MEMORANDUM AND ORDER
Before the Court is a motion to dismiss (ECF No. 10) filed by Defendant Brown University (“Brown”). Plaintiff John Doe (“John” or “Doe”) filed an Opposition (ECF No. 15) and Brown filed a Reply (ECF No. 17). The parties also filed subsequent letters to the Court concerning supplemental authority (ECF Nos. 18-21). After careful consideration, the Court hereby GRANTS IN PART and DENIES IN PART Brown’s motion for the reasons that follow.
1. Background
This case concerns an issue that has been the subject of increasing attention and controversy, particularly in academia, and which has garnered much recent media and scholarly commentary:
This wave of litigation arises in the wake of the 2011 “Dear Colleague Letter,” promulgated by the U.S. Department of Education’s Office for Civil Rights (“OCR”), which instructs that a university must “promptly investigate” any allegation of sexual harassment or assault when it “knows, or reasonably should know, about possible harassment” of a student, regardless of whether the harassed student actually makes a complaint. Russlynn Ali, Dear Colleague Letter, U.S. Dept. of Educ. at 4 (Apr. 4, 2011), available at http://www2.ed. gov/about/offices/list/oer/letters/colleague-201104.pdf. The Dear Colleague Letter further requires universities to employ the “preponderance of the evidence standard (he., it is more likely than not that sexual harassment or violence occurred),” reasoning that “[t]he ‘clear and convincing’ standard (he., it is highly probable or reasonably certain that the sexual harassment or violence occurred) ... [is] ‘inconsistent with the standard of proof established for violations of ... civil rights laws.” Id. at 11. Many of the recent cases, including this one, allege that the pressure on universities from the OCR has caused a backlash against male students accused of sexual assault. The basis for this contention is that, while the OCR does not have the authority to “require” universities to take specific actions, it holds the specter of loss of federal funds as a sword over the universities’ heads in the event it were to find that the university failed to comply with Title IX.
In this action, Doe’s version of the events is as follows.
On October 17, Jane reported that she was sexually assaulted by John and was interviewed by Brown Department of Public Safety Detective Jeanne Peck, who wrote a report (“Oct. 17 Public Safety Report”). On October 18, Jane filed a formal complaint concerning the events on the evening of October 11 (“Oct. 18 Complaint”). According to John, this complaint contains numerous discrepancies with the Oct. 17 Public Safety Report, including that the Oct. 18 Complaint admits that Jane told John she “liked” him touching her and never told him to stop. (Id. ¶¶ 34-35.) That evening, John received a phone call from Dean Castillo. She informed him that Brown had issued a no-contact order against him with respect to Jane based on an allegation of sexual misconduct against him. Dean Castillo also advised John that he could not leave his dorm room until he met with her and Maria E. Suarez, the Associate Dean and Director of Student Support Services, the next morning. (Id. ¶ 20.) At that meeting, Deans Castillo and Suarez informed John that Jane had made a “serious allegation of sexual misconduct” supported by “evidence of bruising.” They then informed him that Margaret Kla-wunn, the University’s Vice President of Student Affairs, who was not present at the meeting, had ordered his immediate
On October 20, 2014, Brown sent John a notice of the allegations against him (Ex. C to Compl., ECF Nos. 1-3, 1-9 (redacted)) and “A Guide to the Investigation Process” (Ex. D to Compl., ECF No. 1-4). (Compl. ¶¶ 30-32, ECF No. 1.) John claims that he asked Associate Dean of Student Life and Director of Student Conduct Yolanda Castillo for specific information about Brown’s process, including a clear explanation of the steps Brown took from the time it learned of Jane’s allegations to its first contact with John on October 18, 2014; however, Dean Castillo’s general responses did not answer John’s specific questions. (Id. ¶ 33.) On October 21, John received a copy of the Oct. 17 Public Safety Report and the Oct. 18 Complaint. (Id. ¶ 34.) On October 28, he submitted to Dean Castillo his personal written statement, a list of five witnesses and eight Facebook photographs of Jane Doe taken the night after the incident. John claims that the photos contradicted Jane’s contention that her neck and lips had been bruised by John. (Id. ¶37.) Brown did not contact any of John’s witnesses until after he had been formally charged, despite assuring John that it would do so. (Id. ¶ 38-39.)
On November 5, 2014, Brown sent John a letter (Ex. E to Compl., ECF Nos. 1-5, 1-10 (redacted)) notifying him that he was formally charged with the four Code violations set forth in the Notice of Allegations, and that a Student Conduct Board would hear the charges on November 14, 2014 at 9:00 a.m. (Compl. ¶ 41, ECF No. 1.) John requested a copy of certain evidence, including text messages, that were not in the inventory of evidence he had been provided. Brown failed to respond. (Id. ¶ 45.) Due to a personal family medical issue, John requested a two-week continuance so that he could sufficiently focus his time on preparing his defense of the charges. Instead, Dean Castillo granted a one-week continuance and rescheduled the Hearing to November 21, 2014. When John subsequently learned his parents could not attend the November 21 Hearing due to the persistence of the family medical issue, he renewed his request for a second week of continuance. Brown denied the request a second time. (Id. ¶ 46.) Around this same time, Brown announced that it anticipated issuing an Interim Report from a Sexual Assault Task Force that December. (Id. ¶ 47.)
At 5:17 p.m. on November 17, Brown provided John a package of 80 pages of evidence and procedural guidelines for the hearing. The package included 23 additional unsigned, unsworn statements; an addendum by Jane and another witness, K.R.; text messages between John and K.R. from October 12, 2014; and Jane’s medical records from Brown Health Services from her visit on October 15, 2014. (Id. ¶49.) When reviewing the packet, John learned that Brown had redacted a portion of one of his witnesses’ statements, in which the witness described her prior physical experience with John, which he claims bolstered the credibility of his defense. When John asked for an explanation for this redaction, he was advised that Dean Castillo redacts material that she deems irrelevant pursuant to “University policy.” (Id. ¶ 53.) Dean Castillo also excluded the majority of John’s character witness letters from the record on the
On November 20 — the day before the hearing — Brown informed John that it was appointing Senior Associate Dean of Residential and Dining Services Richard Bova as a substitute member of the hearing panel. John was thus unable to exercise his right under the Brown Student Code of Conduct (“Code”) to investigate the last-minute panelist for possible conflicts of interest. According to John, had he had timely notice, he would have uncovered that Dean Bova was involved in a prior sexual assault case at Brown that was allegedly mishandled and resulted in a lawsuit, McCormick v. Dresdale.
Brown went forward with the hearing on November 21, 2014. John alleges a number of procedural deficiencies in the hearing process including:
• His faculty advisor’s cross-examination of Jane was ineffective, in part because the advisor refused to make use of an extensive outline from John that detailed the multiple inconsistencies in Jane’s reports. (Id. ¶ 69.)
• Jane’s advisor requested (without stating any justifying reason) that John be stopped from speaking only a few seconds into his mid-point testimony, and the Panel granted this request. John had •given a very limited opening statement, anticipating that he would present the majority of his arguments in the midpoint statement, after Jane had testified. As a result, John was prevented from presenting many of his arguments. (Id. ¶ 74.)
On December 2, 2014, John was found “responsible” for all four Charges, namely: (i) Actions resulting in physical harm to others; (ii) Sexual Misconduct: non-consensual sexual contact; (in) Sexual Misconduct: non-consensual sexual penetration;
II. Discussion
It is worth stating at the outset that ensuring allegations of sexual assault on college campuses are taken seriously is of critical importance, and there is no doubt that universities have an exceedingly difficult task in handling these issues. Equally important is the fact that claims of “sexual misconduct” may in some cases, like this
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.... The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ”
Id. at 678,
The First Circuit has instructed that “[t]he plausibility inquiry necessitates a two-step pavane.” Id. (citing Rodríguez-Reyes v. Molina-Rodríguez,
A. Title IX
Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from 'participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX “is enforceable through an implied private right of action ... for monetary damages as well as injunctive relief.” Yusuf v. Vassar Coll.,
1. Erroneous Outcome
In Yusuf, the Second Circuit developed a framework for cases attacking university disciplinary proceedings on the ground of gender bias, which “fall generally within two categories” — “erroneous outcome” and “selective enforcement.”
In the first category, “erroneous outcome” cases, “the claim is that the plaintiff was innocent and wrongly found to have committed an offense.” Yusuf,
In the second category, “selective enforcement” cases, the “claim asserts 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.” Id. Here, Doe has pled a Title IX claim based on an erroneous outcome (Compl. ¶¶ 106-39, ECF No. 1), but not selective enforcement.
On the first prong of Yusuf, the Court finds that Doe has pled “facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding.” Yusuf,
In the wake of Twombly and Iqbal, district courts have struggled to discern the line between “plausibility” and “sheer possibility,” and this recent wave of college sexual assault claims has been equally vexatious. In particular, because Yusuf was decided before Twombly and Iqbal, courts lack guidance on what qualifies as “particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.” Yusuf,
Similar allegations, if based on race in employment decisions, would more than suffice in a Title VII case, and we believe they easily meet the requirements of Title IX.
The allegation that males invariably lose when charged with sexual harassment at Vassar provides a verifiable causal connection similar to the use of statistical evidence in an employment case. See, e.g., Hollander v. American Cyanamid Co.,895 F.2d 80 , 84 (2d Cir.1990). We need not pause at the pleading stage of the proceedings to consider issues regarding what statistical sample would be significant or what degree of consistency in outcome would constitute a relevant pattern.
Yusuf,
For example, the court in Univ. of Massachusetts-Amherst granted the defendant’s motion to dismiss because “Plaintiff has not cited examples of any comments that targeted him based on his gender — as opposed to his status as a student accused of sexual assault — or any conduct suggestive of gender bias.”
the alleged treatment “could equally have been” — and -more plausibly was— “prompted by lawful, independent goals,” such as a desire (enhanced, perhaps, by the fear of negative publicity or Title IX liability to the victims of sexual assault) to take allegations of rape on campus seriously and to treat complainants with a high degree of sensitivity.
Id. (quoting Twombly,
On the other side of the spectrum, a court in the District of Maryland recently denied a motion to dismiss in a case much like this one, finding that “[o]n balance, Plaintiff has alleged a facially plausible claim of erroneohs outcome sex discrimination in violation of Title IX.” Doe v. Salisbury Univ.,
Likewise, in Wells v. Xavier, the plaintiff alleged that “Defendants were reacting against him, as a male, to demonstrate to the OCR that Defendants would take action, as they had failed to in the past, against males accused of sexual assault.”
taking all inferences in favor of Plaintiff, las it is required to do in its consideration of a motion to dismiss, Plaintiffs erroneous outcome theory survives Defendants’ challenge. Plaintiffs Complaint ... recounts Defendants having rushed to judgment, having failed to train UCB members, having ignored the Prosecutor, having denied Plaintiff counsel, and having denied Plaintiff witnesses. These actions came against Plaintiff, he contends, because he was a male accused of sexual assault.
Id. The court in Columbia criticized Wells, explaining that while it “accurately recited the pleading standards set forth in Iqbal and Twombly, see
[T]he Wells Court appears to have accepted as sufficient the mere fact that the plaintiff “contend[ed]” that the defendant’s actions “came against [him] ... because he was a male accused of sexual assault.” ... [H]owever, that sort of subjective belief, devoid of factual support, is plainly insufficient after Iqbal and Twombly.
Id. (quoting Wells,
The court in Doe v. Washington and Lee Univ. struck somewhat of a middle ground. No. 6:14-CV-00052,
One particular challenge in these types of cases is that the best information for discerning whether alleged discrimination was based on the plaintiffs gender as opposed to his status as an accused student is generally in the possession of the defendant: namely, what are the overall outcomes of such cases and, more specifically, how have cases been handled in which the accused student is female and/or the alleged victim is male? The court in Columbia recognized this:
[T]he Court does not mean to suggest that, in order to survive a motion to dismiss, a male plaintiff in Plaintiffs position must necessarily be able to allege that a female student charged with sexual assault was treated differently. Given the allegedly higher incidence of male-on-female sexual assaults (and sexual assault complaints) on campus (see Am.Compl. ¶ 138), that could pose an impossible pleading burden in some cases.
Putting aside for the moment where and how a plaintiff would obtain the referenced data and analysis given the nonpublic nature of the underlying information, the type of evidence called for by the Columbia court is more akin to what would be required at summary judgment. Indeed, the quoted Haley decision denied the defendant’s'motion to dismiss the plaintiffs Title IX claim; it instead found there were no genuine issues of material fact and granted summary judgment for Defendants after considering the evidence. See Haley,
Likewise, it strikes the Court that the Columbia court’s justification that “the alleged treatment ‘could equally have been’ — and more plausibly was — ‘prompted by lawful, independent goals,’ ”
In sum, the Court is not convinced as Brown would have it that the type of allegation found to be sufficient in Yusuf—that male students accused of sexual assault are “invariably found guilty, regardless of the evidence, or lack thereof,”
And while it may not contain a smoking gun of the type discovered by the plaintiff in Washington and Lee, Plaintiffs Complaint in this case does include specific allegations related to gender bias as opposed to bias against students accused of sexual assault. Specifically, the Complaint includes the following allegations concerning Brown’s gender bias:
• Upon information and belief, one former Brown employee stated that Brown treats male students as “guilty, until proven innocent,” that Brown has “loaded the dice against the boys” and that the fact-finding process in cases of sexual misconduct at Brown operates under the assumption that it’s always the “boy’s fault.” (Compl. ¶ 98, ECF No. 1.)
• Upon information and belief, one Brown professor stated that “there is gender bias that is overwhelming at Brown” when referencing sexual misconduct cases at Brown. (Id. ¶ 100.)
• Upon information and belief, in December 2014, a Brown professor held a debate to discuss rape issues on campus. During the debate, one female debater remarked that males are “bad” and females are “victims” when it comes to sexual misconduct. The Brown professor stated that these remarks are consonant with the culture of thinking on Brown’s campus. (Id. ¶ 101.)
• Upon information and belief, Brown’s handing [sic] of John Doe’s case fits within a pattern of showing gender bias toward female students in cases of sexual misconduct, including its conduct in: (i) McCormick v. Dresdale, supra; (ii) a sexual misconduct ease against former Brown student Adam Lack (Class of 1997); and (iii) other instances documented in the Brown Daily Herald (April 29, 2010) and the Brown Spectator (May 26, 2012). (Id. ¶ 123.)
Once again, this is a motion to dismiss, not summary judgment; the question is not whether these examples would be admissible evidence or sufficient to get to a jury, but rather whether these facts, taken as true, are enough to state a plausible claim. Reading these factual allegations in conjunction with the Complaint as “as a whole,” which alleges numerous and significant procedural flaws in Plaintiffs disciplinary proceeding, the Court finds that Plaintiff has “create[d] a reasonable expectation that discovery may yield evidence of the [defendant’s] allegedly tortious conduct.”
The fact that these allegations are pled “upon information and belief’ does not, as Brown suggests, make them improper under Twombly and Iqbal. (See Def.’s Mot. 13-14, ECF No. 10-1.) This manner of pleading “is a permissible way to indicate a factual connection that a plaintiff reasonably believes is true but for which the plaintiff may need discovery to gather and confirm its evidentiary basis.” Salisbury,
Plaintiffs’ erroneous outcome allegations would be insufficient if they had simply stated something akin to: “Upon information and belief, procedural defects were motivated by gender bias.” However, in this case Plaintiffs have pleaded specific factual allegations .... The fact that they are pleaded upon information and belief is of no moment because the alleged facts are peculiarly within the possession or control of SU Defendants.
Brown also contends that Doe’s reliance on the McCormick litigation and the Adam Lack case is misplaced. (Def.’s Mot. 11-13, ECF No. 10-1.) As support, Brown cites to Mallory v. Ohio Univ., which found that “one case [filed six years earlier] by an individual who was subjectively dissatisfied with a result does not constitute a ‘pattern of decision-making,’ referred to in Yusuf as a basis for finding bias.”
Accordingly, the Court denies Brown’s motion with respect to Plaintiffs Erroneous Outcome Claim under Title IX (Count I).
2. Deliberate Indifference
To establish deliberate indifference, “the recipient’s response to the harassment or lack thereof [must be] clearly unreasonable in light of the known circumstances.” Doe v. Univ. of the South,
Moreover, as Brown notes in its briefing, deliberate indifference claims are typically brought in cases where a school has ignored a victim’s complaint of sexual harassment or assault. (Def.’s Mot. 25-26, ECF No. 10-1.) Some courts have questioned its application to a case of a disciplined student. See, e.g., Marshall v. Ohio Univ.,
Accordingly, the Court grants Brown’s motion with respect to Plaintiffs Deliberate Indifference Claim under Title IX (Count II).
B. Claims under Rhode Island State Law
1. Breach of Contract
Under Rhode Island law, “[a] student’s relationship to his university is based in contract.” Havlik v. Johnson & Wales Univ.,
Whether an expectation is reasonable often hinges on the specificity of the promises in the handbook: courts may not read terms into the contract. In Schaer v. Brandeis University, the Massachusetts Supreme Judicial Court considered a very similar case, and found that there was no breach of contract.
Likewise in Havlik, the First Circuit found that the plaintiffs allegation that the appeal officer had been “improperly influenced” by a crime alert concerning his case did not violate the Code’s requirement to conduct “further review” of a disciplinary decision. Havlik,
By contrast, in Dempsey v. Bucknell Univ., the court found that the plaintiffs stated a claim for breach of contract based on a student handbook. Civil Action No. 4:11-cv-1679,
Doe’s Complaint alleges six different categories of contract violations (Compl. ¶¶ 149-76), and Doe’s opposition identifies 11 different specific violations within these various categories. (See PL’s Opp’n 26-29, ECF No. 15.) The question is thus whether any of these allegations, if true, would constitute a violation of Doe’s reasonable expectations based on the Code.
Although many of these alleged violations do not pass the test, with respect to several of the identified breaches of Doe’s rights as an accused student, he has sufficiently stated a claim based on the language of the Code. Accordingly, the Court denies Brown’s motion to dismiss with respect to Doe’s allegations of “Breach of John Doe’s Student Rights and Responsibilities as the Accused Student” (Id. ¶¶ 162-70); and dismisses Doe’s allegations of “Breach of Covenant to Uphold Individual Integrity” (Compl. ¶¶ 149-52); “Breach of Covenant Not to Discriminate Against John Doe” (id. ¶¶ 153-55); “Breach of Covenant to Uphold its Alcohol Policy” (id. ¶¶ 156-58); “Breach of Covenant to Uphold its Misrepresentation Policy” (id. ¶¶ 159-61); and “Breach of Covenant to Provide Alternative Housing” (id. ¶¶ 171-76). For
(i) Doe first alleges that Brown failed to conduct a pre-charge investigation of Jane Doe’s complaint prior to directing Plaintiffs immediate removal from campus. (PL’s Opp’n 26, 28, ECF No. 15.) Doe alleges this to be a violation of the statement in Brown’s Code that “[s]tudents and student organizations charged with offenses” have the “right[ ] ... [t]o be assumed not responsible of any alleged violations unless she/he is so found through the appropriate student conduct hearing.” (Ex. A to Compl. at 7, ECF No. 1-1.) Brown counters that “[njowhere is there any such restriction imposed upon Brown regarding interim measures during an investigation and a disciplinary process. In fact, the OCR in its Dear Colleague letter specifically mandates that a university may invoke interim measures as part of its Title IX response to sexual harassment allegations.” (Def.’s Reply 15, ECF No. 17.) However, the Code also states that “[a]ll members of the Brown University Community are entitled to ... the right to attend, make use of or enjoy the facilities and functions of the University subject to prescribed rules.” (Ex. A to Compl. at 3, ECF No. 1-1.) The question here is not whether Brown was following the OCR’s guidance; it is whether Brown’s actions violated the reasonable expectations of a student based on its Code. The Court finds that, taking Doe’s allegations as true, Brown’s decision to ban him from campus prior to conducting an investigation states a plausible claim for a breach of the rights outlined in the Code to be assumed not responsible until proven otherwise, and to enjoy use of Brown’s facilities.
(ii) Doe next alleges that Brown failed to “limit the authority to order student separation from the University to five (5) officials—President, Dean of College, Dean of Graduate School, Dean of Medicine and Biological Sciences, and Senior Associate Dean for Student Life” when it “allow[ed] Dean Klawunn to order Plaintiffs immediate removal from campus.” (Pl.’s Opp’n 27-28, ECF No. 15; see Ex. A to Compl. at 9, ECF No. 1-1 (“For matters in which individuals pose a danger to themselves or the immediate well-being of the University community, the President, the Dean of the College, the Dean of the Graduate School, the Dean of Medicine and Biological Sciences, and the Senior Associate Dean for - Student Life have the authority to separate a student(s) from the University and to impose any additional conditions deemed necessary.”).) Brown notes that “Vice President Klawunn is the senior University officer with the ‘primary’ responsibility for ‘planning, setting policies and implementing programs that improve the campus environment for Brown’s students,’ ” that she “has oversight over fourteen departments at Brown, including the Office of Student Life,” and that she “acted within her authority to separate Plaintiff from Brown’s campus pending the completion of the disciplinary process.” (Def.’s Mot. 30-31, ECF No. 10-1.) That may all be true, but it does not change the fact that nowhere in the record before the Court has Klawunn been identified as the “Senior Associate Dean for Student Life,” or any of the other positions that the Code classifies as having the authority to separate a student from campus due to safety concerns. Therefore, Plaintiff has, at this stage, stated a plausible claim that an order from Klawunn separating him from campus violated his reasonable expectations under the Code.
(iii) Doe further alleges that Brown breached its contract by “failing to provide off-campus housing accommodations or otherwise offset his food and lodg
(iv) Doe next alleges that Brown “fail[ed] to support Plaintiff or respond to Plaintiff’s requests to identify the evidence relied upon to support the interim restriction, to view the text messages referenced by Jane Doe, or for additional time to respond to new evidence just 3 days before the hearing.” (Pl.’s Opp’n 28, ECF No. 15.) The “General Provisions for the Student Conduct Procedures” of the Code states that “the case administrator will respond to requests from respondents and complaining witnesses during the prehearing phases of the student conduct procedures.” (Ex. A to Compl. at 10, 16, ECF No. 1-1 (emphasis added).) The Court finds that, taken as true, these allegations state a breach of the Code. Brown chose to write its policy to state that the case administrator “will respond” to the respondent’s requests; now it must live with that promise.
' (v) Doe veers off course again with his allegation that Brown “failfed] to enforce the alcohol policy against Jane Doe, notwithstanding her admission to underage drinking, and only choosing to enforce the alcohol policy against Plaintiff.” (Pl.’s Opp’n 27-28, ECF No. 15.) Doe cites to the Code’s alcohol policy, but fails to cite to any promise that it will be uniformly enforced. Thus, he has failed to establish that this was a reasonable expectation based on Brown’s Code.
(vi) Doe’s allegation that Brown “fail[ed] to review evidence/witnesses offered by Plaintiff prior to making the determination to file the Charges” also fails. (Id.) The Investigation Guide states:
After the case administrator has collected information about the incident from the responding student, the complaining student (if there is one), and any witnesses, she/he will provide the case materials to the Senior Associate Dean for Student Life. The Senior Associate Dean for Student Life will use the materials to determine whether or not there is a reasonable basis to file student conduct charges and, if so, at what venue the matter should be heard.
(Ex. D to Compl. at 3, ECF No. 1-4.) Doe’s allegation — that Brown did not properly consider the evidence — does not state a violation of the Investigation Guide’s promise to collect evidence.
(vii) Doe’s next allegation is that “Brown failed to provide all evidence to Plaintiff at least seven (7) business days prior to hearing,” as supposedly required by the Code, is not sufficient. (PL’s Opp’n 27, 29, ECF No. 15.) As Brown notes, the Code provides that an initial file must be submitted seven days before the hearing, but further information can be allowed up to four days before, or even later than that
(viii) Doe next alleges that Brown failed to allow him “an opportunity to offer a relevant response” to the evidence against him, as required by the Code. (Pl.’s Opp’n 27, 29, ECF No. 15; see Ex. A to Compl. at 7, ECF No. 1-1.) Specifically, Doe contends that Brown:
improperly redacted] relevant information from Plaintiffs evidence, assembled] Plaintiffs text messages out of order and out of context, exclude[ed] the majority of Plaintiffs character witness statements that spoke to his credibility, disallow[ed] Plaintiff from making a full “midpoint” statement, in violation of the Opening and Questioning Time-line, and refus[ed] to consider the Face-book photos showing lack of any “bruising” on Jane Doe based on baseless privacy concerns.
(Pl.’s Opp’n 29, ECF No. 15.) Although the term “relevant” is vague and undefined, the Court finds that Plaintiff has — at the motion to dismiss stage — presented sufficient allegations to state a claim that he was prevented from presenting a “relevant” response. In particular, the fact that Plaintiff was prevented from making his “midpoint” statement may be a violation of the Code, depending on what the facts show.
(ix) Plaintiffs next allegation is similar: Brown failed to provide him with “a reasonable length of time to prepare a response to any charges.” (Id. at 27, 29; see Ex. A to Compl. at 7, ECF No. 1-1.) Again, “reasonable length of time” is vague, yet the Court finds that Plaintiffs allegation that he was given only four days to respond to 80 pages of evidence, including medical records, may be a breach of this term. It will be a question of fact for down the road whether a student would reasonably expect to be given more time to prepare a response based on the Code’s promise of a “reasonable length of time.”
(x) Doe next alleges a breach of the following Code provision:
Students and student organizations charged with offenses against the Code of Student Conduct are afforded the following rights in University proceedings:
To be given every opportunity to articulate relevant concerns and issues, express salient opinions, and offer evidence before the hearing body or officer. (Students have the right to prepare a written statement in matters that may result in separation from the University.)
(Ex. A to Compl. at 7, 16, ECF No. 1-1 (emphasis added).) Without question, Doe was not — according to his allegations — given “every opportunity” to participate in the disciplinary process. Once again, Brown chose to draft its Code to give students the right to “every opportunity” to “articulate relevant concerns” and “offer evidence”; now it must abide by that decision.
(xi) Finally, Doe alleges that Brown “fail[ed] to provide Plaintiff time to give 2 days’ prior notice to request that Dean Bova be disqualified for lack of impartiality.” (Pl.’s Opp’n 28, ECF No. 15.) The Code states:
Students and student organizations charged with offenses against the Code of Student Conduct are afforded the following rights in University proceedings:
To request that a hearing officer or member of a hearing body be disqualified on the grounds of personal bias.
The request will be made by 9:00 AM • no more than two (2) days after receiving the charge letter and the Request to Disqualify Form and will include an explanation as to why the member is unable to render an impartial decision in the case.
(Ex. A to Compl. at 7, 9, EOF No. 1-1.) This allegation is also sufficient to state a claim for breach of contract. Pursuant to the rules of the handbook, Doe had a right to request that the hearing officer be disqualified, and he had to make that request no more than two days before. By appointing Bova the day before, Doe was precluded from making a timely investigation and/or request to disqualify.
In sum, the Court finds that following allegations described on pages 27 to 29 of Plaintiffs Opposition (EOF No. 15) state a claim for breach of contract: (i), (ii), (iv), (viii), (ix), (x), and (xi); the remainder do not.
2.Breach of the Covenant of Good Faith and Fair Dealing
Rhode Island law states that “contracts contain an implied duty of good faith and fair dealing.” Havlik v. Johnson & Wales Univ.,
3.Promissory Estoppel
Both parties acknowledge that a promissory estoppel claim only stands in the absence of a contract. Here, there is no dispute that the student-university relationship is governed by contract, which includes the reasonable expectations of students based on the Code. Accordingly, the Court dismisses Plaintiffs promissory estoppel claim (Count Y).
4.Negligence
Doe argues that Brown breached its duty to him by failing to provide reasonable care in his disciplinary proceeding. However, as Brown notes in its briefing, Doe “has not pled any factual explanation how his negligence claim differs from his breach of contract claim.” (Def.’s Mot. 33, ECF No. 10-1.) If a contract claim and a tort claim “are based upon the same duty, the plaintiff cannot maintain the tort claim.” Ciccone v. Pitassi, C.A. No. PB 97-4180,
Doe relies heavily on a decision from the Eastern District of Tennessee that allowed a negligence claim to go forward based on a disciplinary proceeding. See Doe v. Univ. of South, No. 4:09-cv-62,
5. Declaratory Judgment
Brown argues that Doe’s claim for declaratory judgment should be dismissed because “[a]ll of Plaintiffs substantive claims are subject to dismissal” and “[t]he Federal Declaratory Judgment Act is procedural only and does not create an independent cause of action.” (Def.’s Mot. 34, ECF No. 10-1.) Brown is correct that the Declaratory Judgment Act does not create its own substantive cause of action; however, because the Court denies Brown’s motion with respect to a number of Doe’s claims, he continues to state a claim for declaratory relief.
6. Injunction
“[A] claim for injunctive relief is not a standalone cause of action.” Salisbury,
IV. Conclusion
For the foregoing reasons, Brown’s Motion to Dismiss is hereby GRANTED IN PART and DENIED IN PART. Specifically, the Court DENIES Brown’s Motion with respect to the following claims: Erroneous Outcome under Title IX (Count I); Breach of Contract (Count III), subject to the limitations outlined in this memorandum; Breach of the Covenant of Good Faith and Fair Dealing (Count IV); and Declaratory Judgment (Count VII). The Court GRANTS Brown’s motion in part and DISMISSES WITH PREJUDCE Plaintiffs claims for Deliberate Indifference under Title IX (Count II); Promissory Estoppel (Count V); Negligence (Count VI); and Injunctive Relief (Count VIII).
Notes
. See, e.g., Max Kutner, The Other Side of the College Sexual Assault Crisis, Newsweek (Dec. 10, 2015, 5:33 a.m.), http://www. newsweek. com/2015/12/18/other-side-sexual-assault-crisis-403285.html?rel=most_read2; Charles M. Sevilla, Campus Sexual Assault Allegations, Adjudications, and Title IX, The National Association of Criminal Defense Lawyers: Champion, Nov. 2015, at 16-20; 28 Members of the Harvard Law School Faculty, Opinion, Rethink Harvard's Sexual Harassment Policy, The Boston Globe (Oct. 15, 2014), https://www.bostonglobe.com/opinion/ 2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUu WMnqbM/story.html; Vanessa Grigoriadis, Meet the College Women Who Are Starting a Revolution Against Campus Sexual Assault, New York Magazine (Sept. 21, 2014, 9:00 p.m.), http://nymag.com/thecut/2014/09/ emma-sulkowicz-campus-sexual-assault-activism.html; Stephen Henrick, A Hostile Environment for Student Defendants: Title DC and Sexual Assault on College Campuses, 40 N. Ky. L. Rev. 49 (2013).
. See, e.g., Doe v. Salisbury Univ.,
. Because this is a motion to dismiss and the Court must “assume the truth of all well-pleaded facts and indulge all reasonable infer-enees therefrom,” Arruda v. Sears, Roebuck & Co.,
. McCormick v. Dresdale was a tort case brought in this Court by a Brown student accused of sexual assault, but it did not include claims under Title IX. The parties settled in December 2011. (C.A. No. 09-474, ECF No. 143.)
. Under Rhode Island law, non-consensual sexual penetration is considered first-degree sexual assault, which carries a minimum sentence of 10 years in prison, and up to life in prison. R.I. Gen. Laws. § 11-37-2; id. § 11-37-3.
. That said, the Court agrees with many of Brown's criticisms of Plaintiff’s Complaint. As Plaintiff's counsel admitted at oral argument, the Complaint is not lacking in “bluster.” Furthermore, many of the allegations ask the Court to draw inferences that are not reasonable. For example, the Court fails to see how
. In finding that Doe has failed to state a claim for breach of contract based on the fact that the alcohol policy was not enforced against Jane, the Court does not, at this stage, hold that evidence concerning Brown’s failure to uniformly enforce its alcohol policy is irrelevant to his Title IX claim.
. As noted above, the dismissal of Count VIII is without prejudice to Plaintiff's request for an injunction in his Prayer for Relief.