Haidak v. University of Massachusetts-Amherst et al
Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, Defendants Motion for Summary Judgment (Dkt. No. 121 ) is hereby ALLOWED and Plaintiffs cross-motion (Dkt. No. 118 ) is hereby DENIED. This case may now be closed. It is So Ordered. (Lindsay, Maurice)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
UNIVERSITY OF MASSACHUSETTS
AT AMHERST, ENKU GELAYE,
DAVID C. VAILLANCOURT,
ALLISON BERGER, and
) C.A. No. 14-cv-30049-MAP
MEMORANDUM AND ORDER REGARDING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(Dkt. Nos. 118 & 121)
March 9, 2018
Plaintiff has been expelled from the University of
Massachusetts following an incident in which he was found to
have assaulted a fellow student.
On the heels of this, he
has filed a two-count complaint against five Defendants: the
University of Massachusetts at Amherst; Enku Gelaye, Dean of
Students and acting Vice Chancellor; David C. Vaillancourt,
Senior Associate Dean of Students; Allison Berger, Associate
Dean of Students; and Patricia Cardoso, Associate Dean of
The first count asserts due process and equal
protection claims against all Defendants pursuant to 42
U.S.C. § 1983; the second count charges Defendant University
with a violation of Title IX, 20 U.S.C. § 1681.
parties have now moved for summary judgment.
reasons set forth below, the court will allow Defendants’
motion and deny Plaintiff’s.
Cases in which a student, usually male, has received
discipline for allegedly assaultive or harassing behavior
against another, usually female, student can raise difficult
questions about the proper balance between the due process
rights of the accused and the need to protect the alleged
See, e.g., Doe v. Brandeis Univ., 177 F. Supp. 3d
561 (D. Mass.
2016) (Saylor, J.).
This is not such a case.
Prior to the incident that
led to his expulsion, Plaintiff had already been cautioned
and disciplined twice for drunken, assaultive behavior; in
one instance this prior conduct had led to his arrest by the
While the complaint underlying this lawsuit was
pending against him in the University disciplinary process,
Plaintiff was warned three times, orally and in writing, to
refrain from contact with the female complainant.
Nevertheless, with full knowledge of this directive,
Plaintiff ignored it to an astounding degree, texting the
victim 1700 times and telephoning her over 300 times over a
In addition to this, Plaintiff met with
the complainant during the prohibition period for multiple
sexual trysts, called her for help when he was so
intoxicated that he eventually needed temporary
hospitalization, and made an appearance at a bar where the
complainant worked that turned so menacing that security
personnel made him leave.
Plaintiff’s justification for his
almost mind-boggling contumacy, offered at his deposition,
was that these contacts were “consensual” on the part of the
complainant and that “the school could not supercede her
right as a consenting adult to have conversations with
someone she wanted to.”
(Haidak Dep. 133:4-8, Dkt. No. 123,
This attempted rationalization will not wash.
contact orders could not have been clearer; they
countenanced no exceptions for what Plaintiff viewed as
Despite these warnings, and with a history of
serious assaultive misconduct, Plaintiff blew through the
University’s attempts to exercise even minimal control over
The sad truth is that, if Plaintiff had simply
respected the no-contact orders, covering only a few months,
he would almost certainly have graduated years ago.
Plaintiff has been well represented.
Olympian efforts, however, the starkly egregious facts
cannot be explained away.
A largely student panel weighed
the evidence and sensibly concluded that Plaintiff was
primarily responsible for the ugly underlying incident of
assault, as well as for violating the University directives.
The University administration, confronting a student with
two previous strikes and an aggressive refusal to respect
even modest limitations, concluded, equally sensibly, that
the proper sanction was expulsion.
mechanism, though not without flaws, reasonably complied
with the requirements of due process and equal protection.
Accordingly, as noted, the court will allow Defendants’
motion for summary judgment and deny Plaintiff’s cross
Ordinarily, when addressing a motion for summary
judgment, the court must view the facts in favor of the
nonmoving party, drawing all reasonable inferences in his
RTR Techs., Inc. v. Helming, 707 F.3d 84, 87 (1st
When facing cross motions for summary judgment,
the court typically “will consider each motion separately,
drawing inferences against each in turn.”
LLC v. Town of Mendon, 769 F.3d 61, 69 (1st Cir. 2014)
(internal quotations omitted).
In this instance, however,
since Defendants’ motion for summary judgment will be
allowed, the facts are viewed in the light most favorable to
Significant points of dispute will be noted in
The University’s Policies
Defendant University provided each enrolled student
with a copy of the Code of Student Conduct, and students
were subject to it so long as they were enrolled in an
academic course or program.
The CSC relevant here covered
student conduct that took place in the academic year 20122013, including misconduct that occurred off-campus “when
the behavior distinctly and directly affect[ed] the
(Code of Student Conduct I.D, Dkt.
No. 119, Attach. 1 (hereafter “CSC”).)
The CSC enumerated what actions would be considered
violations of the rules for standards of conduct and
Four are relevant here: physical assault on
another;1 harassment;2 failure to comply;3 and endangering
Any student who violated these regulations could
Physical assault was defined in the 2012-2013 CSC as
a “physical attack upon or physical interference with
another person which prevents the person from conducting his
or her customary or usual affairs, puts the person in fear
for his or her physical safety, or causes the person to
suffer actual physical injury including hitting, kicking,
spitting, or biting.” (CSC II.B.1.)
The 2013-2014 CSC amended the definition of physical
assault to “include physical attack upon or physical
interference with a person that causes that person to suffer
actual physical injury.” (Dkt. No. 133, Attach. 36 at 10.)
Harassment was defined as “repeated use by one or
more students of a written, verbal, or electronic expression
or a physical act or gesture, or any combination thereof,
directed at a person that places that person to be in fear
for his or her physical safety.” (CSC II.B.2.)
Failure to comply included a refusal to follow any
direction by a University official “acting in performance of
[his or her] duties.” (CSC II.B.13.)
Endangering behavior included actions that
endangered the safety of persons (self or others) or
property. (CSC II.B.17.)
be subject to disciplinary action by the University.
student, faculty or staff member -- or the University itself
-- could file a charge against a student for violation of
Once a charge had been filed against a student, that
student was to receive a Notice of Charge, outlining the
violations he or she was accused of committing.
had 48 hours to request a Disciplinary Conference to discuss
the alleged violations.
The CSC contained procedures for
the handling of technical infractions and “minor
violations,” as well as for repeated violations and more
The process for handling repeated violations and
serious infractions could unfold in different ways,
depending on the response of the accused student.
student did not respond to the Notice of Charge, the case
would go before the Hearing Board, in a process that is
If the student did respond to the charge
It is the University’s position that it only
instigated charges against a student when there was a
complaining witness or a police report. (Defs.’ Statement
of Material Facts ¶ 25, Dkt. No. 123.)
and accepted responsibility for the charge at the initial
Discipline Conference, and agreed to specific sanctions for
that behavior, then an Administrative Agreement would be
signed by the student and the staff member.
Administrative Agreement indicated that the student accepted
the sanction and waived his or her right to a hearing or to
This avenue meant that the Hearing Board was
Notably, if the Notice of Charge for violation of the
CSC involved a more serious class of violation, such as
allegations of violence or a severe act of harassment, and
the University official had a reason to believe, using his
or her professional judgment, that the accused student was a
threat to himself or herself, to others, or to property, the
official could impose an interim restriction.
restriction could be a suspension, a restriction of access
to certain campus facilities, or a prohibition from
contacting certain individuals or groups within the
Interim restrictions could be imposed without
prior notice and became effective immediately.6
A deliberate violation of an interim restriction could,
of course, become the basis for another Notice of Charge.
If the University official had grounds to believe that a
student was violating a restriction, the official could
request an expedited hearing to address the concern.
some circumstances, a violation of an interim restriction
could be the basis for suspension from the University.
If the student disputed the facts in the Notice of
Charge, the matter would be referred to a Hearing Board.
Generally, a student was to be notified no fewer than five
days before the date of a hearing of its time and place.
If, though, the charge involved a violation of an interim
restriction, a hearing could be called within one weekday.
In either case, the notice of the hearing would also include
the specific charge against the student, as well as a
citation of the provision of the Code of Student Conduct the
Despite authorizing University officials to act
without notice if they deemed it necessary, the CSC also
stated that a meeting with the student “will be held prior
to the imposition of interim restrictions whenever
reasonably possible.” (CSC VII.C.)
charge related to.
In addition, the notice would provide a
summary of the information underlying the charge, including
a description of the alleged acts and specific times and
places if they were known or reasonably knowable.
the notice would outline the procedures to be followed
during the hearing.
Hearings on violations of the CSC took place before a
Hearing Board, which comprised between three and five
University employees and students appointed by the Vice
Chancellor for Student Affairs.
The University bore the
burden of proving that a student had violated the CSC by a
preponderance of the evidence.
The charged student could
bring an advocate to the hearing, but that advocate could
not be an attorney, per the CSC.7
The Hearing Board could
hear testimony of witnesses or read statements, but the
formal rules of evidence as observed in court proceedings
did not apply.
The CSC did allow for the presence -- but not
participation -- of an attorney where there was either a
pending criminal case or a likelihood of a criminal
complaint. It is not clear that this exception applied
here, but in any event it is undisputed that Plaintiff’s
counsel was present at his hearing.
At the conclusion of the hearing, the board was to make
a recommendation and forward it to the Dean of Students,
along with a written summary of testimony, findings of fact,
Upon receipt of these documents, the
designated University Official would render a written
decision on the matter, “consisting of findings of fact,
sanction(s), and reasons therefore.”
would then be forwarded to the charged student.
The determination of an appropriate sanction could be
based, among other factors, on “the student’s present
demeanor and past disciplinary record [and] the nature of
Sanctions included expulsion,
suspension, deferred suspension, and University probation or
reprimand, among others.
A student could appeal the Hearing Board’s substantive
decision or the resulting sanction to the University Appeals
Board (UAB), composed of three University employees and/or
There were four bases for appeal: (1) procedural
error or irregularity materially affecting the decision; (2)
“[n]ew evidence not previously available that would have
materially affected the decision;” (3) lack of support for
the decision “by substantial evidence;” or (4) lack of
support for the sanction “by the charges and/or the
student’s disciplinary history.”
would review the hearing records and make a recommendation
to the Vice Chancellor for Student Affairs, who would then
issue a final decision.
Plaintiff’s Disciplinary Process
On April 16, 2013, Defendant University received a call
from a student’s mother, who reported that her daughter,
Lauren Gibney, had been physically assaulted by Plaintiff,
her boyfriend, in Barcelona, Spain, where they both were
studying on a University program.
Gibney then sent the
University a statement detailing her account of the assault,
which accused Plaintiff of grabbing her wrists and punching
himself in the face with her hands, as well as pinning her
down on a bed.
Pursuant to the University’s policies,
Gibney’s complaint went to the Dean of Students’ Office.
On April 17, 2013, Defendant Gelaye instructed
Defendant Berger to open a student conduct case on the basis
of Gibney’s statement.
On April 19, 2013, Berger issued to
Plaintiff a Notice of Charge, pursuant to the CSC.
notice informed Plaintiff that he was charged with violating
CSC 2012-13/II.B.1 (physical assault) and 2012-13/II.B.17a
(endangering behavior to persons or property).
the Notice of Charge directed Plaintiff “not to have any
direct or indirect contact” with Gibney, including through
text messages or social networking sites, or “by having
others (friends, acquaintances, family members, attorneys
etc.) act on [his] behalf.”8
No. 16, Attach. 4 at 13.)
(Ex. D Notice of Charge, Dkt.
Berger also directed Plaintiff to
contact her office to schedule a conference on the charge.
On May 1, 2013, Plaintiff, having returned from
Barcelona, met with Berger and denied the charges against
After their meeting, Plaintiff sent to Berger an email
The proper characterization of this first no-contact
order is disputed. Plaintiff maintains that the order
constituted a formal “interim restriction” under the CSC,
requiring a prior meeting with the student “whenever
reasonably possible.” (CSC VII.C.) Defendants say that a
no-contact order routinely accompanied the Notice of Charge
and, further, that this kind of preliminary restriction was
not subject to the prior-meeting-if-possible provision.
(Defs.’ Resp. to Pl.’s Statement of Facts ¶¶ 11 & 39, Dkt.
No. 142.) This dispute, as will be seen below, is not
containing his version of the incident in Barcelona.9
According to his version of events, Gibney was the
aggressor, who hit and slapped Plaintiff in the eye and
kicked him in the groin, and it was only in self defense
that Plaintiff pinned her down.
This email contained a
photograph of alleged injuries to Plaintiff inflicted by
Despite the no-contact order, Plaintiff resumed contact
with Gibney almost immediately that May, through Skype and
text messages, as well as through meetings for “intimate
(Pl.’s Mem. of Law in Supp. 5, Dkt. No. 9.)
May 9, 2013, Gibney’s mother discovered that Plaintiff was
still contacting Gibney.
When confronted, Gibney told her
mother that Plaintiff was refusing to stop contacting her.
According to Defendants, and not apparently disputed
by Plaintiff, Berger asked Plaintiff to put his statement in
writing because, during their in-person conference,
Plaintiff became so distraught that Berger could not
understand what he was trying to say. (Defs.’ Resp. to
Pl.’s Statement of Facts ¶ 44, Dkt. No. 142.)
Defendants dispute Plaintiff’s claim about the
photograph. At her deposition, Gibney testified that these
bruises arose from other physical incidents between her and
Plaintiff. (Defs.’ Resp. to Pl.’s Statement of Facts ¶ 52,
Dkt. No. 142.)
Gibney did not tell her mother that these contacts had
occurred, to some extent, with her complicity.
parents immediately notified Berger that Plaintiff was still
in contact with their daughter.
Even after this report to
the Dean, Plaintiff and Gibney continued their contacts.
On the afternoon of May 9, 2013, Berger spoke on the
phone with Gibney about the phone calls and texts from
During this call, Gibney did not tell Berger
that she had colluded in the contacts, and Berger had the
impression at the end of the call that the contacts were not
in any way consensual.
Based on this impression, on May 28,
2013, Berger issued a second Notice of Charge to Plaintiff
for violating CSC 2012-13/II.B.2 (harassment) and 201213/II.B.13 (failure to comply with the direction of
This second notice was sent by mail
to Plaintiff’s home address in Maryland.
Again, the second
Notice of Charge contained the explicit, written directive
to Plaintiff to stop all contact with Gibney.
(Ex. E Notice
of Charge, Dkt. No. 16, Attach. 4 at 14.)
On June 3, 2013, Gibney and her mother met with Berger
to discuss the contacts between Gibney and Plaintiff.
this meeting, they discussed whether it would be appropriate
for Gibney to apply for a formal restraining order from a
local state court.
Gibney sent Berger an email the
following day chronicling the number of calls and texts she
had received from Plaintiff and stating that she had not yet
decided on whether to pursue a restraining order.
also provided phone records, which indicated that Plaintiff
called Gibney 280 times between April 24 and May 28, 2013
(i.e., after the first, but before the second, notice of
charge), and 31 times between May 28 and June 1, 2013 (i.e.,
after the second notice of charge).
The records also
confirmed over 1700 text messages from Plaintiff to Gibney
during that time frame.11
Gibney did not inform Berger that
the contact was ever consensual.
On June 17, 2013, by email Berger issued to Plaintiff a
third Notice of Charge for violating CSC 2012-13/II.B.2
(harassment) and 2012-13/II.B.13 (failure to comply with the
direction of university officials).
imposed the interim restriction of suspension, effective
In this same period, Gibney apparently sent to
Plaintiff approximately 700 text messages.
immediately, based on Plaintiff’s “behavior represent[ing] a
direct and imminent threat to [his] safety and the safety of
the University community.”
No. 16, Ex. 4 at 15.)
(Ex. F Notice of Charge, Dkt.
The third notice informed Plaintiff
of his right to a meeting because of the suspension and
directed Plaintiff to contact Berger’s office within two
On June 19, 2013, Berger and Plaintiff, as well as
Plaintiff’s father, David Haidak, had a second disciplinary
conference via telephone regarding both the second and third
notices of charge.
In this conference, Plaintiff stated
that he was considering charges against Gibney for her
physical assault on him in Barcelona.
Berger stated that
Plaintiff could submit a charge, and her office would make a
determination based on the submission about how to proceed.
However, Berger told Plaintiff that, even if he did file a
charge against Gibney, it was unlikely that the charge would
be formally addressed until after the conclusion of the
disciplinary proceedings against him.
In the end, Plaintiff
never, at any point, filed anything against Gibney.
phone conference concluded with an agreement that Plaintiff
would supply a response to the charges that he was violating
the no-contact orders, and Berger would decide whether to
keep the interim suspension in place.
On July 8, 2013, Plaintiff sent his version of events
in an email, including excerpts from his texts with Gibney,
in an effort to show Berger that the contacts between Gibney
and him were, in his view, entirely consensual and even
This is, in part, disputed.
concede that some of the contacts and communications between
Plaintiff and Gibney were consensual, but they also contend
that many, in fact, were not.
For purposes of Defendants’
motion for summary judgment, the court will assume that the
contacts between Plaintiff and Gibney during the period when
Plaintiff was prohibited from contacting Gibney were
consensual on Gibney’s part.
On August 5, 2013, Berger sent Plaintiff an email
stating that the interim suspension imposed on June 17,
2013, would continue in effect until further notice.
email did not provide reasons as to why the interim
restriction remained in place.12
The email attached a form
for withdrawal from the University, based on a conversation
Berger had had the previous week with Plaintiff’s father,
which will be discussed below.
It is significant that, during these summer months,
Defendants took no action to schedule any proceeding before
a Hearing Board.
Accepting Plaintiff’s argument as true
that the no-contact order in the first Notice of Charge
constituted an interim restriction under the CSC (VII.B),
the imposition of the interim suspension based on violations
of the no-contact orders appears to call for an expedited
hearing under the CSC (VII.D).13
In fact, the first attempt
at recruiting new student Hearing Board members for the
2013-2014 academic year occurred on August 30, 2013.
Student applications to sit on the Hearing Board were due on
When asked during her deposition why she decided
that the interim restriction of suspension should remain in
place despite receiving the email from Plaintiff showing
Gibney’s consensual texts to him, Berger replied,
“[Plaintiff] came across as very unstable to me and in my
experience of working with students over the years I hadn’t
seen a student like this.” (Berger Dep. 162:9-15, Dkt. No.
130, Attach. 1.)
Defendants dispute that the CSC “requires” an
expedited hearing, but admit that Berger did not seek one.
September 13, 2013.
This timetable meant that no trained
Hearing Board was in place until the end of the first month
of the academic year.
On August 21, 2013, Plaintiff sent an email to the
University’s Judicial Advisor program.
This program pays
students to act as advisors and advocate for individuals
navigating the University’s disciplinary process, either as
complaining students or as charged students.
Advisors attend meetings with charged students at the Dean
of Students Office and assist the students in preparing for
hearings before the Hearing Board, as well as in writing
appeals to the UAB.
On August 26, 2013, Judicial Advisor
Stasie Levin took the assignment of assisting Plaintiff.
this role, Levin corresponded frequently with Plaintiff
about his case, including about whether he should file
charges against Gibney and what evidence he could submit to
the Hearing Board.
Additionally, Levin had several
conversations about Plaintiff’s case with individual
Defendants, including Berger, Cardoso, and Gelaye.
On August 27, 2013, Plaintiff’s father sent an email to
Berger inquiring into whether Plaintiff could take an
“elective leave of absence,” as the new academic year was
about to begin, Plaintiff was still under suspension, and no
date had yet been set for the Hearing Board to convene.
August 29, 2013, Berger replied that the University had no
such mechanism as an “elective leave of absence.”
Berger informed him, Plaintiff could withdraw and later
apply for readmission.
After this exchange, on August 30, on the advice of his
student judicial advisor, Plaintiff called Defendant Gelaye.
During their phone conversation, Plaintiff stated to Gelaye
that he believed Berger was discriminating against him with
respect to the charges.
He and Gelaye also once more
discussed the option of Plaintiff filing a charge against
Gibney based on her assault on him during the incident in
Gelaye informed Plaintiff again that he was free
to file a charge against Gibney but that his doing so would
not change the status of Gibney’s case against him.
Plaintiff inquired about lifting his interim suspension,
Gelaye told him that this was not possible until after the
proceeding before the Hearing Board.14
On September 1, 2013, Plaintiff withdrew from the
University -- as he put it, “under duress.”
that he was “pushed” into this decision because of the lack
of a timely Hearing Board date, which meant that the
complaint against him would not be addressed until several
weeks into the new school year, at the earliest.
Resp. to Pl.’s Statement of Facts ¶ 204, Dkt. No. 142.)
he remained a student but was under suspension, he would be
faced with trying to catch up with classes, even if the
Hearing Board’s eventual decision was favorable to him and
resulted in the lifting of his suspension.
Despite no longer being a student at the University,
Plaintiff moved to an apartment in Amherst in September and,
in the teeth of the three no-contact orders, continued to
relationship with Gibney.
On the night of
September 14, 2013, Plaintiff became intoxicated and called
In her memo to file summarizing this conversation,
Gelaye remarked that Plaintiff wept through most of the
conversation, describing the process as unfair and Berger’s
attitude as discriminatory. (Dkt. No. 123, Attach. 8.)
Gibney for a ride.
On the trip home, they got into an
argument, during which Plaintiff threatened to kill himself.
Then, Plaintiff exited the car while it was still moving.
Gibney called the police, who took Plaintiff to the
hospital, where he remained until he had recovered from his
On September 15, 2013, Gibney’s mother
notified Berger of this contact.
On September 19, 2013, Gibney and her mother met with
Gibney admitted at the meeting that she had herself
sometimes initiated contact with Plaintiff over the summer,
but that she no longer wanted contact with Plaintiff.
On September 26, 2013, the melodrama continued.
Plaintiff showed up, appearing intoxicated, at Gibney’s work
place, a bar in Amherst.
He was the only person at the bar,
and he positioned himself uncomfortably close to Gibney.
Security at the establishment removed Plaintiff after the
owner asked Gibney if she wanted Plaintiff to leave.
in the night, Plaintiff sent Gibney a coarse message on
Skype: “Whores don’t really understand real life...
talk to dudes with broken English but really they just
spread their legs and get fucked like the sluts they are
(Defs.’ Statement of Facts ¶ 43, Dkt. No. 123.)
The following day, on September 27, 2013, Gibney
notified Berger about the previous night’s contact with
Any claim that Plaintiff’s overtures to Gibney
by this point were “welcome” or consensual lacks support in
With encouragement from Berger’s office, Gibney
filed an application for a state-court restraining order
describing the incident at her workplace and the message
Plaintiff wrote her.
This application failed to disclose
that Gibney’s relationship with Plaintiff during some of the
prior relevant time period had been, to some extent,
consensual on her part, despite the University’s no-contact
After an ex parte hearing, a judge in the
Commonwealth’s Eastern Hampshire District Court granted a
ten-day restraining order.
Gibney provided a copy of the
temporary restraining order (TRO) to Berger.
On October 2, 2013, the student judicial advisor Levin
sent Plaintiff an email.
In it, she summarized a
conversation she had with Berger, who told Levin, once more,
that Plaintiff was free to file charges against Gibney if he
As before, however, Berger stated that Plaintiff’s
charges would not be pursued until after Gibney’s charge
against Plaintiff was addressed.
On October 8, 2013, the state court judge held an
adversarial hearing on Gibney’s application for an extension
of the ten-day restraining order.
Upon cross-examination by
Plaintiff’s counsel, Gibney admitted that her relationship
with Plaintiff had been, at times and to some extent,
consensual, and that she had struck and bitten Plaintiff
during the course of their approximately eighteen-month
At the conclusion of the hearing, the judge
declined to extend the TRO.
On October 28, 2013, Berger notified Plaintiff and
Gibney that she would no longer be the contact person for
In fact, Berger thereafter left the University
for another position.
The new official in charge of the
process was Defendant Cardoso, Associate Dean of Students.
In November, Plaintiff sent Cardoso two proposed pieces of
evidence for consideration by the Hearing Board: a
transcript of the state-court TRO hearing and a picture of
the bite mark on Plaintiff’s arm from around the time of the
April 15, 2013, altercation in Barcelona.
Plaintiff sent to Gelaye a copy of the TRO hearing
On November 15, 2013, Plaintiff and Cardoso had several
phone conversations, during which they discussed what
evidence Plaintiff wished to put before the Hearing Board,
as well as what dates were available for the hearing.15
these conferences, Cardoso expressed her opinion that
Plaintiff’s proposed evidence would likely hurt Plaintiff as
much as, or more than, it helped him, and was, in any event,
largely irrelevant to the inquiry into the April 15 assault
and Plaintiff’s subsequent violations of the no-contact
Cardoso also conferred with Plaintiff to choose a date
for the Hearing Board to convene.
She provided three
different dates, and Plaintiff selected Friday, November 22,
2013, though he was aware he would not be able to attend in
person on that date.
Plaintiff and Gibney received notice
Defendants again characterize Plaintiff’s emotional
state during these phone calls as alternating between calm
and highly agitated. (Defs.’ Statement of Material Fact ¶
90, Dkt. No. 123.)
on November 15 that the hearing had been scheduled for
November 22, 2013.16
The notice included a handout on
procedures, and an agenda that specified that charged
students would not be permitted to question complaining
This restriction was new as of the fall
of 2013 and had not been in effect the prior spring.
The following day, Plaintiff told Cardoso that he
wished to have his mother make a statement at the hearing in
She would recount, Plaintiff said, a
conversation she had with Gibney in February 2013 in
Barcelona, several months prior to the April 15 incident
that formed the basis of Gibney’s charge, during which
Gibney purportedly admitted to biting Plaintiff.
Plaintiff’s mother would also explain that she saw the
bruises on her son’s arm from the bite.
that, unless Plaintiff’s mother was a witness to the April
15, 2013, incident, she would not be permitted to testify.
However, Cardoso explained, Plaintiff’s mother could submit
a letter that would be included in the file reviewed by the
The CSC provides that a student is entitled to five
business days’ notice before a hearing. Defendants concede
that they fell hours short of this requirement.
dean tasked with making a decision on sanctions should the
Hearing Board find Plaintiff responsible for the CSC
In the days before the hearing, Gibney’s parents
contacted the University to object to the use of the
restraining order transcript during the student conduct
hearing, as well as the fact that Plaintiff’s counsel would
Plaintiff, for his part, submitted to Cardoso
thirty-six questions he wanted the Hearing Board to ask
Gibney, as well as a summary of his view of the charges.
Plaintiff’s mother also submitted her statement to Cardoso.
The day before the hearing, Cardoso notified Plaintiff that
she had decided not to permit the transcript from the state
court hearing to be submitted to the Hearing Board.
The record is disputed as to whether Plaintiff acceded
to Cardoso’s decision regarding the transcript.
contend that Plaintiff agreed not to press the transcript
issue, after Cardoso pointed out that it was unnecessary
since Gibney was now admitting that she had had voluntary
contact with Plaintiff during the no-contact period.
portions of the record, however, suggest that Plaintiff was
continuing to press for submission of the transcript.
dispute is not material, since the court will assume for
purposes of Defendants’ motion that Plaintiff continued to
press for submission of the transcript, and Cardoso declined
to permit it.
Cardoso limited the evidence before the Hearing Board
in other ways.
She did not permit the submission of
Plaintiff’s mother’s statement or the picture of the bruise
on Plaintiff’s arm from February 2013.
Cardoso also pared
the 36 questions submitted by Plaintiff down to sixteen.
These questions omitted inquiries into whether Gibney had
ever hit or bitten Plaintiff and whether she had tried to
conceal her relationship with Plaintiff from her parents.
Hearing and Post-Hearing Process
On November 22, 2013, the Hearing Board convened with
four student members and one staff chair.
Cardoso acted as
the procedural advisor for the hearing; Gibney was present
and Plaintiff attended by phone.
For Plaintiff, retained
counsel and Levin, his judicial advisor, were present; for
Gibney, an advisor/advocate attended.
Contrary to the
Hearing Board agenda, Plaintiff -- not Gibney, as the
complaining witness -- was questioned first.17
Plaintiff nor his advisors were allowed to question Gibney
directly, and only a few of Plaintiff’s pre-submitted
questions were asked by the Hearing Board.
According to the Student Conduct Hearing Board Report
(Ex. A Report, Dkt. No. 16, Ex. 2), the board reviewed
statements from Gibney and Plaintiff for each charge against
For the charge of assault stemming from the
April 15, 2013, incident in Barcelona, the board reviewed
photos provided by both Gibney and Plaintiff.
charges of harassment stemming, in part, from Plaintiff’s
persistent contact with Gibney, the board reviewed
statements from Gibney as well as phone and text message
logs and the actual text messages.
After reviewing the submitted materials, the Hearing
Board, as noted, began its questioning with Plaintiff.
After receiving his responses, they directed questions at
Thereafter, the board took a break to prepare a
Defendants dispute this characterization. They
assert that, after reading both statements, the Hearing
Board decided it had no immediate questions for Gibney but
had some for Plaintiff.
final group of questions for both Gibney and Plaintiff.
(Hr’g Tr. 32, Dkt. No. 123, Attach. 9 at 11.)
One of the
questions directed at Plaintiff after the break dealt
specifically with his understanding of the no-contact order
in the Notice of Charge.
Plaintiff answered that, at the
time, though he understood the order from the dean was
designed to protect Gibney, he did not believe he had an
obligation to comply with it, because Gibney was talking to
He stated, “[i]n retrospect I should have
followed the school’s rule, but I was in a relationship with
her for many years and I was under a lot of pressure and
stress dealing with the hearing and the school.”
Plaintiff’s answer to the Hearing Board is consistent
with his testimony during his deposition on December 22,
When asked about his understanding of the no-contact
order, Plaintiff stated that he understood Defendants’
directive to prohibit his contact with Gibney, but he
decided that Gibney’s decision “as a consenting adult” to
contact him “supersede[d]” the directive.
134:4-8, Dkt. No. 123, Attach. 2.)
After considering the evidence, the Hearing Board
concluded that Plaintiff was responsible for a violation of
the CSC prohibiting physical assault (II.B.1) and for the
two charges for failure to comply with the direction of a
University official (II.B.13).
In making this determination
of physical assault, the board used the broader definition
from the 2012-2013 CSC, and not the narrower definition
adopted over the summer.18
The Hearing Board concluded that
Plaintiff was not responsible for either the one charge of
endangering behavior to persons or property (II.B.17a)
(because his conduct did not rise to the requisite level of
severity), or the two charges of harassment (II.B.2)
(because Plaintiff’s contact with Gibney was “mutual”).
Plaintiff maintains that the 2013/2014 CSC
definition of physical assault was more restrictive than the
2012/2013 CSC. (See supra n.1.) The 2012/2013 CSC
definition of assault does not require “actual physical
injury,” while the 2013/2014 CSC definition does. However,
as the Hearing Board concluded that Plaintiff “cause[d]
actual physical harm” to Gibney -- which clearly falls
within in the more restrictive 2013/2014 CSC definition -the difference between the two definitions is not material.
(Ex. A Report 8, Dkt. No. 16, Ex 2.)
With respect to its findings, the Student Conduct
Hearing Board Report provided the following rationale for
the board’s decisions:
The board finds [Plaintiff] not responsible for
[endangering behavior to persons or property], because
his actions did not rise to a level violating this
policy. However, his behavior was disproportionate to
the actions he attributed to [Gibney], and the board
believes [Plaintiff] did cause physical harm to
[Gibney’s] wrists and arms based on the narratives and
pictures presented in the hearing. As such, we find
[Plaintiff] responsible for [physical assault].
Regarding the second and third incidents, the board
finds [Plaintiff] not responsible for [harassment] in
both cases, as the contact after the April incident was
mutual and non-threatening according to both parties.
However, we find [Plaintiff] responsible for [failure
to comply] in both cases because he still knowingly
violated the directives of the university, and failed
to address any reservations he might have had with the
(Ex. A Report 8, Dkt. No. 16, Ex 2.)
After the Hearing Board issued its report, Defendant
Vaillancourt, Senior Associate Dean of Students, reviewed
the findings and found them to be “consistent with the
charges and based on substantial evidence.”
Aff. ¶ 4, Dkt. No. 16, Ex. 2.)
Vaillancourt also reviewed Plaintiff’s significant
prior history of misconduct, which involved two serious
The first incident occurred on February 27,
Plaintiff, while intoxicated, punched another student
in his dorm and pushed and spat on the resident advisor
breaking up the altercation.
Plaintiff was so inebriated at
the time that he was placed in protective custody.
agreed to be found responsible for the CSC violations of
endangering behavior, harassment, physical assault, and
breach of University policies.
He received the sanctions of
housing probation, anger management meetings, and alcohol
The second incident occurred on October 28, 2012.
Plaintiff was arrested by the Amherst Town Police and
charged with nuisance, noisy and disorderly house, and
disturbing the peace.
Plaintiff again agreed to be found
responsible for CSC violations for alcohol, endangering
behavior, and violations of local or state law.
the sanctions of a University reprimand and the writing of a
3-page paper on alcohol and student disturbances.
It is undisputed that Vaillancourt was familiar with
Plaintiff from the prior incidents and had been
“disheartened” by the paper written by Plaintiff after the
October 28, 2012 incident.
This response is not surprising.
Plaintiff’s purported “sanction/reflection” paper stated
that, while he had “empathy” for some of the residents of
Amherst, “Kids will party no matter what.
Is this responsible?
End of story. ...
Certainly not, but it is a simple
(Ex. E Editorial Response, Dkt. No. 16, Attach. 2
After considering Plaintiff’s history of discipline at
the University, Vaillancourt determined that the appropriate
sanction was expulsion.
He reasoned as follows:
Despite the [two] earlier attempts by the University to
redirect [Plaintiff’s] decision-making and behavior, he
had not altered his behavior. Further, in light of his
flagrant violation of the university’s [two] no-contact
orders, it was clear he would not comply with any
future directives from the university to ensure the
safety of himself, [Gibney], or others.
(Vaillancourt Aff. ¶ 9, Dkt. No. 16, Ex. 2.)
Plaintiff takes the position that Vaillancourt failed
to take into account all of the factors listed in the CSC
for determining a sanction, in particular, a student’s
present demeanor or character letters.
Plaintiff points out that he had a 4.0 average and was only
four courses away from his economics degree.
deny that Vaillancourt’s consideration was inadequate.
Specifically, they note that, though the CSC has no
provision on character letters, Vaillancourt nonetheless
On December 3, 2013, Vaillancourt notified Plaintiff by
letter of his expulsion, as well as of his right to file a
letter of appeal.
On December 18, 2013, Plaintiff, through
counsel, filed a 15-page letter of appeal.
As grounds for
his appeal, Plaintiff listed three of the four bases
identified in the CSC: procedural error or irregularity
which materially affected the decision; lack of substantial
evidence to support the decision; and lack of support for
the sanction by the charges or by Plaintiff’s disciplinary
As part of his letter of appeal, Plaintiff requested
that Gelaye recuse herself from the appeals process because
she had participated with Cardoso in the decision to exclude
the court transcript and bruise photograph from the hearing.
Gelaye did not recuse herself.
In her role as Vice
Chancellor of Student Affairs and Campus Life, she was the
person responsible for receiving the recommendations of the
University Appeals Board (UAB), and she did so for
On December 19, 2013, the day after the appeal was
filed, the UAB met and recommended that the sanction be
The UAB reviewed this case under the relevant sections
of the 2011-12 Code of Conduct. Considering the case
on each of the four grounds for appeal available under
the Code, the UAB found: 1) a procedural review
revealed no procedural error sufficient to have
materially affected the outcome of the case, 2) the new
evidence was insufficient to have materially affected
the decision, 3) the evidence within the case was
sufficient to have supported the decision, and 4) a
balancing test of student’s disciplinary history and
the charges supported the sanction as levied.
(Ex. A UAB Letter 2, Dkt. No. 16, Ex. 1.)
That same day,
Gelaye notified Plaintiff by letter that she was upholding
his expulsion from the University based on the UAB
Curiously, as Plaintiff points out, the UAB report
is dated December 20, 2013 -- the day after Gelaye notified
Plaintiff of the UAB’s decision. Defendants submit that the
Appeals Board met on December 19, 2013. Vice-Chancellor
Gelaye reviewed and concurred with the UAB recommendation
and sent a letter to Plaintiff December 19, the day before
the report from the UAB was actually approved. This anomaly
has no bearing on the court’s decision on Defendants’
As part of the record in support of entry of judgment
in his favor, Plaintiff has included evidence of contact
between the Dean’s office, which was handling his discipline
matter, and the University Relations office as proof that
Plaintiff’s appeal was pre-judged and the decision-makers
Specifically, before Plaintiff submitted his
appeal, his father sent an email to Vaillancourt “expressing
his dismay in the decision.”20
Facts ¶ 394, Dkt. No. 133.)
(Pl.’s Statement of Material
The email was forwarded to
Gelaye, who sent it along to the University Relations
The person in the University Relations office
replied that, without sharing the email, she would notify
her contact in the President’s Office of Plaintiff’s
Finally, Plaintiff has also submitted some evidence
derived from data produced by Defendants regarding charges
The actual email from Plaintiff’s father to
Vaillancourt stated, in part, “...[I] am especially upset at
the way he and we were treated; umass has meant an enormous
amount to my family; my father was an associate dean at the
university med school; he and my uncle established three
full professorships at the med school thru direct family
bequests; my mother established a scholarship there; and my
father also left a sizable trust to the med school....”
(Dkt. No. 133, Attach. 86.)
of assaultive conduct by students that occurred between 2011
and 2015, noting the gender of the complaining and charged
students, conduct charged, whether there was a finding of
“responsible,” and what sanction followed findings of
According to the data provided by the
University, between 2010 and 2015, 93 males and 26 females
were found responsible for assault charges under the CSC.
Of these, 13 students were expelled, all male.
has particularly highlighted the cases of two female
students who went through the University’s discipline system
based on charges of physical assault upon male students.
The summaries do not include details regarding the
incidents, the extent of the injuries to the male victims
(if any), or the past disciplinary history of the female
In both cases, the female students were found
responsible, but in neither case was the female student
(Id. at ¶¶ 40-42, 97-99, & 401-405.)
Plaintiff’s expert witness, Herbert Weisberg, Ph.D.,
performed an analysis of this evidence, and concluded that
“the adjudication process for alleged assault tends to treat
males and females differentially.”
(Id. at ¶ 405.)
Dr. Weisberg did not say that the evidence was “proof” of
discrimination or bias, he found the it to be “trending in a
(Weisberg Dep. 83:13-24, Dkt. No. 133,
On March 18, 2014, Plaintiff filed a verified complaint
(amended first on April 16, 2014 (Dkt. No. 20) and again on
March 4, 2015 (Dkt. No. 68)), along with an emergency motion
for injunctive relief (Dkt. No. 2).
On May 8, 2014, the
parties appeared before the court for argument.
On May 27,
2014, the court denied Plaintiff’s motion for injunctive
relief, finding that “the merits appear to be in equipoise
and ... the record lacks an adequate showing of irreparable
(Dkt. No. 45.)
Thereafter, Defendants responded to
the complaint with a motion to dismiss, on which the court
heard argument on November 13, 2014.
At the conclusion of
the hearing, the court denied Defendant’s motion.
Nos. 51 & 52.)
Accordingly, with all Plaintiff’s claims
intact, the parties moved on to discovery practice.
As noted in the introduction, Plaintiff’s Second
Amended Verified Complaint comprises two counts.
brought against the individual Defendants pursuant to 42
U.S.C. § 1983, alleges violations of Plaintiff’s due process
rights and rights to equal protection of the laws under the
Fourteenth Amendment of the United States Constitution.
Specifically, Plaintiff claims that his due process rights
were violated by Defendants’ failure to provide a hearing or
establish that he constituted an “imminent threat” before
initially suspending him from the University, by failing to
provide a hearing before the Hearing Board in a timely
fashion, and by expelling him after a hearing in which he
was denied the rights to notice of the allegations against
him, the opportunity to contest evidence against him, and
the ability to present evidence on his own behalf.
Plaintiff further claims Defendants denied his rights to
equal protection under the laws by not themselves initiating
disciplinary charges against Gibney.
that Defendants failed to do this based on their genderbased bias against males.
Count II, brought against
Defendant University pursuant to Title IX, 20 U.S.C. § 1681,
alleges that Plaintiff’s gender was the motivating factor
behind Defendants’ decision to enforce the CSC against
Plaintiff and not Gibney, to impose sanctions on Plaintiff
for violation of the CSC, and to impose sanctions more
severe than those faced by similarly situated female
Plaintiff has moved for summary judgment on liability
on both his § 1983 and Title IX claims.
His arguments for
liability center on the issues of (1) Defendants Berger’s
and Vaillancourt’s failure to notify Plaintiff in writing
after his conference with Berger on May 1, 2013, that the
no-contact order in the first Notice of Charge remained in
effect, (2) Defendants Berger’s and Gelaye’s failure to
provide him with a predeprivation hearing before suspending
him in June 2013, (3) Defendants Berger’s and Cardoso’s
deprivation of his opportunity to be heard in a reasonable
time due to the seven-month delay between the triggering
incident and the Hearing Board proceeding, and (4) Defendant
University’s deliberate indifference to his claim of
intimate partner violence by Gibney.
In turn, Defendants
have moved for summary judgment on all claims, arguing that
as a matter of law the process afforded to Plaintiff
conformed with the requirements of the Fourteenth Amendment
of the U.S. Constitution and that his claim under Title IX
must fail because there is no evidence in the record
supporting Plaintiff’s claim that any allegedly “improper
conduct occurred on account of his sex.“ (Dkt. No. 121.)
The court must grant summary judgment when “the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
Fed. R. Civ. P. 56(a).
Where both parties
simultaneously seek summary judgment, the standard is not
altered: the court must consider each motion independently,
viewing the facts in the light most favorable to the nonmoving party.
Showtime Entm’t, LLC, 769 F.3d at 69.
important to underline that, for a disputed fact to warrant
denial of a motion for summary judgment, the fact must be
material, meaning that it must possess the potential to
change the outcome of the lawsuit.
The court in its
analysis is not obligated to consider “speculative,
unsupported, or unreasonable conclusions,” only facts
adequately supported by the record.
Due Process Claim
Determining exactly what process is due in the context
of an educational institution’s imposition of discipline
requires an inquiry into “the nature of the interest
affected, and the circumstances of the deprivation.”
v. Univ. of Rhode Island, 837 F.2d 7, 12 (1st Cir. 1988).
It is axiomatic that there are two essential requisites of
procedural due process: notice and opportunity to be heard.
Goss v. Lopez, 419 U.S. 565, 579 (1975).
adequate notice must at a minimum inform the affected party
of “what he is accused of doing and what the basis of the
Id. at 582.
A reasonable opportunity to be
heard must afford the accused party a chance “to respond,
explain, and defend.”
Gorman, 837 F.2d at 13.
In evaluating whether the process available to a
plaintiff comported with the requirements of due process
under the Constitution, a court must consider three factors:
(1) the private interest affected by the government action,
(2) the risk of a wrongful deprivation of the interest by
the procedures used, as well as the benefit of additional or
alternative procedures, and (3) the burden on the
defendant’s interests that the additional or alternative
Mathews v. Eldridge, 424 U.S. 319, 335
A fair process does not necessarily require
procedures that follow “the traditional common law
Rather, on judicial review the question
presented is whether, in the particular case, the individual
has had an opportunity to answer, explain, and defend, and
not whether the hearing mirrored a common law criminal
Gorman, 837 F.2d at 14.
Plaintiff’s private interest here is great, and
Defendants do not contend otherwise.
The law recognizes
both Plaintiff’s property interest in his education and his
liberty interest in his good name and reputation.
U.S. at 574.
The controversy here centers on whether
Defendants’ procedures were adequate given the nature of
Plaintiff’s interest, or whether some enhanced protections
were required to bring Defendants’ response into alignment
with the Constitution.
The determination whether a defendant university’s
procedures comport with “basic fairness” is fact-driven.
the First Circuit has made clear, “[b]eyond the right to
notice and hearing, the span of procedural protections
required to ensure fairness becomes uncertain, and must be
determined by a careful weighing or balancing of the
competing interests implicated in the particular case.”
Gorman, 837 F.2d at 14.
In evaluating a school’s disciplinary processes, the
Supreme Court has recognized that “further formalizing the
suspension process and escalating its formality and
adversary nature may not only make it too costly as a
regular disciplinary tool but also destroy its effectiveness
as part of the teaching process.”
Goss, 419 U.S. at 583.
“Generally, in examining administrative proceedings, the
presumption favors the administrators, and the burden is
upon the party challenging the action to produce evidence
sufficient to rebut this presumption.”
Gorman, 837 F.2d at
Plaintiff argues that Defendants’ process with respect
to notice and opportunity to be heard was flawed in several
The court will first address the issue of
the adequacy of notice, then examine the issue of
opportunity to be heard.
Due process demands that an individual be provided with
notice regarding the charges against him so that he has an
opportunity to respond.
See Goss, 419 U.S. at 581; Mard v.
Town of Amherst, 350 F.3d 184, 189 (1st Cir. 2003) (“Due
process requires notice that is ‘reasonably calculated,
under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity
to present their objections’....” (citing Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950))).
specific parameters of the notice -- oral or written, timing
and content -- depend on the particular circumstances.
Goss, 419 U.S. at 579-81.
Plaintiff argues that Defendants deprived him of his
due process right to adequate notice of the charges against
him when the initial no-contact order was imposed, as well
as when he received an interim suspension for violating this
order and the subsequent no-contact order.
Plaintiff finds fault with Defendants’ failure to notify him
that the initial no-contact order remained in effect after
his May conversation with Berger about the alleged assault
He also contends that his rights were
violated when Berger failed to provide reasons for the
continuation of the no-contact order.
The undisputed facts contained in the summary judgment
record refute Plaintiff’s argument.
As noted above at
length, Plaintiff received three Notices of Charge that
clearly explained the accusations against him and informed
him of his rights under the CSC.
The first, dated April 19,
2013, identified the provision of the CSC he was accused of
violating, directed him to a website containing the entirety
of the CSC, and included a brochure for the Judicial Advisor
Program offered by the University for students charged under
This is also the document that informed Plaintiff
of Defendants’ directive that Plaintiff not “have any direct
or indirect contact with  Gibney ... includ[ing], but ...
not limited to comments, words or gestures in person,
through postal mail, email, text, instant messaging, social
networking sites, or by having others ... act on your
(Dkt. No. 16, Attach. 4 at 13.)
The second and third Notices of Charge similarly
informed Plaintiff of the nature of the accusations against
(Id. at 14-15.)
The third notice, which imposed the
interim restriction of suspension, specifically explained
the conduct of Plaintiff that warranted the disciplinary
(Id. at 15 (“[T]he Dean of Students office was
informed that you continued to contact [Gibney]. [Gibney]
provided the Dean of Students office a copy of her phone
records which confirmed between the issuing of the first and
second Notices of Charge you called [Gibney’s] phone
approximately 280 times.”).)
provided several conferences prior to the Hearing Board
proceeding to review the charges and discuss Plaintiff’s
These written and oral communications are more
than enough to satisfy the notice requirements of the due
process clause of the Fourteenth Amendment.
Plaintiff takes issue with Defendants’ failure to
somehow re-affirm the no-contact directive after the May 1,
2013, conversation between Berger and Plaintiff about the
charges against him.
No authority, however, required
Defendants to remind Plaintiff of the existing, very clear
no-contact order after the May 1 conversation, or after any
other contact with Plaintiff.
The language of the order was
itself broad, detailed, and emphatic.
Plaintiff conceded at
his deposition that he knew very well that the University
had directed him to stay away from Gibney, right from the
time she first filed her complaint.
He simply felt no
obligation to comply based on Gibney’s supposed consensual
contact with him.
In short, no further “notice” was either
required by the law, or needed by Plaintiff.
Plaintiff further argues that his right to adequate
notice was undermined by Defendants’ mischaracterization of
the no-contact order as a “directive,” when, according to
Plaintiff, it was actually an “interim restriction,” as
provided for under the CSC.
Properly pigeon-holed, the no-
contact order -- the argument runs -- would have entitled
Plaintiff to some extra procedural rights and perhaps put
him on better notice of what might happen to him if he
defied the order.
But it is impossible to discern what
practical effect this re-labeling of the no-contact order
would have had.
A complaint of a frightening incident had
Plaintiff was clearly told to stay away from
the complainant while the University administrators and,
eventually, the Hearing Board sorted it out.
forthrightly concedes that he knew of the content of the
order, and its rationale, right from the get-go.
The University cannot be faulted for assuming that
anyone in Plaintiff’s position, especially someone who had
already been disciplined twice, would comply with the nocontact order, whether it was viewed as a “directive” or as
an “interim restriction.”
Simple compliance with the order
might well have avoided this whole painful mess, or at least
moderated its consequences.
The strictures of due process are not hyper-technical.
Mathews, 424 U.S. at 334 (“[D]ue process, unlike some legal
rules, is not a technical conception with a fixed content
unrelated to time, place, and circumstances.” (internal
No tenet of due process requires that
an individual know specifically, ahead of time, what
sanction may result where there has been prior notice of the
type of conduct subject to punishment and the possible
consequences for violations of a clear order.
Baker, 210 F.3d 41, 48-49 (1st Cir. 2000).
process obligation to apprise Plaintiff of the charges
against him has been satisfied here.
constitutionally adequate notice.21
Opportunity to Be Heard
Along with notice, due process requires that an
individual have an “opportunity to be heard ‘at a meaningful
time and in a meaningful manner’” before a deprivation of
liberty or property.
U.S. at 579.
Mathews, 424 U.S. at 333; Goss, 419
The bar for satisfying this obligation is “not
high: the U.S. Constitution requires only ‘some
pretermination opportunity to respond.’” Chmielinski v.
Massachusetts, 513 F.3d 309, 316 (1st Cir. 2008) (quoting
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
Due process does not set a standard of “best
practices” a state should follow; rather it simply requires
some process that acts as “an initial check against
Id. (quotations omitted).
The only other possible, de minimis notice issue
Plaintiff identifies is that Defendants were several hours
short of the five-day notice period provided for in the CSC.
However, the record reflects that Defendants gave Plaintiff
three dates to chose from and he picked the November 22 date
on the same day Cardoso notified him. Accordingly, there is
no basis to find a due process violation based on this
Evaluating whether a state’s procedures comport with
due process is a case-specific exercise, related to “time,
place, and circumstances.”
Mathews, 424 U.S. at 334
“Due process is flexible and calls
for such procedural protections as the particular situation
Id. (quoting Morrissey v. Brewer, 408 U.S. 471,
481 (1972) (internal quotations omitted)).
challenges the adequacy of Defendants’ procedures at almost
every point of the disciplinary process, beginning with the
no-contact order contained in the first Notice of Charge and
ending with Plaintiff’s appeal of the Hearing Board’s
decision and the resulting sanction.
First, Plaintiff attacks Defendants’ procedures
surrounding the issuance of the no-contact orders, the
ensuing charges for violating the orders, and the interim
suspension after the finding of a violation.
Plaintiff claims that, in contravention of the CSC,
Defendants failed to convene an expedited hearing after
imposing what he terms an “interim restriction” on him
prohibiting contact with Gibney.
This lapse, he argues, was
compounded when he was subsequently charged with violating
The final, and most serious, blow fell,
according to this argument, when Plaintiff’s repeated,
knowing violation of the no-contact order resulted in his
interim suspension without a prior hearing and without a
finding that Plaintiff was an “imminent threat to himself
... [or] to others.”
(Dkt. No. 119, Attach. 1 at 13.)
In weighing these arguments, it is important to bear in
mind that the court’s analysis must focus on whether
Plaintiff’s constitutional rights have been violated, not on
whether Defendants might have adhered more scrupulously to
the requirements of the CSC.
The Constitution requires only
that a pretermination hearing provide a reasonable “check
against mistaken decisions.”
Calderón-Garnier v. Rodríguez,
578 F.3d 33, 38 (1st Cir. 2009).
It is true that the first no-contact order on April 19,
2013, after Gibney’s initial complaint, was issued without
any opportunity for Plaintiff to be heard ahead of time.
This fact does not, however, raise due process concerns for
at least three reasons.
First, as a preliminary matter, a no-contact order
does not implicate a substantial property or liberty
interest such as education or reputation.
safeguards, in this context, may be more rudimentary than
See Donovan v. Ritchie, 68 F.3d 14, 18 (1st Cir.
1995) (concluding that inclusion of a ban on athletic and
extracurricular activities along with a brief suspension did
not “trigger a requirement for a more formal set of
Second, as Plaintiff himself recognizes, a
predeprivation hearing before the April 19, 2013, issuance
of the first Notice of Charge, along with its no-contact
order, was not possible as a practical matter.
was in Spain, thousands of miles away.
(Pl.’s Mem. in
Support 19, Dkt. No. 125.)
Third, Defendants conducted an in-person conference
with Plaintiff reasonably promptly after the issuance of the
initial charge and no-contact order, on May 1, 2013, to
discuss both the underlying charges filed by Gibney and the
The conference gave Plaintiff an
opportunity to contest the complaint against him.
gave him an opportunity to contest the no-contact order,
though no evidence exists that he did so at that time.
far as the initial order prohibiting contact by Plaintiff
with Gibney, this sequence of events fully satisfied the
requirements of due process.
The same can be said of Plaintiff’s suspension -accurately classified as an “interim restriction” –- which
Defendants imposed on June 17, 2013.
As noted earlier, the
pretermination process need not be “elaborate” where there
is a more robust postdeprivation process.
conferred with Plaintiff regarding the suspension on June
While it may be true that this conference
constituted a less elaborate process than the one outlined
in the CSC, Defendants’ actions nonetheless met the
requirements of the Constitution.
The undisputed fact is
that Plaintiff knew of the no-contact orders and exuberantly
He was given an opportunity to make his case
His explanation for his conduct -- that
Gibney consented to the contact -- could not justify his
obstinacy and was rejected by Defendants even after Gibney
This conference was followed by an email from
Plaintiff on July 8, 2013, to Berger, who responded with a
letter back to Plaintiff on August 5, 2013, advising him
that the suspension would continue.
herself finally confessed that it was, to some extent, true.
The process underlying the issuance of the interim
suspension contained no fatal constitutional flaw.
Next, Plaintiff vigorously argues that the Hearing
Board proceeding itself was constitutionally impaired in
First, Defendants improperly excluded the
transcript of the TRO hearing in state court, the pictures
of the bite mark Gibney left on Plaintiff’s arm, and the
testimony of his mother.
Second, Defendants deprived
Plaintiff of the assistance of counsel.
denied Plaintiff the opportunity to confront and crossexamine Gibney.
Plaintiff points out that where a case
hinges on the credibility of one witness, the ability to
cross-examine that witness might be essential to a fair
Furey v. Temple Univ., 884 F. Supp. 2d 223, 252
(E.D. Pa. 2012) (citing Winnick v. Manning, 460 F.2d 545 (2d
Here, Plaintiff was not permitted to question
Gibney; instead he was told to submit questions to the
Hearing Board, of which they posed only a few.
None of these alleged defects, alone or taken together,
is sufficient to render Defendants’ hearing procedure so
infirm as to deprive Plaintiff of his due process rights.
Exclusion of evidence that is repetitive or secondhand does
not show that the process was unfair or that Defendants were
biased against him.
Moreover, on the issues of fact that
Plaintiff sought to establish with the excluded evidence -that Gibney had misled her parents and Defendants about her
consensual contact with Plaintiff and that she had also been
physically aggressive with Plaintiff -- the Hearing Board
found in his favor.
These facts simply did not persuade the
board on the ultimate question of his culpability on the
charges before it.
With respect to rights to counsel and to crossexamination, the First Circuit’s 25-year-old decision in
Gorman declined to find either of these elements essential
to due process in the context of school discipline hearings.
Gorman, 837 F.2d at 16.
“[T]he weight of authority is
against representation by counsel at disciplinary hearings,
unless the student is also facing criminal charges stemming
from the incident in question.”
Id. (stating further that
for school disciplinary processes, “the right to unlimited
cross-examination has not been deemed an essential
requirement of due process”); cf. Gabrilowitz v. Newman, 582
F.2d 100, 106 (1st Cir. 1978) (recognizing a right to the
presence of counsel at a school disciplinary hearing where
there are parallel criminal proceedings, but limiting the
role of counsel to “safeguard [student’s] rights at the
criminal proceeding, not to affect the outcome of the
Plaintiff’s most compelling argument is his objection
to the length of time -- seven months -- between the first
Notice of Charge and the Hearing Board proceeding.
argues that this delay violated his right to be heard at a
In addition, he asserts that he was denied
an expedited hearing for his initial interim suspension.
See Gomes v. Univ. of Maine Sys., 365 F. Supp. 2d 6, 21 (D.
Me. 2005) (stating that tight deadlines are usually
associated with student disciplinary hearings from complaint
Even if the seven-month delay between the first Notice
of Charge and the hearing was not unconstitutional,
Plaintiff argues, the fact that his hearing for his June 17,
2013, suspension did not occur for five months is a
violation of his due process rights.
The delay meant the
2013-14 CSC governed Plaintiff’s hearing, instead of the
2012-13 CSC, which provided that charged students could
cross-examine complaining witness directly; it led to the
economic consequence of Plaintiff suffering a lost semester;
it caused Plaintiff to be unable to attend his disciplinary
hearing in person due to his employment obligations.
The seven-month delay is a matter of concern.
true that a university tends, to some extent, to go into
“sleep mode” over the summer.
But due process is a twelve-
If the University wishes to avoid a risk
of a due process violation, not to mention a violation of
its own CSC, it obviously needs to establish a mechanism
that allows a prompt response to complaints of this sort
over the summer months.
While the delay here was certainly regrettable, and
should be avoided in future, it did not, in the context of
this case, constitute a deprivation of Plaintiff’s due
First, and most importantly, the delay
played no significant part in affecting the outcome of the
Hearing Board proceeding.
Cf. Furey, 730 F. Supp. 2d at 394
(discussing due process claim analysis as requiring a
plaintiff “to show that additional procedural safeguards
would have led to a different result”).
It is true that the earlier version of the CSC,
applicable over the summer, permitted cross examination of a
complaining party, but the Court of Appeals has held that
this “is not an essential part of a constitutionally
Gorman, 837 F.2d at 16.
scheduling of the hearing was not the cause of Plaintiff’s
He selected the hearing date knowing he would be
In the end, the bulk of the evidence in this case was
Plaintiff admitted he forcibly pinned Gibney
down; her injuries were confirmed by photographs.
that Plaintiff utterly ignored the repeated no-contact
orders is also undisputed.
The decision of the panel of
Plaintiff’s peers was thoughtful and probing, accepting a
number of Plaintiff’s arguments.
The Hearing Board
recognized that some fault existed on both sides, but
plausibly found that Plaintiff’s behavior was
disproportionate, while also declining to find him
responsible for the most serious charges.
decision accepted Plaintiff’s argument that the contacts
with Gibney were “consensual,” and declined to find
Plaintiff guilty of endangering or harassment.
that Plaintiff flouted the University’s orders is beyond
The sanction of expulsion, while severe, was fully
supported by the largely uncontested record.
majority of students manage their college careers with no
Plaintiff had admitted to two
serious incidents of violent behavior, which had resulted in
sanctions, prior to the Barcelona incident.
While the third
disciplinary proceeding was pending, he defied the
University’s efforts to keep Gibney and him apart, even for
a limited period of time.
Defendant Vaillancourt reasonably
determined that, after two prior, lighter sanctions -- which
did not improve Plaintiff’s behavior -- it was necessary and
Plaintiff’s reliance on Doe v. University of Notre
Dame, No. 17-cv-298, 2017 WL 1836939 (N.D. Ind. May 8,
2017), is misplaced. The decision in that case addressed a
motion for a preliminary injunction permitting the plaintiff
to sit for his final exams, not a motion for summary
judgment on the merits.
appropriate to exclude him from the University community.
The charge that bias infected the process holds no
No evidence suggests that Berger became so
personally inflamed against Plaintiff that she could not
treat him fairly.
As for Defendant Gelaye, Plaintiff has
little to offer in support of his charge of bias beyond
disagreement with the outcome of the hearing.
the intra-University communications following the receipt of
Plaintiff’s father’s email offer support to any claim of
Plaintiff’s assertion that Defendants were driven by
a pecuniary interest in expelling Plaintiff to avoid paying
damages for Plaintiff’s previous (allegedly
unconstitutional) interim suspension is supported by nothing
but unvarnished conjecture.
A claim of bias must be
supported by more than speculation.
Gorman, 837 F.2d at 15.
Plaintiff’s criticism of the UAB process is similarly
The fact that Plaintiff’s appeal was promptly
rejected proves nothing.
Even if the appeal process was
flawed (and no evidence suggests it was) it is well
established “that a student has no constitutional right to
review or appeal after a disciplinary hearing which
satisfied the essential requirements of due process.”
Gomes, 365 F. Supp. 2d at 33.
In sum, the process was adequate.
Its flaws, to the
extent they existed, did not affect the substantive outcome.
See Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574
F.3d 214, 223 (3d Cir. 2009) (concluding that “any
additional or substitute safeguards provided to [plaintiff]
would have had no probable value”).
While Plaintiff’s interests deserved protection here,
and were protected, it is important to recognize that
Defendants had a significant interest as well: the
maintenance of a safe learning environment for students.
See Goss, 419 U.S. at 580 (“Some modicum of discipline and
order is essential if the educational function is to be
performed.”); Gorman, 837 F.3d at 13 (discussing “the
interest of the school administration to dismiss or expel
students for the general benefit of the institution”);
Furey, 730 F. Supp. 2d at 393 (recognizing that a school has
a “governmental interest ... to maintain order and
discipline without prohibitive costs and disruption”).
These competing interests both deserve recognition.
The First Circuit has recognized that “that the undue
judicialization of an administrative hearing, particularly
in an academic environment, may result in an improper
allocation of resources, and prove counter-productive.”
Gorman, 873 F.2d at 16.
Here, as in other cases, while “the
University’s disciplinary process was not ideal and could
have been better ... it was fundamentally fair and accorded
the Plaintiffs the essential elements of due process.”
Gomes, 365 F. Supp. 2d at 10.
In the particular, complex factual landscape presented
by this case, the balance of competing interests was struck
No violation of due process occurred.24
Title IX Claim
The claim under the Fourteenth Amendment for
violation of equal protection based on the University’s
failure to pursue charges against Gibney is specious. Even
assuming the University made a practice of initiating
charges independently, it can hardly be faulted for
declining to do so when the alleged victim himself,
Plaintiff, repeatedly declined to file a charge against his
supposed attacker. Moreover, for the reasons laid out below
in the discussion of Title IX, no sufficient evidence of
gender-based discrimination exists on the record.
The First Circuit has not directly addressed the
application of Title IX to university disciplinary
However, the Second Circuit’s opinion in Yusuf
v. Vassar College, 35 F.3d 709 (2d Cir. 1994), provides a
helpful framework for approaching the issue.
that a claim of a Title IX violation in a disciplinary
proceeding be evaluated under an “erroneous outcome” or a
“selective enforcement” analysis.
Bleiler v. Coll. of Holy
Cross, No. 11-11541, 2013 WL 4714340, at *5 (D. Mass. Aug.
26, 2013) (Casper, J.) (citing Yusuf, 35 F.3d at 715-16).
Plaintiffs who claim an erroneous outcome must first
offer evidence “sufficient to cast some articulable doubt on
the accuracy of the outcome of the disciplinary proceeding.”
Yusuf, 35 F.3d at 715.
Such doubt may be shown by pointing
to evidentiary weaknesses undermining the charges, such as a
witness’s motive to lie, or particular procedural flaws that
affected the proof.
Where a plaintiff can point to
sufficient evidence to support a possible error in the
disciplinary proceeding, he or she must then clear a second
hurdle by offering proof of “particular circumstances
suggesting that gender bias was a motivating factor behind
the erroneous finding.”
The record in this case is insufficient to support
Plaintiff’s case on either element.
First, the evidence of
an error by the Hearing Board is unpersuasive.
findings that Plaintiff violated the no-contact orders are
Plaintiff admits he violated the
order egregiously but offers the patently inadequate
justification that Gibney “consented” to the violations.
does contest the finding that he was predominantly
responsible for the April 2013 incident of assault, arguing
that he was acting in self defense.
But the Hearing Board’s
contrary conclusion was supported by substantial evidence
and involved a credibility determination it was in the best
position to make.
Even if the Hearing Board erred, the record is entirely
devoid of proof demonstrating that gender bias in any way
drove the Board’s mistake.
Evidence in this category, as
Yusef notes, may come in the form of “statements by members
of the disciplinary tribunal, statements by pertinent
university officials, or patterns of decision-making”
showing gender bias.
Apart from Plaintiff’s unhelpful
expert offering, which is discussed below, no such proof
No Defendant, no Hearing Board member, no one
connected in any way with the charges against Plaintiff or
with the sanction ultimately imposed on him, exhibited a
shred of evidence in the form of a statement or anything
else that suggested that gender-based bias played any part
in the disciplinary process.
The “selective enforcement” argument fares no better.
To prove this, plaintiffs must point to evidence that,
“regardless of the student’s guilt or innocence, the
severity of the penalty and/or the decision to initiate the
proceeding was affected by the student’s gender.”
Here, Plaintiff must rely entirely on his expert offering,
which found that data regarding charges and sanctions for
assaultive behavior over several years at the University
appeared to be “trending in a certain direction.”
phrase appears to pick up on similar language used by the
Second Circuit in Yusuf.
That case, however, addressed a
motion to dismiss, where the bar is much lower than it is
At this stage, the evidence in the record must be
sufficient to convince a reasonable factfinder that an act
of selective enforcement, or an especially severe sanction,
derived from gender bias.
A “trending” pattern will not do.
As the expert report itself recognized, while the data
demonstrated a possible difference in outcomes for males
versus females charged with assault, the expert could not
determine the reason for it.
133, Attach. 93.)
(Weisburg Dep. 83-84, Dkt. No.
He properly conceded that a mere
differential was not proof of bias or discrimination,
stating “I’m not saying that there is proof here of
discrimination, or even bias in sort of a colloquial sense.”
(Id. at 83:15-17.)
The comparator offered by Plaintiff involving the two
female students found guilty of assault but not expelled
lacks sufficient detail, such as the discipline histories of
the female students or the severity of the incidents, to
permit any helpful conclusion about disparate treatment.25
It is worth noting that, on Plaintiff’s first trip
through Defendants’ discipline process for a charge of
physically assaulting another student, Plaintiff was not
expelled, just like the female students he now highlights.
In the end it is quite possible that the “trending” observed
by Plaintiff’s expert toward more charges and more serious
discipline imposed on males who committed assaults could
reflect the fact that male assaults on females are simply
more prevalent and more severe.
Certainly the expert’s
analysis does nothing to undercut this explanation.
A separate line of cases recognizes liability under
Title IX where schools have exhibited a “deliberate
indifference” to “severe, pervasive, and objectively
offensive” sexual harassment.
Porto v. Town of Tewksbury,
488 F.3d 67, 72 (1st Cir. 2007) (examining the Supreme
Court’s holding in Davis ex rel. LaShonda D. v. Monroe
County Board of Education, 526 U.S. 629 (1999)).
deliberate indifference “must, at a minimum, cause
[students] to undergo harassment or make them liable or
vulnerable to it.”
Id. (internal quotations omitted;
alteration in original).
The harassment “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.”
(internal quotations omitted).
Here, Plaintiff’s only evidence of any severe or
pervasive discriminatory environment is that the Defendants
were deliberately indifferent to alleged violence
perpetrated against him by Gibney.
As an initial matter, it
is hard to fault the University for not pursuing charges
against Gibney when Plaintiff himself declined to do so.
More importantly, even if Plaintiff’s characterization of
Gibney’s behavior were believed, the fact that the
University took no action in response to this one incident
would hardly be sufficient to demonstrate the existence of a
pervasive discriminatory environment.
The pattern of
conduct here, even accepting Plaintiff’s version of it
entirely, in no way approximated the sort of lengthy course
of brutality described in the Supreme Court’s LaShonda D.
Even with the court accepting Plaintiff’s claim
that he declined to pursue a charge against Gibney because
Defendants indirectly discouraged him from doing so, this
evidentiary insufficiency is fatal to any claim of a
pervasive environment of harassment.
Plaintiff’s contention that his violation of the nocontact order should have been disregarded because his
actions were “consensual” or “welcome” and because Gibney
violated the order too will not support a claim of
discrimination. Plaintiff, not Gibney, was charged with
Plaintiff, not Gibney, was given three written
warnings to stay away from Gibney -- warnings that obviously
contained no exception for “consensual” contact.
oral reminder to Gibney that she should also stay away from
Plaintiff offers no parallel to Plaintiff’s situation.
fact that she for some time disregarded Berger’s directive
and was not disciplined cannot be viewed as constituting
evidence of gender bias given their different positions.
In sum, the record here will not support any claim for
a violation of Title IX.
For the foregoing reasons, Defendants’ Motion for
Summary Judgment (Dkt. No. 121) is hereby ALLOWED and
Plaintiff’s cross-motion (Dkt. No. 118) is hereby DENIED.
This case may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U.S. District Court
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