365 F.Supp.2d 6 (2005) | Cited 8 times | D. Maine | April 8, 2005


On September 25, 2002, following a disciplinary hearing, theStudent Conduct Code Committee (Hearing Committee) of theUniversity of Maine found that the Plaintiffs, Stefan Gomes andParis Minor, undergraduates at the University, had sexuallyassaulted a female student and, thereby, violated the StudentConduct Code. The University suspended them for one year. Afterthe Plaintiffs' administrative appeals failed, they turned tothis Court for relief, asserting the disciplinary process wassubstantially flawed. Although the University's disciplinaryprocess was not ideal and could have been better, this Courtconcludes it was fundamentally fair and accorded the Plaintiffsthe essential elements of due process. This Court GRANTS theDefendants' Motion for Summary Judgment.


The Plaintiffs filed a cause of action against the Universityof Maine System, the Trustees of the University of Maine System,and six individuals, Peter S. Hoff, Robert Kennedy,1Elizabeth J. Allan, David Fiacco, Robert Dana, and Robert Whelan,individually and in their respective official capacities at theUniversity. The University subjected the Plaintiffs to disciplinefor allegedly committing a sexual assault on June 10, 2002. TheComplaint (Docket # 1) contained ten counts, alleging theDefendants committed a number of constitutional, contractual, andtort violations in disciplining the Plaintiffs. On February 23,2004, this Court granted the Defendants' Motion to Dismiss CountsI, IV and V. Gomes v. Univ. of Maine Sys., 304 F. Supp. 2d 117(D. Me. 2004). This Court also granted the Defendants' Motion toDismiss Count II to the extent it claimed violations of substantive orprocedural due process relating to territorial limitations ofUniversity jurisdiction. Id. On all other counts, this Courtdenied the Defendants' Motion to Dismiss. Id. The Defendantshave now moved for summary judgment on the remainingcounts.2


A. The Allegation

Following an incident on June 10, 2002, a female Universitystudent (Complainant) accused two male University students ofsexually assaulting her. Consolidated Statement of Material Facts(SMF)3 (Docket # 95) ¶¶ 1, 2. The two male students,former members of the University football team, are thePlaintiffs in this case.4 Am. Compl. (Docket # 42) ¶¶ 1,2.

B. The Student Conduct Code: An Overview

The University has adopted a Student Conduct Code (Code), whichsets forth the procedures it follows upon notice of a potentialviolation.5 Under the Code, the University designates acampus official, denominated the "Officer," to investigatealleged violations of the Code, to notify the respondent of hisconclusions, and, if appropriate, to impose sanctions. Code §§V.A., B. If the Officer concludes there is doubt whether aviolation occurred or what sanction should be imposed, he mayrefer the matter directly to the Hearing Committee. Id. §V.B.4.c., d.

The Hearing Committee consists of three to seven members, atleast one must be a student and one a Presidential designee.Id. § V.D.2.a. The President appoints the Chair. Id. The Hearing Committee is charged with holding a hearing toreceive evidence, determining whether the respondent violated theCode, and, if so, imposing a sanction. Id. § V.D.4. If theHearing Committee suspends or dismisses the respondent, the Codeprovides for two appeals. Id. § V.E. The first appeal is to anew person or group (the Appeal Committee); the second appeal isto the President or designee. Id. § V.E.2. The appeals arelimited to a review of the procedures followed and theappropriateness of the sanction. Id. § V.E.1.a., b.

C. The Gomes — Minor Investigation and University Procedure:An Overview

David Fiacco, as Director of Judicial Affairs, was thedesignated Officer within the meaning of the Code. TheComplainant's allegations against the Plaintiffs constitutedpotential violations of Section III of the Code and, byreference, the University of Maine Rape and Sexual Assault Policyand Guidelines. Id. § III.; SMF ¶ 3. On July 16, 2002, pursuantto his request, Mr. Fiacco received information from the Old TownPolice Department confirming a complaint of sexual assault hadbeen lodged against the Plaintiffs. SMF ¶¶ 2, 133. On August 17,2002, the Complainant signed a University incident report,stating a potential violation of the Code.6 Id. ¶¶ 2,3. This triggered an investigation by Mr. Fiacco, who referredthe case to the Hearing Committee for an administrative hearing.Id. ¶¶ 4, 5.

The Hearing Committee, chaired by Dr. Elizabeth Allan,consisted of five members. Id. ¶ 6. The Hearing Committee helda hearing on September 24, 2002, and by letter dated September25, 2002,7 the Chair informed the Plaintiffs that it hadconcluded they had violated the Code by committing a sexualassault. Id.; Minor Dep. Ex. 8; Gomes Dep. Ex. 5. The Hearing Committee suspended the Plaintiffs from the Universitythrough May 31, 2003 and made the suspensions effectiveimmediately. SMF ¶ 7; Minor Dep. Ex. 8; Gomes Dep. Ex. 5. TheHearing Committee ruled the suspensions would not be stayedpending any appeal "for the protection of other persons." SMF ¶6; Minor Dep. Ex. 8; Gomes Dep. Ex. 5. It required the Plaintiffsto petition the University before returning as students and tocomply with certain preconditions before doing so. SMF ¶ 7; MinorDep. Ex. 8; Gomes Dep. Ex. 5. The earliest date they could file areinstatement petition was August 31, 2003, and, if allowed toreturn to the University, they were to be placed on disciplinaryprobation for one calendar year from the date of their return.Minor Dep. Ex. 8; Gomes Dep. Ex. 5. Neither Plaintiff haspetitioned to reenroll at the University. SMF ¶ 14.

The Plaintiffs appealed the Hearing Committee's decision to theAppeal Committee. Id. ¶¶ 8, 9. The Appeal Committee consistedof three members: Robert Whelan, the Chair; Ann Pooler; and MikeScott. Id. ¶ 9. On October 16, 2002, the Appeal Committeeconcluded the Hearing Committee did not commit procedural errorand found the sanctions appropriate.8 Id. ¶ 10. ThePlaintiffs exercised their right to a second appeal before thePresident's designee. Id. ¶ 11. President Hoff named MarkAnderson, the University's Interim Chief Financial Officer, ashis designee for this appeal. Id.; Hoff Dep. at 53-54. Mr.Anderson reviewed the decision of the Appeal Committee and theHearing Committee to determine whether procedures were followedand the sanctions were appropriate. SMF ¶¶ 11, 12; Costlow Dep.Ex. 60. On November 18, 2002, he concluded that the procedures"were in substantial conformity to the requirements of the codeand afforded the Respondents fundamental fairness." Costlow Dep.Ex. 60. He also determined that "the sanctions imposed on the Respondents wereappropriate given the findings of the committee." Id.


Summary judgment is appropriate only if the record shows "thatthere is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c). "In this regard, `material' means that acontested fact has the potential to change the outcome of thesuit under the governing law if the dispute over it is resolvedfavorably to the nonmovant." Navarro v. Pfizer Corp.,261 F.3d 90, 93-94 (1st Cir. 2001). "By like token, `genuine' means thatthe evidence about the fact is such that a reasonable jury couldresolve the point in favor of the nonmoving party." Id. at 94(citing McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315(1st Cir. 1995)). The party moving for summary judgment mustdemonstrate an absence of evidence to support the nonmovingparty's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325(1986). In determining whether this burden is met, the court mustview the record in the light most favorable to the nonmovingparty and give that party the benefit of all reasonableinferences in its favor. Nicolo v. Philip Morris, Inc.,201 F.3d 29, 33 (1st Cir. 2000). Once the moving party has made apreliminary showing that no genuine issue of material factexists, the nonmovant must "produce specific facts, in suitableevidentiary form, to establish the presence of a trialworthyissue." Triangle Trading Co. v. Robroy Indus., Inc.,200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted);see also Fed.R.Civ.P. 56(e). "As to any essential factualelement of its claim on which the nonmovant would bear the burdenof proof at trial, its failure to come forward with sufficientevidence to generate a trialworthy issue warrants summaryjudgment to the moving party." In re Spigel, 260 F.3d 27, 31(1st Cir. 2001) (citation and internal punctuation omitted). IV. DISCUSSION

A. What is and is not Before the Court

This case comes before this Court in limited posture. ThePlaintiffs' claims against the Defendants are grounded primarilyupon the way the University officials conducted the processleading to its conclusion that the Plaintiffs had violated theCode and to its imposition of sanctions. In essence, thePlaintiffs claim that the Defendants failed to accord them a fairand impartial hearing and fair and impartial appeals beforeimposing and affirming significant sanctions. The Defendantsrespond that the University disciplinary proceedings werefundamentally fair. This Court's review is substantiallycircumscribed; the law does not allow this Court to retry theUniversity's disciplinary proceeding.

This is not a lawsuit between the Complainant and thePlaintiffs. This Court is not asked to make an independentdetermination about what happened between the Plaintiffs and theComplainant on June 10, 2002. Neither the Plaintiffs nor theComplainant have testified before this Court. This Court draws noopinion, therefore, about whether a sexual assault occurred,whether the acts were consensual, who among the Plaintiffs andthe Complainant is credible, and who is not. This decision, whichgrants summary judgment in favor of the Defendants, is not ajudicial finding either in favor or against the Plaintiffs or infavor or against the Complainant on the merits of her claims andtheir defenses.

B. What Remains After the February 23, 2004 Order on theMotion to Dismiss

1. Count I: Due Process (Against All Defendants)

Count I, as originally pleaded, attempted to state a directcause of action for a general denial of rights protected underthe United States and Maine Constitutions. Realizing this countdid not state a cause of action, the Plaintiffs clarified theywere retaining Count I only insofar as its allegations form a factual predicate for the remaining causesof action. Thus limited, the viability of Count I's allegationsdepends upon the extent to which they form the factual predicatefor other viable causes of action. Count I, therefore, stands orfalls depending upon what happens in other counts.

2. Count II: 42 U.S.C. § 1983 (Against Defendants Allan,Fiacco, Hoff, Dana and Whelan)

Count II alleges a violation of procedural dueprocess.9 This Court's February 23, 2004 order dismissedCount II to the extent it was based on an assertion that theUniversity's jurisdiction was territorially limited.

3. Count III: Breach of Contract (Against DefendantsUniversity and Trustees)

Count III alleges that the University violated the terms of itscontract with the Plaintiffs by conducting a disciplinaryproceeding that violated their federal and state constitutionalrights and contravened the Code.

4. Count IV: Breach of Duty of Good Faith and Fair Dealing(Against All Defendants)

The February 23, 2004 order dismissed Count IV.

5. Count V: Negligent Hiring and Supervision (AgainstDefendants University, Trustees, Hoff and Dana)

The February 23, 2004 Order dismissed Count V.

6. Count VI: Negligence (Against All Defendants)

Count VI alleges that the Defendants had a duty to act withreasonable care in conducting disciplinary hearings against thePlaintiffs, failed to do so, and caused the Plaintiffs harm.

7. Count VII: Defamation (Against All Defendants) Count VII alleges that the Defendants falsely stated that thePlaintiffs committed a sexual offense and the Defendants defamedPlaintiffs in the manner they conducted the hearing and suspendedthe Plaintiffs. Count VII further alleges the Defendants madepublic statements regarding the suspensions that defamed thePlaintiffs.

8. Count VIII: Negligent and/or Intentional Infliction ofEmotional Distress (Against All Defendants)

Count VIII alleges the Defendants, by acting negligently orintentionally, have caused the Plaintiffs severe emotionaldistress.

9. Count IX: Negligent Misrepresentation (Against DefendantsUniversity Trustees, Fiacco and Dana)

Count IX alleges certain Defendants supplied false informationto the Plaintiffs for guidance in their transactions as studentsand student athletes.

10. Count X: Punitive Damages (Against All Defendants)

Count X demands punitive damages against all the Defendants onthe ground their conduct was so outrageous malice can be impliedagainst the Plaintiffs.

C. Count II: 42 U.S.C. § 1983: Procedural Due Process

1. The Plaintiffs' Claims: An Overview

The Plaintiffs contend that Defendants Allan, Fiacco, Hoff,Kennedy, Dana, and Whelan deprived them of their procedural dueprocess rights:

[B]y conducting a fundamentally unfair hearing which included depriving the Plaintiffs of critical and potentially exculpatory evidence gathered during the investigation, depriving the Plaintiffs of effective assistance of counsel, preventing the Plaintiffs from effectively cross-examining and confronting adverse witnesses, depriving the Plaintiffs of any effective administrative appeal, depriving the Plaintiffs of an impartial tribunal, and imposing severe punishment without substantial evidence. Am. Compl. ¶ 30. They also allege the investigation, hearing, andappeal were "conducted in bad faith and sanctions were imposed inbad faith." Id. ¶ 31.

2. Applicable Law

The First Circuit has held that a student's interest "inpursuing an education is included within the fourteenthamendment's protection of liberty and property." Gorman v. Univ.of Rhode Island, 837 F. 2d 7, 12 (1st Cir. 1988). A student"facing expulsion or suspension from a public educationalinstitution is entitled to the protections of due process." Id.Here, the Plaintiffs were students at a public university andpotentially subject to expulsion or suspension. They are,therefore, entitled to the protections of due process. Seegenerally Curtis J. Berger & Vivian Berger, AcademicDiscipline: A Guide to Fair Process for the University Student,99 Colum. L. Rev. 289 (1999).

Determining an interest is protected by the due process clauseof the Constitution is "only the beginning of the inquiry"; thequestion remains "what process is due." Gorman, 837 F. 2d at 12(citation and internal punctuation omitted). Due process is "nota fixed or rigid concept, but, rather, is a flexible standardwhich varies depending upon the nature of the interest affected,and the circumstances of the deprivation." Id. At a minimum,students facing disciplinary action, such as a suspension, mustbe given "some kind of notice and afforded some kind of hearing."Goss v. Lopez, 419 U.S. 565, 579 (1975). Judge Gignoux of thisCourt adopted Professor Wright's description of the minimumrequirements of due process in an academic setting:

(1) [T]he student must be advised of the charges against him; (2) he must be informed of the nature of the evidence against him; (3) he must be given an opportunity to be heard in his own defense; and (4) he must not be punished except on the basis of substantial evidence. Keene v. Rodgers, 316 F. Supp. 217, 221 (D. Me. 1970) (quotingCharles Alan Wright, The Constitution on the Campus, 22 Vand.L. Rev. 1027, 1071-72 (1969)). To these factors, Keene added:1) the student must be permitted the assistance of a lawyer, atleast in major disciplinary proceedings; 2) he must be permittedto confront and to cross-examine the witnesses against him; and,3) he must be afforded the right to an impartial tribunal, whichmust make written findings. Id. (citations omitted); see alsoCarey ex rel. Carey v. Maine Sch. Admin. Dist. No. 17,754 F. Supp. 906, 919 (D. Me. 1990) (setting forth the seven minimumrequirements which must be observed in student disciplinaryhearings to assure the requisite balance).

The law seeks to counterbalance the tension between twoprinciples. Goss, 419 U.S. at 579 (determining the process thatis due requires an "accommodation of the competing interestsinvolved."); Gorman, 837 F.2d at 13 (same). A university is nota court of law, and it is neither practical nor desirable it beone. Yet, a public university student who is facing seriouscharges of misconduct that expose him to substantial sanctionsshould receive a fundamentally fair hearing. In weighing thistension, the law seeks the middle ground.

One factor is the seriousness of the charge and the potentialconsequences — what the Supreme Court described as the "privateinterest" affected by the official action. Mathews v. Eldridge,424 U.S. 319, 334 (1976); accord Gorman, 837 F.2d at 13. Here,the private interest is compelling. The Plaintiffs faced chargesof sexual assault against a fellow student, charges that couldhave led to their expulsions and did lead to their suspensions.The potential consequences reach beyond their immediate standingat the University. The Supreme Court has noted that "`[w]here aperson's good name, reputation, honor, or integrity is at stakebecause of what the government is doing to him,' the minimalrequirements of the Clause must be satisfied." Goss,419 U.S. at 574 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437(1971)). The University's decision could "interfere with later opportunitiesfor higher education and employment." Id. at 575. ThePlaintiffs argue, and this Court accepts, that these chargescould "have a major immediate and life-long impact on [their]personal life, education, employment, and publicengagement."10 Obj. to Mot. for Summ. J. (Docket # 85) at4. The Plaintiffs also have an interest in avoiding "an erroneousdeprivation" of their private interest through the University'sprocedures. Mathews, 424 U.S. at 335; Gorman, 837 F.2d at 13.

At the same time, a major purpose of the administrative processand hearing is to avoid formalistic and adversarial procedures.Justice White wrote in Goss, "further formalizing thesuspension process and escalating its formality and adversarynature may not only make it too costly as a regular disciplinarytool but also destroy its effectiveness as part of the teachingprocess." Goss, 419 U.S. at 583. In Gorman, the First Circuitadvised courts reviewing an educational institution'sadministrative process of the following: In fostering and insuring the requirements of due process, however, the courts have not and should not require that a fair hearing is one that necessarily must follow the traditional common law adversarial method. Rather, on judicial review the question presented is whether, in the particular case, the individual has had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law criminal trial. . . . . [T]he courts ought not to extol form over substance, and impose on educational institutions all the procedural requirements of a common law criminal trial. The question presented is not whether the hearing was ideal, or whether its procedure could have been better. In all cases the inquiry is whether, under the particular circumstances presented, the hearing was fair, and accorded the individual the essential elements of due process. In the words of Justice White, "the Due Process Clause requires, not an `elaborate hearing' before a neutral party, but simply `an informal give-andtake between student and disciplinarian' which gives the student `an opportunity to explain his version of the facts.'" Gorman, 837 F.2d at 14, 16 (citations omitted). 3. Specific Issues a. Discovery

The Plaintiffs claim the Defendants violated their due processrights by failing to inform them before the hearing of certainevidence: 1) they were not provided with a summary of a statementthe Complainant gave to the Old Town Police Department; 2) theywere not provided with a witness list before the day of thehearing; and, 3) they were not provided with the Complainant'smedical records until the day of the hearing.

i. Old Town Police Department Records

Following the June 10, 2002 incident, the Complainant notifiedthe Old Town Police Department, which initiated an investigation.The police officers conducted four interviews of the Complainant:one with Officer Bobbie Pelletier on June 11, 2002; another withDetective Michael Holmes and Officer Debra Holmes on June 11,2002; a third with Detective Holmes on June 12, 2002; and, afourth with Officer Holmes on June 13, 2002.11 SMF ¶ 134.The Plaintiffs assert the records of these interviews contain"important prior inconsistent statements" and call theComplainant's "credibility into serious doubt." Obj. to Mot. forSumm. J. at 13. They also point out the Complainant's attorneyargued at the close of the hearing that the Complainant should bebelieved because her story had been entirely consistent. SMF ¶190.

Specifically, the Plaintiffs claim the reports of theseinterviews differ as to the events of the evening of theincident, the Complainant's consumption of alcohol, who did whatto whom, and whether she gave Mr. Minor money after the incident.Obj. to Mot. for Summ. J. at 13-15. The University has admittedthat, even though it provided a statement from the Old TownPolice Department records to the Complainant's attorney, it providednothing in the police report to the Plaintiffs.12 SMF ¶¶33, 176. Further, the police department records were notsubmitted to the Hearing Committee. The Plaintiffs claim theHearing Committee was left with the erroneous impression that theComplainant had not drunk alcohol before the incident and thather story had been fully consistent throughout. Finally, thePlaintiffs note that the Complainant selectively used theirhandwritten statements in the police reports to question themduring the hearing; however, the Plaintiffs did not have a copyof their own statements.13 Id. ¶ 180.

The Defendants contend there is no due process requirement in auniversity disciplinary hearing to provide the responding studentwith exculpatory or impeachment evidence. The Defendants furtherstate the Plaintiffs themselves failed to act prudently to obtainthe records from the District Attorney or request a continuanceof the disciplinary hearing. Finally, the Defendants say thePlaintiffs still received a fundamentally fair hearing.

The Defendants are correct about discovery in universitystudent disciplinary proceedings. Other than the limited noticeprovisions set forth in Keene14 — requiring that thestudent be advised of the charges and the nature of the evidence— there is no formal right to discovery. See Keene, 316 F. Supp. at 221; see also Palmer exrel. Palmer v. Merluzzi, 868 F.2d 90, 95 (3d Cir. 1989) ("[M]oreformal procedural safeguards would not sufficiently increase thereliability and fairness of the process to warrant the additionalexpense and disruption of the educational process."). It islikely the University could have given neither the Complainantnor the Plaintiffs any police documents at all and survived a dueprocess challenge.

The Plaintiffs' point remains, nevertheless, a potentiallysignificant one. This is because the University gave thestatement to one side, namely the Complainant, and denied accessto the same document to the other side. In view of the nature ofthe charge and its circumstances, the Hearing Committee wasrequired to determine who to believe. There were only threepeople in the Complainant's room the night of the incident. TheComplainant stated she had consensual sex with Mr. Minor,non-consensual sex with Mr. Gomes, and then non-consensual sexwith Mr. Minor; the Plaintiffs agreed they had sexual relationswith the Complainant, but said their sexual relations with herwere entirely consensual. The credibility of these threeindividuals ran to the heart of the disciplinary hearing.

The Plaintiffs argue the reports contained substantial evidenceof inconsistency in the Complainant's story. They point to thefact that the Complainant made no mention of nonconsensual sexwith Mr. Minor until the third interview. Further, the policereports reveal the Complainant had consumed some alcohol duringthe evening leading up to the incident, and the Complainant'smedical records, which were before the Hearing Committee,confirmed her use of prescriptive medication, raising thequestion of the impact of alcohol on the medication. ThePlaintiffs also note the Complainant herself had complained inwriting that she had found "numerous errors and grossinaccuracies" in the police report and that this writtencomplaint was placed before the Hearing Committee; however, theHearing Committee never heard what those errors and inconsistencies were, because the records were nevermade available to either the Hearing Committee or the Plaintiffs.SMF ¶ 149, 150. These issues, as well as certain other matters,would have at least been appropriate for the Hearing Committee'sconsideration; however, none of the information in the policereports was presented to the Hearing Committee.15 Infact, at the hearing, the Complainant was asked no questions atall: none by members of the Hearing Committee and none by thePlaintiffs.

The Plaintiffs argue the hearing generated the misimpressionthat the Complainant had been entirely consistent from the dateof the incident onward. After her statement before the HearingCommittee, the Complainant called four witnesses, each of whomcorroborated her version of events. This allowed theComplainant's attorney to argue in his closing statement, "Youhaven't heard anyone testify to any contradictory statements by[the woman] at all, other than the two Respondents. . . . Therewere no inconsistencies in her statements or her testimony or anyof the things she stated throughout these proceedings." Id. ¶190.

Mr. Fiacco's refusal to give the Plaintiffs what he had giventhe Complainant becomes more potentially significant in light oftheir respective roles in this proceeding. Under the Code, theComplainant and Mr. Fiacco, as the Officer, assume the roles ofpresenting the case against the Plaintiffs.16 Code §V.D.4. Mr. Fiacco and the Complainant had a complete copy of thepolice report, but the Plaintiffs did not, and Mr. Fiacco hadfailed to turn documents over to the Plaintiffs when requested todo so. The question is whether a university may, consistent withthe requirements of due process, make potentially significantdocuments available to one side and not the other: to the presenting officer and to the complainant,but not to the students facing serious charges. On its face, theUniversity's actions raise a question as to whether thisprocedure was fundamentally fair and complied with the basicprotections of due process.

The analysis cannot, however, end there. Gorman has remindedus not to "impose on educational institutions all the proceduralrequirements of a common law criminal trial." Gorman,837 F.2d at 16. There are a number of factors to consider: 1) whatprecisely was given to one side that was not given to the other;2) timing; 3) the reason the University provided unequal access;4) the University's role in not supplying the full record; and,5) the significance of the withheld information.

What was given remains unclear. Mr. Fiacco provided "some ofthe [police reports] to the Complainant." SMF ¶ 176. Thisstatement of material fact refers to Mr. Fiacco's deposition inwhich he states that he "shared a component of the report withthe woman," the component that "summarized her statement of theevents." Id. ¶ 176; Fiacco Dep. at 119. There is noclarification as to what "component" was given to theComplainant. This Court cannot assess the impact of an unevendistribution of material unless the Plaintiffs establish whatmaterial was distributed.

The timing is constrained. Mr. Fiacco received documents,including the three interview summaries, from the Old Town policerecords on July 16, 2002. SMF ¶¶ 133, 134. The Complainant orallyinformed Mr. Fiacco before August 13, 2002 that the policerecords may contain some inaccuracies. Id. ¶¶ 149, 150; FiaccoDep. Ex. 12. However, the Complainant did not sign an incidentreport until August 17, 2002. SMF ¶ 2; Costlow Dep. Ex. 6,7.17 Mr. Fiacco undertook a formal investigation andreferred the matter to the Hearing Committee on September 9, 2002. SMF ¶¶ 4, 5. That same day, the Complainant gave Mr.Fiacco a written statement of the incident and a note that statedthere were "numerous errors and gross inaccuracies" in the OldTown Police Department reports. Id. ¶ 150. The hearing wasinitially set for September 16, 2002 and was continued toSeptember 24, 2002 at the Plaintiffs' request. Id. ¶ 73.

Between the referral and the hearing, there was a flurry ofactivity.18 On September 12, 2002, Mr. Costlow, thePlaintiffs' lawyer, in a telephone conference with in-houseUniversity counsel, Nina Lavoie, asked about access through theUniversity to the police reports, and Attorney Lavoie asked Mr.Fiacco to follow up with the Old Town Police Department as to itspolicy regarding release. Id. ¶¶ 101, 102. On September 13,2002, and again on September 18, 2002, Mr. Fiacco receivedwritten requests from the Plaintiffs to produce the documents.Id. ¶¶ 162, 163. Attorney Lavoie learned on September 13, 2002that Mr. Fiacco had handed over either to the Complainant or herattorney the copy of the Complainant's summary statement. LavoieDep. at 54-57. On the same day, Attorney Lavoie contacted DeputyDistrict Attorney Mike Roberts and Assistant District AttorneyAlice Clifford to determine their office's position on therelease of police reports. Id. at 56-57. She was concerned Mr.Fiacco's release to the Complainant could have violated a Mainestatute. Id. at 58; SMF ¶ 101. She also spoke to thePlaintiffs' lawyer, who said he wanted the same material that hadbeen provided to the Complainant. Lavoie Dep. at 57. She thenasked Mr. Fiacco whether he intended to give to the HearingCommittee the same material he had given the Complainant; hereplied, "no." Id. at 63. When Attorney Lavoie attended thehearing on September 24, 2002, she learned Attorney Costlow hadnever received a copy of the police report, but the Complainant'sattorney had. Id. at 55. During the period from September 12, 2002 to September 24,2002, the Complainant's and the Plaintiffs' attorneys attemptedto obtain a complete copy of the police report through theDistrict Attorney's Office. On September 13, 2002, AttorneyCostlow wrote to ADA Clifford, requesting the complete policereport and complaining the Complainant had been provided with aportion of the police records, but his clients had not. SMF ¶100; Costlow Dep. Ex. 16. At 3:55 p.m. on September 20, 2002, ADAClifford faxed to Attorney Hallett a complete copy of the policereport. SMF ¶ 36; Aff. of Alice Clifford ¶¶ 4, 5. The fax sheetindicates that "Gomes/Minor's attys are requesting them as well &they will be sent out to them as well." Fax Cover Sheet attachedto Aff. of Alice Clifford. ADA Clifford has a policy of requiringthe attorney to whom she is faxing sexual assault materials bepresent when she faxes the material. Aff. of Alice Clifford ¶ 6;SMF ¶ 37. Although the memories of Attorney Costlow and ADAClifford conflict in some details, the net effect was AttorneyCostlow did not receive the materials from the DistrictAttorney's Office until after the September 24, 2002 hearing.

This chronology reflects the tight deadlines attendant tostudent disciplinary hearings from complaint to resolution. InNash, for example, the time between the charge and the hearingwas only six days, and the students received a restated notice ofcharges only one day before the hearing. Nash, 812 F.2d at 657.Although Nash addressed the question of waiver, the EleventhCircuit concluded the time was "reasonable," because it allowedthe students to retain counsel, to successfully argue for morecertain notice and a short delay, and to appear at the hearingwith supporting witnesses and documents. Id. at 662. This tighttimeframe, a timeframe not uncommon in university disciplinaryhearings, makes it less appropriate to impose strict legaldocument production requirements on the parties. See Gorman,837 F.2d at 10 (altercations on September 17 and 18; hearing onOctober 4); Blanton v. State Univ. of New York, 489 F. 2d 377, 379-80 (2d Cir. 1973) (incidents December 2 — 4; hearing December18); Donohue v. Baker, 976 F. Supp. 136, 145-46 (N.D.N.Y. 1997)(telephonic notice of rape charge three days before hearing;written charges one day before hearing). Often, it is the studentwho requests the expedited hearing to resolve the disciplinarymatter with a minimal impact on his education. See Keene,316 F. Supp. at 221 ("At plaintiff's own request, the hearing washeld at the earliest possible moment.").

Why did the University not turn over the entire police report?The University was confronted with a provision of Maine statutorylaw that restricts the disclosure of the police reports. See16 M.R.S.A. § 617 ("Criminal history record information disseminatedto a noncriminal justice agency under section 613 shall be usedsolely for the purpose of which it was disseminated and shall notbe disseminated further."). The police reports constituted"record information" under § 613, and University counsel wasconcerned that this statute may have prohibited dissemination toany third party, including the Plaintiffs and theComplainant.19 SMF ¶¶ 101-102. The University, throughAttorney Lavoie, made an effort to clarify whether the lawprohibited it from releasing material.

What was the University's role? Upon review, the University'sactions were not as significant as the Plaintiffs would have thembe. It was on September 9, 2002 that Mr. Fiacco gave theComplainant one unidentified statement from the police report,but it was on September 20, 2002, the Complainant received by faxfrom ADA Clifford a complete copy of the entire police file. TheDistrict Attorney's Office is not the University of Maine, andits actions are not attributable to the University.20 ADA Clifford's unevendistribution of the entire report eclipses the University'suneven distribution of one statement in the report. TheComplainant had the entire report one full week ahead of thehearing and her possession of one statement from the reporteleven days earlier has not been shown to have had any impact onthe hearing. Because the Complainant later obtained the samestatement through other sources, the Plaintiffs' claim cannot bebased on the Complainant's possession of the statement, butrather must be based solely on their non-possession of this onestatement.

What was the impact of the University's actions? This leavesthe Plaintiffs' contention that their non-possession of oneunidentified statement constituted a denial of due process.Having failed to identify which statement they did not receive,it would be speculative to intuit what effect its non-productionhad on the proceeding. On the state of the record before it, thisCourt can draw no conclusions.

Upon analysis, the Plaintiffs' claim of a violation of dueprocess based on the University's failure to distribute astatement in the police report to them before the hearing mustfail. Tight time constraints, a general rule against imposingdiscovery requirements on university disciplinary proceedings,the Complainant's access to the same material from anon-university source, and the Plaintiffs' failure to identifythe statement itself require this Court to conclude there is nogenuine issue of material fact on the issue of whether the unevendistribution of a statement from the police records constituted adenial of due process.

ii. The Witness List

Several days before the hearing, the Defendants provided awitness list to the Plaintiffs naming the following witnesses:the Complainant, Jessica Libbey, Jacob Pratt, and Amissa Demons.SMF ¶ 15. The Complainant, Ms. Libbey, and Mr. Pratt testified atthe hearing; Ms. Demons did not. Id. ¶ 19. The Complainant called two additionalwitnesses — Jerod Edes21 and Kelly LaPierre — over thePlaintiffs' objections. Id. ¶¶ 15, 20. The Complainantdescribed these witnesses as "rebuttal witnesses" to thosewitnesses the Plaintiffs listed on their September 23rd letter toMr. Fiacco. Id. ¶ 21. Although Mr. Costlow objected to Ms.LaPierre's testimony because she was not on the witness list, heacknowledged whether to allow her to testify was "at thediscretion of the chair." Id. ¶ 22. Ms. LaPierre and Mr. Edestestified in the presence of the Plaintiffs, and the Plaintiffshad an opportunity to cross-examine them. Id. ¶ 23.

Mr. Costlow was correct in acknowledging the Chair'sdiscretion.22 If this hearing had been before a court,the judge would have had the discretion to allow or exclude thetestimony of unlisted witnesses. See Alberty-Velez v.Corporacion De Puerto Rico Para La Difusion Publica,242 F.3d 418, 423 (1st Cir. 2001) (an appellate court generally should notinterfere with a trial court's decision to admit or excludeevidence based on its interpretation of its own pretrial order);Geremia v. First Nat'l Bank of Boston, 653 F.2d 1, 5 (1st Cir.1981) (where memorandum designating nine "contested issues of lawand fact," which had been signed by both sides and filed with thecourt, was never specifically adopted by the court, any purportedpreclusion of issues therein could not be viewed as restrictingthe court's considerable discretion in an area). A trial judge'sdecision to allow the Government to call a rebuttal witness in acriminal trial is reviewed for abuse of discretion. Goldsby v.United States, 160 U.S. 70, 74 (1895); United States v.Jalbert, 504 F.2d 892, 893 (1st Cir. 1974). The decision toallow the testimony of unlisted witnesses would have been upheldin a judicial proceeding and was well within the Chair'sdiscretion as presiding officer at the disciplinary hearing. Moreover, due process in the context of academic disciplinedoes not necessarily require students be given a list ofwitnesses and exhibits prior to the hearing, provided thestudents are allowed to attend the hearing itself. Nash v.Auburn Univ., 812 F.2d 655, 662-63 (11th Cir. 1987) ("[W]e didnot require in Dixon that students facing a hearing on chargesof misconduct be given the names of witnesses against them and asummary of their expected testimony, when the opposing witnesseswill testify in the presence of the accused."). Because Ms.LaPierre and Mr. Edes testified in the presence of thePlaintiffs, it was not a due process requirement to give thePlaintiffs their names and a summary of their expected testimonybefore the hearing. Cf. Dixon v. Alabama State Bd. of Educ.,294 F.2d 150, 159 (5th Cir. 1961), cert. denied, 368 U.S. 930(1961) (because university students were not present to hear theevidence against them, they should be given the names of theaccusing witnesses and a report of their testimony to ensure thestudents' ability to respond at a later forum).

The Plaintiffs attempt to distinguish this case from Nash andDixon by arguing that the charge here is much more serious thanin Nash (academic dishonesty) and Dixon (unspecifiedcharges).23 This Court does not minimize the seriousnessof the charge of sexual assault. But, under a due processanalysis, distinguishing between charges of academic dishonestyand sexual assault slices too thin a due process argument. Itwould require nuanced judgments about gradations of seriousnessamong differing charges and a perilous attempt to translate tonallevels of gravity to sets of due process rights.24 Instead of focusing solely on the charge, courts have looked atthe potential sanction. Gorman, 837 F.2d at 13 ("[T]he federalcourts have uniformly held that fair process requires notice andan opportunity to be heard before the expulsion or significantsuspension of a student from a public school.") In Nash, AuburnUniversity imposed a sanction virtually identical to the sanctionthe Plaintiffs in this case received.25 The students inDixon received harsher treatment and were expelled from AlabamaState College. Dixon, 294 F.2d at 151 n. 2. Whether the hearingwas fair "depends upon the nature of the interest affected andall of the circumstances of the particular case." Gorman,837 F.2d at 13. This Court cannot conclude that because thePlaintiffs were charged with sexual assault, the due processclause requires they be supplied in advance with a witness list,when those students are present at the hearing and have the rightto listen to the statements and ask questions. Further, it cannotconclude the due process clause mandates that if a witness is notlisted, the chair's discretionary determination to allow thatwitness to present a statement raises a constitutional concern.

iii. The Medical Reports

The Plaintiffs object to the Complainant's introduction at thehearing of medical records not available to them until themorning of the hearing. The medical records were provided to theHearing Committee and the Plaintiffs the morning of the hearing.SMF ¶ 28. Mr. Fiacco made copies of the records and included themin all hearing binders, including the Plaintiffs' binder. Id. ¶29. Mr. Costlow had the opportunity to review the reports beforethe start of the hearing. Id. ¶ 30.

The Plaintiffs make an argument similar to one the EleventhCircuit rejected in Nash. Here, the Plaintiffs argue, if theyhad received prior notice of the medical records, they would have had the opportunity to "discuss them with [a] medicalprofessional." Obj. to Mot. for Summ. J. at 14. The students inNash were charged with cheating. At the hearing, they wereconfronted by their professor and other professors who testifiedthere was such a striking similarity among the student responses,it was likely there had been collusion. Nash, 812 F.2d at 660.The students argued unsuccessfully that if they had known of thisanalysis in advance, they could have obtained "expert,statistical testimony to rebut the inference that they cheated."Id. at 662. In rejecting this argument, the Nash court statedthat the students were "not constitutionally entitled to advancenotice of statements by witnesses who . . . were to appear at thehearing." Id. at 663.

Advance notice of exhibits is indistinguishable from advancenotice of witnesses. For the same reasons, due process does notrequire students be given a list of exhibits before the hearingif the students attend the hearing. Because the Plaintiffsattended the hearing, it was not necessary for the Complainant tonotify them about the medical records she intended to submit.Furthermore, the record demonstrates the Plaintiffs were given anopportunity to review the medical records before the hearing andto question the Complainant about those records during thehearing.26 SMF ¶ 31. Finally, this Court is doubtful thatthe incrementally enhanced fairness of the hearing from advancednotice of exhibits would justify opening a rich source ofpotential controversy. Instead of addressing the main event —whether a violation of the Code occurred — the Hearing Committeewould inevitably become enmeshed in charges and countercharges ofdiscovery violations, controversies a university hearingcommittee is ill-equipped to resolve. See Goss,419 U.S. at 583. b. Exclusion of Prior Sexual History

The Plaintiffs' due process argument on the Hearing Committee'shandling of prior sexual history is elusive. The Plaintiffs donot challenge the University's rule excluding reference to theComplainant's past sexual history. To the contrary, they concedeit is "certainly a reasonable rule." Obj. to Mot. for Summ. J. at18. They could hardly claim otherwise. See Fed.R. Evid. 412;Me. R. Evid. 412. Instead, they attack the admission of certaintestimony and the exclusion of other testimony. In the HearingCommittee's packet was a written statement from Jerod Edes, whichstated in part: "I know for a fact that [the Complainant] wouldnever consent to anything such as what happened to her. . . . Inever believed, and will never believe that [the Complainant]would partake in anything of the sort." SMF ¶ 194. The Plaintiffsargue that by including this statement in the Hearing Committee'spacket, which discounted the possibility the Complainant wouldhave voluntarily engaged in simultaneous sex with two men, theUniversity turned "this rule from a shield to a sword." Obj. toMot. for Summ. J. at 18. They contend they had evidence theComplainant had, in fact, done so in the past.27 Theyargue, because Mr. Fiacco was aware of this countervailingevidence, he should not have included the Edes statement in theHearing Committee packet, knowing it was irrefutable under therule that precluded prior sexual activity.

First, the Plaintiffs knew the Edes statement was included inthe Hearing Committee packet and failed to raise any specificobjection to the written statement at the hearing.28 SMF¶¶ 58, 59. In any event, the Plaintiffs make far too much of Mr.Edes's written statement. The written statement is a character reference, not a statement ofpersonal knowledge.29 As a friend of the Complainant, Mr.Edes had a basis for his opinion about her character and what shelikely would or would not do, but Mr. Edes could not know whatthe Complainant actually did or did not do in all her privatemoments. Moreover, there is no showing this statement in any wayinfluenced the Hearing Committee.30 Mr. Edes did notrepeat his character opinion during his testimony, and thewritten statement was never expressly mentioned during thehearing. Finally, even if the Hearing Committee considered thestatement and gave it some weight, the Plaintiffs have failed todemonstrate a due process violation took place.

Second, the Plaintiffs point to the Complainant's testimonyabout a prior sexual encounter she had with another footballplayer and the impact it had on her relationship with Mr. Minor.She said one week before the incident she had told Mr. Minor thatanother football player had sexually assaulted her. Id. ¶ 56,199. After this conversation, she noticed Mr. Minor's attitudetoward her had "changed drastically." Id. ¶ 56. When she beganto discuss this at the hearing, Mr. Minor objected. Id. TheHearing Committee, however, could not have known what theComplainant's testimony was going to be and, in the same sensethat a court receives evidence de bene, the Hearing Committeeheard the testimony to determine whether it was proper. Once theComplainant made the statement, Chair Allan responded: "[L]et'stry to focus on the events of this evening, any questions inparticular because we have already made the announcement that weare not going to consider any past sexual history. Okay." Id.This interchange is as close a lay chair could be expected to come toruling the evidence inadmissible and striking it.31 Inthese circumstances, it is difficult to ferret out a plausibledue process violation.32

c. Partition

The hearing room had three tables: two for the parties and along table in front for the Hearing Committee. A screen wasplaced between the Complainant's and the Plaintiffs' tables.Id. ¶ 44. Initially, when seated at their table, the Plaintiffsand their attorney could not see the Complainant or her attorney,and they objected to the arrangement. Id. ¶¶ 45-46. Mr. Fiaccoasked the Plaintiffs if they would waive their due process rightsto confront the Complainant.33 Id. ¶ 52. When theyrefused, the arrangement was changed, and the witness chair wasplaced directly in front of the screen, facing the Committeemembers. Id. ¶¶ 47, 52. The Complainant's back and profile werevisible from the Plaintiffs' table. Id. ¶¶ 47, 48. At somepoint during the Complainant's testimony, Mr. Costlow moved to adifferent part of the room to get a better view of theComplainant's face. Id. ¶ 49. The Plaintiffs assert thephysical partition violated due process because they were forcedto choose between two fundamental rights: "(1) confronting theiraccuser, at least through their counsel; and, (2) having counselbeside them to advise them as they heard the witness andcross-examined her." Obj. to Mot. for Summ. J. at 20.

In Cloud v. Trustees of Boston University, 720 F.2d 721 (1stCir. 1983), Boston University presented six witnesses, one ofwhom was permitted to testify outside of Cloud's sight because ofher professed fear of him. Id. at 724. Cloud asserted thisshielded testimony violated the guarantee of "the right toconfront and cross examine any witness." Id. at 725 (citation and internal punctuation omitted). The First Circuitrejected this argument, holding that Cloud was given anopportunity to cross-examine the witness and his attorney and theJudicial Committee were permitted to view the witness. Id.

Here, the Plaintiffs were afforded an opportunity to see moreof the Complainant than Cloud was. The Hearing Committee requiredall witnesses to be visible to the Plaintiffs while testifying.SMF ¶ 46. The Plaintiffs admit they could see the Complainant'sprofile during her testimony and were given an opportunity tocross-examine the Complainant and her witnesses. Id. ¶¶ 48, 51.Under these circumstances, there is no due process violation.See Cloud, 720 F.2d at 725 (the hearing examiner's decision topermit the witness to testify out of Cloud's sight because of herfrightened and nervous state did not render the hearing unfair orviolate any contractually required procedures).

The Plaintiffs also claim they were deprived of their right tocounsel, arguing their attorney was forced to choose betweenseeing the Complainant testify and advising them. This argumentassumes the Plaintiffs had a right to counsel at the disciplinaryhearing. In Gorman, however, the First Circuit noted that the"weight of authority is against representation by counsel atdisciplinary hearings, unless the student is also facing criminalcharges stemming from the incident in question."34Gorman, 837 F.2d at 16; see also Osteen v. Henley,13 F.3d 221, 225 (7th Cir. 1993); Henson v. Honor Comm. of Univ. ofVirginia., 719 F.2d 69, 74 (4th Cir. 1983). On the other hand, in Gabrilowitz v. Newman, 582 F.2d 100 (1stCir. 1978), the First Circuit held a student has a right tocounsel in a university disciplinary hearing, when there is apending criminal charge involving the same incident. Id. at107. Gabrilowitz limited the attorney's role to safeguardingthe student's rights at the criminal proceeding, not affectingthe outcome of the disciplinary hearing.35 Id. at 106.Gabrilowitz emphasized this limited right to counsel would beapplicable "only for a truly unusual situation." Id. Here, Mr.Gomes and Mr. Minor were the subjects of a police investigation,but no formal charges had been brought. The District Attorney'sOffice, however, had not confirmed it would not bring chargesagainst them. SMF ¶ 165. This Court will assume, withoutdeciding, that Mr. Gomes and Mr. Minor had the limited right tocounsel, because of the pending police investigation of theincident that formed the basis of the disciplinary hearing.

The Plaintiffs contend Mr. Costlow was presented with anuntenable choice: between consulting with his clients andobserving the proceedings. His choice, however, was not so stark.The Plaintiffs acknowledge they could see the Complainant'sprofile and Mr. Costlow "moved to a different part of the room inorder to get a view of the Complainant's face and demeanor." Obj.to Mot. for Summ. J. at 20. Mr. Costlow was, therefore, notprevented from seeing the Complainant from counsel table. Hesimply had a better view elsewhere and decided to take it. SMF ¶49.

Moreover, the attorneys' role in the disciplinary hearing wasmuch more circumscribed than in a court room. The attorneys wereallowed to be present, to advise their clients, and to give afinal summation. On rare occasions, they were permitted toaddress objections to the Chair. They were not, however, allowed to question witnesses orotherwise directly participate. The Hearing Committee for themost part allowed questioning of witnesses only through theChair.36 The University's process tracked the process theFirst Circuit approved in Gabrilowitz. See Gabrilowitz,582 F.2d at 106-07; see also Nash, 812 F.2d at 664.

Finally, there is no showing that the Plaintiffs were affectedby their lawyer's decision to move away from counsel table for aportion of the Complainant's testimony.37 To thecontrary, Mr. Minor, as noted earlier, objected to theComplainant's recitation of prior sexual history, and thePlaintiffs have not pointed to any specific question, objection,or evidence they claim was affected by their lawyer's decision toleave counsel table.

By partitioning the room, but allowing the Plaintiffs a limitedview of the Complainant, the Hearing Committee fashionedprecisely the type of "protective ruling" contemplated byCloud, balancing the need for the Complainant to be free ofintimidation against the Plaintiffs' right to due process.Allowing the presence, but not the active participation ofcounsel, the Hearing Committee complied with Gabrilowitz. Thereis no due process violation from the partition and location ofthe Complainant during her testimony.

d. Impartial Tribunal

The Plaintiffs make two claims of bias against the HearingCommittee: 1) they assert the Chair, Dr. Allan, was biased due toher involvement with rape response and victim advocate programs; and, 2) they claim they were denied the right to voirdire members of the Hearing Committee.

Turning to Dr. Allan, they allege she was biased because, atthe time of the hearing, she was a board member of the RapeResponse Services of Penobscot and Piscataquis Counties, which isa sexual assault victim advocacy organization, had beenaffiliated with and supported other rape response and victimadvocate organizations, and had participated in a number of otherorganizations such as the Safe Campus Task Force and the Women'sStudies Advisory Committee.38 Obj. to Mot. for Summ. J.at 9; SMF ¶¶ 83, 209-10.39

Second, in a letter40 dated September 17, 2002, Mr.Costlow asked to voir dire the members of the Hearing Committeeon the issue of bias for or against the football team if theComplainant were allowed voir dire.41 SMF ¶ 213; CostlowDep. Ex. 22. In the same letter, Mr. Costlow explained, if theComplaint were allowed voir dire, he would explore "whether anymember had personal experience with sexual assault or had workedin a facility or in an advocacy group for sexual assaultvictims." Id. Dr. Allan testified she never received or saw thefaxed letter until several weeks before her deposition.42SMF ¶ 214. By letter dated September 17, 2002 and signed "Elizabeth J.Allan/s," Mr. Costlow's request for voir dire was denied: Questioning of the Committee members is not permitted, although the parties are entitled to know the names of the Committee members. Challenges for bias may be made. Committee members have been instructed to tell the Chairperson if they are unable to judge the case fairly and solely on the evidence presented. All parties have the right to challenge for cause any member of the Committee by submitting to a designated official a written memorandum stating the grounds for this challenge at least two days prior to the scheduled meeting. Removal of members for cause shall be within the authority and at the discretion of the Chair of the Committee or another member of the Committee if the Chair is unable to exercise that function or is challenged for cause.Id. ¶ 215; Allan Dep. Ex. 3. Although ostensibly signed by Dr.Allan, she neither wrote nor signed it. SMF ¶ 216. Instead, Mr.Fiacco wrote the draft in consultation with legal counsel "in theusual course of action." Id. Mr. Fiacco's administrativeassistant signed Dr. Allan's name. Id. ¶ 218. Dr. Allan did notrecall seeing Mr. Costlow's letter, but Mr. Fiacco told her thatthe letter requested the right to voir dire members of theHearing Committee, that the same request had been denied tocounsel for the Complainant, and that the issue had beendiscussed with University legal counsel. Id. ¶¶ 217, 219. Mr.Fiacco did not tell Dr. Allan that information about specifictypes of bias, namely football players and sexual assault, hadbeen requested. Id. ¶ 220. During Dr. Allan's deposition, shetestified it is unlikely her membership on the board of RapeResponse Services would have caused her to recuse herself. Id.¶ 221.

The Plaintiffs contend Dr. Allan violated their constitutionalright to an impartial tribunal in three respects: First, a reasonable official with Allan's organizational affiliations would have permitted an inquiry into bias. Allan does not recall seeing Costlow's letter requesting an inquiry. . . . Nevertheless, she must be charged with knowledge of its contents and failure to act because a reasonable official with responsibility for addressing bias issues and ensuring an impartial tribunal, upon learning about the letter, would have obtained it, read it and acted on it. Second, due to Allan's professional involvement with and support of organizations focused on sexual assault victim advocacy and her other extensive involvement in issues directly related to the allegations before the [Hearing Committee], it was a violation of Plaintiffs' due process rights for her to continue on the [Hearing Committee]. A reasonable official with Allan's professional involvements would not sit on a committee in judgment of a sexual assault matter without the informed consent of the accused students. Third, Allan made no inquiry about bias regarding the other members of the [Hearing Committee]. In the face of Plaintiffs' request, she had a duty to ask. She testified that she believed none were biased, but there was no basis for her knowledge. . . . Again, given that Plaintiffs had made a reasonable inquiry, the only reasonable response was to ask the others and permit the inquiry to proceed.Obj. to Mot. for Summ. J. at 11.

"[A]n impartial and independent adjudicator `is a fundamentalingredient of procedural due process.'" Gorman, 837 F.2d at 15(citation omiited); see also Withrow v. Larkin, 421 U.S. 35,46-47 (1975). "Alleged prejudice of university hearing bodiesmust be based on more than mere speculation and tenuousinferences." Duke v. N. Texas State Univ., 469 F.2d 829, 834(5th Cir. 1972), cert. denied, 412 U.S. 932 (1973); accordGorman, 837 F.2d at 15. "Generally, in examining administrativeproceedings, the presumption favors the administrators, and theburden is upon the party challenging the action to produceevidence sufficient to rebut this presumption." Gorman,837 F.2d at 15; see also Hill v. Bd. of Trs. of Michigan StateUniv., 182 F. Supp. 2d 621, 628 (W.D. Mich. 2001) ("[I]n auniversity setting, a disciplinary committee is entitled to apresumption of honesty and integrity, absent a showing of actualbias."). Nash required "[a]ny alleged prejudice on the part ofthe board must be evident from the record and cannot be based in speculation or inference." Nash,812 F.2d at 665; accord Roach v. Univ. of Utah, 968 F. Supp. 1446, 1452 (D.Utah 1997).

The Plaintiffs have failed to raise a genuine issue of materialfact as to the Hearing Committee's or Dr. Allan's impartiality.They have proffered no evidence of actual bias,43 and,under Nash, the Plaintiffs have failed to present evidence ofbias from the record.44 Nevertheless, the Plaintiffssuggest Dr. Allan was biased per se because of her membership onthe board of the Rape Response Services and she should havedisclosed her membership on the board and stepped down as Chair.However, Dr. Allan claimed her role on the board was limited togiving advice to the director of the organization on financialmatters. SMF ¶ 82. She also testified she was not involved inadvocacy work nor had direct knowledge of the day-to-dayoperations of the organizations. Id.

Moreover, it is difficult to take seriously the Plaintiffs'claim of bias. After all, Dr. Allan's volunteer activity has beendirected against sexual assault, which is a crime and a violationof the Code. There is not exactly a constituency in favor ofsexual assault, and it is difficult to imagine a proper member ofthe Hearing Committee not firmly against it. It is another matteraltogether to assert that, because someone is against sexualassault, she would be unable to be a fair and neutral judge as towhether a sexual assault had happened in the first place. To thecontrary, the record of the hearing reflects, instead of treatingthe claim as proven, Dr. Allan's chairmanship of the Hearing Committee wascharacterized by even-handedness and neutrality. The Plaintiffshave failed to make a showing that, as a result of her experienceand affiliations, Dr. Allan demonstrated any bias against themduring the hearing.

Finally, the University's decision not to allow voir dire isconsistent with the Code, which does not permit voir dire, butdoes permit challenges for cause.45 Id. ¶ 114. Theparties were advised at the outset of the hearing of their rightto challenge for cause, but the Plaintiffs made no challenge.Id. ¶¶ 115-16. Allowing challenges for cause, but not voirdire, reduces the risk the committee hearing will be transformedinto a full blown trial. On the other hand, if the parties areaware of reasons that would disqualify a committee member, theyare allowed to bring them forward.46 Striking thisbalance, the University has not violated the due process clause.

e. Substantial Evidence

The Plaintiffs contend a genuine issue of material fact existsregarding whether the Hearing Committee found the Plaintiffs tobe a threat to the community, and therefore, whether its refusalto stay punishment pending appeal was based on substantialevidence.47 Code § V.D.4.k. ("Any disciplinary sanctionsimposed by the Committee shall be operative immediately uponnotification, unless otherwise specified, or unless theRespondent appeals under Section V.E. below in which case sanctions will be stayed unless deemednecessary for the protection of other persons."). Once theHearing Committee determined the Plaintiffs had together sexuallyassaulted a female student, it is beyond argument that they hadto be removed from campus. The Plaintiffs' argument that, despitethe fact they had been found to have committed a sexual assaultagainst a fellow student, they should have been allowed to remainon campus during the appeals process defies common sense and issimply frivolous.

f. Appeals Process

i. Limited Appeal

In the two University administrative appeals, the appealofficials reviewed the hearing for procedural errors and thesanctions for appropriateness. SMF ¶¶ 10, 12. The Plaintiffsassert that, because the appeals officials did not review whatthey term the "merits of the sanctions" — referring to whetherthe evidence supported the sanction — the appeals violated dueprocess. Obj. to Mot. for Summ. J. at 23. The Plaintiffs draw adistinction between appellate review of the procedure and theappropriateness of the sanction and appellate review of whetherthe evidence supported the sanction: There could be no meaningful review of fundamental fairness and due process without a consideration of the merits of the sanctions. Due process requires that a student not be punished except on the basis of substantial evidence. . . . It is not possible to afford due process or fundamental fairness without considering whether there was substantial evidence [to punish the Plaintiffs].Id. at 23.

The short response is that a student has no constitutionalright to review or appeal after a disciplinary hearing whichsatisfied the essential requirements of due process. Winnick v.Manning, 460 F.2d 545, 549 n. 5 (2d Cir. 1972). The right ofappeal is not a constitutional right. Griffin v. Illinois,351 U.S. 12, 18 (1956), reh'g denied, 351 U.S. 958 (1956) ("It istrue that a State is not required by the Federal Constitution to provideappellate courts or a right to appellate review at all.");United States v. Puzzanghera, 820 F.2d 25, 26 (1st Cir. 1987),cert. denied, 484 U.S. 900 (1987) ("It is well established thatthere is no constitutional right to appellate review even incriminal cases."). If the Plaintiffs had no constitutional rightto any appeal, they do not raise a question of constitutionaldimensions by complaining their appeal was limited inscope.48

ii. Ex Parte Contacts

The Plaintiffs contend the appeal process was fatally taintedby two sets of ex parte communications. The Plaintiffs assert: [A]fter blowing their opportunity to conduct a fair hearing, the Defendants added insult to injury on the appeal by allowing Fiacco and University counsel Todd Cabelka to hijack the deliberations of the Appeal Committee behind the backs of the Plaintiffs and their lawyers, resulting in a complete failure of any meaningful appellate review.Obj. to Mot. for Summ. J. at 25.

(a) David Fiacco's Ex Parte Contact

The Appeal Committee began its work in early October 2002. SMF¶ 233. On October 8, 2002, the Plaintiffs submitted a documententitled "Statement of Specific Points on Appeal." Id. ¶ 231;Costlow Dep. Ex 48, 49. This document raised ten specific issues,three of which were directed to Mr. Fiacco's role: 1) hiswithholding of the Old Town Police Department report from thePlaintiffs while providing it to the lawyer for the Complainant;2) his obligation as the Officer to disclose the police report tothe Plaintiffs and to the Committee; and, 3) his dual role asprosecutor and guardian of fair play. Id. The remaining sevenissues touched less directly on Mr. Fiacco's conduct of theinvestigation and role at the disciplinary hearing. Id. TheAppeal Committee knew as of October 8, 2002, or shortly thereafter, thatthe Plaintiffs had focused their appeal in part on Mr. Fiacco'sactions.

Nevertheless, possibly with the assistance of Universitycounsel, Todd Cabelka, the Appeal Committee put together a listof questions for Mr. Fiacco. SMF ¶ 238. The questions coveredmany of the same subjects in the Plaintiffs' "Statement ofSpecific Points on Appeal" and included the following subjects: 1. the standard practices for gathering evidence and exhibits and preparing and presenting material for both the complainants and respondents before the hearing; 2. timing of witness lists and whether witnesses may be added the day of the hearing; 3. the procedures in place for determining the role of the conduct officer to advocate for the parties; 4. whether the conduct officer must provide respondent access to all information presented to the committee before the hearing; 5. the procedures in place for providing respondent access to information which will be presented to the committee; 6. the procedures in place for providing respondent access to information gained during the conduct officer's investigation phase; 7. the procedures in place for providing complainant access to information gained during the conduct officer's investigation phase; 8. the procedures governing the conduct officer's determination of what information is provided to complainant, respondent, and committee and when it is provided; 9. the procedures in place for determining information provided to the committee; 10. the procedures for determining the level of sanctions; 11. the procedures for recording the committee hearing; 12. the procedures for establishing witness lists and notification of witnesses; 13. the procedures for notification of witness lists to the complainant and respondent; and, 14. the procedures for the submission of supporting documentation for the complainant and respondentWhelan Dep. Ex. 6. Mr. Fiacco responded in writing to the AppealCommittee, but his response was not made available to theComplainant or the Plaintiffs. SMF ¶ 239. The Plaintiffs raise three issues: 1) they argue Mr. Fiacco'scontact with the Appeal Committee constituted an ex partecontact violative of due process; 2) they contend "Mr. Fiacco'sresponses . . . went far beyond a general description ofprocedures and took on a distinctly adversary tone towards theRespondents' positions"; and, 3) they state his responses toquestions 2, 8, and 10 were erroneous. Obj. to Mot. for Summ. J.at 27-28.

This Court agrees with the Plaintiffs that, particularly in thecircumstances of this case, Mr. Fiacco should not have separatelycommunicated with the Appeal Committee. It is true that, at theappeal stage, Mr. Fiacco was not technically a party; theComplainant and the Plaintiffs were separately represented bycounsel; and, the decision before the Appeal Committee was nothis, but the Hearing Committee's. There is also authority that inthe course of an agency adjudication, a decisionmaker may consultbehind the scenes with agency staff without running afoul of aparty's right to due process. See RSR Corp. v. FTC,656 F.2d 718, 724 (D.C. Cir. 1981), cert. denied, 445 U.S. 927 (1980);Maine Care Servs., Inc. v. USDA, No. CIV. 00-358-P-H, 2001 WL1399516, at *11 (D. Me. Nov. 9, 2001); New England Tel. & Tel.Co. v. Pub. Utils. Comm'n, 448 A.2d 272, 279 (Me. 1982).

Nevertheless, the Plaintiffs had informed the Appeal Committeethey were concerned about Mr. Fiacco's investigation and his roleat the hearing and that Mr. Fiacco's actions were, from theirperspective, a central issue on appeal. The Appeal Committee wascharged with reviewing the case for procedural errors, and Mr.Costlow's October 8, 2002 letter made it clear the Plaintiffswere contending Mr. Fiacco had committed such errors and hadacted unfairly toward them. Further, from September 9, 2002, whenhe referred the case to the Hearing Committee, until September17, 2002, when he was informed that the Complainant wished topresent her own case, Mr. Fiacco, as the Officer under the Code,was the person charged with presenting the allegations against the Plaintiffs. SMF ¶ 178,Code § V.D.4.d. In these circumstances, Mr. Fiacco should nothave been communicating ex parte with the Appeal Committee.

Whether Mr. Fiacco's ex parte contact with the AppealCommittee constituted a deprivation of due process, however, ismore opaque.49 Ex parte communications can "shadow theimpartiality, or at least the appearance of impartiality," of aproceeding and "may, in some circumstances, constitute adeprivation of due process of law." Grieco v. Meachum,533 F.2d 713, 719 (1st Cir. 1976), cert. denied, 429 U.S. 858 (1976),overruled on other grounds by Maine v. Moulton, 474 U.S. 159(1985). Even though ex parte contacts are "improper and shouldbe discouraged," a court will vacate a proceeding on due processgrounds only where the "integrity of the process and the fairnessof the result were irrevocably tainted by the communications."Springfield Terminal Ry. Co. v. United Transp. Union,767 F. Supp. 333, 349 (D. Me. 1991). There are a number of factors toconsider: 1) the gravity of the contact; 2) whether the contactmay have influenced the decision; 3) whether the party making thecontact benefited from the decision; 4) whether the contents ofthe communications were unknown to the opposing parties, who hadno opportunity to respond; and, 5) whether vacation of thedecision and remand for further proceedings would serve a usefulpurpose. Prof'l Air Traffic Controllers Org. v. Fed. LaborRelations Auth., 685 F.2d 547, 564-65 (D.C. Cir. 1982)(PATCO).

Here, the ex parte contact took place at the appeals stage.The Supreme Court of Texas and the Seventh Circuit have concludedthat ex parte presentation of evidence at fact-finding hearingsdenies due process. Swank v. Smart, 898 F.2d 1247, 1253 (7thCir. 1990), cert. denied, 498 U.S. 853 (1990); Univ. of TexasMed. Sch. v. Than, 901 S.W. 2d 926 (Tex. 1995). As earlier noted, having received a full measure of due process at thehearing, the Plaintiffs are not entitled to any appeal under thedue process clause. Nevertheless, because the University accordedthe parties an appeal, it was required to carry out afundamentally fair process.50 See Griffin,351 U.S. at 18.

The heart of the Plaintiffs' contention is that Mr. Fiaccosupplied the Appeal Committee with erroneous information, and itis here — the gravity of the contact and its influence on thedecision — that the Plaintiffs' due process claimfounders.51 The focus of the Plaintiffs'complaint52 is that Mr. Fiacco misrepresented certainfacts: 1) that the Plaintiffs had not submitted a witness listprior to the hearing; 2) that Mr. Costlow's silence after he hadchecked with his office about the receipt of police recordsallows an inference that his office had received the records;and, 3) that the Plaintiffs "for unexplained reasons" failed toprovide the Hearing Committee with an argument on sanctions. Obj.to Mot. for Summ. J. at 27.

Upon analysis, the Plaintiffs fall far short of demonstratingthat Mr. Fiacco's statements rendered the appeal processirrevocably tainted with fundamental unfairness. Turning to the witness statement, the record reveals Mr. Fiacco's statementabout the Plaintiffs' failure to submit a witness list wasdemonstrably incorrect, based on other documentation before theAppeal Committee. Mr. Costlow's September 13, 2002 letter to Mr.Fiacco in which he listed the Plaintiffs' potential witnesses wasin the Hearing Committee's binder.53 Moreover, thePlaintiffs' procedural argument concerned Dr. Allan's decision toallow testimony from the Complainant's unlisted witnesses.Whether the Plaintiffs filed their own list bears tangential, ifany, relevance to this issue. Third, the Chair had the discretionin any event to allow the testimony of unlisted witnesses. Seesupra Part IV (C)(3)(a)(ii).

Mr. Fiacco's suggestion that negative inferences should bedrawn from Mr. Costlow's silence regarding his office's receiptof the police records and his insertion of "unexplained"regarding the absence of an argument on sanctions are obviouslyMr. Fiacco's personal opinion, not facts. The Appeal Committeewas perfectly capable of drawing its own inferences from therecord before it, and there is no evidence it was undulyinfluenced by Mr. Fiacco's unsolicited remarks. In short, thePlaintiffs' justifiable criticisms of Mr. Fiacco's ex partecontacts fail to rise to the level of a due processconcern.54

(b) Mr. Cabelka's Ex Parte Contact

The Plaintiffs argue the Appeal Committee's ongoing contactswith University Counsel Mr. Cabelka violated their due processrights. They claim Mr. Cabelka "severely restricted the AppealsCommittee's perception of its role in the process." Obj. to Mot.for Summ. J. at 28. On October 10, 2002, Mr. Cabelka faxed a six-page legal memorandumto the Appeal Committee Chair, Mr. Whelan. SMF ¶ 251. Mr. Whelandistributed the Cabelka memorandum to the other members of theAppeal Committee, and during one of its meetings, the AppealCommittee discussed the memorandum with Mr. Cabelka. Id. ThePlaintiffs argue this "memorandum selectively laid out cases andother legal authority in connection with some of the issues theAppeal Committee was considering, and painstakingly spelled out aone-sided view as to how limited the Respondents' rights were."Obj. to Mot. for Summ. J. at 28.

This argument is frivolous. Mr. Cabelka acted as counsel to theAppeal Committee. Unlike Mr. Fiacco, his earlier actions were notan issue on appeal nor had he been called a fact witness at thehearing. The Appeal Committee has a right to rely on staffsupport, including legal counsel. See Morgan v. United States,298 U.S. 468, 481-82 (1936); Normile v. McFague, 685 F.2d 9, 12(1st Cir. 1982). Simply because Mr. Cabelka's legal advice didnot coincide with the Plaintiffs' legal argument does not mean hewas engaged in improper ex parte communications with the AppealCommittee.55

4. Qualified Immunity

Under well established law, individual defendants are entitledto qualified immunity for official action unless: (1) theirconduct violated a constitutional right; and, (2) the law to thiseffect was "clearly established" under then-existing law so thata reasonable official would have known that his behavior wasunlawful. Saucier v. Katz, 533 U.S. 194, 201 (2001); Dwan v.City of Boston, 329 F.3d 275, 278 (1st Cir. 2003) (citationsomitted). Qualified immunity provides "an entitlement not tostand trial or face the other burdens of litigation." Saucier,533 U.S. at 200 (citation omitted); Riverdale Mills Corp. v.Pimpare, 392 F.3d 55, 60 (1st Cir. 2004). It is "designed to protect most public officials: `[I]t provides ampleprotection to all but the plainly incompetent or those whoknowingly violate the law.'" Riverdale Mills, 392 F.3d at 60(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Takingthe Plaintiffs' allegations in a light most favorable to them,this Court concludes the individual Defendants did not violatetheir due process rights; the individual Defendants are,therefore, entitled to qualified immunity.56 Judgmentwill be entered in favor of the individual Defendants and againstthe Plaintiffs on Count II of the Plaintiffs' Amended Complaint.

D. Count III: Breach of Contract57

In Count III, the Plaintiffs turn to the contract betweenthemselves and the University and argue the contract imposeddistinct and enhanced obligations, which provide alternativegrounds for relief. The student-college relationship isessentially contractual in nature. Mangla v. Brown Univ.,135 F.3d 80, 83 (1st Cir. 1998); Goodman v. President & Trs. ofBowdoin Coll., 135 F. Supp. 2d 40, 55 (D. Me. 2001).

1. Contractual Obligation to Provide a Fundamentally FairHearing

The Plaintiffs contend the University violated its contractualobligation to provide a fundamentally fair hearing. The Codestates: "THE UNIVERSITY'S ADMINISTRATIVE PROCESS AFFORDSFUNDAMENTAL FAIRNESS, BUT DOES NOT FOLLOW THE TRADITIONAL COMMONLAW ADVERSARIAL METHOD OF A COURT OF LAW." SMF ¶ 103; Code,Policy Statement. The concept of "fundamental fairness" isequivalent to due process. See Newman v. Massachusetts,884 F.2d 19, 23 (1st Cir. 1989), cert. denied, 493 U.S. 1078 (1990). The Plaintiffs concede the "facts and law supporting[their] due process claims against the individual defendantsunder Section 1983 . . . also form bases for [their] contractclaims against [the University]." Obj. to Mot. for Summ. J. at30. Because the Plaintiffs failed to demonstrate a genuine issueof material fact regarding their due process claims, they cannotshow they were contractually denied a fundamentally fair hearing.

2. Breach of Specific Contractual Provisions

The Plaintiffs' second contention is that various proceduresemployed by the University failed to comply with the Code. Theterms of the student-college contract may include "statementsprovided in student manuals and registration materials."Mangla, 135 F.3d at 83. The proper standard for interpretingcontractual terms is "reasonable expectation — what meaning theparty making the manifestation, the university, should reasonablyexpect the other party to give it." Id. (citation and internalpunctuation omitted). Therefore, this Court must apply a"reasonable expectation" test to the Plaintiffs'claims.58

a. Old Town Police Department Documents

The Student Code provides: At the discretion of the Chair, the Respondent may submit written documents, oral testimony of witnesses, and all relevant documents, records, and exhibits at the time of the hearing. . . . . During the hearing the Committee may consider any relevant information, shall not be bound by the strict rules of legal evidence, and may take into account any information which is of value in determining the issues involved. Efforts will be made to obtain the most reliable information available.Code §§ V.D.4.e., i. The Plaintiffs claim that, by denying themthe police records, the University failed to meet threecontractual obligations: (1) to permit the Plaintiffs to submitall relevant documents; (2) to permit the Hearing Committee to consider anyrelevant information; and, (3) to make efforts to obtain the mostreliable information available. Obj. to Mot. for Summ. J. at 31.

The Plaintiffs, in effect, would have these Code sectionsbecome contractual discovery provisions, mandating the Universityturn over any "relevant" or "reliable" information so the studentmay exercise his contractual rights. The Plaintiffs' argumentstrains construction.59 Located under the heading"Hearing Procedures," the provisions give general guidance aboutthe order and nature of the presentations at the hearing. TheCode nowhere provides that a respondent has a right to access allmaterial the Officer collects during the investigation, and thisCourt cannot conclude a student would have the "reasonableexpectation" that this Code language granted such a contractualright.

b. Impartial Tribunal

The Plaintiffs argue Dr. Allan did not follow the provisions of§ V.D.2.b. of the Code, which provides: The Respondent charged with the violation, the Officer, and the Complainant shall have the right to challenge for cause any member of the Committee by submitting to a designated official a written memorandum stating the grounds for this challenge at least two days prior to the scheduled meeting. Removal of members for cause shall be within the authority and at the discretion of the Chair of the Committee or another member of the Committee if the Chair is unable to exercise that function or is challenged for cause.Code § V.D.2.b. The Code permits a party to challenge for causeany committee member he believes is biased. It also provides thatif the Chair is challenged, she must refer the challenge to"another member of the Committee." Id. Here, the Plaintiffs again seek to transform Code language intoa discovery provision. The Code does not provide for voir dire,and this provision does not grant such a right. Moreover, thePlaintiffs failed to challenge the Chair, after being notifiedthey could do so. Although the Code does not permit voir dire ofthe Hearing Committee members, the members were instructed totell Dr. Allan if they were unable to judge the case fairly. SMF¶ 84; Costlow Dep. Ex. 23. The University's procedures compliedwith the terms of this provision, and the Plaintiffs' claim ofcontractual breach fails.

c. Witness List

Code § V.D.1.b. states the Chair must "[l]ist in the notice tothe Respondent the names of the Committee member(s) hearing theappeal and witnesses being invited by the Officer." Here, onSeptember 17, 2002, the Complainant informed the University shewas going to present her own case. SMF ¶ 178. The Code does notrequire the University to provide a list of witnesses acomplainant intends to call; it only requires the notice includethose witnesses "being invited by the officer." Code § V.D.1.b.The September 17th notice included the witnesses Mr. Fiaccoinvited. SMF ¶ 106. The University complied with the expresslanguage of the Code.

Nevertheless, the Plaintiffs argue that, when the Complainantundertook the presentation of evidence, her attorney, Mr.Hallett, became the "officer," defined in the Code as the"[p]erson(s) or designee responsible for adjudicating allegedviolations of the Code," Code § II.G., and Mr. Fiacco "shouldhave required Hallett to do what Fiacco would have had to dohimself if he had presented the case, and that is provide acomplete list of all witnesses." Obj. to Mot. for Summ. J. at 21.But, Mr. Hallett acted as the Complaint's advisor; he neverassumed Mr. Fiacco's role as "officer." He never adjudicated thealleged violation.60 Moreover, the Code does not require a complainant, as opposed to the Officer, toprovide a list of witnesses. By its terms, this provision doesnot apply to the Complainant and was not breached by theUniversity.

d. Sanction Recommendation

Section V.D.4.h. provides that "the Officer or his/her advisorand the Respondent or his/her advisor may make recommendations tothe Committee as to the appropriate sanctions should aviolation(s) be found to have been committed." The Plaintiffsallege they were not given the opportunity to address sanctionsduring the hearing.61 However, Mr. Costlow made closingremarks on behalf of the Plaintiffs during which he alluded tothe impact of the decision and proper punishment. SMF ¶¶ 99, 277.There is no evidence the University denied the Plaintiffs anopportunity to comment on or recommend sanctions. The Plaintiffs'failure to do so more explicitly does not state a contractualbreach by the University.

e. Procedural Errors

Section V.E.1. of the Code states, "In the event the Committeeapproves a sanction of Suspension or Dismissal . . . theRespondent may request review by the President or his/herdesignee." Section V.E.1.a. provides that review of the appealshall be limited to "[r]eview of the procedures followed. In theevent of a procedural error, the President or his/her designeeshall reverse and remand the case to the Committee for a newhearing." (Emphasis added). The Plaintiffs allege the Defendantshad an obligation to reverse the Hearing Committee decision andremand for a new hearing because of alleged procedural errors.This Court has concluded there were no procedural errors to justify reversal. This contractualprovision was therefore not violated.

f. Appeal

The Code states that review of the appeal "shall be . . .limited" to "[r]eview of the procedures followed" and the"[a]ppropriateness of the sanction." Code § V.E.1.a., b. It isreasonable for the University to expect a student reading theseprovisions would not believe the University was required toreview the merits of the case. The Appeal Committee followed thestrictures of the Code and evaluated the Hearing Committeedecision for procedural errors and the appropriateness of thesanctions. The Defendants did not breach the contract provisionsrelating to appeals.

E. Counts VI, VII, VIII, and IX: Tort Claims

Count VI, VII, and VIII allege negligence, defamation, andnegligent and/or intentional infliction of emotional distressagainst all the Defendants; Count IX alleges negligentmisrepresentation against the University, its Trustees, andindividual Defendants Fiacco and Dana. The Defendants contendthey are immune from these tort claims under the Maine TortClaims Act (the Act).

1. Individual Defendants

Under the Act, employees of governmental entities areabsolutely immune from personal civil liability for: (1)discretionary acts performed within the scope of theiremployment; and, (2) intentional acts or omissions occurring inthe scope of their employment, provided that such immunity doesnot exist in any case in which an employee's actions are found tohave been in bad faith. 14 M.R.S.A. §§ 8111(1)(C) & (E). Thisimmunity "insulates from personal liability a government employeewho has been legislatively authorized to perform somediscretionary function and `has acted, or has failed to act, pursuant to thatauthorization.'" Darling v. Augusta Mental Health Inst.,535 A.2d 421, 425 (Me. 1987) (quoting True v. Ladner, 513 A.2d 257,260 (Me. 1986)). In response to True, the Maine Legislatureamended § 8111(1), expanding the scope of discretionary actsbeyond those expressly authorized by "statute, charter,ordinance, order, resolution, rule or resolve" to include those"reasonably encompassed by the duties of the governmentalemployee." See L.D. 2443, 2d Sess. 16 (113th Leg. 1988);Grossman v. Richards, 1999 ME 9, ¶¶ 5-12, 722 A.2d 371, 373-75.

In Darling, the Law Court established a four-prong test todetermine governmental immunity: (1) whether the act necessarilyinvolves a basic governmental policy, program or objective; (2)whether the act is essential to the realization or accomplishmentof that policy, program, or objective as opposed to one whichwould not change the course or direction of the policy, program,or objective; (3) whether the act requires the exercise of basicpolicy evaluation, judgment, and expertise on the part of thegovernmental entity involved; and, (4) whether the governmentpossesses the requisite constitutional, statutory, or lawfulauthority and duty to do or make the challenged act. Darling,535 A.2d at 426.

In their Objection to Motion for Summary Judgment, thePlaintiffs argue that summary judgment should not be granted onthe question of individual immunity because the Universityemployees acted intentionally and in bad faith. Obj. to Mot. forSumm. J. at 33-34 (citing § 8111(1)(E)). In support, they citeTrafton v. Devlin, 43 F. Supp. 2d 56 (D. Me. 1999). InTrafton, however, Judge Brody made a preliminary determinationthat the failure of the warden service to turn over exculpatoryevidence to the defense was not a discretionary act under §8111(1)(C). Trafton, 43 F. Supp. 2d at 61. He then reached thequestion of whether the wardens were immune under § 8111(1)(E).Id. at 61-62. Here, by contrast, this Court concluded the acts of theindividual Defendants were discretionary acts within the meaningof § 8111(1)(C): "[I]nvestigating a student disciplinarycomplaint, conducting a disciplinary hearing, and issuing adecision would seem by the nature of the activity not to beministerial duties, to require the exercise of discretion, and tobe within the scope of the official's legal authorization."Gomes, 304 F. Supp. 2d at 135. A defendant needs to be immuneunder only one provision. The Maine Supreme Judicial Court hasheld that if an employee is immune under § 8111(1)(C), the Courtdoes not reach the issue of bad faith under § 8111(1)(E).Grossman, 1999 ME 9, ¶ 10, 722 A.2d at 374-75 (the "`bad faithproviso' in subparagraph E does not apply to the absoluteimmunity that subparagraphs A through D provide."); Berard v.McKinnis, 1997 ME 186, ¶ 11 n. 7, 699 A.2d 1148, 1152 n. 7;Dall v. Caron, 628 A.2d 117, 119 (Me. 1993). Because theindividual Defendants performed a discretionary function or dutyunder § 8111(1)(C), they are "absolutely immune" from personalcivil liability. See § 8111(1).

2. University Defendants

a. The University's Failure to Demonstrate an Absence ofInsurance Coverage

The Act provides that governmental entities are immune fromsuit on tort claims unless immunity is removed by statute.14 M.R.S.A. § 8103(1); see also id. § 8104-B(3) (the Act providesa discretionary function immunity to a governmental entity forany claim which results from "[p]erforming or failing to performa discretionary function or duty, whether or not the discretionis abused and whether or not any statute, charter, ordinance,order, resolution or policy under which the discretionaryfunction or duty is performed is valid or invalid."). However, ifa governmental entity procures insurance that provides coveragein areas where the governmental entity is immune under the Act,the entity waives its immunity to the limits of the insurance coverage. Id. § 8116; Napier v. Town of Windham,187 F.3d 177, 190 (1st Cir. 1999). As governmental immunity is anaffirmative defense, the University bears the burden to establishit had no insurance coverage for the Plaintiffs' claims. SeeNapier, 187 F.3d at 190.

The Plaintiffs argue this Court should not grant summaryjudgment on their tort claims against the University Defendantsbecause the University has failed to show that it has not waivedits statutory immunities by procuring liability insurance. ThisCourt addressed this waiver issue in its previous order: "Asqualified immunity is an affirmative defense and as there is noevidence of an absence of coverage, the Plaintiffs properly arguethat the Complaint as against the University is not subject to aRule 12(b)(6) dismissal." Gomes, 304 F. Supp. 2d at 131.Nothing has changed since then; the University has not producedevidence it does not possess insurance coverage for the tortclaims.62 Under § 8116, the University may have waivedits statutory immunities by procuring liability insurancecoverage, so summary judgment on the basis of those immunities,without proof of no insurance, is premature.63

b. The Merits of the Tort Claims

Even if the University has insurance coverage for the tortclaims, the Defendants are entitled to summary judgment on thoseclaims.

i. Negligence

In their negligence claim, the Plaintiffs allege the"Defendants had a duty to act with reasonable care in conductingdisciplinary proceedings against the Plaintiffs under the StudentConduct Code" and that the Defendants' failure to do so causedthem harm. Am. Compl. ¶ 41. In their Objection to Motion forSummary Judgment, they assert that the Defendants "breached that duty by failing to take reasonable steps to ensure a fairhearing, as described above with respect to Plaintiffs' dueprocess claims." Obj. to Mot. for Summ. J. at 34-35.

In Maine, as elsewhere, a prima facie case of negligencerequires a plaintiff to establish four elements: duty, breach,causation, and damages. Mastriano v. Blyer, 2001 ME 134, ¶ 11,779 A.2d 951, 954. A duty is "an obligation, to which the lawwill give recognition and effect, to conform to a particularmanner of conduct toward another." Budzko v. One City Ctr.Assocs. Ltd. P'ship, 2001 ME 37, ¶ 10, 767 A.2d 310, 313(citation and internal punctuation omitted). A college has alegal duty to exercise reasonable care towards its students.Searles v. Trs. of St. Joseph's Coll., 1997 ME 128, ¶ 5,695 A.2d 1206, 1209. "Duty involves the question of whether thedefendant is under any obligation for the benefit of theparticular plaintiff. When a court imposes a duty in a negligencecase, the duty is always the same — to conform to the legalstandard of reasonable conduct in the light of the apparentrisk." Id. (citation and internal punctuation omitted).

The Plaintiffs' allegations of negligence track theirallegations of due process violations, and this Court hasdetermined no constitutional violations took place. Applying a"reasonable care" analysis to the University's conduct of thedisciplinary proceedings results in the same conclusion thisCourt reached in its due process analysis. Even when viewed in alight most favorable to the Plaintiffs, this Court cannotconclude the University Defendants breached their duty ofreasonable care.

ii. Defamation

The Plaintiffs allege the "Defendants, through their statementsand actions, have falsely stated that Plaintiffs committed asexual offense" and that the "Defendants' actions in conductingthe hearing and suspending the Plaintiffs, and any other publicstatements made by the Defendants regarding the suspension, constitute an unprivilegedpublication of false and defamatory information." Am. Compl. ¶43. The Plaintiffs point to four allegedly defamatory statements:1) the University's disciplinary decision; 2) statements by Mr.Dana, Dean of Student Affairs, to the Blethan Maine Newspapers,Inc.;64 3) a letter to the National Collegiate AthleticAssociation (NCAA) by Attorney Paul Chaiken;65 and, 4)compelled self-publication.66 Obj. to Mot. for Summ. J.at 36-37.

The defamation claim assumes a counterintuitive posture in thecontext of the Defendants' Motion for Summary Judgment. ThisCourt is required to view the facts in a light most favorable tothe Plaintiffs, and in their Amended Complaint and statement ofmaterial facts, they state the Complainant's allegation of asexual assault was false and the sexual activity was consensual.Am. Comp. ¶ 15; SMF ¶ 274. Once this Court assumes the sexualactivity was consensual and the conclusions of the HearingCommittee were wrong, the Plaintiffs argue publication of thesefalse conclusions constitutes defamation, or, at least in thecontext of this motion, raises a factual question as to whetherthe University Defendants defamed the Plaintiffs. See Donatelliv. UnumProvident Corp., No. 04-1-P-S, 2004 U.S. Dist. LEXIS25866, at * 41 (D. Me. Dec. 22, 2004) ("Whether a conditionalprivilege has been abused is a question of fact."); Rippett v.Bemis, 672 A.2d 82, 87 (Me. 1996) (whether a conditionalprivilege arises is a question of law; whether the statement wasrequired or permitted is a question of fact). Under Maine law, defamation requires: (1) a false anddefamatory statement concerning another; (2) an unprivilegedpublication to a third party; (3) fault amounting at least tonegligence on the part of the publisher; and, (4) eitheractionability of the statement irrespective of special harm orthe existence of special harm caused by the publication.Rippett, 672 A.2d at 86 (citing Lester v. Powers,596 A.2d 65, 69 (Me. 1991)).

Even if the Plaintiffs were to establish a prima faciedefamation case, a statement from a University official that thePlaintiffs were found to have violated the Code is conditionallyprivileged. "A conditional privilege against liability fordefamation arises in settings where society has an interest inpromoting free, but not absolutely unfettered, speech." Lester,596 A.2d at 69 (tenure review); see also Rice v. Alley,2002 ME 43, ¶¶ 24-26, 791 A.2d 932, 937-38 (statements about member andofficer of Elks Lodge Auxiliary conditionally privileged); Colev. Chandler, 2000 ME 104, ¶ 6, 752 A.2d 1189, 1193 (employerentitled to conditional privilege in slander case arising out oftermination of employment relationship); McCullough v. VisitingNurse Serv. of S. Maine, Inc., 1997 ME 55, ¶ 11, 691 A.2d 1201,1204 (statements among members of employer's managementconcerning disciplinary action against terminated employee wereconditionally privileged); Onat v. Penobscot Bay Med. Ctr.,574 A.2d 872, 874 (Me. 1990) (anesthesiologist failed to show thatmembers of peer review board acted with malice when theysuspended his staff privileges, as was necessary to his claim ofdefamation); Gautschi v. Maisel, 565 A.2d 1009, 1011 (Me. 1989)(professor had conditional privilege to communicate to tenurecommittee the contents of a telephone conversation with professorat another college where candidate had previously been employed,during which that professor made negative comments regardingcandidate's scholastic qualifications, and candidate was not ableto establish falsity of statements attributable to professor athis former college, or malice on the part of tenure committee member in communicating statements). "Conditionalprivilege is based upon the circumstances of `the occasion uponwhich the defendant published defamatory matter.'" Lester,596 A.2d at 70 (citation omiited). There is no list of particularsettings to which conditional privileges are restricted; instead,a weighing approach based on the totality of the circumstances,in view of the interests of the publisher and the recipient, isused. Id. "If a conditional privilege exists, liability fordefamation attaches only if the person who made the defamatorystatements loses the privilege through abusing it. . . . Such anabuse occurs when the person either knows the statement to befalse or recklessly disregards its truth or falsity." Id. at69.

Maine has not directly addressed whether a conditionalprivilege attaches to a student disciplinary procedure; however,it has extended a conditional privilege to college tenurereviews, medical staff peer reviews, employment terminations, andeven to statements about a member and officer of the Elks LodgeAuxiliary. The Plaintiffs concede, and this Court agrees, that auniversity disciplinary proceeding for a student is a setting"where society has an interest in promoting free, but notabsolutely unfettered speech," id., and the conditionalprivilege attaches to university statements concerning theproceeding. See Tynecki v. Tufts Univ. Sch. of Dental Med.,875 F. Supp. 26, 35 (D. Mass. 1994); Vargo v. Hunt, 581 A.2d 625,627 (Pa.Super.Ct. 1990).

If the defendant is entitled to a conditional privilege, theburden shifts to the plaintiff to "`come forward with evidencethat could go to a jury that [the defendant] abused theprivilege.'" Cole, 2000 ME 104, ¶ 7, 752 A.2d at 1194 (quotingGautschi, 565 A.2d at 1011). Abuse includes "making thestatement outside normal channels or with malicious intent."Id. For purposes of defamation claims, malice means when theoriginator of the statement "knows his statement to be false,recklessly disregards its truth or falsity, or acts with spite orill will." Id. (citations and internal punctuation omitted). Reckless disregardfor the truth can be proved by evidence that "establishes thatthe maker of a statement had a high degree of awareness ofprobable falsity or serious doubt as to the truth of thestatement." Rippett, 672 A.2d at 87 (citation and internalpunctuation omitted). In Lester, the Maine Supreme JudicialCourt explained that a loss of a conditional privilege may occurwhen the statement is made "not for the purpose of protecting theinterest giving rise to the privilege, but out of other motivesentirely, such as spite or ill-will." Lester, 596 A.2d at 69 n.7.

Even when viewed in a light most favorable to the Plaintiffs,none of the four allegedly defamatory statements comes close tomeeting the high definitional standards for abuse of theconditional privilege. The first and last of the allegedlydefamatory statements were grounded on the decision of theHearing Committee itself, and there is no evidence the HearingCommittee issued its decision knowing it was false, in recklessdisregard of its truth or falsity, or acted with ill will orspite. The three remaining statements were made after the HearingCommittee had determined the Plaintiffs had committed a sexualassault in violation of the Code and were subject to sanctions.There is simply no evidence Mr. Dana and Mr. Chaiken publishedstatements about the Plaintiffs that amounted to an abuse of theconditional privilege within the Cole definition.

Compelled self-publication provokes an episode of legal tailchasing. Assuming the Hearing Committee's decision was false, Mr.Minor certainly knew it to be false, and his compelledpublication of the University's false decision constituteddefamation by his own hand. The Maine Supreme Judicial Court hasreserved judgment on whether Maine law permits a defamation claimbased upon compelled self-publication; however, this Court hasconcluded Maine would recognize this legal theory. CompareCole, 2000 ME 104, ¶ 5, 752 A.2d at 1193 ("We need not reach the issue of compelledself-publication. . . ."), with Smith v. Heritage Salmon, Inc.,180 F. Supp. 2d 208, 222 (D. Me. 2002), and Carey v. Mt. DesertIsland Hosp., 910 F. Supp. 7, 11-13 (D. Me. 1995).

Assuming compelled self-publication applies, the next step isto determine how the conditional privilege applies. The analysiscannot focus on Mr. Minor's state of knowledge when he made acompelled republication of what he knew to be false. If it did,the result would be a legal syllogism: because he was the allegedperpetrator and knew the decision was false, his republicationwould obviate the conditional privilege defense. Instead, thefocus must be on the University, since it is the entity with theconditional privilege. Thus focused, the conclusion remains thesame: there is no evidence the Hearing Committee violated theCole standards and, therefore, this Court concludes that theUniversity "enjoyed a conditional privilege and did not abusethat privilege." Cole, 2000 ME 104, ¶ 8, 752 A.2d at 1194.

This Court concludes, absent evidence of abuse of theconditional privilege by an official, employee, or attorney ofthe University, the University Defendants are entitled to summaryjudgment on the defamation count.

iii. Intentional Infliction of Emotional Distress

To withstand a motion for summary judgment on a claim ofintentional infliction of emotional distress, a plaintiff mustpresent facts in support of each of the following elements: (1) [T]he defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from her conduct; (2) the conduct was so "extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community"; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was "so severe that no reasonable [person] could be expected to endure it." Curtis v. Porter, 2001 ME 158, ¶ 10, 784 A.2d 18, 22-23 (citations omitted). "In the context of a civil claim for damages, a person may be said to act recklessly if he knows or has reason to know of facts giving rise to a high degree of risk of harm to another and yet deliberately acts, or fails to act, in conscious disregard of that risk." Maine Mut. Fire Ins. Co. v. Gervais, 1998 ME 197, ¶ 12, 715 A.2d 938, 941. The Plaintiffs cannot establish a prima facie case. The Plaintiffs admit the Hearing Committee found that they sexually assaulted the Complainant; the Plaintiffs' disagreement does not transform this finding into an intentionally false statement. iv. Negligent Misrepresentation

The Plaintiffs' negligent misrepresentation claim is based onMr. Fiacco's alleged statement that "he would gather all of thenecessary information from his investigation and forward it tothe SCCC." SMF ¶ 258; Obj. to Mot. for Summ. J. at 38. ThePlaintiffs argue the Defendants are not entitled to summaryjudgment because they "have offered evidence that Fiacco did notforward all of the necessary information from his investigation"to the Hearing Committee. Obj. to Mot. for Summ. J. at 39. ThePlaintiffs cite statements of material fact 33 through 40,statements that concern only the Old Town Police Departmentreports. See SMF ¶¶ 33-40.

In Chapman v. Rideout, 568 A.2d 829, 830 (Me. 1990), the LawCourt adopted § 552(1) of the Restatement (Second) Of Torts(1977) as the standard for claims of negligent misrepresentation.Section 552(1) defines negligent misrepresentation as follows: One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Restatement (Second) of Torts § 552(1). Liability attaches only if, when communicating the information, the defendant "fails to exercise the care or competence of a reasonable person under like circumstances." Rand v. Bath Iron Works Corp., 2003 ME 122, ¶ 13, 832 A.2d 771, 774-75; see also Perry v. H.O. Perry & Son Co., 1998 ME 131, ¶ 5, 711 A.2d 1303, 1305; Chapman, 568 A.2d at 830.

This tort fits awkwardly, if at all, to this case. Negligentmisrepresentation is commonly applied to commercialtransactions.67 Unlike most torts, the damages arelimited to pecuniary loss. Restatement (Second) of Torts § 552(1)(subject to "pecuniary loss caused to them by their justifiablereliance upon the information"); id. § 552B ("The damagesrecoverable for a negligent misrepresentation are those necessaryto compensate the plaintiff for the pecuniary loss to him ofwhich the misrepresentation is a legal cause. . . ."). This Courtis not convinced the facts in this case generate the necessarypredicate for the tort of negligent misrepresentation in thisdisciplinary proceeding.68

If it does apply, the Plaintiffs' contention does not withstandanalysis. Statement of material fact ¶ 258, in which they claimthat Mr. Fiacco stated he would "gather all of the necessaryinformation from his investigation and forward it to the [HearingCommittee]," refers to a portion of Mr. Minor's depositiontranscript.69 Mr. Minor was testifying to his firstmeeting with Mr. Fiacco on August 5, 2002, and he does not assertMr. Fiacco made any mention at that time of Old Town Police Department reports. Minor Dep. at 26.This meeting took place before the Complainant signed an IncidentReport, before the issue of police record confidentiality hadbeen raised by the parties, and before Mr. Fiacco turned astatement in the police report over to the Complainant, but notto the Plaintiffs. Mr. Fiacco's statement to the Plaintiffs wasin the context of a general explanation of the disciplinaryprocess and his role in it. Even viewing the evidence in a lightmost favorable to the Plaintiffs, this Court cannot construe Mr.Fiacco's August 5, 2002 overview of the process as a promise uponwhich the Plaintiffs had a right to rely to place the Old TownPolice Department records before the Hearing Committee. At most,it was a general description of his duties, not a guarantee toprovide specific information to the Hearing Committee.

Further, to recover, the Plaintiffs would have to establishthey had justifiably relied on this representation. By earlySeptember 2002, the basis for any such reliance had dissipated.The Plaintiffs knew Mr. Fiacco was not going to present thepolice reports to the Hearing Committee. Any justifiable reliancein early August 2002 was eclipsed by subsequent events, includingthe involvement of University counsel, questions about theapplicability of 16 M.R.S.A. § 617, and the interposition of theDistrict Attorney's office. The Restatement imposes a strictcontributory negligence standard to the recipient of thefraudulent misrepresentation. Restatement (Second) of Torts §552A; Simmons, Zillman & Gregory, Maine Tort Law § 11.08 at11-15 (2004 ed.) ("[C]ontributory negligence of the recipientbars her recovery.").70 In addition, the action islimited to matters in which the supplier of the information has"a pecuniary interest." Restatement (Second) of Torts § 552(1).There has been no evidence Mr. Fiacco or the University had a "pecuniaryinterest" in the outcome of the disciplinary hearing. See id.

Finally, the Plaintiffs' damages are limited to out-of-pocketlosses. See id. § 552B, Comment a; Maine Tort Law § 11.08 at11-15. The Plaintiffs may not recover for the benefit promised bythe representation. Id. The Plaintiffs have not produced anyevidence from which this Court can conclude they sufferedout-of-pocket losses directly from Mr. Fiacco's failure to supplythe police reports to the Hearing Committee.

F. Count X: Punitive Damages

In light of the disposition of this case, the claim forpunitive damages is dismissed.


This Court GRANTS the Defendants' Motion for Summary Judgment;judgment is to be entered in favor of the Defendants and againstthe Plaintiffs on all remaining counts.

1. On August 27, 2004, the Plaintiffs filed a Request forOrder of Substitution of Parties (Docket No. 91) pursuant toFed.R.Civ.P. 25(d). Peter S. Hoff, who was President of theUniversity at the initiation of the law suit, was no longer thePresident, and Robert Kennedy had assumed the position of InterimPresident. This Court GRANTS the Request for Order ofSubstitution of Parties. Mr. Hoff remains a party only in hisindividual capacity; Mr. Kennedy becomes a party only in hisofficial capacity.

2. On July 20, 2004, the Defendants also filed a Motion toExclude the Testimony of Peter DeTroy, III, Esq. (Docket # 64).In light of this Court's decision to grant the Defendants' Motionfor Summary Judgment, this Motion is moot. The Motion to Excludethe Testimony of Peter DeTroy, III, Esq. is DISMISSED.

3. The parties filed separate statements of material fact;however, on September 14, 2004, the Defendants filed aConsolidated Statement of Material Facts (Docket # 95) to whichthis Court will make reference.

4. The Plaintiffs are African-Americans. Am. Compl. (Docket #42) ¶¶ 1, 2. There is no allegation as to the race of the femalestudent, and the Plaintiffs have made no claim that race played arole in the Defendants' actions.

5. This summary of the provisions of the Code is derived froma deposition exhibit, which is before this Court. The parties didnot formally place the Code before this Court in their statementsof material fact, but there appears to be no controversy as tothe accuracy of the provisions of the Code, and this summary isfor background purposes only.

6. Sexual assault is a violation of the Code. SMF ¶ 3.

7. The Consolidated Statement of Material Facts makesreference to a letter dated September 25, 2002 from the Chair,Dr. Allan, which is attached as an exhibit. The parties have notformally placed this letter before this Court for purposes of thepending motion; nevertheless, there appears to be no disagreementas to the authenticity and accuracy of the letter, and this Courtrefers to its contents to describe the nature and significance ofthe Hearing Committee sanction.

8. The Appeal Committee rejected a contention from thePlaintiffs that Dr. Allan had violated an obligation to providedisclosure of her affiliations, due to what the Plaintiffscontended was potential bias. However, one member concluded thatthe Hearing Committee should not have allowed the Complainant tointroduce materials during the hearing. SMF ¶ 254; Scott Dep. at87-88.

9. As originally cast, Count II also asserted a violation ofsubstantive due process; however, this Court dismissed thatclaim. Gomes v. Univ. of Maine Sys., 304 F. Supp. 2d 117,123-26 (D. Me. 2004).

10. The same could be said, if not more, for the impact of thealleged assault on the Complainant. However, the focus of thislawsuit and this decision is not on her, but on the Plaintiffs.

11. These four interviews resulted in three interviewstatements. This may have been because one of the interviews wasconsidered a continuation of another.

12. Citing United States v. Almonte, 956 F.2d 27, 29 (2dCir. 1992), the Defendants argue the police reports themselveswere not verbatim transcripts of the Complainant's statementsand, therefore, would have been inadmissible, especially if theComplainant had disputed their accuracy. Defs.' Reply Mem. inSupp. of Defs.' Mot. for Summ. J. (Docket # 94) at 4-5. Thisargument is difficult to credit. Consistent with its procedure,the disciplinary hearing was not held in accordance with therules of evidence, and it is highly unlikely, if the policereports had been available, the Chair would have ruled theminadmissible.

13. The thirty-five page police report was faxed to theComplainant's counsel from the local District Attorneys' Office,and its actions, as explained below, are not attributable to theUniversity. See SMF ¶ 36.

14. Keene may have been modified by subsequent case law.Judge Gignoux decided Keene in 1970 after Dixon v. AlabamaState Board of Education, 294 F.2d 150 (5th Cir. 1961), cert.denied, 368 U.S. 930 (1961), but before Nash v. AuburnUniversity, 812 F.2d 655 (11th Cir. 1987). In Nash, theEleventh Circuit clarified that Dixon did not require auniversity to give students facing disciplinary hearings "thenames of the witnesses against them and a summary of theirexpected testimony, when the opposing witnesses will testify inthe presence of the accused." Nash, 812 F.2d at 662-63. Dixonaddressed a hearing where the students were not present and,therefore, had to be given the names of the accusing witnessesand a report of their testimony "to ensure the students' abilityto respond at a later forum." Id. at 663 (citing Dixon,294 F.2d at 155, 159). Here, the Keene requirement of prior noticeof the nature of the evidence may not apply, because thePlaintiffs were aware of the evidence during the hearing and hadan opportunity to respond.

15. During the hearing, the Chair repeatedly made the pointthat the Hearing Committee did not have the police reportseither, implying that this obviated the Plaintiffs' objection. Itdid not. The Plaintiffs' point is that the police reportscontained potentially exculpatory evidence. It is no answer thatthe Hearing Committee does not have the evidence.

16. On September 17, 2002, the Complainant, through herattorney, informed Mr. Fiacco that she did not wish him topresent the results of the investigation to the HearingCommittee. SMF ¶ 178. She presented the case herself with theadvice of her lawyer.

17. The parties' references in their statements of materialfact to the date the Complainant signed the incident reportappear inaccurate; however, it is clear that the Complainantsigned incident reports against the Plaintiffs on August 17,2002. See Costlow Dep. Ex. 6, 7.

18. Not all this information is set forth in the parties'statements of material fact; however, at oral argument, thisCourt confirmed this detailed sequence of events with theparties.

19. The record reflects that in-house counsel Nina Lavoie wasconcerned not only about the release of the police reports to thePlaintiffs, but also about whether Mr. Fiacco's release of thestatement in the report to the Complainant constituted aviolation of law. It should be noted as well that Mr. Fiaccoreleased the statement to the Complainant before questions aboutthe legality of its release were raised.

20. The Plaintiffs conceded as much at oral argument.

21. Mr. Edes is identified as "Jerry Tompseeds" during histestimony. The Court assumes this is a phonetic error by thetranscriber.

22. Although not noted by the parties, the Chair allowed thePlaintiffs to call Mr. Fiacco as a witness, even though he wasnot listed on the Complainant's or their witness lists. HearingCommittee Binder at SCC 105, 117.

23. Although the charges against the students in Dixon werenever specified, the students were all African-Americans, who in1960 entered as a group into a publicly owned lunch grill in thebasement of the county courthouse in Montgomery, Alabama, andafter service was refused and the police arrived, they wereordered into the corridor of the courthouse, where they stayedfor approximately one hour. Dixon, 294 F.2d at 152.

24. This is not to say that all charges, where the student issubject to significant discipline, require the same level of dueprocess. The Supreme Court pointed out in Board of Curators ofthe University of Missouri v. Horowitz, 435 U.S. 78, 86 (1978),there is a difference between the failure of a student to meetacademic standards and the violation of valid rules of conduct,stating this "difference calls for far less stringent proceduralrequirements in the case of an academic dismissal."

25. Nash states the board decided unanimously the studentswere guilty of the charge of academic dishonesty and recommendedthey be suspended, subject to the right to reapply for admissionin one year. Nash, 812 F.2d at 658.

26. The record shows the Plaintiffs failed to ask theComplainant any questions. SMF ¶ 32. The Plaintiffs arguestrenuously that, absent a medical professional, they could nothave known the significance of the medication she had taken thatday. However, they made no effort to ask the Complainant herselfanything about the prescriptive medicine: what the medicationswere for, when she had taken the medicine, whether she had drunkany alcohol, and whether the medicine had any warnings againstingestion of alcohol.

27. Because someone wrote a statement saying the Complainanthad done so does not make it any more or less true than Mr.Edes's written statement saying she would never do so.

28. The Plaintiffs denied they failed to object to theinclusion of the Edes statement in the Hearing Committee binders.SMF ¶ 59. They point to their "blanket objection requesting thatsome witnesses and exhibits be excluded" and Mr. Minor'sobjection to Mr. Edes's testimony on the ground that he did nothave personal knowledge of the events that evening. Id. ThisCourt has reviewed the Plaintiffs' citations to portions of thetranscript of the hearing and concludes there is no evidence thatthe Plaintiffs ever objected to the inclusion of the Edesstatement in the Hearing Committee's binders. Statement ofmaterial fact 59 is deemed admitted over the Plaintiffs' denial.

29. Mr. Edes himself described his letter as a characterreference. The Edes letter was included in the Hearing Committeepacket and followed a note from Mr. Edes to Mr. Fiacco and theComplainant, which read: "Dave, this is a character referencethat [the Complainant] asked me to write up and type for you."SMF ¶ 57; Fiacco Dep. Ex. 9, 10. The Plaintiffs admit the Edesletter "contained a character reference," but differentiate"references to Complainant's prior sexual history." SMF ¶ 57. Inthe context of the Edes letter, this Court does not accept thePlaintiffs' distinction.

30. The Plaintiffs are correct that evidence the Complainanthad not engaged in multi-partner sexual activity is as much astatement of prior sexual history as a statement that she haddone so. But, there is no evidence the Hearing Committee exemptedthe Edes written statement from its prior rulings.

31. Dr. Allan reiterated her ruling on the exclusion of priorsexual history throughout the hearing. SMF ¶ 56, 193.

32. In Cloud v. Trustees of Boston University, 720 F.2d 721,725 (1st Cir. 1983), the First Circuit Court of Appealscharacterized as "spurious" the argument that the hearingexaminer selectively used the rules of evidence.

33. The Plaintiffs' claim the request is indicative of the"Defendants' awareness of the due process implications of theiracts and omissions." Obj. to Mot. for Summ. J. at 30.

34. Gorman cites Wasson v. Trowbridge, 382 F.2d 807 (2dCir. 1967), which explains: The requirement of counsel as an ingredient of fairness is a function of all of the other aspects of the hearing. Where the proceeding is non-criminal in nature, where the hearing is investigative and not adversarial and the government does not proceed through counsel, where the individual concerned is mature and educated, where his knowledge of the events . . . should enable him to develop the facts adequately through available sources, and where the other aspects of the hearing taken as a whole are fair, due process does not require representation by counsel.Wasson, 382 F.2d at 812; see also Jaksa v. Regents of Univ. ofMichigan, 597 F. Supp. 1245, 1252 n. 8 (E.D. Mich. 1984),aff'd, 787 F.2d 590 (6th Cir. 1986).

35. Gabrilowitz stated that counsel's principal functionswould be to advise the student whether he should answer questionsand what he should say to safeguard him from self-incriminationand to observe the hearing to be better prepared to represent thestudent at the criminal proceeding. Gabrilowitz,582 F.2d at 106. To fulfill these functions, the First Circuit noted thatcounsel need speak to no one but the student, but should beavailable to consult with him at all stages of the hearing,especially when the student is being questioned. Id.

36. For the most part, questions were directed to the Chair,who then asked the question to the witness. On occasion, thisprocess broke down and the witness answered questions directly.However, in no case did an attorney question a witness directly.

37. It is also significant that Mr. Costlow moved away fromcounsel table during the Complainant's testimony, but apparentlywas available during his clients' statements. Gabrilowitz'sprimary concern was that counsel be available to the student whenhe testifies to protect his rights against self-incrimination.Gabrilowitz, 582 F.2d at 106. Here, there is no assertion thePlaintiffs did not have the benefit of counsel as they addressedthe Hearing Committee. The secondary concern was that counsel beapprised of the evidence at the hearing to allow betterrepresentation at any subsequent criminal proceeding. Id. Here,Mr. Costlow achieved this objective by moving his chair to obtaina better view of the Complainant as she testified. BothGabrilowitz concerns were met in this case.

38. In support of their allegation, the Plaintiffs highlightDr. Allan's testimony that it is common for a rape responseservice organization or victim advocate organization, such asRape Response Services, to take the view: "If a woman complainsof rape, believe her. To question her is to make her the victim."SMF ¶ 207. Dr. Allan nowhere says she thought this aphorismestablished a standard to be applied during a disciplinaryhearing to determine whether a sexual assault had occurred.

39. The Plaintiffs also point out that the Complainanttestified she was trained at Rape Response Services. SMF ¶ 208.There is, however, no intimation Dr. Allan trained theComplainant and no evidence that the Complainant's traininginfluenced Dr. Allan.

40. The letter was faxed. SMF ¶ 214; Allan Dep. Ex. 2.

41. The Defendants have made the point that Mr. Costlow'sletter asked for voir dire only if the Plaintiffs were accordedthe same right. Mr. Costlow's letter reads: "The complainant byand through her counsel are basically seeking voir dire of themembers of the disciplinary committee because they may have abias for or against the football team. Should voir dire beallowed respondent would seek the same opportunity. . . ."Costlow Dep. Ex. 22 (emphasis added). The Defendants note theHearing Committee denied voir dire to the Complainant and,therefore, the Plaintiffs' request, as phrased, never becameeffective. This is technically true and provides another basisfor rejecting the Plaintiffs' claim, because they nevereffectively requested the relief they now claim they weredenied.

42. Dr. Allan's deposition took place on May 25, 2004.

43. When asked at his deposition if he had any informationthat would allow him to conclude the members of the HearingCommittee were biased or prejudiced, Mr. Gomes responded, "Idon't know that." SMF ¶ 74. Mr. Minor said it made him "a littleuneasy" when he discovered Dr. Allan's affiliations. Id. ¶ 75.When asked to give an example of bias, Mr. Costlow testifiedgenerally that Dr. Allan had allowed in too much "irrelevantprejudicial information . . . demonstrating to me bias and/orlack of understanding of relevancy and its limits." Id. ¶ 76.

44. The record establishes that Dr. Allan ruled against theComplainant on a number of occasions. For example, Dr. Allanoverruled the Complainant's objection that she had to be visibleto the Plaintiffs when testifying at the hearing; she determinedthat the Complainant should not call her mother to testifybecause such testimony would be redundant; she stopped one of theComplainant's witnesses from testifying that the Complainant andMr. Minor had intercourse a few days before this event; and aftera fellow committee member referred to the incident as rape, Dr.Allan referred to it as the "alleged incident." SMF ¶¶ 77-80.

45. It is clearly not the best practice for Mr. Fiacco to havewritten a response under Dr. Allan's name without her permissionor knowledge. However, there is no indication his decision on herbehalf was contrary to University policy or applied unevenly. TheUniversity received voir dire requests from the Complainant andthe Plaintiffs and rejected each. SMF ¶ 212. The rejection isconsistent with the provisions of the Code. Id. ¶ 114.

46. An example is the Complainant's challenge for cause. Oneof the Hearing Committee members arrived wearing a footballjersey and she questioned whether this demonstrated bias in favorof the Plaintiffs. After the Hearing Committee member explainedhe had been asked to participate in the hearing that very dayafter he was already dressed, she withdrew her objection. SMF ¶116.

47. The Plaintiffs base their argument on some contradictorystatements in Dr. Allan's deposition. At one point, Dr. Allantestified she did not believe the Hearing Committee "foundspecific evidence" that the Plaintiffs posed a threat to thecommunity. SMF ¶ 228. After a brief recess, the Defendants'attorney announced Dr. Allan wished to correct her priortestimony, after which Dr. Allan testified, "the committee diddiscuss [the Plaintiffs'] behavior as a threat to the kind ofcommunity that we expect to have at the University of Maine."Id. ¶ 229. The Plaintiffs nowhere explain why the Universityshould be compelled to keep on campus individuals it has foundcommitted a sexual assault. Removing them from campus is adecision the wisdom of which is beyond argument.

48. Griffin says that if a State grants appellate review, itmust not do so in a way that discriminates against some convicteddefendants on account of their poverty. Griffin,351 U.S. at 18. But, the Plaintiffs have not asserted they were denied anappeal on impermissible grounds, only that the scope of issues onappeal was too restrictive.

49. Much of the case law on ex parte contacts is derivedfrom interpretations of the Administrative Procedures Act (APA),which contains an express statutory prohibition of such contacts.See 5 U.S.C. § 554(d). There is no allegation that the APAapplies to the instant case.

50. The term "appeal" infuses judicial concepts into the morerestricted review contemplated by the University's Code. The Codeitself uses the term appeal and thereby clouds the issue. TheAppeal Committee and President's designee revisit the hearingsolely to assess procedural errors and the appropriateness of thesanction. This review process does not encompass the range ofreview attendant, for example, to judicial appellate review. Assuch, the due process standards, which are inherently flexible,may be less rigorous, because the rights are more circumscribed.Nevertheless, because under any standard the University's appealprocess in this case survives challenge, this Court need notattempt to draw such distinctions.

51. This Court is unimpressed with the Plaintiffs' "adversarytone" argument. The Plaintiffs cite no case law, and this Courtis aware of none that establishes a due process right to aneutral tone. A review of Mr. Fiacco's responses fails tosubstantiate the Plaintiffs' complaints. Moreover, if thePlaintiffs were correct, Mr. Fiacco's "advocacy" would havebetrayed his bias. Had it been his intent to advocate, he wouldhave been more effective adopting a tone of objectivity andneutrality.

52. It is unclear whether the Plaintiffs object to anyseparate communication between the Appeal Committee and Mr.Fiacco. The law has long allowed administrative officers to relyon subordinates to sift and analyze the record and preparesummaries and confidential recommendations. Morgan v. UnitedStates, 298 U.S. 468, 481-82 (1936); Normile v. McFague,685 F.2d 9, 12 (1st Cir. 1982). The Appeal Committee questions werenot directed to the case before them. They asked for backgroundinformation about "standard practices" and "procedures in place"for handling disciplinary matters. Demonstrating the dangersinherent in this practice, Mr. Fiacco's responses strayed beyondthe University's general procedures into their application tothis case. The Appeal Committee should have informed the partiesof all its contacts with Mr. Fiacco to give them an opportunityto understand and object, if necessary. The Plaintiffs have not,however, raised any specific objections to the accuracy of thebackground material Mr. Fiacco provided.

53. Perhaps through inadvertence, the parties failed tospecify in their statements of material fact the informationconsidered by the Appeal Committee. The Defendants listed theinformation Mr. Anderson reviewed at the next step in the appealprocess, and this information included the material in theHearing Committee binder. SMF ¶ 95. The parties submitted a copyof the material contained in the Hearing Committee binder, andMr. Costlow's September 13, 2002 letter was included in thebinder. Hearing Committee Binder at SCC 116-17.

54. To complete the PATCO analysis, Mr. Fiacco was not adirect beneficiary of the Appeal Committee decision, though ashis handling of the disciplinary process as the Judicial Officerwas an issue on appeal, he was an indirect beneficiary. There isno evidence that either party had any access to the informationsupplied by Mr. Fiacco until after the Appeals Committeedecision. Finally, this Court is convinced vacating theunderlying decision and remanding to the Hearing Committee wouldserve no useful purpose. PATCO, 685 F.2d at 565.

55. In their objection, the Plaintiffs contend Mr. Cabelka'smemorandum adopted a one-sided view of the legal issues beforethe Appeal Committee. This Court has reviewed the Cabelkamemorandum and finds no such bias.

56. Having concluded the Plaintiffs' rights were not violated,this Court does not reach the questions of whether the individualDefendants' actions were "objectively reasonable" in light of"whether the [Plaintiffs'] rights were clearly established, andwhether the contours of that right were sufficiently clear suchthat a reasonable official would have understood that the actionshe took violated that right." Cotnoir v. Univ. of Maine Sys.,35 F.3d 6, 10 (1st Cir. 1994).

57. The Defendants do not dispute that a contract existsbetween the University and its students. Gomes304 F. Supp. 2d at 130.

58. There is substantial overlap between the Plaintiffs' dueprocess/fundamental fairness claims and their claims that theprocedures provided in the Code were not followed. However, intheir Objection to Motion for Summary Judgment, the Plaintiffsclarify which arguments support their claim that Code procedureswere not followed.

59. This is akin to interpreting Rule 403 of the Federal Rulesof Evidence as granting a discovery right to all "relevantevidence." If the University intended this provision to apply todiscovery, it would have said so.

60. As noted earlier, the role of counsel at the hearing issignificantly limited, and, under the restrictions in the Code,Mr. Hallett did not assume the role of the "Officer" when theComplainant decided to present the case herself.

61. At oral argument, Attorney Richardson argued the Codecontemplated separate processes: determination of responsibilityand, then, determination of sanction. In other words, the HearingCommittee had to make a finding of whether a violation occurred,announce the finding, and then allow the parties to arguesanctions. This view of a bifurcated hearing draws no supportfrom the Code. The Code provides under § V.D.4.g. that "[a]fterthe presentation of all the evidence to the Committee, each party. . . may present arguments to the Committee on the applicabilityof this Code or the interpretation of any sections herein." Under§ V.D.4.h., the Code provides: "At this time, the Officer . . .and the Respondent . . . may make recommendations to theCommittee as to the appropriate sanctions should a violation(s)be found to have been committed." (Emphasis added). The referenceto "[a]t this time" must be to § V.D.4.g.'s presentation ofargument. There is no provision in the Code that requires theHearing Committee to engage in a bifurcated hearing.

62. The University conceded as much at oral argument.

63. Section 8116 "does not waive immunity for otherwise immunemunicipal employees who have insurance; it does that only as to agovernment entity." Napier, 187 F.3d at 190 (citation andinternal punctuation omitted). Therefore, there is no genuineissue as to whether the individual Defendants waived theirstatutory immunity.

64. Mr. Dana spoke with a reporter from Blethen MaineNewspapers about the Hearing Committee findings and sanctions.SMF ¶ 284. Blethen reported the Hearing Committee had found an"off-campus rape" had occurred and the Plaintiffs had beensuspended. Id.

65. Attorney Paul Chaiken, acting for the University, wrote tothe NCAA in September 2003, informing it the University hadconcluded Mr. Minor committed a sexual assault and he had beensuspended. SMF ¶ 281. He enclosed a copy of the Maine DistrictCourt transcript on the temporary protection order. Id. ¶ 282.

66. When Mr. Minor assisted the University of Tennessee Martinwith its application to the NCAA for permission for him to playcollege football, Mr. Minor was required to publish what hecontends were the University's false statements. SMF ¶¶ 279,280.

67. "The reason a narrower scope of liability is fixed fornegligent misrepresentation than for deceit is to be found in thedifference between the obligations of honesty and of care, and inthe significance of this difference to the reasonableexpectations of the users of information that is supplied inconnection with commercial transactions. . . . Any user ofcommercial information may reasonably expect the observance ofthis standard by a supplier of information to whom his use isreasonably foreseeable." Restatement (Second) of Torts § 552,Comment a (emphasis added).

68. In their Amended Complaint, the Plaintiffs allege theUniversity Defendants "supplied false information for theguidance of the Plaintiffs in their transactions as students andstudent athletes." Am. Comp. ¶ 47. The bare allegation survived amotion to dismiss. However, as it is now clear the Plaintiffswere referring to Mr. Fiacco's statement, the theory does not fitthe facts.

69. The cited portion of the transcript reads: "He told usthat his job as the judicial officer was to gather all relevantinformation, put it together. At that time he could either make adecision, or he could recommend it to a committee and give thecommittee all the relevant information on the case." Minor Dep.at 26, lines 18-22.

70. The Restatement acknowledges that, with respect tophysical harms caused by negligence, the old rule thatcontributory negligence is a complete bar is yielding to a trendtoward comparative negligence. However, it states that it is"debatable whether this development should affect liability forpecuniary harm as well." Restatement (Second) of Torts § 552A,Comment b.

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