Helfman v. Northeastern University

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12787

MORGAN HELFMAN vs. NORTHEASTERN UNIVERSITY & others.1

Suffolk. December 9, 2019. - July 27, 2020.

Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Negligence, College, Duty to prevent harm, Intoxicated person,

Foreseeability of harm, Vicarious liability, Emotional

distress. Intoxication. Emotional Distress. Contract,

Private college, Performance and breach, School handbook.

Equal Rights Act. Anti-Discrimination Law, Sex, Unfair

educational practice. Education, Private colleges and

universities, Disciplinary matter.

Civil action commenced in the Superior Court Department on

October 31, 2016.

The case was heard by Robert B. Gordon, J., on a motion for

summary judgment.

The Supreme Judicial Court granted an application for

direct appellate review.

Mark F. Itzkowitz (Kenneth I. Kolpan also present) for the

plaintiff.

Daryl J. Lapp (Katherine A. Guarino Baker also present) for

the defendants.

1 Katherine Antonucci, Robert Jose, Briana R. Sevigny, Mary

Wegmann, and Madeleine Estabrook.

2

Lisa A. Parlagreco & Jeffrey S. Beeler, for Heinlein Beeler

Mingace & Heineman, P.C., amicus curiae, submitted a brief.

Rebecca J. Roe, of Washington, & Erin K. Olson, for

National Center for Victims of Crime & another, amici curiae,

submitted a brief.

LENK, J. This case arises out of an allegedly

nonconsensual sexual encounter between two first-year students

at Northeastern University(Northeastern)2 in October 2013. The

plaintiff claims that Northeastern3 is liable for failing to

prevent the sexual assault, as well as for its allegedly

inadequate response, including exonerating her alleged attacker

after a disciplinary hearing.4 Following discovery, a Superior

Court judge granted the defendants' motion for summary judgment

on all claims. The plaintiff appealed, and we subsequently

allowed her application for direct appellate review.

2 Northeastern is a private, nonprofit educational

institution offering undergraduate and graduate degrees.

3 The five named defendants were Northeastern executives

during the relevant period. Jose was the associate dean of

cultural, residential, and spiritual life, and the director of

residential life. He supervised Antonucci, who was an area

coordinator, and who trained and oversaw the work of the student

resident advisors (RAs). Estabrook was the associate vice-

president for student affairs and oversaw the office of student

conduct and conflict resolution (OSCCR). Wegmann was the

director of OSCCR and was responsible for enforcing the code of

student conduct and hiring and training members of the student

conduct board (SCB) and the appeals board. Sevigny was the

assistant director of OSCCR, and trained residential life staff

members, as well as members of the student conduct board.

4 Northeastern police also determined not to pursue any

criminal charges against that student.

3

In light of the multifaceted relationship between a

university and its students, we long have recognized that

universities have a duty to protect students from the

foreseeable criminal acts of third parties. Such a duty exists

even when those criminal acts are made possible by the

intoxication of the student victim. Nonetheless, we conclude

that there was no duty to protect here, where the Northeastern

defendants had at best minimal knowledge of the conditions that

gave rise to the particular harm, rendering this assault

unforeseeable. Further, although we now also recognize that a

college or university will sometimes owe a duty to protect its

students from the harms associated with alcohol-related

emergencies, we conclude that this duty was met here.

Accordingly, we affirm the order granting summary judgment to

the defendants on the plaintiff's negligence-related claims.

Because there was no error in the motion judge's conclusions

regarding the plaintiff's statutory or contract claims, we

affirm the allowance of summary judgment on those claims as

well.

1. Background. We recite the facts from the summary

judgment record in the light most favorable to the nonmoving

party, reserving certain details for later discussion.

In the fall of 2013, the plaintiff was a first-year student

at Northeastern. As required of all first-year students, she

4

lived in a university residence hall. A.G.,5 the alleged

assailant, also was a first-year Northeastern student who lived

in the same dormitory.

Northeastern residence halls were supervised by resident

assistants (RAs), who were students hired6 to foster community

within the dormitories and provide assistance to resident

students. The RAs in turn were supervised by the residence hall

director, a permanent staff person assigned to the same

building, and more generally by the area coordinator. RAs were

required to sign a "Resident Assistant Agreement," which set

forth the terms of their position as well as some of their

duties.

RAs were expected to serve as role models for the younger

students, to be familiar with the provisions of Northeastern's

code of student conduct (code), and to intervene if they

encountered students violating "community norms." RAs were to

hold office hours to meet with students in their assigned

residence halls, and to coordinate programs and events in

accordance with Northeastern's educational goals. The goals for

first-year students included "understand[ing] the effects of

5 As do the parties, we refer to the student by the

pseudonym "A.G."

6 In exchange for their services, RAs received a dormitory

room at no charge, meals in the residence halls, and a small

amount of money monthly on a meal card.

5

drugs and alcohol," "identif[ying] moments of peer pressure,"

and "attend[ing] at least two on or off campus events that are

alcohol free." RAs performed rounds of their assigned buildings

during assigned shifts and were expected to report any code

violations to their supervisors. In addition, RAs served as

proctors at the entrances to some residence halls, where they

regulated access to the hall.7

On October 31, 2013, the plaintiff and A.G. were invited to

a Halloween party hosted by Sarah Smith,8 a sophomore at

Northeastern and an RA in a different dormitory9 from the one in

which the plaintiff and A.G. lived. Before leaving to attend

the party, the plaintiff and A.G. drank alcohol in the

plaintiff's dormitory room. They brought more alcohol with them

to the party, carried in a plastic soda bottle to conceal its

existence from any campus police they might encounter during the

walk across campus.

7 As apparently was common, the RAs in this case were both

sophomore students at Northeastern, and themselves under the

legal age for consumption of alcohol.

8 Because neither RA is a named defendant, and both were

underage students at the time of the alleged assault, we refer

to them by pseudonyms.

9 RA Smith held office hours in a different dormitory from

the one in which she lived. As part of her assigned rounds,

however, she also patrolled her own dormitory.

6

While at the party, the plaintiff played drinking games

with some of the partygoers, consuming alcohol provided by

certain of them. A.G. also gave her whiskey that he had

obtained from another guest. Between her rounds at multiple

dormitories, Smith drank alcohol and participated in the

drinking games. Another RA, Paul Jones,10 who had socialized

previously with the plaintiff, A.G., and Smith, also attended

the party. Both RAs (who themselves were underage) observed

other underage students drinking alcohol, but neither RA

provided any of the alcohol that the plaintiff consumed, nor did

they provide any alcohol to any other guest.

Not long after arriving at the party, the plaintiff became

intoxicated and vomited repeatedly in Smith's bathroom; two

student acquaintances who were attending the party stayed with

her in the bathroom and gave her water and crackers to try to

control the nausea. The students also had the plaintiff wait in

Smith's room and drink water, as they were somewhat concerned

that the proctor at the plaintiff's residence hall might stop

the plaintiff at the entrance because she was too visibly

intoxicated. They offered to walk the plaintiff home, but she

declined because she knew that they were planning to attend

another party, and she did not want them to walk across campus

10 A pseudonym. See note 8, supra.

7

to her residence and then have to walk back to the location of

the second party.

As he was returning anyway in order to attend a sports

practice early the following morning, A.G. then volunteered to

escort the plaintiff to the dormitory where they both lived. On

the way back to her residence hall, the plaintiff sent a text

message to her roommate stating, "Okay I'm coming home I'm

really sick." During the walk, A.G. and the plaintiff kissed

multiple times. At one point, the plaintiff stumbled and fell;

A.G., who himself was intoxicated, was dragged down to the

ground. A.G. also took the plaintiff's telephone and

identification card from her while en route. When they reached

their residence hall, the plaintiff leaned on the counter for

support as the proctor checked their identification. She then

walked unsteadily from the proctor's desk to the elevator.

The two students went to A.G.'s room, where A.G. initiated

sex with the plaintiff. The plaintiff later told Northeastern

police that, "although she was very uncomfortable with what was

going on, she didn't want to hurt his feelings by saying

anything to him or telling him to stop." She "wasn't scared,"

but had not felt as if she could leave if she wanted to. She

also said that she did not know whether A.G. believed she had

consented to the things he was doing. At one point when A.G.

went to the bathroom, the plaintiff sent text messages to her

8

roommate, saying, "I'm ok," and, "Kind of." At another point,

the plaintiff threw up in A.G.'s bathroom.

When the plaintiff returned to her own room the following

morning, she told her roommate about the incident with A.G. In

response to one of the roommate's questions, the plaintiff said

that, if she had been sober, she would have said something to

stop the encounter. The roommate, with the plaintiff's

permission, then informed an RA of the incident. The following

day, the plaintiff and her mother were escorted by Northeastern

police from her dormitory to a local hospital, where the

plaintiff was examined and an evidence collection kit was

completed.

Northeastern police undertook an investigation; they

interviewed the plaintiff, her roommate, and A.G.; reviewed the

video recordings from the entrance to the plaintiff's residence

hall; compiled a list of partygoers, which included the RAs

Smith and Jones; and received screenshots of the various text

messages sent by the plaintiff. The police created a report of

their investigation and provided it to the office of student

conduct and conflict resolution (OSCCR) director Mary Wegmann;

Wegmann then shared it with Briana R. Sevigny, the assistant

director of OSCCR, and Madeleine Estabrook, the vice-president

of student affairs. Following their investigation, Northeastern

9

police decided not to file any criminal charges against A.G. and

did not report the incident to Boston police.

Based on the Northeastern police report, OSCCR charged A.G.

with a code violation of "sexual assault with penetration."11 At

a student conduct board (SCB) hearing on November 21, 2013, both

the plaintiff and A.G. were appointed advisors to assist them.

Each student asked questions of the other through the SCB chair.

On the day after the hearing, the plaintiff and A.G. both

were sent letters explaining that the disciplinary panel had

found that A.G. had not committed the alleged offense.12

Consistent with the procedures in the code at that time, only

the letter to A.G. explained the SCB's reasoning.13 The SCB

noted that it had spent a great deal of time reviewing the

record, including the surveillance video recordings, due to the

serious nature of the charges. The letter explained that the SCB

had considered A.G.'s statements about those words and actions

11The code defined this offense as "the oral, anal, or

vaginal penetration by an inanimate object, penis, or other

bodily part without consent." Consent was defined as a

"voluntary agreement to engage in sexual activity proposed by

another and requires mutually understandable and communicated

words and/or actions demonstrating agreement by both parties to

participate in all sexual activities."

12Consistent with Northeastern's policy, the SCB employed a

standard of a preponderance of the evidence, i.e., "more likely

than not."

13Prior to the hearing, the plaintiff explicitly consented

to this procedure.

10

he had seen as the plaintiff's consent, the plaintiff's

statements about what she had said and done, and what a

reasonable person would have understood about the plaintiff's

consent or lack thereof.

The plaintiff submitted an appeal on the ground of asserted

issues of fact, without setting forth any requisite procedural

error. Unable to determine the nature of the asserted error,

the appeals board remanded the matter for a new hearing. In

preparing for the de novo hearing, Estabrook concluded that

there had been a procedural error in the allowance of the

appeal: the plaintiff had not stated the asserted procedural

error, and had not sent a copy of her request for an appeal to

A.G., nor had she provided him with notice so that he would be

able to respond.

Estabrook overturned the appeals board's order, but allowed

the plaintiff time to amend her appeal to indicate the specific

error she was challenging and to allow A.G. to receive notice of

the appeal and an opportunity to respond. The plaintiff

submitted an amended appeal, on the grounds of procedural error

and newly discovered evidence -- the evidence collection kit.

On February 7, 2014, the appeal on the ground of procedural

error was denied, while the appeal on the ground of new evidence

was allowed. The matter was remanded to the original SCB so

that it could consider the evidence collection kit. The SCB

11

reconvened and affirmed its original holding that A.G. had not

committed a sexual assault. The SCB stated that the evidence

collection kit might have confirmed the fact of intercourse, but

that fact had not been in dispute; the disputed issue had been

as to the question of consent.

2. Discussion. a. Standard of review. We review a

decision allowing a motion for summary judgment de novo, viewing

the evidence in the light most favorable to the nonmoving party,

in this case the plaintiff. See LeBlanc v. Logan Hilton Joint

Venture, 463 Mass. 316, 318 (2012). "Summary judgment is

appropriate where there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of

law." Godfrey v. Globe Newspaper Co., 457 Mass. 113, 118-119

(2010). If a plaintiff has failed to establish "an essential

element" of her case, all other facts are rendered immaterial.

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991).

The plaintiff claims that Northeastern14 not only

negligently failed to prevent the sexual assault, but indeed

contributed to its occurrence. She also asserts a number of

additional tort, contract, and statutory claims on the ground

that Northeastern failed to respond adequately to the incident.

14 The five named defendants were Northeastern executives

during the relevant period. See note 3, supra.

12

b. Negligence claims. The plaintiff claims that

Northeastern was negligent in several respects: it failed to

protect her from A.G.'s sexual assault, is responsible for the

unreasonable acts and omissions of its RAs, and failed to

exercise due care in training and supervising both its permanent

staff and its "paraprofessional" RA and SCB staff.15

To sustain a claim of negligence, a plaintiff must

establish that (1) the defendant owed a legal duty to the

plaintiff, (2) the defendant committed a breach of that duty,

(3) there was a causal connection between the defendant's

negligence and the plaintiff's injury or damage, and (4) the

plaintiff sustained damages. See Donovan v. Philip Morris USA,

Inc., 455 Mass. 215, 221–222 (2009). "[T]he existence of a duty

is a question of law, and is thus an appropriate subject of

summary judgment." Jupin v. Kask, 447 Mass. 141, 146 (2006).

i. Whether Northeastern owed a duty. "Under our case law,

[one does] not owe others a duty to take action to rescue or

protect them from conditions [one has] not created" (quotation

and citation omitted). Dzung Duy Nguyen v. Massachusetts Inst.

of Tech., 479 Mass. 436, 448 (2018). See Restatement (Third) of

Torts: Phys. & Emot. Harm § 37 (2012) ("An actor whose conduct

15Student members of the SCB were volunteers who attended

particularized training, but received no compensation of any

kind for their ad hoc work as board members.

13

has not created a risk of physical or emotional harm to another

has no duty of care to the other . . ."). Generally, this no-

duty rule extends to the criminal acts of third parties. See

Jupin, 447 Mass. at 148. It is, however, subject to certain

exceptions, two of which the plaintiff asserts are applicable

here. She argues that Northeastern owed her a duty to protect

her by virtue of the special relationship between a university

and its students. Additionally, she maintains that RAs Smith

and Jones exposed her to the foreseeable criminal acts of a

third party, and that Northeastern had a duty to protect her

from the resulting harm.

We agree that, here, a special student-university

relationship between the plaintiff and Northeastern did exist.

See Dzung Duy Nguyen, 479 Mass. at 450 (describing special

relationship). We nonetheless conclude that Northeastern had no

duty to take steps to prevent the alleged sexual assault,

because it was not reasonably foreseeable that the plaintiff

would suffer a criminal act by a third party or other imminent

physical harm due to her intoxication at the time of the

incident.

A. Special relationship between university and student.

In Mullins v. Pine Manor College, 389 Mass. 47, 54 (1983), we

first recognized that colleges and universities have a special

relationship with their students which imposes a "duty . . . to

14

protect their resident students against the criminal acts of

third parties." Although this duty was related to the

university's control over its campus, the relationship we

recognized was not limited to a university's role as a landlord

or property owner. Rather, it arose out of the "distinctive

relationship between colleges and their students." Id. at 56.

It was grounded both on the "reasonable expectation, fostered in

part by colleges themselves, that reasonable care will be

exercised to protect resident students from foreseeable harm,"

id. at 52, and the observation that universities "generally

undertake voluntarily to provide their students with protection

from the criminal acts of third parties," id. at 53.

The defendants nonetheless maintain that whatever special

relationship exists between a university and its student does

not impose a duty to protect a student while he or she is

voluntarily intoxicated. They argue, therefore, that the

Mullins duty does not apply, and that Northeastern had no other

duty to protect the plaintiff from any potentially harmful

consequences of her choice to drink alcohol. In both respects,

we disagree.

I. Voluntarily intoxicated students. As many courts have

noted, requiring colleges and universities to police all on-

15

campus use of alcohol would be inappropriate and unrealistic.16

Although "[t]here was a time when college administrators and

faculties assumed a role in loco parentis" and "[s]tudents were

committed to their charge because the students were considered

minors," "[c]ollege administrators no longer control the broad

arena of general morals." Bradshaw v. Rawlings, 612 F.2d 135,

139–140 (3d Cir. 1979), cert. denied sub nom. Borough of

Doylestown v. Bradshaw, 446 U.S. 909 (1980). College-aged

students, while sometimes underage for the purposes of the

purchase and consumption of alcohol, otherwise are adults

expected to manage their own social activities. See Furek v.

University of Del., 594 A.2d 506, 516–517 (Del. 1991) ("students

are now regarded as adults in almost every phase of community

life" [quotation and citation omitted]). Illicit consumption of

alcohol is an activity that falls well outside the educational

mission of the modern university, and the additional intrusion

16See Doe v. Emerson College, 153 F. Supp. 3d 506, 514 (D.

Mass. 2015) (imposing duty to prevent on-campus alcohol abuse

"would be impractical and unrealistic"). See, e.g., Guest v.

Hansen, 603 F.3d 15, 21-22 (2d Cir. 2010) (no duty to prevent

harms from drinking, even when university was aware of conduct);

Booker v. Lehigh Univ., 800 F. Supp. 234, 240-241 (E.D. Pa.

1992), aff'd, 995 F.2d 215 (3d Cir. 1993) (no duty to student

who was injured after becoming inebriated at on-campus

fraternity party). See also Restatement (Third) of Torts:

Phys. & Emot. Harm § 40 & comment l (2012) (courts reject duty

to protect students from excessive alcohol use); Bendlin,

Cocktails on Campus: Are Libations A Liability?, 48 Suffolk U.

L. Rev. 67, 73 (2015) (noting duty has been rejected in

"majority" of cases).

16

into the private lives of students that would be necessary to

control alcohol use on campus would be both impractical for

universities and intolerable to students.17

It does not follow, however, that a student relinquishes

any reasonable expectation of protection from his or her college

or university if the student becomes intoxicated. Unlike some

courts, we have not endorsed the view that the end of the era of

in loco parentis justified an effective "judicial grant of

collegiate immunity for the repercussions of student alcohol

consumption."18 See Dall, Determining Duty in Collegiate Tort

Litigation: Shifting Paradigms of the College-Student

Relationship, 29 J.C. & U.L. 485, 496 (2003). In Mullins, we

rejected that position, and observed that "the fact that a

17Moreover, part of the collegiate experience is the

freedom to make choices, even bad ones, as a student transitions

into adulthood. Imposing a duty on colleges and universities to

police alcohol use on campus "would inevitably lead to

repressive regulations and a loss of student freedoms, thus

contravening a goal of higher education: 'the maturation of the

students.'" See Smith v. Day, 148 Vt. 595, 599 (1987), quoting

Baldwin v. Zoradi, 123 Cal. App. 3d 275, 291 (1981).

18See Beach v. University of Utah, 726 P.2d 413, 419 (Utah

1986) ("It would be unrealistic to impose upon an institution of

higher education the additional role of custodian over its adult

students and to charge it with responsibility for preventing

students from illegally consuming alcohol and, should they do

so, with responsibility for assuring their safety and the safety

of others"). See, e.g., Bradshaw v. Rawlings, 612 F.2d 135,

140-141, 143 (3d Cir. 1979). These decisions reflected an

understanding that, as students were adults capable of choosing

for themselves, universities owed them no more duty than they

would any other bystanders.

17

college need not police the morals of its resident

students . . . does not entitle it to abandon any effort to

ensure their physical safety." Mullins, 389 Mass. at 52. More

recently, in the private carrier context, we rejected the

outdated view that the voluntary consumption of alcohol by a

plaintiff "is the sole consideration in the assessment of a

duty." Commerce Ins. Co. v. Ultimate Livery Serv., Inc., 452

Mass. 639, 650 (2008) ("A private carrier . . . which transports

intoxicated persons can reasonably foresee that passengers . . .

may not be fully capable of making rational decisions about

their ability to drive") We are not persuaded by the

defendants' argument that no duty exists, and that the duties

arising from the university-student relationship ought not to be

treated similarly in the context here.19

Moreover, like the era of in loco parentis, the "bystander"

era from which those "no duty" decisions emerged also appears to

be drawing to a close. As we stated in Dzung Duy Nguyen,

"[u]niversities are clearly not bystanders or strangers in

regards to their students." Dzung Duy Nguyen, 479 Mass. at 450.

19See Furek v. University of Del., 594 A.2d 506, 522 (Del.

1991) ("[a university] has a duty to regulate and supervise

foreseeable dangerous activities occurring on its property,"

including hazing); Coghlan v. Beta Theta Pi Fraternity, 133

Idaho 388, 400 (1999) (recognizing existence of duty where

"university employees knew or should have known that [student]

was intoxicated and should have acted at the time they saw her

prior to her injury").

18

Rather, "university involvement extends widely into other

aspects of student life." Id. In addition to education, many

universities provide access to basic necessities such as housing

and food, along with the "social, athletic, and cultural

opportunities" that form the foundation of a collegiate

"community." See id. at 451, quoting Regents of the Univ. of

Cal. v. Superior Court of Los Angeles, 4 Cal. 5th 607, 625

(2018); R.D. Bickel & P.F. Lake, The Rights and Responsibilities

of the Modern University 85 (1999) ("Universities . . . plan,

regulate and administer most aspects of student life").

While universities and colleges nonetheless are "not

responsible for monitoring and controlling all aspects of their

students' lives," the contemporary paradigm of the university-

student relationship recognizes that students' "right to privacy

and their desire for independence may conflict with their

immaturity and need for protection." See Dzung Duy Nguyen, 479

Mass. at 451-452. Accordingly, we reject the defendants'

blanket contention that, necessarily, universities have no

special relationship with voluntarily intoxicated students.

II. Contours of special relationship between university

and its intoxicated students. Given that voluntary

intoxication, in and of itself, does not preclude the existence

of a special relationship between a student and a college or

university, we turn to the scope of a university's or college's

19

duty to its intoxicated students. In doing so, we "take into

account a complex mix of competing considerations," Dzung Duy

Nguyen, 479 Mass. at 452, including students' interests in both

safety and autonomy, as well as the burden of such a duty on the

educational institutions. To help guide this analysis, we look

to "a number of factors used to delineate duties in tort law."

Id. "Foremost among these is whether a defendant reasonably

could foresee that he [or she] would be expected to take

affirmative action to protect the plaintiff and could anticipate

harm to the plaintiff from the failure to do so."20 Irwin v.

Ware, 392 Mass. 745, 756 (1984).

As noted, dangerous drinking-related activities are a

foreseeable hazard on college and university campuses.21 Because

Other factors that may be relevant include the "degree of

20

certainty of harm to the plaintiff; burden upon the defendant to

take reasonable steps to prevent the injury; some kind of mutual

dependence of plaintiff and defendant upon each other,

frequently . . . involving financial benefit to the defendant

arising from the relationship; moral blameworthiness of

defendant's conduct in failing to act; and social policy

considerations involved in placing the economic burden of the

loss on the defendant." Dzung Duy Nguyen v. Massachusetts Inst.

of Tech., 479 Mass. 436, 452 (2018).

See National Institute on Alcohol Abuse and Alcoholism,

21

High-Risk Drinking in College: What We Know and What We Need To

Learn, at v, 10-11 (Apr. 2002), https://www.collegedrinking

prevention.gov/media/finalpanel1.pdf [https://perma.cc/3CVU-

8D4K] (estimating that fifty percent of male students, and

twenty-nine to forty percent of female students, engage in

"binge drinking," defined as consuming five or more drinks in a

row for males, and four or more drinks in a row for females);

Wechsler, Lee, Nelson, & Kuo, Underage College Students'

20

of their youth and lack of experience with the consumption of

alcohol outside their family circle, many college students are

particularly susceptible to risky drinking behaviors. Massie,

Suicide on Campus: The Appropriate Legal Responsibility of

College Personnel, 91 Marq. L. Rev. 625, 661 (2008) ("the

brain's maturation process . . . continues into young adulthood,

at least through the early twenties").22 "Colleges and

universities, where young people in their late teens and early

twenties live close together in a 'pressure cooker' environment,

arguably might exacerbate a tendency towards impulsive behavior

Drinking Behavior, Access to Alcohol, and the Influence of

Deterrence Policies, 50 J. Am. College Health 223, 223 (2002)

(suggesting that forty percent of all college students engage in

binge-drinking). Each year, according to at least one

government report, there is a strong correlation between

students' consumption of alcohol and sexual assaults, physical

assaults, and student deaths. See National Institute on Alcohol

Abuse and Alcoholism, Fall Semester -- A Time for Parents To

Discuss the Risks of College Drinking, https://

www.niaaa.nih.gov/sites/default/files/publications/NIAAA_

BacktoCollege_Fact_sheet.pdf [https://perma.cc/5YFY-ZE9A].

22One researcher has postulated that the "late development

of the frontal lobe, responsible for the 'executive functions,'

may help to account for teenagers' willingness to indulge in

risky behaviors, including experimentation with alcohol and

drugs." Massie, Suicide on Campus: The Appropriate Legal

Responsibility of College Personnel, 91 Marq. L. Rev. 625, 662

(2008). While not all college-age students are in their teens,

at the time of the incident at issue here, both the plaintiff

and A.G. were teenagers, as were Paul Jones and Sarah Smith.

21

that a 'sober second thought' would perhaps quell."23 Id.

at 662.

Colleges and universities recognize these foreseeable risks

and have taken reasonable measures to protect students in the

event of an alcohol-related emergency. See Mullins, 389 Mass.

at 55 (recognizing duty where risk of harm to student "was not

only foreseeable but was actually foreseen"). Northeastern, for

example, directs students to contact Northeastern police

officers24 for assistance when faced with crises that occur on

university grounds, including those caused by alcohol. See

Northeastern University police department, Emergency Medical

Services, https://nupd.northeastern.edu/our-services/emergency-

medical-services [https://perma.cc/DC8J-996X].25 Northeastern

23According to the National Center for Education

Statistics, in 2019, there were 19.9 million college students in

the United States. National Center for Education Statistics,

Fast Facts, https://nces.ed.gov/fastfacts/display.asp?id=372

[https://perma.cc/VFZ5-NXSM].

24These police officers are Northeastern employees,

appointed under statutory authority, who have jurisdiction over

Northeastern's buildings and grounds. See G. L. c. 22C, § 63.

25A survey of local universities demonstrates the

widespread adoption of university policies directing students to

contact university police when there is a medical emergency on

campus. Some universities also have required students to

contact university police when they believe a student is

imperiled due to alcohol intoxication. See Massachusetts

Institute of Technology, Mind and Hand Book 2019-2020

§ II(2)(C): Requirement to Obtain Medical Assistance for

Emergencies Involving Alcohol and Prohibited Substances,

https://handbook.mit.edu/aodemergency [https://perma.cc/QVK7-

22

also offers "medical amnesty" for students who contact it in a

medical emergency involving underage consumption of alcohol, and

offers amnesty from punishment for students and organizations

who reach out for help in such an emergency.

Given these efforts, it is foreseeable that a student will

reasonably rely on his or her college or university for aid in

the event of an alcohol-related emergency. See Dzung Duy

Nguyen, 479 Mass. at 455 ("Reliance of the student on the

university for assistance, at least for students living in

dormitories or away from their parents or guardians, is . . .

foreseeable"); Irwin, 392 Mass. at 756 ("reasonable reliance by

the plaintiff [on the defendant university], impeding other

persons who might seek to render aid" from offering help, is

factor in duty analysis). Reliance is particularly foreseeable

for first-year students like the plaintiff, whom Northeastern

required to live on campus in its dormitories. When such a

student confronts an on-campus alcohol-related emergency,

"[u]niversities are in the best, if not the only, position to

assist." See Dzung Duy Nguyen, supra.

After weighing these considerations, we conclude that a

university has a special relationship with its students, and a

HQW9]; Fletcher School of Law and Diplomacy, Tufts University,

Student Handbook 2018-2019, at 29, https://sites.tufts.edu

/fletcherconnect/files/2018/07/Student-Handbook-2018-2019.pdf

[https://perma.cc/FG75-NL3F].

23

corresponding duty to take reasonable measures to protect

students from harms associated with alcohol-related emergencies,

in the following, narrow circumstances. When a college or

university has actual knowledge of conditions that would lead a

reasonable person to conclude that a student on campus is in

imminent danger of serious physical harm due to alcohol

intoxication, and so intoxicated that the student is incapable

of seeking help for him- or herself, the college or university

has a duty to take reasonable measures to protect that student

from harm. See Dzung Duy Nguyen, 479 Mass. at 453 (recognizing

limited duty to take reasonable measures to protect students

from suicide).26

This duty is limited in several important respects. It

applies only when a university is already aware that a student

is at imminent risk of harm. Analyzing the degree of harm does

not require the knowledge or precision of a medical doctor; it

merely requires the recognition that a young person is

dangerously intoxicated.27 Equipped with such knowledge, a

26This conclusion also does not absolve a student of

personal responsibility for his or her drinking. A jury of

course may consider intoxication when weighing whether the "duty

was violated, and in determining causation." Commerce Ins. Co.

v. Ultimate Livery Serv., Inc., 452 Mass. 639, 650 (2008).

27In addition to considering the degree of intoxication, a

university or college also should consider the context of the

drinking, and a continuum of harms, such as whether a student is

unconscious outside, continuing to consume at a party, or inside

24

college or university merely must act reasonably under the

circumstances. In some cases, to strike the appropriate balance

between respecting a student's autonomy and the need to protect

his or her physical well-being, a reasonable response will

include doing little or nothing at all, while in others, calling

for medical or other forms of assistance might be warranted.

B. The foreseeability of the harm. Notwithstanding the

special university-student relationship that existed between

Northeastern and the plaintiff, we conclude that Northeastern

owed no duty to protect her in this instance. A university's

duty to protect its students extends only to those harms which,

based on "an examination of all the circumstances", Mullins, 389

Mass. at 56, were reasonably foreseeable at the time. See,

e.g., Dzung Duy Nguyen, 479 Mass. at 455 (duty "hinges on

foreseeability"). On this record, we conclude that Northeastern

could not reasonably have foreseen that, absent some

intervention on its part, the plaintiff would be subjected to a

criminal act or other harm.

I. Foreseeability of criminal act by third party. At the

time of the alleged assault, Northeastern had no indication that

an assigned dormitory room. Similarly, students with a history

of drinking to the point of alcohol poisoning may pose an

enhanced risk to themselves of future physical harm.

25

A.G. posed any risk to the plaintiff.28 While "[p]rior criminal

acts are simply one factor" in the foreseeability analysis, see

Mullins, 389 Mass. at 56, we note that nothing in the record

indicates that A.G. had a history of sexual assaults, of which

Northeastern was aware (or otherwise). Cf. Schaefer v. Yongjie

Fu, 272 F. Supp. 3d 285, 288 (D. Mass. 2017) (duty arose where

university had knowledge that made specific criminal acts

foreseeable). Northeastern police conducted a search of their

records and found no other reported incidents involving A.G. as

an assailant. Nor did the plaintiff identify any concerns that

she or anyone else possessed regarding A.G. before this

incident. To the contrary, she indicated that she had had none.

Furthermore, the plaintiff does not argue, nor is there any

evidence to suggest, that residence life officers, area

directors, or other full-time staff were aware of the events

leading up to the alleged assault. At most, therefore,

Northeastern's awareness of the circumstances surrounding this

incident was limited to the observations of Jones, an off-duty

RA, Smith, an on-duty RA, and an unknown proctor at the

plaintiff's dormitory.

28There is no indication in the record that Northeastern's

lack of information about the circumstances was the product of

negligence or willful blindness on the part of Northeastern.

26

While the issue is a close one on whether the RAs or

proctor were agents in these circumstances, we need not reach

that issue.29 Even if we were to assume that all of their

knowledge could be imputed to Northeastern, they lacked

sufficient information that would have led a reasonable person

to conclude that the plaintiff was at risk of being assaulted.

There is no indication in the record that A.G. or any other

attendee acted inappropriately towards the plaintiff at the

party. Before, during, and after the party, she was capable of

communicating with other students, both in person and via text

message, and was managing her intoxication. Toward the end of

the party, Smith was told that two female students would escort

the plaintiff back to her dormitory. Based on these

observations, it would not have been foreseeable that A.G. would

assault the plaintiff later that evening.

Arguably, the proctor who was working at the plaintiff's

residence hall when she returned with A.G. perhaps had the best

29RAs, as students who receive some form of in-kind

compensation (room and partial board) for their work for

Northeastern, occupy a hybrid role that may not cleanly fit

within the definition of "employee" for the purposes of tort

law. See Helms, Pierson, & Streeter, The Risks of Litigation:

A Case Study of Resident Assistants, 180 Ed. Law Rep. 25, 26

(2003) ("As both students and employees, RAs' employment status

is inextricably intertwined with their academic status"). It is

also apparent from the student code of conduct that, at least

while on duty, RAs were empowered and expected to enforce

university policies on behalf of Northeastern.

27

opportunity to observe the situation and intervene if

necessary.30 There is no direct evidence in the record, however,

of what that proctor observed, or, for that matter, the identity

of that individual. At most, other evidence31 supports the

inference that the proctor saw an intoxicated male and female

return to the residence hall where they both resided and check

in at the front desk. The proctor likely observed the plaintiff

lean on the desk for support while signing in, before unsteadily

making her way to the elevator. There is no indication that

A.G. was acting aggressively or sexually towards the plaintiff,

or that the plaintiff appeared to be dangerously intoxicated at

that point. The mere presence of an intoxicated young woman in

the company of an intoxicated young man as they returned to

30The plaintiff asserts that the proctor failed in his or

her duty by not calling the Northeastern police and having them

assess whether she safely could have been allowed into the

residence hall given her visibly intoxicated state. There is

evidence in the record that other students at the party

considered that the proctor might take actions in response to

intoxication. The plaintiff testified as well, however, that if

she had been approached by Northeastern police, she would have

said that she was "fine," and "with a friend," and would have

declined any help.

31A police report indicates that the plaintiff and A.G.

were captured on video surveillance footage returning to the

residence hall and checking in with the proctor. This recording

was not included in the record on summary judgment, but was

examined by Northeastern police, who testified as to its

contents.

28

their shared residence hall does not, without more, suggest that

a crime or physical harm is imminent.

The plaintiff maintains that Northeastern should have

foreseen that she would be sexually assaulted because of the

generally recognized connection between alcohol and sexual

assault on college campuses. As we have noted, studies do

reflect that sexual assaults on college campuses are "a major

public health problem," and that "[o]ver half of all college

sexual assaults involve alcohol and alcohol is the number one

drug used to facilitate sexual assault." The plaintiff argues,

based on a report by a Department of Health and Human Services

task force, that approximately 70,000 college students "are

victims of alcohol-related sexual assault annually" in the

United States.

This recognized relationship between alcohol and sexual

assault on campus, however, standing alone, is not sufficient to

impose a duty on Northeastern. See Lake, Private Law Continues

to Come to Campus: Rights and Responsibilities Revisited, 31

J.C. & U.L. 621, 649 (2005) ("notifying [an RA] that someone is

drunk does not alert the [RA] that a rape is likely"); Hernandez

v. Baylor Univ., 274 F. Supp. 3d 602, 619 (W.D. Tex. 2017)

("Courts across the country have determined . . . that the

general foreseeability of sexual assault on campus is

insufficient to warrant negligence liability"). This is

29

precisely the overreaching type of duty that we have never

imposed on universities, and which we again expressly reject

today.

II. Foreseeability of imminent alcohol-related harm.

Similarly, based on the RAs' and the proctor's observations of

the plaintiff, it would not have been apparent to a reasonable

person that she was at imminent risk of physical harm due to

alcohol intoxication. While the plaintiff was obviously

intoxicated at least part of the time that she was in Smith's

room, it did not appear that she was experiencing an emergency.

The plaintiff did not lose consciousness during the evening or

exhibit other indications that she was dangerously intoxicated.

She was talking with other students, sending text messages, and

later eating crackers and drinking water in response to her

nausea. No one encouraged her to seek medical attention; the

students who were in the bathroom with her did not think that

help was necessary, and the plaintiff herself believed that she

did not need any. At most, some other students believed that

the plaintiff should be escorted home by peers and, accordingly,

offered to walk her home.

Moreover, in the absence of an ongoing emergency, it was

reasonable for Jones and Smith to respond to the plaintiff's

intoxication as they did. Jones, an off-duty RA, informed

Smith, an on-duty RA, that a fellow student appeared ill due to

30

drinking alcohol. Rather than continue with her rounds, Smith

stopped to check on the plaintiff. She spoke with the two

female students who were taking care of the plaintiff at the

time and saw that these students were feeding and hydrating her.

After listening for any indication that the plaintiff was still

vomiting, and hearing none, Smith then permitted or acquiesced

in the plan that those two students escort the plaintiff back to

her own dormitory.

At that point, it was not negligent for the RAs to allow

those two students to walk the plaintiff home. Indeed,

Northeastern's policy stated that an RA need not seek further

help or arrange transportation if the RA believed that an

intoxicated student was being assisted by another person. The

fact that, unbeknownst to Smith and Jones, the plaintiff later

turned down this offer of help and opted instead to walk back to

her dormitory with A.G. does not make their decisions

unreasonable.32

Considering all of the information that Northeastern had at

its disposal, it was not reasonably foreseeable that the

plaintiff was in peril at the time of the alleged assault.

32Nor, for that matter, would it have been negligent for

the RAs to allow A.G. to escort the plaintiff home in the first

instance. A.G. was a friend of the plaintiff, they came to the

party together, and they would be returning to their shared

residence hall.

31

Because Northeastern was not on notice that it would be required

to step in and protect the plaintiff, the existence of a special

relationship alone did not impose an obligation on Northeastern

to act. We therefore conclude that, on the particular facts

here, Northeastern did not owe a legal duty to the plaintiff on

the basis of a special relationship. In the absence of such a

duty, summary judgment properly was granted on this portion of

the plaintiff's negligence claim.

ii. Vicarious liability. The plaintiff further asserts

that by holding the Halloween party, RAs Smith and Jones created

an unreasonable risk that she would be sexually assaulted. See

Restatement (Second) of Torts § 302B (1965). Thus, she claims

that Northeastern owed a duty to protect her from the resulting

harms of that party. See Elias v. Unisys Corp., 410 Mass. 479,

481 (1991) ("The [vicarious] liability of the principal arises

simply by the operation of law and is only derivative of the

wrongful act of the agent")

To be sure, by throwing, or tacitly permitting, this

underage drinking party, the RAs hardly covered themselves with

glory. The plaintiff's argument nonetheless fails, however,

because, as noted supra, the subsequent steps that the RAs took

to protect the plaintiff were appropriate under these

circumstances. Whatever duty the RAs may have owed to protect

the plaintiff in these circumstances was clearly met.

32

As the plaintiff cannot establish any breach of a duty on

the part of the RAs, her derivative claims against the

university fail as a matter of law.

iii. Negligent supervision and training. The plaintiff

argues that individual defendants Sevigny, Wegmann, and

Estabrook, as well as Northeastern itself, should be liable for

the negligent training and supervision of the RAs and the SCB

members.

The plaintiff's claim against Northeastern and the

individual defendants fails because there is no evidence that

any of the defendants was negligent in training or supervising

its student resident advisors. "Employers are responsible for

exercising reasonable care to ensure that their employees do not

cause foreseeable harm to a foreseeable class of plaintiffs."

Roe No. 1 v. Children's Hosp. Med. Ctr., 469 Mass. 710, 714–715

(2014). To establish an employer's liability for negligently

training and retaining an employee, a plaintiff must show that

the "employer [became] aware or should have become aware of

problems with an employee that indicated his unfitness, and the

employer fails to take further action such as investigating,

discharge or reassignment." Foster v. The Loft, Inc., 26 Mass.

App. Ct. 289, 291 (1988).

Northeastern's RAs went through a two and one-half week

initial training program, followed by additional workshops.

33

They also met with university staff on a weekly basis. As part

of the training, one student explained, RAs were directed to

report underage drinking and respond according to the severity

of the student's intoxication.33 This training included

recognizing warning signs of the excessive consumption of

alcohol.

Arguably, by failing to report the underage drinking that

they observed, and by engaging in underage drinking themselves,

the RAs apparently did not follow their training on the night in

question. Nonetheless, and notwithstanding Northeastern staff's

ongoing supervision, it does not appear on this record that

Northeastern or any of the individual defendants were aware of

any issues with these two RAs prior to the Halloween incident.

Because the defendants did not know, or have reason to know,

that the RAs would not conduct themselves according to

Northeastern's policies and training, the defendants were not

negligent.

Similarly, the SCB members (who were uncompensated)

underwent both a general training on disciplinary proceedings,

and an additional training specific to sexual assault cases. In

addition, the SCB members were required to observe a full SCB

33Northeastern's written policy, however, set out in the

student handbook, allowed a "medical amnesty" for intoxicated

students in which, among other actions short of reporting, RAs

could arrange for an escort home.

34

proceeding before participating in one. There is no evidence

that the SCB members failed to follow the provisions of

Northeastern's code of conduct, or any policies from their

training, when considering the events at issue here. Nor is

there any indication that Northeastern staff became aware of, or

should have become aware of, any problems with the SCB members'

knowledge of the Northeastern code. See Doe v. Brandeis Univ.,

177 F. Supp. 3d 561, 614 (D. Mass. 2016) (Brandeis Univ.). To

the contrary, the SCB letter explained clearly the factors the

SCB considered in evaluating the issue of consent and its

understanding of the definition of consent under the code.

Accordingly, the defendant cannot sustain her claim of negligent

supervision and training.

c. Negligent infliction of emotional distress. There also

was no error in the judge's decision to deny the plaintiff's

claim for negligent infliction of emotional distress. "[I]n

order to recover for negligently inflicted emotional distress,"

a plaintiff must prove the following: "(1) negligence;

(2) emotional distress; (3) causation; (4) physical harm

manifested by objective symptomatology; and (5) that a

reasonable person would have suffered emotional distress under

the circumstances of the case." Payton v. Abbott Labs, 386

Mass. 540, 557 (1982).

35

For all the reasons discussed in part 2.b, supra, the

plaintiff cannot sustain her negligence claims. Accordingly,

the motion judge properly concluded that, absent the necessary

element of negligence, the defendants' motion for summary

judgment had to be allowed on those counts.

d. Breach of contract. In addition to her negligence

claims, the plaintiff contends that Northeastern committed a

breach of a contract with her in which it promised to conduct

its disciplinary proceedings in accordance with its stated

procedures and the code of conduct in the student handbook.

Although the plaintiff had such a contract with Northeastern,

there was no breach.

Claims that a university did not exercise proper care or

follow its established procedures in student disciplinary

proceedings have been treated as claims for breach of contract,

based on the university's student handbook or other documents,

such as the student code of conduct at issue here. See, e.g.,

Schaer v. Brandeis Univ., 432 Mass. 474, 478 (2000); Walker v.

President & Fellows of Harvard College, 82 F. Supp. 3d 524, 528-

529 (D. Mass. 2014), aff'd, 840 F.3d 57 (1st Cir. 2016).

"Contracts between students and universities are interpreted 'in

accordance with the parties' reasonable expectations, giving

those terms the meaning that the university reasonably should

expect the student to take from them.'" Walker, supra at 528,

36

quoting Havlik v. Johnson & Wales Univ., 509 F.3d 25, 34 (1st

Cir. 2007). Interpretation of a contract, including "any

ambiguities . . . in the disputed contract terms," is a question

of law decided de novo by the reviewing court. See Walker,

supra at 529, citing Driscoll v. Trustees of Milton Academy, 70

Mass. App. Ct. 285, 293 (2007).

To decide whether there was a breach of contract as a

result of a disciplinary proceeding, we examine the conduct of

the disciplinary hearing to determine whether Northeastern

failed to meet the student-plaintiff's "reasonable

expectations," and whether the hearing was conducted with "basic

fairness" (citations omitted). See Brandeis Univ., 177 F. Supp.

3d at 594. The plaintiff identifies two ways in which she

asserts that Northeastern committed a breach of its contract

while conducting the disciplinary hearing. She points to

Estabrook's denial of her appeal after the appeals board had

allowed it, and a lack of "basic fairness" at the subsequent

second hearing, in part due to the destruction of the recording

of the original hearing. See id.

Neither of these asserted missteps represents a breach of

Northeastern's contract with the plaintiff. Estabrook, as the

vice-president of student affairs, was responsible "for the

overall administration of the Code of Student Conduct as well as

the Student Conduct Process." On the record before the court,

37

it is apparent that Estabrook's position afforded her the

implied authority to rectify serious errors in the SCB process,

including the authority to overturn otherwise final decisions of

the appeals board. When she vacated the appeals board's

decision allowing a new hearing on the ground of procedural

error, Estabrook merely exercised that authority. It would be

an absurd result to decide that the plaintiff reasonably could

have expected to proceed with an appeal on the ground of

procedural error, where she did not point to any procedural

error in the initial proceeding.

Likewise, the plaintiff's claim that she was harmed by the

destruction of the transcript of the original hearing cannot

succeed. Prior to filing her appeal, the plaintiff explicitly

declined Northeastern's offer that she listen to an audio

recording of the hearing. Following the allowance of her appeal

(which did not rely on the recording), the tapes were destroyed,

as specifically provided for under the then-existing terms of

the code (in an effort to protect students' privacy and

confidentiality). The plaintiff thus could not have had a

reasonable expectation that the tapes would be retained, nor did

she make any request for an exception such that the tapes would

not be destroyed when she initially declined to listen to them.

The plaintiff also points to a number of purported flaws in

the then-existing written code, including the provision

38

prescribing destruction of recordings after the conclusion of an

appeal, which was intended to protect the privacy of the

parties. These issues with the code itself, however, do not

indicate that Northeastern committed a breach of the terms of

the code. Whatever flaws it arguably contained were not so

egregious that they could have violated the plaintiff's

reasonable expectations, or resulted in fundamental unfairness.

In any event, it is the terms of the code, and not the changes

the plaintiff would like to have seen made, that were at issue

on appeal. In the absence of a breach, the plaintiff's contract

claim could not survive the motion for summary judgment.

e. MERA claim. For similar reasons, summary judgment

properly was granted for the defendants on the plaintiff's claim

under the Massachusetts Equal Rights Act (MERA). MERA provides,

in relevant part, that "[a]ll persons within the commonwealth,

regardless of sex . . . , shall have . . . the same rights

enjoyed by white male citizens, to make and enforce

contracts . . . and to the full and equal benefit of all laws."

G. L. c. 93, § 102 (a).

The parties agree that the plaintiff's MERA claim is based

entirely on Northeastern's asserted breach of its contract with

her. Accordingly, because the breach of contract claim cannot

succeed, for the reasons discussed supra, the judge properly

39

determined that the plaintiff also could not prevail on her MERA

claim.

f. Title IX claim. The plaintiff also raises a Federal

claim under Title IX of the Education Amendments of 1972,

20 U.S.C. § 1681 (Title IX). Title IX provides that "[n]o

person . . . shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving

Federal financial assistance." 20 U.S.C. § 1681(a). See Wills

v. Brown Univ., 184 F.3d 20, 35 (1st Cir. 1999) (Lipez, J.,

dissenting). The protections of Title IX are "enforceable

through an implied private right of action against an

educational institution . . . [that] can include a demand for

monetary damages." Id. at 36.

"[T]he provisions of Title IX indicate that a funding

recipient should be liable only for its own actions, and not for

the independent actions of an employee or a student. . . .

[T]he administrative-enforcement scheme for Title IX permitted

the imposition of financial penalties only after funding

recipients received actual notice of discrimination within their

programs and were given an opportunity to institute corrective

measures; they would be subject to sanctions only for their

failure to respond rather than for an employee's independent

acts." Simpson v. University of Colorado Boulder, 500 F.3d

40

1170, 1175 (10th Cir. 2007), citing Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 287–289 (1998).

The plaintiff argues that Northeastern violated Title IX by

responding with deliberate indifference to the sex

discrimination she suffered. She asserts that Northeastern

failed properly to train the students who oversaw the

disciplinary proceedings, resulting in an inadequate process

that left her vulnerable to future harassment by A.G. See

Wills, 184 F.3d at 25-26 (discussing Title IX standard). See

also Doe I v. University of Tenn., 186 F. Supp. 3d 788, 812

(M.D. Tenn. 2016) (describing ongoing injury from improper Title

IX proceedings). The plaintiff maintains further that the

conduct of the SCB inquiry, and the intervention by Estabrook,

cast doubt on the accuracy of the disciplinary process and

support an inference that gender bias was a motivating factor.

See Doe v. Columbia Univ., 831 F.3d 46, 57 (2d Cir. 2016)

(Columbia Univ.). For the reasons discussed infra, this Federal

law claim fares no better than the plaintiff's other claims.

i. Deliberate indifference. To sustain a cause of action

that is not based on an "official policy" of a university, a

plaintiff must show that "an official who at a minimum [had]

authority to address the alleged discrimination and to institute

corrective measures on the recipient's behalf [had] actual

knowledge of discrimination" and responded with "deliberate

41

indifference." Gebser, 524 U.S. at 290. See Doe v. Trustees of

Boston College, 892 F.3d 67, 93 (1st Cir. 2018) (Trustees of

Boston College). The underlying "discriminatory act must be so

severe, pervasive, and objectively offensive that it can be said

to deprive the victims of access to the educational

opportunities or benefits provided by the school." Id., citing

Porto v. Tewksbury, 488 F.3d 67, 72 (1st Cir. 2007). In turn, a

university's response must be "clearly unreasonable in light of

the known circumstances." Davis v. Monroe County Bd. of Educ.,

526 U.S. 629, 648 (1999). See Farmer v. Kansas State Univ., 918

F.3d 1094, 1099 (10th Cir. 2019), quoting Davis, supra at 648-

649 ("Title IX does not require a funding recipient to acquiesce

in the particular remedial action a victim seeks. . . . '[T]he

recipient must merely respond to known peer harassment in a

manner that is not clearly unreasonable'").

When Northeastern first learned of the asserted assault, it

"acted expeditiously and reasonably, and exhibited no

indifference at all to [the plaintiff's] allegations." Hayut v.

State Univ. of New York, 352 F.3d 733, 752 (2d Cir. 2003). Upon

learning of the allegations, Northeastern initiated an

investigation that culminated in the SCB proceedings. It also

issued a no-contact order against A.G.; the order remained in

place throughout the plaintiff's time at Northeastern. The

plaintiff was offered, and received, ongoing counselling from

42

Northeastern. Northeastern also extended other accommodations

to her, including offering to move her and her roommate to a

"safe room," or transferring her out of classes she shared with

A.G., but ultimately she decided not to accept these additional

measures.34

On the whole, "the record not only fails to support [the

plaintiff's] contention, it proves otherwise." Doherty vs.

Emerson College, U.S. Dist. Ct., No. 1:14-CV-13281-LTS (D. Mass.

Sept. 29, 2017) (initiating investigation, issuing stay away

order, and offering counselling was reasonable initial

response). As the record reflects, the SCB's hearing procedures

were not deficient. Prior to the first SCB hearing, the

plaintiff was appointed an advisor to assist her and to be

present at the hearing, as was A.G. At her request, the

plaintiff was allowed to ask questions of A.G. through the SCB

chair, who heard the question as stated by the plaintiff, and

then posed it to A.G.; A.G. similarly was allowed to ask

questions of the plaintiff. The SCB ultimately decided the case

based on a complainant-friendly preponderance of the evidence

standard. Examining the totality of the proceedings, we

conclude that they do not reflect deliberate indifference.

34While these otherwise appropriate accommodations are not

unreasonable in these circumstances, we note that it was the

plaintiff, rather than A.G., who would have been required to

adjust her living and studying arrangements.

43

Similarly, the plaintiff's assertions that the students who

took part in the proceedings were insufficiently trained is not

supported by the record. To sustain her claim, the plaintiff

would have to demonstrate that Northeastern had a "policy of

deliberate indifference to providing adequate training or

guidance that is obviously necessary for implementation of [the

SCB] program." Simpson, 500 F.3d at 1178. Here, the students

received specific Title IX training that included explanations

of the key concepts in this case, among them incapacitation and

consent; the students were instructed that someone who is

incapacitated can never give consent. This definition, and the

explanation, also were set out plainly in the code that was

provided to all students. That the students could not precisely

define certain terms at their depositions, five years after the

incident, does not raise an issue of material fact that must be

decided by a jury.

Additionally, the plaintiff's deliberate indifference claim

cannot succeed as a matter of law because the record does not

establish that she was excluded from any educational

opportunity. Although the plaintiff reported that she

experienced ongoing emotional and psychological harm, she does

not identify a particular effect that this had on her education.

Rather, the record reflects that she graduated on time, magna

cum laude. Cf. Gabrielle M. v. Park Forest-Chicago Heights,

44

Ill. Sch. Dist. 163, 315 F.3d 817, 823 (7th Cir. 2003) (holding

that there was no concrete, negative effect on education where

plaintiff was "diagnosed with some psychological problems"

following harassment). Absent "necessary evidence of a

potential link between her education and [A.G.'s] misconduct,"

the plaintiff's claim cannot survive summary judgment. See

Davis, 526 U.S. at 652.

ii. Erroneous outcome. The entry of summary judgment for

the defendants also was warranted as to the plaintiff's claim of

erroneous outcome. "[T]he applicable standard for [a] Title IX

claim challenging [a university's] disciplinary procedures on

erroneous outcome grounds requires that a plaintiff offer

evidence 'cast[ing] some articulable doubt on the accuracy of

the outcome of the disciplinary proceeding,' and indicating that

'gender bias was a motivating factor.'" Trustees of Boston

College, 892 F.3d at 90, quoting Yusuf v. Vassar College, 35

F.3d 709, 715 (2d Cir. 1994). Viewing the facts in the light

most favorable to the plaintiff, neither necessary element could

be established on this record.

Estabrook's intervention, whatever its propriety,

ultimately had little if any effect on the accuracy of the SCB's

final decision. Hypothetically, by reversing the appeals

board's decision to allow an appeal, Estabrook could have

limited the issues that the SCB could have considered on appeal

45

to purely procedural matters. Subsequently, however, Estabrook

allowed the plaintiff to file an amended appeal, and the matter

was remanded for a new hearing before the SCB based on new

evidence. Although the appeals board had denied the plaintiff's

amended appeal on the ground of procedural error, after

concluding that there had been none, on remand the SCB

nonetheless considered the procedures employed at its first

hearing, and stated in its decision that it found that no

procedural errors had occurred at the initial hearing. Thus, it

would appear that the plaintiff ultimately had the benefit of

the full appeal of the procedures that she initially had sought.

In addition, even if there were any doubt about the

accuracy of the proceeding, there was no evidence that any error

was the product of gender bias. Although the plaintiff is

correct that bias may be inferred when "the evidence

substantially favors one party's version of a disputed matter,

but an evaluator forms a conclusion in favor of the other side

(without an apparent reason based in the evidence)," Columbia

Univ., 831 F.3d at 57, no such inference is appropriate here.

Estabrook's intervention does not lack an apparent reason based

in the evidence; she indicated that she overturned the appeals

board's decision due to her perception of procedural

inadequacies (allowing an appeal where no ground for appeal had

been stated) and unfairness due to lack of notice.

46

Further, any possible inference of bias would "not

necessarily relate to bias on account of sex" (emphasis added).

Id. Other than the plaintiff's unsupported assertion that

"reporting sexual assault victims are overwhelmingly female,"

she does not identify any evidence to support the additional

conclusion that Estabrook's decision was spurred by gender bias.

Without evidence of "a causal connection between the outcome of

[the] disciplinary proceedings and gender bias," Trustees of

Boston College, 892 F.3d at 91, the plaintiff's claim asserting

an erroneous outcome must fail.

Judgment affirmed.