Havlik v. Johnson & Wales University

United States Court of Appeals
For the First Circuit

No. 07-1879

CHRISTOPHER HAVLIK,

Plaintiff, Appellant,

v.

JOHNSON & WALES UNIVERSITY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Stahl, Senior Circuit Judges.

John R. Mahoney, with whom Asquith & Mahoney, LLP was on
brief, for appellant.
Paul V. Curcio, with whom John A. Tarantino, Katy A. Hynes,
and Adler Pollock & Sheehan P.C. were on brief, for appellee.

December 5, 2007
 SELYA, Senior Circuit Judge. The Clery Act, 20 U.S.C. §

1092(f) (the Act), requires colleges and universities that

participate in federal financial aid programs to notify their

constituent communities of certain reported crimes. This case

requires us to construe, for the first time at the federal

appellate level, the Act's notification requirements. After

analyzing the language and purpose of the Act, charting the

dimensions of the plaintiff's claims, and sifting through the

factual record, we affirm the district court's entry of summary

judgment in favor of the defendant university.

I. BACKGROUND

The plaintiff, Christopher Havlik, is a citizen and

resident of New York. In 2002, he enrolled as an undergraduate at

Johnson & Wales University (the University) in Providence, Rhode

Island. The events that led to this litigation occurred early in

his junior year.

In the late night or wee morning hours of September 16-

17, 2004, the plaintiff engaged in a heated exchange with another

student, Donald Ratcliffe, on a sidewalk near the intersection of

Richmond and Pine Streets in Providence. In the course of this

encounter, the plaintiff punched Ratcliffe, knocking him to the

ground. As a result, Ratcliffe hit his head on the sidewalk.

The Providence police responded and investigated the

incident. Acquaintances of each protagonist had witnessed the

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fracas and gave somewhat differing accounts of what had transpired.

One witness told the police that the plaintiff was holding a knife

at the time of the confrontation.

The police arranged for Ratcliffe to be taken by

ambulance to a local hospital, where he was found to have sustained

a concussion and a fractured skull. Then, after concluding their

probe, the police lodged a criminal charge against the plaintiff.

The incident was duly reported to the University's campus

safety and security office. That office commenced its own inquiry.

This inquiry culminated in an incident report, which indicated that

the episode probably had been triggered by fraternity-related

animosities; that the plaintiff was the likely aggressor; and that

he reputedly flashed a knife at the time. At least one witness

stated that he and a friend (also a witness) feared that the

plaintiff or his fraternity brothers would retaliate against them

for cooperating in the investigation.

On September 20, the University's student conduct office

notified the plaintiff of his temporary suspension for violating

rules contained in the student code of conduct (the Code). The

notice cited three violations: assaulting another student,

possessing a knife, and engaging in criminal behavior. The notice

advised the plaintiff that he had a right to a hearing and

scheduled one for the following day.

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 The hearing went forward the next morning before the

student conduct board (the Board). The plaintiff explained his

actions and presented witnesses who testified on his behalf. Other

evidence also was adduced. After mulling all the proof, the Board

found the plaintiff "responsible" for assaulting another student

and for engaging in lawless behavior (the first and third charges).

It found him "not responsible" for possessing a knife (the second

charge). The Board then recommended that the plaintiff be

dismissed from the University for having transgressed the Code and

notified him of his right to appeal its decision.

During the course of these proceedings, other (related)

events were occurring on a parallel track. On the same day that

the plaintiff received notice of his suspension, the University's

chief in-house counsel, Barbara Bennett, reviewed and revised a

draft of a "crime alert" that she had received that day from the

campus safety and security office. The crime alert was, in effect,

a notice designed to inform the University community of a reported

crime.

While both versions of the crime alert included

statements that a blow had been struck and a knife had been

brandished, Bennett's version contained two facts not included in

the original draft. First, it noted that members of a particular

fraternity (ZBT), whose enrollment included the plaintiff, were

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involved in the incident. Second, it named the plaintiff as the

party reportedly responsible for the crime.

When her work was finished, Bennett sent the final

version of the crime alert back to the campus safety and security

office. Personnel from that office posted it in various locations

some time after 4:00 pm on September 21. The record indicates

that, at the relevant times, neither Bennett nor the campus safety

and security office had any knowledge of the outcome of the

disciplinary hearing before the Board.

The plaintiff decided to appeal the Board's decision, as

was his right. Prior to going forward with his appeal, he and his

mother conferred with Ronald Martel, the University's vice-

president for student affairs. At the meeting, Martel accused the

plaintiff of dissembling about the incident and called his

fraternity brothers "thugs." The plaintiff nonetheless persisted

in his appeal and Martel (to whom the letter of appeal was sent)

turned the matter over to the designated appeal officer, Veera

Sarawgi (also a vice-president of the University).

Although Sarawgi was not deposed, she would in the normal

course of events have received, along with the letter of appeal,

the hearing notification, a statement of applicable hearing

procedures, the Board's decision, and the University's incident

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report.1 Sarawgi also asked Martel whether he knew of any reason

that the Board's proposed sanction should be tempered or

overturned. Martel replied in the negative. Nothing in the record

indicates that he shared his views about either ZBT or the

plaintiff's veracity with Sarawgi. On September 29, Sarawgi

affirmed the plaintiff's dismissal.

During and after this time frame, a criminal prosecution

was being mounted. The Providence police had charged the plaintiff

with criminal assault. See R.I. Gen. Laws § 11-5-3. The case

originally was heard in the state district court and the plaintiff

was found guilty after a bench trial. He appealed to the superior

court and claimed his right to a de novo jury trial. See id. § 12-

17-1. In May of 2005, a jury acquitted him.

Disgruntled by the disruption of his scholarly pursuits,

the plaintiff filed a civil action against the University in Rhode

Island's federal district court. He premised jurisdiction on

diversity of citizenship and the existence of a controversy in the

requisite amount. See 28 U.S.C. § 1332(a). His complaint alleged

defamatory publication of false information by means of the crime

alert and breach of contract for the University's failure to

provide a fair appeal process. The University denied the material

1
In his deposition, Martel listed these materials as the
standard contents of the file given an appeal officer. At any
rate, no issue is raised in this appeal as to the nature of the
documents transmitted to Sarawgi.

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allegations of the complaint and, after the close of discovery,

moved for summary judgment. The district court granted the motion.

Havlik v. Johnson & Wales Univ., 490 F. Supp. 2d 250, 262 (D.R.I.

2007). This timely appeal followed.

II. ANALYSIS

We review a district court's entry of summary judgment de

novo. Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006).

In conducting that tamisage, we must sift the evidence and evaluate

it in the light most congenial to the nonmovant (here, the

plaintiff). Id. By the same token, we draw all reasonable

inferences from the facts in the nonmovant's favor. Id. We

caution, however, that this decisional calculus need not take into

account "bald assertions, unsupported conclusions, or optimistic

surmises." Bennett v. Saint-Gobain Corp., ___ F.3d ___, ___ (1st

Cir. 2007) [2007 WL 3227393, at *5]. When all is said and done, we

will affirm the summary judgment order only if the record,

scrutinized in the foregoing manner, reveals no genuine issue of

material fact and verifies that the movant (here, the University)

is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(c).

A. The Clery Act.

To put the relevance of the Clery Act into perspective,

we deem it useful to begin by delineating the anatomy of the

plaintiff's defamation claim. Defamation is a common law cause of

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action that arises under state law (here, the law of Rhode Island

— the place of publication).

In Rhode Island, defamation requires proof that (i) the

defendant made a false and defamatory statement regarding another,

(ii) published it to a third party without an attendant privilege

and (iii) was at least negligent in making the publication, with

the result that (iv) the defamed party incurred harm. Kevorkian v.

Glass, 913 A.2d 1043, 1047 (R.I. 2007). Consistent with this

formulation, the defendant may avoid liability by showing that the

publication enjoys a qualified privilege. See Mills v. C.H.I.L.D.,

Inc., 837 A.2d 714, 720 (R.I. 2003).

In this instance, the district court assumed for

argument's sake that the crime alert was defamatory. Havlik, 490

F. Supp. 2d at 255. It determined, however, that the University

enjoyed a qualified privilege, stemming from its duty under the

Act, to publish the crime alert. Id. at 258. The court further

determined that, in issuing the crime alert, the University acted

without ill will or malice, so that the qualified privilege

protected it from liability. Id. at 260.

The plaintiff advances three primary claims of error with

respect to this multi-part determination. In addressing them

sequentially, we assume arguendo, as did the district court, that

the crime alert contained defamatory statements.

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 1. The Qualified Privilege. Under Rhode Island law, a

qualified privilege attaches if "the publisher acting in good faith

correctly or reasonably believes that he has a legal, moral or

social duty to speak out, or that to speak out is necessary to

protect either his own interests, or those of third persons, or

certain interests of the public." Ponticelli v. Mine Safety Appl.

Co., 247 A.2d 303, 305-06 (R.I. 1968). Thus, the privilege may

apply when the speaker's perception of his duty to speak, though

incorrect, is nonetheless reasonable. See id.

With this legal landscape in mind, the plaintiff argues

that the University had no duty under the Act to report his

involvement in the putative crime to the campus community and that,

therefore, it had no qualified privilege to publish the crime

alert. The University demurs, insisting that it had a legal duty

to report the putative crime and set out the known particulars. On

that basis, it defends the district court's holding that a

qualified privilege obtained.

To determine whether the University enjoyed a qualified

privilege, we must first determine whether its professed belief in

its legal duty was reasonable. This brings us to the Clery Act,2

2
In its original incarnation, the Act was given the short
title "Crime Awareness and Campus Security Act of 1990." Congress
amended the Act in 1998 and renamed it the "Jeanne Clery Disclosure
of Campus Security Policy and Campus Crime Statistics Act." Most
commentators now use the shorthand "the Clery Act," and so do we.

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so a brief exposition of the Act's provisions and legislative

purpose is in order.

The Clery Act mandates that all colleges and universities

that accept federal funding must notify the constituent campus

communities — students, faculty, employees, and the like — when

certain crimes are brought to their attention. Specifically, the

Act requires every covered entity to make "timely reports to the

campus community on [certain] crimes considered to be a threat to

other students and employees . . . that are reported to campus

security or local law police agencies." 20 U.S.C. § 1092(f)(3).

The Act has both qualitative and situational limitations.

As to the former, the Act does not reach all types of crimes but

only encompasses murder, manslaughter, aggravated assault, sex

offenses, robbery, burglary, motor vehicle theft, arson, liquor,

drug, and weapons offenses, and hate crimes. Id. § 1092

(f)(1)(F)(i)-(ii). An aggravated assault is a covered crime, and

in this venue the plaintiff does not contest that his confrontation

with Ratcliffe qualifies under that rubric. See Appellant's Br. at

14-15.

Paragraph (1)(F) of the Act contains the relevant

situational limitations. It describes the loci of crimes that must

be reported. See 20 U.S.C. § 1092(f)(1)(F). That paragraph speaks

of crimes that occur "on campus, in or on noncampus buildings or

property, and on public property . . . ." Id. The Act then

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proceeds to define each of these terms. "[N]oncampus building[s]

or property" are those owned or controlled by the institution that

are outside the "reasonably contiguous geographic area of the

institution," id. § 1092(f)(6)(A)(ii); "public property" is non-

owned property within the area reasonably contiguous to the

institution and adjacent to a facility owned or controlled by the

institution, id. § 1092(f)(6)(A)(iii).

The goal of the notification requirement is to protect

members of the constituent campus communities by "aid[ing] in the

prevention of similar occurrences." Id. § 1092(f)(3). The Act's

history illuminates the centrality of this goal. Congress passed

the original version of the Act in 1990 amid concerns that the

proliferation of campus crime created a growing threat to students,

faculty, and school employees. See H.R. Rep. No. 101-518, at 7

(1990), reprinted in 1990 U.S.C.C.A.N. 3363, 3369. Congress

recognized that contemporary campus communities had become

increasingly dangerous places. Id. Furthermore, it noted that, in

roughly eighty percent of crimes on campus, both the perpetrator

and the victim were students. See Crime Awareness and Campus

Security Act of 1990, Pub. L. No. 101-542, § 202, 104 Stat. 2381,

2384 (codified as amended at 20 U.S.C. § 1092(f)).

Notwithstanding these concerns, the first iteration of

the Act restricted the reporting requirement to crimes committed on

campus. See 20 U.S.C. §§ 1092(f)(1)(F) & (f)(3) (1990); see also

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H.R. Rep. No. 101-518, at 8, reprinted in 1990 U.S.C.C.A.N. at 3371

(disclaiming any intention "that institutions report . . . offenses

which occur outside of the campus"). Over time, however, Congress

became dissatisfied with this restriction. In 1996, the House of

Representatives expressed its displeasure with current enforcement

efforts and passed a resolution calling for the Department of

Education to make "[s]afety of students . . . the number one

priority." H.R. Rep. No. 104-875 (1997), reprinted in 1997 WL

10633, at *61 (citing H.R. Res. 470, 104th Cong. (1996)).

Two years later, Congress amended the Act to provide

broader protections. Through the Higher Education Amendments of

1998, Congress expanded the Act's coverage to reach not only crimes

committed on campus but also crimes committed on "noncampus" and

"public" property, so long as (i) the property on which a crime

occurs is owned or controlled by, or adjacent to a facility owned

or controlled by, the institution, and (ii) that property or

facility is used by the institution in direct support of, or in a

way related to, its educational mission. Higher Education

Amendments of 1998, Pub. L. No. 105-244, 112 Stat. 1581, 1744

(codified as amended at 20 U.S.C. § 1092(f)(6)(A)).

From the start, Congress made manifest a desire that

educational institutions retain the ability to tailor security

procedures to particularized needs. See, e.g., H.R. Rep. No. 101-

518, at 9, reprinted in 1990 U.S.C.C.A.N. at 3371 (stating that the

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legislation was designed "to encourage campuses to develop campus

security policies and procedures which are appropriate to the

unique conditions of [each particular] campus"). The 1998

amendments did not retreat from this aspiration. See, e.g., 20

U.S.C. § 1092(f)(2) (declining "to authorize the Secretary [of

Education] to require particular policies, procedures, or practices

by institutions of higher education with respect to campus crimes

or campus security"). As we read the Act, it vests substantial

discretion in each campus security office to phrase and disseminate

reports in those ways that the particular institution deems best

suited to apprise its constituent campus communities of incipient

criminal activity.

In this case, the district court determined that the

locus of the incident fell under the Act's definition of "public

property." Havlik, 490 F. Supp. 2d at 257; see 20 U.S.C. §

1092(f)(6)(A)(iii) (defining "public property" as "all property

that is within the same reasonably contiguous geographic area of

the institution, such as a sidewalk . . . and is adjacent to a

facility owned or controlled by the institution" so long as "the

facility is used by the institution in direct support of, or in a

manner related to the institution's educational purposes"). On

appeal, the plaintiff remonstrates that the University was not

careful enough in gauging the location of the incident. Building

on this foundation, he engages in an exegetic discourse about the

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meaning of terms such as "campus," "noncampus," and "public

property," culminating in an assertion that the locus of the

incident falls outside the compass of those definitions (and, thus,

outside the compass of the Act).

We do not doubt the importance of the meaning that

Congress assigned to each of these terms. Nevertheless, we reject

the notion that the coverage of the Act turns exclusively on the

use of a surveyor's theodolite. Reasonableness is the beacon by

which institutions must steer, and reasonableness is not totally

constrained by mathematically precise metes and bounds. So, too,

common sense must inform a court's assessment of the reasonableness

of a university's belief that the reporting of a crime is

compulsory under the Act. And in making that assessment, the need

to assure safety and security for campus communities counsels that

doubts should be resolved in favor of notification.

In the case at hand, Bennett — the official who authored

the final version of this crime alert — testified without

contradiction that when advising school hierarchs whether a duty to

publish a timely notification exists, she first determines whether

the crime is of a type covered by the Act; she then determines

whether it has been reported to campus security or local law

enforcement; and she then determines whether the underlying conduct

signals a threat to the University community (a determination that

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takes into account where the incident happened). She believed that

all of these factors supported notification in this instance.

Nothing in the record undermines the reasonableness of

Bennett's professed belief that the University had a responsibility

under the Act to issue a timely notification about the incident.

There is absolutely no evidence that the University thought that

the incident had occurred outside the geographic purview of the

Act. Moreover, while Bennett stated that she was not concerned

with the specific street address at which the brouhaha erupted, she

did consider the location of the crime to the extent of satisfying

herself that it had taken place "in the vicinity of [the] campus

and [in] an area that [the University's] students were known to

frequent."

No more was exigible: school officials must act

expeditiously to satisfy their responsibilities under the Clery

Act, and a reasonable belief — even if later shown to be incorrect

in some particular — is all that is required for the qualified

privilege to attach.

That ends this phase of our inquiry. Because Bennett's

belief that the University had a duty to report the crime was

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reasonable,3 that belief sufficed to place publication of the crime

within the ambit of the qualified privilege conferred by the Act.

2. The University's Primary Motive. The plaintiff next

argues that even if the Act applies, the district court erred in

upholding the qualified privilege because he adduced sufficient

evidence to make out a genuine issue of material fact as to whether

that privilege was vitiated. Once again, we begin with a brief

overview of the background legal rules.

A qualified privilege is not a jujube that, like some

magical charm, wards off liability for defamation, come what may.

In Rhode Island, as elsewhere, such a privilege may be abrogated if

the plaintiff proves that the privilege-holder published the

offending statement out of spite, ill will, or malice. See

Kevorkian, 913 A.2d at 1048; Mills, 837 A.2d at 720. To carry this

burden, the plaintiff must show that malice — we use that word as

a generic shorthand that includes ill will and spite — comprised

3
In all events, Bennett's belief was quite probably correct.
The plaintiff argues that the sidewalk where the fracas occurred
did not constitute "public property" within the purview of the Act
because it is adjacent to a parking lot owned by a third party.
This argument overlooks, however, that the University presented
uncontradicted evidence showing that this parking lot was owned by
one of its subsidiary corporations, that it (the University)
maintained the parking lot, and that the lot was used, at least in
part, for employee and student parking and similar activities
related to the University's educational mission. Because the only
plausible conclusion that can be drawn from this undisputed
evidence is that the University controlled the parking lot, the
sidewalk adjacent to it was public property within the purview of
the Act. See 20 U.S.C. § 1092(f)(6)(A)(iii).

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the defendant's primary motive in publishing the statement. Mills,

837 A.2d at 720. To accomplish this goal, the plaintiff cannot

rest on naked assertions or bare conclusions but, rather, must

proffer facts sufficient to support a finding of malice as a

primary motive. See Kevorkian, 913 A.2d at 1049 (explaining that

"to overcome a motion for summary judgment based on a qualified

privilege, a plaintiff must point to some specific facts in the

record that raise a genuine issue" as to the existence of malice).

Here, the plaintiff argues that summary judgment was

improvident because the University's use of his name and fraternity

affiliation in the crime alert and Martel's negative statements

about him and his fraternity were sufficient to support an

inference of malice. He adds that the statement in the crime alert

about his possession of a knife buttresses this inference, given

the Board's finding, hours before the crime alert issued, that he

was "not responsible" on the knife-wielding charge. We do not

agree.

At the outset, it is important to note that every

university is different, and each one has its own culture. Mindful

of this diversity, the Act stipulates no hard-and-fast rules but,

instead, gives institutions of higher learning substantial leeway

to decide how notices should be phrased and disseminated so as most

effectively to prevent future incidents. See, e.g., 20 U.S.C. §

1092(f)(3) (directing colleges and universities to make timely

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reports "in a manner . . . that will aid in the prevention of

similar occurrences" (emphasis supplied)); see also H.R. Rep. No.

101-518, at 8, reprinted in 1990 U.S.C.C.A.N. at 3371 (explaining

that reports should be constructed to permit students "to better

protect themselves"). Given this mise-en-scène, the plaintiff has

proffered nothing that might suffice to show malice in the

composition of the crime alert.

The record shows that Bennett, who made the decision to

include the plaintiff's name and fraternity affiliation in the text

of the crime alert, believed that the information would be useful

to the campus community and would assist in preventing future

incidents. Bennett testified that she thought the plaintiff

represented a threat to others on campus both because his

fraternity had been involved in past misbehavior — she knew of at

least one previously reported incident — and because the campus

safety and security office had been told that witnesses feared

retaliation at the hands of ZBT. On this record, Bennett's belief,

whether or not unarguably correct, was clearly reasonable and,

thus, inspires no inference of malice.

In pursuing this line of attack, the plaintiff makes much

of Martel's deposition testimony that, during his two-year tenure,

there were approximately five other crime alerts that involved

students allegedly responsible for crimes that did not name the

alleged perpetrator. In her deposition, however, Bennett explained

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that in all but one of those cases the student's identity was not

known until after publication of the crime alert. On at least one

other occasion, a student perpetrator's name was mentioned in a

crime alert. She further explained that, in this instance, she

chose to use the plaintiff's name because "we knew his identity."

That explanation seems sufficient, especially in view of

three related facts. First, the crime alert as a whole appears

consistent with the general tenor of the incident report and the

police report. Second, there is no hint that Bennett even knew the

plaintiff, let alone that she harbored any animus toward him. Last

— but surely not least — the crime alert appears reasonably

calculated to help prevent similar incidents. A finding of malice

would, therefore, be totally at odds with the record.

To be sure, Martel — who accused the plaintiff of

prevarication and called his fraternity brothers "thugs" — arguably

may have harbored some hostility toward the plaintiff. The

plaintiff insists that this ill will should be imputed to the

University. But Martel's statements were made after the

publication of the crime alert, and there is simply no evidence

that Martel played any part in the preparation of that document.

The motives of an employee who has no connection to a publication

decision cannot be imputed to the institution for which he works

and, thus, cannot defenestrate the institution's qualified

privilege. See Boston Mut. Life Ins. Co. v. Varone, 303 F.2d 155,

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159 (1st Cir. 1962) (stating that ill will of a nondecisionmaker is

"immaterial" to privilege).

This leaves the fact that the Board found the plaintiff

not responsible for possessing a knife a few hours before the

University posted the crime alert. As to this item, there is a gap

in the plaintiff's proof: the absence of any evidence that the

University officials responsible for the publication were aware of

the Board's finding at the time of publication. Bennett testified

that she had no such knowledge until after publication had

occurred, and there is no indication in the record that the campus

safety and security office was any better informed. Finally, there

is nothing to show that the University willfully blinded itself to

the Board's finding. We conclude, therefore, that the inclusion of

the "knife" language in the crime alert cannot support an inference

of malice.4

3. Punitive Damages. The plaintiff's third assignment

of error — that the district court blundered in squelching his

quest for punitive damages — need not detain us. In this case,

punitive damages are not a separate cause of action but, rather, an

element of damages in, and thus wholly derivative of, the

4
If more were needed — and we doubt that it is — the statement
contained in the crime alert was literally true: that a witness had
reported seeing a knife in the plaintiff's hand. It is hard to see
how simply repeating what is stated in a police report about a
reportable crime, as was done here, could fall outside the
privilege created by the Act.

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plaintiff's defamation claim. Cf. Chrabaszcz v. Johnston Sch.

Comm., 474 F. Supp. 2d 298, 311 (D.R.I. 2007) (recognizing need for

proof of causal link between defamatory statements and damages

under Rhode Island law). Because the district court appropriately

terminated that claim at the summary judgment stage, see supra

Parts II (A)(1)-(2), the plaintiff has no conceivable basis for an

award of punitive damages.

B. The Contract.

A student's relationship to his university is based in

contract. Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir. 1998).

The plaintiff's final claim of error in this case is that the lower

court erred in granting summary judgment in favor of the University

on his breach of contract claim.

The relevant terms of the contractual relationship

between a student and a university typically include language found

in the university's student handbook. See, e.g., id. We interpret

such contractual terms in accordance with the parties' reasonable

expectations, giving those terms the meaning that the university

reasonably should expect the student to take from them. See id.

Thus, if the university explicitly promises an appeal process in

disciplinary matters, that process must be carried out in line with

the student's reasonable expectations. See Cloud v. Trs. of Boston

Univ., 720 F.2d 721, 724-25 (1st Cir. 1983).

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 In this instance, the contract between the plaintiff and

the University is governed by Rhode Island law. See Mangla, 135

F.3d at 83. That body of jurisprudence requires, among other

things, that parties to a contract act pursuant to an implied duty

of good faith and fair dealing. See id. at 84; Dovenmuehle Mortg.,

Inc. v. Antonelli, 790 A.2d 1113, 1115 (R.I. 2002). Good faith and

fair dealing cannot be separated from context, however — and in

evaluating those covenants in the educational milieu, courts must

accord a school some measure of deference in matters of discipline.

See Schaer v. Brandeis Univ., 735 N.E.2d 373, 381 (Mass. 2000)

(stating that universities must be given broad discretion in

disciplining students); see also Gorman v. St. Raphael Acad., 853

A.2d 28, 34 (R.I. 2004) (affording broad discretion to private

schools to interpret contracts with students in ways that further

the school's legitimate "educational and doctrinal

responsibilities"); cf. Wood v. Strickland, 420 U.S. 308, 326

(1975) ("It is not the role of the federal courts to set aside

decisions of [public] school administrators which the court may

view as lacking a basis in wisdom or compassion.").

The University prepares and distributes to those who

enroll a student handbook. With respect to matters of student

conduct, the handbook designates the rudimentary contractual terms

between the parties vis-à-vis the appeal process. In pertinent

part, it gives a student a right of appeal from the Board's

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decision anent charges of violating the Code. It specifies the

bases on which a student may appeal, including the imposition of an

inappropriate sanction.

Once the student submits a letter stating the basis for

his appeal, the appeal officer must engage in a "further review of

the [Board's] decision." The handbook does not limn the procedures

to be followed by the appeal officer, nor does it pair particular

types of code violations with particular sanctions. It is likewise

silent as to the kinds of materials that an appeal officer may

review.

To the extent the handbook's terms are explicit, it is

plain that the University complied with them. The plaintiff

asseverates, however, that the University breached its implied duty

of good faith and fair dealing because the appeal officer (Sarawgi)

was improperly influenced by the phraseology of the crime alert and

her conversation with Martel.

Given the sketchy nature of the appeal provision in the

handbook and the straightforward nature of the materials that were

made available to Sarawgi, see supra at 5, it seems entirely

reasonable for her to have considered that information.5 Cf.

Schaer, 735 N.E.2d at 380 (holding that plaintiff had no reasonable

5
The record is opaque as to whether Sarawgi was given the
crime alert. This is of no consequence. If she was, considering
it would have been acceptable; if she was not, there is no ground
for any complaint.

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expectation for judicial proceedings where "nothing in the contract

suggests that disciplinary proceedings will be conducted as though

they were judicial proceedings"). Her consultation with Martel

also seems within the realm of reasonableness. Martel, after all,

was the University's vice-president for student affairs.

In any event, the plaintiff's assertions of improper

influence fail in light of the uncontested facts. The plaintiff

presented no evidence that Martel repeated his negative sentiments

to Sarawgi. See Bennett, ___ F.3d at ___ [2007 WL 3227393, at *7]

("[C]onjecture cannot take the place of proof in the summary

judgment calculus.").

To say more on this point would be to paint the lily. In

the absence of any probative evidence that the appeal officer

ignored promised protections, improperly consulted certain proof,

acted arbitrarily in carrying out the procedures limned in the

handbook, or made her decision in bad faith, there has been no

showing that the plaintiff's reasonable expectations were thwarted.

It follows that the University was entitled to summary judgment on

the breach of contract claim.

III. CONCLUSION

We need go no further. This matter was ably handled in

the district court and for the reasons elucidated above, we uphold

that court's summary judgment order.

Affirmed.

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