United States District Court, D. New Hampshire
McCafferty United States District Judge.
brings this lawsuit against defendant Trustees of Dartmouth
College (“Dartmouth”), alleging violations of his
rights under Title IX, along with a number of related
state-law claims. Contemporaneously with his complaint,
plaintiff filed a motion to proceed under the pseudonym
“John Doe” (doc. no. 2). Dartmouth takes
no position on the motion. For the following reasons,
plaintiff's motion is granted.
central claim is that Dartmouth discriminated against him on
the basis of his sex when it expelled him for misconduct
stemming from a drunken sexual encounter with a female
student. A detailed recitation of the allegations in the
complaint is necessary to understand the context of
plaintiff's desire for anonymity.
alleges that, in August 2016, while a student at Dartmouth,
he engaged in sexual contact with a female student-
hereinafter referred to by the pseudonym “Sally
Smith”-after a fraternity party. Plaintiff describes
Sally as the sexual aggressor, and as someone he knew to be
interested in sadomasochistic sex. Plaintiff claims that he
“blacked out” from intoxication before the
encounter and had no memory of seeing Sally that night. The
next morning, plaintiff awoke to find Sally in his bed, and
the two engaged in consensual sexual intercourse. Sally then
explained what had occurred the previous night, and stated
that “things had gotten a bit ‘rough.'”
Doc. no. 1-3 at ¶ 18. Plaintiff told Sally that
he had no memory of the previous night. When Sally left his
room, plaintiff fell back to sleep.
alleges that when he woke up, he was in physical pain. He had
bruises and scratches on his back, his nipple was bleeding,
and he felt “extreme pain” in his genitalia.
Plaintiff claims that Sally sent him a text message that day,
describing the night as “fun” and enclosing
photos of herself that showed bruises on her body. Later that
day, they met to talk, and Sally stated that they had engaged
in “rough foreplay” and slapping, and had fallen
off the bed multiple times. Id. at ¶ 23. Sally
also told plaintiff that he had asked her to leave several
times on that night.
October 2016, Sally filed a complaint against plaintiff with
Dartmouth's Title IX office. She alleged that plaintiff
had physically assaulted her during their sexual encounter in
August, but she told a Dartmouth official that the sexual
contact was itself consensual. After receiving the complaint,
Dartmouth notified plaintiff that it was instituting an
investigation into whether he had violated standards
governing both physical and sexual misconduct. On November 2,
2016, plaintiff filed a complaint against Sally, alleging
that his intoxication rendered him incapable of consenting to
the sexual encounter on August 4, and that she had caused him
physical harm during that encounter. Dartmouth jointly
investigated both complaints.
to plaintiff, his version of events was borne out by the
evidence. After receiving the preliminary report and factual
findings, Sally and plaintiff communicated to Dartmouth that
they had reached an agreement and wished to terminate the
investigation. Thereafter plaintiff filed a written response
to the preliminary report, noting its alleged inaccuracies
March 3, 2017, Dartmouth notified plaintiff that it found a
violation of the physical misconduct standard (i.e., placing
another student at risk of physical harm), but found no
violation of the sexual misconduct standard. Dartmouth found
that Sally had not violated either standard.
then instituted the process to determine the sanction.
Plaintiff alleges that, over his objection, Dartmouth
deprived him of the ability to appear before or write to the
people deciding his sanction. Dartmouth decided that
expulsion was the appropriate sanction. Plaintiff appealed
that sanction, and it was upheld. Plaintiff alleges that the
appellate decision-maker was biased against him because of
his gender, and that her bias was evident in an article she
had written in 2014 about sexual assault on college campuses.
further alleges that the climate at Dartmouth infected his
investigation with gender bias. He claims that his
investigation occurred at a time when students were
hyperfocused on allegations of violence against women, and
while Dartmouth was under federal investigation for its
handling of sexual misconduct complaints.
brought this action in January 2018, raising claims for
violation of Title IX, breach of contract, breach of the
implied covenant of good faith and fair dealing, and
negligence. On March 19, 2018, the court held a hearing on
the present motion.
argues that, given the nature of the underlying facts and
Dartmouth's findings, his reputation, career prospects,
and mental health will be significantly damaged if he is not
permitted to proceed under a pseudonym. He contends that the
mere public identification of a person “accused of and
found responsible for assault by a college is severe and can
have life-long effects on the [person's] ability to
complete his education and gain employment, ” and can
also increase the likelihood that the person will be the
target of threats, harassment, and intimidation. Doc. no.
21 at 4. He maintains that, if the court requires
him to reveal his identity, the purpose of his lawsuit will
be defeated and the very harms he is trying to undo will be
compounded and exacerbated.
delving into the merits, however, there is a threshold
question to address regarding the appropriate standard of
review. As plaintiff notes, neither the U.S. Supreme Court
nor the First Circuit has definitively articulated the
circumstances under which a plaintiff may use a pseudonym.
Plaintiff relies on certain balancing tests developed by
other federal courts of appeals to support his position. At
the hearing, the court expressed some skepticism as to
whether it should apply one of these balancing tests over the
First Circuit's test for determining whether to seal
judicial records. Plaintiff has filed a supplemental
memorandum further expanding on his view of the relevant law.
the court begins by addressing the appropriate standard of
review, before applying that standard to the circumstances
presented. As will be discussed below, the court concludes
that plaintiff may ...