Doe v. Harvard Univ., Civil Action No. 1:18-cv-12150-IT

Citation462 F.Supp.3d 51
Decision Date28 May 2020
Docket NumberCivil Action No. 1:18-cv-12150-IT
Parties John DOE, Plaintiff, v. HARVARD UNIVERSITY, et al., Defendants.
CourtU.S. District Court — District of Massachusetts

462 F.Supp.3d 51

John DOE, Plaintiff,
v.
HARVARD UNIVERSITY, et al., Defendants.

Civil Action No. 1:18-cv-12150-IT

United States District Court, D. Massachusetts.

Signed May 28, 2020


462 F.Supp.3d 54

Tara Jill Davis, Regina M. Federico, Nesenoff & Miltenberg LLP, Boston, MA, Adrienne D. Levy, Pro Hac Vice, Andrew T. Miltenberg, Pro Hac Vice, Nesenoff & Miltenberg, LLP, New York, NY, for Plaintiff.

Apalla U. Chopra, Pro Hac Vice, O'Melveny & Myers LLP, Los Angeles, CA, Bradley N. Garcia, Pro Hac Vice, OMelveny & Myers LLP, Washington, DC, Joseph M. Cacace, Victoria L. Steinberg, Todd & Weld, Boston, MA, Patrick D. McKegney, Pro Hac Vice, O'Melveny & Myers LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER

TALWANI, D.J.

462 F.Supp.3d 55

Plaintiff, a Harvard College student, was disciplined for an alleged sexual assault following an internal investigation. Proceeding as John Doe, he brings this action seeking damages and injunctive relief against Harvard University and the President and Fellows of Harvard College (collectively, Harvard) and the investigator, Brigid Harrington. Plaintiff asserts six claims: Violation of Title IX, 20 U.S.C. § 1681, et seq., against Harvard (Claim 1); Denial of Due Process in violation of the Fourteenth Amendment, brought under 42 U.S.C. § 1983, against Harvard and Harrington (Claim 2); Breach of Contract against Harvard (Claim 3); Breach of the Covenant of Good Faith and Fair Dealing against Harvard (Claim 4); Violation of 42 U.S.C. § 1981 via racial discrimination, against Harvard and Harrington (Claim 5); and Negligence against Harvard and Harrington (Claim 6). Defendants’ pending Motion to Dismiss the Complaint [#27] seeks dismissal of all claims.

For the following reasons, the Motion to Dismiss the Complaint [#27] is DENIED as to the breach of contract, breach of the covenant of good faith and fair dealing, and § 1981 claims against Harvard, and is GRANTED as to the remaining claims against Harvard and as to all claims against Harrington.

I. Factual Background

A. Policies and Procedures at Issue

1. Title IX and the "Dear Colleague Letter"

In 2011, the Office for Civil Rights of the United States Department of Education issued a guidance letter, known as the "Dear Colleague Letter," to colleges and universities in the United States. Compl. ¶ 34 [#9]. The Dear Colleague Letter advised recipients of federal funds that sexual violence constituted sexual harassment within the meaning of Title IX and its regulations, and directed schools to "take immediate action to eliminate the harassment, prevent its recurrence, and address its effects." Id. ¶ 35.1

2. Harvard's Policies

In response to the Dear Colleague Letter, Harvard hired its first Title IX coordinator in early 2013 and substantially revised its policy (the "University Policy") for addressing sexual harassment in 2014, creating the Office of Sexual and Gender-Based Dispute Resolution ("ODR") and establishing procedures, including a preponderance of the evidence standard, for Title IX investigations. Id. ¶¶ 36-38; see also Harvard University Procedures for Handling Complaints Involving Students Pursuant

462 F.Supp.3d 56

to Sexual and Gender-Based Harassment Policy, dated April 5, 2017 ("University Procedures") [#29-2].

Harvard's Faculty of Arts and Sciences ("FAS") also adopted a Sexual and Gender-Based Harassment Policy and Procedures for the Faculty of Arts and Sciences (the "FAS Policy"). See FAS Policy, dated January 13, 2016 [#29-1]. The FAS Policy explains that the University Policy applied to FAS, that the University Procedures governed allegations of sexual harassment involving Harvard students, and that FAS "is responsible for elaborating on and supplementing them to suit [FAS's] needs and goals." Id. at 2-3.

The FAS Policy begins with a Policy Statement stating that Harvard is "committed to fostering an open and supportive community" and that the commitment "includes maintaining a safe and healthy educational and work environment in which no member of the community is excluded from participation in, denied the benefits of, or subjected to discrimination in any University program or activity on the basis of sex, sexual orientation, or gender identity." Compl. ¶ 26 [#9] (quoting the FAS Policy at 1). The Policy Statement states further that "sexual harassment, including sexual violence, are forms of sex discrimination in that they deny or limit an individual's ability to participate in or benefit from University programs or activities." FAS Policy at 3 [#29-1]. It continues that it is the policy of the University "to provide prompt and equitable methods of investigation to stop discrimination, remedy any harm, and prevent its recurrence," and warns that "[v]iolations of this Policy may result in the imposition of sanctions up to, and including, termination, dismissal, or expulsion, as determined by the appropriate officials at the School or unit." Id.

The FAS Policy defines "sexual harassment" to include a "hostile environment," that is, "unwelcome conduct of a sexual nature ... sufficiently severe, persistent, or pervasive that it interferes with or limits" a student's education. Id. at 4. Under the FAS Policy, "[a] hostile environment can be created by persistent or pervasive conduct or by a single severe episode." Id. Sexual violence, including sexual assault and dating violence, is a form of sexual harassment under the policy. Id. Conduct is "unwelcome if a person (1) did not request or invite it and (2) regarded the unrequested or uninvited conduct as undesirable or offensive." Id. at 5. Further, "when a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct, conduct of a sexual nature is deemed unwelcome, provided that the Respondent knew or reasonably should have known of the person's impairment or incapacity." Id. "The person may be impaired or incapacitated as a result of drugs or alcohol or for some other reason, such as sleep or unconsciousness." Id. "A Respondent's impairment at the time of the incident as a result of drugs or alcohol does not ... diminish the Respondent's responsibility for sexual or gender-based harassment under this Policy." Id.

The FAS Policy includes procedures Harvard would employ if it received a complaint alleging violations of the policy. Compl. ¶ 25 [#9]. Upon receipt of a complaint, Harvard's Title IX Officer assigns an ODR investigator to conduct an initial review. Id. ¶ 27; FAS Policy at 14-15 [#29-1]. The investigator decides whether the information, if assumed to be true, would constitute a violation of the FAS Policy, and if so, the investigator initiates an investigation. Compl. ¶ 27 [#9]; FAS Policy at 15 [#29-1].

During the investigation, the investigator conducts interviews with the complainant, the respondent, and any witnesses. Compl. ¶ 28 [#9]. At the end of the investigation,

462 F.Supp.3d 57

the investigator "make[s] findings of fact, applying a preponderance of the evidence standard, and determine[s] based on those findings of fact whether there was a violation of the Policy." Id. ¶ 29 (quoting the FAS Policy at 17).

Parties may "request informal resolution as an alternative to formal resolution of the complaint." Id. ¶ 31 (quoting the FAS Policy at 18). However, informal resolution requires "agreement of the Complainant and the Respondent and the approval of the Title IX Officer in consultation with the FAS Title IX Coordinator for Faculty and the Title IX Coordinator for the School or unit with which the Complainant is affiliated." Id. (quoting the FAS Policy at 18).

The parties may appeal an investigator's decision alleging either "1. A procedural error occurred, which may change the outcome of the decision; or, 2. The appellant has substantive and relevant new information that was not available at the time of the investigation and that may change the outcome of the decision." Id. ¶ 32 (quoting the FAS Policy at 18).

When an investigator concludes that the policy has been violated, sanctions may be imposed. Id. ¶ 33. "Sanctions shall take into account the severity and impact of the conduct, the Respondent's previous disciplinary history (based on consultations with the relevant Ad Board representative), any written statements submitted by the parties relevant to sanctions, and the goals of this Policy." Id. (quoting the FAS Policy at 21). The Policy does not specify minimum or maximum sanctions but states that a "severe violation will ordinarily require that the respondent observe some period of absence from the University." Id. (quoting the FAS Policy at 22).

Harvard provided Plaintiff a copy of school policies, including the FAS Policy at issue here, upon his acceptance into the incoming freshman class. Id. ¶ 25.

B. The Alleged Assault

Plaintiff entered Harvard as a freshman in the fall of 2016. Id. ¶¶ 23-24.

On April 1, 2017, Plaintiff attended a party along with a Harvard sophomore, referred to in this matter as Jane Roe, and six other members of their acapella group, including Witness 1. Id. ¶¶ 57, 60. Both Plaintiff and Jane Roe consumed alcohol at the party and participated in drinking games. Id...

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