PONSOR, U.S.D.J.
Plaintiff has been expelled from the University of Massachusetts following an incident in which he was found to have assaulted a fellow student. On the heels of this, he has filed a two-count complaint against five Defendants: the University of Massachusetts at Amherst; Enku Gelaye, Dean of Students and acting Vice Chancellor; David C. Vaillancourt, Senior Associate Dean of Students; Allison Berger, Associate Dean of Students; and Patricia Cardoso, Associate Dean of Students. The first count asserts due process and equal protection claims against all Defendants pursuant to 42 U.S.C. § 1983; the second count charges Defendant University with a violation of Title IX, 20 U.S.C. § 1681. Both parties have now moved for summary judgment. For the reasons set forth below, the court will allow Defendants' motion and deny Plaintiff's.
Cases in which a student, usually male, has received discipline for allegedly assaultive or harassing behavior against another, usually female, student can raise difficult questions about the proper balance between the due process rights of the accused and the need to protect the alleged victim.
This is not such a case. Prior to the incident that led to his expulsion, Plaintiff had already been cautioned and disciplined twice for drunken, assaultive behavior; in one instance this prior conduct had led to his arrest by the police. While the complaint underlying this lawsuit was pending against him in the University disciplinary process, Plaintiff was warned three times, orally and in writing, to refrain from contact with the female complainant. Nevertheless, with full knowledge of this directive, Plaintiff ignored it to an astounding degree, texting the victim 1700 times and telephoning her over 300 times over a five-week period. In addition to this, Plaintiff met with the complainant during the prohibition period for multiple sexual trysts, called her for help when he was so intoxicated that he eventually needed temporary hospitalization, and made an appearance at a bar where the complainant worked that turned so menacing that security personnel made him leave. Plaintiff's justification for his almost mind-boggling contumacy, offered at his deposition, was that these contacts were "consensual" on the part of the complainant
This attempted rationalization will not wash. The no-contact orders could not have been clearer; they countenanced no exceptions for what Plaintiff viewed as "consensual." Despite these warnings, and with a history of serious assaultive misconduct, Plaintiff blew through the University's attempts to exercise even minimal control over him. The sad truth is that, if Plaintiff had simply respected the no-contact orders, covering only a few months, he would almost certainly have graduated years ago.
Plaintiff has been well represented. Despite counsel's Olympian efforts, however, the starkly egregious facts cannot be explained away. A largely student panel weighed the evidence and sensibly concluded that Plaintiff was primarily responsible for the ugly underlying incident of assault, as well as for violating the University directives. The University administration, confronting a student with two previous strikes and an aggressive refusal to respect even modest limitations, concluded, equally sensibly, that the proper sanction was expulsion. The disciplinary mechanism, though not without flaws, reasonably complied with the requirements of due process and equal protection. Accordingly, as noted, the court will allow Defendants' motion for summary judgment and deny Plaintiff's cross motion.
Ordinarily, when addressing a motion for summary judgment, the court must view the facts in favor of the non-moving party, drawing all reasonable inferences in his favor.
Defendant University provided each enrolled student with a copy of the Code of Student Conduct, and students were subject to it so long as they were enrolled in an academic course or program. The CSC relevant here covered student conduct that took place in the academic year 2012-2013, including misconduct that occurred off-campus "when the behavior distinctly and directly affect[ed] the University community." (Code of Student Conduct I.D, Dkt. No. 119, Attach. 1 (hereafter "CSC").)
The CSC enumerated what actions would be considered violations of the rules for standards of conduct and scholarship. Four are relevant here: physical assault on another;
Once a charge had been filed against a student, that student was to receive a Notice of Charge, outlining the violations he or she was accused of committing. The student had 48 hours to request a Disciplinary Conference to discuss the alleged violations. The CSC contained procedures for the handling of technical infractions and "minor violations," as well as for repeated violations and more serious infractions.
The process for handling repeated violations and serious infractions could unfold in different ways, depending on the response of the accused student. If a student did not respond to the Notice of Charge, the case would go before the Hearing Board, in a process that is described below. If the student did respond to the charge and accepted responsibility for the charge at the initial Discipline Conference, and agreed to specific sanctions for that behavior, then an Administrative Agreement would be signed by the student and the staff member. Signing the Administrative Agreement indicated that the student accepted the sanction and waived his or her right to a hearing or to an appeal. This avenue meant that the Hearing Board was never convened.
Notably, if the Notice of Charge for violation of the CSC involved a more serious class of violation, such as allegations of violence or a severe act of harassment, and the University official had a reason to believe, using his or her professional judgment, that the accused student was a threat to himself or herself, to others, or to property, the official could impose an interim restriction. An interim restriction could be a suspension, a restriction of access to certain campus facilities, or a prohibition from contacting certain individuals or groups within the community. Interim restrictions could be imposed without prior notice and became effective immediately.
A deliberate violation of an interim restriction could, of course, become the basis for another Notice of Charge. If the University official had grounds to believe that a student was violating a restriction, the official could request an expedited hearing to address the concern. In some circumstances, a violation of an interim restriction could be the basis for suspension from the University.
If the student disputed the facts in the Notice of Charge, the matter would be referred to a Hearing Board. Generally, a student was to be notified no fewer than five days before the date of a hearing of its time and place. If, though, the charge involved a violation of an interim restriction,
Hearings on violations of the CSC took place before a Hearing Board, which comprised between three and five University employees and students appointed by the Vice Chancellor for Student Affairs. The University bore the burden of proving that a student had violated the CSC by a preponderance of the evidence. The charged student could bring an advocate to the hearing, but that advocate could not be an attorney, per the CSC.
At the conclusion of the hearing, the board was to make a recommendation and forward it to the Dean of Students, along with a written summary of testimony, findings of fact, and rationale. Upon receipt of these documents, the designated University Official would render a written decision on the matter, "consisting of findings of fact, sanction(s), and reasons therefore." (CSC IV.E.11.) This would then be forwarded to the charged student.
The determination of an appropriate sanction could be based, among other factors, on "the student's present demeanor and past disciplinary record [and] the nature of the offense." (CSC V.) Sanctions included expulsion, suspension, deferred suspension, and University probation or reprimand, among others.
A student could appeal the Hearing Board's substantive decision or the resulting sanction to the University Appeals Board (UAB), composed of three University employees and/or students. There were four bases for appeal: (1) procedural error or irregularity materially affecting the decision; (2) "[n]ew evidence not previously available that would have materially affected the decision;" (3) lack of support for the decision "by substantial evidence;" or (4) lack of support for the sanction "by the charges and/or the student's disciplinary history." (CSC VI.B.1-4.) The UAB would review the hearing records and make a recommendation to the Vice Chancellor for Student Affairs, who would then issue a final decision.
On April 16, 2013, Defendant University received a call from a student's mother, who reported that her daughter, Lauren Gibney, had been physically assaulted by Plaintiff, her boyfriend, in Barcelona, Spain, where they both were studying on a University program. Gibney then sent the University a statement detailing her account of the assault, which accused Plaintiff of grabbing her wrists and punching himself in the face with her hands, as well as pinning her down on a bed. Pursuant to the University's policies, Gibney's complaint went to the Dean of Students' Office.
On April 17, 2013, Defendant Gelaye instructed Defendant Berger to open a student conduct case on the basis of Gibney's
On May 1, 2013, Plaintiff, having returned from Barcelona, met with Berger and denied the charges against him. After their meeting, Plaintiff sent to Berger an email containing his version of the incident in Barcelona.
Despite the no-contact order, Plaintiff resumed contact with Gibney almost immediately that May, through Skype and text messages, as well as through meetings for "intimate relations." (Pl.'s Mem. of Law in Supp. 5, Dkt. No. 9.) On May 9, 2013, Gibney's mother discovered that Plaintiff was still contacting Gibney. When confronted, Gibney told her mother that Plaintiff was refusing to stop contacting her. Gibney did not tell her mother that these contacts had occurred, to some extent, with her complicity. Gibney's parents immediately notified Berger that Plaintiff was still in contact with their daughter. Even after this report to the Dean, Plaintiff and Gibney continued their contacts.
On the afternoon of May 9, 2013, Berger spoke on the phone with Gibney about the phone calls and texts from Plaintiff. During this call, Gibney did not tell Berger that she had colluded in the contacts, and Berger had the impression at the end of the call that the contacts were not in any way consensual. Based on this impression, on May 28, 2013, Berger issued a second Notice of Charge to Plaintiff for violating CSC 2012-13/II.B.2 (harassment) and 2012-13/II.B.13 (failure to comply with the direction of university officials). This second notice was sent by mail to Plaintiff's home address in Maryland. Again, the second Notice of Charge contained the explicit, written directive to Plaintiff to stop all contact with Gibney. (Ex. E Notice of Charge, Dkt. No. 16, Attach. 4 at 14.)
On June 3, 2013, Gibney and her mother met with Berger to discuss the contacts
On June 17, 2013, by email Berger issued to Plaintiff a third Notice of Charge for violating CSC 2012-13/II.B.2 (harassment) and 2012-13/II.B.13 (failure to comply with the direction of university officials). Moreover, Berger imposed the interim restriction of suspension, effective immediately, based on Plaintiff's "behavior represent[ing] a direct and imminent threat to [his] safety and the safety of the University community." (Ex. F Notice of Charge, Dkt. No. 16, Ex. 4 at 15.) The third notice informed Plaintiff of his right to a meeting because of the suspension and directed Plaintiff to contact Berger's office within two days.
On June 19, 2013, Berger and Plaintiff, as well as Plaintiff's father, David Haidak, had a second disciplinary conference via telephone regarding both the second and third notices of charge. In this conference, Plaintiff stated that he was considering charges against Gibney for her physical assault on him in Barcelona. Berger stated that Plaintiff could submit a charge, and her office would make a determination based on the submission about how to proceed. However, Berger told Plaintiff that, even if he did file a charge against Gibney, it was unlikely that the charge would be formally addressed until
On July 8, 2013, Plaintiff sent his version of events in an email, including excerpts from his texts with Gibney, in an effort to show Berger that the contacts between Gibney and him were, in his view, entirely consensual and even "welcome." This is, in part, disputed. Defendants now concede that
On August 5, 2013, Berger sent Plaintiff an email stating that the interim suspension imposed on June 17, 2013, would continue in effect until further notice. The email did not provide reasons as to why the interim restriction remained in place.
It is significant that, during these summer months, Defendants took no action to schedule any proceeding before a Hearing Board. Accepting Plaintiff's argument as true that the no-contact order in the first Notice of Charge constituted an interim restriction under the CSC (VII.B), the imposition of the interim suspension based on violations of the no-contact orders appears to call for an expedited hearing under the CSC (VII.D).
On August 21, 2013, Plaintiff sent an email to the University's Judicial Advisor program. This program pays students to act as advisors and advocate for individuals navigating the University's disciplinary process, either as complaining students or as charged students. The Judicial Advisors attend meetings with charged students at the Dean of Students Office and assist the students in preparing for hearings before the Hearing Board, as well as in writing appeals to the UAB. On August 26, 2013, Judicial Advisor Stasie Levin took the assignment of assisting Plaintiff. In this role, Levin corresponded frequently with Plaintiff about his case, including about whether he should file charges against Gibney and what evidence he could submit to the Hearing Board. Additionally, Levin had several conversations about Plaintiff's case with individual Defendants, including Berger, Cardoso, and Gelaye.
On August 27, 2013, Plaintiff's father sent an email to Berger inquiring into whether Plaintiff could take an "elective leave of absence," as the new academic year was about to begin, Plaintiff was still under suspension, and no date had yet been set for the Hearing Board to convene. On August 29, 2013, Berger replied that the University had no such mechanism as an "elective leave of absence." However, Berger informed him, Plaintiff could withdraw and later apply for readmission.
After this exchange, on August 30, on the advice of his student judicial advisor, Plaintiff called Defendant Gelaye. During their phone conversation, Plaintiff stated to Gelaye that he believed Berger was discriminating against him with respect to the charges. He and Gelaye also once more discussed the option of Plaintiff filing a charge against Gibney based on her assault on him during the incident in Barcelona. Gelaye informed Plaintiff again that he was free to file a charge against Gibney but that his doing so would not change the status of Gibney's case against him. When Plaintiff inquired about lifting his interim suspension, Gelaye told him that this was not possible until after the proceeding before the Hearing Board.
On September 1, 2013, Plaintiff withdrew from the University — as he put it, "under duress." Plaintiff wrote that he was
Despite no longer being a student at the University, Plaintiff moved to an apartment in Amherst in September and, in the teeth of the three no-contact orders, continued to pursue a relationship with Gibney. On the night of September 14, 2013, Plaintiff became intoxicated and called Gibney for a ride. On the trip home, they got into an argument, during which Plaintiff threatened to kill himself. Then, Plaintiff exited the car while it was still moving. Gibney called the police, who took Plaintiff to the hospital, where he remained until he had recovered from his intoxication. On September 15, 2013, Gibney's mother notified Berger of this contact.
On September 19, 2013, Gibney and her mother met with Berger. Gibney admitted at the meeting that she had herself sometimes initiated contact with Plaintiff over the summer, but that she no longer wanted contact with Plaintiff.
On September 26, 2013, the melodrama continued. Plaintiff showed up, appearing intoxicated, at Gibney's work place, a bar in Amherst. He was the only person at the bar, and he positioned himself uncomfortably close to Gibney. Security at the establishment removed Plaintiff after the owner asked Gibney if she wanted Plaintiff to leave. Later in the night, Plaintiff sent Gibney a coarse message on Skype: "Whores don't really understand real life ... They talk to dudes with broken English but really they just spread their legs and get fucked like the sluts they are...." (Defs.' Statement of Facts ¶ 43, Dkt. No. 123.)
The following day, on September 27, 2013, Gibney notified Berger about the previous night's contact with Plaintiff. Any claim that Plaintiff's overtures to Gibney by this point were "welcome" or consensual lacks support in the record. With encouragement from Berger's office, Gibney filed an application for a state-court restraining order describing the incident at her workplace and the message Plaintiff wrote her. This application failed to disclose that Gibney's relationship with Plaintiff during some of the prior relevant time period had been, to some extent, consensual on her part, despite the University's no-contact order. After an
On October 2, 2013, the student judicial advisor Levin sent Plaintiff an email. In it, she summarized a conversation she had with Berger, who told Levin, once more, that Plaintiff was free to file charges against Gibney if he wished. As before, however, Berger stated that Plaintiff's charges would not be pursued until after Gibney's charge against Plaintiff was addressed.
On October 8, 2013, the state court judge held an adversarial hearing on Gibney's application for an extension of the ten-day restraining order. Upon cross-examination by Plaintiff's counsel, Gibney admitted that her relationship with Plaintiff had been, at times and to some extent, consensual, and that she had struck and bitten Plaintiff during the course of their approximately eighteen-month relationship. At the conclusion of the hearing, the judge declined to extend the TRO.
On November 15, 2013, Plaintiff and Cardoso had several phone conversations, during which they discussed what evidence Plaintiff wished to put before the Hearing Board, as well as what dates were available for the hearing.
Cardoso also conferred with Plaintiff to choose a date for the Hearing Board to convene. She provided three different dates, and Plaintiff selected Friday, November 22, 2013, though he was aware he would not be able to attend in person on that date. Plaintiff and Gibney received notice on November 15 that the hearing had been scheduled for November 22, 2013.
The following day, Plaintiff told Cardoso that he wished to have his mother make a statement at the hearing in his defense. She would recount, Plaintiff said, a conversation she had with Gibney in February 2013 in Barcelona, several months prior to the April 15 incident that formed the basis of Gibney's charge, during which Gibney purportedly admitted to biting Plaintiff. Plaintiff's mother would also explain that she saw the bruises on her son's arm from the bite. Cardoso replied that, unless Plaintiff's mother was a witness to the April 15, 2013, incident, she would not be permitted to testify. However, Cardoso explained, Plaintiff's mother could submit a letter that would be included in the file reviewed by the dean tasked with making a decision on sanctions should the Hearing Board find Plaintiff responsible for the CSC violations.
In the days before the hearing, Gibney's parents contacted the University to object to the use of the restraining order transcript during the student conduct hearing, as well as the fact that Plaintiff's counsel would be present. Plaintiff, for his part, submitted to Cardoso thirty-six questions he wanted the Hearing Board to ask Gibney, as well as a summary of his view of the charges. Plaintiff's mother also submitted her statement to Cardoso. The day before the hearing, Cardoso notified Plaintiff that she had decided not to permit the transcript from the state court hearing to be submitted to the Hearing Board.
The record is disputed as to whether Plaintiff acceded to Cardoso's decision regarding
Cardoso limited the evidence before the Hearing Board in other ways. She did not permit the submission of Plaintiff's mother's statement or the picture of the bruise on Plaintiff's arm from February 2013. Cardoso also pared the 36 questions submitted by Plaintiff down to sixteen. These questions omitted inquiries into whether Gibney had ever hit or bitten Plaintiff and whether she had tried to conceal her relationship with Plaintiff from her parents.
On November 22, 2013, the Hearing Board convened with four student members and one staff chair. Cardoso acted as the procedural advisor for the hearing; Gibney was present and Plaintiff attended by phone. For Plaintiff, retained counsel and Levin, his judicial advisor, were present; for Gibney, an advisor/advocate attended. Contrary to the Hearing Board agenda, Plaintiff — not Gibney, as the complaining witness — was questioned first.
According to the Student Conduct Hearing Board Report (Ex. A Report, Dkt. No. 16, Ex. 2), the board reviewed statements from Gibney and Plaintiff for each charge against Plaintiff. For the charge of assault stemming from the April 15, 2013, incident in Barcelona, the board reviewed photos provided by both Gibney and Plaintiff. For the charges of harassment stemming, in part, from Plaintiff's persistent contact with Gibney, the board reviewed statements from Gibney as well as phone and text message logs and the actual text messages.
After reviewing the submitted materials, the Hearing Board, as noted, began its questioning with Plaintiff. After receiving his responses, they directed questions at Gibney. Thereafter, the board took a break to prepare a final group of questions for both Gibney and Plaintiff. (Hr'g Tr. 32, Dkt. No. 123, Attach. 9 at 11.) One of the questions directed at Plaintiff after the break dealt specifically with his understanding of the no-contact order in the Notice of Charge. Plaintiff answered that, at the time, though he understood the order from the dean was designed to protect Gibney, he did not believe he had an obligation to comply with it, because Gibney was talking to him voluntarily. He stated, "[i]n retrospect I should have followed the school's rule, but I was in a relationship with her for many years and I was under a lot of pressure and stress dealing with the hearing and the school." (
Plaintiff's answer to the Hearing Board is consistent with his testimony during his deposition on December 22, 2015. When asked about his understanding of the no-contact order, Plaintiff stated that he understood Defendants' directive to prohibit his contact with Gibney, but he decided that Gibney's decision "as a consenting
After considering the evidence, the Hearing Board concluded that Plaintiff was
With respect to its findings, the Student Conduct Hearing Board Report provided the following rationale for the board's decisions:
(Ex. A Report 8, Dkt. No. 16, Ex 2.)
After the Hearing Board issued its report, Defendant Vaillancourt, Senior Associate Dean of Students, reviewed the findings and found them to be "consistent with the charges and based on substantial evidence." (Vaillancourt Aff. ¶ 4, Dkt. No. 16, Ex. 2.)
Vaillancourt also reviewed Plaintiff's significant prior history of misconduct, which involved two serious incidents. The first incident occurred on February 27, 2010. Plaintiff, while intoxicated, punched another student in his dorm and pushed and spat on the resident advisor breaking up the altercation. Plaintiff was so inebriated at the time that he was placed in protective custody. He agreed to be found responsible for the CSC violations of endangering behavior, harassment, physical assault, and breach of University policies. He received the sanctions of housing probation, anger management meetings, and alcohol education workshops.
The second incident occurred on October 28, 2012. Plaintiff was arrested by the Amherst Town Police and charged with nuisance, noisy and disorderly house, and disturbing the peace. Plaintiff again
It is undisputed that Vaillancourt was familiar with Plaintiff from the prior incidents and had been "disheartened" by the paper written by Plaintiff after the October 28, 2012 incident. This response is not surprising. Plaintiff's purported "sanction/reflection" paper stated that, while he had "empathy" for some of the residents of Amherst, "Kids will party no matter what. End of story.... Is this responsible? Certainly not, but it is a simple truth." (Ex. E Editorial Response, Dkt. No. 16, Attach. 2 at 20.)
After considering Plaintiff's history of discipline at the University, Vaillancourt determined that the appropriate sanction was expulsion. He reasoned as follows:
(Vaillancourt Aff. ¶ 9, Dkt. No. 16, Ex. 2.)
Plaintiff takes the position that Vaillancourt failed to take into account
On December 3, 2013, Vaillancourt notified Plaintiff by letter of his expulsion, as well as of his right to file a letter of appeal. On December 18, 2013, Plaintiff, through counsel, filed a 15-page letter of appeal. As grounds for his appeal, Plaintiff listed three of the four bases identified in the CSC: procedural error or irregularity which materially affected the decision; lack of substantial evidence to support the decision; and lack of support for the sanction by the charges or by Plaintiff's disciplinary history.
As part of his letter of appeal, Plaintiff requested that Gelaye recuse herself from the appeals process because she had participated with Cardoso in the decision to exclude the court transcript and bruise photograph from the hearing. Gelaye did not recuse herself. In her role as Vice Chancellor of Student Affairs and Campus Life, she was the person responsible for receiving the recommendations of the University Appeals Board (UAB), and she did so for Plaintiff's appeal.
On December 19, 2013, the day after the appeal was filed, the UAB met and recommended that the sanction be upheld.
(Ex. A UAB Letter 2, Dkt. No. 16, Ex. 1.) That same day, Gelaye notified Plaintiff by letter that she was upholding his expulsion
As part of the record in support of entry of judgment in his favor, Plaintiff has included evidence of contact between the Dean's office, which was handling his discipline matter, and the University Relations office as proof that Plaintiff's appeal was pre-judged and the decision-makers biased. Specifically, before Plaintiff submitted his appeal, his father sent an email to Vaillancourt "expressing his dismay in the decision."
Finally, Plaintiff has also submitted some evidence derived from data produced by Defendants regarding charges of assaultive conduct by students that occurred between 2011 and 2015, noting the gender of the complaining and charged students, conduct charged, whether there was a finding of "responsible," and what sanction followed findings of "responsible." According to the data provided by the University, between 2010 and 2015, 93 males and 26 females were found responsible for assault charges under the CSC. Of these, 13 students were expelled, all male. Plaintiff has particularly highlighted the cases of two female students who went through the University's discipline system based on charges of physical assault upon male students. The summaries do not include details regarding the incidents, the extent of the injuries to the male victims (if any), or the past disciplinary history of the female students. In both cases, the female students were found responsible, but in neither case was the female student expelled. (
Plaintiff's expert witness, Herbert Weisberg, Ph.D., performed an analysis of this evidence, and concluded that "the adjudication process for alleged assault tends to treat males and females differentially." (
On March 18, 2014, Plaintiff filed a verified complaint (amended first on April 16, 2014 (Dkt. No. 20) and again on March 4, 2015 (Dkt. No. 68)), along with an emergency motion for injunctive relief (Dkt. No. 2). On May 8, 2014, the parties appeared before the court for argument. On May 27, 2014, the court denied Plaintiff's motion for injunctive relief, finding that "the merits appear to be in equipoise and ... the record lacks an adequate showing of irreparable harm." (Dkt. No. 45.) Thereafter, Defendants responded to the complaint
As noted in the introduction, Plaintiff's Second Amended Verified Complaint comprises two counts. Count I, brought against the individual Defendants pursuant to 42 U.S.C. § 1983, alleges violations of Plaintiff's due process rights and rights to equal protection of the laws under the Fourteenth Amendment of the United States Constitution. Specifically, Plaintiff claims that his due process rights were violated by Defendants' failure to provide a hearing or establish that he constituted an "imminent threat" before initially suspending him from the University, by failing to provide a hearing before the Hearing Board in a timely fashion, and by expelling him after a hearing in which he was denied the rights to notice of the allegations against him, the opportunity to contest evidence against him, and the ability to present evidence on his own behalf. Plaintiff further claims Defendants denied his rights to equal protection under the laws by not themselves initiating disciplinary charges against Gibney. Plaintiff contends that Defendants failed to do this based on their gender-based bias against males. Count II, brought against Defendant University pursuant to Title IX, 20 U.S.C. § 1681, alleges that Plaintiff's gender was the motivating factor behind Defendants' decision to enforce the CSC against Plaintiff and not Gibney, to impose sanctions on Plaintiff for violation of the CSC, and to impose sanctions more severe than those faced by similarly situated female students.
Plaintiff has moved for summary judgment on liability on both his § 1983 and Title IX claims. His arguments for liability center on the issues of (1) Defendants Berger's and Vaillancourt's failure to notify Plaintiff in writing after his conference with Berger on May 1, 2013, that the no-contact order in the first Notice of Charge remained in effect, (2) Defendants Berger's and Gelaye's failure to provide him with a predeprivation hearing before suspending him in June 2013, (3) Defendants Berger's and Cardoso's deprivation of his opportunity to be heard in a reasonable time due to the seven-month delay between the triggering incident and the Hearing Board proceeding, and (4) Defendant University's deliberate indifference to his claim of intimate partner violence by Gibney. In turn, Defendants have moved for summary judgment on all claims, arguing that as a matter of law the process afforded to Plaintiff conformed with the requirements of the Fourteenth Amendment of the U.S. Constitution and that his claim under Title IX must fail because there is no evidence in the record supporting Plaintiff's claim that any allegedly "improper conduct occurred on account of his sex." (Dkt. No. 121.)
The court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Where both parties simultaneously seek summary judgment, the standard is not altered: the court must consider each motion independently, viewing the facts in the light most favorable to the non-moving party.
Determining exactly what process is due in the context of an educational institution's imposition of discipline requires an inquiry into "the nature of the interest affected, and the circumstances of the deprivation."
In evaluating whether the process available to a plaintiff comported with the requirements of due process under the Constitution, a court must consider three factors: (1) the private interest affected by the government action, (2) the risk of a wrongful deprivation of the interest by the procedures used, as well as the benefit of additional or alternative procedures, and (3) the burden on the defendant's interests that the additional or alternative procedures entail.
Plaintiff's private interest here is great, and Defendants do not contend otherwise. The law recognizes both Plaintiff's property interest in his education and his liberty interest in his good name and reputation.
The determination whether a defendant university's procedures comport with "basic fairness" is fact-driven. As the First Circuit has made clear, "[b]eyond the right to notice and hearing, the span of procedural protections required to ensure fairness becomes uncertain, and must be determined by a careful weighing or balancing of the competing interests implicated in the particular case."
In evaluating a school's disciplinary processes, the Supreme Court has recognized that "further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process."
Plaintiff argues that Defendants' process with respect to notice and opportunity to be heard was flawed in several fundamental ways. The court will first address the issue of the adequacy of notice, then examine the issue of opportunity to be heard.
Due process demands that an individual be provided with notice regarding the charges against him so that he has an opportunity to respond.
Plaintiff argues that Defendants deprived him of his due process right to adequate notice of the charges against him when the initial no-contact order was imposed, as well as when he received an interim suspension for violating this order and the subsequent no-contact order. In particular, Plaintiff finds fault with Defendants' failure to notify him that the initial no-contact order remained in effect after his May conversation with Berger about the alleged assault in Barcelona. He also contends that his rights were violated when Berger failed to provide reasons for the continuation of the no-contact order.
The undisputed facts contained in the summary judgment record refute Plaintiff's argument. As noted above at length, Plaintiff received three Notices of Charge that clearly explained the accusations against him and informed him of his rights under the CSC. The first, dated April 19, 2013, identified the provision of the CSC he was accused of violating, directed him to a website containing the entirety of the CSC, and included a brochure for the Judicial Advisor Program offered by the University for students charged under the CSC. This is also the document that informed Plaintiff of Defendants' directive that Plaintiff not "have any direct or indirect contact with [] Gibney ... includ[ing], but ... not limited to comments, words or gestures in person, through postal mail, email, text, instant messaging, social networking sites, or by having others ... act on your behalf." (Dkt. No. 16, Attach. 4 at 13.)
The second and third Notices of Charge similarly informed Plaintiff of the nature of the accusations against him. (
Plaintiff takes issue with Defendants' failure to somehow re-affirm the no-contact directive after the May 1, 2013, conversation between Berger and Plaintiff about the charges against him. No authority, however, required Defendants to remind Plaintiff of the existing, very clear no-contact order after the May 1 conversation, or after any other contact with Plaintiff. The language of the order was itself broad, detailed, and emphatic. Plaintiff conceded at his deposition that he knew very well that the University had directed him to stay away from Gibney, right from
Plaintiff further argues that his right to adequate notice was undermined by Defendants' mischaracterization of the no-contact order as a "directive," when, according to Plaintiff, it was actually an "interim restriction," as provided for under the CSC. Properly pigeon-holed, the no-contact order — the argument runs — would have entitled Plaintiff to some extra procedural rights and perhaps put him on better notice of what might happen to him if he defied the order. But it is impossible to discern what practical effect this re-labeling of the no-contact order would have had. A complaint of a frightening incident had been filed. Plaintiff was clearly told to stay away from the complainant while the University administrators and, eventually, the Hearing Board sorted it out. Plaintiff forthrightly concedes that he knew of the content of the order, and its rationale, right from the get-go.
The University cannot be faulted for assuming that anyone in Plaintiff's position, especially someone who had already been disciplined twice, would comply with the no-contact order, whether it was viewed as a "directive" or as an "interim restriction." Simple compliance with the order might well have avoided this whole painful mess, or at least moderated its consequences.
The strictures of due process are not hyper-technical.
Along with notice, due process requires that an individual have an "opportunity to be heard `at a meaningful time and in a meaningful manner'" before a deprivation of liberty or property.
Evaluating whether a state's procedures comport with due process is a case-specific exercise, related to "time, place, and circumstances."
First, Plaintiff attacks Defendants' procedures surrounding the issuance of the no-contact orders, the ensuing charges for violating the orders, and the interim suspension after the finding of a violation. Specifically, Plaintiff claims that, in contravention of the CSC, Defendants failed to convene an expedited hearing after imposing what he terms an "interim restriction" on him prohibiting contact with Gibney. This lapse, he argues, was compounded when he was subsequently charged with violating the restriction. The final, and most serious, blow fell, according to this argument, when Plaintiff's repeated, knowing violation of the no-contact order resulted in his interim suspension without a prior hearing and without a finding that Plaintiff was an "imminent threat to himself... [or] to others." (Dkt. No. 119, Attach. 1 at 13.)
In weighing these arguments, it is important to bear in mind that the court's analysis must focus on whether Plaintiff's constitutional rights have been violated, not on whether Defendants might have adhered more scrupulously to the requirements of the CSC. The Constitution requires only that a pretermination hearing provide a reasonable "check against mistaken decisions."
It is true that the first no-contact order on April 19, 2013, after Gibney's initial complaint, was issued without any opportunity for Plaintiff to be heard ahead of time. This fact does not, however, raise due process concerns for at least three reasons.
First, as a preliminary matter, a no-contact order does not implicate a substantial property or liberty interest such as education or reputation. The procedural safeguards, in this context, may be more rudimentary than formal.
Second, as Plaintiff himself recognizes, a predeprivation hearing before the April 19, 2013, issuance of the first Notice of Charge, along with its no-contact order, was not possible as a practical matter. Plaintiff was in Spain, thousands of miles away. (Pl.'s Mem. in Support 19, Dkt. No. 125.)
Third, Defendants conducted an in-person conference with Plaintiff reasonably promptly
The same can be said of Plaintiff's suspension — accurately classified as an "interim restriction" — which Defendants imposed on June 17, 2013. As noted earlier, the pretermination process need not be "elaborate" where there is a more robust
Next, Plaintiff vigorously argues that the Hearing Board proceeding itself was constitutionally impaired in three respects. First, Defendants improperly excluded the transcript of the TRO hearing in state court, the pictures of the bite mark Gibney left on Plaintiff's arm, and the testimony of his mother. Second, Defendants deprived Plaintiff of the assistance of counsel. Third, Defendants denied Plaintiff the opportunity to confront and cross-examine Gibney. Plaintiff points out that where a case hinges on the credibility of one witness, the ability to cross-examine that witness might be essential to a fair hearing.
None of these alleged defects, alone or taken together, is sufficient to render Defendants' hearing procedure so infirm as to deprive Plaintiff of his due process rights. Exclusion of evidence that is repetitive or secondhand does not show that the process was unfair or that Defendants were biased against him. Moreover, on the issues of fact that Plaintiff sought to establish with the excluded evidence — that Gibney had misled her parents and Defendants about her consensual contact with Plaintiff and that she had also been physically aggressive with Plaintiff — the Hearing Board found in his favor. These facts simply did not persuade the board on the ultimate question of his culpability on the charges before it.
With respect to rights to counsel and to cross-examination, the First Circuit's 25-year-old decision in
Plaintiff's most compelling argument is his objection to the length of time — seven months — between the first Notice of Charge and the Hearing Board proceeding. He argues that this delay violated his
Even if the seven-month delay between the first Notice of Charge and the hearing was not unconstitutional, Plaintiff argues, the fact that his hearing for his June 17, 2013, suspension did not occur for five months
The seven-month delay is a matter of concern. It is true that a university tends, to some extent, to go into "sleep mode" over the summer. But due process is a twelve-month obligation. If the University wishes to avoid a risk of a due process violation, not to mention a violation of its own CSC, it obviously needs to establish a mechanism that allows a prompt response to complaints of this sort over the summer months.
While the delay here was certainly regrettable, and should be avoided in future, it did not, in the context of this case, constitute a deprivation of Plaintiff's due process rights. First, and most importantly, the delay played no significant part in affecting the outcome of the Hearing Board proceeding.
It is true that the earlier version of the CSC, applicable over the summer, permitted cross examination of a complaining party, but the Court of Appeals has held that this "is not an essential part of a constitutionally acceptable process."
In the end, the bulk of the evidence in this case was uncontested. Plaintiff admitted he forcibly pinned Gibney down; her injuries were confirmed by photographs. The fact that Plaintiff utterly ignored the repeated no-contact orders is also undisputed. The decision of the panel of Plaintiff's peers was thoughtful and probing, accepting a number of Plaintiff's arguments. The Hearing Board recognized that some fault existed on both sides, but plausibly found that Plaintiff's behavior was disproportionate, while also declining to find him responsible for the most serious charges. Moreover, the decision accepted Plaintiff's argument that the contacts with Gibney were "consensual," and declined to find Plaintiff guilty of endangering or harassment. Its finding that Plaintiff flouted the University's orders is beyond reproach.
The sanction of expulsion, while severe, was fully supported by the largely uncontested record. The vast majority of students manage their college careers with no disciplinary sanctions. Plaintiff had admitted to two serious incidents of violent behavior, which had resulted in sanctions, prior to the Barcelona incident. While the
The charge that bias infected the process holds no water. No evidence suggests that Berger became so personally inflamed against Plaintiff that she could not treat him fairly. As for Defendant Gelaye, Plaintiff has little to offer in support of his charge of bias beyond disagreement with the outcome of the hearing. Neither do the intra-University communications following the receipt of Plaintiff's father's email offer support to any claim of bias. Plaintiff's assertion that Defendants were driven by a pecuniary interest in expelling Plaintiff to avoid paying damages for Plaintiff's previous (allegedly unconstitutional) interim suspension is supported by nothing but unvarnished conjecture. A claim of bias must be supported by more than speculation.
Plaintiff's criticism of the UAB process is similarly unpersuasive. The fact that Plaintiff's appeal was promptly rejected proves nothing. Even if the appeal process was flawed (and no evidence suggests it was) it is well established "that a student has no constitutional right to review or appeal after a disciplinary hearing which satisfied the essential requirements of due process."
In sum, the process was adequate. Its flaws, to the extent they existed, did not affect the substantive outcome.
While Plaintiff's interests deserved protection here, and were protected, it is important to recognize that Defendants had a significant interest as well: the maintenance of a safe learning environment for students.
These competing interests both deserve recognition. The First Circuit has recognized that "that the undue judicialization of an administrative hearing, particularly in an academic environment, may result in an improper allocation of resources, and prove counter-productive."
In the particular, complex factual landscape presented by this case, the balance of competing interests was struck fairly. No violation of due process occurred.
The First Circuit has not directly addressed the application of Title IX to university disciplinary processes. However, the Second Circuit's opinion in
Plaintiffs who claim an erroneous outcome must first offer evidence "sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding."
The record in this case is insufficient to support Plaintiff's case on either element. First, the evidence of an error by the Hearing Board is unpersuasive. The two findings that Plaintiff violated the no-contact orders are essentially undisputed. Plaintiff admits he violated the order egregiously but offers the patently inadequate justification that Gibney "consented" to the violations. He does contest the finding that he was predominantly responsible for the April 2013 incident of assault, arguing that he was acting in self defense. But the Hearing Board's contrary conclusion was supported by substantial evidence and involved a credibility determination it was in the best position to make.
Even if the Hearing Board erred, the record is entirely devoid of proof demonstrating that gender bias in any way drove the Board's mistake. Evidence in this category, as
The "selective enforcement" argument fares no better. To prove this, plaintiffs must point to evidence that, "regardless of the student's guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student's gender."
At this stage, the evidence in the record must be sufficient to convince a reasonable factfinder that an act of selective enforcement, or an especially severe sanction, derived from gender bias. A "trending" pattern will not do. As the expert report itself recognized, while the
The comparator offered by Plaintiff involving the two female students found guilty of assault but not expelled lacks sufficient detail, such as the discipline histories of the female students or the severity of the incidents, to permit any helpful conclusion about disparate treatment.
A separate line of cases recognizes liability under Title IX where schools have exhibited a "deliberate indifference" to "severe, pervasive, and objectively offensive" sexual harassment.
Here, Plaintiff's only evidence of any severe or pervasive discriminatory environment is that the Defendants were deliberately indifferent to alleged violence perpetrated against him by Gibney. As an initial matter, it is hard to fault the University for not pursuing charges against Gibney when Plaintiff himself declined to do so. More importantly, even if Plaintiff's characterization of Gibney's behavior were believed, the fact that the University took no action in response to this one incident would hardly be sufficient to demonstrate the existence of a pervasive discriminatory environment. The pattern of conduct here, even accepting Plaintiff's version of it entirely, in no way approximated the sort of lengthy course of brutality described in the Supreme Court's
Plaintiff's contention that his violation of the no-contact order should have been disregarded because his actions were "consensual" or "welcome" and because Gibney violated the order too will not support a claim of discrimination. Plaintiff, not Gibney, was charged with assault. Plaintiff, not Gibney, was given three written warnings to stay away from Gibney — warnings that obviously contained no exception for "consensual" contact. Berger's oral reminder to Gibney that she should also stay away from Plaintiff offers no parallel to Plaintiff's situation. The fact that she for
In sum, the record here will not support any claim for a violation of Title IX.
For the foregoing reasons, Defendants' Motion for Summary Judgment (Dkt. No. 121) is hereby ALLOWED and Plaintiff's cross-motion (Dkt. No. 118) is hereby DENIED. This case may now be closed.
It is So Ordered.
The 2013-2014 CSC amended the definition of physical assault to "include[] physical attack upon or physical interference with a person that causes that person to suffer actual physical injury." (Dkt. No. 133, Attach. 36 at 10.)
