Haidak v. UMass-Amherst

United States Court of Appeals
For the First Circuit
No. 18-1248
JAMES HAIDAK,
Plaintiff, Appellant,
v.
UNIVERSITY OF MASSACHUSETTS-AMHERST; ENKU GELAYE, individually
and in her official capacity as Dean of Students and Acting Vice
Chancellor of Student Affairs and Campus Life of the University
of Massachusetts at Amherst; DAVID VAILLANCOURT, individually
and in his official capacity as Senior Associate Dean of
Students of the University of Massachusetts at Amherst; ALLISON
BERGER, individually and in her official capacity as Associate
Dean of Students at University of Massachusetts at Amherst;
PATRICIA CARDOSO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
Luke Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on
brief, for appellant.
Monica R. Shah and Zalkind Duncan & Bernstein LLP on brief
* Hon.David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
for Foundation for Individual Rights in Education, amicus curiae.
Denise Barton, Senior Litigation Counsel, with whom Maura
Healy, Attorney General, Gerard Leone, Special Assistant Attorney
General, General Counsel, and University of Massachusetts, Office
of the General Counsel, were on brief, for appellees.
August 6, 2019
KAYATTA, Circuit Judge. In the wake of allegations that
student James Haidak assaulted a fellow student, the University of
Massachusetts at Amherst ("the university") suspended and then
expelled Haidak. Seeking compensatory damages, declaratory
relief, and an injunction preventing the university from enforcing
the expulsion, Haidak filed this suit against the university and
several of its officials. Following discovery, the district court
entered summary judgment in the defendants' favor. Haidak appealed
to this court. For the following reasons, we find that the
university violated Haidak's federal constitutional right to due
process in suspending him for five months without prior notice or
a fair hearing, but that it did not thereafter violate his rights
in expelling him after providing a fair expulsion hearing. We
therefore affirm the dismissal of Haidak's complaint in part and
otherwise vacate the judgment and remand for further proceedings.
I.
A.
We begin by describing the student disciplinary process
at the university, as specified in the version of the Code of
Student Conduct (CSC) in effect during the 2012–2013 academic year.
The CSC enumerated disciplinary and academic violations and
described the procedures the university employed to adjudicate
suspected violations. The CSC applied to conduct that occurred
both on campus and "in other locations when the behavior distinctly
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and directly affect[ed] the University community." The university
could file charges at the request of any student, faculty member,
or staff member, or the university could initiate charges itself.
The CSC called for the university to send an accused
student a Notice of Charge. The student then had at least forty-
eight hours to request a Disciplinary Conference to discuss the
alleged offense. If the Notice of Charge involved a serious
violation, and a university official determined that the accused
student was a threat to self, others, or property, the CSC allowed
university officials to impose an interim restriction such as a
suspension. Interim restrictions could be imposed without prior
notice, although "whenever reasonably possible" a meeting would
"be held prior to the imposition of interim restrictions" to inform
the student of the "basis of the allegation" and give the student
"the opportunity to present his or her own version of the facts."
Any violation of an interim restriction could lead to further
charges.
The CSC established a Hearing Board, made up of three to
five employees and students appointed by the Vice Chancellor for
Student Affairs. The Hearing Board adjudicated contested charges
in proceedings in which the university bore the burden of proof by
a preponderance of the evidence. The Hearing Board was not
required to "observe the rules of evidence observed by courts, and
[could] exclude unduly repetitious or irrelevant evidence." After
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a hearing, the board would create a written summary of testimony,
findings of fact, a decision, and a rationale, and then forward
this record to the Dean of Students. A designated university
official would then render a written decision and sanction. The
sanction was informed by, among other factors, the nature of the
offense and the student's disciplinary record.
A student could appeal the decision or the sanction to
the University Appeals Board. Possible grounds for appeal were:
(1) "procedural error or irregularity which materially affected
the decision"; (2) "[n]ew evidence not previously available which
would have materially affected the decision"; (3) lack of
"substantial evidence" supporting the decision; or (4) lack of
support for the sanction imposed. The Appeals Board would review
the record and make a recommendation to the Vice Chancellor for
Student Affairs, who would issue a final decision.
B.
Haidak and Lauren Gibney, both university students, were
in a tumultuous romantic relationship beginning in 2012. The
incident that triggered the initial charges against Haidak
occurred in the early morning hours of April 16, 2013, during a
semester when Haidak and Gibney were studying abroad in Barcelona.
Haidak and Gibney agree that, after the two got home from a club,
they got in an argument that turned physical. They dispute who
hit whom first. According to Gibney, Haidak put his hands around
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her neck, pushed her onto the bed, hurt her by squeezing various
pressure points, and grabbed her wrists and punched himself in the
face with her fists. According to Haidak, Gibney struck him, and
he only restrained her to prevent her from continuing to hit him,
slap him, and kick him in the groin.
Later that day, Gibney's mother called the university to
report that Haidak had physically assaulted her daughter. Gibney
followed up three days later by submitting a written report of the
incident. On April 17, Enku Galaye, the Dean of Students,
instructed Allison Berger, an Associate Dean of Students, to open
a CSC case against Haidak. On April 19, 2013, Berger issued Haidak
a Notice of Charge for violating two provisions of the CSC:
(1) Physical Assault1 and (2) Endangering Behavior to Persons or
Property.2 The notice included a no-contact order: "You are not
to have any direct or indirect contact with [Gibney]. This
includes, but is not limited to comments, words or gestures in
person, through postal mail, email, text, instant messaging,
social networking sites, or by having others . . . act on your
1 The definition of physical assault applied by the Hearing
Board without objection was "physical attack upon or physical
interference with a person that causes that person to suffer actual
physical injury." Haidak v. Univ. of Mass. at Amherst, 299 F.
Supp. 3d 242, 258 n.18 (D. Mass. 2018).
2 The 2012–2013 CSC prohibited "[e]ndangering the safety of
persons (self or others) or property, [and] any action that might
lead to loss of life or serious physical harm to others . . . ."
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behalf." Haidak met with Berger on May 1, 2013. He denied the
allegations and followed up that same day with an email containing
his version of the incident.
Despite the no-contact order, Haidak and Gibney resumed
contact almost immediately, both over the phone and in person. On
May 9, 2013, Gibney's mother discovered hundreds of calls and
thousands of text messages from Haidak on the family's phone bill.
When Gibney discussed these calls and texts with her mother, and
with Berger later that same day, she failed to disclose that the
contact had been largely welcomed and reciprocated. On May 28,
2013, Berger issued to Haidak a second Notice of Charge for
(1) Harassment3 and (2) Failure to Comply with the Direction of
University Officials.4 The second notice contained the same
explicit directive not to contact Gibney.
On June 3, 2013, Gibney and her mother met with Berger
to complain about continued communications from Haidak, and the
next day Gibney provided Berger a phone log that chronicled the
calls and texts she had received from Haidak: 311 calls and 1,749
text messages between April 24 and June 1. Thirty-one of these
3 Under the CSC, harassment meant "repeated use by one or more
students of a written, verbal, or electronic expression or a
physical act or gesture, or any combination thereof, directed at
a person that places that person to be [sic] in fear for his or
her physical safety."
4 The CSC prohibited "[f]ailure to comply with the directions
of University officials acting in performance of their duties."
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calls occurred between May 28 and June 1, in violation of the no-
contact order contained in the second Notice of Charge.5 Gibney
admitted to Berger that she "did unfortunately get comfortable
with talking and therefore would respond some and answer a few
calls." It later became clear that Gibney sent approximately seven
hundred text messages to Haidak during that six-week period, with
many messages after May 28.
The university took no official action between June 4
and June 17. On June 17, Berger issued a third Notice of Charge
for (1) Harassment and (2) Failure to Comply with the Direction of
University Officials. This time, the university also concluded,
without prior notice to Haidak, that Haidak's "behavior
represent[ed] a direct and imminent threat to [his] safety and the
safety of the University community" and warranted an immediate
suspension. The notice informed Haidak that he had the right to
a meeting to discuss the suspension.
Two days later, on June 19, Berger conducted a
telephonic disciplinary conference with Haidak and his father.
They agreed that Haidak would submit a response to the allegations
that he had violated the no-contact orders and harassed Gibney and
that Berger would then decide whether Haidak should remain
suspended pending his hearing for the assault charge.
5
Haidak maintains that he did not receive the second Notice
of Charge until June 1.
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During the June 19 call, Haidak also expressed interest
in filing charges against Gibney for her violence against him
during the Barcelona incident. Berger told Haidak that he was
free to file a charge, but that it was unlikely the university
would address any charges against Gibney until after the conclusion
of the disciplinary process against Haidak.
On July 8, 2013, Haidak sent Berger an email detailing
his side of the story and explaining that the communications in
violation of the no-contact orders were mutual and welcome.
Silence ensued (and the suspension continued) until August 5,
2013, when the university notified Haidak that the interim
suspension remained in place pending a hearing on the assault
charge, which had yet to be scheduled.
Over the summer of 2013, the university took no action
to schedule a hearing for Haidak. In fact, the university had no
procedures in place that would have allowed it to conduct a hearing
while student board members were away for summer break.
Recruitment of new student members began on August 30, 2013, with
applications due on September 13 and trainings running through
September 27.
On September 1, 2013, Haidak withdrew from the
university, concerned that "the lack of a timely Hearing Board
date . . . meant that the complaint against him would not be
addressed until several weeks into the new school year, at the
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earliest." Haidak v. Univ. of Mass. at Amherst, 299 F. Supp. 3d
242, 255 (D. Mass. 2018). Haidak got an apartment in Amherst and
he and Gibney maintained their off-and-on relationship.
Two incidents that took place in mid- to late-September
led Gibney to finally cut off communication with Haidak. First,
on September 14, Haidak -- intoxicated at the time -- called Gibney
for a ride. The two got into an argument, and Haidak threatened
to kill himself and then exited the moving car. Gibney called the
police, and her mother reported the incident to Berger the next
day.
Gibney and her mother met with Berger on September 19,
2013. Gibney admitted that she had continued to maintain a
relationship with Haidak, but said she no longer wanted contact
with him. Berger "explained that the no contact is in place for
both her & James." It is unclear whether this statement was a
reminder that the no-contact order applied to Gibney as well or
whether this was the first time Gibney received notice that she
was subject to the no-contact order. According to Berger, the
university generally advised the protected party not to engage in
contact, but that advice was "very different from a no contact
directive as issued in an order or a letter to a student as part
of the conduct process."
The second incident took place on September 26.
Apparently intoxicated, Haidak arrived at the bar where Gibney
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worked. He positioned himself uncomfortably close to Gibney until
security eventually removed him from the premises. The next day,
after notifying the university about the events of the previous
night, Gibney sought and obtained a state-court temporary
restraining order against Haidak.
On October 8, a state district court held an adversarial
hearing to consider Gibney's application to extend the restraining
order. Gibney first testified that she and Haidak broke up in
April when they left Barcelona, but then later acknowledged that
she and Haidak had been "speaking." When confronted with text
messages she sent to a friend about her relationship with Haidak,
Gibney further admitted that she had voluntarily interacted with
Haidak after the no-contact order had been issued, including by
having consensual sex with him as recently as mid-September. She
also admitted that she had struck and bitten Haidak during the
course of their relationship. The state court declined to extend
the restraining order.
The university offered Haidak three dates for the
hearing and Haidak selected November 22, 2013. Haidak knew that
he would not be present in Amherst that day and would have to
participate by phone. The university sent Haidak a handout on
hearing procedures. It described a new policy, instituted at the
beginning of the 2013–2014 school year, under which charged
students could no longer question other students directly, but
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instead could submit proposed questions for the Board to consider
posing to the witness. Haidak submitted thirty-six questions he
wanted the Hearing Board to ask Gibney. Patricia Cardoso, the
Assistant Dean of Students, pared this list down to sixteen.
In the weeks preceding the Hearing Board meeting, Haidak
and Cardoso also discussed the evidence Haidak wished to present
to the Hearing Board. Haidak sent Cardoso a transcript of the
state-court restraining order hearing, as well as a photograph of
a bite mark Gibney left on his arm in a previous altercation. He
also wanted his mother to testify about Gibney's prior acts of
violence against him. Cardoso did not permit the introduction of
any of these three pieces of evidence.
Four students and one staff chair sat on the Hearing
Board that considered Haidak's charges. Gibney attended in person
while Haidak phoned in. Haidak's attorney was present, though not
allowed to do more than observe the hearing and consult with Haidak
by phone. Both Haidak and Gibney had university-appointed advisors
present. Moving back and forth between Haidak and Gibney, the
Hearing Board ultimately examined each student three times. Of
the dozens of questions the Board asked Gibney, none were worded
identically to any on Haidak's pre-submitted list, but many were
designed to elicit the same information. The Board also examined
the photos and statements submitted by each party, as well as text
messages and phone logs.
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The Board ultimately found Haidak responsible for
assault and failure to comply with the no-contact orders, but not
for endangerment or harassment. The Board's report provided the
following rationale:
The board finds [Haidak] not responsible for
[endangering behavior to persons or property],
because his actions did not rise to a level
violating this policy. However, his behavior
was disproportionate to the actions he
attributed to Gibney, and the board believes
[Haidak] did cause physical harm to [Gibney's]
wrists and arms based on the narratives and
pictures presented in the hearing. As such,
we find [Haidak] responsible for [physical
assault].
Regarding the second and third incidents, the
board finds [Haidak] not responsible for
[harassment] in both cases, as the contact
after the April incident was mutual and non-
threatening according to both parties.
However, we find [Haidak] responsible for
[failure to comply] in both cases because he
still knowingly violated the directives of the
university, and failed to address any
reservations he might have had with the
appropriate official.
David Vaillancourt, the Associate Dean of Students, found the
outcome "consistent with the charges and based on substantial
evidence." After reviewing Haidak's disciplinary history, which
included two prior violations of the CSC,6 Vaillancourt decided on
6 In 2010, Haidak, while intoxicated, assaulted another
student and pushed and spat on the resident advisor who broke up
the altercation. Haidak was placed in protective custody because
of his "level of intoxication," the "anger [he] demonstrated," and
his "unwillingness to calm down." He faced CSC violations of
endangering behavior, harassment/physical assault, and breach of
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expulsion as the appropriate sanction. Haidak appealed to the
University Appeals Board, which recommended that the sanction be
upheld. Enku Gelaye, the Dean of Students and Acting Vice
Chancellor of Student Affairs, upheld the expulsion based on the
Appeals Board's recommendation.
Haidak then took the fight to federal court. He filed
a two-count complaint against the university and the officials
involved. The first count alleged due process and equal protection
violations, and the second count asserted a violation of Title IX,
20 U.S.C. § 1681. Both parties moved for summary judgment, and
the district court allowed the university's motion and denied
Haidak's. Haidak, 299 F. Supp. 3d at 271. Haidak appeals the
dismissal of his procedural due process and Title IX claims to
this court.
university policies. The university ultimately dropped the more
serious charges when Haidak agreed to be found responsible for
violating university policies. Haidak received the sanctions of
housing probation, anger management meetings, and alcohol
education workshops.
In 2012, the Amherst Police Department arrested Haidak and
charged him with nuisance, noisy and disorderly house, and
disturbing the peace. The university charged Haidak with CSC
violations of alcohol, endangering behavior, and violations of
local, state, or federal law. When Haidak agreed to be found
responsible for violating local, state, or federal law, the
university dropped the other two charges. Haidak received the
sanctions of a reprimand and the writing of a three-page paper on
alcohol and student disturbances. Vaillancourt was "disheartened"
by Haidak's reflection paper, which said that "[k]ids will party
no matter what. End of story . . . . Is this responsible?
Certainly not, but it is a simple truth."
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II.
We turn first to Haidak's appeal from the district
court's dismissal of his procedural due process challenges to his
suspension and expulsion. We review de novo a district court's
decision on summary judgment, "drawing all reasonable [factual]
inferences in favor of the non-moving party." Doe v. Trs. of Bos.
Coll., 892 F.3d 67, 79 (1st Cir. 2018) (quoting Roman Catholic
Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st
Cir. 2013)). Summary judgment is appropriate only when "there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
It has long been clear that, though states have broad
authority to establish and enforce codes of conduct in their
educational institutions, they must "recognize a student's
legitimate entitlement to a public education as a property interest
which is protected by the Due Process Clause and which may not be
taken away for misconduct without adherence to the minimum
procedures required by that Clause." Goss v. Lopez, 419 U.S. 565,
574 (1975); see also Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1st
Cir. 1988) ("[A] student facing expulsion or suspension from a
public educational institution is entitled to the protections of
due process.").
"Once it is determined that due process applies, the
question remains what process is due." Morrissey v. Brewer, 408
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U.S. 471, 481 (1972). To determine what process is
constitutionally due, we generally balance three factors:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the Government's interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Gorman,
837 F.2d at 12–16 (applying the Mathews test to determine whether
a university's disciplinary proceedings afforded due process).
The principal private and governmental interests at
stake in school disciplinary proceedings are reasonably well
acknowledged. Students have "paramount" interests "in completing
their education, as well as avoiding unfair or mistaken exclusion
from the educational environment, and the accompanying stigma."
Gorman, 837 F.2d at 14. The state university, in turn, has an
important interest in protecting itself and other students from
those whose behavior violates the basic values of the school, Goss,
419 U.S. at 580, 583, and in balancing the need for fair discipline
against the need to allocate resources toward "promot[ing] and
protect[ing] the primary function of institutions that exist to
provide education," Gorman, 837 F.2d at 14. In theory, both
parties also share an interest in speed and accuracy in the
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adjudication of charges. In this case, all of these interests
were implicated. Haidak faced a substantial suspension and
complete expulsion, while the university had probable cause to
believe that he had used undue physical force on another student
and continued to harass her.
"Notice and an opportunity to be heard have
traditionally and consistently been held to be the essential
requisites of procedural due process." Id. at 12. In the school
disciplinary context, the opportunity to be heard requires "some
kind of hearing." Goss, 419 U.S. at 579 (emphasis added). Here,
we consider the adequacy of two hearings: one in connection with
Haidak's suspension and the other in connection with his expulsion.
We address each in turn, beginning with the expulsion hearing.
A.
The expulsion hearing proceeded in accordance with
written procedures given to Haidak in advance. The hearing was
limited to charges of which Haidak received timely and detailed
notice. Haidak makes no claim that any of the adjudicators was
unfit for the job or should have been excluded for cause. Haidak
was afforded the rights to be present at the hearing, to hear all
evidence against him, to respond directly himself, and to call
witnesses. He was also allowed to have an attorney present and to
consult with that attorney. The burden of proof was placed on the
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charging party to a degree unchallenged by Haidak. The hearing
was recorded.
Haidak claims that the hearing was nevertheless
constitutionally flawed for two reasons: (1) some of his proffered
evidence was excluded; and (2) he was not allowed to cross-examine
Gibney. In assessing these claims, we do not ask whether "the
hearing mirrored a common law criminal trial," but simply whether
Haidak "had an opportunity to answer, explain, and defend."
Gorman, 837 F.2d at 14.
1.
Haidak argues first that the university unreasonably
impeded his opportunity to defend against the charges by excluding
certain evidence from the Hearing Board proceedings.
Specifically, Haidak challenges the university's refusal to allow
him to present: (1) a transcript of the state-court restraining
order hearing;7 and (2) evidence of Gibney's "propensity for
violence," consisting of a photograph of the bite mark Gibney left
on Haidak's arm in February 2013 and the testimony of Haidak's
mother about Gibney's history of physical aggression.
7
Cardoso maintains that, after she pointed out that the
transcript included information that would be damaging to Haidak,
and that Gibney would admit that some of their contact was
consensual, Haidak chose not to put the transcript before the
Board. Haidak disputes this account, and for purposes of this
appeal, we are required to credit Haidak's version of the facts.
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The excluded transcript revealed that, in state court,
Gibney first tried to minimize the extent of her welcomed contact
with Haidak that took place after the no-contact orders were
issued. When pressed, she admitted to additional consensual
interactions with Haidak. Had Gibney thereafter successfully
convinced the Hearing Board that there was no significant, post-
order consensual contact between the two of them, one might well
question the exclusion of the transcript. Gibney, though, admitted
to the Hearing Board the consensual nature of her post-order
contact with Haidak. And as the district court aptly noted, the
board acquitted Haidak of the harassment charge. Haidak, 299 F.
Supp. 3d at 266. So, Haidak is reduced to arguing that he
nevertheless should have been able to use the transcript to show
that, because Gibney tried to mislead the state court on what
transpired over the summer, she was also trying to mislead the
Hearing Board on what transpired in Barcelona.
As we noted earlier, the rules that govern a common law
trial need not govern a university disciplinary proceeding. See
Gorman, 837 F.2d at 14. But the rules of trial may serve as a
useful benchmark to guide our analysis. For example, even in a
full-blown federal trial, "extrinsic evidence is not admissible to
prove specific instances of a witness's conduct in order to attack
or support the witness's character for truthfulness." Fed. R.
Evid. 608(b). And extrinsic evidence aside, the court has ample
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discretion to exclude evidence "if its probative value is
substantially outweighed by a danger of . . . undue delay, wasting
time, or needlessly presenting cumulative evidence." Fed. R.
Evid. 403. Because a federal district court would have been well
within its discretion in excluding the transcript, it follows a
fortiori that an identical decision by the Hearing Board did not
violate Haidak's right to due process.
Similar reasoning applies to the exclusion of "evidence
of [Gibney's] propensity for violence," including the photograph
of the bite mark and the testimony by Haidak's mother. Even in a
federal criminal trial, "[e]vidence of a person's character or
character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character or
trait." Fed. R. Evid. 404(a)(1). An exception to this general
rule allows a defendant in a criminal case to "offer evidence of
an alleged victim's pertinent trait," such as physical
aggressiveness. Fed. R. Evid. 404(a)(2). However, such evidence
may only be introduced in the form of testimony about the alleged
victim's reputation or by testimony in the form of an opinion.
Fed. R. Evid. 405(a). Testimony by Haidak's mother that Gibney
had previously struck Haidak would have exceeded this narrow
exception. And in any event, the evidence was redundant. Haidak
testified -- and Gibney did not dispute -- that "a lot of these
instances occurred, these sort of instances where she would become
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violent when she was drunk." There was nothing unfair -- much
less constitutionally unfair -- about the Board's decision to keep
its focus on the events at issue.
2.
Next, Haidak argues that the Hearing Board violated his
right to procedural due process by failing to accord him the
opportunity to interrogate Gibney directly. In Gorman v.
University of Rhode Island, a student challenged the
constitutionality of university disciplinary proceedings that
resulted in his suspension. 837 F.2d at 9. Among other things,
Gorman contended that the university deprived him of a
constitutional right to cross-examine members of the university
Hearing Board on his allegations of bias. Id. at 16. We concluded
that the University of Rhode Island did not violate Gorman's
procedural due process rights, noting that "the right to unlimited
cross-examination has not been deemed an essential requirement of
due process in school disciplinary cases." Id. (emphasis added).
Haidak urges us to hold that, while unlimited cross-examination
may not be required, due process demands that the accused be
allowed to question opposing witnesses directly whenever a
university disciplinary proceeding turns on the witnesses'
credibility.
In adjudicating Haidak's case, the university employed
a non-adversarial model of truth seeking. It was the university's
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responsibility, rather than the parties', to investigate the facts
and develop the arguments for and against a finding of
responsibility. Neither party made opening or closing arguments
to the board. Though both parties submitted written statements of
fact, neither submitted brief-like materials that argued for or
against a finding of responsibility. Neither party questioned
witnesses.
Such a system of adjudication can fairly be called
inquisitorial. See Inquisitorial System, Black's Law Dictionary
(11th ed. 2019) (defining "inquisitorial system" as a "system of
proof-taking used in civil law, whereby the judge conducts the
trial, determines what questions to ask, and defines the scope and
the extent of the inquiry"). No doubt, this model of justice is
not the one our founders chose for criminal trials. U.S. Const.
amend. VI ("In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him
. . . ."); see also Crawford v. Washington, 541 U.S. 36, 61 (2004)
(The Confrontation Clause "commands, not that evidence be
reliable, but that reliability be assessed in a particular manner:
by testing in the crucible of cross-examination."). But this is
not to say that the inquisitorial model is constitutionally
inadequate in all settings. In fact, we consider the inquisitorial
model fair enough for critical administrative decisions like
whether to award or terminate disability benefits. See Sims v.
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Apfel, 530 U.S. 103, 110–11 (2000) (explaining that Social Security
proceedings are inquisitorial rather than adversarial).
We are aware of no data proving which form of inquiry
produces the more accurate result in the school disciplinary
setting. Considerable anecdotal experience suggests that cross-
examination in the hands of an experienced trial lawyer is an
effective tool. See California v. Green, 399 U.S. 149, 158 (1970)
(noting that cross-examination is "the greatest legal engine ever
invented for the discovery of truth" (internal quotation marks
omitted)). One must keep in mind, however, that courts generally
find that an accused student has no right to legal counsel in
school disciplinary proceedings. See Gorman 837 F.2d at 16. Nor
does Haidak assert such a right in this case. So, his position
would seem to be that the accused student must be allowed to
question opposing witnesses himself.
As a general rule, we disagree, primarily because we
doubt that student-conducted cross-examination would so increase
the probative value of hearings and decrease the "risk of erroneous
deprivation," Mathews, 424 U.S. at 335, that it is constitutionally
required in this setting. In the hands of a relative tyro, cross-
examination can devolve into more of a debate. And when the
questioner and witness are the accused and the accuser, schools
may reasonably fear that student-conducted cross-examination will
lead to displays of acrimony or worse.
- 23 -
This is not to say that a university can fairly
adjudicate a serious disciplinary charge without any mechanism for
confronting the complaining witness and probing his or her account.
Rather, we are simply not convinced that the person doing the
confronting must be the accused student or that student's
representative. In this respect, we agree with a position taken
by the Foundation for Individual Rights in Education, as amicus in
support of the appellant -- that due process in the university
disciplinary setting requires "some opportunity for real-time
cross-examination, even if only through a hearing panel."
Arguing that due process requires more than inquisition
of the complaining witness by the factfinder alone, Haidak points
to the Sixth Circuit's decision in Doe v. Baum, 903 F.3d 575 (6th
Cir. 2018). In that case, a female student alleged that a male
student had sex with her while she was so drunk that she could not
consent. Id. at 579. The accused claimed that his accuser did
not appear drunk and in fact expressly consented. Id. A school
investigator found the competing versions in equipoise. Id. at
580. A university board then ruled against the accused student,
with no testimonial hearing at all, because "Roe's description of
events was 'more credible' than Doe's, and Roe's witnesses were
more persuasive." Id. In a holding that we could easily join,
the court found the complete absence of any examination before the
factfinder to be procedurally deficient. Id. at 581. But the
- 24 -
court took the conclusion one step further than we care to go,
announcing a categorical rule that the state school had to provide
for cross-examination by the accused or his representative in all
cases turning on credibility determinations. Id.
We stop short of adopting that latter pronouncement
because we have no reason to believe that questioning of a
complaining witness by a neutral party is so fundamentally flawed
as to create a categorically unacceptable risk of erroneous
deprivation. We also take seriously the admonition that student
disciplinary proceedings need not mirror common law trials. See
Goss, 419 U.S. at 583 ("To impose . . . even truncated trial-type
procedures might well overwhelm administrative facilities in many
places and, by diverting resources, cost more than it would save
in educational effectiveness."); Gorman, 837 F.2d at 16 ("A major
purpose of the administrative process, and the administrative
hearing, is to avoid the formalistic adversary mode of
procedure."). If we were to insist on a right to party-conducted
cross-examination, it would be a short slide to insist on the
participation of counsel able to conduct such examination, and at
that point the mandated mimicry of a jury-waived trial would be
near complete.
That still leaves us with the question of whether, in
this case, the university's inquisitorial approach to ferreting
out the truth was so inadequate that it violated Haidak's
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procedural due process rights. When a school reserves to itself
the right to examine the witnesses, it also assumes for itself the
responsibility to conduct reasonably adequate questioning. A
school cannot both tell the student to forgo direct inquiry and
then fail to reasonably probe the testimony tendered against that
student.
Whether the university in this case fulfilled that
responsibility is a close question. The university's manual for
its Hearing Board implied that the Board should choose student
comfort at the expense of serious examination. It called for the
Board to start by calming the student with "easy" questions, to
avoid leading questions, and to beware of the "danger of pursuing
a line of questions" because "it can be very adversarial." Efforts
of this type to put a witness "at ease," when applied only to a
complaining witness, helped render potentially unfair the
proceedings in another recent case we decided. See Trs. of Bos.
Coll., 892 F.3d at 87. Here, though, at least the manual advised
the Board to use this ill-suited kid-gloves approach for witnesses
on both sides of the dispute.
Even more concerning, when Haidak proposed a list of
thirty-six questions that he wanted the Board to ask Gibney,
Cardoso struck twenty questions from the list before submitting it
to the Hearing Board, thereby preventing the Board from knowing
Haidak's proposed questions and deciding whether to ask them as it
- 26 -
saw the testimony play out. In this manner, the university created
the possibility that nobody would effectively confront Gibney's
accusations.
As it turned out, the members of the Board nevertheless
managed to avoid the pitfalls created by the university. The Board
questioned Gibney at length on the matters central to the charges.
It probed for detail8 and required her to clarify ambiguities in
her responses.9 It inquired into her level of intoxication, asking
for an estimate of the number of drinks she had consumed and if it
was true that she had fallen down earlier in the night. By
alternating between questioning Haidak and Gibney, ultimately
examining each student three times, it engaged in an iterative
process in which its questioning of Gibney was informed in real
time by Haidak's testimony as the proceedings unfolded. In so
doing, it extracted Gibney's admission that she continued a
8 For example, observing that Gibney's description of the
incident "went a little fast," the Board asked, "Would you mind
restating . . . how you got from the main room where you were
arguing to the bedroom? Did you go there of your own accord? Were
you pushed or pulled? You said he took you by the neck to there,
but could you be more specific?".
9 For example, a Board member asked whether Gibney and Haidak
"[had] any contact that could be considered like a romantic
relationship as a continuation from [their] prior relationship
during the time when the no contact order was in place." When
Gibney answered with a simple "yes," the Board member asked her to
"explain what you mean by yes." In response, Gibney stated,
"[w]hen he came to Amherst we did have romantic, physical contact."
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"romantic" relationship with Haidak after Barcelona and during the
period covered by the no-contact orders.
In arguing that the Board's questioning of Gibney was
nevertheless constitutionally inadequate, Haidak points to four
areas of inquiry that he claims the Board improperly failed to
pursue. For two of these -- Gibney's "propensity for violence"
and her "untruthfulness at the restraining order proceeding" -- we
rest on our discussion above. As to the third area of inquiry,
"the post-Barcelona steps [Gibney] took to conceal her
relationship with Haidak from her parents" and "whether [Gibney]
lied to her friends about resuming contact with Haidak," we fail
to see much, if any, probative value in such inquiries. Gibney
conceded that she and Haidak had consensual contact, including
physical contact, while the no-contact orders were in place. The
Board also absolved Haidak of the harassment charge, and Gibney's
desire to hide the ongoing relationship from her parents and
friends seems irrelevant to whether Haidak's use of force was
justified. Finally, Haidak takes issue with the Board's decision
not to inquire into whether Gibney "blamed her parents for the
disciplinary proceedings" or "expressed a desire that all charges
be 'dropped.'" But it is unclear what relevance Gibney's feelings
about the disciplinary process have to whether Haidak's use of
force in Barcelona was disproportionate.
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The Board's ultimate findings also reflect that its
probing exposed weaknesses in the charges against Haidak. The
Board decided that Haidak was not responsible for Endangering
Behavior, the most serious charge he faced, because "his actions
did not rise to a level violating this policy." It similarly found
him not responsible for either harassment charge because "the
contact after the April incident was mutual and non-threatening."
It found Haidak responsible for violating the no-contact orders,
which he admitted, and assault, but only because "his behavior was
disproportionate to the actions he attributed" to Gibney. This
finding seems reasonable, and was very likely the product of a
judgment about the credibility of the two protagonists, the bruises
on Gibney's wrists, and the undisputed fact that she immediately
reported to her mother that Haidak had assaulted her. Moreover,
Gibney testified in person, while Haidak chose to appear by phone,
a decision that possibly created a greater disadvantage than that
posed by any of the challenged procedures.
All in all, the Board managed to conduct a hearing
reasonably calculated to get to the truth by allowing Haidak to be
heard after Gibney testified and by examining Gibney in a manner
reasonably calculated to expose any relevant flaws in her claims.
We therefore disagree with Haidak that the expulsion hearing did
not provide due process.
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B.
We turn next to the process surrounding Haidak's
suspension pending the expulsion hearing. To recap, on June 3
and 4, Gibney and her mother presented Berger with evidence that
Haidak had called Gibney thirty-one times after the May 28
no-contact order was issued. Thirteen days later, and without
prior notice, Berger suspended Haidak indefinitely. Two days after
that, Berger spoke on the phone with Haidak and his father and
agreed to review Haidak's written response to the charges. As
best the record reflects, Berger did not thereafter confront Gibney
with those responses, instead letting the suspension stand.
Because the university failed to schedule an expulsion hearing
before November, the suspension lasted five months.
While it lasts, a suspension more or less deprives a
student of all the benefits of being enrolled at a university.
The Supreme Court has held that a deprivation of this sort requires
notice and a hearing. See Goss 419 U.S. at 579 ("At the very
minimum . . . students facing suspension and the consequent
interference with a protected property interest must be given some
kind of notice and afforded some kind of hearing."). What type of
notice and what type of hearing turn on the interests implicated
in each particular case. See Doe v. Univ. of Cincinnati, 872 F.3d
393, 400 (6th Cir. 2017) ("The more serious the deprivation, the
more demanding the process.").
- 30 -
As a general rule, both notice and a hearing should
precede a suspension. Goss, 419 U.S. at 582; Gorman, 837 F.2d at
12-13. On occasion, though, exigencies may properly provide an
exception to this general rule: "Students whose presence poses a
continuing danger to persons or property or an ongoing threat of
disrupting the academic process may be immediately removed from
school. In such cases, the necessary notice and rudimentary
hearing should follow as soon as practicable . . . ." Goss, 419
U.S. at 582–83; see also Elena v. Mun. of San Juan, 677 F.3d 1, 9
(1st Cir. 2012) ("Although prior notice is generally required for
a governmental deprivation of property to comport with procedural
due process, the Supreme Court has held that there is an exception
for cases 'where a State must act quickly, or where it would be
impractical to provide predeprivation process.'" (quoting Gilbert
v. Homar, 520 U.S. 924, 930 (1997))).
Here, however, the record belies any claim of exigency.
The university waited thirteen days after learning about the
continued contact to issue the suspension order. And the
university offers no evidence suggesting that it was infeasible to
provide some type of process during the available thirteen days
before it imposed a suspension.
The university did allow Haidak to respond to the charges
both orally and in writing fifteen days after Gibney complained
and two days after the suspension took effect. Given the apparent
- 31 -
absence of any perceived exigency, that process came too late to
serve as an opportunity to be heard before the suspension began.
And it was, in any event, insufficient to provide, by itself, due
process in connection with a five-month suspension that ran through
most of a semester. Importantly, the university knew that on the
key issue justifying a lengthy suspension -- whether the continued
communication represented a threat to the university community --
Haidak directly disputed Gibney's account in a manner that could
be verified. The university could easily have confronted Gibney
with the information provided by Haidak, and even a rudimentary
hearing would have revealed that Haidak's contact with Gibney was
welcomed and reciprocated. When a state university faces no real
exigency and certainly when it seeks to continue a suspension for
a lengthy period, due process requires "something more than an
informal interview with an administrative authority of the
college." Gorman, 837 F.2d at 14 (quoting Dixon v. Ala. State Bd.
of Educ., 294 F.2d 150, 158 (5th Cir. 1961)). But "an informal
interview" is all Haidak received.
Certainly, a university may proceed in stages. A
university can first ask a student to respond to the charge. And
if the response offers no plausible defense, then the need for
further inquiry diminishes, much like the manner in which a guilty
plea eliminates the need for further proceedings. But when the
response leaves the matter turning on credibility, the interests
- 32 -
at stake are as substantial as those implicated by an extended
suspension, and no perceived exigency exists, a university must do
more than presume one version to be correct.
The university does argue that, given Gibney's
accusations and Haidak's response, it had no need to conduct a
more robust hearing. The university points to Haidak's admission
that he had repeatedly contacted Gibney even after the no-contact
orders took effect. But, had university officials conducted a
more substantial hearing before suspending Haidak, they would
likely have discovered that they misunderstood the nature of the
contact between him and Gibney. And as university counsel
forthrightly conceded at oral argument, the record does not compel
a finding that the university would have suspended Haidak had it
known that the communications were welcomed and reciprocated by
Gibney. After all, the Board ultimately concluded that the contact
between Haidak and Gibney was "non-threatening," undermining the
university's contention that the illicit contact was a threat that
warranted immediate suspension. In sum, the suspension decision
was not a slam dunk, and there was ample time to provide prior
notice and a meaningful opportunity to be heard. On such a record,
the university violated Haidak's due process rights.
It is true, as the university argues, that the failure
to provide a pre-suspension hearing ultimately caused no actual
injury, because the final penalty of expulsion was imposed in
- 33 -
accordance with due process. But the Supreme Court has ruled that
a violation of procedural due process rights, even in the absence
of actual injury, justifies a finding in favor of the student and
an award of nominal damages. See Carey v. Piphus, 435 U.S. 247,
266 (1978); see also Farrar v. Hobby, 506 U.S. 103, 112 (1992)
("Carey obligates a court to award nominal damages when a plaintiff
establishes the violation of his right to procedural due process
but cannot prove actual injury."); Ford v. Bender, 768 F.3d 15, 24
(1st Cir. 2014) ("The merits of the deprivation itself are
immaterial to the procedural due process analysis.").10
C.
Haidak also tries to advance an argument that the delay
in convening his expulsion hearing was itself a violation of due
process. To a large extent, this argument is simply the flipside
of the argument that we have already accepted, i.e., that he should
not have been suspended for so long without a hearing. Haidak
also seems to suggest that the delay independently harmed him
because the version of the university's hearing procedures in
effect prior to the fall of 2013 allowed for student-conducted
cross-examination. But Haidak develops no argument that due
process requires the application of whatever procedural rules were
in effect at the time of the offense or charge, so we deem any
10
We need not consider prior to remand how the district court
should handle a motion for fees should one be filed.
- 34 -
such argument waived. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").
III.
Finally, Haidak challenges the district court's summary
judgment dismissal of his Title IX claim. Title IX prohibits
federally funded universities from discriminating against students
on the basis of sex. 20 U.S.C. § 1681(a). Below, Haidak pursued
both "erroneous outcome" and "selective enforcement" theories of
liability. See Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir.
1994) (explaining that attacks against a university disciplinary
proceeding on grounds of gender bias generally fall within these
two categories).11 On appeal, Haidak presses only the selective
enforcement theory. To succeed on such a claim, Haidak must show
that "the severity of the penalty and/or the decision to initiate
the proceeding was affected by the student's gender." Id. at 715.
11 Both parties agree on the theories of liability outlined
in Yusuf. We have, in the past, applied the Yusuf framework to
Title IX challenges based on disciplinary proceedings, though we
have held off on deciding whether, as in the Second Circuit, "the
temporary presumption afforded to plaintiffs in employment
discrimination cases under Title VII applies to sex discrimination
plaintiffs under Title IX as well." Trs. of Bos. Coll., 892 F.3d
at 90 n.13 (quoting Doe v. Columbia Univ., 831 F.3d 46, 56 (2d
Cir. 2016)).
- 35 -
Haidak alleges that both the decision to initiate charges and the
penalty imposed were affected by his sex.
Haidak's claim that the decision to initiate charges was
affected by his sex rests on the fact that the university filed
charges against him when Gibney accused him of misconduct, yet
filed no charges against her when he accused her of misconduct.
But the two were not similarly situated as complainants. Gibney
and her mother affirmatively contacted the university to report
her charges and to seek relief. A reasonable administrator would
have construed that contact as a request to pursue the matter so
as to be able to provide relief. Haidak's accusations came second
in time and arose only defensively. And when expressly told that
he could initiate a charge under the CSC, he demurred.
As the university concedes, it still could have
initiated a charge against Gibney on its own initiative. The CSC
provided that the university could file appropriate charges
against a student "[a]t the request of any student, faculty or
staff member or independently." But we see no basis in the CSC or
in the record for concluding that the university always had to
initiate a charge even when the student declined an invitation to
do so.
More importantly, showing that the university had an
"unwritten, race-to-the-dean's-office policy," as Haidak alleges,
is not enough to support an inference of discrimination on the
- 36 -
basis of sex. To make out a claim under Title IX, Haidak must
show that "gender bias was a motivating factor" in the disciplinary
process. Trs. of Bos. Coll., 892 F.3d 67, 90 (1st Cir. 2018)
(quoting Yusuf, 35 F.3d at 715). At most, Haidak has alleged that
the university pursued Gibney's case instead of his because Gibney
made the allegation first -- not because Haidak's sex influenced
the university.
We turn next to Haidak's argument that the testimony of
his expert witness justifies a trial on his claim that he was
penalized more severely on account of his sex. Haidak's expert
analyzed university data regarding assault charges occurring
between 2010 and 2015. The data set included the sex of the
complaining and charged students, the charges, whether there was
a finding of responsibility, and what sanction followed. It did
not include the students' disciplinary records or any information
about the charged conduct, including whether injuries resulted.
The data revealed that ninety-three male students and twenty-six
female students were found responsible for assault, and of these,
thirteen students were expelled, all of whom were male.
We have never recognized a private right of action for
disparate-impact discrimination under Title IX. See Alexander v.
Sandoval, 532 U.S. 275, 283 (2001) (holding that there is no
private right of action for disparate-impact discrimination under
the similarly worded Title VI); see also Cannon v. Univ. of
- 37 -
Chicago, 441 U.S. 677, 694–95 (1979) (noting that Congress
patterned Title IX after Title VI and intended to create the same
remedies under both statutes). Haidak, though, correctly argues
that proper evidence of a statistical disparity may generate an
inference of intentional discrimination. Cohen v. Brown Univ.,
101 F.3d 155, 170–71 (1st Cir. 1996) ("Title IX, like other anti-
discrimination schemes, permits an inference that a significant
gender-based statistical disparity may indicate the existence of
discrimination.").
For a statistical disparity to support an inference of
sex discrimination, the evidence must "tend to show that there was
a causal connection between the outcome of [the] disciplinary
proceedings and gender bias." Trs. of Bos. Coll., 892 F.3d at 91.
Here, although the data show that male students were more often
accused of and more often expelled for assault, the data fail to
address an array of alternative explanations. These trends could
reflect, for example, that male students on average had lengthier
disciplinary histories or committed more serious assaults, or that
assaults committed by women were reported less often, rather than
that the university discriminated against male students. Haidak's
expert acknowledged these weaknesses, stating in his deposition,
"I'm not saying that there is proof here of discrimination, or
even bias in sort of a colloquial sense."
- 38 -
Haidak half-heartedly counters that the district court
prevented him from obtaining the kind of detailed data that would
have allowed his expert to draw more robust conclusions. But
Haidak's brief presses no appeal to the discovery orders that
limited the data available to his expert and instead asserts that
"the statistical universe upon which [the expert] relied was
complete and highly relevant."
Even if the foregoing weaknesses might not preclude the
use of the expert's analysis in a disparate-impact case -- an issue
we need not decide -- its relevance in proving intentional
discrimination is further undercut by the absence of any evidence
that the person who selected Haidak's penalty, Vaillancourt, was
also the person who selected the penalties in the assault cases
examined by Haidak's expert. Even if one could infer from the
data that another decision maker issued higher penalties based on
sex, that inference says little about whether the decision maker
in this case brought to bear any bias on the basis of sex.
The university also provided a convincing, sex-neutral
explanation for the sanction of expulsion:
Despite the [two] earlier attempts by the
University to redirect [Haidak's] decision-
making and behavior, he had not altered his
behavior. Further, in light of his flagrant
violation of the university's [two] no contact
orders, it was clear he would not comply with
any future directives from the university to
ensure the safety of himself, [Gibney], or
others.
- 39 -
In light of this highly plausible explanation, and the weakness of
the statistical evidence, we agree with the district court that no
reasonable jury could infer from the expert's report that the
decision to expel Haidak was motivated by his sex in violation of
Title IX.
IV.
The university argues that, should we find that the
district court erred, in whole or in part, in granting its motion
for summary judgment, we should dismiss the claims for monetary
relief against the university officials as barred by sovereign
immunity under the Eleventh Amendment. Haidak concedes that
sovereign immunity bars his claims for monetary damages against
the university officials acting in their official capacities, but
notes that he also sued the university officials in their
individual capacities. The Eleventh Amendment does not bar suits
for damages against state officials sued in their individual
capacities, though such officials are usually protected by common
law immunity. See Hafer v. Melo, 502 U.S. 21, 26 (1991). We
therefore affirm on alternate grounds the dismissal of the
section 1983 claims for damages, but only against the university
employees acting in their official capacities.
In the alternative, the university argues that -- even
if sovereign immunity does not bar the claims against the officials
- 40 -
in their individual capacities -- the university officials are
protected by qualified immunity. However, the university failed
to invoke qualified immunity below, and this defense is therefore
waived. See Guzmán-Rivera v. Rivera-Cruz, 98 F.3d 664, 667 (1st
Cir. 1996) ("Since immunity must be affirmatively pleaded, it
follows that failure to do so can work a waiver of the defense."
(quoting Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir.
1986))).
V.
For the foregoing reasons, we affirm the district
court's dismissal of Haidak's section 1983 claims challenging the
constitutional adequacy of his expulsion hearing; we affirm on
alternate grounds the district court's dismissal of his
section 1983 claims for money damages against the university
officials acting in their official capacities; and we affirm the
dismissal of his Title IX claim; but we vacate for the entry of
nominal monetary damages the dismissal of Haidak's section 1983
claims challenging the constitutionality of the manner in which
the university suspended him for five months without prior notice
or an adequate hearing. We remand for further proceedings
consistent with this opinion. No costs are awarded to either
party.
- 41 -