Petition for Writ of Certiorari — Salve Regina College v. Russell

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No. 90- '

' rc ar ancl, JR.

Sait cit nx ail

In The \ eT nei

Supreme Court of the United States

October Term, 1989

SALVE REGINA COLLEGE,

Petitioner,

SHARON L. RUSSELL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Steven E. SNow*

Partripcr, SNow & Hann

One Old Stone Square

Providence, Rhode Island 02903

(401) 861-8200

Counsel for Petitioner

*Counsel of Record

COCK'.E LAW BRIEF PRINTING CO, (00

OR CALL COLLECT (4) 342.287)

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QUESTIONS PRESENTED

1. Whether a party is entitled to de novo review of a

federal district judge’s determination o1 state law in a

case in which federal jurisdiction is founded upon diver-

sity of citizenship?

2. Whether a federal court violates the constitu-

tionally mandated rule of Erie R.R. Co. v. Tompkins, 304

U.S. 64 (1938), when it disregards relevant holdings of the

state’s highest court and other available sources of state

law and creates a novel rule of state law?

3. Whether a federal court should certify a question

involving the complex relationship between a college and

a student to the state’s highest court, when the state’s

highest court has not yet had an opportunity to rule

directly on the issue, prior to independently creating a

novel rule of state law?

4. Whether a federal court can refuse to instruct a

jury as to the binding effect of facts stipulated by the

parties to be true, and whether the court thereafter may

permit the jury to draw factual conclusions which are

incompatible with the facts as stipulated?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .... 22. cccccscccosssnuues i

TABLES OF AUTHORITIES ......ccccssccssveuenueen iii

OPENSUNS GELOW. ....0e0sccceeenueunee ene 1

ek ee 8 2

STATERGENT ... 2.2... cccccennens ue ene enna 2

eS 11

REASONS FOR GRANTING THE PETITION....... 15

I. THIS COURT SHOULD RESOLVE THE CON-

FLICT AMONG THE CIRCUITS AS TO

WHETHER A PARTY IS ENTITLED TO A DE

NOVO REVIEW OF A DISTRICT COURT'S DE-

TERMINATION OF STATE LAW.............. 15

Il. IMPORTANT ISSUES OF FEDERALISM RE-

QUIRE THAT THIS COURT ARTICULATE AND

DEFINE THE STANDARDS TO BE USED IN

ASCERTAINING STATE LAW................. 18

Ill. THE FEDERAL COURT SHOULD HAVE CERTI-

FIED THE QUESTION TO THE RHODE

ISLAND SUPREME COURT..............+.... 24

IV. THE CASE SHOULD BE REMANDED TO THE

COURT OF APPEALS TO DETERMINE

WHETHER THE FEDERAL DISTRICT COURT

CAN REFUSE TO INSTRUCT A JURY AS TO

ili

TABLE OF AUTHORITIES

Page

Cases

Afram Export Corporation v. Metallurgiki Halyps,

ns oem wae eae quem Cie, 1965) ................ 17

Beard v. ].1. Case Co., 823 F.2d 1095 (7th Cir. 1987) .... 17

Bernhardt v. Polygraphic Company of America, Inc.,

I as Wiad dvd escescsccccccess 19, 20

Board of Curators, University of Missouri uv.

rr 20

Burstein v. United States, 232 F.2d 19 (8th Cir. 1956) .... 26

Clayton v. Trustees of Princeton University, 608 F.

ees sos escncacecceseess 15

Craig v. Lake Asbestos of Quebec, Ltd., 843 F.2d 145

Eee hoes ce cncdesesccesccuncces 16

Dennis v. Rhode Island Hospital Trust National Bank,

744 F.2d 893 (1st Cir. 1984)............ caeehecatns 15

Diggs v. Pepsi-Cola Metropolitan Bottling Co., 861

I os sows csc ccc c cess ssneee 16

Erie R.R. v. Tompkins, 304 U.S. 64 (1938)......... Passim

Ferris v. Mann, 99 R.1. 630, 210 A.2d 121 (1965) ..... 22

Fidelity Union Trust Company v. Field, 311 U.S. 169

ERG oda seca sccccccccecsccsccccses 19

Griffin v. Illinois, 351 U.S. 12 (1956) ............... ine

iv

TABLE OF AUTHORITIES - Continued

Page

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)......... 25

Harris v. Pacific Floor Machine Manufacturing Co.,

oe EB TTT Tree eee 15

Jackson v. United States, 330 F.2d 679 (8th Cir.

1964), cert. denied 379 U.S. 885 (1964) ............. 26

Lumbermen’s Mutual Casualty Co. v. Elbert, 348 U.S.

Se ano as nd 0a6s aabalakebacencewebasssoessces 25

Lyons v. Salve Regina College, 565 F.2d 200 (1st Cir.

1977) cert. denied 435 U.S. 971 (1978).............. 22

Matter of McLinn, 739 F.2d 1395 (9th Cir. 1984)...... 16

Meredith v. Winter Haven, 320 U.S. 328 (1943). 13, 24, 25

Mitchell v. Random House, Inc., 865 F.2d 664 (5th

GR NN oe pe a i eer ras Aas on 15

National Chain Co. v. Campbell, 487 A.2d 132 (R.I.

WU urasackacuhensoreuvek aon Gauwe erate, 22

Neel v. Indiana University Board of Trustees, 435

N.E.2d 607 (Ind. Ct. App. 1982) .................. 23

Olsson v. Board of Higher Education, 49 N.Y.2d 408,

402 N.E.2d 1150, 426 N.Y.S.2d 248 (1980).......... 23

Regents of the University of Michigan v. Ewing, 474

FO SE ED SF cc Kees bancivccesevereevacereceds 20

TABLE OF AUTHORITIES - Continued

Rose v. Nashua Board of Education, 679 F.2d 279 (1st

= Se ert Tere pindedesevdaseaneue

Slaughter v. Brigham Young University, 514 F.2d 622

CRUD GN SPP ok 0G cao vncsncandancsnansodees

Sofair v. State University of New York-Upstate Medt-

cal Center College of Medicine, 54 A.D.2d 287, 388

N.Y.S.2d 453 (1976), reversed on other grounds, 44

N.Y.2d 475, 377 N.E.2d 730, 406 N.Y.S.2d 276

GROOT > Cid ebe cube duis sehen Csueeuabehsedindes

PE ch ackae cae iicnscanweceurdeneneaenieatne

West v. American Tel. & Tel. Co., 311 U.S. 223 (1940) ....

STATUTES

I te

ERE ROL RAS AEA IR Pe ire

Oe I I ooo o.s vv oie cicvcccessvebes

nat at a nee POR REE NRE a

No. 90-

~—.

In The

Supreme Court of the United States

October Term, 1989

a

SALVE REGINA COLLEGE;

Petitioner,

SHARON L. RUSSELL,

Respondent.

+

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

+

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

890 F.2d 484 and is reprinted in the Appendix hereto. The

opinion of the district court denying petitioner’s motion

for a directed verdict is also reprinted in the Appendix.

Finally, the opinion of the district court granting summa-

ry judgment in favor of the petitioner on five of the eight

counts of respondent’s complaint is reported at 649 F.

Supp. 391 and is reprinted in the Appendix.

+

JURISDICTION

The judgment of the court of appeals was entered on

November 20, 1989. A timely Motion for Rehearing with

Suggestion for Rehearing En Banc was denied on January

16, 1990, and this Petition for Writ of Certiorari was

timely filed. This court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

--

STATEMENT

1. Salve Regina College (“Salve Regina”) is a catho-

lic co-educational college of arts and sciences sponsored

by the Sisters of Mercy. It is located in Newport, Rhode

Island and maintains a department of nursing which

awards graduates a bachelor of science in nursing degree.

2. Respondent, Sharon Russell, a citizen of Hart-

ford, Connecticut, entered Salve Regina as a freshman in

the fall of 1982. Toward the end of Russell’s freshman

year at Salve Regina, she sought admission to candidacy

in the nursing department (161a - 171a; PE16).' She began

her nursing studies as a sophomore in the fall of 1983.

3. On the first day of her sophomore year, Russel!

was advised of the nursing faculty’s expectations of stu-

dents (535a - 536a). At this time, Russell suffered from a

serious addictive eating disorder resulting in her being

extremely overweight. Russell was approximately 200

1 References in the Statement are to the Joint Appendix,

Plaintiff's Exhibits (“PE”), and Defendant's Exhibits (“DE”) in

the record on appeal.

ee

pounds overweight - a medical condition known as mor-

bid obesity (298a; 415a; 485a). Persons with morbid

obesity are at significant medical ris’ because of their

overweightness (479a).

4. On her first day as a nursing student, Russell’s

advisor had a private meeting with Russell at which time

Russell's obesity was discussed. The advisor discussed

some of the requirements of the program and the need for

Russell to lose weight. The advisor told Russell she was

concerned about Russell’s obesity, both for Russell's per-

sonal health and its likely impact upon Russell’s ability to

perform as a professional nurse (305a; 538a).

5. The sophomore year nursing curriculum at Salve

Regina consists primarily of academic courses - in con-

trast to clinical training which forms a major part of the

junior and senior year nursing curriculum. Russell per-

formed satisfactorily in her academic work. Nevertheless,

Russell’s obesity started to interfere with her nursing

training and performance during the sophomore year. For

example, Russell was unable to satisfactorily complete a

course in cardiopulmonary resuscitation offered at Salve

Regina (191a; 316a), after she fell on the training manne-

quin’s head and required the instructor’s assistance to

raise herself (PE29; 1205a). Additionally, it was deter-

mined that Russell had significantly understated her

weight on a health data form used for making clinical

training assignments for her junior year. At that time,

Russell promised the college’s Clinical Agency Coordina-

tor, the person in charge of assigning nursing students to

clinical agencies, that she would try to lose weight before

entering the clinical program (31a; 723a). Russell also

signed a form in which she agreed, among other things,

to “accept the decision of the Clinical Agency Coordina-

tor and Department Chairman as final as to whether or

not [Russell] can function in the clinical area” (196a -

197a; PE26).

6. Salve Regina’s junior year nursing curriculum

included a four credit nursing theory course .nd a four

credit clinical training experience. Unfortunately, instead

of losing weight as she had promised, Russell had gained

weight before starting her clinical training (321a). As the

year progressed, the senior of Russell's two clinical in-

structors came to believe that Russell’s obesity was inter-

fering with her nursing practice and training (47 1a).

Initially, Russell could not fit into the scrub gowns pro-

vided by the hospital in which she was training (322a),

thus precluding Russell from obtaining experience in the

operating room (583a). In her instructor's judgment,

Russell had difficulty internalizing and integrating con-

cepts regarding nutrition and obesity and applying these

concepts to her assigned patients (573a; 584a).

7. At the end of the fall semester of Russell's junior

year, Russell was given a final clinical evaluation by the

senior instructor (PE37). In that evaluation, Russell re-

ceived six unsatisfactory grades and was told that, in the

instructor’s view, Russell's professional performance was

unsatisfactory (231a; 594a-595a). The deficiencies noted

by the instructor were all, in some respect, related to

Russell’s morbid obesity.

8. Salve Regina’s Department of Nursing had in

effect a policy that even a single unsatisfactory grade in

the clinical setting would result in a failing grade in that

course, leading to dismissal from the nursing program

(651a). In this case, however, the faculty was ambivalent

about summarily dismissing Russell because all of

Russell’s deficie:icies were related to her obesity (593a;

652a). Russell’s clinical instructor discussed the grade

and available options with the department chairperson

and indicated that she was willing to give Russell a

passing grade if Russell would commit to losing weight.?

9. On December 18, 1984, a meeting took place be-

tween Russell, the clinical instructor and the department

chairperson wherein an agreement was reached under

which Russell would be given a passing grade in the

clinical course she had completed - thus avoiding expul-

sion from the nursing program - conditioned upon

Russell entering a treatment program (Weight Watchers)

achieving a weight loss of 2 pounds per week, and report-

ing her progress to the Clinical Agency Coordinator on a

weekly basis (232a; 625a). A written contract was pre-

pared which established the conditions for Russell’s con-

tinuation in the nursing program. Th

provided, in part: _ fs mania

I understand that failure to meet an

nd and all of

these conditions will result in my volumtany and

immediate withdrawal from the nursing pro-

gram at Salve Regina College th

ineligible for Nursing n> us making me

(PE38, 1237a).

? Russell consistently maintained that her i

physiological basis and was within her power than, har

She also insisted that her obesity was not a handicap (362a) In

the view of the clinical instructor, Russell's weight loss would

likely improve the behaviors which concerned her (627a).

‘ a The course referred to in the contract, Nursing 411, is the

clinical training component required to be taken during the

(Continued on following page)

10. Russell executed the written contract (233a;

350a). Russell understood that if she could lose two

pounds per week consistently, and otherwise meet the

academic requirements, she would be allowed to contin-

ue in the program (341a). Russell also understood that

she had committed herself to withdraw voluntarily from

the nursing program if she did not meet the contractual

commitment (708a).

11. Asa result of entering into the contract, Russell

was allowed to continue in the nursing program on a

probationary status (674a; 729a). Upon entering into the

contract, Russell began a weight treatment program, re-

ported as required, and experienced a fluctuating weight

loss which did not average two pounds per week (240a).

After May, 1985, Russell failed to report regularly as she

had agreed and, unfortunately, began once again to gain

weight. In July, 1985, Russell was advised that the depart-

ment-was disappointed in her progress and that Russell

had not fulfilled the terms of the contract (260a - 261a).

Russell was told that she probably would not be permit-

ted to enroll in Nursing 411 (761a).

12. Russell’s net weight loss over the six month

period after entering the contract was 10 pounds. Russell

also had failed to report weekly to the Clinical Agency

(Continued from previous page)

senior year and is a prerequisite for graduating from Salve

Regina with a degree in nursing. Russell's eligibility for the

theory portion of the senior year curriculum, Nursing 410, was

not affected by the contract (658a).

Coordinator as she had promised. As a result, Russell

was advised on August 21, 1985 that she had not

complied with the conditions for entering Nursing 411

and that her name was being removed from the list of

students eligible to enroll for that course (372a - 373a).

13. Notwithstanding the department’s action,

Russell was still enrolled as a student at Salve Regina and

could have qualified to graduate although Russell could

not have graduated as a nurse within the normal four

year time frame (795a; 764a). To have graduated from

Salve Regina as a nurse, Russell would have had to

establish her eligibility for entering Nursing 411, suc-

cessfully complete Nursing 411, and complete the other

requirements for the degree (795a).

14. Instead of filing a grievance, seeking reinstate-

ment to the nursing department, or changing majors

(661a), Russell transferred to St. Joseph’s College in Con-

necticut (267a). Russell had to repeat her junior year at St.

Joseph’s College (268a) due to that institution’s require-

ment that students earn at least 60 credits in residence

before graduating with a nursing degree (437a). One year

after undergoing radical surgery which reduced her over-

weightness by 50%, Russell successfully completed her

bachelor’s degree in nursing at St. Joseph’s (156a).

15. . This litigation was commenced by Russell in

September, 1985 against Salve Regina and five individu-

ally named faculty members. The complaint alleged

handicap discrimination in violation of the Rehabilitation

Act of 1973, 29 U.S.C. § 794, the denial of due process and

unconstitutional interference with Russell's liberty and

property interests, negligent and intentional infliction of

emotional distress, invasion of privacy, wrongful dismiss-

al, violation of implied covenants of good faith and fair

dealing, and breach of contract (4a - 16a).

16. On November 17, 1986, the district court entered

summary judgment in favor of defendants with respect to

all of the claims save those involving intentional inflic-

tion of emotional distress, invasion of privacy, and breach

of contract. 649 F. Supp. 391. Since all the claims based

upon federal law were dismissed, federal jurisdiction

over the remaining claims was premised solely upon

diversity of citizenship, 28 U.S.C. § 1332(a)(1).

17. Pursuant to the district court’s pre-trial order,

the parties filed a joint statement which included 40

separate stipulations of fact agreed to by the parties (73a -

85a).

18. At the close of respondent's case-in-chief, the

district court directed a verdict in favor of all the individ-

ual defendants on all of the claims against them, and

directed a verdict in favor of Salve Regina on the claims

of intentional infliction of emotional distress and invasion

of privacy (517a - 524a). The district court ruled, however,

that there was a triable issue with respect to breach of

contract. Although the district court rejected Russell's

claims that the weight loss contract was procured by

duress and lacked consideration, and held that the special

agreement which established the conditions for Russell's

eligibility in the nursing program was part of the overall

relationship between Russell and Salve Regina (522a -

523a), the district court nevertheless stated:

The basic question is whether Salve Regina Col-

lege was justified in dismissing this plaintiff

9

after completion of three years, and not allow-

ing her to enter her fourth year, and final year,

of the nursing program, toward a degree (521a).

The district court continued:

In short, I think there is a legitimate question for

the jury to decide as to whether the dismissal of

the plaintiff in August of 1985 by Mrs. Chap-

delaine, was reasonable and justified in view of

the whole contractual relationship between the

college and this plaintiff. In other words, it cre-

ates an issue of substantial performance. . . . If

the jury can say that the plaintiff substantially

eee my her contractual obligations to the col-

ege, then they can say she was wrongfully dis-

charged, or dismissed from her course. If the

jury on the other hand determines that there

was = no substantial performance, viewing

the overall picture, including her obligations un-

der the side agreement, then the jury can deter-

mine that the college justifiably dismissed her

from the program (523a).

19. At the close of all of the evidence, Salve Regina

renewed its motion for a directed verdict on the grounds,

inter alia, that the plaintiff had admitted - as evidenced

by the stipulated facts - that she had not met - nor came

close to meeting - the conditions established for her

continuance in the nursing program and that, as a result,

Salve Regina College was entitled to judgment as a mat-

ter of law. The college also urged that the “substantial

performance” test was not applicable under Rhode Island

law, or the law of any other state, in the unique context of

the college-student relationship (814a - 817a). The district

judge, while acknowledging that the Rhode Island Su-

preme Court had to date limited the application of the

“substantial performance” test to construction contracts,

10

and while agreeing that the doctrine of substantial perfor-

mance should not apply generally in the academic con-

text, nonetheless ruled that he believed that the Rhode

Island Supreme Court would apply the doctrine in this

case. No analysis or legal rationale for this prediction was

given (820a - 822a). The court denied the motion for a

directed verdict and sent the case to the jury (820a - 822a).

The college seasonably objected to the charge (904a -

905a).

20. The jury returned a verdict finding the college

liable in damages for breach of contract (915a). The dis-

trict court denied the college’s post-trial motions for

judgment notwithstanding the verdict, for a new trial,

and/or remittitur (132a), after which the clerk entered

judgment.

21. The court of appeals affirmed without engaging

in any meaningful review of the case. Acknowledging

that Rhode Island law applied to all substantive aspects

of the case, the court of appeals characterized the case as

one of “first impression” and noted that the district court

believed that the Rhode Island Supreme Court would

apply the substantial performance standard to the con-

tractual relationship between a student and a college.

Based upon the First Circuit’s rule of deferring to inter-

pretations of state law made by federal judges sitting in

that state, the court of appeals held that the district

court’s determination was not “reversible error.” 890 F.2d

at 489. The court of appeals also rejected petitioner's

other grounds for appeal, considering it “appropriate to

accord the district court reasonable leeway.” 890 F.2d at

490.

ae

11

SUMMARY

This case presents an opportunity for this Court to

determine a number of important and potentially far-

reaching issues — including fundamental questions of the

allocation of power between the federal and state judici-

aries which have not been addressed by this Court in

some time. The district court below deemed itself free to

declare and apply its own opinion of how the Rhode

Island Supreme Court would view the complex relation-

ship between a student and a college. Through the simple

expedient of characterizing the case as one of first im-

pression, the district court created a novel and highly

troubling rule of state law while ignoring relevant deci-

sions ©/ the Rhode Island Supreme Court, clear legal

precedent from other states following a similar doctrinal

approach as the Rhode Island Supreme Court, and the

reasoned views of legal commentators. Although the dis-

trict court dressed up its decision as a prediction of what

the ae Supreme Court would likely hold if the

case w fore it, no rationale nor legal analysis accom-

panied the prediction. Except for the district judge’s sub-

jective feelings and belief, his creation of new law for

Rhode Island was totally without foundation. The district

court felt that the lack of a precise precedent gave it

leeway to create a new rule in the guise of a prediction.

Since this Court’s holding in Erie R.R. v. Tompkins, 304

U.S. 64 (1938), it has been clear that the Constitution

mandates the application of state rather than federal deci-

sional law in diversity cases. In instances where the

state’s highest court has made a recent ruling in an “all-

fours” factual situation, the federal courts have had little

12

difficulty in applying the Erie rule. A problem of ascer-

taining state law arises however, when the state’s highest

court has not spoken, either recently ov at all, on the

question in issue. A more serious problem arises, how-

ever, when a federal judge wishes to make an indepen-

dent decision and reads recent, analogous cases narrowly

in order to arrive at the conclusion that the highest court

has not spoken authoritatively on the question presented.

The question then becomes whether the federal judge

may make an independent decision on the basis of what

he deems to be the right rule, or whether he must analyze

other sources of state law in order to ascertain what the

law of the state would be if the issue were before the

state’s highest court.

This Court has yet to express a definite opinion as to

the process which binds a federal judge in ascertaining

state law when the highest state court has not spoken to

the precise question in issue. This is an important issue

which goes to the heart of our federal system of govern-

ment and one which should be settled by this Court.

A second important issue raised by this petition

which has never been directly answered by this Court is

the problem of which court within the federal judicial

system is charged with the ultimate responsibility for

ascertaining what state law is. While the ultimate power

to decide whether state law was properly applied in a

diversity case undoubtedly rests with the Supreme Court,

this Court has indicated its reliance on lower federal

courts for the interpretation of state law.

13

But which of the lower courts? In the First Circuit, it

is the district court’s construction of state law that now

applies. In this case, for example, the court of appeals

refused to review the district judge’s prediction of state

law, deferring to the district court’s presumed expertise

in the law of the state of Rhode Island. Thus, despite

Salve Regina’s statutory if not constitutional right to at

least one appeal, that right became largely meaningless

because the district court’s interpretation of state law -

even if incorrect - was not viewed as reversible error.

Other circuits, most notably the Third, Sixth, Seventh,

Ninth, and Tenth Circuits, take a wholly different ap-

proach. In those circuits, rather than the deferential stan-

dard of review to a district judge’s construction of the

law of the state, which accepts that construction unless it

is clearly wrong, questions of state law are reviewed by

the court of appeals under the same independent de novo

standard as are questions of federal law. Those circuits

properly recognize that anything less than a full indepen-

dent de novo review is an abdication of appellate respon-

sibility and a deprivation of a party’s right to a full,

considered and impartial review of the district court’s

decision. This Court should resolve this conflict in the

circuits, and clearly establish that the courts of appeal

have the responsibility for ascertaining state law and that

a de novo standard for reviewing district courts’

pronouncements of state law is mandated.

Another important issue raised by this petition is the

desirability of a federal court’s refraining from the exer-

cise of jurisdiction in those diversity cases where it finds

itself unable to ascertain accurately the law of the state

involved. Although this Court ruled in Meredith v. Winter

14

Haven, 320 U.S. 328 (1943), that federal courts should

accept the responsibility to decide questions of state law

when necessary for the disposition of cases brought to it

for decision, subsequent experience with federal district

judges exercising a quasi-legislative function in the devel-

opment of state law raises the question of whether princi-

ples of federalism require reconsideration of the question

of abstention, or at least mandatory certification to the

state’s highest court for guidance, whenever state law is

unclear.

Finally, this case raises an important question of fed-

eral procedure. For reasons known only to the district

court, the district judge refused petitioner’s request to

read the stipulated facts to the jury and to instruct the

jury that they must treat the stipulated facts as having

been proved and accept them as true (113a - 114a). The

law appears to be clear that stipulations or admissions

made pursuant to a pre-trial order are the equivalent of

proof and prevent an independent examination by the

jury with respect to the matters stipulated. Had the jury

been required to accept the stipulated facts as conchisive,

it could not have concluded, as it apparently did, that

respondent substantially performed her obligations to the

college. Although this issue was fully briefed and argued

to the Court of Appeals, it was never decided. The case

should be remanded to the Court of Appeals for decision

on this issue.

15

REASONS FOR GRANTING THE PETITION

I. THIS COURT SHOULD RESOLVE THE CONFLICT

AMONG THE CIRCUITS AS TO WHETHER A PAR-

TY IS ENTITLED TO A DE NOVO REVIEW OF A

DISTRICT COURT’S DETERMINATION OF STATE

LAW.

The court of appeals did not engage in any meaning-

ful review of the district court’s prediction that the Rhode

Island Supreme Court would rule that a student’s sub-

stantial - although not full - performance in meeting the

requirements for continuing or completing an academic

program is sufficient.4 The First Circuit failed to review

the decision because it applies a deferential standard of

review to a district judge’s construction of the law of the

state in which he or she sits, accepting that construction

unless it is “clearly wrong.” Dennis v. Rhode Island Hospi-

tal Trust National Bank, 744 F.2d 893, 896 (1st Cir. 1984);

Rose v. Nashua Board of Education, 679 F.2d 279, 281 (1st

Cir. 1982).5 Thus, the First Circuit equates a district

court’s determination of state law with determinations of

* Despite exhaustive research, the college has found no

other case in the academic or educational context in which the

commercial contract doctrine of “substantial performance” has

been applied. To the contrary, the only courts that appear to

have considered the application of such a doctrine have re-

jected it. Slaughter v. Brigham Young University, 514 F.2d 622,

627 (10th Cir. 1975); Clayton v. Trustees of Princeton University,

608 F. Supp. 413 (D.N.J. 1985).

> Other circuits have similarly applied this limited stan-

dard of review. See, e.g., Mitchell v. Random House, Inc., 865 F.2d

664 (Sth Cir. 1989); Harris v. Pacific Floor Machine Manufacturing

Co., 856 F.2d 64 (8th Cir. 1988).

16

fact under Rule 52(a) of the Federal Rules of Civil Pro-

cedure. The “clearly erroneous” standard of Rule 52,

however, is based upon the trial judge’s unique oppor-

tunity to judge the accuracy of witnesses’ recollections

and make credibility determinations — factors that are not

relevant to a conclusion of law - be it federal or state.

In contrast, the Court of Appeals of the Third, Sixth,

Seventh, Ninth and Tenth Circuits take a wholly different

approach. In the leading case of Matter of McLinn, 739

F.2d 1395 (9th Cir. 1984), an en banc United States Court of

Appeals for the Ninth Circuit concluded that district

court determinations of state law pursuant to the Erie

doctrine are subject to de novo review in the same manner

as any other question of law. In that case, the Ninth

Circuit held that anything less than full independent de

novo review of state law determinations by district courts

amount to an abdication of appellate responsibility. Ob-

serving that every party is entitled to a “full, considered,

and impartial review of the decision of the district court,”

the court ruled that there is no justification for being less

thorough, or for curtailing the parties’ appellate rights,

simply because the law involved is state law. 739 F.2d at

1398. According to the Ninth Circuit, there is no sound

reason to have a lesser appellate duty to make a correct

independent determination when the question is one of

state law. 739 F.2d at 1398.

The Ninth Circuit’s rule of de novo review has now

been followed in a number of other jurisdictions. See, e.g.,

Diggs v. Pepsi-Cola Metropolitan Bottling Co., 861 F.2d 914,

929 (6th Cir. 1988) (it would be an abdication of appellate

responsibility to give less than de novo review); Craig v.

Lake Asbestos of Quebec. Ltd., 843 F.2d 145, 148 (3rd Cir.

aS

et lat OE ly lg A A i al te Ad

ee

17

1988) (district court’s determinations of state law subject

to plenary review); Beard v. ].1. Case Co.,. 823 F.2d 1095,

1098 (7th Cir. 1987); Afram Export Corporation v. Metal-

lurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir. 1985).

The question of the standard of review to be given to

state law determinations by federal courts is an issue that

ought to be decided by this Court. Our jurisprudence has

developed a thesis that a person is entitled as a right to

one appeal; this thesis is at least statutory if not constitu-

tional in origin. Cf. 28 U.S.C. § 1291; Griffin v. Illinois, 351

U.S. 12 (1956). Since this Court’s energies must be hus-

banded for resolution of issues of greater public impor-

tance than determinations of state law questions, it is

obvious that the only chance for appellate review will be

to a court of appeals. When a court of appeals exercises

its mandatory appellate jurisdiction by giving full and

independent review to the decision of the district court,

this Court then becomes free to conserve its discretionary

powers because the parties have already been accorded

full appellate review.

Moreover, it would appear that the policies which are

basic to the decision in Erie R.R. Co. v. Tompkins, 304 U.S.

64 (1938), mandate full appellate review by the court of

appeals. In Erie, this Court ruled that equal justice re-

quired, to the extent possible, application of the same law

to all persons regardless of their citizenship, and neutral-

ization of the advantage of forum shopping. 304 U.S. at

74-78. The petitioner before the Court did not choose the

federal form; it was brought to the federal forum merely

by accident of respondent’s domicile. Had the case been

tried before a Rhode Island trial court, the parties would

have been accorded full appellate review by the Rhode

18

Island Supreme Court - the state’s highest judicial au-

thority. In contrast, the federal district court in this case

acted as a substitute for the entire state court system. The

petitioner was not only foreclosed from a definitive rul-

ing on state law; it was foreclosed from any meaningful

judicial review of the district court’s speculation as to

state law.

The First Circuit's deference to the district court is

based solely upon the latter’s purported expert knowl-

edge of the law of the state in which it is located. While it

is true that a district judge may be an expert in deter-

mining and applying state law, a district judge is no less

an expert in determining and applying federal law. There

is simply no sound reason for according greater weight to

the former than to the latter and for maintaining different

standards of appellate review. Given that appellate

judges are not encumbered, as are trial judges, by the

process of hearing evidence, they are more free to concen-

trate on legal questions - federal and state. If anything,

the collaborative, deliberative process of appellate courts

probably puts them in a better position than the district

courts to decide questions of law.

Il. IMPORTANT ISSUES OF FEDERALISM REQUIRE

THAT THIS COURT ARTICULATE AND DEFINE

THE STANDARDS TO BE USED IN ASCERTAIN-

ING STATE LAW.

This Court's decision in Erie R.R. v. Tompkins, 304 U.S.

64 (1938), taught that the federal courts exercising diver-

sity of citizenship jurisdiction must apply state rather

than federal decisional law. In so doing, the decision

raised the question of how a federal judge is to ascertain

eee ae

19

and apply state decisional law. As Mr. Justice Frankfurter

noted in Bernhardt v. Polygraphic Company of America, Inc.,

350 U.S. 198 (1956), the Erie rule makes a choice between

two evils:

One of the difficulties, of course, resulting from

Erie R.R. Co. v. Tompkins, is that it is not always

easy and sometimes difficult to ascertain what

the governing state law is. The essence of the

doctrine of that case is that the difficulties of

ascertaining state law are fraught with less mis-

chief than disregard of the basic nature of diver-

sity jurisdiction, namely, the enforcement of

state-created rights and state policies going to

the heart of those rights.

350 U.S. at 208-09.

The Erie opinion itself shed little light on the problem

of ascertaining unclear state law; nevertheless, in analyz-

ing the proper role of the federal judge with respect to

state law, Erie provides the policies and ground rules

from which standards of judicial conduct must be de-

vised. In those few instances where a state’s highest court

has made a ruling directly on point, there is little diffi-

culty in applying the Erie rule. There is no doubt that a

federal judge is bound hy the decision of an intermediate

state court of state-wide jurisdiction, absent a ruling by

the highest court of the state or other convincing evi-

dence of state law. Fidelity Union Trust Company v. Field,

311 U.S. 169 (1940). Moreover, it is clear that a federal

judge must ascertain and apply state law regardless of his

or her personal belief as to its correctness. West v. Ameri-

can Tel. & Tel. Co., 311 U.S. 223, 236-37 (1940). Finally, it is

clear that state law arises from many sources, and a

federal judge must be cognizant of all such sources in

20

making his or her determination. Bernhardt v. Polygraphic

Co. of America, 350 U.S. 198, 205 (1956).

What is not clear, however, are the standards for

analysis that a judge must utilize to ascertain state law

when an authoritative state court has not spoken to the

precise question in issue - and what restrictions constrain

a federal judge who wishes to create new state law and

thus reads closely analogous cases narrowly in order to

arrive at the conclusion that the matter is one of first

impression. These issues are presented in the instant peti-

tion.

In this case, the district judge ruled that he was

satisfied in his “own mind that if the Supreme Court of

Rhode Island had this particular case to decide, the Su-

preme Court of Rhode Island would say that the doctrine

of substantial performance should apply, and the jury

should make a determination of whether there was sub-

stantial performance by the plaintiff in this case” (821a).°

This conclusion was not based upon recognized sources

6 The doctrine of substantial performance is inherently

unworkable in the academic context. Imagine, for example, a

student who successfully completes 124 out of 128 credits

required for graduation. Should a jury be permitted to con-

clude that the student “substantially performed” the require-

ments and, thus, is entitled to a degree? Would anyone wish to

be treated by a nurse who “substantially performed,” but did

not fully meet the requirements for graduation? Professional

education requires subjective evaluation in non-cognitive areas

like clinical performance, and the law must respect a faculties’

professional judgment as to the level of performance. Cf. Re

gents of the University of Michigan v. Ewing, 474 US. 214, 225

(1985); Board of Curators, University of Missouri v. Horowitz, 435

U.S. 78 (1978).

21

of state law such as published opinions, relevant statutes,

legislative history, treatises, law review articles, or other

sources of law which would be examined by the state’s

highest court. Rather, the determination was based upon

some undefined special knowledge or feeling for Rhode

Island law that the district judge presumed to have but

could not articulate.

Since the very act of a federal judge in deciding a

case serves a declaratory function of restating, adding to,

or modifying the pre-existing “body of law” of the state,

there should be some well-defined standard by which a

federal judge acts to predict the way in which the state’s

highest court would rule. The accuracy of prediction of

state court decisions by a federal judge depends upon the

judge’s ability to emulate the judicial decision-making

process of the state court. This, in turn, requires an exam-

ination of all sources of state law and methodologies of

decision making, in order to isolate those factors peculiar

to the particular state’s judicial process which materially

affect the outcome of litigation within a state. Moreover,

the examination must include all available persuasive

data including compelling inferences or logical implica-

tions from other related adjudications. Anything less

would be inconsistent with Erie and the principles of

federalism upon which Erie is based.

The danger inherent in the current lack of standards

~ the nearly unbridled power of a district court to create

state law - is clearly manifested in this case. Even a

cursory analysis would demonstrate that the Rhode Is-

land Supreme Court has long limited the application of

the doctrine of “substantial performance” to construction

contract cases, where it typically arises when a builder

22

claims from the owner payment of the unpaid balance

due under the contract. In such situations, it is well

settled in Rhode Island that when a builder has substan-

tially performed, he can recover the contract price less

the amount needed by the owner to remedy the defect.

National Chain Co. v. Campbell, 487 A.2d 132, 135 (R.1.

1985); Ferris v. Mann, 99 R.1. 630, 636, 210 A.2d 121, 124

(1965). The doctrine of substantial performance recog-

nizes that it would be unreasonable to condition a build-

er’s recovery upon strict performance where minor

defects or omissions could be remedied by repair. Id.

It seems highly unlikely, however, that the Rhode

Island Supreme Court would apply the doctrine of sub-

stantial performance to a dispute arising out of the reia-

tionship between a private college ard a student. Rhode

Island recognizes that the student-college relationship is

unique and cannot be stuffed into one doctrinal category

such as contract or associational law. While it is apparent

that some elements of the law of contracts are used and

should be used in the analysis of the relationship between

a student and a college to provide some framework into

which to put the problem, it is clear that commercial

contract doctrine is not applied in all its aspects. See, e.g.,

Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir.

1977), cert. denied 435 U.S. 971 (1978) (applying Rhode

Island law).” In Rhode Island, the standard applied to the

? The Lyons case is based upon the leading case from the

Court of Appeals for the Tenth Circuit, Slaughter v. Brigham

Young University, 514 F.2d 622 (10th Cir. 1975), cert. denied 423

U.S. 898 (1975). This interpretation of the student-university

relationship has been adopted virtually universally since 1975.

(Continued on following page)

23

student-college relationship is that of reasonable expecta-

tion - what meaning the party making a manifestation

should reasonably expect the other party to give it. /d. at

202.

Despite this clear authority, the district court chose to

reject the college’s proffered jury instructions which out-

lined the “reasonable expectations” standard and instead

espoused the prediction that the Rhode Island Supreme

Court would apply the commercial contract doctrine of

“substantial performance.” The district court made this

prediction notwithstanding the fact that every reported

case in the academic or educational context which has

considered the application of the doctrine of substantial

performance has rejected it.*

The erroneous prediction of state law by the district

court in this case - compounded by the court of appeals’

deference to the district court on issues of state law -

underscores the need for this Court to clarify and restrict

a federal court's ability to create state law out of whole

cloth. Despite efforts to restrict diversity jurisdiction, di-

versity cases still comprise a substantial portion of the

(Continued from previous page)

These cases adhere to the principle of avoiding mechanistic

applications of contract law and afford institutional academic

decision making the utmost latitude and discretion. See, e.g.,

Neel v. Indiana University Board of Trustees, 435 N.E.2d 607 (Ind.

Ct. App. 1982); Sofair v. State University of New York — Upstate

Medical Center College of Medicine, 54 A.D.2d 287, 388 N.Y.S.2d

453 (1976), reversed on other grounds, 44 N.Y.2d 475, 377 N.E.2d

730, 406 N.Y.S.2d 276 (1978); Olsson v. Board of Higher Education,

49 N.Y.2d 408, 402 N.E.2d 1150, 426 N.Y.S.2d 248 (1980).

* See note 4, supra.

24

docket of the district courts. In small states such as Rhode

Island, where there is only a single state appellate court,

it is rare to find an authoritative state decision directly on

point. As a result, in Rhode Island at least, the federal

district court, as a practical matter, creates as much deci-

sional state law as the state judiciary. At present, simply

by characterizing the case as one of first impression, the

federal court has virtual carte blanche to act as a quasi

state legislature in creating new law. This state of affairs

simply cannot be countenanced under the Erie doctrine’s

declaration that the federal courts lack constitutional au-

thority to create substantive law to be applied within the

states. This Court should issue its Writ of Certiorari to

establish the standards to be adhered to by district courts

in ascertaining state law.

lil. THE FEDERAL COURT SHOULD HAVE CERTI-

FIED THE QUESTION TO THE RHODE ISLAND

SUPREME COURT.

Until such time as Congress sees fit to abolish diver-

sity jurisdiction, this Court should consider the desir-

ability of the lower federal courts abstaining from the

exercise of jurisdiction in those cases, such as the case at

bar, where the district court believes the matter is one of

first impression in the state. This simple expedient would

eliminate the federal courts’ unwarranted intrusion into

the development of state law.

Although this Court ruled in Meredith v. Winter Ha-

ven, 320 U.S. 228, 237-38 (1943), that parties were entitled

to have an adjudication of questions of state law in diver-

sity cases, such a rule is not constitutionally or stat-

utorally mandated. This is evidenced by the refusal of the

25

federal courts to resolve issues of domestic relations and

probate matters despite the meeting of jurisdictional re-

quirements. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504

(1947). Petitioner suggests that the Court ought to recon-

sider its ruling in Meredith in the interests of federalism

and judicial workload.’

Another possibility which would preserve the no-

tions of federalism upon which the Erie doctrine is based

would be to require federal courts to certify doubtful

questions of state law to the state high court for resolu-

tion." Through the adoption of this practice, the court

best equipped to answer state law questions could do so

in a definitive manner, and the equality of treatment

which the Erie rule was aimed to accomplish would be

assured.

This Court should issue its Writ of Certiorari to eval-

uate these alternatives.

% Justices Black and Jackson dissented from the Court's

ruling in Meredith. Moreover, Mr. Justice Frankfurter, who

joined in Mr. Chief Justice Stone’s opinion in that case, later

indicated doubts about the result. See Frankfurter, J. in Lumber-

men's Mutual Casualty Co. v. Elbert, 348 U.S. 48, 53 (1954).

© For example, Rule 6 of the Rules of the Supreme Court

of the State of Rhode Island authorizes that tribunal to answer

questions of law certified to it by the Supreme Court of the

United States, a Court of Appeals of the United States, or a

United States District Court, when requested by the certifying

court if there are involved in any proceeding before it ques-

tions of Rhode Island law which may be determinative of the

cause then pending in the certifying court, and as to which it

appears to the certifying court there is no controlling prece-

dent.

26

IV. THE CASE SHOULD BE REMANDED TO THE

COURT OF APPEALS TO DETERMINE WHETH-

ER THE FEDERAL DISTRICT COURT CAN RE-

FUSE TO INSTRUCT A JURY AS TO THE

BINDING EFFECT OF STIPULATED FACTS.

Pursuant to the district court’s pre-trial order, the

parties agreed to 40 separate stipulations of fact (73a -

85a). Salve Regina requested an instruction to the jury

that the jury must treat the stipulated facts as having

been proved and accept them as true (113a - 114a). The

district court failed to give the requested charge over the

college’s objection (904a).

While not ruled upon by this Court, the law seems

clear that stipulations or admissions made pursuant to a

pre-trial order are the equivalent of proof and prevent an

independent examination by the jury with respect to the

matters stipulated. See, e.g., Burstein v. United States, 232

F.2d 19, 22-23 (8th Cir. 1956); Jackson v. United States, 330

F.2d 679 (8th Cir. 1964), cert. denied 379 U.S. 885 (1964);

United States v. Sommers, 351 F.2d 354, 357 (10th Cir. 1965).

It is unclear why the district court refused to instruct

the jury that they were bound by the stipulated facts; it

proffered no rationale for the action. What is clear, how-

ever, is that Salve Regina was prejudiced by the jury’s

failure to consider the stipulated facts as binding. Had

the jury been required to accept the stipulated facts as

conclusive, it would have been impossible for the jury to

have concluded, as it apparently did, that respondent

substantially performed her obligations to the college.

While this issue was fully briefed and argued to the

court of appeals, the court of appeals rendered no

27

decision on this issue. This Court should exercise its

supervisory powers and remand this issue to the court of

appeals for decision.

—@ -

CONCLUSION

For the reasons stated, the Writ of Certiorari should

issue to review the judgment of the United States Court

of Appeals for the First Circuit.

Respectfully submitted,

Steven E. Snow*

Partripce, Snow & Hatin

One Old Stone Square

Providence, Rhode Island 02903

(401) 861-8200

Counsel for Petitioner

*Counsel of Record

APPENDICES

App. 1

APPENDIX A

Sharon L. RUSSELL,

Plaintiff, Appellee,

Vv.

SALVE REGINA COLLEGE, et als.,

Defendants, Appellants.

Sharon L. RUSSELL,

Plaintiff, Appellant,

v.

SALVE REGINA COLLEGE, et als.,

Defendants, Appellees.

Nos. 89-1564, 89-1597.

United States Court of Appeals,

First Circuit.

Heard Oct. 3, 1989.

Decided Nov. 20, 1989.

Steven E. Snow, with whom Partridge, Snow & Hahn,

Providence, R.I., was on brief for Salve Regina College, et

als.

Edward T. Hogan, with whom Hogan & Hogan, East

Providence, R.I., was on brief for Sharon L. Russell.

Before BOWNES and TORRUELLA, Circuit Judges,

and TIMBERS,” Senior Circuit Judge.

TIMBERS, Circuit Judge:

“Of the Second Circuit, sitting by designation.

App. 2

This consolidated appeal arises from the stormy rela-

tionship between Sharon L. Russell (“Russell”) and Salve

Regina College of Newport, Rhode Island (“Salve Re-

gina” or “the College”), which Russell attended from

1982 to 1985. The United States District Court for the

District of Rhode Island, Ronald R. Lagueux, District

Judge, entered a directed verdict for Salve Regina on

Russell’s claims of invasion of privacy and intentional

infliction of emotional distress at the close of plaintiff's

case-in-chief, but allowed Russell’s breach of contract

claim to go to the jury.' The jury found that Salve Regina

had breached its contract with Russell by expelling her.

The court entered judgment on the verdict, denying Salve

Regina’s motions for judgment n.o.v. and for a new trial.

The court also denied Salve Regina’s motion for remit-

titur of the damages of $30,513.40 plus interest, a total of

$43,903.45, that the jury awarded Russell.

On appeal Russell contends that, because a reason

able jury could have found invasion of privacy and inten-

tional infliction of emotion distress under Rhode Island

law, the district court erred in entering a directed verdict

1 This action originally was assigned to then- District

Judge Bruce M. Selya. Judge Selya granted summary judgment

in favor of the individual defendants on all counts and in tavor

of Salve Regina on five counts of Russell's complaint: due

process, handicapped discrimination, negligent infliction of

emotional distress, wrongful discharge and breach of convent

of good faith. Russell does not raise the granting of summary

judgment as to any of these counts on appeal. Judge Selya

denied summary judgment on the three claims that are the

subject of this appeal. Russell v. Salve Regina College, 649

F.Supp. 391 (D.R.1.1986).

App. 3

on those claims. Salve Regina contends that the judgment

that it breached its contract with Russell should be re-

versed because: (1) the court erred as a matter of law in

its analysis of the contract between a student and the

college she attended; and (2) even accepting the court's

formulation, there was insufficient evidence to support

the jury verdict. It also argues that the calculation of

damages was incorrect as a matter of law.

For the reasons set forth below, we affirm the judg-

ment of the district court in all respects.

We summarize only facts believed necessary to an

understanding of the issues raised on appeal.

By all accounts, Sharon Russell was an extremely

overweight young woman. In her application for admis-

sion to Salve Regina, Russell stated her weight as 280

pounds. The College apparently did not consider her

condition a problem at that time, as it accepted her under

an early admissions plan. From the start, Russell made it

clear that her goal was admission to the College’s Nurs-

ing Department.

Russell completed her freshman year without signifi-

cant incident and was accepted in the College’s Nursing

Department starting in her sophomore year, 1983-1984.

Her trauma started then.? The year began on a sour note

2 The facts recited here, which relate primarily to the

distress and privacy claims that were the subject of the

(Continued on following page)

App. 4

when a school administrator told Russell in public that

they would have trouble finding a nurse’s uniform to fit

her. Later, during a class on how to make beds occupied

by patients, the instructor had Russell serve as the pa-

tient, reasoning aloud that if the students could make a

bed occupied by Russell, who weighed over 300 pounds,

they would have no problem with real patients. The same

instructor used Russell in similar fashion for demonstra-

tions on injections and the taking of blood pressure.

The start of Russell’s junior year, 1984-85, coincides

with the time school officials began to pressure her di-

rectly to lose weight. In the first semester, they tried to

get Russell to sign a “contract” stating that she would

attend Weight Watchers and to prove it by submitting an

attendance record. Russell offered to try to attend weekly,

but refused to sign a written promise. Apparently, she did

go to Weight Watchers regularly, but did not lose signifi-

cant weight. One of Russell's clinical instructors gave her

a failing grade in the first semester for reasons which, the

jury found, were related to her weight rather than her

performance.*

According to the rules of the Nursing Department,

failure in a clinical course generally entailed expulsion

from the program. But school officials offered Russell a

(Continued from previous page)

directed verdict, must be viewed in the iight most favorable to

Russell. Bennett v. Public Service Co., 542 F.2d 92 (Ist Cir 1976).

3 Significantly, Russell’s other clinical instructor that se-

mester considered her performance outstanding. In addition,

Russell’s academic record indicates at least satisfactory perfor-

mance in all courses except the clinical one that she failed.

App. 5

deal, whereby she would sign a “contract” similar to the

one she rejected earlier, with the additional provision that

she needed to lose at least two pounds per week to

remain in good standing. The “contract” provided that

the penalty for failure would be immediate withdrawal!

from the program. Confronting the choice of signing the

agreement or being expelled, Russell signed.

Russell apparently lived up to the terms of the “con-

tract” during the second semester by attending Weight

Watchers weekly and submitting proof of attendance, but

she failed to lose two pounds per week steadily. She was

nevertheless allowed to complete her junior year. During

the following summer, however, Russell did not maintain

. tisfactory contact with College officials regarding her

efforts, nor did she lose any additional weight. She was

asked to withdrawal from the nursing program volun-

tarily and she did so. She transferred to a program at

another school.* Since that program had a two year resi-

dency requirement, Russell had to repeat her junior year,

causing her nursing education to run five years rather

than the usual four. Russell completed her education

successfully in 1987 and is now a registered nurse.

Soon after her departure from Salve Regina, she com-

menced the instant action which led to this appeal.

* Although the record is unclear, it appears that the Col-

lege told Russell that she would not be eligible to register for

her senior year, but could apply for a change of status if she

met the College’s conditions. Russell instead chose to transfer.

At any rate Salve Regina does not dispute that Russell's depar-

ture was not truly “voluntary”.

App. 6

Subject matter jurisdiction over this case is based on

diversity of citizenship. 28 U.S.C. § 1332 (1988). This

Court has appellate jurisdiction pursuant to 28 USC.

§ 1291 (1988). The parties do not dispute that the law of

Rhode Island applies to all substantive aspect of the case.

We discuss first in section II of this opinion that two

claims with respect to which the district court directed a

verdict in favor of the College. Then in section III we

discuss the contract claim which was submitted to the

jury.

(A) Intentional Infliction of Emotional Distress

Rhode Island recognizes this tort theory. It has

adopted as its standard § 46 of the Restatement (Second)

of Torts (1965). Champlin v. Washington Trust Co., 478 A.2d

985 (R.1.1984). Section 46 states that:

“lo]ne who by extreme at d outrageous conduct

intentionally or recklessly causes severe emo-

tional distress to another is subject to liability

for such emotional distress, and if bodily harm

to the other results from it, for such bodily

harm.”

Restatement (Second) of Torts § 46.° Rhode Island has

added the requirement of at least some physical mani-

festation. Curtis v. State Dep't for Children, 522 A.2d 203

(R.1.1987). Russell has alleged nausea, vomiting,

5 Russell does not allege that the administration of Salve

Regina intended to harm her, but rather that they hounded her

without regard to the consequences.

App. 7

headaches, etc., resulting from the College's conduct.

This appears to create a triable issue on the causation and

harm elements of the theory. The issue on appeal, there-

fore, is whether the conduct alleged is sufficiently ex-

treme and outrageous.

In its arguments that the conduct of its employees

does not rise to the necessary threshold, the College in

essence concedes a pattern of harassment, but argues that

the conduct was merely discourteous and necessary to

carry out its academic mission. We have no doubt that

the conduct was insensitive, but to be tortious it must be

“atrocious, and utterly intolerable in a civilized commu.

nity.” Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1021 (ist

Cir.) (construing Rhode Island law and quoting Restate-

ment, supra, § 46, comment d), cert. denied, 109 S.Ct. 65

(1988). Without regard to context, the College is correct; a

series of insults, even if ongoing and systematic, is insuf-

ficient. But the context — the relationship of the plaintiff

to the defendant and the knowledge of plaintiff's special

sensitivities — is a necessary element of the tort. Prosser

* Regarding the latter point, the College correctly states

that both the Restatement and Rhode Island law may excuse

otherwise tortious conduct if taken to protect legitimate iter.

ests. Champlin supra, 478 A.2d at 988; Restatement, supra, § 46,

comment g. The example provided is that of a heartless land-

lord exercising his privilege to evict a destitute family for

nonpayment of rent. /d., comment g, illustration 14. It is un-

able, however, to specify the interest served beyond “educa-

tional standards”. We are unable to see what interest would be

served by the petty, mean-spirited and concerted conduct m

question. If anything, the interest of a college faculty and

administrators should be the creation of an atmosphere of

courtesy and tolerance.

App. 8

and Keeton, The Law of Torts, § 12, at 64 (Sth ed. 1984).

The school officials knew very quickly that Russell want-

ed badly to become a nurse and that she was easily

traumatized by comments about her weight; yet they

harassed her continuously for almost two years.” In this

context, comments by school officials about weight were

doubly hurtful.

Even considering the context and acknowledging this

to be a close question, however, we affirm the district

court’s directed verdict dismissing the claim. “Extreme

and outrageous” is an amorphous standard, which is

necessity varies from case to case. The College’s conduct

may have been unprofessional, but we cannot say that it

was so far removed from the bounds of civilization as not

to comply with the test set forth in § 46. Russell's com-

mendable resiliency lends support to our conclusion.

(B) Invasion of Privacy

In Rhode Island, this tort is purely statutory; so we

refer primarily to the statute itself, especially in light of

7 Salve Regina claims that an illustration set forth in the

Restatement closely parallels this case:

“A is an otherwise normal girl who is a little over-

weight, and is quite sensitive about it. Knowing this,

B tells A that she looks like a hippopotamus. This

causes A to become embarrassed and angry. She

broods over the incident, and is made ill. B is not

liable to A.”

Restatement, supra, § 46, comment f, illustration 13.

In view of the ing nature of the conduct in the instant

case, as well as ae ene Salve Regina held over Russell's

professional future, the comparison to an isolated remark, even

one made with knowledge of special sensitivity, is disin-

genuous.

App. 9

the lack of case iaw interpreting the text. The relevant

provision, R.I.Gen.Laws § 9-1-28.1(a)(1) (1985 Reenact-

ment), covers only “physical solitude or seclusion” (em-

phasis added).* The conduct at issue here does not fit

easily within the scope of that language, since all of it

occurred in public. The only area “invaded” was Russell's

psyche. We cannot lightly predict that the Rhode Island

Supreme Court would interpret the statute contrary to its

literal language, in view of the statement of that Court

that it will give statutory language its plain meaning

absent compelling reasons to the contrary. Fruit Growers

Express Co. v. Norberg, 471 A.2d 628 (R.1.1984). We there-

fore affirm the district court’s directed verdict on the

invasion of the privacy count.

III.

Russell’s breach of contract claim is the only one the

district court submitted to the jury. The College does not

dispute that a student-college relationship is essentially a

contractual one. E.g., Lyons v. Salve Regina College, 565

F.2d 200 (1st Cir.1977), cert. denied, 435 U.S. 971 (1978).

Rather, it challenges the court's jury charge regarding the

terms of the contract and the duties of the parties.

From the various catalogs, manuals, handbooks, etc.,

that form the contract between student and institution,

* A separate section of Rhode Island’s Privacy Law pro-

vides the “right to be secure from unreasonable publicity given

to one’s private life.” R.1.Gen.Laws. § 9-1-28.1(a)(3) (1985 Reen-

actment). Recovery is available, however, only if a private fact

is disclosed. The only material fact here, Russell’s obesity, of

course was quite public.

App. 10

the district court, in its jury charge, boiled the agreement

between the pariies down to one in which Russell on the

one hand was required to abide by disciplinary rules, pay

tuition and maintain good academic standing,’ and the

College on the other hand was required to provide her

with an education until graduation. The court informed

the jury that the agreement was modified by the “con-

tract” the parties signed during Russell's junior year. The

jury was told that, if Russell “substantially performed”

her side of the bargain, the College’s actions constituted a

breach.

The College challenges the court’s characterization of

the contract. It claims the court ignored relevant provi-

sions of publications from the Nursing Department; for

example, those relating to the need for nurses to be

models of health for their patients. These provisions, it

argues, demonstrate that Russell was aware that success

as a nursing student demanded more than competent

performance. We hold, however, that the provisions on

health speak to the duty of students to inform the Depart-

ment of hidden health problems that might affect the

students or their patients, and they are not a license for

administrators to decide late in the game that an obese

student is not a positive model of health.'°

® There is no dispute that Russell met these criteria, with

the exception of the clinical course she failed because of her

weight.

10 Judge Selya stated that “[clontagion was not legit-

imately at issue — after all, there is not allegation of communi-

cable corpulence here - nor have the defendants essayed any

~ showing that clinical work would have jeopardized Russell's

own wellbeing.” Russell, supra, 649 F.Supp. at 405.

App. 11

Salve Regina also challenges the application of strict

commercial contract principles, e.g., that, if Russell sub-

stantially performed, the College had an absolute duty to

educate her."! It cites several cases which hold that col-

leges, in order properly to carry out their functions, must

be given more contractual leeway than commercial par-

ties. E.g., Lyons, supra, 565 F.2d at 202 (dean may reject

faculty recommendation to reinstate student); Slaughter v.

Brigham Young Univ., 514 F.2d 622 (10th Cir.), cert. denied,

423 U.S. 898 (1975); Clayton v. Trustees of Princeton Univ.,

608 FSupp. 413 (D.N.J.1985) (university must have flex-

ibility to discipline cheating students). There can be no

doubt that courts should be slow to intrude into the

sensitive area of the student-college relationship, espe-

cially in matter of curriculum and discipline. Slaughter,

supra, 514 F.2d at 627 (“substantial performance” stan-

dard is intolerable when it allows student to get away

with “a little dishonesty”).

The instant case, however, differs in a very signifi-

cant respect. The College, the jury found, forced Russell

into voluntary withdrawal because she was obese, and

for no other reason. Even worse, it did so after admitting

her to the College and later the Nursing Department with

full knowledge of her weight condition. Under the cir-

cumstances, the “unique” position of the College as edu-

cator becomes less compelling. As a result, the reasons

against applying the substantial performance standard to

"! The College also argues that the jury finding of substan-

tial performance is not supported by the record. We hold that

the record demonstrates that the finding is not clearly erro-

neous.

App. 12

this aspect of the student-college relationship also be-

come less compelling. Thus, Salve Regina’s contention

that a court cannot use the substantial performance stan-

dard to compel an institution to graduate a student mere-

ly because the student has completed 124 out of 128

credits, while correct, is inapposite. The court may step in

where, as here, full performance by the student has been

hindered by some form of impermissible action. Slaughter,

supra, 514 F.2d at 626.

In this case of first impression, the district court held

that the Rhode Island Supreme Court would apply the

substantial performance standard to the contract in ques-

tion. In view of the customary appellate deference ac-

corded to interpretations of state law made by federal

judges of that state, Dennis v. Rhode Island Hospital Trust

Nat'l Bank, 744 F.2d 893, 896 (ist Cir.1984); O’Rourke v.

Eastern Air Lines Inc., 730 F.2d 842, 847 (2d Cir.1984), we

hold that the district court’s determination that the Rhode

Island Supreme Court would apply standard contract

principles is not reversible error.

IV.

Salve Regina argues that the $25,000 damages

awarded to Russell (the equivalent of a year’s salary)

constitutes legal error.'? It contends that she is entitled to

$2,000, representing her net savings after one year of

employment. We disagree.

12 The remaining damages, $5,513.40, constitute the costs

incurred for Russell’s additional year in college.

App. 13

Since there appears to be no case law on this precise

point,'® we turn to familiar principles of contract law. The

purpose of a contract remedy is to place the injured party

in as good a position as it would have been in had the

breach not occurred. Rhode Island Turnpike and Bridge

Auth. v. Bethlehem Steel Corp., 119 R.I. 141, 379 A.2d 344,

357 (1977). Since each case turns on the specific facts at

hand, we consider it appropriate to accord the district

court reasonable leeway. 5 Corbin on Contracts § 992

(1964 ed.).

Here, the district court’s jury charge stated specifi-

cally that the proper remedy for the breach in question

would be a year’s salary. We cannot say that this was

incorrect as a matter of law. The contract between Salve

Regina and Russell was not motivated by ecomonic con-

cerns, at least on Russell’s part; yet its breach clearly

damaged Russell. She lost a year of her protessional life.

Under the circumstances, the salary Russell would have

earned in that lost year strikes us as hardly a windfall.

Moreover, the most closely analogous cases, involving

damages for wrongful employment termination, hold that

a plaintiff is entitled to the full salary, less any amount he

was under a duty to mitigate. 5 Corbin, supra, § 1095

(collecting cases). We therefore affirm the damage award.

'3 The College’s reliance on Slaughter, supra, is unavailing.

The Slaughter court merely held that, because the substantial

performance standard was inapplicable on the facts, it was

improper to award the plaintiff the amount he would have

earned had he received his doctorate earlier. 514 F.2d at 626.

We are faced with the reverse situation: substantial perfor-

mance in fact and proper application of the standard.

App. 14

To summarize:

We hold that the district court properly granted a

directed verdict in favor of Salve Regina on the intention-

al infliction of emotional distress and invasion of privacy

counts. We affirm the judgment in favor of Russell on the

breach of contract count. We also affirm the damage

award on the contract count.

AFFIRMED.

App. 15

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

C.A. No. 85-0628 L

SHARON L. RUSSELL

Vv. .

SALVE REGINA COLLEGE ET AL

Before the Honorable Ronald R. Lagueux

District Judge

THE COURT: I understand the defendant's argument

that the doctrine of substantial performance should not

apply generally in the academic context, and generally

when the issue is whether someone has complied with

the code of conduct within a college or whether that

person has passed or flunked a course, the doctrine of

substantial performance should not apply. However, in

this case, | have to determine whether the Supreme Court

of Rhode Island if faced with this case would decide

whether the doctrine of substantial performance would

apply. | recognize that the Rhode Island cases on this

subject are largely cases involving construction contracts.

The very first case that I recall is Pelletier v. Massey,

which is in 49 R.I. 408. That was decided in 1928, and in

that case, the Supreme Court of Rhode Island pointed out

that in the context of a construction contract, that a con-

tractor would be entitled to an installment payment if it

had substantially performed the contract, and the Court

in that case, especially pointed out that the trial judge

had properly charged the jury in accordance with the

doctrine of substantial performance, which was an ac-

cepted rule. The Court also stated that whether there was

App. 16

substantial performance or not was a question of fact to

be decided by the jury. There is a more recent case, |

believe it’s the Ferris case, which also comes up in a

construction contract milieu.

Now, I have an advantage that the Court of Appeals

doesn’t have, and that is I was a state trial judge for 18

and 1/2 years, and I have a feel for what the Rhode

Island Supreme Court will do or won't do. As a matter of

fact, | charged at least two juries on the issue of substan-

tial performance in other than construction contract situa-

tions, and I am satisfied in my own mind that if the

Supreme Court of Rhode Island had this particular case

to decide, the Supreme Court of Rhode Island would say

that the doctrine of substantial performance should ap-

ply, and the jury should make a determination of whether

there was substantial performance by the plaintiff in this

case. Therefore, the jury must make a determination of

whether the dismissal of the plaintiff from the nursing

program at the time in question, August 21, 1985, was

wrongful or not. In other words, whether it was a breach

of the college’s obligation, because if the plaintiff sub-

stantially performed her agreement, all her agreements

with the college, then it was a wrongful act on the part of

the college to dismiss her from the nursing program,

what she had bargained for.

So, since I make this determination as a matte of law

that I think the Supreme Court of Rhode Island would

apply the doctrine of substantial performance to these

facts, I therefore will submit the issue of substantial per-

formance to the jury.

App. 17

The defendant also claims that the plaintiff hasn't

proved damages. There is ample evidence in the record

from which the jury could determine damages. The meas-

ure of damages in this case is a year in the life. That's

what the plaintiff was deprived of, a year of her profes-

sional life, and therefore, she lost the income she would

have made during that year, and she incurred additional

expenses for another year of college, because she had to

repeat her junior year. 50 | will charge the jury along that

line. And the evidence is quite clear she lost roughly

$25,000 in income, because she had to repeat her junior

year at St. Joseph’s, and she lost whatever it was, $3,000

that she had to pay, extra tuition that she had to pay, and

other fees, to get that extra year. In other words, if she

had gotten the benefit of her bargain, if the jury finds that

the college was in breach of contract, the jury will find

that the benefit of her bargain was that she would have

had a degree in one more year from Salve Regina in

nursing, and wouldn't have had to pay for an extra year

of schooling, and would have had one year of income. So

there is ample evidence from which the jury can deter-

mine damages in this case under the benefit of the bar-

gain rule.

For all those reasons, defendant's motion for directed

verdict is denied.

App. 18

APPENDIX C

Sharon L. RUSSELL, Plaintiff,

Vv.

SALVE REGINA COLLEGE; Catherine E.

Graziano, individually and in her capacity as a

faculty member and as Dean of the Salve Regina

College nursing department; Joan Chapdelaine,

individually and in her capacity as a faculty

member and clinical agency coordinator for the

nursing department at Salve Regina College;

Mary Lavin, individually and in her capacity as

a faculty member at Salve Regina College;

Maureen Hynes, individually and in her capaci-

ty as a faculty member at Salve Regina College;

Barbara Dean, individually and in her capacity

as a faculty member at Salve Regina College;

Joann Mullaney, individually and in her capaci-

ty as a faculty member at Salve Regina College;

and Sheila Megley, individually and in her ca-

ity as a faculty member at Salve Regina Col-

- , Defendants.

Civ. A. No. 85-0628-S.

United States District Court,

D. Rhode Island.

Nov. 17, 1986.

OPINION AND ORDER

SELYA, District Judge.

This case, brought under diversity jurisdiction, 25

U.S.C. § 1332(a),' raises a host of intriguing federal and

' Although the plaintiff has premised jurisdiction alter

natively on 28 U.S.C. § 1331, her “federal question” claims

necessarily march across unsteady ground. See Part IIl, post

(Continued on following page)

App. 19

state law questions in an exotic factual context. Briefly

put, the plaintiff, Sharon Russell, a citizen and resident of

East Hartford, Connecticut, was expelled from Salve Re-

gina College (“Salve” or “College”) because of her un-

willingness and/or inability to control an extreme chronic

weight problem. She now sues for damages. The defen-

dants include the College and some seven Salve officials.

The identity of each individual defendant and the rela-

tionship of each to the College is recounted with fidelity

in the case caption, see ante, and it would be pleonastic to

restate that data anew. The case turns on the scope of the

College's unilateral authority to dismiss a student and on

the manner in which the expulsion was effected in this

instance.

The plaintiff's amended complaint contains some

eight distinct statements of claim. The defendants have

moved for summary judgment, Fed.R.Civ.P. 56(c), as to

each and all of Russell's initiatives. The matter has been

plethorically briefed and vigorously argued. The applica-

ble legal standard is by now firmly embedded in feder |

jurisprudence; in the interests of expedition, the court

merely reiterates what it said at an earlier date in Gon-

salves v. Alpine Country Club,-563 F.Supp. 1283, 1285

(D.R.1.1983), aff'd, 727 F.2d 27 (ist Cir. 1984):

It is well settled that summary judgment can be

granted only where there is no genuine issue as

to any material fact and where the movant is

(Continued from previous page)

But, inasmuch as Russell, on the one hand, and all of the

defendants, on the second hand, are citizens of different states.

and more than the requisite minimum amount is arguably in

controversy, there is no authentic need to consider the plau-

sibility of federal question jurisdiction.

App. 20

entitled to jud as a matter of law. E v.

Merrimack Vi Wood Products, Inc., 701 F.2d

985, 986 (ist Cir.1983); Hahn v. t, 523 F.2d

461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904,

96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); United Nu-

clear Corp. v. Cannon, 553 F. . 1220, 1226

(D.R.1.1982); Milene Music, Inc. v. Gotauco, 551

F.Supp. 1288, 1292 (D.R.1.1982). In determining

whether these conditions have been met, the

Court must view the record in the light most

favorable to the pa Soe Em-

~ Be Merrimack Valey Wo Inc., 701

at 986; John Sa & Co. (WOOL) Pty.

Ltd. v. Ludlow Jute Co., 569 F.2d 696, 698 (ist

Cir.1978), indu all inferences favorable to

that pa Santoni v. Federal oo Insurance

a or F.2d 174, 177 (ist Cir.1982); O'Neill v.

Publ

ishing Co., 630 F.2d 685, 686 (Ist Cir

1980).

With this preface, the court proceeds to narrate the

undisputed facts,? to frame the issues more precisely, and

to set forth its findings and conclusions.

1. BACKGROUND

Salve is a religiously affiliated college located in

Newport, Rhode Island, administered by the Sisters of

2 The facts utilized by the court are drawn from the affi-

davits and documentary proffers of record, and from the par-

ties’ statements of material facts not in dispute. See D.R.1LLR.

12.1, the text of which has been quoted in pertinent part in

Mcinnis v. Harley-Davidson Motor Co., Inc., 625 F.Supp. 945,

946-47 n. 2 (D.R.1.1986). As is required at this stage of the

proceedings, the court has refrained from making credibility

judgments, but has the record at face value, indulging

all contradictions and inferences in the perspective most flat-

tering to the plaintiff.

.

.

App. 21

Mercy of the Roman Catholic Church. Russell was admit-

ted to the College by early decision in the winter of

1981-82. She began her studies in September 1982.

Russell's interest in a nursing career antedated her ma-

triculation: she had applied only to colleges with nursing

programs and had expressed her intention to pursue such

a course of study both in her original application to Salve

and in her admissions interview. She commenced her

academic endeavors at the College with the avowed in-

tention of gaining admittance to Salve’s program of nurs-

ing education.?

During her inaugural year at the College, there is

rather fragile evidence that Russell sought some treat-

ment for obesity. At various times during that school

year, her 5°6” frame recorded weights between 306 and

315 pounds according to data on file at the College's

health services unit. It is plain that, although she

achieved no meaningful weight loss during her freshman

year, Russell was considerably more successful as a stu-

dent. Her work in liberal arts courses was adequate and

her grades were respectable. Consequently, Russell was

admitted to the nursing program, effective at the start of

her sophomore year. She was given a copy of the “Nurs-

ing Handbook” (Handbook) issued by the College, and

clearly understood that the Handbook set out the require-

ments for successful completion of the degree in nursing.

* Though the record is less than explicit, it appears that

Salve requires students to undergo a minimum of one year in a

liberal arts curriculum before undertaking a nursing concentra.

tion.

App. 22

The fabric of Russell's aspirations began to unravel in

the fall of 1983, when she entered her sophomore year

(her first as a nursing student per se). The parties have

presented an intricate (and sometimes conflicting) history

of the interaction between the plaintiff and her sundry

academic supervisors. It would serve no useful purpose

at this juncture fully to recapitulate those events, or to

attempt to reconcile every conflict. After all, the mecha-

nism of Rule 56 does not require that there be no unre-

solved questions of fact; it is sufficient if there are no

genuine issues remaining as to any material facts.

It suffices for the moment to say that there were

myriad problems along the way: the agonizing search for

uniforms and scrub gowns that would fit a woman of

Russell's girth, a tendency on the part of faculty members

to employ Russell in order to model hospital procedures

incident to the care of obese patients; prolonged lectures

and discussions about the desirability of weight loss, and

so on and so forth. Indeed, the record reveals a veritable

smorgasbord of verbal exchanges characterized by one

side as “torment” or “humiliation” and by the other as

“expressions of concern” or “forthright statements of

school policy.” (It takes little imagination to decipher

which litigants are wont to apply which epithets to which

actions.)

The court recognizes, of course, that sadism and be-

nevolence - like beauty - often reside principally in the

eye of the beholder. And, the court has neither the need

nor the means to attempt to discern the subjective mo-

tives of myriad actors on the cold, fleshless record of a

Rule 56 motion. For the purposes at hand, it is enough to

acknowledge that an array of such incidents occurred and

App. 23

that, by the end of her sophomore year, Russell’s size had

become a matter of concern for all of the parties.

In her junior year, the plaintiff executed a contract

(Contract) purporting to make her further participation in

the College’s nursing curriculum contingent upon an av-

erage weight loss of two pounds per week. The Contract

was a singular sort of agreement. (It is reproduced in full

as an appendix to this opinion.) Notwithstanding the

signing of the Contract, Russell proved unable to meet

the commitment, or even closely to approach it. Her body

weight never fell appreciably below 300 pounds. Though

the circumstances are complex, she seems to have made -

and invariably to have broken - a series of promises in

this regard. Predictably, an escalating level of tension

began to characterize dealings between Russell and cer-

tain of the individual defendants.

The climax occurred on or about August 23, 1985

The plaintiff received a letter from the coordinator*of the

nursing program, defendant Chapdelaine, advising that

she had been dismissed from the nursing department and

from the college. Russell’s education was concededly in-

terrupted at that point (though, after a year’s hiatus, she

resumed her studies in nursing at another institution).

Il. STATEMENT OF THE CASE

Russell’s complaint, as noted above, contains an octet

of claims. Two of these supposed causes of action -

Counts VI and VII - allege “federal” claims. Count V!

charges the defendants with a denial of due process and

an unconstitutional interference with the plaintiff's pro-

tectible liberty and property interests. Count VII alleges

App. 24

handicapped discrimination in derogation of 29 U.S.C.

§ 794.

The remaining six counts implicate state law, and the

parties (who agree on little else) concur that Rhode tole nd

law governs in this diversity case. The state law cists

possess a variety of characteristics. Two of these initia-

tives are contract-based: Count | alleges nonperformance

of an agreement to educate and Count II asserts breach of

an implied covenant of good faith and fair dealing. Three

of the remaining state law initiatives are tort-based:

Counts III and VIII posit intentional and negligent inflic-

tion of emotional distress, respectively; and Count IV

remonstrates against a perceived invasion of Russell's

privacy. Count V - which seeks redress for wrongful

dismissal - is a contract/tort hybrid.

It is alleged throughout that the plaintiff lost . year

of prospective employment in a job which she clots to

have been offered contingent upon successful completion

of her nursing degree. Russell seeks compensatory oom

ages for this delay and for the physical and emotional

trauma which she purportedly suffered as a result of

what she views as the callous, humiliating, and wrongful

conduct of the several defendants. The plaintiff also

prays for exemplary damages, counsel fees, and costs.‘

4 The complaint, though amended as recently as June 1986,

continues to pray for unspecified injunctive relief. This prayer

seems largely academic at the moment. The plaintiff has pur-

sued her studies elsewhere, see ante, and has manifested no

enduring desire to obtain reinstatement in Salve’s nursing

program.

App. 25

The court will first address the impact of the pending

Rule 56 motion on the federal law claims, and will there-

after turn to a consideration of the other (state law)

counts.

Ill. FEDERAL CLAIMS

Both of the claims which arise under federal law

founder on essentially the same reefs and shoals: the

College is not a “state actor,” and its nursing curriculum

is not a federally funded “program or activity” within the

meaning of the Rehabitation Act of 1973, 29 U.S.C. § 794.

The court need not tarry overlong in putting these claims

to rest.

A. Due Process

With respect to what the plaintiff envisions as an

utter disregard for the niceties (or even the basics) of due

process, the court has no need to reach the hotly-debated

questions of whether Russell enjoyed any constitutionally

protected interest, created by the terms of the Handbook

or distilled from any other source. The fifth and four-

teenth amendments to the Constitution apply only to the

federal government and to the state, respectively — and

derivatively, to those whose actions can fairly be attrib-

uted to federal or state government. Lugar v. Edmondson

Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d

482 (1982); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149,

156-57, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Even

where an institution admittedly discriminates in its mem-

bership policies, there is no deprivation of due process

unless the action in question sufficiently implicates the

App. 26

state so as to make the conduct “state action.” Moose

Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965,

1971, 32 L.Ed.2d 627 (1972).

To be sure, if the government plays the role of en-

forcer for privately originated discrimination, then the

government may be forbidden to exercise its police pow-

er in furtherance of the discriminatory activity. Shelley v.

Kraemer, 334 U.S. 1, 18-23, 68 S.Ct. 836, 844-47, 92 L.Ed.

1161 (1948). Or when the web of interconnection between

the government and private bigotry is spun tightly

enough to conclude that the government agency has “in-

sinuated itself into a position of interdependence” with a

discriminatory actor, then the challenged conduct must

be subjected to fifth or fourteenth amendment scrutiny.

Burton v. Wilmington Parking Authority, 365 U.S. 715, 725,

81 S.Ct. 856, 861, 6 L.Ed.2d 45 (1961). Those maxims do

not, however assist this plaintiff. The requirement of!

“state action” demands more than some (modest) inter-

play between the public and private sectors. Justice Rehn-

quist’s caveat in Moose Lodge, supra, is particularly

relevant here:

The Court has never held, of course, that

discrimination by an otherwise private entity

would be violative of the Equal Protection

Clause if the private entity receives any sort of

benefit or service at all from the State, or if it is

subject to state regulation in any degree what-

ever. Since state-furnished services include such

necessities of life as electricity, water, and police

and fire protection, such a holding would ut-

terly emasculate the distinction between private

as distinguished from state conduct set forth in

The Civil Rights Cases, supra, and adhered to in

subsequent decisions. Our holdings indicate

App. 27

that where the impetus for the discrimination is

private, the State must have “significantly in-

volved itself with invidious discriminations.”

Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct.

1627, 1633, 18 L.Ed.2d 830 (1967), in order for

the discriminatory action to fall within the am-

bit of the constitutional prohibition.

407 U.S. at 173, 92 S.Ct. at 1971.

The First Circuit has given further content to this

standard in its decision in McGillicuddy v. Clements, 746

F.2d 76 (Ist Cir.1984). There, the court of appeals held

that an accounting firm working under a contract with

the state was not sufficiently connected with the govern-

ment to place its conduct within the “state action” rubric.

Id. at 77. McGillicuddy makes it plain that even a close

relationship with government does not suffice, absent

some meaningful entanglement, to invoke the rigors of

due process.

Under Moose Lodge and its progeny, no “state action”

can be discerned here. The fact that Salve was the recip-

ient of a (rather meagre) library grant is manifestly insuf-

ficient to carry the weight of the assertion. The fact that

the College's nursing program is, in certain respects,

subject to state agency approval is likewise inadequate. In

Moose Lodge, the discriminatory actor was licensed by the

state, but that was not enough to impress the imprimatur

of the state on the private actor’s bigotry. Id. 407 US. at

177, 92 S.Ct. at 1973. The “mere fact that a business is

subject to state regulations does not by itself convert its

action into that of the state for purposes of the fourteenth

amendment.” Blum v. Yaretsky, 457 US. 991, 1004, 102

S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982). See also Rendell-

Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 2771, 73

App. 28

L.Ed.2d 418 (1982); Jarrell v. Chemical Dependency Unit of

Acadiana, 791 F.2d 373, 374 (Sth Cir.1983). These scraps of

evidence, combined, do not turn the state action corner;

and the record contains aught else. Though what little has

been adduced must be construed in the light most favor-

able to the plaintiff, it utterly fails to demonstrate the

slightest glimmer of the requisite governmental involve-

ment. Accordingly, Count VI cannot stand.

B. Handicapped Discrimination

In respect to the plaintiff's statement of claim under

the Rehabilitation Act, 29 U.S.C. § 794, the teachings of

the Supreme Court in Grove City College v. Bell, 465 US.

555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), are controlling.

In Grove City, the Court held that a college which received

federal funding only indirectly (that is, through tuition

subsidies to students) was not subject in all its depart-

ments to the provisions of federal antidiscrimination law.

Id. at 572, 104 S.Ct. at 1220. A private institution of higher

education which, like Salve, receives federal monies ex-

clusively through its students, is subject to federal anti-

discrimination laws only with respect to its financial aid

program. Id. at 574, 104 S.Ct. at 1222. And, it is well to

note that, in this case, Russell does not charge that Salve

discriminated against her in respect to scholarship assis-

tance or other financial aid.

The plaintiff, although mouthing the empty conclu-

sion that the College’s nursing curriculum is a “program

or activity receiving Federal financial assistance” as re-

quired by 29 U.S.C. § 794, has failed to call the court's

attention to any evidentiary fact which is capable of

App. 29

bearing the weight of that averment.> The law is transpar-

ently clear: the Supreme Court has decided the point in

Grove City and has since cited that opinion with approval

in the context of the very statute at issue here. See Consolli-

dated Rail Corp v. Darrone, 465 U.S. 624, 636, 104 S.Ct.

1248, 1255, 79 L.Ed.2d 568 (1984). See also Bento v. I.T.O.

Corp. of Rhode Island, 599 F Supp. 731, 741-42 (D.R.1.1984).

Absent proof that federal funding or financial assistance

of any kind was involved in the College’s nursing pro-

gram, Russell can mount no cause of action against these

defendants under 29 U.S.C. § 794. That being so, the

difficult issue of whether Russell’s obesity can be consid-

ered to be an “impairment” (handicapping condition)

within the meaning of 29 U.S.C. § 706(7)(B) need not be

reached - and the court expresses no opinion thereon *

> The trivial amounts of money that Salve received to

administer so-called Pell Grants and a cryptic reference in a

musty document to a “Veterans Administration reporting fee”

are at best de minimis. In no way can either of these items -

which aggregated well under $3000 - be construed to “fund”

the College’s nursing program.

* In passing, it can be noted that a recent case from the

Fourth Circuit provides an interesting perspective on the mer-

its of Russell's discrimination claim. In Forrisi v. Bowen, 794

F.2d 931 (4th Cir.1986), an ic plaintiff's handicap

claim under the Rehabilitation Act of 1973 was rejected where

the plaintiff testified at deposition that his fear of heights had

never limited his major life activities. Jd. at 934. Sharon Russel!

has testified that she does not consider herself handicapped.

indeed her claim that she is well equipped to function as a

nurse is central to her count in contract. See Part IV, post. The

absence of the requisite federal nexus in this case obviates the

need to balance Russell's denial of her handicapped status

against the College’s insistence that she cannot perform

(Continued on following page)

App. 30

The lack of any showing of the requisite federal subsidiz-

ation necessitates the grant of brevis disposition in the

defendants’ favor on Count VII of the complaint.

IV. STATE LAW CLAIMS

Conceptually, the plaintiff's claims for wrongful dis-

charge (Count V) and for the transgression of a theoreti-

cal (implied) covenant of good faith and fair dealing

(Count Il) are linked by common ties in the relevant

caselaw. So, the court proposes to deal with these initia-

tives ensemble. The same sort of approach will be taken

with respect to the claims for infliction of emotional

distress - intentional (Count III) and negligent (Count

VIIL), respectively - which likewise lend themselves to

collective scrutiny. The remaining two state law causes of

action will be treated individually.

A. Dismissal

The plaintiff's remonstrance in Count V of the com-

plaint, which apparently seeks to draw sustenance from

an analogy to the employment relationship, postulates

that even a collegian who has no contractual claim to a

continuing place in the student body cannot be expelled

without just cause. To be sure, some jurisdictions have

(Continued from previous page)

adequately as a nurse because of her corpulence The question

of whether 4 person who has the pluck to deny her ostensible

handicap may still come within the protection of the Reha

bilitation Act because she is perceived by others as hand

capped must be left for another day

evidently created such an open-ended cause of action in

favor of at-will employees who have been peremptorily

dismissed from their jobs. As an ultimate matter, the

plaintiff's claim teeters because of her failure to discover

any Case in any jurisdiction from which it might be in-

ferred that such a cause of action (if it existed at all) can -

or should ~ be extended to the university/student con-

text. But in this case, there is no need to speculate upon

such a far-reaching extension of the at-will employment

doctrine - for the underlying doctrine itself simply does

not occupy a place in Rhode Island law.

In the employer-employee environment, no less an

authority than the Supreme Court of Rhode Island has

recently spoken of the well-settled rule that “a promise to

render personal services to another for an indefinite term

is terminable at any time at the will of either party.”

Rotondo v. Seaboard Foundry, Inc., 440 A.2d 751, 752

(R.1.1981). See also Oken v. National Chain Co., 424 A2d

234, 237 (R.1.1981). Put another way, an at-will employ-

ment relationship “creates no executory obligations.”

Dudzik v. Lessona Corp., 473 A.2d 762, 766 (R.1.1984). This

hornbook principle has twice been accepted as an accu-

rate reflection of Rhode Island law by this federal district

court. Lopez 2. Bulova Watch Co., Inc., 582 F.Supp. 755, 767

n. 19 (D.R.1.1984) Gelya, J.); Brainard v. Imperial Manufac-

turing Co., 571 FSupp. 37, 39 (D.R.1.1983) (Pettine. }.). Se,

by logical extrapolation, Count V stands upon too un-

steady a legal footing to survive the instant summary

judgment motion

It would seem that this reasoning and collocation of

the authorities writs “finis” as well to the charge contain

ed in Count I! of the complaint. After all, the claim that

App. 32

the defendants have breached implied covenants of good

faith and fair dealing in the course of terminating the

relationship between Russell and the College relies large-

ly on caselaw from other jurisdictions in (he employer/

employee context, and that authority is of no conse-

quence in Rhode Island. See ante. Yet, the claimant re-

sponds, this count is sustainable by reference to the

decision of the state supreme court in AAA Pool Service &

Supply, Inc. v. Aetna Casualty & Surety Co., 121 R.1. 96, 395

A.2d 724 (R.1.1978).

The AAA Pool decision is, however, a fetid sinkhole

for this plaintiff. In that case, the Rhode Island Supreme

Court held that the supposed existence of an implied

covenent of good faith and fair dealing did not give rise

to any independent cause of action in the property insur-

ance nites. Id. at 726.7 Although the AAA Pool tribunal

affirmed the state supreme court's earlier recognition of a

generalized duty of fair dealing in contractual relation-

ships, espoused in Ide Farm & Stable, Inc. v. Cardi, 110 RI.

735, 297 A.2d 6443, 645 (R.1. 1972), that generic duty was

deemed inadequate to form the basis for an independent

? Some state courts, including Rhode Island's, have cre

of action of this genre in the insurance context Ser

ee ae v. Hanover Ins. Co., 417 A.2d 313 (R.1.1980), Gruen

berg v. Aetna Ins. Co., 9 Cal. 3d 566, 108 Cal Rptr. 480, 510 Pd

1032 (1973). And, the Bibeault rule has been codified by statute

See R.1.Gen.Laws § 9-1-3933. Bibeault, by its terms, opens no

doors outside of the insurance industry 417 A2d at 318-19

Likewise, the statute has no application whatever beyond the

insurer/insured relationship

App. 33

cause of action in tort in AAA Pool. It is similarly unavail-

ing on the facts of the instant case.

A close look at ide Farm is revealing. There, the state

supreme court discerned “an implied covenent of good

faith and fair dealing between parties to a (purchase and

sale) contract so that contractual objectives may be achieved.”

Id. at 645 (emphasis supplied). The plaintiff in Ide Farm

sought only to recover the benefit of a bargain foregone

when the defendant/buyer failed to meet obligations

which had arisen under a purchase and sale agreement.

Id. at 643. Ide Farm did no more than acknowledge the

existence of an action in contract for expectation damages

against a party who failed to use best efforts to fulfill a

promise. Nothing in the case suggests (or condones) the

creation of an independent cause of action sounding in

tort for consequential damages. The sole thrust of the

opinion is toward the achievement of contractual objec.

tives, not toward the establishment of a separate cause of

action for punitive or consequential damages for tortious

bad faith. Accordingly, Ide Farm is barren soil for the

present plaintiff.

As mentioned earlier, Rhode Island has consistently

rejected the notion that, without more, an action lies in

favor of an at-will employee for an unfair or bad faith

breach of some covenant implied by law. See Rotondo,

supra; Oken, supra. See also Lopez, supra; Brainard, supra

Where, as here, the plaintiff was a college student rather

than an employee, there is even less reason to believe that

the state courts would afford her a right of action of the

type which she asserts in Count Il of her complaint. In the

absence of any respectable precedent from the courts of

Rhode Island favorable to the plaintiff's stance, and in an

App. 34

ambience where no court has intruded into the groves of

Academe to reach so ambitious a result, this court cannot

retailor state law to suit the plaintiff's specifications.

After all, “{iJt is not for this court, sitting in diversity

jurisdiction, to blaze a new trail where the footprints of

the state courts point conspicuously in a contrary direc-

tion.” Plummer v. Abbott Laboratories, 568 F.Supp. 920, 927

(D.R.1.1983).

There is, under Rhode Island law, no independently

actionable covenent of good faith or fais dealing implicit

in the university/student relationship. And, Russell has

shown nothing which would enhance her case so as to

extricate it from the operation of this general principle

The defendants’ Rule 56 motion for summary judgment

has merit insofar as it pertains to Count Il, and must be

granted.

B. Emotional Distress

Counts III and VIII of the plaintiff's complaint dwell

in the realm of emotional distress, the former alleging

intentional infliction and the latter claiming injury in

consequence of the defendants’ negligence.

The court need pause only briefly in its consideration

of Count VII. Rhode Island law controls in this diversity

case; and the state supreme court, in Champlin v. Washing:

ton Trust Co., 478 A.2d 985, 988 (R.1.1984), has expressly

rejected the viability of any cause of action for negligent

infliction of emotional distress fashioned along the lines

set out in § 313 of the Restatement (Second) Torts. Rhode

island has been slow to expand the horizons of the (nar

rowly-defined) cause of action for negligent infliction of

App. 35

emotional harm, see Plummer v. Abbott Laboratories, 568

F.Supp. at 922-27 (collecting cases), and Count VIII repre-

sents far too ambitious an initiative, given the current

state of Rhode Island law. A federal court, of course,

“must take state law as it exists: not as it might conceiva-

bly be, some day; nor even as it should be... . Plaintiffs

who seek out a federal forum in a diversity action should

anticipate no more.” Id. at 927.

The early demise of Count VIII does not necessarily

sound a death knell for Count III, as the claim asserted

therein rests on a different legal footing. In attempting to

invoke the standard of the Restatement (Second) Torts

§ 46, Count III tracks a path which is theoretically viable

Indeed, the state supreme court has heretofore recog:

nized the existence of a cause of action patterned after

§ 46. See Champlin, 478 A.2d at 988.

The basic requisites of an intentional infliction claim

are easily stated:

One who by extreme and outrageous conduct

intentionally or rec causes severe emo-

tional distress to another is to liability

for such emotional distress, and harm

to the other results from it, for harms

Restatement (Second) of Torts § 46 (

Before addressing any questions

duct alleged and its supposed effects, the must first

determine whether the university / relationship

comprises the kind of soil in which the seeds of a § 46

claim for emotional harm may sprout. We start, again,

with Champlin, which recognized a cause of action for

intentional infliction of emotional distress in the debtor

to the con-

App. 36

creditor context. id at 989. Any belief that Champlin

might be limited to its own facts, or to the collection

miheu, has been dispelled by the ensuing decision in Flias

». Youngken, 493 A.2d 158 (R.1.1985). Elias held that some

rather unpleasant communications between an

distress (though the particular conduct alleged in Elias

did not meet the rigorous standard of § 46). id. at 163-64.

The state supreme court again assumed the existence of

this particular cause of action without inquiry into its

jurisprudential antecedents or conceptual underpinnings.

and considtred only the “threshold of conduct.” 493 A 2d

at 164, at which liability might be imposed. id. at 163-64

Though Elias is sparse of phrase, both its language and

tenor buttress a broad reading and application of Cham-

plin. By extending the potential reach of the tort to the

supervisor/employee relationship, Elias enhances the (al-

ready bright) prospect of construing the scope of § 46 so

as to embrace other (kindred) airings.

The caselaw from other jurisdictions does not sugpest

any basis for insulating the university /student setting

from the operation of the general rule. See Note. 38

A.L.R.4th 998, 1003-1030 (1985) (reviewing cases). With-

out reaching the question of whether Rhode Island would

limit the bounds of this tort to some particular sets of

relationships, this court is persuaded that the uniquely

vulnerable nature of the student's standing in the world

of the university places that pairing squarely within the

Category of relationships which, on any reasonable tax.

onymy, would give rise to a duty to avoid the intentional!

infliction of emotions! harm

App. 37

Such a conclusion marks only the beginning of the

odyssey. While Elias as Champlin together imply a cause

of action for intentional infliction of emotional distress,

generally applicable in the circumstances of this case,

there are high hurdles along the road to success on such

claims. First, the concept of what might be termed “inten-

tionality” is required to do double duty in these precincts.

The interdicted conduct itself must be “intentional,” that

is, purposeful, wilful, or wanton. What is more, the harm

that results must also be “intentional,” that is, it must

have been intended or least recklessly caused.

The face side of the coin is undoubtedly legible in

tnis case. The conduct which the defendants undertook

was volitional; what was done, was done purposefully.

Whether or not the defendants intended the conse-

quences that ensued, the acts that they committed vis-

a-vis Russell were, without exception, the products of

forethought and the conscious exercise of free will.

The flip side of the § 46 coin is much harder to read.

In the Champlin phrase, the challenged conduct “must be

intentional or in reckless disregard of the probability of

causing emotional distress.” 478 A.2d at 989. The plaintiff

does not argue that these defendants desired to cause her

to suffer, or even that they knew such suffering was

substantially certain to follow from their course of con-

duct. Rather, Russell contends that the concept of reck-

lessness is subsumed within the concept of intentionality

for these purposes. Prosser and Keeton weigh in on plain-

tiff’s side of this issue:

[L]iability for extreme outrage is broader [than a

literal interpretation of intentionality would al-

low] and extends to situations in which there is

App. 38

no certainty, but merely a high degree of proba-

bility that the mental distress will follow, and

the defendant goes ahead in conscious disregard

of it. This is the type of conduct which common-

ly is called wilful or wanton, or reckless.

Prosser and Keeton, The Law of Torts (Sth ed. 1984) § 12 at

64 (discussing the requirement of extreme outrage).

There are four elements which must coincide under

Rhode Island law to impose liability on such a theory

(1) the conduct must be intentional or in reck-

less disregard of the probability of causing emo-

tional distress, (2) the conduct must be extreme

and outrageous, (3) there must be a causal con

nection between the wrongful conduct and the

emotional distress, and (4) the emotional dis-

tress in question must be severe.

Champlin, 478 A.2d at 989.

Points (3) and (4) are of only passing interest at this

juncture. The plaintiff has testified that she suffered

nightmares, sleeplessness, nausea, vomiting, diarrhea,

gastric upset, and hypoglycemic attacks in the wake of

the defendants’ conduct. There is ample evidence in the

record to withstand Rule 56 scrutiny on the last two

prongs of the Champlin test. And, the first two prongs

can, for the purposes at hand, be viewed as susceptible to

measurement by a merged yardstick. reckless disregard

cum outrageousness. The question becomes whether or

not Russell has proffered enough in the way of proof to

create a genuine issue of material fact as to this criterion

The combined standard is a stringent one. The oft

cited comment (d) to § 46 of the Restatement (Second) of

Torts (1965) provides:

—

App. 39

It has not been enough that t

has acted with an intent’ which oyna

even criminal, or that he has intended to inflict

emotional distress, or even that his conduct has

been characterized by “malice,” or a degree of

aggravation which would entitle the plaintiff to

a damages for another tort. Liability has

found only where the conduct has been so

outrageous in character, and so extreme in de-

gree, as to go beyond all possible bounds of

ecency, and to be regarded as atrocious, and

utterly intolerable in a civilized community

Generally, the case is one in which the recitation

of the facts to an average member of the com-

munity would arouse his resentment against the

actor, and lead him to exclaim, “Outrageous!”

Whether the conduct of a given defendant surpasses

the bounds of decency is a function of three factors: (i)

the conduct itself, (ii) in light of the particular relation.

ship of the parties, (iii) having in mind the known (or

knowable) susceptibility of the aggrieved party to emo-

tional injury. These can best be assayed, in this case, in

the inverse order of their appearance. Russell wee a

known quantity. Despite her evident sensitivity to

weight-related emotional trauma, and her documented

history of precarious emotional balance and tenuous self-

esteem, the individual defendants - well-educated pro-

fessionals all - plowed ahead. Given the full panoply of

the circumstances, the proposition that they acted in reck-

less disregard of the probability that an obese youngster ’s

psychic equilibrium could easily be knocked askew soome

fairly debatable. This conclusion is fortified by a glimpse

of the middle factor. The student stands in a parti “nn

vulnerable relationship vis-a-vis the university, be ad

ministration, and the faculty. She is away from home

App. 40

subject to the authority and discipline of the institution,

and under enormous pressure to succeed. The relation-

ship of these parties was such that the defendants could

fairly be expected to have acted maturely - and even with

some tenderness and solicitude - toward the plaintiff.

Seen in this context, the defendants’ conduct, as the

plaintiff has portrayed it, cannot be said as a matter of

law to stumble on the threshold of outrageousness. To be

sure, the law does not shield a person from words or

deeds which are merely inconsiderate, insulting, unflat-

tering, or unkind. The courts possess no roving writ

which warrants intervention whenever someone's feel-

ings are hurt or someone has been subjected to a series of

petty indignities. And, there must be room for some lack

of courtesy and finesse in interpersonal relations. In

Champlin, tor example, the state court ultimately declined

to impose liability because of the need to afford a creditor

“reasonable latitude in the manner in which it seeks to

collect overdue notes, even though there may be times

when these methods might cause some inconvenience or

embarrassment to the debtor.” Champlin, 478 A.2d at

989-90.

Yet, the behavior challenged here, viewed in the light

most favorable to the plaintiff's case, seems to be shaped

of sterner stuff. Although a private college must be af-

forded wide discretion in enforcing its scholastic stan-

dards and in disciplining its students, there is no

justification for debasement, harassment, or humiliation

The academic mise en scene, in any reasoned view, is

considerably more civilized than the debtor-creditor envi

ronment, and there is correspondingly less play for

App. 41

roughness.* Given the trust implicit in the student's selec-

tion of a college, and the peculiar vulnerability of under-

graduates, the facts set forth by the plaintiff, if ultimately

proven, comprise a scenario which is far more con-

science-provoking than the Champlin counterpart. The in-

dignities which Russell asserts have been practiced on

her are arguably offensive in the extreme, perhaps repug-

nant to the norms which one would expect to flourish in

the academic world. Taken from the plaintiff’s coign of

vantage, the behavior in question, if it is shown to be as

obnoxious as the plaintiff in her Rule 56 Opposition sug-

gests, might well be thought by a properly-instructed

jury to be so atrocious as to be actionable. As a general

matter, the plaintiff appears to have raised sufficient

doubt as to the quality of the defendants’ actions to blunt

the summary judgment ax. See Cortes Quinones v. Jimenez

Nettleship, 773 F.2d 10, 15 (1st Cir.1985) (per curiam)

(summary judgment inappropriate where the parties

“have raised sufficient unanswered questions to require

[the] case to go forward with more complete develop-

ment of the facts.”).%

* The relationship among students - as opposed to that

between the institution and the student body - is a different

kettle of fish, not on today’s menu.

* In pressing their motion for summary judgment as to

Count Il, the defendants have painted with the broadest imag.

inable stroke. Their asserted position is that Russell has not

made out a claim against any defendant. The court has now

held to the contrary. See text ante. The next logical question

whether, given the overall viability of the claim, any one or

more of the defendants nevertheless deserves immunity be

cause of the absence of evidence of individual culpability — has

(Continued on following page)

App. 42

C. Right to Privacy

Count IV of the complaint posits a supposed invasion

of Russell's privacy. No such cause of action was recog-

nized at common law in Rhode Island. See Champlin, 478

A.2d 988 n. 2. The General Assembly, however, filled this

perceived void in 1980 by the enactment of a statute

which is now codified at R.l.Gen.Laws § 9-1-28.1 (1985

Reenactment) (Privacy Act). The Privacy Act,"° which

(Continued from previous page)

not been addressed by the movants, and the court will not

gratuitously fill the void. Cf. Blue Cross of Rhode Island »v.

Cannon, 589 F.Supp. 1483, 1494 n. 15 (D.R.1.1984) (though mo-

tion to dismiss a single count of a complaint has been granted

on a ground which probably undercuts certain other counts as

well, court will not act sua sponte, but will await the filing of

properly-focused motions). Thus, it is not necessary at this

juncture to scan the record so as to assess each defendant's

contribution (or lack thereof) to the miseries which Russell

laments.

© The Privacy Act declares in pertinent part:

(a) Right to Privacy Created. ~ It is the policy of this

state that every person in this state shall have a right

to privacy which shall be defined to include any of

the following rights individually:

(1) The right to be secure from unreasonable

intrusion upon one’s physical solitude or seclusion:

(A) In order to recover for violation of this right,

it must be established that

(i) It was an invasion of something that is enti

tled to be private or would be expected to be private.

(i) Such invasion was or is offensive or objec:

honable to a reasonable man, although,

(Continued on following page)

App. 43

established a “right to be secure from unreasonable intru-

sion upon one’s physical solitude or seclusion,” Id. at

§ 9-1-28.1(a)(1), must necessarily inform this court's de-

termination of the motion sub judice insofar as the fourth

count of the complaint is concerned.

to interpret this neoteric Statutory right. The state

(Continued from previous page)

(B) The person who discloses such information

need not benefit from such disclosure.

(3) The right to be secure from unreasonable

publicity given to one’s Private life:

_ (A) In order to recover for violation of this right,

it must be established that-

pe (i) There has been some publication of a private

(1) The fact which has been made public must be

one which would be offensive or objectionable to a

reasonable man of ordinary sensibilities,

(B) The fact which has been disclosed need not

be of any benefit to the discloser of such fact

(b) Right of Action. - Every person who subjects or

Causes to be subjected any citizen of this state or

other person within the jurisdiction thereof to a de-

privation and/or violation of his right to privacy

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

Suit in equity or any other appropriate proceedings

tor redress

RI. Gen Laws § 91.28 anh) (78s Reenactment)

App. 44

supreme court, in a rather cryptic footnote in Champlin,

478 A.2d at 988 n. 2, wrote that Ms. Champlin’s claim for

invasion of privacy was moot because to “establish| | a

violation of her right of privacy, [the plaintiff] would

have had to satisfy the requirements of § 46” of the

Restatement (Second) of Torts (1965). On the facts of

Champlin, the court seemed to say, the cause of action at

common law for intentional infliction of emotional dis-

tress merged, as a practical matter, with the statutory

claim for invasion of privacy. In support of this proposi-

tion, the Champlin court cited Dawson v. Associates Finan-

cial Services Co. of Kansas, Inc., 215 Kan. 814, 820, 529 P.2d

104, 110 (1974). To be sure, Dawson - which, like Cham-

plin, was a debtor-creditor case — did treat the two causes

of action interchangeably and held that the stringent

standard of liability for intentional infliction of psychic

harm should govern the merged claims. In so doing,

however, the Kansas Supreme Court relied heavily on the

nature of debtor-creditor intercourse:

When one accepts credit, the debtor impliedly

consents for the creditor to take reasonable steps

to pursue payment even though it may result in

actual, though not actionable, invasion of priva-

cy. . . . [D]ebtors’ tender sensibilities are pro-

tected only from appressive, outrageous

conduct.

Id. at 820-21, 529 P.2d at 110.

The Dawson court made it clear that the right of

privacy is normally governed by the more relaxed stan-

dard of liability that requires a finding of conduct “highly

offensive to a reasonable man.” Id. at 822, 529 P.2d at 111.

By its allusion to Dawson in the Champlin footnote, there-

fore, it would seem that the Rhode Island Supreme Court

App. 45

placed a Restatement § 46 gloss on rights afforded by the

Privacy Act only in the (predictably) rough-and-ready

precincts in which the relationship of debtor and creditor

holds sway. See McMenamin v. Bishops, 6 Wash.App. 455,

493 P.2d 1016 (1972); Lewis v. Physicians, Etc. Bureau, 27

Wash.2d 267, 177 P.2d 896 (1947); Norris v. Maskin Stores,

Inc., 272 Ala. 174, 132 So.2d 321 (1961). Yet, the case at bar

arises in a far different - and more urbane - sort of

institutional context, one which conduces toward reading

R.I.Gen.Laws § 9-1-28.1(a)(1) exactly as it was written,

thereby providing a remedy for “unreasonable intrusion

upon one’s physical solitude or seclusion (that). . . . was

or is offensive or objectionable to a reasonable man.” Id.

The relationship is such that Russell could reasonably

have expected to be granted a considerable degree of

privacy as to intimate, personal matters. Thus, a literal

reading of the Privacy Act reaches the perimeter of this

claim. The court so holds.

Once it has been determined that Count IV states an

actionable claim, the record reflects the presence of facts

adequate to preclude summary judgment. Section

9-1-28.1(a)(1) does not speak in terms of the “publication”

of a private fact, but rather in terms of “an invasion of

something that is entitled to be private or would be

expected to be private.” See ante n. 10. To be sure, there

was nothing private or confidential about Russell's cor-

pulence (it was there to be seen at the most casual

glance), so drawing attention to her girth would not, in

and of itself, be actionable as an invasion of privacy

under Rhode Island law. Yet, there was considerably

more here: the continual inquiry into the progress of the

plaintiff’s diet, the scrutiny of her personal weight loss

App. 46

records, the exaggerated interest in what forbidden mor-

sels Russell ingested, and the preoccupation with her

perceived lack of self-discipline, to name but a few varia-

tions on the intrusive theme which the defendants play-

ed. These provocations coalesce to fit comfortably within

the species of conduct which a trier of fact could reasona-

bly find offensive or objectionable. And, this is especially

true inasmuch as few things are more personal or private

to a young, single person than weight and one’s efforts to

control it. Accordingly, the Rule 56 motion misfires as to

this statement of claim."

D. Implied Contract

The final issue to be addressed is the contract claim

asserted in Count I.!? It is accepted law that the relation-

ship between student and university is contractual in

nature. Corso v. Creighton University, 731 F.2d 529, 531 (8th

Cir.1984); Lyons v. Salve Regina College, 565 F.2d 200, 202

(1st Cir.1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56

L.Ed.2d 62 (1978). Concededly, the specific character of

this sort of contractual relationship is somewhat amor-

phous. The contract is “ ‘not an integrated agreement, the

11 This is not to say that there is, on this record, a jury

question as to whether all of the defendants invaded the plain-

tiff’s privacy; it is merely to note the existence of evidence that

one or more of the defendants may have done so. That being so,

and the movants having eschewed any individualized attacks

on the sufficiency of the proof, the court need go no further. See

ante n. 9.

12 Count I| is asserted against the College alone, see Com-

plaint 419(c); thus, Salve is the only movant in this wise.

App. 47

standard is that of reasonable expectation - what mean-

ing the party making the manifestation, the university,

should reasonably expect the other party to give it.’ ” Id.

at 202, quoting Giles v. Harvard University, 428 F.Supp.

603, 605 (D.D.C.1977); accord Cloud v. Trustees of Boston

University, 720 F.2d 721, 724 (1st Cir.1983). See also Slaugh-

ter v. Brigham Young University, 514 F.2d 622, 626 (10th

Cir.) (“The student-university relationship is unique and

it should not be and cannot be stuffed into one doctrinal

category”), cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46

L.Ed.2d 131 (1975); Napolitano v. Princeton Univ. Trustees,

186 N.J. Super. 548, 453 A.2d 263, 272-73 (1982) (univer-

sity/student relationship cannot be described either in

purely contractual or associational terms).

If a contract existed, it came into being when Russell

matriculated at Salve, and she and the College, as the

contracting parties, would be the real parties in interest.

The nisi prius roll shows clearly that no express agree-

ment embodied the kind of terms which the plaintiff

alleges permeated the relationship. Thus, the court must

ascertain whether the implied agreement between the

College and its (former) pupil arguably extended far

enough to support Russell's present litigation. Upon close

perscrutation, the court finds that the disputed facts sur-

rounding the terms of the “contract” provide sufficient

grist to warrant turning the mill of jury deliberation. The

record is not so clear as to entitle Salve to summary

judgment on Count I at this stage of the proceedings.

Salve formulates a variety of positions in its search to

justify brevis disposition of the flagship count of the

plaintiff's complaint. In the first place, the- institutional

App. 48

defendant asseverates that the scales of “reasonable ex-

pectation” should be tipped by the provisions of the

Handbook, a pamphlet which admittedly affirms the im-

portant parallel between a nursing student’s health status

and the health of the patients whom the nurse hopes to

serve. The Handbook requires each student to inform the

clinical coordinator of particular health problems; indeed,

nursing students must sign a form for the clinical place-

ment program each semester that vouc xsafes full dis-

closure of all medical abnormalities. And, the Handbook

reserves to the coordinator discretion to determine

whether a student’s participation in the clinical program

is contraindicated form signed by all students states: “I

will accept the decision of the Clinical Agency Coordina-

tor and Department Chairman as final as to whether or

not I can function in the Clinical Area.” The College has

an obvious interest in ensuring that a student poses no

health risk to herself or others as she proceeds into a

clinical placement. But, howsoever rational the College’s

generalized requirements might be, the application of

those requirements in Russell’s case is another matter.

Contagion was not legitimately at issue - after all,

there is no allegation of communicable corpulence here -

nor have the defendants essayed any showing that clini-

cal work would have jeopardized Russell’s own well-

being.

The only possible bases for prohibiting the plaintiff

from clinical training were either (i) that her obesity

would impede satisfactory performance of her duties, or

(ii) that her appearance would be a poor example for

patients.

App. 49

The college cannot plausibly argue, however, that

Russell was bound unconditionally to accept the decision

to exclude her from further participation in the clinical

placement program, regardless of how arbitrary or irra-

tional that decision might have been. As a matter of

Rhode Island law, “[t]here is no doubt that ordinarily if

one exacts a promise from another to perform an act the

law implies a counter promise against arbitrary or unrea-

sonable conduct on the part of the promisee.” Psaty &

Fuhrman v. Housing Authority, 68 A.2d 32, 35 (R.1.1949).

And, at the very least, the reasonableness of either of the

possible lines of thought limned above is open to serious

question. '%

In the circumstances at bar, there are competing in-

ferences which can be drawn. There is evidence which, if

credited, tends to show that Russell's girth did not reduce

her proficiency. The argument that her overweight condi-

tion was deleterious to patients as a matter of example

rests, at this point, on sheer speculation. Accordingly, the

'S To the extent that the printed form which Russell com-

pleted (under which the clinical coordinator’s decision is clas-

sified as “final”) is material to this issue, the document must be

construed strictly, with all doubts resolved against Salve (as

the originator of the form). This is true under Rhode Island

law, see Fryzel v. Domestic Credit Corp., 385 A.2d 663, 666-67

(R.1.1978); A.C. Beals Co. v. Rhode Island Hospital, 292 A.2d 865

872 (R.1.1972); Zifcak v. Monroe, 249 A.2d 893, 896 (R.1.1969),

and as a matter of interscholastic jurisprudence, see, e.g., Corso

v. Creighton University, 731 F.2d at 533 (in university-student

relationship where “contract is on a printed form prepared by

one party, and adhered to by another who has little or no

bargaining power, ambiguities must be construed against the

drafting party”).

App. 50

decision to expel Russell, insofar as it prescinds from the

Handbook, must be tried to determine whether it was the

product of reason or caprice. Summary judgment would

be an inappropriate means of resolving the conflict.

The second morsel in Salve’s Count I cupboard is

equally unavailing. In a nutshell, the College argues that

Russell failed one of the courses prerequisite to comple-

tion of her nursing degree, thereby justifying her dismiss-

al and eliminating the need for further inquiry. Yet, there

is evidence that the instructor admitted that all of

Russell’s deficiencies in this course were “directly re-

lated” to the claimant's obesity. On this record, a genuine

question exists as to whether adiposis was, in Russell's

case, a legitimate impediment to due fulfillment of the

clinical requirements of the nursing program (as Salve

maintains), or whether the College’s evaluation was

tainted by an unreasonable aversion to obesity or by a

desire to expel Russell because she did not conform to the

“Salve image.”

There is considerable evidence in the record attesting

to the plaintiff's competence as a student and as a nurse,

notwithstanding her one negative evaluation by the de-

fendant Lavin. On August 20, 1985, just one day before

Chapdeiaine’s billet-doux was authored, the plaintiff's

supervisor at Hartford Hospital, Patricia Reilly, wrote

that she “looked and acted in a very professional manner.

Her attendance was excellent and her performance very

good. ! would be most pleased to hire her as a profession-

al nurse. In fact, I expect to be able to offer her a position

for June of 1986.” After her dismissal from the College,

Russell was promptly admitted to the nursing program at

App. 51

St. Joseph’s College (also operated by the Sisters of Mer-

cy). she completed the program there without incident.

While the court is sensitive to the importance of

academic freedom and recognizes that deference must be

accorded to the reasonable judgment of responsible Col-

lege officials, the question of reasonableness is in too

precarious a balance here to permit summary disposition.

Faced with contrary opinions from qualified health care

professionals and particularized allegations of personal

animosity born of obesophobic obsession, this issue,

viewed in the manner most hospitable to the plaintiff’s

case, survives Fed.R.Civ.P. 56 scrutiny.

The same sort of reasoning applies to the claim that

Russell, having signed a document which pledged a

weight loss of two pounds per week as a condition of

continuing her studies in the College’s nursing depart-

ment, see Appendix, was open to ouster for her failure to

abide by her written promise. (After all, the Contract

itself provided that a failure to achieve the stated goal

would result in “voluntary and immediate withdrawal

from the nursing program at Salve Regina College.”) But,

though it is beyond dispute that the plaintiff did not shed

the required poundage, issues of material fact exist as to

duress, coercion, and her state of mind, generally, upon

the execution of the document. Moreover, as the plaintiff

notes, there was no readily ascertainable consideration

for her promise. If certain (arguably plausible) inferences

are drawn in the manner least favorable to the movant,

the weight loss covenant can be seen not as an avenue of

defense, but as a product of the invidiously discrimina-

tory course of conduct which the defendants displayed in

App. 52

Russell’s case. Finally, the oxymoronic concept of a stu-

dent essaying a “voluntary withdrawal” against her will,

cf. Chang v. University of Rhode Island, 606 F.Supp. 1161,

1237 (D.R.1.1985), itself stirs doubts.

In sum, the Contract is at best a useful piece of

evidence to assist in constructing the jigsaw of contrac- -

tual terms, and at worst a piece of paper which is mean-

ingless except as proof of the defendants’ malevolence. In

any event, it is not-dispositive, as a matter of law, of the

merits of Count I. It is impossible to apply the standard of

“reasonable expectation,” Lyons, 565 F.2d at 202, to

Russell’s situation without the aid of precisely the sort of

factfinding which battens the Rule 56 hatch. Inasmuch as

the viability of Russell’s breach of contract claim will

depend on the resolution of questions of disputed fact,

brevis disposition must be withheld on this count.

V. CONCLUSION

The problems presented by this lawsuit are weighty

in every sense of the word. The case emphasizes the

uncertain configuration of the boundaries which sur-

round important, but markedly different, values: the nec-

essarily broad freedom which academic administrators

must possess in order to operate institutions or higher

learning, the rights of a student of tender years to be

sheltered from gratuitous debasement or intrusiveness

(or worse, from malicious conduct which offends funda-

mental notions of human decency), the standards of be-

havior which a university and an undergraduate can

reasonably expect from each other. At this relatively early

App. 53

stage of the instant litigation, it remains somewhat un-

clear as to precisely where on this dimly-lit terrain the

College’s conduct vis-a-vis Russell falls. So, the illumina-

tion of further factfinding seems essential in order to

clarify certain of the issues and to map the rights and

liabilities of the parties more exactly.

In summary, the court holds that the defendants, and

each and all of them, have demonstrated an entitlement

to summary judgment in their favor on Counts II, V, VI,

VII, and VIII of the complaint. There are, as to these

initiatives, no genuine questions of material fact. For the

reasons stated, the defendants deserve to prevail thereon

as a matter of law. Conversely, the motion for summary

judgment must be denied as to Counts I, III, and IV of the

complaint. Russell has shown enough steel to put the

defendants (or some of them, see ante nn. 9, 11) to their

mettle on these claims.

The motion for summary judgment is granted in part

and denied in part, as outlined above. As to those counts

upon which the defendants have prevailed, entry of final

judgment shall be withheld pending disposition of the

remaining claims. Fed. R. Civ.P. 54(b). See Bank of New

York v. Hoyt, 108 F.R.D. 184, 186-87 (D.R.1.1985).

It is so ordered.

APPENDIX

CONTRACT

I, Sharon Russell, agree to the following conditions

for continuing in Nursing 312 during the Spring 1985

Semester. I understand that failure to meet any and all of

App. 54

these conditions will result in my voluntary and immedi-

ate withdrawal from the Nursing Program at Salve Re-

gina College thus making me ineligible for Nursing 411.

1. Maintain a minimum weight loss of 2 pounds per

week effective immediately.

2. Report to Mrs. Chapdelaine or Faculty Secretary

weekly (every Friday morning) with evidence of

progress in weight loss program. This will com-

mence January 25, 1985.

NB — Report January 22nd for first accounting

after the holiday.

3. Maintain academic standing as required.

Additionally, I will be aware of all requirements listed in

the Nursing Department Handbook, 1983-85 Edition.

/s/ Sharon Russel

Sharon Russell

Dec. 18, 1984

Date

/s/ Catherine E. Graziano, RN

Witness