GOODMAN v. PRESIDENT AND TRUSTEES OF BOWDOIN COLLEGE

Civil No. 00-156-P-C

135 F. Supp.2d 40 (2001) | Cited 0 times | D. Maine | March 16, 2001

MEMORANDUM OF DECISION AND ORDER

This case involves allegations of violations of federal civil rightslaws, 42 U.S.C. § 1981 and 2000d, by Defendants The President andTrustees of Bowdoin College (hereinafter Defendant "Bowdoin College")(Counts I and II), breach of contract claims against Defendant BowdoinCollege (Counts III and IV), and tortious interference with contractclaims against Defendants Robert H. Edwards, President of BowdoinCollege, Craig W. Bradley, Dean of Students at Bowdoin College, MyaMangawang, Assistant Dean of Student Affairs at Bowdoin College, RobertGraves, Director of Residential Life at Bowdoin College, and KarenTilbor, Assistant Dean of Student Affairs at Bowdoin College, (Counts Vand VI) for disciplinary actions taken against Plaintiff George C. W.Goodman in connection with an altercation between Goodman and anotherstudent that occurred on March 19, 1999. Now before the Court isDefendants' Motion to Dismiss with Incorporated Memorandum of Law (DocketNo. 4) (hereinafter "Motion to Dismiss"). Defendants move to dismiss allcounts of Plaintiff's Complaint. For the reasons that follow, the Courtwill grant Defendants' motion with respect to Counts III and V, and denyDefendants' motion with respect to Counts I, II, IV, and VI.

BACKGROUND

Because the Court is considering a motion to dismiss, it "must acceptas true all the factual allegations in the complaint." Leatherman v.Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163,164, 113 S.Ct. 1160, 1161 (1993). Plaintiff's Amended Complaint (DocketNo. 2) alleges the following facts.

Plaintiff, who is "Caucasian and a citizen of the United States," was astudent at Bowdoin College until the Spring of 1999. Amended Complaint¶ 1. On March 19, 1999, Plaintiff and another student at BowdoinCollege, Nam Soo Lee, who is "Asian and a citizen of Korea," engaged in aphysical and verbal altercation, which resulted in a bloody and brokennose to Lee and damage to the tendons on Plaintiff's right hand. Id.¶¶ 1, 11, 19, 23. This altercation began when Plaintiff threw asnowball at a college van that Lee was driving and the snowball hit thevan.

See id. ¶ 19. After the snowball hit the van, Lee backed the vanup to Plaintiff, yelled at Plaintiff, and got out of the van. See id.¶¶ 20-21. Following an exchange of words between Plaintiff and Lee,in which Plaintiff stated to Lee that the snowball throwing had been ajoke, and "lobb[ed] another snowball at the . . . van to show that therehad been no harm meant," Plaintiff began to walk away from Lee andsuggested that Lee return to the van. Id. ¶ 21. Although Lee didreturn to the van, instead of driving away, he backed the van towardsPlaintiff. Eventually, Lee got out of the van and "caught up to Goodmanfrom behind, then grabbed Goodman from behind, spun him around with suchforce that Goodman's jacket ripped from the neck opening to the waist,and then hit Mr. Goodman in the face." Id. ¶¶ 22-23. Plaintiff hitLee back with the intention of defending himself, and "[a] very brieffight ensued," resulting in the alleged injuries. Id. ¶ 23. Thefight ended after Plaintiff pushed Lee away. See id. Plaintiff thenreturned to his residence and telephoned Bowdoin's campus securityofficers to report the incident. See id. ¶ 24.

Lee radioed campus security and was taken to Parkview Hospital to havehis injury examined. See id. ¶ 25. At Parkview, Lee stated in frontof two Bowdoin Police Department officers and one Bowdoin Collegesecurity officer that he was at fault for the events of the evening andthat his angry reaction towards Plaintiff had resulted not merely frombeing hit with the snowball, but also from other affronts that he hadexperienced that week, including students behaving discourteously in thevan and the theft of his coat. See id. Later that same evening, Leeadmitted his fault for the incident to two of his friends. See id.

The school initiated disciplinary proceedings for the stated purpose ofascertaining "the truth as to what occurred" on the night of March 19,1999. Id. ¶ 26. This process consisted of three phases: a JudicialBoard ("J-Board") hearing; a review of that hearing by DefendantBradley, Dean of Students; and an appeal to the AdministrativeCommittee, chaired by Defendant Edwards, President of Bowdoin College.See id. ¶¶ 26-27. In attempting to prepare for the J-Board hearing,Plaintiff was denied access to certain medical records of Lee and theopportunity to interview a security guard who had assisted DefendantMangawang, Assistant Dean of Student Affairs, in her investigation of theincident. See id. ¶ 28.

The J-Board hearings took place on April 13, 1999. Id. ¶ 27.Acting as chair of the proceedings was a student who had previouslystated to Plaintiff that she did not trust his word and expressed inwriting that she would use this distrust against him if he ever appearedbefore the J-Board. See id. ¶ 28. Defendant Mangawang allowed thisstudent to preside over the hearing, but removed from the J-Board aroommate of an eyewitness to the altercation whose testimony favoredPlaintiff. See id. ¶ 28. During the J-Board hearings, DefendantGraves, Director of Residential Life, acted as the complainant againstPlaintiff, and Defendant Tilbor, Assistant Dean of Student Affairs, actedasthe complainant against Lee. See id. ¶ 29. Plaintiff's hearingoccurred first, and the testimony and evidence elicited at Plaintiff'shearing was adopted for the purpose of Lee's hearing. See id. ¶ 27.This evidence supported Plaintiff's version of the events of the night ofMarch 19, including Plaintiff's allegation that Lee had initiated thephysical confrontation by grabbing Plaintiff and hitting him in the face.See id. ¶ 33. Defendant Graves acted as a vigorous prosecutor atPlaintiff's hearing, while Defendant Tilbor exhibited comparativelypassive conduct towards Lee. See id. ¶¶ 29-30. For example, thepolice report introduced by Goodman in support of his version of eventswas discredited in the proceedings, while the race-based explanations andexcuses offered by Lee for his conduct towards Plaintiff on the night ofMarch 19, and his subsequent statements concerning his fault for theincident, remained untested by Defendant Tilbor.

See id. ¶¶ 29-30, 35-40, 42(ix). Lee also testified that he mighthave perceived Plaintiff's conduct as racist and offered this perceptionas a partial explanation for his conduct on that night. See id. ¶¶36-38. These explanations came in the form of responses to questionsasked by Defendant Graves during his examination of Lee. See id. ¶38. The J-Board did not seek to exclude any of this testimony. See id.¶ 41.

The J-Board determined that Plaintiff was entirely at fault for theincident and that Lee was not at fault, and it recommended the sanctionof expulsion for Plaintiff. See id. ¶¶ 32, 34. Defendant Bradleyreviewed the results of the hearing and adopted the J-Board'srecommendation.

See id. ¶¶ 27, 32, 42(xii). As part of his review of therecommendation, Defendant Bradley obtained medical records from ParkviewHospital and interviewed the doctor who had treated Lee on the night ofMarch 19. See id. ¶ 42 (viii). The Administrative Committee,chaired by Defendant Edwards, affirmed this result on appeal. See id.¶¶ 27, 32, 42(xii). In affirming the J-Board's result, theAdministrative Committee explicitly relied on evidence that had not beenpresented at the J-Board hearing but that had been subsequently submittedby Defendants Edwards and Bradley, including affidavits and unswornstatements by individuals; Defendants Edwards and Bradley never submittedPlaintiff's written objection to the post-hearing use of thesesubmissions.

See id. ¶ (42)(x). Ultimately, while Goodman was expelled for theMarch 19 incident, Lee was "fully exonerated." Id. ¶ 1, 32.

Based on these facts, Plaintiff sets forth six claims. In Count I ofthe Amended Complaint, Plaintiff alleges that Defendant Bowdoin College,acting by and through Defendants Mangawang, Bradley, Graves, Tilbor,Edwards, and others, discriminated against Plaintiff in the enforcementof its Student Handbook and Academic Honor and Social Code, in violationof 42 U.S.C. § 1981. Count II alleges that Defendant BowdoinCollege, a recipient of federal funding, violated 42 U.S.C. § 2000dby discriminating against Plaintiff on the grounds of race and nationalorigin through its expulsion of him from Bowdoin College and denial ofthe benefits of a Bowdoin education and degree. In Counts III and IV,Plaintiff alleges breach of contract against Defendant Bowdoin College onthe grounds that the college breached the promises set forth in itsStudent Handbook to refrain from discrimination on account of race ornational origin and to conduct fair and impartial judicial proceedings inwhich students would have the opportunity to present evidence andwitnesses. In Counts V and VI, Plaintiff alleges tortious interferencewith contract against Defendants Edwards, Bradley, Mangawang, Graves, andTilbor, claimingthat by maliciously and fraudulently manipulating theJ-Board proceedings, these Defendants willfully, intentionally, and withmalice induced the breaches alleged in Counts III and IV of the AmendedComplaint.

DISCUSSION

Defendants have moved to dismiss all counts of Plaintiff's AmendedComplaint, and they set forth several theories in support of theirmotion. With regard to Counts I and II, Defendants contend thatPlaintiff has failed to state claims upon which relief can be grantedbecause he has failed to allege facts showing purposeful race — ornational origin — based discrimination with the degree ofspecificity required for civil rights claims. Defendants maintain that ifthe Court decides to dismiss Counts I and II, it must also dismiss CountsIII-VI of the Amended Complaint for lack of diversity jurisdictionbecause the damages alleged by Plaintiff do not establish the requisiteamount in controversy. Defendants also argue that the Court shoulddismiss Counts I and III-VI on the ground that Bowdoin's Student Handbookdoes not constitute a contract under Maine law.

Alternatively, Defendants argue that Counts III and IV should bedismissed because the Amended Complaint does not allege that DefendantBowdoin College acted arbitrarily and capriciously in its decision toexpel Plaintiff and that Counts V and VI should be dismissed becausePlaintiff has failed to allege fraud with the particularity required byFederal Rule of Civil Procedure 9(b). As attachments to their motion,Defendants have submitted several additional documents to the Court,maintaining that the Court may consider these documents withoutconverting their motion into a motion for summary judgment because thedocuments are central to Plaintiff's Amended Complaint.

A. Consideration of Supplemental Papers

As attachments to their Motion to Dismiss, Defendants have submittedthe following exhibits to the Court: Bowdoin's 1998-1999 StudentHandbook (hereinafter "Student Handbook") (Exh. 1); a letter from DeanMangawang to Plaintiff charging him with "[c]onduct which is unbecomingof a Bowdoin student" and "[b]ehavior which endangers the health andsafety of oneself or others" (Exh. 2); the transcript of the J-Boardproceedings (Exh. 3); the J-Board recommendation (Exh. 4); a letter fromDean Bradley to Plaintiff explaining the findings of the J-Board and theconsequent sanction (Exh. 5); a letter from Dean Bradley to Plaintiffsetting forth modifications to the sanction (Exh. 6); and a Report of theAdministrative Committee Meeting of May 21, 1999 (Exh. 7). Defendantshave also attached to their Reply Memorandum (Docket No. 7) a copy ofBowdoin's Academic Honor Code/ Social Code Pledge that Plaintiff hadsigned in acknowledgment of his agreement to abide by Bowdoin's AcademicHonor and Social Code (hereinafter "Social and Honor Pledge") (Exh. 8).Defendants argue that although these documents technically constitutematerial outside the four corners of Plaintiff's Amended Complaint, theCourt may consider these documents in deciding their Motion to Dismisswithout converting it into a motion for summary judgment because thefactual allegations in Plaintiff's Amended Complaint are expressly linkedto and dependent upon these documents. Plaintiff does not oppose theCourt's consideration of the Student Handbook or the Social and HonorPledge but does oppose the Court's consideration of the other documentssubmitted with Defendants' Motion to Dismiss.

"When . . . a complaint's factual allegations are expressly linked to— andadmittedly dependent upon — a document (theauthenticity of which is not challenged), that document effectivelymerges into the pleadings, and the trial court can review it in decidinga motion to dismiss under Rule 12(b)(6)." Beddall v. State St. Bank andTrust Co., 137 F.3d 12, 17 (1st Cir. 1998). When a document has been"incorporated by reference" into the pleadings, a defendant may introducethe document in support of its motion to dismiss. Fudge v. PenthouseInt'l Ltd., 840 F.2d 1012, 1015 (1st Cir. 1988). See also Beddall, 137F.3d at 17. In order for a document to be incorporated into thepleadings, the Court must find that the document is "`referred to in theplaintiff's complaint and . . . central to [a] claim.'" Id. (quotingVenture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7thCir. 1993)). A plaintiff's mere reference to a document or limitedquotation from a document in a complaint does not render the documentincorporated by reference. See Fudge, 840 F.2d at 1015 (citing Goldmanv. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985)).

According to these standards, the Court may consider Bowdoin's StudentHandbook and the signed Social and Honor Pledge. These documents arecentral to Plaintiff's allegation that he has a contractual relationshipwith Bowdoin — an allegation on which Plaintiff's42 U.S.C. § 1981, breach of contract, and tortious interference withcontract claims depend.1 The other documents, although possiblyrelevant to these claims and Plaintiff's § 1981 claim, are not sointegrated into or central to Plaintiff's Amended Complaint as to beincorporated by reference. Defendants accurately point out thatPlaintiff's Amended Complaint contains quotations from the transcript ofthe J-Board proceeding, see Amended Complaint ¶¶ 35-40, but theselimited quotations do not have the effect of incorporating the transcriptinto the Amended Complaint. See Fudge, 840 F.2d at 1015. In decidingDefendants' Motion to Dismiss, therefore, the Court will rely onPlaintiff's Amended Complaint, Bowdoin's Student Handbook, and the Socialand Honor Pledge.

B. Whether Plaintiff Has Adequately Pleaded a Claim for Relief underTitle 42 U.S.C. § 1981 and 2000d

Defendants urge the Court to dismiss Plaintiff's 42 U.S.C. § 1981and 2000d claims, arguing that the Court of Appeals for the First Circuithas imposed a heightened pleading standard on civil rights plaintiffs andthat Plaintiff has failed to allege the "`specific facts adequate to showor raise a plausible inference that [he] was subject to race-baseddiscrimination'" required under this standard. Motion to Dismiss at 7(quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 17 (1st Cir.1989)). Defendants characterize Plaintiff's allegations of race- andnational origin-based discrimination as consisting only of factualallegations of disparate treatment and conclusory allegations assertingrace or national origin as the cause of this treatment. Defendantscontend that such allegations do not fulfill the pleading requirementapplicable to civil rights claims in the First Circuit. Plaintiff setsforth two arguments in response. First, Plaintiff suggests that theSupreme Court's holding and reasoning in Leatherman, 507 U.S. at 165-68,113 S.Ct. at 1162-63, casts doubt on theheightened pleading requirementinvoked by Defendants. Second, Plaintiff argues that, even if the FirstCircuit's heightened pleading requirement continues to apply to hisclaims after Leatherman, his Amended Complaint does meet the applicablestandard. In reply, Defendants insist that the heightened pleadingrequirement that they have invoked remains good law in the First Circuitwith regard to claims such as those filed by Plaintiff, and they maintainthat Plaintiff's allegations fall short of its standard.

Rule 8(a)(2) requires a complaint to contain "a short and plainstatement of the claim showing that the pleader is entitled to relief."In order to survive a motion to dismiss under this standard, a plaintiffmust set forth "factual allegations, either direct or inferential,respecting each material element necessary to sustain recovery under someactionable legal theory." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515(1st Cir. 1988). See also Dartmouth Review, 889 F.2d at 16.

A court should not dismiss a complaint for failure to state a claim"`unless it appears beyond doubt that the plaintiff can prove no set offacts in support of his claim which would entitle him to relief.'" Judgev. City of Lowell, 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)). Accordingly, inevaluating whether a complaint sets forth sufficient factualallegations, a court must take well-pleaded facts as they appear in thecomplaint, indulging every reasonable inference in a plaintiff's favor.See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). However, a Court must "eschew any reliance on bald assertions,unsupported conclusions, and opprobrious epithets." Chongris v. Bd. ofAppeals, 811 F.2d 36, 37 (1st Cir. 1987), cert. denied, 483 U.S. 1021, 107S.Ct. 3266 (1987). At issue is whether Plaintiff's Amended Complaintadequately alleges the elements of violations of 42 U.S.C. § 1981 and2000d. Title 42 U.S.C. § 1981 provides that "[a]ll persons withinthe jurisdiction of the United States shall have the same right in everyState and Territory to make and enforce contracts."42 U.S.C. § 1981(a). In order to establish a § 1981 violation, aparty must establish three elements: (1) purposeful discrimination; (2)that is based on race; (3) in the making or enforcing of a contract. SeeDartmouth Review, 889 F.2d at 17. See also General Bldg. ContractorsAss'n v. Pennslvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3151 (1982)(holding that 42 U.S.C. § 1981 requires a showing of purposefuldiscrimination). Title 42 U.S.C. § 2000d mandates that "[n]o personin the United States shall, on the ground of race, color, or nationalorigin, be excluded from participation in, be denied the benefits of, orbe subjected to discrimination under any program or activity receivingFederal financial assistance." In order to state a claim under thisstatute, a private plaintiff must allege the following elements: (1)discrimination; (2) that is based on race, color, or national origin; and(3) the intent to discriminate. See Guardians Ass'n v. Civil ServicesComm'n of the City of New York, 463 U.S. 582, 103 S.Ct. 3221 (1983);Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 716 (1985)(explaining that "the Court [in Guardians] held that Title VI itselfdirectly reached only instances of intentional discrimination");Dartmouth Review, 889 F.2d at 22 ("To state a claim under Title VI, . .. a complaint must adequately allege discrimination based on a protectedcategory . . . and must do so with the same degree of factual specificityas required in civil rights cases generally."); Latinos Unidos de Chelseaen Accion v. Sec'y of Hous. and Urban Dev., 799 F.2d 774, 783(1st Cir. 1986) (setting forth element of discriminatory intent).

The element of discriminatory purpose or intent in civil rights claims"`implies more than intent as volition or intent as awareness ofconsequences. It implies that the decisionmaker . . . selected . . . aparticular course of action at least in part because of, not merely inspite of, its adverse effects upon an identifiable group.'" Coyne v. Cityof Somerville, 972 F.2d 440, 445 (1st Cir. 1992) (quoting Pers. Adm'r ofMassachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296 (1979)).It is this element of intent or purpose to discriminate on the basis ofrace or national origin that raises the issue of whether Plaintiff facesa heightened pleading requirement with respect to his civil rightsclaims. Defendants rely on Dartmouth Review, a case involving §§ 1981and 2000d claims in which the Court of Appeals for the First Circuitindicated that the mandate to "eschew reliance . . . on unsupportedconclusions," Chongris, 811 F.2d at 37, and the need for factualspecificity in pleadings "is perhaps greater where allegations of civilrights violations lie at the suit's core." Dartmouth Review, 889 F.2d at16 (citing Dewey v. Univ. of New Hampshire, 694 F.2d 1, 3 (1st Cir.1982), cert. denied, 461 U.S. 944, 103 S.Ct. 2121 (1983)). Explainingthat the Court of Appeals for the First Circuit had "consistentlyrequired [civil rights] plaintiffs to outline facts sufficient to conveyspecific instances of unlawful discrimination" in order to survive motionsto dismiss, the court held that the complaint at issue could survive amotion to dismiss only if "given the facts averred, [the plaintiffs']race can be said to have been an actual or decisive reason behind thealleged discrimination." Id. at 16-17 (citations omitted). See alsoGlidden v. Atkinson, 750 F. Supp. 25, 27 (1990). The "key question"under the court's standard was whether the plaintiffs' complaint"assembled specific facts to show or raise a plausible inference thatthey were subjected to race-based discrimination." Dartmouth Review, 889F.2d at 17. See also Correa-Martinez, 903 F.2d at 51 (requiring thatfacts alleged in complaint "specifically identify the particularinstance[s] of discriminatory treatment and, as a logical exercise,adequately support the thesis that discrimination was unlawful"). Thecourt made clear that under its standard, "merely juxtaposing the fact ofone's race with an instance of discrimination" would fail to state aclaim. Dartmouth Review, 889 F.2d at 19.

Dartmouth Review, however, preceded the Supreme Court's opinion inLeatherman, a case in which the Court held that federal courts may notapply a heightened pleading standard to civil rights plaintiffs allegingmunicipal liability under 42 U.S.C. § 1983. See Leatherman, 507U.S. at 165, 113 S.Ct. at 1162. Although the Leatherman Court decidedthe narrow question of § 1983 municipal liability, much of itsreasoning can be understood to indicate a general prohibition oncourt-imposed heightened pleading requirements. Notably, the Courtidentified Federal Rule of Civil Procedure 9(b) as the rule thatenumerated claims demanding heightened pleading requirements in thefederal pleading regime and admonished that if § 1983 claims alsoshould require heightened pleading, "that is a result which must beobtained by the process of amending the federal rules, and not byjudicial interpretation." Leatherman, 507 U.S. at 168, 113 S.Ct. at1163. The Court perceived the Fifth Circuit's heightened pleadingrequirement as "impossible to square . . . with the liberal system of`notice pleading' set up by the Federal Rules." Id. at 168, 113 S.Ct. at1163.

Leatherman, thus, called into doubt the propriety of applying aheightened pleading standard to civil rights claims in the absence oflegislative or rulemaking action. See Feliciano v. Dubois,846 F. Supp. 1033, 1042 (D.Mass. 1994). Defendants cite Judge, 160 F.3dat 74-75, and Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 73 (1stCir. 2000), in support of their position that Dartmouth Review'sheightened pleading requirement remains good law after Leatherman.

However, neither of these opinions address the specific issue presentedin this case: whether the Court must impose a heightened pleadingrequirement on a plaintiff bringing statutory civil rights claims againsta non-governmental entity. Langadinos addressed the applicability of aheightened pleading requirement to a claim alleging that an airline hadviolated Article 17 of the Warsaw Convention by over-serving alcohol to apassenger. See Langadinos, 199 F.3d at 70.2

In Judge, the Court of Appeals addressed only the narrow question ofwhether the heightened pleading standard articulated in Dartmouth Reviewand other pre-Leatherman cases could properly be applied toconstitutional claims involving allegations of improper motive againstindividual government officials. See Judge, 160 F.3d at 73-74. Whilethis analysis came closer to deciding the issue presented in the instantcase, significant distinctions between the circumstances of this case andthose in Judge prevent the automatic extension of the Judge court'sholding to the Court's evaluation of Plaintiff's Amended Complaint. Inaddition to the Judge court's narrow description of its holding,3 thecourt began its analysis with its observation that the Leatherman Court"specifically reserved judgment on the question of whether its `qualifiedimmunity jurisprudence would require a heightened pleading in casesinvolving individual government officials.'" Id. at 73. Thisobservation enabled the court to consider whether it could continue toapply Dartmouth Review's heightened pleading requirement to the § 1983claims against the defendants, police officers and a medical examiner whohad invoked the qualified immunity defense but had not raised it in themotion to dismiss. See id. at 74 n. 9. The Court of Appeals then wenton to rely extensively on dicta from Crawford-El v. Britton, a case inwhich the Supreme Court held invalid the D.C. Circuit Court of Appeals'srequirement that a prisoner alleging a § 1983 violation by agovernment official must make a showing by clear and convincing evidenceof improper motive in order to survive a motion for summary judgment.See id. at 73-75 (discussing Crawford-El v. Britton, 523 U.S. 574, 118S.Ct. 1584 (1998)). In dicta, the Crawford-El Court recognized the D.C.Circuit Court's goal ofprompt disposition of unsubstantial claims, andidentified district court judges' ability to exercise their discretion toinvoke procedural rules to demand "specific nonconclusory factualallegations that establish improper motive causing cognizable injury inorder to survive a prediscovery motion for dismissal or summary judgment"from plaintiffs alleging civil rights violations against individualgovernment officials as one mechanism already available to serve theintended purpose of the clear and convincing evidence requirement.Crawford-El, 523 U.S. at 597-98, 118 S.Ct. at 1596-97 (citationomitted). The Judge court viewed this dicta as the Justices' endorsementof the continued vitality of heightened pleading in cases againstgovernment officials. See Judge, 160 F.3d at 74.

It is possible to read Judge for the broader proposition that DartmouthReview's heightened pleading standard, even as applied to statutory civilrights claims against non-governmental actors, remains good law afterLeatherman. See Judge, 160 F.3d at 74 n. 9 ("In Crawford-El, the Courtmade plain that the key factor permitting the requirement that facts, notmerely a conclusion, be pleaded, was the existence of `a claim thatrequires proof of wrongful motive,' not an immunity defense.") (quotingCrawford-El, 523 U.S. at 597, 118 S.Ct. at 1596); Burrell v. Bd. of Trs.Of Univ. of Maine Med. Sys., 2000 WL 762075 (D.Me. 2000) (applyingheightened pleading to 42 U.S.C. § 1981 and 2000d claims againststate university); Tavares de Almeida v. Children's Museum,28 F. Supp.2d 682, 685-86 (D.Mass. 1998) (quoting Judge, 160 F.3d at72-73, without analysis, in articulating analytical framework applicableto a Title VII defendant's motion for judgment on the pleadings).However, consideration of Judge in the context of Leatherman andCrawford-El leads the Court to decline to read Judge broadly. The Judgecourt itself relied extensively on these two cases, which led it tocarefully limit its holding to cases involving individual governmentalofficials, who have the option of invoking the qualified immunitydefense. See Judge, 160 F.3d at 73-74. This limitation is particularlysignificant in light of the Leatherman and Crawford-El Courts' specificemphasis on the qualified immunity defense.

The Leatherman Court left open the narrow question of whether theCourt's qualified immunity jurisprudence "would require a heightenedpleading in cases involving individual government officials."Leatherman, 507 U.S. at 167, 113 S.Ct. at 1162. This question is notpresented in the instant case. The Crawford-El Court's endorsement of theheightened pleading standard was framed as one of the proceduresavailable to trial court judges in executing their responsibility to"exercise [their] discretion in a way that protects the substance of thequalified immunity defense . . . so that officials are not subjected tounnecessary and burdensome discovery or trial proceedings."Crawford-El, 523 U.S. at 597-98, 118 S.Ct. at 1596-97. Moreover, theCrawford-El Court set forth several distinctions between casesimplicating the qualified immunity defense and other civil rights cases,and it expressed concern over the broad-sweeping potential of the D.C.Circuit Court's heightened burden of proof. See id. at 589-94, 118S.Ct. at 1592-94. Both Leatherman and Crawford-El rejected the use ofjudicial authority to impose heightened pleading.

The Leatherman Court specifically identified the process of amendingthe Federal Rules as the appropriate mechanism. See Leatherman, 507U.S. at 168, 113 S.Ct. at 1163. The Crawford-El Court again chastised anappellate court's imposition of a heightened standard of proof on a civilrights plaintiff in the absence of "any support" from "the text of§ 1983 or any other federal statute, nor the Federal Rules of CivilProcedure," stating that such imposition "lacks any common-law pedigreeand alters the cause of action itself in a way that undermines the verypurpose of § 1983 — to provide a remedy for the violation ofcivil rights." Crawford-El, 523 U.S. at 594-95, 118 S.Ct. at 1595. Inlight of the Supreme Court's unequivocal language regarding theimpropriety of judicially imposed heightened pleading standards and thedistinctions between the governmental immunity doctrine and substantivecivil rights claims, without more explicit instructions from the Court ofAppeals to apply heightened pleading requirements to claims that do notimplicate the governmental immunity doctrine, the Court does not believethat it is wise to extend the reasoning of Judge to apply a heightenedpleading requirement in the instant case. The Court's decision not toimpose a heightened pleading standard on Plaintiff leaves it to evaluatePlaintiff's Amended Complaint under the generous pleading requirements ofRule 8(a)(2).

The Court will, therefore, consider whether Plaintiff's factualallegations set forth the material elements of his §§ 1981 and 2000dclaims: intent or purpose to discriminate; based on race or nationalorigin; in the making or enforcing of a contract, or the administrationof a program receiving federal financial assistance. See discussionsupra at 10-11. In evaluating Plaintiff's Complaint, the Court willconstrue all reasonable inferences in favor of Plaintiff. Plaintiff hasalleged that Bowdoin College was a program or activity receiving federalfinancial assistance at the time of the incident and that he had enteredinto a contractual relationship with Bowdoin by enrolling as a student atBowdoin and by signing the Social and Honor Pledge. See AmendedComplaint ¶¶ 16, 48.4 Plaintiff's Amended Complaint sets forthseveral allegations in support of his claim that Bowdoin Collegediscriminated against him on account of his race and/or national origin.Plaintiff juxtaposes his race and national origin with those of Lee, seeid. ¶ 11, and identifies several instances of differentialtreatment, including the contradiction between Dean Mangawang's refusalto remove from the J-Board a student who had previously expressed a biasagainst Plaintiff and her decision to remove from the J-Board theroommate of an eyewitness whose testimony favored Plaintiff; Mangawang'sdecision to appoint a passive complainant to Lee's case and a vigorouscomplainant to Plaintiff's case; and the complainants' decision to allowLee to offer race- and national origin-based excuses for his conduct andto set forth false accusations of racism against Plaintiff during thehearing. See id. ¶¶ 28, 29, 36-38.5 Plaintiff also alleges thatalthough the evidence presented to the J-Board supported his claims ofinnocence and suggested Lee's culpability, the J-Board ultimatelyexonerated Lee and held Plaintiff responsible, relying explicitly on raceand cultural factors in explaining this decision. See id. ¶¶ 21, 25,31, 32,33, 34, 41.6 Plaintiff alleges that Deans Bradley and Edwardsadopted and endorsed the J-Board's race- and national origin-basedreasoning by approving the J-Board's recommendation to expel Plaintiffand upholding the sanction of expulsion. See id. ¶ 32. Construingall reasonable inferences in favor of Plaintiff, as the Court must do indeciding Defendant's Motion to Dismiss, the Court finds that Plaintiff'sAmended Complaint sufficiently alleges that he suffered race- andnational origin-based discrimination in Bowdoin's disciplinaryproceedings.

The Court also finds that Plaintiff's Amended Complaint sets forthsufficient factual allegations to support the inference that DefendantBowdoin College was motivated by a discriminatory intent or purpose. Inaddition to the allegations of differential treatment, Plaintiff allegesthat Bowdoin made the decision to favor Lee over Plaintiff because oftheir respective races and national origins. See id. ¶ 1. Thisotherwise conclusory allegation is bolstered by Plaintiff's allegationsof Bowdoin's attempt to specially recruit and accommodate foreignstudents, the J-Board's issuance of race- and national origin-basedreasons for the differential outcomes, and Graves's encouragement andelicitation of racial accusations and racial and ethnic explanations fromLee. See id. ¶¶ 11, 29, 41. At this point in the proceedings, whenall reasonable inferences must be construed in favor of Plaintiff, theseallegations will suffice to indicate that purposeful or intentionaldiscrimination based on race or national origin may have motivated therepresentatives of Bowdoin College. The Court, therefore, deniesDefendants' Motion to Dismiss Counts I and II for failure to state aclaim upon which relief can be granted.7

C. Whether A Contractual Relationship Existed Between Plaintiff andBowdoin

Defendants also move to dismiss Counts I and III-VI, Plaintiff's42 U.S.C. § 1981, breach of contract, and tortious interference withcontract claims, on the ground that a contractual relationship did notexist between Plaintiff and Bowdoin. Defendants frame Plaintiff'salleged contractual relationship as based solely on the Student Handbookand contend that Bowdoin never manifested the requisite intent to bebound by the Handbook. Defendants cite language of the Handbook insupport of their position, including the Handbook's preamble stating thatBowdoin has "provided [the Handbook] as a reference . . . a guide to thepolicies, procedures, and governance structure of the College" and theHandbook's reservation of "the right to make changes in courseofferings, degree requirements, regulations, procedures, and charges."See Student Handbook at 6, 103. Defendants maintain that the reservationclause renders the contract too indefinite and illusory to beenforceable. Defendants also point out that Plaintiff and Bowdoin neverbargained over the content of the Handbook and that Plaintiff signed theSocial and Honor Pledge only after making the decision to attendBowdoin. Plaintiff responds by citing a number of cases that stand forthe proposition that a contractual relationship does exist between acollege and its students and that documents suchas student handbooks mayserve to define the terms of that relationship. Plaintiff highlights anumber of aspects of the Student Handbook that he views as making theargument for a contractual relationship particularly compelling in thiscase. First, Plaintiff points to the fact that he was required to, anddid, sign the Social and Honor Pledge. Plaintiff also points to thelanguage of the Handbook, including its assertion that it "describescertain rights and responsibilities of Bowdoin College students," theexplanation that the Academic Honor and Social Code "requires the activecommitment of the College community," defined as "all faculty, students,. . . and officials or other persons employed by the college and itsproperties," as well as its acknowledgement of "its responsibility toconduct student judicial procedures which reflect fundamental fairness"and delineation of the protections that fulfill this responsibility. SeeStudent Handbook at 48. Plaintiff disputes that the reservation clausedefeats the existence of a contractual relationship, maintaining that theterms of the handbook are sufficiently definite and that a reasonableinterpretation of the meaning of the clause, particularly in light of itsplacement at the end of the handbook, many pages after the Academic Honorand Social Code, would require Bowdoin to follow its existing rules untilBowdoin changes its rules and a new pledge is signed.

The Court will apply Maine law in assessing whether a contract existedbetween Plaintiff and Bowdoin. Maine courts have not addressed whether acontractual relationship exists between a college and its students.However, the Maine Law Court has set forth a number of principles thatwill guide this Court's determination of the existence of a contractbetween Plaintiff and Bowdoin. First, in order for a contract to existbetween parties, the "parties must have mutually assented to be bound byall its material terms; the assent must be manifested in the contract,either expressly or impliedly; and the contract must be sufficientlydefinite to enable the court to determine its exact meaning and fixexactly the legal liabilities of the parties." Searles v. Trs. of St.Joseph's Coll., 695 A.2d 1206, 1211 (Me. 1997) (quotation omitted). Seealso Bragdon v. Shapiro, 77 A.2d 598, 601 (Me. 1951) (holding that termsof agreement regarding bonus "too indefinite or meaningless to permitrecovery" because they did not set forth standard to assist fact finderand left too much discretion to the employer, but allowing recovery forvalue of labor). Additionally, "a reservation to either party of anunlimited right to determine the nature and extent of his performancerenders his obligation too indefinite for legal enforcement, making it,as it is termed, merely illusory." Corthell v. Summitt Thread Co.,167 A. 79, 81 (Me. 1933). However, if other terms of the contract limita party's retention of a right to define its terms, such retention willnot render the contract too indefinite or illusory for enforcement. Seeid. at 82 (holding that "good faith" interpretation clause andreasonableness language in contract prevented clause reservingdetermination of "`basis and amount of recognition to rest entirely'"with employer "`at all times'" from rendering contract illusory).

Additionally, a number of opinions by the Court of Appeals for theFirst Circuit and other courts within this circuit have endorsed theexistence of a contractual relationship between students and colleges.Most explicit and comprehensive of these opinions is Mangla v. BrownUniversity, in which the Court of Appeals explained:

The student — college relationship is essentially contractual in nature. The terms of the contract may include statements provided in student manuals and registration materials. The proper standard for interpreting the contractual terms is that of "reasonable expectation — what meaning the party making the manifestation, the university, should reasonably expect the other party to give it."

Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir. 1998) (citing Russellv. Salve Regina Coll., 938 F.2d 315, 316 (1st Cir. 1991), rev'd on othergrounds, 499 U.S. 225, 111 S.Ct. 1217 (1991), reinstated, 938 F.2d 315(1st Cir. 1991), and quoting Lyons v. Salve Regina Coll., 565 F.2d 200,202 (1st Cir. 1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611 (1978)).See also Cloud of Trs. of Boston Coll., 720 F.2d 721, 724 (1st Cir. 1983)(applying reasonable manifestation standard to ascertain terms ofcontract between student and university); Tobin v. University of MaineMedical Sys., 59 F. Supp.2d 87, 95 (D.Me. 1999) (noting defendant'sacknowledgment of contractual relationship between students anduniversities); Dinu v. President and Fellows of Harvard Coll.,56 F. Supp.2d 129, 130 (D.Mass. 1999) (acknowledging modern case law'sacceptance of "strong, albeit flexible, contractual flavor" ofrelationship between universities and students, as well as role ofstudent handbooks in defining terms of relationship); Govan v. Trs. ofBoston Univ., ¶¶ F. Supp.2d 74, 82 (D.Mass. 1999); Fellheimer v.Middlebury Coll., 869 F. Supp. 238, 242-43 (D.Vt. 1994). But see Pacellav. Tufts Univ. Sch. of Dental Med., ¶¶ F. Supp.2d 234, 241 (D.Mass.1999) (holding that contractual relationship between student anduniversity did not include terms of the handbook because universityretained right to unilaterally modify terms of handbook without notice,plaintiff neither negotiated for nor assented to terms of contract, andrelevant correspondence did not call special attention to handbook).

Defendants cite a number of cases in support of their position that acontractual relationship does not exist between Plaintiff and Bowdoin,but these cases do not rule out the existence of a contractualrelationship between a college and its students, and the Court findsthese cases factually distinguishable from the instant case. InSlaughter v. Brigham Young Univ., 514 F.2d 622, 624 (10th Cir. 1975),cert. denied, 423 U.S. 898, 96 S.Ct. 202 (1975), the court acknowledgedthe merits of using some aspects of contract law to analyze therelationship between colleges and students, but specifically rejected thedistrict court's "complete adoption of commercial contract doctrine" toallow recovery under "some sort of substantial performance remedy." Seealso Fellheimer, 869 F. Supp. at 243 (noting that Slaughter did notcompletely rule out application of contract doctrine to the student— university relationship). The language of the handbook at issuewas permissive rather than mandatory in Abrams v. Illinois Coll. ofPodiatric Med., 395 N.E.2d 1061, 1065 (Ill. App. 1979), and, while thecourt deciding Love v. Duke Univ., 776 F. Supp. 1070, 1074-75, aff'd by959 F.2d 231 (4th Cir. 1992), did not explain why it chose not to find acontractual relationship, it also based its holding on the finding thatthe plaintiff had failed to fulfill the terms of the university bulletinat issue. Although the court in Southwell v. Univ. of the Incarnate Word,974 S.W.2d 351, 356 (Tex.Ct.App. 1998), did hold that thebulletin itself did not create a contract because of its language reservingthe right to change its policies without notice, the court went on to holdthat a contract nevertheless existed between the university and thestudent,and that the university's policies and requirements defined the terms ofthat relationship.

In light of this precedent, the Court holds that by pleading his statusas a student of Bowdoin College at the time of the incident, see AmendedComplaint ¶ 12, Plaintiff has adequately pleaded the existence of acontractual relationship between Bowdoin and himself. The morecomplicated question for the Court concerns whether this contractualrelationship included the Student Handbook terms, the alleged violationof which forms the basis of Plaintiff's claims against Bowdoin.Plaintiff's allegation that Bowdoin promised to treat all studentsequally regardless of race or national origin and not to discriminateagainst Plaintiff on the basis of race or national origin forms the basisof Counts III and V of Plaintiff's Amended Complaint. Plaintiff'sallegation that Bowdoin promised fundamental fairness, impartiality, andthe opportunity to provide evidence and witnesses in its proceedingsforms the basis for Counts IV and VI of Plaintiff's Amended Complaint.The Court will consider each of these alleged promises in turn,evaluating whether the Student Handbook provisions pertaining to thesealleged promises raise a reasonable inference that Bowdoin should havereasonably expected Plaintiff's understanding that Bowdoin intended to bebound by these terms. See Mangla, 135 F.3d at 83.

With regard to Plaintiff's allegation that Bowdoin promised to refrainfrom race or national origin discrimination, Plaintiff cites to thefollowing language in the Student Handbook:

Respect for the rights of all and for the differences among us is essential to the Bowdoin community. Discrimination . . . of others because of race, religious affiliation, gender, age, sexual orientation, physical characteristics, or other characteristics has no place in an intellectual community. *** Such practices violate both the ideals of the College and its Social Code and are subject to appropriate disciplinary sanctions. When such incidents violate the statues of the State of Maine, criminal prosecution may be pursued.

Amended Complaint ¶¶ 14, 51, 59 (quoting Student Handbook). The Courtholds that, even indulging every reasonable inference in favor ofPlaintiff, Plaintiff's reference to this language alone does not indicateBowdoin's manifestation of its assent to refrain from discriminating onthe basis of race, national origin, or any of the other listedcategories.8 This provision clearly serves to provide Bowdoin withthe power to issue and to seek appropriate disciplinary sanctions againstmembers of the Bowdoin community who discriminate on the basis of theforbidden grounds and to pursue criminal prosecutions in certain cases.However, nowhere in this provision does Bowdoin assume any responsibilityfor refraining from discrimination itself or set forth any consequencesof discriminatory actions on its part. While the first two sentences ofthis provision refer in general terms to the Bowdoin community, thesesentences serve only as expressions of ideals or intentions, expressionsthat alone are insufficient to constitute an offer under Maine law. SeeSearles, 695 A.2d at 1211-12. Without additional allegations of actsor language manifesting Bowdoin's intent to be bound by a promise torefrain from discrimination, the Court cannot infer that the contractualrelationship between Bowdoin and Plaintiff included the promise thatBowdoin would refrain from discrimination. The Court will, therefore,dismiss Counts III and V of Plaintiff's Amended Complaint.

Plaintiff cites to the following language in the Student Handbook insupport of its claim that Bowdoin promised to afford protectionspromoting fundamental fairness in its judicial proceedings and to conductthose proceedings with impartiality:

Bowdoin College acknowledges its responsibility to conduct judicial procedures which reflect fundamental fairness. For the purposes of assuring fairness and consistency, the College adopts . . . protections for students under conduct review . . . impartial proceedings, the opportunity to provide evidence and witnesses . . . and the right to a College member, uninvolved with the case, available for personal support at the formal Judicial Board hearing.

Amended Complaint ¶¶ 15, 55, 65 (quoting Student Handbook). By citingthis provision of the Student Handbook, Plaintiff has pleaded sufficientallegations to indicate Bowdoin's manifestation of its intent to be boundby the standard of fundamental fairness, the requirement ofimpartiality, and the delineated procedures. In this provision, Bowdoinexpressly acknowledges a responsibility and sets forth the proceduresthat it has adopted to fulfill this responsibility. Defendants maintainthat Bowdoin's reservation of its right to unilaterally change the termsof the handbook render Bowdoin's acknowledgment of its responsibility tooillusory to constitute a binding contract with regard to the promise offundamental fairness or description of procedural protections. However,at this point in the proceedings, the Court does not view thisreservation clause as sufficient to defeat the incorporation of the aboveterms into the contractual relationship between Plaintiff and Bowdoin.Rather, it appears to the Court from Plaintiff's Amended Complaint thatBowdoin agreed to promote certain principles and abide by certainprocedures, and that Plaintiff agreed to the possibility that Bowdoinmight change the procedures during his years at Bowdoin, with theunderstanding that Bowdoin would consequently be bound to those newprocedures. Moreover, the reservation clause cited by Bowdoin does notprovide an unlimited right to alter the Handbook. Instead, this clauselimits Bowdoin's right to make changes to the areas of "courseofferings, degree requirements, regulations, procedures, and charges."Student Handbook at 103. This clause does not reserve the right towithdraw or alter Bowdoin's promise of fundamental fairness, and thepromise of fundamental fairness, thus, constrains Bowdoin's right to makechanges to procedures or charges. Bowdoin, therefore, has not retainedthe unbridled discretion that would render its promise illusory. Cf.Corthell, 167 A. at 82. The allegations that Plaintiff has set forth inhis Amended Complaint factually distinguish this case from Pacella, acase in which the court found that the plaintiff had not signed thestudent handbook in question and that no special emphasis had been placedon the handbook in the relevant interaction between the student and theuniversity. See Pacella, ¶¶ F. Supp.2d at 241. Hence, the Court willnot dismiss Counts IV and VI on the ground that the relevant Handbookprovision did not constitute a term of the contractual relationshipbetween Bowdoin and Plaintiff. Likewise, Plaintiff's 42 U.S.C. § 1981claim, Count I, will not be dismissed on this ground.

D. The Sufficiency of Plaintiff's Allegations of Bowdoin's Breach

Defendant also moves to dismiss Plaintiff's breach of contract andtortuous interference with contract claims, Counts III-VI, on the groundthat the Court's review of university disciplinary decisions is limitedto an arbitrary and capricious standard. The Court's decision to dismissCounts III and V of Plaintiff's Amended Complaint leaves it to evaluatethis argument only with regard to Counts IV and VI. After reviewing thecases that Defendants have brought to the Court's attention andPlaintiff's Amended Complaint, the Court holds that Plaintiff's remainingcontract claims should not be dismissed on this ground.

Maine law governs the Court's evaluation of these state law claims.Defendants have cited a number of cases involving the application ofother states' contract doctrine to the student-university relationship.Two of these opinions offer little, if any, persuasive force in supportof Defendant's position. See Russell 890 F.2d at 489 (referring, indicta, to a principle of deference towards college disciplinary andacademic decisions, but refusing to defer to college's academicevaluation of plaintiff); Fellheimer, 869 F. Supp. at 243-44(interpreting less binding handbook language). While two of the casesinvolve application of Massachusetts contract principles, the Court viewsthe analytical framework offered by these cases as being helpful to itsevaluation of Plaintiff's Amended Complaint. See Cloud, 720 F.2d at724-25 (quotations omitted); Pacella, 66 F. Supp.2d at 241-42. In thesecases, the courts held that when handbook terms are deemed to constituteterms of the contract between a student and a college, a court shouldevaluate a college's disciplinary hearing procedures "to ensure that theyfall within the range of reasonable expectations of one reading therelevant rules"; in contrast, when a college-student contractualrelationship does not incorporate express terms, such as those from ahandbook, a court should evaluate its disciplinary decisions under anarbitrary and capricious standard, finding in favor of a student onlywhen it determines that a college has failed to "act in good faith and onreasonable grounds." Cloud, 720 F.2d at 724 (quotations omitted). Seealso Pacella, ¶¶ F. Supp.2d at 241-42.

As discussed supra, Part C, the Court holds that Plaintiff'scontractual relationship with Bowdoin includes the Handbook termpromising that Bowdoin would abide by certain procedures to ensureimpartial proceedings and fundamental fairness. Thus, instead ofapplying the arbitrary and capricious standard, the Court will assesswhether Plaintiff's allegations indicate that Bowdoin's actions felloutside a reasonable understanding of this promise. Plaintiff's AmendedComplaint alleges a number of actions that indicate a violation of thispromise, ranging from Bowdoin's decision to allow a biased student tochair the J-Board proceedings to the disparate prosecutorial vigorexhibited towards Lee and him during the proceedings. See AmendedComplaint ¶ 42(iv), (iii). Therefore, the Court will not dismissCounts IV and VI for failure to state a claim.

E. The Sufficiency of Plaintiff's Allegations of Fraud

The Court finally turns to Defendants' contention that Counts V and VIof Plaintiff's Amended Complaint should be dismissed for failure to statea claim because Plaintiff has failed to allege any instances of fraud insupport of that claim. The Court's decision to grant Defendant's motionto dismiss Count V leaves it to resolve this argument only with respectto Count VI. Defendants argue that Maine lawrequires the element offraud to be satisfied in tortious interference with contract claims, thatFederal Rule of Civil Procedure 9(b) requires the pleading of fraud withparticularity, and that Plaintiff's Amended Complaint fails to set forthany such instances of fraud. Plaintiff responds that tortiousinterference with contract can be established under Maine law by eitherfraud or intimidation and that his Amended Complaint adequately allegesboth fraud and intimidation with regard to each of the individually namedDefendants in this suit. Plaintiff alternatively moves for leave toamend if the Court finds that Plaintiff has failed to plead fraud withadequate specificity.

A claim for tortious interference with contract under Maine lawrequires a showing of an existing contractual relationship and that"fraud or intimidation procur[ed] the breach of a contract that wouldhave continued but for such wrongful interference." June Roberts Agencyv. Venture Props., Inc., 676 A.2d 46, 50 (Me. 1996) (quoting Grover v.Minette-Mills, Inc., 638 A.2d 712, 716 (Me. 1990)). See also Green v.Maine Sch. Admin. Dist., 52 F. Supp.2d 98, 111-12 (D.Me. 1999). Fraudconsists of the following elements: the making of a falserepresentation; of a material fact; with knowledge or reckless disregardof its falsity; for the purpose of inducing reliance; and justifiablereliance. See id. at 112 (citing Grover 638 A.2d at 716). Federal Ruleof Civil Procedure 9(b) requires that a party alleging fraud or mistakemust plead with particularity "the circumstances constituting fraud ormistake." This special pleading requirement applies to state law claimsfiled in federal court. Cf. Hayduck v. Lanna, 775 F.2d 441, 443 (1stCir. 1985). Hence, while a federal court evaluates whether a party hasadequately pleaded the elements of fraud according to state lawstandards, the assessment of whether a party has adequately pleaded thecircumstances of fraud is measured by federal law. See id. To serveRule 9(b)'s main purpose of giving notice to a defendant of the claims offraud and the acts forming the basis of the claims, federal courtsrequire plaintiffs to specify the "time, place, and content of an allegedfalse representation, but not the circumstances or evidence from whichfraudulent intent could be inferred." Id. at 443-44 (quotationomitted). See also Greebel v. FTP Software, Inc., 194 F.3d 185, 193-94(1st Cir. 1999).

Upon review of Plaintiff's Amended Complaint, the Court concludes thatCount VI should not be dismissed at this point in the proceedings.Plaintiff has pleaded the time, place, and content of the representationsthat he alleges to be fraudulent sufficiently to put Defendants onnotice of the alleged actions and inactions that form the basis ofPlaintiff's tortious interference with contract claim. Although theCourt has serious concerns about the merits of Plaintiff's assertion offraudulent conduct on the part of the individual Defendants andPlaintiff's ability to bring a tortious interference with contract claimagainst the same individuals whose actions constitute Plaintiff's breachof contract claim, the parties have not briefed this latter issue and theCourt is constrained to construe all reasonable inferences in favor ofPlaintiff in evaluating his Amended Complaint. See Correa-Martinez, 903F.2d at 52. Given Plaintiff's allegation of the veracity of his versionof the events of the night of March 19, 1999, and of the contrastingfalsehood of Lee's testimony, see Amended Complaint ¶ 29, 41, theCourt cannot conclude that "it appears beyond doubt that the plaintiffcan prove no set of facts in support of his claim" that Defendants actedwith deliberate falsehood or reckless disregard of the truth during thepreparation of the case against Plaintiff,the presentation of the case tothe J-Board, or the J-Board review process. Conley, 355 U.S. at 45-46,78 S.Ct. at 102. The Court does note, however, that other than withrespect to his allegation that Defendant Graves exhibited intimidatingbehavior towards a witness during the J-Board proceedings, see AmendedComplaint ¶ 29, Plaintiff has not pleaded, in either a factual orconclusory fashion, the procurement of Bowdoin's breach of contractthrough intimidation. Plaintiff's tortious interference with contractclaim will, therefore, be limited in subsequent proceedings herein to hisallegations of fraud.

CONCLUSION

For the reasons discussed above, the Court ORDERS that Defendants'Motion to Dismiss Counts III and V of Plaintiff's Amended Complaint be,and it is hereby, GRANTED, and Defendants Motion to Dismiss Counts I,II, IV, and VI of Plaintiff's Amended Complaint be, and it is hereby,DENIED.

1. The portion of the Student Handbook entitled "The Academic HonorCode and Social Code," is particularly relevant to Plaintiff's claims.See Student Handbook at 48-54. The Court will refer to this portion ofthe handbook as the "Academic Honor and Social Code."

2. In refusing to apply a heightened pleading standard to that claim,the court took care to note that it had applied heightened pleading inonly a few categories of cases. See id. at 73. While the court includedcivil rights claims in this list and cited Dartmouth Review as anexample, the court referred to its application of the heightened pleadingrequirement in the past tense and did not address the continued vitalityof Dartmouth Review after Leatherman. See id.

3. Specifically, in holding that the heightened pleading standardsurvived Leatherman, the court stated that "[w]e believe that it does, atleast in a case like the present alleging a constitutional violationcalling for proof of an illegal motive." Id. at 73 (emphasis added). Thecourt later explained that it believed that the Supreme Court would allowit to apply heightened pleading because the claim at issue "preciselyinvolves an action under section 1983 against state officials in theirindividual capacities requiring plaintiff to prove improper motive."Id. at 74 (emphasis added).

4. The Court will address the contractual aspect of this in subsectionC, infra.

5. The Court notes that an allegation that the J-Board had punishedPlaintiff more harshly because it perceived his acts as racist would notbe sufficient to state a claim of race-based discrimination. SeeDartmouth Review, 889 F.2d at 19 ("Without more, allegations thatperceived racist infractions were punished more harshly than otherinfractions do not tend to show racial discrimination against the personsaccused."). However, the Court understands Plaintiff's allegation thatLee was allowed to accuse Plaintiff of racism at the hearings as one ofmany factors indicative of a general pattern of differential treatmentbased on race and national origin.

6. Plaintiff alleges that the J-Board relied on the same factualrecord to exonerate Plaintiff and expel Lee. See Amended Complaint ¶27.

7. This decision obviates the Court's need to address Defendants'argument that Counts III-VI should be dismissed for lack of diversityjurisdiction. The Court has supplemental jurisdiction over Plaintiff'sstate law claims. See 28 U.S.C. § 1367 (a).

8. In setting forth Count III, Plaintiff refers the Court to"elsewhere in this Complaint," but fails to specifically direct theCourt's attention to any other allegations that would support the allegedcontractual term. See Amended Complaint ¶ 51. The Court'sindependent review of the allegations in the Amended Complaint has notrevealed any additional allegations that would lead to a reasonableinference that Bowdoin promised Plaintiff to refrain from discriminationon account of race or national origin.

MEMORANDUM OF DECISION AND ORDER

This case involves allegations of violations of federal civil rightslaws, 42 U.S.C. § 1981 and 2000d, by Defendants The President andTrustees of Bowdoin College (hereinafter Defendant "Bowdoin College")(Counts I and II), breach of contract claims against Defendant BowdoinCollege (Counts III and IV), and tortious interference with contractclaims against Defendants Robert H. Edwards, President of BowdoinCollege, Craig W. Bradley, Dean of Students at Bowdoin College, MyaMangawang, Assistant Dean of Student Affairs at Bowdoin College, RobertGraves, Director of Residential Life at Bowdoin College, and KarenTilbor, Assistant Dean of Student Affairs at Bowdoin College, (Counts Vand VI) for disciplinary actions taken against Plaintiff George C. W.Goodman in connection with an altercation between Goodman and anotherstudent that occurred on March 19, 1999. Now before the Court isDefendants' Motion to Dismiss with Incorporated Memorandum of Law (DocketNo. 4) (hereinafter "Motion to Dismiss"). Defendants move to dismiss allcounts of Plaintiff's Complaint. For the reasons that follow, the Courtwill grant Defendants' motion with respect to Counts III and V, and denyDefendants' motion with respect to Counts I, II, IV, and VI.

BACKGROUND

Because the Court is considering a motion to dismiss, it "must acceptas true all the factual allegations in the complaint." Leatherman v.Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163,164, 113 S.Ct. 1160, 1161 (1993). Plaintiff's Amended Complaint (DocketNo. 2) alleges the following facts.

Plaintiff, who is "Caucasian and a citizen of the United States," was astudent at Bowdoin College until the Spring of 1999. Amended Complaint¶ 1. On March 19, 1999, Plaintiff and another student at BowdoinCollege, Nam Soo Lee, who is "Asian and a citizen of Korea," engaged in aphysical and verbal altercation, which resulted in a bloody and brokennose to Lee and damage to the tendons on Plaintiff's right hand. Id.¶¶ 1, 11, 19, 23. This altercation began when Plaintiff threw asnowball at a college van that Lee was driving and the snowball hit thevan.

See id. ¶ 19. After the snowball hit the van, Lee backed the vanup to Plaintiff, yelled at Plaintiff, and got out of the van. See id.¶¶ 20-21. Following an exchange of words between Plaintiff and Lee,in which Plaintiff stated to Lee that the snowball throwing had been ajoke, and "lobb[ed] another snowball at the . . . van to show that therehad been no harm meant," Plaintiff began to walk away from Lee andsuggested that Lee return to the van. Id. ¶ 21. Although Lee didreturn to the van, instead of driving away, he backed the van towardsPlaintiff. Eventually, Lee got out of the van and "caught up to Goodmanfrom behind, then grabbed Goodman from behind, spun him around with suchforce that Goodman's jacket ripped from the neck opening to the waist,and then hit Mr. Goodman in the face." Id. ¶¶ 22-23. Plaintiff hitLee back with the intention of defending himself, and "[a] very brieffight ensued," resulting in the alleged injuries. Id. ¶ 23. Thefight ended after Plaintiff pushed Lee away. See id. Plaintiff thenreturned to his residence and telephoned Bowdoin's campus securityofficers to report the incident. See id. ¶ 24.

Lee radioed campus security and was taken to Parkview Hospital to havehis injury examined. See id. ¶ 25. At Parkview, Lee stated in frontof two Bowdoin Police Department officers and one Bowdoin Collegesecurity officer that he was at fault for the events of the evening andthat his angry reaction towards Plaintiff had resulted not merely frombeing hit with the snowball, but also from other affronts that he hadexperienced that week, including students behaving discourteously in thevan and the theft of his coat. See id. Later that same evening, Leeadmitted his fault for the incident to two of his friends. See id.

The school initiated disciplinary proceedings for the stated purpose ofascertaining "the truth as to what occurred" on the night of March 19,1999. Id. ¶ 26. This process consisted of three phases: a JudicialBoard ("J-Board") hearing; a review of that hearing by DefendantBradley, Dean of Students; and an appeal to the AdministrativeCommittee, chaired by Defendant Edwards, President of Bowdoin College.See id. ¶¶ 26-27. In attempting to prepare for the J-Board hearing,Plaintiff was denied access to certain medical records of Lee and theopportunity to interview a security guard who had assisted DefendantMangawang, Assistant Dean of Student Affairs, in her investigation of theincident. See id. ¶ 28.

The J-Board hearings took place on April 13, 1999. Id. ¶ 27.Acting as chair of the proceedings was a student who had previouslystated to Plaintiff that she did not trust his word and expressed inwriting that she would use this distrust against him if he ever appearedbefore the J-Board. See id. ¶ 28. Defendant Mangawang allowed thisstudent to preside over the hearing, but removed from the J-Board aroommate of an eyewitness to the altercation whose testimony favoredPlaintiff. See id. ¶ 28. During the J-Board hearings, DefendantGraves, Director of Residential Life, acted as the complainant againstPlaintiff, and Defendant Tilbor, Assistant Dean of Student Affairs, actedasthe complainant against Lee. See id. ¶ 29. Plaintiff's hearingoccurred first, and the testimony and evidence elicited at Plaintiff'shearing was adopted for the purpose of Lee's hearing. See id. ¶ 27.This evidence supported Plaintiff's version of the events of the night ofMarch 19, including Plaintiff's allegation that Lee had initiated thephysical confrontation by grabbing Plaintiff and hitting him in the face.See id. ¶ 33. Defendant Graves acted as a vigorous prosecutor atPlaintiff's hearing, while Defendant Tilbor exhibited comparativelypassive conduct towards Lee. See id. ¶¶ 29-30. For example, thepolice report introduced by Goodman in support of his version of eventswas discredited in the proceedings, while the race-based explanations andexcuses offered by Lee for his conduct towards Plaintiff on the night ofMarch 19, and his subsequent statements concerning his fault for theincident, remained untested by Defendant Tilbor.

See id. ¶¶ 29-30, 35-40, 42(ix). Lee also testified that he mighthave perceived Plaintiff's conduct as racist and offered this perceptionas a partial explanation for his conduct on that night. See id. ¶¶36-38. These explanations came in the form of responses to questionsasked by Defendant Graves during his examination of Lee. See id. ¶38. The J-Board did not seek to exclude any of this testimony. See id.¶ 41.

The J-Board determined that Plaintiff was entirely at fault for theincident and that Lee was not at fault, and it recommended the sanctionof expulsion for Plaintiff. See id. ¶¶ 32, 34. Defendant Bradleyreviewed the results of the hearing and adopted the J-Board'srecommendation.

See id. ¶¶ 27, 32, 42(xii). As part of his review of therecommendation, Defendant Bradley obtained medical records from ParkviewHospital and interviewed the doctor who had treated Lee on the night ofMarch 19. See id. ¶ 42 (viii). The Administrative Committee,chaired by Defendant Edwards, affirmed this result on appeal. See id.¶¶ 27, 32, 42(xii). In affirming the J-Board's result, theAdministrative Committee explicitly relied on evidence that had not beenpresented at the J-Board hearing but that had been subsequently submittedby Defendants Edwards and Bradley, including affidavits and unswornstatements by individuals; Defendants Edwards and Bradley never submittedPlaintiff's written objection to the post-hearing use of thesesubmissions.

See id. ¶ (42)(x). Ultimately, while Goodman was expelled for theMarch 19 incident, Lee was "fully exonerated." Id. ¶ 1, 32.

Based on these facts, Plaintiff sets forth six claims. In Count I ofthe Amended Complaint, Plaintiff alleges that Defendant Bowdoin College,acting by and through Defendants Mangawang, Bradley, Graves, Tilbor,Edwards, and others, discriminated against Plaintiff in the enforcementof its Student Handbook and Academic Honor and Social Code, in violationof 42 U.S.C. § 1981. Count II alleges that Defendant BowdoinCollege, a recipient of federal funding, violated 42 U.S.C. § 2000dby discriminating against Plaintiff on the grounds of race and nationalorigin through its expulsion of him from Bowdoin College and denial ofthe benefits of a Bowdoin education and degree. In Counts III and IV,Plaintiff alleges breach of contract against Defendant Bowdoin College onthe grounds that the college breached the promises set forth in itsStudent Handbook to refrain from discrimination on account of race ornational origin and to conduct fair and impartial judicial proceedings inwhich students would have the opportunity to present evidence andwitnesses. In Counts V and VI, Plaintiff alleges tortious interferencewith contract against Defendants Edwards, Bradley, Mangawang, Graves, andTilbor, claimingthat by maliciously and fraudulently manipulating theJ-Board proceedings, these Defendants willfully, intentionally, and withmalice induced the breaches alleged in Counts III and IV of the AmendedComplaint.

DISCUSSION

Defendants have moved to dismiss all counts of Plaintiff's AmendedComplaint, and they set forth several theories in support of theirmotion. With regard to Counts I and II, Defendants contend thatPlaintiff has failed to state claims upon which relief can be grantedbecause he has failed to allege facts showing purposeful race — ornational origin — based discrimination with the degree ofspecificity required for civil rights claims. Defendants maintain that ifthe Court decides to dismiss Counts I and II, it must also dismiss CountsIII-VI of the Amended Complaint for lack of diversity jurisdictionbecause the damages alleged by Plaintiff do not establish the requisiteamount in controversy. Defendants also argue that the Court shoulddismiss Counts I and III-VI on the ground that Bowdoin's Student Handbookdoes not constitute a contract under Maine law.

Alternatively, Defendants argue that Counts III and IV should bedismissed because the Amended Complaint does not allege that DefendantBowdoin College acted arbitrarily and capriciously in its decision toexpel Plaintiff and that Counts V and VI should be dismissed becausePlaintiff has failed to allege fraud with the particularity required byFederal Rule of Civil Procedure 9(b). As attachments to their motion,Defendants have submitted several additional documents to the Court,maintaining that the Court may consider these documents withoutconverting their motion into a motion for summary judgment because thedocuments are central to Plaintiff's Amended Complaint.

A. Consideration of Supplemental Papers

As attachments to their Motion to Dismiss, Defendants have submittedthe following exhibits to the Court: Bowdoin's 1998-1999 StudentHandbook (hereinafter "Student Handbook") (Exh. 1); a letter from DeanMangawang to Plaintiff charging him with "[c]onduct which is unbecomingof a Bowdoin student" and "[b]ehavior which endangers the health andsafety of oneself or others" (Exh. 2); the transcript of the J-Boardproceedings (Exh. 3); the J-Board recommendation (Exh. 4); a letter fromDean Bradley to Plaintiff explaining the findings of the J-Board and theconsequent sanction (Exh. 5); a letter from Dean Bradley to Plaintiffsetting forth modifications to the sanction (Exh. 6); and a Report of theAdministrative Committee Meeting of May 21, 1999 (Exh. 7). Defendantshave also attached to their Reply Memorandum (Docket No. 7) a copy ofBowdoin's Academic Honor Code/ Social Code Pledge that Plaintiff hadsigned in acknowledgment of his agreement to abide by Bowdoin's AcademicHonor and Social Code (hereinafter "Social and Honor Pledge") (Exh. 8).Defendants argue that although these documents technically constitutematerial outside the four corners of Plaintiff's Amended Complaint, theCourt may consider these documents in deciding their Motion to Dismisswithout converting it into a motion for summary judgment because thefactual allegations in Plaintiff's Amended Complaint are expressly linkedto and dependent upon these documents. Plaintiff does not oppose theCourt's consideration of the Student Handbook or the Social and HonorPledge but does oppose the Court's consideration of the other documentssubmitted with Defendants' Motion to Dismiss.

"When . . . a complaint's factual allegations are expressly linked to— andadmittedly dependent upon — a document (theauthenticity of which is not challenged), that document effectivelymerges into the pleadings, and the trial court can review it in decidinga motion to dismiss under Rule 12(b)(6)." Beddall v. State St. Bank andTrust Co., 137 F.3d 12, 17 (1st Cir. 1998). When a document has been"incorporated by reference" into the pleadings, a defendant may introducethe document in support of its motion to dismiss. Fudge v. PenthouseInt'l Ltd., 840 F.2d 1012, 1015 (1st Cir. 1988). See also Beddall, 137F.3d at 17. In order for a document to be incorporated into thepleadings, the Court must find that the document is "`referred to in theplaintiff's complaint and . . . central to [a] claim.'" Id. (quotingVenture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7thCir. 1993)). A plaintiff's mere reference to a document or limitedquotation from a document in a complaint does not render the documentincorporated by reference. See Fudge, 840 F.2d at 1015 (citing Goldmanv. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985)).

According to these standards, the Court may consider Bowdoin's StudentHandbook and the signed Social and Honor Pledge. These documents arecentral to Plaintiff's allegation that he has a contractual relationshipwith Bowdoin — an allegation on which Plaintiff's42 U.S.C. § 1981, breach of contract, and tortious interference withcontract claims depend.1 The other documents, although possiblyrelevant to these claims and Plaintiff's § 1981 claim, are not sointegrated into or central to Plaintiff's Amended Complaint as to beincorporated by reference. Defendants accurately point out thatPlaintiff's Amended Complaint contains quotations from the transcript ofthe J-Board proceeding, see Amended Complaint ¶¶ 35-40, but theselimited quotations do not have the effect of incorporating the transcriptinto the Amended Complaint. See Fudge, 840 F.2d at 1015. In decidingDefendants' Motion to Dismiss, therefore, the Court will rely onPlaintiff's Amended Complaint, Bowdoin's Student Handbook, and the Socialand Honor Pledge.

B. Whether Plaintiff Has Adequately Pleaded a Claim for Relief underTitle 42 U.S.C. § 1981 and 2000d

Defendants urge the Court to dismiss Plaintiff's 42 U.S.C. § 1981and 2000d claims, arguing that the Court of Appeals for the First Circuithas imposed a heightened pleading standard on civil rights plaintiffs andthat Plaintiff has failed to allege the "`specific facts adequate to showor raise a plausible inference that [he] was subject to race-baseddiscrimination'" required under this standard. Motion to Dismiss at 7(quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 17 (1st Cir.1989)). Defendants characterize Plaintiff's allegations of race- andnational origin-based discrimination as consisting only of factualallegations of disparate treatment and conclusory allegations assertingrace or national origin as the cause of this treatment. Defendantscontend that such allegations do not fulfill the pleading requirementapplicable to civil rights claims in the First Circuit. Plaintiff setsforth two arguments in response. First, Plaintiff suggests that theSupreme Court's holding and reasoning in Leatherman, 507 U.S. at 165-68,113 S.Ct. at 1162-63, casts doubt on theheightened pleading requirementinvoked by Defendants. Second, Plaintiff argues that, even if the FirstCircuit's heightened pleading requirement continues to apply to hisclaims after Leatherman, his Amended Complaint does meet the applicablestandard. In reply, Defendants insist that the heightened pleadingrequirement that they have invoked remains good law in the First Circuitwith regard to claims such as those filed by Plaintiff, and they maintainthat Plaintiff's allegations fall short of its standard.

Rule 8(a)(2) requires a complaint to contain "a short and plainstatement of the claim showing that the pleader is entitled to relief."In order to survive a motion to dismiss under this standard, a plaintiffmust set forth "factual allegations, either direct or inferential,respecting each material element necessary to sustain recovery under someactionable legal theory." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515(1st Cir. 1988). See also Dartmouth Review, 889 F.2d at 16.

A court should not dismiss a complaint for failure to state a claim"`unless it appears beyond doubt that the plaintiff can prove no set offacts in support of his claim which would entitle him to relief.'" Judgev. City of Lowell, 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)). Accordingly, inevaluating whether a complaint sets forth sufficient factualallegations, a court must take well-pleaded facts as they appear in thecomplaint, indulging every reasonable inference in a plaintiff's favor.See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). However, a Court must "eschew any reliance on bald assertions,unsupported conclusions, and opprobrious epithets." Chongris v. Bd. ofAppeals, 811 F.2d 36, 37 (1st Cir. 1987), cert. denied, 483 U.S. 1021, 107S.Ct. 3266 (1987). At issue is whether Plaintiff's Amended Complaintadequately alleges the elements of violations of 42 U.S.C. § 1981 and2000d. Title 42 U.S.C. § 1981 provides that "[a]ll persons withinthe jurisdiction of the United States shall have the same right in everyState and Territory to make and enforce contracts."42 U.S.C. § 1981(a). In order to establish a § 1981 violation, aparty must establish three elements: (1) purposeful discrimination; (2)that is based on race; (3) in the making or enforcing of a contract. SeeDartmouth Review, 889 F.2d at 17. See also General Bldg. ContractorsAss'n v. Pennslvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3151 (1982)(holding that 42 U.S.C. § 1981 requires a showing of purposefuldiscrimination). Title 42 U.S.C. § 2000d mandates that "[n]o personin the United States shall, on the ground of race, color, or nationalorigin, be excluded from participation in, be denied the benefits of, orbe subjected to discrimination under any program or activity receivingFederal financial assistance." In order to state a claim under thisstatute, a private plaintiff must allege the following elements: (1)discrimination; (2) that is based on race, color, or national origin; and(3) the intent to discriminate. See Guardians Ass'n v. Civil ServicesComm'n of the City of New York, 463 U.S. 582, 103 S.Ct. 3221 (1983);Alexander v. Choate, 469 U.S. 287, 293, 105 S.Ct. 712, 716 (1985)(explaining that "the Court [in Guardians] held that Title VI itselfdirectly reached only instances of intentional discrimination");Dartmouth Review, 889 F.2d at 22 ("To state a claim under Title VI, . .. a complaint must adequately allege discrimination based on a protectedcategory . . . and must do so with the same degree of factual specificityas required in civil rights cases generally."); Latinos Unidos de Chelseaen Accion v. Sec'y of Hous. and Urban Dev., 799 F.2d 774, 783(1st Cir. 1986) (setting forth element of discriminatory intent).

The element of discriminatory purpose or intent in civil rights claims"`implies more than intent as volition or intent as awareness ofconsequences. It implies that the decisionmaker . . . selected . . . aparticular course of action at least in part because of, not merely inspite of, its adverse effects upon an identifiable group.'" Coyne v. Cityof Somerville, 972 F.2d 440, 445 (1st Cir. 1992) (quoting Pers. Adm'r ofMassachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296 (1979)).It is this element of intent or purpose to discriminate on the basis ofrace or national origin that raises the issue of whether Plaintiff facesa heightened pleading requirement with respect to his civil rightsclaims. Defendants rely on Dartmouth Review, a case involving §§ 1981and 2000d claims in which the Court of Appeals for the First Circuitindicated that the mandate to "eschew reliance . . . on unsupportedconclusions," Chongris, 811 F.2d at 37, and the need for factualspecificity in pleadings "is perhaps greater where allegations of civilrights violations lie at the suit's core." Dartmouth Review, 889 F.2d at16 (citing Dewey v. Univ. of New Hampshire, 694 F.2d 1, 3 (1st Cir.1982), cert. denied, 461 U.S. 944, 103 S.Ct. 2121 (1983)). Explainingthat the Court of Appeals for the First Circuit had "consistentlyrequired [civil rights] plaintiffs to outline facts sufficient to conveyspecific instances of unlawful discrimination" in order to survive motionsto dismiss, the court held that the complaint at issue could survive amotion to dismiss only if "given the facts averred, [the plaintiffs']race can be said to have been an actual or decisive reason behind thealleged discrimination." Id. at 16-17 (citations omitted). See alsoGlidden v. Atkinson, 750 F. Supp. 25, 27 (1990). The "key question"under the court's standard was whether the plaintiffs' complaint"assembled specific facts to show or raise a plausible inference thatthey were subjected to race-based discrimination." Dartmouth Review, 889F.2d at 17. See also Correa-Martinez, 903 F.2d at 51 (requiring thatfacts alleged in complaint "specifically identify the particularinstance[s] of discriminatory treatment and, as a logical exercise,adequately support the thesis that discrimination was unlawful"). Thecourt made clear that under its standard, "merely juxtaposing the fact ofone's race with an instance of discrimination" would fail to state aclaim. Dartmouth Review, 889 F.2d at 19.

Dartmouth Review, however, preceded the Supreme Court's opinion inLeatherman, a case in which the Court held that federal courts may notapply a heightened pleading standard to civil rights plaintiffs allegingmunicipal liability under 42 U.S.C. § 1983. See Leatherman, 507U.S. at 165, 113 S.Ct. at 1162. Although the Leatherman Court decidedthe narrow question of § 1983 municipal liability, much of itsreasoning can be understood to indicate a general prohibition oncourt-imposed heightened pleading requirements. Notably, the Courtidentified Federal Rule of Civil Procedure 9(b) as the rule thatenumerated claims demanding heightened pleading requirements in thefederal pleading regime and admonished that if § 1983 claims alsoshould require heightened pleading, "that is a result which must beobtained by the process of amending the federal rules, and not byjudicial interpretation." Leatherman, 507 U.S. at 168, 113 S.Ct. at1163. The Court perceived the Fifth Circuit's heightened pleadingrequirement as "impossible to square . . . with the liberal system of`notice pleading' set up by the Federal Rules." Id. at 168, 113 S.Ct. at1163.

Leatherman, thus, called into doubt the propriety of applying aheightened pleading standard to civil rights claims in the absence oflegislative or rulemaking action. See Feliciano v. Dubois,846 F. Supp. 1033, 1042 (D.Mass. 1994). Defendants cite Judge, 160 F.3dat 74-75, and Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 73 (1stCir. 2000), in support of their position that Dartmouth Review'sheightened pleading requirement remains good law after Leatherman.

However, neither of these opinions address the specific issue presentedin this case: whether the Court must impose a heightened pleadingrequirement on a plaintiff bringing statutory civil rights claims againsta non-governmental entity. Langadinos addressed the applicability of aheightened pleading requirement to a claim alleging that an airline hadviolated Article 17 of the Warsaw Convention by over-serving alcohol to apassenger. See Langadinos, 199 F.3d at 70.2

In Judge, the Court of Appeals addressed only the narrow question ofwhether the heightened pleading standard articulated in Dartmouth Reviewand other pre-Leatherman cases could properly be applied toconstitutional claims involving allegations of improper motive againstindividual government officials. See Judge, 160 F.3d at 73-74. Whilethis analysis came closer to deciding the issue presented in the instantcase, significant distinctions between the circumstances of this case andthose in Judge prevent the automatic extension of the Judge court'sholding to the Court's evaluation of Plaintiff's Amended Complaint. Inaddition to the Judge court's narrow description of its holding,3 thecourt began its analysis with its observation that the Leatherman Court"specifically reserved judgment on the question of whether its `qualifiedimmunity jurisprudence would require a heightened pleading in casesinvolving individual government officials.'" Id. at 73. Thisobservation enabled the court to consider whether it could continue toapply Dartmouth Review's heightened pleading requirement to the § 1983claims against the defendants, police officers and a medical examiner whohad invoked the qualified immunity defense but had not raised it in themotion to dismiss. See id. at 74 n. 9. The Court of Appeals then wenton to rely extensively on dicta from Crawford-El v. Britton, a case inwhich the Supreme Court held invalid the D.C. Circuit Court of Appeals'srequirement that a prisoner alleging a § 1983 violation by agovernment official must make a showing by clear and convincing evidenceof improper motive in order to survive a motion for summary judgment.See id. at 73-75 (discussing Crawford-El v. Britton, 523 U.S. 574, 118S.Ct. 1584 (1998)). In dicta, the Crawford-El Court recognized the D.C.Circuit Court's goal ofprompt disposition of unsubstantial claims, andidentified district court judges' ability to exercise their discretion toinvoke procedural rules to demand "specific nonconclusory factualallegations that establish improper motive causing cognizable injury inorder to survive a prediscovery motion for dismissal or summary judgment"from plaintiffs alleging civil rights violations against individualgovernment officials as one mechanism already available to serve theintended purpose of the clear and convincing evidence requirement.Crawford-El, 523 U.S. at 597-98, 118 S.Ct. at 1596-97 (citationomitted). The Judge court viewed this dicta as the Justices' endorsementof the continued vitality of heightened pleading in cases againstgovernment officials. See Judge, 160 F.3d at 74.

It is possible to read Judge for the broader proposition that DartmouthReview's heightened pleading standard, even as applied to statutory civilrights claims against non-governmental actors, remains good law afterLeatherman. See Judge, 160 F.3d at 74 n. 9 ("In Crawford-El, the Courtmade plain that the key factor permitting the requirement that facts, notmerely a conclusion, be pleaded, was the existence of `a claim thatrequires proof of wrongful motive,' not an immunity defense.") (quotingCrawford-El, 523 U.S. at 597, 118 S.Ct. at 1596); Burrell v. Bd. of Trs.Of Univ. of Maine Med. Sys., 2000 WL 762075 (D.Me. 2000) (applyingheightened pleading to 42 U.S.C. § 1981 and 2000d claims againststate university); Tavares de Almeida v. Children's Museum,28 F. Supp.2d 682, 685-86 (D.Mass. 1998) (quoting Judge, 160 F.3d at72-73, without analysis, in articulating analytical framework applicableto a Title VII defendant's motion for judgment on the pleadings).However, consideration of Judge in the context of Leatherman andCrawford-El leads the Court to decline to read Judge broadly. The Judgecourt itself relied extensively on these two cases, which led it tocarefully limit its holding to cases involving individual governmentalofficials, who have the option of invoking the qualified immunitydefense. See Judge, 160 F.3d at 73-74. This limitation is particularlysignificant in light of the Leatherman and Crawford-El Courts' specificemphasis on the qualified immunity defense.

The Leatherman Court left open the narrow question of whether theCourt's qualified immunity jurisprudence "would require a heightenedpleading in cases involving individual government officials."Leatherman, 507 U.S. at 167, 113 S.Ct. at 1162. This question is notpresented in the instant case. The Crawford-El Court's endorsement of theheightened pleading standard was framed as one of the proceduresavailable to trial court judges in executing their responsibility to"exercise [their] discretion in a way that protects the substance of thequalified immunity defense . . . so that officials are not subjected tounnecessary and burdensome discovery or trial proceedings."Crawford-El, 523 U.S. at 597-98, 118 S.Ct. at 1596-97. Moreover, theCrawford-El Court set forth several distinctions between casesimplicating the qualified immunity defense and other civil rights cases,and it expressed concern over the broad-sweeping potential of the D.C.Circuit Court's heightened burden of proof. See id. at 589-94, 118S.Ct. at 1592-94. Both Leatherman and Crawford-El rejected the use ofjudicial authority to impose heightened pleading.

The Leatherman Court specifically identified the process of amendingthe Federal Rules as the appropriate mechanism. See Leatherman, 507U.S. at 168, 113 S.Ct. at 1163. The Crawford-El Court again chastised anappellate court's imposition of a heightened standard of proof on a civilrights plaintiff in the absence of "any support" from "the text of§ 1983 or any other federal statute, nor the Federal Rules of CivilProcedure," stating that such imposition "lacks any common-law pedigreeand alters the cause of action itself in a way that undermines the verypurpose of § 1983 — to provide a remedy for the violation ofcivil rights." Crawford-El, 523 U.S. at 594-95, 118 S.Ct. at 1595. Inlight of the Supreme Court's unequivocal language regarding theimpropriety of judicially imposed heightened pleading standards and thedistinctions between the governmental immunity doctrine and substantivecivil rights claims, without more explicit instructions from the Court ofAppeals to apply heightened pleading requirements to claims that do notimplicate the governmental immunity doctrine, the Court does not believethat it is wise to extend the reasoning of Judge to apply a heightenedpleading requirement in the instant case. The Court's decision not toimpose a heightened pleading standard on Plaintiff leaves it to evaluatePlaintiff's Amended Complaint under the generous pleading requirements ofRule 8(a)(2).

The Court will, therefore, consider whether Plaintiff's factualallegations set forth the material elements of his §§ 1981 and 2000dclaims: intent or purpose to discriminate; based on race or nationalorigin; in the making or enforcing of a contract, or the administrationof a program receiving federal financial assistance. See discussionsupra at 10-11. In evaluating Plaintiff's Complaint, the Court willconstrue all reasonable inferences in favor of Plaintiff. Plaintiff hasalleged that Bowdoin College was a program or activity receiving federalfinancial assistance at the time of the incident and that he had enteredinto a contractual relationship with Bowdoin by enrolling as a student atBowdoin and by signing the Social and Honor Pledge. See AmendedComplaint ¶¶ 16, 48.4 Plaintiff's Amended Complaint sets forthseveral allegations in support of his claim that Bowdoin Collegediscriminated against him on account of his race and/or national origin.Plaintiff juxtaposes his race and national origin with those of Lee, seeid. ¶ 11, and identifies several instances of differentialtreatment, including the contradiction between Dean Mangawang's refusalto remove from the J-Board a student who had previously expressed a biasagainst Plaintiff and her decision to remove from the J-Board theroommate of an eyewitness whose testimony favored Plaintiff; Mangawang'sdecision to appoint a passive complainant to Lee's case and a vigorouscomplainant to Plaintiff's case; and the complainants' decision to allowLee to offer race- and national origin-based excuses for his conduct andto set forth false accusations of racism against Plaintiff during thehearing. See id. ¶¶ 28, 29, 36-38.5 Plaintiff also alleges thatalthough the evidence presented to the J-Board supported his claims ofinnocence and suggested Lee's culpability, the J-Board ultimatelyexonerated Lee and held Plaintiff responsible, relying explicitly on raceand cultural factors in explaining this decision. See id. ¶¶ 21, 25,31, 32,33, 34, 41.6 Plaintiff alleges that Deans Bradley and Edwardsadopted and endorsed the J-Board's race- and national origin-basedreasoning by approving the J-Board's recommendation to expel Plaintiffand upholding the sanction of expulsion. See id. ¶ 32. Construingall reasonable inferences in favor of Plaintiff, as the Court must do indeciding Defendant's Motion to Dismiss, the Court finds that Plaintiff'sAmended Complaint sufficiently alleges that he suffered race- andnational origin-based discrimination in Bowdoin's disciplinaryproceedings.

The Court also finds that Plaintiff's Amended Complaint sets forthsufficient factual allegations to support the inference that DefendantBowdoin College was motivated by a discriminatory intent or purpose. Inaddition to the allegations of differential treatment, Plaintiff allegesthat Bowdoin made the decision to favor Lee over Plaintiff because oftheir respective races and national origins. See id. ¶ 1. Thisotherwise conclusory allegation is bolstered by Plaintiff's allegationsof Bowdoin's attempt to specially recruit and accommodate foreignstudents, the J-Board's issuance of race- and national origin-basedreasons for the differential outcomes, and Graves's encouragement andelicitation of racial accusations and racial and ethnic explanations fromLee. See id. ¶¶ 11, 29, 41. At this point in the proceedings, whenall reasonable inferences must be construed in favor of Plaintiff, theseallegations will suffice to indicate that purposeful or intentionaldiscrimination based on race or national origin may have motivated therepresentatives of Bowdoin College. The Court, therefore, deniesDefendants' Motion to Dismiss Counts I and II for failure to state aclaim upon which relief can be granted.7

C. Whether A Contractual Relationship Existed Between Plaintiff andBowdoin

Defendants also move to dismiss Counts I and III-VI, Plaintiff's42 U.S.C. § 1981, breach of contract, and tortious interference withcontract claims, on the ground that a contractual relationship did notexist between Plaintiff and Bowdoin. Defendants frame Plaintiff'salleged contractual relationship as based solely on the Student Handbookand contend that Bowdoin never manifested the requisite intent to bebound by the Handbook. Defendants cite language of the Handbook insupport of their position, including the Handbook's preamble stating thatBowdoin has "provided [the Handbook] as a reference . . . a guide to thepolicies, procedures, and governance structure of the College" and theHandbook's reservation of "the right to make changes in courseofferings, degree requirements, regulations, procedures, and charges."See Student Handbook at 6, 103. Defendants maintain that the reservationclause renders the contract too indefinite and illusory to beenforceable. Defendants also point out that Plaintiff and Bowdoin neverbargained over the content of the Handbook and that Plaintiff signed theSocial and Honor Pledge only after making the decision to attendBowdoin. Plaintiff responds by citing a number of cases that stand forthe proposition that a contractual relationship does exist between acollege and its students and that documents suchas student handbooks mayserve to define the terms of that relationship. Plaintiff highlights anumber of aspects of the Student Handbook that he views as making theargument for a contractual relationship particularly compelling in thiscase. First, Plaintiff points to the fact that he was required to, anddid, sign the Social and Honor Pledge. Plaintiff also points to thelanguage of the Handbook, including its assertion that it "describescertain rights and responsibilities of Bowdoin College students," theexplanation that the Academic Honor and Social Code "requires the activecommitment of the College community," defined as "all faculty, students,. . . and officials or other persons employed by the college and itsproperties," as well as its acknowledgement of "its responsibility toconduct student judicial procedures which reflect fundamental fairness"and delineation of the protections that fulfill this responsibility. SeeStudent Handbook at 48. Plaintiff disputes that the reservation clausedefeats the existence of a contractual relationship, maintaining that theterms of the handbook are sufficiently definite and that a reasonableinterpretation of the meaning of the clause, particularly in light of itsplacement at the end of the handbook, many pages after the Academic Honorand Social Code, would require Bowdoin to follow its existing rules untilBowdoin changes its rules and a new pledge is signed.

The Court will apply Maine law in assessing whether a contract existedbetween Plaintiff and Bowdoin. Maine courts have not addressed whether acontractual relationship exists between a college and its students.However, the Maine Law Court has set forth a number of principles thatwill guide this Court's determination of the existence of a contractbetween Plaintiff and Bowdoin. First, in order for a contract to existbetween parties, the "parties must have mutually assented to be bound byall its material terms; the assent must be manifested in the contract,either expressly or impliedly; and the contract must be sufficientlydefinite to enable the court to determine its exact meaning and fixexactly the legal liabilities of the parties." Searles v. Trs. of St.Joseph's Coll., 695 A.2d 1206, 1211 (Me. 1997) (quotation omitted). Seealso Bragdon v. Shapiro, 77 A.2d 598, 601 (Me. 1951) (holding that termsof agreement regarding bonus "too indefinite or meaningless to permitrecovery" because they did not set forth standard to assist fact finderand left too much discretion to the employer, but allowing recovery forvalue of labor). Additionally, "a reservation to either party of anunlimited right to determine the nature and extent of his performancerenders his obligation too indefinite for legal enforcement, making it,as it is termed, merely illusory." Corthell v. Summitt Thread Co.,167 A. 79, 81 (Me. 1933). However, if other terms of the contract limita party's retention of a right to define its terms, such retention willnot render the contract too indefinite or illusory for enforcement. Seeid. at 82 (holding that "good faith" interpretation clause andreasonableness language in contract prevented clause reservingdetermination of "`basis and amount of recognition to rest entirely'"with employer "`at all times'" from rendering contract illusory).

Additionally, a number of opinions by the Court of Appeals for theFirst Circuit and other courts within this circuit have endorsed theexistence of a contractual relationship between students and colleges.Most explicit and comprehensive of these opinions is Mangla v. BrownUniversity, in which the Court of Appeals explained:

The student — college relationship is essentially contractual in nature. The terms of the contract may include statements provided in student manuals and registration materials. The proper standard for interpreting the contractual terms is that of "reasonable expectation — what meaning the party making the manifestation, the university, should reasonably expect the other party to give it."

Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir. 1998) (citing Russellv. Salve Regina Coll., 938 F.2d 315, 316 (1st Cir. 1991), rev'd on othergrounds, 499 U.S. 225, 111 S.Ct. 1217 (1991), reinstated, 938 F.2d 315(1st Cir. 1991), and quoting Lyons v. Salve Regina Coll., 565 F.2d 200,202 (1st Cir. 1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611 (1978)).See also Cloud of Trs. of Boston Coll., 720 F.2d 721, 724 (1st Cir. 1983)(applying reasonable manifestation standard to ascertain terms ofcontract between student and university); Tobin v. University of MaineMedical Sys., 59 F. Supp.2d 87, 95 (D.Me. 1999) (noting defendant'sacknowledgment of contractual relationship between students anduniversities); Dinu v. President and Fellows of Harvard Coll.,56 F. Supp.2d 129, 130 (D.Mass. 1999) (acknowledging modern case law'sacceptance of "strong, albeit flexible, contractual flavor" ofrelationship between universities and students, as well as role ofstudent handbooks in defining terms of relationship); Govan v. Trs. ofBoston Univ., ¶¶ F. Supp.2d 74, 82 (D.Mass. 1999); Fellheimer v.Middlebury Coll., 869 F. Supp. 238, 242-43 (D.Vt. 1994). But see Pacellav. Tufts Univ. Sch. of Dental Med., ¶¶ F. Supp.2d 234, 241 (D.Mass.1999) (holding that contractual relationship between student anduniversity did not include terms of the handbook because universityretained right to unilaterally modify terms of handbook without notice,plaintiff neither negotiated for nor assented to terms of contract, andrelevant correspondence did not call special attention to handbook).

Defendants cite a number of cases in support of their position that acontractual relationship does not exist between Plaintiff and Bowdoin,but these cases do not rule out the existence of a contractualrelationship between a college and its students, and the Court findsthese cases factually distinguishable from the instant case. InSlaughter v. Brigham Young Univ., 514 F.2d 622, 624 (10th Cir. 1975),cert. denied, 423 U.S. 898, 96 S.Ct. 202 (1975), the court acknowledgedthe merits of using some aspects of contract law to analyze therelationship between colleges and students, but specifically rejected thedistrict court's "complete adoption of commercial contract doctrine" toallow recovery under "some sort of substantial performance remedy." Seealso Fellheimer, 869 F. Supp. at 243 (noting that Slaughter did notcompletely rule out application of contract doctrine to the student— university relationship). The language of the handbook at issuewas permissive rather than mandatory in Abrams v. Illinois Coll. ofPodiatric Med., 395 N.E.2d 1061, 1065 (Ill. App. 1979), and, while thecourt deciding Love v. Duke Univ., 776 F. Supp. 1070, 1074-75, aff'd by959 F.2d 231 (4th Cir. 1992), did not explain why it chose not to find acontractual relationship, it also based its holding on the finding thatthe plaintiff had failed to fulfill the terms of the university bulletinat issue. Although the court in Southwell v. Univ. of the Incarnate Word,974 S.W.2d 351, 356 (Tex.Ct.App. 1998), did hold that thebulletin itself did not create a contract because of its language reservingthe right to change its policies without notice, the court went on to holdthat a contract nevertheless existed between the university and thestudent,and that the university's policies and requirements defined the terms ofthat relationship.

In light of this precedent, the Court holds that by pleading his statusas a student of Bowdoin College at the time of the incident, see AmendedComplaint ¶ 12, Plaintiff has adequately pleaded the existence of acontractual relationship between Bowdoin and himself. The morecomplicated question for the Court concerns whether this contractualrelationship included the Student Handbook terms, the alleged violationof which forms the basis of Plaintiff's claims against Bowdoin.Plaintiff's allegation that Bowdoin promised to treat all studentsequally regardless of race or national origin and not to discriminateagainst Plaintiff on the basis of race or national origin forms the basisof Counts III and V of Plaintiff's Amended Complaint. Plaintiff'sallegation that Bowdoin promised fundamental fairness, impartiality, andthe opportunity to provide evidence and witnesses in its proceedingsforms the basis for Counts IV and VI of Plaintiff's Amended Complaint.The Court will consider each of these alleged promises in turn,evaluating whether the Student Handbook provisions pertaining to thesealleged promises raise a reasonable inference that Bowdoin should havereasonably expected Plaintiff's understanding that Bowdoin intended to bebound by these terms. See Mangla, 135 F.3d at 83.

With regard to Plaintiff's allegation that Bowdoin promised to refrainfrom race or national origin discrimination, Plaintiff cites to thefollowing language in the Student Handbook:

Respect for the rights of all and for the differences among us is essential to the Bowdoin community. Discrimination . . . of others because of race, religious affiliation, gender, age, sexual orientation, physical characteristics, or other characteristics has no place in an intellectual community. *** Such practices violate both the ideals of the College and its Social Code and are subject to appropriate disciplinary sanctions. When such incidents violate the statues of the State of Maine, criminal prosecution may be pursued.

Amended Complaint ¶¶ 14, 51, 59 (quoting Student Handbook). The Courtholds that, even indulging every reasonable inference in favor ofPlaintiff, Plaintiff's reference to this language alone does not indicateBowdoin's manifestation of its assent to refrain from discriminating onthe basis of race, national origin, or any of the other listedcategories.8 This provision clearly serves to provide Bowdoin withthe power to issue and to seek appropriate disciplinary sanctions againstmembers of the Bowdoin community who discriminate on the basis of theforbidden grounds and to pursue criminal prosecutions in certain cases.However, nowhere in this provision does Bowdoin assume any responsibilityfor refraining from discrimination itself or set forth any consequencesof discriminatory actions on its part. While the first two sentences ofthis provision refer in general terms to the Bowdoin community, thesesentences serve only as expressions of ideals or intentions, expressionsthat alone are insufficient to constitute an offer under Maine law. SeeSearles, 695 A.2d at 1211-12. Without additional allegations of actsor language manifesting Bowdoin's intent to be bound by a promise torefrain from discrimination, the Court cannot infer that the contractualrelationship between Bowdoin and Plaintiff included the promise thatBowdoin would refrain from discrimination. The Court will, therefore,dismiss Counts III and V of Plaintiff's Amended Complaint.

Plaintiff cites to the following language in the Student Handbook insupport of its claim that Bowdoin promised to afford protectionspromoting fundamental fairness in its judicial proceedings and to conductthose proceedings with impartiality:

Bowdoin College acknowledges its responsibility to conduct judicial procedures which reflect fundamental fairness. For the purposes of assuring fairness and consistency, the College adopts . . . protections for students under conduct review . . . impartial proceedings, the opportunity to provide evidence and witnesses . . . and the right to a College member, uninvolved with the case, available for personal support at the formal Judicial Board hearing.

Amended Complaint ¶¶ 15, 55, 65 (quoting Student Handbook). By citingthis provision of the Student Handbook, Plaintiff has pleaded sufficientallegations to indicate Bowdoin's manifestation of its intent to be boundby the standard of fundamental fairness, the requirement ofimpartiality, and the delineated procedures. In this provision, Bowdoinexpressly acknowledges a responsibility and sets forth the proceduresthat it has adopted to fulfill this responsibility. Defendants maintainthat Bowdoin's reservation of its right to unilaterally change the termsof the handbook render Bowdoin's acknowledgment of its responsibility tooillusory to constitute a binding contract with regard to the promise offundamental fairness or description of procedural protections. However,at this point in the proceedings, the Court does not view thisreservation clause as sufficient to defeat the incorporation of the aboveterms into the contractual relationship between Plaintiff and Bowdoin.Rather, it appears to the Court from Plaintiff's Amended Complaint thatBowdoin agreed to promote certain principles and abide by certainprocedures, and that Plaintiff agreed to the possibility that Bowdoinmight change the procedures during his years at Bowdoin, with theunderstanding that Bowdoin would consequently be bound to those newprocedures. Moreover, the reservation clause cited by Bowdoin does notprovide an unlimited right to alter the Handbook. Instead, this clauselimits Bowdoin's right to make changes to the areas of "courseofferings, degree requirements, regulations, procedures, and charges."Student Handbook at 103. This clause does not reserve the right towithdraw or alter Bowdoin's promise of fundamental fairness, and thepromise of fundamental fairness, thus, constrains Bowdoin's right to makechanges to procedures or charges. Bowdoin, therefore, has not retainedthe unbridled discretion that would render its promise illusory. Cf.Corthell, 167 A. at 82. The allegations that Plaintiff has set forth inhis Amended Complaint factually distinguish this case from Pacella, acase in which the court found that the plaintiff had not signed thestudent handbook in question and that no special emphasis had been placedon the handbook in the relevant interaction between the student and theuniversity. See Pacella, ¶¶ F. Supp.2d at 241. Hence, the Court willnot dismiss Counts IV and VI on the ground that the relevant Handbookprovision did not constitute a term of the contractual relationshipbetween Bowdoin and Plaintiff. Likewise, Plaintiff's 42 U.S.C. § 1981claim, Count I, will not be dismissed on this ground.

D. The Sufficiency of Plaintiff's Allegations of Bowdoin's Breach

Defendant also moves to dismiss Plaintiff's breach of contract andtortuous interference with contract claims, Counts III-VI, on the groundthat the Court's review of university disciplinary decisions is limitedto an arbitrary and capricious standard. The Court's decision to dismissCounts III and V of Plaintiff's Amended Complaint leaves it to evaluatethis argument only with regard to Counts IV and VI. After reviewing thecases that Defendants have brought to the Court's attention andPlaintiff's Amended Complaint, the Court holds that Plaintiff's remainingcontract claims should not be dismissed on this ground.

Maine law governs the Court's evaluation of these state law claims.Defendants have cited a number of cases involving the application ofother states' contract doctrine to the student-university relationship.Two of these opinions offer little, if any, persuasive force in supportof Defendant's position. See Russell 890 F.2d at 489 (referring, indicta, to a principle of deference towards college disciplinary andacademic decisions, but refusing to defer to college's academicevaluation of plaintiff); Fellheimer, 869 F. Supp. at 243-44(interpreting less binding handbook language). While two of the casesinvolve application of Massachusetts contract principles, the Court viewsthe analytical framework offered by these cases as being helpful to itsevaluation of Plaintiff's Amended Complaint. See Cloud, 720 F.2d at724-25 (quotations omitted); Pacella, 66 F. Supp.2d at 241-42. In thesecases, the courts held that when handbook terms are deemed to constituteterms of the contract between a student and a college, a court shouldevaluate a college's disciplinary hearing procedures "to ensure that theyfall within the range of reasonable expectations of one reading therelevant rules"; in contrast, when a college-student contractualrelationship does not incorporate express terms, such as those from ahandbook, a court should evaluate its disciplinary decisions under anarbitrary and capricious standard, finding in favor of a student onlywhen it determines that a college has failed to "act in good faith and onreasonable grounds." Cloud, 720 F.2d at 724 (quotations omitted). Seealso Pacella, ¶¶ F. Supp.2d at 241-42.

As discussed supra, Part C, the Court holds that Plaintiff'scontractual relationship with Bowdoin includes the Handbook termpromising that Bowdoin would abide by certain procedures to ensureimpartial proceedings and fundamental fairness. Thus, instead ofapplying the arbitrary and capricious standard, the Court will assesswhether Plaintiff's allegations indicate that Bowdoin's actions felloutside a reasonable understanding of this promise. Plaintiff's AmendedComplaint alleges a number of actions that indicate a violation of thispromise, ranging from Bowdoin's decision to allow a biased student tochair the J-Board proceedings to the disparate prosecutorial vigorexhibited towards Lee and him during the proceedings. See AmendedComplaint ¶ 42(iv), (iii). Therefore, the Court will not dismissCounts IV and VI for failure to state a claim.

E. The Sufficiency of Plaintiff's Allegations of Fraud

The Court finally turns to Defendants' contention that Counts V and VIof Plaintiff's Amended Complaint should be dismissed for failure to statea claim because Plaintiff has failed to allege any instances of fraud insupport of that claim. The Court's decision to grant Defendant's motionto dismiss Count V leaves it to resolve this argument only with respectto Count VI. Defendants argue that Maine lawrequires the element offraud to be satisfied in tortious interference with contract claims, thatFederal Rule of Civil Procedure 9(b) requires the pleading of fraud withparticularity, and that Plaintiff's Amended Complaint fails to set forthany such instances of fraud. Plaintiff responds that tortiousinterference with contract can be established under Maine law by eitherfraud or intimidation and that his Amended Complaint adequately allegesboth fraud and intimidation with regard to each of the individually namedDefendants in this suit. Plaintiff alternatively moves for leave toamend if the Court finds that Plaintiff has failed to plead fraud withadequate specificity.

A claim for tortious interference with contract under Maine lawrequires a showing of an existing contractual relationship and that"fraud or intimidation procur[ed] the breach of a contract that wouldhave continued but for such wrongful interference." June Roberts Agencyv. Venture Props., Inc., 676 A.2d 46, 50 (Me. 1996) (quoting Grover v.Minette-Mills, Inc., 638 A.2d 712, 716 (Me. 1990)). See also Green v.Maine Sch. Admin. Dist., 52 F. Supp.2d 98, 111-12 (D.Me. 1999). Fraudconsists of the following elements: the making of a falserepresentation; of a material fact; with knowledge or reckless disregardof its falsity; for the purpose of inducing reliance; and justifiablereliance. See id. at 112 (citing Grover 638 A.2d at 716). Federal Ruleof Civil Procedure 9(b) requires that a party alleging fraud or mistakemust plead with particularity "the circumstances constituting fraud ormistake." This special pleading requirement applies to state law claimsfiled in federal court. Cf. Hayduck v. Lanna, 775 F.2d 441, 443 (1stCir. 1985). Hence, while a federal court evaluates whether a party hasadequately pleaded the elements of fraud according to state lawstandards, the assessment of whether a party has adequately pleaded thecircumstances of fraud is measured by federal law. See id. To serveRule 9(b)'s main purpose of giving notice to a defendant of the claims offraud and the acts forming the basis of the claims, federal courtsrequire plaintiffs to specify the "time, place, and content of an allegedfalse representation, but not the circumstances or evidence from whichfraudulent intent could be inferred." Id. at 443-44 (quotationomitted). See also Greebel v. FTP Software, Inc., 194 F.3d 185, 193-94(1st Cir. 1999).

Upon review of Plaintiff's Amended Complaint, the Court concludes thatCount VI should not be dismissed at this point in the proceedings.Plaintiff has pleaded the time, place, and content of the representationsthat he alleges to be fraudulent sufficiently to put Defendants onnotice of the alleged actions and inactions that form the basis ofPlaintiff's tortious interference with contract claim. Although theCourt has serious concerns about the merits of Plaintiff's assertion offraudulent conduct on the part of the individual Defendants andPlaintiff's ability to bring a tortious interference with contract claimagainst the same individuals whose actions constitute Plaintiff's breachof contract claim, the parties have not briefed this latter issue and theCourt is constrained to construe all reasonable inferences in favor ofPlaintiff in evaluating his Amended Complaint. See Correa-Martinez, 903F.2d at 52. Given Plaintiff's allegation of the veracity of his versionof the events of the night of March 19, 1999, and of the contrastingfalsehood of Lee's testimony, see Amended Complaint ¶ 29, 41, theCourt cannot conclude that "it appears beyond doubt that the plaintiffcan prove no set of facts in support of his claim" that Defendants actedwith deliberate falsehood or reckless disregard of the truth during thepreparation of the case against Plaintiff,the presentation of the case tothe J-Board, or the J-Board review process. Conley, 355 U.S. at 45-46,78 S.Ct. at 102. The Court does note, however, that other than withrespect to his allegation that Defendant Graves exhibited intimidatingbehavior towards a witness during the J-Board proceedings, see AmendedComplaint ¶ 29, Plaintiff has not pleaded, in either a factual orconclusory fashion, the procurement of Bowdoin's breach of contractthrough intimidation. Plaintiff's tortious interference with contractclaim will, therefore, be limited in subsequent proceedings herein to hisallegations of fraud.

CONCLUSION

For the reasons discussed above, the Court ORDERS that Defendants'Motion to Dismiss Counts III and V of Plaintiff's Amended Complaint be,and it is hereby, GRANTED, and Defendants Motion to Dismiss Counts I,II, IV, and VI of Plaintiff's Amended Complaint be, and it is hereby,DENIED.

1. The portion of the Student Handbook entitled "The Academic HonorCode and Social Code," is particularly relevant to Plaintiff's claims.See Student Handbook at 48-54. The Court will refer to this portion ofthe handbook as the "Academic Honor and Social Code."

2. In refusing to apply a heightened pleading standard to that claim,the court took care to note that it had applied heightened pleading inonly a few categories of cases. See id. at 73. While the court includedcivil rights claims in this list and cited Dartmouth Review as anexample, the court referred to its application of the heightened pleadingrequirement in the past tense and did not address the continued vitalityof Dartmouth Review after Leatherman. See id.

3. Specifically, in holding that the heightened pleading standardsurvived Leatherman, the court stated that "[w]e believe that it does, atleast in a case like the present alleging a constitutional violationcalling for proof of an illegal motive." Id. at 73 (emphasis added). Thecourt later explained that it believed that the Supreme Court would allowit to apply heightened pleading because the claim at issue "preciselyinvolves an action under section 1983 against state officials in theirindividual capacities requiring plaintiff to prove improper motive."Id. at 74 (emphasis added).

4. The Court will address the contractual aspect of this in subsectionC, infra.

5. The Court notes that an allegation that the J-Board had punishedPlaintiff more harshly because it perceived his acts as racist would notbe sufficient to state a claim of race-based discrimination. SeeDartmouth Review, 889 F.2d at 19 ("Without more, allegations thatperceived racist infractions were punished more harshly than otherinfractions do not tend to show racial discrimination against the personsaccused."). However, the Court understands Plaintiff's allegation thatLee was allowed to accuse Plaintiff of racism at the hearings as one ofmany factors indicative of a general pattern of differential treatmentbased on race and national origin.

6. Plaintiff alleges that the J-Board relied on the same factualrecord to exonerate Plaintiff and expel Lee. See Amended Complaint ¶27.

7. This decision obviates the Court's need to address Defendants'argument that Counts III-VI should be dismissed for lack of diversityjurisdiction. The Court has supplemental jurisdiction over Plaintiff'sstate law claims. See 28 U.S.C. § 1367 (a).

8. In setting forth Count III, Plaintiff refers the Court to"elsewhere in this Complaint," but fails to specifically direct theCourt's attention to any other allegations that would support the allegedcontractual term. See Amended Complaint ¶ 51. The Court'sindependent review of the allegations in the Amended Complaint has notrevealed any additional allegations that would lead to a reasonableinference that Bowdoin promised Plaintiff to refrain from discriminationon account of race or national origin.

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