John Doe V Williams College Memo To Motion For Summary Judgment

Case 3:16-cv-30184-MGM Document 123 Filed 09/30/18 Page 1 of 37
UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
_________________________
)
JOHN DOE, )
)
Plaintiff )
) CIVIL ACTION NO.: 3:16cv-30184-MGM
v. )
)
WILLIAMS COLLEGE, )
)
Defendant. )
_________________________)
MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
STACEY ELIN ROSSI, BBO# 681084

ROSSI LAW FIRM
P.O. Box 442
Hoosick Falls, New York 12090
(413)248-7622
berkshirelegal@gmail.com
Counsel for Plaintiff
September 30, 2018

TABLE OF CONTENTS
Page
INTRODUCTION ...................................................................................................................... 1
STANDARD OF REVIEW ....................................................................................................... 1
KEY BACKGROUND FACTS ................................................................................................. 2
ARGUMENT ............................................................................................................................. 4
I. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS CLAIM

UNDER TITLE IX (COUNT I) .............................................................................. 4
A. Applicable Legal and Regulatory Framework .................................................. 4
B. Williams College’s Violations of Title IX ........................................................ 6
1. Selective Enforcement ................................................................................... 6
2. Deliberate Indifference ................................................................................... 9
3. Erroneous Outcome ........................................................................................ 9
4. Other Title IX Violations ................................................................................ 11
C. Damages ............................................................................................................ 13
II. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS BREACH

OF CONTRACT CLAIM (COUNT II) ................................................................... 14
A. Applicable Law.................................................................................................. 14
B. Williams College’s Flawed and Unfair Policies ................................................ 14
C. Williams College’s Breaches of Contract ......................................................... 17
1. Williams’ Failure to Follow its Own Sexual Misconduct Policy and

Unreasonableness of the Policy .................................................................. 17
2. Williams Investigated John in Contravention of its Policies ...................... 18
3. Williams’ Breach of Obligation to Refrain from Interfering in

Panel’s Deliberations .................................................................................. 19
4. Williams’ Failure to Follow its Discipline Process Outline ........................ 20
i
TABLE OF CONTENTS (Cont.)
5. Williams’ Breach of Obligation to Provide a Prompt, Fair, and Impartial

Investigation and Resolution ....................................................................... 21
6. Williams’ Breach of Obligation to Provide Access to Educational

Records ........................................................................................................ 23
7. Williams’ Breach of Obligation that there Be Sufficient Evidence

(or any Evidence) to Support the Panel’s Findings ..................................... 24
8. Williams’ Breach of Obligation to Provide a Meaningful Right of

Appeal .......................................................................................................... 24
D. Damages ............................................................................................................ 25
E. Conclusion ......................................................................................................... 26
III. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS BREACH

OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
CLAIM (COUNT III) .............................................................................................. 26
IV. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS CLAIM

THAT WILLIAMS COLLEGE VIOLATED ITS DUTY OF BASIC
FAIRNESS (COUNT VI) ........................................................................................ 27
CONCLUSION .................................................................................................................... 30
ii
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Blackie v. Maine,
75 F.3d 716 (1st Cir. 1996) ............................................................................................ 1
Bleiler v. Holy Cross,

2013 WL 4714340 (D. Mass 2013) ........................................................... 5, 6, 10, 26, 27
Bates v. Sponberg,
547 F.2d 325 (6th Cir. 1976)) ........................................................................................ 28
Chrysler Corp. v. Brown,

441 U.S. 281 (1979) ........................................................................................................ 5
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984) ........................................................................................................ 5
Cloud v. Trs. of Bos. Univ.,

720 F.2d 721 (1st Cir. 1983) .............................................................................. 14, 17, 27
Davis v. Monroe County Bd. of Educ.,

526 U.S. 629 (1999) ....................................................................................................... 9
Doe v. Boston College,

No. 16-2290, 2018 WL 2752608 (1st Cir. 2018) ......................................... 14, 17, 21, 28
Doe v. Brandeis Univ.,

2016 WL 1274533 and 177 F.Supp.3d 561
(D. Mass. 2016) ...................................................................... 1, 18, 22, 24, 26, 27, 28, 30
Doe v. Brown University,

Case No. 1:16-cv-00017 (D.R.I.) ................................................................................... 28
Doe v. George Mason Univ.,

149 F.Supp.3d 602 (E.D. Va. 2016) ............................................................................... 30
Doe v. Johnson & Wales University,

Case No. 18-106JJM 2018 (D.R.I.) ................................................................................ 11
Doe v. Univ. of Cincinnati et al.,

No. 16-4693 (6th Cir. 2017) ............................................................................................ 29
Doe v. University of the South,

687 F.Supp.2d 744 (E.D. Tenn. 2009) ........................................................................... 6
iii
Page(s)
Federal Cases (cont.)
Doe v. Washington and Lee Univ.,

2015 WL 4647996 (W.D. Va. 2015) ............................................................................. 6
Doe v. Western New England University,

228 F.3d 154, (D. Mass 2017) .................................................................................... 6, 18
Fashion House, Inc. v. K Mart Corp.,

892 F.2d 1076 (1st Cir. 1989) ........................................................................................ 18
Fellheimer v. Middlebury Coll.,

869 F. Supp. 238 (D. Vt. 1994) ........................................................................................ 12
Flaim v. Medical College,

418 F.3d at 640 ......................................................................................................... 28, 29
Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274 (1998) ....................................................................................................... 9
Houlton Citizens’ Coal.,

175 F.3d 178 (1st Cir. 1999) ........................................................................................... 2
Lyons v. Salve Regina Coll.,

565 F.2d 200 (1st Cir. 1977) .......................................................................................... 14
Mallory v. Ohio Univ.,

76 F.Appx. 634 (6th Cir. 2003) ...................................................................................... 6
RTR Techs., Inc. v. Helming,

707 F.3d 84 (1st Cir. 2013) ............................................................................................. 1
Walker v. President & Fellows of Harv. Coll.,

840 F.3d 57 (1st Cir. 2016) ............................................................................................ 14
Yusuf v. Vassar Coll.,

35 F.3d 715-16 (2d Cir. 1994) ................................................................................... 6, 9
Federal Statutes
Federal Education Rights and Privacy Act 20 U.S.C. § 1232g; 34 CFR Part 99 ............................ 23
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681-1688 ............................ 4 - 13
Federal Regulations
34 C.F.R. § 106.4(a)-(c) ............................................................................................................... 5
iv
Page(s)
Federal Cases (cont.)
34 C.F.R. § 106.8 (b) .................................................................................................................... 5
U.S. Dep't of Education, Office for Civil Rights (OCR), Revised Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students, or Third Parties –
Title IX (2001) at 36 n.98 (notice of publication at 66 Fed. Reg. 5512 (January 19,
2001)) (“2001 Guidance” aka OCR Standards)
http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html............................... 5, 6, 12
OCR Dear Colleague Letter, April 4, 2011,

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf ................... 5, 6
OCR Case re: Complaint #05-92-1104 (Fenton Community High School Dist. #100) ............. 12
OCR Ruling re: Complaint #04-03-204 (Christian Brothers Univ.) (Mar. 26, 2004) ................ 5
State Cases
Coveney v. Holy Cross Coll.,

388 Mass. 16, 445 N.E.2d 136 (1983) ..................................................................... 17, 26
Schaer v. Brandeis Univ.,

735 N.E.2d 373, 378 (Mass. 2000) .............................................................. 14, 17, 18, 27
Suffolk Constr. Co. v. Lanco Scaffolding Co.,
47 Mass.App.Ct. 726, 716 N.E.2d 130, 133 (1999) ....................................................... 18
Other Authorities
Fed.R.Civ.P. 56(c) ...................................................................................................................... 2
Fed.R.Civ.P. 30(b)(6) ................................................................................................................. 21
v
INTRODUCTION
Each [campus sexual assault] case must be decided on its own merits, according to its own
facts. If a college student is to be marked for life as a sexual predator, it is reasonable to
require that he be provided a fair opportunity to defend himself and an impartial arbiter to
make that decision.
Doe v. Brandeis Univ., 2016 WL 1274533, at *6 (D. Mass. 2016). When Plaintiff John Doe1
(“Plaintiff” and “John”) complained that an employee of Williams College (“Defendant,” “College,”
“Williams”), Susan Smith (“Smith”) had assaulted, harassed, and stalked him, he had a right to expect
that Williams would fulfill its obligation to provide him with “procedures that seek to ensure a prompt,
fair, and impartial investigation and resolution” and that Williams would not facilitate a retaliatory
counter complaint by employee Smith accusing him of serial rape. Those procedures, under
Massachusetts law, constituted a contract between John and Defendant which Defendant breached.
John filed this lawsuit against Defendant for disciplinary action against John as claimed by
Williams employee Smith. Based on the following, John is entitled to summary judgment on his
claims that Williams breached its express and implied contract with its students; violated Title IX;
and violated the covenants of good faith, fair dealing, and fundamental fairness.
Plaintiff incorporates by reference Plaintiff’s Statement of Material Facts in Support of Plaintiff’s
Motion for Partial Summary Judgment (attaching Exs. 1-165) (“PFs”).
STANDARD OF REVIEW
The court must view the record in favor of the nonmoving party, drawing all reasonable
inferences in his favor. RTR Techs., Inc. v. Helming, 707 F.3d 84, 87 (1st Cir. 2013). Where, as here,
a district court rules simultaneously on cross-motions for summary judgment, it must view each
motion, separately, through this prism. Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996). A district
court may enter summary judgment only if the record, read in this manner, reveals that there is no
1
Plaintiff refers to himself as “John Doe” and to his Williams’ College employee accuser as “Susan Smith”
throughout the pleadings.
1
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of
law. Houlton Citizens’ Coal., 175 F.3d 178, 184 (1st Cir. 1999); see also Fed.R.Civ.P. 56(c).
KEY BACKGROUND FACTS

John (Class of 2016) and Smith began (Class of 2015) an exclusive, romantic, and sexually active
relationship in October 2013. PF ¶ 32. On Labor Day, September 1, 2014, when they moved in
together on campus, John and Smith allegedly engaged in sexual intercourse which, according to the
Panel, was non-consensual because the sexual position and roughness during the incident in question
were unusual. PF ¶ 157. The relationship continued until winter 2015-2016 sometime after Smith
assaulted John December 5, 2015. PF ¶¶ 37-40.
In September 2014, “sexual misconduct (which includes rape and sexual assault)” was defined in
the Williams Code of Conduct as follows, in relevant part:
Non-Consensual Sexual Intercourse: Any sexual intercourse (anal, oral or vaginal);

however slight; with any object; by any person upon any other person; without effective
consent.
Consent: Consent means that at the time of the sexual contact, words or conduct indicate
freely given approval or agreement, without coercion, by both participants in the sexual
contact. Both parties have the obligation to communicate consent or the lack of consent. A
verbal “no” (no matter how indecisive) or resistance (no matter how passive) constitutes the
lack of consent. In addition, consent once given may be withdrawn at any time. If consent is
withdrawn, the other party must immediately stop whatever sexual contact is occurring.
Williams policy did not provide any definition for or clarification of the term “effective.” PF ¶¶ 1-2.
In October 2014, the College changed its sexual misconduct policy to an affirmative consent policy
that now required clearly expressed affirmative consent for all sexual activity. PF ¶¶ 6, 286.
John gave actual notice to Williams that he had been assaulted by employee Smith (Smith began
working for the College in summer 2015) on March 13, 2016 in the form of a Cease and Desist
Letter to Smith. PF ¶¶ 64, 76. The day after Smith received the letter, Meg Bossong, Director of
Sexual Assault Prevention and Response, referred Smith to a local rape crisis center. PF ¶ 65. Smith
had never made any complaint involving physical or sexual violence by John. Two days after Smith
2
received said letter, with the encouragement of Bossong, Smith left the campus to go “home” to
Houston indefinitely without informing her supervisor. PF ¶ 66.
When Smith learned Williams was investigating her, she lodged a counter complaint against John
with the assistance of Bossong and prompting by Dean Sarah Bolton. PF ¶¶ 87-89. Bolton had
demonstrated a bias towards Smith and against John in a variety of other ways including, but not
limited to, initiating Honor Code proceedings against John when the procedures state that Chairs
decide whether there is sufficient evidence to proceed (PF ¶¶ 47, 51); putting Smith on a “no
questions asked” list with Security because John said “Good luck on Thursday” to Smith (PF ¶¶ 48-
50); ensuring John was found guilty of plagiarism by nefariously excluding a professor from the
Honor Code hearing, (PF ¶¶ 51-58); apprising Smith of private educational information concerning
the Honor Code proceedings against John (PF ¶¶ 52, 59); and setting up a no-contact order in order
to exclude John from a dance performance when Smith planned to be in the vicinity (PF ¶¶ 68-71).
Williams sanctioned the counter complaint by Smith against John who has consistently
challenged its legitimacy. PF ¶¶ 90-93. The bias against John continued to infect the proceedings
after Bolton was replaced by Dean Marlene Sandstrom. PF ¶¶ 156, 167-174, 177-192, 194-303.
The College’s policy promises to provide students with “procedures that seek to ensure a prompt,
fair, and impartial investigation and resolution.” PF ¶ 10. The College’s policy does not contemplate
a student respondent to a staff or faculty member sexual misconduct complaint. PF ¶ 24. In fact, there
has never been a case other than this one in which Williams adjudicated a complaint against a student
by an employee in sexual misconduct complaint circumstances. PF ¶ 25.
In considering whether John’s behavior in September 2014 constituted a violation of College
policy, the Panel2 communicated to John that they determined he “did not have affirmative consent”
2
All references herein to “Panel” are to Ninah Pretto, Steven Klass, and Aaron Gordon.
3
for the interaction in question and thus was responsible for a violation of College policy, despite the
fact that the language referenced by the Panel was not included in the relevant policy. PF ¶¶ 1-2, 267.
Appeal hearings at Williams are “granted only in cases where the procedural problems or new
evidence are considered substantive enough to have had significantly affected the outcome of the
initial hearing.” PF ¶ 28. Upon John’s request for an appeal on a number of procedural lapses, the
College allowed John to appeal on the sole basis “of the fact that the hearing panel applied a policy
not in effect at the time of the alleged misconduct.” PF ¶¶ 272, 276, 281, 284. The differences
between the policies were “not trivial” according to Sandstrom. PF ¶¶ 274, 285.
The appellate Panel, inexplicably comprised of the same members as the original Panel, then
applied a selective position of the appropriate policy and reached an identical determination as it had
in the original adjudication. PF ¶¶ 294-295. The Panel explained its decision by stating that the
language in the applicable policy “express[ed] the same concept” as that of the first policy applied,
i.e. the policy was essentially the same in September 2014 as it was when the new and different
policy went into effect in October 2014. PF ¶¶ 300-302. The Panel made no change to either the
ultimate finding or the imposed sanction. Panelist Aaron Gordon stated that the Panel felt that the
“language had been changed and added to and clarified but it didn't change the fundamentals of the
policy itself” and that's how they “felt [they] could be consistent between the two and have the
same outcome.” (emphasis added) PF ¶ 301.
ARGUMENT
I. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS CLAIM UNDER
TITLE IX (COUNT I).
A. Applicable Legal and Regulatory Framework. Title IX states, “[n]o person…shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance.”3 The
3
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a); 20 U.S.C. § 1681-1688.
4
federal statute and its regulations govern the obligations of educational institutions with respect to sex
and gender discrimination, which includes sexual harassment, broadly defined as “unwelcome
conduct of a sexual nature” that includes sexual assault, stalking and domestic/dating violence.4
Harassment of students by other students, school employees, or third parties is prohibited by Title IX. 5
As a recipient of federal funds, Williams has, in accordance with Title IX's regulations,
specifically agreed to operate all of its programs and activities in compliance with Title IX and the
regulations thereunder.6 The regulations – requiring each school to have, inter alia, “prompt and
equitable” procedures for the resolution of student-on-student sexual assault allegations – “have the
force and effect of law,” for they affect individual rights and obligations.7 A school’s procedures
must, at a minimum, 1) “ensure the Title IX rights of the complainant,” but “accord due process to
both parties involved,”8 a requirement applicable to both state and private schools9; 2) provide an
“adequate, reliable, and impartial investigation”10; 3) if the complainant is given a pre-hearing
opportunity “to present his or her side of the story,” the accused student must be given the same
opportunity11; 4) provide the complainant and accused student “an equal opportunity to present
4
U.S. Dep't of Education, Office for Civil Rights (“OCR”), Revised Sexual Harassment Guidance: Harassment of
Students by School Employees, Other Students, or Third Parties -- Title IX (2001) at 36 n.98 (notice of publication at
66 Fed. Reg. 5512 (January 19, 2001)) (“2001 Guidance”). Dkt. 76-1.
5
Id.
6
See 34 C.F.R. § 106.4(a)-(c).
7
Chrysler Corp. v. Brown, 441 U.S. 281, 295, 301-02 (1979) (regulations promulgated pursuant to notice-and-
comment rulemaking that affect individual rights and obligations “have the force and effect of law”). The same is
true for the 2001 Guidance, an interpretation of the regulations that was published in the Federal Register and was
subject to public comment. 2001 Guidance (Dkt. 76-1) at ii. As such, it is entitled to deference, under the doctrine
articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).; 34
C.F.R. § 106.8 (b); 2001 Guidance; See Bleiler v. Holy Cross, 2013 WL 4714340, at *3, 5 (holding that the OCR
Dear Colleague Letter, as a guidance document, “does not have independent force of law but informs this Court’s
evaluation of whether the College’s procedures were ‘equitable’”).
8
2001 Guidance (Dkt. 76-1) at 22.
9
E.g., OCR Ruling re: Complaint #04-03-204 (Christian Brothers Univ.) (Mar. 26, 2004) at 7 (“due process
protections [are] inherent in the Title IX regulatory requirements”).
10
11
Dear Colleague Letter at 11. Dkt. 76-2.
5
relevant witnesses and other evidence”12; and 5) ensure that the factfinder and decision maker have
adequate training regarding sexual harassment which includes “alleged sexual assaults.13
In its published guidance on Title IX, students must be made aware of what kind of conduct
constitutes sexual harassment or that such conduct is prohibited sex discrimination for a school’s
policy and procedures relating to sex discrimination complaints to be considered effective.14 This
mandate is logical: if a college prohibits certain conduct, students must be able to understand exactly
what conduct is prohibited.15
Four standards are available under Title IX to an accused student challenging the result of a
campus sexual assault proceeding: 1) erroneous outcome; 2) selective enforcement; 3) deliberate
indifference; and 4) archaic assumptions. Bleiler v. Holy Cross, 2013 WL 4714340, at *5 (citing
Yusuf v. Vassar Coll., 35 F.3d 715-16 (2d Cir. 1994) and Mallory v. Ohio Univ., 76 F. Appx. 634,
638-39 (6th Cir. 2003)). See also Doe v. University of the South, 687 F.Supp.2d 744, 756 (E.D. Tenn.
2009) (applying all four standards). John has asserted claim under the first threes standards.
B. Williams College’s Violations of Title IX.
1. Selective Enforcement (also known as Disparate Treatment). A Title IX “selective
enforcement” claim is based on the premise that regardless of the student's guilt or innocence, the
severity of the penalty and/or the decision to initiate the proceeding was affected by gender.). Yusuf,
supra, at 709. A plaintiff may state a selective enforcement claim when a female similarly situated to
a male student received more lenient treatment. Id. Courts have held that it is sufficient for such an
allegation to be based on the totality of the circumstances. Id. at 35. See also Doe v. Washington and
Lee Univ., 2015 WL 4647996, at *10.
12
Id.; 2001 Guidance at 20.
13
Dear Colleague Letter (Dkt. 76-2) at 12; 2001 Guidance (Dkt. 76-1) at 20-21.
14
2001 Guidance (Dkt. 76-1) at 19-20.
15
See Doe v. Western New England University, 228 F.3d 154, 173-176 (D. Mass 2017).
6
In this case, the College ignored John’s March 13, 2016 complaint about Smith’s assault and
harassment and did not encourage John to report the incident to law enforcement. PF ¶¶ 78-82. In
striking contrast, without ever hearing John’s side of the story or there being any reasonable cause for
concern, Bolton and Bossong encouraged Smith to use victim resources and even to contact police
and had done so even before any complaints were lodged. PF ¶¶ 41-50. Bolton also deprived John of
an educational opportunity by barring him from the dance performance so that Smith could attend.
PF ¶¶ 68-71. After John’s counsel sent a letter on April 13, 2016 to Title IX Coordinator Toya
Camacho asserting John’s rights and John’s meeting with Camacho on May 2, 2016, Williams finally
initiated proceedings against Smith. PF ¶¶ 83-86.
Upon learning that the College was actually going to investigate the complaint that Smith
assaulted John, Smith lodged a counter complaint that was encouraged by Bolton and Bossong, who,
again, had never heard John’s side of the story. PF ¶¶ 87-90. Not only does College policy fail to
contemplate that an employee lodge a sexual misconduct complaint against a student, Title IX itself
does not provide for sexual misconduct complaints by school employees against students. PF ¶¶ 22-
24; Dkt 107 at 4; Dkt. 76-3 at FN1, p. 33; Dkt. 107-6. Further, the fact that Smith was an employee
of Williams when she slapped John actually should have caused Williams to be less favorable to
Smith, given the power differential between them.
Williams’ solicitousness and bias towards Smith, a female, in a similar situation to John, a male,
continued throughout the proceedings. Importantly, Smith’s partial advisor, Bossong, advised and
trained Sandstrom and the Panel. PF ¶¶ 100, 103, 116. Bossong availed Smith of free legal counsel,
while an equivalent was unavailable to John by his College advisor. PF ¶¶ 94-95.
Williams delayed the completion of its investigation in order to add Smith’s witness, Elanie.
Elanie, whom Smith identified at the 11th hour, emailed investigator Kurker after the report delivery
deadline. In striking contrast, Kurker did not go to remotely the same lengths to interview Charles, a
witness of John’s. She did not interview Charles as her attempts to reach him were feeble. PF ¶¶ 158-
7
164, 180-182, 187-190, 194-197, 226. Kurker neglected to elicit information relative to Smith’s most
serious allegation against John, the alleged incident of non-consensual sex, from John’s witness. PF
¶¶ 147-149. Kurker failed to inform John that Smith accused him of non-consensual sex until the
very end of his final/third interview despite the fact that Smith had raised the claim in her first
interview and did not give him a meaningful opportunity to respond. PF ¶¶ 151-153. Kurker did not
investigate John’s claims that Smith falsely reported and retaliated against John. PF ¶¶ 165-166.
Kurker deleted College policy applicable to Smith from the report. PF ¶¶ 21, 139-140, 177, 192.
The College stonewalled John’s request for transcripts of the interviews and thereby prevented
John from collecting evidence to prepare his defense. PF ¶¶ 167-174. Sandstrom assisted Smith with
her response to the report, even offering to edit it for her. PF ¶¶ 216-217. Sandstrom interfered with
the Panel so that retaliation by Smith was off the table. PF ¶¶ 234-239. She even rewrote the Panel’s
findings letter in Smith’s favor, removing the Panel’s conclusion that Smith had falsely accused John
of violating the honor code. PF ¶¶ 240-243.
The Panel was trained with materials that would lead to an unfair bias against him. Bossong
trains panelists to be biased against men as they are taught that sexual assault is the product of
“hostile masculinity.” They also receive trauma-informed training that rationalizes accuser’s
inconsistent statements. The Panel accepted Smith’s claim that the incident in question was non-
consensual despite the numerous inconsistent statements Smith made to both Kurker and her
witnesses. PF ¶¶ 28, 208, 246-248. The Panel disregarded John’s exculpatory arguments in his
responses to the report as none were addressed in the Panel’s findings letter or appeal outcome letter.
PF ¶ 297. In short, the Panel took Smith’s version and interpretation of the alleged event as gospel.
On appeal, the Panel, plus non-panelist Cynthia Haley who was present for deliberations, took its
bias against John to the extreme in its decision to rationalize an affirmation of its original finding that
the alleged incident was non-consensual. PF ¶¶ 290-303. In order “to be consistent between the two
and have the same outcome,” the Panel treated the pre-October 2014 sexual misconduct policy as the
8
same as the post-October 2014 sexual misconduct policy. Id. The Panel did this despite the fact that
appeal hearings are “granted only in cases where the procedural problems…are considered
substantive enough to have had significantly affected the outcome of the initial hearing.” PF ¶ 28.
The record is sufficient to support Plaintiff’s case on all elements for a selective enforcement
claim; therefore, the Court should allow summary judgment on this claim.
2. Deliberate Indifference. Schools may be held liable for damages under Title IX if they have
actual notice of the sexual harassment and are deliberately indifferent to it. Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274 (1998) and Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).
Schools are obligated under Title IX to take immediate and appropriate steps to investigate or
otherwise determine what occurred when a responsible employee knows or reasonably should know of
possible sexual [or dating] violence. Dkt. 1-16 at 15. On March 13, 2016, Williams was on actual
notice of employee Smith’s assault and harassment of John, but it failed to take immediate and
appropriate steps to investigate John’s complaint. Dkt. 60 at 14. As explained above, this indifferent
treatment of John by Williams led to an emboldened Smith who proceeded to retaliate against John
with the encouragement and protection of College officials, causing him grave financial, reputational,
and educational harm.
The record is sufficient to support Plaintiff’s case on all elements for a deliberate indifference
claim; therefore, the Court should allow summary judgment on this claim.
3. Erroneous Outcome. Plaintiffs who claim an erroneous outcome must first offer evidence
“sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary
proceeding.” Yusuf, supra, at 715. Such doubt may be shown by pointing to evidentiary weaknesses
undermining the charges, such as a witness’s motive to lie or particular procedural flaws that affected
the proof. Id. Where a plaintiff can point to sufficient evidence to support a possible error in the
disciplinary proceeding, he must then clear a second hurdle by offering proof of “particular
circumstances suggesting that gender bias was a motivating factor behind the erroneous finding” (id.)
9
or the disciplinary hearing process constitutes a pattern of decision-making whereby the [school’s]
disciplinary procedures governing sexual assault claims is discriminatorily applied or motivated by a
chauvinistic view of the sexes.” Bleiler, supra, at *5 (citations omitted).
In this case, evidentiary weaknesses undermined the charges and procedural flaws affected the
proof. First and foremost, employee Smith’s charge that John had engaged in non-consensual sex
was based entirely on contradictory and discredited claims such as:
a) John “kind of just forced himself in, and it hurt” in her first interview; then, in her second
interview, Smith stated she “did not remember removing her clothes to have sex” and “she just
remembers lying on her stomach…confused about why they were having sex.” PF ¶ 208(b).
b) “No, he’s never done that. He doesn’t do that” in response to a question whether John ever
physically abused or engaged in non-consensual sex with Smith; but then, in May after
commencement of the investigation, Smith told Ava that they had engaged in sex once when
she was “really tired and not in the mood” and “didn’t want to have sex.” PF ¶ 208(c).
c) claiming she described the alleged incident of non-consensual sex to her good friend Andrea
Estrada about one month afterwards as an incident during which “she felt really
uncomfortable when she and John had been having sex because ‘it was a really different
position…’”; but Andrea did not recall Smith “confiding in her about any episode of sexual
contact with John that Smith described as either non-consensual or upsetting.” PF ¶ 208(d).
d) they “never…just started out from behind” (referring to the alleged incident’s commencement)
in her third interview but telling Elanie in June or July 2016, well into the investigation, that
when intoxicated and asleep, she awoke to John having sex with her. PF ¶ 208(f).
Smith’s claims comprised the total extent of the evidence. Further, the report stated, “During
sexual intercourse, Smith did not express to John that she did not want to be having sex” and the
policy required both parties “to communicate consent or the lack of consent.” PF ¶¶ 210, 259. The
Panel also disregarded these facts.
The Panel was provided trauma-informed training that presumes the complainant is not lying by
Bossong who expresses an affinity for radical feminism. PF ¶ 105. The Panelists were trained to
overlook accusers’ inconsistent statements regarding non-consensual sex and to ask what the accuser
was “feeling” not what she was doing. PF ¶¶ 28, 112-115, 208, 246-248. So long as an accuser believes
the sex was non-consensual, the Panel proceeds, and proceeded in this case, to accept everything she
10
says about the alleged incident without question. The training materials are also inherently biased to a
belief that males are sexual offenders and that sexual assault is a product of “hostile masculinity.” PF
¶¶ 108-110. Thus, the Panelists in this case were biased against John because of his gender.
The Panel’s complete rationale for its decision was that “both the sexual position and roughness
during the incident in question were unusual, and clear indicators that [John] did not have consent.”
PF ¶¶ 263, 295-296. There is no credible explanation for why the Panel found that the sexual position
was “unusual” when Smith reported to the investigator that she and John “never…just started out from
behind” not that they never used a position such as the one described. PF ¶¶ 208(f), 252. This is no
credible explanation for how the Panel found that there was “roughness” when the only discomfort
Smith reported was from insufficient lubrication which, according to Panelist Pretto, wasn’t a
significant factor. PF ¶ 254-258. The Panel simply assumed facts not in evidence.
There is no credible explanation for the Panel to analyze Smith’s fourteen other claims that John
“forced” or “coerced” her to do things against her will for consistency and credibility but uphold the
fifteenth one for non-consensual sex without the same analysis other than a presumption of guilt that
was made at the outset of the investigation. PF ¶ 244. There is also no credible explanation for how
the Panel arrived at its interpretation of the pre-October 2014 policy as being the same as the post-
October 2014 policy which required “affirmative consent” for all sexual activity.
When the Court can find no reason for why John was treated in the manner he was, the only
inference that one can draw from all the facts is that gender played a role. Doe v. Johnson & Wales
University, Case No. 18-106JJM, Hearing Transcript, Exhibit A at 39-40. The record is sufficient to
support Plaintiff’s case on all elements for an erroneous outcome claim; therefore, the Court should
allow summary judgment on this claim.
4. Other Title IX Violations. Schools are required by Title IX regulations to implement and
publish a policy prohibiting sex discrimination in addition to grievance procedures for a prompt and
11
equitable resolution of reports of violations of the policy. 16 Schools violate this mandate if they do
not have such policies and procedures in place.17 Schools also violate this mandate if they do not
apply their policy and procedures.18 In published, topical guidance, the Department of Education
Office for Civil Rights (“OCR”) notes that in evaluating whether a school’s procedures are prompt
and equitable, OCR considers the “[a]pplication of the procedure to complaints alleging
harassment.”19
When schools fail to apply their own policies, as discussed here and below, the school acts
unreasonably in light of the known circumstances and contrary to well-established Title IX guidance.
Williams misapplied its own sexual misconduct policy in the appellate Panel’s consideration of the
underlying reported misconduct. By misapplying its own policy, the College violated Title IX.
In the original findings letter, the Panel stated, in relevant part, “based on the preponderance of
the evidence…it was [more] likely than not that you did not have affirmative consent to have sexual
intercourse with Smith during the incident in question.” PF ¶ 265. John appealed the finding and the
sanction imposed. In her January 30, 2017 letter to John, Vice President Leticia Haynes granted
John’s appeal of the finding of responsibility and related sanction. PF ¶ 284-285. Haynes noted that
“[t]he college’s policy changed in October 2014, the month following the alleged sexual misconduct.
Under the revised policy, affirmative consent is required for all sexual activity…The two policies are
different, including with respect to the requirement for affirmative consent.” Id.
Acknowledging the procedural error, Williams sent the “claim” of non-consensual intercourse
back to this same panel to remedy its mistake and apply the appropriate Code language. In her
January 31, 2017 letter to John informing him that the college would reconsider the underlying
16
34 CFR 106.8(b).
17
2001 Guidance (Dkt. 76-1) at 19, citing Fenton Community High School Dist. #100, OCR Case 05-92-1104.
18
See Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 246 (D. Vt. 1994) (finding that the college’s deviation from
the procedures it established rendered the hearing fundamentally unfair.)
19
12
misconduct, Haynes noted “[w]hen the panel reconvenes…[it] will consider and weigh all the
evidence before it.” Id. In the appeal outcome letter of February 13, 2017, Sandstrom stated that the
hearing panel considered the appropriate policy version. PF ¶¶ 294-295. Sandstrom articulated that
“[a]lthough the version of the policy in effect at the time did not use the term ‘affirmative’ consent, it
used other language…to express the same concept.” Id. Sandstrom then quoted a portion of the
policy language regarding consent: “Consent means that at the time of the sexual contact, words or
conduct indicate freely given approval or agreement, without coercion, by both participants in the
sexual contact.” Id. The Panel relied on this discrete language to determine that John was responsible
for misconduct and did not consider the other language of the Code describing the standard of
consent. Nowhere did the appeal letter mention the rest of the policy, which articulates substantive
and relevant language: “Both parties have the obligation to communicate consent or the lack of
consent. A verbal “no” (no matter how indecisive) or resistance (no matter how passive) constitutes
the lack of consent.” Id.
This is not adequate or impartial. Williams’ use of only a selected portion of its standard of
consent was unreasonable, inequitable, and unfair in a Title IX process. Further, in utilizing only a
selected portion of the applicable policy, the Panel applied a much more reporting-party friendly
standard. This showed bias and resulted in the male responding party being held to a fictitious,
skewed, and inequitable standard. Further discussion of the College’s unfairness follows.
C. Damages. John was expelled based on the Panel’s decision nine months after he had “walked
with his class” at graduation and having completed all the coursework and credit requirements for the
degree. PF ¶ 304. He lost tuition for his four years enrolled at Williams, lost present earnings from
fall 2011 when John first enrolled at the College to the conclusion of the proceedings, has suffered
and will continue to suffer a lifetime of diminished earning potential as a result of the denial of his
degree, and reputational injury by being branded a serial rapist.
13
II. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS BREACH OF

CONTRACT CLAIM (COUNT II).
A. Applicable Law. In reviewing a student's breach of contract claim against a college, the
Court employs a reasonable expectations standard in interpreting the relevant contracts. Doe v.
Boston College, No. 16-2290, 2018 WL 2752608 (1st Cir. 2018) at 16-17 citing Walker v. President
& Fellows of Harv. Coll., 840 F.3d 57, 61 (1st Cir. 2016). The Court must ask “what meaning the
party making the manifestation, the university, should reasonably expect the other party [, the
student,] to give it.” Id. (quoting Schaer v. Brandeis Univ., 735 N.E.2d 373, 378 (Mass. 2000)). The
Court “reviews the procedures followed to ensure that they fall within the range of reasonable
expectations of one reading the relevant rules." Cloud v. Trs. of Bos. Univ., 720 F.2d 721, 724-25
(1st Cir. 1983) (citing Lyons v. Salve Regina Coll., 565 F.2d 200, 202 (1st Cir. 1977)). “[I]f the facts
show that the university has ‘failed to meet [the student's] reasonable expectations’” the university
has committed a breach. Walker, supra, at 61-62 (quoting Schaer, supra, at 378). Doe v. Boston
College, supra, Slip. Op. at 16-17.
B. Williams College’s Flawed and Unfair Policies. Neither Doe – nor any other reasonable
student - could ever have expected that Williams would apply only a portion of its own consent
standard in its resolution process. By utilizing only a section of its policy, Williams students are left
to wonder which policy section the College will apply and what conduct is actually prohibited. This
is untenable. This misapplication of policy represents significant and glaring procedural errors.
Even if Williams had applied the full policy in the appellate Panel’s consideration of John’s
reported conduct, the full policy has irreconcilable conflicts. Williams revised its sexual misconduct
policies in October 2014. Prior to this date, the 2013-2014 Code of Conduct contained language
addressing prohibitions of sexual misconduct. In October 2014, Williams adopted a Statement of
Sexual Assault and Other Sexual Misconduct separate from the 2013-2014 Code of Conduct. PF ¶¶
1-7. Accordingly, the policy applicable to the September 2014 reported misconduct is the 2013-2014
14
Code of Conduct. Williams failed to apply the appropriate policy initially and it granted John’s
appeal on this very basis. The applicable definition and explanation of consent is as follows:20
Consent means that at the time of the sexual contact, words or conduct indicate freely
given approval or agreement, without coercion, by both participants in the sexual
contact. Both parties have the obligation to communicate consent or the lack of
consent. A verbal “no” (no matter how indecisive) or resistance (no matter how
passive) constitutes the lack of consent. In addition, consent once given may be
withdrawn at any time. If consent is withdrawn, the other party must immediately
stop whatever sexual contact is occurring.
The policy’s confusing language in the construction of the standard of consent failed to provide
notice to John as to what conduct violated College policy.
In asserting that “[b]oth parties have the obligation to communicate consent or the lack of
consent,” the language raises more questions than it answers. The 2013-2014 Code of Conduct does
not articulate how Williams interprets silence or a lack of communication despite the fact that sexual
interactions often take place with minimal verbal communication, less than explicit physical gestures,
and/or other subtle indicia. From a notice perspective, this leaves the policy language as fatally
vague. Williams’ failure to articulate the appropriate interpretation of ambiguity, including silence or
passivity, provides students with unclear boundaries of prohibited behavior. If one party
communicated consent is his obligation under the policy satisfied as long as the alleged victim did
not communicate non-consent? Does the alleged victim violate the policy if they did not
communicate non-consent, as the policy obligates them to do so? What is passive resistance? This is
not a self-defining term and is entirely subjective. A student simply could not have reasonably
understood what the policy language permitted and prohibited vis-à-vis consent.
Williams attempted to address this very confusion in its October 2014 revision of the policy. PF
¶¶ 124-136. Bossong, Williams’ organizational representative heavily involved in the sexual
misconduct policy revision, added language to the policy “because there was a need for
20
See 2012-2013 Williams College Student Handbook; Code of Conduct Policy (available at dean.williams.edu on
August 18, 2014): this policy was in place at the time of the reported misconduct, September 2014.
15
clarification...we wanted to provide clarification and certainty to the Williams community that we
had an affirmative consent policy.” Id. There was a need for clarification because the language that
Williams had utilized in its earlier policy was simply not clear.
The new policy, which went into effect in October 2014, now stated that “The Williams College
Code of Conduct requires affirmative consent for all sexual activity.” Other changes include the
addition of “clearly” in the sentence defining the term consent; addition of the sentence, “In the
absence of affirmatively expressed consent, sexual activity is a violation of the code of conduct”;
and insertion of “In addition” prefacing the sentence, “a verbal “no” (no matter how indecisive) or
resistance (no matter how passive) constitutes the lack of consent. Id.
Despite her testimony that the October 2014 policy was a more specific policy drafted due to a
need for clarification, Bossong, when asked specifically about the issue of consent definitions in the
pre-October 2014 and post-October 2014 policies at her May 15, 2018 deposition, replied that
“[t]hey are essentially the same policies.” PF ¶ 137. However, Sandstrom had acknowledged the
materiality of the policies’ differences in her email to Williams then-President, Adam Falk, below:
In looking at John’s [appeal] request, I believe there may well have been a procedural error
that could possibly serve as grounds for appeal. It has to do with the a [sic] change in the way
consent was defined right around the time of the incident in question. This change occurred
in October 2014, a month after the alleged incident occurred in Sept 2014. Unfortunately, the
panel was using the Oct 2014 definition of consent, rather than the Sept 2014 definition. The
difference in definitions is not trivial. (emphasis added.) PF ¶¶ 274-275.
In granting John an appeal hearing, Haynes agreed with Sandstrom. In her letter to John granting an
appeal of the finding and related sanction, Haynes also noted that “Under the revised [October 2014]
policy, affirmative consent is required for all sexual activity… [t]he two policies are different,
including with respect to the requirement for affirmative consent.” PF ¶¶ 284-285.
Incredibly, College Counsel, who had worked with Bossong on the policy revisions, when asked
by Title IX Coordinator Toya Camacho for the pre-October 2014 sexual misconduct policy, stated
16
that the “College did not have a Sexual Misconduct policy until October 2014” when it clearly did
have an, albeit unclear, contradictory, and ambiguous, sexual misconduct policy. PF ¶¶ 196-200.
These key administrators should have been able to provide a clear and consistent accounting of
the relevant portions of college policy. Yet these administrators had significantly different
interpretations of the language used in the two versions of sexual misconduct policy and one even
denied its very existence.
College policies involving students need to be clear enough for students to understand the
college’s parameters for permissible and prohibited behavior. Policies addressing sexual misconduct
must include clear articulation of the school’s interpretation of ambiguity (including silence) as the
vast majority of sexual interactions to which the policies will be applied entail fact patterns where
consent, communications, and intent are ambiguous to some extent. That Williams’ own executive
administrators, who should have been well-versed in the sexual misconduct policy, dispute the policy
implications illustrates the insufficiency of Williams’ position with respect to the standard of
consent. If the individuals responsible for establishing and administering the policies were unclear
about the meaning of key policy concepts, it is unfair and unreasonable to expect a College student to
understand the same.
C. Williams College’s Breaches of Contract. Williams has contractual obligations to
substantially follow its policies and procedures as it would reasonably expect a student to understand
them; to conduct its procedures with basic fairness; and to reach a decision that has some rational
basis, i.e., one that is not arbitrary and capricious. Cloud, supra, 720 F.2d 721; Coveney v. Holy
Cross Coll., 388 Mass. 16, 445 N.E.2d 136 (1983); Schaer and Boston College, supra. Plaintiff re-
alleges and reasserts the facts set forth above as if fully set forth herein.
1. Williams’ Failure to Follow its Own Sexual Misconduct Policy and Unreasonableness
of the Policy. The sexual misconduct policy of Williams that was in effect at the time of the
reported conduct was unreasonably confusing and vague. Said sexual misconduct policy did not
17
provide a reasonable student with clear notice as to what behavior constituted a violation of that
policy. The Panel only applied a portion of the applicable sexual misconduct policy, failing to apply
the entire policy in its consideration of the underlying reported conduct, and therefore the College
failed to follow its own policies.
Even if the Panel could reasonably conclude that Plaintiff did not have affirmative consent from
Smith during the alleged incident, that policy was not in effect and was not part of the contract
between Plaintiff and Defendant as of September 2014. Drawing reasonable inference in John’s
favor supports the conclusion that Williams could not reasonably expect a student who read the
2013-2014 sexual misconduct policy in September 2014 to intuit that the College intended it to
mean the later, post-October 2014 more finely tuned definition of sexual misconduct that required
affirmative consent for all sexual activity. Western New England University, supra, citing Schaer at
378. In any event, the pre-October 2014 policy standards regarding consent are contradictory and
ambiguous, which results in its terms being construed against the College. Id citing Brandeis, 177
F.Supp.3d at 594 (D. Mass. 2016); Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass.App.Ct.
726, 716 N.E.2d 130, 133 (1999) ("Contract language is ambiguous where `an agreement's terms are
inconsistent on their face or where the phraseology can support reasonable difference of opinion as
to the meaning of the words employed and the obligations undertaken'") (quoting Fashion House,
Inc. v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989)). The record is sufficient to support
Plaintiff’s claim that Williams breached its contract and violated John’s rights to due process and
fundamental fairness by finding John responsible for behavior that was not included in the
description of prohibited conduct in effect at the time of the alleged incident.
2. Williams Investigated John in Contravention of its Policies. Williams improperly
investigated and adjudicated Smith’s counter complaint of “display[ing] abusive behavior” by John
because Smith was an employee, not a student, when she made it and it was made in retaliation
against John for his complaint against her.

18
Williams’ “Sexual Misconduct Investigation and Adjudication Process – Employee Information”
webpage designates three categories of cases: 1) Cases involving student respondents, 2) Cases
involving a student and a faculty or staff member, and 3) Cases involving faculty and/or staff
members only. PF ¶ 22. Since John was the complainant on March 13, 2016, with follow-up
complaints in March and April 2016 and in person on May 2, 2016, this case between John and
employee Smith fell in the category of “Cases involving a student and a faculty or staff member.” PF
¶ 23. The “Cases involving a student and a faculty or staff member” section states, in relevant part,
“A student who reports an experience of sexual assault or other sexual misconduct is called the
‘complainant.’ The staff or faculty member who is accused of committing sexual assault or sexual
misconduct is called the ‘respondent.’” The College’s policy does not contemplate a student
respondent to a staff or faculty member complaint. PF ¶ 24. Never in Williams’ history has there
been a case like this one in which the College adjudicated a complaint against a student by an
employee in sexual misconduct complaint circumstances. PF ¶ 25; Dkt. 60 at 24-25.
Williams’ Retaliation Policy states, “Retaliation is harmful action taken against someone who has
filed a complaint, provided testimony, or in some way participated in a disciplinary investigation or
process…If the actions directed at that individual would deter a reasonable person in the same
circumstances from reporting misconduct, participating in a disciplinary process, or opposing
behavior in violation of our Code of Conduct, it is deemed retaliatory.” PF ¶ 26. Employee Smith’s
counter complaint was retaliatory and facilitated by the College. PF ¶ 87-93, 206-207.
The record is sufficient to support Plaintiff’s claim that Williams breached its contract and
violated John’s rights to due process and fundamental fairness by not following its Sexual
Misconduct Investigation and Adjudication Process in investigating and adjudicating employee
Smith’s retaliatory counter complaint against student John.
3. Williams’ Breach of Obligation to Refrain from Interfering in Panel’s Deliberations.
The College specifically requires that the decision about whether there has been a sexual misconduct
19
violation is made by the Panel. As Williams stated itself, “the determination whether conduct
violates the Code of Conduct is made by the “hearing panel, not the Dean of the College…” PF ¶
20. The College breached this provision which is intended to ensure the integrity of the Panel’s
deliberations and to keep those deliberations free from outside influences in at least three ways.
First, Sandstrom interfered with the Panel during its deliberations in the original adjudication so
that retaliation by Smith was off the table. PF ¶¶ 234-239. Second, Sandstrom rewrote the Panel’s
findings letter in Smith’s favor and removed the Panel’s conclusion that Smith had falsely accused
John of violating the honor code. PF ¶¶ 240-243. Third, non-panelist Haley was present for and
involved in the appeal deliberations. PF ¶¶ 292-293.
The record contains evidence that there were other efforts by the College and the investigator to
influence the Panel towards Smith’s direction. The investigator removed two key components from
the report shortly after communicating with the College: the footnote that stated, “The policy has
been effect (sic.) since October 2014. The policy in effect prior to October 2014 defined sexual
misconduct in substantially the same manner,” and the policy that stated, “All faculty and many
staff are potentially in a position of power with regard to students; hence, sexual relationships
between employees and students are in almost all cases inappropriate.” PF ¶¶ 176-177, 182-192.
The investigator did not follow the College’s policy that stated, “Final decisions about whom to talk
with and what to ask are made by the investigator” and instead had the College dictate whether she
would interview Elanie, the thirteenth of Smith’s eleven witnesses, even after the report was due. PF
¶¶ 141, 158-164, 180-182, 187-190, 194-197, 226.
violated John’s rights to due process and fundamental fairness by College officials’ external
influence on and interference with the Panel.
4. Williams’ Failure to Follow its Discipline Process Outline. Williams promised to begin
Panel selection within eleven (11) weeks from the time the complaint is made (March 13, 2016)
20
which would have been May 30, 2016 if the College was not deliberately indifferent to John’s
complaint and instead intent on expelling John. By specifying a timeframe, Williams was required
to complete the process within that time period. Boston College, supra. By inexcusably exceeding -
by three times - the eleven-week timeframe, Williams violated John’s rights to due process and
fundamental fairness as well as its contractual obligations. PF ¶¶ 17, 226.
violated John’s rights to due process and fundamental fairness by failing to follow its outline.
5. Williams’ Breach of Obligation to Provide a Prompt, Fair, and Impartial Investigation
and Resolution. In addition to the four-month delay; biased training and interference on the Panel;
biased investigation and report; and unfair policies and their biased, unfair, and discriminatory
application as discussed above, Williams was unfair to John in other ways. The same Panel at the
adjudication phase heard the case on appeal. Since appeal took place after this lawsuit was filed, the
Panel was far from impartial. PF ¶ 290. The Panel, presumed John to be guilty and Smith to be credible
despite all the evidence she was not. The Panel treated Smith’s claims as gospel, ignored John’s
exculpatory statements, and erroneously found John responsible for non-consensual sex based on what
it believed to be Smith’s credible report “that both the sexual position and roughness during the
incident in question were unusual, and clear indicators that [John] did not have consent.” To achieve
pre-determined guilt on appeal, the Panel ignored the fact that the policy it originally applied was “not
in effect at the time of the alleged misconduct.” PF ¶ 290. Using language remarkably similar to that
used by Bossong in her Rule 30(b)(6) deposition, the Panel claimed the “language had been changed
and added to and clarified but it didn't change the fundamentals of the policy itself” and that's how
they “felt [they] could be consistent between the two and have the same outcome.” PF ¶¶ 294-303.
The Panel was partial towards Smith, an employee, since it was not trained in employee policy.
The Panel could not reasonably adjudicate an employee when it was entirely unfamiliar with policies
21
applicable to Smith nor was it provided critical sections of the policy that could exculpate John. PF ¶¶
21-24, 139-142 177, 192.
The College’s procedures provide for the Panel to make a fair assessment of the evidence and to
decide whether these is a preponderance of the evidence that a violation of the sexual misconduct
policy occurred. Not only was the Panel unfair to rationalize the inconsistent and discredited
statements of employee Smith, but it was unfair for the Panel to find a preponderance of the evidence
against John when those inconsistent and discredited statements constituted the entirety of the
“evidence.” Williams was further unfair to John by not providing any opportunity for an “in person”
credibility assessment during the Panel’s adjudication. The Panel bases its decision solely on the
“report” rather than “live” testimony by students. PF ¶¶ 18, 143. The College attempted to resolve this
problem in its Admissions by claiming that the Panel makes credibility assessments during the
adjudication in various ways, including assessing
the inherent credibility of the respondent’s version of events, the credibility of that account
relative to internal consistencies or inconsistencies, the credibility of that account relative to
the accounts of the complainant or other witnesses, the credibility of that account relative to
the respondent’s motive to lie not to be truthful or forthcoming, and so on. PF ¶ 19.
However, not only does the record contain no evidence that the Panel made any of these assessments
in this case, but the Panelists testified that they were not trained to, nor did they, look for consistency
in the accuser’s statements. PF ¶¶ 112-113. The Panel simply ignored the inconsistencies of employee
Smith’s statements and facts that discredited them, such as witnesses’ denials of Smith’s claims
regarding the alleged non-consensual sex incident. PF ¶¶ 208(a)-(f).
“One of the most basic components of fairness is an unbiased and neutral fact-finder. Accused
students are entitled to have their cases decided on the merits…and not according to the application
of unfair generalizations or stereotypes because of social or other pressures to reach a certain result.”
Brandeis, 2016 WL 1274533, at *37. John’s case was not fairly and impartially decided on the merits
and the Panel made sure it would have the same outcome due to pressures to reach a certain result.
22
violated John’s rights to due process and fundamental fairness by failing to provide John a prompt,
fair, and impartial investigation and resolution in the underlying case.
6. Williams’ Breach of Obligation to Provide Access to Educational Records. The College’s
procedures state that students have
The right to inspect and review the student’s education records within 45 days after the
institution receives a request for access. Even though the law allows 45 days, at Williams
“requests are normally honored at the time they are submitted.” Students submit their requests
to the persons maintaining the records to which they wish access, e.g. the registrar, dean,
department chair, or other appropriate officials. PF ¶ 9.
On June 8, 2016, John requested transcripts of all the interviews from the investigation to ascertain
whom Kurker had interviewed and what they alleged. PF ¶ 167. Dean Bolton promised to obtain them
from Kurker for him. PF ¶ 169. After waiting 45 business days from the time of his request, John
asked again about the transcripts but Sandstrom denied the request. PF ¶ 171-172. On September 16,
2016, College Counsel told John’s attorney that if John “wish[ed] to make a formal FERPA request to
review his educational records, the college will of course respond appropriately, but in the meantime
the adjudication process will proceed in accordance with the college's usual procedures.” PF ¶ 173.
FERPA (Family Educational Rights and Privacy Act) provides students the right to inspect and review
their educational records.21 The College has no special “formal” FERPA request procedure and John’s
request was adequate under the College’s policy. On December 20, 2016, over six months after John’s
initial request and one month after the Panel rendered its decision, the College allowed John to review
and inspect his records after John’s attorney sent a letter to College Counsel explaining the College’s
non-compliance with its policies and FERPA. PF ¶ 174.
21
20 U.S.C. § 1232g; 34 CFR Part 99.
23
violated John’s rights to due process and fundamental fairness by failing to follow its policy regarding
students’ rights to access educational records.
7. Williams’ Breach of Obligation that there Be Sufficient Evidence (or any Evidence) to
Support the Panel’s Findings. The College’s standard of evidence for adjudicating sexual misconduct
policy violations is preponderance of the evidence. PF ¶ 9c. The report stated that “Smith did not
express to John that she did not want to be having sex.” PF ¶¶ 210, 259. If at any point it stopped being
consensual (which it did not) John could not have known as Smith did not express to him that she
did not want to be having sex. The Panel still found him responsible for misconduct for which there is
no evidence that he could have known he was committing. PF ¶ 269. As explained in §II(C)(5), it was
unfair for the Panel to find a preponderance of the evidence against John when those inconsistent and
discredited statements constituted the entirety of the “evidence.” The preponderance of the evidence
actually weighs against Smith and in John’s favor.
violated John’s rights to due process and fundamental fairness by finding John responsible for an
alleged incident for which there was woefully insufficient evidence.
8. Williams’ Breach of Obligation to Provide a Meaningful Right of Appeal. John was
unfairly prohibited from appealing on the basis that the Panel’s “decision was not supported by the
evidence, or that it was otherwise unfair, unwise, or simply wrong.” Brandeis, supra, at *36. The
right to appeal at Williams “is limited to (a) significant procedural lapses or (b) the appearance of
substantive new evidence not available at the time of the original decision. PF ¶ 27. Appeal hearings
at Williams are “granted only in cases where the procedural problems or new evidence are
considered substantive enough to have had significantly affected the outcome of the initial hearing.”
PF ¶ 28. Upon John’s request for an appeal on a number of procedural lapses, including by not
limited to application of an incorrect burden of proof, the College allowed John to appeal on the sole
24
basis “of the fact that the hearing panel applied a policy not in effect at the time of the alleged
misconduct.” PF ¶¶ 272, 276, 281, 284. John’s right to appeal was wrongfully circumscribed.
As discussed in §I(B)(4) and §II(C)(5), the appellate Panel rationalized an affirmation of its
original finding that the alleged incident was non-consensual. PF ¶¶ 290-303. In order “to be
consistent between the two and have the same outcome,” the Panel treated the pre-October 2014
sexual misconduct policy as the same as the post-October 2014 sexual misconduct policy. Id. The
Panel did this despite the fact that appeal hearings are “granted only in cases where the procedural
problems…are considered substantive enough to have had significantly affected the outcome of the
initial hearing” and the fact that the Panel was informed at its appeal hearing in a handout that the
Panel had “previously applied a policy not in effect at the time of the alleged misconduct.” PF ¶ 28,
290. No amount of post hoc rationalization can transform the farce of an appeal into something
resembling a fair process. The record is sufficient to support Plaintiff’s claim that Williams
breached its contract and violated John’s rights to due process and fundamental fairness by failing to
provide John a meaningful appeal.
D. Damages. The third element of a breach-of-contract claim, damages, is also satisfied here.
The measure of damages for a college’s breach of contract in a sexual assault case such as this one
includes 1) expenses incurred22; 2) lost earnings as a result of the proceedings23; 3) diminished
earning potential24; and 4) the reputational cost25. In general, the damages are designed to put the
injured student “in as good a position as he would have been if had the contract been performed.”26
22
Benning v. Corporation of Marlboro Coll., 2014 WL 3844217, at *3 (D. Vt. 2014).
23
Id.
24
Id.; Brandeis, 2016 WL 1274533, at *37 (college’s unlawful conduct will “permanently scar [student’s] career”).
25
Benning, 2014 WL 3844217, at *3; Brandeis, 2016 WL 1274533, at *32, 37 (“reputational injury” caused by
“stigmatization as a sex offender”; convicted student faces “substantial public condemnation and disgrace”).
26
Benning, 2014 WL 3844217, at *3 (quoting Restatement (Second) of Contracts § 344 (1979)). Massachusetts
follows this Restatement provision. e.g., Situation Mgt. Sys., Inc. v. Malouf, Inc., 724 N.E.2d 699, 704 (Mass. 2000).
25
John has suffered these elements of damages and will prove the amounts of each at trial. With
regard to each: 1) he has incurred expenses during, and, as a result of, his expulsion – including, but
not limited to, lost tuition for his four years enrolled at Williams in the amount of $224,000; 2) lost
present earnings from fall 2011 when John first enrolled at the College to the conclusion of the
proceedings estimated at $450,000; 3) diminished earning potential as a result of the denial of his
degree estimated at $4,464,000; 4) reputational injury estimated at $4,000,000. PF ¶ 309.
E. Conclusion. In order to make out a breach of contract claim under Massachusetts law, a
plaintiff must 1) demonstrate “existence of a valid and binding contract”; 2) breach of the contract by
defendant; and 3) damages suffered by plaintiff as a result of the breach. General Cas. Co., v. Five
Star Bldg. Corp., 2013 WL 5297095, at *8 (D. Mass. 2013).
“It is well-established that the student-college relationship is contractual in nature.” Brandeis,
supra, at *25 (citations omitted).27 In dismissing Plaintiff, the College, in effect, terminated the
contract for the student's alleged breach thereof and should, therefore, bear the burden of justifying
its action. A proper application of contract law would place the burden of proof on Williams.
Boothby v. Texon, Inc. et al., 414 Mass. 468 (1993). Williams unjustifiably violated its contractual
obligations, the guarantees of basic fairness, due process, and the implied covenant of good faith and
fair dealing in numerous ways as discussed above. John has suffered catastrophic harm as a result of
these violations. The record is sufficient to support Plaintiff’s case on all elements for a breach of
contract claim; therefore, the Court should allow summary judgment on this claim.
III. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS BREACH OF THE

IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING CLAIM (COUNT III).
A private school may not arbitrarily or capriciously dismiss a student or do so in bad faith.
Coveney, supra, at 19. In addition to its express provisions, the student-university contract has an
27
See also Bleiler, supra, at *14 n.7 (assuming, without deciding, existence of contract between college and
student.)
26
implied covenant of good faith and fair dealing. Bleiler, supra, at *17. “The purpose of the covenant is
to guarantee that the parties remain faithful to the intended and agreed expectations of the contract.” Id.
Evidence points to efforts by Williams for the Panel to come to the ultimate outcome it did on
appeal. In addition to solicitousness towards Smith and external influence exerted on the Panel
discussed above, Williams’ zeroed in on only a section of the policy - the discrete definition of the
key term consent - from the very beginning. Kurker’s footnote indicated that she actually had the
correct policy, citing the definition of non-consensual sex prior to October 2014, but it was deleted
and the report contained the later policy instead. PF ¶¶ 176, 183-192. Williams officials, including
College Counsel, were alerted to the problem of the incorrect policy in the report by John in his
September 24, 2016 Response, but the College took no steps to correct the error before the report
went to the Panel for deliberation. PF ¶¶ 211-215. When discussing John’s request for an appeal,
Sandstrom cited only the “definition of consent” as under consideration. PF ¶¶ 274-275 College
Counsel was heavily involved in the appeal. PF ¶¶ 282-283. Principles of fundamental fairness and
the implied covenant of good faith and fair dealing require that John have not been railroaded.
IV. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS CLAIM THAT

WILLIAMS COLLEGE VIOLATED ITS DUTY OF BASIC FAIRNESS (COUNT VI).
Courts examine the disciplinary process to “ensure that it was conducted with basic fairness.”
Schaer, supra, at 481, 735 N.E.2d 373, quoting from Cloud, supra, at 725. College disciplinary
proceedings “must be conducted with basic fairness.” Brandeis, 2016 WL 12745533 at *31 (citations
and internal quotation marks omitted). A college’s “obligation to provide basic fairness in its
proceedings is separate from and in addition to its contractual obligation to follow the rules it set forth
in the [student] Handbook.” Id. Whether a university has satisfied this obligation will depend on the
“magnitude of the alleged violation” and the “consequences of a finding of guilt.” Id. at *32. As Judge
Saylor held in Brandeis, the consequences of a finding of guilt – or “responsibility” – are “substantial
indeed” when the charge is an act of sexual violence, as it was in Brandeis, id., and as it is here.
27
The First Circuit ruling in Boston College provides further guidance on “basic fairness” (aka
“fundamental fairness”) in campus disciplinary proceedings involving a breach of contract claim
against a private college. The Court found that where, as here, a college promises to complete its
investigation within a specified time, due process and fundamental fairness, as well as its contractual
obligations, require the university to complete the process within that time period. Boston College,
supra, Slip. Op. at 24. The Court also concluded there were issues of fact whether the College
breached its contractual “obligation to provide a fundamentally fair disciplinary proceeding to Doe”
including, as here, external influence on the Panel to sway its decision. Id. at 36.
Here, Williams was fundamentally unfair to John in numerous ways including, but not limited to,
facts that closely parallel those in Boston College (where the 1st Circuit found that external influence
on the panel constituted fundamental unfairness), Brandeis (where panel disregarded the context of a
sexually active relationship and the raising of the allegations during later relationship deterioration
and appeal was unfairly limited), and Doe v. Brown University (where the panelists attempted to
contend that the later, more specific policy that it misapplied was essentially the same as the one in
effect at the time of the alleged incident, just as in this case). Case No. 1:16-cv-00017, R.I. Exhibit B.
The Court in Brown University did not accept the university’s post hoc rationalizations of its
determination and ordered the student to be reinstated. Each of Williams’ violations of Title IX, due
process, and its contract discussed above are also violations of the basic fairness duty; so Plaintiff re-
alleges and reasserts the facts set forth above as if fully set forth herein. A school’s departure from its
own hearing rules amounts to a fundamental fairness violation when the departure “results in a
procedure which itself impinges on due process rights.” Flaim v. Medical College, 418 F.3d at 640
(quoting Bates v. Sponberg, 547 F.2d 325, 329–30 (6th Cir. 1976)). The record contains support for
additional violations of John’s right to fundamental fairness as follows.
Williams deprived John of a face to face hearing by the Panel during the adjudication. Evaluation
of a person’s credibility cannot be had without some form of presence, some method of compelling a
28
witness “to stand face to face with the [Panel] in order that it may look at him, and judge by his
demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of
belief.” Doe v. Univ. of Cincinnati et al., No. 16-4693 (6th Cir. 2017) at 12 citing Mattox v. United
States, 156 U.S. 237, 242–43 (1895). Exhibit C.
What implicates fundamental fairness is not that Defendant introduced hearsay evidence against
John, but that the nature of that evidence posed a problem of credibility. See Flaim, supra, at 641.
Given the parties’ competing claims, lack of percipient witnesses, and lack of corroborative tangible
evidence to support Smith’s non-consensual sex allegation, the present case left the Panel with “a
choice between believing an accuser and an accused.” Id. Yet, the panel resolved this “problem of
credibility” without actually assessing Smith’s credibility. Id. (citation omitted).
Evaluation of a witness’s credibility cannot be had without some form of presence, some method
of compelling a witness “to stand face to face with the [Panel] in order that it may look at him, and
judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is
worthy of belief.” Mattox, supra, at 242–43. A face to face hearing guarantees that the trier of fact
makes this evaluation on both sides. Flaim, supra, at 641. A case that “resolve[s] itself into a
problem of credibility” cannot itself be resolved without a mutual test of credibility, at least not
where the stakes are this high. Id quoting Winnick v. Manning, 460 F.2d, 545, 550 (2d Cir. 1972).
Without any face to face credibility assessment by the Panel, the accused student’s “due process”
rights are violated in a fundamentally unfair manner.
Here, John’s interest is enormously substantial and the risk of erroneous deprivation under the
procedures Williams followed at his “hearing” was unacceptably high. Allowing accused students to
pose “face to face” questions to witnesses at sexual misconduct disciplinary hearings may impose
administrative burdens on Williams. Yet, on the facts here, that burden does not justify imposition of
severe discipline without any credibility assessment of the accuser and accused.
29
As in Brandeis and Boston College, Williams did not provide John meaningful notice of the
charges. In the notice letter from Camacho, John was informed that the College was investigating a
complaint by Smith that John “displayed abusive behavior towards [Smith] during the past two
years.” PF ¶ 90. Although Smith raised the allegation of non-consensual sex on May 20, 2016 at her
first interview by Kurker, John was not informed of this charge at his second interview June 1, 2016.
PF ¶¶ 144-146. Instead, Kurker informed him of the non-consensual sex allegation at the very end of
his third and final interview July 13, 2016. PF ¶ 151. John was rendered flabbergasted and dumb-
struck. PF ¶ 152. With adequate notice, the scope and content of the defense Plaintiff mounted to the
charges against him may have been different. Doe v. George Mason Univ., 149 F.Supp.3d at 617.
By stonewalling the request for transcripts of interviews, the College prevented John from
collecting evidence to prepare his defense. John had every right to investigate and secure the
statements of witnesses that could impact his case. Because John was not informed of who his
accuser’s witnesses were nor what they said until after the investigation was completed and the report
provided, he was denied any opportunity to cross-examine his accuser’s witnesses. PF ¶ 170.
Williams’ delay in allowing John access to his records deprived John of a fair process.
CONCLUSION
What is true in the Brandeis and Boston College cases is true here as well: “[T]his was not a
criminal proceeding, and [the College] is not a governmental entity. Nonetheless, the stakes were
very high. John was charged with “[a] serious offense[ ] that carr[ied] the potential for substantial
public condemnation and disgrace. He was required to defend himself in what was essentially an
inquisitorial proceeding that…failed to provide him with a fair and reasonable opportunity to be
informed of the charges and to present an adequate defense. He was ultimately found ‘responsible,’
and received a penalty that may permanently scar his life and career.”28
The Court should grant Plaintiff’s motion for partial summary judgment.
28
Brandeis, supra, at *37.
30
Date: September 30, 2018 Respectfully submitted,

JOHN DOE, PLAINTIFF
By: _____/s/ Stacey Elin Rossi_______

STACEY ELIN ROSSI (BBO# 681084)
ROSSI LAW FIRM
P.O. Box 442
Hoosick Falls, New York 12090
(413)248-7622
berkshirelegal@gmail.com
CERTIFICATE OF SERVICE
This document was served electronically upon all counsel of record by filing through the ECF system
on September 30, 2018.
_/s/ Stacey Elin Rossi_______
STACEY ELIN ROSSI
31

John Doe V Williams College Memo To Motion For Summary Judgment

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Case 3:16-cv-30184-MGM Document 123 Filed 09/30/18 Page 1 of 37

UNITED STATES DISTRICT COURT

MEMORANDUM OF LAW IN SUPPORT OF

STACEY ELIN ROSSI, BBO# 681084

Counsel for Plaintiff

September 30, 2018

STANDARD OF REVIEW ....................................................................................................... 1

KEY BACKGROUND FACTS ................................................................................................. 2

I. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS CLAIM

A. Applicable Legal and Regulatory Framework .................................................. 4

B. Williams College’s Violations of Title IX ........................................................ 6

1. Selective Enforcement ................................................................................... 6

2. Deliberate Indifference ................................................................................... 9

3. Erroneous Outcome ........................................................................................ 9

4. Other Title IX Violations ................................................................................ 11

II. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS BREACH

B. Williams College’s Flawed and Unfair Policies ................................................ 14

C. Williams College’s Breaches of Contract ......................................................... 17

1. Williams’ Failure to Follow its Own Sexual Misconduct Policy and

2. Williams Investigated John in Contravention of its Policies ...................... 18

3. Williams’ Breach of Obligation to Refrain from Interfering in

4. Williams’ Failure to Follow its Discipline Process Outline ........................ 20

TABLE OF CONTENTS (Cont.)

5. Williams’ Breach of Obligation to Provide a Prompt, Fair, and Impartial

6. Williams’ Breach of Obligation to Provide Access to Educational

7. Williams’ Breach of Obligation that there Be Sufficient Evidence

8. Williams’ Breach of Obligation to Provide a Meaningful Right of

III. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS BREACH

IV. JOHN DOE IS ENTITLED TO SUMMARY JUDGMENT ON HIS CLAIM

Bleiler v. Holy Cross,

Chrysler Corp. v. Brown,

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

Cloud v. Trs. of Bos. Univ.,

Davis v. Monroe County Bd. of Educ.,

Doe v. Boston College,

Doe v. Brandeis Univ.,

Doe v. Brown University,

Doe v. George Mason Univ.,

Doe v. Johnson & Wales University,

Doe v. Univ. of Cincinnati et al.,

Doe v. University of the South,

Doe v. Washington and Lee Univ.,

Doe v. Western New England University,

Fashion House, Inc. v. K Mart Corp.,

Fellheimer v. Middlebury Coll.,

Flaim v. Medical College,

Gebser v. Lago Vista Indep. Sch. Dist.,

Houlton Citizens’ Coal.,

Lyons v. Salve Regina Coll.,

Mallory v. Ohio Univ.,

RTR Techs., Inc. v. Helming,

Walker v. President & Fellows of Harv. Coll.,

Yusuf v. Vassar Coll.,

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681-1688 ............................ 4 - 13

34 C.F.R. § 106.4(a)-(c) ............................................................................................................... 5

34 C.F.R. § 106.8 (b) .................................................................................................................... 5

OCR Dear Colleague Letter, April 4, 2011,

Coveney v. Holy Cross Coll.,