Doe v. University of Massachusetts

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

JOHN DOE, )

)

Plaintiff, )

) CIVIL ACTION

v. ) No. 23-12077-WGY

)

UNIVERSITY OF MASSACHUSETTS, )

TRUSTEES OF THE UNIVERSITY OF )

MASSACHUSETTS, HANNAH MONBLEAU, )

KATE LEGEE, ADAM DUNBAR, and )

ESMERALDA LEVESQUE, )

)

Defendants. )

___________________________________)

YOUNG, D.J. April 9, 2024

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

I. BACKGROUND

Public universities are necessarily loci of unpopular

opinions that add to the educational discourse. At the same

time, public universities have an obligation to protect their

students from other students’ misconduct that disrupts or

interferes with the operations of the university or rights of

others. The Supreme Court in Tinker v. Des Moines Independent

Community School District, 393 U.S. 503, 507 (1969) recognizes

that issues inevitably arise where “the exercise of First

Amendment rights collide with the rules of the school

authorities” and, as discussed in more detail below, instructs

the district courts –- this Court –- not to act as an appellate

court, but rather to defer to “reasonable” actions by public

school officials in carrying out their difficult charge. See

id.

In this action, John Doe (“Doe”)1 a graduate student and

resident advisor (“RA”) was disciplined by the University of

Massachusetts (“UMass Lowell”) for violation of its Student

Conduct Code for what it deemed was Doe’s sexual misconduct.

UMass Lowell employee Hanna Monbleau (“Monbleau”) investigated

complaints by four RAs (also students) which uncovered other

misconduct. A hearing panel comprised of UMass Lowell employees

Kate Legee (“Legee”), Adam Dunbar (“Dunbar”), and Esmeralda

Levesque (“Levesque”) (Monbleau, Legee, Dunbar, and Levesque are

collectively the “Individual Defendants”) held a hearing –- that

Doe chose not to attend -- and found that Doe had engaged in a

pattern of conduct towards female students that violated the

Student Conduct Code. Doe was not expelled, but banned from

campus housing, ordered to stay away from the victims, and

required to complete a remedial behavior class before continuing

his classes. Doe filed this lawsuit.

On November 20, 2023, the Court, as is its practice,

collapsed Doe’s motion for a preliminary injunction against

1 Plaintiff is proceeding by pseudonym.

Legee, ECF No. 20, with a trial on the merits pursuant to Rule

65 of the Federal Rules of Civil Procedure. See Electronic

Clerk’s Notes, ECF No. 25. On November 28, 2023, UMass Lowell,

Trustees of UMass Lowell (the “Trustees”), and the Individual

Defendants (collectively, the “University Defendants”) filed

their answer to the complaint, raising affirmative defenses,

including qualified immunity and sovereign immunity. Answer,

ECF No. 26.

On December 18, 2023, the parties agreed in their pretrial

memorandum, Pretrial Mem., ECF No. 31, to proceed case stated,

filing a joint statement of stipulated facts, Stipulated Facts

(“Stip. Facts”), ECF No. 31-1, and joint exhibit list, Joint Ex.

List (“Ex.”), ECF No. 31-2. The University Defendants filed a

trial brief, Univ. Defs.’ Trial Br., ECF No. 35, and a proposed

findings of fact and conclusions of law, University Defs.’

Proposed Findings of Fact & Conclusions of Law, ECF No. 36.

Similarly, Doe filed a trial brief, Doe’s Trial Br., ECF No. 39,

and proposed findings of fact and conclusions of law, Pl.’s

Proposed Findings of Fact & Conclusions of Law, ECF No. 38.

Doe dismissed count II (Title IX) by a purported notice of

voluntary dismissal, Pl.’s Notice of Voluntary Dismissal of

Count II, ECF No. 33,2 and dismissed count IV (Breach of

2 Doe does not have the right voluntarily to dismiss a count

without prejudice, as here, after an answer has been served.

Contract) at the case stated hearing held on February 5, 2024,

after which the Court took the matter under advisement. See

Electronic Clerk’s Notes, ECF No. 41.

What remains of Doe’s original complaint, Compl., ECF No.

1, are two counts against UMass Lowell, the Trustees, and the

Individual Defendants for monetary and equitable relief based

on: (1) a claim for First Amendment retaliation under 42 U.S.C.

§ 1983 (count I) (the “Section 1983 Claim”); and (2) a claim

under the Massachusetts Civil Rights Act (the “MCRA”), Mass.

Gen. Laws ch. 12, §§ 11H, 11I (count III) (the “MCRA Claim”)

(the Section 1983 and MCRA Claim are collectively the “Remaining

Counts”). At the hearing, the Court admitted the agreed-upon

exhibits into evidence and, also disputed exhibits B through V.

Doe does not attack the Student Conduct Code itself under these

counts. See Compl. Rather, Doe’s claim is that his conduct was

protected under the United States and Massachusetts’

constitutions.

For the reasons stated below, the Court finds and rules

that the University Defendants acted reasonably, and therefore

See Fed. R. Civ. P. 41(a)(1)(A)(i) (providing that a plaintiff

may dismiss an action by filing “a notice of dismissal before

the opposing party serves either an answer or a motion for

summary judgment” (emphasis added)). At the hearing the parties

proceeded on the basis that count II was dismissed. The Court

dismisses count II with prejudice.

judgment shall enter in favor of the University Defendants and

against Doe.

II. FINDINGS OF FACT

The parties stipulated to, and the Court adopts and finds,

the Joint Statement of Undisputed Facts, see Stip. Facts, which

are recited almost verbatim and without quotations for ease of

reference. The Court also has considered exhibits 1 through 13,

and disputed exhibits B through V (giving them such weight as

they are due) as part of the record in this case-stated action.

A. The Parties

Doe is a male Indian national in a Ph.D. program at UMass

Lowell. Stip. Facts ¶ 1. The defendant UMass Lowell is a

public university established by the Commonwealth in Mass. Gen.

Laws ch. 75, § 1 et seq. Id. ¶ 2. It receives federal funding

for its education programs. Id.

The defendant Trustees is the governing board of UMass

Lowell. Id. ¶ 3. UMass Lowell has a campus in Lowell,

Massachusetts. Id. ¶ 4. UMass Lowell has a Student Conduct

Code. Id. ¶ 5. As part of that Student Conduct Code, sexual

misconduct is defined as:

Sexual misconduct: unwelcomed conduct of a sexual nature

when: . . . such conduct unreasonably interferes with a

person or person’s work or academic performance;

interferes with or limits a person or person’s ability

to participate in or benefit from a work or academic

program or activity; or creates an intimidating,

hostile, or offensive working or academic environment.

Student Conduct Code, Ex. 2. UMass Lowell has a Sexual

Harassment Grievance Procedure. Stip. Facts ¶ 6; see Sexual

Harassment Grievance Procedure, Ex. 3.

UMass Lowell employed defendant Monbleau as its Assistant

Director of Student Life and Well-Being, defendant Legee as its

Director of Student Conduct and Prevention, defendant Dunbar as

its Senior Associate Director of Student Affairs, and defendant

Levesque as its River Hawk Scholars Academy Coordinator. Stip.

Facts ¶¶ 7-10. Doe worked as an RA in a dormitory on campus.

Id. ¶ 11.

B. Doe’s Purported Conduct and UMass Lowell’s

Investigation

On May 7, 2023, four female RAs J.T., C.T.Z., E.Z, and

E.H., met with their supervisor to report concerns about Doe.

Id. ¶ 12. C.T.Z., J.T., and E.H. made formal complaints against

Doe. Id. ¶ 13.

On May 19, 2023, Doe received letters from both the Student

Conduct Office and from a Deputy Title IX Coordinator. Id. On

May 19, 2023, UMass Lowell suspended Doe from his role as an RA.

Id. ¶ 14. On May 22, 2023, it issued no-contact orders between

Doe and each of J.T., C.T.Z., E.Z, and E.H. Id. ¶ 15. UMass

Lowell assigned Monbleau to investigate the Doe case. Id. ¶ 16.

E.Z. did not participate in the investigation. Id. ¶ 17.

Monbleau interviewed E.H. on June 5, 2023. Id. ¶ 18. On

June 5, 2023, Monbleau asked E.H. if there were witnesses E.H.

would like Monbleau to interview. Id. ¶ 19. E.H. told Monbleau

that she should interview S.K. as a witness. Id. ¶ 20.

Monbleau interviewed C.T.Z. and J.T. on June 6, 2023. Id.

¶ 21. On June 5, 2023, Monbleau asked C.T. if there were

witnesses C.T. would like Monbleau to interview. Id. ¶ 22. C.T

told Monbleau that she should interview S.K. and G.D. as

witnesses. Id. ¶ 23.

On June 6, 2023, Monbleau contacted Doe to schedule an

interview. Id. ¶ 24.

Monbleau interviewed S.K. as a witness on June 14, 2023.

Id. ¶ 25. UMass Lowell issued a no-contact order between Doe

and S.K. on June 20, 2023. Id. ¶ 26. S.K. subsequently made a

formal complaint against Doe. Id. ¶ 27.

Monbleau interviewed Doe on June 23, 2023. Id. ¶ 28. On

June 23, 2023, Monbleau asked Doe if there were witnesses Doe

would like Monbleau to interview. Id. ¶ 29. Doe told Monbleau

that she should interview A.M. as a witness. Id. ¶ 30.

On June 26, 2023, Monbleau again asked Doe if there were

other witnesses he would like her to interview or screenshots of

messages he wanted to send her for inclusion in the report. Id.

¶ 31. Doe sent Monbleau various screenshots of messages and

extended explanations of his interactions with the complainants,

which Monbleau included in the report. Id. ¶ 32; see

Investigative Report, Ex. 10.

Monbleau interviewed G.D. as a witness on June 27, 2023.

Stip. Facts ¶ 33. Monbleau interviewed A.M. as a witness on

June 29, 2023. Id. ¶ 34. Monbleau wrote to Doe on June 30,

2023 to request a second interview. Id. ¶ 35. Monbleau

interviewed Doe for a second time on July 5, 2023. Id. ¶ 36.

UMass Lowell sent the Investigative Report, Ex. 11,

excluding its appendices, to Doe on July 11, 2023. Stip. Facts

¶ 37. In the Investigative Report, Monbleau recommended “to

move this case, per the Title IX Sexual Harassment Grievance

Procedure, to a hearing panel for a charge against [Mr. Doe] . .

. [of] Sexual Misconduct.” Id. ¶ 38.

On July 12, 2023, Michael Coughlin, UMass Lowell’s

Associate Director of Student Rights & Responsibilities,

notified Doe that his case would move to a “Title IX hearing

panel,” scheduled for August 7, 2023, and that he “will need an

advisor to conduct cross-examination.” Id. ¶ 39. On July 13,

2023, UMass Lowell notified Doe that his case would move to a

hearing panel scheduled for August 7, 2023. Id. ¶ 40.

On July 19, 2023, Doe notified UMass Lowell that he is

designating Attorney Ilya Feoktistov (Doe’s counsel here) as his

“support person concerning this matter.” Id. ¶ 41. UMass

Lowell sent the Investigative Report, including its appendices,

to Doe and Attorney Feoktistov on July 20, 2023. Id. ¶ 42. On

July 20, 2023, the University notified Doe and Attorney

Feoktistov that his case would move to a hearing panel under the

“Student Conduct process,” scheduled for August 22, 2023, and

identified the members of the hearing panel. Id. ¶ 43.

On July 28, 2023, UMass Lowell notified Doe and Attorney

Feoktistov of a change in the composition of the hearing panel,

which would consist of Legee, Dunbar, and Levesque. Id. ¶ 44.

On July 30, 2023, Doe submitted a written response to the

Investigative Report. Id. ¶ 45; see Doe’s Response to

Investigative Report, Ex. 12. On August 9, 2023, Legee notified

Doe and Attorney Feoktistov of the individuals anticipated to

attend the hearing panel. Stip. Facts ¶ 46.

On August 16, 2023, UMass Lowell sent Doe and Attorney

Feoktistov a copy of Doe’s response to the Investigative Report

and the investigator’s response to Doe. Id. ¶ 47. On August

21, 2023, Attorney Feoktistov informed UMass Lowell that Doe

would not be attending the hearing. Id. ¶ 48.

UMass Lowell convened a hearing panel on August 22, 2023 to

determine whether Doe was responsible for a violation of the

Student Conduct Code. Id. ¶ 49. Doe did not attend the hearing

panel. Id. ¶ 50. The complainants and a witness attended and

gave evidence to the panel.

On September 7, 2023, UMass Lowell notified Doe that the

hearing panel found him responsible for sexual misconduct. Id.

¶ 51. The panel issued a written decision setting forth its

findings, rationale, and the sanctions it imposed on Doe. Id. ¶

52; see Letter from Legee to Doe re Decision of Hearing Panel

(“Hearing Panel’s Decision”), Ex. 1. The charge, material

findings of fact, finding, and rationale are set forth in full

here:

Alleged Violations:

Violation: Sexual Misconduct

Sexual Misconduct: unwelcomed conduct of a sexual nature

when: submission to or rejection of such conduct by a

person or persons is used as a basis for employment or

educational decisions affecting such person or persons,

or participation in University programs or activities;

or such conduct unreasonably: interferes with a person

or person's work or academic performance; interferes

with or limits a person or person's ability to

participate in or benefit from a work or academic program

or activity; or creates an intimidating, hostile, or

offensive working or academic environment.

Response: Respondent did not attend the hearing panel.

The hearing panel considered Respondent's statements to

the investigator as well as his July 30, 2023 written

response to the investigation report in reaching its

findings.

Hearing Panel Findings:

Charge: Sexual Misconduct

Material findings of fact:

During the investigation interviews, as well as in the

hearing on August 22, 2023, the complainants and witness

described respondent John Doe engaging in multiple

sexual comments and touches without consent or prior

warning. All complainants stated that the comments made

by John Doe were not welcome. John Doe[’s] July 30,

2023 response to the investigation report indicates that

he agrees that many of the comments did occur with the

complainants and witness, all of whom he met as a student

in the residence halls. The following comments and

actions are confirmed as fact by all parties involved in

each incident: John Doe hugged female students, John Doe

stated to SK "I don't need to someone to have sex with,"

and John Doe[’s] 'comparison of unwanted sexual conduct

with unwanted religious proselytism was provocative but

apt . . .' Further, multiple witnesses indicated that

John Doe moved JT[’s] feet without consent. There were

discrepant reports about the specific comment about sex

while eating food and about the reference to shaving

pubes and testicles.

Witness GD stated that John Doe stated "what if I stuck

my penis in your face?" This statement, according to GD

in the hearing panel on August 22, 2023, caused her to

feel fear and confusion about John Doe[’s] intent in the

moment. John Doe states that he did compare unwanted

sexual conduct to religious proselytism in this

conversation and meant to do so in disagreement with

both. In the hearing panel on August 22, 2023, GD stated

that this comment was not welcome.

CT stated in the hearing panel on August 22, 2023, that

when she did see KG and John Doe, she waved at them. In

his interview with the investigator, KG stated that "CT

came out and waved her hand and a wine bottle. It was

informal because they were on duty and he doesn't have

the relationship for them to do that. He just waved

back and told John Doe they're probably just enjoying

themselves." In his interview with the investigator,

John Doe stated that when he and KG saw CT, she waved

the wine bottle at them. In his response to the

investigation report, John Doe stated that CT told KG

that "I know you'll snitch on me." Witness CT stated in

the hearing panel on August 22, 2023 that she and other

students were, in fact, drinking on the night of May 6,

2023. She stated that she did not make any statements

to KG, nor John Doe related to not "snitching" on them.

In the hearing panel on August 22, 2023, as well as in

her interview with the investigator, CT stated that John

Doe told her "If the food is good, I'd have sex while

eating." She did not welcome this comment. In his

interview with the investigator, John Doe stated that he

does not remember saying the word sex while talking about

food, but that he may have done so. In his response to

the investigation report, John Doe stated that CT may

have misunderstood what he was saying in regard to food,

and that he may have been speaking similar to the popular

hashtag #foodporn.

JT stated in her interview with the investigator as well

as in the hearing panel on August 22, 2023, that John

Doe touched her legs with his hands, and possibly with

his feet, without her consent to place her feet on the

shaker plate. In his response to the investigator's

report, John Doe stated that he used his feet to move

her feet. This was confirmed by Witness DI in the

investigator's report. In the hearing panel on August

22, 2023, JT stated that she did not welcome the touching

of her feet by John Doe.

In the hearing panel on August 22, 2023, JT stated that

John Doe touched her thigh without consent when he

attempted to show her a video on his phone. John Doe

denied ever touching any other students, in either an

inappropriate or appropriate manner.

JT stated in the investigator's interview and the

hearing panel on August 22, 2023 that John Doe made a

comment to her about shaving his pubes and to several

students shaving his testicles while there was a group

of students together in his room to look at his workout

equipment. This was confirmed by witness RR in the

investigator's report. In the hearing panel on August

22, 2023, the investigator stated that she learned that

RR was there during the comment from Witness DI, and not

from any other party involved; this is why she asked him

to provide his account. John Doe denies making these

statements, as does Witness DI.

JT stated, in both her interview with the investigator

as well as the hearing panel on August 22, 2023, that

she would be hugged by John Doe without him asking to

hug her, but rather by him approaching her closely with

outstretched arms to embrace her. She stated that she

did not feel comfortable with these hugs. In his

interview with the investigator, he stated that he and

JT were close friends, and that she had made him a

valentine. In his response to the investigation report,

John Doe stated that his request for hugs were not

unwelcome.

In her interview with the investigator, as well as the

hearing on August 22, 2023, SK indicated that John Doe

told her "I don't need someone to have sex with, I just

want someone to cuddle with," and "I'll be alone, so

I'll just jerk off and go to bed." In the interview

with the investigator, John Doe stated he did not make

any comments of this nature. In his response to the

investigator's report, John Doe stated that he said "I

don't need to someone to have sex with." In the hearing

panel on August 22, 2023, SK stated that she did not

welcome the comment.

Finding: Responsible

Rationale: In the hearing on August 22, 2023, JT, CT,

SK, and GD all stated that the conduct by John Doe was

not welcome.

As noted above, related to the comment "what if I stuck

my penis in your face" in conversation with GD, John Doe

states that he did compare unwanted sexual conduct to

religious proselytism in this conversation and meant to

do so in disagreement with both. With this context of

intent assumed as fact, the statement remains unwelcome

by the recipient.

Related to the comment in conversation with CT, John Doe

stated that he does not remember saying the word sex

while talking about food, but that he may have done so.

In his response to the investigation report, John Doe

stated that CT may have misunderstood what he was saying

in regard to food, and that he may have been speaking

similar to the popular hashtag #foodporn. With this

context of intent assumed as fact, the statement remains

unwelcome by the recipient.

Related to moving JT[’s] feet without her consent, John

Doe stated that he did so to move her feet on the shaker

plate, and did so with his own feet. This touching was

unwelcome and no party noted any conversation asking for

consent.

JT stated that John Doe would hug her without asking

until his arms were outstretched and she felt obligated

to engage. John Doe stated that his hugs with JT were

not unwelcome. With this context of intent assumed as

fact, the hugs were not welcome by the recipient.

SK stated that the comments that John Doe made about sex

were not welcome. John Doe stated that he said to SK "I

don't need to someone to have sex with." This comment

was not welcome by the recipient.

The comments to SK, CT, and GD, as well as hugs and

touching of JT[’s] feet constitute a pervasive pattern

of unwelcome conduct related to sex directed to female

students. These comments affected SK, who left the room

after the comment occurred to avoid John Doe[’s]

conduct, and asked to not be on duty with John Doe

afterward. JT and CT also indicated that they were not

comfortable interacting with John Doe any longer, and

that the interactions impacted their ability to work

their student employment positions at UMass Lowell.

Given the aforementioned information provided through

the investigation, response to the report, and hearing,

the panel finds that John Doe[’s] comments and touching

actions were more likely than not unwelcome, were of a

sexual nature, and created a working environment in an

academic setting that was offensive for multiple female

students. A reasonable person would find comments of a

sexual nature in the academic living and working

environment to be offensive. On the preponderance of

evidence standard, this constitutes a violation of the

sexual misconduct standard in the Student Conduct Code.

Id. at 4-6 (emphasis added). As a result, Doe was

sanctioned:

Sanctions: [(1)] Permanent housing removal, [(2)]

elevated probation through graduation, [(3)] research of

and completion of approved consent training required

prior to registering for future classes, [(4)] no

contact orders between all complainants as well as

witness GD and John Doe

Rationale: Sexual misconduct impacts members of the

campus community tremendously. The respondent's

behavior in this case impacted multiple members of the

student community. Past cases of findings of

responsibility for sexual misconduct have led to

sanctions ranging from elevated probation to housing

removal, suspension, and expulsion.

The complainants all indicated being made uncomfortable

to a degree that shows a pattern of sexually

inappropriate comments with females who live in

university housing. All incidents occurred between

female residents and the respondent while in university

housing. By separating the respondent from university

housing, further comments of this nature can be

prevented from impacting other students in the

residential community. The lowest sanction given in

cases such as these would not remediate the effects of

the actions.

The panel believes completion of a self-researched and

approved consent training that can show that the

respondent has learned appropriate ways to interact with

others in conversations related to sex to prevent

further harm and enable him to partake in the academic

community in appropriate ways. Once proof of an

appropriate consent training is provided and approved,

the respondent can resume registering for courses on

campus. The course may be taken online or in person,

but must be approved by the Office of Student Rights &

Responsibilities as appropriate.

Id. at 6 (emphasis added). Doe did not appeal the findings.

Instead, he filed this action.

III. CONCLUSIONS OF LAW

A. A Case Stated

The parties have waived their right to a trial and are

proceeding on a case stated basis. In a case stated,

“the parties waive trial and present the case to the

court on the undisputed facts in the pre-trial record.”

TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n.6 (1st

Cir. 2007). “The court is then entitled to ‘engage in a

certain amount of factfinding, including the drawing of

inferences.’” Id. (quoting United Paperworkers Int'l

Union Loc. 14 v. International Paper Co., 64 F.3d 28, 31

(1st Cir. 1995)).

Doe v. Hopkinton Pub. Schools, 19 F.4th 493, 502 (1st Cir.

2021). The Court proceeds on this basis and has done so on

First Amendment cases such as the instant action. Id.

B. Eleventh Amendment Sovereign Immunity

The University Defendants properly raise the affirmative

defense of Eleventh Amendment sovereign immunity because Doe, by

suing a public university and its officials, is suing the state

and state officials in their official capacity. Under the

Eleventh Amendment to the Constitution, “[s]tates and their

agencies are entitled to sovereign immunity ‘regardless of the

relief sought.’” Poirier v. Massachusetts Dep’t of Correction,

558 F.3d 92, 97 (1st Cir. 2009) (quoting Kentucky v. Graham, 473

U.S. 159, 167 n.14 (1985)).3 UMass Lowell, as an arm of the

state, is entitled sovereign immunity under the Eleventh

Amendment, see Langadinos v. Board of Trustees of U. of

Massachusetts, No. Civ. A. 12-11159-GAO, 2013 WL 5507042, at *18

(D. Mass. Sept. 30, 2013) (O’Toole, J.) (collecting cases and

holding that “UMass is an arm of the state entitled to sovereign

3 The Eleventh Amendment to the Constitution provides: “The

Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State,

or by Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI.

immunity”); Doe v. University of Massachusetts-Amherst, No. CV

14-30143-MGM, 2015 WL 4306521, at *5 (D. Mass. July 14, 2015)

(Mastroianni, J.). Accordingly, the remaining counts are

dismissed against UMass Lowell on the ground of Eleventh

Amendment sovereign immunity. Langadinos, 2013 WL 5507042, at

*19; see also Doe v. Ohio State U., 219 F. Supp. 3d 645, 654

(S.D. Ohio 2016).

“While a state may not be sued directly absent its own

consent, the Ex Parte Young doctrine permits suits to proceed

against state officers in their official capacities to compel

them to comply with federal law.” Vaqueria Tres Monjitas, Inc.

v. Irizarry, 587 F.3d 464, 477–78 (1st Cir. 2009) (citing Ex

Parte Young, 209 U.S. 123 (1908)). As the First Circuit

explains, this exception “stems from the notion -- some say

fiction -- that, since a state could not authorize an official

to violate federal law, by doing so, a state official is

stripped of her authority and thus a suit against her does not

implicate the state's sovereign immunity.” Id. at 478 (citation

omitted). Therefore, “[s]uch suits . . . may only seek

prospective injunctive or declaratory relief; they may not seek

retroactive monetary damages or equitable restitution.” Id.

Applied here, with respect to the Section 1983 Claim, the

Trustees and Individual Defendants can be sued in their official

capacity for prospective injunctive and declaratory relief. See

Doe v. Northern Mich. U., 393 F. Supp. 3d 683, 693 (W.D. Mich.

2019).

At the same time, Eleventh Amendment sovereign immunity

bars claims for injunctive relief against state officials in

their official capacity for violation of state law. See Doe v.

UMass-Amherst, No. CV 19-30056-MGM, 2023 WL 8851056, at *30 n.24

(D. Mass. Dec. 21, 2023) (Mastroianni, J.) (“[T]he Ex Parte

Young exception is not available . . . [where] there is no

ongoing violation of federal law to enjoin.”). Accordingly,

with respect to the MCRA Claim, the Trustees and Individual

Defendants in their official capacities are entitled to

sovereign immunity for all claims for injunctive relief.

C. Qualified Immunity

The University Defendants also raise the affirmative

defense of qualified immunity. “Qualified immunity protects

government officials . . . from liability when they act under

color of state law, and when their actions or decisions,

‘although injurious, “do[ ] not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.”’” Johnson v. City of Biddeford, 92 F.4th

367, 375 (1st Cir. 2024) (quoting Swartz v. Sylvester, 53 F.4th

693, 698 (1st Cir. 2022)).4 The Court employs a two-part

4 The Supreme Court and the First Circuit have emphasized

that district courts ought “resolv[e] immunity questions at the

analysis: (1) “[t]he plaintiff must ‘identify either controlling

authority or a consensus of persuasive authority sufficient to

put an officer on notice that his conduct fell short of the

constitutional norm,’” and (2) “[t]he plaintiff must . . . ‘show

that an objectively reasonable officer would have known that his

conduct violated the law.’” Id. (quoting Estate of Rahim, 51

F.4th at 410). It is well-understood that “[t]he purpose of

these examinations is to determine ‘whether the state of the law

[at the time of the officer's conduct] gave [him or her] fair

warning that [his or her] alleged treatment of [the plaintiff]

was unconstitutional.’” Id. (quoting Lachance v. Town of

Charlton, 990 F.3d 14, 20-21 (1st Cir. 2021)). The burden is on

Doe, and it is a heavy burden to surmount:

“[A]n officer is entitled to qualified immunity ‘[i]f . .

. an objectively reasonable officer could have concluded

(even mistakenly) that his or her conduct did not violate

[the plaintiffs'] rights.’” Stamps v. Town of Framingham,

813 F.3d 27, 34 n.7 (1st Cir. 2016) (second alteration in

original) (quoting Mlodzinski v. Lewis, 648 F.3d 24, 28

(1st Cir. 2011)). A court will hold otherwise only if “the

unconstitutionality of the officer's conduct [is] beyond

debate in light of an existing principle of law.” French

v. Merrill, 15 F.4th 116, 126 (1st Cir. 2021). This is a

“heavy burden” for a plaintiff to meet. Est. of Rahim, 51

F.4th at 410 (quoting Lachance, 990 F.3d at 20). Qualified

immunity “gives government officials breathing room to make

reasonable but mistaken judgments, and protects all but

earliest possible stage in litigation.” Estate of Rahim v. Doe,

51 F.4th 402, 411 (1st Cir. 2022) (quoting Pearson v. Callahan,

555 U.S. 223, 232 (2009)). This Court’s accelerated resolution

of the merits of this action also has the benefit of resolving

the qualified immunity issue at the earliest possible stage of

the litigation.

the plainly incompetent or those who knowingly violate the

law.” Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014)

(internal quotation marks omitted) (quoting Carroll v.

Carman, 574 U.S. 13, 17 (2014)).

Id. at 375-76 (emphasis added). “Clearly established means

that, at the time of the officer's conduct, the law was

sufficiently clear that every reasonable official would

understand that what he is doing is unlawful.” District of

Columbia v. Wesby, 583 U.S. 48, 63 (2018) (internal

quotation marks omitted) (emphasis added). Moreover, the

“clearly established” analysis requires a high-level of

specificity:

The “clearly established” standard also requires that the

legal principle clearly prohibit the officer's conduct in

the particular circumstances before him. The rule's

contours must be so well defined that it is “clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier v. Katz, 533 U.S. 194,

202 (2001). This requires a high “degree of specificity.”

Mullenix v. Luna, 577 U.S. (2015) (per curiam). We have

repeatedly stressed that courts must not “define clearly

established law at a high level of generality, since doing

so avoids the crucial question whether the official acted

reasonably in the particular circumstances that he or she

faced.” Plumhoff, supra, at . . . 2023 (internal quotation

marks and citation omitted). A rule is too general if the

unlawfulness of the officer's conduct “does not follow

immediately from the conclusion that [the rule] was firmly

established.” Anderson, supra, at 641, 107 S.Ct. 3034.

Wesby, 583 U.S. at 63–64 (emphasis added); accord Ablordeppey v.

Walsh, 85 F.4th 27, 33 (1st Cir. 2023) (“When defining clearly

established law, the Supreme Court has instructed courts that

the dispositive question is whether the violative nature of

particular conduct is clearly established.” (internal quotation

marks and citation omitted)). In undertaking its analysis, this

Court may proceed with either prong of the analysis.

Ablordeppey, 85 F.4th 27, 33. Failure of the plaintiff to

establish both prongs results in qualified immunity.

Turning to the second prong, it is not clearly established that

every reasonable state official would know that their conduct in

finding a violation of the Student Conduct Code was a violation

of Doe’s constitutional rights under the First Amendment. In

fact, in the absence of First Circuit precedent, there is

persuasive recent Eighth Circuit authority contrary to Doe’s

position on this issue. See Rowles v. Curators of U. of

Missouri, 983 F.3d 345, 357 (8th Cir. 2020) (“We agree with the

district court that . . . [the individual defendants] are

nonetheless entitled to qualified immunity because [plaintiff]

cannot show that he was deprived of a clearly established

constitutional right. . . . It was reasonable for [the

individual defendants] to conclude that it was permissible under

the First Amendment to punish Rowles for violating the

University's policies against harassment and stalking.”). Here,

Doe’s claims of clearly established constitutional rights are

asserted at too general a level. Rather, Doe cites cases that

are not directly in point and do not address the circumstances

presented here. Doe fails to meet his high burden. The

Individual Defendants are also entitled to qualified immunity

because, as the Court determines below, there was no violation

of a constitutional right. Accordingly, the Individual

Defendants are entitled to qualified immunity for monetary

damages under Section 1983 on this prong.

D. Section 1983 Claim – The University Defendants Acted

Reasonably

All that’s left is Doe’s claim for prospective injunctive

relief against the Individual Defendants.

“Federal law creates a cause of action under 42 U.S.C. §

1983, which allows a plaintiff to sue persons acting under color

of state law for constitutional transgressions or other

violations of federal law.” Martin v. Somerset Cnty., 86 F.4th

938, 943 (1st Cir. 2023). Section 1983 provides in pertinent

part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . .

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress . . .

.

42 U.S.C. § 1983. “[N]either a State nor its officials acting

in their official capacities are ‘persons’ under § 1983.” Will

v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). This

includes UMass Lowell, which is an agency of the Commonwealth,

and therefore not a person under Section 1983. See Langadinos,

2013 WL 5507042, at *16 (“UMass is not a person for the purpose

of Section 1983.”). Accordingly, Doe’s Section 1983 Claim

against UMass Lowell, and official-capacity monetary damages

claims brought against the Trustees and Individual Defendants,

fail because they are not “persons” under the statute.

Doe’s Section 1983 Claim fails on the merits. For over a

century it has been well-settled that “First Amendment rights,

applied in light of the special characteristics of the school

environment, are available to teachers and students. It can

hardly be argued that . . . students . . . shed their

constitutional rights to freedom of speech or expression at the

schoolhouse gate.” Tinker, 393 U.S. at 506; accord Gay Students

Org. of U. of N.H. v. Bonner, 509 F.2d 652, 658 (1st Cir. 1974)

(“[T]he First Amendment applies with full vigor on the campuses

of state universities.”). At the same time, the Supreme Court

“has repeatedly emphasized the need for affirming the

comprehensive authority of the States and of school officials,

consistent with fundamental constitutional safeguards, to

prescribe and control conduct in the schools.” Tinker, 393 U.S.

at 507. Issues arise where “the exercise of First Amendment

rights collide[s] with the rules of the school authorities.”

Id. “[I]n Tinker, the Supreme Court explicitly stated that

‘conduct, by the student, in class or out of it, which for any

reasons -- whether it stems from time, place, or type of

behavior . . . is not immunized by the constitutional guarantee

of free speech’ if leads to material disruption, substantial

disorder, or the invasion of the rights of others.” Doe ex rel.

Doe v. Portland Pub. Schools, No. 2:23-CV-00409-JAW, 2023 WL

7301072, at *12 (D. Me. Nov. 3, 2023) (quoting Tinker, 393 U.S.

at 513).

The burden is on UMass Lowell to justify Doe’s speech

restrictions. Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist.,

969 F.3d 12, 25 (1st Cir. 2020). The First Circuit, applying

Tinker, holds that “school officials' restriction of student

speech is justified when: (1) actual ‘disturbances or disorders

on the school premises in fact occur[ ]’; (2) ‘the record . . .

demonstrate[s] . . . facts which might reasonably have led

school authorities to forecast substantial disruption of or

material interference with school activities’; or (3) the speech

invades the rights of others.” Norris, 969 F.3d at 25 (quoting

Tinker, 393 U.S. at 513-14.). The test is objective, and UMass

Lowell may only rely on the reasons it provided Doe at the time

of the discipline. Id. Furthermore, “courts applying Tinker

generally consider all relevant facts known to the school

administrators at the time they disciplined the student or

decided to restrict the speech.” Id. at 30; see Doe v.

Hopkinton Pub. Schools, 490 F. Supp. 3d 448, 469 (D. Mass.

2020), aff'd sub nom. Hopkinton Pub. Schools, 19 F.4th 493.

The First Circuit has reiterated the deference that is due

to school officials’ discretion with respect to curtailment of

speech, noting “[t]he Supreme Court has repeatedly emphasized

the necessary discretion school officials must exercise and the

attendant deference owed to many of their decisions.” Norris,

969 F.3d at 29. Indeed, “[c]ourts generally defer to school

administrators' decisions regarding student speech so long as

their judgment is reasonable.” Id. at 30. Said another way,

“[b]ecause school officials are far more intimately involved

with running schools than federal courts are, ‘[i]t is axiomatic

that federal courts should not lightly interfere with the day-

to[-]day operation of schools,” Hardwick ex rel. Hardwick v.

Heyward, 711 F.3d 426, 440 (4th Cir. 2013) (quoting Augustus v.

School Bd. of Escambia Cnty., Fla., 507 F.2d 152, 155 (5th Cir.

1975)), and courts must “not second guess their reasonable

decisions,” id.; see B.A.P. v. Overton Cnty. Bd. of Educ., 600

F. Supp. 3d 839, 846 (M.D. Tenn. 2022) (observing that “the

touchstone of Tinker is reasonability”); DeFabio v. East Hampton

Union Free Sch. Dist., 658 F. Supp. 2d 461, 481 (E.D.N.Y. 2009)

(“Although plaintiffs seek to second-guess with hindsight the

judgment of school administrators, that is not the role of the

courts.”).

Here, UMass Lowell’s written decision detailed both

uncontroverted and controverted evidence, and provided a

detailed rationale based upon all of the evidence before it.

The Court rules that the findings were well-supported by all of

the evidence in the record, including Monbleau’s Investigative

Report, Doe’s response, Monbleau’s response to Doe’s response,

and evidence gathered at the hearing in the form of complainant

and witness statements. See Exs. 1, 11-13. While Doe admits

that UMass Lowell found Doe responsible for “five separate

incidents alleged by four individual female coworker resident

advisors,” Doe’s Trial Br. 4, the Court rejects the notion that

UMass Lowell found Doe not responsible for other conduct

discussed in the rationale. Indeed, the fact that, according to

Doe, the issues span four co-students/co-workers and five

incidents that are largely undisputed is, itself, problematic

for Doe. Doe’s attempt to spin his intent with respect to his

speech is irrelevant; “[t]he test under Tinker is objective,

focusing on the reasonableness of the school's response, not the

intent of the student.” Hopkinton Pub. Schools, 19 F.4th at 509

(citing Norris, 969 F.3d at 25). Indeed, Doe goes to great

lengths to isolate his speech and conduct from the effect of his

conduct. By doing so, he misses the forest for the trees. This

Court is viewing all of the evidence available to the Individual

Defendants at the time of the discipline, as it is required, to

determine whether UMass Lowell was reasonable.

Another point that ought not be overlooked is that Doe

chose -- after retaining his counsel in this action -- not to

attend the hearing and provide his evidence to the hearing

panel. Doe’s non-attendance is a fact that necessarily goes

into the mix as to whether UMass Lowell acted reasonably.

Indeed, at a hearing, the panel heard from the complainants and

a witness, and was able to evaluate their credibility. Had Doe

attended, the hearing panel would have had the benefit of

hearing from him and assessing his credibility. By Doe’s non-

attendance, UMass Lowell was left with the proverbial “empty

chair” on the one hand, and the live statements of complainants

and witnesses on the other.5

To be sure, there may be myriad reasons why Doe may have

chosen not to attend, and the Court does not speculate as to

what were those reasons. Regardless, Doe’s knowing and

voluntary failure to attend the hearing makes it difficult for

him credibly to complain about what occurred at the hearing, the

5 The Court does not have the benefit of the record of the

hearing (audio or transcribed) other than what is on the

deliberation form as set forth in full above. See Letter from

M. Coughlin to Doe re Hearing Panel 1, Ex. 9 (“The Hearing will

be recorded.”). Neither party has submitted the recording for

this Court’s consideration.

Individual Defendants’ assessment of the evidence at the

hearing, and reasonableness of UMass Lowell’s ultimate findings.

Nevertheless, even though Doe declined to attend the hearing,

UMass Lowell filled in the holes as best it could with Doe’s

response statement –- a reasonable way to proceed -- and

apparently would have allowed Doe an appeal even though his

absence otherwise foreclosed that option.

Focusing on the task at hand, this Court is not expected to

retry the disciplinary case, but merely to determine whether

UMass Lowell acted reasonably upon the evidence, disputed or

not, it had in front of it at the time it made its decision

Here, all three of the above Tinker factors are present. The

University Defendants did not need to track Tinker word for

word. As found by the University Defendants:

[Doe’s] comments affected SK, who left the room after

the comment occurred to avoid John Doe[’s] conduct,

and asked to not be on duty with John Doe afterward.

JT and CT also indicated that they were not

comfortable interacting with John Doe any longer, and

that the interactions impacted their ability to work

their student employment positions at UMass Lowell.

Given the aforementioned information provided through

the investigation, response to the report, and

hearing, the panel finds that John Doe comments and

touching actions were more likely than not unwelcome,

were of a sexual nature, and created a working

environment in an academic setting that was offensive

for multiple female students. A reasonable person

would find comments of a sexual nature in the academic

living and working environment to be offensive. On

the preponderance of evidence standard, this

constitutes a violation of the sexual misconduct

standard in the Student Conduct Code.

Hearing Panel’s Decision 5-6 (emphasis added). Based upon

the above, and the record evidence, the Court rules that

UMass Lowell reasonably determined that Doe’s conduct

caused a substantial disruption at UMass Lowell as to

female students/RAs. The above conclusion is also a

reasonable determination that Doe’s conduct constituted an

invasion of the rights of other students.

In addition, the sanction raises the reasonable

inference that UMass Lowell had facts that under Tinker

“might reasonably have led school authorities to forecast

substantial disruption of or material interference with

school activities,” 393 U.S. at 514:

The complainants all indicated being made

uncomfortable to a degree that shows a pattern of

sexually inappropriate comments with females who live

in university housing. All incidents occurred between

female residents and the respondent while in

university housing. By separating the respondent from

university housing, further comments of this nature

can be prevented from impacting other students in the

residential community.

Hearing Panel’s Decision 7 (emphasis added). Indeed, UMass

Lowell’s discipline is specifically, and narrowly, designed to

stop the conduct from occurring in the future.

Reviewing the record as a whole, the Court rules that UMass

Lowell acted reasonably in its discipline of Doe. This case is

somewhat different than a typical student conduct case because

the students involved were also RAs –- co-workers –- who live

and work in the same environment in the dormitories. In sum,

the conclusion that this Court draws from all of the evidence is

that UMass Lowell disciplined Doe after it found he acted

inappropriately with several fellow female students and

employees in violation of the Student Conduct Code. Doe does

not have a First Amendment right under the United States

Constitution to engage in inappropriate behavior –- sexual

misconduct -- with co-students and co-workers to disrupt the

academic and work environment, and invade others’ rights.

Accordingly, under Tinker and its progeny, the Court rules that

the UMass Defendants acted reasonably and defers to that action;

there has been no violation of Doe’s First Amendment rights on

this record.

E. The MCRA Claim

“The MCRA is the state ‘counterpart’ to Section 1983 and,

in general, is coextensive therewith.” Maroney as Tr. of

Premiere Realty Tr. v. Fiorentini, 673 F. Supp. 3d 30, 56 (D.

Mass. 2023) (Casper, J.) (quoting Bruce v. Worcester Reg'l

Transit Auth., 655 F. Supp. 3d 1, 11–12 (D. Mass. 2023)

(Hillman, J.)). It is more restrictive, however, because “the

MCRA provides a right of action to any person whose exercise or

enjoyment of rights secured by the federal or state

constitutions or laws has been interfered with by ‘threats,

intimidation or coercion.’” Thomas v. Harrington, 909 F.3d 483,

492 (1st Cir. 2018) (quoting Mass. Gen. Laws ch. 12, §§ 11H,

11I). As an initial matter, “Massachusetts state courts have

held that ‘the Commonwealth [including its agencies] is not a

‘person’ for purposes of M.G.L. ch. 12, §§ 11H and 11I.’”

Powell v. Massachusetts, No. 16-CV-30004-MGM, 2016 WL 7115887,

at *12 (D. Mass. Sept. 20, 2016) (Robertson, M.J.), report and

recommendation adopted, No. CV 16-30004-MGM, 2016 WL 7118260 (D.

Mass. Dec. 6, 2016) (Mastroianni, J.) (citation omitted)

(collecting cases). Accordingly, the MCRA Claim is dismissed as

to UMass Lowell and official-capacity claims against the

Trustees and Individual Defendants under the terms of the

statute.

Under the MCRA, “[a] ‘threat’ is ‘the intentional exertion

of pressure to make another fearful or apprehensive of injury or

harm’; ‘intimidation’ involves putting one ‘in fear for the

purpose of compelling or deterring conduct’”; and “‘[c]oercion’

is the application of force ‘to constrain him to do against his

will something he would not otherwise have done.’” Id. at *15

(quoting Planned Parenthood League of Mass., Inc. v. Blake, 417

Mass. 467, 474 (1994)). To prevail, “the MCRA contemplates a

two-part sequence: [liability may be found where] (1) the

defendant threatens, intimidates, or coerces the plaintiff, in

order to (2) cause the plaintiff to give up something that [she]

has the constitutional right to do.” Goddard v. Kelley, 629 F.

Supp. 2d 115, 128 (D. Mass. 2009) (Saylor, J.).

All that’s left, as pressed by Doe, is a claim under the

MCRA against the Individual Defendants for viewpoint

discrimination in separating him from university housing and

informing him that the Lowell Police Department has been

notified of his status. Doe’s Trial Br. 21-22.

As for the monetary damages claims, the Court rules that,

the Individual Defendants are entitled to qualified immunity for

substantially the same reasons as the Section 1983 Claim, namely

both prongs of the test are not met. See Bonamo v. Betz, 92

Mass. App. Ct. 1222 (2018) (“The doctrine of qualified immunity

under 42 U.S.C. § 1983 (2012), applies equally to MCRA claims. .

. .”). As for the remaining claims from injunctive or

declaratory relief, this Court cannot issue prospective

injunctive relief with respect to state officials’ purported

violations of state law. Thus, claims under the MCRA fail

without reaching the merits.

Presuming without ruling that the Individual Defendants’

actions constituted coercion, see Reproductive Rights Network v.

President of U. of Mass., 45 Mass. App. Ct. 495 (1998), the

claim fails. The Court has already determined that the

Individual Defendants did not engage in unconstitutional conduct

under federal law. To be sure, “Article 16 of the Declaration

of Rights, as amended by art. 77 of the Amendments, is at least

as protective of the freedom of speech as the First Amendment.”

Shak v. Shak, 484 Mass. 658, 661 (2020). Doe does not argue

that the Commonwealth’s protection of speech in the context of

student discipline is more extensive than the Constitution of

the United States under the First Amendment at the university

level. Indeed, while the Massachusetts General Court has

codified Tinker with respect to secondary school speech, the

parties have not directed the Court to any authority suggesting

that post-secondary-level speech ought be analyzed differently

under Article 16 of the MCRA.6 Accordingly, the MCRA Claim

6 Arguably, the Massachusetts General Court by codifying

Tinker to apply to public secondary school speech, and not

modifying that statute to keep up with subsequent Supreme Court

precedent provides more (or at least different) protection for

secondary education speech. As the Supreme Judicial Court

reported to the First Circuit with respect to a certified

question concerning Massachusetts General Laws Chapter 71,

Section 82:

The parties agree that the authors of the bill

intended to codify the First Amendment protection

discussed in Tinker v. Des Moines Indep. Sch. Dist.,

393 U.S. 503 (1969). The defendants, however, argue

that more recent Supreme Court decisions in the area

of students' First Amendment rights, see Bethel Sch.

Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), and

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260

(1988), have narrowed and redefined the holding of

Tinker to allow school administrators to regulate

vulgar or indecent speech in school-sponsored

expressive activities. This may be true, but there

is no reason to believe that these cases, decided more

collapses on the merits with the Section 1983 Claim and fails

for the same reasons as set forth above.

IV. CONCLUSION

Public universities have an interest and duty in the safety

and security of their students and employees. In the context of

a public university, even in the so-called “marketplace of

ideas,” First Amendment rights are necessarily limited where a

student’s speech creates a hostile educational and working

environment. The delicate balance of these competing interests

requires public universities to protect unwarranted intrusions

into a student’s civil rights while at the same time protecting

other students from harm -- a tall order.

The Supreme Court, recognizing the special relationship

that public educators have with their students, requires school

officials act reasonably –- not perfectly. The First Circuit,

in turn, has emphasized the Supreme Court’s mandate that

than ten years after the original enactment of G.L. c.

71, § 82, in any way limit the protection granted

under the statute. Our Legislature is free to grant

greater rights to the citizens of this Commonwealth

than would otherwise be protected under the United

States Constitution. The decision to do so rests

squarely with the Legislature and we are not free

judicially to create new limitations.

Pyle v. School Comm. of S. Hadley, 423 Mass. 283, 286-87

(1996)(emphasis added).

district courts defer to reasonable school officials’ conduct in

this area.

Here, Doe was disciplined for a pattern of misconduct

against female students. He was provided a fair opportunity to

be heard, and was represented by counsel when he decided -– for

whatever reason -- not to appear at the hearing. While Doe may

disagree with the results of UMass Lowell’s decision, and while

this Court makes no finding or ruling as to whether it would

have made similar findings, the Court rules that on the case

stated record the University Defendants’ investigation, hearing,

conclusions and concomitant discipline was –- and is –-

reasonable. Accordingly, judgment shall enter in favor of the

University Defendants and against Doe in this action.

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

JUDGE

of the

UNITED STATES7

7 This is how my predecessor, Peleg Sprague (D. Mass 1841-

1865), would sign official documents. Now that I’m a Senior

District Judge I adopt this format in honor of all the judicial

colleagues, state and federal, with whom I have had the

privilege to serve over the past 46 years.