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SJC-12787
MORGAN HELFMAN vs. NORTHEASTERN UNIVERSITY & others.1
Suffolk. December 9, 2019. - July 27, 2020.
Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Negligence, College, Duty to prevent harm, Intoxicated person,
Foreseeability of harm, Vicarious liability, Emotional
distress. Intoxication. Emotional Distress. Contract,
Private college, Performance and breach, School handbook.
Equal Rights Act. Anti-Discrimination Law, Sex, Unfair
educational practice. Education, Private colleges and
universities, Disciplinary matter.
Civil action commenced in the Superior Court Department on
October 31, 2016.
The case was heard by Robert B. Gordon, J., on a motion for
summary judgment.
The Supreme Judicial Court granted an application for
direct appellate review.
Mark F. Itzkowitz (Kenneth I. Kolpan also present) for the
plaintiff.
Daryl J. Lapp (Katherine A. Guarino Baker also present) for
the defendants.
1 Katherine Antonucci, Robert Jose, Briana R. Sevigny, Mary
Wegmann, and Madeleine Estabrook.
2
Lisa A. Parlagreco & Jeffrey S. Beeler, for Heinlein Beeler
Mingace & Heineman, P.C., amicus curiae, submitted a brief.
Rebecca J. Roe, of Washington, & Erin K. Olson, for
National Center for Victims of Crime & another, amici curiae,
submitted a brief.
LENK, J. This case arises out of an allegedly
nonconsensual sexual encounter between two first-year students
at Northeastern University(Northeastern)2 in October 2013. The
plaintiff claims that Northeastern3 is liable for failing to
prevent the sexual assault, as well as for its allegedly
inadequate response, including exonerating her alleged attacker
after a disciplinary hearing.4 Following discovery, a Superior
Court judge granted the defendants' motion for summary judgment
on all claims. The plaintiff appealed, and we subsequently
allowed her application for direct appellate review.
2 Northeastern is a private, nonprofit educational
institution offering undergraduate and graduate degrees.
3 The five named defendants were Northeastern executives
during the relevant period. Jose was the associate dean of
cultural, residential, and spiritual life, and the director of
residential life. He supervised Antonucci, who was an area
coordinator, and who trained and oversaw the work of the student
resident advisors (RAs). Estabrook was the associate vice-
president for student affairs and oversaw the office of student
conduct and conflict resolution (OSCCR). Wegmann was the
director of OSCCR and was responsible for enforcing the code of
student conduct and hiring and training members of the student
conduct board (SCB) and the appeals board. Sevigny was the
assistant director of OSCCR, and trained residential life staff
members, as well as members of the student conduct board.
4 Northeastern police also determined not to pursue any
criminal charges against that student.
3
In light of the multifaceted relationship between a
university and its students, we long have recognized that
universities have a duty to protect students from the
foreseeable criminal acts of third parties. Such a duty exists
even when those criminal acts are made possible by the
intoxication of the student victim. Nonetheless, we conclude
that there was no duty to protect here, where the Northeastern
defendants had at best minimal knowledge of the conditions that
gave rise to the particular harm, rendering this assault
unforeseeable. Further, although we now also recognize that a
college or university will sometimes owe a duty to protect its
students from the harms associated with alcohol-related
emergencies, we conclude that this duty was met here.
Accordingly, we affirm the order granting summary judgment to
the defendants on the plaintiff's negligence-related claims.
Because there was no error in the motion judge's conclusions
regarding the plaintiff's statutory or contract claims, we
affirm the allowance of summary judgment on those claims as
well.
1. Background. We recite the facts from the summary
judgment record in the light most favorable to the nonmoving
party, reserving certain details for later discussion.
In the fall of 2013, the plaintiff was a first-year student
at Northeastern. As required of all first-year students, she
4
lived in a university residence hall. A.G.,5 the alleged
assailant, also was a first-year Northeastern student who lived
in the same dormitory.
Northeastern residence halls were supervised by resident
assistants (RAs), who were students hired6 to foster community
within the dormitories and provide assistance to resident
students. The RAs in turn were supervised by the residence hall
director, a permanent staff person assigned to the same
building, and more generally by the area coordinator. RAs were
required to sign a "Resident Assistant Agreement," which set
forth the terms of their position as well as some of their
duties.
RAs were expected to serve as role models for the younger
students, to be familiar with the provisions of Northeastern's
code of student conduct (code), and to intervene if they
encountered students violating "community norms." RAs were to
hold office hours to meet with students in their assigned
residence halls, and to coordinate programs and events in
accordance with Northeastern's educational goals. The goals for
first-year students included "understand[ing] the effects of
5 As do the parties, we refer to the student by the
pseudonym "A.G."
6 In exchange for their services, RAs received a dormitory
room at no charge, meals in the residence halls, and a small
amount of money monthly on a meal card.
5
drugs and alcohol," "identif[ying] moments of peer pressure,"
and "attend[ing] at least two on or off campus events that are
alcohol free." RAs performed rounds of their assigned buildings
during assigned shifts and were expected to report any code
violations to their supervisors. In addition, RAs served as
proctors at the entrances to some residence halls, where they
regulated access to the hall.7
On October 31, 2013, the plaintiff and A.G. were invited to
a Halloween party hosted by Sarah Smith,8 a sophomore at
Northeastern and an RA in a different dormitory9 from the one in
which the plaintiff and A.G. lived. Before leaving to attend
the party, the plaintiff and A.G. drank alcohol in the
plaintiff's dormitory room. They brought more alcohol with them
to the party, carried in a plastic soda bottle to conceal its
existence from any campus police they might encounter during the
walk across campus.
7 As apparently was common, the RAs in this case were both
sophomore students at Northeastern, and themselves under the
legal age for consumption of alcohol.
8 Because neither RA is a named defendant, and both were
underage students at the time of the alleged assault, we refer
to them by pseudonyms.
9 RA Smith held office hours in a different dormitory from
the one in which she lived. As part of her assigned rounds,
however, she also patrolled her own dormitory.
6
While at the party, the plaintiff played drinking games
with some of the partygoers, consuming alcohol provided by
certain of them. A.G. also gave her whiskey that he had
obtained from another guest. Between her rounds at multiple
dormitories, Smith drank alcohol and participated in the
drinking games. Another RA, Paul Jones,10 who had socialized
previously with the plaintiff, A.G., and Smith, also attended
the party. Both RAs (who themselves were underage) observed
other underage students drinking alcohol, but neither RA
provided any of the alcohol that the plaintiff consumed, nor did
they provide any alcohol to any other guest.
Not long after arriving at the party, the plaintiff became
intoxicated and vomited repeatedly in Smith's bathroom; two
student acquaintances who were attending the party stayed with
her in the bathroom and gave her water and crackers to try to
control the nausea. The students also had the plaintiff wait in
Smith's room and drink water, as they were somewhat concerned
that the proctor at the plaintiff's residence hall might stop
the plaintiff at the entrance because she was too visibly
intoxicated. They offered to walk the plaintiff home, but she
declined because she knew that they were planning to attend
another party, and she did not want them to walk across campus
10 A pseudonym. See note 8, supra.
7
to her residence and then have to walk back to the location of
the second party.
As he was returning anyway in order to attend a sports
practice early the following morning, A.G. then volunteered to
escort the plaintiff to the dormitory where they both lived. On
the way back to her residence hall, the plaintiff sent a text
message to her roommate stating, "Okay I'm coming home I'm
really sick." During the walk, A.G. and the plaintiff kissed
multiple times. At one point, the plaintiff stumbled and fell;
A.G., who himself was intoxicated, was dragged down to the
ground. A.G. also took the plaintiff's telephone and
identification card from her while en route. When they reached
their residence hall, the plaintiff leaned on the counter for
support as the proctor checked their identification. She then
walked unsteadily from the proctor's desk to the elevator.
The two students went to A.G.'s room, where A.G. initiated
sex with the plaintiff. The plaintiff later told Northeastern
police that, "although she was very uncomfortable with what was
going on, she didn't want to hurt his feelings by saying
anything to him or telling him to stop." She "wasn't scared,"
but had not felt as if she could leave if she wanted to. She
also said that she did not know whether A.G. believed she had
consented to the things he was doing. At one point when A.G.
went to the bathroom, the plaintiff sent text messages to her
8
roommate, saying, "I'm ok," and, "Kind of." At another point,
the plaintiff threw up in A.G.'s bathroom.
When the plaintiff returned to her own room the following
morning, she told her roommate about the incident with A.G. In
response to one of the roommate's questions, the plaintiff said
that, if she had been sober, she would have said something to
stop the encounter. The roommate, with the plaintiff's
permission, then informed an RA of the incident. The following
day, the plaintiff and her mother were escorted by Northeastern
police from her dormitory to a local hospital, where the
plaintiff was examined and an evidence collection kit was
completed.
Northeastern police undertook an investigation; they
interviewed the plaintiff, her roommate, and A.G.; reviewed the
video recordings from the entrance to the plaintiff's residence
hall; compiled a list of partygoers, which included the RAs
Smith and Jones; and received screenshots of the various text
messages sent by the plaintiff. The police created a report of
their investigation and provided it to the office of student
conduct and conflict resolution (OSCCR) director Mary Wegmann;
Wegmann then shared it with Briana R. Sevigny, the assistant
director of OSCCR, and Madeleine Estabrook, the vice-president
of student affairs. Following their investigation, Northeastern
9
police decided not to file any criminal charges against A.G. and
did not report the incident to Boston police.
Based on the Northeastern police report, OSCCR charged A.G.
with a code violation of "sexual assault with penetration."11 At
a student conduct board (SCB) hearing on November 21, 2013, both
the plaintiff and A.G. were appointed advisors to assist them.
Each student asked questions of the other through the SCB chair.
On the day after the hearing, the plaintiff and A.G. both
were sent letters explaining that the disciplinary panel had
found that A.G. had not committed the alleged offense.12
Consistent with the procedures in the code at that time, only
the letter to A.G. explained the SCB's reasoning.13 The SCB
noted that it had spent a great deal of time reviewing the
record, including the surveillance video recordings, due to the
serious nature of the charges. The letter explained that the SCB
had considered A.G.'s statements about those words and actions
11The code defined this offense as "the oral, anal, or
vaginal penetration by an inanimate object, penis, or other
bodily part without consent." Consent was defined as a
"voluntary agreement to engage in sexual activity proposed by
another and requires mutually understandable and communicated
words and/or actions demonstrating agreement by both parties to
participate in all sexual activities."
12Consistent with Northeastern's policy, the SCB employed a
standard of a preponderance of the evidence, i.e., "more likely
than not."
13Prior to the hearing, the plaintiff explicitly consented
to this procedure.
10
he had seen as the plaintiff's consent, the plaintiff's
statements about what she had said and done, and what a
reasonable person would have understood about the plaintiff's
consent or lack thereof.
The plaintiff submitted an appeal on the ground of asserted
issues of fact, without setting forth any requisite procedural
error. Unable to determine the nature of the asserted error,
the appeals board remanded the matter for a new hearing. In
preparing for the de novo hearing, Estabrook concluded that
there had been a procedural error in the allowance of the
appeal: the plaintiff had not stated the asserted procedural
error, and had not sent a copy of her request for an appeal to
A.G., nor had she provided him with notice so that he would be
able to respond.
Estabrook overturned the appeals board's order, but allowed
the plaintiff time to amend her appeal to indicate the specific
error she was challenging and to allow A.G. to receive notice of
the appeal and an opportunity to respond. The plaintiff
submitted an amended appeal, on the grounds of procedural error
and newly discovered evidence -- the evidence collection kit.
On February 7, 2014, the appeal on the ground of procedural
error was denied, while the appeal on the ground of new evidence
was allowed. The matter was remanded to the original SCB so
that it could consider the evidence collection kit. The SCB
11
reconvened and affirmed its original holding that A.G. had not
committed a sexual assault. The SCB stated that the evidence
collection kit might have confirmed the fact of intercourse, but
that fact had not been in dispute; the disputed issue had been
as to the question of consent.
2. Discussion. a. Standard of review. We review a
decision allowing a motion for summary judgment de novo, viewing
the evidence in the light most favorable to the nonmoving party,
in this case the plaintiff. See LeBlanc v. Logan Hilton Joint
Venture, 463 Mass. 316, 318 (2012). "Summary judgment is
appropriate where there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of
law." Godfrey v. Globe Newspaper Co., 457 Mass. 113, 118-119
(2010). If a plaintiff has failed to establish "an essential
element" of her case, all other facts are rendered immaterial.
Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991).
The plaintiff claims that Northeastern14 not only
negligently failed to prevent the sexual assault, but indeed
contributed to its occurrence. She also asserts a number of
additional tort, contract, and statutory claims on the ground
that Northeastern failed to respond adequately to the incident.
14 The five named defendants were Northeastern executives
during the relevant period. See note 3, supra.
12
b. Negligence claims. The plaintiff claims that
Northeastern was negligent in several respects: it failed to
protect her from A.G.'s sexual assault, is responsible for the
unreasonable acts and omissions of its RAs, and failed to
exercise due care in training and supervising both its permanent
staff and its "paraprofessional" RA and SCB staff.15
To sustain a claim of negligence, a plaintiff must
establish that (1) the defendant owed a legal duty to the
plaintiff, (2) the defendant committed a breach of that duty,
(3) there was a causal connection between the defendant's
negligence and the plaintiff's injury or damage, and (4) the
plaintiff sustained damages. See Donovan v. Philip Morris USA,
Inc., 455 Mass. 215, 221–222 (2009). "[T]he existence of a duty
is a question of law, and is thus an appropriate subject of
summary judgment." Jupin v. Kask, 447 Mass. 141, 146 (2006).
i. Whether Northeastern owed a duty. "Under our case law,
[one does] not owe others a duty to take action to rescue or
protect them from conditions [one has] not created" (quotation
and citation omitted). Dzung Duy Nguyen v. Massachusetts Inst.
of Tech., 479 Mass. 436, 448 (2018). See Restatement (Third) of
Torts: Phys. & Emot. Harm § 37 (2012) ("An actor whose conduct
15Student members of the SCB were volunteers who attended
particularized training, but received no compensation of any
kind for their ad hoc work as board members.
13
has not created a risk of physical or emotional harm to another
has no duty of care to the other . . ."). Generally, this no-
duty rule extends to the criminal acts of third parties. See
Jupin, 447 Mass. at 148. It is, however, subject to certain
exceptions, two of which the plaintiff asserts are applicable
here. She argues that Northeastern owed her a duty to protect
her by virtue of the special relationship between a university
and its students. Additionally, she maintains that RAs Smith
and Jones exposed her to the foreseeable criminal acts of a
third party, and that Northeastern had a duty to protect her
from the resulting harm.
We agree that, here, a special student-university
relationship between the plaintiff and Northeastern did exist.
See Dzung Duy Nguyen, 479 Mass. at 450 (describing special
relationship). We nonetheless conclude that Northeastern had no
duty to take steps to prevent the alleged sexual assault,
because it was not reasonably foreseeable that the plaintiff
would suffer a criminal act by a third party or other imminent
physical harm due to her intoxication at the time of the
incident.
A. Special relationship between university and student.
In Mullins v. Pine Manor College, 389 Mass. 47, 54 (1983), we
first recognized that colleges and universities have a special
relationship with their students which imposes a "duty . . . to
14
protect their resident students against the criminal acts of
third parties." Although this duty was related to the
university's control over its campus, the relationship we
recognized was not limited to a university's role as a landlord
or property owner. Rather, it arose out of the "distinctive
relationship between colleges and their students." Id. at 56.
It was grounded both on the "reasonable expectation, fostered in
part by colleges themselves, that reasonable care will be
exercised to protect resident students from foreseeable harm,"
id. at 52, and the observation that universities "generally
undertake voluntarily to provide their students with protection
from the criminal acts of third parties," id. at 53.
The defendants nonetheless maintain that whatever special
relationship exists between a university and its student does
not impose a duty to protect a student while he or she is
voluntarily intoxicated. They argue, therefore, that the
Mullins duty does not apply, and that Northeastern had no other
duty to protect the plaintiff from any potentially harmful
consequences of her choice to drink alcohol. In both respects,
we disagree.
I. Voluntarily intoxicated students. As many courts have
noted, requiring colleges and universities to police all on-
15
campus use of alcohol would be inappropriate and unrealistic.16
Although "[t]here was a time when college administrators and
faculties assumed a role in loco parentis" and "[s]tudents were
committed to their charge because the students were considered
minors," "[c]ollege administrators no longer control the broad
arena of general morals." Bradshaw v. Rawlings, 612 F.2d 135,
139–140 (3d Cir. 1979), cert. denied sub nom. Borough of
Doylestown v. Bradshaw, 446 U.S. 909 (1980). College-aged
students, while sometimes underage for the purposes of the
purchase and consumption of alcohol, otherwise are adults
expected to manage their own social activities. See Furek v.
University of Del., 594 A.2d 506, 516–517 (Del. 1991) ("students
are now regarded as adults in almost every phase of community
life" [quotation and citation omitted]). Illicit consumption of
alcohol is an activity that falls well outside the educational
mission of the modern university, and the additional intrusion
16See Doe v. Emerson College, 153 F. Supp. 3d 506, 514 (D.
Mass. 2015) (imposing duty to prevent on-campus alcohol abuse
"would be impractical and unrealistic"). See, e.g., Guest v.
Hansen, 603 F.3d 15, 21-22 (2d Cir. 2010) (no duty to prevent
harms from drinking, even when university was aware of conduct);
Booker v. Lehigh Univ., 800 F. Supp. 234, 240-241 (E.D. Pa.
1992), aff'd, 995 F.2d 215 (3d Cir. 1993) (no duty to student
who was injured after becoming inebriated at on-campus
fraternity party). See also Restatement (Third) of Torts:
Phys. & Emot. Harm § 40 & comment l (2012) (courts reject duty
to protect students from excessive alcohol use); Bendlin,
Cocktails on Campus: Are Libations A Liability?, 48 Suffolk U.
L. Rev. 67, 73 (2015) (noting duty has been rejected in
"majority" of cases).
16
into the private lives of students that would be necessary to
control alcohol use on campus would be both impractical for
universities and intolerable to students.17
It does not follow, however, that a student relinquishes
any reasonable expectation of protection from his or her college
or university if the student becomes intoxicated. Unlike some
courts, we have not endorsed the view that the end of the era of
in loco parentis justified an effective "judicial grant of
collegiate immunity for the repercussions of student alcohol
consumption."18 See Dall, Determining Duty in Collegiate Tort
Litigation: Shifting Paradigms of the College-Student
Relationship, 29 J.C. & U.L. 485, 496 (2003). In Mullins, we
rejected that position, and observed that "the fact that a
17Moreover, part of the collegiate experience is the
freedom to make choices, even bad ones, as a student transitions
into adulthood. Imposing a duty on colleges and universities to
police alcohol use on campus "would inevitably lead to
repressive regulations and a loss of student freedoms, thus
contravening a goal of higher education: 'the maturation of the
students.'" See Smith v. Day, 148 Vt. 595, 599 (1987), quoting
Baldwin v. Zoradi, 123 Cal. App. 3d 275, 291 (1981).
18See Beach v. University of Utah, 726 P.2d 413, 419 (Utah
1986) ("It would be unrealistic to impose upon an institution of
higher education the additional role of custodian over its adult
students and to charge it with responsibility for preventing
students from illegally consuming alcohol and, should they do
so, with responsibility for assuring their safety and the safety
of others"). See, e.g., Bradshaw v. Rawlings, 612 F.2d 135,
140-141, 143 (3d Cir. 1979). These decisions reflected an
understanding that, as students were adults capable of choosing
for themselves, universities owed them no more duty than they
would any other bystanders.
17
college need not police the morals of its resident
students . . . does not entitle it to abandon any effort to
ensure their physical safety." Mullins, 389 Mass. at 52. More
recently, in the private carrier context, we rejected the
outdated view that the voluntary consumption of alcohol by a
plaintiff "is the sole consideration in the assessment of a
duty." Commerce Ins. Co. v. Ultimate Livery Serv., Inc., 452
Mass. 639, 650 (2008) ("A private carrier . . . which transports
intoxicated persons can reasonably foresee that passengers . . .
may not be fully capable of making rational decisions about
their ability to drive") We are not persuaded by the
defendants' argument that no duty exists, and that the duties
arising from the university-student relationship ought not to be
treated similarly in the context here.19
Moreover, like the era of in loco parentis, the "bystander"
era from which those "no duty" decisions emerged also appears to
be drawing to a close. As we stated in Dzung Duy Nguyen,
"[u]niversities are clearly not bystanders or strangers in
regards to their students." Dzung Duy Nguyen, 479 Mass. at 450.
19See Furek v. University of Del., 594 A.2d 506, 522 (Del.
1991) ("[a university] has a duty to regulate and supervise
foreseeable dangerous activities occurring on its property,"
including hazing); Coghlan v. Beta Theta Pi Fraternity, 133
Idaho 388, 400 (1999) (recognizing existence of duty where
"university employees knew or should have known that [student]
was intoxicated and should have acted at the time they saw her
prior to her injury").
18
Rather, "university involvement extends widely into other
aspects of student life." Id. In addition to education, many
universities provide access to basic necessities such as housing
and food, along with the "social, athletic, and cultural
opportunities" that form the foundation of a collegiate
"community." See id. at 451, quoting Regents of the Univ. of
Cal. v. Superior Court of Los Angeles, 4 Cal. 5th 607, 625
(2018); R.D. Bickel & P.F. Lake, The Rights and Responsibilities
of the Modern University 85 (1999) ("Universities . . . plan,
regulate and administer most aspects of student life").
While universities and colleges nonetheless are "not
responsible for monitoring and controlling all aspects of their
students' lives," the contemporary paradigm of the university-
student relationship recognizes that students' "right to privacy
and their desire for independence may conflict with their
immaturity and need for protection." See Dzung Duy Nguyen, 479
Mass. at 451-452. Accordingly, we reject the defendants'
blanket contention that, necessarily, universities have no
special relationship with voluntarily intoxicated students.
II. Contours of special relationship between university
and its intoxicated students. Given that voluntary
intoxication, in and of itself, does not preclude the existence
of a special relationship between a student and a college or
university, we turn to the scope of a university's or college's
19
duty to its intoxicated students. In doing so, we "take into
account a complex mix of competing considerations," Dzung Duy
Nguyen, 479 Mass. at 452, including students' interests in both
safety and autonomy, as well as the burden of such a duty on the
educational institutions. To help guide this analysis, we look
to "a number of factors used to delineate duties in tort law."
Id. "Foremost among these is whether a defendant reasonably
could foresee that he [or she] would be expected to take
affirmative action to protect the plaintiff and could anticipate
harm to the plaintiff from the failure to do so."20 Irwin v.
Ware, 392 Mass. 745, 756 (1984).
As noted, dangerous drinking-related activities are a
foreseeable hazard on college and university campuses.21 Because
Other factors that may be relevant include the "degree of
20
certainty of harm to the plaintiff; burden upon the defendant to
take reasonable steps to prevent the injury; some kind of mutual
dependence of plaintiff and defendant upon each other,
frequently . . . involving financial benefit to the defendant
arising from the relationship; moral blameworthiness of
defendant's conduct in failing to act; and social policy
considerations involved in placing the economic burden of the
loss on the defendant." Dzung Duy Nguyen v. Massachusetts Inst.
of Tech., 479 Mass. 436, 452 (2018).
See National Institute on Alcohol Abuse and Alcoholism,
21
High-Risk Drinking in College: What We Know and What We Need To
Learn, at v, 10-11 (Apr. 2002), https://www.collegedrinking
prevention.gov/media/finalpanel1.pdf [https://perma.cc/3CVU-
8D4K] (estimating that fifty percent of male students, and
twenty-nine to forty percent of female students, engage in
"binge drinking," defined as consuming five or more drinks in a
row for males, and four or more drinks in a row for females);
Wechsler, Lee, Nelson, & Kuo, Underage College Students'
20
of their youth and lack of experience with the consumption of
alcohol outside their family circle, many college students are
particularly susceptible to risky drinking behaviors. Massie,
Suicide on Campus: The Appropriate Legal Responsibility of
College Personnel, 91 Marq. L. Rev. 625, 661 (2008) ("the
brain's maturation process . . . continues into young adulthood,
at least through the early twenties").22 "Colleges and
universities, where young people in their late teens and early
twenties live close together in a 'pressure cooker' environment,
arguably might exacerbate a tendency towards impulsive behavior
Drinking Behavior, Access to Alcohol, and the Influence of
Deterrence Policies, 50 J. Am. College Health 223, 223 (2002)
(suggesting that forty percent of all college students engage in
binge-drinking). Each year, according to at least one
government report, there is a strong correlation between
students' consumption of alcohol and sexual assaults, physical
assaults, and student deaths. See National Institute on Alcohol
Abuse and Alcoholism, Fall Semester -- A Time for Parents To
Discuss the Risks of College Drinking, https://
www.niaaa.nih.gov/sites/default/files/publications/NIAAA_
BacktoCollege_Fact_sheet.pdf [https://perma.cc/5YFY-ZE9A].
22One researcher has postulated that the "late development
of the frontal lobe, responsible for the 'executive functions,'
may help to account for teenagers' willingness to indulge in
risky behaviors, including experimentation with alcohol and
drugs." Massie, Suicide on Campus: The Appropriate Legal
Responsibility of College Personnel, 91 Marq. L. Rev. 625, 662
(2008). While not all college-age students are in their teens,
at the time of the incident at issue here, both the plaintiff
and A.G. were teenagers, as were Paul Jones and Sarah Smith.
21
that a 'sober second thought' would perhaps quell."23 Id.
at 662.
Colleges and universities recognize these foreseeable risks
and have taken reasonable measures to protect students in the
event of an alcohol-related emergency. See Mullins, 389 Mass.
at 55 (recognizing duty where risk of harm to student "was not
only foreseeable but was actually foreseen"). Northeastern, for
example, directs students to contact Northeastern police
officers24 for assistance when faced with crises that occur on
university grounds, including those caused by alcohol. See
Northeastern University police department, Emergency Medical
Services, https://nupd.northeastern.edu/our-services/emergency-
medical-services [https://perma.cc/DC8J-996X].25 Northeastern
23According to the National Center for Education
Statistics, in 2019, there were 19.9 million college students in
the United States. National Center for Education Statistics,
Fast Facts, https://nces.ed.gov/fastfacts/display.asp?id=372
[https://perma.cc/VFZ5-NXSM].
24These police officers are Northeastern employees,
appointed under statutory authority, who have jurisdiction over
Northeastern's buildings and grounds. See G. L. c. 22C, § 63.
25A survey of local universities demonstrates the
widespread adoption of university policies directing students to
contact university police when there is a medical emergency on
campus. Some universities also have required students to
contact university police when they believe a student is
imperiled due to alcohol intoxication. See Massachusetts
Institute of Technology, Mind and Hand Book 2019-2020
§ II(2)(C): Requirement to Obtain Medical Assistance for
Emergencies Involving Alcohol and Prohibited Substances,
https://handbook.mit.edu/aodemergency [https://perma.cc/QVK7-
22
also offers "medical amnesty" for students who contact it in a
medical emergency involving underage consumption of alcohol, and
offers amnesty from punishment for students and organizations
who reach out for help in such an emergency.
Given these efforts, it is foreseeable that a student will
reasonably rely on his or her college or university for aid in
the event of an alcohol-related emergency. See Dzung Duy
Nguyen, 479 Mass. at 455 ("Reliance of the student on the
university for assistance, at least for students living in
dormitories or away from their parents or guardians, is . . .
foreseeable"); Irwin, 392 Mass. at 756 ("reasonable reliance by
the plaintiff [on the defendant university], impeding other
persons who might seek to render aid" from offering help, is
factor in duty analysis). Reliance is particularly foreseeable
for first-year students like the plaintiff, whom Northeastern
required to live on campus in its dormitories. When such a
student confronts an on-campus alcohol-related emergency,
"[u]niversities are in the best, if not the only, position to
assist." See Dzung Duy Nguyen, supra.
After weighing these considerations, we conclude that a
university has a special relationship with its students, and a
HQW9]; Fletcher School of Law and Diplomacy, Tufts University,
Student Handbook 2018-2019, at 29, https://sites.tufts.edu
/fletcherconnect/files/2018/07/Student-Handbook-2018-2019.pdf
[https://perma.cc/FG75-NL3F].
23
corresponding duty to take reasonable measures to protect
students from harms associated with alcohol-related emergencies,
in the following, narrow circumstances. When a college or
university has actual knowledge of conditions that would lead a
reasonable person to conclude that a student on campus is in
imminent danger of serious physical harm due to alcohol
intoxication, and so intoxicated that the student is incapable
of seeking help for him- or herself, the college or university
has a duty to take reasonable measures to protect that student
from harm. See Dzung Duy Nguyen, 479 Mass. at 453 (recognizing
limited duty to take reasonable measures to protect students
from suicide).26
This duty is limited in several important respects. It
applies only when a university is already aware that a student
is at imminent risk of harm. Analyzing the degree of harm does
not require the knowledge or precision of a medical doctor; it
merely requires the recognition that a young person is
dangerously intoxicated.27 Equipped with such knowledge, a
26This conclusion also does not absolve a student of
personal responsibility for his or her drinking. A jury of
course may consider intoxication when weighing whether the "duty
was violated, and in determining causation." Commerce Ins. Co.
v. Ultimate Livery Serv., Inc., 452 Mass. 639, 650 (2008).
27In addition to considering the degree of intoxication, a
university or college also should consider the context of the
drinking, and a continuum of harms, such as whether a student is
unconscious outside, continuing to consume at a party, or inside
24
college or university merely must act reasonably under the
circumstances. In some cases, to strike the appropriate balance
between respecting a student's autonomy and the need to protect
his or her physical well-being, a reasonable response will
include doing little or nothing at all, while in others, calling
for medical or other forms of assistance might be warranted.
B. The foreseeability of the harm. Notwithstanding the
special university-student relationship that existed between
Northeastern and the plaintiff, we conclude that Northeastern
owed no duty to protect her in this instance. A university's
duty to protect its students extends only to those harms which,
based on "an examination of all the circumstances", Mullins, 389
Mass. at 56, were reasonably foreseeable at the time. See,
e.g., Dzung Duy Nguyen, 479 Mass. at 455 (duty "hinges on
foreseeability"). On this record, we conclude that Northeastern
could not reasonably have foreseen that, absent some
intervention on its part, the plaintiff would be subjected to a
criminal act or other harm.
I. Foreseeability of criminal act by third party. At the
time of the alleged assault, Northeastern had no indication that
an assigned dormitory room. Similarly, students with a history
of drinking to the point of alcohol poisoning may pose an
enhanced risk to themselves of future physical harm.
25
A.G. posed any risk to the plaintiff.28 While "[p]rior criminal
acts are simply one factor" in the foreseeability analysis, see
Mullins, 389 Mass. at 56, we note that nothing in the record
indicates that A.G. had a history of sexual assaults, of which
Northeastern was aware (or otherwise). Cf. Schaefer v. Yongjie
Fu, 272 F. Supp. 3d 285, 288 (D. Mass. 2017) (duty arose where
university had knowledge that made specific criminal acts
foreseeable). Northeastern police conducted a search of their
records and found no other reported incidents involving A.G. as
an assailant. Nor did the plaintiff identify any concerns that
she or anyone else possessed regarding A.G. before this
incident. To the contrary, she indicated that she had had none.
Furthermore, the plaintiff does not argue, nor is there any
evidence to suggest, that residence life officers, area
directors, or other full-time staff were aware of the events
leading up to the alleged assault. At most, therefore,
Northeastern's awareness of the circumstances surrounding this
incident was limited to the observations of Jones, an off-duty
RA, Smith, an on-duty RA, and an unknown proctor at the
plaintiff's dormitory.
28There is no indication in the record that Northeastern's
lack of information about the circumstances was the product of
negligence or willful blindness on the part of Northeastern.
26
While the issue is a close one on whether the RAs or
proctor were agents in these circumstances, we need not reach
that issue.29 Even if we were to assume that all of their
knowledge could be imputed to Northeastern, they lacked
sufficient information that would have led a reasonable person
to conclude that the plaintiff was at risk of being assaulted.
There is no indication in the record that A.G. or any other
attendee acted inappropriately towards the plaintiff at the
party. Before, during, and after the party, she was capable of
communicating with other students, both in person and via text
message, and was managing her intoxication. Toward the end of
the party, Smith was told that two female students would escort
the plaintiff back to her dormitory. Based on these
observations, it would not have been foreseeable that A.G. would
assault the plaintiff later that evening.
Arguably, the proctor who was working at the plaintiff's
residence hall when she returned with A.G. perhaps had the best
29RAs, as students who receive some form of in-kind
compensation (room and partial board) for their work for
Northeastern, occupy a hybrid role that may not cleanly fit
within the definition of "employee" for the purposes of tort
law. See Helms, Pierson, & Streeter, The Risks of Litigation:
A Case Study of Resident Assistants, 180 Ed. Law Rep. 25, 26
(2003) ("As both students and employees, RAs' employment status
is inextricably intertwined with their academic status"). It is
also apparent from the student code of conduct that, at least
while on duty, RAs were empowered and expected to enforce
university policies on behalf of Northeastern.
27
opportunity to observe the situation and intervene if
necessary.30 There is no direct evidence in the record, however,
of what that proctor observed, or, for that matter, the identity
of that individual. At most, other evidence31 supports the
inference that the proctor saw an intoxicated male and female
return to the residence hall where they both resided and check
in at the front desk. The proctor likely observed the plaintiff
lean on the desk for support while signing in, before unsteadily
making her way to the elevator. There is no indication that
A.G. was acting aggressively or sexually towards the plaintiff,
or that the plaintiff appeared to be dangerously intoxicated at
that point. The mere presence of an intoxicated young woman in
the company of an intoxicated young man as they returned to
30The plaintiff asserts that the proctor failed in his or
her duty by not calling the Northeastern police and having them
assess whether she safely could have been allowed into the
residence hall given her visibly intoxicated state. There is
evidence in the record that other students at the party
considered that the proctor might take actions in response to
intoxication. The plaintiff testified as well, however, that if
she had been approached by Northeastern police, she would have
said that she was "fine," and "with a friend," and would have
declined any help.
31A police report indicates that the plaintiff and A.G.
were captured on video surveillance footage returning to the
residence hall and checking in with the proctor. This recording
was not included in the record on summary judgment, but was
examined by Northeastern police, who testified as to its
contents.
28
their shared residence hall does not, without more, suggest that
a crime or physical harm is imminent.
The plaintiff maintains that Northeastern should have
foreseen that she would be sexually assaulted because of the
generally recognized connection between alcohol and sexual
assault on college campuses. As we have noted, studies do
reflect that sexual assaults on college campuses are "a major
public health problem," and that "[o]ver half of all college
sexual assaults involve alcohol and alcohol is the number one
drug used to facilitate sexual assault." The plaintiff argues,
based on a report by a Department of Health and Human Services
task force, that approximately 70,000 college students "are
victims of alcohol-related sexual assault annually" in the
United States.
This recognized relationship between alcohol and sexual
assault on campus, however, standing alone, is not sufficient to
impose a duty on Northeastern. See Lake, Private Law Continues
to Come to Campus: Rights and Responsibilities Revisited, 31
J.C. & U.L. 621, 649 (2005) ("notifying [an RA] that someone is
drunk does not alert the [RA] that a rape is likely"); Hernandez
v. Baylor Univ., 274 F. Supp. 3d 602, 619 (W.D. Tex. 2017)
("Courts across the country have determined . . . that the
general foreseeability of sexual assault on campus is
insufficient to warrant negligence liability"). This is
29
precisely the overreaching type of duty that we have never
imposed on universities, and which we again expressly reject
today.
II. Foreseeability of imminent alcohol-related harm.
Similarly, based on the RAs' and the proctor's observations of
the plaintiff, it would not have been apparent to a reasonable
person that she was at imminent risk of physical harm due to
alcohol intoxication. While the plaintiff was obviously
intoxicated at least part of the time that she was in Smith's
room, it did not appear that she was experiencing an emergency.
The plaintiff did not lose consciousness during the evening or
exhibit other indications that she was dangerously intoxicated.
She was talking with other students, sending text messages, and
later eating crackers and drinking water in response to her
nausea. No one encouraged her to seek medical attention; the
students who were in the bathroom with her did not think that
help was necessary, and the plaintiff herself believed that she
did not need any. At most, some other students believed that
the plaintiff should be escorted home by peers and, accordingly,
offered to walk her home.
Moreover, in the absence of an ongoing emergency, it was
reasonable for Jones and Smith to respond to the plaintiff's
intoxication as they did. Jones, an off-duty RA, informed
Smith, an on-duty RA, that a fellow student appeared ill due to
30
drinking alcohol. Rather than continue with her rounds, Smith
stopped to check on the plaintiff. She spoke with the two
female students who were taking care of the plaintiff at the
time and saw that these students were feeding and hydrating her.
After listening for any indication that the plaintiff was still
vomiting, and hearing none, Smith then permitted or acquiesced
in the plan that those two students escort the plaintiff back to
her own dormitory.
At that point, it was not negligent for the RAs to allow
those two students to walk the plaintiff home. Indeed,
Northeastern's policy stated that an RA need not seek further
help or arrange transportation if the RA believed that an
intoxicated student was being assisted by another person. The
fact that, unbeknownst to Smith and Jones, the plaintiff later
turned down this offer of help and opted instead to walk back to
her dormitory with A.G. does not make their decisions
unreasonable.32
Considering all of the information that Northeastern had at
its disposal, it was not reasonably foreseeable that the
plaintiff was in peril at the time of the alleged assault.
32Nor, for that matter, would it have been negligent for
the RAs to allow A.G. to escort the plaintiff home in the first
instance. A.G. was a friend of the plaintiff, they came to the
party together, and they would be returning to their shared
residence hall.
31
Because Northeastern was not on notice that it would be required
to step in and protect the plaintiff, the existence of a special
relationship alone did not impose an obligation on Northeastern
to act. We therefore conclude that, on the particular facts
here, Northeastern did not owe a legal duty to the plaintiff on
the basis of a special relationship. In the absence of such a
duty, summary judgment properly was granted on this portion of
the plaintiff's negligence claim.
ii. Vicarious liability. The plaintiff further asserts
that by holding the Halloween party, RAs Smith and Jones created
an unreasonable risk that she would be sexually assaulted. See
Restatement (Second) of Torts § 302B (1965). Thus, she claims
that Northeastern owed a duty to protect her from the resulting
harms of that party. See Elias v. Unisys Corp., 410 Mass. 479,
481 (1991) ("The [vicarious] liability of the principal arises
simply by the operation of law and is only derivative of the
wrongful act of the agent")
To be sure, by throwing, or tacitly permitting, this
underage drinking party, the RAs hardly covered themselves with
glory. The plaintiff's argument nonetheless fails, however,
because, as noted supra, the subsequent steps that the RAs took
to protect the plaintiff were appropriate under these
circumstances. Whatever duty the RAs may have owed to protect
the plaintiff in these circumstances was clearly met.
32
As the plaintiff cannot establish any breach of a duty on
the part of the RAs, her derivative claims against the
university fail as a matter of law.
iii. Negligent supervision and training. The plaintiff
argues that individual defendants Sevigny, Wegmann, and
Estabrook, as well as Northeastern itself, should be liable for
the negligent training and supervision of the RAs and the SCB
members.
The plaintiff's claim against Northeastern and the
individual defendants fails because there is no evidence that
any of the defendants was negligent in training or supervising
its student resident advisors. "Employers are responsible for
exercising reasonable care to ensure that their employees do not
cause foreseeable harm to a foreseeable class of plaintiffs."
Roe No. 1 v. Children's Hosp. Med. Ctr., 469 Mass. 710, 714–715
(2014). To establish an employer's liability for negligently
training and retaining an employee, a plaintiff must show that
the "employer [became] aware or should have become aware of
problems with an employee that indicated his unfitness, and the
employer fails to take further action such as investigating,
discharge or reassignment." Foster v. The Loft, Inc., 26 Mass.
App. Ct. 289, 291 (1988).
Northeastern's RAs went through a two and one-half week
initial training program, followed by additional workshops.
33
They also met with university staff on a weekly basis. As part
of the training, one student explained, RAs were directed to
report underage drinking and respond according to the severity
of the student's intoxication.33 This training included
recognizing warning signs of the excessive consumption of
alcohol.
Arguably, by failing to report the underage drinking that
they observed, and by engaging in underage drinking themselves,
the RAs apparently did not follow their training on the night in
question. Nonetheless, and notwithstanding Northeastern staff's
ongoing supervision, it does not appear on this record that
Northeastern or any of the individual defendants were aware of
any issues with these two RAs prior to the Halloween incident.
Because the defendants did not know, or have reason to know,
that the RAs would not conduct themselves according to
Northeastern's policies and training, the defendants were not
negligent.
Similarly, the SCB members (who were uncompensated)
underwent both a general training on disciplinary proceedings,
and an additional training specific to sexual assault cases. In
addition, the SCB members were required to observe a full SCB
33Northeastern's written policy, however, set out in the
student handbook, allowed a "medical amnesty" for intoxicated
students in which, among other actions short of reporting, RAs
could arrange for an escort home.
34
proceeding before participating in one. There is no evidence
that the SCB members failed to follow the provisions of
Northeastern's code of conduct, or any policies from their
training, when considering the events at issue here. Nor is
there any indication that Northeastern staff became aware of, or
should have become aware of, any problems with the SCB members'
knowledge of the Northeastern code. See Doe v. Brandeis Univ.,
177 F. Supp. 3d 561, 614 (D. Mass. 2016) (Brandeis Univ.). To
the contrary, the SCB letter explained clearly the factors the
SCB considered in evaluating the issue of consent and its
understanding of the definition of consent under the code.
Accordingly, the defendant cannot sustain her claim of negligent
supervision and training.
c. Negligent infliction of emotional distress. There also
was no error in the judge's decision to deny the plaintiff's
claim for negligent infliction of emotional distress. "[I]n
order to recover for negligently inflicted emotional distress,"
a plaintiff must prove the following: "(1) negligence;
(2) emotional distress; (3) causation; (4) physical harm
manifested by objective symptomatology; and (5) that a
reasonable person would have suffered emotional distress under
the circumstances of the case." Payton v. Abbott Labs, 386
Mass. 540, 557 (1982).
35
For all the reasons discussed in part 2.b, supra, the
plaintiff cannot sustain her negligence claims. Accordingly,
the motion judge properly concluded that, absent the necessary
element of negligence, the defendants' motion for summary
judgment had to be allowed on those counts.
d. Breach of contract. In addition to her negligence
claims, the plaintiff contends that Northeastern committed a
breach of a contract with her in which it promised to conduct
its disciplinary proceedings in accordance with its stated
procedures and the code of conduct in the student handbook.
Although the plaintiff had such a contract with Northeastern,
there was no breach.
Claims that a university did not exercise proper care or
follow its established procedures in student disciplinary
proceedings have been treated as claims for breach of contract,
based on the university's student handbook or other documents,
such as the student code of conduct at issue here. See, e.g.,
Schaer v. Brandeis Univ., 432 Mass. 474, 478 (2000); Walker v.
President & Fellows of Harvard College, 82 F. Supp. 3d 524, 528-
529 (D. Mass. 2014), aff'd, 840 F.3d 57 (1st Cir. 2016).
"Contracts between students and universities are interpreted 'in
accordance with the parties' reasonable expectations, giving
those terms the meaning that the university reasonably should
expect the student to take from them.'" Walker, supra at 528,
36
quoting Havlik v. Johnson & Wales Univ., 509 F.3d 25, 34 (1st
Cir. 2007). Interpretation of a contract, including "any
ambiguities . . . in the disputed contract terms," is a question
of law decided de novo by the reviewing court. See Walker,
supra at 529, citing Driscoll v. Trustees of Milton Academy, 70
Mass. App. Ct. 285, 293 (2007).
To decide whether there was a breach of contract as a
result of a disciplinary proceeding, we examine the conduct of
the disciplinary hearing to determine whether Northeastern
failed to meet the student-plaintiff's "reasonable
expectations," and whether the hearing was conducted with "basic
fairness" (citations omitted). See Brandeis Univ., 177 F. Supp.
3d at 594. The plaintiff identifies two ways in which she
asserts that Northeastern committed a breach of its contract
while conducting the disciplinary hearing. She points to
Estabrook's denial of her appeal after the appeals board had
allowed it, and a lack of "basic fairness" at the subsequent
second hearing, in part due to the destruction of the recording
of the original hearing. See id.
Neither of these asserted missteps represents a breach of
Northeastern's contract with the plaintiff. Estabrook, as the
vice-president of student affairs, was responsible "for the
overall administration of the Code of Student Conduct as well as
the Student Conduct Process." On the record before the court,
37
it is apparent that Estabrook's position afforded her the
implied authority to rectify serious errors in the SCB process,
including the authority to overturn otherwise final decisions of
the appeals board. When she vacated the appeals board's
decision allowing a new hearing on the ground of procedural
error, Estabrook merely exercised that authority. It would be
an absurd result to decide that the plaintiff reasonably could
have expected to proceed with an appeal on the ground of
procedural error, where she did not point to any procedural
error in the initial proceeding.
Likewise, the plaintiff's claim that she was harmed by the
destruction of the transcript of the original hearing cannot
succeed. Prior to filing her appeal, the plaintiff explicitly
declined Northeastern's offer that she listen to an audio
recording of the hearing. Following the allowance of her appeal
(which did not rely on the recording), the tapes were destroyed,
as specifically provided for under the then-existing terms of
the code (in an effort to protect students' privacy and
confidentiality). The plaintiff thus could not have had a
reasonable expectation that the tapes would be retained, nor did
she make any request for an exception such that the tapes would
not be destroyed when she initially declined to listen to them.
The plaintiff also points to a number of purported flaws in
the then-existing written code, including the provision
38
prescribing destruction of recordings after the conclusion of an
appeal, which was intended to protect the privacy of the
parties. These issues with the code itself, however, do not
indicate that Northeastern committed a breach of the terms of
the code. Whatever flaws it arguably contained were not so
egregious that they could have violated the plaintiff's
reasonable expectations, or resulted in fundamental unfairness.
In any event, it is the terms of the code, and not the changes
the plaintiff would like to have seen made, that were at issue
on appeal. In the absence of a breach, the plaintiff's contract
claim could not survive the motion for summary judgment.
e. MERA claim. For similar reasons, summary judgment
properly was granted for the defendants on the plaintiff's claim
under the Massachusetts Equal Rights Act (MERA). MERA provides,
in relevant part, that "[a]ll persons within the commonwealth,
regardless of sex . . . , shall have . . . the same rights
enjoyed by white male citizens, to make and enforce
contracts . . . and to the full and equal benefit of all laws."
G. L. c. 93, § 102 (a).
The parties agree that the plaintiff's MERA claim is based
entirely on Northeastern's asserted breach of its contract with
her. Accordingly, because the breach of contract claim cannot
succeed, for the reasons discussed supra, the judge properly
39
determined that the plaintiff also could not prevail on her MERA
claim.
f. Title IX claim. The plaintiff also raises a Federal
claim under Title IX of the Education Amendments of 1972,
20 U.S.C. § 1681 (Title IX). Title IX provides that "[n]o
person . . . shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance." 20 U.S.C. § 1681(a). See Wills
v. Brown Univ., 184 F.3d 20, 35 (1st Cir. 1999) (Lipez, J.,
dissenting). The protections of Title IX are "enforceable
through an implied private right of action against an
educational institution . . . [that] can include a demand for
monetary damages." Id. at 36.
"[T]he provisions of Title IX indicate that a funding
recipient should be liable only for its own actions, and not for
the independent actions of an employee or a student. . . .
[T]he administrative-enforcement scheme for Title IX permitted
the imposition of financial penalties only after funding
recipients received actual notice of discrimination within their
programs and were given an opportunity to institute corrective
measures; they would be subject to sanctions only for their
failure to respond rather than for an employee's independent
acts." Simpson v. University of Colorado Boulder, 500 F.3d
40
1170, 1175 (10th Cir. 2007), citing Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 287–289 (1998).
The plaintiff argues that Northeastern violated Title IX by
responding with deliberate indifference to the sex
discrimination she suffered. She asserts that Northeastern
failed properly to train the students who oversaw the
disciplinary proceedings, resulting in an inadequate process
that left her vulnerable to future harassment by A.G. See
Wills, 184 F.3d at 25-26 (discussing Title IX standard). See
also Doe I v. University of Tenn., 186 F. Supp. 3d 788, 812
(M.D. Tenn. 2016) (describing ongoing injury from improper Title
IX proceedings). The plaintiff maintains further that the
conduct of the SCB inquiry, and the intervention by Estabrook,
cast doubt on the accuracy of the disciplinary process and
support an inference that gender bias was a motivating factor.
See Doe v. Columbia Univ., 831 F.3d 46, 57 (2d Cir. 2016)
(Columbia Univ.). For the reasons discussed infra, this Federal
law claim fares no better than the plaintiff's other claims.
i. Deliberate indifference. To sustain a cause of action
that is not based on an "official policy" of a university, a
plaintiff must show that "an official who at a minimum [had]
authority to address the alleged discrimination and to institute
corrective measures on the recipient's behalf [had] actual
knowledge of discrimination" and responded with "deliberate
41
indifference." Gebser, 524 U.S. at 290. See Doe v. Trustees of
Boston College, 892 F.3d 67, 93 (1st Cir. 2018) (Trustees of
Boston College). The underlying "discriminatory act must be so
severe, pervasive, and objectively offensive that it can be said
to deprive the victims of access to the educational
opportunities or benefits provided by the school." Id., citing
Porto v. Tewksbury, 488 F.3d 67, 72 (1st Cir. 2007). In turn, a
university's response must be "clearly unreasonable in light of
the known circumstances." Davis v. Monroe County Bd. of Educ.,
526 U.S. 629, 648 (1999). See Farmer v. Kansas State Univ., 918
F.3d 1094, 1099 (10th Cir. 2019), quoting Davis, supra at 648-
649 ("Title IX does not require a funding recipient to acquiesce
in the particular remedial action a victim seeks. . . . '[T]he
recipient must merely respond to known peer harassment in a
manner that is not clearly unreasonable'").
When Northeastern first learned of the asserted assault, it
"acted expeditiously and reasonably, and exhibited no
indifference at all to [the plaintiff's] allegations." Hayut v.
State Univ. of New York, 352 F.3d 733, 752 (2d Cir. 2003). Upon
learning of the allegations, Northeastern initiated an
investigation that culminated in the SCB proceedings. It also
issued a no-contact order against A.G.; the order remained in
place throughout the plaintiff's time at Northeastern. The
plaintiff was offered, and received, ongoing counselling from
42
Northeastern. Northeastern also extended other accommodations
to her, including offering to move her and her roommate to a
"safe room," or transferring her out of classes she shared with
A.G., but ultimately she decided not to accept these additional
measures.34
On the whole, "the record not only fails to support [the
plaintiff's] contention, it proves otherwise." Doherty vs.
Emerson College, U.S. Dist. Ct., No. 1:14-CV-13281-LTS (D. Mass.
Sept. 29, 2017) (initiating investigation, issuing stay away
order, and offering counselling was reasonable initial
response). As the record reflects, the SCB's hearing procedures
were not deficient. Prior to the first SCB hearing, the
plaintiff was appointed an advisor to assist her and to be
present at the hearing, as was A.G. At her request, the
plaintiff was allowed to ask questions of A.G. through the SCB
chair, who heard the question as stated by the plaintiff, and
then posed it to A.G.; A.G. similarly was allowed to ask
questions of the plaintiff. The SCB ultimately decided the case
based on a complainant-friendly preponderance of the evidence
standard. Examining the totality of the proceedings, we
conclude that they do not reflect deliberate indifference.
34While these otherwise appropriate accommodations are not
unreasonable in these circumstances, we note that it was the
plaintiff, rather than A.G., who would have been required to
adjust her living and studying arrangements.
43
Similarly, the plaintiff's assertions that the students who
took part in the proceedings were insufficiently trained is not
supported by the record. To sustain her claim, the plaintiff
would have to demonstrate that Northeastern had a "policy of
deliberate indifference to providing adequate training or
guidance that is obviously necessary for implementation of [the
SCB] program." Simpson, 500 F.3d at 1178. Here, the students
received specific Title IX training that included explanations
of the key concepts in this case, among them incapacitation and
consent; the students were instructed that someone who is
incapacitated can never give consent. This definition, and the
explanation, also were set out plainly in the code that was
provided to all students. That the students could not precisely
define certain terms at their depositions, five years after the
incident, does not raise an issue of material fact that must be
decided by a jury.
Additionally, the plaintiff's deliberate indifference claim
cannot succeed as a matter of law because the record does not
establish that she was excluded from any educational
opportunity. Although the plaintiff reported that she
experienced ongoing emotional and psychological harm, she does
not identify a particular effect that this had on her education.
Rather, the record reflects that she graduated on time, magna
cum laude. Cf. Gabrielle M. v. Park Forest-Chicago Heights,
44
Ill. Sch. Dist. 163, 315 F.3d 817, 823 (7th Cir. 2003) (holding
that there was no concrete, negative effect on education where
plaintiff was "diagnosed with some psychological problems"
following harassment). Absent "necessary evidence of a
potential link between her education and [A.G.'s] misconduct,"
the plaintiff's claim cannot survive summary judgment. See
Davis, 526 U.S. at 652.
ii. Erroneous outcome. The entry of summary judgment for
the defendants also was warranted as to the plaintiff's claim of
erroneous outcome. "[T]he applicable standard for [a] Title IX
claim challenging [a university's] disciplinary procedures on
erroneous outcome grounds requires that a plaintiff offer
evidence 'cast[ing] some articulable doubt on the accuracy of
the outcome of the disciplinary proceeding,' and indicating that
'gender bias was a motivating factor.'" Trustees of Boston
College, 892 F.3d at 90, quoting Yusuf v. Vassar College, 35
F.3d 709, 715 (2d Cir. 1994). Viewing the facts in the light
most favorable to the plaintiff, neither necessary element could
be established on this record.
Estabrook's intervention, whatever its propriety,
ultimately had little if any effect on the accuracy of the SCB's
final decision. Hypothetically, by reversing the appeals
board's decision to allow an appeal, Estabrook could have
limited the issues that the SCB could have considered on appeal
45
to purely procedural matters. Subsequently, however, Estabrook
allowed the plaintiff to file an amended appeal, and the matter
was remanded for a new hearing before the SCB based on new
evidence. Although the appeals board had denied the plaintiff's
amended appeal on the ground of procedural error, after
concluding that there had been none, on remand the SCB
nonetheless considered the procedures employed at its first
hearing, and stated in its decision that it found that no
procedural errors had occurred at the initial hearing. Thus, it
would appear that the plaintiff ultimately had the benefit of
the full appeal of the procedures that she initially had sought.
In addition, even if there were any doubt about the
accuracy of the proceeding, there was no evidence that any error
was the product of gender bias. Although the plaintiff is
correct that bias may be inferred when "the evidence
substantially favors one party's version of a disputed matter,
but an evaluator forms a conclusion in favor of the other side
(without an apparent reason based in the evidence)," Columbia
Univ., 831 F.3d at 57, no such inference is appropriate here.
Estabrook's intervention does not lack an apparent reason based
in the evidence; she indicated that she overturned the appeals
board's decision due to her perception of procedural
inadequacies (allowing an appeal where no ground for appeal had
been stated) and unfairness due to lack of notice.
46
Further, any possible inference of bias would "not
necessarily relate to bias on account of sex" (emphasis added).
Id. Other than the plaintiff's unsupported assertion that
"reporting sexual assault victims are overwhelmingly female,"
she does not identify any evidence to support the additional
conclusion that Estabrook's decision was spurred by gender bias.
Without evidence of "a causal connection between the outcome of
[the] disciplinary proceedings and gender bias," Trustees of
Boston College, 892 F.3d at 91, the plaintiff's claim asserting
an erroneous outcome must fail.
Judgment affirmed.