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Doe v. Brandeis University

United States District Court, D. Massachusetts

March 31, 2016

JOHN DOE, Plaintiff,
v.
BRANDEIS UNIVERSITY, Defendant.

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS

F. Dennis Saylor IV United States District Judge

This is a civil action arising out of an investigation conducted by a university into alleged sexual misconduct. Jurisdiction is based on diversity of citizenship.

Plaintiff “John Doe” was an undergraduate student at defendant Brandeis University. For nearly two years, he and another male Brandeis student, “J.C., ” were engaged in a romantic and sexual relationship. After they broke up, J.C. alleged that John had engaged in sexual misconduct during the relationship. The university conducted an investigation and concluded that John was guilty of sexual misconduct and, among other things, made such a notation in his permanent educational record.

John has brought suit against Brandeis, asserting causes of action for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) estoppel and reliance; (4) negligence; (5) defamation; (6) invasion of privacy; (7) intentional infliction of emotional distress; and (8) negligent infliction of emotional distress.

Brandeis has moved to dismiss all of the claims against it. For the following reasons, the motion to dismiss will be granted in part and denied in part.

TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................. 6

II. FACTUAL BACKGROUND ................................................................................ 13

A. The Relationship between John and J.C. . ................................................... 13

B. The Accusation against John ..................................................................... 15

C. Changes to the Handbooks ......................................................................... 16

D. The Process under the 2011-12 Handbook ................................................. 17

E. The Process under the 2012-13 Handbook ................................................. 20

F. The Process under the 2013-14 Handbook ................................................. 21

1. The Statements Phase ..................................................................... 22

2. The Fact-Finding Phase .................................................................. 23

3. The Discussion Phase ..................................................................... 25

4. The Responsibility Findings Phase ................................................. 26

5. The Deliberations Phase ................................................................. 26

6. The Outcome Notification Phase .................................................... 26

7. The Appeal Phase ............................................................................ 26

8. Access to Records ........................................................................... 27

G. Sexual Misconduct Policies under the 2013-14 Handbook ......................... 28

1. Physical Harm (§ 2.1.d) .................................................................. 28

2. Invasion of Personal Privacy (§ 2.1.e) ............................................ 29

3. Sexual Misconduct (§§ 3.1, 3.2, 3.3) .............................................. 29

4. Sexual Harassment (§ 7.2) .............................................................. 29

H. The Special Examiner’s Investigation ........................................................ 30

I. The Reading of the “Summary” ................................................................. 31

J. The Three-Person Panel and the Sanction .................................................. 32

K. The Appeal ................................................................................................. 33

L. The Special Examiner’s Report .................................................................. 33

1. Allegations Not Sustained by Special Examiner ............................ 34

a. “Unwanted Touching While Walking” .............................. 34

b. “Pornography Incident” ...................................................... 35

c. “Text Messaging Incident” ................................................. 35

d. “Post-Movie Conduct” ....................................................... 35

e. “Decision to Begin Dating” ................................................ 35

f. “Post-Shower Conduct” ...................................................... 36

g. “Mandating that J.C. Sleep Naked” .................................... 36

h. “Attempts to Have J.C. Perform Oral Sex” ........................ 37

2. Allegations Sustained by Special Examiner ................................... 37

a. “Movie Incident” ................................................................ 37

b. “Bathroom Incident” .......................................................... 38

c. “Sexual Conduct While Sleeping” ..................................... 38

d. “Performing Oral Sex on J.C.” ........................................... 39

3. The Special Examiner’s Conclusions as to the End of the Relationship and J.C.’s Decision to Bring Charges ........................ 41

4. The Special Examiner’s Credibility Findings ................................ 41

5. The Special Examiner’s Conclusions ............................................. 43

M. Subsequent Developments .......................................................................... 44

N. Recent Changes to the Process ................................................................... 46

III. PROCEDURAL BACKGROUND ......................................................................... 46

IV. LEGAL STANDARD ............................................................................................. 46

V. ANALYSIS ............................................................................................................. 47

A. Breach of Contract ...................................................................................... 47

1. “Reasonable Expectation” of the Student ....................................... 48

a. Elimination of the “Statements Phase” ............................... 48

b. Elimination of the “Deliberations Phase” ........................... 49

c. Breach of Express Representation as to Conflicts of Interest on Appeals Board ............................................... 52

d. Failure to Use the Hearing Process as Described in the 2011-12 Handbook .................................................... 53

e. Failure to Use the Hearing Process as to Charges of Physical Harm and Invasion of Privacy .......................... 55

f. Failure to Provide a Copy of the Special Examiner’s Report .................................................................................. 56

g. Failure to Maintain Confidentiality of Educational Record ................................................................................. 57

h. Arbitrary and Capricious Findings ...................................... 59

2. “Basic Fairness” .............................................................................. 60

a. Procedural Fairness ............................................................. 63

(1) No Right to Notice of Charges ................................ 64

(2) No Right to Counsel ................................................ 65

(3) No Right to Confront Accuser ................................ 66

(4) No Right to Cross-Examine Witnesses ................... 67

(5) No Right to Examine Evidence or Witness Statements ................................................. 67

(6) Impairment of Right to Call Witnesses and Present Evidence ............................................... 68

(7) No Access to Special Examiner’s Report ............... 69

(8) No Separation of Investigatory, Prosecution, and Adjudication Functions ..................................... 69

(9) No Right to Effective Appeal .................................. 70

(10) Burden of Proof ....................................................... 70

(11) Conclusion ............................................................... 71

b. Substantive Fairness .................................................. …….. 72

(1) The Significance of the Delay in Reporting ............ 73

(2) The Significance of the Relationship ...................... 75

(3) The Significance of J.C.’s Abuse of Alcohol .......... 77

(4) Conclusion .............................................................. 78

3. Summary of Breach of Contract Claims ......................................... 78

B. Breach of the Implied Covenant of Good Faith and Fair Dealing .............. 78

C. Estoppel and Reliance ................................................................................. 80

D. Negligence .................................................................................................. 81

1. Negligent Retention and Supervision ............................................. 81

2. Negligent Failure to Prevent Conflict of Interest ............................ 83

3. Breach of Duty to Maintain Confidentiality of Educational Record .......................................................................... 84

E. Defamation .................................................................................................. 84

1. Defamation Generally ..................................................................... 84

2. Aiding and Abetting Defamation .................................................... 86

F. Invasion of Privacy ..................................................................................... 87

G. Intentional Infliction of Emotional Distress ................................................ 87

H. Negligent Infliction of Emotional Distress ................................................. 89

VI. CONCLUSION ....................................................................................................... 89

I. Introduction

This matter arises from a Brandeis University disciplinary proceeding against plaintiff “John Doe” concerning alleged sexual misconduct. The lawsuit is at a preliminary stage. At this point of the proceeding, the issue for the Court is not whether John actually engaged in any form of sexual misconduct; indeed, the Court is in no position to make such a factual determination. The Court is simply deciding whether John’s claims against Brandeis are sufficiently plausible to survive a motion to dismiss. However, the parties appear to agree on a wide range of facts, including the nature of the procedures employed by Brandeis, the manner in which Brandeis reached its decision, and at least the basic parameters of the relationship between John and J.C., his former boyfriend.

John Doe and J.C. entered Brandeis University as freshmen in the fall of 2011. Both were then approximately 18 years old. In September, they began to have sexual relations. By October, they considered each other boyfriends, and for the next 21 months they were in a romantic and sexual relationship. Their friends believed that they were “happy” and “comfortable” together.

In the summer of 2013, between their sophomore and junior years, J.C. broke up with John. The two remained friends for about four months, but over time their relationship began to deteriorate. At some point, J.C. began to abuse alcohol. He also attended two sessions of university-sponsored “sexual assault training, ” which began (in his words) to change his “thinking” about his relationship with John.

Eventually, in January 2014-two years and four months after they began dating-J.C. filed a complaint of sexual assault against John with Brandeis. That complaint was two sentences long. In its entirety, it read as follows:

Starting in the month of September, 2011, the Alleged violator of Policy [John] had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013.

Like most universities, Brandeis has a process for addressing claims of student misconduct. In 2011, when J.C. and John began at Brandeis, that process involved a variety of steps, including a hearing before a panel of students and administrators to determine whether the misconduct occurred and to recommend a sanction to the university. Among other things, that process involved what Brandeis termed a student’s “rights to fairness, ” such as the right to call witnesses and the right to question one’s accuser.

After 2011, however, Brandeis changed its procedures for cases involving alleged sexual misconduct. It retained its normal processes, including the “rights to fairness, ” for handling matters such as student theft, vandalism, physical violence, hazing, and academic dishonesty. As to sexual misconduct cases, however, Brandeis removed a variety of protections for accused students.

By 2014, Brandeis’s policy in sexual misconduct cases had eliminated a hearing of any kind. Instead, it had instituted a procedure under which a “Special Examiner” was appointed to conduct an investigation and decide the “responsibility” of the accused. That procedure was essentially a secret and inquisitorial process. Among other things, under the new procedure,

• the accused was not entitled to know the details of the charges;
• the accused was not entitled to see the evidence;
• the accused was not entitled to counsel;
• the accused was not entitled to confront and cross-examine the accuser;
• the accused was not entitled to cross-examine any other witnesses;
• the Special Examiner prepared a detailed report, which the accused was not permitted to see until the entire process had concluded; and
• the Special Examiner’s decision as to the “responsibility” (that is, guilt) of the accused was essentially final, with limited appellate review-among other things, the decision could not be overturned on the ground that it was incorrect, unfair, arbitrary, or unsupported by the evidence.

The filing of the complaint by J.C. triggered a “Special Examiner” process at Brandeis. As John eventually learned, J.C. had made twelve sets of allegations against him. The Special Examiner found John “responsible” for four of the twelve claims. None involved claims of rape or other violent sexual assault, or anything like it. Instead, John was found to have committed sexual misconduct in the following ways:

First, at the very beginning of their relationship, John placed J.C.’s hand on John’s (clothed) groin while they were watching a movie in a dormitory room. J.C. now contends that the sexual contact was unwanted. John denies that the contact was non-consensual, and contends that it was simply the first step in their sexual relationship. Among other things, he notes that the two of them had sexual relations for the first time the very next day, and that they continued to have such relations for most of the next two years. He also contends that J.C. afterward recounted the episode in a humorous manner to friends, although the university would not accept his evidence of that fact.

Second, John and J.C. frequently slept together in the same bed during their relationship. According to J.C., John would occasionally wake him up by kissing him, and sometimes persisted when J.C. wanted to go back to sleep.

Third, during the relationship, the two used a communal bathroom in the dormitory, including a communal shower. According to J.C., John would look at his private areas when they were showering together.

Fourth, in May 2013, after they had been dating for about a year and a half, J.C. and John visited J.C.’s father’s house in North Adams, Massachusetts. During the trip, J.C. contends that John attempted to perform oral sex on him when he did not want it. The two got in a fight, and John wound up leaving the bed and lying on the floor. The two then made up, and J.C. apologized to John.

The Special Examiner concluded, based on those incidents, that John had engaged in sexual misconduct, sexual harassment, and invasion of privacy in violation of Brandeis policies. She also concluded that he had committed “violence” against J.C., based on a definition of “sexual violence” that encompassed virtually any form of unwanted sexual activity. Among other things, the Special Examiner based her findings on the following assumptions:

• that the long delay in reporting the alleged misconduct, and the failure to make any contemporaneous complaint, had no bearing at all on J.C.’s credibility;
• that the existence of a 21-month-long relationship was irrelevant to any of the issues in the case, including the issue of consent;
• that John’s kissing of J.C. while he was asleep constituted sexual misconduct, because a person who is sleeping is incapacitated and therefore not capable of giving express consent; and
• that J.C.’s abuse of alcohol after the relationship ended bolstered his credibility, on the ground that victims of sexual assault may abuse substances as a consequence of the assault.

As a result of the Special Examiner Process, John received a “Disciplinary Warning” from the university. That sanction, among other things, carries with it a permanent notation on the student’s educational record; according to the complaint, John’s record will forever state that he committed “serious sexual transgressions, ” without any explanation of the actual conduct involved. In the words of the complaint, John has been “effectively labeled” as a “predatory sexual offender, ” which is a “lifetime liability” for admission to graduate school or obtaining employment. (Am. Compl. ¶¶ 24-25). The complaint also alleges that Brandeis did not keep the process confidential, and that J.C. and other students have referred to John as an “attacker” and a “rapist” in social media postings and in comments to national and local media.

Again, at this point of the proceeding, the Court is not deciding whether John actually engaged in any form of sexual misconduct. But the parties agree on many of the critical facts, including the process Brandeis used to resolve the matter and the contents of the Special Examiner’s Report. And even the agreed-upon facts are sufficient to raise serious and substantial concerns as to whether John was treated fairly.

Brandeis, of course, is not a governmental entity, or even a public university. It is not bound by the requirements of the Sixth Amendment, such as an accused’s right to be informed of the nature of the charges, the right to counsel, or the right to confront and cross-examine one’s accuser. Its proceeding was not a criminal prosecution; the university had no power to incarcerate John or deprive him of his property. And it is not generally the role of the federal courts to tell a private university how to conduct its affairs.

Nonetheless, Brandeis’s authority to discipline its students is not entirely without limits. Although the relationship between the university and its students is essentially contractual, the university’s disciplinary actions may also be reviewed by the courts to determine whether it provided “basic fairness” to the student. While that concept is not well-defined, and no doubt varies with the magnitude of the interests at stake, it is nonetheless clear that the university must provide its students with some minimum level of fair play.

When considering the issues presented in this case, it is impossible to ignore entirely the full context in which they arose. In recent years, universities across the United States have adopted procedural and substantive policies intended to make it easier for victims of sexual assault to make and prove their claims and for the schools to adopt punitive measures in response. That process has been substantially spurred by the Office for Civil Rights of the Department of Education, which issued a “Dear Colleague” letter in 2011 demanding that universities do so or face a loss of federal funding. See Russlynn Ali, Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (“Dear Colleague Letter”). The goal of reducing sexual assault, and providing appropriate discipline for offenders, is certainly laudable. Whether the elimination of basic procedural protections-and the substantially increased risk that innocent students will be punished-is a fair price to achieve that goal is another question altogether.

Because the changes to the process were impelled in large part by the federal government, the issues presented here are not entirely unique, and not confined to a single campus. See Doe v. Brown Univ., 2016 WL 715794, at *1 (D.R.I. Feb. 22, 2016); Jacob E. Gersen & Jeannie Suk, The Sex Bureaucracy, 104 Cal. L. Rev. (forthcoming) at 15-16. For example, in July 2014, Harvard University adopted a new university-wide policy on sexual harassment and sexual violence that appears to have substantial similarities to the Brandeis policy at issue here. See Rethink Harvard’s Sexual Harassment Policy, Boston Globe (Oct. 15, 2014), https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html. In response, 28 members of the Harvard Law School faculty issued a statement voicing their “strong objections” to the policy. Id.

Among other things, the statement concluded that “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.” Id. It called upon Harvard to “begin the challenging project of carefully thinking through what substantive and procedural rules would best balance the complex issues involved in addressing sexual conduct and misconduct in our community.” Id.

The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.

Id.

Like Harvard, Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts. If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.

Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome, and a fair and neutral fact-finder, not predisposed to reach a particular conclusion. The principal question for the Court is whether the complaint plausibly alleges that Brandeis denied John the “basic fairness” to which he was entitled. For the reasons set forth below, the Court concludes that it does.

II. Factual Background

The facts are set forth as alleged in the amended complaint and in documents submitted as exhibits to the amended complaint. In addition, the Court has also taken certain facts from documents submitted whose authenticity is not disputed and that are central to plaintiff’s claim. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (explaining that documents whose authenticity is “not disputed by the parties” and “documents sufficiently referred to in the complaint, ” among other categories, may be considered on a motion to dismiss).[1]

A. The Relationship between John and J.C.

Brandeis University is a private university located in Waltham, Massachusetts. (Am. Compl. ¶ 37). It is named for Louis D. Brandeis, a former Associate Justice of the United States Supreme Court and one of the most distinguished judges in the history of the United States. (See id.).

Plaintiff “John Doe” and “J.C.” met in August 2011 on the first day of orientation before their freshman year at Brandeis. (Id. ¶¶ 2, 43). At the time, John was 17 years old; J.C. was 18. (Id. ¶ 43).

The complaint alleges that John was “unsure of his sexual orientation, and had never engaged in sexual activity with another man.” (Id.). J.C. was “openly gay and sexually experienced”; John was neither. (Id.). The two quickly became “close friends”; J.C. “knew that John was attracted to him, and they began to flirt with each other.” (Id. ¶ 44).

John and J.C. began having sexual relations in mid-September 2011. (Id. ¶¶ 45-47). “In October 2011, John ‘came out of the closet’ to his parents, and he and J.C. revealed to their Brandeis friends that they were boyfriends.” (Id. ¶ 46).

For a period of 21 months, between September 2011 and July 2013, John and J.C. were in an “intimate, sexually active, and . . . exclusive dating relationship.” (Id. ¶ 47). The period in question, in substance, included their entire freshman and sophomore years.

During that entire time, J.C. never complained to John, their friends, their relatives, any Brandeis administrator, any member of campus police, or any member of the law enforcement community about John’s conduct. (Id. ¶¶ 10, 51). Specifically, J.C. never complained that John had performed any sexual act without his consent, had invaded his privacy, had sexually harassed him, or had caused him physical harm. (Id.).

In July 2013, J.C. broke up with John. (Id. ¶ 55). J.C. did so because he “felt they had lost a connection” and because “John was not strong-willed enough”; he wanted a “more forceful” partner who would “stand up to him more.” (Id.).

After the relationship ended, the two remained cordial for a period of about four months. (Id. ¶ 56). They had dinner with friends, worked together on campus projects, and exchanged friendly e-mail messages. (Id.).

Near the end of 2013, however, their friendship deteriorated. (Id. ¶ 57). John was “put off because J.C. . . . had started drinking alcohol to excess, which John perceived as hypocritical given J.C.’s insistence during the [r]elationship that John not drink alcohol.” (Id.).[2]

B. The Accusation against John

In January 2014, J.C. “observed that a gay male student seemed to be attracted to John.” (Id. ¶ 58). J.C. was also attracted to the student, and John believed that J.C. was jealous of his interest in the other man. (Id. ¶¶ 58, 127). On January 13, 2014, J.C. sent the student a Facebook “friend request, ” which the student declined. (Id. ¶ 58).

The next day, January 14, 2014-more than six months after their relationship ended, and approximately 28 months after their first sexual contact-J.C. accused John for the first time of sexual misconduct. (Id. ¶ 59). He did so by filing a formal complaint, called a “community standards report” (“CSR”), with Brandeis. (See id.).

That CSR, in its entirety, stated as follows: “Starting in the month of September 2011, the Alleged Violator of Policy [John] had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013.” (Id.).

According to the complaint, on the same day the report was filed, Brandeis’s Dean of Students, Jamele Adams, took “punitive action” against John “without giving [him] an opportunity to explain his side of the story.” (Id. ¶ 60). Adams banned John from his residence, classes, paid campus job, community advisor position, and “high-ranking student-elected position on a University Board, ” and “sequestered him in a campus facility.” (Id.). Adams did so based only on the two-sentence allegation contained in J.C.’s report. He had “no knowledge of any facts” underlying the allegation, and “had no information remotely suggesting John was a danger to J.C. or the Brandeis community.” (Id.).

Two days later, on January 16, 2014, Brandeis notified John that J.C.’s accusations raised six potential violations of Brandeis’s “Rights and Responsibilities” booklet: (1) sexual misconduct; (2) taking sexual advantage of incapacitation; (3) lack of consent to sexual activity; (4) sexual harassment; (5) causing physical harm to another; and (6) invasion of privacy. (Id. ¶ 61). Brandeis did not further elaborate or “inform John of any of the alleged acts that formed those claims.” (Id.). Brandeis also notified John that his case would be handled through its new “Special Examiner’s Process.” (Id. ¶ 62).

C. Changes to the Handbooks

When John entered Brandeis as a freshman in August 2011, the university’s method of handling claims of student misconduct was through a process called the Student Conduct Hearing Process. That process was set forth in detail in the 2011-12 edition of the “Rights and Responsibilities” Handbook (the “2011-12 Handbook”), which functions as Brandeis’s student handbook. (Am. Compl. Ex. A, 2011-12 Handbook §§ 18.0-23).[3] John acknowledges that he agreed to be bound by the rules and regulations contained in the 2011-12 Handbook as a condition of his enrollment. (Am. Compl. at ¶ 169).

As set forth below, the process set forth in the Handbook for claims of sexual misconduct changed each year that John was at Brandeis. It appears that many of the changes were implemented as a result of a “Dear Colleague” letter issued in April 2011 by the United States Department of Education, Office for Civil Rights, that purported to interpret Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 C.F.R. Part 106. See Dear Colleague Letter.[4]

According to the complaint, because the alleged incidents occurred during the 2011-12 and 2012-13 academic years, the procedures set forth in those Handbooks should have been used in the course of the investigation. (Am. Compl. ¶ 69). Instead, Brandeis applied the 2013-14 Handbook to govern the procedures to be used in the Special Examiner Process, ostensibly because J.C. filed the charges in the 2013-14 academic year. (Id.).

Because the central claim of the complaint is for breach of contract, and because the student handbooks comprising the contract changed each year, a detailed examination of each handbook is warranted.

D. The Process under the 2011-12 Handbook

Both John and J.C. entered Brandeis as freshmen in the fall of 2011. In the 2011-12 Handbook, a student accused of serious misconduct was given the right, among other things, to be informed of the charges against him in detail:

In cases where [the University] decides that there is evidence of a violation that warrants referral to the conduct system the accused student will be contacted to schedule a preliminary meeting with the appropriate administrator . . . . This meeting will serve to inform the student of the details of the charges and educate the student about the conduct system. The student will have the opportunity to ask questions and make statements. After this preliminary meeting the student will receive written charges.

(2011-12 Handbook § 19.1).[5]

Under the 2011-12 Handbook, a student accused of misconduct had a right to request a hearing before a Student Conduct Board. (Id. ยง 19.1). The Student Conduct Board consisted of two students and two faculty members for academic violations, and three ...


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