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SJC-12787

MORGAN HELFMAN vs. NORTHEASTERN UNIVERSITY & others.1

Suffolk. December 9, 2019. - July 27, 2020.

Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Negligence, College, Duty to prevent harm, Intoxicated person, 

Foreseeability of harm, Vicarious liability, Emotional 

distress. Intoxication. Emotional Distress. Contract, 

Private college, Performance and breach, School handbook.

Equal Rights Act. Anti-Discrimination Law, Sex, Unfair 

educational practice. Education, Private colleges and 

universities, Disciplinary matter.

Civil action commenced in the Superior Court Department on 

October 31, 2016.

The case was heard by Robert B. Gordon, J., on a motion for 

summary judgment.

The Supreme Judicial Court granted an application for 

direct appellate review.

Mark F. Itzkowitz (Kenneth I. Kolpan also present) for the 

plaintiff.

Daryl J. Lapp (Katherine A. Guarino Baker also present) for 

the defendants.

 

1 Katherine Antonucci, Robert Jose, Briana R. Sevigny, Mary 

Wegmann, and Madeleine Estabrook.
2

Lisa A. Parlagreco & Jeffrey S. Beeler, for Heinlein Beeler 

Mingace & Heineman, P.C., amicus curiae, submitted a brief.

Rebecca J. Roe, of Washington, & Erin K. Olson, for 

National Center for Victims of Crime & another, amici curiae, 

submitted a brief.

LENK, J. This case arises out of an allegedly 

nonconsensual sexual encounter between two first-year students 

at Northeastern University(Northeastern)2 in October 2013. The 

plaintiff claims that Northeastern3 is liable for failing to 

prevent the sexual assault, as well as for its allegedly 

inadequate response, including exonerating her alleged attacker 

after a disciplinary hearing.4 Following discovery, a Superior 

Court judge granted the defendants' motion for summary judgment 

on all claims. The plaintiff appealed, and we subsequently 

allowed her application for direct appellate review.

 

2 Northeastern is a private, nonprofit educational 

institution offering undergraduate and graduate degrees.

3 The five named defendants were Northeastern executives 

during the relevant period. Jose was the associate dean of 

cultural, residential, and spiritual life, and the director of 

residential life. He supervised Antonucci, who was an area 

coordinator, and who trained and oversaw the work of the student 

resident advisors (RAs). Estabrook was the associate vicepresident for student affairs and oversaw the office of student 

conduct and conflict resolution (OSCCR). Wegmann was the 

director of OSCCR and was responsible for enforcing the code of 

student conduct and hiring and training members of the student 

conduct board (SCB) and the appeals board. Sevigny was the 

assistant director of OSCCR, and trained residential life staff 

members, as well as members of the student conduct board.

4 Northeastern police also determined not to pursue any 

criminal charges against that student.
3

In light of the multifaceted relationship between a 

university and its students, we long have recognized that 

universities have a duty to protect students from the 

foreseeable criminal acts of third parties. Such a duty exists 

even when those criminal acts are made possible by the 

intoxication of the student victim. Nonetheless, we conclude 

that there was no duty to protect here, where the Northeastern

defendants had at best minimal knowledge of the conditions that 

gave rise to the particular harm, rendering this assault 

unforeseeable. Further, although we now also recognize that a 

college or university will sometimes owe a duty to protect its 

students from the harms associated with alcohol-related

emergencies, we conclude that this duty was met here. 

Accordingly, we affirm the order granting summary judgment to 

the defendants on the plaintiff's negligence-related claims. 

Because there was no error in the motion judge's conclusions 

regarding the plaintiff's statutory or contract claims, we 

affirm the allowance of summary judgment on those claims as 

well.

1. Background. We recite the facts from the summary 

judgment record in the light most favorable to the nonmoving 

party, reserving certain details for later discussion.

In the fall of 2013, the plaintiff was a first-year student 

at Northeastern. As required of all first-year students, she 
4

lived in a university residence hall. A.G.,5 the alleged 

assailant, also was a first-year Northeastern student who lived 

in the same dormitory.

Northeastern residence halls were supervised by resident 

assistants (RAs), who were students hired6 to foster community 

within the dormitories and provide assistance to resident 

students. The RAs in turn were supervised by the residence hall 

director, a permanent staff person assigned to the same 

building, and more generally by the area coordinator. RAs were 

required to sign a "Resident Assistant Agreement," which set 

forth the terms of their position as well as some of their 

duties.

RAs were expected to serve as role models for the younger 

students, to be familiar with the provisions of Northeastern's 

code of student conduct (code), and to intervene if they 

encountered students violating "community norms." RAs were to 

hold office hours to meet with students in their assigned 

residence halls, and to coordinate programs and events in 

accordance with Northeastern's educational goals. The goals for 

first-year students included "understand[ing] the effects of 

 

5 As do the parties, we refer to the student by the 

pseudonym "A.G."

6 In exchange for their services, RAs received a dormitory 

room at no charge, meals in the residence halls, and a small 

amount of money monthly on a meal card.
5

drugs and alcohol," "identif[ying] moments of peer pressure," 

and "attend[ing] at least two on or off campus events that are 

alcohol free." RAs performed rounds of their assigned buildings 

during assigned shifts and were expected to report any code 

violations to their supervisors. In addition, RAs served as 

proctors at the entrances to some residence halls, where they 

regulated access to the hall.7

On October 31, 2013, the plaintiff and A.G. were invited to 

a Halloween party hosted by Sarah Smith,8 a sophomore at 

Northeastern and an RA in a different dormitory9 from the one in 

which the plaintiff and A.G. lived. Before leaving to attend 

the party, the plaintiff and A.G. drank alcohol in the 

plaintiff's dormitory room. They brought more alcohol with them 

to the party, carried in a plastic soda bottle to conceal its 

existence from any campus police they might encounter during the 

walk across campus.

 

7 As apparently was common, the RAs in this case were both 

sophomore students at Northeastern, and themselves under the 

legal age for consumption of alcohol.

8 Because neither RA is a named defendant, and both were 

underage students at the time of the alleged assault, we refer 

to them by pseudonyms.

9 RA Smith held office hours in a different dormitory from

the one in which she lived. As part of her assigned rounds, 

however, she also patrolled her own dormitory.
6

While at the party, the plaintiff played drinking games 

with some of the partygoers, consuming alcohol provided by 

certain of them. A.G. also gave her whiskey that he had 

obtained from another guest. Between her rounds at multiple 

dormitories, Smith drank alcohol and participated in the 

drinking games. Another RA, Paul Jones,10 who had socialized 

previously with the plaintiff, A.G., and Smith, also attended 

the party. Both RAs (who themselves were underage) observed 

other underage students drinking alcohol, but neither RA 

provided any of the alcohol that the plaintiff consumed, nor did 

they provide any alcohol to any other guest.

Not long after arriving at the party, the plaintiff became 

intoxicated and vomited repeatedly in Smith's bathroom; two 

student acquaintances who were attending the party stayed with 

her in the bathroom and gave her water and crackers to try to 

control the nausea. The students also had the plaintiff wait in 

Smith's room and drink water, as they were somewhat concerned 

that the proctor at the plaintiff's residence hall might stop 

the plaintiff at the entrance because she was too visibly 

intoxicated. They offered to walk the plaintiff home, but she 

declined because she knew that they were planning to attend 

another party, and she did not want them to walk across campus 

 

10 A pseudonym. See note 8, supra.
7

to her residence and then have to walk back to the location of 

the second party.

As he was returning anyway in order to attend a sports 

practice early the following morning, A.G. then volunteered to 

escort the plaintiff to the dormitory where they both lived. On 

the way back to her residence hall, the plaintiff sent a text 

message to her roommate stating, "Okay I'm coming home I'm 

really sick." During the walk, A.G. and the plaintiff kissed 

multiple times. At one point, the plaintiff stumbled and fell; 

A.G., who himself was intoxicated, was dragged down to the 

ground. A.G. also took the plaintiff's telephone and 

identification card from her while en route. When they reached 

their residence hall, the plaintiff leaned on the counter for 

support as the proctor checked their identification. She then 

walked unsteadily from the proctor's desk to the elevator.

The two students went to A.G.'s room, where A.G. initiated 

sex with the plaintiff. The plaintiff later told Northeastern 

police that, "although she was very uncomfortable with what was 

going on, she didn't want to hurt his feelings by saying 

anything to him or telling him to stop." She "wasn't scared," 

but had not felt as if she could leave if she wanted to. She 

also said that she did not know whether A.G. believed she had 

consented to the things he was doing. At one point when A.G. 

went to the bathroom, the plaintiff sent text messages to her 
8

roommate, saying, "I'm ok," and, "Kind of." At another point, 

the plaintiff threw up in A.G.'s bathroom.

When the plaintiff returned to her own room the following 

morning, she told her roommate about the incident with A.G. In 

response to one of the roommate's questions, the plaintiff said 

that, if she had been sober, she would have said something to 

stop the encounter. The roommate, with the plaintiff's 

permission, then informed an RA of the incident. The following 

day, the plaintiff and her mother were escorted by Northeastern 

police from her dormitory to a local hospital, where the 

plaintiff was examined and an evidence collection kit was 

completed.

Northeastern police undertook an investigation; they 

interviewed the plaintiff, her roommate, and A.G.; reviewed the 

video recordings from the entrance to the plaintiff's residence 

hall; compiled a list of partygoers, which included the RAs 

Smith and Jones; and received screenshots of the various text 

messages sent by the plaintiff. The police created a report of 

their investigation and provided it to the office of student 

conduct and conflict resolution (OSCCR) director Mary Wegmann; 

Wegmann then shared it with Briana R. Sevigny, the assistant 

director of OSCCR, and Madeleine Estabrook, the vice-president 

of student affairs. Following their investigation, Northeastern 
9

police decided not to file any criminal charges against A.G. and 

did not report the incident to Boston police.

Based on the Northeastern police report, OSCCR charged A.G. 

with a code violation of "sexual assault with penetration."11 At 

a student conduct board (SCB) hearing on November 21, 2013, both 

the plaintiff and A.G. were appointed advisors to assist them. 

Each student asked questions of the other through the SCB chair.

On the day after the hearing, the plaintiff and A.G. both 

were sent letters explaining that the disciplinary panel had 

found that A.G. had not committed the alleged offense.12 

Consistent with the procedures in the code at that time, only 

the letter to A.G. explained the SCB's reasoning.13 The SCB 

noted that it had spent a great deal of time reviewing the 

record, including the surveillance video recordings, due to the 

serious nature of the charges. The letter explained that the SCB 

had considered A.G.'s statements about those words and actions 

 

11 The code defined this offense as "the oral, anal, or 

vaginal penetration by an inanimate object, penis, or other 

bodily part without consent." Consent was defined as a 

"voluntary agreement to engage in sexual activity proposed by 

another and requires mutually understandable and communicated 

words and/or actions demonstrating agreement by both parties to 

participate in all sexual activities."

12 Consistent with Northeastern's policy, the SCB employed a 

standard of a preponderance of the evidence, i.e., "more likely 

than not."

13 Prior to the hearing, the plaintiff explicitly consented 

to this procedure.
10

he had seen as the plaintiff's consent, the plaintiff's 

statements about what she had said and done, and what a 

reasonable person would have understood about the plaintiff's 

consent or lack thereof.

The plaintiff submitted an appeal on the ground of asserted 

issues of fact, without setting forth any requisite procedural 

error. Unable to determine the nature of the asserted error, 

the appeals board remanded the matter for a new hearing. In 

preparing for the de novo hearing, Estabrook concluded that 

there had been a procedural error in the allowance of the 

appeal: the plaintiff had not stated the asserted procedural 

error, and had not sent a copy of her request for an appeal to 

A.G., nor had she provided him with notice so that he would be 

able to respond.

Estabrook overturned the appeals board's order, but allowed 

the plaintiff time to amend her appeal to indicate the specific 

error she was challenging and to allow A.G. to receive notice of 

the appeal and an opportunity to respond. The plaintiff 

submitted an amended appeal, on the grounds of procedural error 

and newly discovered evidence -- the evidence collection kit.

On February 7, 2014, the appeal on the ground of procedural 

error was denied, while the appeal on the ground of new evidence 

was allowed. The matter was remanded to the original SCB so 

that it could consider the evidence collection kit. The SCB
11

reconvened and affirmed its original holding that A.G. had not 

committed a sexual assault. The SCB stated that the evidence 

collection kit might have confirmed the fact of intercourse, but 

that fact had not been in dispute; the disputed issue had been 

as to the question of consent.

2. Discussion. a. Standard of review. We review a 

decision allowing a motion for summary judgment de novo, viewing 

the evidence in the light most favorable to the nonmoving party, 

in this case the plaintiff. See LeBlanc v. Logan Hilton Joint 

Venture, 463 Mass. 316, 318 (2012). "Summary judgment is 

appropriate where there are no genuine issues of material fact 

and the moving party is entitled to judgment as a matter of 

law." Godfrey v. Globe Newspaper Co., 457 Mass. 113, 118-119 

(2010). If a plaintiff has failed to establish "an essential 

element" of her case, all other facts are rendered immaterial. 

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 

(1991).

The plaintiff claims that Northeastern14 not only 

negligently failed to prevent the sexual assault, but indeed

contributed to its occurrence. She also asserts a number of 

additional tort, contract, and statutory claims on the ground 

that Northeastern failed to respond adequately to the incident.

 

14 The five named defendants were Northeastern executives 

during the relevant period. See note 3, supra.
12

b. Negligence claims. The plaintiff claims that 

Northeastern was negligent in several respects: it failed to 

protect her from A.G.'s sexual assault, is responsible for the 

unreasonable acts and omissions of its RAs, and failed to 

exercise due care in training and supervising both its permanent 

staff and its "paraprofessional" RA and SCB staff.15

To sustain a claim of negligence, a plaintiff must 

establish that (1) the defendant owed a legal duty to the 

plaintiff, (2) the defendant committed a breach of that duty, 

(3) there was a causal connection between the defendant's

negligence and the plaintiff's injury or damage, and (4) the 

plaintiff sustained damages. See Donovan v. Philip Morris USA, 

Inc., 455 Mass. 215, 221–222 (2009). "[T]he existence of a duty 

is a question of law, and is thus an appropriate subject of 

summary judgment." Jupin v. Kask, 447 Mass. 141, 146 (2006).

i. Whether Northeastern owed a duty. "Under our case law,

[one does] not owe others a duty to take action to rescue or 

protect them from conditions [one has] not created" (quotation 

and citation omitted). Dzung Duy Nguyen v. Massachusetts Inst. 

of Tech., 479 Mass. 436, 448 (2018). See Restatement (Third) of 

Torts: Phys. & Emot. Harm § 37 (2012) ("An actor whose conduct 

 

15 Student members of the SCB were volunteers who attended 

particularized training, but received no compensation of any 

kind for their ad hoc work as board members.
13

has not created a risk of physical or emotional harm to another 

has no duty of care to the other . . ."). Generally, this noduty rule extends to the criminal acts of third parties. See 

Jupin, 447 Mass. at 148. It is, however, subject to certain 

exceptions, two of which the plaintiff asserts are applicable 

here. She argues that Northeastern owed her a duty to protect 

her by virtue of the special relationship between a university 

and its students. Additionally, she maintains that RAs Smith 

and Jones exposed her to the foreseeable criminal acts of a 

third party, and that Northeastern had a duty to protect her 

from the resulting harm.

We agree that, here, a special student-university 

relationship between the plaintiff and Northeastern did exist. 

See Dzung Duy Nguyen, 479 Mass. at 450 (describing special 

relationship). We nonetheless conclude that Northeastern had no 

duty to take steps to prevent the alleged sexual assault, 

because it was not reasonably foreseeable that the plaintiff 

would suffer a criminal act by a third party or other imminent 

physical harm due to her intoxication at the time of the 

incident.

A. Special relationship between university and student. 

In Mullins v. Pine Manor College, 389 Mass. 47, 54 (1983), we 

first recognized that colleges and universities have a special 

relationship with their students which imposes a "duty . . . to 
14

protect their resident students against the criminal acts of 

third parties." Although this duty was related to the 

university's control over its campus, the relationship we 

recognized was not limited to a university's role as a landlord 

or property owner. Rather, it arose out of the "distinctive 

relationship between colleges and their students." Id. at 56. 

It was grounded both on the "reasonable expectation, fostered in 

part by colleges themselves, that reasonable care will be 

exercised to protect resident students from foreseeable harm," 

id. at 52, and the observation that universities "generally 

undertake voluntarily to provide their students with protection 

from the criminal acts of third parties," id. at 53.

The defendants nonetheless maintain that whatever special 

relationship exists between a university and its student does 

not impose a duty to protect a student while he or she is 

voluntarily intoxicated. They argue, therefore, that the 

Mullins duty does not apply, and that Northeastern had no other 

duty to protect the plaintiff from any potentially harmful 

consequences of her choice to drink alcohol. In both respects, 

we disagree.

I. Voluntarily intoxicated students. As many courts have 

noted, requiring colleges and universities to police all on-
15

campus use of alcohol would be inappropriate and unrealistic.16 

Although "[t]here was a time when college administrators and 

faculties assumed a role in loco parentis" and "[s]tudents were 

committed to their charge because the students were considered 

minors," "[c]ollege administrators no longer control the broad 

arena of general morals." Bradshaw v. Rawlings, 612 F.2d 135, 

139–140 (3d Cir. 1979), cert. denied sub nom. Borough of 

Doylestown v. Bradshaw, 446 U.S. 909 (1980). College-aged 

students, while sometimes underage for the purposes of the 

purchase and consumption of alcohol, otherwise are adults 

expected to manage their own social activities. See Furek v. 

University of Del., 594 A.2d 506, 516–517 (Del. 1991) ("students 

are now regarded as adults in almost every phase of community 

life" [quotation and citation omitted]). Illicit consumption of 

alcohol is an activity that falls well outside the educational 

mission of the modern university, and the additional intrusion 

 

16 See Doe v. Emerson College, 153 F. Supp. 3d 506, 514 (D. 

Mass. 2015) (imposing duty to prevent on-campus alcohol abuse 

"would be impractical and unrealistic"). See, e.g., Guest v. 

Hansen, 603 F.3d 15, 21-22 (2d Cir. 2010) (no duty to prevent 

harms from drinking, even when university was aware of conduct);

Booker v. Lehigh Univ., 800 F. Supp. 234, 240-241 (E.D. Pa. 

1992), aff'd, 995 F.2d 215 (3d Cir. 1993) (no duty to student 

who was injured after becoming inebriated at on-campus 

fraternity party). See also Restatement (Third) of Torts: 

Phys. & Emot. Harm § 40 & comment l (2012) (courts reject duty 

to protect students from excessive alcohol use); Bendlin, 

Cocktails on Campus: Are Libations A Liability?, 48 Suffolk U. 

L. Rev. 67, 73 (2015) (noting duty has been rejected in 

"majority" of cases).
16

into the private lives of students that would be necessary to 

control alcohol use on campus would be both impractical for 

universities and intolerable to students.17

It does not follow, however, that a student relinquishes 

any reasonable expectation of protection from his or her college 

or university if the student becomes intoxicated. Unlike some 

courts, we have not endorsed the view that the end of the era of 

in loco parentis justified an effective "judicial grant of 

collegiate immunity for the repercussions of student alcohol 

consumption."18 See Dall, Determining Duty in Collegiate Tort 

Litigation: Shifting Paradigms of the College-Student 

Relationship, 29 J.C. & U.L. 485, 496 (2003). In Mullins, we 

rejected that position, and observed that "the fact that a 

 

17 Moreover, part of the collegiate experience is the 

freedom to make choices, even bad ones, as a student transitions 

into adulthood. Imposing a duty on colleges and universities to 

police alcohol use on campus "would inevitably lead to 

repressive regulations and a loss of student freedoms, thus 

contravening a goal of higher education: 'the maturation of the 

students.'" See Smith v. Day, 148 Vt. 595, 599 (1987), quoting 

Baldwin v. Zoradi, 123 Cal. App. 3d 275, 291 (1981).

18 See Beach v. University of Utah, 726 P.2d 413, 419 (Utah 

1986) ("It would be unrealistic to impose upon an institution of 

higher education the additional role of custodian over its adult 

students and to charge it with responsibility for preventing 

students from illegally consuming alcohol and, should they do 

so, with responsibility for assuring their safety and the safety 

of others"). See, e.g., Bradshaw v. Rawlings, 612 F.2d 135, 

140-141, 143 (3d Cir. 1979). These decisions reflected an 

understanding that, as students were adults capable of choosing 

for themselves, universities owed them no more duty than they

would any other bystanders.
17

college need not police the morals of its resident 

students . . . does not entitle it to abandon any effort to

ensure their physical safety." Mullins, 389 Mass. at 52. More 

recently, in the private carrier context, we rejected the 

outdated view that the voluntary consumption of alcohol by a 

plaintiff "is the sole consideration in the assessment of a 

duty." Commerce Ins. Co. v. Ultimate Livery Serv., Inc., 452 

Mass. 639, 650 (2008) ("A private carrier . . . which transports 

intoxicated persons can reasonably foresee that passengers . . .

may not be fully capable of making rational decisions about 

their ability to drive") We are not persuaded by the 

defendants' argument that no duty exists, and that the duties 

arising from the university-student relationship ought not to be 

treated similarly in the context here.19

Moreover, like the era of in loco parentis, the "bystander" 

era from which those "no duty" decisions emerged also appears to

be drawing to a close. As we stated in Dzung Duy Nguyen, 

"[u]niversities are clearly not bystanders or strangers in 

regards to their students." Dzung Duy Nguyen, 479 Mass. at 450. 

 

19 See Furek v. University of Del., 594 A.2d 506, 522 (Del. 

1991) ("[a university] has a duty to regulate and supervise 

foreseeable dangerous activities occurring on its property," 

including hazing); Coghlan v. Beta Theta Pi Fraternity, 133 

Idaho 388, 400 (1999) (recognizing existence of duty where 

"university employees knew or should have known that [student]

was intoxicated and should have acted at the time they saw her 

prior to her injury").
18

Rather, "university involvement extends widely into other 

aspects of student life." Id. In addition to education, many 

universities provide access to basic necessities such as housing 

and food, along with the "social, athletic, and cultural 

opportunities" that form the foundation of a collegiate 

"community." See id. at 451, quoting Regents of the Univ. of 

Cal. v. Superior Court of Los Angeles, 4 Cal. 5th 607, 625 

(2018); R.D. Bickel & P.F. Lake, The Rights and Responsibilities 

of the Modern University 85 (1999) ("Universities . . . plan, 

regulate and administer most aspects of student life").

While universities and colleges nonetheless are "not 

responsible for monitoring and controlling all aspects of their 

students' lives," the contemporary paradigm of the universitystudent relationship recognizes that students' "right to privacy 

and their desire for independence may conflict with their 

immaturity and need for protection." See Dzung Duy Nguyen, 479 

Mass. at 451-452. Accordingly, we reject the defendants' 

blanket contention that, necessarily, universities have no 

special relationship with voluntarily intoxicated students.

II. Contours of special relationship between university 

and its intoxicated students. Given that voluntary 

intoxication, in and of itself, does not preclude the existence 

of a special relationship between a student and a college or 

university, we turn to the scope of a university's or college's
19

duty to its intoxicated students. In doing so, we "take into 

account a complex mix of competing considerations," Dzung Duy 

Nguyen, 479 Mass. at 452, including students' interests in both 

safety and autonomy, as well as the burden of such a duty on the 

educational institutions. To help guide this analysis, we look 

to "a number of factors used to delineate duties in tort law." 

Id. "Foremost among these is whether a defendant reasonably 

could foresee that he [or she] would be expected to take 

affirmative action to protect the plaintiff and could anticipate 

harm to the plaintiff from the failure to do so."20 Irwin v. 

Ware, 392 Mass. 745, 756 (1984).

As noted, dangerous drinking-related activities are a 

foreseeable hazard on college and university campuses.21 Because 

 

20 Other factors that may be relevant include the "degree of 

certainty of harm to the plaintiff; burden upon the defendant to 

take reasonable steps to prevent the injury; some kind of mutual 

dependence of plaintiff and defendant upon each other, 

frequently . . . involving financial benefit to the defendant 

arising from the relationship; moral blameworthiness of 

defendant's conduct in failing to act; and social policy 

considerations involved in placing the economic burden of the 

loss on the defendant." Dzung Duy Nguyen v. Massachusetts Inst. 

of Tech., 479 Mass. 436, 452 (2018).

21 See National Institute on Alcohol Abuse and Alcoholism, 

High-Risk Drinking in College: What We Know and What We Need To 

Learn, at v, 10-11 (Apr. 2002), https://www.collegedrinking

prevention.gov/media/finalpanel1.pdf [https://perma.cc/3CVU8D4K] (estimating that fifty percent of male students, and 

twenty-nine to forty percent of female students, engage in 

"binge drinking," defined as consuming five or more drinks in a 

row for males, and four or more drinks in a row for females); 

Wechsler, Lee, Nelson, & Kuo, Underage College Students'
20

of their youth and lack of experience with the consumption of 

alcohol outside their family circle, many college students are 

particularly susceptible to risky drinking behaviors. Massie, 

Suicide on Campus: The Appropriate Legal Responsibility of 

College Personnel, 91 Marq. L. Rev. 625, 661 (2008) ("the 

brain's maturation process . . . continues into young adulthood, 

at least through the early twenties").22 "Colleges and 

universities, where young people in their late teens and early 

twenties live close together in a 'pressure cooker' environment, 

arguably might exacerbate a tendency towards impulsive behavior 

 

Drinking Behavior, Access to Alcohol, and the Influence of 

Deterrence Policies, 50 J. Am. College Health 223, 223 (2002) 

(suggesting that forty percent of all college students engage in 

binge-drinking). Each year, according to at least one 

government report, there is a strong correlation between

students' consumption of alcohol and sexual assaults, physical 

assaults, and student deaths. See National Institute on Alcohol 

Abuse and Alcoholism, Fall Semester -- A Time for Parents To 

Discuss the Risks of College Drinking, https://

www.niaaa.nih.gov/sites/default/files/publications/NIAAA_

BacktoCollege_Fact_sheet.pdf [https://perma.cc/5YFY-ZE9A].

22 One researcher has postulated that the "late development 

of the frontal lobe, responsible for the 'executive functions,' 

may help to account for teenagers' willingness to indulge in 

risky behaviors, including experimentation with alcohol and 

drugs." Massie, Suicide on Campus: The Appropriate Legal 

Responsibility of College Personnel, 91 Marq. L. Rev. 625, 662 

(2008). While not all college-age students are in their teens, 

at the time of the incident at issue here, both the plaintiff

and A.G. were teenagers, as were Paul Jones and Sarah Smith.
21

that a 'sober second thought' would perhaps quell."23 Id.

at 662.

Colleges and universities recognize these foreseeable risks 

and have taken reasonable measures to protect students in the 

event of an alcohol-related emergency. See Mullins, 389 Mass. 

at 55 (recognizing duty where risk of harm to student "was not 

only foreseeable but was actually foreseen"). Northeastern, for

example, directs students to contact Northeastern police 

officers24 for assistance when faced with crises that occur on 

university grounds, including those caused by alcohol. See 

Northeastern University police department, Emergency Medical 

Services, https://nupd.northeastern.edu/our-services/emergencymedical-services [https://perma.cc/DC8J-996X].25 Northeastern 

 

23 According to the National Center for Education 

Statistics, in 2019, there were 19.9 million college students in 

the United States. National Center for Education Statistics, 

Fast Facts, https://nces.ed.gov/fastfacts/display.asp?id=372

[https://perma.cc/VFZ5-NXSM].

24 These police officers are Northeastern employees, 

appointed under statutory authority, who have jurisdiction over 

Northeastern's buildings and grounds. See G. L. c. 22C, § 63.

25 A survey of local universities demonstrates the 

widespread adoption of university policies directing students to 

contact university police when there is a medical emergency on 

campus. Some universities also have required students to 

contact university police when they believe a student is 

imperiled due to alcohol intoxication. See Massachusetts 

Institute of Technology, Mind and Hand Book 2019-2020

§ II(2)(C): Requirement to Obtain Medical Assistance for 

Emergencies Involving Alcohol and Prohibited Substances, 

https://handbook.mit.edu/aodemergency [https://perma.cc/QVK7-
22

also offers "medical amnesty" for students who contact it in a 

medical emergency involving underage consumption of alcohol, and 

offers amnesty from punishment for students and organizations 

who reach out for help in such an emergency.

Given these efforts, it is foreseeable that a student will 

reasonably rely on his or her college or university for aid in 

the event of an alcohol-related emergency. See Dzung Duy

Nguyen, 479 Mass. at 455 ("Reliance of the student on the 

university for assistance, at least for students living in 

dormitories or away from their parents or guardians, is . . .

foreseeable"); Irwin, 392 Mass. at 756 ("reasonable reliance by 

the plaintiff [on the defendant university], impeding other 

persons who might seek to render aid" from offering help, is 

factor in duty analysis). Reliance is particularly foreseeable 

for first-year students like the plaintiff, whom Northeastern 

required to live on campus in its dormitories. When such a 

student confronts an on-campus alcohol-related emergency, 

"[u]niversities are in the best, if not the only, position to 

assist." See Dzung Duy Nguyen, supra.

After weighing these considerations, we conclude that a 

university has a special relationship with its students, and a 

 

HQW9]; Fletcher School of Law and Diplomacy, Tufts University, 

Student Handbook 2018-2019, at 29, https://sites.tufts.edu

/fletcherconnect/files/2018/07/Student-Handbook-2018-2019.pdf

[https://perma.cc/FG75-NL3F].
23

corresponding duty to take reasonable measures to protect 

students from harms associated with alcohol-related emergencies,

in the following, narrow circumstances. When a college or 

university has actual knowledge of conditions that would lead a

reasonable person to conclude that a student on campus is in 

imminent danger of serious physical harm due to alcohol 

intoxication, and so intoxicated that the student is incapable 

of seeking help for him- or herself, the college or university 

has a duty to take reasonable measures to protect that student 

from harm. See Dzung Duy Nguyen, 479 Mass. at 453 (recognizing 

limited duty to take reasonable measures to protect students 

from suicide).26

This duty is limited in several important respects. It 

applies only when a university is already aware that a student 

is at imminent risk of harm. Analyzing the degree of harm does 

not require the knowledge or precision of a medical doctor; it

merely requires the recognition that a young person is

dangerously intoxicated.27 Equipped with such knowledge, a 

 

26 This conclusion also does not absolve a student of 

personal responsibility for his or her drinking. A jury of 

course may consider intoxication when weighing whether the "duty 

was violated, and in determining causation." Commerce Ins. Co. 

v. Ultimate Livery Serv., Inc., 452 Mass. 639, 650 (2008).

27 In addition to considering the degree of intoxication, a 

university or college also should consider the context of the 

drinking, and a continuum of harms, such as whether a student is 

unconscious outside, continuing to consume at a party, or inside 
24

college or university merely must act reasonably under the 

circumstances. In some cases, to strike the appropriate balance 

between respecting a student's autonomy and the need to protect 

his or her physical well-being, a reasonable response will 

include doing little or nothing at all, while in others, calling 

for medical or other forms of assistance might be warranted.

B. The foreseeability of the harm. Notwithstanding the 

special university-student relationship that existed between 

Northeastern and the plaintiff, we conclude that Northeastern 

owed no duty to protect her in this instance. A university's 

duty to protect its students extends only to those harms which, 

based on "an examination of all the circumstances", Mullins, 389 

Mass. at 56, were reasonably foreseeable at the time. See,

e.g., Dzung Duy Nguyen, 479 Mass. at 455 (duty "hinges on 

foreseeability"). On this record, we conclude that Northeastern 

could not reasonably have foreseen that, absent some 

intervention on its part, the plaintiff would be subjected to a 

criminal act or other harm.

I. Foreseeability of criminal act by third party. At the 

time of the alleged assault, Northeastern had no indication that 

 

an assigned dormitory room. Similarly, students with a history 

of drinking to the point of alcohol poisoning may pose an 

enhanced risk to themselves of future physical harm.
25

A.G. posed any risk to the plaintiff.28 While "[p]rior criminal 

acts are simply one factor" in the foreseeability analysis, see 

Mullins, 389 Mass. at 56, we note that nothing in the record 

indicates that A.G. had a history of sexual assaults, of which 

Northeastern was aware (or otherwise). Cf. Schaefer v. Yongjie 

Fu, 272 F. Supp. 3d 285, 288 (D. Mass. 2017) (duty arose where 

university had knowledge that made specific criminal acts 

foreseeable). Northeastern police conducted a search of their 

records and found no other reported incidents involving A.G. as 

an assailant. Nor did the plaintiff identify any concerns that 

she or anyone else possessed regarding A.G. before this 

incident. To the contrary, she indicated that she had had none.

Furthermore, the plaintiff does not argue, nor is there any 

evidence to suggest, that residence life officers, area 

directors, or other full-time staff were aware of the events 

leading up to the alleged assault. At most, therefore, 

Northeastern's awareness of the circumstances surrounding this 

incident was limited to the observations of Jones, an off-duty 

RA, Smith, an on-duty RA, and an unknown proctor at the 

plaintiff's dormitory.

 

28 There is no indication in the record that Northeastern's 

lack of information about the circumstances was the product of 

negligence or willful blindness on the part of Northeastern.
26

While the issue is a close one on whether the RAs or 

proctor were agents in these circumstances, we need not reach 

that issue.29 Even if we were to assume that all of their 

knowledge could be imputed to Northeastern, they lacked

sufficient information that would have led a reasonable person 

to conclude that the plaintiff was at risk of being assaulted.

There is no indication in the record that A.G. or any other 

attendee acted inappropriately towards the plaintiff at the 

party. Before, during, and after the party, she was capable of 

communicating with other students, both in person and via text 

message, and was managing her intoxication. Toward the end of 

the party, Smith was told that two female students would escort 

the plaintiff back to her dormitory. Based on these 

observations, it would not have been foreseeable that A.G. would 

assault the plaintiff later that evening.

Arguably, the proctor who was working at the plaintiff's 

residence hall when she returned with A.G. perhaps had the best 

 

29 RAs, as students who receive some form of in-kind 

compensation (room and partial board) for their work for 

Northeastern, occupy a hybrid role that may not cleanly fit 

within the definition of "employee" for the purposes of tort 

law. See Helms, Pierson, & Streeter, The Risks of Litigation: 

A Case Study of Resident Assistants, 180 Ed. Law Rep. 25, 26 

(2003) ("As both students and employees, RAs' employment status 

is inextricably intertwined with their academic status"). It is 

also apparent from the student code of conduct that, at least 

while on duty, RAs were empowered and expected to enforce 

university policies on behalf of Northeastern.
27

opportunity to observe the situation and intervene if 

necessary.30 There is no direct evidence in the record, however, 

of what that proctor observed, or, for that matter, the identity 

of that individual. At most, other evidence31 supports the 

inference that the proctor saw an intoxicated male and female 

return to the residence hall where they both resided and check 

in at the front desk. The proctor likely observed the plaintiff 

lean on the desk for support while signing in, before unsteadily 

making her way to the elevator. There is no indication that 

A.G. was acting aggressively or sexually towards the plaintiff, 

or that the plaintiff appeared to be dangerously intoxicated at 

that point. The mere presence of an intoxicated young woman in 

the company of an intoxicated young man as they returned to 

 

30 The plaintiff asserts that the proctor failed in his or 

her duty by not calling the Northeastern police and having them 

assess whether she safely could have been allowed into the 

residence hall given her visibly intoxicated state. There is 

evidence in the record that other students at the party 

considered that the proctor might take actions in response to 

intoxication. The plaintiff testified as well, however, that if 

she had been approached by Northeastern police, she would have 

said that she was "fine," and "with a friend," and would have 

declined any help.

31 A police report indicates that the plaintiff and A.G. 

were captured on video surveillance footage returning to the 

residence hall and checking in with the proctor. This recording 

was not included in the record on summary judgment, but was 

examined by Northeastern police, who testified as to its 

contents.
28

their shared residence hall does not, without more, suggest that 

a crime or physical harm is imminent.

The plaintiff maintains that Northeastern should have 

foreseen that she would be sexually assaulted because of the 

generally recognized connection between alcohol and sexual 

assault on college campuses. As we have noted, studies do 

reflect that sexual assaults on college campuses are "a major 

public health problem," and that "[o]ver half of all college 

sexual assaults involve alcohol and alcohol is the number one 

drug used to facilitate sexual assault." The plaintiff argues, 

based on a report by a Department of Health and Human Services 

task force, that approximately 70,000 college students "are 

victims of alcohol-related sexual assault annually" in the 

United States.

This recognized relationship between alcohol and sexual 

assault on campus, however, standing alone, is not sufficient to 

impose a duty on Northeastern. See Lake, Private Law Continues 

to Come to Campus: Rights and Responsibilities Revisited, 31 

J.C. & U.L. 621, 649 (2005) ("notifying [an RA] that someone is 

drunk does not alert the [RA] that a rape is likely"); Hernandez

v. Baylor Univ., 274 F. Supp. 3d 602, 619 (W.D. Tex. 2017) 

("Courts across the country have determined . . . that the 

general foreseeability of sexual assault on campus is 

insufficient to warrant negligence liability"). This is 
29

precisely the overreaching type of duty that we have never 

imposed on universities, and which we again expressly reject 

today.

II. Foreseeability of imminent alcohol-related harm. 

Similarly, based on the RAs' and the proctor's observations of 

the plaintiff, it would not have been apparent to a reasonable 

person that she was at imminent risk of physical harm due to 

alcohol intoxication. While the plaintiff was obviously 

intoxicated at least part of the time that she was in Smith's

room, it did not appear that she was experiencing an emergency. 

The plaintiff did not lose consciousness during the evening or 

exhibit other indications that she was dangerously intoxicated. 

She was talking with other students, sending text messages, and 

later eating crackers and drinking water in response to her 

nausea. No one encouraged her to seek medical attention; the 

students who were in the bathroom with her did not think that 

help was necessary, and the plaintiff herself believed that she 

did not need any. At most, some other students believed that 

the plaintiff should be escorted home by peers and, accordingly, 

offered to walk her home.

Moreover, in the absence of an ongoing emergency, it was 

reasonable for Jones and Smith to respond to the plaintiff's 

intoxication as they did. Jones, an off-duty RA, informed 

Smith, an on-duty RA, that a fellow student appeared ill due to 
30

drinking alcohol. Rather than continue with her rounds, Smith 

stopped to check on the plaintiff. She spoke with the two 

female students who were taking care of the plaintiff at the 

time and saw that these students were feeding and hydrating her. 

After listening for any indication that the plaintiff was still 

vomiting, and hearing none, Smith then permitted or acquiesced 

in the plan that those two students escort the plaintiff back to 

her own dormitory.

At that point, it was not negligent for the RAs to allow 

those two students to walk the plaintiff home. Indeed, 

Northeastern's policy stated that an RA need not seek further 

help or arrange transportation if the RA believed that an 

intoxicated student was being assisted by another person. The 

fact that, unbeknownst to Smith and Jones, the plaintiff later 

turned down this offer of help and opted instead to walk back to 

her dormitory with A.G. does not make their decisions 

unreasonable.32

Considering all of the information that Northeastern had at 

its disposal, it was not reasonably foreseeable that the 

plaintiff was in peril at the time of the alleged assault. 

 

32 Nor, for that matter, would it have been negligent for 

the RAs to allow A.G. to escort the plaintiff home in the first 

instance. A.G. was a friend of the plaintiff, they came to the 

party together, and they would be returning to their shared 

residence hall.
31

Because Northeastern was not on notice that it would be required 

to step in and protect the plaintiff, the existence of a special 

relationship alone did not impose an obligation on Northeastern 

to act. We therefore conclude that, on the particular facts 

here, Northeastern did not owe a legal duty to the plaintiff on 

the basis of a special relationship. In the absence of such a 

duty, summary judgment properly was granted on this portion of 

the plaintiff's negligence claim.

ii. Vicarious liability. The plaintiff further asserts

that by holding the Halloween party, RAs Smith and Jones created 

an unreasonable risk that she would be sexually assaulted. See 

Restatement (Second) of Torts § 302B (1965). Thus, she claims

that Northeastern owed a duty to protect her from the resulting 

harms of that party. See Elias v. Unisys Corp., 410 Mass. 479, 

481 (1991) ("The [vicarious] liability of the principal arises 

simply by the operation of law and is only derivative of the 

wrongful act of the agent")

To be sure, by throwing, or tacitly permitting, this 

underage drinking party, the RAs hardly covered themselves with 

glory. The plaintiff's argument nonetheless fails, however, 

because, as noted supra, the subsequent steps that the RAs took 

to protect the plaintiff were appropriate under these 

circumstances. Whatever duty the RAs may have owed to protect 

the plaintiff in these circumstances was clearly met.
32

As the plaintiff cannot establish any breach of a duty on 

the part of the RAs, her derivative claims against the 

university fail as a matter of law.

iii. Negligent supervision and training. The plaintiff 

argues that individual defendants Sevigny, Wegmann, and 

Estabrook, as well as Northeastern itself, should be liable for 

the negligent training and supervision of the RAs and the SCB 

members.

The plaintiff's claim against Northeastern and the 

individual defendants fails because there is no evidence that 

any of the defendants was negligent in training or supervising 

its student resident advisors. "Employers are responsible for 

exercising reasonable care to ensure that their employees do not 

cause foreseeable harm to a foreseeable class of plaintiffs." 

Roe No. 1 v. Children's Hosp. Med. Ctr., 469 Mass. 710, 714–715 

(2014). To establish an employer's liability for negligently 

training and retaining an employee, a plaintiff must show that 

the "employer [became] aware or should have become aware of 

problems with an employee that indicated his unfitness, and the 

employer fails to take further action such as investigating, 

discharge or reassignment." Foster v. The Loft, Inc., 26 Mass. 

App. Ct. 289, 291 (1988).

Northeastern's RAs went through a two and one-half week 

initial training program, followed by additional workshops. 
33

They also met with university staff on a weekly basis. As part 

of the training, one student explained, RAs were directed to 

report underage drinking and respond according to the severity 

of the student's intoxication.33 This training included 

recognizing warning signs of the excessive consumption of 

alcohol.

Arguably, by failing to report the underage drinking that 

they observed, and by engaging in underage drinking themselves,

the RAs apparently did not follow their training on the night in 

question. Nonetheless, and notwithstanding Northeastern staff's

ongoing supervision, it does not appear on this record that 

Northeastern or any of the individual defendants were aware of 

any issues with these two RAs prior to the Halloween incident. 

Because the defendants did not know, or have reason to know, 

that the RAs would not conduct themselves according to 

Northeastern's policies and training, the defendants were not 

negligent.

Similarly, the SCB members (who were uncompensated) 

underwent both a general training on disciplinary proceedings, 

and an additional training specific to sexual assault cases. In 

addition, the SCB members were required to observe a full SCB 

 

33 Northeastern's written policy, however, set out in the 

student handbook, allowed a "medical amnesty" for intoxicated 

students in which, among other actions short of reporting, RAs 

could arrange for an escort home.
34

proceeding before participating in one. There is no evidence 

that the SCB members failed to follow the provisions of 

Northeastern's code of conduct, or any policies from their 

training, when considering the events at issue here. Nor is 

there any indication that Northeastern staff became aware of, or 

should have become aware of, any problems with the SCB members' 

knowledge of the Northeastern code. See Doe v. Brandeis Univ., 

177 F. Supp. 3d 561, 614 (D. Mass. 2016) (Brandeis Univ.). To 

the contrary, the SCB letter explained clearly the factors the 

SCB considered in evaluating the issue of consent and its 

understanding of the definition of consent under the code.

Accordingly, the defendant cannot sustain her claim of negligent 

supervision and training.

c. Negligent infliction of emotional distress. There also 

was no error in the judge's decision to deny the plaintiff's 

claim for negligent infliction of emotional distress. "[I]n 

order to recover for negligently inflicted emotional distress," 

a plaintiff must prove the following: "(1) negligence; 

(2) emotional distress; (3) causation; (4) physical harm 

manifested by objective symptomatology; and (5) that a 

reasonable person would have suffered emotional distress under 

the circumstances of the case." Payton v. Abbott Labs, 386 

Mass. 540, 557 (1982).
35

For all the reasons discussed in part 2.b, supra, the 

plaintiff cannot sustain her negligence claims. Accordingly, 

the motion judge properly concluded that, absent the necessary 

element of negligence, the defendants' motion for summary 

judgment had to be allowed on those counts.

d. Breach of contract. In addition to her negligence 

claims, the plaintiff contends that Northeastern committed a 

breach of a contract with her in which it promised to conduct 

its disciplinary proceedings in accordance with its stated 

procedures and the code of conduct in the student handbook. 

Although the plaintiff had such a contract with Northeastern, 

there was no breach.

Claims that a university did not exercise proper care or 

follow its established procedures in student disciplinary 

proceedings have been treated as claims for breach of contract, 

based on the university's student handbook or other documents,

such as the student code of conduct at issue here. See, e.g., 

Schaer v. Brandeis Univ., 432 Mass. 474, 478 (2000); Walker v. 

President & Fellows of Harvard College, 82 F. Supp. 3d 524, 528-

529 (D. Mass. 2014), aff'd, 840 F.3d 57 (1st Cir. 2016). 

"Contracts between students and universities are interpreted 'in 

accordance with the parties' reasonable expectations, giving 

those terms the meaning that the university reasonably should 

expect the student to take from them.'" Walker, supra at 528, 
36

quoting Havlik v. Johnson & Wales Univ., 509 F.3d 25, 34 (1st 

Cir. 2007). Interpretation of a contract, including "any 

ambiguities . . . in the disputed contract terms," is a question 

of law decided de novo by the reviewing court. See Walker, 

supra at 529, citing Driscoll v. Trustees of Milton Academy, 70 

Mass. App. Ct. 285, 293 (2007).

To decide whether there was a breach of contract as a

result of a disciplinary proceeding, we examine the conduct of 

the disciplinary hearing to determine whether Northeastern 

failed to meet the student-plaintiff's "reasonable 

expectations," and whether the hearing was conducted with "basic 

fairness" (citations omitted). See Brandeis Univ., 177 F. Supp. 

3d at 594. The plaintiff identifies two ways in which she 

asserts that Northeastern committed a breach of its contract 

while conducting the disciplinary hearing. She points to 

Estabrook's denial of her appeal after the appeals board had 

allowed it, and a lack of "basic fairness" at the subsequent 

second hearing, in part due to the destruction of the recording 

of the original hearing. See id.

Neither of these asserted missteps represents a breach of 

Northeastern's contract with the plaintiff. Estabrook, as the 

vice-president of student affairs, was responsible "for the 

overall administration of the Code of Student Conduct as well as 

the Student Conduct Process." On the record before the court, 
37

it is apparent that Estabrook's position afforded her the 

implied authority to rectify serious errors in the SCB process, 

including the authority to overturn otherwise final decisions of 

the appeals board. When she vacated the appeals board's 

decision allowing a new hearing on the ground of procedural 

error, Estabrook merely exercised that authority. It would be 

an absurd result to decide that the plaintiff reasonably could 

have expected to proceed with an appeal on the ground of 

procedural error, where she did not point to any procedural 

error in the initial proceeding.

Likewise, the plaintiff's claim that she was harmed by the 

destruction of the transcript of the original hearing cannot 

succeed. Prior to filing her appeal, the plaintiff explicitly 

declined Northeastern's offer that she listen to an audio

recording of the hearing. Following the allowance of her appeal 

(which did not rely on the recording), the tapes were destroyed, 

as specifically provided for under the then-existing terms of 

the code (in an effort to protect students' privacy and 

confidentiality). The plaintiff thus could not have had a 

reasonable expectation that the tapes would be retained, nor did 

she make any request for an exception such that the tapes would 

not be destroyed when she initially declined to listen to them.

The plaintiff also points to a number of purported flaws in 

the then-existing written code, including the provision 
38

prescribing destruction of recordings after the conclusion of an 

appeal, which was intended to protect the privacy of the 

parties. These issues with the code itself, however, do not 

indicate that Northeastern committed a breach of the terms of 

the code. Whatever flaws it arguably contained were not so 

egregious that they could have violated the plaintiff's 

reasonable expectations, or resulted in fundamental unfairness. 

In any event, it is the terms of the code, and not the changes 

the plaintiff would like to have seen made, that were at issue 

on appeal. In the absence of a breach, the plaintiff's contract 

claim could not survive the motion for summary judgment.

e. MERA claim. For similar reasons, summary judgment 

properly was granted for the defendants on the plaintiff's claim 

under the Massachusetts Equal Rights Act (MERA). MERA provides, 

in relevant part, that "[a]ll persons within the commonwealth, 

regardless of sex . . . , shall have . . . the same rights 

enjoyed by white male citizens, to make and enforce 

contracts . . . and to the full and equal benefit of all laws." 

G. L. c. 93, § 102 (a).

The parties agree that the plaintiff's MERA claim is based 

entirely on Northeastern's asserted breach of its contract with 

her. Accordingly, because the breach of contract claim cannot 

succeed, for the reasons discussed supra, the judge properly 
39

determined that the plaintiff also could not prevail on her MERA 

claim.

f. Title IX claim. The plaintiff also raises a Federal 

claim under Title IX of the Education Amendments of 1972, 

20 U.S.C. § 1681 (Title IX). Title IX provides that "[n]o 

person . . . shall, on the basis of sex, be excluded from 

participation in, be denied the benefits of, or be subjected to 

discrimination under any education program or activity receiving 

Federal financial assistance." 20 U.S.C. § 1681(a). See Wills

v. Brown Univ., 184 F.3d 20, 35 (1st Cir. 1999) (Lipez, J., 

dissenting). The protections of Title IX are "enforceable 

through an implied private right of action against an 

educational institution . . . [that] can include a demand for 

monetary damages." Id. at 36.

"[T]he provisions of Title IX indicate that a funding 

recipient should be liable only for its own actions, and not for 

the independent actions of an employee or a student. . . . 

[T]he administrative-enforcement scheme for Title IX permitted 

the imposition of financial penalties only after funding 

recipients received actual notice of discrimination within their 

programs and were given an opportunity to institute corrective 

measures; they would be subject to sanctions only for their 

failure to respond rather than for an employee's independent 

acts." Simpson v. University of Colorado Boulder, 500 F.3d 
40

1170, 1175 (10th Cir. 2007), citing Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 287–289 (1998).

The plaintiff argues that Northeastern violated Title IX by 

responding with deliberate indifference to the sex 

discrimination she suffered. She asserts that Northeastern 

failed properly to train the students who oversaw the 

disciplinary proceedings, resulting in an inadequate process 

that left her vulnerable to future harassment by A.G. See 

Wills, 184 F.3d at 25-26 (discussing Title IX standard). See 

also Doe I v. University of Tenn., 186 F. Supp. 3d 788, 812 

(M.D. Tenn. 2016) (describing ongoing injury from improper Title 

IX proceedings). The plaintiff maintains further that the 

conduct of the SCB inquiry, and the intervention by Estabrook,

cast doubt on the accuracy of the disciplinary process and 

support an inference that gender bias was a motivating factor. 

See Doe v. Columbia Univ., 831 F.3d 46, 57 (2d Cir. 2016)

(Columbia Univ.). For the reasons discussed infra, this Federal 

law claim fares no better than the plaintiff's other claims.

i. Deliberate indifference. To sustain a cause of action 

that is not based on an "official policy" of a university, a 

plaintiff must show that "an official who at a minimum [had]

authority to address the alleged discrimination and to institute 

corrective measures on the recipient's behalf [had] actual 

knowledge of discrimination" and responded with "deliberate 
41

indifference." Gebser, 524 U.S. at 290. See Doe v. Trustees of 

Boston College, 892 F.3d 67, 93 (1st Cir. 2018) (Trustees of 

Boston College). The underlying "discriminatory act must be so 

severe, pervasive, and objectively offensive that it can be said 

to deprive the victims of access to the educational 

opportunities or benefits provided by the school." Id., citing 

Porto v. Tewksbury, 488 F.3d 67, 72 (1st Cir. 2007). In turn, a 

university's response must be "clearly unreasonable in light of 

the known circumstances." Davis v. Monroe County Bd. of Educ., 

526 U.S. 629, 648 (1999). See Farmer v. Kansas State Univ., 918 

F.3d 1094, 1099 (10th Cir. 2019), quoting Davis, supra at 648-

649 ("Title IX does not require a funding recipient to acquiesce 

in the particular remedial action a victim seeks. . . . '[T]he 

recipient must merely respond to known peer harassment in a 

manner that is not clearly unreasonable'").

When Northeastern first learned of the asserted assault, it 

"acted expeditiously and reasonably, and exhibited no 

indifference at all to [the plaintiff's] allegations." Hayut v. 

State Univ. of New York, 352 F.3d 733, 752 (2d Cir. 2003). Upon 

learning of the allegations, Northeastern initiated an 

investigation that culminated in the SCB proceedings. It also 

issued a no-contact order against A.G.; the order remained in 

place throughout the plaintiff's time at Northeastern. The 

plaintiff was offered, and received, ongoing counselling from 
42

Northeastern. Northeastern also extended other accommodations 

to her, including offering to move her and her roommate to a 

"safe room," or transferring her out of classes she shared with 

A.G., but ultimately she decided not to accept these additional 

measures.34

On the whole, "the record not only fails to support [the 

plaintiff's] contention, it proves otherwise." Doherty vs. 

Emerson College, U.S. Dist. Ct., No. 1:14-CV-13281-LTS (D. Mass. 

Sept. 29, 2017) (initiating investigation, issuing stay away 

order, and offering counselling was reasonable initial 

response). As the record reflects, the SCB's hearing procedures 

were not deficient. Prior to the first SCB hearing, the 

plaintiff was appointed an advisor to assist her and to be 

present at the hearing, as was A.G. At her request, the 

plaintiff was allowed to ask questions of A.G. through the SCB 

chair, who heard the question as stated by the plaintiff, and 

then posed it to A.G.; A.G. similarly was allowed to ask 

questions of the plaintiff. The SCB ultimately decided the case 

based on a complainant-friendly preponderance of the evidence 

standard. Examining the totality of the proceedings, we 

conclude that they do not reflect deliberate indifference.

 

34 While these otherwise appropriate accommodations are not 

unreasonable in these circumstances, we note that it was the 

plaintiff, rather than A.G., who would have been required to 

adjust her living and studying arrangements.
43

Similarly, the plaintiff's assertions that the students who 

took part in the proceedings were insufficiently trained is not 

supported by the record. To sustain her claim, the plaintiff 

would have to demonstrate that Northeastern had a "policy of 

deliberate indifference to providing adequate training or 

guidance that is obviously necessary for implementation of [the 

SCB] program." Simpson, 500 F.3d at 1178. Here, the students 

received specific Title IX training that included explanations 

of the key concepts in this case, among them incapacitation and 

consent; the students were instructed that someone who is 

incapacitated can never give consent. This definition, and the 

explanation, also were set out plainly in the code that was 

provided to all students. That the students could not precisely 

define certain terms at their depositions, five years after the 

incident, does not raise an issue of material fact that must be 

decided by a jury.

Additionally, the plaintiff's deliberate indifference claim 

cannot succeed as a matter of law because the record does not 

establish that she was excluded from any educational 

opportunity. Although the plaintiff reported that she 

experienced ongoing emotional and psychological harm, she does 

not identify a particular effect that this had on her education. 

Rather, the record reflects that she graduated on time, magna 

cum laude. Cf. Gabrielle M. v. Park Forest-Chicago Heights, 
44

Ill. Sch. Dist. 163, 315 F.3d 817, 823 (7th Cir. 2003) (holding 

that there was no concrete, negative effect on education where 

plaintiff was "diagnosed with some psychological problems" 

following harassment). Absent "necessary evidence of a 

potential link between her education and [A.G.'s] misconduct," 

the plaintiff's claim cannot survive summary judgment. See 

Davis, 526 U.S. at 652.

ii. Erroneous outcome. The entry of summary judgment for 

the defendants also was warranted as to the plaintiff's claim of 

erroneous outcome. "[T]he applicable standard for [a] Title IX 

claim challenging [a university's] disciplinary procedures on 

erroneous outcome grounds requires that a plaintiff offer 

evidence 'cast[ing] some articulable doubt on the accuracy of 

the outcome of the disciplinary proceeding,' and indicating that 

'gender bias was a motivating factor.'" Trustees of Boston

College, 892 F.3d at 90, quoting Yusuf v. Vassar College, 35 

F.3d 709, 715 (2d Cir. 1994). Viewing the facts in the light 

most favorable to the plaintiff, neither necessary element could 

be established on this record.

Estabrook's intervention, whatever its propriety, 

ultimately had little if any effect on the accuracy of the SCB's 

final decision. Hypothetically, by reversing the appeals 

board's decision to allow an appeal, Estabrook could have 

limited the issues that the SCB could have considered on appeal
45

to purely procedural matters. Subsequently, however, Estabrook 

allowed the plaintiff to file an amended appeal, and the matter 

was remanded for a new hearing before the SCB based on new 

evidence. Although the appeals board had denied the plaintiff's 

amended appeal on the ground of procedural error, after 

concluding that there had been none, on remand the SCB 

nonetheless considered the procedures employed at its first 

hearing, and stated in its decision that it found that no 

procedural errors had occurred at the initial hearing. Thus, it 

would appear that the plaintiff ultimately had the benefit of 

the full appeal of the procedures that she initially had sought.

In addition, even if there were any doubt about the 

accuracy of the proceeding, there was no evidence that any error 

was the product of gender bias. Although the plaintiff is 

correct that bias may be inferred when "the evidence 

substantially favors one party's version of a disputed matter, 

but an evaluator forms a conclusion in favor of the other side 

(without an apparent reason based in the evidence)," Columbia 

Univ., 831 F.3d at 57, no such inference is appropriate here. 

Estabrook's intervention does not lack an apparent reason based 

in the evidence; she indicated that she overturned the appeals

board's decision due to her perception of procedural 

inadequacies (allowing an appeal where no ground for appeal had 

been stated) and unfairness due to lack of notice.
46

Further, any possible inference of bias would "not 

necessarily relate to bias on account of sex" (emphasis added). 

Id. Other than the plaintiff's unsupported assertion that 

"reporting sexual assault victims are overwhelmingly female," 

she does not identify any evidence to support the additional 

conclusion that Estabrook's decision was spurred by gender bias. 

Without evidence of "a causal connection between the outcome of 

[the] disciplinary proceedings and gender bias," Trustees of 

Boston College, 892 F.3d at 91, the plaintiff's claim asserting 

an erroneous outcome must fail.

Judgment affirmed.