Dartmouth Review v. Dartmouth College

• Decision Date: 20 March 1989
• Docket Number: Civ. No. 88-320-D.
• Citation: 709 F. Supp. 32
• Parties: The DARTMOUTH REVIEW, on behalf of its Officers, Staff, and Subscribers; Christopher Baldwin; John Sutter; John Quilhot; The Hanover Review, Inc. v. DARTMOUTH COLLEGE; Dartmouth College Committee on Standards; James O. Freedman, in his capacities as President and a Trustee of Dartmouth College; Edward J. Shanahan, in his capacities as the Chairman of the Dartmouth College Committee on Standards; Board of Trustees of Dartmouth College and each of the following in their capacity as a Trustee of Dartmouth College; Richard M. Bressler, Lisle C. Carter, Jr., Robert A. Danziger, Robert R. Douglass, Ann Fritz-Hackett, Robert P. Henderson, Hon. Ira Michael Heyman, Joseph D. Mathewson, Priscilla Frechette-Maynard, Norman E. McCulloch, Jr., George B. Munroe, Robert Reich, E. John Rosenwald, Jr., Ronald B. Schram, Dr. John F. Steel.
• Court: U.S. District Court — District of New Hampshire

709 F. Supp. 32

The DARTMOUTH REVIEW, on behalf of its Officers, Staff, and Subscribers; Christopher Baldwin; John Sutter; John Quilhot; The Hanover Review, Inc. v. DARTMOUTH COLLEGE; Dartmouth College Committee on Standards; James O. Freedman, in his capacities as President and a Trustee of Dartmouth College; Edward J. Shanahan, in his capacities as the Chairman of the Dartmouth College Committee on Standards; Board of Trustees of Dartmouth College and each of the following in their capacity as a Trustee of Dartmouth College; Richard M. Bressler, Lisle C. Carter, Jr., Robert A. Danziger, Robert R. Douglass, Ann Fritz-Hackett, Robert P. Henderson, Hon. Ira Michael Heyman, Joseph D. Mathewson, Priscilla Frechette-Maynard, Norman E. McCulloch, Jr., George B. Munroe, Robert Reich, E. John Rosenwald, Jr., Ronald B. Schram, Dr. John F. Steel.

Civ. No. 88-320-D.

United States District Court, D. New Hampshire.

March 20, 1989.

Harvey D. Myerson, New York City, and Francis G. Murphy, Jr., Manchester, N.H., for plaintiffs.

Cary P. Clark, Hanover, N.H., and Jack B. Middleton, Manchester, N.H., for defendants.

OPINION

DEVINE, Chief Judge.

In this civil rights action, the individual plaintiffs are three white students who were suspended from Dartmouth College subsequent to their confrontation with a black professor. Plaintiffs allege that the College and the other named defendants discriminated against them in the disciplinary proceedings, depriving them of contractual rights on the basis of race, in violation of 42 U.S.C. § 1981 and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. The matter is currently before the Court on defendants' motion to dismiss for failure to state a claim upon which relief may be granted. See Rule 12(b)(6), Fed.R.Civ.P. Plaintiffs object to the motion.¹

A motion to dismiss is one of limited inquiry. The standard for granting the motion is not the likelihood of success on the merits, but is whether plaintiffs are entitled to offer evidence to support their claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The Court's consideration is limited to the allegations of the complaint, Litton Indus. v. Colon, 587 F.2d 70, 74 (1st Cir. 1978), and those allegations are to be construed in the light most favorable to plaintiffs and taken as admitted, with dismissal to be ordered only if plaintiffs are not entitled to relief under any set of facts they could prove. Chasan v. Village Dist. of Eastman, 572 F.Supp. 578, 579 (D.N.H. 1983), aff'd without opinion, 745 F.2d 43 (1st Cir.1984). This is not to say that plaintiffs have unfettered discretion; the Court is not required to give weight to "bald assertions, unsupportable conclusions, or opprobrious epithets." Royal v. Leading Edge Prod., 833 F.2d 1 (1987) (quoting Chongris v. Board of Appeals of Town of Andover, 811 F.2d 36, 37 (1st Cir.1987)).

Factual Background

The Dartmouth Review is an independent college newspaper published by plaintiff Hanover Review, Inc., a nonprofit corporation. At all times relevant to this action, plaintiffs John Sutter, Christopher Baldwin, and John Quilhot were enrolled as students at Dartmouth College and were members of the Review staff.

On February 24, 1988, the Review published an article entitled "Dartmouth's Dynamic Duo of Mediocrity", criticizing courses taught by two Dartmouth professors. One of those criticized was William Cole, a black professor in the music department. Apparently there is a history of ill will between Cole and the Review.² Prior to publication of the February 24 article, Review members made two attempts to contact Cole by telephone to give him an opportunity to reply to the article. Cole hung up on the students the first time and allegedly became "abusive and insulting" during the second call.

Members of the Review subsequently contacted legal counsel for advice. Counsel advised the students to inform Professor Cole in writing of the editorial policy of the Review, affording him the right to a published, unedited response. He also told them they could ask Cole for an apology for the remarks he had made on the telephone.

On February 25, 1988, the following events took place which gave rise to the disciplinary action against the individual plaintiffs. Plaintiffs Sutter, Baldwin, and Quilhot, and one other member of the Review staff approached Professor Cole after he had finished teaching a class to give him a copy of the editorial policy and to demand the apology in person. Plaintiff Quilhot held a camera, and plaintiff Sutter brought a tape recorder. There ensued an approximately five-minute altercation between the plaintiffs and Cole, during which Cole became extremely agitated. Plaintiff Baldwin unsuccessfully attempted to give Cole the editorial policy statement. Quilhot began taking pictures of Professor Cole, at which point Cole allegedly grabbed his arm and broke the camera flash. Plaintiff Sutter then demanded the apology from Cole on behalf of the Review. Cole refused. Cole then noticed the tape recorder, and Sutter acknowledged he was taping the incident. Sutter complied with Cole's request that he stop taping. Plaintiffs then left the room.

The next day, on the complaint of Professor Cole, the Dartmouth Committee on Standards ("COS") charged the student plaintiffs with "harassment, violation of the right to privacy and disorderly conduct." Plaintiffs allege that as the incident with Professor Cole became generally known on campus, "anti-Review forces" began to characterize the Review's motives in confronting Professor Cole as racial.³

In response to the furor on campus, President Freedman addressed a rally organized in support of Professor Cole by the Afro-American Society. President Freedman stated that racism, sexism, and other forms of ignorance and disrespect have no place on the Dartmouth campus. In a March 2, 1988, Boston Globe article, President Freedman was quoted as saying,

I feel dreadful about the attack on Professor Cole.... I do not want one minority or woman student to decline to come to Dartmouth because of the perception that this incident is representative of the true Dartmouth. It is not. The timing of this is dreadfully suspicious, coming five weeks before acceptance of new students go out.

Complaint ¶ 46.

Hearings regarding the charges against the students took place on March 5 and 6. Plaintiffs allege numerous procedural irregularities and bias on the part of the COS. The COS found plaintiffs guilty of the charges against them, and the following penalties were imposed: plaintiffs Sutter and Baldwin were suspended from classes until the fall of 1989, and plaintiff Quilhot was suspended from classes until the fall of 1988. The students appealed the COS decision to Dean Shanahan, who upheld the decision.⁴

Following the disciplinary action, President Freedman stated in a speech to the faculty,

Dartmouth College ... must not stand by silently when a newspaper recklessly sets out to create a climate of intolerance and intimidation that destroys our mutual sense of community. What the Review has done on this campus has not been decent. What it has done has been irresponsible, mean-spirited, cruel and ugly. I now see that The Review is dangerously affecting — in fact, poisoning — the intellectual environment of our campus.

Id. ¶ 58. He stated that the Review used "bullying tactics ... designed to have the effect of discouraging women and members of minority groups from joining our faculty or enrolling as students...."

Discussion

Count I

Count I of the complaint alleges that defendants discriminated against plaintiffs on the basis of race in violation of 42 U.S.C. § 1981. Section 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

Section 1981 derives from the Civil Rights Act of 1866, which was enacted to implement the Thirteenth Amendment to the United States Constitution and "to abolish all the remaining badges and vestiges of the slavery system." Springer v. Seaman, 821 F.2d 871, 881 (1st Cir.1987) (quoting Haugabrook v. City of Chicago, 545 F.Supp. 276, 280 (N.D.Ill.1982)). Section 1981 was intended to prohibit all racially motivated deprivations of the rights enumerated therein. General Bldg. Contractors Ass'n v. Pa., 458 U.S. 375, 388, 102 S.Ct. 3141, 3148, 73 L.Ed.2d 835 (1981); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426, 88 S.Ct. 2186, 2195, 20 L.Ed.2d 1189 (1968). Thus, the United States Supreme Court has interpreted section 1981 to apply not only to governmental actions, but also to private acts of discrimination. See Runyon v. McCrary, 427 U.S. 160, 175, 96 S.Ct. 2586, 2596, 49 L.Ed.2d 415 (1976).⁵ The Supreme Court has also stated that section 1981 prohibits racial discrimination against white persons. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 287, 96 S.Ct. 2574, 2582, 49 L.Ed.2d 493 (1976).

A plaintiff bringing a section 1981 action must plead and prove that the defendant's actions were "intentionally discriminatory and racially motivated." Albert v. Carovano, 851 F.2d 561 (2d Cir.1988); see also General Bldg., supra, 458 U.S. at 391, 102 S.Ct. at 3150. It is not necessary that racial discrimination be the only reason for the harm; however, it must be the "determining factor". Rowlett v. Anheuser-Busch, 832 F.2d 194, 201 (1st Cir.1987) (citing Loeb v. Textron, 600 F.2d 1003, 1019 (1st Cir.1979)). Discriminatory intent may be proved by direct evidence or may be inferred from circumstantial evidence, such as a pattern of conduct inexplicable on grounds other than race....