228 F. Supp. 3d 154
D. Mass.2017Background
- John Doe, a male former student at Western New England University (WNEU), was suspended for two years after a November 2015 Conduct Review Board (CRB) hearing based on a September 26–27, 2014 sexual encounter with a female student (Loe).
- The CRB found Loe’s version (that Doe said "now you have to finish me off" and placed her hand on his penis) more credible than Doe’s (that he asked "could you at least finish me off?") and relied on WNEU’s Title IX policy language to find nonconsensual/coerced conduct.
- The Title IX policy invoked by the CRB (implemented Nov. 2014) contained a broader consent/coercion standard (“anything but a clear, knowing and voluntary consent is a ‘no’”) than the 2014–2015 Student Handbook provisions that governed conduct at the time of the encounter.
- Doe sued WNEU and several employees alleging breach of contract, breach of the covenant of good faith and fair dealing, Title IX violation, IIED, and other claims; Defendants moved to dismiss most counts.
- Magistrate Judge Robertson recommended dismissal of most counts but denied dismissal as to parts of Counts I and II (retroactive application and notice theories) and Count XIII (declaratory relief); the district judge adopted that Report and Recommendation on de novo review and allowed the motion to dismiss in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WNEU breached the student-university contract by retroactively applying the Title IX policy and disciplining Doe under standards not in effect at the time of the conduct | Doe: CRB applied Title IX policy definitions (broader coercion/consent standard) that were implemented after the encounter, so he lacked notice and was disciplined under a rule not in effect | WNEU: Both Handbook and Title IX policy prohibit coerced sex; Title IX simply clarified definitions and did not change prohibitions | Court: Denied dismissal as to breach-of-contract claim to the extent Doe alleges retroactive application and lack of notice — plausible claim survives dismissal |
| Whether breach of the implied covenant of good faith and fair dealing survives | Doe: Retroactive application and inadequate notice breached the covenant and reasonable expectations | WNEU: Procedures and handbook terms were followed; no bad-faith performance alleged beyond retroactive-application claim | Court: Denied dismissal only for the same limited theory (retroactive application/notice); other implied-covenant claims dismissed |
| Whether Title IX claim pleaded gender-bias motive (erroneous-outcome theory) | Doe: Proceedings were flawed (e.g., retroactive policy application, investigator conduct), producing an erroneous outcome motivated by gender bias against males | WNEU: No particularized facts or statements showing gender bias; process problems do not alone show sex motivation | Court: Dismissed Title IX count — plaintiff pleaded erroneous outcome but failed to plead particularized facts showing gender was a motivating factor |
| Whether IIED and basic-fairness tort claims survive | Doe: University actors’ conduct caused severe emotional distress and breached basic fairness | WNEU: Process, while imperfect, was not extreme/outrageous; procedural protections were provided | Court: Dismissed IIED and common-law basic-fairness claims for failure to allege extreme, outrageous conduct or arbitrariness/bad faith |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for complaints)
- Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994) (framework for Title IX erroneous-outcome and selective-enforcement claims)
- Cloud v. Trustees of Boston Univ., 720 F.2d 721 (1st Cir. 1983) (student–university relationship is contractual and review of disciplinary fairness)
- Schaer v. Brandeis Univ., 432 Mass. 474 (Mass. 2000) (universities need not provide criminal due process; contract-based reasonable expectations)
- Doe v. Brandeis Univ., 177 F. Supp. 3d 561 (D. Mass. 2016) (comparison of procedures and fairness in campus sexual-misconduct adjudications)
- Doe v. Brown Univ., 166 F. Supp. 3d 177 (D.R.I. 2016) (applying Yusuf framework; pleading requirements for Title IX and contract claims)
- Agis v. Howard Johnson Co., 371 Mass. 140 (Mass. 1976) (elements for IIED in Massachusetts)