “We take that duty seriously and do our best to ensure our campus is safe and secure for the entire Emerson community.” 

The opposition restated the validity of Doherty’s claims of negligent and intentional infliction of emotional distress:

“The Complaint alleges sufficient facts to show that the Defendants’ responses were insensitive, outrageous and humiliating to the degree that no reasonable person who had been assaulted should be expected to endure.”

Regarding Doherty’s accusation that Emerson violated Title IX, the new filing reiterates previous arguments that Emerson was “deliberately indifferent”—a critical legal standard—and “unreasonable” in its treatment of her case. It realleges several flaws in Emerson’s investigation, including appointing Michael Arno, who it calls an “incompetent, untrained, and inexperienced” Title IX investigator that led a “superficial and hasty” inquiry. 

The opposition further rejects Emerson’s claim of providing a “timely and reasonable” response, describing Doherty’s hearing as “biased.” The response repeats facts reported in the initial complaint: the hearing lasted one hour, during which time Doherty did not have a lawyer, and there were no witnesses. The suit states that Doherty’s alleged assailant was allowed to change his testimony and provide a letter of character from another Emerson student, while Doherty was not given this opportunity and was allegedly penalized for providing inconsistent details about her lack of consent. 

The opposition restates claims from the initial complaint, asserting that Emerson also violated Title IX by failing to provide prompt notice of the hearing’s decision. 

“After the hearing, Arno informed the Plaintiff the school would have a decision with [sic] seven days. However, it took two months for the Plaintiff to learn that the school found [the alleged rapist] ‘not responsible for the rape,’” the opposition states. “Emerson should have known that the stress and anxiety of waiting for such an important decision would cause Doherty to suffer more.” 

The opposition states that the evidence regarding Title IX is worthy of review by the court.

“In the present case, the facts as alleged clearly show that Emerson intentionally decided to not appropriately redress the misconduct the Plaintiff reported. Therefore at a minimum, the question of deliberate indifference should be left for the jury.”

In Emerson’s motion to dismiss, lawyers representing the defendants denied legal liability for “failing to prevent sexual misconduct of which school officials ‘should have known,’” adding that the defendants did not have knowledge that Doherty’s alleged rapist posed a threat. 

Doherty’s opposition argues again that the college is liable because of its knowledge of previous sexual assaults documented in the school’s police records, annual Clery crime report, and the public Facebook forum Emerson Confessional, and because of its failure to take precautions based on this knowledge. 

“The Defendants’ are ignoring the fact that they knew or should have known that sexual assaults were happening to Emerson students,” the opposition states, “yet they failed to take precautions to prevent them from happening.”