The United States District Court of Massachusetts permitted a lawsuit against Harvard by a former student disciplined by the College for sexual assault to move forward Thursday on grounds of racial discrimination but dismissed his claims of gender bias.
The unnamed student filed a civil suit against Harvard in October 2018 alleging the University discriminated against him on the basis of race and gender in its handling of a Title IX complaint that accused him of sexual misconduct.
The suit came nearly a year after Harvard suspended him for four semesters when the Office for Dispute Resolution investigator Brigid Harrington found he had performed sexual acts on an intoxicated classmate. According to University guidelines, “when a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct, conduct of a sexual nature is deemed unwelcome.”
In his suit, the student, who is described as an African-American male, claimed Harvard and Harrington discriminated against him on the basis of race by denying his and his accuser’s request to resolve the complaint via an informal process.
He alleged that Harvard permitted white students to resolve complaints of sexual misconduct informally and that Harvard handled his request differently than requests by white students in similar situations.
U.S. District Court Judge Indira Talwani accepted the student’s claims of racial discrimination against Harvard.
“Plaintiff has provided a comparator group – Caucasian students accused of similar sexual misconduct – coupled with the allegation that the comparator group was treated differently due to their race,” Talwani wrote. “At this stage of litigation, Plaintiff does not need to do more.”
Talwani, however, dismissed his claims that Harrington discriminated against him on the basis of race since the student did not allege she was involved in the decision to deny his request to resolve the complaint informally.
Talwani also dismissed the student’s claims that Harvard violated Title IX and discriminated against him on the basis of gender by consistently giving greater weight to his accuser’s account of events throughout its investigation.
She wrote that while these claims supported a claim of bias against alleged perpetrators of sexual misconduct, they did not support a claim of bias based on gender.
“The complaint does not allege that similarly situated individuals, that is, individuals who are accused of sexual misconduct, are treated differently based on their gender and does not offer statements or other alleged actions by any Defendants showing discriminatory animus towards Plaintiff based on his gender, rather than his status as a person accused of sexual misconduct,” she wrote.
The plaintiff further alleged that the College’s refusal to grant informal resolution— in addition to its denial of an opportunity to respond to information obtained during the investigation — were both grounds for a breach of contract claim.
Talwani wrote that the College’s rejection of the informal resolution request did not constitute breach of contract since it failed to meet the “standard of reasonable expectation.” She cited FAS policy, which states that informal resolution is only permissible with the approval of the Title IX Officer in addition to agreement from the complainant and the respondent.
Talwani did, however, accept the plaintiff’s second allegation of breach of contract. She cited Harvard’s failure to grant him a follow-up interview prior to the conclusion of the investigation, which she wrote barred him from responding “meaningfully” to information turned up by the investigation.
“It is plausible that, as Plaintiff alleges, he had a reasonable expectation arising out of the language of the FAS Policy that he would be afforded a follow-up interview between his first interview and the conclusion of the investigation, and otherwise would have an opportunity to respond to additional information gathered in the investigation,” she wrote.
Talwani wrote that the lack of a follow-up interview also sufficiently substantiated the plaintiff’s alleged “breach of covenant of good faith and fair dealing.”
She also dismissed the student’s additional claims that Harvard’s adjudication of the alleged sexual misconduct and imposition of discipline violated his due process rights under the Fourteenth Amendment. She cited his failure to plausibly argue that Harvard or Harrington were transformed into “state actors” — entities who act on behalf of a governmental body, and is thus regulated by the Bill of Rights, including the Fourteenth Amendment.
Talwani dismissed the student’s allegations of negligence against Harvard and Harrington because neither owed him an “independent duty of care” beyond the contractual relationship between the student and Harvard.
Harvard College spokesperson Rachael Dane declined to comment on the case.
This case hearkens to a suit filed against the College in fall 2019 by former Harvard undergraduate Damilare Sonoiki ’13. Sonoiki — also a black man — contended Harvard should not have withheld his degree after three fellow students accused him of sexual assault. He alleged that the process was racially biased against him, specifically citing the fact that during the 2012-2013 academic year — when the Administrative Board adjudicated cases of sexual misconduct — none of its 30 members were black men.
Earlier this month, U.S. Secretary of Education Betsy DeVos released updated Title IX regulations, shifting the definition of sexual misconduct from “unwelcome conduct of a sexual nature” to “unwelcome conduct that is so severe, pervasive, and objectively offensive.”
DeVos’s new regulations require that an “impartial investigator” first evaluate sexual misconduct complaints in order to submit a “neutral report” that is reviewed in a live hearing, in which both the complainant and respondent are subject to cross examination.
—Staff writer Juliet E. Isselbacher can be reached at firstname.lastname@example.org. Follow her on Twitter @julietissel.
—Staff writer Amanda Y. Su can be reached at email@example.com. Follow her on Twitter @amandaysu.