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Nov 1, 2016 5:30 PM

UPDATE: Federal lawsuit against Phillips Exeter Academy goes to trial in less than 2 weeks

NH1.com

CONCORD - A civil lawsuit filed in federal court claims administrators at Phillips Exeter Academy committed a breach of contract when it sought to dismiss a male student after investigating a sexual encounter he had with a female classmate.

READ: Jury selection to begin in teen's dismissal from Phillips Exeter for having sex

The case is scheduled to be tried in U.S. District Court, District of New Hampshire in Concord starting on Nov. 14. It's expected to last five days, ending on Friday, Nov. 18.

Documents filed with the court claim two 15-year-old students -- who have only been referred to under the pseudonyms John Doe and Jane Roe, and will continue to for the remainder of the trial -- had sex back in January.

READ: Phillips Exeter Academy responds to parent's lawsuit claiming school mishandled son's punishment

In late February, the school notified John Doe's parents it was investigating the encounter, via an e-mail from Dean of Students Melissa Mischke.

A follow-up e-mail sent a few weeks later provided an update on the investigation, as conducted by an external, independent investigator. The e-mail, in part, said the investigator "concludes no malice and no forcible action. Rather it was a confusing situation for young kids who had never had sex before and that neither communicated well what they wanted to do or not do.

Though school administrators concluded the encounter was not sexual assault, they did determine John Doe violated the academy's sexual harassment policy. They placed him on Dean's Leave for the remainder of the semester and require he attend therapy.

However, that wasn't all the school decided.

That summer, administrators asked the John Doe's parents to withdraw him from the school completely. They objected, saying in a letter addressed to Phillips Exeter Academy Principal Lisa MacFarlane, "The fall semester starts soon. We very much want what we were promised and led to believe would happen. [Our son] did what wsa asked of him, and it would be unfair to punish him further for this incident."

The suit alleges Phillips Exeter administrators failed to follow the school's "Requirement to Withdraw" guidelines, as outlined in its student handbook. It says the school should've been required to "notify John Doe of the charge in advance of the investigation, give him a chance to respond in writing to the allegations, form a Discipline Committee, and hold a hearing where evidence is presented and considered by the Discipline Committee."

The suit claims the school did none of those things.

However, the school claims John Doe's case was handled fairly, and affirmed its decision in late August, ahead of the fall semester. In the e-mail to the parents with the final determination, MacFarlane said, "It would be in [your son's] best interests for you to withdraw him from the Academy. If he is not withdrawn voluntarily, we will withdraw him tomorrow. I am sorry that this is not the result you sought."

MacFarlane, Mischke, and other administrators involved in the investigation are expected to be witnesses in the trial.

Seven men and five women were selected to the jury for the case, less than two weeks before the trial is set to begin.

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