Date: 06-08-2018

Case Style:

Case Number: 16-2290

Judge: Torruella

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Charles B. Wayne and Matthew J. Iverson

Defendant's Attorney: Daryl L. Lapp and Eliabeth B. Kelley

Description: In October 2012, John Doe
("Doe") was accused of sexually assaulting a fellow Boston College
student during an off-campus school event sponsored by a student
organization. Pursuant to its written policies and procedures on
sexual assault, outlined in its 2012-2013 Student Guide (the
"Student Guide"), and Conduct Board Procedure, Boston College held
disciplinary proceedings against Doe. After two days of hearings,
an Administrative Hearing Board (the "Board") found Doe
responsible for the lesser offense of indecent assault and battery,
and imposed several sanctions. Doe filed an appeal of the Board's
decision, but his request for appeal was denied by Boston College
officials. In 2014, at the request of Doe's parents, Boston
College conducted an independent review of the disciplinary
proceedings. The reviewer determined that the Board had properly
followed the relevant procedures and that new evidence that Doe
brought forth did not undercut the Board's finding.
Seeking compensatory damages, declaratory relief, a
permanent injunction, and expungement of the disciplinary
proceedings from his university records, Doe and his parents, James
and Mary, (collectively "the Does") filed a lawsuit against
Defendants Trustees of Boston College (the "University" or
"B.C."), and several B.C. officials. Following discovery, the
parties filed cross-motions for summary judgment. The district
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court held a hearing and subsequently entered summary judgment on
all counts in the Defendants' favor. This timely appeal followed.
After careful review, we vacate in part and affirm in part.
I. Background
A. Factual History
1. The Alleged Sexual Assault
On October 20, 2012, Doe, a senior at Boston College,
attended a school event on the SPIRIT OF BOSTON cruise ship in his
capacity as a journalist for the school newspaper. At around
11:30p.m., Doe -- standing 6'4" tall and wearing a purple shirt -
- danced his way across a heavily crowded dance floor to reach
some of his friends. While Doe was slowly moving through the
crowd, a woman turned around and screamed at him. The woman,
"A.B.," later testified that at that time she felt a hand go up
her dress and that "two fingers were forcibly inserted up into
[her] anus." After the screaming incident, Doe continued to move
across the crowd until he reached his friends. Soon after,
security guards escorted Doe to a separate area on the ship, where
he was required to stay until the ship returned to the pier.
Massachusetts State Police arrested Doe once the ship docked, and
released him on bail the following morning. Forensic specialists
took his clothes and several swabs from his hands, fingers, and
fingernails as evidence.
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The State Police arrested Doe based on the allegations
made by A.B. to State Trooper David Walsh ("Trooper Walsh").
According to the October 20, 2012 Arrest Report, A.B. stated to
Trooper Walsh that "while she was dancing she felt a hand go up
he[r] dress and penetrate her." She further stated that "she
immediately turned around and identified/looked at the person who
touched her." While still at the pier, Trooper Walsh asked A.B.
to step out of the police cruiser and identify the alleged
wrongdoer. A.B. identified Doe as the person who touched her.
Betsy, A.B.'s friend and dance partner during the school event,
did not see the alleged sexual assault, but mentioned to the state
authorities that A.B. told her "that the tall male with brunette
hair [and] purple buttoned down shirt stuck his fingers in between
her legs."
According to Doe, however, another male -- Boston
College senior "J.K." -- crossed the dance floor in front of him
as the alleged sexual assault occurred. Doe testified that, at
the moment when A.B. screamed at him, J.K. turned to him and said,
"Sorry, dude, that was my bad." The day after Doe's arrest, J.K.
texted some of Doe's friends asking whether Doe was "ok" and if
Doe "got in trouble."
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2. The Criminal Case
The Commonwealth of Massachusetts filed an application
for a criminal complaint against Doe, which the Boston Municipal
Court issued on October 22, 2012. The complaint charged Doe with
indecent assault and battery. He was arraigned that same day and
pled not guilty. In February 2013, the tests of the samples taken
from Doe's hand were completed, showing that Doe's hands were
negative for traces of blood. The examiners did not test the
samples for DNA, but preserved the swabs for possible DNA testing
at a later date. During discovery, Doe produced a copy of the
surveillance video from the ship that had been forensically
enhanced and analyzed. In May 2014, the Commonwealth moved to
dismiss the charges against Doe, and the court granted that motion.
3. 2012 University Disciplinary Proceedings
a. Boston College's Disciplinary Procedures
During the relevant time, B.C.'s written policy
governing the investigation and adjudication of sexual assault
accusations consisted of: (1) Section Four of the Student Guide
(titled Community Standards and Policies); (2) Section Five of the
Student Guide (titled Student Conduct System); and (3) the Conduct
Board Procedure. The Office of the Dean of Students was tasked
with "developing, disseminating, and upholding [the] behavioral
standards that comprise the University Code of Student Conduct."
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Additionally, "[t]he Student Conduct System [was] administered by
the Vice President for Student Affairs through the Dean of Students
and his/her staff."
These documents provided certain rights to students
facing disciplinary proceedings. These rights included "access
to a process through which to resolve deprivations of rights" and
"a fair procedure which [was] appropriate to the circumstances."
In the case of accusations of sexual harassment, sexual assault,
or sexual misconduct, the school conducted a pre-hearing
investigation of the allegations, which included "a review of
statements obtained from either party, interviews with the
complainant and the accused (if identified), interviews with
appropriate witnesses, and a review of other relevant
information."
Pursuant to B.C.'s procedures, a disciplinary complaint
with the school could have proceeded concurrently with any criminal
action. Still, the Office of the Dean of Students could have also
decided to stay the disciplinary proceedings while the criminal
matter was ongoing. Furthermore, the Student Guide provided that
a student may be summarily suspended for certain conduct, including
sexual assault. A summary suspension would have been followed,
within a reasonable time, by a conduct hearing.
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After a complaint was filed against a student, that
student would meet with the Dean of Students or its designee to
discuss the complaint. During this meeting, the University would
decide whether the complaint should "be kept open for a later
resolution, dropped, resolved, or referred to an appropriate
hearing board."1 If the complaint was referred to a board, the
accused student would be provided with a copy of the referral, the
Conduct Board Procedure, a written notification of the time and
location of the hearing, the names of all the parties charged, the
alleged violation, and name of the complainant.
Boston College's policies also provided for the
composition of the Administrative Hearing Boards. According to
Section Five of the Student Guide, those boards were "composed of
three administrators, one faculty member or academic administrator
and one student." All board members were trained by the Office
of the Dean of Students. The Dean of Students designated the
board's chairperson, and all board members were required to
"disclose any real or perceived conflict of interest between
themselves and any party."
The Student Guide and Conduct Board Procedures also
detailed the hearing procedure. During conduct hearings, both the
1 Either the Student Conduct Board or the Administrative Hearing
Board.
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complainant and the accused student could have an advisor with
them.2 Both parties were "entitled to bring witnesses to the
hearing." However, witnesses would be limited to those who could
"speak to the facts of the incident which they ha[d] witnessed."
The hearing would begin with the board's chairperson "reading the
formal charges as determined by the Office of the Dean of
Students." Next the complainant would have the opportunity to
read his or her incident report and further elaborate as needed.
The accused would be given the opportunity to respond, but could
remain silent if he or she elected. All board members would be
allowed to question both parties "on all matters relevant to the
complaint." At the hearing's conclusion, both parties would be
afforded the "opportunity to make a final statement to the hearing
board."
Soon after the hearing, the board would meet in private
to deliberate and "determine whether the accused [was] responsible
or not for the charge(s), based upon a preponderance of the
evidence." The board could have reached one of the following
determinations: (1) responsible; (2) not responsible; (3) no
finding; or (4) responsible for a lesser included charge. If the
2 The advisors, however, were not allowed to address the hearing
board, but would have been able to confer with the student at any
point during the hearing.
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board concluded that an accused student was "responsible," it could
recommend sanctions including suspension or dismissal from the
University.
The University would then be required to send written
notification of the board's determination to both parties within
five days of the hearing. Either party could appeal the board's
determination on two possible grounds: (1) demonstrated lack of
fairness during the hearing; or (2) production of new evidence
that would likely change the result of the hearing. Any appeal
had to "be filed with the Dean [of Students] and the Vice President
[for Student Affairs] within five business days after notification
of the sanctions." The Dean of Students and the Vice President
for Student Affairs would assess the appeal petition, and if they
determined that it required consideration, it would be referred to
the University's Appeals Board.
b. Disciplinary Proceeding Against Doe
On the night of the alleged sexual assault, a B.C. police
officer completed a Sexual Assault Notification Form describing
A.B.'s allegations against Doe. B.C. immediately placed Doe on
summary suspension. Doe's case was assigned to then Senior
Associate Dean of Students, Carole Hughes ("Hughes"), who decided
that the case should proceed to an administrative hearing board
that would be convened within two weeks. B.C.'s Associate General
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Counsel confirmed that the administrative hearing board would also
act as the investigative body in Doe's case.
Hughes met with Doe and his parents on three occasions
before the hearing. While the parties dispute whether Hughes
allowed Doe to tell his version of the events during the first
meeting, on October 24, 2012, they agree that Doe told Hughes on
at least one occasion that he did not commit the alleged sexual
assault, and that this was a case of mistaken identity. In that
first meeting, Hughes informed Doe that he would be able to tell
his account of the events to the hearing board. Doe was provided
with the notice of the sexual assault charge and given the
procedures for the investigation and hearing, but could only review
-- though not have a copy of -- A.B.'s statement during these
meetings.
Doe's hearing began on November 8, 2012. The Board was
comprised of the chairperson, Catherine-Mary Rivera ("Rivera"),
two other administrators, a law professor, and a student from the
undergraduate program. The Board heard testimony from A.B., Doe,
and three of Doe's friends who were on the ship on the night of
the alleged sexual assault. A.B.'s testimony mirrored her prior
statements. Doe denied having committed the sexual assault,
produced the raw video surveillance from the dance floor of the
ship, and testified about J.K.'s comment and subsequent text
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messages. Doe's friends testified that "they didn't see [Doe]
bend down or do anything unusual."
The Board adjourned, and the hearing resumed on
November 16, 2012. On that day, both Betsy and J.K. testified.
J.K. and his father had previously met with Hughes, who informed
J.K. that he was required to attend the hearing, but was not being
charged with anything, in an effort to put J.K. "at ease." Betsy
testified that she did not see the alleged sexual assault as it
was taking place, and that Doe "stood out because he was tall" on
the packed dance floor. J.K. denied sexually assaulting A.B.,
claimed he was not intoxicated, and said he never apologized to
Doe or said anything along the lines of "Sorry, dude, my bad."
The Board refused to let Doe's private investigator, Kevin Mullen,
testify about a phone conversation he listened to between Doe and
J.K., or about Mullen's own interview with J.K., because Mullen
had not been a witness of the alleged sexual assault. Finally,
the Board also rejected Doe's request to stay proceedings in
anticipation of the results of the forensic tests, which had not
yet been completed by the State Police. Doe maintained that this
evidence would exonerate him.
The Board deliberations took place at the end of the
second day of hearings. The Board failed to reach a decision on
that day, a Friday, and decided to continue deliberations the
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following week. Over the weekend, Rivera told Hughes that the
Board "was struggling" to reach a decision, and that as a result,
"they were [considering] the possibility of a no finding." Rivera
then asked Hughes whether B.C. had ever issued a "no finding"
determination before. Hughes, in turn, contacted Paul Chebator
("Chebator"), then Dean of Students, who told Hughes that while
B.C. had issued "no finding" determinations in the past, he
"discourage[d] them." Hughes conveyed this to Rivera prior to the
Board's continuing deliberations on Monday, November 19.
On November 21, 2012, the Board found Doe responsible
for the lesser offense of indecent assault and battery. Doe's
sanctions included his immediate suspension until January 6, 2014,
dismissal from Boston College student housing, and loss of senior
week privileges. Doe promptly appealed the Board's decision,
arguing a lack of due process and citing the Board's refusal to
wait for the results of the forensic tests. Chebator and Patrick
J. Keating ("Keating"), then Executive Vice President of B.C. and
Interim Vice President for Student Affairs, with input from B.C.'s
General Counsel, Joseph Herlihy ("Herlihy"), and Rivera, reviewed
Doe's appeal and crafted a response denying his appeal. On
December 7, 2012, B.C. notified Doe that his appeal had been
denied.
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4. 2014 B.C. Review
After serving his suspension, Doe returned to B.C. and
graduated in May 2014. In September 2014, his parents, B.C. alumni
themselves, wrote letters to B.C. President Father William Leahy
("Father Leahy") expressing their dissatisfaction with the 2012
disciplinary proceedings against Doe. In his letter, Doe's father
stated that they had no "desire to file a lawsuit against [B.C.]"
or any of the individuals who were involved in the 2012
disciplinary proceedings. In response, Father Leahy referred the
Does to Barbara Jones ("Jones"), Vice President for Student
Affairs, as "the right person at B.C. to review the case and make
a recommendation" to the University's Executive Vice President on
the matter.
After several communications with Doe's parents, Jones
reviewed Doe's disciplinary proceedings to determine whether B.C.
followed the adequate procedures, and whether there was new
evidence that would change the outcome. Jones determined that
B.C. had appropriately followed its procedures, which were
"consistent with best practices in higher education," and that the
new evidence the Does had brought forth in their communications to
Father Leahy and Jones -- an enhanced analysis of the surveillance
video from the ship, the results of the forensic tests, and the
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results of a polygraph test -- did not justify reconsideration of
Doe's case.
B. Procedural History
The Does initiated this action on March 11, 2015,
claiming: (1) breach of contract for the 2012 disciplinary
proceedings; (2) promissory estoppel; (3) breach of contract for
the subsequent 2014 review; (4) breach of B.C.'s common law duty
to ensure Doe's disciplinary process was conducted with basic
fairness; (5) Title IX violations; (6) negligence; (7) negligent
infliction of emotional distress; (8) intentional infliction of
emotional distress; and (9) unjust enrichment. The Does requested
declaratory relief that would, among other things, expunge the
disciplinary proceedings from Doe's university records, a
permanent injunction directing B.C. to comply with Title IX, and
no less than three million dollars in compensatory damages. One
year later, the Does moved to amend the complaint and add Herlihy
as a new defendant.
All parties filed cross-motions for summary judgment.
The Does moved for partial summary judgment on the claims for
breach of contract for the 2012 disciplinary proceedings and breach
of common law duty of basic fairness. B.C. and the individual
defendants moved for summary judgment on all claims. After a
hearing, the district court denied the Does' motion for partial
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summary judgment and granted both B.C.'s and the individual
defendants' motions for summary judgment.3 This timely appeal
followed.
II. Standard of Review
We review de novo a district court's decision to grant
summary judgment. Massachusetts v. Wampanoag Tribe of Gay Head
(Aquinnah), 853 F.3d 618, 624 (1st Cir. 2017), cert. denied, 138
S. Ct. 639 (2018). We do this while "drawing all reasonable
inferences in favor of the non-moving party." Roman Catholic
Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st
Cir. 2013) (citing Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir.
2011)). Our standard of review is unaltered when an appeal emerges
from cross-motions for summary judgment. See City of Springfield,
724 F.3d at 89; see also OneBeacon Am. Ins. Co. v. Commercial Union
Assurance Co. of Can., 684 F.3d 237, 241 (1st Cir. 2012).
Summary judgment is only proper when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is
material when it has potential of changing a case's outcome. See
Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st Cir. 2017). A
3 The district court also denied the Does' motion to amend the
complaint. The Does, however, do not raise this as an error in
their appeal.
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dispute is "genuine" when "the evidence about the fact is such
that a reasonable jury could resolve the point in favor of the
nonmoving party." Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349,
352 (1st Cir. 1992) (citing United States v. One Parcel of Real
Prop., 960 F.2d 200, 204 (1st Cir. 1992)). And if there is a
genuine dispute of a material fact, that dispute would "need[] to
be resolved by a trier of fact." Kelley v. LaForce, 288 F.3d 1,
9 (1st Cir. 2002).
III. Discussion
The Does raise a number of challenges to the district
court's grant of summary judgment on all their claims in favor of
B.C. and the individual defendants. Let's begin.
A. The Does' Breach of Contract Claim for 2012 the Disciplinary
Proceedings
In reviewing a student's breach of contract claim
against his or her university, we employ a reasonable expectations
standard in interpreting the relevant contracts. See Walker v.
President & Fellows of Harv. Coll., 840 F.3d 57, 61 (1st Cir.
2016). We must ask "what meaning the party making the
manifestation, the university, should reasonably expect the other
party[, the student,] to give it." Id. (quoting Schaer v. Brandeis
Univ., 735 N.E.2d 373, 378 (Mass. 2000)). In the context of
disciplinary hearings, we "review the procedures followed to
ensure that they fall within the range of reasonable expectations
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of one reading the relevant rules." Cloud v. Trs. of Bos. Univ.,
720 F.2d 721, 724-25 (1st Cir. 1983) (citing Lyons v. Salve Regina
Coll., 565 F.2d 200, 202 (1st Cir. 1977)). "[I]f the facts show
that the university has 'failed to meet [the student's] reasonable
expectations'" the university has committed a breach. Walker, 840
F.3d at 61-62 (quoting Schaer, 735 N.E.2d at 378).
Below, the Does pointed to fifteen instances when B.C.
allegedly breached the terms of their contractual agreement4 and
the fundamental fairness guarantees that B.C. makes to students
facing disciplinary procedures. However, the Does only fully
develop six of these alleged breaches in their appellate briefing.5
Because we find that genuine disputes of material fact exist as to
two of the alleged breaches, we hold the district court's grant of
summary judgment as to the Does' breach of contract claim for the
4 The parties do not dispute that a contractual relationship
between Doe and B.C. arises from the Student Guide and the Conduct
Board Procedure.
5 The remaining nine alleged breaches are listed in their brief,
but the Does explained that "space limitations" precluded them
from briefing these breaches and point us to the arguments made
below. We, however, deem that the Does have forfeited these nine
arguments because "[f]iling a brief that merely adopts by reference
a memorandum previously filed in the district court does not comply
with the Federal Rules of Appellate Procedure." R.I. Dept. of
Envtl. Mgmt. v. United States, 304 F.3d 31, 47 n.6 (1st Cir. 2002);
see also Gilday v. Callahan, 59 F.3d 257, 273 n.23 (1st Cir. 1995).
If the Does had felt that they required additional space to develop
their arguments, they could have requested leave of court to file
an enlarged brief.
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2012 disciplinary proceedings was improper. We review each alleged
breach preserved on appeal in turn.
1. Threshold Investigation
The Does first argue that pursuant to the Student Guide,
B.C. was required to conduct a threshold investigation to discuss
the complaint with Doe and, based on that discussion, decide on
how to proceed with the complaint. The Does claim that Hughes's
actions during their three meetings, where she failed to listen to
Doe's account of the alleged sexual assault, and her decision to
proceed with a disciplinary hearing even before meeting with Doe,
breached the contract and prejudiced Doe. The Does' contention,
however, is unpersuasive.
A complete reading of the Student Guide clarifies this
issue. The Does point to language in Section Five that provides
"[a] student who has had a complaint lodged against him . . . will
be called by the Dean of Students or designee to discuss the
complaint." From there, the document continues, "the case may be
kept open for later resolution, dropped, resolved or referred to
an appropriate hearing board as determined by the Dean." However,
Section Five of the Student Guide does not end there. It also
states that "[a] case may be referred directly to a Student Conduct
Board or an Administrative Hearing Board if the Dean . . . feels
that such a referral is appropriate." Therefore, when Section
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Five is read as a whole, and under the standard of reasonable
expectations, it does not create a reasonable expectation on any
reader that a threshold evaluation would be required before any
complaint is referred to either of the boards. Undoubtedly, the
Dean of Students or designee must meet with a student who has a
complaint lodged against him or her, but the Student Guide provides
total discretion to said B.C. official to refer the case to a board
before the meeting with an accused student to discuss the
complaint. We need not dwell on this alleged breach any more, the
language is unambiguous and "its purport may be determined as a
matter of law." Petricca Dev. Ltd. P'ship v. Pioneer Dev. Co., 214
F.3d 216, 220 (1st Cir. 2000). Since there is no threshold
evaluation requirement, B.C. could not have breached its contract
in this manner.
2. Appropriateness of the Investigation
The Does also argue that B.C. breached its contract by
failing to conduct the required investigation of the alleged sexual
assault. The Does' argument here is two-fold. First, they claim
that B.C. "should have 'reasonably expected' a student to believe
that allegations of sexual assault would be investigated by the
[B.C.] Police before the University brought any charges against an
accused student." They point to subsection five of Section Four
of the Student Guide which states that "[t]he Boston College Police
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[will] work cooperatively with the Office of the Dean of Students
to investigate and resolve cases under this policy." According
to the Does, it was the B.C. Police, who are trained to respond to
sexual assault complaints, who were procedurally required to
conduct an investigation after the "threshold evaluation."
Alternatively, the Does contend that the language regarding the
role of B.C. Police in the sexual assault procedures is at the
very least ambiguous and summary judgment on this issue was
improper. Secondly, the Does assert that there was no appropriate
investigation because the Board could not be considered an adequate
investigatory body in compliance with the terms of the Student
Guide. The Board, the Does continue, lacked investigatory
training and failed to wait for critical evidence.
"In interpreting contractual language, we consider the
contract as a whole. Its meaning 'cannot be delineated by
isolating words and interpreting them as though they stood alone.'"
Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 785 (1st Cir. 2011)
(quoting Nicolaci v. Anapol, 387 F.3d 21, 26 (1st Cir. 2004)).
Once again, a complete reading of the Student Guide does not favor
the Does' contentions. The language cited by the Does, found in
subsection five of Section Four of the Student Guide, cannot be
read in isolation. Subsection five concerns the procedural steps
and services that the B.C. Police provides to students who might
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choose to file a criminal complaint after suffering a sexual
assault. In fact, the Student Guide clearly states that when an
incident of sexual assault occurs off campus, B.C. Police's role
is to assist "the victim in informing the appropriate municipal
department if he or she so desires." Subsection four of Section
Four of the Student Guide, on the other hand, covers the procedure
for the filing of a complaint within the University. There, it
states that "[t]he University will promptly conduct an
investigation of the alleged incident." A thorough reading of the
Student Guide could not raise a reasonable expectation to a student
who's had a complaint filed against him or her based on an incident
that occurred off campus that the B.C. Police would have any role
beyond "assist[ing] the victim in informing the appropriate
municipal police department." As there is no additional duty
here, no breach of contract is possible under this theory.
The Does' second theory does not fare well either.
Pursuant to the Student Guide, "[c]omplaints of sexual harassment
. . . against a student member of the University community will be
investigated and adjudicated in accordance with the Student
Conduct System policies and procedures, as described in Section
[Five]." In turn, Section Five states that the "function of the
[disciplinary] proceedings is to investigate the facts . . . and
determine responsibility for the alleged violation." (emphasis
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added). Section Five contemplates two types of disciplinary
proceedings: formal and informal hearings. While most complaints
are resolved with informal hearings, known as administrative
review/adjudication hearings, in some cases the complaint is
referred to a Student Conduct Board or an Administrative Hearing
Board for formal fact-finding and adjudication. The Student
Guide's language is unambiguous: for any case referred to a board,
that board will act as the investigatory body. Therefore, there
was no breach of contract.
Lastly, the Does' contention that the Board lacked
investigatory training and that it failed to wait for critical
evidence is also unconvincing. The Student Guide did not require
Administrative Hearing Board members to have any particular
investigatory training in order to be part of the Board. Board
members are, however, "trained by the Office of the Dean of
Students" and the record shows that all members in the case at
hand received this training before Doe's 2012 disciplinary
proceedings. And, the Student Guide did not require the Board to
wait for all evidence to become available before it could consider
a disciplinary case and reach a decision. The Board here, however,
considered that possibility and asked Doe and his advisor when the
additional evidence would become available. Neither Doe nor his
advisor could provide a definitive answer. In the end, the record
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shows that the results of the forensic tests did not become
available until February 2013. If the Board had decided to wait
for the alleged critical evidence, the delay could have caused
B.C. to breach its contractual obligation to "resolve the complaint
within [sixty] days." Therefore, the Board's refusal to wait for
the results of the forensic tests and an enhanced surveillance
video6 from the ship does not breach the contract.
3. Appropriateness of the Hearing Date
Next, the Does contend that B.C. breached its obligation
to ensure that Doe had adequate time to prepare a response to the
charges when Hughes decided that the case needed to be resolved
quickly and rejected James's request for a stay of the University
disciplinary proceedings while the criminal case was still
ongoing. The Does argue that the district court's decision --
that B.C. had ultimate discretion on whether or not to stay the
proceedings -- is incorrect, because while the language of the
procedures states that the Dean "may" stay the process, that
language has to be read in conjunction with B.C.'s other
contractual obligations, which are to provide for due process and
fundamental fairness. Taken together, the Does believe that the
6 The record is not clear as to the date in which the enhanced
surveillance video first became available. However, the enhanced
video was presented to the Commonwealth in July 2013.
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decision to proceed so quickly does not conform to a student's
reasonable expectations and constitutes a breach of the overall
bargain.
We disagree. One more time the Student Guide's language
is dispositive. In relevant part Section Four of the Student
Guide provides that when a complaint is filed "[t]he University
will promptly conduct an investigation of the alleged incident
. . . [and] make every reasonable effort to resolve the complaint
within [sixty] days." Therefore, a student facing a complaint
could reasonably expect that any disciplinary hearing would take
place within those sixty days. And this reasonable expectation
is not truncated by B.C.'s other contractual obligations to provide
due process and fundamental fairness since Doe had written notice
of the charges, opportunity to discuss the charges with counsel
and have counsel present as an advisor during the disciplinary
proceedings, and enough time to present witnesses. See Cloud, 720
F.2d at 724, 726 (finding that due process and basic fairness were
followed when accused student had counsel and opportunity to
present witnesses).
The same goes with the Does' argument regarding B.C.'s
refusal to stay University disciplinary proceedings while Doe's
criminal case was still pending. While the Student Guide provides
to the Dean of Students the possibility of staying Boston College's
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disciplinary process "if a student is summarily suspended and the
criminal matter remains open," "the university conduct process
will normally proceed while the criminal action is in process."
Accordingly, B.C. did not breach the contract by pursuing to
resolve the complaint filed against Doe within sixty days and
concurrently to the criminal case, as provided in the Student
Guide.
4. Board Members' Impartiality
The Student Guide requires that Administrative Hearing
Board members "disclose any real or perceived conflict of interest
between themselves and any party and may not hear a case if they
are not able to be impartial in the hearing of the case." The
Does claim that B.C. breached its contract because the Board was
not impartial, mainly due to certain actions by the Board's chair,
Rivera.7 The Does argue that Rivera's tone towards Doe during the
disciplinary proceedings was evidence of bias and a breach of the
impartiality requirement in the Student Guide. The Does point to
7 The Does also argue, without much elaboration and in a footnote,
that there were some "related breach concerns" regarding Hughes's
alleged failure to ensure there were no conflicts of interests by
any of the Board's members and an alleged undisclosed conflict of
interest by one of the Board members. This argument, however, is
deemed waived. Nat'l Foreign Trade Council v. Natsios, 181 F.3d
38, 60 n.17 (1st Cir. 1999) ("We have repeatedly held that
arguments raised only in a footnote or in a perfunctory manner are
waived.").
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their own testimony in order to describe Rivera's tone as openly
hostile, aggressive biased, and dismissive.
The Does contend that the district court erred when it
made improper factfinding and credibility determinations when it
decided that Rivera was not biased towards Doe, rejecting the
evidence provided as "subjective impressions." They argue that
this is contrary to Burns v. Johnson, 829 F.3d 1, 12-13 (1st Cir.
2016) (citing United States v. Flores-Rivera, 787 F.3d 1, 28 (1st
Cir. 2015) ("Personal knowledge can include inferences and
opinions, so long as they are grounded in personal observations
and experiences.")).
"Nevertheless, it has been noted that '[a]lleged
prejudice of university hearing bodies must be based on more than
mere speculation and tenuous inferences.'" Gorman v. Univ. of
R.I., 837 F.2d 7, 15 (1st Cir. 1988) (quoting Duke v. N. Tex. State
Univ., 469 F.2d 829, 834 (5th Cir. 1972)). In reviewing schools'
disciplinary procedures, "a presumption [of impartiality] favors
the administrators, and the burden is upon the party challenging
the action to produce evidence sufficient to rebut this
presumption." Id. See also Nash v. Auburn Univ., 812 F.2d 655,
665 (11th Cir. 1987) ("Any alleged prejudice on the part of the
board must be evident from the record and cannot be based in
speculation or inference."); Ikpeazu v. Univ. of Neb., 775 F.2d
-27-
250, 254 (8th Cir. 1985) ("[W]e observe that the committee members
are entitled to a presumption of honesty and integrity unless
actual bias, such as personal animosity, illegal prejudice, or a
personal or financial stake in the outcome can be proven.").
The Does do not meet their burden of proof. We have
recognized before that observations about a defendant's tone based
on perception are not mere speculation, "so long as they are
grounded in personal . . . experiences." Burns, 829 F.3d at 12–
13 (citing Flores-Rivera, 787 F.3d at 28). However, after giving
credit to the Does' version of the facts, the statements accredited
to Rivera fail to rebut the Board's impartiality presumption.
According to the Does, Rivera acted with an attitude
towards Doe and asked questions to either him or his witnesses
that Doe would qualify as "cross-examination," while subjecting
other witnesses to only "softball" questions. Still, considering
Rivera's role as the chairperson of the Board, in charge of
managing the flow of the hearing and leading the questioning of
the witnesses, the Does statements, without more, are not legally
sufficient to overcome the Board's impartiality presumption,
particularly when an examination of the record fails to reveal any
other evidence of bias showing that the Board was either prejudiced
or partial against Doe. Cf. United States v. DeCologero, 530 F.3d
36, 56 (1st Cir. 2008) (quoting Liteky v. United States, 510 U.S.
-28-
540, 555-56 (1994)) ("[R]emarks during the course of a trial that
are critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or
partiality challenge."). Thus, we find no breach of contract by
B.C. under this theory.
5. Adequacy of the Board's Training
As briefly mentioned before, the Student Guide also
provides that "[a]ll board members [of an Administrative Hearing
Board] are trained by the Office of the Dean of Students.
Chairpersons for the Administrative Hearing Board are designated
by the Dean of Students and receive additional training." As the
district court correctly held, under the reasonable expectations
standard, "a student would accord to this contractual provision
. . . that members of any university hearing board would not only
receive training but that training would be adequate to resolve
the disputes that came before those members." Doe v. Trs. of Bos.
Coll., No. 15-CV-10790, 2016 WL 5799297, at *17. (D. Mass. Oct. 4,
2016).
The Does contend that B.C. breached this contract
requirement by failing to ensure that the Board members were
properly trained. The Does rely on Chebator's awareness of a
report issued by B.C. on April 23, 2012, which concluded that
B.C.'s sexual assault trainings for Hearing Board members were
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insufficient according to "best practices." According to the
Does, this alleged admission and the lack of any evidence in the
record that would show that B.C.'s training practices changed or
improved before Doe's disciplinary procedures, should be enough to
grant summary judgment in their favor. In any case, the Does
claim that there is enough dispute as to the adequacy of the Board
members' training to give rise to a jury question.
We, however, disagree. The record before us does provide
evidence that B.C. took remedial steps in response to the April 23,
2012 report. Chebator testified that in response to the report,
B.C. "ramp[ed] up the training for individuals who would be hearing
sexual assault cases" by developing "a secondary training for those
individuals who would be sitting on administrative hearing boards
involving sexual assault matters." And, as discussed above, the
record also shows that all Board members in the case at hand
received this training before Doe's 2012 disciplinary proceedings,
and after the remedial steps were implemented.8 We, therefore,
agree with the district court's ruling that, given B.C.'s response
8 In fact, all but one of the Board members recognized during
their depositions a document marked as deposition Exhibit No. 105,
which contained an agenda for the Administrative Hearing Board,
Organizational Meeting, held on October 3, 2012. They all
recognized that as part of this training session they were trained
in Title IX issues by the Massachusetts District Attorneys' Office.
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to the April 23, 2012 report, B.C. did not breach its contractual
obligation to adequately train the members of the Board.
6. Interference with the Board
a. Deliberations
The Does posit that pursuant to the Student Guide, B.C.
was required to ensure the independence and integrity of the
Board's deliberations without outside interference. Specifically,
the Does point to the Student Guide's requirement that the Board
meet "in private" and that its final decision be impartial. The
Does argue that B.C. breached this commitment when Hughes
transmitted Chebator's discouragement of a "no finding" result to
Rivera during the weekend between the Board's two deliberation
sessions. That interference, they argue, were it to have happened
during court proceedings, would be "deemed presumptively
prejudicial." Remmer v. United States, 347 U.S. 227, 229 (1954).
At the very least, the Does claim, there is a factual dispute as
to whether there was an interference with the Board's
deliberations, and the district court should not have granted
summary judgment.
Boston College, on the other hand, argues that the
Board's independence was not compromised. Regarding Hughes's
relaying of Chebator's "discouragement" remark, B.C. states that
there is no evidence that the Board was influenced in any way by
-31-
this comment. In B.C.'s view, Chebator's comment was not a
suggestion that the Board should make a finding of "responsible,"
but merely that it would be better if the Board made some finding.
A review of the record reveals that summary judgment on
this issue was inappropriate. Let's briefly recap Chebator's
indirect interaction with Rivera, the designated chairperson of
the Board.
On Friday, soon after completing the second day of
hearings in Doe's case, the Board began deliberations. However,
by the end of the day the Board had not reached a result. At
around 10:48p.m., Rivera responded to an email from Hughes
inquiring about the status of the Board's deliberations. In her
email, Hughes had asked if she should assume that the Board had
not reached a result. Rivera replied, "Yes you can say that. We
def [sic] won't have it by noon on Monday. We were all drained.
Struggling with needing to see the other evidence, but know we
can't wait for weeks or months. It is not a clear yes for
responsible." Rivera then informed Hughes that the Board would
think about the case over the weekend and continue deliberations
on the coming Monday. Rivera's email closed with, "[w]e are going
on the notion not to have 'no finding.'"
-32-
Over the weekend,9 Rivera contacted Hughes again, this
time over the phone. According to Hughes, Rivera asked her if the
University had issued a "no finding" result in the past. Hughes
did not know the answer, and decided to ask her immediate superior,
Chebator. Chebator's response was that indeed there had been "no
finding" determinations in the past, but that he discouraged them.
After Hughes's conversation with Chebator, but before Monday --
when the Board would meet once more to continue deliberations --
Hughes called Rivera and told her that Chebator confirmed that
previous cases had concluded with "no finding," but that he
"discouraged it."
While none of the other Board members recall hearing
about Chebator's comment, the parties do not dispute that the
comment reached Rivera before the second day of deliberations.10
And, while B.C.'s written policies and procedures are silent as to
who leads the Board's deliberations, the record indicates that
9 The record is not clear as to whether these conversations
occurred Saturday or Sunday.
10 During her deposition Rivera testified that by "Friday, and by
Monday, everybody was unanimous that they felt that [Doe] was
responsible for what we believe was inappropriate touching of the
buttocks." However, other parts of the record show that all but
one of the other Board members testified that even though a "soft
vote" was taken on Friday, they did not reach a decision on the
first day of deliberations.
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Rivera, as appointed chairperson of the Board, was the one leading
it.
At the summary judgment stage, a trial court is to make
legal determinations rather than involve itself in factfinding.
See United Paperworkers Int'l Union Local 14 v. Int'l Paper Co.,
64 F.3d 28, 31 (1st Cir. 1995). The record here, viewed in the
light most favorable to the Does, necessarily bars summary judgment
for this alleged breach of contract claim. Under the standard of
reasonable expectations, it is reasonable for a student to expect
that the B.C. Student Guide's language stating that "[t]he Board
will meet in private to determine whether the accused is
responsible or not[,]" means exclusion of outside influences in
the Board's deliberations. Furthermore, during oral argument,
B.C.'s counsel agreed that B.C. is required to conduct disciplinary
proceedings with basic fairness. In this context, conducting
these proceedings with basic fairness excludes having an associate
Dean of Students tell the Board Chair in the middle of
deliberations that one of the verdict options favorable to the
student ("no finding") was discouraged by the Dean of Students.
Whether or not Rivera's communications with B.C.
administrators, while deliberations where still ongoing,
inappropriately interfered with the Board's decision on the sexual
assault complaint against Doe, and breached Doe's reasonable
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expectation that the Board would meet in private, is a material
fact with regard to the Does' breach of contract claim. Because
a reasonable jury could resolve this dispute in favor of the Does,
the dispute is genuine and summary judgment inappropriate.
b. Alternative Culprit Defense
The Does also argue that the district court erred when
it allegedly disregarded the way Hughes handled Doe's alternative
culprit defense.11 According to the Does, Hughes's conduct was
prejudicial to Doe since Hughes, through a subordinate, instructed
Rivera that the Board should put J.K. "at ease." This, the Does
conclude, is an indication that J.K. received special treatment
and, thus, Doe's case was not "fairly considered" by the Board.
Just like it is reasonable for a student to expect that
a school's basic fairness guarantee excludes outside influences in
the Board's deliberations, it is also reasonable for a student to
expect that a basic fairness guarantee excludes having an associate
Dean of Students request Board members to give special treatment
to the prime alternative culprit in a case in which the key defense
is that someone other than the accused student committed the
alleged sexual assault. On Sunday, November 11, 2012, after the
11 Although the Does raise this claim principally in challenging
B.C.'s failure to conduct a threshold evaluation of the situation,
we think that it fits more comfortably under the heading of
"Interference with the Board."
-35-
first day of Doe's disciplinary hearing, Hughes emailed a summary
of several steps taken as to Doe's case to Herlihy and a
subordinate employee from B.C.'s Office of the Dean of Students.
Regarding J.K., Hughes wrote: "I was very clear with J.K. that he
was coming as a witness and was not being charged with anything.
I think it might be good to talk to [Rivera] about how the [B]oard
might also put him at ease." The phrase "at ease" may encompass
many accommodations, and that phrase is nowhere defined in the
summary judgment record.
Doe's disciplinary hearing continued on November 16,
2012, (the day in which J.K. testified). Whether or not Hughes's
directive to her subordinate about talking to Rivera on how the
Board might put J.K. at ease breached Doe's reasonable expectation
that B.C. would provide him "a fair procedure" is, on this opaque
record, a material fact with regard to the Does' breach of contract
claim that should be resolved by the jury. We therefore vacate
the district court's grant of summary judgment on the Does' breach
of contract claim for the 2012 disciplinary proceeding and remand
for further proceedings consistent with this opinion.
B. Basic Fairness Claim
Next, the Does bring forth a basic fairness claim in
which they argue that B.C.'s alleged breaches of contract, either
all together or any one of them independently, breached B.C.'s
-36-
obligation to provide a fundamentally fair disciplinary process to
Doe. The Does contend that B.C.'s basic fairness obligation is
rooted in two independent sources: (1) the Student Guide itself,
which provides that B.C.'s disciplinary process "exists to protect
the rights of the Boston College community and assure fundamental
fairness to complainants and to students accused of any breach of
the University Code of Student Conduct," and (2) an independent
duty to conduct disciplinary procedures with basic fairness
imposed by Massachusetts law.
We agree with the Does that the implied covenant of good
faith and fair dealings imposed on every contract by Massachusetts
law, applied in the context of school disciplinary proceedings,
creates an independent duty to provide basic fairness. See Uno
Rests., Inc. v. Bos. Kenmore Realty Corp., 805 N.E.2d 957, 964
(Mass. 2004). In Coveney v. President & Trs. of Coll. of Holy
Cross, the Massachusetts Supreme Judicial Court ("SJC") recognized
that even where a student does not have a contractual right to a
disciplinary hearing, if a school does hold a hearing, the school
has a duty to conduct it with basic fairness. See Cloud, 720 F.2d
at 725 n.2 (citing Coveney, 445 N.E.2d 136, 139 (Mass. 1983))
("[W]hen a hearing is held, it must be conducted fairly.").
However, whenever a school expressly promises no less than basic
fairness, which is the case here, the school's implied duty becomes
-37-
superfluous and the court's analysis to ensure that the
disciplinary proceedings were "conducted with basic fairness,"
Cloud, 720 F.2d at 725, focuses on assuring compliance with the
express contractual promise.
The district court's grant of summary judgment on the
Does' claim for basic fairness rested on its analysis as to the
Does' breach of contract claim. Trs. of Bos. Coll., 2016 WL
5799297, at *23. Because there are genuine issues of material
fact on the Does' breach of contract claim for the 2012
disciplinary proceedings, as discussed above, summary judgment on
the Does' basic fairness claim was also inappropriate. Therefore
we also vacate and remand on this issue.
C. The Does' Breach of Contract Claim for the 2014 Review
In their complaint, the Does allege that the written
communications they exchanged with Father Leahy in 2014 (two
letters sent by Doe's parents and a couple of e-mails exchanged
between James and Father Leahy) formed a binding contract between
B.C. and the Does, which required B.C. to conduct an independent
review of the 2012 disciplinary proceedings. They allege that
B.C. breached this contract because the 2014 review was "anything
but" independent.
The Does contend that these communications satisfied all
the elements of a valid contract. That is, that there was an
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offer, acceptance, and consideration, resulting in each party
having obligations. In exchange for Father Leahy's offer for an
independent review, the Does allege that they forbore the pursuit
of legal action against B.C., serving as the consideration in the
contract formation. Lastly, the Does point to Massachusetts case
law to support their contention that a contract was formed, even
though not all terms had been precisely identified. See Situation
Mgmt. Sys., Inc. v. Malouf, Inc., 724 N.E.2d 699, 703 (Mass. 2000).
Alternatively, the Does contend that any dispute as to whether or
not a contract was formed should be resolved by a jury, and not on
summary judgment.
Boston College counters that the Does' breach of
contract claim for the 2014 review fails for two reasons. One,
they argue that the aforementioned written exchange failed to meet
the basic elements of contract formation, meaning there was no
contract to be breached by B.C. In particular, they point to the
lack of any manifest intention by Father Leahy to be bound by any
particular terms of an agreement. Two, B.C. maintains that even
if the Court were to assume that an enforceable contract existed,
the Does cannot identify any specific failure or omissions by B.C.
that would constitute a breach. B.C. contends that the Does'
disagreement with Jones's conclusion in her review is not a triable
issue of fact regarding a breach of any agreement.
-39-
"Although the question of contract formation is
typically a question for the factfinder, and would thus be subject
to clear error review, where 'the evidentiary foundation for
determining the formation of the parties' contract [is] either
undisputed or consist[s] of writings,' contract formation is
instead a question of law for the court." TLT Constr. Corp. v.
RI, Inc., 484 F.3d 130, 135 (1st Cir. 2007) (citation omitted)
(quoting Lambert v. Kysar, 983 F.2d 1110, 1114 n.4 (1st Cir.
1993)). Here, we find ourselves in the latter situation.
The essential elements for the formation of a contract
under Massachusetts law consist of an offer, acceptance, and
consideration. See Quinn v. State Ethics Comm'n, 516 N.E.2d 124,
127 (Mass. 1987). In particular, the SJC has explained that in
determining whether an enforceable contract has been created
"there must be agreement between the parties on the material terms
of that contract, and the parties must have a present intention to
be bound by that agreement." Lambert v. Fleet Nat. Bank, 865
N.E.2d 1091, 1095 (Mass. 2007) (quoting Situation Mgmt. Sys., Inc.,
724 N.E.2d at 703). Not all terms of an agreement must be
"precisely specified, and the presence of undefined or unspecified
terms will not necessarily preclude the formation of a binding
contract." Situation Mgmt. Sys., Inc. 724 N.E.2d at 703.
-40-
As to the element of consideration, "the contract must
be a bargained-for exchange in which there is a legal detriment of
the promisee or a corresponding benefit to the promisor." Neuhoff
v. Marvin Lumber & Cedar Co., 370 F.3d 197, 201 (1st Cir. 2004)
(citing Hinchey v. NYNEX Corp., 144 F.3d 134, 142 (1st Cir. 1998)).
And while "abandonment of a claim believed to be well founded . . .
is the surrender of a thing of value and is a sufficient
consideration for a contract," Blair v. Cifrino, 247 N.E.2d 373,
375 (Mass. 1969) (quotations and citations omitted), the "[m]ere
forbearance to sue a claim, without any promise either in express
terms or by fair implication from all of the circumstances, does
not form sufficient consideration." Merrimac Chem. Co. v. Moore,
181 N.E. 219, 222 (Mass. 1932).
Even with all reasonable inferences resolved in favor of
the Does, we cannot conclude that their 2014 written communications
with Father Leahy created a binding contract. A complete reading
of the record validates our conclusion. It is true that James
informed Father Leahy, though somewhat indirectly, that the Does
were prepared to "file a lawsuit against [B.C.]," in order to
correct the alleged injustice. Yet nothing in the record shows
that the Does expressed any willingness to forego their right to
file that lawsuit. While it is true that the forbearance of one's
right to sue may be implied under certain circumstances, see id.,
-41-
Father Leahy's response to the Does' letters was limited to a
suggestion that James contact B.C.'s Vice President for Student
Affairs. Nothing in the record hints Father Leahy's suggestion
was a contractual offer or promise made to persuade the Does to
abandon a possible lawsuit. Cf. Neuhoff, 370 F.3d at 202 (finding
that a retail promise was not given to induce the abandonment of
a lawsuit).
Because there was no consideration, no enforceable
contract was formed from the written communications between the
Does and Father Leahy. Therefore, we affirm the district court's
grant of summary judgment in favor of B.C. as to the Does' breach
of contract claim for the 2014 review.
D. Title IX Claims
Next, the Does challenge the district court's summary
judgment dismissal of their Title IX claims. In their complaint,
the Does pursued Title IX discrimination claims for erroneous
outcome based on gender bias and deliberate indifference. We
consider them in turn.
1. Erroneous Outcome based on Gender Bias
Title IX provides that "[n]o person in the United States
shall, on the basis of sex . . . be subjected to discrimination
under any education program or activity receiving Federal
financial assistance." 20 U.S.C. § 1681(a). This provision is
-42-
enforceable "through an implied private right of action." Gebser
v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998) (citing
Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979)). The Does'
Title IX claims rest on challenging B.C.'s disciplinary procedures
as discriminatory. Neither the Supreme Court nor this Circuit have
adopted a framework for analyzing claims by students challenging
a university's disciplinary procedures as discriminatory under
Title IX. We need not establish one at this moment. The parties
agree that the applicable standard for the Does' Title IX claim
challenging B.C.'s disciplinary procedures on erroneous outcome
grounds requires that a plaintiff offer evidence "cast[ing] some
articulable doubt on the accuracy of the outcome of the
disciplinary proceeding," and indicating that "gender bias was a
motivating factor."12 Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d
Cir. 1994).13
12 We note that the Sixth Circuit has also consistently applied
this same standard when facing Title IX claims under the theory of
erroneous outcome. See Doe v. Miami Univ., 882 F.3d 579, 592 (6th
Cir. 2018) (applying the same criteria as Yusuf for a Title IX
erroneous outcome claim to reverse the district court's grant of
a motion to dismiss for failure to state a claim); Doe v. Cummins,
662 F. App'x 437, 451-52 (6th Cir. 2016) (applying the same
criteria for a Title IX erroneous outcome claim to affirm the
district court's grant of a motion to dismiss under Fed. R. Civ.
P. 12(b)(6)); Mallory v. Ohio Univ., 76 F. App'x 634, 638-39 (6th
Cir. 2003) (applying the same criteria for a Title IX erroneous
outcome claim to affirm the district court's grant of a summary
judgment).
13 We also note that the Second Circuit recently held that "the
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The Does argue that the record contains sufficient
evidence to support their erroneous outcome claim that B.C.'s
procedures were infected with gender bias.14 Their argument is
threefold. First, they contend that B.C.'s procedures are
infected with systemic gender bias. This is so, they say, despite
the fact that the University's statistics show that, since 2005,
ten of thirty-two students accused of sexual assault were not found
responsible in their disciplinary proceedings. Even though these
temporary presumption afforded to plaintiffs in employment
discrimination cases under Title VII applies to sex discrimination
plaintiffs under Title IX as well." Doe v. Columbia Univ., 831
F.3d 46, 56 (2d Cir. 2016). But see Miami Univ., 882 F.3d at 589
(declining to follow the Second Circuit's reasoning for extending
Title VII's temporary presumption to Title IX sex discrimination
plaintiffs because of differing Sixth Circuit precedent regarding
the pleading standard under Title VII). We take no position as
to whether such a presumption applies to Title IX claims because
even if it did, it would not affect the outcome of this case.
14 The Does also allege in their brief that the district court
misapplied the "[s]tandard in evaluating the [e]vidence of
[g]ender [b]ias" because it "improperly placed the burden on [Doe]
to 'provide "statements by members of the disciplinary tribunal"
or "statements by pertinent university officials" that demonstrate
the improper influence of gender on the proceedings.'" Because
we review de novo the district court's grant of summary judgment,
this argument is immaterial. However, the Does misstate and
misquote the district court's ruling on this matter. In its
memorandum and order, the district court did not require Doe to
offer direct proof of gender bias, but instead ruled that, to
answer the question of "whether the college's actions were
motivated by gender bias," a plaintiff "can . . . show[] [this]
via statements by members of the disciplinary tribunal." Trs. of
Bos. Coll., 2016 WL 5799297, at *24 (emphasis added) (internal
citation omitted).
-44-
statistics might suggest that B.C.'s proceedings are not infected
with gender bias, the Does claim that it is a pervasive belief at
B.C. that accusers are always female and perpetrators are always
male, and this belief infects all proceedings with gender bias.
This systemic gender bias, the Does continue, is confirmed by the
terminology B.C. employs in its written policies and procedures:
accusers are branded "victims" or "victims/survivors," while an
accused student is labeled a "perpetrator." Together, they argue,
these facts show a systemic gender bias against accused males.
Next, the Does maintain that gender bias played a role
in B.C.'s procedures because B.C. administrators were influenced
by outside pressure. Specifically, the Does point to pressure
exerted by the U.S. Department of Education and its Office of Civil
Rights's April 2011 "Dear Colleague" Letter, which tied federal
funding for private colleges to their compliance with certain
requirements for handling sexual harassment and sexual violence on
their campuses.15 Lastly, the Does assert that there is enough
evidence to prove that there was a "pattern of decision-making" in
Doe's case in which gender bias was the motivating factor. First,
the Does claim that the Commonwealth's decision to dismiss the
15 See "Dear Colleague" Letter from Russlynn Ali, Assistant Sec'y
for Civil Rights, U.S. Dep't of Educ. (Apr. 4, 2011),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-
201104.pdf.
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criminal charges against Doe serves as evidence of his innocence.
Second, they list several occurrences which allegedly show a
"pattern of decision-making" explained solely by gender bias,
including inter alia: (1) Hughes's treatment of and contempt
towards Doe; (2) Hughes and Chebator's interference with the Board
by "discouraging" a "no finding" result; (3) the Board's refusal
to wait for the results of the forensic tests; and (4) the
presumption of Doe's guilt.16
On the other hand, B.C. contends that the Does' erroneous
outcome claim fails because they have been unable to produce any
evidence that would suggest gender bias by the B.C. administrators
or any of the decision makers involved in Doe's disciplinary
proceedings, or that the outcome of Doe's disciplinary proceeding
was influenced by gender bias. Nor is there evidence that B.C.
was influenced by external pressures. Therefore, gender bias
could not have been a motivating factor in the disciplinary
decision.
16 The Does also allege that the failure to reverse the outcome
of Doe's 2012 disciplinary proceedings could only be explained by
gender bias. This argument lacks any meaningful development and
should therefore be deemed waived, see United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990), and it is also unfounded since
they do not offer any evidence that Jones, who conducted the
review, was motivated by gender bias.
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To succeed on their erroneous outcome claim, the Does
must offer evidence (1) that would "cast some articulable doubt on
the accuracy of the outcome of the disciplinary proceeding" and
(2) show "gender bias was a motivating factor." Yusuf, 35 F.3d
at 715. The Does fail on the second prong.
Even assuming that the Dean's interference with the
Board's deliberations cast some articulable doubt on the outcome,
none of the arguments put forth by the Does -- or evidence which
they point us to -- tend to show that there was a causal connection
between the outcome of Doe's disciplinary proceedings and gender
bias. To show this causal link, the Does cannot merely rest on
superficial assertions of discrimination, but must establish that
"particular circumstances suggest[] that gender bias was a
motivating factor." Id.
First, we are unmoved by the Does' contention that B.C.'s
procedures are infected with a systemic gender bias based on the
fact that between August 1, 2005 and July 1, 2015, only male
students have been accused of sexual assault. It is unreasonable
to draw such an inference from this information rather than
recognize that other non-biased reasons may support the gender
makeup of the sexual misconduct cases at B.C. See Cummins, 662
F. App'x at 453-54. The gender of the students accused of sexual
assault is the result of what is reported to the University, and
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not the other way around. Furthermore, the language used in B.C.'s
written procedures is, on its face, gender neutral. The
procedures make no mention of men or women but rather use terms
like "victim," "survivor," "alleged perpetrator," "complainant,"
or "accused student."17 Actually, throughout the Student Guide,
both victims and the accused are referred to as "he or she,"
indicating that B.C. believes that men and women can both be
victims and perpetrators. The Does have pointed to no
circumstantial evidence, other that the statistics of male accused
students and the language in the Student Guide, that would suggest
that gender bias played a role in the outcome of the proceedings
in this case. As this case comes to us on a motion for summary
judgment, after the parties have engaged in substantial discovery,
a complete lack of evidence -- whether direct or circumstantial
-- will not allow a party to survive a motion for summary judgment.
Conclusory allegations are not enough.
Secondly, while the Does may rely on circumstantial
evidence alone to prove that there was a discriminatory pattern of
decision-making, see Burns, 829 F.3d at 8 (holding that a plaintiff
17 While subsection five of Section Four of the Student Guide
makes one reference to "female victims/survivors," it is to
guarantee the female students the right to have a female officer
present during interviews with the B.C. Police. This reference
to "female student" does not illustrate gender bias.
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may rely on circumstantial evidence to prove sex discrimination
under Title VII),18 none of the circumstances of Doe's disciplinary
proceedings indicate that gender bias was a "motivating factor"
behind the Board's determination. In fact, the record contains
gender-neutral explanations for the outcome of Doe's case -- mainly
that the Board concluded that there was enough evidence to support
its finding.19 While we remand this case as to the Does' breach
of contract claim for the 2012 disciplinary proceedings because we
have found that there is a dispute regarding whether there was any
inappropriate interference with the Board's decision, the record
does not show that even if there was an interference, gender bias
was a motivating factor. See supra III.A.I.6.a.
Finally, the Does' argument that B.C. administrators
were influenced by outside pressure, in particular the U.S.
Department of Education's April 2011 "Dear Colleague" Letter, is
both conclusory and meritless. The Does have not explained how
18 We may turn to Title VII for guidance on Title IX claims. See
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 65 (1st Cir. 2002)
(citing Wills v. Brown Univ., 184 F.3d 20, 25 n.3 (1st Cir. 1999)).
19 The record shows that Board Members: (1) understood that their
finding had to be grounded on the preponderance of the evidence;
(2) knew that Doe did not have the burden to prove his innocence;
(3) discussed all the evidence presented during the hearings; (4)
felt that there was enough evidence to support a finding; and (5)
found that Doe had committed the sexual assault by touching A.B.'s
buttocks.
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the Dear Colleague Letter reflects or espouses gender bias. This
necessarily dooms their argument that the Letter somehow infected
the proceedings at issue here with gender bias. More than
"conclusory allegations, improbable inferences, and unsupported
speculation" is required to defeat summary judgment. LeBlanc v.
Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993) (citations
omitted).
Accordingly, we affirm the district court's grant of
summary judgment in favor of B.C. as to the Does' Title IX
erroneous outcome claim.
2. Deliberate Indifference
To succeed on a Title IX deliberate indifference claim,
a plaintiff must show that an official with authority to implement
corrective measures was aware of and deliberately indifferent to
an act of discrimination on the basis of sex. See Gebser, 524
U.S. at 277. "[T]he deliberate indifference must, at a minimum,
'cause [students] to undergo' harassment or 'make them liable or
vulnerable' to it." Porto v. Town of Tewksbury, 488 F.3d 67, 72
(1st Cir. 2007) (quoting Davis v. Monroe Cty. Bd. of Educ., 526
U.S. 629, 645 (1999)). The discriminatory act must be "so severe,
pervasive, and objectively offensive that it can be said to deprive
the victims of access to the educational opportunities or benefits
provided by the school." Id. (quoting Davis, 526 U.S. at 650).
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We need not delve too deeply into this issue since the
Does' arguments here rely on their unsuccessful Title IX erroneous
outcome claim. The Does contend that gender bias was a motivating
factor in the outcome of Doe's disciplinary proceedings and then
again during B.C.'s 2014 review, that this amounted to an act of
sex discrimination, and that B.C. officials deliberately ignored
it. Regarding Doe's disciplinary proceedings, the Does allege
that Chebator knew back in 2012 that B.C.'s training of hearing
boards was insufficient, and that deficiency was never corrected,
meaning that he was aware that the Board in Doe's case was
insufficiently trained. Concerning B.C.'s 2014 review, the Does
argue that James and Mary's letters informed Father Leahy, Jones,
and Herlihy, of the gender-biased misconduct in Doe's disciplinary
proceedings, but that these B.C. officials, collectively and
individually, decided not to address it.
While the Does successfully show that B.C. officials
were on notice of their allegation that Doe's disciplinary
proceedings produced an erroneous outcome because it was
influenced by gender bias, the Does' Title IX deliberate
indifference claim is unsuccessful. Their claim fails for the
same reasons that we discussed above: they are unable show that
any of the particular circumstances that allegedly contributed to
an erroneous outcome were motivated by gender bias. See supra
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III.D.1. Without underlying acts of discrimination, there can be
no Title IX deliberate indifference claim. See City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (holding that, in
suits brought under 42 U.S.C. § 1983, an underlying constitutional
violation by officers is necessary for a successful municipal
liability claim); see also Evans v. Avery, 100 F.3d 1033, 1039-40
(1st Cir. 1996) (following Heller in the context of a liability
claim on a theory of deliberate indifference). Therefore, we
affirm the district court's grant of summary judgment in favor of
B.C. as to the Does' Title IX deliberate indifference claim.
E. Negligence Claims
The Does also argue that the district court erred in
dismissing their negligence claims and holding that neither B.C.
nor any of the individual defendants owed them a duty of care.
Under Massachusetts law, "[w]hether or not a duty of care existed
is a question of law for the court." Gorfinkle v. U.S. Airways,
Inc., 431 F.3d 19, 23 (1st Cir. 2005) (citing O'Sullivan v. Shaw,
726 N.E.2d 951, 954 (Mass. 2000)). Such a duty could find its
source either in "existing social values and customs" or where it
has been "voluntarily assumed" by a defendant. Mullins v. Pine
Manor Coll., 449 N.E.2d 331, 335-336 (Mass. 1983) (quoting
Schofield v. Merrill, 435 N.E.2d 339, 341 (Mass. 1982) and citing
Black v. N.Y., N.H., & H.R. Co., 79 N.E. 797, 798 (Mass. 1907)).
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The Does argued below that once the University placed
Doe under the student disciplinary process, B.C. and the individual
defendants owed Doe an independent duty to conduct such
disciplinary process with due care. It is the Does' contention
that B.C. voluntarily assumed this duty when it accepted federal
funds and followed Title IX's regulations regarding sexual
assault, which created the risk that Doe could be wrongfully
branded as a perpetrator of sexual assault for the rest of his
life.
We, however, do not find that B.C. or the individual
defendants owed the Does any independent duty of care in this
context. As explained earlier, in the context of school
disciplinary hearings, the court's duty is to "review the
procedures followed to ensure that they fall within the range of
reasonable expectations of one reading the relevant rules."
Cloud, 720 F.2d at 724-25. In turn, "[w]e also examine the hearing
to ensure that it was conducted with basic fairness." Id. at 725.
When an "alleged obligation to do or not to do something that was
breached could not have existed but for a manifested intent, then
contract law should be the only theory upon which liability would
be imposed." Treadwell v. John Hancock Mut. Life Ins. Co., 666
F. Supp. 278, 289 (D. Mass. 1987) (citing W. Prosser & W. Keeton,
Torts § 92, at 656 (5th ed. 1984)). Neither party disputes that
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the contractual relationship between Doe and B.C. arises from the
Student Guide and the Conduct Board Procedure, and that these
documents prescribe the disciplinary process. Because it is clear
that Doe's disciplinary proceedings arose from this contractual
relationship, we hold that B.C. did not owe the Does any additional
independent duty outside of their existing contractual
relationship. Any remedy for a breach of this contractual
obligation must sound in contract, not in tort.
When Massachusetts courts have recognized certain legal
duties imposed on universities through their "voluntary
assumption" of care, they have done so narrowly. See Nguyen v.
Mass. Inst. of Tech., 96 N.E.3d 128, 140-41 (Mass. 2018)
(discussing the modern university-student relationship in
Massachusetts tort law); Mullins, 449 N.E.2d at 336 (finding that
a college undertook a duty to protect students against foreseeable
criminal acts of third parties because the school charged students
a dormitory fee for this service) (emphasis added).; Bash v. Clark
Univ., No. 06745A, 2006 WL 4114297, at *4-5 (Mass. Super. Ct. Nov.
20, 2006) (finding no duty to protect a student from voluntary
consumption of illegal drugs because of Mullins's foreseeability
requirement); Doe v. Westlake Acad., No. 97-cv-2187, 2000 WL
1724887, at *7 (Mass. Super. Ct. Nov. 21, 2000) (explaining the
foreseeability limitation of a University's duty of care under the
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student-university special relationship); Erickson v. Tsutsumi,
No. CA199801842B, 2000 WL 1299515, at *2 (Mass. Super. Ct. May 17,
2000) (recognizing that Mullins limited its holding to situation
in which a duty of care is traditionally imposed). As there are
specific rules governing student disciplinary proceedings under
the existing contractual relationship between Doe and B.C., and
given Massachusetts courts' narrow construction of the scope of a
university's voluntary assumption of care, expanding it here would
be inappropriate.
As to the individual defendants, the Massachusetts
Supreme Judicial Court has held that "[a]bsent a legal duty, there
can be no personal liability." Lyon v. Morphew, 678 N.E.2d 1306,
1309 (Mass. 1997). Because B.C. did not owe the Does any
independent duty outside of their existing contractual
relationship, an inquiry as to the individual defendants'
negligence becomes irrelevant. See Lev v. Beverly Enters.-Mass.,
Inc., 929 N.E.2d 303, 313 (Mass. 2010) (explaining that violations
of policies do not create a duty of care in individual defendants
and are only relevant to the negligence inquiry after a duty of
care has been established).
Because we cannot find an independent duty outside of
the contractual relationship between the Does, B.C., or the
individual defendants, we affirm the district court's grant of
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summary judgment in favor of B.C. and the individual defendants on
the Does' negligence claims.
F. Negligent Infliction of Emotional Distress
The Does also contend that the district court erred when
it dismissed their claims for negligent infliction of emotional
distress. However, for the same reasons discussed above, this
claim is a nonstarter. The SJC has summarized that the elements
of negligent infliction of emotional distress include: "(1)
negligence; (2) emotional distress; (3) causation; (4) physical
harm manifested by objective symptomatology; and (5) that a
reasonable person would have suffered emotional distress under the
circumstances of the case." Payton v. Abbott Labs, 437 N.E.2d
171, 181 (Mass. 1982). Because we are unable to find an
independent duty outside of the contractual relationship between
the Does and B.C., the Does' claim fails on the first prong.
Again, the remedy the Does seek is within the confines of a breach
of contract theory and not in tort. We, therefore, affirm the
district court's grant of summary judgment in favor of B.C. and
the individual defendants on the Does' negligent infliction of
emotional distress claims.

Outcome: For the foregoing reasons, we affirm the district
court's grant of summary judgment in favor of B.C. as to the Does'
(1) breach of contract claim for the 2014 review; (2) Title IX
claims, (3) negligence, and (4) negligent infliction of emotional
distress claims, and vacate the district court's grant of summary
judgment as to the Does' (1) breach of contract claim for the 2012
disciplinary proceedings and (2) basic fairness claim. The case
is remanded for further proceedings consistent with this opinion.
Affirmed in Part; Vacated in Part; and Remanded. Each
party shall bear its own costs.

Plaintiff's Experts:

Defendant's Experts:

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