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Haidak v. University of Massachusetts-Amherst

United States Court of Appeals, First Circuit

August 6, 2019

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]

          Luke Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on brief, for appellant.

          Monica R. Shah and Zalkind Duncan & Bernstein LLP on brief 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.

          Before Kayatta, Circuit Judge, Souter, Associate Justice, [*] and Selya, Circuit Judge.

          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 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 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 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 Assault[1] 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 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) Harassment[3] 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 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.

         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 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 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 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.

         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 ...

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