APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Denise J. Casper, U.S. District Judge
Charles B. Wayne, with whom Matthew J. Iverson and DLA Piper
LLP were on brief, for appellants.
Daryl
J. Lapp, with whom Elizabeth H. Kelly and Locke Lord LLP were
on brief, for appellees.
Before
Torruella, Selya, and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
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 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.
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."
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." 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.
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
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 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
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 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
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.
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 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 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 One Beacon 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 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. ...