UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Mark Anderson, Plaintiff

v. Case No. 19-cv-109-SM Opinion No.

Trustees of Dartmouth College, Defendant

O R D E R

Mark Anderson, plaintiff, was expelled from Dartmouth

College. Proceeding pro se, he asserts claims arising from the

College’s disciplinary process. Dartmouth has moved for summary

judgment on all of Anderson’s claims against it. For the

reasons given, the College’s motion is granted.

STANDARD OF REVIEW

When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,

(1st Cir. 2016) (citation omitted).

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). In this context, a factual dispute “is ‘genuine’ if the evidence of record permits a rational factfinder to resolve it

in favor of either party, and ‘material’ if its existence or

nonexistence has the potential to change the outcome of the

suit.” Rando v. Leonard,

(1st Cir. 2016)

(citation omitted). Consequently, “[a]s to issues on which the

party opposing summary judgment would bear the burden of proof

at trial, that party may not simply rely on the absence of

evidence but, rather, must point to definite and competent

evidence showing the existence of a genuine issue of material

fact.” Perez v. Lorraine Enters.,

, 29–30 (1st Cir.

2014). In other words, “a laundry list of possibilities and

hypotheticals” and “[s]peculation about mere possibilities,

without more, is not enough to stave off summary judgment.”

Tobin v. Fed. Express Corp.,

, 451–52 (1st Cir.

2014). See generally Anderson v. Liberty Lobby, Inc.,

(1986).

BACKGROUND

Anderson challenges Dartmouth’s application of its

disciplinary rules and processes on several grounds. A review

of that system, as described in Dartmouth’s Student Handbook,

follows.

2 1. Dartmouth’s Disciplinary System

Dartmouth’s Student Handbook defines “Standards of Conduct”

for the Dartmouth community, standards “which govern the

behavior and activities of individual students and student

organizations on or off campus.” Def.’s Mot. for Summary

Judgment, Exh. (“Def.’s Exh.”) 1 at 2. The Handbook identifies

nine standards, but Standards II and VI are the only ones

relevant to this case. Standard II prohibits students from

engaging in “behavior that threatens . . . the safety and

security of others.” Def.’s Exh. 1 at 3. Under Standard VI,

students “are subject to disciplinary action for violation of

the laws of any jurisdiction, whether local, state, federal or

foreign.” Id. at 6.

The Handbook describes the operation of, and procedures to

be followed by the undergraduate disciplinary system. Dartmouth

College’s Trustees exercise “ultimate authority for the

structure and operation of the undergraduate disciplinary system

at the College.” Def.’s Exh. 1 at 10. The Trustees have

delegated their authority to the Vice Provost for Student

Affairs and the Committee on Standards (COS), which are charged

with promulgating, revising and enforcing “rules concerning the

disciplinary system as it relates to undergraduates.” Def.’s

3 Exh. 1 at 10. The Committee on Standards is tasked with hearing

cases involving violations of the Standards of Conduct.

The COS is generally comprised of 12 faculty members, 12

undergraduate students, and 8 members selected by the college’s

president. COS panels, designated to hear a specific case,

consist of two faculty COS members, two student COS members, and

one of the administrative members of the COS selected by the

president, as well as the hearing Chair, who does not vote, and

is a member of the College’s Office of Judicial Affairs.

A. Office of Judicial Affairs

Dartmouth’s Office of Judicial Affairs is responsible for

“receiving all complaints and issuing allegations.” Id. at 12.

The Handbook reads:

[T]he JAO may conduct an investigation and initiate an allegation on the basis of information coming to its attention from any source. The JAO shall determine whether complaints or other information concerning a student shall result in formal disciplinary allegations. The JAO shall coordinate the investigation and disposition of complaints and shall call upon other members of the College community for assistance as necessary.

Id. at 12.

If the JAO determines that formal disciplinary allegations

are necessary, and those allegations could potentially result in

suspension or separation if the student is found responsible,

4 the Director of Judicial Affairs must “inform the student in

writing and provide the student with copies of the available

information related to the allegations.” Id. at 13.

Within five days of written notice of the allegations, the

student is allowed an “opportunity to admit or deny the

allegation.” Id. If the student denies the allegations, or the

facts in question, the case is referred to the COS for a

hearing.

The Handbook states that COS hearings “are administrative

in nature and [] not governed by the rights and rules that apply

in a court of law.” Def.’s Exh. 1, at 15. However, “[t]he

disciplinary system does provide . . . student[s] with certain

rights and obligations,” as delineated in the Handbook. Id. at

15. Students appearing before the COS “are expected to be

familiar with [its] rules and procedures.” Id. at 15.

B. “Rights and Obligations” Under the Handbook

Among the rights the Handbook provides students are

“reasonable written notice of the substance of the allegation(s)

against them,” and a “reasonable period of time in which to

prepare for a hearing.” Id. at 16. The Handbook provides:

“[h]earings will be scheduled as soon as possible after an

incident,” and a “student who needs additional time to prepare

for a hearing may request, in writing, an extension of time.”

5 Id. The COS Chair is responsible for scheduling hearings, and

making decisions with respect to requests for delay or

rescheduling.1

The Handbook gives students the right to have a faculty

advisor of their choosing present at the hearing. The advisor’s

main role is to “assist the student in reviewing and

understanding the procedures related to the hearing and to

assist the student in obtaining answers to questions about the

hearing.” Id. at 15. According to the Handbook, “an advisor

might appropriately help a student anticipate questions and

issues likely to arise at a hearing, and while an advisor might

provide feedback about the effectiveness of a student’s written

or oral presentation of the facts, the advisor does not function

in the way an attorney would in a criminal or civil proceeding.”

Id. at 16.

1 With respect to scheduling, the Handbook also states: “[w]hen a COS hearing cannot be scheduled during the term of the incident, a temporary hold will be placed on the student’s registration and tuition bill until the case can be heard or by the deadline for administrative withdrawals (whichever comes first) is reached.” Id. at 17. The Handbook also contemplates that “conduct that may violate one of the Standards of Conduct may also be a violation of law,” and in such instances, the “College will take independent action . . . regardless of the status or outcome of any criminal proceedings.” Id. at 13.

6 The JOA is charged with providing COS with “all relevant

material relating to cases which come before it,” material that

the college calls the “case packet.” Id. at 14; Def.’s Exh. 40

at 13:6-14:1. The non-voting Chair of the COS panel is vested

with authority over all “procedural rulings, including rulings

on relevance and admissibility of material” within the case

packet. Id. at 17. Before the hearing, both the student and

the COS hearing panel are provided with copies of the case

packet.

C. COS Hearings

COS hearings are “informal,” and are intended “to provide

the student with an opportunity to be heard and to provide the

COS relevant information on which to base a decision.” Def.’s

Exh. 1 at 19. Pursuant to the Handbook:

Formal rules of evidence and courtroom procedures are inapplicable. The COS may hear and consider any information it considers to be trustworthy and to have probative value. . . . [T]he Chair is empowered to make all procedural rulings, including rulings on relevance and admissibility of information.

Id. Students may request witnesses, present information and

argument, and make opening and closing statements. Id. at 17.

COS decisions require a majority vote, and, for the COS to

conclude that a student has violated a Standard, “the COS must

be persuaded that a preponderance of the evidence supports such

7 a finding,” that is, that it is “more likely than not” the

student committed the alleged violation. Id. at 20. After the

COS reaches a decision, the Chair drafts a “case note,”

summarizing the decision and its rationale. Students are

promptly notified of the COS’s decision. Id. at 20.

D. Requests for Review

Requests for review of COS decisions are received by the

Vice Provost for Student Affairs, the Dean of the College, or a

designee. Id. at 11. Requests may be made on the following

grounds:

1. Procedural error which has materially prejudiced the student’s case;

2. Newly discovered information which, had it been available at the time of the hearing, would likely have affected the outcome either with regard to a finding of responsibility or with regard to the sanction imposed (if the information was not reasonably available to the student at the time of the proceeding).

Id. at 21. Sole discretion for the decision as to whether those

grounds for review have been met is vested with the reviewing

officer. Id. Upon review, “the original decision may be

upheld, the imposed sanction adjusted as the reviewing officer

deems appropriate, or referred back to the hearing officer or

the COS panel that originally heard the case for further

consideration.” Id. at 21.

8 2. Mark Anderson and the Disciplinary Process

In January, 2017, while Anderson was in his junior year at

Dartmouth, his girlfriend of approximately four years broke up

with him. Angry and upset, plaintiff sent his former girlfriend

and her family members several inappropriate and threatening

communications over the next few months. On March 29, 2017,

Anderson’s former girlfriend (who, at the time, was a student at

a college in another state) obtained a protective order from a

state court close to where she was attending school. The order

prohibited Anderson from having any further contact with his ex-

girlfriend, or her family members.

Dartmouth’s JAO learned of the protective order around the

time it was issued, but decided not to initiate a formal

disciplinary process at that time. Dartmouth’s Director of

Community Standards and Accountability in the JAO, Katharine

Strong, said “we determined at that time we did not have enough

information to move forward with allegations at that time . . .

[S]hould more information become available, we would review

again.” Def.’s Exh. 40 at 31:12-20.

Kristi Clemens, then Dartmouth’s Assistant Dean of Student

Affairs and Director of Case Management, was also notified of

the protective order. As Assistant Dean of Students Affairs and

Director of Case Management, Clemens “served as a point of

9 contact for struggling students who might need assistance across

multiple areas.” Def.’s Mot. for Summary Judgment at 8.

Clemens had no disciplinary authority with regard to reports of

troubling behavior. See Def.’s Exh. 42 at 5:1-5, 8:5-8; 42:5-9.

Clemens contacted Anderson to set up a meeting to discuss

the protective order. Anderson declined initially, but Clemens

informed him that the meeting was not optional. The two met on

April 4, 2017. At the meeting, Clemens told Anderson that the

JOA had reviewed the protective order, and decided not to raise

formal disciplinary allegations at that time. As Clemens later

stated, “I let him know the college would not be taking any

action on this report in terms of a judicial approach at this

point, but wanted to let him know that should this behavior

continue[,] we may need to reconsider that.” Def.’s Exh. 42 at

16:2-21.

Plaintiff tells a slightly different story. According to

plaintiff, Clemens told him that “if a subsequent incident

occurred,” which then prompted Dartmouth to initiate formal

disciplinary proceedings against him, “the March Report could be

provided to the COS if it helped contextualize whatever

(different) allegations the JAO had raised against the

plaintiff.” Pl.’s Opp. to Mot. for Summary Judgement at 9. See

also Def.’s Exh. 39 at 59:3-24 (“She told me that if I violated

10 the restraining order, then . . . further action could be –

allegations could be raised against me regarding that action,

and the other materials might be viewed at the hearing, but they

would not raise allegations about those materials

specifically.”); 191:5-8 (“she represented to me that if I

violated the restraining order, then that subsequent action

could be subject to disciplinary allegations or procedures.”).

A. Violation of the Protective Order

On May 4, 2017, Anderson violated the protective order by

sending a message to his ex-girlfriend’s mother, instructing her

not to speak to any of his family members. Anderson was

subsequently arrested by the Hanover Police Department, and

charged with violating the order.

The JAO was promptly informed of Anderson’s arrest, and,

after reviewing the available information, decided to initiate

formal disciplinary procedures. Accordingly, on May 10, 2017,

Adam Knowlton-Young, a member of the Office of Judicial Affairs,

wrote to Anderson “to follow up on a report . . . received from

[Dartmouth’s Department of] Safety and Security, regarding an

incident on or about May 4, 2017[,] as well as behavior from

spring term that had resulted in a restraining order being put

in place on you.” Def.’s Exh. 4. Knowlton-Young further wrote:

“I have reviewed the report from Safety and Security and

11 prepared materials regarding our concerns. I would like to

share them with you,” and “schedule a time to discuss the steps

going forward and answer any questions you might have.” Id.

Enclosed with Knowlton-Young’s May 10 letter were two

additional letters, also from Knowlton-Young and also dated May

10. See Def.’s Exh. 5. The first letter states:

[O]ur office received a report from Safety and Security detailing events you were involved in on or about May 4, 2017[,] and during the spring term 2017. Specifically, it is alleged that on or about May 4, 2017[,] you communicated with parties in violation of a restraining order, which had been issued for previous behavior that was threatening or harassing. I have reviewed the information in this report, and based on the nature of the incident described[,] I have determined that this should be referred to the Committee on Standards.

Def.’s Exh. 5 at 2. That letter describes its attachments,

including, inter alia, a “letter explaining the allegations,” a

copy of the Safety and Security report, an explanation of

resources for navigating the Committee on Standards process, and

a “Statement of Understanding.” Id. The Statement of

Understanding sets forth two allegations:

(1) I violated the Dartmouth Standard of Conduct II through repeated behavior targeted at an individual during the Spring 2017 terms; and

(2) I violated the Dartmouth Standard of Conduct VI when I violated local, state or federal law by not observing the conditions of a restraining order on or about May 4, 2017.

12 Def.’s Exh. 6.

In the second enclosed May 10 letter (presumably, the

referenced “letter explaining the allegations”), Knowlton-Young

wrote:

Specifically, it is alleged that on or about May 4, 2017[,] you communicated with parties in violation of a restraining order which had been issued for previous behavior that was threatening or harassing. This continued contact in violation of the restraining order, if true, would be in violation of Standards II and VI.

Def.’s Exh. 6 at 4. That letter continues, “if you are found

responsible for this violation, a likely outcome would be

suspension.” Id.

B. Anderson Requests Delay of Proceedings

On May 18, 2017, Anderson emailed Strong, requesting that

his disciplinary proceeding be delayed until the criminal

charges against him were resolved. Def.’s Exh. 7. Strong

responded, “I cannot allow you an indefinite delay on responding

to the allegations while continuing as a student at Dartmouth.

You may finish out the Spring term, but you will need to resolve

the judicial case prior to returning to Dartmouth.” Id.

Anderson understood that, “to remain enrolled, [he] would . . .

have to undergo a COS hearing, . . . where the allegations which

13 had been raised against [him] would be evaluated.” Def.’s Exh.

39 at 75:21-76:3.

Despite that understanding, Anderson did not attempt to

resolve the disciplinary charges against him until September 4,

2017, when he emailed Clemens and Knowlton-Young:

I’m coming back to school next week and just remembered I’d been told I might have to go through a school hearing before classes start in the fall. I just wanted to write and confirm you got the letter [from] my lawyer with the results from the court hearing, and see if I still need to go through this based on the information it contains.

Def.’s Exh. 8. Anderson also asked, “is there any way I could

do [the judicial hearing] over the phone/skype to minimize how

much this will distract me during the start of fall term?”. Id.

Knowlton-Young responded to Anderson on September 5, 2017,

reiterating that Anderson’s case “need[ed] to be resolved prior

to . . . returning to campus.” Def.’s Exh. 9 at 1. “You still

need to go through the COS hearing[,] whatever the outcome of

your court process,” Knowlton-Young wrote. Id. Knowlton-Young

instructed Anderson to complete and submit the Statement of

Understanding, which had been provided to him on May 10, and,

once the Statement of Understanding was completed, the COS

hearing would be scheduled. Id.

14 Anderson returned the Statement of Understanding on

September 10, 2017, denying both allegations. The next day,

Knowlton-Young informed Anderson that his COS hearing would be

held on September 21, 2017, and identified the members of the

COS hearing panel. He invited Anderson to submit written

materials for inclusion in the case packet. Anderson did not

submit any materials. Anderson received a copy of the case

packet on September 19, 2017, along with an updated list of COS

hearing panel members.

C. September 21, 2017, Hearing

At the September 21, 2017, hearing, Anderson was questioned

about the communications he had sent to his ex-girlfriend that

led to the issuance of the March protective order, and he

“attempted” to answer those questions. Def.’s Exh. 39 at 85:8-

10. After being questioned, Anderson gave a final statement to

the hearing panel. Id. at 88:6-8.

The COS panel deliberated, and found that Anderson had

violated Standard of Conduct II. The panel imposed a sanction

of separation from the college, effective immediately. Def.’s

Exh. 15. Dan Nelson, the Chair of Anderson’s panel, met with

him on September 22, 2017, and told him the panel’s decision.

In a letter sent that day, also notifying Anderson of the COS

decision, Strong notified Anderson of his right to request

15 review, and that any request for review had to be submitted by

September 29, 2017.

D. Anderson’s First Request for Review

On September 25, 2017, Anderson emailed the JAO, requesting

“documents with information regarding the nature of the

committee’s decision.” Def.’s Exh. 17. In response, Strong

emailed Anderson a copy of the “Case Note” from his hearing,

which sets forth “the rationale for the committee’s decision in

finding [him] responsible and in determining [his] sanction,”

written by Nelson. Id.

After requesting and receiving extensions of the September

29, 2017, deadline, Anderson submitted his request for review on

October 4, 2017. He wrote that the COS’s decision should be

reversed because he had not been given reasonable notice of the

“substance of my allegations from the school, because my

advisors and I were able to come to the conclusion . . . that

the COS committee put me on trial for a specific set of actions

I’d committed during the Spring term, which did not encompass

the things I’d done during the Winter term while I was home.”

Def.’s Exh. 19. Therefore, Anderson argued, he had not had an

opportunity “to ‘admit’ or ‘deny’ the allegations [he] was found

guilty of [and] it wasn’t possible for [him] to know exactly

16 what information it was important for me to provide to the

committee.” Id.

Anderson’s request for review was considered by Rebecca

Biron, Dartmouth’s Dean of the College. After considering the

materials summited to the COS panel and Anderson’s request for

review, Biron granted Anderson’s request, and directed that a

new COS hearing be held. Biron explained:

You have asserted that a discrepancy between the allegation letter you received on May 10, 2017[,] and the hearing committee’s focus during their process constitutes a procedural error that materially prejudiced your case. The allegation letter states that “it is alleged that on or about May 4, 2017, you communicated with parties in violation of a restraining order, which had been issued for previous behavior that was threatening or harassing. This continued contact in violation of the restraining order, if true, would be in violation of Standards II and VI.” The materials in the case packet and the recording of the hearing indicate that the Committee on Standards did not limit their consideration to your actions on or about May 4. In finding you responsible for violating Standard II, the hearing committee focused on the connection between your May 4 communication in violation of the restraining order and “previous behavior that was threatening or harassing” over time between February 28 and May 4, 2017. This focus does not by itself constitute a procedural error. Rather, it is a reasonable interpretation of the phrase “continued contact” to consider the violation of the restraining order in the context of the entire course of the communications from February to May.

However, you assert that your own understanding was that the allegation letter and statement of understanding concerned only behavior on May 4. You write in your request for the review (page 2) that “if this error had not occurred and the substance of the

17 allegations against me were communicated with the care and attention to detail that students hope and assume this school will put into things like these, I would have admitted to the allegations of having committed a violation of Standard of Conduct II during the Winter term.” This statement demonstrates that the discrepancy you perceived between the allegation letter and the committee’s focus did significantly affect your response to the allegations, both in your denial of responsibility and in the way you answered questions during the hearing.

Def.’s Exh. 20, at 2-3.

Biron further wrote, because “it appears that there is

sufficient evidence to support the sanction that was imposed,

you will remain not enrolled and are not allowed on campus,”

while the matter remained pending. Id. at 3. Finally, because

of Anderson’s repeated references in his request for review to

his “emotional distress,”2 Biron encouraged him to seek out “all

the counseling and advising resources available . . . for

support.” Id.

E. Pending Second COS Hearing

Anderson was informed of Biron’s determination on October

26, 2017. The next day, Strong sent Anderson a new allegation

letter, which stated: “it is alleged that you engaged in

2 Anderson writes that, at the time, “plaintiff was in no regular state of mind, planning how to end his life as painlessly as possible if certain circumstances arose, was constantly sleep deprived, unable to eat, and experiencing regular stress[-]induced chest pains.” Pl.’s Opp. to Motion for Summary Judgment at 21.

18 harassing behavior or conduct targeted at an individual in

January, February and March of 2017. Additionally, it is

alleged that you violated a restraining order on or about May 4,

2017.” Def.’s Exh. 21. The first allegation in the Statement

of Understanding attached to the October 27 allegation letter

was also modified to state: “I violated the Dartmouth Standard

of Conduct by engaging in harassing behavior or conduct targeted

at an individual in January, February, March, and/or May of

2017.” Id.

Anderson was distressed by the new allegations. He

believed that, in the October 27 letter, Dartmouth was raising

allegations against him – allegations relating to his misconduct

in January, February, and March, 2017 – that the JAO had

previously considered in March, 2017, and determined not to

warrant a formal disciplinary process. To Anderson, it seemed

that the JAO was impermissibly re-visiting its earlier

determination, and reaching a different conclusion.

On November 1, 2017, Anderson emailed Phillip Hanlon, the

President of Dartmouth College, attaching a 22-page letter,

imploring President Hanlon for assistance. Anderson forwarded

that email to Strong, and his advisor, Anne Hudak, requesting a

delay of his second hearing until “the matters I’ve written

19 about in the letter” to President Hanlon “have been resolved.”3

Def.’s Exh. 23 at 2.

Strong responded the following day. She wrote:

I have reviewed your petition and have significant concerns about your ability to engage in the judicial process at this time. I am asking that you meet with someone from Counseling and Human Development (or a practitioner approved by that office) and sign an appropriate waiver so that they can confirm your ability to engage in the process. Until you have completed this evaluation and we are notified of your ability to participate, we will not move forward.

Def.’s Exh. 23 at 2. Anderson emailed Strong that he

understood. Id.

On November 9, 2017, Strong again emailed Anderson. She

noted that she had been informed Anderson was pursuing treatment

options through the College’s counseling department (“CHD”), and

that CHD had recommended that his hearing be delayed while

Anderson pursued those treatment options. Strong asked Anderson

to respond to her by November 14, 2017, either: (1) confirming

that he would be pursuing treatment options through CHD; or (2)

completing the Statement of Understanding, along with written

refusal to pursue CHD treatment options. Def.’s Exh. 24. at 2-

3 Anderson’s request for President Hanlon’s intervention was denied, as were his later, similar requests to the Provost. He was told that his COS hearing was the proper venue for proceeding, and was encouraged to work with the Judicial Affairs Office. See, e.g., Def.’s Exh. 27 at 3, 5.

20 3. Strong wrote that Anderson’s failure to respond “will result

in your Immediate Temporary Suspension.” Id. at 3.

Anderson responded on November 15, declining both options.

He told Strong that he had met with CHD counselor Mark Reed, who

told Anderson he was entitled to additional time if necessary.

Strong responded that, because Anderson declined both options,

and had not requested an extension, she would move forward with

scheduling his hearing, and that the College was “enacting an

Immediate Temporary Suspension.” Id. On November 16, Anderson

was sent formal notice of the Immediate Temporary Suspension.4

Anderson’s CHD counselor, Mark Reed, emailed Strong on

November 17, recommending that Anderson take a medical leave.

Strong agreed that, if Anderson took medical leave, his status

with the College would no longer be “suspended.” But, Anderson

decided not to take a medical leave. Strong followed up on

November 20, 2017, and again on November 21. In her November 21

email to Anderson, Strong explained that his current status was

“suspended,” pending a COS hearing, and that she would be moving

forward with scheduling that hearing.

4 Anderson vigorously disagrees with defendant’s characterization of his suspension, and argues that Strong later admitted “that she imposed this sanction upon the plaintiff to remedy procedural issues that had arisen as the result of the unprecedented disciplinary procedures Dartmouth subjected the plaintiff to.” Pl.’s Opp. to Mot. for Summary Judgment at 23.

21 Anderson then requested a delay of his COS hearing in order

to file a lawsuit against Dartmouth. Def.’s Exh. 29 at 2.

Strong responded, “Dartmouth will be happy to consider such a

request when a lawsuit is filed, although the hearing may

proceed even if you file a lawsuit. In the meantime, we will

proceed with scheduling as I advised you yesterday.” Id.

Anderson’s COS hearing was scheduled for January 8, 2018.

He was informed of that fact by letter dated December 8, 2017.

Along with the date of the hearing, Anderson was given the names

of the COS members who would be sitting on the panel,5 and

invited to submit materials for inclusion in the case packet by

December 15, 2017. Dartmouth agreed to pay Anderson’s travel

expenses to attend the hearing (Anderson had returned to his

home state of Washington).

After his first COS hearing but before his second, Anderson

repeatedly reached out to the President’s Office, requesting

that the office intervene on his behalf. He also reached out to

5 The COS panel voting members assigned to Anderson’s January, 2018, hearing were not the same as the voting members assigned to his first hearing. Plaintiff disagrees, but the evidence he offers in support -- testimony and emails from JAO staff members and Dartmouth’s legal counsel that suggests those staff members and counsel were involved in the administration of both hearings – does not support his position.

To be clear, certain Dartmouth employees may have participated in the administration of both COS hearings. But, none of those employees were voting members of the COS panels.

22 the college’s Provost with a similar request. Dartmouth

characterizes Anderson’s behavior as “a campaign of harassment

against a variety of Dartmouth officials,” but Anderson insists

he was simply pursuing assistance as suggested to him by his CHD

counselor, Mark Reed, and other Dartmouth employees. Pl.’s Opp.

to Mot. for Summary Judgment at 25. Dartmouth eventually issued

a “no contact” order against Anderson, which, Anderson says,

prevented him from “acquiring information about his own case, or

using the institution’s own mechanisms to encourage its

compliance with its own written policies.” Id.

In any event, Anderson did not submit materials for

inclusion in the case packet by the December 15 deadline. On

December 21, he emailed Knowlton-Young, requesting additional

time to submit materials. He wrote:

it has been virtually impossible for me to complete these materials, or prepare what I need to submit to the COS before my hearing, because my time in the past few months has been spent primarily trying to prevent employees of the College from causing me additional harm, or get them to provide me information which I have been promised.

Def.’s Exh. 32 at 2. Knowlton-Young emailed Anderson back,

reminding him that the deadline to submit a written statement or

materials for inclusion in the case packet had passed, but:

if you submit materials prior to the case packet being sent out to the COS[,] they would be considered for inclusion at the discretion of the Hearing Chair, and

23 may not be included. Please send any materials you want to be included in the packet as soon as possible. Please be aware that as Anne [Hudak] and I communicated in our last conversation with you, the COS Chair will only be allowing materials or discussion of information related to the allegations and associated behavior.

The COS is not a venue for addressing your concerns about the previous hearing or concerns with College procedures.

Def.’s Exh. 32 at 2.

On January 2, 2018, Anderson submitted materials for

inclusion in the case packet, and the Statement of

Understanding. He listed as witnesses Clemens, Strong, Biron

and Dartmouth’s legal counsel, Kevin O’Leary. Dartmouth Senior

Associate Dean of Student Affair’s Liz Agosto, who was serving

as Chair of Anderson’s second COS hearing, reviewed Anderson’s

submission, and selected a portion for inclusion in the packet.

The case packet was circulated to COS panel members and Anderson

on January 4, 2018.

F. Second COS Hearing

Anderson’s hearing proceeded as scheduled on January 8,

2018, with one exception: Agosto, the scheduled Chair, was ill,

and could not attend the hearing. Katherine Burke served as

substitute Chair. After familiarizing herself with the case

packet, Burke met with Anderson in advance of the hearing, and

they discussed the materials Anderson had submitted for

24 inclusion in the case packet. Burke explained that the hearing

would be focused on Anderson’s alleged conduct, and determining

whether that conduct violated the school’s Standards of Conduct.

Def.’s Exh. 41 at 2-:4-14.

Anderson became “very upset and agitated” when Burke told

him that the hearing would be focused on his behavior in

January, February, March and May, rather than on his concerns

regarding the application of Dartmouth’s disciplinary process.

Id. at 22:3-15. Although he had been instructed to the contrary

(see, e.g., def.’s exh. 32 at 2), Anderson still believed he

would have the opportunity to raise his concerns during the COS

hearing. Burke offered to reschedule the hearing, but, after a

break, Anderson was able to proceed. Def.’s Exh. 41 at 22:16-

23:21.

The Committee first considered whether Anderson had

violated the College’s Standards of Conduct. Anderson admitted

that he had violated Standard of Conduct II. See Def.’s Exh. 39

at 112:23-113:18. The Committee concurred. See Def.’s Exh. 41

at 30:11-22. At the hearing, Anderson expressed his

“frustration with the College,” and he called Clemens as a

witness regarding their April, 2017, meeting concerning the

protective order. Def.’s Exh. 36 at 5. According to the Case

25 Note, Clemens “gave a different account of their interaction.”

Id.

The Committee ultimately determined that, “given the nature

of the behavior,” Anderson’s violation “was behavior that should

lead to permanent separation from the college.” Def.’s Exh. 41

at 32:3-6. The Case Note explains:

Despite [Anderson’s] assertion that he accepted responsibility and described his behavior as the “worst thing” he’d ever done, the student’s other statements led the Committee to believe that he felt his actions during this period were justified, and that the [ex-girlfriend], her family and Dartmouth were to blame. Under the circumstances, the panel expressed concern for the safety and security of the Dartmouth community if the student were to continue his education here. They did not believe that a long period of suspension would be appropriate given the severity of the behavior, or that it would be effective in protecting the community.

Def.’s Exh. 36. at 5.

Anderson was informed of the COS’s decision on January 9,

2018, and he received written confirmation of its decision on

January 11, 2018.

G. Anderson’s Second Request for Review

On January 23, 2018, Anderson requested review of his

second COS hearing. With his request for review, he attached

the documents he had submitted for inclusion in the case packet.

26 Anderson’s request was submitted to David Kotz,6 the interim

Provost for the college at the time of the second hearing. Kotz

denied Anderson’s request, and upheld the COS decision.

H. Anderson Initiates Civil Action

Anderson filed suit on January 30, 2019, asserting 12

claims: breach of contract, breach of the covenant of good faith

and fair dealing, violation of Title IX, negligence, negligent

infliction of emotional distress, intentional infliction of

emotional distress, estoppel and reliance, unfair and deceptive

trade practices, negligent training and supervision of

employees, fraudulent misrepresentation, fraudulent concealment,

and request for equitable relief in the form of declaratory

judgment. Dartmouth has moved for summary judgment as to all of

Anderson’s claims against it.

6 Anderson contends that Biron was involved in the denial of his second request for review, because she provided guidance to Kotz regarding the review process. But, Anderson points to no evidence that might support a finding that Biron influenced Kotz’s decision in any way. The record evidence is to the contrary. Biron testified that she did not discuss any aspect of Anderson’s first hearing or first appeal with Kotz, and provided no “other details or information regarding Mr. Anderson’s disciplinary case or any other topic.” Def.’s Exh. 45 at 21:2-19.

27 DISCUSSION

1. Breach of Contract

Under New Hampshire law, which applies here, the

relationship between a student and his or her college is

contractual in nature. See Gamble v. Univ. Sys. of New

Hampshire,

, 12–13 (1992).7 “The proper interpretation

of a contract is a question of law for the court, and the

contract's proper meaning will be determined based on the

meaning that would be attached to it by reasonable persons.”

(internal quotations omitted). However, as the New

Hampshire Supreme Court noted, “the relationship between a

university and its students is distinctive . . . and a strict

doctrinal approach is inappropriate.”

at 12–13 (citations

omitted). ”Thus, although the first step of analysis is to

examine the language of the contract under the basic tenets of

contract law, the parties' unique relationship must also be

considered.”

Anderson contends that Dartmouth breached its obligations

under the Student Handbook. His arguments are generally

premised on his contention that the college violated its

7 The parties agree that New Hampshire law applies to the dispute. See Pl.’s Opp. to Mot. for Summary Judgment at 37-38; Def.’s Mot. for Summary Judgment at 20.

28 contractual obligations when the JAO revisited and reversed its

determination in March, 2017, that Anderson’s conduct prompting

the issuance of the protective order did not warrant formal

disciplinary action. More specifically, he says that, by doing

so, Dartmouth failed to comply with the Handbook’s provisions

that, “[t]he JAO shall determine whether complaints or other

information concerning a student shall result in formal

disciplinary allegations,” and that “hearings will be scheduled

as soon as possible after an incident.” Pl.’s Opp. to Mot. for

Summary Judgment at 41.8

Anderson’s arguments are not persuasive. First, it is not

reasonable to read the Handbook’s provision that “the JAO shall

determine whether complaints or other information concerning a

student shall result in formal disciplinary action” as

precluding the JAO from initiating formal disciplinary action in

the circumstances described.9 Anderson’s expectations arise from

his view that his misconduct must be considered in isolation,

8 Anderson also repeatedly argues that the college “violated its own policies,” but fails to describe the policies allegedly violated. 9 Anderson’s reliance on his conversation with Clemens in April, 2017, is misplaced. Even assuming the veracity of Anderson’s version of what occurred during their meeting, the record makes evident that Clemens had no role in the adjudicatory process. The Handbook plainly vests authority to determine whether to issue disciplinary allegations with the JAO.

29 and not in context. The record makes clear, however, that

Anderson engaged in a problematic course of conduct over several

months, conduct that continued through May, 2017, when he was

arrested and charged with violating a protective order.

Violation of the protective order was, of course, conduct

directly related to the conduct that resulted in the order’s

issuance.

Anderson correctly notes that the JAO initially learned of

his misconduct in March, 2017, when the protective order was

issued. Anderson also correctly notes that the JAO decided not

to initiate formal disciplinary action at that time. But,

Anderson ignores a critical fact: his harassing misconduct did

not cease in March, 2017. It continued, in that he violated the

order designed to prevent similar future harassment. While

plaintiff’s specific behavior that violated the protective order

may not have been as egregious as the conduct that led to its

issuance,10 violation of the protective order amounted to

continued harassment of his ex-girlfriend, and would surely have

been seen by her and her family as representing a threat of

future ongoing harassment. Given Anderson’s continued course of

10 The communications Anderson sent that led to the issuance of the protective order included appalling language, and disturbing threats that need not be repeated here. It is sufficient to note that the victim was justifiably concerned, the protective order was unarguably warranted, and the subsequent violation was, in context, serious.

30 harassing misconduct, Dartmouth’s reevaluation of whether to

initiate formal disciplinary action with respect to Anderson’s

earlier behavior was entirely reasonable.

Thus, Anderson mistakenly argues that, in May, 2017, the

college, “arbitrarily re-evaluate[d the] exact same evidence

under different standards and [came] to different conclusions.”

Pl.’s Opp. to Summary Judgment at 2. The evidence before the

JAO in May, 2017, was not the “exact same” evidence as existed

in March, 2017. In May, 2017, the JAO was reviewing evidence

tending to show that not only had Anderson engaged in harassing

behavior, but he had refused to stop harassing his ex-

girlfriend, despite a court order instructing him to stop. As

Dartmouth writes, when Anderson violated the protective order

aimed at curing the threat he posed, “the landscape changed.”

Def.’s Reply in Supp. of Mot. for Summary Judgment at 3. The

college explains: “A pattern of inappropriate conduct had

continued, and Plaintiff had not been able to let go of his

animosity.” Def.’s Mot. for Summary Judgment at 22. And, the

“continuing nature of the behavior and involvement of the police

put Plaintiff’s conduct in a more serious light.”

.

Anderson’s objection to the timeliness of the JAO’s

decision to initiate formal action in May, 2017, is also

unpersuasive. The record makes clear that Dartmouth initiated

31 formal disciplinary action against Anderson six days after

receiving notice of his violation of the protective order. That

violation, as discussed, changed the landscape, sending a clear

message that Anderson was still harassing his ex-girlfriend.

Def.’s Reply in Supp. of Mot. for Summary Judgment at 3. And,

any delays in the disciplinary process that followed are

attributable to Anderson’s own requests for delay, or his

failure to timely comply with his obligations under the

Handbook.

Anderson also argues that Dartmouth breached its

obligations under the Handbook because the October, 2017,

allegations the JAO raised against him in advance of his second

hearing were “entirely new allegations,” and “materially

different in substance than those . . . raised before the

plaintiff’s first [hearing].” Pl.’s Opp. to Mot. for Summary

Judgment at 43-44. According to Anderson, the May, 2017,

allegations did not include his early-2017 conduct that gave

rise to the issuance of the protective order, while the October,

2017, allegations did. Anderson says the JAO had previously

determined his earlier conduct did not necessitate the

initiation of formal disciplinary action. He again argues that

the JAO’s reconsideration of its March, 2017, decision, and its

May, 2017, inclusion of allegations that related to his conduct

32 in January, February, and March, 2017, is “not permitted by the

College’s policies,” and was arbitrary and capricious.

However, as a preliminary matter, the May, 2017,

allegations and the October, 2017, allegations are not, as

Anderson contends, “materially different.” Anderson’s argument

is premised on his contention that the May, 2017, allegations

related only to Anderson’s violation of the protective order in

May, 2017, and his arrest. But, he misreads the May, 2017,

allegations. While the May, 2017, letter accompanying the

Statement of Understanding is not a model of clarity, the May,

2017, Statement of Understanding is clear. It states: “I

violated the Dartmouth Standard of Conduct II through repeated

behavior or conduct targeted at an individual during the Spring

term.” Def.’s Exh. 6 at 5 (emphasis added). Fairly read, that

allegation encompasses Anderson’s conduct that led to the

issuance of the protective order.

Nevertheless, after Anderson complained that there had been

a “discrepancy between the allegation letter” and the focus of

the hearing committee, and recognizing that “Plaintiff’s

subjective perception of the allegations may have prevented him

from participating fully,” Biron generously granted Anderson’s

request for review, relying on his declared subjective

misunderstanding in providing for a new hearing at which he

33 would be fully and accurately informed of the charges against

him. Def.’s Exh. 20. Anderson received an entirely new COS

hearing.11 At that point, the October, 2017, allegations were

revised and made very clear, resolving Anderson’s complaint.

The October, 2017, allegations made explicit what ought to have

been apparent in May, 2017: at issue before the COS was

Anderson’s continuing course of harassment and misconduct. In

other words, the revised allegations clarified that the issue

was not just Anderson’s violation of the protective order, but

his violation of that order in the context of his earlier

conduct.

Anderson also argues that Dartmouth breached the Handbook

because, at his second hearing, he was not permitted to share

“information with the COS on subject matter relevant to

sanctioning decisions” – information that he had been told by

Dartmouth employees he would have an opportunity to share.

. On that point, the Handbook is unambiguous: “the Chair

is empowered to make all procedural rulings, including rulings

on relevance and admissibility of information.” Def. Exh. 1 at

p. 17. Indeed, Anderson was reminded of that situation on at

11 Anderson’s contention that the October, 2017, allegations and the January, 2018, hearing were untimely is a non-starter: the timing was entirely a function of Anderson’s successful request for review and relief.

34 least two occasions. See Def’s Exh. 30, Def.’s Exh. 32. And,

he testified that he was “aware there’s something to that effect

in the student handbook.” Def.’s Exh. 39 at 45:21-23. Given

the Handbook’s express language, any expectation Anderson had to

the contrary was not reasonable.

Finally, Anderson contends that the outcome of the COS

hearing was wrong, because “the decision was based on . . .

evaluation of [information] . . . the JAO had evaluated about 6-

months prior to plaintiff’s first disciplinary hearing, and

determined it was not appropriate to raise formal disciplinary

allegations upon this review.” Pl.’s Opp. to Mot. for Summary

Judgment at 46. That argument has been addressed, and need not

be revisited, except to point out that, if a student is found

responsible for violating a Standard of Conduct following a COS

hearing, the Handbook expressly permits the COS to consider “the

student’s conduct history” for purposes of determining the

appropriate sanction.12 Def.’s Exh. 1 at 22. Even assuming that

Anderson is correct in arguing that his conduct leading up to

the March, 2017, protective order was “off limits” at the COS

hearing, that conduct would be “off limits” only with respect to

finding a separate violation of the Standards of Conduct.

12 The Handbook provides that, in “Standards of Conduct cases, if a student is found responsible, the student’s conduct history may be considered for purposes of imposing an appropriate sanction.”

(Anderson of course admitted violating Standard of Conduct II at

the second COS hearing.) But, Anderson, having violated the

protective order (and, thereby, the Standards of Conduct), the

COS was expressly permitted by the Handbook to consider

Anderson’s “conduct history” in determining the appropriate

sanction. Def.’s Exh. 1 at 22. Anderson’s “conduct history”

included the behavior that led to the issuance of the protective

order, which he violated. So, any expectation Anderson had that

his “conduct history” was entirely off the table for COS

consideration was not reasonable.

Anderson has not sufficiently established any genuine

dispute of material fact with respect to Dartmouth’s compliance

with its obligations under the Handbook. Dartmouth is entitled

to judgment on plaintiff’s breach of contract claim.

2. Breach of the Covenant of Good Faith and Fair Dealing

As the New Hampshire Supreme Court recently reiterated,

“[i]n every agreement, there is an implied covenant that the

parties will act in good faith and fairly with one another.”

Skinny Pancake-Hanover, LLC v. Crotix,

, 379 (2019)

(quoting Livingston v. 18 Mile Point Drive,

(2009)). “New Hampshire does not merely have ‘one rule of

implied good-faith duty.’”

(quoting Livingston,

). Instead, New Hampshire “jurisprudence consists of a

36 series of doctrines, each of which serves different functions,”

and which “fall into three categories: (1) contract formation;

(2) termination of at-will employment; and (3) limitation of

discretion in contractual performance.”

(quotations

omitted).

Anderson generally contends that Dartmouth breached the

implied covenant of good faith and fair dealing by, inter alia,

mishandling his disciplinary proceedings, disproportionately

sanctioning him for his conduct, and by abusing its discretion

in a manner “antithetical to” its contracts and policies.

Compl. ¶ 192. In support of his claim, Anderson argues that the

college “attempted to lie and misrepresent its actions at every

step of the plaintiff’s disciplinary process,” and brought

charges against him “that it had previously determined it was

not appropriate to raise allegations.” Pl.’s Opp. to Mot. for

Summary Judgment at 50.

Anderson’s claims fall within the third category: “those

situations in which one party’s exercise of contractually-vested

discretion is subject to an implicit limitation in the

performance of its contractual obligations.” Lizzol v. Bros.

Prop. Mgmt. Corp., No. 15-CV-100-SM,

, at *5

(D.N.H. Sept. 6, 2017).

37 [A]s the New Hampshire Supreme Court has observed, that “third category is comparatively narrow.”

(quoting Livingston,

). Nevertheless, the court noted, “its broader function is to prohibit behavior inconsistent with the parties’ agreed-upon common purpose and justified expectations, as well as with common standards of decency, fairness, and reasonableness.

(citation and internal punctuation omitted). In the context of this case, the implied covenant of good faith and fair dealing serves to preclude one party from exercising its contractually- vested discretion in a manner that would “thwart a reasonable expectation of the other party, going to the essence of the contract.” Centronics [Corp. v. Genicom Corp.,

(1989)].

Lizzol,

, at *5 (emphasis in original).

Dartmouth is entitled to judgment on Anderson’s claim

because Anderson fails to adequately establish any genuine

dispute as to a material fact with regard to whether the

college’s exercise of its discretion in the performance of its

obligations under the Handbook “exceeded the limits of

reasonableness.” Centronics,

. As discussed,

Anderson’s perception that his underlying conduct in early-2017

was completely off the table for consideration at his first COS

hearing was not consistent with a reasonable reading of the

Handbook or the Statement of Understanding. The college,

however, concerned that Anderson’s subjective belief in that

regard might have adversely affected his defense, and in an

abundance of caution, granted Anderson a new COS hearing to

ensure that he actually understood the allegations and could

38 offer a responsive defense. During that new hearing, Anderson

doggedly insisted that the college could not bring allegations

against him that related to his conduct in early-2017. The

“contract” does not support that view.

Given Anderson’s continued misconduct, Dartmouth’s exercise

of its discretion under the Handbook did not “exceed[] the

limits of reasonableness.” Centronics,

.

Dartmouth is entitled to judgment on Anderson’s good faith and

fair dealing claim.

3. Title IX Claim

Pursuant to Title IX of the Education Amendments of 1972,

“[n]o person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any education program or

activity receiving Federal financial assistance.”

(a). Gender-based challenges to college disciplinary

proceedings generally fall into two categories: “erroneous

outcome” and “selective enforcement.” Haidak v. Univ. of

Massachusetts-Amherst,

(1st Cir. 2019) (citing

Yusuf v. Vassar College,

(2d Cir. 1994)).

In support of his Title IX claim, Anderson alleges that

both the severity of the penalty imposed by Dartmouth, and the

College’s decision to initiate disciplinary proceedings were

39 affected by his gender. So, plaintiff’s Title IX claim falls

within both categories.

a. Erroneous Outcome

Plaintiff’s “erroneous outcome” theory of liability is

quickly dispatched. The “applicable standard for [a] Title IX

claim challenging [Dartmouth’s] disciplinary procedures on

erroneous outcome grounds requires that a plaintiff offer

evidence” that casts “some articulable doubt on the accuracy of

the outcome of the disciplinary proceeding,’ and indicating that

‘gender bias was a motivating factor.” Doe v. Trustees of Bos.

Coll.,

(1st Cir. 2018) (quoting Yusef v. Vassar

College,

(2d Cir. 1994)).

Anderson says his Title IX claim is not focused on “the

subjective decisions of the COS members who attended these ill-

conceived hearings, as he has no reason to believe their

decisions (though made under the guidance of biased Dartmouth

employees) were motivated by gender bias.”

Anderson thus

concedes he has no basis to argue gender bias on the part of

those COS voting members who determined he violated the

college’s Standards of Conduct. Instead, he argues that the COS

voting members’ decisions were influenced by biased Dartmouth

employees.

40 First, Anderson fails to show that a genuine issue of

material fact exists with respect to whether the outcome of his

disciplinary proceeding was plainly erroneous. He fails to

point to evidence that suggests any Dartmouth employees

improperly influenced the COS voting members. While Anderson

complains that certain Dartmouth JAO employees and legal counsel

were involved in the preparation of materials for the case

packet, that involvement is not sufficient to support a claim of

improper influence. The Handbook obligates the JAO to prepare

the case packet. Def.’s Exh. 1 at 14. Finally, and more

critically, the record lacks any evidence to support a claim

that any purported “bias” was gender-based, let alone the

“motivating factor.” Doe,

. In other words, “the

record does not show that even if there was an interference,

gender bias was a motivating factor.”

.

b. Selective Enforcement

To succeed on a Title IX claim for selective enforcement,

Anderson must show that “the severity of the penalty and/or the

decision to initiate the proceeding was affected by the

student's gender.” Haidak,

(citations omitted).

Anderson contends that he was treated more severely than

female students, who were either not formally charged, or not

separated from the College, for “the same behavior.” Compl. ¶

41 201. So, Anderson “alleges that both the decision to initiate

charges and the penalty imposed were affected by his sex.”

Haidak,

.

As Dartmouth points out, however, the record contains no

evidence that would support a finding that “gender bias was a

motivating factor’ in the disciplinary process.” Haidak,

(quoting Yusef,

). There is no genuine

dispute of material fact. Anderson “concedes [that] part of his

complaint here is based upon information he heard from

student[s] involved in incidents at Dartmouth, and [he] both

was, and remains ignorant of the College’s private disciplinary

records and decisions.” Pl.’s Opp. to Mot. for Summary Judgment

at 53. Anderson says his ignorance is a function of Dartmouth’s

refusal to produce that information in response to discovery

requests. Dartmouth answers that Anderson has been provided

with responses to interrogatories that concerned other students,

sufficient to enable him to “test his claims.” Def.’s Reply in

Supp. of Mot. for Summary Judgment. And, Dartmouth says,

Anderson had the opportunity to seek testimony on this topic

during depositions of several Dartmouth employees, but did not

do so.

The discovery deadline, extended at Anderson’s request, has

expired. He did not move to compel additional discovery from

42 Dartmouth that might support his claim. And, Anderson had an

opportunity to supplement the summary judgment record to provide

additional evidentiary support for his Title IX claim. He has

not done so. Instead of particularized evidence of gender bias

in his case, or evidence of systemic gender bias by Dartmouth,

Anderson offers mere speculation and hearsay, both of which are

plainly insufficient to create a triable issue of fact.

Finally, in further support of his Title IX claim, Anderson

contends that Biron, who authored an article entitled, “Behind

Closed Doors: Rape, Murder, and The Misplaced Confidence of

Men,” holds the “belief that men are inherently violent.”

Compl. ¶ 203; Pl.’s Opp. to Mot. for Summary Judgment at 54.

Thus, he argues, Biron is an “unfit adjudicator of cases such as

the plaintiff’s, and it is clear that the possibility of

plaintiff receiving fair treatment from Dean Biron at the

request for review phase of his disciplinary proceedings was

non-existent.” Pl.’s Opp. to Mot. for Summary Judgment at 54.

His argument concerning Biron’s purported bias is not

persuasive because, as Dartmouth responds, (1) Anderson submits

no evidence that might support a finding that Biron was at all

involved in either the JOA’s decision to initiate formal

disciplinary action against Anderson, or the COS’s determination

43 of an appropriate sanction; and (2) Biron granted Anderson’s

first request for review, and allowed him a new hearing.

For all the above reasons, Anderson has not sufficiently

established a genuine issue of material fact with respect to his

Title IX claim. Dartmouth is entitled to judgment on Anderson’s

Title IX claim.

4. Estoppel and Reliance

“Promissory estoppel is a doctrine used ‘to enforce

promises when consideration is lacking, ... to enforce promises

underlying otherwise defective contracts and promises made

during the course of preliminary negotiations.’” Beaulac v. All

Sys. Satellite Distributors, Inc., No. 17-CV-162-JD,

, at *2 (D.N.H. Oct. 19, 2017) (quoting Great Lakes

Aircraft Co., Inc. v. City of Claremont,

(1992)). New Hampshire law is clear: “application of promissory

estoppel is appropriate only in the absence of an express

agreement.” Great Lakes,

.

In support of its motion for summary judgment on Anderson’s

estoppel and reliance claim, Dartmouth contends that, because a

contract exists between Anderson and Dartmouth (embodied in the

Student Handbook), Anderson’s claim must be dismissed. Anderson

44 responds that his estoppel claim falls outside the Handbook, and

is instead based on:

(1) his “assumption that Dartmouth would adhere to its own rules and perform its disciplinary hearing procedures in a manner consistent with others that have occurred at the college,” and not revisit its March, 2017, disciplinary decision; and

(2) “the promise that if plaintiff were subjected to its disciplinary procedures, that these procedures would be performed in accordance with the institution’s own written advertised policies.”

Pl.’s Opp. to Mot. for Summary Judgment at 60. In reliance on

those promises, Anderson says, he “passed on opportunities at

comparably prestigious academic institutions” to attend

Dartmouth, and “continued to allocate funds towards attaining

additional credits at Dartmouth that could not be applied

towards attaining a degree elsewhere.” Id. at 59-50.i

As Anderson himself concedes, his estoppel claim is

premised on his assumption that Dartmouth would comply with its

disciplinary policies. Those policies are set forth in the

Student Handbook. In other words, the promises upon which

Anderson’s estoppel claims rest are found in the express

agreement: the Handbook. Dartmouth is entitled to judgment on

Anderson’s estoppel claim.

45 5. Unfair and Deceptive Trade Practices

In his Complaint, Anderson alleges that Dartmouth

“advertises that students who join the college will be treated

in accordance with its rules, policies, and the Student

Handbook,” and that students will be “granted opportunities to

have allegations they have not been treated in accordance with

said policies fairly and unbiasedly reviewed.” Compl. ¶ 233.

He further alleges, “in reality,” “Dartmouth is indifferent

towards such allegations regardless of their veracity, and

either knowingly refrains from acknowledging them, or is

reckless in its examination of such complaints.” Id. That

conduct, Anderson contends, is violative of New Hampshire’s

Consumer Protection Act.

New Hampshire’s Consumer Protection Act,

-A:2, provides that “[i]t shall be unlawful for any

person to use any unfair method of competition or any unfair or

deceptive act or practice in the conduct of any trade or

commerce within this state.” The Act lists several “actions

that fall within its prohibition, but that is not an exhaustive

list of prohibited methods, acts, or practices.” Moulton v.

Bane, No. 14-CV-265-JD,

, at *11 (D.N.H. Mar. 21,

2016) (citing ACAS Acquisitions (Precitech) Inc. v. Hobert,

(2007)). “If the challenged conduct is not listed

46 in RSA 358-A:2, to be actionable it ‘must attain a level of

rascality that would raise an eyebrow of someone inured to the

rough and tumble of the world of commerce.’” Moulton,

, at *11 (quoting Axenics, Inc. v. Turner Constr. Co.,

(2013)).

The New Hampshire Supreme Court “has consistently held that

inducing another to enter a contract based on a knowing

misrepresentation of the promisor's intent to perform under the

contract violates the CPA.” Derry & Webster, LLC v. Bayview

Loan Servicing, LLC, No. 14-CV-211-PB,

, at *6

(D.N.H. Dec. 29, 2014) (collecting cases). However, under New

Hampshire law, “[a]n ordinary breach of contract claim . . . is

not a violation of the CPA.” George v. Al Hoyt & Sons, Inc.,

(2011).

Anderson fails to point to any admissible evidence that

would support a finding that an inducement based on a knowing

misrepresentation occurred here. Rather, Anderson argues that

his CPA claim is based on Dartmouth’s purported failure “to

adhere to its own written policies.” Pl.’s Opp. to Mot. for

Summary Judgment at 61. In other words, Anderson contends that

Dartmouth breached its obligations under the Student Handbook.

Such an allegation – an ordinary contract claim – does not rise

to an actionable level of “rascality” under the Consumer

47 Protection Act. Dartmouth is entitled to judgment on Anderson’s

claim under New Hampshire’s Consumer Protection Act.

6. Fraudulent Concealment and Fraudulent Misrepresentation

Dartmouth is also entitled to judgment on plaintiff’s

fraudulent concealment claim. “In New Hampshire, ‘[t]he

fraudulent concealment rule states that when facts essential to

the cause of action are fraudulently concealed, the statute of

limitations is tolled until the plaintiff has discovered such

facts or could have done so in the exercise of reasonable

diligence.’” Sykes v. RBS Citizens, N.A.,

(D.N.H. 2014) (quoting Beane v. Dana S. Beane & Co., P.C.,

, (2010) (further quotations omitted)).

Anderson has not shown that the doctrine is applicable here.

See Rowe v. John Deere,

(1987) (“This simple

statement of the rule would appear to preclude, on its face, the

application of the rule to the present fact situation. The

claim raised here is not that the plaintiff was unaware of

either his injury at the time it occurred or the causal relation

between his damages and the allegedly negligent manufacture of

the manure spreader[.]”)

To prevail on his fraudulent misrepresentation claim (a

claim for intentional misrepresentation or fraud), Anderson must

48 establish: (1) that Dartmouth made a factual misrepresentation;

(2) with knowledge of its falsity or with a conscious

indifference to its truth; (3) with the intention that he rely

on that misrepresentation; (4) that he did justifiably rely, to

his detriment, upon that misrepresentation; and (5) that he

suffered compensable damages as a consequence. See, e.g.,

Ridlon v. N.H. Bureau of Secs. Regulation,

, 426

(2019); Patch v. Arsenault,

(1995).

Anderson argues that Dartmouth:

advertises it will adhere to its own written policies to create the impression or expectation of certain levels of fairness, and gives students the ability to anticipate how the institution might act. However, Dartmouth does not intend to uphold these policies.

Pl.’s Opp. to Mot. for Summary Judgment at 64. But, Dartmouth

did adhere to its written policies concerning disciplinary

procedures.13 Anderson’s mere unsupported contentions to the

contrary are insufficient to defeat Dartmouth’s properly

supported motion for summary judgment.

13 To the extent that Anderson contends that certain Dartmouth employees made other factual misrepresentations, he fails to adequately or plausibly identify those misrepresentations with the requisite specificity.

49 7. Tort-based Claims: Negligence, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligent Training and Supervision

Dartmouth says it is entitled to judgment on Anderson’s

tort-based claims because the only duty alleged is a “duty of

care, imposed . . . by [the college’s] policies and voluntary

undertaken, to conduct its disciplinary hearing procedures

fairly, consistently, and in accordance with Dartmouth’s own

rules and regulations.” Compl. ¶ 207. Thus, Dartmouth says,

plaintiff has alleged that the college was negligent because it

breached a duty to follow its policies and procedures. That is

not a claim for negligence, says Dartmouth, but is instead a

duplicative claim for breach of contract.

Plaintiff does not respond. Instead, he seemingly agrees

to dismissal of the following claims: negligence, negligent

infliction of emotional distress, intentional infliction of

emotional distress, and negligent training and supervision of

employees. He writes: “based on conversation between defense

counsel and [J]udge Steven J. McAuliffe during the pre-trial

conference, and subsequent readings by plaintiff which seem to

affirm the statements made there, it seems that contract and not

tort law is most pertinent and appropriate to apply to this

claim.” Pl.’s Opp. to Mot. for Summary Judgment at 58.

50 Accordingly, the court grants Dartmouth’s motion for judgment on

those claims.

8. Request for Declaratory Judgment

Anderson’s ninth claim is entitled “Equitable Relief in the

Form of Declaratory Judgment.” Compl. p. 52. He asks the court

to order Dartmouth to “revert to the decision it reached . . .

about April 4, 2017[,] to not impose a sanction upon or raise

disciplinary allegations against him based on its investigation

of the March 29 report, and overturn all subsequent decisions

Dartmouth made to sanction [him] based on these materials, and

in violation of Dartmouth’s policies;” to “refrain from

attempting to take further disciplinary actions against the

plaintiff based on materials in the March 29 report;” to

“reverse its finding that plaintiff violated its policies;” and

to “reinstate plaintiff as a student in good standing.” Compl.,

at p. 56.

Dartmouth is entitled to judgment on each of Anderson’s

claims. Anderson is not, therefore, entitled to declaratory or

injunctive relief.

CONCLUSION

For the foregoing reasons, as well as those set forth in

defendant's memoranda (documents no. 48 and 64), defendant's

51 Motion for Summary Judgment (document no. 48) is granted as to

all claims in plaintiff's complaint. The Clerk of Court shall

enter judgment in accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

December 4, 2020

cc: Mark Anderson, pro se Counsel or Record

52