Title IX / College Discipline Practice - Warshaw Burstein LLP | <em >Doe v. Harvard University,</em > No. 1:18-CV-12150-IT, 2020 WL 2769945 (D. Mass. May 28, 2020)
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  • Doe v. Harvard University, No. 1:18-CV-12150-IT, 2020 WL 2769945 (D. Mass. May 28, 2020)
    John Doe was suspended for 4 semesters after being found responsible for engaging in “conduct of a sexual nature, occurring when [Jane Roe] was [incapacitated].” Doe filed this lawsuit alleging breach of contract; breach of the covenant of good faith and fair dealing; negligence; and violations of Title IX, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. The Court denied Harvard’s motion to dismiss as to the breach of contract, breach of the covenant of good faith and fair dealing, and § 1981 violation, and granted the motion as to the remaining claims.

    On April 1, 2017, John Doe and Jane Roe attended a party along with six other members of their acapella group. Both John and Jane consumed alcohol and it is alleged they engaged in consensual sexual acts during the party. After the party, John and Witness 1 helped Jane carry equipment back to Jane’s dorm room, where Jane allegedly asked John to stay. The two are then alleged to have engaged in consensual sexual activity. The next morning, Jane claimed to not remember what happened the night before. John argues that Jane lied about not remembering what happened because she felt guilty about cheating on her boyfriend.

    In dismissing John’s Title IX claim, the Court held that John had failed to show gender bias motivated Harvard’s findings. John failed to identify a similarly situated female accused of sexual misconduct who was treated differently based on their gender. Instead, John relied solely on the weight of the evidence to show gender bias. However, to show gender bias from underlying evidence alone, the evidence must substantially favor one party’s version of a disputed matter. Here, the allegations that Jane was lying were not substantially favored by the evidence. Instead, it was equally plausible that Jane was impaired by the consumption of alcohol and the sexual contact was unwelcome under Harvard’s policy. Furthermore, allegations showing anti-respondent bias are not the same as anti-male bias.

    John’s breach of contract claim survived because Harvard failed to afford John a follow-up interview between his first interview and the conclusion of the investigation. This was guaranteed to John under Harvard’s policies. John’s alternative breach of contract claim based upon Harvard’s refusal to allow John and Jane to resolve the allegations informally was dismissed because the policies explicitly gave Harvard the discretion to require a formal resolution. John’s breach of the covenant of good faith and fair dealing survived for the same reason as John’s breach of contract claim.

    John successfully pleaded a § 1981 violation for race discrimination by alleging that white students accused of sexual misconduct could proceed informally whereas he was not. By providing a comparator group, John alleged he was treated differently due to his race.

    Finally, John’s § 1983 claim was dismissed because following the 2011 Dear Colleague Letter and accepting federal money does not turn Harvard into a state actor. Additionally, John’s negligence claim was dismissed because the duty of care between a student and his university is one created by contract. Therefore, any alleged failure to use due care must sound in contract, not in tort.
    CATEGORY: Sexual Misconduct