Half-Baked: Phillips Exeter, Sexual Assault, And A Recipe For Disaster

by Pullman & Comley - School Law

Pullman & Comley - School Law

Considered one of the country’s most elite prep schools, Phillips Exeter Academy has recently joined the queue of prestigious private schools who have been accused of having ignored, suppressed, or minimized claims of sexual assault. A recent investigation by The Boston Globe’s Spotlight Team focused particular attention on a case in which a female student at Phillips Exeter notified school officials that a male student had both fondled her backside and put his hand under her shirt despite her repeatedly telling him to stop.  While other schools have faced allegations of more egregious and systemic misconduct, what makes this case of particular interest is Phillips Exeter’s singularly ill-advised response to the incident.

The Globe reported that when the female student informed school officials of the incident, the school’s response was to steer it away from police involvement and instead deal with it internally.  To that end, the school’s longtime chaplain convened a meeting between the two students to determine an appropriate consequence for the alleged assault.  According to the victim, the male student had admitted his culpability in front of at least two faculty members.  Nonetheless, rather than refer the alleged assailant for expulsion or at least a suspension, the school’s chaplain instead directed him to bake a loaf of bread each week and to deliver it to the victim, a task which the male student apparently discontinued part way through the year.

Even when considered on its own, Phillips Exeter’s approach was clearly wrongheaded. Nonetheless, the temptation to view it in the context of analogous situations is ultimately too difficult to resist.  For example, were an individual found to have engaged in a violent home invasion, no tribunal would imagine it to be a good idea to have the malefactor return to the house each week, thereby forcing the victims to repeatedly relive the original trauma.  Nonetheless, and despite the fact that the victim experienced panic attacks following the assault, the school thought it appropriate to compel the victim to face her assailant each week, about which she later told the Globe:  “I was so ashamed of it.  I was being reminded once a week that he assaulted me.”

Almost impossibly, it got worse. When the victim sought reconsideration of the school’s handling of the matter, its Dean of Residential Life reportedly determined that the incident had not constituted assault, but was instead “harassment” – which in many schools would be unacceptable in and of itself – and thus declined to take any disciplinary action.  Additionally, the school’s Dean of Multicultural Affairs allegedly chastised the victim for referring to the incident as “assault” and characterized the victim’s feeling that she was no longer safe on campus as “irrational.”

Having failed to receive any constructive response from Phillips Exeter, the victim ultimately did what the school’s own handbook would seemingly have required them to do at the outset, which is report the incident to the police, who charged the male student with misdemeanor sexual assault. Even then, the school appeared disinclined to reconsider its response.  Ultimately, though, when hundreds of alumni signed an open letter, pledging to cease donations unless Phillips Exeter improved its handling of such cases, the school had an epiphany, finally acknowledging the error of its ways.

So What Is The Lesson?

As they do not receive any federal funds, many private schools are not susceptible to Title IX of the Education Amendments of 1972. Avoiding Title IX’s proscriptions against gender-based discrimination, however, should obviously not be viewed as relieving educational institutions of any obligation to respond appropriately to claims of sexual assault, sexual harassment, or disparate treatment based upon gender.  Moral imperatives aside, a number of states have their own anti-discrimination laws, which can under the appropriate circumstances be read to apply to private schools.

Furthermore, common law provides various tort theories which a student might seek to utilize in such cases, including negligent supervision or the negligent or intentional infliction of emotional distress. In addition, and as noted, Phillips Exeter reportedly had a student handbook which apparently included provisions on how reports of suspected sexual abuse were to be handled.  Depending upon the circumstances, such handbook provisions could be claimed to form a contract, and a school’s failure to comply with them could perhaps be deemed a breach of that contract.  Thus, it is imperative that all schools, not just those covered under Title IX, create and, once established, follow a process for investigating and remediating claims of sexual assault or any form of harassment or bullying.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pullman & Comley - School Law | Attorney Advertising

Written by:

Pullman & Comley - School Law

Pullman & Comley - School Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.