Walker v. Harvard University Fellows and President et al

Filing 45

Judge Rya W. Zobel: Memorandum of Decision entered granting 32 Motion for Summary Judgment. Judgment may be entered for the defendants. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 12-10811-RWZ

MEGON WALKER
v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE, et al.

MEMORANDUM OF DECISION
December 30, 2014

ZOBEL, D.J.
Plaintiff Megon Walker sued defendants President and Fellows of Harvard
College, Ellen Cosgrove, the Dean of Students at Harvard Law School, and Lloyd
Weinreb, Professor of Law at Harvard Law School and Chair of its Administrative
Board, for breach of contract and defamation, seeking damages and injunctive relief.
Defendants have moved for summary judgment.
I. Facts
The plaintiff attended Harvard Law School (“HLS”) from 2006 to 2009. She was
a member of the Journal of Law and Technology (“JOLT”) all three years. As a first
year student, she was a “sub-citer,” verifying the accuracy of citations and quotations of
draft articles JOLT selected for publication. In plaintiff’s third year of law school, JOLT
accepted her application to write a case comment on In Re Bilski, 545 F.3d 943 (Fed.

Cir. 2008) (en banc),1 for publication in the journal that spring. Plaintiff was expected to
present a completed draft by February 1, 2009, and she understood that the draft would
have to include citations to her sources.
Ms. Walker delivered a first draft of her comment to JOLT on February 2, 2009,
a second draft on February 8, 2009, and a third draft on February 16, 2009.
Plaintiff’s fourth and final draft was due February 22, 2009. She turned it in late, on
February 24, 2009.
After sub-citing of plaintiff’s draft comment was completed, JOLT staff began
“tech edits,” in which the focus is on spelling, grammar, punctuation and other errors.
During this process, concerns arose that plaintiff’s argument was derivative of one of
the dissents in the Bilski case and that it was similar to other published pieces. As a
result of these concerns, the co-Editors-in-Chief of JOLT, Bradley Hamburger and
Lindsay Kitzinger, decided to halt further production until their concerns could be
addressed.
Mr. Hamburger reviewed plaintiff’s entire draft for plagiarism, using Google to
run internet searches on full sentences from her final draft. Hamburger found that
significant portions of the article had been copied from other publications concerning
the Bilski case, and Walker had either not attributed those portions or had done so
improperly. He stopped this process after documenting twenty-three instances of

1

In re Bilski was an en banc decision of the United States Court of Appeals for the Federal Circuit
on the patenting of business methods. The court by a vote of 9-3 affirmed the rejection of the patent
claims involving a method of hedging risks in commodities trading. The Supreme Court subsequently
affirmed the Federal Circuit.

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apparent plagiarism.
After showing this evidence to Ms. Kitzinger, Mr. Hamburger and Ms. Kitzinger
brought the matter to the attention of Dean of Students Ellen Cosgrove. Dean
Cosgrove in turn notified the HLS Administrative Board (the “Board”), which is
responsible for academic regulations and standards of conduct at HLS. The Board
reviewed the record and voted to go forward on charges of plagiarism. After notifying
plaintiff and consulting with her counsel, the Board scheduled a hearing on May 7,
2009.
As Dean of Students, Dean Cosgrove served as the Secretary to the Board. In
that capacity, prior to the hearing she provided to each Board member copies of the 29page statement and 313 pages of exhibits plaintiff’s attorneys submitted. The Dean
also worked with plaintiff’s attorneys to help them collect evidence, including internal
JOLT emails. Dean Cosgrove was not a voting member of the Board.
Though plaintiff attempted to resolve the situation without a hearing, she was
informed that plagiarism is too serious a charge to resolve informally. Plaintiff also
requested to change her exam schedule to allow more time to prepare for the hearing,
but was denied.
At the conclusion of the hearing, the Board issued Walker a formal reprimand,
rather than the normal sanction of suspension, thus allowing Walker to graduate on
time with her class. The letter of reprimand is kept private in Ms. Walker’s file and not
published, though it’s existence is noted on her transcript. Her transcript is not made
available without her consent.
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II. Standard of Review
Summary judgment is appropriate when the moving party shows that there is no
genuine dispute of material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). In considering whether or not a genuine issue of material
fact exists, the court “must view the evidence in the light most favorable to the opposing
party.” Tolan v. Cotton,134 S. Ct. 1861, 1866 (2014).
Plaintiff contends that Harvard’s Handbook of Academic Policies and its Rules
Relating to Law School Studies (the “Student Handbook”) together constitute a binding
contract between the university and its students. Compl. ¶ 5. “[A]n entering student
forms a contractual relationship with her university and . . . a disciplinary code can be
part of that contract.” Kiani v. Trustees of Boston Univ., CIVA 04CV11838PBS, 2005
WL 6489754 (D. Mass. 2005). 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.” Havlik v. Johnson & Wales Univ., 509 F. 3d 25, 34 (1st Cir. 2007); see Schaer
v. Brandeis Univ., 432 Mass. 474, 478 (2000) (citing Cloud v. Trustees of Boston Univ.,
720 F.2d 721, 724 (1st Cir. 1983)). Contract interpretation, including whether any
ambiguities exist in the disputed contractual terms, is generally a question of law for the
court. Driscoll v. Bd. of Trs. of Milton Acad., 70 Mass. App.Ct. 285, 293, 873 N.E.2d
1177 (2007).
III. Meaning of “Submit” - Count I
Count I of the complaint alleges that Harvard breached its contract with Walker
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by finding she had committed plagiarism because her February 24 draft was “not a
‘submitted’ work as defined by the . . . Student Handbook.” Compl. ¶ 45. The parties
do not dispute that work for JOLT fell within the Student Handbook. Rather, plaintiff
argues that “[t]he plain meaning of the word ‘submitted’ is “to yield or surrender to the
will of another.” Id. But that is far from the plain meaning of “submitted” in this context.
The relevant Handbook provision states that
[a]ll work submitted by a student for any academic or non-academic exercise is
expected to be the student’s own work. In the preperation of their work, students
should always take great care to distinguish their own ideas and knowledge from
information derived from sources . . . Students who submit work that is not their
own without clear attribution of all sources, even if inadvertently, will be subject
to disciplinary action.
Docket # 34, ¶ 8.
Far more reasonable than the meaning proposed by plaintiff is the first definition
in Merriam-Webster’s dictionary, “to give [a document, proposal, piece of writing, etc.]
to someone so that it can be considered or approved.” Submit, MERRIAM-W EBSTER
DICTIONARY ONLINE, (2014), available at www.merriam-webster.com/dictionary/submit.
Moreover, the definition provided by plaintiff is properly that of the verb when it takes
no object, that is, in its intransitive form. In the phrase “all work submitted” from the
Handbook, “submit” takes the object “work,” clearly in its transitive form and matching
the “to give to someone for consideration or approval” definition. See Submit, Oxford
Dictionaries, available at
http://www.oxforddictionaries.com/us/definition/american_english/submit/.
There is simply no situation where HLS could have reasonably expected a third-

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year member of a law journal to believe that the handing over a draft article to that
journal for editing prior to publication was not “submitting” the work within the meaning
of the Handbook. Plaintiff gave a piece of writing, a draft of her note, to an editor of
JOLT so that it could be approved for publication. Plaintiff suggests that because she
viewed the piece she turned in as a work in progress, it was not a submission within the
meaning of the Handbook. See Plaintiff Megon Walker’s Opposition to Defendants’
Motion for Summary Judgment, Docket # 41, pg. 18-19. Nowhere in any reasonable
meaning of the term “submit” is any concept of finality, as plaintiff attempts to insert.
Ms. Walker’s subjective understanding of the term here is irrelevant; because the
meaning she ascribes to the term is unreasonable, the university could not have
reasonably expected a student to interpret the term in that way.
Under the proper meaning of the term “submit,” there is no question that turning
in a draft of an article for editing by JOLT would qualify as a “submission,” whether or
not the draft was the author’s “final” draft. Defendants are therefore entitled to
summary judgment on Count I.
IV. Board Proceedings Contract Claim - Count II
Plaintiff alleges that Harvard breached its contract with her because it failed to
comply with the Handbook provisions for Board proceedings in four ways: (1) that the
hearing “would be non-adversarial”; (2) that “it would be concluded in the manner most
favorable to [her] in light of the circumstances”; (3) that “[she] would have the right to
cross-examine any witness at the hearing who had offered evidence against [her]”; and
(4) that “[she] would [not] be sanctioned unless the charged infraction [was] established
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by clear and convincing evidence.” Compl. ¶ 48. I will address each of these claims in
turn.
“Where, as here, the university specifically provides for a disciplinary hearing . .
. we review the procedures followed to ensure that they fall within the range of
reasonable expectations of one reading the relevant rules.” Cloud, 720 F.2d at 724-25.
As above, it is not what plaintiff’s expectations of the proceeding were, but whether the
proceedings fell “within the range of reasonable expectations of one reading the
relevant rules,” an objective reasonableness standard. Id. The court must “also
examine the hearing to ensure that it was conducted with basic fairness.” Id.
A. Adversary Nature of Proceeding
Ms. Walker’s first claim on this count is that the Handbook guarantees a nonadversarial proceeding and that the proceedings here were adversarial. Compl. ¶ 50.
The relevant Handbook provision states that the “Board does not consider itself to be
an adversarial or prosecutorial body,” Docket # 34, ¶ 81. Even if HLS could reasonably
expect a student to interpret that passage as guaranteeing a non-adversarial
proceeding, the transcript and undisputed facts reflect nothing to indicate the
proceeding was conducted in an adversarial manner. Plaintiff recites a litany of
conduct she found objectionable2 during the proceedings, and seeks to weave those

2

That Kitzinger and Hamburger were allowed to confer during the hearing prior to answering
questions posed to them jointly; that on one occasion she was required to answer a question regarding
her beliefs on her own rather than through counsel; Dean Cosgrove’s “fail[ure] to act as an impartial
liason” between the Board and herself and her “consistent[] hostil[ity]” to plaintiff and her counsel;
exemplified by her rejection of plaintiff’s attempts to “plead” without a hearing; her failure to conduct
discovery on plaintiff’s behalf until plaintiff appealed to Professor Weinreb; and her failure to grant
plaintiff an extension on her exams and papers to prepare for the hearing.

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isolated events into an impression of an inquisitorial proceeding. The fact is this
impression is simply not bourne out by the transcript.
None of the instances Ms. Walker cites, even taken together in the light most
favorable to her, can transmute the proceedings into a prosecution. Several of her
claims in this regard simply had no evidence in the record or cannot logically lead to
the inference plaintiff seeks to draw. There is no evidence to support Dean Cosgrove’s
“failure to act as an impartial liaison” or any “consistent[] hostil[ity].” There is no
evidence to support plaintiff’s contention that Dean Cosgrove “coached” Hamburger
and Kitzinger before the hearing. Docket # 34, ¶¶ 101-106.
There is no provision in the Handbook allowing, let alone mandating, an
“informal resolution” without a hearing, Docket # 34, ¶ 95, and plaintiff does not dispute
that “plagiarism is too serious to resolve without a hearing.” Docket #40, ¶ 96.
Therefore, failing to allow an informal resolution cannot be viewed as a breach of the
Handbook. Likewise, the Dean’s refusal to grant an extension for taking exams and
handing in papers to allow plaintiff to prepare for the proceedings was not contrary to
the Handbook. Docket # 34, ¶ 99. And requiring plaintiff to answer a single question,
concerning her own belief, cannot on its own or in any context give rise to any
inference of an adversarial atmosphere.
Dean Cosgrove’s initial failure to aid plaintiff in discovery might have given some
support to plaintiff’s contentions—if the Dean had not eventually yielded and helped.
Docket # 34, ¶¶ 89, 90.
This leaves plaintiff’s objection to allowing Hamburger and Kitzinger to consult
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one another during their joint testimony. Even ignoring the informal tone of the
proceedings and the limited extent to which the two conferred, Docket # 34, ¶ 136, no
rational finder of fact could find that this ruling amounted to a breach of any promise of
non-adversary proceedings in the Handbook.
Because there is no genuine dispute that the proceedings were non-adversarial,
summary judgment for the defendants as to the claim of improper adversarial
proceedings is appropriate.
B. Concluding the Proceeding as Favorably to Plaintiff as Possible
Plaintiff claims that defendant Weinreb violated the Handbook’s terms because
“he deemed ‘submitted’ [her] uncompleted, virus-impaired draft” and “engaged in
additional unfair conduct.” Compl. ¶¶ 48, 51. She alleges this is a violation because of
the Handbook’s provision stating that the Board seeks to resolve hearings “as favorably
to students as possible consistent with the maintenance of the high academic and
ethical standards of Harvard Law School.” Docket # 34, ¶ 81. This aspiration is
reasonably susceptible only to the interpretation that students will usually receive the
most favorable outcome possible within the bounds of the rules. As discussed in Part
III, supra, plaintiff had plagiarized within the meaning of the Handbook. The Board
therefore had no obligation under the Handbook to find plaintiff not in violation.
Defendants did not breach the terms of the Handbook by issuing a lessor sanction, or
reprimand, rather than the standard penalty of suspension, at their own discretion. See
Schaer, 432 Mass. 474, 482 (“A college must have broad discretion in determining
appropriate sanctions for violations of its policies.”)
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C. Right to Cross-Examination
Walker claims that she was denied the opportunity to cross-examine witnesses
in violation of the terms of the Handbook. While the Handbook guarantees the right to
“examine all witnesses,” there is no further description of what this would entail. The
transcript reflects that the instances where cross-examination was curtailed were on the
grounds of irrelevance to the proceedings. Given that similar limits exist in most courts,
no reasonable student could have expected a completely unlimited right of crossexamination. “It is not the business of lawyers and judges to tell universities what
statements they may consider and what statements they must reject.” Schaer, 432
Mass. at 481.
D. Quantum of Evidence
The Handbook guarantees that “[d]isciplinary sanctions shall not be imposed
unless conduct warranting sanction is established by clear and convincing evidence.”
Docket # 34, ¶ 81. Walker alleges that the Board’s finding of a violation was not
supported by clear and convincing evidence.
Part of this claim is premised on the use of impermissible evidence. “Although
[some] statements would be excluded from a courtroom under the rules of evidence, a
university is not required to abide by the same rules.” Schaer, 432 Mass. at 481. “It is
not the business of lawyers and judges to tell universities what statements they may
consider and what statements they must reject.” Id.
There is no genuine dispute Ms. Walker turned in work that was not properly
attributed. Given that this court will not second-guess the Board’s evidentiary rules and
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that Ms. Walker’s conduct fell within the Handbook’s provision, see supra Part III, there
is no genuine dispute of fact that the Board had sufficient evidence to find a violation.
E. Basic Fairness
Plaintiff claims that the Board’s proceedings were “unfair.” While a reviewing
court must examine disciplinary proceedings to ensure they comport with notions of
“basic fairness,” Cloud, 720 F.2d at 724-25, “[a] university is not required to adhere to
the standards of due process guaranteed to criminal defendants or to abide by rules of
evidence adopted by courts.” Schaer, 432 Mass. at 482. It is undisputed that Ms.
Walker had notice of and understood the charges she faced and had a hearing before
the Board. She had the assistance of legal counsel, both in preparation for the hearing
and during it, and her counsel examined witnesses and argued on her behalf. She was
entitled to call witnesses and submitted whatever documents she desired. The hearing
was transcribed and the transcript made available to her. Finally, Ms. Walker was
herself a sophisticated party, having nearly completed her JD at Harvard Law School.
All of this comports with principles of basic fairness. See, e.g., Kiani, 2005 WL 6489754
at *8.
V. Defamation Claim - Count IV
Count IV of the complaint alleges that the defendants defamed Ms. Walker
because her HLS transcript states that she “was issued a letter of Reprimand by the
Administrative Board,” which states that she committed plagiarism, and that the
defendants “knowingly and intentionally communicat[ed] and publish[ed] [these] false
statements.” Compl. ¶¶ 64-65.
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To establish a defamation claim under Massachusetts law, proof of four
elements is required: (1) that “[t]he defendant made a statement, concerning the
plaintiff, to a third party”; (2) that the statement was defamatory such that it “could
damage the plaintiff's reputation in the community”; (3) that “[t]he defendant was at fault
in making the statement”; and (4) that “[t]he statement either caused the plaintiff
economic loss ... or is actionable without proof of economic loss.” Shay v. Walters, 702
F.3d 76, 81 (1st Cir. 2012) (quoting Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-30
(2003)).
As a matter of law defendants were not at fault, failing the third Shay factor,
because truth of the matter asserted is a defense to a claim for defamation. Mass.
Gen. Laws Ann. ch. 231, § 92 (West). Because the plaintiff committed plagiarism
within the meaning of Harvard’s Student Handbook, see supra Part III, the publications
of fact she alleges libelous are true, and she cannot recover.
Even though the written statements at issue are true, plaintiff may still recover
for them if she can prove defendants acted with “actual malice.” Mass. Gen. Laws Ann.
ch. 231, § 92 (West). Actual malice, in this context, means common law malice, ill will,
or malevolent intent. Piccone v. Bartels, CIV.A. 11-10143-MLW, --- F.Supp.2d —, 2014
WL 4180804 (D. Mass. Aug. 25, 2014). The Harvard defendants believed that the
findings of the letter of reprimand were true and had come to this conclusion through a
thorough and fair proceeding, see supra Part IV. Ms. Walker does not plead ill will or
malevolent intent on the part of the defendants and can make no such showing on the
record before the court. Defendants are therefore entitled to summary judgment on
Count IV.

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VI. Claim for Injunctive Relief - Count VI
Because Walker’s contract and defamation claims fail, see supra Parts III-VI,
she is not entitled to injunctive relief.
VII. Conclusion
Defendants’ motion for summary judgment is ALLOWED.
Judgment may be entered for the defendants.
/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

December 30, 2014
DATE

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