Doe v. University of Massachusetts

United States Court of Appeals

For the First Circuit

No. 24-1458

JOHN DOE,

Plaintiff, Appellant,

v.

UNIVERSITY OF MASSACHUSETTS; TRUSTEES FOR THE UNIVERSITY OF

MASSACHUSETTS; HANNAH MONBLEAU, in her official and individual

capacities; KATE LEGEE, in her official and individual

capacities; ESMERALDA LEVESQUE, in her official and individual

capacities, a/k/a Esmeralda Mendez; ADAM DUNBAR, in his official

and individual capacities,

Defendants, Appellees,

BRETT SOKOLOW,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Montecalvo and Kayatta,*

Circuit Judges.

* Judge Selya heard oral argument in this case and

participated in the initial semble thereafter. His death on

February 22, 2025, ended his involvement in this case. The

remaining two panelists issued this opinion pursuant to

28 U.S.C. § 46(d).

Ilya I. Feoktistov, with whom Law Office of Ilya Feoktistov

was on brief, for appellant.

Michael Hoven, Associate Counsel, Office of the General

Counsel, University of Massachusetts, with whom Andrea Joy

Campbell, Attorney General of the Commonwealth of Massachusetts,

Denise Barton, Special Assistant Attorney General, and Julia Low,

Associate Counsel, Office of the General Counsel, University of

Massachusetts, were on brief, for appellees.

July 25, 2025

MONTECALVO, Circuit Judge. In 2023, the University of

Massachusetts ("the University") found John Doe1 -- a graduate

student and resident advisor ("RA") at the University's Lowell

campus -- responsible for sexual misconduct and sanctioned him

accordingly. Doe responded by filing a complaint in federal court

against the University, its trustees, and the members of the

hearing panel who handled his case. Doe alleged, among other

things, that the University deprived him of his First Amendment

rights by punishing him for protected speech and expressive

conduct. About two months after filing his complaint, Doe moved

for a preliminary injunction. With the parties' consent, and

pursuant to Federal Rule of Civil Procedure 65, the district court

considered the matter on a "case stated" basis wherein the court

consolidates the preliminary injunction hearing with the trial on

the merits and the parties present the case to the court on the

undisputed facts in the pre-trial record. Following that hearing,

the district court ruled against Doe, finding that his First

Amendment rights had not been violated. Doe timely appealed. For

the reasons below, we reverse in part and affirm in part.

1 Plaintiff-appellant is proceeding by pseudonym. Other

students will be referred to by their initials to protect their

privacy.

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I. Factual Background

A. Initial Complaints and Investigation

In May 2023, four female RAs at the University -- J.T.,

C.T.,2 E.H., and E.Z.3 -- reported concerns to their supervisor

about Doe's interaction with female RAs. Their concerns, followed

by formal complaints by J.T., C.T., and E.H., prompted the

University to suspend Doe from his RA duties and investigate his

alleged misconduct.

The University appointed defendant Hannah Monbleau, the

Assistant Director of Student Life and Well-Being, to conduct the

investigation to "gather[] evidence to allow the University to

determine whether [Doe] . . . violat[ed] the Student Conduct

Code['s]" prohibition on "[s]exual misconduct." In pertinent

part, the Student Conduct Code defines sexual misconduct as

"unwelcomed conduct of a sexual nature when . . . such conduct

unreasonably[] interferes with a . . . 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

The district court's order variously refers to this student

2

as C.T. and C.T.Z. We refer to her only as C.T.

Although E.Z. reported concerns about Doe to her

3

supervisor, she did not file a formal complaint against him and

did not participate in the University's investigation of Doe's

alleged behavior.

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activity; or creates an intimidating, hostile, or offensive

working or academic environment."

In the course of the investigation, Monbleau interviewed

J.T., C.T., and E.H., as well as additional students they

recommended to her, including S.K. and G.D. After S.K.'s interview

with Monbleau, she, too, filed a formal complaint against Doe.

Monbleau also twice interviewed Doe and spoke on one occasion to

another student, A.M., on Doe's recommendation. Monbleau then

compiled the information she gathered from these interviews in a

document titled the "Student Rights & Responsibilities

Investigative Report." The report concluded that Doe's conduct

met the Student Conduct Code's definition of sexual misconduct.

Once she finalized the report, the University sent it to Doe, who

then filed a written response. Monbleau, in turn, filed a reply.

Next, pursuant to the "Student Conduct process," Doe's

case was assigned to a three-member panel of University officials

(the "Conduct Panel"). The Conduct Panel -- comprised of Kate

Legee, Director of Student Conduct and Prevention; Adam Dunbar,

Senior Associate Director of Student Affairs; and Esmeralda

Levesque, River Hawk Scholars Academy Coordinator (collectively,

the "Individual Defendants") -- was tasked with determining

whether Doe had engaged in sexual misconduct (as defined by the

Student Conduct Code). In doing so, the Conduct Panel considered

Monbleau's report, Doe's response, and Monbleau's corresponding

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reply, and held a hearing on August 22, 2023, at which C.T., J.T.,

S.K., and G.D. testified.4

B. The Conduct Panel's Decision

Following the hearing, the Conduct Panel issued a

written decision in a document titled the "Panel Deliberation

Form." There the Conduct Panel first identified the charge against

Doe: engaging in sexual misconduct as defined by the Student

Conduct Code. The charge is followed by a section labeled

"Material findings of fact."5 Next, the Conduct Panel set forth

its ultimate conclusion that Doe was "[r]esponsible" for sexual

misconduct. That conclusion was immediately followed by the

Conduct Panel's rationale.

1. Doe's Alleged Conduct6

The Conduct Panel identified the following conduct as

the basis for its determination that Doe was responsible for sexual

4 As the district court noted below, we do not have the

benefit of the transcript, or any other record, from the Conduct

Panel's hearing on August 22, 2023, other than the information

included in the "Panel Deliberation Form." We also note that Doe

did not attend the hearing.

5 We pause to note the misleading nature of this heading.

While the section identifies undisputed and disputed facts, it

makes no findings as to the veracity of any disputed allegations.

Rather, it merely recites the complainants' allegations against

Doe, Doe's admissions as to some, and his denials as to others.

6 In reviewing First Amendment claims, we consider only the

government actor's contemporaneous rationale for its action, and

not any post hoc rationalizations. See Norris ex rel. A.M. v.

Cape Elizabeth Sch. Dist., 969 F.3d 12, 25-26, 30 (1st Cir. 2020).

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misconduct: three verbal comments that Doe made to three

individuals (G.D., C.T., and S.K.), one isolated physical act (that

Doe adjusted the position of J.T.'s feet on a piece of exercise

equipment), and one repeated physical act (that Doe would extend

his arms towards J.T. to invite or initiate a hug). The Conduct

Panel's rationale also discussed the impact that Doe's behavior

had on G.D., C.T., S.K., and J.T. The specifics of those

allegations are laid out below.7

i. Alleged Statement to G.D.

In her interview with Monbleau, G.D. -- another

university student -- reported that, sometime during the 2022

spring semester, she and Doe "were cooking together" and discussing

Jehovah's Witnesses and religious proselytizing when "Doe said 'Oh

[G.D.] do you want me to shove my penis in your face?' [and G.D.]

said 'what?!'" Doe repeated the statement and "said that [the

question] is like what Jehovah's Witness folks do," they "shov[e]

their beliefs in your face." When interviewed, Doe asserted, as

he does now, that he made the comment to "compare unwanted sexual

conduct to religious proselytism . . . and meant to do so in

Thus, in recounting the pertinent facts we focus on the conduct

and speech the Conduct Panel identified as the basis for its

sanction.

7 The Conduct Panel labeled the evidence concerning other

alleged misconduct "discrepant," and it made no findings

concerning these other allegations.

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disagreement with both." In its rationale, the Conduct Panel

accepted Doe's assertion and "assumed as fact" that "context of

intent." But even with that context assumed, it found that the

comment was "unwelcome."

Relatedly, G.D. initially told Monbleau that she "[d]id

not really think about [the interaction] much until she heard about

what had happened with her peers." But at the August 22, 2023

hearing, G.D. testified that Doe's comment "caused her to feel

fear and confusion about [Doe]'s intent in the moment."

ii. Alleged Statement to C.T.

C.T. told Monbleau that while she and Doe were on RA

duty together and talking about food, Doe said, "if the food is

good, I'd have sex while eating." Doe told Monbleau that he did

not remember using the word "sex" but that he may have. Rather,

he asserted that C.T. "may have misunderstood what he was saying

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

the popular hashtag #foodporn." The Conduct Panel's decision did

not make a finding as to what Doe said.

Asked how Doe's comment impacted her job or academics,

C.T. replied, "[i]t's awkward" and that "[i]t was awkward when she

was experiencing [the alleged behavior] but it's more awkward now

that they [-- i.e., Doe and another male RA, K.G. --] know [that

complaints had been made against them.]" In its decision, the

Conduct Panel also wrote that C.T. "indicated that [she] w[as] not

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comfortable interacting with [Doe] any longer, and that the

interactions impacted [her] ability to work [her] student

employment position[] at UMass Lowell." The evidence supporting

that finding, however, was limited to C.T.'s statement that it was

"awkward" to experience Doe's conduct and that it was "more

awkward" once he learned that she had filed a complaint against

him.

iii. Alleged Statement to S.K.

S.K.'s complaint against Doe also stemmed from a time

she and Doe were on RA duty together. S.K. told Monbleau that

during the shift in question Doe was "talkative and started going

off about dating apps" and "started venting about how he's going

to be alone forever." S.K. reported that Doe then said, "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." Doe,

however, admitted only to saying, "I don't need to [sic] someone

to have sex with." The Conduct Panel's decision again did not

make a finding regarding what was said. Rather, it implied that

the Conduct Panel relied only on the statement that Doe admitted

to making.8

8In its rationale, the Conduct Panel concluded that Doe's

"comment [to S.K.] was not welcome." The use of the

singular -- "comment" -- suggests that the Conduct Panel

considered only the statement Doe admitted to in reaching its

determination that he engaged in sexual misconduct as defined by

the Student Conduct Code.

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S.K. told Monbleau that she thought that the comments

were "[i]nappropriate in the workplace," made her feel "really

uncomfortable" and "in shock," and that she did "not want to work

with [Doe] again." The Conduct Panel's rationale states that Doe's

comment was "not welcome" and caused S.K. to "le[ave] the

room . . . to avoid [Doe]'s conduct, and [to] ask[] to not be on

duty with [Doe] afterward."

iv. Alleged Physical Acts Involving J.T.

The Conduct Panel's rationale also cited two physical

acts -- one singular and one recurring -- involving J.T. First,

J.T. reported that on one occasion Doe moved her feet with his own

to adjust her stance on a piece of exercise equipment located in

Doe's dorm room. Second, J.T. told Monbleau that, on an

unspecified number of occasions, Doe extended his arms towards

J.T. to initiate or invite a hug, which caused her to feel

"obligated to engage." Doe admitted to the hugs but contended

that no one, including J.T., ever said that his "hugs were

unwelcome." The Conduct Panel's rationale nonetheless stated that

both instances of Doe's conduct were unwelcome and that, with

respect to Doe adjusting J.T.'s feet, "no party noted any

conversation asking for consent."

When asked "[h]ow . . . the discomfort [she] felt" due

to Doe's conduct "impacted [her] job/academics," J.T. reported

that her discomfort caused "[n]ot too bad of an impact on her job"

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but that she "d[id not] want to be alone with [Doe]" and "would be

more uncomfortable" if "it was just her and him." In its

rationale, the Conduct Panel stated that Doe's behavior caused

J.T. to "not [be] comfortable interacting with [Doe] any longer,

and that the interactions impacted [her] ability to work [her job]

at UMass Lowell." The only factual support for the latter

assertion, however, was J.T.'s statement that the "discomfort

[she] felt" caused "[n]ot too bad of an impact on her job" and

that she did not want to be alone with him.

2. The Conduct Panel's Conclusion

Based on these allegations, the Conduct Panel concluded

that Doe's actions "created a working environment in an academic

setting that was offensive for multiple female students" and that

"[a] reasonable person would find comments of a sexual nature in

the academic living and working environment to be offensive."

Indeed, the Conduct Panel expressly stated that its ultimate

conclusion -- that Doe engaged in sexual misconduct as defined by

the Student Conduct Code -- was based on its finding that his

comments were offensive. It also stated that Doe's actions

"constitute[d] a pervasive pattern of unwelcome conduct related to

sex directed to female students." The Conduct Panel therefore

imposed sanctions, including permanently banning Doe from living

in campus-provided housing or entering any residence hall,

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notifying campus police of the ban, and placing Doe on "elevated

probation" through his graduation.

II. Procedural History

The Conduct Panel sent Doe its written decision on

September 7, 2023, and Doe filed suit in federal court in

Massachusetts on September 10, 2023. In pertinent part, Doe's

complaint charged the University, its trustees ("Trustees"), and

the Individual Defendants (collectively, "defendants") with

unlawfully depriving him of his First Amendment rights in violation

of 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act

("MCRA"), Mass. Gen. Laws ch. 12, §§ 11H, 11I, and sought monetary

and equitable relief. Doe later moved for a preliminary injunction

first against the University and its Trustees and then against

defendant Kate Legee in her capacity as chair of the Conduct Panel.9

With the parties' consent, the district court collapsed

Doe's motion for a preliminary injunction with a trial on the

merits pursuant to Federal Rule of Civil Procedure 65. The parties

also agreed to proceed on a "case stated" basis, in which the

parties "present the case to the court on the undisputed facts in

the pre-trial record." TLT Constr. Corp. v. RI, Inc., 484 F.3d

9Upon Doe's filing of his motion for a preliminary

injunction as to Kate Legee, the district court entered a text

order terminating as moot Doe's initial preliminary injunction

motion as to the University of Massachusetts and the Trustees

thereof.

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130, 135 n.6 (1st Cir. 2007). In that posture, the district court

is "entitled to 'engage in a certain amount of factfinding,

including the drawing of inferences.'" Id. (quoting United

Paperworkers Int'l Union Loc. 14 v. Int'l Paper Co., 64 F.3d 28,

31 (1st Cir. 1995)). The case stated hearing took place on

February 5, 2024. For reasons not germane to this appeal, Doe's

case went forward only on Doe's charge alleging violation of his

First Amendment rights, pursuant to 42 U.S.C. § 1983, and his

charge alleging violation of the MCRA.

On April 9, 2024, the district court issued an order

setting forth its Findings of Fact and Rulings of Law. In it, the

district court adopted the parties' joint statement of undisputed

facts, including the Student Conduct Code's definition of sexual

misconduct, the timeline of Monbleau's investigation, and the

chronology of proceedings before the Conduct Panel. The order

quoted the Conduct Panel's decision at length, but the district

court disclaimed agreement with any of the Conduct Panel's

findings, stating that it "ma[de] no finding or ruling as to

whether it would have made similar findings [as the Conduct

Panel]."

Turning to questions of law, the district court held

that Doe's section 1983 claim alleging deprivation of First

Amendment rights could be brought against the Individual

Defendants only in their official capacities and that his potential

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remedies were limited to prospective injunctive and declaratory

relief.10 Addressing the merits of Doe's First Amendment claim,

the district court applied the standard established by the Supreme

Court in Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969), for evaluating such claims in the

public-school context. The district court held that Doe's claim

failed because the University -- acting through the Conduct

Panel -- reasonably determined or forecast that Doe's conduct

(1) caused a substantial disruption, (2) would cause a substantial

disruption of school activities, and (3) invaded the rights of

others. The district court further held that even if Doe's First

Amendment claim could succeed on the merits, the Individual

Defendants were entitled to qualified immunity for monetary

damages. Doe v. Univ. of Mass., No. 23-12077, 2024 WL 1521758, at

*9 (D. Mass. Apr. 9, 2024). The district court also held that the

Eleventh Amendment barred Doe's claims against the University and

The district court also held that Doe's section 1983 claim

10

could be brought against the Trustees in their individual

capacities. Yet Doe's complaint did not purport to do so.

Additionally, although Doe does not appeal the district

court's holding that his section 1983 claim could be brought only

against the Individual Defendants, his briefing on appeal refers

to defendants generally as "UMass Lowell." The defendants note

that incongruity in their opposition but nonetheless present their

arguments on behalf of "Appellees," who they define as including

all named defendants. We will follow the defendants' lead and

refer collectively to the named defendants as "defendants,"

although Doe's appeal pertains to the district court's holding

only as to the Individual Defendants.

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his claim alleging violation of the MCRA. Id. at *7, *13. Doe

timely noticed his appeal. Before us, he challenges the district

court's judgment only with respect to its finding that his

section 1983 claim failed on the merits and that the Individual

Defendants were entitled to qualified immunity as to his request

for money damages.

III. Standard of Review

As we noted above, the district court decided this case

at summary judgment pursuant to the "case stated" procedure. Under

our precedent, this procedure may be used in "somewhat unusual

cases" "when the basic dispute between the parties concerns only

the factual inferences that one might draw from the more basic

facts to which the parties have agreed." United Paperworkers, 64

F.3d at 31. In deciding the case, the district court "engage[s]

in a certain amount of factfinding, including the drawing of

inferences." Brotherston v. Putnam Invs., LLC, 907 F.3d 17, 24

(1st Cir. 2018) (quoting Pac. Indem. Co. v. Deming, 828 F.3d 19,

22 (1st Cir. 2016)).

On appeal, "[i]n reviewing the entry of summary judgment

on a case-stated record, we review legal questions de novo and

factual determinations for clear error." Id. at 24-25. In other

words, to prevail before us Doe must establish either that the

district court's "factual determinations are clearly erroneous or

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[that] the district court made an error of law." Watson v.

Deaconess Waltham Hosp., 298 F.3d 102, 108 (1st Cir. 2002).

IV. Discussion

We begin with three important caveats to bear in mind

when reading or applying this opinion. First, even though Doe's

alleged misconduct included touching another student's feet and

greeting that student with unwanted hugs, both parties' briefs

treat that conduct as expression protected by the First Amendment.

The district court's decision did not assess whether Doe's alleged

misconduct was a form of speech. Taking the record as we find it,

and accepting the framing of the issues as presented by the

parties, we too shall assume that all the conduct at issue is

speech.

Second, notwithstanding that Doe was an RA, the

defendants did not argue below or on appeal that we should regard

the University's relationship with Doe as that of

employer-employee. Rather, both sides contend that we should treat

the case as one of student discipline and apply Tinker's

three-prong analysis of student-speech restrictions, subject

to -- Doe argues -- adjustment because the students in this case

are all adults.

Third, we also do not understand defendants to argue

that any of Doe's conduct, collectively or separately, falls within

any recognized exceptions to First Amendment protection other than

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Tinker. To the extent that defendants disagree, any such

contention is waived for lack of development. See United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to

in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.").

The narrow question we are left to decide, then, is

whether -- assuming that Doe's conduct enjoyed First Amendment

protection -- Tinker permitted defendants to punish that conduct.

With that in mind, we turn to Doe's First Amendment claim and

Tinker's familiar framework.

A. Doe's First Amendment Claim

The Free Speech Clause of the First Amendment prohibits

the government from "abridging the freedom of speech." U.S. Const.

amend. I; see also Cantwell v. Connecticut, 310 U.S. 296, 303

(1940) (applying this prohibition to states and their political

subdivisions through the Fourteenth Amendment). Its protections

extend to public schools and the students who attend them. Tinker,

393 U.S. at 506 (explaining that students do not "shed their

constitutional rights to freedom of speech or expression at the

schoolhouse gate"). But, because of public schools' unique

characteristics, in certain "carefully restricted circumstances,"

schools may "reasonabl[y] regulat[e]" speech that would otherwise

be protected. Id. at 513.

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1. The Tinker Standard

In Tinker, the Supreme Court established the standard to

evaluate whether public school officials' regulation of student

speech violates students' First Amendment rights. Id. at 512-13.

While acknowledging that student speech is generally protected,

Tinker held that a school may restrict student speech that

(1) "materially disrupts classwork or involves substantial

disorder" or (2) "inva[des] . . . the rights of others."11 Id. at

513. Public school officials may not suppress "expression that

does not interfere with a class (such as by straying from the

topic, interrupting the teacher or other students, etc.)" unless

one of Tinker's prongs is satisfied. Mahanoy Area Sch. Dist. v.

B.L. ex rel. Levy, 594 U.S. 180, 201 (2021) (Alito, J.,

concurring).

Along with identifying what speech may be restricted,

Tinker and its progeny also inform which facts bear on our review.

To begin, as noted, we consider only the school's contemporaneous

11The Supreme Court has used various formulations to refer

to the first prong of this test. See, e.g., Tinker, 393 U.S. at

513 ("materially disrupts classwork or involves substantial

disorder"); id. ("materially and substantially disrupt[s] the work

and discipline of the school"); Healy v. James, 408 U.S. 169, 189

("substantial threat of material disruption"); Mahanoy Area Sch.

Dist. v. B.L. ex rel. Levy, 594 U.S. 180, 192 (2021) ("'substantial

disruption' of a school activity"). Because the parties treat

"material" and "substantial" as synonymous for purposes of the

Tinker analysis, we here use the term "substantial disruption,"

consistent with the Supreme Court's language in Mahanoy, 594 U.S.

at 192.

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justifications for restricting student speech. Norris, 969 F.3d

at 25-26, 30. In so doing, however, we consider all the "relevant

facts" known to the school at the time the school acted, id. at

30, and "the special characteristics" of the particular

educational environment, Healy v. James, 408 U.S. 169, 180 (1972)

(quoting Tinker, 393 U.S. at 506). The latter

requirement -- accounting for the particular educational

environment -- reflects the commonsense view that speech or

conduct that is highly disruptive in one context may pass without

notice in another. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260, 272 (1988) (noting that discussing "the existence of

Santa Claus" may be disruptive "in an elementary school setting"

while "the particulars of teenage sexual activity" may be similarly

"sensitive" in "a high school setting"). We therefore pause to

consider a few characteristics unique to the educational

environment at a public university.

We begin with the oft cited observation that a public

university and its "surrounding environs is peculiarly the

'marketplace of ideas.'" Healy, 408 U.S. at 180 (quoting Keyishian

v. Bd. of Regents, 385 U.S. 589, 603 (1967)). And while there are

many characteristics that distinguish the educational environment

of a university from that found at a public elementary or high

school, perhaps the most salient (and obvious) to our discussion

is the relative maturity of the students.

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While there are undoubtedly exceptions, most university

students are at least eighteen years old. As such, they are "young

adults" who, importantly, "are less impressionable than younger

students." Widmar v. Vincent, 454 U.S. 263, 274 n.14 (1981); see

also Tilton v. Richardson, 403 U.S. 672, 686 (1971) ("There is

substance to the contention that college students are less

impressionable and less susceptible to religious

indoctrination."). Their relative maturity, in turn, undermines

an argument frequently cited to justify restrictions on younger

students' speech: the need to protect them from "exposure to"

speech deemed harmful. Bethel Sch. Dist. No. 403 v. Fraser, 478

U.S. 675, 684-85 (1986); see also Keefe v. Geanakos, 418 F.2d 359,

361-62 (1st Cir. 1969) ("A high school senior is not devoid of all

discrimination or resistance [to offensive speech].").

Thus, when considering whether certain conduct is

disruptive or invasive of the rights of others, we do so keeping

in mind that these events took place on a university campus and

involved interactions between university students.12

Finally, our review of Doe's First Amendment claim is

objective, meaning we ask whether it was reasonable for the school

12 While the residential context of Doe's conduct might also

constitute a "special characteristic" of the school environment,

Healy, 408 U.S. at 180, the parties do not argue that anything

about the dormitory environment made the University's disciplinary

decisions more or less reasonable vis-a-vis Tinker's legal

analysis. We therefore do not consider that issue here.

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to conclude -- based on its contemporaneous justifications -- that

a student's conduct did, or would, cause a substantial disruption

or invade the rights of others. Norris, 969 F.3d at 25. And

because courts lack "on-the-ground expertise," we will defer to a

school's decision if it is reasonable under the circumstances.

Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll.

of the Law v. Martinez, 561 U.S. 661, 686 (2010); Norris, 969 F.3d

at 30.

With that overview, we turn to Tinker's first prong and

whether it was reasonable to conclude that Doe's conduct caused a

substantial disruption.

i. Substantial Disruption

Doe contends that the sanctions the Conduct Panel

imposed violated his First Amendment rights because, pursuant to

the Tinker analysis, it was not reasonable to conclude that his

conduct caused or would cause a substantial disruption. Defendants

reject Doe's assertion and argue that such a conclusion was

reasonable given the impact of Doe's behavior on "multiple female

RAs."13

13 Doe also maintains that we should not consider defendants'

arguments that his conduct caused a substantial disruption because

the Conduct Panel did not use that language in its decision.

Defendants correctly note, however, that Doe did not make this

argument below, and it therefore "cannot be surfaced for the first

time on appeal." Zhou v. Desktop Metal, Inc., 120 F.4th 278,

287-88 (1st Cir. 2024) (quoting McCoy v. Mass. Inst. of Tech., 950

F.2d 13, 22 (1st Cir. 1991)).

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Under Tinker's substantial-disruption prong, student

speech or expressive conduct may be restricted if it "materially

and substantially interfer[es] with the requirements of

appropriate discipline in the operation of the school." 393 U.S.

at 513 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.

1966)). But a school may not restrict speech based on "a mere

desire to avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint." Id. at 509. Tinker also does

not "permit a 'hurt feelings' exception that any opinion that could

cause 'offense' may trigger." L.M. v. Town of Middleborough, 103

F.4th 854, 875 (1st Cir. 2024), cert. denied, 145 S. Ct. 1489

(2025) (quoting Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636

F.3d 874, 877 (7th Cir. 2011)). The standard to satisfy the

substantial-disruption prong is "demanding." Mahanoy, 594 U.S. at

193.

The Supreme Court's recent decision in Mahanoy offers

helpful guidance as to the amount of disruption sufficient to

satisfy the substantial-disruption prong. There, the Court

considered whether a high school violated a student's First

Amendment rights when it disciplined her for speech communicated

via posts on a social media platform. See 594 U.S. at 183-84.

The student -- B.L. -- published the posts in anger after failing

to make the varsity cheerleading squad, using "vulgar language and

gestures" to criticize the school and the cheerleading team. Id.

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at 183-85. The posts were seen by several members of the cheer

squad, who were "upset" by them, and discussions instigated by the

posts interrupted "5 to 10 minutes" of a math class at B.L.'s

school for "a couple of days." Id. at 185, 192.

Having learned of the posts, the school disciplined B.L.

and, in the lawsuit that followed, argued that doing so was

necessary to prevent disruption to the school or a school-sponsored

activity, or substantial interference with "the school's efforts

to maintain team cohesion" and morale. Id. at 193. Despite

evidence that the posts disrupted a math class on multiple

occasions and upset community members, the Supreme Court held that

the school could not carry its burden under Tinker because there

was "no evidence in the record of the sort of 'substantial

disruption' of a school activity . . . that might justify the

school's action." Id. at 192-94 (quoting Tinker, 393 U.S. at 514).

And in Tinker itself, the Court held that middle- and

high-school students' First Amendment rights were violated where

school officials prohibited them from wearing black armbands to

protest the Vietnam War despite evidence that the speech "wrecked"

at least one math lesson at the high school and "took the students'

minds off their classwork." 393 U.S. at 504; id. at 517-18 (Black,

J., dissenting); see id. at 514 (majority opinion) ("[T]he record

does not demonstrate any facts which might reasonably have led

school authorities to forecast substantial disruption of or

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material interference with school activities, and no disturbances

or disorders on the school premises in fact occurred.").

Likewise, in this court's recent decision in L.M., we

noted that speech by one student that demeans other students and

risks causing a "decline[]" in other students' "academic

performance" or "increases . . . their absences from

school" -- i.e., "symptoms of a sick school" -- could support a

school's forecast of substantial disruption. 103 F.3d at 882

(quoting Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist.

No. 204, 523 F.3d 668, 674 (7th Cir. 2008)); id. at 872–74.

In our view, these cases simply underscore Tinker's

instruction that the disruption caused by a student's conduct must

truly be substantial to warrant impinging on that student's First

Amendment rights. Applying that standard here, while the record

contains evidence that Doe's conduct was offensive, unwelcome, and

caused discomfort to his peers, it lacks evidence that Doe's

conduct caused, or would cause, a disruption so significant as to

satisfy Tinker's "demanding standard." Mahanoy, 594 U.S. at 193.

As such, we cannot conclude that the Conduct Panel's decision to

the contrary was reasonable.

To begin, there is no evidence to suggest that Doe's

conduct disrupted any class or classwork at the University or any

complainant's academics. In light of prior precedent's focus on

evidence of disruption to the academic environment, its absence

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here is noteworthy. Recall that in Mahanoy, the speech at issue

"upset" other students and interrupted a math class on "a couple

of days" for up to "5 to 10" minutes per day. 594 U.S. at 192.

And in Tinker, the dissent emphasized that the student conduct

"wrecked" a class and "took the students' minds off their

classwork." 393 U.S. at 517-18 (Black, J., dissenting). But in

both cases the evidence was insufficient to demonstrate a

substantial disruption that could justify the schools' speech

restrictions. See id. at 514 (majority opinion); Mahanoy, 594

U.S. at 192-94. Here, there is even less evidence of disruption

to classes or classwork than in Mahanoy or Tinker. Rather, the

best evidence of any disruption to academics is C.T.'s statement

that "[i]t's awkward" when asked about any effect on her job or

academics.14 In our view, that does not come close to rising to

the level of disruption necessary to satisfy Tinker's "demanding

standard." Mahanoy, 594 U.S. at 193. Indeed, there is no evidence

whatsoever that Doe's behavior degraded any individual's academic

pursuits or the academic environment generally.

Defendants nonetheless contend that they can satisfy

Tinker because it was reasonable for the Conduct Panel to conclude

While S.K., J.T., and C.T. reported they did not want to

14

be alone with Doe, there is no evidence that this desire had any

impact on their academics. Indeed, there is nothing to suggest

that they were enrolled in any of the same classes as Doe, or that

completing classwork would require them to be alone with him.

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that Doe's conduct caused a substantial disruption to the

university RA system. We do not agree that the record supports

such a finding. Certainly the complainant RAs found Doe's several

utterances unpleasant -- enough that they expressed discomfort and

the desire not to be alone with him. But the complainants

described Doe's comments and conduct as merely "awkward" and

"uncomfortable," and the record does not suggest that any

complainant understood Doe's conduct as a sexual advance.

Furthermore, the record is devoid of any evidence as to

any impact on the complainants' jobs beyond their desire to avoid

being on duty with Doe or be alone with him. There is no evidence

or suggestion, for example, that any complainant was required to

be on duty with Doe against their wishes, left their position

(voluntarily or involuntarily), felt as if their only option was

to leave the position, or missed or changed a shift to avoid Doe.

As we noted above, although the Conduct Panel's decision states

that Doe's conduct "impacted" J.T. and C.T.'s ability to work as

RAs, the only factual support for that statement is J.T.'s comment

that "the discomfort [she] felt" because of Doe's conduct had

"[n]ot too bad of an impact on her job," and C.T.'s statement that

it was "awkward." Without more, and considering the evidence

objectively as we must, those impacts do not suffice to show a

substantial disruption under Tinker. See L.M., 103 F.4th at 875.

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The record also cannot support a finding that Doe's

comment to G.D. justified the sanction imposed. The record

reflects that during a conversation with G.D. about Jehovah's

Witnesses and the practice of religious proselytism, Doe twice

asked: "what if I stuck my penis in your face." As G.D. herself

explained, Doe followed up his statements by explaining that his

comment was meant to caricature "what Jehovah's Witness folks

do[,] . . . 'shoving their beliefs in your face.'" The record

also shows that G.D. "[d]id not think about [the interaction] much"

at the time and that her momentary reaction -- of "fear and

confusion" about Doe's "intent" -- was the extent of the comment's

impact. There is no evidence that her reaction was more than

momentary.

We are similarly unpersuaded by defendants' argument

that it was reasonable to forecast future disruption because Doe's

behavior constituted "a pervasive pattern of unwelcome conduct."

Simply put, the statements, hugs, and single incident of

foot-adjusting on which the Conduct Panel relied fall considerably

short of "a pervasive pattern." Recall that the findings about

Doe's comments to complainants were limited to one comment to G.D.

in 2022, one comment to C.T. in 2023, and one comment to S.K. in

2023.

In sum, the record lacks evidence sufficient to show

that Doe's conduct caused a disruption as substantial as those at

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issue in Tinker or Mahanoy, which themselves were insufficient to

constitute a substantial disruption. See Tinker, 393 U.S. at 514;

Mahanoy, 594 U.S. 193–94. Likewise, we do not see how that

evidence could reasonably support finding that Doe's behavior

would cause such a disruption in the future. Indeed, there is no

evidence that Doe ever made similar statements or physical contact

once he was told that such statements and contact were unwelcome

and offensive. Finally, this is also not a case where Doe's

comments were repeatedly directed at a single target, such that

the cumulative effect could reasonably be seen as threatening.

Cf. Doe v. Valencia Coll., 903 F.3d 1220, 1224-26, 1230–31 (11th

Cir. 2018) (holding that a school did not violate a student's First

Amendment rights in suspending the student where he persistently

harassed another student). Rather, Doe's cited verbal conduct

included three separate statements to three different individuals.

We now turn to Tinker's remaining prong.

ii. Rights of Others

We start with the parties' arguments. Doe contends that

none of his conduct could reasonably be found to have invaded the

rights of others and that the evidence does not show that his

conduct "impacted any complainant's ability to study or work" at

the University. He also argues that his conduct is easily

distinguished from the behavior at issue in prior cases in which

courts have held that the rights of others have been invaded.

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Defendants counter that the evidence of the impact of Doe's conduct

on his colleagues was "more than sufficient to support" finding

that the panel "reasonabl[y] determin[ed]" Doe invaded the rights

of others. See Valencia Coll., 903 F.3d 1220. We agree with Doe.

In Tinker, the Supreme Court held that school officials

may restrict speech that "inva[des] . . . the rights of others."

393 U.S. at 513. Since then, however, the rights-of-others prong

has been rarely litigated such that its scope remains somewhat

"unclear." Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217

(3d Cir. 2001); see also Eisner v. Stamford Bd. of Educ., 440 F.2d

803, 808 (2d Cir. 1971) ("The phrase 'invasion of the rights of

others' is not a model of clarity or preciseness."). That said,

we endeavor to glean what we can from precedent.

We are aware of only three prior First Circuit opinions

that have addressed Tinker's rights-of-others prong. First, in

Norris, we explained that "bullying is the type of conduct that

implicates the governmental interest in protecting against the

invasion of the rights of others, as described in Tinker." 969

F.3d at 29. We also stated that "[i]t is clear . . . that speech

that is merely offensive to the listener is not enough" to

constitute bullying and, consequently, does not suffice to

evidence invasion of the rights of others. Id. at 29 n.18. Rather,

we suggested that speech constituting bullying will involve

conduct that is "more severe or pervasive" than merely offensive

- 29 -

speech.15 Id. Second, in a similar vein, we held in Doe v.

Hopkinton Public Schools that student speech that "actively and

pervasively encourages bullying" could constitute "invading the

rights of others" under Tinker. 19 F.4th 493, 509 (1st Cir. 2021).

Finally, we confronted the rights-of-others prong in L.M., but

there we noted only that "we ha[d] not addressed the scope of th[e

rights-of-others] limitation," other than to find that bullying

falls within it. 103 F.4th at 868. These cases offer little

guidance here, as defendants do not allege that Doe's behavior

constituted bullying.

Likely due to the lack of in-circuit precedent,

defendants urge us to look to the Eleventh Circuit's decision in

Valencia College for guidance, arguing that it dealt with analogous

conduct. Indeed, defendants highlight that like the plaintiff in

Valencia College, Doe caused at least one student to be "made

'fearful'" and further contend that Doe's behavior was, in fact,

"more pervasive and more closely tied to campus than the conduct

in Valencia College." But Valencia College involved prolonged

virtual stalking of a woman by a rejected suitor who persisted

around the clock and in the face of law enforcement involvement.

15 Moreover, in Mahanoy the Supreme Court applied Tinker to

suggest that public schools may regulate "severe bullying and

harassment targeting particular individuals." See 594 U.S. at

188. The Court declined to specify, however, whether bullying

falls under or satisfies the substantial disruption prong, the

rights-of-others prong, or both.

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See 903 F.3d at 1225–27. Doe's "awkward" comments, hugs, and a

single incident of foot-touching simply do not compare to the

extreme course of conduct in Valencia College.

Finally, defendants appear to suggest that there is some

significance to the argument that "Doe's conduct was likely at

least tortious." We are aware of only one circuit -- the Eighth

Circuit -- that has recognized any connection between the

rights-of-others prong and tort liability. See Kuhlmeier v.

Hazelwood Sch. Dist., 795 F.2d 1368, 1375-77 (8th Cir. 1986), rev'd

on other grounds, 484 U.S. 260 (1988). There, however, the court

held that a school may restrict student speech under the

rights-of-others prong "only when publication of that speech could

result in tort liability for the school." Id. at 1376 (emphasis

added). But here no party argues that Doe's conduct created tort

liability for the University. Thus, insofar as defendants can be

understood to urge us to endorse the Eighth Circuit's decision in

Kuhlmeier, we see no need to do so here.16

16In L.M., we noted -- in dicta -- that "while the

rights-of-others limitation appears to encompass tortious speech,"

we did not have to address the issue because "there [was] no

developed contention that speech of that sort [was] involved."

103 F.4th at 867. As the issue was not presented in that case, we

did not affirmatively address or make any findings about the scope

of the rights-of-others prong (other than affirming that certain

instances of bullying may satisfy that prong). See id. at 867-68.

- 31 -

We thus turn to Defendants' remaining argument that the

Individual Defendants are entitled to qualified immunity as to

Doe's claim for money damages.

B. Qualified Immunity

When public officials, like the Individual Defendants,

are sued in their personal capacity for money damages, the doctrine

of qualified immunity shields them from pecuniary liability

"unless (1) they violated a federal statutory or constitutional

right, and (2) the unlawfulness of their conduct was 'clearly

established at the time.'" District of Columbia v. Wesby, 583

U.S. 48, 62-63 (2018) (quoting Reichle v. Howards, 566 U.S. 658,

664 (2012)). "The goal of qualified immunity is to 'give[]

government officials breathing room to make reasonable but

mistaken judgments about open legal questions.'" Ciarametaro v.

City of Gloucester, 87 F.4th 83, 87-88 (1st Cir. 2023) (alteration

in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743

(2011)). Accordingly, we will not find that a rule was "clearly

established" unless at the time the official acted, "the law was

sufficiently clear [such] that every reasonable official would

understand that what they [were] doing [was] unlawful." Heredia

v. Roscoe, 125 F.4th 34, 46-47 (1st Cir. 2025) (quoting Segrain v.

Duffy, 118 F.4th 45, 57 (1st Cir. 2024)). In consequence,

qualified immunity protects "all but the plainly incompetent or

- 32 -

those who knowingly violate the law." Wesby, 583 U.S. at 63

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

To be clearly established, there must be "controlling

authority or a robust consensus of cases of persuasive authority,

clearly demonstrating the violative nature of the defendant's

particular conduct." Ciarametaro, 87 F.4th at 88 (cleaned up)

(quoting Ashcroft, 563 U.S. at 741-42). Although the authority

need not be "directly on point," it must be "sufficiently analogous

to 'place[] the statutory or constitutional question beyond

debate.'" Id. (alteration in original) (quoting Ashcroft, 563

U.S. at 741–42). It is a "heavy burden." Est. of Rahim by Rahim

v. Doe, 51 F.4th 402, 410 (1st Cir. 2022) (quoting Lachance v.

Town of Charlton, 990 F.3d 14, 20 (1st Cir. 2021)).

Doe argues that the Individual Defendants are not

entitled to qualified immunity because the right of university

students to engage in "offensive" expression on a public university

campus has been "well-established in this [c]ircuit for over half

a century." In response, defendants argue that even if Doe could

show a constitutional violation -- as we conclude he has -- he

cannot carry his burden under the "clearly established" prong

because he did not identify controlling authority or a consensus

of persuasive authority that would have put the Individual

Defendants on notice that disciplining Doe for his speech violated

his First Amendment rights.

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We agree with defendants. Prior to this case, as the

district court accurately noted, there was an "absence of First

Circuit precedent" addressing the particular circumstances at

issue here. Doe, 2024 WL 1521758, at *9. Nor has Doe identified

sufficiently analogous case law that put it "beyond debate" whether

a university can discipline a student for offensive speech that

did not materially disrupt the educational environment or any

student's academics.17 Ciarametaro, 87 F.4th at 88. Furthermore,

17 As the district court explained, the cases Doe relies on

to argue that the Individual Defendants' conduct was clearly

established as illegal are factually distinguishable from the

present case. See Papish v. Bd. of Curators of Univ. of Mo., 410

U.S. 667, 667-70 (1973) (holding that university violated

student's First Amendment rights by expelling student for

distributing newspaper with a political cartoon the university

viewed as explicit and offensive); Gay Students Org. of Univ. of

N.H. v. Bonner, 509 F.2d 652, 654, 662 (1st Cir. 1974) (holding

that First Amendment protected right of student organization to

hold social activities on university's campus); L.M., 103 F.4th at

868 (finding that "demean[ing]" speech by middle school student

that targeted certain classmates' personal characteristics could

be restricted); Doe v. Hopkinton Pub. Schs., 490 F. Supp. 3d 448,

467–68 (D. Mass. 2020) (holding that bullying in the high school

environment was not protected by First Amendment); Flores v.

Bennett, No. 22-16762, 2023 WL 4946605, at *1–2 (9th Cir. Aug. 3,

2023) (finding that high school's "flyer policy" was likely

facially overbroad insofar as it prohibited "inappropriate or

offense [sic] language or themes"); Saxe, 240 F.3d at 212, 215–18

(holding that school district's anti-harassment policy was

unconstitutionally overbroad because, in part, it purported to

prohibit offensive or unwelcome speech); Nuxoll, 523 F.3d at 674

(holding that high-school student was likely to prevail on his

claim that his school would violate his First Amendment rights by

preventing him from wearing a shirt bearing the slogan "Be Happy,

Not Gay"); Thonen v. Jenkins, 491 F.2d 722, 723-24 (4th Cir. 1973)

(holding that First Amendment prohibited university from

disciplining students for using single expletive in a letter

published in a school newspaper).

- 34 -

we are aware of no such cases. Consequently, we cannot conclude

that every reasonable official would have known disciplining Doe

was illegal. Indeed, our analysis on the First Amendment question

underscores the lack of on-point precedent, making it evident that

Doe's rights, at the time in question, were not clearly

established. This is a close case, in which Doe prevails only in

the context of rather constricted arguments by defendants. We

therefore agree with the district court that the Individual

Defendants are entitled to qualified immunity as to Doe's request

for monetary damages. In so holding, we note that this does not

bar Doe's claims for prospective injunctive relief against the

Individual Defendants in their official capacities.

V. Conclusion

For the foregoing reasons, the judgment of the district

court is reversed as to the merits of Doe's First Amendment claim

but affirmed as to the Individual Defendants' entitlement to

qualified immunity.

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