The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Watch out with Dancing; It Might Lead to Sex
Or at least college dancing instruction may create a “heightened risk of sexual misconduct”; a court is allowing an expert to so testify.
Some excerpts from the longish opinion in Doe v. Carleton College, decided yesterday by Judge Donovan Frank (D. Minn.):
Carleton is a private liberal arts college in Northfield, Minnesota with approximately 2,000 students. Doe was a student at Carleton between 2019 and 2023. While she was a student, Doe got involved in dance, first participating in Carleton's social dance club, then taking two salsa classes and an independent study in dance with Carleton staff member Donald Smith.
Over time, Doe and Smith's relationship devolved, becoming inappropriate and abusive. Doe now sues Carleton based on its hiring, retention, and supervision of Smith under theories of direct and vicarious liability….
After attending Smith's salsa workshop, Doe enrolled in Salsa I for the 2020 winter term. During the course, Doe and Smith developed a close relationship. They began taking walks together and communicating more frequently about personal details. In March 2020, Doe and two other students went to Smith's house for dinner with him and his wife.
After Salsa I ended, Smith left a note in Doe's student mailbox asking if she would be his salsa co-instructor in future classes. During winter break, Doe and Smith met approximately ten times in Smith's office so Smith could continue teaching Doe. During those meetings, Smith made inappropriate comments, expressed his attraction to Doe, and touched her in ways that made her uncomfortable. Doe had some interaction with Smith during the 2020 spring term, including spending the night at his home. Doe had no concerns about that visit and had minimal contact with Smith for the rest of the term.
Doe became Smith's co-instructor for Salsa I during the 2021 fall term. He offered to pay her $17.25 per hour for her time. Smith's PEAR supervisor was unaware that Smith had a co-instructor for Salsa I. At that time, the PEAR Department did not hire students as co-instructors for PEAR courses that were taught by Carleton faculty or staff. Smith paid Doe via personal check. As a co-instructor, Doe was required to participate in the class two times per week and meet with Smith for an hour on the weekends to prepare for class. The lesson planning meetings took place at Smith's house. Doe also enrolled in Smith's Salsa II class that term. Altogether, Doe spent about five hours per week with Smith. As the term progressed, Smith's behavior escalated. For example, he shared inappropriate personal information about his sex life and capacity for violence.
At the start of winter break 2021, Doe spent two nights at Smith's home during the two-day gap between the closure of her dorm and her flight to visit family. On the second night, Smith invited Doe to see his basement and asked her to play "truth or dare." Smith poured her a drink and after she finished it, Doe began to feel "weird and ill." Smith pressured her to have another. Doe's memory of the rest of the night is hazy, but she remembers Smith making several inappropriate sexual comments toward her. At some point, Doe ran upstairs to vomit and then went to bed. When she woke up the next morning, there were red marks around her neck. Doe did not report the incident to Carleton or the police at the time.
On January 28, 2022, Smith invited Doe to his house for a birthday "surprise." When she arrived, Smith led her to the basement where there were twenty-one pieces of colored paper face-down on the table. Smith told Doe to turn over the pieces of paper one-by-one. Each paper had some kind of "reward" or "punishment" written on it. The punishments included sexually inappropriate conduct, including hitting. Eventually Doe insisted that the game stop and they went upstairs. Once upstairs, Smith and Doe practiced dancing.
Afterwards, Smith bit Doe on her ear or shoulder, grabbed her arm and throat, and made sexually charged comments toward her once again. Doe left shortly thereafter….
A few days later, Doe told her therapist about this incident, and they agreed that Doe's therapist would contact the Associate Dean of Students, Trey Williams. Williams arranged a meeting with Doe for February 9, 2022. Doe told Williams that one of her teachers attacked her at his house, that it had been affecting her academically, and that she needed help making it through the term. Doe did not tell Williams Smith's name at the time because she was afraid. Following the meeting, Williams submitted a form to the Title IX office describing his February 9th meeting with Doe and further discussed the situation during a CARE Team meeting. The CARE Team agreed that Williams would help Doe academically and {Laura Riehle-Merrill, Carleton's Title IX Coordinator,} would contact her about support resources. Riehle-Merrill invited Doe to meet with her, but Doe never responded.
Doe finished winter term but failed two courses, so Carleton placed her on Academic Review. Smith suggested that Doe participate in an independent study with him to recover credits. [Judith Howard, Chair of the Theater and Dance Department,] was the supervisor of the independent study. As supervisor, she was tasked with approving the course proposal and checking in at the end. In preparation for the independent study, Smith and Doe performed a bachata dance for Howard. Howard felt uncomfortable watching the dance and contacted Riehle-Merrill. She was concerned about the power dynamic in the particular style of dance.
Howard and Riehle-Merrill met in March 2022 to discuss the situation. Some of Riehle-Merrill's notes from the meeting include "Judith feels this is grooming" and "Teacher 'gets off on this.'" After the meeting, Howard met separately with Doe and Smith to discuss the independent study. After meeting with Howard, Smith and Doe rewrote the independent study proposal. Howard was satisfied with the conversations and the new proposal, so she signed off on the independent study. Around the same time, Howard contacted Riehle-Merrill to let her know about the "good results," identifying both Smith and Doe by name.
During the 2022 spring term, Smith's physical harassment became "near constant." In April 2022, Doe received a letter purportedly from "Katie," Smith's dance partner, encouraging Doe to have a sexual relationship with Smith. Doe suspected Smith wrote the letter himself, and when she did not mention it to him, he sent her a lengthy text message with the letter's exact wording….
On May 9, 2022, Doe finally decided to report Smith by name to the Title IX Office. Doe and Riehle-Merrill met later that day, where Doe disclosed the inappropriate physical contact and inappropriate comments and identified Smith.
Riehle-Merrill was concerned about Smith's presence on campus and immediately consulted Human Resources. She determined that the matter should be handled as an employment matter rather than a Title IX investigation because Doe did not want to go through a lengthy investigation or hearing process. Carleton fired Smith on May 13, 2022 ….
Doe sued Carleton, and in the process sought to introduce the testimony of expert witness Kaori Kenmotsu. Here's the court's analysis:
Kenmotsu has over twenty years of experience as a faculty member and lecturer in college dance departments and significant experience as a director, choreographer, and dancer. Her academic work has focused on "dance pedagogy, power dynamics in the arts, and cross-cultural perspectives in performance." Her research and teaching has included "issues of body autonomy, consent, and ethical pedagogy within dance and theater." …
[T]he Court will allow Kenmotsu to testify about the heightened risk of sexual misconduct in dance instruction, which includes her testimony about hierarchies and dance pedagogy. Kenmotsu's experience is significant and qualifies her to give an opinion on risks in dance instruction, especially in the college setting. This information will be useful to the jury because the average jury is not familiar with college dance instruction and the surrounding culture. Carleton's arguments are well taken but go more to Kenmotsu's credibility and the weight the jury should give her opinion. Carleton is, of course, welcome to cross-examine Kenmotsu on those points and make those arguments in closing at trial….
And this evidence may be relevant to Doe's substantive claims:
For Doe's claims of vicarious liability assault and battery and vicarious liability sexual abuse to survive summary judgment, there must be evidence that assault, battery, and sexual abuse are well-known hazards between dance teachers and students…. Kenmotsu included in her opinion that there is a heightened risk of sexual misconduct in the field of dance instruction. This is not vague and creates a genuine issue of fact on foreseeability….
