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Doe v. Amherst College

United States District Court, D. Massachusetts

February 28, 2017

JOHN DOE, Plaintiff,


          MARK G. MASTROIANNI United States District Judge

         I. Introduction

         Plaintiff, an individual proceeding under the pseudonym “John Doe”[1] and the son of Asian-American immigrants, enrolled at Amherst College (the “College”) as a first-year student in the fall of 2010. In October of 2013 he was informed that another student, Sandra Jones, had filed a complaint accusing him of sexual misconduct on the night of February 4-5, 2012. Jones alleged that she engaged in consensual sexual activities with Doe, but that Doe continued the activity even after she withdrew her consent. Doe has consistently claimed he had consumed so much alcohol that he “blacked out” and could not remember a large portion of the night, including the time during which he interacted with Jones. The College initiated an expedited disciplinary proceeding against Doe under a set of recently amended policies incorporated in its student handbook (the “Student Handbook”). As part of that process, the College hired an independent attorney to conduct an investigation. On December 13, 2013, the day after a hearing before the College's Sexual Misconduct Hearing Board (the “Hearing Board”), the Hearing Board found Doe “responsible, by a preponderance of the evidence, for violating the Statement on Respect of Persons specifically the Sexual Misconduct Policy: Sexual Assault.” (Dkt. No. 102-4, Dec. 13, 2013 Hr'g Bd Dec. (“Hr'g Bd Dec.”).) Among the factors “influential in their finding” was that Doe's “account of being ‘blacked out' [was] credible, ” but did not excuse his failure to stop when Jones withdrew consent. (Id.) The Hearing Board imposed sanctions on Doe, including immediate expulsion from the College. (Id.)

         Doe appealed his expulsion, identifying new evidence, which he believed was relevant to establishing that Jones and her witness had a political agenda which motivated Jones to be less than fully honest in her complaint and testimony. He further asserted there were material procedural errors which prejudiced him and demonstrated the existence of gender-based bias in the process culminating in his expulsion. The College denied his appeal, stating, in part, that “[w]hatever broad political agenda [Jones and her witness] may have had or not is immaterial to the panel's decision.” (Dkt. No. 39-2, Dec. 27, 2013 Email from Peter Uvin.) Several months later, Doe received copies of text messages sent by Jones to another student shortly after he had departed from her room after the incident at issue. These texts can be read in a way that raises additional questions about the credibility of the version of events Jones gave during the disciplinary proceeding against Doe. These text messages had not been provided to the investigator and the investigator had not interviewed the individual who received them. Doe asserts the discovery of these text messages raises questions about the adequacy of the investigation.

         Based in part on the existence and content of the text messages, Doe requested the College reopen his disciplinary proceedings. The College declined to do so and on May 29, 2015 Doe filed a complaint stating claims against the College and various individuals. (Dkt. No. 1, Compl.) The crux of Doe's complaint is that he was subjected to a biased disciplinary process set into motion and conducted to ensure the College would expel a male student accused of sexual misconduct, regardless of the specific facts, and this process violated his contract with the College and his rights under both federal and state law.

         The College and the individual defendants filed a Motion for Judgment on the Pleadings on October 5, 2015. Doe subsequently filed a Motion for Leave to File an Amended Complaint (Dkt. No. 59.). Following several motions for extension of time, the court held a hearing on both Defendants' Motion for Judgment on the Pleadings and Plaintiff's Motion for Leave to File an Amended Complaint on May 27, 2016. The court allowed the motion for leave to amend and Doe filed his Amended Complaint on June 15, 2016 (Dkt. No. 102). On June 24, Defendants' requested the court clarify whether it required Defendants to file additional briefing to address new claims made in the amended complaint. (Dkt. No. 104). The court subsequently clarified that Defendants had the option of relying on their prior briefing or submitting an updated memorandum following the filing of the Amended Complaint. (Dkt. No. 105.) Defendants have elected to rely on the existing briefing.

         In his Amended Complaint, Doe asserts claims against both the College and individual defendants, Carolyn Martin, President of the College (“Martin”); James Larimore, chair of the Hearing Board which conducted Doe's disciplinary hearing and the College's Dean of Students at the time of the disciplinary hearing (“Larimore”); Susie Mitton Shannon, the College's Interim Dean of Student Conduct and Deputy Title IX Coordinator at the time of the disciplinary proceedings against Doe (“Mitton Shannon”); and Laurie Frankl, who became the College's Title IX Coordinator on December 3, 2013 (“Frankl”), all in their individual capacities. With respect to the College Doe claims breach of contract (Count I); breach of covenant of good faith and fair dealing (Count II); violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”) (Count IV); violation of 42 U.S.C. § 1981 (Count V); violation of the Massachusetts Civil Rights Act, Mass. Gen. Laws. ch. 12 §§ 11H, 11I (“MCRA”) (Count VI); defamation (Count VII); and negligent infliction of emotional distress (Count IX). As to the individual defendants, Doe asserts claims for tortious interference with contract (Count III); violation of 42 U.S.C. § 1981 (Count V); violation of the MCRA (Count VI); defamation (Count VII); negligence (Count VIII); and negligent infliction of emotional distress (Count IX). In Count X, Doe seeks injunctive relief, but does not make out an additional substantive claim. For the reasons set forth below, the court will allow Defendants' motion as to counts III, V, VI, VII, VIII, and IX and deny it as to counts I, II, IV, and X.

         II. Jurisdiction

         This court has subject matter jurisdiction over the claims in Counts IV and V, which allege violations of federal law pursuant to 28 U.S.C. § 1331. The remainder of Doe's claims (Counts I-III and VI-X) arise under state law. Federal courts may exercise supplemental jurisdiction over state law claims brought together with claims arising under federal law. 28 U.S.C. § 1367. In addition, federal courts have jurisdiction over suits brought pursuant to state law where there is complete diversity of citizenship between the adversaries and the amount in controversy exceeds a threshold amount of $75, 000. 28 U.S.C. § 1332; Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Plaintiff is a resident of New York while the individual defendants are residents of Connecticut (Mitton Shannon), Iowa (Larimore), or Massachusetts (Martin and Frankl) and the College is located in Massachusetts. Plaintiff asserts he is entitled to damages in excess of the statutory threshold amount. In the absence of any challenge from Defendants, the court finds it has jurisdiction over the state law claims in this case pursuant to both 28 U.S.C. § 1367 and 28 U.S.C. § 1332.

         III. Standard of Review

         Having previously filed an answer, Defendants proceed on a motion for judgment on the pleadings under Rule 12(c), rather than the more typical motion to dismiss for failure to state a claim brought under Rule 12(b)(6). Fed.R.Civ.P. 12. “‘A motion for judgment on the pleadings [under Rule 12(c)] is treated much like a Rule 12(b)(6) motion to dismiss, ' with the court viewing ‘the facts contained in the pleadings in the light most favorable to the nonmovant and draw[ing] all reasonable inferences therefrom.'” In re Loestrin 24 Fe Antitrust Litig., 814 F.3d 538, 549 (1st Cir. 2016) (alterations in original) (quoting Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)). A complaint must survive a motion for judgment on the pleadings if it alleges sufficient facts “to state a claim to relief that is plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is “plausible on its face” if it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As in the case of a motion under Rule 12(b)(6), the court is permitted to consider documents central to the plaintiff's claims where the authenticity of the documents is not disputed and the complaint adequately references the documents. Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). Additionally, “[a] Rule 12(c) motion, unlike a Rule 12(b)(6) motion, implicates the pleadings as a whole.” Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54-55 (1st Cir. 2006).

         IV. Background[2]

         A. Recent History of the College's Approach to Handling Sexual Misconduct on Campus

         On April 4, 2011, the Assistant Secretary of the Office of Civil Rights of the U.S. Department of Education (“DOE”) issued a “Dear Colleague” letter addressed to recipients of federal funding who operate “educational programs and activities” (“Dear Colleague Letter”). Dear Colleague Letter (April 4, 2011), The DOE determined the Dear Colleague Letter is a “‘significant guidance document, '” which “does not add requirements to applicable law, but provides information and examples to inform recipients about how [the DOE Office of Civil Rights] evaluates whether covered entities are complying with their legal obligations.” (Id. at n.1.) The College is a recipient of federal funding. In the Dear Colleague Letter, the DOE explains “that the requirements of Title IX pertaining to sexual harassment also cover sexual violence” and defines sexual violence as “physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol.” Id. at 1. The Dear Colleague Letter also directs schools to “take immediate action to eliminate the harassment, prevent its recurrence, and address its effects, ” and to promptly investigate any case in which a school “knows, or reasonably should know, about possible harassment.” (Id. at 4.) Schools are advised to weigh requests from claimants to remain anonymous, requests that may limit a school's options to respond to the complaint, against the school's “responsibility to provide a safe and nondiscriminatory environment for all students.” (Id. at 5.) Consistent with that responsibility, the Dear Colleague Letter clarifies that schools investigating complaints in order to comply with their obligations under Title IX should apply a “preponderance of the evidence” standard when determining whether sexual harassment (including sexual misconduct) has occurred, because it is the appropriate standard to use when resolving discrimination claims. (Id. at 10-11.)

         After the Dear Colleague Letter was released, the College's Title IX Committee recommended changes to its disciplinary procedures for sexual misconduct cases and in September of 2012 the College adopted the changes. On October 17, 2012 an essay by Angie Epifano, a former member of Doe's entering class at the College, was published in a student publication. The essay was highly critical of the way the College had responded to her distress following a sexual assault on campus. A significant amount of media attention was directed at the College following the publication of Epifano's essay. The day after it was published, Martin issued a statement pledging to investigate the handling of Epifano's allegations and acknowledging the College's handling of complaints had left “survivors feeling that they were badly served.” (Am. Compl. at ¶ 19.)

         On October 31, 2012, Amherst formed a Special Oversight Committee on Sexual Misconduct (the “Oversight Committee”) to review the atmosphere, programs, and policies at the College. The Oversight Committee was comprised of five members of the faculty and staff, two trustees, and two students - including one, LR, who was later a witness against John Doe. The Oversight Committee published a report in January 2013. In that report, the Oversight Committee discussed concerns that “the College takes a more punitive attitude toward non-white perpetrators, especially if the victim is white.” (Dkt. No. 39-4, (Excerpt) Toward a Culture of Respect: The Problem of Sexual Misconduct at Amherst College 21.) The perceived mechanism for the disparity described in the report was that white perpetrators had more access to “expensive lawyers” able to effectively advocate for their clients, rather than any concern the College initially responded to complaints differently depending on the races of the individuals involved. (Id.) The Oversight Committee described being unable to determine whether there was any basis for the collective belief among many students regarding racial disparities in the College's response to sexual misconduct complaints. (Id.) Though the Oversight Committee was unable to substantiate the perception of past racial disparities, even with specific anecdotal evidence, the concern was included in the report along with the caution that “the College needs to be scrupulous in making sure that all procedures relating to sexual assault and misconduct are fair, consistent, and equitable, and seen to be so by the whole community.” (Id.) Following release of the report, two new appendices were added to the Student Handbook to address allegations and investigations regarding sexual harassment and sexual misconduct: Appendix B contained the College Sexual Misconduct Policy (the “Policy”) and Appendix C contained the Procedures for Addressing Sexual Misconduct Complaints Under the Student Conduct Process (the “Procedures”). The Policy and Procedures went into effect in May of 2013.

         B. Student Handbook Provisions

         Combined, the Policy and Procedures run approximately 25 pages. The Policy “articulates the [C]ollege's set of behavioral standards, common understandings of definitions and key concepts and descriptions of prohibited conduct.” (Dkt. No. 102-1, Procedures at § I.) The Procedures set forth the process used “for adjudicating a sexual misconduct complaint against a student.” (Id.) Both are part of the Student Handbook. In the Policy, the College states it will “respond[] to all reports [of sexual misconduct] in a timely, effective and consistent manner.” (Dkt. No. 102-1, Policy at § VI.) A report is clearly something less than the filing of a formal complaint. (Id.) The Policy also obligates the College to “provide for fair and impartial evaluation and resolution” of all reports of sexual misconduct. (Id. at § I.1.) Where the College, through a member of the College's Title IX team, determines an investigation will be conducted, the College promises such investigation “will be thorough, impartial and fair.” (Id. at § VIII.4.)

         The Policy also defines various forms of sexual misconduct and provides examples. Sexual violence is defined as “[p]hysical sex acts perpetrated against a person's will or where a person is incapable of giving consent.” (Id. at § IV.3.) The Policy goes on to state that “[b]eing intoxicated or impaired by drugs or alcohol is never an excuse for sexual misconduct and does not excuse one from the responsibility to obtain consent.” (Id. at § IV.4.) At the same time, the Policy also states that “[a]n individual who is incapacitated . . . is incapable of giving consent” and “[i]ncapacitation is the inability, temporarily or permanently, to give consent, because the individual is mentally and/or physically helpless due to drug or alcohol consumption, either voluntarily or involuntarily, or the individual is unconscious, asleep, or otherwise unaware that the sexual activity is occurring.” (Id.) The Policy goes on to state that “[w]here alcohol is involved, incapacitation is a state beyond drunkenness or intoxication” and that “[a]n individual may experience a blackout state in which he/she appears to be giving consent but does not actually have conscious awareness or the ability to consent.” (Id.) The Policy does not directly address whether a student in “a blackout state, ” as opposed to merely drunk or intoxicated, is considered responsible for their conduct while in such a state, such as failing to obtain consent in the course of a sexual encounter.

         The Procedures set forth the specific processes the College agrees to use when adjudicating a sexual misconduct complaint. (Procedures at § I.) As a general matter, the Procedures describe the rules for (1) the filing of complaints; (2) the notification of and response from a respondent; (3) the investigation by a third party, hired by the College; (4) the hearing held by a hearing board consisting of three trained individuals from the community and chaired by the Dean of Students or designee; and (5) the appeals process. No time limits are imposed for the filing of a complaint, though the Procedures encourage timely reports “to maximize the [C]ollege's ablility to obtain evidence and conduct a thorough, impartial and reliable investigation.” (Id. at § II.1.) Time limits are imposed on respondents. A respondent must meet with the Dean of Student Conduct within three days of receiving notice of a complaint against them and submit a written response to the complaint “within three business days of receipt.” (Id. at § VIII.2.) Both the complainant and respondent are granted “the right to be assisted by an Advisor provided by the [C]ollege” and may select their advisor from “the list maintained by the Dean of Students of trained Advisors.” (Id. at § II.6.) They also “have the right to consult private attorneys, ” but their attorneys are “required to remain outside of any hearing room, ” though “[a]n attorney may be present to provide legal counsel to the Chair and to the Hearing Board members.” (Id. at § II.7.)

         When the College conducts an investigation, the Dean of Student Conduct or designee selects an investigator who has “specific training and experience investigating allegations of sexual misconduct.” (Procedures at § IX.1.) The Procedures describe in some detail what actions an investigator is required to take and establishes that certain decisions are left to the discretion of the investigator. For example, the Procedures do not promise an investigator will obtain all relevant evidence. They only obligate an investigator to try to obtain such evidence as the investigator “determines, in his or her judgment, to be necessary.” (Id. at § IX.2.a.) The investigator is required to prepare an investigative report “summarizing and analyzing relevant facts.” (Id. at § IX.3.a.) While the investigator is permitted to “provide a summary of his/her impressions including context for the evidence, ” the investigator is not permitted to “make a determination as to whether a violation occurred.” (Id.)

         “Those who may be present at the hearing are the Complainant, the Respondent, their respective Advisors, the Investigator, witnesses and other [C]ollege officials.” (Id. at § X.2.D.1.) The Procedures empower the Dean of Students to allow either a complainant or respondent to participate in the hearing in a way that does not require physical proximity to one another, provided the method does not prevent the process from being “fair and equitable.” (Id. at § X.2.D.2.b.) A student seeking to present documentation or evidence at the hearing that was not provided to the investigator must submit a detailed request at least three days prior to the hearing date and obtain consent from the Dean of Students or designee. (Id. at § X.2.C.3.a).) At the hearing “information concerning prior sexual history, bad acts or pattern evidence” may be introduced only if the Dean of Students or designee determines its inclusion is appropriate. (Id. at § X.2.C.3.b.)

         As with investigators, the three hearing board members are required to “have prior experience in, and [] receive annually training regarding, the dynamics of sexual misconduct, the factors relevant to a determination of credibility, the appropriate manner in which to receive and evaluate sensitive information, the manner of deliberation and the application of the preponderance-of-the-evidence standard, as well as the [C]ollege's policies and procedures.” (Id. at § X.2.A.) The hearing board is to deliberate in private; “the Chair and the [C]ollege's legal counsel may remain for deliberations, but may not participate in the deliberations and may not vote.” (Id. at § X.2.E.8.) When determining a respondent's responsibility, the hearing board is required to apply “a preponderance-of-the-evidence standard which is whether the information provided at the hearing supports a finding that ‘more likely than not' the Respondent is responsible for the alleged violations.” (Id. at § X.2.D.3.) If the hearing board finds a respondent responsible for sexual misconduct, the hearing board also determines what sanctions to impose from among the “range of sanctions outlined in the Student Conduct Process.” (Id. at § X.2.E.9.) The hearing board is permitted to consider a number of factors when determining the appropriate sanction, “including the harm suffered by the Complainant; any ongoing risk to either the Complainant or the community posed by the Respondent; the impact of the violation(s) on the community, its members or its property; any previous conduct violations; any mitigating or aggravating circumstances; and the information contained in any impact statements submitted by the parties.” (Id.)

         Within three days of concluding their deliberations, the hearing board is generally required to communicate its decision in writing. (Id. at § X.2.E.10.) Either the complainant or the respondent has seven days from the date when they receive notice of the hearing board's decision to file an appeal. (Id. at § X.2.F.1.) “The appeal may be based only on one or more of the following grounds: Material procedural error; Bias by the Chair or a member of the Hearing Board; Relevant, substantive and new information, not available at the time of the hearing.” (Id. at § X.2.F.2.) The Provost or designee determines whether any of these grounds has been met. (Id. at § X.2.F.4.) The Procedures do not provide for review of the Provost's decision or for any additional proceedings after the appeal.

         C. The Complaint Against Doe

         The events relevant to this litigation began during Doe's second year at the College. On the night of February 4, 2012, Doe consumed a significant quantity of alcohol before returning to his residence hall. His last memories of the night are his preparations to go to bed shortly after arriving back at his room. However, rather than going to bed, he and his roommate, NK, left their room during the very early hours of February 5th, and joined a small group of classmates socializing in a common room. Two of the students they met in the common room were Sandra Jones and RM. At the time, Jones and RM were friends and Jones was the roommate of EK, a woman Doe was then casually dating. EK was away from campus that night.

         It is undisputed that while Doe was in the common room he was very intoxicated. He has consistently claimed he was “blacked out” and retains no memory of the night, subsequent to preparing for bed before going to the common room. At the disciplinary hearing, RM described Doe as “very drunk” and “barely able to stand on [his] own.” (Dkt. 102-3, Hrg. Trans. 111.) However, Doe's roommate, NK, stated he did not recognize Doe as being intoxicated to the point of being blacked out that night. (Id. at 104.) There is also no dispute that Jones, who had also been drinking, was far less intoxicated than Doe. At the hearing, she described herself as “buzzed or tipsy or a bit drunk.” (Id. at 49.)

         While in the common room, Jones and Doe began kissing. After some period of time, they left and went to Jones's room. While in Jones's room, Jones began to perform oral sex on Doe. During the investigation and at the hearing, Jones described this sexual activity as beginning consensually, but later becoming non-consensual when Doe held her head down after she told him to stop. When he later left her room to use the bathroom, Jones took his clothes, identification, and phone and put them outside her door and locked her door.

         After Doe left her room, Jones exchanged text messages with another student, DR, who lived on the same floor as Jones and EK and served as a residential counselor. In the course of the text message exchange, Jones stated that she “fucked” Doe and proposed lying to others about what happened, expressing concern about the fact that others, including RM, had seen her kissing Doe in the common room, and her belief that Doe “was too drunk to make a good lie out of shit.” (Dkt. No. 102-6, AK Aff. & Jones and DR Text Exchange 9.) Jones also told DR that another student, ML, was coming to her room. (Id. at 7.) After ML arrived, she complained to DR that ML was “just talking” rather than initiating sexual contact. (Id. at 13.) Later, Jones complained to DR that “action did not happen til 5 in the . . . morning.” (Id.) She also mentioned that Doe had come to her room in search of his phone, but that she had told him to go away because ML was still in her room. (Id. at 14.) The text messages contain a significant back and forth between DR and Jones about what Jones would tell her roommate EK, who had been casually dating Doe. (Id. at 16-23.) DR took the position that word would get out, stating Doe had told someone else and reminding Jones she too had also told someone, to which Jones responded that DR did not count. (Id. at 17.)

         When he woke up on the morning of February 5, 2012, Doe was unable to find his phone. (Dkt. No. 102-2, Kurker Report 10.) His roommate NK suggested Doe ask Jones if he had left his phone in her room. (Id.) Based on Doe's confused response, NK concluded Doe had no memory of his recent interactions with Jones. (Id.) NK then told Doe that Jones and Doe had been kissing in the common room before going to her room. (Id.) Doe went to Jones's room to search for his phone and they had a very brief exchange, making no mention of the previous night. (Id. at 5-6.) The following day Doe sent Jones a text message letting her know he had no memory of the night, apologizing if he had been “too weird, ” and asking if Jones planned to tell EK. Jones responded that she had already told EK. (Id.)

         Approximately two months later, while intoxicated and upset, Jones told a graduating senior, JM, that Doe had sexually assaulted her. (Id. at 5.) The following month, Jones also told two other friends. (Id. at 6.) Jones spent the fall 2012 semester in London. (Id.) While in London, Jones published an essay in an online student publication in which she wrote about her encounter with Doe, stating “[i]t began consensually, but evolved into something that was decidedly not.” (Dkt. 102-2, Culture of Silence, Kurker Report, Ex. E.) Shortly after the piece was published, Doe learned from RM that Jones was describing her experience with Doe in February of 2012. (Kurker Report at 7.) Despite the publication of the essay, the College took no action at that time to investigate the incident described.

         In April of 2013, Doe approached LR, a student who had been on the Oversight Committee and the editor who had supervised the publication of Jones's essay. (Id.; Hrg. Trans. at 84.) He explained that while he still had no memory of his interaction with Jones, he hoped to get some guidance on what he could do to make amends to Jones. (Kurker Report at 7-8.) LR understood Doe to be confessing to having sexually assaulted Jones. (Id. at 11-12.) She told Doe to continue to avoid Jones and to seek counseling. (Id. at 8.) LR then told Jones that Doe had confessed to her and advised Jones that LR would testify in her favor if Jones filed a complaint against Doe. (Id. at 11.) Around that time, LR also reported the February 2012 incident to the College's Title IX Team. With the encouragement of LR, Jones made a report to the College, which was memorialized in an email sent by the Deputy Title IX Coordinator. Mitton Shannon advised Jones that she could file a formal complaint, but Jones elected not to file a complaint at that time and the College took no action to investigate based on the report it had received. Prior to this litigation, the College did not provide Doe with the email summarizing Jones's initial statement. Jones eventually filed her complaint with the College on October 28, 2013.

         In the complaint, Jones stated she asked Doe to leave several times while he tried to convince her to perform oral sex on him, but that when he did not go she suggested they continue kissing. (Dkt. 102-2, Oct. 28 Compl., Kurker Report, Ex. B.) She continued to suggest Doe leave while Doe instead removed her clothes before trying again to compel her to perform oral sex on him. (Id.) At that point she said no, but he ignored her, pushed his penis into her mouth, and held her head down. (Id.) Eventually, Doe left the room because he was feeling nauseated. (Id.) While he was gone, Jones threw his clothes, phone, and ID out into the hall and locked her door so he could not return. (Id.) Jones's complaint does not allege that Jones willingly performed oral sex on Doe before withdrawing her consent. (Id.)

         D. The Investigation and Disciplinary Hearing

         On November 1, 2013, Mitton Shannon notified Doe that he was the subject of a complaint. She informed Doe he would have less than a week to provide a written response to the complaint and he could select an advisor, who was not an attorney, to give guidance, but not advocate for him during the course of the investigation and hearing. Mitton Shannon told Doe the College planned to hold the hearing prior to the Thanksgiving break. She also informed him that he could provide a list of relevant witnesses to the investigator hired by the College, explaining that a relevant witness was one who was “directly involved in the event.” (Dkt. No. 102, Am. Compl. ¶ 29.) Mitton Shannon also advised Doe that before he, himself, spoke to anyone about the allegations against him, he would need to obtain the investigator's authorization.

         The College retained an attorney, Allyson Kurker, to conduct an investigation, establishing a $5, 000 budget which corresponded with an estimate that the investigation would take no more than fifteen hours. Both Jones and Doe provided Kurker with lists of witnesses. Jones identified two: LR, the student who had been on the Oversight Committee, edited Jones's essay, and talked with Doe about the incident, and JM, the graduating senior Jones had told about the sexual assault in the spring of 2012. Doe identified four: EH, a friend with whom he had discussed the allegations; EK, the woman who, at the time of the incident had been casually dating Doe and was Jones's roommate; NK, Doe's roommate at the time of the incident; and RM, a student who had been friends with Jones at the time of the incident, was in the common room that night, and who spoke to Doe about Jones's essay after it was published. Neither Jones nor Doe named as witnesses DR, the residential counselor with whom Jones exchanged text messages on the night of the incident, or ML, the student who texted with Jones and spent time in her room that night after Doe had left. On November 11, 2013, Kurker interviewed Jones, Doe and all the witnesses except RM. (Kurker Report at 2.) She interviewed RM several days later. (Id. at n. 2.)

         After conducting these interviews, Kurker wrote a report (the “Report”). She provided a draft of the Report to Mitton Shannon and then revised the draft to remove her findings regarding the credibility of the witnesses. (Dkt. No. 78, Kurker Aff. ¶¶ 19-20.) The Report was also provided to Doe, Jones, and the members of the Hearing Board. In the Report, Kurker summarized her interviews, including many direct quotations from her interviews. According to the Report, during her interview with Kurker, Jones stated she had begun kissing Doe in the common room, having decided that she did want to kiss him after initially resisting his efforts to kiss her. She then described Doe's friends “chanting ‘whore'” at her and that since she “was being blamed already, ” she “didn't see any reasons not to” kiss Doe. (Kurker Report at 3.) Jones stated that she took Doe back to her room and “at first it was okay” and that she “was okay with what was happening, ” until Doe began saying things about Jones and her roommate EK, including that “hooking up” with Doe made Jones a bad friend to EK. (Id.) In response to a question from the investigator, Jones clarified that she had consented when she began performing oral sex on Doe, but that during a break she withdrew her consent by telling him “no, ” that she did not want to continue, and that he should leave. (Id. at 3-4.) Following this, she said Doe held her head down until he ejaculated. (Id. at 4.)

         In the Report, the investigator described the communications between Jones and Doe following the night of February 4, 2012, including quoting from the text messages the two exchanged. (Id. at 5-6.) The investigator also wrote that Jones “did not keep a journal; did not email, text or otherwise reduce what had happened with [Doe] to writing.” (Id. at 6.) Nothing in the Report is inconsistent with this statement; however, citing an affidavit from EK, Doe asserts that EK told Kurker that she believed Jones had texted with DK about her interaction with Doe.

         The Report next states that two months later, in April of 2012, Jones disclosed “what had happened with [Doe]” to JM, one of the two witnesses Jones identified for the investigator. (Id. at 5-6.) Jones also reported talking about “about what happened with [Doe], ” with two other students, who had been angry she had “‘hooked up'” with Doe because her roommate, EK, had been dating him. (Id. at 6.)

         During his interview with Kurker, Doe reported he had “blacked out” and never had any memory of his interaction with Jones and that all he knew of the interaction came from what others had told him. (Id. at 6, 8.) Doe insisted he was not capable of the behavior attributed to him by Jones and would not have treated a sexual partner that way. (Id. at 8-9.) He provided Kurker with copies of various electronic communications he had with others concerning the allegations. (Id. at Ex. D and Ex. G.) These communications included messages between Doe and RM in which RM stated that Jones had engaged in sexual activity with another individual shortly after Doe had left her room. (Id. at Ex. G.) No mention is made of this information in the Report, though the exchange was attached to the report.

         The Report does include summaries of Kurker's interviews with other witnesses. (Id. at 9-13.) These summaries were two to four short paragraphs in length, with the exception of the summary of her interview with LR, which extended for two pages. (Id. at 11-12.) Much of the summary excerpts portions of Kurker's interview with LR in which LR described Doe as thinking he had sexually assaulted Jones based on his own memories. (Id.) Kurker attempted to determine the specifics of what Doe had told LR and why LR concluded that his concerns were based on his own memories, rather than the allegations made by Jones. (Id.) Ultimately, Kurker described herself as questioning ...

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