Court to decide whether lawsuit should be dismissed


A federal district judge heard arguments on Tuesday about a lawsuit regarding Emerson’s handling of a sexual assault case and whether it should be dismissed.

After the hourlong hearing at the U.S. District Court in Boston, the judge, Leo T. Sorokin, told the court to expect his determination in the following weeks. 

Jillian Doherty, 22, filed suit against the college in August, alleging the school created an environment where sexual assault was foreseeable, leading to her being raped, and that college administrators failed to adequately investigate and adjudicate her case.

The college filed a motion to dismiss her case in September; this hearing was for the lawyers on both sides to argue the motion’s merits. Doherty’s lawyer opposes it and said at the hearing that the court needs more facts to properly determine Emerson’s liability—facts which could only be gathered if the case proceeds. A lawyer for Emerson argued that the case has no legal basis.

In ruling on this kind of motion, the court doesn’t make a determination about the facts of the case—only whether the facts as alleged in the original complaint are sufficient to support its legal claims.

The lawsuit names, as defendants: the college itself; President M. Lee Pelton; Ronald Ludman, the dean of students; David Haden, the former director of housing and residence life; and Michael Arno, who was assigned to investigate Doherty’s case.

Paul G. Lannon, of the law firm Holland & Knight, began the hearing by requesting that Pelton, Haden, and Ludman be removed from the case as individual defendants because the lawsuit complaint didn’t show that they were involved in Doherty’s case. He noted that Pelton, Haden, and Ludman were each mentioned only once in the lawsuit. Doherty’s lawyer, David P. Angueira, of the firm Swartz & Swartz, did not contest Lannon’s request.

Haden left the college in January, and Ludman announced last week his plans to retire in June. 

Doherty’s lawsuit argues that Emerson violated Title IX — a federal gender equity law — and alleges “negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress.”

Doherty was not present for the proceedings. But in her first published interview since filing her lawsuit, she said that although Emerson deserves credit for new sexual assault prevention and response programs, the college needs to acknowledge its past wrongs. 

“What you’re not seeing is, ‘We’re sorry. We did this, and it wasn’t right,’” she said. “As much as I want to say, ‘Yeah, they’ve made changes,’ they still have this attitude problem of not being able to support people they’ve hurt in the past.”

The judge asked the lawyers to first address, and spend the most time discussing, the Title IX claim. Lannon told Sorokin that the standard for lawsuits under Title IX is “deliberate indifference” — that the college would have needed “actual knowledge” of Doherty’s assault and done nothing for her to have a valid legal claim in a private lawsuit under that statute. 

“On these facts as alleged, did Emerson make an attempt to remedy this allegation? The answer is unequivocally yes,” Lannon said.

In the suit, Doherty alleges she was sexually assaulted after consensual sex in a Piano Row dorm room in April 2012. She reported the assault in March 2013, her complaint says, after which the school initiated an investigation and hearing, both of which she argues were inadequate. According to the lawsuit, the school initially found her alleged assailant “not responsible,” but after she appealed, he was expelled from the school.

Whether the response was adequate is not relevant in private Title IX lawsuits, Lannon argued; he said it is only a question for the Office of Civil Rights at the U.S. Department of Education. 

Doherty filed a complaint with other students with the Office for Civil Rights in December 2013. As of April 7, the complaint is still under investigation leaving Emerson on a list of over 100 institutions across the country, according to a representative from that office. 

But Angueira argued that as long as some part of the college’s response was unreasonable, Title IX does permit a private lawsuit. He also argued that Emerson’s programs and materials related to sexual assault prevention — pamphlets, orientations, and a disciplinary process — were inadequate, which created a dangerous environment.

Lannon, however, argued that because Emerson had created those programs and materials, it could not have been liable under Title IX.

Angueira rebutted, saying that Emerson’s response was “grossly inadequate” and that Doherty was put at risk with what he argued was a lax alcohol policy and a lack of sexual assault response training for Arno. 

Angueira said that although Emerson ultimately decided Doherty’s case in her favor, Doherty experienced emotional harm during the process and before the decision.

“He was thrown out of the college, but the damage had been done at that point,” Angueira said, citing Doherty’s alleged post-traumatic stress and hospitalization.

Apart from the Title IX claim, Doherty’s lawsuit also alleges three counts of negligence, arguing that Emerson breached its duty to students by failing to establish and enforce policies that protect them before sexual assault occurs, among other assertions.

But Lannon said Emerson cannot be held legally liable, in part because there are no previous cases that provide legal authority to determine the kind of negligence that Doherty’s suit argues.

“This is unprecedented and, I want to argue, unwarranted,” he said. 

Lannon noted that the plaintiff and her alleged assailant were both, at first, consenting adults, and the alleged assault did not occur because of a physical security lapse on Emerson’s part, as in a case Angueira used as precedent. 

Angueira argued that although college students are legal adults, the culture of campus life requires special care in educating members of the communities about risk.

“They may be 18, but they’re still children,” he said. “The only custodians… are the college officials.” 

Several people were in attendance, including Christine Hughes, vice president and general counsel for Emerson, and Betsy Facher Rauch, the college’s interim Title IX coordinator