possible argument that harvard university was in breach of contract is important to note that the basic premise of the trial court's argument is flawed the trial court argued that there was nothing in harper's documents which should be stated is to handbook general regulation provisions and at least seven says other documents and flowchart that explain and describe what's in the regulations and take different terms and are conflicting don't promise a student who is in good standing and completes a degree that he will receive the degree if they attend classes paid tuition are not suspended for reasons of academic or disciplinary purposes would be able to walk at graduation and that's exactly what occurred here mr so no he didn't just attend graduation he was the male class orator he had a key role in graduation after he had after graduation day it was only then that there were charges issued against him and from there the policy that was applied to him was fatally they and failed to provide him with his reasonable expectations the st area of fatal ignace is that the ad board made the decision to discipline and with a undefined standard sufficiently persuaded the reason that harvard use this standard is was stated in the briefs as however did not want to view this as a legal proceeding and did not want to use the term propounder in some of the evidence ok however of harvard is going to make up the term a term that is so crucial in determining whether is it discipline however should have at least defined the term neither  tan or one of the many documents that describe the handbook the term sufficiently persuaded has no uniform meaning for example a way i think of it and let's say you go into a restaurant and have dinner and then the waiter or waitress comes up to you and says would you like some did some dessert one judge on this panel might say i'm sufficiently pull i don't want dessert another judge on this panel would might say oh um i would like a sliver for me to make a decision whether i'm sufficiently fall and finally the rd judge here might say i'd like a whole piece of cake until i'm sufficiently full i use that because that's exactly what happened here the trial court said that we have no abbott and in place that would show whether the tribe ad board proportionately how could we know we don't even know what the very standard they use had how it was defined to ask nd of all the plethora of arguments that were raised in the complaint show that there was a conflict in the documents for example did he did harper have the right to withhold a diploma if there was not a charge before graduation we would argue that the general in for the general regulations are the is the document that should control after all the regulation that's one were issued into two thousand and twelve and superseded the other documents and two it's stated in another form that the handbook which was approved and voted upon by the faculty council is the controlling document and in that document it states that a degree should not be withheld council does the handbook to incorporate all of these other documents into it the handbook does not incorporate the other documents your own or the other documents refer to the handbook and basically state that the handbook is the controlling document do the other documents purport to incorporate the handbook it purports to explain the handbook it doesn't incorporate the ha thank you for that question the student in for morse and nation form states that a student cannot receive a degree before a case is resolved or before a statuses receive his status is restored to good standing and ordinarily may not participate in commencement or related activities it was reasonable for dhamma laurie to assume that he was in good standing and that because he was allowed to participate in commencement that he would receive his diploma also i would like to ramp up my argument a breach of contract to this panel it was a reasonable for him to assume that he would know the identities of the witnesses that he would have an advocate since he was not allowed to attend the hearings against him or any of the witness interviews and that there would be some confidentiality between himself and his board grow up and that there would be some semblance to the term ordinarily that occasion be timely filed and resolved within you before you answer that because i was trying to figure out if the student being allowed to participate in the graduation ceremony was perhaps an insult to injury  are you saying is just healthy questioning does it have some spur to kill or legal significance i believe that it does your honor and i will explain why i think it does in several way under harvard's policy they had many mechanisms that would have prevented him from attending commencement one they could have placed him on an involuntary leave that since that would have placed  student not in good standing to who they could assume a spontaneous shoot charges on their own which also would have not allowed him to attend graduation three they could have started they could have been initiated a complaint was a really error is latest may th and within the policy they could have had the entire investigation completed before graduation and under that scenario he would not have been able to obtain a attend graduation much less be the commencement speaker when we look at other cases in massachusetts both state  federal cases you see students are usually suspended from school they can't attend graduation they can't even attend class the fact that they are allowed him to attend graduation led him to believe since there was no case an issue needed against him that he would receive his degree there is no case out there under any scenario where a student was allowed to stay and good standing attend graduation and then be subject to a perpetual jurisdiction even a charge that occurred post graduation so there were spots to th response to that is that he he attended graduation but he was that given his diploma so he knew that he was doing anything except gauging in the exercise there was the assumption that he would still graduate because because he was up by the reading of the policy which should be considered that which could be construed against the drafter he had the assumption that he would graduate when you listen to his speech on you too he was lauded as the class leader the only assumption i can make sense of why they didn't charge him before hand or place him on leave when they have those mechanisms is because at that point he was still a good student good standing and they handbook the handbook designed by its own words is to be head of coal in nature bless you they handbook is designed by its own definition as a teaching mechanism not a disciplinary mechanism it would make no sense for a college to discipline once a student leaves its halls and its classrooms is there anything in the handbook that says  a decree what the earth can be resent that there is nothing in the handbook that states that a degree can be rescinded once it's confirmed and that silen should not be construed against mr  obligation to follow the procedures set forth in the handbook and in the case at bar i respectfully submit that the trial court's analysis constitutes reversible error because the trial court utterly disregarded the precedents from this court in the boston college one case what we refer to as that case which in fact involved the same trial court as the case at bar was a case in which the st circuit reversed in part summary judgment on breach of contract and basic fairness claims and howled that the violation of the student's reasonable expectations even when the expectation was not expressly outlined in the handbook can also constitute a violation of s so if you need a couple of extra minutes you should feel free to take them or i apologize judge howard you're speaking and i cannot hear you can hear your  gems i think it would be helpful to briefly address this issue of what constitutes basic fairness because there is not in fact a certain definition and case law makes clear that it is an uncertain indeed elastic concept and when analyzing basic fairness there is no one size fits all approach you look at pictures talladega of the circumstances what's at stake what's the relative bargaining power of the parties as well as looking at this issue of arbitrary and capricious behavior and institution of course cannot act in a way that is arbitrary and capricious and i respectfully submit that indeed what is in fact more arbitrary than a decision based on an undefined standard of sufficiently persuaded here in the briefing outlines there are several ways six in particular expressly articulated as to how harvard who's required to provide basic fairness again number one i think the most significant issue is the fact that the policy was operating under the sufficiently persuaded standard which is an indefinite undefined contractual term persuaded harvard would argue is proponents of the evidence however preponderance of the evidence is the degree to which a party is persuaded the second will slip could you just just pin down your sister said that there is reference to articles and in which the school can distance itself from the preponderance of the evidence standard sating if these proceedings are pedagogical they are not in fact legal proceedings there's no reason to use legal ways however now in the court of her heels we find ourselves in a situation in which harvard has a newfound interest in the standard preponderance of the evidence in an effort to define and otherwise and big us terms that renders the contract void in addition to the issues relating to ambiguity in the contract and submit to the court that harvard's decision the complainants in the three separate cases their names were provided however witnesses identified in the case it believed there was in excess of twenty five witnesses or so total were never identified by name they were aside from that analysis there mr snow like he had no ability whatsoever to know what evidence was presented by whom against him not to mention the fact that the conduct in question regarding some claim was almost two years old at the time it was being analyzed by the ad board for the standard of sufficiently persuaded that a policy violation occurred and in so doing and moving through the process i'd also remind the court that mr so nike was not collateral to advocate for himself any of these proceedings he had to rely on his board representative who in fact pervert's policy was expressly not his advocates and so this case is arguably far more severe in terms of a violation of basic fairness than the boston college one case because in boston college the st circuit ruled that it was reasonable for  student to have an expectation that a disciplinary proceeding would go forward without interference by outside an outside administrator in panel deliberations here in this direction okies case the matter was prevent who sent it to a hearing board he wasn't permitted to be present he doesn't know what was said he doesn't know whether his perspective was clearly presented and he had to in fact rely on his board representative who could perhaps negatively influence the outcome of the proceeding or not clearly articulate mr snuggies perspective and he had no way of knowing because he wasn't even allowed to be present was that he was not allowed to be present or he was that able to present because he was doing something else like it's tractor work ya know that's an excellent question the policy expressly prohibited students from being present the students had to rely solely on a board representative who was not allowed to advocate secretary of the ad board who voted on mr snow his case was a gentleman who very early on in the process was responsible for in fact soliciting complaints from other students so a harvard administrator at the direction of dean alice and contacted other female students to come forward informally file complaints against mr snow and after so doing this gentleman voted by the sufficiently persuaded standard and the levy there was a policy violation and then subsequent to that with respect to an appellate process of mr snow he had questions he was directed to contact that very same administrator who solicited complain there was not a single black male on the panel to examine the case and in the complaint we highlights ample evidence regarding implicit bias and it's worth noting that subsequent to this case in fact know before you begin isman whiskey please attorney stone an attorney super please mute your device including your camera attorney stone we can strike you please go ahead introduce yourself on the record thank you m the jurisdictional argument because i want to clear up some some facts but in the light and with respect to the arts documents so the student information forms says expressly that into the hamper yes so the handbook this is age seventy five of the appendix the general regulations on which my colleagues rely the very st page of that regulation of those regulations say the following is a brief introduction to these boards the ad board and another board for a more detailed description students may consult with their resident dean or visit the website of the administrative board at w w w dot a end what the disciplinary process looks like so that and i don't think there's any dispute that the express language of the student information form would preclude the plaintiff's claim here because the the two of the complaints were filed before commencement right subset that language just expressly and on ambiguously precludes their claim what they say is that the general regulations have other language that they say conflicts because the general regulations say that harvard will not grant a degree if there is a charge but there is no conflict old all that means is harvard is precluded from renting a degree if there's a charge pending that language doesn't say that harvard asked to grant a degree if there is no charge pending and in fact if you look at the calling document the student information form the language expressly precludes harvard from doing that and i think one way to look at the question is just imagine the student from mission form wasn't there right i mean we would have a harder case but we would be making exactly the same argument because we would say that language in a handbook that says one grants a degree so long as the charge pending preclude does not require from harvard to graham's a degree in all other circumstance including when there was you know an allegation of serious sexual misconduct before graduation now the the giving a class they speech based on an allegation but of course the reason that the rules are set up the way they are is because you don't want to do anything based just on an allegation of harvard's procedural documents set up a system where once a complaint is filed the allegation is investigated and then when the investigator best the gratian terms up enough the edward decides that a formal charge should issue then a formal charge would issue they think a formal charge  immediately based on an unjust an allegation that he should be precluded from was graduation and giving a speech is just an allegation and that no investigation is warranted at the outset it seems to me here concluded that the allegations were true but imagine that the airport had concluded that the allegations were false and he would have been precluded from walking at his graduation from giving his quest a speech based just on allegations that turned out not to now that kind of system it's it seems to me makes no sense and if you're going to base a contract claim on that kind of system that doesn't make much sense you would at least expect extrude leap clear language requiring harvard to follow that kind of process and it what you have is the opposite you have extremely clear language in the student information form absolutely precluding the plaintiff's apartment because it says that once a disciplinary resolves that what they call jurisdictional claim as a matter of contract now i would move on unless the court has questions about that so so the next the next point is the sufficiently persuaded standard so the argument that they're making as i understand it is that was the sufficiently persuaded standard which is the reason harvard uses those words as my colleague said it was because it wanted to avoid sort of kotori language but their argument when a court has to believe that the sufficiently persuaded standard could reasonably be understood to mean something less than a preponderance of the evidence because it's more than a preponderance it obviously couldn't have hurt the plaintiff and that seems to me to be a totally unreasonable reading of that standard because the question is sufficiently persuaded of what well at page ninety two of the appendix it's this a the board can take disciplinary action if it's officially persuaded that the student has violated the rules of the faculty and there's no such a thing as a standard of proof when the question is something is whether something has or hasn't happened it's less than a preponderance because then you would be telling a fact finder well even if you think something is likely to be false you have to find that it's true anyway no reasonable fact finder or any other reason will person would read that kind of language that way and that's other language in these documents confirms the point for example at seventy nine of the appendix it says the discipline is appropriate quote if the board determines that wrongdoing occurred not that wrongdoing may have occurred of there's you know probable cause that wrongdoing occurred but they didn't actually occur so there's there's no way documents that limits harm or not i think just you know you can think of examples where in the end there couldn't possibly be i mean let's say june after graduation you figure out that a student cheated on every single exam they ever took at harvard the idea that harvard couldn't take back a degree seems to me not to make sense but here you don't have to resolve that kind of question about whether whether harvard to do something after a degree was granted because here the complaints were filed before before the degrees were granted and that and the documents speak with an allegation of student misconduct in the form of a complaint and the allegation happened if they were graduation so so again we're d not talking about what are a student reasonably infer from silence we're talking about what a student would reasonably infer from express language and express language just squarely precludes the argument now let me ask you prophetically what would have been would the case be the same if no charges have been filed no complaint his diploma then yeah it would be the same result because it would just be quick it would just be covered by that language that i just read i mean i think the harder question is what if this all comes to light you know a month or two months or three months later and then i think it's wit hin harvard's discretion of course or does not have to grant degrees to people that you know highly rules of the sort but i just mentioned you know obviously if somebody is found to cheat on their way through harvard and i'm sure it can it can rescind its degree it's got discretion to do that and i would think that it would have the same kind of discretion when it comes to you know serious sexual assaults but you know that's a completely different it's because i think there  you know we wouldn't be dealing with the kind of expressive language that we're dealing with here and again i just want to make clear that there are whole argument is based on this general regulations saying that harbored won't grant a degree after a while a church is and and that and they're teaching from a negative implication the harvard has to grant it for a chart but even if there were no other language that would be that implication would be incorrect and there is another link in the student from mission form which expressively precludes harvard from granting a degree once a complaint has been filed so that language control here i think i'm i think i've gone through if that answers your question yes i think i've gone through sufficiently persuaded there were a few other points that  information form which is a board document all these are board documents and it says the court can take action if it sufficiently persuaded the student has violated the rules of the faculty so those documents govern the board just as they make students aware of what they're or what the procedures are going to be right so so i think if if your owners have any more questions about sufficiently persuaded i think that goes to the contract and basic fairness claim the way the plaintiff is framing him also going to both of those claims is the the identity of the witness and thanked as as james thompson you make clear there is no question that he knew the identities of the actual points and i think it's very important to look at what he actually pleaded  case reports and he says that when the disciplinary case report was given to him the names of the witnesses were blacked out that's true that's required by for it's in the supplemental appendix and you can look at it it doesn't say that you know he asked his board representative for example who the names who what the names of the witnesses are in the board representative says i can't tell you he doesn't say that he didn't know the names of the board representatives in his complaint in fact he alleges explicitly alleges that he at least knew some of them but no where in his compl he didn't know any of nor did he say when he was responding to the witness a statement scoring has been made in this case that there was any problem that he had any problem responding because he didn't know the names of the witnesses and the only reason that you would not make that kind of allegation is either that you knew the names of the says were didn't matter because remember that the standard in massachusetts is at least part of the standard is you have to be made aware of the allegations against you and you have to be able to respond and he was able to respond to the allegations here three or four times including to the witness and of course you need to know who the complainants are because otherwise you don't know what the allegations against you are but even if you were right and he was you know somehow wasn't able to know who the witnesses were it doesn't mean he wasn't able to respond and he never said he was unable the witnesses corroborate and provide additional evidence  t it's hard to understand how he could respond to witness statements if the names of the it was the point of witness statements that being added change only what they are provided the witness statements are all provided it's just that the witness names in the actual document are blacked out and he responded not only could you responded but he did respond to the witness statements his responses are in the end the supplemental funds and what he again what he alleges is that the document which you have to tell to i think so you know i don't you know i'm i'm i'm bound by the record but another is a policy that says that he has a right to know the names of the witnesses there is there is no policy that speaks doesn't mean that somebody wouldn't have given it to him and i think the more important point is he doesn't watch that he says that the subcommittee didn't give him the names of the witnesses he also doesn't mention he didn't know who they were or that even if he didn't know who they were that he had some problem in responding to their own nations which is at the end of the day what matters right and you're able to respond so i think i think that's our basic answer on the identity of the witnesses let me ask you one  reasons st of all i would encourage you to get out of the adjudicatory model right that's you know the prosecutor can't be the judge that's true this isn't that's not the kind of model that this university uses or and messengers is made clear that universities can humans whatever kind of model that they think comports with their pedagogical mission and here what happened is an associate dean who is the secretary of the ad board this is the allegation the associate dean who is a encouraged the student to file a complaint so that that investigatory process could commence doesn't say any thing about the dean's bias about how he would vote later and of course there is a presumption of regularity to any kind of administrative proceedings certainly private university proceeding so if you're going to get past the motion to dismiss you have to allege something that would be out of the ordinary right so in the in the boston college case th even assuming you're right again the fact that the fact that a dean wants plaintiffs who say they've been sexually assaulted to file a complaint with the board that it you can't sexually assault sexual assaults doesn't tell you anything that there's no bias there because all the dean is saying is let's institute the process so that we could have that would happen in d c one was at the point that the board was adjudicated actually deciding the case and administrator interfered and pressured members of the board to vote a particular way no kind of allegation like that at all in this case right and that's that's the kind of thing that you would need to to a label you know that somebody that voted suggest that you have to allege something that you know would plausibly suggest bias rather than just a few a few other points that my colleagues raise that i'd like to respond to one is  take take just a minute we've gone quite a bit over oh sure i think i think maybe the last last two points are about the more representative one is the contract claim about whether the board representative would act as an advocate i think that one is just resolve but from serving as an out of get and in the confidentiality point the st problem is there's no allegation even if there was a promise of confidentiality there's no allegation that any confidences were breached so that you can't have a breach of contract claim if you don't allege that what they rely on is language that says that you should be honest and forthcoming with your board representative but there's other language in the documents for example nine thousand four hundred and ninety five of the appendix that also say you should be honest and forthcoming with every member well right we are going to now hear from ms stone again the twelve the six stage it would be argued that terms should not conflict and just there are internal contradictions even within the very student information form discussed by harbor for example this opposing counsel argues that a student should not wait if there is a case and then states that a disciplinary case and it's in the form always begins with an allegation in the form of a complaint so the issue is he argues airco a case is a complaint because there was a complaint that makes no sense that would be like saying all cakes begin with eggs in flower they're poor eggs and color combined always make a cake that just doesn't make sense there's another form though and it's a ploy to chart that makes it even more confusing it's exhibit five that says what is a charge a charge is the decision by the board to pursue case against the respondent so if i'm a student and i'm looking at all these documents i will have absolutely some confusion as to when the process begins when they can withhold a degree is it a charge is it a case is it a complaint if there is any doubt and any confusion then the trial court must be repurposed likewise if in the what the argument the church that you were making about the conflict and the conflicting terminology or use are you saying that that goes to the student's reasonable expectations and is that or whether the reasonable expectations are not met so i would argue that even the internal inherent contradictions would make this so conflicting that it needs to be resolved by a jury or should be considered void by this court also if there's any doubt as to which documents control only one set of documents are called regulations and now are voted for and harvard never discusses the fact that the regulations were in two thousand and twelve superseded the see the student information form and the i just want to go back to the paragraph that i read in that if the allegations of off conduct that is a particularly serious nature or similar allegations have been proper i all there is about to the college may decide to move forward with that charge in the interest of community safety that language was there in that very document that harper states trumps the language in the regulations there should have been a charge and there was the mechanism not in one document but in almost every document cite should be arguing also the merits of the shine they were that he committed sexual allegations we don't believe we need to argue the merits of the case because we believe that the process was so flawed they did not have jurisdiction against him to try these cases and indeed i should mention that there was no complaint or charge  concerning the three complainant and harvard never addresses this simply because and neither did the trial court because there is no good answer as to betty there is absolutely no answer as to why her could discipline mr so gnocchi in a situation where there was neither a complaint or a charge prior to graduation as to that person and  disciplinary policies states that withdrawal or dismissal is recommended when there is more than one finding it was essential that back portion of that complainant not be lumped together with the other two cases they were completely infected by a rd case of which there was absolutely no jurisdiction to hear and again the trial court didn't address this however didn't draw addresses because logically there is no answer  one thank you mr on other questions from the court all right we will take this case under advisement i want to thank counsel for their arguments in the time that they have given us and i believe that included that concludes our arguments for this morning and early afternoon this session of the honorable united states court of appeals has now recessed until the next session of the courts god save the united states of america and this honorable court counsel you may now disconnect from the reading