United States Court of Appeals For the First Circuit
No. 16-1954
JANE DOE,
Plaintiff, Appellant,
v.
BROWN UNIVERSITY, in Providence in the state of Rhode Island and Providence Plantations; MELISSA CLARK, individually and as an agent of BROWN; MARGARET KLAWUNN, individually and as an agent of BROWN; and CHRISTOPHER DENNIS, individually and as an agent of BROWN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Howard, Chief Judge, Lynch and Lipez, Circuit Judges.
Philip Byler, with whom Nesenoff & Miltenberg LLP and Samuel D. Zurier were on brief, for appellant. Thomas R. Bender, with whom Beverly E. Ledbetter and the Office of General Counsel, Brown University, were on brief, for appellees.
November 22, 2019 HOWARD, Chief Judge. Jane Doe1 brought suit against
Brown University ("Brown") and three of its employees, alleging a
number of contract and tort claims arising from Brown's sanctions
against her for her second violation of the University's Code of
Academic Conduct ("the Code"). The district court entered summary
judgment in Brown's favor, which Doe now appeals.2 We affirm.
I.
Because Doe appeals a grant of summary judgment, we
present the facts in the light most favorable to her, the non-
moving party. See Bellone v. Southwick-Tolland Reg'l Sch. Dist.,
748 F.3d 418, 420 (1st Cir. 2014). Doe studied at Brown as an
undergraduate from the fall semester of 2010 through her graduation
in the spring semester of 2014. In 2013 -- the fall semester of
Doe's senior year -- she enrolled in Public Health 320, a course
taught by Professor Melissa Clark, one of the defendants here.
Professor Clark's course included a two-part midterm examination
consisting of an in-class multiple-choice examination, as well as
1 The district court granted Doe's ex parte motion to file her complaint pseudonymously, and Doe remains anonymous at this stage, because the district court entered judgment against her without reaching the merits of her continued anonymity. See Doe v. Brown University, 209 F. Supp. 3d 460, 466 n.2 (D.R.I. 2016). No party has asked that this status be altered. 2 Doe does not appeal the district court's grant of summary judgment as to her claims directed against the defendants named in their individual capacities. Accordingly, the only remaining claims are against Brown and the remaining individual defendants in their alleged capacities as agents of Brown.
- 2 - a take-home exam that included four essay questions ("the take-
home" or "the exam"). While grading the take-home exams, a
teaching assistant noticed similarities between Doe's answer to
the exam's fourth question ("Question 4") and that of T.L., another
student in the class.3 The assistant alerted both Doe and Professor
Clark. Doe met with Professor Clark the next day, and, according
to Doe, she "readily admitted" in that meeting "that she and other
students, including T.L., had collaborated on the [e]xam." Doe
also explained to Professor Clark that "the majority of the
students in the class had worked in groups" on the exam, and that
this collaboration was in line with Professor Clark's "regular[]
encourage[ment of] such collaboration and group discussions in her
course."
A few days later, Doe received an email explaining that
she would need to meet with Christopher Dennis, the Deputy Dean of
the College (and another defendant in this case) about her exam.
At the meeting with Dean Dennis, Doe again acknowledged her
collaboration with T.L.
In December 2013, Brown notified Doe that it had assigned
her matter to the university's Committee on the Academic Code ("the
Committee") for a hearing. Before the hearing, Doe submitted a
written statement to the Committee in which she acknowledged that
3 The two answers are reproduced in the Appendix to this opinion.
- 3 - "after comparing my [take-home exam] with the other individual
[T.L.], there are similarities between the two for question #4."
Doe further explained that "it was late at night, and I was
suffering from fatigue . . . . I was struggling on coming up with
innovative ideas for [Question 4]. I used [T.L.'s] suggestions,
and when she was explaining them to me, . . . the thoughts of whose
were whose was blurred." Doe's statement concluded with a request
that the Committee "understand where I am coming from and forgive
me for my mistake."
At the hearing, Doe chose not to call any witnesses,
opting instead to admit to and to apologize for having relied on
T.L. in answering question #4. See Doe, 209 F. Supp. 3d at 474.
Neither Professor Clark nor T.L. appeared as witnesses against
Doe. Id.
The Committee concluded that "by making unauthorized use
of the work of another" on the exam, Doe violated Brown's Academic
Code. After considering that this was Doe's second violation of
the Code,4 the Committee assessed the following sanctions: (1) a
one-semester suspension, including termination of university
4 In 2012 -- the fall semester of Doe's junior year -- Doe admitted to plagiarizing portions of her final projects for two courses. As she did here, Doe submitted a statement to the Committee acknowledging and apologizing for her Code violations before her formal hearing took place. The Committee sanctioned her with transcript notations of "directed no credit" for both courses; those notations were removed in the fall of Doe's senior year.
- 4 - access and related privileges; (2) notations on her academic
transcript about the suspension stating "directed no credit in
Public Health 320," and "violation of the Academic Code"; (3)
parental notification; and (4) the denial of any future
institutional letter of support, or alternatively a discussion of
Doe's offense in all such letters.
Doe appealed the Committee's decision to defendant
Margaret Klawunn, Brown's Vice President for Campus Life and
Student Services, in January 2014. Ten days later -- one day after
the start of the spring semester -- Klawunn issued a decision
affirming the Committee's decision and sanctions. Doe then
transferred to Rhode Island College for her final semester. After
completing her remaining credits there, Doe timely graduated from
Brown with her class.
In June 2015, Doe filed a thirteen-count complaint
against Brown and the three individual defendants alleging various
tort and contract claims. The crux of Doe's theory underlying her
claims was that Brown's disciplinary process in her case was
deficient and biased when compared to the procedures prescribed
under the Academic Code, and further, that Brown had imposed overly
punitive sanctions for Doe's violation. The defendants filed a
motion to dismiss that included several attachments and the
district court, after giving Doe the opportunity to submit
additional documents and affidavits for consideration, converted
- 5 - the motion into one for summary judgment. See Fed. R. Civ. P.
12(d). Doe requested additional discovery. See Fed. R. Civ. P.
56(d).
On June 27, 2016, the district court entered a judgment
dismissing Doe's claim for unreasonable publicity to one's private
life and granting summary judgment to the defendants on all
remaining claims.5 Doe, 209 F. Supp. 3d at 479. The court also
denied Doe's request for additional discovery. Id. at 479 n.14.
This appeal followed.6
II.
A. Summary Judgment
We turn first to Doe's challenges to the district court's
entry of summary judgment with respect to her claim alleging breach
of contract, breach of the implied covenant of good faith and fair
dealing, promissory estoppel, negligence, and negligent
misrepresentation claims. We review the entry of summary judgment
de novo. Alicea v. Machete Music, 744 F.3d 773, 778 (1st Cir.
2014).
5 Prior to the district court's decision, Doe withdrew her claims for negligent infliction of emotional distress against all defendants. 6 Doe does not appeal the district court's grant of summary judgment as to her unreasonable publicity, intentional infliction of emotional distress, and tortious interference claims, all of which were directed against the individually named defendants.
- 6 - 1. Breach of Contract
Under Rhode Island law, the relationship between a
student and a private university is based in contract. See Gorman
v. St. Raphael Acad., 853 A.2d 28, 34 (R.I. 2004). The parties
agree that "[t]he relevant terms of the contractual relationship
between a student and a university typically include language found
in the university's student handbook." Havlik v. Johnson & Wales
Univ., 509 F.3d 25, 34 (1st Cir. 2007). "Because contracts for
private education have unique qualities, we must construe them in
a manner that leaves the school administration broad discretion to
meet its educational and doctrinal responsibilities." Gorman, 853
A.2d at 34. We interpret the Code's terms "in accordance with the
parties' reasonable expectations, giving those terms the meaning
that the university reasonably should expect the student to take
from them." Havlik, 509 F.3d at 34 (citing Mangla v. Brown Univ.,
135 F.3d 80, 83 (1st Cir. 1998)).
Against this backdrop, we begin our examination of Doe's
arguments. To prevail on the merits, she would need to establish
a typical breach of contract claim, which requires: (1) that a
contract existed; (2) that there was a breach of the contract; and
(3) that the breach caused the plaintiff damages. See Petrarca v.
Fidelity and Cas. Ins. Co., 884 A.2d 406, 410 (R.I. 2005). To
fend off summary judgment, however, she need show only that there
is a genuine dispute of material fact that she could establish all
- 7 - of the necessary elements of the alleged breach. Walker v.
President & Fellows of Harvard Coll., 840 F.3d 57, 60 (1st Cir.
2016). Doe argues that the district court erred in granting
summary judgment to Brown on her breach of contract claims because
her complaint illustrates numerous ways in which Brown violated
the Code in her disciplinary case. Specifically, Doe claims that
Brown (1) failed to provide her with copies of the work in
question; (2) failed to provide her with a list of faculty advisors
to consult prior to her hearing; (3) failed to provide her with
notice of the charges against her; (4) denied her the right to
present witnesses in her case; and (5) denied her the right to
examine witnesses against her and dispute the evidence against
her.
These assertions do not withstand close scrutiny. For
starters, the Code does not mandate that Brown supply an accused
student with copies of the exam in question. (Even so, Doe did,
in fact, review copies of her own exam, as well as those of some
of her fellow students before her disciplinary hearing.) Moreover,
the Code allows the student to offer evidence and witnesses in her
support. Yet Doe offers no arguments to explain how, if at all,
Brown precluded her from satisfying this burden. There is no
evidence that Doe was prevented from calling any witnesses, and
the University did not call any witnesses itself. Thus, there
- 8 - were no "witnesses against Doe" for whom she was denied any cross-
examination right.
Doe's arguments that Brown violated the Code by failing
to present her with a list of potential advisors and failing to
provide her with notice of the charges against her merit more
discussion. The Code requires that Brown, through a Case
Administrator,
shall, as soon as possible, notify the accused student of the specific charge(s) of dishonesty, the time and place of the hearing, the nature of the evidence that will be presented against the student, and the range of penalties that may be imposed if the Committee finds that academic dishonesty has occurred.
Further, the Code states that the Case Administrator "will provide
the accused student with a list of persons . . . who . . . can
provide knowledgeable advice." We make several assumptions, all
in Doe's favor: The first is that the Code does require repeated
notice that Brown will provide students with a list of such
persons. The second is that Brown was required to give her such
a list during the 2013 disciplinary process, regardless of her
earlier discipline. The third is that despite her conversations
with Professor Clark the day after the exam and her meeting with
Dean Dennis, she was not given formal notice of the charges before
the hearing.
- 9 - Even assuming that these failures constitute breaches of
the Code on the part of Brown, however, we struggle to see the
causal connection between those breaches and Doe's alleged
damages, which include the academic sanctions against her. See
Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188, 1191 (R.I. 1994)
("There is a fundamental requirement, similar to that imposed in
tort cases, that the breach of contract be the cause in fact of
the loss." (quoting 3 Farnsworth, Farnsworth on Contracts, § 12.1
at 148 (1990)) (alteration adopted)). This is because Doe herself,
on multiple occasions, admitted to facts giving rise to a Code
violation.
The Code states that "[a] student who obtains credit for
work, words, or ideas that are not the products of his or her own
effort is dishonest and in violation of Brown's Academic Code."
While the Code acknowledges that individual instructors may
sometimes permit students to work together on academic
assignments, it states that "such efforts must be clearly marked
as the results of collaboration." Doe first acknowledged that she
collaborated with T.L. on the exam in her meeting with Professor
Clark, then in her meeting with Dean Dennis, a third time in her
letter to the Committee, and finally at her disciplinary hearing.
However, neither Doe nor T.L. marked her exam as being the result
of a collaboration. And that was a violation of the Code that Doe
- 10 - has made no effort to dispute at any stage of her academic or legal
proceedings.
Doe urges us to focus exclusively on Brown's procedural
deficiencies. She argues that she would have accepted faculty
assistance if Brown had offered it, and that if she had received
assistance and proper notice, then she would have more vigorously
rebutted the charges against her, including, then, by explaining
that she had contributed to T.L.'s answer to Question 4 just as
much as T.L. contributed to her own answer.
Even so, none of Doe's proffered alternative courses of
action gives rise to disputed facts suggesting a link between
Brown's procedural failures and Doe's alleged damages. That is so
because Doe's admissions of the facts supporting the sanctions
that she received predate the institution of any formal process
against her. In her December 2, 2013 meeting with Professor Clark,
Doe "acknowledged her collaboration with a group of other
students," to include T.L. She repeated this acknowledgement in
a subsequent meeting with Dean Dennis. The record thus indicates
that, between Doe's admissions and the almost-identical answers of
Doe and T.L. on Question 4 that included no acknowledgement of the
collaboration between the two students, Doe has failed to provide
facts on which a reasonable jury could find that the Committee's
result would have changed had Brown complied with the Code's
procedural provisions even assuming they require a subsequent
- 11 - disciplinary proceeding to provide notice and information
previously provided. See Taylor v. Am. Chemistry Council, 576
F.3d 16, 24 (1st Cir. 2009) ("A genuine issue of fact exists where
the evidence is such that a reasonable jury could return a verdict
for the nonmoving party." (internal quotation marks omitted)).
Once the process began, Doe could reasonably be expected to
navigate it with some skill even without an advisor, given that
this was her second time through. The district court therefore
properly granted summary judgment to Brown on Doe's breach of
contract claims.
2. Breach of the Implied Covenant of Good Faith and Fair Dealing7
Doe's next set of challenges looks outside the plain
letter of the Code to claim that Brown breached its implied duty
of good faith and fair dealing, which exists in every contract
under Rhode Island law.8 See Mangla, 135 F.3d at 84 (citing A.A.A.
7 The district court entered summary judgment on Doe's implied covenant of good faith and fair dealing claim on the grounds that Doe "ha[d] pleaded no facts that would attribute bad faith or unfair dealing to Brown." Doe, 209 F. Supp. 3d at 476. It analyzed the alleged violations discussed here as part of its breach-of- contract analysis. Id. at 474-76. Because we agree with Doe that these claims exist outside of the explicit promises enumerated in the Code, we analyze them separately. 8 Doe argues separately that Brown acted arbitrarily and capriciously in the same instances she draws upon in support of these implied covenant claims. See King v. Grand Chapter of R.I. Order of E. Star, 919 A.2d 991, 998 (R.I. 2007) (noting that review of a private organization's application of its rules is reviewed under an arbitrary and capricious standard). Not only are these
- 12 - Pool Serv. & Supply, Inc. v. Aetna Cas. & Surety Co., 395 A.2d
724, 725 (R.I. 1978)). But as we have noted before, "[g]ood faith
and fair dealing cannot be separated from context, . . . and in
evaluating those covenants in the educational milieu, courts must
accord a school some measure of deference in matters of
discipline." Havlik, 509 F.3d at 35; see Gorman, 853 A.2d at 39
("Private schools must have considerable latitude to formulate and
enforce their own rules to accomplish their academic and
educational objectives.").
Broadly, Doe presents two challenges. First, she
maintains that Professor Clark's collaboration policy was
"[v]ague, [i]nconsistent, [and] unfair," and that Brown did not
thoroughly investigate this policy before determining that Doe
violated the Code. This argument misses the mark in light of the
undisputed facts. Even if Professor Clark had explicitly allowed
students to work in groups on the exam, there is no reasonable
basis to conclude that when Doe submitted an answer nearly
identical to T.L.'s without indicating that it was the result of
collaboration, she did not commit a Code violation.
claims redundant, but they were also not sufficiently developed in Doe's complaint or in her briefs to be preserved on appeal. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").
- 13 - Second, Doe argues that Brown breached the covenant in
its proceedings against her. To start, she claims that Brown
selectively enforced the Code against her but did not punish other
similarly-situated students, which amounted to arbitrary, bad
faith behavior. But she offered no evidence of this, and the
record reveals that indeed, one other student -- T.L. -- was
sanctioned for Code violations on the same exam.
Next, Doe asserts that bias infected both the conduct of her
hearing and the ultimate punishment that she received.9 This
argument also fails. Doe claims bias because two of the same
faculty members that were on the Committee for her first violation
sat on her second panel, which led "to a predisposition against"
her. The Code, however, does not prohibit such Committee-member
overlap, and in her letter to Doe denying Doe's appeal, Dean
Klawunn stated:
In Academic Code cases, the Case Administrator does not inform the Committee of prior offenses until the Committee has made their decision. The process was followed with your hearing. In fact, the two Committee members from your previous case did not remember that they had heard your previous
9 Doe also argues that there was an "unreasonable delay" in Dean Klawunn's appeal decision, which was issued ten days after she submitted her appeal. Doe does not allege any facts from which a reasonable factfinder could determine that taking ten days to review and uphold a decision that represented the culmination of a three-week hearing process was arbitrary or in bad faith. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) ("[S]ummary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.").
- 14 - violation from fall 2012 until they were told about the prior violation.
Doe has presented no evidence to refute the veracity of this
letter's assertion.
Doe also asserts that Brown's imposition of a lower sanction
against T.L. than against her is the result of bias. Yet unlike
T.L., she was sanctioned for her second Code violation. The Code
expressly contemplates higher penalties for repeat offenses. In
the absence of any additional facts, Doe has not shown that Brown
acted arbitrarily or in bad faith. See Bennett v. Saint-Gobain
Corp., 507 F.3d 23, 31 (1st Cir. 2007) ("[C]onjecture cannot take
the place of proof in the summary judgment calculus.")
Accordingly, as Doe has made no showing that Brown's actions were
anything less than a "valid exercise of its discretionary
authority," Gorman, 853 A.2d at 39, it follows that Brown was
entitled to summary judgment on her covenant of good faith and
fair dealing claim.
3. Remaining Claims
After a careful examination of the record, we affirm the
district court's entry of summary judgment on Doe's promissory
estoppel, negligence, and negligent misrepresentation claims,
substantially on the basis of the district court's opinion. See
Doe, 209 F. Supp. 3d at 476-78; see also Moses v. Mele, 711 F.3d
213, 216 (1st Cir. 2013) ("[W]hen a trial court accurately takes
- 15 - the measure of a case, persuasively explains its reasoning, and
reaches a correct result, it serves no useful purpose for a
reviewing court to write at length in placing its seal of approval
on the decision below."). We note that the promissory estoppel
claim fails because, although Brown promised to academically
support Doe, it never promised "to look the other way if Jane Doe
decided to cheat." Doe, 209 F. Supp. 3d at 476-77. Her negligent
misrepresentation claim fails because she presents no evidence
that she relied to her detriment on promises made by the school.
Id. at 477-78. And, finally, her negligence claim fails for the
same reason her contract claims fail: Doe cannot demonstrate that
the harm to her would not have occurred but for any negligence by
Brown.
B. Additional Discovery Under Rule 56(d)
Finally, we turn to the district court's denial of Doe's
request for additional discovery under Rule 56(d), a ruling that
we review for abuse of discretion. See In re PHC, Inc. S'holder
Litig., 762 F.3d 138, 142–43 (1st Cir. 2014). To establish an
entitlement to relief under Rule 56(d), the moving party must make
an authoritative statement that:
(i) explains . . . her current inability to adduce the facts essential to filing an opposition, (ii) provides a plausible basis for believing that the sought-after facts can be assembled within a reasonable time, and (iii) indicates how those facts would
- 16 - influence the outcome of the pending summary judgment motion.
Hicks v. Johnson, 755 F.3d 738, 742 (1st Cir. 2014) (quoting Velez
v. Awning Windows, Inc., 375 F.3d 35, 40 (1st Cir. 2004)).
Doe argues that the district court wholly failed to
address her 56(d) motion. Yet even a cursory review of the
district court's opinion debunks this claim -- the court correctly
concluded that further discovery would be fruitless. See Doe, 209
F. Supp. 3d at 479 n.14 ("[I]n light of the pleadings and evidence
before the Court, further discovery would be futile."). By our
lights, the record makes clear that Doe's and T.L.'s answers to
the exam were nearly identical, and that Doe did not indicate her
admitted collaboration with T.L. on her exam, as required by the
Code. Therefore, additional discovery on any of the issues Doe
raised in her request, specifically to include Professor Clark's
collaboration policy and Brown's initiation of proceedings against
other students (or lack thereof), would do nothing to undermine
Doe's naked violation of the Code. Accordingly, we join the
district court in concluding that Doe "failed to show how the
information to be obtained . . . would have defeated the
defendants' motion for summary judgment." Alicea, 744 F.3d at
789.
III.
For the foregoing reasons, we AFFIRM the judgment below.
- 17 - APPENDIX
T.L.'s answer to Question 4 Jane Doe's answer to Question In order to adequately 4 address the issue surrounding In order to address the sexual education, or lack issue surrounding safe sex thereof, there should be education, schools should mandatory incorporation of incorporate mandatory safe sex safe sex education as part of education as part of the health class curriculums health class curriculum on a nationally. That way, the statewide scale. This way, information being provided to the information that is adolescents is consistent, and provided to adolescents is therefore more comprehensible consistent, and therefore can and accessible. This can be more accessible. This perhaps improve the awareness intervention could help of the importance of safe sex improve the awareness practices. In addition to surrounding the issue of safe improving awareness, it is sex practices. In order for important to also consider children to retain and providing this form of understand this information, education to younger it should be reinforced populations of adolescents. through several years of safe In order for children to sex education. Therefore, it retain and understand the is important to provide this information being provided to form of education to younger them, it must be reinforced populations of adolescents. through several years of This form of education should sexual education. Starting start as early as sixth grade, this education as early as or middle school. This would sixth grade, or middle school, be the best way to proactively would be the most proactively reinforce this education. effective way to reinforce the This educat[ ]ion would information. By continuing continue up until twelfth this education up until grade and would be presented graduation, or 12th grade, and with the same information consistently presenting the regarding safe sex practices. same information regarding By presenting the information safe sex practices, this consistently, this allows allows adolescents the adolescents to be able to opportunity to retain and retain and comprehend the solidify an understanding of importance of safe sex. the importance of safe sex. It is important to It is important to acknowledge adolescent acknowledge adolescent pregnancies as an important pregnancies as an important way to prevent the excessive way to prevent the gestational weight gain
- 18 - proliferation of excessive GWG because this population is at because this demographic is at risk for high-risk greatest risk for high-risk pregnancies. This is a direct pregnancies, a direct determinant to the health determinant to the health issue of excessive maternal issue at hand. The education GWG. The education and health and health departments at each departments at each school school should be charged with should be responsible for not the responsibility to not only only education the children education children about about sexual education and sexual education and safe sex safe sex practices, but should practices, but also provide also provide education to those who are pregnant with those who are pregnant. These resources necessary to educate departments at the schools them further on adolescent should provide the resources pregnancies and the importance necessary to educate them of stress management. Health further on adolescent departments should work in pregnancies. By helping these tandem with the sexual adolescents who are pregnant, education programs to supply this can help reduce high-risk students with information and pregnancies. State health services that are readily departments should work with accessible to all students of their sexual education all ages. programs in order to provide students with information and services that are easily accessible to all students of all ages regarding adolescent pregnancies.
- 19 -