Updated (March 5, 10:39 a.m.)
Emerson is facing two lawsuits alleging it mishandled students’ sexual assault cases, and two legal experts said the outcomes are far from certain.
The lawsuits, filed by former students who allege the school mishandled their rape cases, are different in circumstances but similar in legal claims: both cases allege negligence and violations of Title IX, a federal law prohibiting gender discrimination in colleges receiving federal funds. The legal questions that the lawsuits raise, the experts said, require stringent evidence to establish liability, and represent actively evolving fields of law.
While the school has recently established a restructured sexual assault prevention and response program, hired specialists, and increased student outreach, in these lawsuits, administrators must defend themselves against women seeking damages for pre-reform allegations.
Former student Jillian Doherty filed suit against the college in August. She was allegedly raped after a consensual act in a Little Building dorm room in 2012, her freshman year, her lawsuit says. She alleges in the suit that the school failed to take proper precautions against on-campus sexual assault and mishandled the subsequent investigations and hearings related to her case. The accused male student was initially found “not responsible” but was later expelled from the school, the complaint says.
A second female student, identified as Jane Doe in her lawsuit — and who has since left the college, according to her lawyer — alleges she was assaulted by a male MIT student and a female Emerson student at an MIT party. Doe’s lawsuit mirrors the earlier case: it alleges the college did not have adequate prevention policies and did not appropriately respond to Doe’s alleged assault, in part because it did not result in a hearing.
Emerson has filed a motion to dismiss Doherty’s case, arguing the facts do not meet legal standards. The college is due to submit an answer to the second suit on March 17.
According to Leonard Kesten — a partner at a Boston-based law firm and an expert in discrimination litigation — Title IX and negligence cases are difficult to win.
“The court tends to throw them out,” said Kesten, who is a founding partner at Brody Hardoon Perkins & Kesten, LLP. “You have to prove ‘actual knowledge’ and ‘deliberate indifference,’ and ‘deliberate indifference’ is a high bar because if the institution acts — even if they don’t do everything perfectly or do something wrong — as long as they act, then they’re not indifferent.”
Retired federal judge Nancy Gertner said Emerson’s cases are not necessarily straightforward.
“This is an area of the law that is changing, so the outcome is by no means clear,” said Gertner. “It is a question of interpreting whether Emerson’s actions were consistent with the regulations, and there’s a lot of room for interpretation there.”
The lawyer for both plaintiffs, David P. Angueira, said both his clients’ lawsuits emerged from Emerson’s lack of sexual assault education—for both administrators and students—at the time of the students’ assaults.
“If you look at the underlying allegations, you will see that the nature of the complaints really arise from the lack of proper protocols and policies and procedures having been in place at Emerson,” Angueira said, “which is the type of problem that causes these issues to arise and not be remedied correctly.”
According to Gertner, Emerson’s motion to dismiss Doherty’s case does not necessarily imply the college is denying the allegations, but rather denying legal liability.
“This argument is saying, ‘Even if the facts you alleged in your complaint are true, there is no legal basis for the claim,’” Gertner said.
Kesten said Emerson’s motion to dismiss is not unusual and that if it fails, the case may go to trial, where a jury would determine if the allegations are more likely than not, a standard known as preponderance of the evidence.
Since the cases are similar, they may be consolidated under one judge, Gertner said, rather than two separate judges as they are assigned now. The same lawyer, Angueira, represents both plaintiffs, and the lawsuits share several defendants: Emerson College, President M. Lee Pelton; Ronald Ludman, the dean of students; David Haden, the former director of housing and residence life; and Title IX investigator Michael Arno.
According to Gertner, naming defendants beyond the college itself has advantages.
“Usually you want individuals because when someone is named as a defendant, they have greater obligations to cooperate with the lawsuit,” she said. “If you name an institution, then the institution chooses who the responsible parties are.”
Kesten added that there could also be a financial incentive to naming administrators as defendants.
“The reason you sue individuals is because there’s a charitable cap on a charitable institution,” he said. “So they don’t don’t want a judgement against Emerson because the most they can get is $20,000.”
Discerning monetary damages is difficult, though, Kesten said, when cases like those against Emerson go to juries. The court must separate the injury inflicted from the sexual assault from what the case is really about: the harm done from the school’s alleged negligence.
The amount a plaintiff could win, Kesten said, is “unknowable.”
“It depends how you present,” he said, “because the jury is told, ‘The plaintiff has emotional distress. Her life is ruined. What is that worth? Make up a number.’”
However, Gertner and Kesten agreed that most civil cases never go to trial. According to Gertner, both sides may be motivated to settle for different reasons.
“It may be that cases that were brought before the change in procedures would be settled because the school doesn’t want to be defending what its policies were yesterday or the day before when they have reviewed them and changed them,” she said.
There doesn’t need to be an admission of guilt, Gertner added.
“It could be, ‘We looked at this again. We think there’s a better way of doing this. We don’t particularly want to be defending ourselves against the old way of doing it when we already moved forward,’” she said.
Gertner said that there are also reasons a settlement would be appealing to a plaintiff.
“The plaintiff could settle as well if it’s clear from the law that they’re going to lose,” she said.
Emerson is among 101 postsecondary institutions that are under investigation by the Department of Education’s Office for Civil Rights for potential Title IX violations, according to that office. Three female Emerson students, including Doherty, filed a complaint against the college in December 2013.
According to a representative from the Department of Education, the Office for Civil Rights tries to resolve its cases within six months, although some take longer "due to the nature and complexity of the issues involved." The Office declined to comment on Emerson's Title IX complaint.
Doherty did not respond to a request for comment, but has previously referred questions to Angueira. Christine Hughes, vice president and general counsel for the college, said she had no comment for this article.
Angueira said that Emerson’s increased focus on sexual assault prevention and response should be appreciated, but the timing should be considered.
“I think they certainly are an improvement over what they had before,” he said. “It’s also a clear indication that oftentimes you only get change and improvement when you bring issues like this to the forefront.”
Correction, March 19: A previous version of this article misspelled Leonard Kesten's name