United States Court of Appeals

For the First Circuit

No. 20-2023

JOHN DOE,

Plaintiff, Appellant,

v.

BROWN UNIVERSITY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Kayatta and Howard, Circuit Judges,

and Casper, District Judge.*

Susan Kaplan, with whom Kaplan Law and Sonja L. Deyoe were on 

brief, for appellant.

Steven M. Richard, with whom Nixon Peabody LLP was on brief, 

for appellee.

August 4, 2022

* Of the District of Massachusetts, sitting by designation.
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KAYATTA, Circuit Judge. Shortly after he began his 

freshman year at Brown University, John Doe, an African-American 

man, had a brief encounter with Jane Doe, a white woman.1 Their 

stories of what happened differ slightly in emphasis but are 

generally consistent. They met at a bar and both decided to move

to an outside patio. There, they kissed. The pair then moved to 

a small alleyway behind the building -- the record is unclear 

whether Jane or John initiated the relocation to the more private 

spot. According to Jane (as expressed in her formal complaint 

about the incident), John became more aggressive and repeatedly 

tried to lift her dress without her express permission. According 

to John, Jane was aggressive throughout the encounter, choking 

him, biting his lip, and telling him, "Stop, I make the rules." 

Jane admitted going "for his neck" and saying, "Stop, I make the 

rules here." John said that, feeling uncomfortable, he ended the 

interaction and walked away.

A few months later, Jane filed a complaint against John 

with Brown's Office of Student Life, commencing a multi-year 

process leading to John's suspension from school, a suicide 

attempt, and, eventually, this lawsuit by John against Brown. For 

the reasons that follow, we affirm the grant of summary judgment 

dismissing John's federal claims, reverse the grant as to his state 

1 Following the lead of the district court and the parties,

we refer to the students involved by pseudonyms.
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law claim for intentional infliction of emotional distress, and 

remand for further proceedings.

I.

Because this is an appeal from the grant of summary 

judgment, we recount the facts not as they necessarily are, but 

rather as a jury might reasonably find them to be in favor of John, 

the non-movant. See Brader v. Biogen Inc., 983 F.3d 39, 44 (1st 

Cir. 2020).

After Jane filed her complaint in November 2013, the 

Associate Dean of Student Life, Yolanda Castillo-Appollonio, 

informed John of the allegations against him and that the school 

would begin an investigation. John was also informed that he had 

a right to provide a list of witnesses and a written statement to 

assist the investigation and that he had a right to choose an 

advisor to help shepherd him through the process. Dean Castillo

also issued a mutual no-contact order to both students.

Shortly after he was notified of the complaint, John met 

with Dean Castillo and expressed his desire to file a countercomplaint against Jane. Dean Castillo discouraged him from doing 

so. John recalls her telling him that she could not help him file 

a complaint and that she made it sound as if he would have to start 

a separate process only after the current complaint process 

concluded. This advice did not accord with Brown's rules, which 

permitted counter-complaints. Dean Castillo also determined that 
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John's version of Jane's conduct did not rise to sexual assault in 

her eyes because John did not explicitly say "that there was no 

consent to the activity" or "that he said, stop doing that." Dean 

Castillo did not file a complaint against Jane on John's behalf,

nor did she initiate any investigation of Jane.

Brown eventually decided that, despite John's statement 

that Jane choked and bit him, John alone should be charged with 

three violations of its Code of Student Conduct. Brown charged

John not only with sexual misconduct, but also with committing 

acts that could "be reasonably expected to result in physical harm 

to a person or persons" and "[m]isconduct that includes . . . 

violent physical force or injury." Brown also charged John with 

illegal underage use of alcohol.

The school then held a hearing, after which the Student 

Conduct Board found John responsible for sexual misconduct "that 

involves non-consensual physical contact of a sexual nature" and 

for illegally drinking alcohol (which he had admitted). The Board

did not find John responsible for either charge related to physical 

harm. As a sanction, Brown applied a "deferred suspension" that 

would expire at the end of the following academic year. Deferred 

suspension is somewhat akin to probation. It provides the student 

"the opportunity to demonstrate the ability to abide by the 

community's expectations of behavior," but it also means that any 

new allegations "will receive greater scrutiny," and it 
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"increase[s] the likelihood" of "more serious outcomes," 

"including separation from the University." Jane appealed this 

decision because she believed the sanction was not severe enough. 

Brown denied the appeal. John later testified that, despite his 

belief that Brown reached the wrong result, he did not appeal 

because he "was put on probation" and not "suspended or expelled." 

He "was ready to move on."

In the spring of 2014, during a conversation among 

sorority sisters regarding "certain men on campus," Jane stated 

that John tried to touch her inappropriately, that he choked her, 

and that he was sexually aggressive, but she did not mention that 

she bit or choked him. Sally Roe was a part of that conversation. 

She told her sorority sisters that she and John had met at a party 

and consensually kissed. She explained that he wanted to take a 

shower with her and continued to encourage her (either verbally or 

physically, she couldn't remember) even after she said no. When 

she started to feel uncomfortable, she left "[a]nd that was the 

end of [their] interaction."2

After hearing Sally's story, Jane sought "permission" to 

share it with a dean at Brown. Sally agreed, after which a dean 

"asked [Sally] to come in and make a formal complaint."3 Sally 

2 John's interaction with Sally happened after the incident 

with Jane but before Jane filed her complaint.

3 Sally testified that she couldn't remember if she contacted 
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then met with that dean in person. She prefaced the meeting by 

explaining that she was not formally complaining that John sexually 

assaulted her; rather, she was reporting him "more for [the]

protection of others" because he had the "potential to have other 

negative interactions with women." She thought her interaction 

"could potentially have led to sexual assault." Sally testified 

that her view of John's character was based on the fact that he 

supposedly "continued to have uncomfortable interactions" with 

Jane.

Sally also filled out a "Campus Incident Complaint 

Form." On that form, she alleged that in October 2013 "a boy that 

[she] was with tried to force [her] to have a shower with him." 

She explained that she had consensually kissed the boy, but, after 

he tried to take a shower with her, she "promptly left and told 

him [she] wasn't comfortable." Sally also asked for a no-contact 

order to be put in place.

Upon receiving the written complaint, Dean Castillo --

who was not the dean who initially met with Sally -- repeatedly 

sought to meet with her to confirm that John was the person against 

whom she had filed a formal complaint. Sally was initially 

nonresponsive, but eventually told Dean Castillo that she 

requested no "serious action" and had in fact "felt forced to 

the dean first or if the dean contacted her.
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report." The day after Sally responded, May 7, 2014, the Office 

of Student Life nevertheless sent John three letters: The first 

informed him that someone had filed a complaint against him for 

actions that could be considered "[s]exual [m]isconduct that 

involves non-consensual physical contact of a sexual nature" 

and/or "[s]ubjecting another person . . . to abusive, threatening, 

intimidating, or harassing actions." The second letter informed 

him that he and Sally should have no contact. And the third 

ordered him removed from campus for an indefinite period of time, 

"effective immediately." To justify this removal, Brown decided 

to treat John "a danger to [himself] or the immediate well-being 

of the University community."

Dean Maria Suarez -- who was the Associate Director of 

Brown's Psychological Services -- and Dean Castillo met with John 

that day to explain his removal. When Dean Suarez told John that 

he had been accused of sexual assault again, he became distraught 

and expressed suicidal thoughts. He fell to the floor, rolled 

into a ball, and cried. Both Dean Suarez and Dean Castillo 

testified that they found John's response extreme. They permitted 

him to remain on campus to finish his finals (the letter came in 

the middle of finals week), but he was required to immediately 

leave campus once his last exam was over.

In light of John's response, Dean Suarez brought John to 

the Brown University Counseling and Psychological Services (CAPS) 
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for an emergency crisis evaluation. The doctor who evaluated him 

at CAPS was concerned and recommended hospitalization, which John 

rejected. Because the doctor did not feel that John's presentation 

"rose to the level of an involuntary hospitalization," she made a 

plan with John on what to do if he had any further suicidal 

ideation, and she scheduled a follow-up appointment with him. John 

went back to CAPS at least twice more before he was required to 

leave campus after his final exam the following week.

Over the summer, Dean Castillo reached out to Sally three 

more times asking her to meet about the incident. Sally did not 

respond. Throughout that summer, John and his mother repeatedly 

contacted school officials asking for updates on the investigation 

and his suspension. The University gave little information in 

return. By August, Vice President Margaret Klawunn, prompted by 

an email from John, decided that Brown had to "wrap this up so 

that [John] can come back for the fall" if Sally was not going to 

pursue the complaint. On August 7, Dean Castillo informed John by 

email that Brown was "lifting the emergency removal" and that he 

would "be able to resume classes and all activities for the 

upcoming fall [2014] semester." She also explained that, although 

they were closing this complaint for now, the school could "choose 

to proceed at a later time" if it received more information.

The fall semester did not go well for John. He had 

trouble attending classes and by late October was told by one 
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professor not to come back to class. That led John to again seek 

crisis help at CAPS, which resulted in a referral for a psychiatric 

evaluation that occurred the following day. He reported sleeping 

sixteen hours a day, feeling anxious about the state of his family 

due to the second accusation, having difficulty in his interactions 

with women, having trouble managing anger, binge-drinking, and 

smoking marijuana daily. He was diagnosed with Major Depressive 

Disorder and was prescribed antidepressant medication.

A day later, after smoking marijuana with some friends, 

John dove onto the windshield of a truck as it was slowing to a 

stop. He was taken to Rhode Island Hospital, where he was given 

an Initial Psychiatric Evaluation. He explained during the 

evaluation that he had been "ruminating on the charges against him 

and convinced himself he could be guilty." He maintained that he 

was not guilty, but he explained that those thoughts triggered "a 

panic attack," which caused "an impulsive urge to stop the panic 

attack." He remained in the psychiatric ward of Rhode Island 

Hospital for four days.

Upon discharge, John met with Dr. Jackie Twitchell from 

CAPS for a post-hospitalization evaluation. He explained to 

Dr. Twitchell the same thoughts he had expressed at the hospital 

that led to his suicide attempt. Dr. Twitchell noted that John 

"want[ed] to stay at Brown" and "hope[d] he [could] catch up on 

his studies."
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After the meeting with John, Dr. Twitchell told Dean 

Suarez that John was not an immediate threat to himself or others 

but that she recommended intensive treatment. She told Dean Suarez 

that she did not discuss with John whether he could stay on campus. 

Dean Suarez then met with John about his hospitalization. 

Afterward, Dean Suarez and Dr. Twitchell spoke again. Dean Suarez 

stated that "she could not put him on mandatory medical leave" and 

that "he was not willing to go voluntarily." She also expressed 

that she thought he displayed narcissistic traits and was 

unrealistic about his ability to "pull up his academics" and play 

lacrosse.

Dean Suarez then told Dr. Twitchell that she and Vice 

President Klawunn were planning to meet with John that evening --

just hours after he was released from the hospital -- to tell him 

that Jane had newly alleged that he had violated the still extant 

no-contact order,4 that he would therefore have to move out of his 

4 As described by Jane, the first two incidents occurred at

Brown-associated events hosted at an off-campus local bar. Jane 

alleged that when John saw Jane "he moved away from [her] inside." 

She stated that "[w]hile he would move away from [her]" each time 

they ended up together, she felt "the need to leave." (For the 

second event at the same location, Jane indicated that John was 

"less responsive" in moving away from her than the first time.) 

The third incident occurred at a "Greek council meeting" Jane

was attending as a board member. She complained that John "walked 

in" and "hung out for a minute or so before leaving."

In the fourth interaction, Jane described John drunkenly 

entering a room at another bar off campus. When Jane's friend 
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housing in his lacrosse fraternity based solely on those

uninvestigated allegations,5 and that there would be new conduct 

charges filed against him for underage drug use and for the damage 

to the truck he threw himself in front of. Dr. Twitchell 

"expressed [her] concern for [John's] safety if these charges were 

brought against him the same night that he was discharged from the 

hospital and asked that this be delayed in light of his recent 

suicide attempt." Dean Suarez rejected the advice, saying that 

they had to act that evening because John could not return to his 

room in light of the new (though, by this point, over a week old) 

allegations by Jane that John had violated the no-contact order. 

They then "discussed how much he should know up front and how much 

should be mediated given his fragile state." Dean Suarez also 

asked him to leave because Jane was there, he left. Ten minutes 

later, he "poked his head in and looked around," saw Jane, and 

"left the room again."

In the final incident, Jane described being outside a fastfood restaurant on the phone when John entered the restaurant with 

a friend. She "then entered [the restaurant] to get [her] own 

dinner, as he was at the register." She "had planned on eating 

there," but "felt the need to take [her] dinner to go." There is 

no allegation he purposefully ate dinner at the restaurant to cause 

her to leave.

5 According to Dean Castillo, the typical process for dealing 

with no-contact order accusations did not involve immediate 

suspension. Instead, the first step was to have an instructional 

conversation with the accused student regarding the parameters of 

the order. If further action were required, Brown would hold a 

hearing. A hearing was reserved for "persistent and repeated" 

violations that had been addressed but for which there had been no 

change or for "significant and clearly intentional" violations, 

such as "banging on [the person's] door."
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said that she would make sure that John's mother stayed with him 

that night. Dr. Twitchell "made it clear that CAPS would be 

available to support [John] if contacted [that night] or in the 

future."

Despite Dr. Twitchell's warning, Dean Suarez and Vice 

President Klawunn went ahead with the meeting. Accompanied by his 

mother, John attended. Without first ascertaining what John was 

intending to do regarding medical leave, the two Brown University 

officials told John that if he did not voluntarily go on leave, he 

would face a litany of consequences. They first threatened him 

with two additional conduct charges (for vandalism of the truck he 

jumped in front of and for the alleged violations of his no-contact 

order with Jane). They told him that he would be required to pay

for the damage to the truck. They said that he would be immediately 

removed from his on-campus housing based on Jane's new no-contact 

allegations. Finally, they threatened to revive Sally's complaint 

(even though there was no new information since Sally declined to 

press forward). As Dr. Twitchell predicted, John had an extreme 

reaction to this litany of threats. He jumped from his seat and 

cried, "Do you just want me out of here?" His mother intervened 

and said, "Enough! This is enough! You have traumatized him 

enough! And you have traumatized me!"

Relenting to the threats, John began voluntary medical 

leave, effective November 5, 2014, for two full semesters. John's 
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psychological expert -- whom Brown did not move to exclude below 

even while seeking to strike his expert on damages -- concluded 

that "the mandate that [John] be removed from the Brown campus for 

a year of purported medical leave without any known clinical basis 

for such a decision" -- that is, the result of the meeting with 

Dean Suarez and Vice President Kulwann -- "caused overwhelming 

psychological damage in [John] that continues to reverberate in 

him to the present in many spheres of his life." The expert also 

concluded that John "suffers from enormous, life-altering 

psychological harm in [the] aftermath" of "the manner in which 

Brown University conducted itself in managing the[] accusations 

against [John]." The manifestation of that harm includes

"Persistent Depressive Disorder," which "is marked by pervasively 

depressed mood, markedly diminished energy and motivation, 

hypersomnia, hypophagia, diminished libido, anhedonia, 

hyperirritability, feelings of helplessness, and feelings of 

hopelessness."

In the summer of 2015, John applied for readmission to 

Brown for the fall semester. His application included letters by 

a clinical psychologist who concluded that he was "ready to be 

reintegrated into the Brown community, given his ongoing positive 

mental state." Brown, however, denied his application, stating 

that it "need[ed] to see a longer period of sustained stability." 

John's father then emailed Brown's president to complain that he 
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believed John had been and was continuing to be discriminated 

against on the basis of race. John also appealed the decision 

though regular channels and provided supplemental information, 

including various letters of support. Brown reversed course and 

permitted John to return to school for the fall 2015 semester.

In September 2015, shortly after the semester began, 

Jane wrote to Dean Castillo to express her concern that she saw 

John on campus even though she had been told he was not going to 

be there until the spring, if at all. Dean Castillo confirmed 

that John was on campus and apologized for not warning Jane because 

she thought Jane was going to be off campus that semester. The 

record then falls silent from the beginning of the fall 2015 to 

the middle of the spring 2016.

In April 2016, Jane, who herself was on medical leave, 

again emailed Dean Castillo to let her know that she would be 

visiting Brown for a weekend and that she was concerned that John 

would not "respect" the no-contact order that was still in effect 

two years after he was found responsible for their alleyway 

encounter. Dean Castillo thereupon "update[d]" the no-contact 

order so that it became unilateral rather than mutual; in other 

words, it became solely John's responsibility to stay away from 

Jane rather than a shared responsibility to avoid each other.

John objected, explaining that he had been given a nocontact order against Jane, that it seemed to have been taken away 
- 15 -

without any process, and that Jane should also continue to be 

required to leave an event if she showed up and he was there. Dean 

Castillo rejected John's objections. She explained that the burden 

should be solely on John since he was found responsible for the 

conduct Jane complained of two years prior. She also explained 

that the University had updated its policies so that it was 

explicit that when a student is found responsible, the no-contact 

order automatically becomes unilateral. Dean Castillo told John 

that she was simply implementing that change in policy, even though 

it had been put in place after his hearing had ended and his chance 

to appeal had expired.

Over the next two years, John generally stayed out of 

trouble, and, in May 2018, he graduated from Brown.

II.

A year before he graduated, John filed this lawsuit in 

Rhode Island state court, alleging that Brown discriminated 

against him because of his race, gender, and disability, created 

a hostile educational environment, violated various contractual 

agreements and promised procedural protections, and intentionally 

inflicted emotional distress upon him. Brown removed the case to 

federal court and moved to dismiss. After giving John an 

opportunity to amend his complaint, the district court dismissed

several of his claims. It held that John's gender-based claims 

under Title IX of the Civil Rights Act, 20 U.S.C. § 1681 et seq.,
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regarding Jane's complaint were filed outside Rhode Island's 

three-year statute of limitations for personal injury. Doe v.

Brown Univ., 327 F. Supp. 3d 397, 407, 410 (D.R.I. 2018) (applying 

R.I. Gen. Laws § 9-1-14(b) to John's Title IX claims).6 The court 

also dismissed John's Title IX "erroneous outcome" claim as to 

Sally's complaint because Brown dropped its investigation, id. at 

412, his state-law disability claim because he failed to plead any 

denied accommodations, id. at 413–14, and all but one of his 

contract claims -- the one related to his May 2014 suspension --

for failure to state a claim, id. at 415–18. The court permitted 

the rest of his claims to go forward.

After nearly a year and a half of discovery, Brown moved 

for summary judgment. It argued primarily that John failed to 

uncover any racial or gender discrimination or harm. It also 

contended that it did not breach any contract related to John's 

suspension and that its conduct could not support a claim for 

intentional infliction of emotional harm. The district court 

granted Brown's motion across the board. See Doe v. Brown Univ., 

505 F. Supp. 3d 65 (D.R.I. 2020).

6 We have not yet decided which statute of limitations is 

applicable to Title IX claims, but district courts within our 

purview have held that the forum state's limitations period for 

personal-injury claims applies. See, e.g., Doe v. Lincoln-Sudbury 

Reg'l Sch. Comm., No. 20-cv-11564, 2021 WL 3847985, at *6 (D. Mass. 

Aug. 27, 2021); Lakshman v. Univ. of Me. Sys., 328 F. Supp. 2d 92, 

116 (D. Me. 2004). No one challenges the district court on this 

score.
- 17 -

On appeal, John only timely develops arguments in 

support of three causes of action. First, he claims that Brown 

committed gender discrimination in violation of Title IX by 

doggedly investigating Sally's claim against him, even though it 

did nothing to pursue his allegations against Jane. Second, he 

alleges that Brown engaged in race discrimination in connection 

with a whole series of events beginning with its treatment of 

Jane's complaint, all in violation of Title VI of the Civil Rights 

Act, 42 U.S.C. § 2000d et seq.; 42 U.S.C. § 1981; and the Rhode 

Island Civil Rights Act (RICRA), R.I. Gen. Laws § 42-112-1.7 And 

he claims that Brown should be held liable for the tortious conduct 

of its officials in intentionally causing him severe emotional 

distress under Rhode Island common law.

John's reply brief presumes that he also is challenging 

the dismissal of claims based on maintaining a hostile environment 

and a claim alleging a violation of Title IX by selectively 

enforcing rules against him as compared to Jane. His opening 

brief, however, developed no substantial argument as to these 

claims. Rather, he merely set out -- in a section entitled "Race 

Discrimination" -- his version of how Jane assaulted him and later 

7 Rhode Island courts look to federal law in construing their 

analogous civil rights statutes, see Colman v. Faucher, 128 F. 

Supp. 3d 487, 491 n.8 (D.R.I. 2015) (citing Casey v. Town of 

Portsmouth, 861 A.2d 1032, 1037 (R.I. 2004)); accordingly, we need 

determine only whether John's discrimination claims are sound 

under federal law.
- 18 -

harassed him without connecting those facts to the elements of a 

sex-based discrimination claim or a sex-based hostile educational 

environment claim. He passingly averred in a footnote that "the 

arguments in this section regarding race could equally apply to a 

gender-bias analysis" under RICRA, but such attempts to bootstrap 

argumentation "in a perfunctory manner . . . are deemed waived," 

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). He 

failed even to make a similar attempt for his federal-law claims. 

And John did not mention (much less contest) in his opening brief 

the district court's application of the three-year statute of 

limitations to his selective-enforcement claim regarding Brown's 

handling of Jane's complaint. His cursory attempts to revive these 

claims in reply are both too little and too late. See id.; Waste 

Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000)

("[I]ssues advanced for the first time in an appellant's reply 

brief are deemed waived.").

John has also not advanced on appeal any claim that 

Brown's action in suspending him breached any contract between 

Brown and its students. Compare Doe v. Trs. of Bos. Coll., 892 

F.3d 67, 80–89 (1st Cir. 2018). Nor is Brown subject to the dueprocess constraints that apply to state-run schools. Compare

Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 65 (1st Cir. 2019) 

("[A] student facing expulsion or suspension from a public 

educational institution is entitled to the protections of due 
- 19 -

process." (alteration in original) (quoting Gorman v. Univ. of 

R.I., 837 F.2d 7, 12 (1st Cir. 1988))).

We therefore consider only the three claims first 

mentioned above: (1) that Brown selectively enforced its Code of 

Student Conduct against John in response to Sally's complaint 

because he is male, (2) that Brown discriminated against him on 

account of his race throughout its handling of the allegations 

made by Jane and Sally, and (3) that Brown officials intentionally 

caused him severe emotional distress. We review the grant of 

summary judgment de novo. Irobe v. U.S. Dep't of Agric., 890 F.3d 

371, 377 (1st Cir. 2018).

III.

We turn first to John's claim that Brown discriminated 

against him by selectively enforcing its policies against him as 

a male student. John offers two reasons that he says could support 

a jury's finding that Brown selectively enforced its rules and 

procedures due to his gender.

First, he contends that Brown customarily wields its 

investigation and prosecutorial resources very disproportionately 

against males, pointing out that "all students accused of sexual 

misconduct at Brown were male" during the relevant period. But 

the same could likely be said of any institution or workplace that 

accepts similar complaints: More women lodge complaints of sexual 

misconduct by men than vice versa. See The Women's Initiative, 
- 20 -

Gender Matters: Women Disproportionately Report Sexual Harassment 

in Male-Dominated Industries, Center for American Progress 

(Aug. 6, 2018), https://www.americanprogress.org/article/gendermatters/ (aggregating EEOC data regarding workplace sexual 

harassment filings from 2010 through 2015 that show that, "in every 

industry, women have higher rates of reporting sexual harassment 

than men"). Such proof, without more, hardly shows that the 

recipient of these complaints is responsible for the disparate 

distribution. See Doe v. Univ. of Denver, 952 F.3d 1182, 1194 

(10th Cir. 2020) ("In Title IX challenges to sexual-misconduct

proceedings, however, the putative nondiscriminatory causes of 

disparity -- the gender makeup of sexual-assault perpetrators, 

victims, and reporters -— are almost completely beyond the control 

of the school.").

Second, John's alternative argument is a so-called 

"comparator" argument, through which a plaintiff can prove intent 

to discriminate based on "evidence of past treatment toward others 

similarly situated." Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 

13, 19 (1st Cir. 1989), overruled on other grounds by Educadores 

Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st Cir. 

2004). John contrasts the manner in which Brown brushed off his 

claim that Jane bit and choked him during their alleyway encounter
- 21 -

with its Javert-like pursuit of Sally's withdrawn claim.8 For 

comparator proof to raise a red flag that the direct evidence does 

not already raise, the two "incidents' circumstances [must] be 

'reasonably comparable'" and "the nature of the infraction and 

knowledge of the evidence by college officials [need be] 

sufficiently similar to support a finding of facial 

inconsistency." Id. (quoting Albert v. Carovano, 851 F.2d 561, 

573–74 (2d Cir. 1988) (en banc)). "The test is whether a prudent 

person, looking objectively at the incidents, would think them 

roughly equivalent and the protagonists similarly situated." Id. 

Although "[e]xact correlation is neither likely nor necessary,"

"the cases must be fair congeners." Id. "In other words, apples 

should be compared to apples." Id.

By the time Sally filed her complaint, John had already 

been found responsible for sexual misconduct under Brown's Code of 

Student Conduct. It is rational for an administrator, upon 

receiving a sexual-assault complaint, to treat someone who had 

already been found responsible for sexual misconduct differently 

than someone who had not. Indeed, Brown had so informed John in 

8 We assume without deciding that Brown's handling of John's

allegations against Jane can be used as comparator evidence, even 

though Dean Castillo's repudiation of those allegations occurred 

outside of the statute-of-limitations period. See Flores v. City 

of Westminster, 873 F.3d 739, 754 (9th Cir. 2017) (holding that 

evidence regarding "appropriate comparators" was "properly 

admissible" even though the events occurred outside the statute of 

limitations).
- 22 -

writing at the conclusion of the proceedings concerning Jane's 

complaint: It explained that any new allegations "will receive 

greater scrutiny" and "increase the likelihood" of "more serious 

outcomes," "including separation from the University." So, we do 

not see enough similarity to support a reasonable inference that 

Brown's different treatment of the two accusations is due to the 

gender of the accused. That conclusion, in turn, leaves John with 

no support in this record for his claim of selective enforcement 

based on gender.

IV.

We consider next John's race-based claims. Brown 

concedes that the section 1981 claim is not time-barred in any 

material respect. And while Brown does not so concede as to the 

Title VI and RICRA race discrimination claims, our analysis of 

these claims on the merits renders any difference in the applicable 

limitations periods moot.

To succeed on his race-based claims, John must show,

among other things, that Brown acted with discriminatory intent. 

Goodman v. Bowdoin Coll., 380 F.3d 33, 43 (1st Cir. 2004) (noting 

that "direct or circumstantial evidence of racial animus" is "a 

necessary component" of both section 1981 and Title VI claims). 

To make such a showing, John devotes a large portion of his brief 

to chronicling all the ways he believes Brown treated him unfairly. 

Viewing the evidence in a light favorable to John, as we must, a 
- 23 -

jury could certainly find that Brown persecuted John with 

unreasonable zeal and, on occasion, with no fair process. A jury 

could also find that the initial finding of fault was also 

unreasonably used as a basis to allow Jane to use seemingly trivial 

violations of the no-contact order to chase John out of all sorts 

of campus events, with Brown itself twisting its own rules in aid 

of Jane's efforts. See n.4, supra.

All that being said, there is no evidence that would 

allow a reasonable jury to conclude that Brown's persecution of 

John was on account of his race. John points to no direct evidence 

of racial animus. The only person who even mentioned race was 

John's father, who suggested to Brown's president that racial 

discrimination was a possible motivation for Brown's June 2015 

denial of John's request for readmission. Less than a week after 

that mention of race -- and after he submitted supplemental 

materials responding to the reasons for the initial denial -- John 

was readmitted. For obvious reasons, we are loath to say that 

such a chronology ending in John's request being granted evidences

racial animus by Brown. To do so would create a disincentive to 

provide an accommodation whenever an accusation of discrimination 

is made.

Without direct evidence of racial discrimination, John 

is left to argue that the reasons Brown has given for treating 
- 24 -

John adversely are pretextual.9 Sometimes a plaintiff can generate 

an inference of discriminatory animus by showing that the 

defendant's stated reason for its actions is not only false, but 

"a sham intended to cover up the [defendant's] real and unlawful 

motive." Joseph v. Lincare, 989 F.3d 147, 160 (1st Cir. 2021) 

(quoting Theidon v. Harvard Univ., 948 F.3d 477, 497 (1st Cir. 

2020)).

Over the whole saga of Brown's interactions with John, 

Brown has consistently posited an overarching reason for its

treatment of John: the complaints from Jane and Sally. There is 

nothing in the record to suggest that that stated reason was a 

sham designed to cover up a racial motive. In theory, that leaves 

open the possibility that Brown acted with even more zeal and 

unfairness in handling those complaints against John than it would 

have against a white male student. But John presents zero evidence 

of that.

9 Our consideration of pretext is derived from a burdenshifting framework the Supreme Court articulated in the context of 

Title VII, employment-discrimination claims. See McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). Although we 

have held that the McDonnell Douglas framework applies to 

section 1981 claims, Pina v. Children's Place, 740 F.3d 785, 796 

(1st Cir. 2014), we have never so held for Title VI claims, see

Goodman v. Bowdoin Coll., 380 F.3d 33, 44–45 (1st Cir. 2004). The 

parties, however, assume this framework applies to each of John's 

race-based claims, and since it does not affect the outcome of 

this case, we follow their lead. Cf. Trs. of Bos. Coll., 892 F.3d 

at 91–92 (1st Cir. 2018) (applying the standard agreed to by the 

parties).
- 25 -

In so stating, we acknowledge that sexual relations have 

often provided the context for invidious racial discrimination and 

noxious stereotypes. See, e.g., FBI, History: Emmett Till,

https://www.fbi.gov/history/famous-cases/emmett-till. But when a 

university has prosecuted dozens of male students for infractions 

of its rules that attempt to regulate sexual conduct on campus, 

and not one iota of evidence has been produced suggesting that 

Brown pursued white men with either less zeal or more fairness 

than was manifest in its treatment of John, a jury cannot simply 

assume that race was a factor. To rule otherwise would be to say 

that every charge of sexual misconduct against any AfricanAmerican student would, without more, support a trial on a racediscrimination claim.

V.

Finally, we consider John's state-law claim that Brown 

intentionally inflicted emotional distress upon him. To create 

liability for intentional infliction of emotional distress in 

Rhode Island, "(1) the conduct must be intentional or in reckless 

disregard of the probability of causing emotional distress, 

(2) the conduct must be extreme and outrageous, (3) there must be 

a causal connection between the wrongful conduct and the emotional 

distress, and (4) the emotional distress in question must be 

severe." Gross v. Pare, 185 A.3d 1242, 1246 (R.I.), as corrected

(Aug. 16, 2018) (emphasis removed) (quoting Swerdlick v. Koch, 721 
- 26 -

A.2d 849, 862 (R.I. 1998)). Moreover, as one component of the 

severity requirement, Rhode Island requires plaintiffs to show 

some "physical symptomatology resulting from the alleged improper 

conduct." Vallinoto v. DiSandro, 688 A.2d 830, 838 (R.I. 1997)

(citing Reilly v. United States, 547 A.2d 894, 898 (R.I. 1988)).

On appeal, John's tort claim focuses largely (but not 

exclusively) on the post-hospitalization meeting in which Dean 

Suarez and Vice President Klawunn threatened him with additional 

disciplinary charges and suspended him from campus effective 

immediately, all on the basis of uninvestigated claims that he 

violated the no-contact order with Jane. The district court 

concluded that the administrators' actions in this meeting could 

not be the basis for an intentional infliction of emotional 

distress claim because "[c]ourts must be 'chary about interfering 

with academic and disciplinary decisions made by private colleges 

and universities.'" Brown Univ., 505 F. Supp. 3d at 82 (quoting 

Schaer v. Brandeis Univ., 735 N.E.2d 373, 381 (Mass. 2000)). It 

recognized that "the second investigation understandably impacted 

John negatively," but concluded that "there is no evidence that 

would allow a jury to reasonably conclude that Brown's conduct was 

so outrageous or so extreme" for liability to attach. Id. We 

disagree.

We start with the second element of this tort: Whether 

a jury could find Brown's actions extreme and outrageous. "In 
- 27 -

assessing whether conduct is extreme and outrageous, Rhode Island 

courts have used three factors: 1) the conduct itself; 2) the 

particular relationship of the parties; and 3) the known or 

knowable susceptibility of the plaintiff to the emotional injury." 

Marques v. Fitzgerald, 99 F.3d 1, 7 n.12 (1st Cir. 1996). The 

Rhode Island Supreme Court, adopting the Second Restatement of 

Torts standard, requires a defendant's conduct to be "so outrageous 

in character, and so extreme in degree, as to go beyond all 

possible bounds of decency, and to be regarded as atrocious, and 

utterly intolerable in a civilized community." Swerdlick, 721 

A.2d at 863 (emphasis removed) (quoting Restatement (Second) of 

Torts § 46 cmt.d (1965)). In other words, "the recitation of the 

facts to an average member of the community would arouse his 

resentment against the actor, and lead him to exclaim, 

'Outrageous!'" Id. (quoting Restatement (Second) of Torts § 46 

cmt.d). Although this is a "very high standard," Hoffman v. 

Davenport-Metcalf, 851 A.2d 1083, 1089 (R.I. 2004), for several 

reasons, as combined, a jury could find this standard satisfied by 

Brown's conduct.

First, the parties' relationship required at least some 

heightened solicitude by Brown. The Restatement states that "[t]he 

extreme and outrageous character of the conduct may arise from an 

abuse by the actor of a position, or a relation with the other, 

which gives him actual or apparent authority over the other, or 
- 28 -

power to affect his interests." Restatement (Second) of Torts 

§ 46 cmt.e. Discussing this factor, a member of our court once 

found that it naturally applies to the university-student 

relationship. See Russell v. Salve Regina Coll., 649 F. Supp. 

391, 402 (D.R.I. 1986) (Selya, J.) (Russell I); see also Russell

v. Salve Regina Coll., 890 F.2d 484, 487 (1st Cir. 1989) 

(Russell II) (acknowledging that the school relationship to a 

student is an important factor to consider, despite affirming a 

directed verdict for the school), rev'd on other grounds, 499 U.S. 

225 (1991); Restatement (Second) of Torts § 46 cmt.e (noting that 

"school authorities . . . have been held liable for extreme abuse 

of their positions"). This is because a "student stands in a 

particularly vulnerable relationship vis-a-vis the university, the 

administration, and the faculty." Russell I, 649 F. Supp. at 402. 

Thus, a university can "fairly be expected" to act "maturely --

and even with some tenderness and solicitude -- toward" its 

students. Id.

Second, it is quite clear from the record that Dean 

Suarez and Vice President Klawunn were aware of John's enhanced 

susceptibility to extreme emotional distress. See Russell II, 890 

F.2d at 487 (explaining that "knowledge of plaintiff's special 

sensitivities" is an element of the claim and that the "school 

officials knew very quicky that Russell wanted badly to become a 

nurse and that she was easily traumatized by comments about her 
- 29 -

weight"); see also Restatement (Second) of Torts § 46 cmt.f ("The 

extreme and outrageous character of the conduct may arise from the 

actor's knowledge that the other is peculiarly susceptible to

emotional distress."). Dean Suarez participated in a prior 

disciplinary meeting with John where his emotional reaction was so 

strong that it prompted her to immediately walk him to the campus 

mental health center for an emergency evaluation. Dean Suarez and 

Vice President Klawunn both knew that John had just been discharged 

from the hospital that very day after a suicide attempt premised 

on Brown's disciplinary actions against him. And, most strikingly, 

Vice President Klawunn was warned by one of John's doctors that 

she should postpone the meeting given John's fragile mental state. 

At the very least, the doctor advised, they should only bring up 

any matters that needed to be discussed that day (such as any 

necessary immediate suspension from housing). A jury could 

conclude from these facts that their subsequent conduct in 

confronting John "become heartless, flagrant, and outrageous when 

the[y] proceed[ed] in the face of such knowledge, where it would 

not be so if [they] did not know." Restatement (Second) of Torts 

§ 46 cmt.f.

Third, the meeting itself did not comport with the reason 

given for its supposed urgency. If it were urgent to tell John he 

was suspended because of Jane's new, facially dubious and seemingly 

trivial allegations, they simply had to tell him that. Instead, 
- 30 -

or so a jury might find, they attempted to coerce him into 

withdrawing by piling on threatened claims that need not have been

advanced that evening. Jurors might reasonably ask, why threaten

John with reopening the Sally complaint and with charging him for 

damage to the truck? Brown has made no attempt to argue why those 

matters could not have been delayed, given its administrators'

knowledge of John's mental state and warning from his doctor. A 

jury could -- but need not -- find that this piling on of charges

that evening while John was obviously vulnerable went beyond all 

bounds of decency.

Finally, we agree in theory but dispute in application 

the dissent's concern that Brown cannot be liable for intentional 

infliction of emotional distress if it did "no more than to insist 

upon [its] . . . legal rights in a permissible way," even if it 

were "well aware that such insistence is certain to cause emotional 

distress." Norton v. McOsker, 407 F.3d 501, 511 (1st Circ. 2005) 

(internal citations and quotation marks omitted).

To start, jurors might well disagree with our dissenting 

colleague that Brown was entitled to immediately remove John from 

campus based on Jane's unconfirmed, dubious allegations of nocontact order violations or that the Brown officials were acting 

in good faith in threatening to reopen Sally's complaint. Recall, 

Dean Castillo testified that the typical process for dealing with 

no-contact order accusations did not involve immediate suspension; 
- 31 -

rather, the school was to begin with an instructional conversation 

with the accused student regarding the parameters of the order. 

See n.5, supra. If the action persisted, the student was entitled 

to a hearing. Id. Brown forwent any process here. And, as the 

dissent acknowledges, Brown had informed John that it could reopen 

Sally's complaint only if it "obtain[ed] additional information 

relevant to the matter," yet Brown officials threatened to reopen 

Sally's complaint despite having no new information.

Further, the legal entitlement to act with impunity only 

applies when the defendant asserts its rights "in a permissible 

way" and does "no more." Norton, 407 F.3d at 510–11. The manner 

in which the action is taken is still subject to tort-law 

limitations. See Clift v. Narragansett Television L.P., 688 A.2d 

805, 813 (R.I. 1996) (acknowledging that, even though simply 

insisting on your legal rights "could not ordinarily lead to 

liability," a plaintiff could show "more" to "defeat the privilege 

and state a claim" (emphasis added) (quoting Howell v. N.Y. Post 

Co., 612 N.E.2d 699, 705 (N.Y. 1993))); Champlin v. Washington Tr. 

Co., 478 A.2d 985, 989 (R.I. 1984) ("[A] creditor or his agent is 

privileged to use a number of tactics to collect a debt, even 

though those tactics may cause the debtor to suffer emotional 

distress," and "the creditor should be held accountable only if 

those tactics are extreme and outrageous."); see also Restatement 

(Third) of Torts: Liability for Physical and Emotional Harm § 46 
- 32 -

cmt.e (2012) ("Although an actor exercising legal rights is not 

liable . . . merely for exercising those rights, the actor is not 

immunized from liability if the conduct goes so far beyond what is 

necessary to exercise the right that it is extreme and 

outrageous.").

Moving on, we also conclude that there are triable issues 

regarding the first element of the tort, that is, whether Dean 

Suarez and Vice President Klawunn "inten[ded]" or acted "in 

reckless disregard of the probability of causing emotional 

distress." Gross, 185 A.3d at 1246 (quoting Swerdlick, 721 A.2d 

at 862). Proceeding with the coercive attempt in the face of the 

physician's warning could certainly be seen as evidencing a 

reckless disregard for the distress likely to be caused.

Our decision here is bolstered by comparison to another 

case where we found the defendant "crossed" "the requisite 

'threshold of conduct'" under Rhode Island law, such that the 

question was appropriate for a jury. See Borden v. Paul Revere 

Life Ins. Co., 935 F.2d 370, 381 (1st Cir. 1991) (quoting Elias v. 

Youngken, 493 A.2d 158, 164 (R.I. 1985)). There, an insurer --

after learning that the insured misrepresented his medical history 

and employment -- downgraded the policy and delayed benefit 

payments to induce the insured to sign a new contract agreeing to 

the switch. Id. at 380–81. After detailing the unsavory tactics 

the insurer used, we concluded that "a rational jury could well 
- 33 -

have thought that a large, moneyed corporation preyed mercilessly 

on a disabled individual's physical and mental condition by 

withholding and delaying benefit payments and by lying to him, in 

order to coerce him into surrendering his insurance coverage 

through age 65 and accepting an inferior replacement policy." Id.

at 381. We think a jury is at least as able to find the Brown 

officials crossed the line here as well.

Brown advances no argument on appeal that a jury could 

not find in John's favor on the remaining two elements of the tort: 

causation and severity.10 In any event, the chronology and the 

conclusions of John's psychological expert regarding causation and 

the manifestations of John's distress, summarized above, would 

seem to provide at least the minimal degree of support required to 

get over the Rule 56 hurdle. See Castellucci v. Battista, 847 

A.2d 243, 249 (R.I. 2004) (relying on a psychiatrist's opinion 

connecting the event at issue to plaintiff's "posttraumatic stress 

disorder, which continued to traumatize him and compromise his 

10 Brown argued below that, although the October 2015 meeting 

was contentious, "anything said or done cannot be causally linked 

to John's distress because he and his mother had decided before 

the meeting that he should take a leave from Brown to address his 

physical and mental health." But this argument overlooks both the 

record, which would support a finding that John was not resolved 

to withdraw voluntarily, and the fact that if Brown were correct 

then there would have been no need to have lodged the barrage of 

threats.
- 34 -

ability to function or sleep" to conclude that there was "clear 

evidence of causation and physical symptomatology").

VI.

For these reasons, we affirm in part, reverse in part, 

and remand for proceedings not inconsistent with this opinion.11 

The parties will bear their own costs.

- Dissenting Opinion Follows -

11 We have left only one state-law claim in play, while 

affirming judgment against John on all of his federal-law claims. 

Had subject-matter jurisdiction been based solely on the presence 

of federal questions, our decision would have required the district 

court to decide whether to "retain or disclaim [supplemental] 

jurisdiction over the remaining state law claim[]." Penobscot 

Indian Nation v. Key Bank of Me., 112 F.3d 538, 564 (1st Cir. 

1997). But John has also relied upon diversity jurisdiction, 

alleging that he and Brown "are citizens of different states and 

the amount in controversy exceeds $75,000."
- 35 -

CASPER, District Judge, dissenting. I respectfully 

dissent from one aspect of the majority's opinion. I would affirm 

the district court's ruling on summary judgment in all respects, 

including that regarding John's intentional infliction of 

emotional distress ("IIED") claim. The Circuit has recognized 

that "Champlin [v. Washington Trust Co., 478 A.2d 985, 990 (R.I. 

1984)] appeared to treat the question whether conduct is 

sufficiently extreme and outrageous as one of law," Fudge v. 

Penthouse Int'l, 840 F.2d 1012, 1021 (1st Cir. 1988), and summary 

judgment is warranted where "the circumstances described fall far 

short of that level of conduct that could be termed either 

'extreme' or 'outrageous.'" Elias, 493 A.2d at 164 cited in

Borden, 935 F.2d at 381 (ruling that the IIED high threshold had 

been crossed where the insurance company, with "no entitlement to 

downgrade the policy," did so, delayed benefit payments to the 

insured and then lied to him about the difference between the 

original policy and the downgraded one). Even confining my 

analysis to the second element of the claim -- whether a jury could 

find Brown's actions, particularly as to the October 28th posthospitalization meeting, extreme and outrageous -- the grant of 

summary judgment in the university's favor was warranted.

As to the Marques factors cited by the majority for 

determining whether conduct is extreme and outrageous, a jury would 

have before it the college-student relationship between the 
- 36 -

parties (which was reflected not just in the October 28th meeting, 

but also in the provision of CAPS counseling and academic advising 

and prior contact with John's mother) and that John had exhibited 

emotional distress prior to the meeting of which the Brown 

officials were aware. It, however, would also be left with Brown's 

conduct of the October 28th meeting, the event that, now on appeal, 

is the centerpiece of John's IIED claim. During this meeting 

called by Dean Suarez and Vice President Klawunn, John was not 

alone but accompanied by his mother. At the time of this meeting, 

it was undisputed that, only two months into the semester of his 

sophomore year, John was not doing well academically, was 

exhibiting emotional distress and behavior that resulted in selfharm and property damage warranting psychiatric evaluation and 

hospitalization, and now also had allegations of violating the nocontact order against him by Jane. Given these circumstances, it 

is not surprising (and undisputed) that John was considering a 

leave before this meeting and Dean Suarez and the Vice President 

were as well. Even viewing the record in the light most favorable 

to John that Brown threatened John with additional conduct charges 

(related to substance abuse and damage to the truck), or action on 

Jane's new no-contact allegations or revisiting Sally's 

complaint,12 these were all actions that Brown could take. See

12 Brown had closed an investigation of Sally's complaint in 
- 37 -

Norton v. McOsker, 407 F.3d 501, 511 (1st Cir. 2005) (affirming 

summary judgment for defendant, noting that "[t]he actor is never 

liable . . . where [he] has done no more than to insist upon 

his . . . legal rights in a permissible way, even though he . . . 

is well aware that such insistence is certain to cause emotional 

distress" (internal citations and quotation marks omitted)). It 

is not a free pass from liability to acknowledge that this 

principle in Norton also applies where school administrators 

pointedly lay out a range of adverse consequences in a difficult 

meeting with John and his parent. As the district court 

recognized, "[s]tudent disciplinary investigations and the faceto-face meetings no doubt could cause a wide range of emotional 

distress." The question for the jury, however, is whether Brown's 

conduct was "so outrageous in character, and so extreme in degree, 

as to go beyond all possible bounds of decency, and to be regarded 

as atrocious, and utterly intolerable in a civilized community." 

Swerdlick, 721 A.2d at 863 (emphasis and internal citation 

omitted). On the record before this Court and in light of the 

very high legal standard that applies, I respectfully submit that 

a reasonable jury could not find for John on this claim. 

August 2014 but had advised John at that time that "[i]f we obtain 

additional information relevant to the matter we may choose to 

proceed at a later time."
- 38 -

Accordingly, I would affirm the district court's grant of summary 

judgment for Brown on this claim as well.