Dartmouth Review v. Dartmouth College, 89-1466

Decision Date06 September 1989
Docket NumberNo. 89-1466,89-1466
Citation889 F.2d 13
Parties, 57 Ed. Law Rep. 43 THE DARTMOUTH REVIEW, on Behalf of Its Officers, Staff and Subscribers, et al., Plaintiffs, Appellants, v. DARTMOUTH COLLEGE, et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Francis G. Murphy, Jr., with whom Nixon Hall & Hess Professional Ass'n, Manchester, N.H., Myerson & Kuhn, Harvey D. Myerson, Arthur H. Ruegger, Joseph E. Boury, and Julie A. Day, New York City, were on brief, for plaintiffs, appellants.

Carol Ann Conboy, with whom Jack B. Middleton, Robert A. Wells, Jane E. Cetlin and McLane, Graf, Raulerson & Middleton, Professional Ass'n, Manchester, N.H., were on brief, for defendants, appellees.

Before SELYA, Circuit Judge, ALDRICH and GIBSON *, Senior Circuit Judges.

SELYA, Circuit Judge.

This suit was brought in consequence of a riptide of unpleasantness which flooded the Dartmouth College campus during the second semester of the 1987-88 academic year. 1 The district court ordered dismissal for failure to state a claim. Dartmouth Review v. Dartmouth College, 709 F.Supp. 32 (D.N.H.1989). We affirm.

As needs must, we start by summarizing the factbound allegations of plaintiffs' two-count complaint insofar as material to our inquiry. In so doing, we do not purport to divine the truth of a conflicted situation, but describe only what plaintiffs claim the facts to have been, parroting the complaint's well-pled averments. It is in reliance on these facts--albeit much embroidered in 39 pages laced with rhetoric and invective--that plaintiffs sued in New Hampshire's federal district court charging violations of 42 U.S.C. Sec. 1981 (1982) and 42 U.S.C. Sec. 2000d et seq. (1982) (Title VI). And it is on these facts that the district court determined that no federal-law claim was presented.


Dartmouth is a private college. Christopher Baldwin, John Quilhot, and John Sutter (collectively, the Students), all white men enrolled at Dartmouth, were staff members of the Review, an off-campus, non-profit newspaper. In February 1988, the Review published features strongly critical of two Dartmouth professors. One target was William Cole, 2 a black music professor said to have used improper language and taught "irrelevant" material. The Students hoped Cole would respond in the Review's next issue. Telephone calls having proved unavailing, they approached Cole in his classroom moments after class ended on February 25. The Students (armed with camera and tape recorder) told the professor why they had come, but he screamed profanities at them. Baldwin attempted to hand Cole a letter inviting a response to the article. Cole became violent, breaking the camera's flash attachment and "poking his fingers at Mr. Baldwin's eyes." The Students departed.

These events precipitated what the complaint terms an "anti-Review hysteria." Cole lost little time in contacting the Committee on Standards (COS), which preferred charges of harassment and disorderly conduct against the Students. The Students, in turn, filed charges against Cole (who was found not guilty). Posters appeared alleging, without foundation, that Sutter was guilty of racial slurs. Threats of violence were communicated to Review members. Dartmouth's president, speaking at an anti-Review rally sponsored by the school's Afro-American Society, declared "that racism, sexism and other forms of ignorance and disrespect have no place at Dartmouth." He told the Boston Globe:

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 acceptances [of new students] go out.

The president refused to grant the Students an audience, but met freely with anti-Review undergraduates (most of whom were black). The College's dean, who chaired the COS, refused to give the Students assistance or guidance, despite explicit provisions in the College's student handbook promising such help. According to the complaint, such actions show that the administration had "publicly prejudge[d]" the February 25 incident and harbored an anti-Review bias, ascribing "a racial and anti-Dartmouth animus" to plaintiffs.

The COS hearing took place in March. The Students allege that the hearing afforded them "no fundamental fairness and sacrificed numerous procedural safeguards;" for example, they were not allowed representation by counsel, effective cross-examination, or an unbiased hearing panel. They were found guilty of all charges. Quilhot was suspended until the fall of 1988; Sutter and Baldwin for a year longer. The suspensions were upheld on appeal to the dean. Betimes, the president continued his verbal assault, accusing the Review of "bullying tactics ... designed to have the effect of discouraging women and members of minority groups from joining our faculty or enrolling as students...."

As previously recounted, the district court ruled that the complaint was insufficient to state an actionable claim. 709 F.Supp. at 36-39. This proceeding ensued.


The standard of review is not in doubt. Like the district court, we are governed by the familiar constraints of Fed.R.Civ.P. 12(b)(6). Accordingly, we must accept all well-pled factual averments as true, and draw all reasonable inferences therefrom in appellants' favor. McDonald v. Sante Fe Trail Transp. Co., 427 U.S. 273, 276, 96 S.Ct. 2574, 2576, 49 L.Ed.2d 493 (1976); Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988). In so doing, however, we "eschew any reliance on bald assertions, unsupportable conclusions, and 'opprobrious epithets.' " Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987) (quoting Snowden v. Hughes, 321 U.S. 1, 10, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944)). It is only if the complaint, so viewed, presents no set of facts justifying recovery that we may affirm the dismissal. Conley v. Gibson, 355 U.S. 41, 45-48, 78 S.Ct. 99, 101-03, 2 L.Ed.2d 80 (1957); Gooley, 851 F.2d at 514.

We have repeatedly cautioned that, notice pleading notwithstanding, Rule 12(b)(6) is not entirely a toothless tiger. "[M]inimal requirements are not tantamount to nonexistent requirements. The threshold [for stating a claim] may be low, but it is real...." Gooley, 851 F.2d at 514. Thus, plaintiffs are obliged to set forth in their complaint "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable legal theory." Id. at 515. The need is perhaps greater where allegations of civil rights violations lie at the suit's core:

Dismissal of a claim requires the most close analysis by an appellate court, balancing the overall liberal thrust of the simplified civil rules on the one hand, against the repeated demands by our and other courts that there be more than conclusory allegations, even in civil rights cases.

Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir.1982) (citation omitted), cert. denied, 461 U.S. 944, 103 S.Ct. 2121, 77 L.Ed.2d 1301 (1983). Gauzy generalities, unsupported conclusions, subjective characterizations, and problematic suppositions can sprout as easily as crabgrass in an imaginative litigant's (or lawyer's) word processor. Therefore, to avoid tarring defendants' reputations unfairly and to prevent potential abuses, we have consistently required plaintiffs to outline facts sufficient to convey specific instances of unlawful discrimination. See, e.g., id.; Fisher v. Flynn, 598 F.2d 663, 665 (1st Cir.1979) (Title VII; Sec. 1983); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977) (Sec. 1983), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978); see also Johnson v. General Elec., 840 F.2d 132, 138 (1st Cir.1988) (Title VII). As we have said in the summary judgment context, plaintiffs must point, if not to fire, at least to some still-warm embers; "smoke alone is not enough to force the defendants to a trial to prove that their actions were not [racially] discriminatory." Manego v. Cape Cod Five Cents Savings Bank, 692 F.2d 174, 177 (1st Cir.1982).

We are cognizant that the line between "facts" and "conclusions" is often blurred. But, there are some general parameters. Most often, facts are susceptible to objective verification. Conclusions, on the other hand, are empirically unverifiable in the usual case. They represent the pleader's reactions to, sometimes called "inferences from," the underlying facts. It is only when such conclusions are logically compelled, or at least supported, by the stated facts, that is, when the suggested inference rises to what experience indicates is an acceptable level of probability, that "conclusions" become "facts" for pleading purposes.

With these precepts in mind, we turn to the business at hand.


Appellants contend that the facts alleged in count I make out a cognizable claim under a statute which 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.

42 U.S.C. Sec. 1981. The statute extends to private conduct as well as state action. Patterson v. McLean Credit Union, --- U.S. ----, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989); Runyon v. McCrary, 427 U.S. 160, 168 & n. 8, 96 S.Ct. 2586, 2593 & n. 8, 49 L.Ed.2d 415 (1976). Independent academic institutions are within the law's prohibitory reach. See St. Francis College v. Al-Khazraji, 481 U.S. 604,...

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