A Massachusetts family recently scored a huge win for students against the Governor’s Academy (formerly known as the Governor Dummer Academy), a private New England high school, for breach of contract and violation of Title IX.
Lawsuits against private high schools are notoriously difficult. Private high schools can expel students arbitrarily because they have usually crafted their policies to safeguard their impunity in disciplinary matters. Public school children are protected by state expulsion statutes, guaranteed a free and appropriate public education, and shielded by constitutional rights to due process and free speech. By contrast, private schools usually restrict due process rights to a minimum and vest full discretion in the Headmaster. They also claim expansive power to micromanage students’ private lives and prohibit their expression. For this privilege, families pay tuition that often exceeds the average American family income. Private schools are doing this at the very time that the Supreme Court, for example in Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021), has set firm boundaries on public schools’ ability to micromanage students’ private lives and their speech.
I. The Governor’s Academy Arbitrarily Expels James over a Consensual Summer Fling
The Governor’s Academy is one such school. The school even tucked the following legalese into its Student Handbook to deny parents even the basic right to force the school to follow its own rules:
This Handbook is not intended to create, nor does it create a contract or part of a contract in any way, including, but not limited to, between the Governor’s Academy and any parent, guardian or student.
Located in the small town of Byfield on Massachusetts’ South Shore, Governor Dummer expelled “James Doe” (a pseudonym) in 2021 over a consensual sexual encounter with a fellow student. The incident took place over summer vacation at a 4th of July party in another state (New Hampshire). School was not even in session. James’ accuser, “Jill Roe,” accused him of sexual assault but did so many months after the alleged incident, and only after James appeared on campus in the fall with a new girlfriend.
Some facts were never disputed. James and Jill both went to the 4th of July party. Once there, Jill performed oral sex on James in a bathroom, and there was no accusation that this was not consensual. James, Jill, and many other students stayed over the night after the party and slept in a common attic room. That night, Jill took her clothes off, got on top of James under his comforter, and began rubbing her vagina on his penis. In the process, James’ penis slipped into her vagina, which he said was unintentional. For her part, Jill later claimed, although she had consented to James penetrating her with his fingers, James had replaced his fingers with his penis against her consent at least three times. When this happened, Jill pulled back, but she then resumed rubbing her vagina against James’ penis.
Nothing came of this encounter at the time, and students recalled the two behaving amicably the next morning. The two also exchanged friendly messages on social media. But when school started that fall, James began dating another student. About a month after that, Jill complained to the School’s administration that he “had non-consensual sexual contact with her” on the 4th of July.
The school immediately threw James off campus pending an investigation. But James was adamant that it was Jill’s movements, not his own, that caused his penis to briefly penetrate Jill, and he claimed that this was also proof that the actions were consensual. The school took this as an “acknowledge[ment] that he did not ask for, nor was he given, affirmative consent for penile penetration” and promptly expelled him. That is, even accepting James’ account as true, the school expelled him as a sex offender.
II. James Successfully Sued the School with an Experienced Title IX Attorney and Won
Not many people have the resources to sue a private school, but James’ family did. The Governor’s Academy moved to dismiss, arguing that no facts, even as James had pleaded them, could make a case against the school for exercising its discretion to do whatever it wanted in disciplinary matters. But — unusually for a private high school — the Governor’s Academy had also accepted federal funding, making it subject to Title IX.
Attorney Jeffrey Pyle of Prince Lobel represented James and his family, and the court found that he had the better argument. The Massachusetts Superior Court made several important rulings:
- The Handbook’s specific promises were enforceable as binding contractual promises between the parents/student and the school. Simply including language in a Student Handbook baldly stating, “this is not a contract,” does not make it so.
- The school breached its contractual promises to conduct an impartial investigation of Jill’s accusations. It breached its promise of “basic fairness” in its procedures. And it breached its promise not to discriminate on the basis of sex. The school violated these promises when it denied James a chance to respond to the investigator’s findings or appeal them, as well as when the investigator characterized “James’s version of events as an admission on his part of unconsented-to penile penetration,” which “was a distortion of his account . . . that Jill was the sexual aggressor, that it was her actions that had caused the brief penile penetration, and that such penetration was, for him, inadvertent and unintended.”
- James’ Title IX claim could also proceed. The Governor’s Academy argued that its Handbook required “that a verbal request and a responsive verbal assent be obtained before a progression to more intimate [sexual] activity occurs, regardless of who initiated the contact.” If the school strictly applied its own rules, given that the school allegedly accepted James’ statements as true, the school should have found Jill guilty of nonconsensual sexual activity, not James. Instead, the school chose to “put the onus on James [rather than on Jill], even under his version of the events, to obtain consent for an act that, by his account, he neither intended, initiated, nor caused.”
III. The Takeaways
One lesson from this decision is that private high schools now show the same dismal contempt, not only for due process but also for evidence itself, as institutions of higher education. This has now trickled down from institutions of higher education to private K-12 schools. Parents should examine school handbooks carefully before paying tuition. Families should know that their children will have fewer protections than at universities or colleges. This is because most private high schools do not accept federal funding and are therefore not subject to the law of Title IX, which (at least for the time being) mandates due process.
The trend is distressingly obvious and, unfortunately, widespread, as reflected in countless cases. The Governor’s Academy proceeded in the same way as prestigious Ivy League universities like Cornell. For example, in Vengalattore v. Cornell Univ., 36 F.4th 87 (2d Cir. 2022), Cornell’s Title IX bureaucrats also waved their magic wand and turned exculpatory evidence into its opposite. Vengalattore was a Cornell professor accused of coercing a graduate student into a secret sexual relationship. Cornell “determined that the lack of evidence supporting a year-long romantic relationship actually supported [the accuser’s] allegations [of a non-consensual sexual relationship], because common sense experience is that secretive relationships carried out by faculty members and students can be carried out without others . . . becoming aware.” Id. at 98. In other words, the absence of any evidence at Cornell somehow became affirmative evidence of Vengalattore’s guilt. In the same way, the Governor’s Academy took James’ own story as true and counted it against him as evidence of his guilt, despite his account that Jill had not only initiated the sexual activity but had caused the penetration without his consent.
At Cornell, the graduate student who accused Professor Vengalattore was disgruntled because she had been eliminated from Vengalattore’s lab, where she “struggled with her lab assignments and often took professional criticism personally; was somewhat unprofessional in her language and conduct; falsely accused others of breaking lab equipment. . .” But Cornell ignored her clear pattern of abusive behavior and her motive for her vindictive complaint, opting instead to ruin Vengalattore’s career. Similarly, the Governor’s Academy ignored all evidence indicating Jill had pursued a consensual relationship—not only in her and his oral accounts, but also in evidence from eyewitnesses to the July 4th party as well as in contemporaneous text messages. Jill also only sought to ruin James’ education when he showed up on campus dating another student. Yet this, too, was completely disregarded by the Governor’s Academy.
At Allen Harris, we find that this kind of contempt for plain evidence and common sense is not unusual among the self-styled campus “judiciaries.” Fortunately for James, his family engaged a talented Title IX lawyer who guided him through the process, helped him gather evidence, documented the school’s arbitrary investigation, and eventually prevailed in litigation. This also demonstrates why it is best to get an experienced attorney involved sooner rather than later—to prepare your case for litigation from the beginning.
A copy of the opinion issued by Judge James Lang of the Massachusetts Superior Court can be found here.
