United States Court of Appeals For the First Circuit

No. 20-1689

DAMILARE SONOIKI,

Plaintiff, Appellant,

v.

HARVARD UNIVERSITY; HARVARD UNIVERSITY BOARD OF OVERSEERS; THE PRESIDENT AND FELLOWS OF HARVARD COLLEGE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Thompson, Howard, and Gelpí, Circuit Judges.

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.

June 14, 2022 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.

- 2 - 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,

(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.,

(1st Cir. 2012).

A

Sexual 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

1Federal Rule of Civil Procedure 12(b)(6) identifies "failure to state a claim upon which relief can be granted" as one of the defenses to a complaint available to a defendant. 2 Sonoiki used a pseudonym for each woman in his complaint and we carry on with the assigned names here.

- 3 - 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

3 "Title IX of the Education Amendments of 1972 is a federal statute prohibiting discrimination on the basis of sex in 'any education program or activity receiving Federal financial assistance.'" Taite v. Bridgewater State Univ., Bd. of Trs.,

(1st Cir. 2021) (quoting

(a)). Sexual harassment and assault "can constitute discrimination on the basis of sex under Title IX," Doe v. Brown Univ.,

(1st Cir. 2018) (quoting Gebser v. Lago Vista Indep. Sch. Dist.,

(1998)), though "the 'discrimination' that Title IX prohibits is not the acts of sexual assault or sexual harassment in and of themselves, but rather the differential treatment by a funding recipient of persons of a particular sex who are taking part or trying to take part in its educational program or activity but are suffering acts of sexual harassment or assault that undermine their educational experience," id. at 132.

- 4 - 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

- 5 - encounters had not been consensual.4 With three complaints in

hand, Harvard's adjudicatory wheels started cranking as we next

describe.

B

Harvard'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

4 Betty may have learned from Cindy that Cindy and another woman or two were filing complaints against Sonoiki, but the allegations are not crystal clear on this point. Sonoiki alleged Cindy "emailed [Sonoiki's] ex-girlfriend and encouraged her to join the Title IX process against [him]" and that "two other women were reporting . . . and pressured [his] ex-girlfriend to get involved . . . ." The "ex-girlfriend" to which the complaint refers may or may not be Betty. There is an allegation that Cindy and Betty were friends though, so we can reasonably infer Sonoiki is talking about Betty.

5 The FAS's Policy Statement on Rape, Sexual Assault, and Other Sexual Misconduct alerts students that "[c]omplaints of sexual misconduct may be filed with the College according to the procedures of the Administrative Board" and that the school has a set disciplinary procedure "when an allegation of sexual misconduct is made against a student at Harvard College."

- 6 - 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.

6The parties agree that the 2012-2013 Student Handbook included the policy statements and Ad Board Procedures documents Sonoiki attached to his complaint. These documents include:

• FAS's Resolution on Rights and Responsibilities • General Regulations regarding Harassment • FAS's Policy Statement on Rape, Sexual Assault, and Other Sexual Misconduct • General Regulations regarding the Ad Board • Ad Board's "Information for students facing allegations in a peer dispute case" (we'll refer to this as the "Student Information Form") • Ad Board's "General Information on Disciplinary Cases" • Ad Board's "Disciplinary Process" flowchart "for allegations involving a peer dispute" • Ad Board's "Reconsideration and appeals" statement and flowchart • FAS's "Rules of Faculty Procedure"

- 7 - 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

7As mentioned above, in 2013, Dean Ellison was the Secretary of the Board. 8The accused student was not permitted to review the complainant's written accusation at this time.

- 8 - 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

- 9 - 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 forwarded to the fact finder

and subcommittee which provided each student with an opportunity

to individually meet with them to discuss the allegations and to

answer questions.

The fact finder's next job was to evaluate the

information gathered from the students and provide an assessment

of the allegations to the subcommittee. Together, the subcommittee

and fact finder gave the Ad Board a recommendation of whether the

school should issue a "charge" against the accused. But before a

recommendation was sent to the full Ad Board for consideration,

the complainant and the accused were given an opportunity to

further respond to it.

Upon receipt of a recommendation and all investigative

materials gathered during the Initial Review, the full Ad Board

made a determination as to whether a charge -- specifically defined

as "the decision by the Board to pursue a case against the

- 10 - [accused]" -- should issue. If yes (as happened here) phase two

of Harvard's disciplinary process got underway.

2. Further Investigation

Resumption of the investigation began with supplementary

evidence gathering. The fact finder and subcommittee conducted

additional interviews with the complainant and accused as well as

with witnesses, if any. The further probing ended with the

delivery of a written disciplinary case report ("DCR") from the

subcommittee to the full Ad Board. This comprehensive summary of

the investigation included all the statements and documents

collected during the investigation and could also include a

recommended outcome for disciplinary action. This DCR got sent to

the complainant and to the accused prior to a full Ad Board

meeting.9 Before commencement of that meeting, each student could

communicate a written response to the DCR through their Board Rep.

During the Ad Board's deliberations, members discussed the DCR and

written responses from the students, if any, and moved (as happened

here) to phase three of the process.

3. Findings Phase

In the third and final "Findings" phase, the Ad Board

members decided whether they were "sufficiently persuaded" that

9The DCR may disguise the identity of a complainant and witnesses by blacking out some details and substituting names, but the record before us neither shows nor tells us whether the subcommittee took this step.

- 11 - the accused had violated the rules of student conduct as charged.

Though present during the deliberations, neither the Board Reps,

nor the resident deans for the complainant and the accused, nor

the fact finder, voted on the outcome. If the Ad Board was

sufficiently persuaded, it then determined what disciplinary

consequence to impose (ranging from a formal admonishment to

dismissal or expulsion from the school). Each student learned

through their Board Rep the Ad Board's decision.

An aggrieved student found warranting a disciplinary

sanction of either a requirement to withdraw or probation for more

than one term had additional appellate rights as spelled out in

the Ad Board Procedures. The student could, in writing, request

reconsideration and the Faculty Council (a separate administrative

body composed of the Dean of the FAS and eighteen faculty members

which meets monthly) would entertain it as follows. If filed, the

Ad Board Chair and the student could file further written

responses. Once the record was supplemented, all case materials

got forwarded to the "docket committee" for its consideration.10

If the docket committee determined the "case merit[ed] an appeal"

all the materials were then forwarded to the Faculty Council, which

The docket committee is a subcommittee of three members of 10

the Faculty Council tasked with organizing the order of business at the Faculty Council's monthly meetings.

- 12 - reviewed, discussed, and adjudicated the appeal. The Secretary of

the Faculty notified the appealing student of the outcome.

C

Ad Board Proceedings for the Complaints vs. Sonoiki11

With Harvard's disciplinary procedure in mind, we return

to Sonoiki's tale. On May 17, 2013, after Dean Ellison's meeting

with Cindy, Ellison made Sonoiki aware of some informal complaints

of sexual assault leveled against him and "warned" him they would

speak again if the status of the complaints changed prior to the

May 30 graduation day. On the 29th, Sonoiki, as noted earlier,

delivered his speech to his classmates and their families as the

chosen "male Harvard Orator" and, a day later, participated in the

graduation ceremony. However, Harvard awarded him neither a

diploma nor an undergraduate degree that day (or ever). Instead,

Harvard's disciplinary process went into full throttle the

following month. Sonoiki and Dean Ellison met again on June 3,

this time to discuss the complaints submitted by Cindy and Ann

which by then had become formal. Sonoiki's resident dean was not

present at the meeting. A week later, after Betty submitted the

11 Because Sonoiki's claims in this case hew closely to the Ad Board process as he experienced it and are not actually about the details of his sexual encounters with each woman and whether each was consensual, we focus this part of our recitation on the progression of the complaints through the Ad Board adjudication process and not on the content of the written statements submitted at each step of the process.

- 13 - third formal complaint, Sonoiki was never summoned to Dean

Ellison's office to discuss it.

The Ad Board subcommittee12 which had been appointed to

review all three complaints interviewed Sonoiki, Ann, Betty, and

Cindy. Sonoiki chose Laura Johnson, the Allston Burr Resident

Dean for Currier House, to serve as his Board Rep and she attended

each interview.13 There is no indication he opted to have a

personal advisor in addition to his Board Rep.

Following the subcommittee's supplementary

investigation, three things happened on June 25: the subcommittee

recommended the Ad Board issue three charges of sexual misconduct

against Sonoiki, he promptly responded (though we don't know

whether in writing or through other means), and the full Ad Board

voted to issue all three charges. Sonoiki was not allowed to

attend the deliberations, nor was anyone present to advocate on

his behalf. Thereafter, the subcommittee conducted its second-

tier additional investigation of each charge simultaneously. It

accepted written statements from witnesses which included Rankin,

who, in a dual role, wrote on behalf of Ann and Cindy while also

12 Sonoiki's complaint doesn't differentiate between the subcommittee and fact finder. Presumably he is referring to both. 13 The record does not reveal whether Johnson was Sonoiki's resident dean or whether he was a member of Currier House. Betty and Cindy had the same Board Rep (Laura Brandt) and Ann chose Lisa Boes as her Board Rep. All three women chose Sarah Rankin as their personal advisor.

- 14 - serving as each complainant's personal advisor. Betty and Cindy

served as witnesses for each other's allegations.

In November 2013, the subcommittee submitted three DCRs,

each recommending Harvard require Sonoiki to withdraw from the

school and officially dismiss him. After Sonoiki responded in

writing, the full Ad Board met that same month and voted to adopt

the subcommittee's recommendations. Though Sonoiki appealed to

the Faculty Council in May 2014, Harvard dismissed him in December

2014.

D

District Court Proceedings

Sonoiki filed a four-count complaint against Harvard

University, the Harvard University Board of Overseers, and the

President and Fellows of Harvard College (collectively,

"Harvard"), claiming the Ad Board's adjudication of the complaints

of student misconduct against him materially breached the contract

governing their student-university relationship in multiple ways,

including, inter alia:

• impermissibly withholding his degree after Harvard no longer had jurisdiction to adjudicate disciplinary complaints against him, • using an incomprehensible standard of review, • depriving him of fundamental fairness throughout the adjudicatory process, and • denying an effective process for appeals

(count 1). Sonoiki also claimed that Harvard denied him the basic

level of fairness owed to him (count 2), Harvard breached the

- 15 - implied promise of good faith and fair dealing (count 3), and that

Harvard caused him harm when he relied to his detriment on

Harvard's promises (the complaint calls this count "Estoppel and

Reliance") (count 4).

Harvard responded by filing a Rule 12(b)(6) motion to

dismiss. According to Harvard, rather than plausibly state claims

of contract breach arising from Harvard's adjudication of the three

sexual assault complaints, the allegations set forth in Sonoiki's

complaint about the Ad Board's adjudicatory processes indisputably

demonstrated Harvard's rigid consistency with the process

described in the Ad Board Procedures, and further evidenced

Harvard's legal alignment with the components of basic fairness

identified in Massachusetts case law.14 Persuaded by Harvard's

contentions, the district court granted Harvard's motion to

dismiss all four counts.15 It concluded Sonoiki's allegations

about the ways in which he claimed Harvard breached the contract

were not based on "reasonable expectations" and did not deny him

"basic fairness" (legal concepts that go along with breach of

contract cases involving student disciplinary matters which we'll

14Harvard has not advanced an argument here or below that, should the court find Harvard breached its contract with Sonoiki, he has not demonstrated damages. 15 Sonoiki challenged Harvard's jurisdiction to impose disciplinary sanctions against him but the district court concluded Harvard properly exercised jurisdiction over him and the complaints.

- 16 - discuss momentarily). As to Sonoiki's other claims, the district

court found them likewise implausible.

Before us on a timely appeal, Sonoiki argues the district

court got it all wrong.

II

STANDARD OF REVIEW

We review the dismissal of a complaint de novo, taking

the factual allegations in the complaint and the inferences

reasonably drawn from the complaint as true to determine whether

the plaintiff has plausibly stated a claim upon which relief can

be granted. Zell,

; Fed. R. Civ. P. 12(b)(6). The

court approaches the complaint as follows: it "isolate[s] and

ignore[s] statements in the complaint that simply offer legal

labels and conclusions or merely rehash cause-of-action elements,"

then "take[s] the complaint's well-pled (i.e., non-conclusory,

non-speculative) facts as true, drawing all reasonable inferences

in the pleader's favor, and see[s] if they plausibly narrate a

claim for relief." Zell,

(quoting Zenon v. Guzman,

(1st Cir. 2019)). "Plausible, of course,

means something more than merely possible, and gauging a pleaded

situation's plausibility is a context-specific job that compels us

to draw on our judicial experience and common sense."

(quoting

Schatz v. Republican State Leadership Comm.,

(1st

Cir. 2012)).

- 17 - III

OUR TAKE

Sonoiki challenges the dismissal of each count in his

complaint but he focuses the bulk of his argument energy on his

breach of contract claim, first arguing that the Ad Board

Procedures contract is ambiguous because the language provides

inconsistent rules about when Harvard will withhold a degree,

second that the "sufficiently persuaded" standard of proof is

ambiguous and so vague and incomprehensible as to be unenforceable,

and third that he adequately pled Harvard failed to meet several

of his reasonable expectations. With respect to his other three

counts, he asserts that several aspects of the Ad Board's

adjudication of the three complaints denied him a fair proceeding

as promised by the Ad Board Procedures, that his claim about the

breach of the implied covenant should be revived alongside the

breach of contract claim, and that his "estoppel and reliance"

claim should be revived as an alternative theory of liability. We

kick off our discussion by describing the contract principles in

play in this case, including the legal framework that

Massachusetts' courts have developed (and that this court has

previously applied) for assessing the merits of a student's breach

of contract claim against his or her educational institution. We

will then discuss Sonoiki's arguments about why his claims should

have survived Harvard's motion to dismiss, starting with his breach

- 18 - of contract claim and then working through his other three counts,

laying the legal framework for each of these other counts as we

go.

A

Breach of Contract

1. Basic Legal Framework

Neither party disputes that Harvard's 2012-2013 Student

Handbook was a binding contract between Harvard and its students

or that Massachusetts contract principles apply, so we follow their

lead and assume the Ad Board Procedures is a binding contract

governed by Massachusetts law. See Doe v. Trs. of Bos. Coll. (BC

I),

, 80 & n.4, 94 (1st Cir. 2018) (applying

Massachusetts law and assuming a valid contract bound the parties

when neither party disputed this point). "A court interpreting a

contract must first assess whether the contract is ambiguous,"

Farmers Ins. Exch. v. RNK, Inc.,

(1st Cir. 2011)

(citing Bank v. Thermo Elemental Inc.,

, 907 (Mass.

2008)), "a question of law decided de novo by the reviewing court,"

Helfman v. Ne. Univ.,

, 777 (Mass. 2020). "Language

is ambiguous 'only if it is susceptible of more than one meaning

and reasonably intelligent persons would differ as to which meaning

is the proper one.'" Lass,

(quoting Gemini Invs.

Inc. v. AmeriPark, Inc.,

(1st Cir. 2011) (citing

Massachusetts cases)). When we consider "whether a contract is

- 19 - ambiguous, we read the agreement 'in a reasonable and practical

way, consistent with its language, background, and purpose.'"

(quoting Bukuras v. Mueller Group, LLC,

(1st

Cir. 2010) (citing Massachusetts law)). "In interpreting

contractual language, we consider the contract as a whole. Its

meaning cannot be delineated by isolating words and interpreting

them as though they stood alone." BC I,

(quoting

Farmers Ins. Exch.,

). A contradiction between two

contract terms or between multiple documents that comprise one

overarching contract can lead to ambiguity that can't be resolved

on a 12(b)(6) motion. See Lass,

(reinstating

a breach of contract claim because an ambiguity in contract

language meant the plaintiff's construction of the language was

not properly deemed unreasonable at the motion to dismiss stage).

When a case involves breach of contract claims between

a student and a private academic institution, this court, following

Massachusetts' lead, approaches the claims by examining "the terms

of the contract established between the college and the student

and ask[ing] whether the reasonable expectations of the parties

have been met." Doe v. Trs. of Bos. Coll. (BC II),

(1st Cir. 2019) (first citing Schaer v. Brandeis Univ.,

(Mass. 2000) and then citing Cloud v. Trs. of Bos.

Univ.,

(1st Cir. 1983)); see also Walker v.

President & Fellows of Harv. Coll.,

(1st Cir.

- 20 - 2016). When applying this test, the court queries what the school

"should reasonably expect" the student to understand from the

language of the contract. BC I,

(quoting Walker,

). In claims involving contract breaches based on

purported faulty student disciplinary proceedings, we compare the

procedures used to adjudicate the disciplinary complaint with the

language of the contract spelling out those procedures to determine

whether, given the student's reasonable expectations, there was a

gap between what the school promised and what the school delivered.

(citing Cloud,

). "If the facts show that

the university has 'failed to meet the student's reasonable

expectations[,]' the university has committed a breach."

(quoting Walker,

) (cleaned up).

With the legal framework set out, we begin our discussion

of Sonoiki's specific arguments about his breach of contract claim.

2. When Harvard Would Withhold a Degree

According to Sonoiki, Harvard breached the Ad Board

Procedures contract when it withheld his degree pending the

adjudication of the three complaints because the contract had

inconsistent and contradictory statements about when Harvard would

be permitted to withhold a degree, i.e., and importantly here,

either as soon as a disciplinary case began or, as Sonoiki argues,

only once a disciplinary charge had been issued. Sonoiki contends

- 21 - this contractual inconsistency created an ambiguity which should

have precluded the dismissal of his complaint.

Harvard insists the Ad Board Procedures are clear. It

will not issue a degree to a student with a pending but not yet

investigated complaint of sexual assault, emphasizing the

definition in the contract of the "start" of a "case" as being

"with an allegation of student misconduct in the form of a

complaint or report." Harvard argues that it was under no

obligation to give Sonoiki a degree simply because the Ad Board

had not yet decided to issue a charge. As Harvard reasons, the

contract may have explicitly stated when a degree would be withheld

but not the universe of circumstances in which a degree would

issue.16

The district court concluded Sonoiki had not plausibly

alleged a breach of contract claim on this point because the Ad

Board Procedures stated a degree would not be awarded to a student

with a pending disciplinary case and the contract did not promise

to award a degree to every student against whom a formal

disciplinary charge was not pending. At this early stage, "drawing

all reasonable inferences" in Sonoiki's favor and considering the

Based solely upon a review of the documents appended to the 16

complaint, viewed in the light most favorable to Sonoiki, we cannot say that all students would reasonably understand or expect that Harvard might withhold their degree once they had completed all of the required course requirements and were in good financial standing with no disciplinary matters pending.

- 22 - "'implications from documents' attached to or fairly 'incorporated

into the complaint,'" we disagree with the district court's

conclusion that Sonoiki's allegations on this point were

implausible. Schatz,

(quoting Ashcroft v. Iqbal,

(2009)).

The General Regulations stated "[a] degree w[ould] not

be granted to a student who [wa]s not in good standing or against

whom a disciplinary charge [wa]s pending." (Emphasis ours.) The

Ad Board's disciplinary process flow chart specifically defined a

"charge" as "the decision by the Board to pursue a case against

the [accused]" and the Student Information Form discussed a

"charge" as a discretionary decision by the Ad Board after the

initial investigation was complete. At the same time, under the

last subheader of the Student Information Form's Finding section

(under "Conclusion of the Case"), the contract stated that "[a]

student cannot receive a degree before a pending disciplinary case

is resolved" (emphasis is again ours). The Student Information

Form's introduction defined a "case" as beginning with an

allegation "in the form of a complaint or report," triggering the

Initial Review but "may or may not end with the College issuing a

charge."17 "Case" and "charge" are clearly identified as distinct

No one is arguing that an open disciplinary case alone 17

makes a student not in good standing and there is no indication in the record that Sonoiki was not otherwise in good standing on graduation day.

- 23 - concepts within the contract documents, marking different stages

of the process, and are not, therefore, interchangeable. Yet, the

Ad Board Procedures used these two terms interchangeably.

In addition, under the Student Information Form's

Initial Phase "Charge Decision" subheader, the contract stated

that, "[i]n all cases, you and the complainant will be informed by

your respective Board Representatives whether the Board issued a

charge," whereas under the "Conclusion of the Case" subheader in

the Finding section the contract stated "[i]n cases other than

those involving allegations of sexual assault or physical

violence, the complainant will not be informed of the Board's

decision." These conflicting provisions about notice to the

complainant suggests that the pending disciplinary "case" referred

to in the Finding section is the "case" that proceeds after a

charge has been issued, potentially not intended to mean the same

as the "case" initiated when an allegation of misconduct is made.

In our view, despite the explicit definitions given to

"case" and "charge," the use of each throughout the Ad Board

Procedures renders the required status of an accusation for

triggering Harvard's act of withholding a degree ambiguous. See

Lass,

(stating ambiguity occurs when a contract

"is susceptible of more than one meaning" with "reasonably

intelligent persons [able to] differ as to which meaning is the

proper one" (quoting Gemini Invs. Inc.,

)). Thus,

- 24 - we agree with Sonoiki that the Ad Board could be reasonably viewed

as inconsistently defining the circumstances under which Harvard

would withhold a degree.

At the time of his graduation day (May 30) two complaints

had been filed but no charges had issued per the contract's

definition of "charge." Sonoiki alleges the charges against him

didn't issue until June 25, 2013. Because the contractual language

about when Harvard will withhold a degree was ambiguous on its

face and because we need not resolve ambiguities in contract

language at the motion to dismiss stage, see Lass,

, we conclude Sonoiki plausibly alleged he reasonably expected

his degree would issue at the graduation ceremony and therefore

has plausibly alleged Harvard breached the contract between them

when it withheld his degree before issuing any disciplinary

charges.18

Sonoiki makes three other arguments relevant to this 18

degree-withholding issue that touch upon jurisdictional claims that we do not address at this time because the Ad Board Procedures' internal ambiguity about when Harvard will withhold a degree needs to be resolved first. First, he says he had a reasonable expectation he would receive his degree on graduation day and then be outside the Ad Board's jurisdiction because, on that day, he had completed all of his academic requirements, was in good standing by the contract's definition, and there were no disciplinary charges pending against him. He also points out that he participated in graduation activities after two of the complaints landed on the Ad Board's desk, including as a featured speaker at one event and with all of the other graduating students at the commencement ceremony, even though the contract states that students with disciplinary cases pending are "ordinarily" not allowed to "participate in commencement or related activities,"

- 25 - 3. Ad Board Must be "Sufficiently Persuaded"

Sonoiki alleged in his complaint that the "sufficiently

persuaded" standard utilized by the Ad Board when deciding whether

an accused student has violated the school's rules is "undefined,"

"insufficient and unrecognizable." Failing to provide a

definition for this standard is one of the many ways he alleges

Harvard breached the contract and subjected him to an "arbitrary

and capricious disciplinary process." In its motion to dismiss,

Harvard challenged this allegation, primarily asserting the

standard was just fine because it was "not materially different"

than the preponderance of the evidence standard usually applied in

civil litigation.

and Harvard could have issued charges sua sponte prior to the commencement activities.

Second, Sonoiki contends Harvard never had jurisdiction to adjudicate the third complaint, filed by Betty on June 4, because he should have had his degree by then and, according to him, this would have eliminated Harvard's disciplinary jurisdiction over him altogether. As he points out, the district court did not address this argument in its decision, focusing exclusively instead on Ann and Cindy's cases, which were "initiated" and "unresolved at the time of graduation." Because we are holding that Sonoiki adequately pled a breach of contract claim based on Harvard withholding his degree at graduation, we will not address this argument in the first instance, but note the argument can be litigated on remand. See Ortiz-Bonilla v. Federación de Ajedrez de P.R., Inc.,

(1st Cir. 2013) (remanding an issue for further litigation).

Third, he argues for the application of various other principles of contract interpretation, none of which we need discuss given our holding on his primary argument about Harvard breaching the contract by withholding his degree.

- 26 - In his opposition to Harvard's dismissal motion, Sonoiki

challenged the similarity between the two standards of review.

And he further insisted that Harvard was obligated to use, but did

not use, a preponderance of the evidence standard. In support of

this assertion, Sonoiki relied on a document issued by the

Department of Education's ("DOE") Office of Civil Rights ("OCR")

referred to as the Dear Colleague Letter ("DCL"), issued April 4,

2011, stating that OCR expected schools to apply the preponderance

standard to its investigations of sexual misconduct complaints.19

Russlynn Ali, Office for Civil Rights, U.S. Dep't of Educ., Dear

Colleague Letter: Sexual Violence (Apr. 4, 2011),

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-

201104.pdf. Not so, said Harvard in its response to Sonoiki's

opposition to its dismissal motion -- because "the fact that

Harvard wanted to avoid legalese in a pedagogical setting does not

mean there is any material difference between a preponderance and

'sufficiently persuaded' standard." And, in any event, Sonoiki

had failed to explain why "sufficiently persuaded" was difficult

to understand in the first place.

The district court concluded this part of Sonoiki's

claim got him nowhere, commenting that Harvard was not required to

19 This DCL was subsequently rescinded in September 2017. Candice Jackson, Office of Civil Rights, U.S. Dep't of Educ., Dear Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.

- 27 - apply any legal standard to the disciplinary process it designed

and, furthermore, "the Complaint does not contain any facts that

indicate that [the sufficiently persuaded standard] was not the

standard that was applied by the Ad Board in resolving the

complaints brought against Sonoiki."

Sonoiki's argument is teed up for our review because he

takes issue here with both findings of the district court. First,

Sonoiki says the court's statement about Harvard having no

obligation to apply a legal standard to its disciplinary process

is wrong, and he once again asserts the primacy of the 2011 Dear

Colleague Letter and its evidence standard requirements. Problem

with Sonoiki's argument is this: even though he urges us to accept

the standard of review he proposes, Sonoiki makes no effort to

explain how this DCL was legally binding on Harvard. As a result,

we deem this part of his challenge to the standard waived for

failure of development. See Holloway v. United States,

, 491 n.4 (1st Cir. 2017) (concluding an argument was waived

when a party failed to provide any legal support for its argument).

Sonoiki next addresses the district court's finding that

Harvard had, in fact, applied its sufficiently persuaded standard,

contending he cannot prove Harvard did not follow the standard

because the term is not defined in any of the contractual documents

binding them. His brief labels the standard "incomprehensible,"

"ambiguous," "fatally vague," and thus unenforceable. We take his

- 28 - argument to mean that, without a definition, it is impossible for

him to prove a negative.20 To support his contention that the

standard is "ambiguous" with "no readily ascertainable meaning"

Sonoiki relies on an article published in The Harvard Crimson in

2012 which highlighted the standard as problematic because

students did not understand what it meant. See Mercer R. Cook &

Rebecca D. Robbins, For Ad Board, Burdened Proof?, The Harv.

Crimson (Oct. 25, 2012),

https://www.thecrimson.com/article/2012/10/25/ad-board-burden-

process/.

Harvard insists here as it did below that the standard's

meaning is, in fact, clear on its face: to be persuaded one must

believe a proposition to be more likely true than not true.

Sonoiki counters that Harvard's attempt to show the sufficiently

persuaded standard is equivalent to the preponderance of the

evidence standard must fail because, as he sees it, the civil

That being said, we see a different obstacle to his ability 20

to plausibly allege, never mind prove, Harvard did not apply this standard: in each DCR the subcommittee submitted to the Ad Board after the conclusion of the investigations, the subcommittee explicitly declared that it was "sufficiently persuaded" Sonoiki had engaged in sexual acts with each of the women without each woman's consent. Clearly then, the subcommittee understood and applied the standard articulated in the Ad Board Procedures contract. Whether the full Ad Board also explicitly articulated this standard in its final decision, on the record before us we do not know. Nonetheless, we agree with the district court that Sonoiki hasn't alleged in his complaint that the Ad Board failed to apply this standard.

- 29 - burden of proof standard represents the degree to which one must

be persuaded but "[t]here is no objectively measurable level by

which someone believes something 'enough'" aka "sufficiently," and

so to be more likely than not cannot be the same as "sufficient."21

From our vantage, the distinction the plaintiff is

trying to drive home is not discernable to us; despite perhaps a

clunky choice of words the standard is not actually unintelligible

or fatally vague -- indeed it seems to us a perhaps lay person

rephrasing of the preponderance of the evidence standard. At any

rate, as we stated before, like the district court, we agree that

Sonoiki did not allege in his complaint that Harvard deviated from

the explicit standard it articulated in the Ad Board Procedures.

As a result, Sonoiki has not plausibly alleged Harvard breached

its contractual obligations to him by either using or not using

the standard it identified in the contract.

4. Other Reasonable Expectations

Sonoiki also argues his breach of contract claim should

have survived dismissal because he "sufficiently pled that Harvard

failed to meet his reasonable expectations" -- expectations which

he says were reasonably based on the contract's "express promises,

intentional silence, and fairness guarantees." Harvard responds

21 Sonoiki uses the online Cambridge English Dictionary's definition of "sufficiently," which is "enough." https://dictionary.cambridge.org/dictionary/english/sufficiently

- 30 - that the Ad Board Procedures "either expressly foreclose or

implicitly refute" the procedures Sonoiki identified as reasonably

expected, "defeat[ing] his [breach of contract] claim" because his

expectations were not "ground[ed]" in the language of the

contract.22 These arguments about the specific expectations

Sonoiki claims were reasonable but not met reveal a tension in the

application of the reasonable expectations framework under

Massachusetts law, leading us to consider whether a student can

have a reasonable expectation about what a contract guarantees if

it cannot be found in the express language of the governing

contract.

Harvard asserts the case law is replete with examples of

courts rejecting claims about the violation of reasonable

expectations when the student cannot identify a specific provision

in the governing contract promising the piece of the process at

issue. Our review of the case law, however, reveals this assertion

doesn't quite paint the full picture. True, we once tossed aside

an argument about whether a plaintiff had a reasonable expectation

to a part of a process to which the plaintiff claimed he'd been

deprived (live cross-examination of a witness) because "[n]othing

The district court evidently sided with Harvard because its 22

discussion of Sonoiki's breach of contract claim focused on whether the Ad Board Procedures explicitly provided the parts of the process Sonoiki claimed he had reasonably expected but not received.

- 31 - in the contract provide[d] any basis for th[is] expectation." BC

II,

(concluding, on the school's appeal from a

granted motion for a preliminary injunction, that the student

suspended for sexual misconduct had not shown he was likely to

succeed on the merits of his breach of contract claim).

However, when reviewing a contract claim at the motion

to dismiss stage, the reasonable expectation standard is focused

on the student's interpretation of the contract's terms, assessing

"what meaning the party making the manifestation, the university,

should reasonably expect the other party to give it." Schaer,

(quoting Cloud,

). This standard

allows for a student's reasonable expectations to be different

from the interpretation the university places on the same terms.

Moreover, a student's expectation can be reasonable even if the

precise expectation is not stated explicitly in the contract's

language but, instead, when the student's expectation, viewed

objectively alongside the express terms of the contract, is based

on the student's fair interpretation of the contract's provisions.

See id.; see also Doe v. Amherst Coll.,

, 217-

18 (D. Mass. 2017) (concluding the plaintiff had alleged sufficient

facts to state a plausible breach of contract claim because the

accused reasonably expected the investigative process would

include steps that could reveal exculpatory as well as inculpatory

evidence even though the contract (while promising a fair process)

- 32 - did not explicitly state the investigative process would include

an examination of both the complainant and accused's actions after

the incident at issue).

Therefore, rather than deeming an expectation not

plausible because it is not explicitly spelled out as a precise

promise in the governing document, the appropriate inquiry is

whether an alleged expectation is reasonable and therefore a

plausible claim because the reasonable expectation is based on the

student's feasible interpretation of the contract language. We

are also mindful that the procedural posture of Sonoiki's case

before us means we both accept the factual allegations Sonoiki

made as true and "indulge every reasonable inference hospitable to

his case." Schaer,

(quoting Judge v. Lowell,

(1st Cir. 1988) (cleaned up)); see also Amherst

Coll.,

(noting the court would "make any

reasonable inferences favorable to [the plaintiff's] position both

with respect to determining what a student may have reasonably

expected terms in the [contract] to mean and whether the [school]

failed to meet those expectations").

Mindful of how the reasonable expectation doctrine

applies to contracts between universities and students, we explore

in some detail Sonoiki's specific arguments that we find have merit

about how he plausibly alleged Harvard breached its contract with

him, asking ourselves if, indulging all inferences in his favor,

- 33 - Sonoiki's allegations stated both that his expectations were

reasonable and not met.

a. Allegations about Board Rep Johnson

The Ad Board Procedures' Student Information Form

described the role of the Board Rep in detail. This "liaison" to

the Ad Board would:

• "represent" the student to both the subcommittee and the full Ad Board, • be "present at all meetings and w[ould] make certain that [the student was] kept informed throughout the process," • "address the subcommittee" during the student's interview "if there [we]re relevant facts . . . previously discussed" but the student did not bring up on their own, • "present to the [Ad] Board a full summary of the facts of the case in which [the student was] involved," • "not advocate for [the student]," • "w[ould] make certain that [the student's] perspective [wa]s clearly presented," • "speak on [the student's] behalf and participate[] in deliberations about [the student's] case."

In addition, students were encouraged to be "open and honest" with

their Board Rep. The General Information on Disciplinary Cases

part of the Ad Board Procedures had a consistent description,

emphasizing that the Board Rep's role was to "mak[e] certain the

student's 'voice' [wa]s heard" and encouraged the accused to "work

closely with their Board Representative" to "ensure that the Board

receive[d] a full and balanced account of a case or petition."

Sonoiki advances several arguments about his reasonable

expectations centered on his Board Rep's role and conduct. He

contends that he had a reasonable expectation his Board Rep would

- 34 - "advocate on his behalf before the Ad Board" because while one

contract provision does state that the Board Rep would not advocate

for the student she represents, there are several other provisions

describing the Board Rep's role which can be fairly read as

contradicting this single blanket disclaimer. For instance, he

alleges that, once he had chosen a Board Rep, given the

descriptions of the Board Rep's role outlined in the Student

Information Form, he "believed that his communications would be

confidential." But, he says, "they were not." Continuing, he

alleges that the Ad Board Procedures "failed to inform" him that

his Board Rep "would convey all relevant communications to the Ad

Board, even if the communications were or could be harmful to the

[accused]." Finally, he alleges and argues that his Board Rep

failed to keep him informed throughout the disciplinary process

because she did not tell him the identity of each witness the

subcommittee interviewed. Harvard responds that these

expectations are not reasonable because the Student Information

Form's disclaimer of advocacy is unambiguous and in the absence of

express promises to maintain confidentiality or to provide

information about witness identities this court should reject

Sonoiki's positions.23

23The district court agreed with Harvard, concluding Sonoiki did not have a reasonable expectation about either his Board Rep keeping his communications confidential or disclosing all of the

- 35 - This is our take. While the Ad Board Procedures

disavowed any advocacy role of the Board Rep in one phrase (which

Sonoiki acknowledges in his complaint), the various descriptions

of the Board Rep's role in relation to the student -- such as

represent, speak on behalf of, clearly present the student's

perspective -- seemingly contradict this one disclamatory phrase

and do sensibly suggest some level of advocacy from the Board Rep

would be reasonably expected by the student. Indeed, the Oxford

English Dictionary defines the word "represent" in part like this:

"to act or serve as the spokesperson or advocate of."24 This

expectation can be viewed as particularly reasonable when no other

person -- not the student or a lawyer -- could be present at the

full Ad Board adjudicatory meeting to advocate firsthand for the

student. Also, the many assurances of trustworthiness and the

responsibility of the Board Rep to ensure that the student's side

of the story was conveyed and heard could certainly be fairly

viewed as overriding or, at a minimum, contradicting the single

phrase that the Board Rep would "not advocate for" the student she

represented. When, as here, "an agreement's terms are inconsistent

on their face or where the phraseology can support reasonable

identities of adverse witnesses because the Ad Board Procedures did not explicitly so provide. 24 Represent, Oxford English Dictionary Online, https://www.oed.com/view/Entry/162991?rskey=hjq45D&result=2&isAd vanced=false#eid.

- 36 - difference of opinion as to the meaning of the words employed and

the obligations undertaken," the language is ambiguous. Suffolk

Constr. Co. v. Lanco Scaffolding Co.,

(Mass.

App. Ct. 1999) (quoting Fashion House, Inc. v. K mart Corp.,

(1st Cir. 1989)). And ambiguous contract language

may not be resolved in a motion to dismiss. See Lass,

. Sonoiki has therefore plausibly alleged reasonable

expectations about the role of his Board Rep and has plausibly

alleged that these expectations were violated when his Board Rep

did not live up to her role. See Amherst Coll.,

(concluding extrinsic evidence may be required to resolve

the ambiguity but breach of contract allegations were plausible on

the face of the complaint and contract document).

In addition, the contractual terms as described above

clearly and strongly encouraged Sonoiki to trust his Board Rep and

therefore Sonoiki could reasonably expect that some level of

confidentiality flowed from such a trust relationship and was thus

a part of the Board Rep's role even though this detail was not

explicitly articulated in the Ad Board Procedures. While a close

call, we also conclude that Sonoiki reasonably expected his Board

Rep to respect some confidences and plausibly alleged a breach on

the basis that his Board Rep also did not live up to this part of

her role.

- 37 - Pointing to the provision in the Ad Board Procedures

which required a student facing disciplinary charges to be kept

fully informed about what each witness said during their interview

and any information obtained from each interview, Sonoiki also

alleges and argues that his Board Rep failed to fulfill her role

because she did not provide him with the identities of all the

adverse witnesses the subcommittee interviewed. Harvard did not

address these specific allegations in its motion to dismiss but

responds to Sonoiki's argument on appeal with the retort that

Sonoiki knew the identities of some of the adverse witnesses,

seeming to imply this was sufficient to satisfy an accused's

expectations. The district court concluded Sonoiki was not

entitled to the identities of each witness because the Ad Board

Procedures did not explicitly state that an accused would receive

this information. The district court acknowledged, however, that

an accused was entitled to see the witnesses' written statements,

if any.

The Ad Board Procedures actually promise much more than

a copy of the written statements: during the Initial Review phase,

the student's Board Rep is to inform them about what each witness

says during the interviews and share any information that comes to

light from the interviews. During the Further Investigation phase,

the Board Rep is to provide the student with "copies of all

documents and other information obtained by the fact finder and

- 38 - subcommittee." Based on these requirements, it is reasonable for

a college student to infer that the identity of each witness (i.e.,

the speaker of the information that is to be conveyed to the

student) is part of the information that would be conveyed from

the Board Rep to the student. Sonoiki admitted he knew Rankin

testified as an adverse witness and he deduced two of the

complainants testified for each other, but he contends there were

other witnesses whose identities were never disclosed so he had no

way to properly defend against the accusation or to otherwise

properly respond to their testimonies.25 Because the Ad Board

Procedures tasked the Board Rep with keeping the accused student

fully informed, Sonoiki has plausibly claimed the breach of his

reasonable expectation that he would know the identities of all

testifying witnesses.

b. Allegations about Dean Ellison

The Ad Board Procedures' General Regulations plainly

stated all Ad Board actions follow the same general procedure for

the accused student, beginning with "a conversation between the

student, his or her Resident Dean, and the Secretary of the [Ad]

25As we mentioned earlier, from the record before us we cannot determine whether the DCRs issued at the conclusion of the subcommittee's investigations showed all the names of all the witnesses the subcommittee interviewed during its investigation. Sonoiki alleges he was not told the identity of each witness, and at this stage we must assume the truth of what he's alleging. See Zell,

.

- 39 - Board or his or her designee [here, Ellison], during which they

discuss the incident, the relevant College rules or standards of

conduct, and possible courses of action." In his complaint,

Sonoiki alleged Dean Ellison did not follow this process for

several reasons including because, when they met in June 2013 to

discuss Ann's and Cindy's submitted complaints, Ellison did not

advise Sonoiki he was entitled to have his resident dean present.

He also targets Ellison's failure to hold an initial meeting with

Sonoiki after Betty filed her complaint, as well as Ellison's

exertion of pressure on the three women to file their complaints

in the first place.26 On appeal, Sonoiki again brings up Ellison's

26 In his opposition to Harvard's motion to dismiss, Sonoiki argued these actions and inactions showed Ellison was biased against him (particularly Ellison's role in soliciting the complaints) and given this bias, Ellison's active involvement in the Ad Board proceedings jaundiced the overall adjudication of the complaints against him. The district court did not specifically engage with Sonoiki's factual allegations about Ellison, instead skirting them to conclude there was no contract violation based on Ellison's role because Sonoiki had not "provide[d] any factual support for his claim of bias in the disciplinary proceedings against him" and because, based upon the district court's understanding of controlling case law (citing Gorman v. Univ. of R.I.,

(1st Cir. 1988)), an administrator serving in both an administrative and adjudicative role where student discipline is concerned does not automatically indicate bias.

On appeal, Sonoiki repeats his argument from his opposition to Harvard's motion to dismiss that Ellison's "conduct is evidence of bias" -- both on the part of Ellison and in the way in which the Ad Board conducted the disciplinary process because Ellison was allowed to vote as a member of the Ad Board after playing a significant role in soliciting the complaints against Sonoiki and allegedly failing to adhere to the specific first steps of the process. The problem with this argument is that Sonoiki did not

- 40 - alleged solicitation of the complaints and his other "fail[ures]

to satisfy his affirmative duties to [Sonoiki]" as ways Harvard

breached his reasonable expectations about the adjudicatory

process.27

allege in his complaint that Ellison's conduct demonstrated bias against Sonoiki or that Ellison should not have participated in the Ad Board proceedings. While we are to draw reasonable inferences from the pleading in Sonoiki's favor, see Zell,

, our close reading of his lengthy complaint reveals his allegations of bias are made in relation to his claims of systemic racial bias and do not allow us to make the leap connecting his specific factual allegations about Ellison's conduct in his complaint to his arguments in his motion papers about administrative bias permeating the proceedings. We must conclude, therefore, that Sonoiki did not plausibly plead a breach of contract claim based on either Dean Ellison's alleged bias against him or Dean Ellison's participation in the Ad Board proceedings.

27Responding to these allegations, Harvard asserts, in a footnote, that Sonoiki's claims relying on Ellison's alleged failure to hold the initial meeting about Betty's complaint and to tell Sonoiki his resident dean could be at the initial meeting about Ann's and Cindy's complaints are time-barred. In Massachusetts, breach of contract actions must be brought within six years, see

, and Harvard, citing Melrose Hous. Auth. v. N.H. Ins. Co.,

(Mass. 1988), says any breach relating to this part of the disciplinary process accrued more than six years prior to the initiation of this lawsuit. Harvard dropped the same footnote in its motion to dismiss, but neither Sonoiki nor the district court addressed this argument. We can see why. The Ad Board Procedures describes a complete disciplinary process which doesn't end until an appeal is completed. Sonoiki points to Dean Ellison's actions (or lack thereof) as examples about how the whole process is flawed. Harvard is isolating two of the ways Sonoiki claims Harvard breached its contract with him but is not acknowledging that Sonoiki asserts a single breach of contract claim arising out of the entire adjudicatory process, resulting in his dismissal from Harvard without a degree. This process ended with the denial of Sonoiki's appeal to the Faculty Council and this denial occurred well within the statute of limitations for his breach of contract

- 41 - We examine anew Sonoiki's pleading and the Ad Board

Procedures to determine whether he has plausibly alleged Ellison's

conduct breached his reasonable expectations based on the explicit

and implicit promises in the contract. Sonoiki reasonably expected

the Ad Board to conduct the proceedings in accordance with the

procedures laid out in writing as well as in accordance with his

fair interpretation of the contractual terms. See BC I,

; Schaer,

. He alleged Ellison's conduct at

the beginning of the process (failing to tell Sonoiki the resident

dean is a part of the initial meeting and failing to hold an

initial meeting after Betty's complaint landed) breached the Ad

Board Procedures. To the extent the steps the Secretary of the Ad

Board must take or avoid in order to comply with the procedures

laid out in the Ad Board Procedures contract are ambiguous, we

reiterate that ambiguities in a contract are not to be resolved

through a motion to dismiss. See Lass,

; Amherst

Coll.,

. Therefore, at the pleadings

stage, Sonoiki's allegations, taken as true, state a plausible

breach of contract claim. See BC I,

.28

claim. Had Sonoiki filed an appeal after the Ad Board's adjudication, Harvard would likely have called the appeal unripe. 28Sonoiki also argues several other ways he says Harvard breached the Ad Board Procedures by not meeting his reasonable expectations about the adjudication process. These expectations included that Harvard would not have adjudicated the complaints filed by Ann and Betty at all because the incidents they alleged

- 42 - B

Denial of Basic Fairness

Sonoiki's denial of basic fairness claim is closely

related to his breach of contract claim; indeed, the factual

underpinnings for these two claims are the same. In his complaint,

he alleges Harvard owed him a duty under its contract to conduct

the disciplinary proceedings with basic fairness but breached this

duty and denied him basic fairness when it breached the Ad Board

Procedures contract in the ways alleged in his breach of contract

claim.29 In his arguments before us, Sonoiki asserts that, "[a]t

occurred more than a year before they submitted their complaints, that Ellison would not have pressured the three women to file a complaint in the first place, that Harvard would have adjudicated all three complaints faster but not simultaneously and using the same subcommittee and fact finder, that the DCRs would not have included credibility determinations, that his three appeals from the Ad Board decisions would not have been considered collectively, that the Ad Board would not have been an "adversary party" in his appeals from the Ad Board's final decisions, and that the proceedings would have been conducted fairly. For the reasons we explained above, Sonoiki has plausibly pled that Harvard breached some of his reasonable expectations and therefore has successfully argued that his breach of contract claim should not have been dismissed in its entirety on Harvard's motion to dismiss for failure to state a claim. We have reviewed these other arguments and determined that they have no merit. See Jeffrey v. Desmond,

(1st Cir. 1995) (acknowledging other arguments and announcing none had merit without explaining the reasoning therefor); Dep't of Revenue v. Ryan R.,

(Mass. App. Ct. 2004) (stating the arguments not addressed in the opinion had not been overlooked). 29During the motion practice below, the arguments for and against dismissal of this case sometimes addressed Sonoiki's allegations as breach of contract claims, sometimes as denial of basic fairness claims, and sometimes as both. The district court, after concluding Sonoiki had not plausibly pled a breach of

- 43 - multiple points, Harvard promised [him] a fair proceeding" (though

does not tell us where) and therefore an express promise of

fairness was part of the contract. A close review of the Ad Board

Procedures reveals fairness is mentioned four times:

(1) in the FAS Resolution on Rights and Responsibilities ("[I]t is the responsibility of all members of the academic community . . . to give full and fair hearing to reasoned expressions of grievances . . . .");

(2) in the General Regulations regarding Harassment ("The College's investigation and adjudication process is designed to be careful and fair.");

(3) in the Ad Board's General Information on Disciplinary Cases ("The procedures for resolving disciplinary cases are designed to ensure that students are given a fair opportunity to be heard."); and

(4) in the Ad Board's General Information on Disciplinary Cases ("Every effort is made to provide fair treatment of each undergraduate relative to all other undergraduates.")

Both Massachusetts and First Circuit case law in this

realm of school disciplinary proceedings show that although denial

of basic fairness is a recognized theory of recovery, the precise

contours of such a claim are yet to be clearly defined. We can,

however, distill the following: the denial of basic fairness is

closely intertwined with the breach of contract concept. When we

contract claim, also concluded Sonoiki had not plausibly pled a claim for the denial of basic fairness because Harvard had met its obligations for basic fairness by complying with the processes set forth in the Ad Board Procedures. In his appellate briefing, many of Sonoiki's arguments about the purported denial of basic fairness overlap with the reasonable expectations he argued he had plausibly alleged in his breach of contract claim.

- 44 - are evaluating a student's claim that a private school's procedures

for adjudicating a disciplinary complaint denied the student basic

fairness, we consider "whether the procedures followed were

'conducted with basic fairness,'" BC II,

(quoting

Schaer,

), meaning that, at a minimum, the school

complied with the express procedures laid out in the policies that

formed the contract, BC I,

. In this way, fairness

can in a sense be viewed as one of the reasonable expectations a

student has about the disciplinary process.

Moreover, courts have acknowledged that a school's

"independent duty to provide basic fairness" is rooted in "the

implied covenant of good faith and fair dealings imposed on every

contract by Massachusetts law." BC I,

(citing Uno

Rests., Inc. v. Bos. Kenmore Realty Corp.,

(Mass. 2004)). Although this court has noted that the implied

duty becomes "superfluous" in the face of an express promise for

fairness, BC I,

(citing Cloud,

),

this court has also clearly recognized in Massachusetts law a

denial of basic fairness claim as distinct from a breach of

contract claim, see BC I,

.

At the end of the day, however, this court defers to

"the choices of student discipline proceedings made by private

academic institutions," BC II,

, and adheres to the

principle in Massachusetts law that courts are "chary about

- 45 - interfering with academic and disciplinary decisions made by

private colleges and universities,"

(quoting Schaer,

) (cleaned up).30

Sonoiki does argue before us that the district court was

wrong to conclude Harvard had followed its articulated processes

and that "mere policy adherence" is insufficient to satisfy basic

fairness. Citing BC II, Sonoiki asserts this court has been "clear

that a school's mere policy adherence does not, in and of itself,

resolve a basic fairness cause of action," but a review of BC II

reveals this statement reads too much into what this court actually

wrote, which was simply a comment that neither party in that case

had asserted that straight adherence to the articulated policy

would in fact preclude a successful denial of basic fairness claim.

See

.

Sonoiki also argues a few specific ways he says Harvard

breached its promise to provide basic fairness. We have already

either addressed or mentioned a few of these claims (see supra

notes 25 & 27), including:

• adjudicating his case using the "sufficiently persuaded" evidentiary standard;

30Although Sonoiki has not alleged a constitutional due process violation claim, we also note (for the sake of a complete summary about what we can distill from prior cases about the denial of basic fairness theory) that, in the context of private academic institutions, we've been clear that the fairness owed is not the same as the due process required for public institutions. BC II,

.

- 46 - • adjudicating the three complaints simultaneously, using the same subcommittee to investigate each and allowing "disparate claims to reinforce one another"; • adjudicating untimely complaints filed months or years after the incidents at issue; • forcing him to rely on an administrator throughout the adjudication process while preventing him from knowing how his Board Rep translated and communicated his position during the Ad Board's consideration of and deliberation over the DCRs; and • allowing a biased administrator (Dean Ellison) to participate and vote in the proceedings.

In addition to these claims, Sonoiki says the Ad Board proceedings

lacked basic fairness because he was not allowed to hire an

attorney to serve as his personal advisor and because the Ad Board

was infected with implicit bias by not having any black male

members and by not requiring the existing members to undergo

implicit bias training. Harvard counters that Sonoiki cannot

prevail on his basic fairness claim at all because he was not

deprived of basic processes such as notice of the charges against

him or subjected to a deficient investigatory process.

In our view, Sonoiki has failed to plausibly allege his

basic fairness claim because he has not tied his arguments about

the ways he alleges he was deprived of basic fairness to what the

Ad Board Procedures actually says about fairness. That is, he has

not shown us how these allegations breached the promises of basic

fairness in the contract. Sonoiki has also not otherwise told us

whether or how the implied duty might be triggered in addition to

the contractual promises to provide fairness. We have previously

- 47 - acknowledged that "Massachusetts law permits its colleges and

universities flexibility to adopt diverse approaches to student

discipline matters . . . [and] [f]ederal courts are not free to

extend the reach of state law." BC II,

(also

stating this court defers to -- and will not interfere with --

private schools' choices about how to structure disciplinary

proceedings). For all of these reasons, we affirm the dismissal

of the denial of basic fairness count of Sonoiki's complaint.

C

Breach of the Covenant of Good Faith and Fair Dealing

Sonoiki also tries to advance a distinct count for breach

of the implied covenant of good faith and fair dealing by briefly

arguing this count should have survived along with the breach of

contract count. However, our prior discussion of his denial of

basic fairness claim clearly indicates that the denial of basic

fairness concept is rooted in the implied promise of good faith

and fair dealing, see BC I,

(citing Uno Rests.,

Inc.,

), meaning the denial of basic fairness is

the student disciplinary adjudications' version of claiming a

breach of the implied covenant of good faith and fair dealing.31

31 The district court also acknowledged this court's approach to good-faith-and-fair-dealing claims "in the academic context to be concomitant with the basic fairness analysis" and dismissed this count because it could not stand alone without the breach of contract and/or denial of basic fairness claim.

- 48 - Sonoiki does not allege a distinct factual basis for this count,

and we see no difference between this claim and his claim for the

denial of basic fairness. These two theories are therefore not

distinct claims, and we also affirm the dismissal of this count.

D

Estoppel and Reliance

Count 4 of Sonoiki's complaint alleged he had "relied to

his detriment on Harvard's express and implied promises and

representations." The district court identified this count as

essentially a claim for promissory estoppel and concluded this

count failed to state a plausible claim because the parties were

not disputing that a contract existed between them and governed

their relationship. Sonoiki argues the district court erred by

not considering this claim as an alternative liability theory. We

disagree. Pursuant to Massachusetts law, "[w]here an enforceable

contract exists, a claim for promissory estoppel will not lie."

Malden Police Patrolman's Ass'n v. Malden,

, 1064

(Mass. App. Ct. 2017); see NTV Mgmt., Inc. v. Lightship Glob.

Ventures, LLC,

, 441 n.5 (Mass. 2020) (declining to

consider whether plaintiff could recover on other theories alleged

after holding plaintiff could recover for breach of contract).

- 49 - There is no dispute that a valid contract governed the parties'

relationship. We therefore affirm the dismissal of this count.32

IV

FINAL WORDS

For the reasons we've discussed above, the district

court's judgment dismissing Sonoiki's complaint is reversed in

part and affirmed in part. Costs awarded to Appellant.

32 Sonoiki also argues that this count should have survived Harvard's motion to dismiss because Harvard's "proceedings were unenforceable due to a fatal ambiguity in its evidentiary standard." We upheld the district court's dismissal of Sonoiki's claims about the sufficiently persuaded standard so this argument goes nowhere.

- 50 -