Emerson seeks dismissal of former student's lawsuit

by Christina Jedra / Beacon Staff • September 29, 2014

Lawyers for Emerson College and four school administrators moved to dismiss the federal lawsuit filed by a former student who claims the school mishandled her sexual assault case. A 20-page memorandum submitted with the motion on Monday states that even if the lawsuit’s allegations were true, they “do not establish that the Defendants violated any law.”

Jillian Doherty filed a lawsuit Aug. 8 alleging that Emerson College; President M. Lee Pelton; Dean of Students Ronald Ludman; Director of Housing and Residence Life David Haden; and Michael Arno, the director of the Office for Student Conduct and Doherty’s Title IX investigator, neglected to properly prevent sexual assault like hers and failed to respond appropriately after she reported the incident. 

According to Doherty’s filing, a male Emerson student forced her to have anal sex after consensual intercourse in his dorm room in April 2012. The school initially found the alleged rapist “not responsible” for the assault, but after Doherty appealed the decision, administrators held a second hearing and decided to expel the student. According to the lawsuit, Doherty is seeking “compensatory and punitive damages resulting from her pain and suffering resulting from the Defendants’ deliberate indifference,” in addition to legal fees.

Doherty — who was a junior writing, literature, and publishing major until she withdrew from the college this spring — filed a federal Title IX complaint with two other female students against Emerson with the Department of Education’s Office for Civil Rights last fall for allegedly mishandling their sexual assault cases. Emerson is currently on a list of 79 colleges nationwide under investigation for violations of Title IX, a federal gender equity law.

Doherty’s lawsuit lays out five specific claims, each of which Emerson’s response disputes: violation of Title IX; violation of the Jeanne Clery Act, a federal law requiring colleges to disclose campus crimes; negligence; negligent infliction of emotional distress; and intentional infliction of emotional distress.

“The Complaint lacks sufficient legal or factual support to maintain any of these claims,” states Emerson’s response, which was submitted to the United States District Court in Springfield by three lawyers from the Holland & Knight firm.

Doherty had previously referred questions to her lawyer, David P. Angueira of Swartz & Swartz, who did not respond to requests for comment for this article. 

According to the motion to dismiss, to claim a violation of Title IX, a plaintiff must prove: “she was subjected to harassment severe enough to compromise her educational opportunities; the educational institution had actual knowledge of the harassment; and the institution exhibited deliberate indifference to the harassment.”

The defense team claims that Doherty’s case does not meet the third requirement, because her complaint did not show that the school acted with “deliberate indifference.”

“Plaintiff does not, and cannot, allege in her Complaint that Emerson failed to act or that Emerson made an official decision not to redress the violation she reported,” the defense states. “What Plaintiff disputes in her Complaint is the adequacy of Emerson’s response.”

According to the motion, the standard of “deliberate indifference” requires showing that the school “intentionally” violated Title IX through “grossly inadequate action or no action at all” that caused sexual discrimination against the student. The defense says Doherty’s case does not meet this requirement. 

“That failure alone is sufficient to justify dismissal,” the motion says. “Try as she might, Plaintiff cannot circumvent the essential element of deliberate indifference.” 

The motion also states the school acted in a “timely and reasonable” manner after the incident, an element it says disqualifies the school from liability under Title IX. 

Regarding Doherty’s claim that Emerson violated the Clery Act by underreporting on-campus sexual offenses, the college’s lawyers did not address her allegation directly, but wrote that the statute can only be enforced by the Department of Education, not through civil lawsuits. 

Emerson’s motion also claims Doherty’s complaint does not present sufficient evidence for her negligence claims. The response argues that Doherty’s complaint did not show Emerson had a legal duty to protect her from the assault, and thus she cannot claim the school was negligent.

“Absent unusual circumstances, there is no duty for a school to protect others from the criminal or wrongful acts of third persons,” the document states. “Two students agreed to meet in one student’s room and engaged in consensual sexual intercourse, followed by non-consensual intercourse… There is no duty to supervise adult students in their dorm rooms or prevent them from drinking alcohol.”

The response also states that Doherty’s complaint failed to demonstrate a breach of duty by the individual administrators named as defendants, and that the defendants’ handling her sexual assault case may not meet the legal requirements to claim “intentional infliction of emotional distress.” 

“Whether the facts, as alleged, satisfy the requirement that Emerson’s conduct was ‘extreme and outrageous’ is a question of law for the Court,” the motion states. “Even if the Plaintiff could somehow prove that the College’s response was inadequate, inadequacy alone does not equate to ‘atrocious’ or ‘utterly intolerable’ conduct.’” 

Gabby Balza, a senior writing, literature, and publishing major, said she is angry and disappointed about the school’s response to Doherty’s suit, particularly because she felt the school mishandled her own case of intimate partner violence earlier this year. 

“There are people, including myself, who have come forth, who still go to school every day with the people that did these violent acts against them,” she said. “I just feel like the school doesn’t understand the severity of that or the effect that that has on someone because they completely dismissed this lawsuit of someone who was clearly very affected by it.” 

Balza, who declined to elaborate on the details of her abuse by a fellow student, said she feels Emerson should have admitted fault in Doherty’s case. 

“They’re saying it from a legal standpoint, obviously,” she said. “But it’s just frustrating when you see someone continuously trying to cover up mistakes that they’ve made instead of trying to own up to those mistakes and help the people who have been affected pretty severely by those mistakes.” 

Balza said she was pleased to see Emerson’s launching of a new, comprehensive sexual assault policy last month as well as the hiring of Melanie Matson, the director of violence prevention and response/ sexual assault response advocate in March. However, Balza said the changes didn’t come soon enough. 

“Those improvements that they have made should’ve been there from the get-go,” she said. 

Junior Ryan Smythe, a three-year orientation leader, said the school’s response to the lawsuit seems contradictory to the school’s focus on consent during orientation this semester. 

“They put so much emphasis on getting over this and showing how they’re fixing it and now they do the worst thing possible,” said Smythe, a journalism major. “It’s more than a little bit of a slap in the face to everybody this has affected in the past, especially Jillian.” 

Smythe noted that while sexual assault on campus is an issue that affects colleges nationwide, he didn’t expect Emerson to be among schools criticized for their policies. 

“I hold Emerson to a higher standard than I do everywhere else,” he said. “The fact that we’re stuck exactly on par with everyone else is really disappointing.”

 

This article has been updated for the Oct. 2 print edition.