Driscoll v. Bd of Trustees Milton Academy

• Decision Date: 27 September 2007
• Docket Number: No. 06-P-1796.,06-P-1796.
• Citation: 70 Mass. App. Ct. 285,873 N.E.2d 1177
• Parties: Brian R. DRISCOLL & others<SMALL><SUP>1</SUP></SMALL> v. BOARD OF TRUSTEES OF MILTON ACADEMY & another.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

873 N.E.2d 1177

70 Mass. App. Ct. 285

Brian R. DRISCOLL & others¹ v. BOARD OF TRUSTEES OF MILTON ACADEMY & another.²

No. 06-P-1796.

Appeals Court of Massachusetts, Norfolk.

Argued May 9, 2007.

Decided September 27, 2007.

Lisa G. Arrowood, Boston (Heidi A. Nadel & J. Owen Todd with her) for the plaintiffs.

Harold W. Potter, Jr., Boston (Maura J. Gerhart with him) for the defendants.

Present: PERRETTA, KAFKER, & MILLS, JJ.

KAFKER, J.

A seventeen year old student at Milton Academy, a private school (school), was expelled by the school and charged criminally with statutory rape for receiving oral sex from a fifteen year old female student. Four other boys involved in the same incident, which occurred in the boys' locker room on the school campus, were also expelled and prosecuted, either as juveniles or adults, depending on their ages. The incident was reported in the newspapers and commented upon publicly by the school. The seventeen year old student and his parents³ brought suit in Superior Court against the school and its former chief administrator, claiming negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, violation of G.L. c. 93A, § 9, defamation, and negligent and intentional infliction of emotional distress. A judge allowed the defendants' motions to dismiss the plaintiffs' claims pursuant to Mass.R.Civ.P. 8(a), 365 Mass. 749 (1974), and Mass. R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). We affirm.

Background. The plaintiffs' complaint asserts the following facts. The school is a private college-preparatory school occupying a 125-acre campus. Admission is selective. The school admits boys and girls in kindergarten through grade twelve and offers boarding for students in the upper school (grades nine through twelve). The upper school has approximately 680 students. Tuition for the upper school for the academic year 2004-2005 was $25,675 for day students and $32,725 for boarders. The plaintiff was an upper school day student.

According to the school's mission statement, "Milton Academy cultivates in its students a passion for learning and a respect for others." The upper school handbook (handbook) also sets out "Standards, Rules & Regulations." As alleged in the complaint, the school provides a copy of the handbook to every upper school student and his or her parents.

In terms of student conduct, the plaintiffs allege that the handbook provides "that students must keep the school accurately informed of their whereabouts at all times when under the school's jurisdiction." Specific policies govern dormitory room visitation between students of opposite sexes. Alcohol and drug use is prohibited, as are unchaperoned parties. The complaint alleges, however, that "[s]tudents in grades 9 through 12—over and under 16 years old, day students and boarding students—freely and regularly had sex ... on campus."

In terms of student discipline, the complaint alleges that "[t]he Handbook also outlines a fairly detailed and well-developed disciplinary process, which includes the use of a Discipline Committee." Although "the head of school reserves the right to determine a disciplinary response without a Discipline Committee, the Handbook indicates that the power is generally used only where there is an immediate threat to another or to the school's property." Finally, the handbook states that "[w]e expect the cooperation of parents in upholding our standards. We believe that parents and the Academy share the task of establishing the right balance of freedom and responsibility, realistically and consistently, for young people." With this background, we turn to the incident at issue.

After dinner on January 24, 2005, the student and a group of his hockey teammates used a pass code to enter the boys' locker room. They were accompanied by the fifteen year old girl, who was also a student at the school. According to the complaint, she was "known by the boys to have performed oral sex on small groups of boys on ... two prior occasions." In the locker room, she performed oral sex on each of the boys.

School administrators learned of the incident several weeks later and on February 15 or 16, 2005, spoke to the girl involved. No details of this meeting appear on the record, but the girl apparently described the January 24 incident and disclosed the names of the boys involved. The administrators then met privately with the girl's parents and asked the girl to make a written statement on the incident, but "allowed her to think about and write the statement outside of their presence." She submitted the statement to the school administrators the following day.

The next morning, February 17, 2005, the student and the other four boys involved in the January 24 incident were called out of class and brought to separate rooms. The student was questioned by the school's director of admissions and the assistant dean of students, who also told him to produce a written statement.⁴ The school, according to the complaint, "did not give the boys the same opportunity they gave to the girl to consider and write a statement outside of the administration's presence or to take it home and turn it in the next day." The administrators did not inform the student's parents of the incident, nor did they advise him to contact his parents or counsel before he made his written statement.

After the student wrote his statement, the assistant dean of students then advised him to call his parents. The student did so. The student's mother promptly telephoned the assistant dean of students, who told the student's mother that she "did not think [the January 24 incident] would warrant any discipline." The student's father spoke to the dean of students later that day, who told him that it was possible that the student would be expelled.

The following day, February 18, the dean of students informed the student that he had been expelled.⁵ The four other boys involved in the January 24 incident were also expelled. That same morning, the school turned the boys' written statements over to the police. The girl received "non-disciplinary administrative leave."

By the next day, February 19, the school had released a prepared statement to the press.⁶ The head of school, the defendant Robin Robertson, subsequently wrote two letters (dated February 22 and March 3) to all school parents discussing the incident. None of these communications is included in its entirety in the record.

As excerpted in the complaint, the February 22 letter referenced the expected standards of behavior as set out in the handbook:

"As a community we have, as the handbook says, developed certain standards of conduct fundamental to the education the School provides. We believe that it is incumbent on all of us to hold ourselves to the highest standards, both as members of the community and citizens of a larger world. This behavior, which clearly violates community norms, is simply unacceptable at Milton Academy.

"Furthermore, our handbook states that students are expected to uphold the rights and well being of others. Therefore, impinging on the well being of others is an unacceptable breach of this value."

The February 22 letter explained that those standards had not been met here:

"Milton Academy cannot tolerate situations in which any individual, regardless of gender, is pressured, consciously or unconsciously to perform sexual acts. The boys participated in a situation that involved a 5 to 1 ratio of boys to the single girl. That by definition represents a pressurized situation, which the boys should have known. It was a situation where coercion, implicit or explicit, was an element of the interaction."

In her March 3 letter to parents, Robertson provided further information to the school community "about a short and unfortunate pattern of behavior by a small group of students":

"The pattern that ended on January 24 involved two other meetings: four students met on Saturday, January 22, and four met on Sunday, January 23. The first meeting took place in the early evening in a dormitory room; the others took place in the locked locker room in the short interim period between dinner and study hours. The students who participated are those we have already disciplined."

In April, two of the student's sixteen year old teammates involved in the January 24 incident were charged, as juveniles, with statutory rape. On May 31, the student and two other boys involved in the January 24 incident were charged, as adults, with statutory rape. That same day, the three older boys were arraigned in District Court, where a judge approved their plea bargain. Each boy pleaded not guilty and agreed to two years of pretrial probation pursuant to G.L. c. 276, § 87, mandatory counselling, and 100 hours of community service. The boys also apologized twice, in open court, to the girl's family.

In January of 2006, the plaintiffs brought the instant suit against the school and Robertson, alleging negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, violation of G.L. c. 93A, § 9, defamation, and negligent and intentional infliction of emotional distress. Both defendants moved to dismiss, alleging that the plaintiffs' complaint failed to state a claim on which relief could be granted, Mass.R.Civ.P. 12(b)(6), and failed to comply with the requirements of Mass. R.Civ.P. 8. On August 30, 2006, a judge of the Superior Court allowed the defendants' motions and dismissed the plaintiffs' complaint, further ordering that the defendants should recover their costs of action. The plaintiffs appeal.

Discussion. In reviewing the dismissal of claims pursuant to Mass.R.Civ.P. 12(b)(6), we accept the plaintiffs' factual allegations as true. "However, we do not accept legal conclusions cast in the form of factual allegations." Schaer v. Brandeis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000). On appeal, the plaintiffs do not pursue the...