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Walker v. President & Fellows of Harvard College

United States District Court, D. Massachusetts

December 30, 2014


For Megon Walker, Plaintiff: John J.E. Markham, II, LEAD ATTORNEY, Bridget A. Zerner, Markham & Read, Boston, MA.

For Harvard University Fellows and President, also known as Harvard Corporation, Ellen Cosgrove, Llloyd Weinreb, Bradley Hamburger, Lindsay Kitzinger, Defendants: Daryl J. Lapp, LEAD ATTORNEY, Jamie Notman Dalton, Edwards Wildman Palmer LLP - MA, Boston, MA.



Plaintiff Megon Walker sued defendants President and Fellows of Harvard College, Ellen Cosgrove, the Dean of Students at Harvard Law School, and Lloyd Weinreb, Professor of Law at Harvard Law School and Chair of its Administrative Board, for breach of contract and defamation, seeking damages and injunctive relief. Defendants have moved for summary judgment.

I. Facts

The plaintiff attended Harvard Law School (" HLS" ) from 2006 to 2009. She was a member of the Journal of Law and Technology (" JOLT" ) all three years. As a first year student, she was a " sub-citer," verifying the accuracy of citations and quotations of draft articles JOLT selected for publication. In plaintiff's third year of law school, JOLT accepted her application to write a case comment on In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc),[1] for publication in the journal that spring. Plaintiff was expected to present a completed draft by February 1, 2009, and she understood that the draft would have to include citations to her sources.

Ms. Walker delivered a first draft of her comment to JOLT on February 2, 2009, a second draft on February 8, 2009, and a third draft on February 16, 2009. Plaintiff's fourth and final draft was due February 22, 2009. She turned it in late, on February 24, 2009.

After sub-citing of plaintiff's draft comment was completed, JOLT staff began " tech edits," in which the focus is on spelling, grammar, punctuation and other errors. During this process, concerns arose that plaintiff's argument was derivative of one of the dissents in the Bilski case and that it was similar to other published pieces. As a result of these concerns, the co-Editors-in-Chief of JOLT, Bradley Hamburger and Lindsay Kitzinger, decided to halt further production until their concerns could be addressed.

Mr. Hamburger reviewed plaintiff's entire draft for plagiarism, using Google to run internet searches on full sentences from her final draft. Hamburger found that significant portions of the article had been copied from other publications concerning the Bilski case, and Walker had either not attributed those portions or had done so improperly. He stopped this process after documenting twenty-three instances of apparent plagiarism.

After showing this evidence to Ms. Kitzinger, Mr. Hamburger and Ms. Kitzinger brought the matter to the attention of Dean of Students Ellen Cosgrove. Dean Cosgrove in turn notified the HLS Administrative Board (the " Board" ), which is responsible for academic regulations and standards of conduct at HLS. The Board reviewed the record and voted to go forward on charges of plagiarism. After notifying plaintiff and consulting with her counsel, the Board scheduled a hearing on May 7, 2009.

As Dean of Students, Dean Cosgrove served as the Secretary to the Board. In that capacity, prior to the hearing she provided to each Board member copies of the 29-page statement and 313 pages of exhibits plaintiff's attorneys submitted. The Dean also worked with plaintiff's attorneys to help them collect evidence, including internal JOLT emails. Dean Cosgrove was not a voting member of the Board.

Though plaintiff attempted to resolve the situation without a hearing, she was informed that plagiarism is too serious a charge to resolve informally. Plaintiff also requested to change her exam schedule to allow more time to prepare for the hearing, but was denied.

At the conclusion of the hearing, the Board issued Walker a formal reprimand, rather than the normal sanction of suspension, thus allowing Walker to graduate on time with her class. The letter of reprimand is kept private in Ms. Walker's file and not published, though it's existence is noted on her transcript. Her transcript is not made available without her consent.

II. Standard of Review

Summary judgment is appropriate when the moving party shows that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering whether or not a genuine issue of material fact exists, the court " must view the evidence in the light most favorable to the opposing party." Tolan v. Cotton,134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014).

Plaintiff contends that Harvard's Handbook of Academic Policies and its Rules Relating to Law School Studies (the " Student Handbook" ) together constitute a binding contract between the university and its students. Compl. ¶ 5. " [A]n entering student forms a contractual relationship with her university and . . . a disciplinary code can be part of that contract." Kiani v. Trustees of Boston Univ., CIVA 04CV11838PBS, 2005 WL 6489754 (D. Mass. 2005). Contracts between students and universities are interpreted " in accordance with the parties' reasonable expectations, giving those terms the meaning that the university reasonably should expect the student to take from them." Havlik v. Johnson & Wales Univ.,509 F.3d 25, 34 (1st Cir. 2007); see Schaer v. Brandeis Univ.,432 Mass. 474, 478, 735 N.E.2d 373 (2000) (citing Cloud v. Trustees of Boston Univ.,720 F.2d 721, 724 (1st Cir. 1983)). Contract interpretation, ...

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