Sonoiki v. Harvard Univ.

37 F.4th 691

Damilare SONOIKI, Plaintiff, Appellant,

v.HARVARD UNIVERSITY; Harvard University Board of Overseers; the President and Fellows of Harvard College, Defendants, Appellees.

No. 20-1689

United States Court of Appeals, First Circuit.

June 14, 2022

Susan C. Stone and Kristina W. Supler, with whom Kohrman Jackson & Krantz, LLP were on brief, for appellant.

Anton Metlitsky, with whom Apalla U. Chopra, Patrick McKegney, Anna O. Mohan, O'Melveny & Myers LLP, Victoria L. Steinberg, and Todd & Weld LLP were on brief, for appellee.

Before Thompson, Howard, and Gelpí, Circuit Judges.

THOMPSON, Circuit Judge.

In the spring of 2013, Damilare Sonoiki's career path was on a steady upward trajectory. He was about to graduate from Harvard University, his classmates had chosen him to speak at a ceremony held the day before graduation for the graduating class and their families, and he was set to move to New York City to work in finance for two years before returning to Cambridge to attend Harvard Business School as part of the "2+2" program. This trajectory took a sharp downward turn when three female Harvard students accused him of sexual assault and, following a university disciplinary proceeding, Harvard withheld his undergraduate degree. Sonoiki still moved to New York and started work as planned, but the business school withdrew his acceptance to the 2+2 program, and, in the following spring, he missed out on a lucrative employment opportunity when the employer discovered Harvard had not awarded him an undergraduate degree. Sonoiki eventually sued Harvard for breach of contract and other related claims. Harvard moved to dismiss the complaint on the basis that Sonoiki had not alleged any plausible claims. The district court agreed with Harvard, and Sonoiki now asks us to reverse the district court's judgment dismissing his complaint. For the reasons we explain below, we do just that, though only in part.

I HOW SONOIKI GOT HERE

We begin, as usual, with the factual background of the case. Because this case landed on our bench after the trial court 12(b)(6)'ed¹ the complaint, we rely on the allegations in the pleading, accepting the factual version of the events Sonoiki described as true and reciting them as such. See Zell v. Ricci, 957 F.3d 1, 4 (1st Cir. 2020). We also consider and rely on the student handbook documents Sonoiki attached to his complaint. See Lass v. Bank of Am., N.A., 695 F.3d 129, 134 (1st Cir. 2012).

ASexual Encounters Leading to the Allegations of Assault

The three female students who claimed they'd had a nonconsensual sexual experience with Sonoiki had some level of friendship and/or flirtation with him prior to the encounters while they were all students at Harvard. Cindy² and Sonoiki flirted "primarily over text" and kissed a couple of times "at parties and concerts" before the May 7, 2013 school event at which their sexual encounter at issue occurred. Cindy visited a health center the next day "for emergency contraception and sexually transmitted infection prophylaxis." A concerned doctor phoned Sarah Rankin, the director of Harvard's Office of Sexual Assault Prevention and Response and expressed concern that Cindy may have been assaulted. Rankin and Cindy met to discuss the encounter; Cindy insisted she did not want to submit a formal complaint to the school, but Rankin tried to persuade her to do so because Rankin knew about another female classmate who might have been sexually assaulted by Sonoiki a couple of years earlier. Rankin then contacted Jay Ellison, Associate Dean of Harvard College and the Secretary of the Administrative Board (the group who adjudicates disciplinary issues and student peer disputes -- much more about them soon), to discuss the situation. After hearing the allegations, Dean Ellison persuaded Rankin to contact Cindy again to encourage Cindy to file a Title IX complaint.³ On May 10, 2013, Rankin did reach out and she successfully convinced Cindy to visit a nurse with special training for a physical exam (the so-called SANE exam). She also accompanied Cindy to the appointment. A few days after the exam, Rankin and Cindy met with Dean Ellison who personally encouraged Cindy to file a formal complaint. Two weeks later (and two days before the graduation ceremony) Cindy submitted a complaint.

In comes Ann (who'd met Sonoiki a few years before); she submitted a complaint -- same day as Cindy -- alleging a sexual encounter she'd had with Sonoiki one night in September 2011 had not been consensual. She'd "blacked out" at a party and recalled becoming conscious of her surroundings in the middle of intercourse. Approximately nine months after that incident, in June 2012, Ann -- on her own initiative -- reached out to Rankin about the encounter but told Rankin she did not want to file a complaint. This is what changed her mind: After Rankin facilitated the meeting between Cindy and Dean Ellison, Rankin called Ann on May 17, 2013, and told her another sexual assault allegation against Sonoiki had come to light and -- in Sonoiki's words -- Rankin "pressure[d]" Ann to file a formal complaint.

The third complainant was Betty. She had shared an apartment with Sonoiki during their 2012 summer internships in New York City. At the beginning of that summer, they'd started a sexual relationship which lasted until they returned to campus in the fall. In Betty's complaint submitted the week after graduation, she alleged three to five of their initial sexual encounters had not been consensual.⁴ With three complaints in hand, Harvard's adjudicatory wheels started cranking as we next describe.

BHarvard's Adjudicatory Process for Alleged Student Misconduct

Harvard's Faculty of Arts and Sciences ("FAS") created the Administrative Board (aka the "Ad Board" or "Board") in 1890 to process student disciplinary complaints, including allegations of academic dishonesty, disruptive conduct, violation of rules about the use of alcohol, and sexual harassment. The Ad Board is composed of approximately thirty members, including administrative deans, resident deans, and senior members of the faculty. The FAS also tasked the Ad Board with adjudicating complaints of sexual misconduct using the Ad Board's usual disciplinary procedures.⁵ Documents attached to Sonoiki's complaint included detailed (though, as we'll get into below, not always entirely consistent) explanations of these disciplinary procedures, all of which were part of the 2012-2013 Student Handbook (collectively, "Ad Board Procedures").⁶ These documents identified three phases of a "peer dispute case" -- an Initial Review, Further Investigation, and Findings -- and, for each phase, spelled out the Ad Board's general sequence of events for adjudicating complaints. The summary below relies primarily on the Student Information Form but pulls in some details and descriptions from the Ad Board's General Regulations, the Ad Board's General Information on Disciplinary Cases, and the Ad Board's flow chart depicting the general process for a case.

1. Initial Review

During the relevant timeframe, an Initial Review began when a complaining student submitted to the Secretary of the Ad Board a "detailed written statement summarizing [the student's] allegations."⁷ Once received, the Secretary notified the accused student⁸ and the Dean of Harvard College (who served as the Ad Board's Chair) that an accusation had been lodged. The Secretary then met with the accused student to verbally "outline" the accusation, the disciplinary process, and the attendant confidentiality policies. Also included in that first meeting was the student's "resident dean" (mentioned throughout the Ad Board Procedures but whose role was neither defined nor explained in the record before us). Commensurately, the Ad Board Chair did a couple of things. First, the Chair appointed a subcommittee of Ad Board members (usually "two or three people") and second, "refer[red] the matter to" a fact finder to review and investigate the allegations. This fact finder was usually "a professional from outside the University" and was "ordinarily an independent consultant with conflict resolution experience" (but was not a member of the Ad Board).

The process called for both the complainant and the accused to choose a member of the Ad Board to serve as his or her "Board Rep" throughout the adjudicative proceedings. The students could -- but were not obligated to -- choose their "resident dean" to serve in this capacity. The Board Rep's role was to represent the student to the subcommittee and to the full Ad Board as well as be a "liaison" who ensured the "student's ‘voice’ [wa]s heard." In fulfilling this role, the Board Rep would: "be present at all meetings," "speak on [the student's] behalf," "make certain that [the student was] kept informed throughout the process," and "participate[ ] in deliberations about [the] case." But the Board Rep "w[ould] not advocate for [the student]."

In addition to a Board Rep, each student could choose a "personal advis[o]r" for support and advice throughout the process. The personal advisor had to be an "officer of the University affiliated with the [FAS]" but could not be a family member or an undergraduate student. The advisor had "access to all case information [and could] attend [investigative] interviews."

Once the Board Rep and personal advisor were in place, the Initial Review proceeded. The accused was tasked with preparing for the Ad Board Secretary a written statement responding to the allegations previously communicated to him. Before submitting the statement, the student was "encouraged to share a draft" of the response with their Board Rep for feedback about the "style, organization, length, and clarity, while also anticipating questions [the response] may raise for the Board." Once submitted, both the accused and the complainant could read each other's formal written statement and further respond in writing to the Ad Board Secretary. All statements were then...