Doe v. Brown University

43 F.4th 195

• Court: Court of Appeals for the First Circuit
• Decided: August 4, 2022
• Docket: 20-2023P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 20-2023

JOHN DOE,

Plaintiff, Appellant,

v.

BROWN UNIVERSITY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Kayatta and Howard, Circuit Judges, and Casper, District Judge.*

Susan Kaplan, with whom Kaplan Law and Sonja L. Deyoe were on brief, for appellant. Steven M. Richard, with whom Nixon Peabody LLP was on brief, for appellee.

August 4, 2022

* Of the District of Massachusetts, sitting by designation. KAYATTA, Circuit Judge. Shortly after he began his

freshman year at Brown University, John Doe, an African-American

man, had a brief encounter with Jane Doe, a white woman.1 Their

stories of what happened differ slightly in emphasis but are

generally consistent. They met at a bar and both decided to move

to an outside patio. There, they kissed. The pair then moved to

a small alleyway behind the building -- the record is unclear

whether Jane or John initiated the relocation to the more private

spot. According to Jane (as expressed in her formal complaint

about the incident), John became more aggressive and repeatedly

tried to lift her dress without her express permission. According

to John, Jane was aggressive throughout the encounter, choking

him, biting his lip, and telling him, "Stop, I make the rules."

Jane admitted going "for his neck" and saying, "Stop, I make the

rules here." John said that, feeling uncomfortable, he ended the

interaction and walked away.

A few months later, Jane filed a complaint against John

with Brown's Office of Student Life, commencing a multi-year

process leading to John's suspension from school, a suicide

attempt, and, eventually, this lawsuit by John against Brown. For

the reasons that follow, we affirm the grant of summary judgment

dismissing John's federal claims, reverse the grant as to his state

1 Following the lead of the district court and the parties, we refer to the students involved by pseudonyms.

- 2 - law claim for intentional infliction of emotional distress, and

remand for further proceedings.

I.

Because this is an appeal from the grant of summary

judgment, we recount the facts not as they necessarily are, but

rather as a jury might reasonably find them to be in favor of John,

the non-movant. See Brader v. Biogen Inc., 983 F.3d 39, 44 (1st

Cir. 2020).

After Jane filed her complaint in November 2013, the

Associate Dean of Student Life, Yolanda Castillo-Appollonio,

informed John of the allegations against him and that the school

would begin an investigation. John was also informed that he had

a right to provide a list of witnesses and a written statement to

assist the investigation and that he had a right to choose an

advisor to help shepherd him through the process. Dean Castillo

also issued a mutual no-contact order to both students.

Shortly after he was notified of the complaint, John met

with Dean Castillo and expressed his desire to file a counter-

complaint against Jane. Dean Castillo discouraged him from doing

so. John recalls her telling him that she could not help him file

a complaint and that she made it sound as if he would have to start

a separate process only after the current complaint process

concluded. This advice did not accord with Brown's rules, which

permitted counter-complaints. Dean Castillo also determined that

- 3 - John's version of Jane's conduct did not rise to sexual assault in

her eyes because John did not explicitly say "that there was no

consent to the activity" or "that he said, stop doing that." Dean

Castillo did not file a complaint against Jane on John's behalf,

nor did she initiate any investigation of Jane.

Brown eventually decided that, despite John's statement

that Jane choked and bit him, John alone should be charged with

three violations of its Code of Student Conduct. Brown charged

John not only with sexual misconduct, but also with committing

acts that could "be reasonably expected to result in physical harm

to a person or persons" and "[m]isconduct that includes . . .

violent physical force or injury." Brown also charged John with

illegal underage use of alcohol.

The school then held a hearing, after which the Student

Conduct Board found John responsible for sexual misconduct "that

involves non-consensual physical contact of a sexual nature" and

for illegally drinking alcohol (which he had admitted). The Board

did not find John responsible for either charge related to physical

harm. As a sanction, Brown applied a "deferred suspension" that

would expire at the end of the following academic year. Deferred

suspension is somewhat akin to probation. It provides the student

"the opportunity to demonstrate the ability to abide by the

community's expectations of behavior," but it also means that any

new allegations "will receive greater scrutiny," and it

- 4 - "increase[s] the likelihood" of "more serious outcomes,"

"including separation from the University." Jane appealed this

decision because she believed the sanction was not severe enough.

Brown denied the appeal. John later testified that, despite his

belief that Brown reached the wrong result, he did not appeal

because he "was put on probation" and not "suspended or expelled."

He "was ready to move on."

In the spring of 2014, during a conversation among

sorority sisters regarding "certain men on campus," Jane stated

that John tried to touch her inappropriately, that he choked her,

and that he was sexually aggressive, but she did not mention that

she bit or choked him. Sally Roe was a part of that conversation.

She told her sorority sisters that she and John had met at a party

and consensually kissed. She explained that he wanted to take a

shower with her and continued to encourage her (either verbally or

physically, she couldn't remember) even after she said no. When

she started to feel uncomfortable, she left "[a]nd that was the

end of [their] interaction."2

After hearing Sally's story, Jane sought "permission" to

share it with a dean at Brown. Sally agreed, after which a dean

"asked [Sally] to come in and make a formal complaint."3 Sally

2 John's interaction with Sally happened after the incident with Jane but before Jane filed her complaint. 3 Sally testified that she couldn't remember if she contacted

- 5 - then met with that dean in person. She prefaced the meeting by

explaining that she was not formally complaining that John sexually

assaulted her; rather, she was reporting him "more for [the]

protection of others" because he had the "potential to have other

negative interactions with women." She thought her interaction

"could potentially have led to sexual assault." Sally testified

that her view of John's character was based on the fact that he

supposedly "continued to have uncomfortable interactions" with

Jane.

Sally also filled out a "Campus Incident Complaint

Form." On that form, she alleged that in October 2013 "a boy that

[she] was with tried to force [her] to have a shower with him."

She explained that she had consensually kissed the boy, but, after

he tried to take a shower with her, she "promptly left and told

him [she] wasn't comfortable." Sally also asked for a no-contact

order to be put in place.

Upon receiving the written complaint, Dean Castillo --

who was not the dean who initially met with Sally -- repeatedly

sought to meet with her to confirm that John was the person against

whom she had filed a formal complaint. Sally was initially

nonresponsive, but eventually told Dean Castillo that she

requested no "serious action" and had in fact "felt forced to

the dean first or if the dean contacted her.

- 6 - report." The day after Sally responded, May 7, 2014, the Office

of Student Life nevertheless sent John three letters: The first

informed him that someone had filed a complaint against him for

actions that could be considered "[s]exual [m]isconduct that

involves non-consensual physical contact of a sexual nature"

and/or "[s]ubjecting another person . . . to abusive, threatening,

intimidating, or harassing actions." The second letter informed

him that he and Sally should have no contact. And the third

ordered him removed from campus for an indefinite period of time,

"effective immediately." To justify this removal, Brown decided

to treat John "a danger to [himself] or the immediate well-being

of the University community."

Dean Maria Suarez -- who was the Associate Director of

Brown's Psychological Services -- and Dean Castillo met with John

that day to explain his removal. When Dean Suarez told John that

he had been accused of sexual assault again, he became distraught

and expressed suicidal thoughts. He fell to the floor, rolled

into a ball, and cried. Both Dean Suarez and Dean Castillo

testified that they found John's response extreme. They permitted

him to remain on campus to finish his finals (the letter came in

the middle of finals week), but he was required to immediately

leave campus once his last exam was over.

In light of John's response, Dean Suarez brought John to

the Brown University Counseling and Psychological Services (CAPS)

- 7 - for an emergency crisis evaluation. The doctor who evaluated him

at CAPS was concerned and recommended hospitalization, which John

rejected. Because the doctor did not feel that John's presentation

"rose to the level of an involuntary hospitalization," she made a

plan with John on what to do if he had any further suicidal

ideation, and she scheduled a follow-up appointment with him. John

went back to CAPS at least twice more before he was required to

leave campus after his final exam the following week.

Over the summer, Dean Castillo reached out to Sally three

more times asking her to meet about the incident. Sally did not

respond. Throughout that summer, John and his mother repeatedly

contacted school officials asking for updates on the investigation

and his suspension. The University gave little information in

return. By August, Vice President Margaret Klawunn, prompted by

an email from John, decided that Brown had to "wrap this up so

that [John] can come back for the fall" if Sally was not going to

pursue the complaint. On August 7, Dean Castillo informed John by

email that Brown was "lifting the emergency removal" and that he

would "be able to resume classes and all activities for the

upcoming fall [2014] semester." She also explained that, although

they were closing this complaint for now, the school could "choose

to proceed at a later time" if it received more information.

The fall semester did not go well for John. He had

trouble attending classes and by late October was told by one

- 8 - professor not to come back to class. That led John to again seek

crisis help at CAPS, which resulted in a referral for a psychiatric

evaluation that occurred the following day. He reported sleeping

sixteen hours a day, feeling anxious about the state of his family

due to the second accusation, having difficulty in his interactions

with women, having trouble managing anger, binge-drinking, and

smoking marijuana daily. He was diagnosed with Major Depressive

Disorder and was prescribed antidepressant medication.

A day later, after smoking marijuana with some friends,

John dove onto the windshield of a truck as it was slowing to a

stop. He was taken to Rhode Island Hospital, where he was given

an Initial Psychiatric Evaluation. He explained during the

evaluation that he had been "ruminating on the charges against him

and convinced himself he could be guilty." He maintained that he

was not guilty, but he explained that those thoughts triggered "a

panic attack," which caused "an impulsive urge to stop the panic

attack." He remained in the psychiatric ward of Rhode Island

Hospital for four days.

Upon discharge, John met with Dr. Jackie Twitchell from

CAPS for a post-hospitalization evaluation. He explained to

Dr. Twitchell the same thoughts he had expressed at the hospital

that led to his suicide attempt. Dr. Twitchell noted that John

"want[ed] to stay at Brown" and "hope[d] he [could] catch up on

his studies."

- 9 - After the meeting with John, Dr. Twitchell told Dean

Suarez that John was not an immediate threat to himself or others

but that she recommended intensive treatment. She told Dean Suarez

that she did not discuss with John whether he could stay on campus.

Dean Suarez then met with John about his hospitalization.

Afterward, Dean Suarez and Dr. Twitchell spoke again. Dean Suarez

stated that "she could not put him on mandatory medical leave" and

that "he was not willing to go voluntarily." She also expressed

that she thought he displayed narcissistic traits and was

unrealistic about his ability to "pull up his academics" and play

lacrosse.

Dean Suarez then told Dr. Twitchell that she and Vice

President Klawunn were planning to meet with John that evening --

just hours after he was released from the hospital -- to tell him

that Jane had newly alleged that he had violated the still extant

no-contact order,4 that he would therefore have to move out of his

4As described by Jane, the first two incidents occurred at Brown-associated events hosted at an off-campus local bar. Jane alleged that when John saw Jane "he moved away from [her] inside." She stated that "[w]hile he would move away from [her]" each time they ended up together, she felt "the need to leave." (For the second event at the same location, Jane indicated that John was "less responsive" in moving away from her than the first time.) The third incident occurred at a "Greek council meeting" Jane was attending as a board member. She complained that John "walked in" and "hung out for a minute or so before leaving." In the fourth interaction, Jane described John drunkenly entering a room at another bar off campus. When Jane's friend

- 10 - housing in his lacrosse fraternity based solely on those

uninvestigated allegations,5 and that there would be new conduct

charges filed against him for underage drug use and for the damage

to the truck he threw himself in front of. Dr. Twitchell

"expressed [her] concern for [John's] safety if these charges were

brought against him the same night that he was discharged from the

hospital and asked that this be delayed in light of his recent

suicide attempt." Dean Suarez rejected the advice, saying that

they had to act that evening because John could not return to his

room in light of the new (though, by this point, over a week old)

allegations by Jane that John had violated the no-contact order.

They then "discussed how much he should know up front and how much

should be mediated given his fragile state." Dean Suarez also

asked him to leave because Jane was there, he left. Ten minutes later, he "poked his head in and looked around," saw Jane, and "left the room again." In the final incident, Jane described being outside a fast- food restaurant on the phone when John entered the restaurant with a friend. She "then entered [the restaurant] to get [her] own dinner, as he was at the register." She "had planned on eating there," but "felt the need to take [her] dinner to go." There is no allegation he purposefully ate dinner at the restaurant to cause her to leave. 5 According to Dean Castillo, the typical process for dealing with no-contact order accusations did not involve immediate suspension. Instead, the first step was to have an instructional conversation with the accused student regarding the parameters of the order. If further action were required, Brown would hold a hearing. A hearing was reserved for "persistent and repeated" violations that had been addressed but for which there had been no change or for "significant and clearly intentional" violations, such as "banging on [the person's] door."

- 11 - said that she would make sure that John's mother stayed with him

that night. Dr. Twitchell "made it clear that CAPS would be

available to support [John] if contacted [that night] or in the

future."

Despite Dr. Twitchell's warning, Dean Suarez and Vice

President Klawunn went ahead with the meeting. Accompanied by his

mother, John attended. Without first ascertaining what John was

intending to do regarding medical leave, the two Brown University

officials told John that if he did not voluntarily go on leave, he

would face a litany of consequences. They first threatened him

with two additional conduct charges (for vandalism of the truck he

jumped in front of and for the alleged violations of his no-contact

order with Jane). They told him that he would be required to pay

for the damage to the truck. They said that he would be immediately

removed from his on-campus housing based on Jane's new no-contact

allegations. Finally, they threatened to revive Sally's complaint

(even though there was no new information since Sally declined to

press forward). As Dr. Twitchell predicted, John had an extreme

reaction to this litany of threats. He jumped from his seat and

cried, "Do you just want me out of here?" His mother intervened

and said, "Enough! This is enough! You have traumatized him

enough! And you have traumatized me!"

Relenting to the threats, John began voluntary medical

leave, effective November 5, 2014, for two full semesters. John's

- 12 - psychological expert -- whom Brown did not move to exclude below

even while seeking to strike his expert on damages -- concluded

that "the mandate that [John] be removed from the Brown campus for

a year of purported medical leave without any known clinical basis

for such a decision" -- that is, the result of the meeting with

Dean Suarez and Vice President Kulwann -- "caused overwhelming

psychological damage in [John] that continues to reverberate in

him to the present in many spheres of his life." The expert also

concluded that John "suffers from enormous, life-altering

psychological harm in [the] aftermath" of "the manner in which

Brown University conducted itself in managing the[] accusations

against [John]." The manifestation of that harm includes

"Persistent Depressive Disorder," which "is marked by pervasively

depressed mood, markedly diminished energy and motivation,

hypersomnia, hypophagia, diminished libido, anhedonia,

hyperirritability, feelings of helplessness, and feelings of

hopelessness."

In the summer of 2015, John applied for readmission to

Brown for the fall semester. His application included letters by

a clinical psychologist who concluded that he was "ready to be

reintegrated into the Brown community, given his ongoing positive

mental state." Brown, however, denied his application, stating

that it "need[ed] to see a longer period of sustained stability."

John's father then emailed Brown's president to complain that he

- 13 - believed John had been and was continuing to be discriminated

against on the basis of race. John also appealed the decision

though regular channels and provided supplemental information,

including various letters of support. Brown reversed course and

permitted John to return to school for the fall 2015 semester.

In September 2015, shortly after the semester began,

Jane wrote to Dean Castillo to express her concern that she saw

John on campus even though she had been told he was not going to

be there until the spring, if at all. Dean Castillo confirmed

that John was on campus and apologized for not warning Jane because

she thought Jane was going to be off campus that semester. The

record then falls silent from the beginning of the fall 2015 to

the middle of the spring 2016.

In April 2016, Jane, who herself was on medical leave,

again emailed Dean Castillo to let her know that she would be

visiting Brown for a weekend and that she was concerned that John

would not "respect" the no-contact order that was still in effect

two years after he was found responsible for their alleyway

encounter. Dean Castillo thereupon "update[d]" the no-contact

order so that it became unilateral rather than mutual; in other

words, it became solely John's responsibility to stay away from

Jane rather than a shared responsibility to avoid each other.

John objected, explaining that he had been given a no-

contact order against Jane, that it seemed to have been taken away

- 14 - without any process, and that Jane should also continue to be

required to leave an event if she showed up and he was there. Dean

Castillo rejected John's objections. She explained that the burden

should be solely on John since he was found responsible for the

conduct Jane complained of two years prior. She also explained

that the University had updated its policies so that it was

explicit that when a student is found responsible, the no-contact

order automatically becomes unilateral. Dean Castillo told John

that she was simply implementing that change in policy, even though

it had been put in place after his hearing had ended and his chance

to appeal had expired.

Over the next two years, John generally stayed out of

trouble, and, in May 2018, he graduated from Brown.

II.

A year before he graduated, John filed this lawsuit in

Rhode Island state court, alleging that Brown discriminated

against him because of his race, gender, and disability, created

a hostile educational environment, violated various contractual

agreements and promised procedural protections, and intentionally

inflicted emotional distress upon him. Brown removed the case to

federal court and moved to dismiss. After giving John an

opportunity to amend his complaint, the district court dismissed

several of his claims. It held that John's gender-based claims

under Title IX of the Civil Rights Act, 20 U.S.C. § 1681 et seq.,

- 15 - regarding Jane's complaint were filed outside Rhode Island's

three-year statute of limitations for personal injury. Doe v.

Brown Univ., 327 F. Supp. 3d 397, 407, 410 (D.R.I. 2018) (applying

R.I. Gen. Laws § 9-1-14(b) to John's Title IX claims).6 The court

also dismissed John's Title IX "erroneous outcome" claim as to

Sally's complaint because Brown dropped its investigation, id. at

412, his state-law disability claim because he failed to plead any

denied accommodations, id. at 413–14, and all but one of his

contract claims -- the one related to his May 2014 suspension --

for failure to state a claim, id. at 415–18. The court permitted

the rest of his claims to go forward.

After nearly a year and a half of discovery, Brown moved

for summary judgment. It argued primarily that John failed to

uncover any racial or gender discrimination or harm. It also

contended that it did not breach any contract related to John's

suspension and that its conduct could not support a claim for

intentional infliction of emotional harm. The district court

granted Brown's motion across the board. See Doe v. Brown Univ.,

505 F. Supp. 3d 65 (D.R.I. 2020).

6 We have not yet decided which statute of limitations is applicable to Title IX claims, but district courts within our purview have held that the forum state's limitations period for personal-injury claims applies. See, e.g., Doe v. Lincoln-Sudbury Reg'l Sch. Comm., No. 20-cv-11564, 2021 WL 3847985, at *6 (D. Mass. Aug. 27, 2021); Lakshman v. Univ. of Me. Sys., 328 F. Supp. 2d 92, 116 (D. Me. 2004). No one challenges the district court on this score.

- 16 - On appeal, John only timely develops arguments in

support of three causes of action. First, he claims that Brown

committed gender discrimination in violation of Title IX by

doggedly investigating Sally's claim against him, even though it

did nothing to pursue his allegations against Jane. Second, he

alleges that Brown engaged in race discrimination in connection

with a whole series of events beginning with its treatment of

Jane's complaint, all in violation of Title VI of the Civil Rights

Act, 42 U.S.C. § 2000d et seq.; 42 U.S.C. § 1981; and the Rhode

Island Civil Rights Act (RICRA), R.I. Gen. Laws § 42-112-1.7 And

he claims that Brown should be held liable for the tortious conduct

of its officials in intentionally causing him severe emotional

distress under Rhode Island common law.

John's reply brief presumes that he also is challenging

the dismissal of claims based on maintaining a hostile environment

and a claim alleging a violation of Title IX by selectively

enforcing rules against him as compared to Jane. His opening

brief, however, developed no substantial argument as to these

claims. Rather, he merely set out -- in a section entitled "Race

Discrimination" -- his version of how Jane assaulted him and later

7 Rhode Island courts look to federal law in construing their analogous civil rights statutes, see Colman v. Faucher, 128 F. Supp. 3d 487, 491 n.8 (D.R.I. 2015) (citing Casey v. Town of Portsmouth, 861 A.2d 1032, 1037 (R.I. 2004)); accordingly, we need determine only whether John's discrimination claims are sound under federal law.

- 17 - harassed him without connecting those facts to the elements of a

sex-based discrimination claim or a sex-based hostile educational

environment claim. He passingly averred in a footnote that "the

arguments in this section regarding race could equally apply to a

gender-bias analysis" under RICRA, but such attempts to bootstrap

argumentation "in a perfunctory manner . . . are deemed waived,"

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). He

failed even to make a similar attempt for his federal-law claims.

And John did not mention (much less contest) in his opening brief

the district court's application of the three-year statute of

limitations to his selective-enforcement claim regarding Brown's

handling of Jane's complaint. His cursory attempts to revive these

claims in reply are both too little and too late. See id.; Waste

Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000)

("[I]ssues advanced for the first time in an appellant's reply

brief are deemed waived.").

John has also not advanced on appeal any claim that

Brown's action in suspending him breached any contract between

Brown and its students. Compare Doe v. Trs. of Bos. Coll., 892

F.3d 67, 80–89 (1st Cir. 2018). Nor is Brown subject to the due-

process constraints that apply to state-run schools. Compare

Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 65 (1st Cir. 2019)

("[A] student facing expulsion or suspension from a public

educational institution is entitled to the protections of due

- 18 - process." (alteration in original) (quoting Gorman v. Univ. of

R.I., 837 F.2d 7, 12 (1st Cir. 1988))).

We therefore consider only the three claims first

mentioned above: (1) that Brown selectively enforced its Code of

Student Conduct against John in response to Sally's complaint

because he is male, (2) that Brown discriminated against him on

account of his race throughout its handling of the allegations

made by Jane and Sally, and (3) that Brown officials intentionally

caused him severe emotional distress. We review the grant of

summary judgment de novo. Irobe v. U.S. Dep't of Agric., 890 F.3d

371, 377 (1st Cir. 2018).

III.

We turn first to John's claim that Brown discriminated

against him by selectively enforcing its policies against him as

a male student. John offers two reasons that he says could support

a jury's finding that Brown selectively enforced its rules and

procedures due to his gender.

First, he contends that Brown customarily wields its

investigation and prosecutorial resources very disproportionately

against males, pointing out that "all students accused of sexual

misconduct at Brown were male" during the relevant period. But

the same could likely be said of any institution or workplace that

accepts similar complaints: More women lodge complaints of sexual

misconduct by men than vice versa. See The Women's Initiative,

- 19 - Gender Matters: Women Disproportionately Report Sexual Harassment

in Male-Dominated Industries, Center for American Progress

(Aug. 6, 2018), https://www.americanprogress.org/article/gender-

matters/ (aggregating EEOC data regarding workplace sexual

harassment filings from 2010 through 2015 that show that, "in every

industry, women have higher rates of reporting sexual harassment

than men"). Such proof, without more, hardly shows that the

recipient of these complaints is responsible for the disparate

distribution. See Doe v. Univ. of Denver, 952 F.3d 1182, 1194

(10th Cir. 2020) ("In Title IX challenges to sexual-misconduct

proceedings, however, the putative nondiscriminatory causes of

disparity -- the gender makeup of sexual-assault perpetrators,

victims, and reporters -— are almost completely beyond the control

of the school.").

Second, John's alternative argument is a so-called

"comparator" argument, through which a plaintiff can prove intent

to discriminate based on "evidence of past treatment toward others

similarly situated." Dartmouth Rev. v. Dartmouth Coll., 889 F.2d

13, 19 (1st Cir. 1989), overruled on other grounds by Educadores

Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st Cir.

2004). John contrasts the manner in which Brown brushed off his

claim that Jane bit and choked him during their alleyway encounter

- 20 - with its Javert-like pursuit of Sally's withdrawn claim.8 For

comparator proof to raise a red flag that the direct evidence does

not already raise, the two "incidents' circumstances [must] be

'reasonably comparable'" and "the nature of the infraction and

knowledge of the evidence by college officials [need be]

sufficiently similar to support a finding of facial

inconsistency." Id. (quoting Albert v. Carovano, 851 F.2d 561,

573–74 (2d Cir. 1988) (en banc)). "The test is whether a prudent

person, looking objectively at the incidents, would think them

roughly equivalent and the protagonists similarly situated." Id.

Although "[e]xact correlation is neither likely nor necessary,"

"the cases must be fair congeners." Id. "In other words, apples

should be compared to apples." Id.

By the time Sally filed her complaint, John had already

been found responsible for sexual misconduct under Brown's Code of

Student Conduct. It is rational for an administrator, upon

receiving a sexual-assault complaint, to treat someone who had

already been found responsible for sexual misconduct differently

than someone who had not. Indeed, Brown had so informed John in

8 We assume without deciding that Brown's handling of John's allegations against Jane can be used as comparator evidence, even though Dean Castillo's repudiation of those allegations occurred outside of the statute-of-limitations period. See Flores v. City of Westminster, 873 F.3d 739, 754 (9th Cir. 2017) (holding that evidence regarding "appropriate comparators" was "properly admissible" even though the events occurred outside the statute of limitations).

- 21 - writing at the conclusion of the proceedings concerning Jane's

complaint: It explained that any new allegations "will receive

greater scrutiny" and "increase the likelihood" of "more serious

outcomes," "including separation from the University." So, we do

not see enough similarity to support a reasonable inference that

Brown's different treatment of the two accusations is due to the

gender of the accused. That conclusion, in turn, leaves John with

no support in this record for his claim of selective enforcement

based on gender.

IV.

We consider next John's race-based claims. Brown

concedes that the section 1981 claim is not time-barred in any

material respect. And while Brown does not so concede as to the

Title VI and RICRA race discrimination claims, our analysis of

these claims on the merits renders any difference in the applicable

limitations periods moot.

To succeed on his race-based claims, John must show,

among other things, that Brown acted with discriminatory intent.

Goodman v. Bowdoin Coll., 380 F.3d 33, 43 (1st Cir. 2004) (noting

that "direct or circumstantial evidence of racial animus" is "a

necessary component" of both section 1981 and Title VI claims).

To make such a showing, John devotes a large portion of his brief

to chronicling all the ways he believes Brown treated him unfairly.

Viewing the evidence in a light favorable to John, as we must, a

- 22 - jury could certainly find that Brown persecuted John with

unreasonable zeal and, on occasion, with no fair process. A jury

could also find that the initial finding of fault was also

unreasonably used as a basis to allow Jane to use seemingly trivial

violations of the no-contact order to chase John out of all sorts

of campus events, with Brown itself twisting its own rules in aid

of Jane's efforts. See n.4, supra.

All that being said, there is no evidence that would

allow a reasonable jury to conclude that Brown's persecution of

John was on account of his race. John points to no direct evidence

of racial animus. The only person who even mentioned race was

John's father, who suggested to Brown's president that racial

discrimination was a possible motivation for Brown's June 2015

denial of John's request for readmission. Less than a week after

that mention of race -- and after he submitted supplemental

materials responding to the reasons for the initial denial -- John

was readmitted. For obvious reasons, we are loath to say that

such a chronology ending in John's request being granted evidences

racial animus by Brown. To do so would create a disincentive to

provide an accommodation whenever an accusation of discrimination

is made.

Without direct evidence of racial discrimination, John

is left to argue that the reasons Brown has given for treating

- 23 - John adversely are pretextual.9 Sometimes a plaintiff can generate

an inference of discriminatory animus by showing that the

defendant's stated reason for its actions is not only false, but

"a sham intended to cover up the [defendant's] real and unlawful

motive." Joseph v. Lincare, 989 F.3d 147, 160 (1st Cir. 2021)

(quoting Theidon v. Harvard Univ., 948 F.3d 477, 497 (1st Cir.

2020)).

Over the whole saga of Brown's interactions with John,

Brown has consistently posited an overarching reason for its

treatment of John: the complaints from Jane and Sally. There is

nothing in the record to suggest that that stated reason was a

sham designed to cover up a racial motive. In theory, that leaves

open the possibility that Brown acted with even more zeal and

unfairness in handling those complaints against John than it would

have against a white male student. But John presents zero evidence

of that.

9 Our consideration of pretext is derived from a burden- shifting framework the Supreme Court articulated in the context of Title VII, employment-discrimination claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). Although we have held that the McDonnell Douglas framework applies to section 1981 claims, Pina v. Children's Place, 740 F.3d 785, 796 (1st Cir. 2014), we have never so held for Title VI claims, see Goodman v. Bowdoin Coll., 380 F.3d 33, 44–45 (1st Cir. 2004). The parties, however, assume this framework applies to each of John's race-based claims, and since it does not affect the outcome of this case, we follow their lead. Cf. Trs. of Bos. Coll., 892 F.3d at 91–92 (1st Cir. 2018) (applying the standard agreed to by the parties).

- 24 - In so stating, we acknowledge that sexual relations have

often provided the context for invidious racial discrimination and

noxious stereotypes. See, e.g., FBI, History: Emmett Till,

https://www.fbi.gov/history/famous-cases/emmett-till. But when a

university has prosecuted dozens of male students for infractions

of its rules that attempt to regulate sexual conduct on campus,

and not one iota of evidence has been produced suggesting that

Brown pursued white men with either less zeal or more fairness

than was manifest in its treatment of John, a jury cannot simply

assume that race was a factor. To rule otherwise would be to say

that every charge of sexual misconduct against any African-

American student would, without more, support a trial on a race-

discrimination claim.

Finally, we consider John's state-law claim that Brown

intentionally inflicted emotional distress upon him. To create

liability for intentional infliction of emotional distress in

Rhode Island, "(1) the conduct must be intentional or in reckless

disregard of the probability of causing emotional distress,

(2) the conduct must be extreme and outrageous, (3) there must be

a causal connection between the wrongful conduct and the emotional

distress, and (4) the emotional distress in question must be

severe." Gross v. Pare, 185 A.3d 1242, 1246 (R.I.), as corrected

(Aug. 16, 2018) (emphasis removed) (quoting Swerdlick v. Koch, 721

- 25 - A.2d 849, 862 (R.I. 1998)). Moreover, as one component of the

severity requirement, Rhode Island requires plaintiffs to show

some "physical symptomatology resulting from the alleged improper

conduct." Vallinoto v. DiSandro, 688 A.2d 830, 838 (R.I. 1997)

(citing Reilly v. United States, 547 A.2d 894, 898 (R.I. 1988)).

On appeal, John's tort claim focuses largely (but not

exclusively) on the post-hospitalization meeting in which Dean

Suarez and Vice President Klawunn threatened him with additional

disciplinary charges and suspended him from campus effective

immediately, all on the basis of uninvestigated claims that he

violated the no-contact order with Jane. The district court

concluded that the administrators' actions in this meeting could

not be the basis for an intentional infliction of emotional

distress claim because "[c]ourts must be 'chary about interfering

with academic and disciplinary decisions made by private colleges

and universities.'" Brown Univ., 505 F. Supp. 3d at 82 (quoting

Schaer v. Brandeis Univ., 735 N.E.2d 373, 381 (Mass. 2000)). It

recognized that "the second investigation understandably impacted

John negatively," but concluded that "there is no evidence that

would allow a jury to reasonably conclude that Brown's conduct was

so outrageous or so extreme" for liability to attach. Id. We

disagree.

We start with the second element of this tort: Whether

a jury could find Brown's actions extreme and outrageous. "In

- 26 - assessing whether conduct is extreme and outrageous, Rhode Island

courts have used three factors: 1) the conduct itself; 2) the

particular relationship of the parties; and 3) the known or

knowable susceptibility of the plaintiff to the emotional injury."

Marques v. Fitzgerald, 99 F.3d 1, 7 n.12 (1st Cir. 1996). The

Rhode Island Supreme Court, adopting the Second Restatement of

Torts standard, requires a defendant's conduct to be "so outrageous

in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community." Swerdlick, 721

A.2d at 863 (emphasis removed) (quoting Restatement (Second) of

Torts § 46 cmt.d (1965)). In other words, "the recitation of the

facts to an average member of the community would arouse his

resentment against the actor, and lead him to exclaim,

'Outrageous!'" Id. (quoting Restatement (Second) of Torts § 46

cmt.d). Although this is a "very high standard," Hoffman v.

Davenport-Metcalf, 851 A.2d 1083, 1089 (R.I. 2004), for several

reasons, as combined, a jury could find this standard satisfied by

Brown's conduct.

First, the parties' relationship required at least some

heightened solicitude by Brown. The Restatement states that "[t]he

extreme and outrageous character of the conduct may arise from an

abuse by the actor of a position, or a relation with the other,

which gives him actual or apparent authority over the other, or

- 27 - power to affect his interests." Restatement (Second) of Torts

§ 46 cmt.e. Discussing this factor, a member of our court once

found that it naturally applies to the university-student

relationship. See Russell v. Salve Regina Coll., 649 F. Supp.

391, 402 (D.R.I. 1986) (Selya, J.) (Russell I); see also Russell

v. Salve Regina Coll., 890 F.2d 484, 487 (1st Cir. 1989)

(Russell II) (acknowledging that the school relationship to a

student is an important factor to consider, despite affirming a

directed verdict for the school), rev'd on other grounds, 499 U.S.

225 (1991); Restatement (Second) of Torts § 46 cmt.e (noting that

"school authorities . . . have been held liable for extreme abuse

of their positions"). This is because a "student stands in a

particularly vulnerable relationship vis-a-vis the university, the

administration, and the faculty." Russell I, 649 F. Supp. at 402.

Thus, a university can "fairly be expected" to act "maturely --

and even with some tenderness and solicitude -- toward" its

students. Id.

Second, it is quite clear from the record that Dean

Suarez and Vice President Klawunn were aware of John's enhanced

susceptibility to extreme emotional distress. See Russell II, 890

F.2d at 487 (explaining that "knowledge of plaintiff's special

sensitivities" is an element of the claim and that the "school

officials knew very quicky that Russell wanted badly to become a

nurse and that she was easily traumatized by comments about her

- 28 - weight"); see also Restatement (Second) of Torts § 46 cmt.f ("The

extreme and outrageous character of the conduct may arise from the

actor's knowledge that the other is peculiarly susceptible to

emotional distress."). Dean Suarez participated in a prior

disciplinary meeting with John where his emotional reaction was so

strong that it prompted her to immediately walk him to the campus

mental health center for an emergency evaluation. Dean Suarez and

Vice President Klawunn both knew that John had just been discharged

from the hospital that very day after a suicide attempt premised

on Brown's disciplinary actions against him. And, most strikingly,

Vice President Klawunn was warned by one of John's doctors that

she should postpone the meeting given John's fragile mental state.

At the very least, the doctor advised, they should only bring up

any matters that needed to be discussed that day (such as any

necessary immediate suspension from housing). A jury could

conclude from these facts that their subsequent conduct in

confronting John "become heartless, flagrant, and outrageous when

the[y] proceed[ed] in the face of such knowledge, where it would

not be so if [they] did not know." Restatement (Second) of Torts

§ 46 cmt.f.

Third, the meeting itself did not comport with the reason

given for its supposed urgency. If it were urgent to tell John he

was suspended because of Jane's new, facially dubious and seemingly

trivial allegations, they simply had to tell him that. Instead,

- 29 - or so a jury might find, they attempted to coerce him into

withdrawing by piling on threatened claims that need not have been

advanced that evening. Jurors might reasonably ask, why threaten

John with reopening the Sally complaint and with charging him for

damage to the truck? Brown has made no attempt to argue why those

matters could not have been delayed, given its administrators'

knowledge of John's mental state and warning from his doctor. A

jury could -- but need not -- find that this piling on of charges

that evening while John was obviously vulnerable went beyond all

bounds of decency.

Finally, we agree in theory but dispute in application

the dissent's concern that Brown cannot be liable for intentional

infliction of emotional distress if it did "no more than to insist

upon [its] . . . legal rights in a permissible way," even if it

were "well aware that such insistence is certain to cause emotional

distress." Norton v. McOsker, 407 F.3d 501, 511 (1st Circ. 2005)

(internal citations and quotation marks omitted).

To start, jurors might well disagree with our dissenting

colleague that Brown was entitled to immediately remove John from

campus based on Jane's unconfirmed, dubious allegations of no-

contact order violations or that the Brown officials were acting

in good faith in threatening to reopen Sally's complaint. Recall,

Dean Castillo testified that the typical process for dealing with

no-contact order accusations did not involve immediate suspension;

- 30 - rather, the school was to begin with an instructional conversation

with the accused student regarding the parameters of the order.

See n.5, supra. If the action persisted, the student was entitled

to a hearing. Id. Brown forwent any process here. And, as the

dissent acknowledges, Brown had informed John that it could reopen

Sally's complaint only if it "obtain[ed] additional information

relevant to the matter," yet Brown officials threatened to reopen

Sally's complaint despite having no new information.

Further, the legal entitlement to act with impunity only

applies when the defendant asserts its rights "in a permissible

way" and does "no more." Norton, 407 F.3d at 510–11. The manner

in which the action is taken is still subject to tort-law

limitations. See Clift v. Narragansett Television L.P., 688 A.2d

805, 813 (R.I. 1996) (acknowledging that, even though simply

insisting on your legal rights "could not ordinarily lead to

liability," a plaintiff could show "more" to "defeat the privilege

and state a claim" (emphasis added) (quoting Howell v. N.Y. Post

Co., 612 N.E.2d 699, 705 (N.Y. 1993))); Champlin v. Washington Tr.

Co., 478 A.2d 985, 989 (R.I. 1984) ("[A] creditor or his agent is

privileged to use a number of tactics to collect a debt, even

though those tactics may cause the debtor to suffer emotional

distress," and "the creditor should be held accountable only if

those tactics are extreme and outrageous."); see also Restatement

(Third) of Torts: Liability for Physical and Emotional Harm § 46

- 31 - cmt.e (2012) ("Although an actor exercising legal rights is not

liable . . . merely for exercising those rights, the actor is not

immunized from liability if the conduct goes so far beyond what is

necessary to exercise the right that it is extreme and

outrageous.").

Moving on, we also conclude that there are triable issues

regarding the first element of the tort, that is, whether Dean

Suarez and Vice President Klawunn "inten[ded]" or acted "in

reckless disregard of the probability of causing emotional

distress." Gross, 185 A.3d at 1246 (quoting Swerdlick, 721 A.2d

at 862). Proceeding with the coercive attempt in the face of the

physician's warning could certainly be seen as evidencing a

reckless disregard for the distress likely to be caused.

Our decision here is bolstered by comparison to another

case where we found the defendant "crossed" "the requisite

'threshold of conduct'" under Rhode Island law, such that the

question was appropriate for a jury. See Borden v. Paul Revere

Life Ins. Co., 935 F.2d 370, 381 (1st Cir. 1991) (quoting Elias v.

Youngken, 493 A.2d 158, 164 (R.I. 1985)). There, an insurer --

after learning that the insured misrepresented his medical history

and employment -- downgraded the policy and delayed benefit

payments to induce the insured to sign a new contract agreeing to

the switch. Id. at 380–81. After detailing the unsavory tactics

the insurer used, we concluded that "a rational jury could well

- 32 - have thought that a large, moneyed corporation preyed mercilessly

on a disabled individual's physical and mental condition by

withholding and delaying benefit payments and by lying to him, in

order to coerce him into surrendering his insurance coverage

through age 65 and accepting an inferior replacement policy." Id.

at 381. We think a jury is at least as able to find the Brown

officials crossed the line here as well.

Brown advances no argument on appeal that a jury could

not find in John's favor on the remaining two elements of the tort:

causation and severity.10 In any event, the chronology and the

conclusions of John's psychological expert regarding causation and

the manifestations of John's distress, summarized above, would

seem to provide at least the minimal degree of support required to

get over the Rule 56 hurdle. See Castellucci v. Battista, 847

A.2d 243, 249 (R.I. 2004) (relying on a psychiatrist's opinion

connecting the event at issue to plaintiff's "posttraumatic stress

disorder, which continued to traumatize him and compromise his

Brown argued below that, although the October 2015 meeting 10

was contentious, "anything said or done cannot be causally linked to John's distress because he and his mother had decided before the meeting that he should take a leave from Brown to address his physical and mental health." But this argument overlooks both the record, which would support a finding that John was not resolved to withdraw voluntarily, and the fact that if Brown were correct then there would have been no need to have lodged the barrage of threats.

- 33 - ability to function or sleep" to conclude that there was "clear

evidence of causation and physical symptomatology").

VI.

For these reasons, we affirm in part, reverse in part,

and remand for proceedings not inconsistent with this opinion.11

The parties will bear their own costs.

- Dissenting Opinion Follows -

11 We have left only one state-law claim in play, while affirming judgment against John on all of his federal-law claims. Had subject-matter jurisdiction been based solely on the presence of federal questions, our decision would have required the district court to decide whether to "retain or disclaim [supplemental] jurisdiction over the remaining state law claim[]." Penobscot Indian Nation v. Key Bank of Me., 112 F.3d 538, 564 (1st Cir. 1997). But John has also relied upon diversity jurisdiction, alleging that he and Brown "are citizens of different states and the amount in controversy exceeds $75,000."

- 34 - CASPER, District Judge, dissenting. I respectfully

dissent from one aspect of the majority's opinion. I would affirm

the district court's ruling on summary judgment in all respects,

including that regarding John's intentional infliction of

emotional distress ("IIED") claim. The Circuit has recognized

that "Champlin [v. Washington Trust Co., 478 A.2d 985, 990 (R.I.

1984)] appeared to treat the question whether conduct is

sufficiently extreme and outrageous as one of law," Fudge v.

Penthouse Int'l, 840 F.2d 1012, 1021 (1st Cir. 1988), and summary

judgment is warranted where "the circumstances described fall far

short of that level of conduct that could be termed either

'extreme' or 'outrageous.'" Elias, 493 A.2d at 164 cited in

Borden, 935 F.2d at 381 (ruling that the IIED high threshold had

been crossed where the insurance company, with "no entitlement to

downgrade the policy," did so, delayed benefit payments to the

insured and then lied to him about the difference between the

original policy and the downgraded one). Even confining my

analysis to the second element of the claim -- whether a jury could

find Brown's actions, particularly as to the October 28th post-

hospitalization meeting, extreme and outrageous -- the grant of

summary judgment in the university's favor was warranted.

As to the Marques factors cited by the majority for

determining whether conduct is extreme and outrageous, a jury would

have before it the college-student relationship between the

- 35 - parties (which was reflected not just in the October 28th meeting,

but also in the provision of CAPS counseling and academic advising

and prior contact with John's mother) and that John had exhibited

emotional distress prior to the meeting of which the Brown

officials were aware. It, however, would also be left with Brown's

conduct of the October 28th meeting, the event that, now on appeal,

is the centerpiece of John's IIED claim. During this meeting

called by Dean Suarez and Vice President Klawunn, John was not

alone but accompanied by his mother. At the time of this meeting,

it was undisputed that, only two months into the semester of his

sophomore year, John was not doing well academically, was

exhibiting emotional distress and behavior that resulted in self-

harm and property damage warranting psychiatric evaluation and

hospitalization, and now also had allegations of violating the no-

contact order against him by Jane. Given these circumstances, it

is not surprising (and undisputed) that John was considering a

leave before this meeting and Dean Suarez and the Vice President

were as well. Even viewing the record in the light most favorable

to John that Brown threatened John with additional conduct charges

(related to substance abuse and damage to the truck), or action on

Jane's new no-contact allegations or revisiting Sally's

complaint,12 these were all actions that Brown could take. See

12 Brown had closed an investigation of Sally's complaint in

- 36 - Norton v. McOsker, 407 F.3d 501, 511 (1st Cir. 2005) (affirming

summary judgment for defendant, noting that "[t]he actor is never

liable . . . where [he] has done no more than to insist upon

his . . . legal rights in a permissible way, even though he . . .

is well aware that such insistence is certain to cause emotional

distress" (internal citations and quotation marks omitted)). It

is not a free pass from liability to acknowledge that this

principle in Norton also applies where school administrators

pointedly lay out a range of adverse consequences in a difficult

meeting with John and his parent. As the district court

recognized, "[s]tudent disciplinary investigations and the face-

to-face meetings no doubt could cause a wide range of emotional

distress." The question for the jury, however, is whether Brown's

conduct was "so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized community."

Swerdlick, 721 A.2d at 863 (emphasis and internal citation

omitted). On the record before this Court and in light of the

very high legal standard that applies, I respectfully submit that

a reasonable jury could not find for John on this claim.

August 2014 but had advised John at that time that "[i]f we obtain additional information relevant to the matter we may choose to proceed at a later time."

- 37 - Accordingly, I would affirm the district court's grant of summary

judgment for Brown on this claim as well.

- 38 -