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Doe v. Trustees of Boston College

United States Court of Appeals, First Circuit

June 8, 2018

JOHN DOE, MARY DOE, and JAMES DOE, Plaintiffs, Appellants,


          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. ...

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