Doe v. Brown University

United States Court of Appeals

For the First Circuit

No. 16-1954

JANE DOE,

Plaintiff, Appellant,

v.

BROWN UNIVERSITY, in Providence in the state of Rhode Island and

Providence Plantations; MELISSA CLARK, individually and as an

agent of BROWN; MARGARET KLAWUNN, individually and as an agent

of BROWN; and CHRISTOPHER DENNIS, individually and as an agent

of BROWN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

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

Before

Howard, Chief Judge,

Lynch and Lipez, Circuit Judges.

Philip Byler, with whom Nesenoff & Miltenberg LLP and Samuel

D. Zurier were on brief, for appellant.

Thomas R. Bender, with whom Beverly E. Ledbetter and the

Office of General Counsel, Brown University, were on brief, for

appellees.

November 22, 2019

HOWARD, Chief Judge. Jane Doe1 brought suit against

Brown University ("Brown") and three of its employees, alleging a

number of contract and tort claims arising from Brown's sanctions

against her for her second violation of the University's Code of

Academic Conduct ("the Code"). The district court entered summary

judgment in Brown's favor, which Doe now appeals.2 We affirm.

I.

Because Doe appeals a grant of summary judgment, we

present the facts in the light most favorable to her, the non-

moving party. See Bellone v. Southwick-Tolland Reg'l Sch. Dist.,

748 F.3d 418, 420 (1st Cir. 2014). Doe studied at Brown as an

undergraduate from the fall semester of 2010 through her graduation

in the spring semester of 2014. In 2013 -- the fall semester of

Doe's senior year -- she enrolled in Public Health 320, a course

taught by Professor Melissa Clark, one of the defendants here.

Professor Clark's course included a two-part midterm examination

consisting of an in-class multiple-choice examination, as well as

1 The district court granted Doe's ex parte motion to file

her complaint pseudonymously, and Doe remains anonymous at this

stage, because the district court entered judgment against her

without reaching the merits of her continued anonymity. See Doe

v. Brown University, 209 F. Supp. 3d 460, 466 n.2 (D.R.I. 2016).

No party has asked that this status be altered.

2 Doe does not appeal the district court's grant of summary

judgment as to her claims directed against the defendants named in

their individual capacities. Accordingly, the only remaining

claims are against Brown and the remaining individual defendants

in their alleged capacities as agents of Brown.

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a take-home exam that included four essay questions ("the take-

home" or "the exam"). While grading the take-home exams, a

teaching assistant noticed similarities between Doe's answer to

the exam's fourth question ("Question 4") and that of T.L., another

student in the class.3 The assistant alerted both Doe and Professor

Clark. Doe met with Professor Clark the next day, and, according

to Doe, she "readily admitted" in that meeting "that she and other

students, including T.L., had collaborated on the [e]xam." Doe

also explained to Professor Clark that "the majority of the

students in the class had worked in groups" on the exam, and that

this collaboration was in line with Professor Clark's "regular[]

encourage[ment of] such collaboration and group discussions in her

course."

A few days later, Doe received an email explaining that

she would need to meet with Christopher Dennis, the Deputy Dean of

the College (and another defendant in this case) about her exam.

At the meeting with Dean Dennis, Doe again acknowledged her

collaboration with T.L.

In December 2013, Brown notified Doe that it had assigned

her matter to the university's Committee on the Academic Code ("the

Committee") for a hearing. Before the hearing, Doe submitted a

written statement to the Committee in which she acknowledged that

3 The two answers are reproduced in the Appendix to this

opinion.

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"after comparing my [take-home exam] with the other individual

[T.L.], there are similarities between the two for question #4."

Doe further explained that "it was late at night, and I was

suffering from fatigue . . . . I was struggling on coming up with

innovative ideas for [Question 4]. I used [T.L.'s] suggestions,

and when she was explaining them to me, . . . the thoughts of whose

were whose was blurred." Doe's statement concluded with a request

that the Committee "understand where I am coming from and forgive

me for my mistake."

At the hearing, Doe chose not to call any witnesses,

opting instead to admit to and to apologize for having relied on

T.L. in answering question #4. See Doe, 209 F. Supp. 3d at 474.

Neither Professor Clark nor T.L. appeared as witnesses against

Doe. Id.

The Committee concluded that "by making unauthorized use

of the work of another" on the exam, Doe violated Brown's Academic

Code. After considering that this was Doe's second violation of

the Code,4 the Committee assessed the following sanctions: (1) a

one-semester suspension, including termination of university

4

In 2012 -- the fall semester of Doe's junior year -- Doe

admitted to plagiarizing portions of her final projects for two

courses. As she did here, Doe submitted a statement to the

Committee acknowledging and apologizing for her Code violations

before her formal hearing took place. The Committee sanctioned

her with transcript notations of "directed no credit" for both

courses; those notations were removed in the fall of Doe's senior

year.

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access and related privileges; (2) notations on her academic

transcript about the suspension stating "directed no credit in

Public Health 320," and "violation of the Academic Code"; (3)

parental notification; and (4) the denial of any future

institutional letter of support, or alternatively a discussion of

Doe's offense in all such letters.

Doe appealed the Committee's decision to defendant

Margaret Klawunn, Brown's Vice President for Campus Life and

Student Services, in January 2014. Ten days later -- one day after

the start of the spring semester -- Klawunn issued a decision

affirming the Committee's decision and sanctions. Doe then

transferred to Rhode Island College for her final semester. After

completing her remaining credits there, Doe timely graduated from

Brown with her class.

In June 2015, Doe filed a thirteen-count complaint

against Brown and the three individual defendants alleging various

tort and contract claims. The crux of Doe's theory underlying her

claims was that Brown's disciplinary process in her case was

deficient and biased when compared to the procedures prescribed

under the Academic Code, and further, that Brown had imposed overly

punitive sanctions for Doe's violation. The defendants filed a

motion to dismiss that included several attachments and the

district court, after giving Doe the opportunity to submit

additional documents and affidavits for consideration, converted

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the motion into one for summary judgment. See Fed. R. Civ. P.

12(d). Doe requested additional discovery. See Fed. R. Civ. P.

56(d).

On June 27, 2016, the district court entered a judgment

dismissing Doe's claim for unreasonable publicity to one's private

life and granting summary judgment to the defendants on all

remaining claims.5 Doe, 209 F. Supp. 3d at 479. The court also

denied Doe's request for additional discovery. Id. at 479 n.14.

This appeal followed.6

II.

A. Summary Judgment

We turn first to Doe's challenges to the district court's

entry of summary judgment with respect to her claim alleging breach

of contract, breach of the implied covenant of good faith and fair

dealing, promissory estoppel, negligence, and negligent

misrepresentation claims. We review the entry of summary judgment

de novo. Alicea v. Machete Music, 744 F.3d 773, 778 (1st Cir.

2014).

5 Prior to the district court's decision, Doe withdrew her

claims for negligent infliction of emotional distress against all

defendants.

6 Doe does not appeal the district court's grant of summary

judgment as to her unreasonable publicity, intentional infliction

of emotional distress, and tortious interference claims, all of

which were directed against the individually named defendants.

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1. Breach of Contract

Under Rhode Island law, the relationship between a

student and a private university is based in contract. See Gorman

v. St. Raphael Acad., 853 A.2d 28, 34 (R.I. 2004). The parties

agree that "[t]he relevant terms of the contractual relationship

between a student and a university typically include language found

in the university's student handbook." Havlik v. Johnson & Wales

Univ., 509 F.3d 25, 34 (1st Cir. 2007). "Because contracts for

private education have unique qualities, we must construe them in

a manner that leaves the school administration broad discretion to

meet its educational and doctrinal responsibilities." Gorman, 853

A.2d at 34. We interpret the Code's terms "in accordance with the

parties' reasonable expectations, giving those terms the meaning

that the university reasonably should expect the student to take

from them." Havlik, 509 F.3d at 34 (citing Mangla v. Brown Univ.,

135 F.3d 80, 83 (1st Cir. 1998)).

Against this backdrop, we begin our examination of Doe's

arguments. To prevail on the merits, she would need to establish

a typical breach of contract claim, which requires: (1) that a

contract existed; (2) that there was a breach of the contract; and

(3) that the breach caused the plaintiff damages. See Petrarca v.

Fidelity and Cas. Ins. Co., 884 A.2d 406, 410 (R.I. 2005). To

fend off summary judgment, however, she need show only that there

is a genuine dispute of material fact that she could establish all

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of the necessary elements of the alleged breach. Walker v.

President & Fellows of Harvard Coll., 840 F.3d 57, 60 (1st Cir.

2016). Doe argues that the district court erred in granting

summary judgment to Brown on her breach of contract claims because

her complaint illustrates numerous ways in which Brown violated

the Code in her disciplinary case. Specifically, Doe claims that

Brown (1) failed to provide her with copies of the work in

question; (2) failed to provide her with a list of faculty advisors

to consult prior to her hearing; (3) failed to provide her with

notice of the charges against her; (4) denied her the right to

present witnesses in her case; and (5) denied her the right to

examine witnesses against her and dispute the evidence against

her.

These assertions do not withstand close scrutiny. For

starters, the Code does not mandate that Brown supply an accused

student with copies of the exam in question. (Even so, Doe did,

in fact, review copies of her own exam, as well as those of some

of her fellow students before her disciplinary hearing.) Moreover,

the Code allows the student to offer evidence and witnesses in her

support. Yet Doe offers no arguments to explain how, if at all,

Brown precluded her from satisfying this burden. There is no

evidence that Doe was prevented from calling any witnesses, and

the University did not call any witnesses itself. Thus, there

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were no "witnesses against Doe" for whom she was denied any cross-

examination right.

Doe's arguments that Brown violated the Code by failing

to present her with a list of potential advisors and failing to

provide her with notice of the charges against her merit more

discussion. The Code requires that Brown, through a Case

Administrator,

shall, as soon as possible, notify the accused

student of the specific charge(s) of

dishonesty, the time and place of the hearing,

the nature of the evidence that will be

presented against the student, and the range

of penalties that may be imposed if the

Committee finds that academic dishonesty has

occurred.

Further, the Code states that the Case Administrator "will provide

the accused student with a list of persons . . . who . . . can

provide knowledgeable advice." We make several assumptions, all

in Doe's favor: The first is that the Code does require repeated

notice that Brown will provide students with a list of such

persons. The second is that Brown was required to give her such

a list during the 2013 disciplinary process, regardless of her

earlier discipline. The third is that despite her conversations

with Professor Clark the day after the exam and her meeting with

Dean Dennis, she was not given formal notice of the charges before

the hearing.

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Even assuming that these failures constitute breaches of

the Code on the part of Brown, however, we struggle to see the

causal connection between those breaches and Doe's alleged

damages, which include the academic sanctions against her. See

Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188, 1191 (R.I. 1994)

("There is a fundamental requirement, similar to that imposed in

tort cases, that the breach of contract be the cause in fact of

the loss." (quoting 3 Farnsworth, Farnsworth on Contracts, § 12.1

at 148 (1990)) (alteration adopted)). This is because Doe herself,

on multiple occasions, admitted to facts giving rise to a Code

violation.

The Code states that "[a] student who obtains credit for

work, words, or ideas that are not the products of his or her own

effort is dishonest and in violation of Brown's Academic Code."

While the Code acknowledges that individual instructors may

sometimes permit students to work together on academic

assignments, it states that "such efforts must be clearly marked

as the results of collaboration." Doe first acknowledged that she

collaborated with T.L. on the exam in her meeting with Professor

Clark, then in her meeting with Dean Dennis, a third time in her

letter to the Committee, and finally at her disciplinary hearing.

However, neither Doe nor T.L. marked her exam as being the result

of a collaboration. And that was a violation of the Code that Doe

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has made no effort to dispute at any stage of her academic or legal

proceedings.

Doe urges us to focus exclusively on Brown's procedural

deficiencies. She argues that she would have accepted faculty

assistance if Brown had offered it, and that if she had received

assistance and proper notice, then she would have more vigorously

rebutted the charges against her, including, then, by explaining

that she had contributed to T.L.'s answer to Question 4 just as

much as T.L. contributed to her own answer.

Even so, none of Doe's proffered alternative courses of

action gives rise to disputed facts suggesting a link between

Brown's procedural failures and Doe's alleged damages. That is so

because Doe's admissions of the facts supporting the sanctions

that she received predate the institution of any formal process

against her. In her December 2, 2013 meeting with Professor Clark,

Doe "acknowledged her collaboration with a group of other

students," to include T.L. She repeated this acknowledgement in

a subsequent meeting with Dean Dennis. The record thus indicates

that, between Doe's admissions and the almost-identical answers of

Doe and T.L. on Question 4 that included no acknowledgement of the

collaboration between the two students, Doe has failed to provide

facts on which a reasonable jury could find that the Committee's

result would have changed had Brown complied with the Code's

procedural provisions even assuming they require a subsequent

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disciplinary proceeding to provide notice and information

previously provided. See Taylor v. Am. Chemistry Council, 576

F.3d 16, 24 (1st Cir. 2009) ("A genuine issue of fact exists where

the evidence is such that a reasonable jury could return a verdict

for the nonmoving party." (internal quotation marks omitted)).

Once the process began, Doe could reasonably be expected to

navigate it with some skill even without an advisor, given that

this was her second time through. The district court therefore

properly granted summary judgment to Brown on Doe's breach of

contract claims.

2. Breach of the Implied Covenant of Good Faith

and Fair Dealing7

Doe's next set of challenges looks outside the plain

letter of the Code to claim that Brown breached its implied duty

of good faith and fair dealing, which exists in every contract

under Rhode Island law.8 See Mangla, 135 F.3d at 84 (citing A.A.A.

7 The district court entered summary judgment on Doe's implied

covenant of good faith and fair dealing claim on the grounds that

Doe "ha[d] pleaded no facts that would attribute bad faith or

unfair dealing to Brown." Doe, 209 F. Supp. 3d at 476. It analyzed

the alleged violations discussed here as part of its breach-of-

contract analysis. Id. at 474-76. Because we agree with Doe that

these claims exist outside of the explicit promises enumerated in

the Code, we analyze them separately.

8 Doe argues separately that Brown acted arbitrarily and

capriciously in the same instances she draws upon in support of

these implied covenant claims. See King v. Grand Chapter of R.I.

Order of E. Star, 919 A.2d 991, 998 (R.I. 2007) (noting that review

of a private organization's application of its rules is reviewed

under an arbitrary and capricious standard). Not only are these

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Pool Serv. & Supply, Inc. v. Aetna Cas. & Surety Co., 395 A.2d

724, 725 (R.I. 1978)). But as we have noted before, "[g]ood faith

and fair dealing cannot be separated from context, . . . and in

evaluating those covenants in the educational milieu, courts must

accord a school some measure of deference in matters of

discipline." Havlik, 509 F.3d at 35; see Gorman, 853 A.2d at 39

("Private schools must have considerable latitude to formulate and

enforce their own rules to accomplish their academic and

educational objectives.").

Broadly, Doe presents two challenges. First, she

maintains that Professor Clark's collaboration policy was

"[v]ague, [i]nconsistent, [and] unfair," and that Brown did not

thoroughly investigate this policy before determining that Doe

violated the Code. This argument misses the mark in light of the

undisputed facts. Even if Professor Clark had explicitly allowed

students to work in groups on the exam, there is no reasonable

basis to conclude that when Doe submitted an answer nearly

identical to T.L.'s without indicating that it was the result of

collaboration, she did not commit a Code violation.

claims redundant, but they were also not sufficiently developed in

Doe's complaint or in her briefs to be preserved on appeal. See

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

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.").

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Second, Doe argues that Brown breached the covenant in

its proceedings against her. To start, she claims that Brown

selectively enforced the Code against her but did not punish other

similarly-situated students, which amounted to arbitrary, bad

faith behavior. But she offered no evidence of this, and the

record reveals that indeed, one other student -- T.L. -- was

sanctioned for Code violations on the same exam.

Next, Doe asserts that bias infected both the conduct of her

hearing and the ultimate punishment that she received.9 This

argument also fails. Doe claims bias because two of the same

faculty members that were on the Committee for her first violation

sat on her second panel, which led "to a predisposition against"

her. The Code, however, does not prohibit such Committee-member

overlap, and in her letter to Doe denying Doe's appeal, Dean

Klawunn stated:

In Academic Code cases, the Case Administrator does

not inform the Committee of prior offenses until

the Committee has made their decision. The process

was followed with your hearing. In fact, the two

Committee members from your previous case did not

remember that they had heard your previous

9

Doe also argues that there was an "unreasonable delay" in

Dean Klawunn's appeal decision, which was issued ten days after

she submitted her appeal. Doe does not allege any facts from which

a reasonable factfinder could determine that taking ten days to

review and uphold a decision that represented the culmination of

a three-week hearing process was arbitrary or in bad faith. See

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.

1990) ("[S]ummary judgment may be appropriate if the nonmoving

party rests merely upon conclusory allegations, improbable

inferences, and unsupported speculation.").

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violation from fall 2012 until they were told about

the prior violation.

Doe has presented no evidence to refute the veracity of this

letter's assertion.

Doe also asserts that Brown's imposition of a lower sanction

against T.L. than against her is the result of bias. Yet unlike

T.L., she was sanctioned for her second Code violation. The Code

expressly contemplates higher penalties for repeat offenses. In

the absence of any additional facts, Doe has not shown that Brown

acted arbitrarily or in bad faith. See Bennett v. Saint-Gobain

Corp., 507 F.3d 23, 31 (1st Cir. 2007) ("[C]onjecture cannot take

the place of proof in the summary judgment calculus.")

Accordingly, as Doe has made no showing that Brown's actions were

anything less than a "valid exercise of its discretionary

authority," Gorman, 853 A.2d at 39, it follows that Brown was

entitled to summary judgment on her covenant of good faith and

fair dealing claim.

3. Remaining Claims

After a careful examination of the record, we affirm the

district court's entry of summary judgment on Doe's promissory

estoppel, negligence, and negligent misrepresentation claims,

substantially on the basis of the district court's opinion. See

Doe, 209 F. Supp. 3d at 476-78; see also Moses v. Mele, 711 F.3d

213, 216 (1st Cir. 2013) ("[W]hen a trial court accurately takes

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the measure of a case, persuasively explains its reasoning, and

reaches a correct result, it serves no useful purpose for a

reviewing court to write at length in placing its seal of approval

on the decision below."). We note that the promissory estoppel

claim fails because, although Brown promised to academically

support Doe, it never promised "to look the other way if Jane Doe

decided to cheat." Doe, 209 F. Supp. 3d at 476-77. Her negligent

misrepresentation claim fails because she presents no evidence

that she relied to her detriment on promises made by the school.

Id. at 477-78. And, finally, her negligence claim fails for the

same reason her contract claims fail: Doe cannot demonstrate that

the harm to her would not have occurred but for any negligence by

Brown.

B. Additional Discovery Under Rule 56(d)

Finally, we turn to the district court's denial of Doe's

request for additional discovery under Rule 56(d), a ruling that

we review for abuse of discretion. See In re PHC, Inc. S'holder

Litig., 762 F.3d 138, 142–43 (1st Cir. 2014). To establish an

entitlement to relief under Rule 56(d), the moving party must make

an authoritative statement that:

(i) explains . . . her current inability to

adduce the facts essential to filing an

opposition, (ii) provides a plausible basis

for believing that the sought-after facts can

be assembled within a reasonable time, and

(iii) indicates how those facts would

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influence the outcome of the pending summary

judgment motion.

Hicks v. Johnson, 755 F.3d 738, 742 (1st Cir. 2014) (quoting Velez

v. Awning Windows, Inc., 375 F.3d 35, 40 (1st Cir. 2004)).

Doe argues that the district court wholly failed to

address her 56(d) motion. Yet even a cursory review of the

district court's opinion debunks this claim -- the court correctly

concluded that further discovery would be fruitless. See Doe, 209

F. Supp. 3d at 479 n.14 ("[I]n light of the pleadings and evidence

before the Court, further discovery would be futile."). By our

lights, the record makes clear that Doe's and T.L.'s answers to

the exam were nearly identical, and that Doe did not indicate her

admitted collaboration with T.L. on her exam, as required by the

Code. Therefore, additional discovery on any of the issues Doe

raised in her request, specifically to include Professor Clark's

collaboration policy and Brown's initiation of proceedings against

other students (or lack thereof), would do nothing to undermine

Doe's naked violation of the Code. Accordingly, we join the

district court in concluding that Doe "failed to show how the

information to be obtained . . . would have defeated the

defendants' motion for summary judgment." Alicea, 744 F.3d at

789.

III.

For the foregoing reasons, we AFFIRM the judgment below.

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APPENDIX

T.L.'s answer to Question 4 Jane Doe's answer to Question

In order to adequately 4

address the issue surrounding In order to address the

sexual education, or lack issue surrounding safe sex

thereof, there should be education, schools should

mandatory incorporation of incorporate mandatory safe sex

safe sex education as part of education as part of the

health class curriculums health class curriculum on a

nationally. That way, the statewide scale. This way,

information being provided to the information that is

adolescents is consistent, and provided to adolescents is

therefore more comprehensible consistent, and therefore can

and accessible. This can be more accessible. This

perhaps improve the awareness intervention could help

of the importance of safe sex improve the awareness

practices. In addition to surrounding the issue of safe

improving awareness, it is sex practices. In order for

important to also consider children to retain and

providing this form of understand this information,

education to younger it should be reinforced

populations of adolescents. through several years of safe

In order for children to sex education. Therefore, it

retain and understand the is important to provide this

information being provided to form of education to younger

them, it must be reinforced populations of adolescents.

through several years of This form of education should

sexual education. Starting start as early as sixth grade,

this education as early as or middle school. This would

sixth grade, or middle school, be the best way to proactively

would be the most proactively reinforce this education.

effective way to reinforce the This educat[ ]ion would

information. By continuing continue up until twelfth

this education up until grade and would be presented

graduation, or 12th grade, and with the same information

consistently presenting the regarding safe sex practices.

same information regarding By presenting the information

safe sex practices, this consistently, this allows

allows adolescents the adolescents to be able to

opportunity to retain and retain and comprehend the

solidify an understanding of importance of safe sex.

the importance of safe sex. It is important to

It is important to acknowledge adolescent

acknowledge adolescent pregnancies as an important

pregnancies as an important way to prevent the excessive

way to prevent the gestational weight gain

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proliferation of excessive GWG because this population is at

because this demographic is at risk for high-risk

greatest risk for high-risk pregnancies. This is a direct

pregnancies, a direct determinant to the health

determinant to the health issue of excessive maternal

issue at hand. The education GWG. The education and health

and health departments at each departments at each school

school should be charged with should be responsible for not

the responsibility to not only only education the children

education children about about sexual education and

sexual education and safe sex safe sex practices, but should

practices, but also provide also provide education to

those who are pregnant with those who are pregnant. These

resources necessary to educate departments at the schools

them further on adolescent should provide the resources

pregnancies and the importance necessary to educate them

of stress management. Health further on adolescent

departments should work in pregnancies. By helping these

tandem with the sexual adolescents who are pregnant,

education programs to supply this can help reduce high-risk

students with information and pregnancies. State health

services that are readily departments should work with

accessible to all students of their sexual education

all ages. programs in order to provide

students with information and

services that are easily

accessible to all students of

all ages regarding adolescent

pregnancies.

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