Judge won't dismiss suit against Marlboro College


BRATTLEBORO -- A lawsuit filed against Marlboro College by a student who was suspended for sexual misconduct will proceed after a federal judge denied the college's dismissal request.

According to court documents, Luke Benning filed suit against Marlboro College in April, alleging breach of contract, breach of implied convenant of good faith and fair dealing, and defamation.

Benning was suspended for three semesters on Dec. 3, 2013, after the Dean's Advisory Committee concluded he had engaged in sexual acts without consent and had engaged in retaliation.

The committee's conclusion was rendered after Benning appealed a Sexual Misconduct Panel that permanently expelled him from the college on Nov. 1, 2013. The panel concluded Benning had engaged in sexual relations without obtaining effective consent; that he retaliated, presumably against the person bringing the complaint; and that he had show a pattern of sexual misconduct.

However, the Dean's Advisory Committee found three "serious material errors" in the Sexual Misconduct Panel's proceedings and informed Benning that after three semesters, he could apply to re-enroll "but that re-enrollment would be contingent on his completion of sexual respect training and counseling."

Only one of the three alleged material errors is listed in any filings, and that refers to "improperly admitted evidence."

At the time of his expulsion, Benning was a junior in good standing.

In his complaint filed in April 2014, Benning told the court in the 2011/2012 academic year he began a romantic relationship with another student, which included electronic communications in which the young woman allegedly made comments pressuring Benning for sex.

The relationship continued in the 2012/2013 school year and included sexual intimacy, according to Benning's complaint.

However, wrote Benning, the relationship deteriorated and he began spending time with a friend of the woman's. When that friend confided in the woman about her relationship with Benning, he alleged "the woman engaged in spiteful behavior toward him," which included "lengthy tirades" published on social media.

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In September of 2013, Benning was notified by the dean of students that a complaint had been filed against him. An investigation ensued and a hearing was held before the Sexual Misconduct Panel.

In his complaint, Benning alleged Marlboro College "acted arbitrarily and capriciously and contrary to the edicts" of its own sexual misconduct policy.

In his complaint, Benning contended Marlboro College's actions have resulted in damages to him in excess of $75,000. He also accused Marlboro College of defamation because employees "have made false and defamatory statements" about him, including "that he did sexually assault a female student ..."

As a result, wrote Benning, he experienced hostile encounters with fellow students and Marlboro staff.

"The false and misleading statements made by Marlboro employees harmed and will continue to harm Plaintiff's personal and professional reputation, injure his character, and lower his reputation in the estimation of the community ..."

In an opinion issued on Aug. 5, Federal District Court Judge William Sessions dismissed Benning's defamation allegations because he did not specify exactly who made defamatory statements, to whom and what was said. However, noted Sessions, if, during depositions, Benning is able to uncover more details related to defamation, the court will allow him to re-file.

He also refused the college's request for a protective order to prevent Benning from deposing Marlboro employees.

Marlboro College had claimed exemption under the deliberative process privilege, contending the panel and committee "are analogous to government entities ..."

However, wrote Sessions, Marlboro College is not a governmental entity and doesn't deserve the same privileges.

Marlboro College moved to have Benning's complaint dismissed, based on the fact his claim "does not meet the required statutory minimum, $75,000."

But Sessions noted that to measure the complete cost to Benning of the disciplinary action levied against him by the college, the court must consider "lost earnings as a result of the delay in graduation, expenses incurred during the suspension, and the reputation and emotional cost of the suspension. Benning will likely introduce an expert witness to testify that Benning would have a greater earning potential with a timely college degree; over time, damages for delayed graduation alone may amount to well over $75,000."


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