Doe v. Brandeis Univ.

• Citation: 177 F.Supp.3d 561
• Decision Date: 31 March 2016
• Docket Number: Civil Action No. 15-11557-FDS
• Parties: John Doe, Plaintiff, v. Brandeis University, Defendant.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

177 F.Supp.3d 561

John Doe, Plaintiff,

v.Brandeis University, Defendant.

Civil Action No. 15-11557-FDS

United States District Court, D. Massachusetts.

Signed March 31, 2016

Jeannette M. Brian, Patricia M. Hamill, Conrad, O'Brien, Gellman & Rohn, PC, Philadelphia, PA, Michael R. Schneider, Good Schneider Cormier, Boston, MA, for Plaintiff.

Alan D. Rose, Sr., Antonio Moriello, Rose, Chinitz & Rose, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS

SAYLOR, 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...569

II. FACTUAL BACKGROUND...573

A. The Relationship between John and J.C....574

B. The Accusation against John...574

C. Changes to the Handbooks...575

D. The Process under the 2011-12 Handbook...576

E. The Process under the 2012-13 Handbook...577

F. The Process under the 2013-14 Handbook...578

1. The Statements Phase...579

2. The Fact-Finding Phase...579

3. The Discussion Phase...580

4. The Responsibility Findings Phase...581

5. The Deliberations Phase...581

6. The Outcome Notification Phase...581

7. The Appeal Phase...581

8. Access to Records...581

G. Sexual Misconduct Policies under the 2013-14 Handbook...582

1. Physical Harm (§ 2.1.d)...582

2. Invasion of Personal Privacy (§ 2.1.e)...582

3. Sexual Misconduct (§§ 3.1, 3.2, 3.3)...582

4. Sexual Harassment (§ 7.2)...583

H. The Special Examiner's Investigation...583

I. The Reading of the “Summary”...584

J. The Three-Person Panel and the Sanction...584

K. The Appeal...585

L. The Special Examiner's Report...585

1. Allegations Not Sustained by Special Examiner...586

a. “Unwanted Touching While Walking”...586

b. “Pornography Incident”...586

c. “Text Messaging Incident”...586

d. “Post-Movie Conduct”...586

e. “Decision to Begin Dating”...586

f. “Post-Shower Conduct”...587

g. “Mandating that J.C. Sleep Naked”...587

h. “Attempts to Have J.C. Perform Oral Sex”...587

2. Allegations Sustained by Special Examiner...587

a. “Movie Incident”...587

b. “Bathroom Incident”...587

c. “Sexual Conduct While Sleeping”...588

d. “Performing Oral Sex on J.C.”...588

3. The Special Examiner's Conclusions as to the End of the Relationship and J.C.'s Decision to Bring Charges...589

4. The Special Examiner's Credibility Findings...590

5. The Special Examiner's Conclusions...591

M. Subsequent Developments...592

N. Recent Changes to the Process...592

III. PROCEDURAL BACKGROUND...593

IV. LEGAL STANDARD...593

V. ANALYSIS...593

A. Breach of Contract...593

1. “Reasonable Expectation” of the Student...594

a. Elimination of the “Statements Phase”...594

b. Elimination of the “Deliberations Phase”...595

c. Breach of Express Representation as to Conflicts of Interest on Appeals Board...596

d. Failure to Use the Hearing Process as Described in the 2011-12 Handbook... 596e. Failure to Use the Hearing Process as to Charges of Physical Harm and Invasion of Privacy...597

f. Failure to Provide a Copy of the Special Examiner's Report...598

g. Failure to Maintain Confidentiality of Educational Record...599

h. Arbitrary and Capricious Findings...600

2. “Basic Fairness”...601

a. Procedural Fairness...602

(1) No Right to Notice of Charges...603

(2) No Right to Counsel...604

(3) No Right to Confront Accuser...604

(4) No Right to Cross-Examine Witnesses...605

(5) No Right to Examine Evidence or Witness Statements...605

(6) Impairment of Right to Call Witnesses and Present Evidence...605

(7) No Access to Special Examiner's Report...606

(8) No Separation of Investigatory, Prosecution, and Adjudication Functions...606

(9) No Right to Effective Appeal...607

(10) Burden of Proof...607

(11) Conclusion...607

b. Substantive Fairness...608

(1) The Significance of the Delay in Reporting...608

(2) The Significance of the Relationship...610

(3) The Significance of J.C.'s Abuse of Alcohol...611

(4) Conclusion...611

3. Summary of Breach of Contract Claims...611

B. Breach of the Implied Covenant of Good Faith and Fair Dealing...612

C. Estoppel and Reliance...612

D. Negligence...613

1. Negligent Retention and Supervision...613

2. Negligent Failure to Prevent Conflict of Interest...614

3. Breach of Duty to Maintain Confidentiality of Educational Record...614

E. Defamation...615

1. Defamation Generally...615

2. Aiding and Abetting Defamation...616

F. Invasion of Privacy...616

G. Intentional Infliction of Emotional Distress...617

H. Negligent Infliction of Emotional Distress...617

VI. CONCLUSION...617

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...