Motion To Dismiss Leader

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 1 of 22
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
ALYSSA LEADER,
Plaintiff,
v.
HARVARD UNIVERSITY BOARD OF
OVERSEERS, and PRESIDENT AND
FELLOWS OF HARVARD COLLEGE, et al.,
Civil Action No. 1:16-CV-10254-DJC
Defendants.
DEFENDANTS MEMORANDUM IN SUPPORT OF ITS MOTION TO

DISMISS THE COMPLAINT
Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Rule 7.1(b) of the Local Rules
of the United States District Court for the District of Massachusetts, Defendant President and
Fellows of Harvard College (Harvard) hereby submits1 this Memorandum of law in support of
its Motion to Dismiss the Complaint.
INTRODUCTION
Plaintiff Alyssa Leader alleges that, while an undergraduate student at Harvard College,
she was subject to sexual assault, abuse, harassment, and retaliation by her then-boyfriend and
classmate, John Doe. Leader has sued Harvard, asserting three causes of actionviolation of
Title IX, common law negligence, and premises liability. Leader does not suggest that Harvard
failed to acknowledge or respond to her reports of John Does misconduct. To the contrary, her
complaint delineates many of the steps Harvard took in response, including (1) providing Leader
with numerous avenues for confidential counseling; (2) appointing two investigators to
1
Harvards Board of Overseers has also been named as a defendant but is not itself a corporate entity with any legal
status. The parties have thus jointly filed a stipulation to dismiss the Overseers as a party. Dkt. No. 16.
conduct a detailed investigation of Leaders allegations of sexual assault and retaliation;

(3) offering, as interim measures, to move her to a different dorm and to issue a no-contact order
(offers she rejected); (4) interviewing her, John Doe, and 17 other witnesses; (5) issuing a
preliminary report at the conclusion of the investigation; and (6) giving Leader the opportunity to
comment on the preliminary report. Harvard subsequently issued a final, 79-page report
determining that it could not find that John Doe had violated Harvards prohibitions against
sexual assault, abuse, harassment, and retaliation. It then informed Leader of her opportunity to
appeal and acted on her appeal. Leader concedes (as she must) that Harvard took all of these
actions (among others), but alleges they were insufficient.
Leaders dissatisfaction with the particular procedures and remedies Harvard afforded her
in response to her allegations of third-party misconduct does not, however, give rise to a
cognizable claim under Title IX or Massachusetts common law. To state a Title IX violation, a
plaintiff must plausibly allege that a school acted with deliberate indifference to reported
harassment. It is not sufficient to allege, as Leader does here, that Harvard failed to accept her
particular remedial demands or that it failed to perform an investigation consistent with her
specifications. Indeed, the Supreme Court has expressly admonished courts not to engage in this
type of second-guessing, and so Leaders Title IX claim must be dismissed.
Leaders common law claims fare no better. To the extent Leader argues Harvard is
liable for failing to prevent John Does alleged assault, her complaint fails to plausibly
demonstrate that his actions were sufficiently foreseeable that Harvard had a duty to prevent his
alleged misconduct or that any action (or inaction) could possibly have prevented her alleged
injuries. To the extent Leader argues that Harvards response to her allegations of John Does
conduct was itself negligent, her claim similarly falls short: Massachusetts law does not impose
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an affirmative common law duty on Harvard to take particular investigative or other actions in
response to a students report of sexual harassment or assault; even if it did, Leader does not
plausibly allege that any actions Harvard took (or failed to take) proximately caused any
purported injuries.
Finally, Leaders claim for premises liability must also fail because Leader does not (and
cannot) allege that any unsafe condition of the dormitory in which she resided (or any other
Harvard building) caused or even contributed to her injuries. Without such an allegation,
Leaders premises liability claim collapses into her negligence claim, and must be dismissed
for the same reasons.
BACKGROUND2
A. Harvards Policies and Procedures
Harvard University has enacted policies applicable to all students, faculty, and staff that
prohibit sexual harassment, sexual assault and retaliation, as well as procedures governing the
investigation of allegations of such misconduct. At the time of Plaintiffs allegations, Harvard
had adopted the University-wide Sexual and Gender-Based Harassment Policy (the Policy,
attached as Exhibit A3) as well as the University-wide Procedures for Handling Complaints
Involving Students (the Procedures, attached as Exhibit B4). See Compl. 51-61 (discussing
the Procedures).5 In accordance with Title IX, the Policy prohibits unwelcome conduct of a
Because this is a motion to dismiss, the College recites the factual allegations of the complaint and, for purposes of
this motion only, does not contest their accuracy.
Available at http://media.thecrimson.com/extras/2014/sexual-harassment-policy.pdf.
Available at http://media.thecrimson.com/extras/2014/sexual-harassment-procedures.pdf.
On a motion to dismiss, a court may consider documents incorporated into the complaint by reference. Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); accord Clorox Co. Puerto Rico v. Proctor and
Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000); Routh v. Univ. of Rochester, 981 F. Supp. 2d 184, 191
(W.D.N.Y. 2013) (considering defendant universitys standards of student conduct in granting motion to dismiss in
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sexual nature . . . sufficiently severe, persistent, or pervasive to interfere with a students

education or use of the schools programs or activities. Ex. A at 1-2; see Compl. 51-61
(discussing the Policy). Harvard maintains a University-wide Title IX Office that oversees
investigation of alleged policy violations. Title IX Office, Harvard University,
http://titleix.harvard.edu/ (last visited June 16, 2016). Harvard College also employs a Title IX
Coordinator, who serves as a liaison to the Universitys Title IX Office, receives information
about alleged sexual harassment, provides protective interim measures to secure the parties
educational opportunities, and serves as a resource for questions or concerns about sexual or
gender-based harassment. See id.; Ex. A at 4-5.
Under the Procedures, a complainant may file a formal written complaint with Harvard
Universitys Office for Sexual and Gender-Based Dispute Resolution (ODR), which will then
assign the case to one or more investigators. Ex. B at 2, 3. The investigator is charged with
determining the facts of the case through witness interviews and documentary evidence,
culminating in a preliminary, written report that is provided to the complainant and the
respondent. Id. at 4, 6. The parties may then comment on the written report or suggest further
avenues of inquiry. Id. at 6. Once the investigation is complete, the investigator prepares a final
report, which includes the investigators findings of fact and underlying evidence in support of
those findings. Id. All parties receive a copy of the final report. Id. The parties are then
provided an opportunity to appeal the report to a neutral appellate panel. Id. at 8. Once all
appeals are exhausted, the final report is submitted to Harvard Colleges Administrative Board
(Ad Board), which determines the appropriate disciplinary action. See id. at 6.
action for Title IX and negligence action where documents were incorporated by reference [in the complaint] and
since [the plaintiff] obviously possessed them and relied on them in drafting [the complaint]).
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Harvard provides substantial resources for counseling and support for students who
experience sexual assault and/or harassment. Compl. 65 (noting the numerous programs and
offices intended to provide victims support). For example, Harvard has established the Office
of Sexual Assault Prevention & Response (OSAPR), which provides education and support
services related to campus sexual violence and has certified rape crisis counselors on staff who
provide free confidential counseling. Id. 76; see Ex. A at 5; Ex. B at 8. OSAPR counselors
generally do not (and cannot) reveal their communications without the students permission.6
Additional counseling is available through Harvards on-campus mental health center,
Counseling and Mental Health Services. See Ex. B at 8. Students who have experienced sexual
harassment also may seek academic or work accommodations, changes in housing, restrictions
on contact by their alleged assailant, leaves of absence, or increased monitoring of particular
areas of campus. Id. at 1, 6. In addition, the Harvard University Police Department, Chaplains,
and Bureau of Study Counsel are available resources for such students. Id. at 8.
B. Harvards Investigation of Leaders Allegations
Beginning in March 2013, Leader, then a student at Harvard College, engaged in a oneyear romantic relationship with John Doe. She alleges that she was subject to sexual assault,
abuse, and harassment during that relationship. After the relationship ended, and before Leader
decided to formally file a complaint, Leader employed many of Harvards numerous programs
and offices intended to provide victims [of sexual assault] support. Compl. 65. For example,
in Spring 2013 and again in September 2014, Leader met confidentially with the Director of
As explained on OSAPRs public-facing website, OSAPR staff do not share information about your contact with
our office with anyone without your written permission. See http://osapr.harvard.edu/pages/confidentiality (last
visited June 9, 2016).
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OSAPR to discuss John Doe. Id. 75. Four months later, Leader again availed herself of
OSAPR, this time to meet, also confidentially, with its Survivor Advocate. Id.
According to the complaint, in November 2014, Leader asked to meet with the Resident
Dean, a resident academic counselor to students in Leaders dormitory, to discuss her thesis. Id.
77. Leader further alleges that, during that meeting, the Resident Dean suggested Leader drop
her senior thesis based on Leaders recent academic performance. Id. In response to the
suggestion, Leader alleges she informed the Resident Dean of John Does conduct, including
retaliatory action he had been taking against her. Id. Leader neither requested nor indicated
she wanted Harvard to investigate her allegations; instead, she allegedly requested that John Doe
be moved from their common dormitory building. Id. The Resident Dean promptly referred
Leader to Harvard Colleges Title IX Coordinator, whom Leader first met with the very next
day. Id.
Though Leader had not yet decided to file a formal complaint, Leader met with Harvard
Colleges Title IX Coordinator continually over the next few months, id. 82, during which
time the Coordinator informed Leader of some of the interim remedies available to her. For
example, the Coordinator offered to find Leader alternative housing to minimize contact with
John Doe. Id. 88. In another instance, the Coordinator and Leader explored the option of a no
contact orderwhich would have precluded John Doe and Leader from contacting each other.
Id. 85. Leader declined both offers. Id. 85, 88.
After her many communications with Harvard Colleges Title IX Coordinator, as well as
counseling and academic professionals, Leader chose, for the first time on February 3, 2015, to
fil[e] an official report with ODR regarding John Does conduct. Id. 65, 79. ODR
immediately assigned Leaders complaint to two investigators, including ODRs Lead
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Investigator, who investigated Leaders claims of assault and retaliation over the next five
months. Id. 79, 98. During that time, the investigators met with or interviewed Leader six
times, interviewed John Doe at least three times, talked with 17 other witnesses, and gathered
and reviewed voluminous documentary evidence from Leader, John Doe, and the other
witnesses, including text and e-mail messages. Id. 82-84, 92, 97-98; Ex. C, at 5-7 (Final
Report).7 Throughout the investigation, Leader chose to be assisted by her OSAPR Survivor
Advocate. Compl. 75, 84.
Although Leader elected not to change her residence or pursue a no-contact order, Leader
sought a civil restraining order against John Doe in Massachusetts state court in April. Id. 89.
The restraining order issued on April 27, and Harvard immediately moved John Doe to a
different dormitory. Id. 89-90. Leader does not allege any harassment or retaliation after April
17. Id. 82.
C. ODR Investigation Report and Leaders Appeal
On July 17, 2015, ODR issued its preliminary report determining John Doe was not
responsible for violating Harvards policies. Id. 98. Leader was allowed to review [the] draft
and . . . submit comment[s]. Id. After receiving these comments, ODR issued its final report on
July 27. In it, investigators determined that they could not find, by a preponderance of the
evidence, that John Doe had engaged in unwanted sexual behavior with Leader, nor that he had
engaged in any other conduct constituting sexual harassment or retaliation under Harvards
7
As with the Policy and Procedures, Leader discusses and relies upon both the preliminary and final reports from
ODRs investigation. Compl. 98 (alleging that the reports found that John Doe 1 was Not Responsible for all
claims of rape, assault, abuse, harassment, and retaliation). These documents are thus incorporated into the
complaint by reference, and the court may properly consider them on a motion to dismiss. Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see Routh v. Univ. of Rochester, 981 F. Supp. 2d 184, 191
(W.D.N.Y. 2013) (considering universitys written findings in granting motion to dismiss in action for Title IX and
negligence action where documents were incorporated by reference [in the complaint] and since [the plaintiff]
obviously possessed them and relied them in drafting [the complaint]). Harvard has filed the final report under seal
as an Exhibit to this Motion. See Ex. C.
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policies. Id. 98; Ex. C at 78. Leader appealed the determination. Her appeal was considered
and denied.
Leader subsequently filed the instant lawsuit. In her complaint, Leader alleges three
causes of action. First, Leader alleges Harvard responded with deliberate indifference to her
reports of sexual assault, abuse, harassment, and retaliation in violation of 20 U.S.C. 1681
(Title IX). Compl. 107-11. Second, Leader asserts a claim for common law negligence,
arguing that Defendants had a duty to take reasonable protective measures to protect [her] and
other similarly situated students from the risk of sexual abuse and/or sexual assault. Id. 113.
Finally, Leader asserts a claim for premises liability against Harvard for failing to guard
against foreseeable dangers from the use of the property at Harvard. Id. 123.
STANDARD OF REVIEW
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). When the complaint, stripped of its rhetoric and legal conclusions, does
not contain factual allegations necessary to give rise to an entitlement to relief, the court must
dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). Id. at 679.
ARGUMENT
I.
LEADERS ALLEGATIONS FAIL TO STATE A CLAIM UNDER TITLE IX.

Title IX provides that [n]o person in the United States 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.
Though Title IXs express means of enforcement [is] by administrative agencies, Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 288 (1998), the Supreme Court has implied a private
right of action under certain limited circumstances. Davis v. Monroe Cty. Bd. of Educ., 526
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U.S. 629, 639-40, 643 (1999). To state a claim, a plaintiff must plead that the defendant was
deliberately indifferent to the alleged gender-based harassment such that its response (or lack
thereof) is clearly unreasonable in light of the known circumstances. Porto v. Town of
Tewksbury, 488 F.3d 67, 72-73 (1st Cir. 2007). The schools conduct must be so lax, so
misdirected, or so poorly executed as to be clearly unreasonable under the known
circumstances. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 175 (1st Cir. 2007), revd
on other grounds, 555 U.S. 246 (2009). This high standard is meant to eliminate any risk that
the recipient would be liable in damages not for its own official decision but instead for [a third
partys] independent actions. Davis, 526 U.S. at 643 (quotations omitted); cf. Carroll v. City of
Quincy, 441 F. Supp. 2d 215, 221 (D. Mass. 2006) (Deliberate indifference is a very high
standard.). The Supreme Court has made clear that [i]n an appropriate case, there is no reason
why courts, on a motion to dismiss . . . could not identify a response as not clearly
unreasonable as a matter of law. Davis, 526 U.S. at 649.
This is just such an appropriate case. Considering the many actions that Leader herself
claims Harvard took in response to her reports, she fails to plausibly allege that Harvard acted
with the deliberate indifference necessary to state a Title IX claim. As Leader acknowledges,
upon receipt of her official complaint, Harvard immediately initiated an investigation, during
which it interviewed Leader (multiple times), John Doe (multiple times), and 17 other witnesses,
reviewed hundreds of pages of evidence (including all the evidence Leader proffered), issued a
draft report to which Leader was invited to (and did) provide comments, and issued a final,
79-page report from which Leader could (and did) appeal. Compl. 98; Ex. C at 5-8, 78.
Additionally, Leader acknowledges that Harvard offered her extensive interim remedies,
including providing confidential counseling, advising her on the Title IX grievance process, as
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well as offering to relocate Leader to a different residential dorm or to issue a no-contact order to
John Doeoffers that Leader declined. Compl. 75-77, 85, 88.
Leader does not dispute that Harvard took each of these steps (and others) in response to
her reports concerning John Doe. Rather, she alleges only that Harvard should have conducted
its investigation differently, or provided her with remedial options more to her liking. For
example, Leader alleges that the investigators permitted John Doe to be interviewed by phone on
one occasion but did not permit her to do the same (though she does not allege that she ever
requested a phone interview), id. 100; that no one at Harvard repeated to her each possible
interim measure listed in its publicly available policies, id. 89; and that Harvard did not require
John Doe to move to a different dormitory, id. 88.
Many of these allegations are internally inconsistent.8 However, even if the Court
assumes the version of facts most favorable to Leader, her allegations do not show deliberate
indifference. The Supreme Court and the First Circuit have held that a school does not act with
deliberate indifference because it fails to follow the particular remedial demands of a
complainant. Davis, 526 U.S. at 648; Porto, 488 F.3d at 73 ([A] claim that the school system
could or should have done more is insufficient to establish deliberate indifference.). Title IX
does not require educational institutions to take heroic measures, to perform flawless
investigations, to craft perfect solutions, or to adopt strategies advocated by [students].
Fitzgerald, 504 F.3d at 174. Instead, [t]he test is objectivewhether the institutions response,
evaluated in light of the known circumstances, is so deficient as to be clearly unreasonable. Id.
In making that assessment, the Supreme Court has warned that courts should refrain from
8
For example, a few pages before alleging that the College failed to inform her of possible protective interim
measures, Leader affirmatively alleges that the College provided confidential counseling, offered to move her, and
discussed issuing a no-contact order. See Compl. 75-77, 85, 88.
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second-guessing the disciplinary decisions made by school administrators. Davis, 526 U.S. at
648.
Federal courts faced with similar allegations have uniformly held that, where a school
promptly investigates reports of sexual assault or harassment, the schools response to such
reports cannot, as a matter of law, be labeled deliberately indifferent. The First Circuits
decision in Fitzgerald v. Barnstable School Committee, 504 F.3d 165 (2007), is particularly
instructive.9 In Fitzgerald, the plaintiff reported that she was being sexually harassed by other
students on the bus to and from school. 504 F.3d at 169. As here, once the harassment was
reported, the school investigated the allegations by speaking with the victim and other witnesses.
Compare id., with Compl. 79, 82-84, 90-92. As here, the alleged victim in Fitzgerald rejected
the schools offered interim accommodationse.g., to move the plaintiff to a different bus (here,
to a different dorm)and (unsuccessfully) requested that the alleged harasser be moved instead.
Compare Fitzgerald, 504 F.3d at 170, with Compl. 88. As here, the schools investigation
could not corroborate the victims allegations, and no disciplinary action was taken. Compare
Fitzgerald, 504 F.3d at 174, with Compl. 98. And, as here, the Fitzgerald plaintiffs primary
allegation was that the school acted with deliberate indifference because its investigation was, in
plaintiffs view, insufficient. Compare Fitzgerald, 504 F.3d at 175 (allegation that schools
investigation was clumsily executed), with Compl. 78-102.
Despite the Fitzgerald plaintiffs dissatisfaction with the process provided, the First
Circuit rejected their Title IX claim as a matter of law. The schools prompt commencement of
9
In addition to affirming dismissal of plaintiffs Title IX claim, the First Circuit held that the Fitzgerald plaintiffs
1983 claim (which covered the same alleged misconduct) was preempted by Title IX. 504 F.3d at 179. This
second holding was later reviewed by the Supreme Court and reversed. 555 U.S. 246, 248-49, 260 (2009). On
remand, the First Circuit reaffirmed its prior analysis and dismissal of the plaintiffs Title IX claim. Judgment,
Fitzgerald v. Barnstable Sch. Comm., No. 06-2596 (1st Cir. Feb. 2, 2009) (Our earlier affirmance of the judgment
entered in favor of defendant Barnstable School Committee on the Title IX claim is not affected by this order.).
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an extensive investigation and its offer of suitable remedial measures distinguish this case from
cases in which courts have glimpsed the potential for a finding of deliberate indifference.
Fitzgerald, 504 F.3d at 174. The schools failure to agree to the victims requests (e.g., to move
the alleged harasser to a different bus) could not serve as the basis for a Title IX claim. Nor
could plaintiffs complaints about the investigation itself provide that basis: Courts have no
roving writ to second-guess an educational institutions choices from within a universe of
plausible investigative procedures. Id. at 175. As the First Circuit ruled, alleging an
imperfect investigation cannot save a Title IX claim from dismissal, nor does an institutions
decision not to acquiesce [to the] demands of a plaintiff amount to actionable deliberate
indifference. Id. at 170, 174-75.
Federal courts outside the First Circuit agree with Fitzgerald that the mere allegation of a
dissatisfying investigation or a lack of remedial measures desired by a complainant cannot alone
constitute deliberate indifference. See, e.g., Facchetti v. Bridgewater Coll., -- F. Supp. 3d --,
2016 WL 1259415, at *6 (W.D. Va. Mar. 30, 2016) ([T]here is ample authority holding that
neither a schools negligence in addressing a sexual assault, nor its failure to provide the remedy
wanted by the victim, constitutes deliberate indifference under Title IX. (citing cases)); Moore
v. Regents of Univ. of Cal., No. 15-cv-05779-RS, 2016 WL 2961984, at *7-*8 (N.D. Cal. May
23, 2016) (no deliberate indifference where university offered to investigate plaintiffs
allegations (an offer which she declined) and provided her with counseling and academic
accommodations).10
10
See also Roe v. St. Louis Univ., 746 F.3d 874, 883 (8th Cir. 2014) (no deliberate indifference where student was
provided information about the grievance process and referred to sexual assault counselor, and university began
investigation after complaint was filed); Doe v. Galster, 768 F.3d 611, 620 (7th Cir. 2014) (no deliberate
indifference where school provided counselors to discuss the harassment, took measures to reduce contact between
victim and harasser, and investigated allegations); Sanches v. Carrollton-Farmers Branch Ind. Sch. Dist., 647 F.3d
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Leader alleges that Harvard provided her with confidential counseling upon her reports of
sexual assault, abuse, harassment, and retaliation, and upon her request, initiated a formal
investigation of all her allegations, interviewed her, John Doe, and other witnesses, offered her
alternative housing arrangements and a no-contact order to reduce contact between them, and
produced a final, written report, the determinations of which she could appeal. Compl. 75,
77-79, 88, 92, 98. On their face, these allegations demonstrate that, as a matter of law, Harvard
did not act with the deliberate indifference necessary to state a claim under Title IX.11
Nor do Leaders allegations that Harvard was deliberately indifferent to John Does
retaliatory harassment change this analysis.12 See Compl. 82. In accordance with Harvards
Policy, and as described above, ODR fully investigated Leaders complaints of retaliatory
conduct. Id. 98; Ex. C at 78. Indeed, Leader specifically alleges that the investigators report
addressed all [her] claims, including those concerning the alleged rape, assault, abuse,
harassment, and retaliation. Compl. 98 (emphasis added). ODRs investigators ultimately
concluded that they could not find, by a preponderance of the evidence, that John Doe had
violated the Policys prohibition against retaliation. Id; Ex. C at 78. In short, Leaders own
allegations describing Harvards support of Leader and its investigation of her complaints
156, 168 (5th Cir. 2011) (no deliberate indifference where school investigated allegations and offered to reduce (but
not eliminate) contact between students); Frederick v. Simpson Coll., 149 F. Supp. 2d 826, 840 (S.D. Iowa 2001)
(no deliberate indifference where college conducted a prompt investigation resulting in a three page report).
11
Leader also suggests that she can seek damages for deviations from Department of Education guidance
documents. Compl. 110, 116. She cannot. As discussed in the Colleges Motion to Strike, filed along with this
motion, these allegations are legally irrelevant to Leaders claims, as the guidance documents do not inform the
standard of liability for a private claim for money damages.
12
Leader refers to this conduct as retaliatory harassment in some of her allegations, see Compl. 66, and as a
continuation of the alleged sexual abuse in others, see id. 67. And at times, Leader also refers to John Does
alleged harassment of her after she confronted him (but before she reported his alleged conduct to Harvard Title
IXs office) as retaliatory. Id. 71-74. Despite this blurred terminology, Leader does not allege (nor could she)
that Harvard retaliated against her. In the context of Title IX, retaliation requires Leader to show that Harvardnot
John Doeretaliated against her because she reported sex discrimination. E.g., Jackson v. Birmingham Bd. of
Educ., 544 U.S. 167, 174 (2005) (finding Title IX violation where a funding recipient retaliates against a person
because he complains of sex discrimination (emphasis omitted)).
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including her complaints of retaliationdisprove as a matter of law that Harvard acted with
deliberate indifference.13
II.
PLAINTIFFS NEGLIGENCE CLAIM ALSO FAILS AS A MATTER OF LAW.

Leader claims that Harvard was negligent for failing to take reasonable protective
measures to protect [her] and other similarly situated students from the risk of sexual abuse
and/or sexual assault. Compl. 113. To the extent she is alleging that Harvard was negligent
for failing to prevent John Does alleged sexual assault of her, she has failed to plausibly allege
that Harvard breached any duty or that any breach of such a duty proximately caused her
injuries. See Jorgensen v. Mass. Port Auth., 905 F.2d 515, 522 (1st Cir. 1990) (setting out
negligence elements in Massachusetts). To the extent Leader is alleging Harvards response to
her reports of John Does alleged misconduct was negligent, her claim is similarly deficient:
Massachusetts does not impose an affirmative duty on Harvard to investigate or otherwise
respond in a particular way to such reports, and even if it did, Leader fails to allege how any
action or inaction by Harvard caused her purported injuries. For these reasons, Leaders
negligence claim must be dismissed.
13
Even if Harvard had not investigated John Does alleged retaliatory conduct (as Leader acknowledges it did), such
inaction could not be the predicate for a Title IX claim for damages. By Leaders own admission, John Does
alleged retaliatory conduct was not gender-based and thus not actionable under Title IX. Discrimination on the
basis of sex is the sine qua non of a Title IX sexual harassment case, and a failure to plead that element is fatal.
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002). Animus that is personal, or based on anothers
conduct, is not gender-based harassment, and cannot form the basis for a Title IX violation. Nungesser v.
Columbia Univ., -- F. Supp. 3d --, 2016 WL 1049024, at *6 (S.D.N.Y. Mar. 11, 2016) (dismissing Title IX claim
because [t]o the extent that [the alleged harassers] activism was aimed at [the victim] it was because of his conduct
toward her . . . not because of his status as a male). Here, Leader affirmatively alleges that John Doe retaliated
against her, not because of her gender, but because Leader had confronted him and reported his abusive conduct.
Compl. 66. Any alleged inadequacy in Harvards response to such conduct-based harassment is not actionable
under Title IX. Frazier, 276 F.3d at 67.
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A.
Leader Fails To Plausibly Allege That John Does Alleged Sexual

Assault Of Her Was Reasonably Foreseeable, Such That Harvard
College Had A Duty To Prevent It.
As a general matter, Massachusetts colleges like Harvard owe a duty to student[s]

housed in a facility on campus, Doe v. Emerson Coll., -- F. Supp. 3d --, 2015 WL 9455576, at
*7 (D. Mass. Dec. 22, 2015), including to protect their resident students against the criminal
acts of third parties, Mullins v. Pine Manor Coll., 389 Mass. 47, 54 (1983). This duty, however,
is not unlimited; it extends only to those acts that are reasonably foreseeable. Kavanagh v.
Trs. of Boston Univ., 440 Mass. 195, 203-04 (2003) (declining to impose duty on school to
prevent student athletes from assaulting others in sporting events); Emerson Coll., 2015 WL
9455576, at *7 (declining to impose duty on college to prevent sexual assault that was not
reasonably foreseeable).
Courts are careful to cabin an institutions duty to students; the institution must only
protect against those third-party criminal acts that were reasonably foreseeable by the defendant,
either through actions or knowledge. Jupin v. Kask, 447 Mass. 141, 147-48 & n. 7 (2006)
([I]nsofar as foreseeability bears on the existence of a duty, it is not appropriate to leave such an
issue to the jury.). Thus, courts have found the existence of a duty based upon the specific
foreseeability of third-party criminal conduct where, for example, a college has engaged in
ongoing treatment of a particular students mental problems and self-destructive behavior.
Shin v. Mass. Inst. of Tech., 19 Mass. L. Rptr. 570, 2005 WL 1869101, at *13 (Mass. Super. Ct.
June 22, 2005). Where no such link can be made, courts have held that the harm was not
foreseeable and thus no duty existed. See Emerson Coll., 2015 WL 9455576, at *7 (dismissing
claim against college for third-party sexual assault where the complaint does not appear to
allege that [the college] should have known, or reasonably could have known the third-party
student posed a danger to plaintiff).
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Leader has not plausibly alleged any facts suggesting Harvard reasonably could or should
have foreseen John Does alleged sexual assault of her. [F]oreseeability must mean something
more than awareness of the ever-present possibility of third-party violence. Kavanagh, 440
Mass. at 203. A colleges aware[ness] as a general matter that its students may be subject to
sexual assaults does not constitute reasonable foreseeability of a specific assault. Emerson
Coll., 2015 WL 9455576, at *7-8. To state a claim, Leader must allege that Harvard should
have known, or reasonably could have known, that John Doe posed a danger to her. Id.;
Kavanaugh, 440 Mass. at 203-04. Beyond the conclusory assertion that Harvard should have
known of John Does dangerous and exploit[at]ive propensities, Compl. 115, Leader does
not allege a single fact to suggest Harvard would have had any reason to know about these
alleged tendencies or to have foreseen John Does alleged assault or harassment of Leader. Such
conclusory assertions do not suffice to state a claim under Massachusetts law.
Indeed, recognizing an affirmative duty on universities to proactively monitor all student
relationships would effectively require Harvard to pos[t] guards in each dorm room on a 24hour, 365-day per year basisa requirement that Massachusetts law rejects. Bash v. Clark
Univ., 22 Mass. L. Rptr. 84, 2006 WL 4114297, at *5 (Mass. Super. Ct. Nov. 20, 2006). To
impose such liability would be tantamount to imposing on [universities] the duty of an insurer
against the type of tragedy that Leader alleges. Id. That is not the law. See Emerson, 2015 WL
9455576, at *8 (Surely [a college] is not required to provide its students with round-the-clock
police protection).14
14
Nor can Leaders allegations regarding the Campus Sexual Violence Elimination Act (Campus SaVE Act) save
her negligence claim. Leader alleges that deviations from the Campus SaVE Act constitute a breach of statutory
duties owed to Plaintiff. Compl. 118. Not so. As discussed in Harvards Motion to Strike, the Campus SaVE
Act does not create any statutory duties owed to Leader or any other plaintiff. To the contrary, the statute
expressly renounces any private right of action and disclaims any impact on any standard of care. 20 U.S.C.
- 16 -
B.
Leader Fails To Plausibly Allege That Any Action Or Inaction By

Harvard Proximately Caused Any Sustained Injuries.
In order to state a claim for negligence, Leader must allege proximate cause, that is, that
her injury was within the reasonably foreseeable risks of harm created by the defendants
negligent conduct. Pine v. Arruda, 448 F. Supp. 2d 282, 284 (D. Mass. 2006) (quotations
omitted). Proximate cause may be determined as a question of law when there is no dispute as
to the effect of the facts established. Kent v. Commonwealth, 437 Mass. 312, 320 (2002)
(granting motion to dismiss for failure to establish proximate cause).
Leader alleges she was injured by both John Does alleged misconduct and by Harvards
efforts to resolve her allegations of such misconduct. Leader has not plausibly alleged that any
action Harvard took, or failed to take, proximately caused her injuries. Assuming her allegations
of assault and retaliation to be true, Leader alleges only that Harvards failure to adequately
educate students on the dangers of sexual harassment, assault and retaliatory conduct, or to
take other reasonable protective measures to protect her and other similarly situated students
from the risk of sexual abuse, would have prevented her injuries. Compl. 102, 113, 119.
Leader never once specifies what education or other protective measures would have been
sufficient to prevent John Does alleged sexual assault of her. Such vague, conclusory
allegations are simply not sufficient to survive a motion to dismiss. A.G. ex. rel. Maddox v.
Elsevier, Inc., 732 F.3d 77, 80-81 (1st Cir. 2013) (affirming dismissal where conclusory
allegations of causation were unembellished by any supporting facts). Indeed, it is unclear
how Harvard could have reasonably prevented John Doe from sexually assaulting Leader before
it had any reason to know of the alleged abuse. Emerson, 2015 WL 9455576, at *8 (dismissing
1092(f)(14). Leaders reliance on Department of Education guidance documents is similarly misplaced, as those
documents have no legal relevance to the standard of care in a private suit for damages . See supra at n.9.
- 17 -
common law claim against college for failing to prevent sexual assault where complaint does
not allege what actions [the college] could have reasonably taken to prevent the assault).
Nor has Leader plausibly alleged that Harvards response to her reports of harassment
proximately caused her injuries.15 In order to survive a motion to dismiss, Leader must allege
that her injuries were within the reasonably foreseeable risks of harm created by Harvards
response to Leaders reports of harassment. Pine, 448 F. Supp. 2d at 284 (quotations omitted).
Leaders complaint does not even try to meet this burden, for example, by alleging that John
Does conduct would have ended earlier if Harvards investigator had disclosed an alleged
conflict of interest, or had interviewed John Doe in person rather than on the phone.
Understandably so, as any such effort would fail to clear Twomblys plausibility bar. Rather than
attempt to connect Harvards actions to her injuries, Leader simply alleges the following: But
for the intentional and negligent acts and omissions of Defendants and their violations of the
statute set forth herein, Plaintiff would not have been injured. Compl. 119. To hold that such
a conclusory allegation is sufficient to plausibly allege proximate cause would . . . substantially
extend the scope of reasonable foreseeability as set forth in Massachusetts case law and stretch
the concept beyond reason. Staelens v. Dobert, 318 F.3d 77, 79 (1st Cir. 2003).
Indeed, the face of the complaint undermines even Leaders conclusory assertion of
causation, indicating instead that Harvards response was not the proximate cause of her injury.
For example, Leader concedes that Harvard offered her a different residence to reduce the
amount of contact she had with John Doe (an offer she rejected). Compl. 88. And while
15
To the extent Leader alleges that the College was negligent in its investigation of her reports of alleged
misconduct, she has failed to state a claim under Massachusetts law, because a school has no common law duty to
take particular investigatory actions, or to adhere to particular policies or procedures, in response to reports of sexual
assault. See Emerson Coll., 2015 WL 9455576, at *7-*8 (dismissing negligence claim pertaining to colleges
response to report of students sexual assault). For a discussion of Leaders affirmative allegations of Harvards
detailed response to her complaint, see Part I.A, supra.
- 18 -
Leader alleges that one of Harvard Colleges many Sexual Assault/Sexual Harassment tutors
did not reach out to Leader about John Does alleged misconduct, her allegations also make
clear that she was provided, and engaged with, multiple sources of support, including OSAPR
counselors. Id. 75-78, 91. Leader also admits Harvard policies forbade any retaliation by
John Doe and that she explored the option of a no contact order with Harvard employees (on
two separate occasions), but that she simply chose not to obtain one. Id. 85, 89. Given these
allegations, Leaders single conclusory assertion of causation does not suffice. Pollard v.
Georgetown Sch. Dist., 132 F. Supp. 3d 208, 232 (D. Mass. 2015) (dismissing negligence claim
where causation alleged in conclusory fashion).
III.
LEADERS PREMISES LIABILITY CLAIM MUST BE DISMISSED BECAUSE

SHE FAILS TO ALLEGE ANY FAILURE BY HARVARD TO MAINTAIN THE
PHYSICAL PREMISES.
Premises liability does not attach merely because an injury occurs on the premises in
question. Rather, premises liability is a particular theory of negligence liabilitynot a separate

cause of actionthat imposes a duty on landowners to maintain the property in a reasonably
safe condition in view of all the circumstances and to warn visitors of any unreasonable dangers
of the property that the landowner is aware of or reasonably should have been aware. Dos
Santos v. Coleta, 465 Mass. 148, 151 & 153 n.9 (2013) (quotations omitted, emphasis added).
The sine qua non of premises liability is thus an allegation that an unsafe condition of the
premises caused or increased the likelihood of harm, even if that harm was the direct result of
third-party conduct. RESTATEMENT (SECOND) OF TORTS 343 (premises liability attaches when
physical harm [is] caused to his invitees by a condition on the land (emphasis added));
Sarkisian v. Concept Rests., Inc., 471 Mass. 679, 682 (2015) (Massachusetts applies
Restatements approach).
- 19 -
Leaders complaint does not allege any connection whatsoever between an unsafe
condition of the dormitory in which she resided (or any other Harvard building) and her injuries.
Contrast Mullins, 389 Mass. at 54 (permitting jury verdict against college to stand where
plaintiff alleged, and evidence demonstrated, that deficiencies of the colleges security system,
including insufficient gates, locks, and patrols, had been a substantial cause of the attack [on
her]), with Compl. 125-26. Instead, Leader alleges that Harvard breached its duty of care by
deviating significantly from the standard of care outlined by the [Department of Education] . . . ,
Defendants own policies . . . [and] in the Campus SaVE Act. Compl. 125.
As discussed in Harvards Motion to Strike, the policies Leader discusses are legally
irrelevant to her claims. In any event, they do not speak at all to how Harvard should maintain
its dormitories and buildings in order to prevent sexual assaults on campus. Permitting such
allegations to suffice would effectively transform premises liability into a strict liability offense,
in which the mere occurrence of an injury on a premises sufficed to prove liability. This is not
the law. See Murgo v. Home Depot USA, Inc., 190 F. Supp. 2d 248 (D. Mass. 2002)
(categorizing action for premises liability as one for negligence).
CONCLUSION
Plaintiffs allegations do not plausibly state a claim for relief. The Court should dismiss
the complaint.
- 20 -
Dated: June 20, 2016
Respectfully submitted,
/s/ Apalla U. Chopra

Apalla U. Chopra (pro hac vice)
[email protected]
OMELVENY & MYERS LLP
400 South Hope Street
Los Angeles, California 90071
Telephone:
(213) 430-6000
Facsimile:
(213) 430-6407
Danielle C. Gray (pro hac vice)
[email protected]
OMELVENY & MYERS LLP
7 Times Square
New York, NY 10036
Telephone:
(212) 326-2000
Facsimile:
(212) 326-2061
Victoria L. Steinberg, BBO #666482
Lauren A. Graber, BBO #679226
COLLORA LLP
100 High St., 20th Floor
Boston, MA 02110
617-371-1000
[email protected]
[email protected]
Attorneys for Defendants,
President and Fellows of Harvard College,
and Harvard University Board of Overseers
- 21 -
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-registered participants on June 20, 2016.
/s/ Apalla U. Chopra

Apalla U. Chopra
- 22 -
Case 1:16-cv-10254-DJC Document 23-1 Filed 06/20/16 Page 1 of 6
Exhibit A
HARVARD UNIVERSITY
Sexual and Gender-Based Harassment Policy
Policy Statement
Harvard University is committed to maintaining a safe and healthy educational and work environment
in which no member of the University community is, on the basis of sex, sexual orientation, or gender
identity, excluded from participation in, denied the benefits of, or subjected to discrimination in any
University program or activity. Gender-based and sexual harassment, including sexual violence, are
forms of sex discrimination in that they deny or limit an individuals ability to participate in or benefit
from University programs or activities.
This Policy is designed to ensure a safe and non-discriminatory educational and work environment and
to meet legal requirements, including: Title IX of the Education Amendments of 1972, which prohibits
discrimination on the basis of sex in the Universitys programs or activities; relevant sections of the
Violence Against Women Reauthorization Act; Title VII of the Civil Rights Act of 1964, which
prohibits discrimination on the basis of sex in employment; and Massachusetts laws that prohibit
discrimination on the basis of sex, sexual orientation, and gender identity. It does not preclude
application or enforcement of other University or School policies.
It is the policy of the University to provide educational, preventative and training programs regarding
sexual or gender-based harassment; to encourage reporting of incidents; to prevent incidents of sexual
and gender-based harassment from denying or limiting an individuals ability to participate in or
benefit from the Universitys programs; to make available timely services for those who have been
affected by discrimination; and to provide prompt and equitable methods of investigation and
resolution to stop discrimination, remedy any harm, and prevent its recurrence. Violations of this
Policy may result in the imposition of sanctions up to, and including, termination, dismissal, or
expulsion, as determined by the appropriate officials at the School or unit.
Retaliation against an individual for raising an allegation of sexual or gender-based harassment, for
cooperating in an investigation of such a complaint, or for opposing discriminatory practices is
prohibited. Submitting a complaint that is not in good faith or providing false or misleading
information in any investigation of complaints is also prohibited.
Nothing in this Policy shall be construed to abridge academic freedom and inquiry, principles of free
speech, or the Universitys educational mission.
Definitions
Sexual Harassment
Sexual harassment is unwelcome conduct of a sexual nature, including unwelcome sexual advances,
requests for sexual favors, and other verbal, nonverbal, graphic, or physical conduct of a sexual nature,
when: (1) submission to or rejection of such conduct is made either explicitly or implicitly a condition
of an individuals employment or academic standing or is used as the basis for employment decisions
or for academic evaluation, grades, or advancement (quid pro quo); or (2) such conduct is sufficiently
severe, persistent, or pervasive that it interferes with or limits a persons ability to participate in or
benefit from the Universitys education or work programs or activities (hostile environment).
Quid pro quo sexual harassment can occur whether a person resists and suffers the threatened harm, or
the person submits and avoids the threatened harm. Both situations could constitute discrimination on
the basis of sex.
A hostile environment can be created by persistent or pervasive conduct or by a single severe episode.
The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a
hostile environment. Sexual violence, including rape, sexual assault, and domestic and dating violence,
is a form of sexual harassment. In addition, the following conduct may violate this Policy:
Observing, photographing, videotaping, or making other visual or auditory records of sexual

activity or nudity, where there is a reasonable expectation of privacy, without the knowledge
and consent of all parties
Sharing visual or auditory records of sexual activity or nudity without the knowledge and
consent of all recorded parties and recipient(s)
Sexual advances, whether or not they involve physical touching
Commenting about or inappropriately touching an individual's body
Requests for sexual favors in exchange for actual or promised job benefits, such as favorable
reviews, salary increases, promotions, increased benefits, or continued employment
Lewd or sexually suggestive comments, jokes, innuendoes, or gestures
Stalking
Other verbal, nonverbal, graphic, or physical conduct may create a hostile environment if the conduct
is sufficiently persistent, pervasive, or severe so as to deny a person equal access to the Universitys
programs or activities. Whether the conduct creates a hostile environment may depend on a variety of
factors, including: the degree to which the conduct affected one or more persons education or
employment; the type, frequency, and duration of the conduct; the relationship between the parties; the
number of people involved; and the context in which the conduct occurred.
Unwelcome Conduct
Conduct is unwelcome if a person (1) did not request or invite it and (2) regarded the unrequested or
uninvited conduct as undesirable or offensive. That a person welcomes some sexual contact does not
necessarily mean that person welcomes other sexual contact. Similarly, that a person willingly
participates in conduct on one occasion does not necessarily mean that the same conduct is welcome
on a subsequent occasion.
Whether conduct is unwelcome is determined based on the totality of the circumstances, including
various objective and subjective factors. The following types of information may be helpful in making
2
that determination: statements by any witnesses to the alleged incident; information about the relative
credibility of the parties and witnesses; the detail and consistency of each persons account; the
absence of corroborating information where it should logically exist; information that the Respondent
has been found to have harassed others; information that the Complainant has been found to have made
false allegations against others; information about the Complainants reaction or behavior after the
alleged incident; and information about any actions the parties took immediately following the
incident, including reporting the matter to others.
In addition, when a person is so impaired or incapacitated as to be incapable of requesting or inviting
the conduct, conduct of a sexual nature is deemed unwelcome, provided that the Respondent knew or
reasonably should have known of the persons impairment or incapacity. The person may be impaired
or incapacitated as a result of drugs or alcohol or for some other reason, such as sleep or
unconsciousness. A Respondents impairment at the time of the incident as a result of drugs or alcohol
does not, however, diminish the Respondents responsibility for sexual or gender-based harassment
under this Policy.
Gender-Based Harassment
Gender-based harassment is verbal, nonverbal, graphic, or physical aggression, intimidation, or hostile
conduct based on sex, sex-stereotyping, sexual orientation or gender identity, but not involving
conduct of a sexual nature, when such conduct is sufficiently severe, persistent, or pervasive that it
interferes with or limits a persons ability to participate in or benefit from the Universitys education or
work programs or activities. For example, persistent disparagement of a person based on a perceived
lack of stereotypical masculinity or femininity or exclusion from an activity based on sexual
orientation or gender identity also may violate this Policy.
Jurisdiction
This Policy applies to sexual or gender-based harassment that is committed by students, faculty, staff,
Harvard appointees, or third parties, whenever the misconduct occurs:
1. On Harvard property; or
2. Off Harvard property, if:
a) the conduct was in connection with a University or University-recognized program or
activity; or
b) the conduct may have the effect of creating a hostile environment for a member of the
University community.
Monitoring and Confidentiality

A variety of resources are available at the University and in the area to assist those who have
experienced gender-based or sexual harassment, including sexual violence.
Individuals considering making a disclosure to University resources should make sure they have
informed expectations concerning privacy and confidentiality. The University is committed to
providing all possible assistance in understanding these issues and helping individuals to make an
informed decision.
It is important to understand that, while the University will treat information it has received with
appropriate sensitivity, University personnel may nonetheless need to share certain information with
those at the University responsible for stopping or preventing sexual or gender-based harassment. For
example, University officers, other than those who are prohibited from reporting because of a legal
confidentiality obligation or prohibition against reporting, must promptly notify the School or unit
Title IX Coordinator about possible sexual or gender-based harassment, regardless of whether a
complaint is filed. Such reporting is necessary for various reasons, including to ensure that persons
possibly subjected to such conduct receive appropriate services and information; that the University
can track incidents and identify patterns; and that, where appropriate, the University can take steps to
protect the Harvard community. This reporting by University officers will not necessarily result in a
complaint; rather, the School or unit Title IX Coordinator, in consultation with the Title IX Officer,
will assess the information and determine what action, if any, will be taken. Information will be
disclosed in this manner only to those at the University who, in the judgment of the Title IX Officer or
School or unit Title IX Coordinator, have a need to know.
Should individuals desire to discuss an incident or other information only with persons who are subject
to a legal confidentiality obligation or prohibition against reporting, they should ask University officers
for information about such resources, which are available both at the University and elsewhere.
University officers are available to discuss these other resources and to assist individuals in making an
informed decision.
Violations of other Rules

The University encourages the reporting of all concerns regarding sexual or gender-based harassment.
Sometimes individuals are hesitant to report instances of sexual or gender-based harassment because
they fear they may be charged with other policy violations, such as underage alcohol consumption.
Because the University has a paramount interest in protecting the well-being of its community and
remedying sexual or gender-based harassment, other policy violations will be considered, if necessary,
separately from allegations under this Policy.
Resources
University Resources:
Office of Sexual Assault Prevention & Response
HUHS Behavioral Health Services
Bureau of Study Counsel
Harvard University Health Services
Harvard Chaplains
Harvard University Police Department
Employee Assistance Program
Local Title IX Coordinators, other relevant policies, and complaint procedures:
University Sexual Harassment Policies & Procedures
University Title IX Officer:
Mia Karvonides
Outside Agencies:
U.S. Department of Education, Office for Civil Rights (OCR)
U.S. Equal Employment Opportunity Commission (EEOC)
Massachusetts Commission Against Discrimination (MCAD)
07.01.2014
5
Exhibit B
HARVARD UNIVERSITY
Procedures for Handling Complaints Involving Students
Pursuant to the Sexual and Gender-Based Harassment Policy
The Office for Sexual and Gender-Based Dispute Resolution (ODR) has been charged with
implementing the following procedures for students pursuant to the Sexual and Gender-Based
Harassment Policy (Policy). The ODR operates under the Office of the Assistant to the
President for Institutional Diversity and Equity with oversight by the Universitys Title IX
Officer, working in partnership with the School or unit Title IX Coordinators, and other School
or unit leadership.
Harvard students, faculty, staff, other Harvard appointees, or third parties who believe they are
directly affected by the conduct of a Harvard student (collectively Initiating Parties) may:
request information or advice, including whether certain conduct may violate the Policy; seek
informal resolution; or file a formal complaint. These three options are described below.
Initiating Parties are encouraged to bring their concerns to the relevant School or unit Title IX
Coordinator, the Title IX Officer, or other staff in ODR, but may, if they choose, contact another
School or University officer, who will refer the matter as appropriate.
As set forth below, interim measures designed to support and protect the Initiating Party or the
University community may be considered or implemented at any time, including during a request
for information or advice, informal resolution, or a formal complaint proceeding. Consistent with
School or unit policy, interim measures might include, among others: restrictions on contact;
course-schedule or work-schedule alteration; changes in housing; leaves of absence; or increased
monitoring of certain areas of the campus. These interim measures are subject to review and
revision throughout the processes described below.
I.
Requests for Information or Advice
Initiating Parties seeking information or advice can expect to learn about resources available at
the University and elsewhere that provide counseling and support. They also will be advised
about the steps involved in pursuing an informal resolution or filing a formal complaint. In
addition, the School or unit Title IX Coordinator or the Title IX Officer or other staff in ODR
may discuss with Initiating Parties whether any interim measures are appropriate at this stage.
II.
Requests for Informal Resolution
Initiating Parties may make a request, either orally or in writing, for informal resolution to the
School or unit Title IX Coordinator or the Title IX Officer. The request should identify the
alleged harasser (if known) and describe the allegations with specificity. The School or unit Title
IX Coordinator or the Title IX Officer will assess the severity of the alleged harassment and the
potential risk of a hostile environment for others in the community to determine whether
informal resolution may be appropriate.
Upon determining that informal resolution is appropriate, and in instances when the Initiating
Party makes the request to the ODR, the Title IX Officer will assign the informal resolution to an
Investigator. The School or unit Title IX Coordinator or the Investigator will consult further
with the person initiating the request, inform the person who is the subject of the allegations, and
gather additional relevant information as necessary from the parties and others, as indicated. The
School or unit Title IX Coordinator or the Title IX Officer also may put in place any appropriate
interim measures to protect the educational and work environment. The School or unit Title IX
Coordinator or the Investigator will attempt to aid the parties in finding a mutually acceptable
resolution.
When the allegations, if true, might constitute criminal conduct, the party against whom they are
brought is hereby advised to seek legal counsel before making any written or oral statements.
Those facing allegations may wish to obtain legal advice about how this process could affect any
criminal case in which they are or may become involved.
A matter will be deemed satisfactorily resolved when both parties expressly agree to an outcome
that is also acceptable to the School or unit Title IX Coordinator. At any point prior to such an
express agreement, the Initiating Party may withdraw the request for informal resolution and
initiate a formal complaint under these Procedures.
Ordinarily, the informal resolution process will be concluded within two to three weeks of the
date of the request.
III.
Procedures for Formal Complaints
A. Initiating a Complaint
An Initiating Party may file a formal complaint alleging a violation of the Policy. A complaint of
sexual or gender-based harassment should be filed directly with the ODR, regardless of the
identity of the Respondent. (If the Respondent is not a student, see Referral of Complaints
Against Staff, Faculty, Other Harvard Appointees, or Third Parties below). ODR will
inform the School or unit Title IX Coordinator(s) for the Complainant and the Respondent that a
complaint has been received, and, if indicated, the School or unit Title IX Coordinator will put in
place any appropriate interim measures.
A formal complaint must be in writing and signed and dated by a Complainant or a third party
filing on behalf of a potential Complainant (Reporter). It should state the name of the alleged
harasser (if known) and describe with reasonable specificity the incident(s) of alleged
harassment, including the date and place of such incident(s). The complaint must be in the
Complainant or Reporters own words, and may not be authored by others, including family
members, advisors, or attorneys. Attached to the complaint should be a list of any sources of
information (for example, witnesses, correspondence, records, and the like) that the Complainant
2
or Reporter believes may be relevant to the investigation. However, a complaint should not be
delayed if such sources of information are unknown or unavailable.
ODR will not investigate a new complaint if it has already adjudicated a formal complaint based
on the same circumstances or if the parties and the School or unit Title IX Coordinator or the
Title IX Officer already have agreed to an informal resolution based on the same circumstances.
Whether or not a complaint is filed with ODR, any person may file a complaint of discrimination
with Massachusetts Commission Against Discrimination, the U.S. Equal Employment
Opportunity Commission, the U.S. Department of Education Office of Civil Rights, or any other
state or federal agency having jurisdiction.
B. Referral of Complaints Against Staff, Faculty, Other Harvard

Appointees, or Third Parties
These Procedures cover complaints against students. When allegations are asserted against a
staff member, faculty member, other Harvard appointee, or third party, ODR promptly will
provide the appropriate Title IX Coordinator with a copy of the complaint. The School or unit
Title IX Coordinator, in consultation with other Harvard officers, will determine whether some
or all of the allegations will be handled at the School or unit level, or whether ODR will conduct
all or part of any investigation, and will inform the Complainant or Reporter.
C. Timeframe for Filing a Complaint

The University does not limit the timeframe for filing a complaint. The University encourages
complaints to be filed as soon as reasonably possible following an alleged Policy violation
because the Universitys ability to gather adequate information may be limited where a
significant length of time has elapsed between an incident and the filing of a complaint. Further,
with respect to those cases that will be reviewed by disciplinary bodies at the conclusion of the
investigation, the Universitys ability to complete its processes may be limited with respect to
Respondents who have graduated from or are no longer employed by the University.
D. Initial Review
Once a complaint is received by the ODR, the Title IX Officer will assign the case to an
Investigator for an initial review. The School with which the Respondent is affiliated may
designate an additional individual to work jointly with the Investigator (collectively, the
Investigative Team). Investigators and School designees will have appropriate training, so that
they have the specialized skill and understanding to conduct prompt and effective sexual and
gender-based harassment investigations.
The Investigative Team will contact the Complainant or Reporter in an attempt to gather a more
complete understanding of the allegations, as well as any related conduct that may implicate the
Policy. When a complaint is brought by a Reporter, the Investigative Team will endeavor to meet
with the person identified as the potential Complainant both to gather information and to discuss
his or her interest in participating in an investigation.
3
Based on the information gathered, the Investigative Team will determine whether the
information, if true, would constitute a violation of the Policy such that an investigation is
warranted or whether the information warrants an administrative closure. The Investigative Team
will convey this determination to: the Complainant (and the Reporter, if there is one); the Title
IX Officer; and the School Title IX Coordinator. The Investigative Team will work with the
School Title IX Coordinator to implement any appropriate interim measures to be put in place by
the School pending the completion of the case (or to revise as necessary any measures already in
place).
Ordinarily, the initial review will be concluded within one week of the date the complaint was
received.
E. Investigation
Following the decision to begin an investigation, the Investigative Team will notify the
Respondent in writing of the allegations and will provide a copy of the Policy and these
procedures. The Respondent will have one week in which to submit a written statement in
response to the allegations. This statement must be in the Respondents own words; Respondents
may not submit statements authored by others, including family members, advisors, or attorneys.
Attached to the statement should be a list of all sources of information (for example, witnesses,
correspondence, records, and the like) that the Respondent believes may be relevant to the
investigation.
If the decision is made to begin an investigation in a case where a Reporter filed the complaint,
and the Complainant is unwilling to participate but the School has assessed the severity of the
harassment and the potential risk of a hostile environment for others in the community and has
determined to proceed, then, for the purposes of these Procedures, the School Title IX
Coordinator (or a designee) will be considered the Complainant.
The Investigative Team will request individual interviews with the Complainant and the
Respondent, and, as appropriate, with other witnesses, which may include those identified by the
parties as well as relevant officers of the School or University or others. When identifying
potential witnesses, the parties should understand that the purpose of interviews is to gather and
assess information about the incident(s) at issue in the complaint, not to solicit general
information about a partys character.
When a complaint involves allegations that, if true, also might constitute criminal conduct,
Respondents are hereby advised to seek legal counsel before making any written or oral
statements. The investigation process is not a legal proceeding, but Respondents might wish to
obtain legal advice about how this process could affect any criminal case in which they are or
may become involved.
After the collection of additional information is complete but prior to the conclusion of the
investigation, the Investigative Team will request individual follow-up interviews with the
4
Complainant and the Respondent to give each the opportunity to respond to the additional
information.
F. Personal Advisors
Both the Complainant and the Respondent may bring a personal advisor to any interviews with
the Investigative Team. A personal advisor should be an officer of the University who is
affiliated with the School or unit in which the advisee is enrolled or employed, but may not be
related to anyone involved in the complaint or have any other involvement in the process. In the
case of students enrolled in interdisciplinary programs, their official academic advisor also may
serve as their personal advisor.
Personal advisors may view a redacted version of the complaint or other documents provided to
the parties, offer feedback on their advisees written statements, and provide general advice.
During interviews, personal advisors may not speak for their advisees, although they may ask to
suspend the interviews briefly if they feel their advisees would benefit from a short break.
G. Confidentiality
The ODR, personal advisors, and others at the University involved in or aware of the complaint
will take reasonable steps to protect the privacy of all involved. Once a complaint is filed, the
Complainant or Reporter, the Respondent, and any witnesses will be notified of the potential for
compromising the integrity of the investigation by disclosing information about the case and the
expectation that they therefore keep such information including any documents they may
receive or review confidential. They also will be notified that sharing such information might
compromise the investigation or may be construed as retaliatory. Retaliation of any kind is a
separate violation of the Policy and may lead to an additional complaint and consequences.
The parties remain free to share their own experiences, other than information that they have
learned solely through the investigatory process, though to avoid the possibility of compromising
the investigation, it is generally advisable to limit the number of people in whom they confide.
H. Coordination with Law Enforcement Authorities

In all cases, the Investigative Team will have completed the initial review without delay and, as
appropriate, will have proposed interim measures to the School Title IX Coordinator. In the
event that an allegation includes behavior or actions that are under review by law-enforcement
authorities, the Investigative Team will, in light of status updates from law-enforcement
authorities and the Title IX Officer, assess and reassess the timing of the investigation under the
Policy, so that it does not compromise the criminal investigation.
I. Conclusion of the Investigation and Issuance of Final Report

At the conclusion of the investigation, the Investigative Team will make findings of fact,
applying a preponderance of the evidence standard, and determine based on those findings of
fact whether there was a violation of the Policy.
The Investigative Team will provide the Complainant and the Respondent with a written draft of
the findings of fact and analysis and will give both parties one week to submit a written response
to the draft. The Investigative Team will consider any written responses before finalizing these
sections of the report and the final section of the report, which will outline any recommended
measures to be taken by the School to eliminate any harassment, prevent its recurrence, and
address its effects. The Title IX Officer and the School will work jointly to put in place such
measures as they determine are appropriate. Consistent with School policies, measures imposed
at this stage might include, among others: restrictions on contact; course-schedule or workschedule alteration; changes in housing; leaves of absence; or increased monitoring of certain
areas of the campus.
The investigation will be completed and the final report provided to the Complainant, the
Respondent, the School Title IX Coordinator, and the appropriate officer in the School or unit,
ordinarily within six weeks of receipt of the complaint. The administration of discipline in cases
involving students is subject to the authority of the faculty; thus, as appropriate, having received
the report, the School separately will consider the imposition of discipline through its own
processes and notify the parties as appropriate. For cases involving faculty, staff, other Harvard
appointees, or third parties that have been investigated by the ODR pursuant to Section III.B
above, the imposition of sanctions will be considered separately by the appropriate officials at
the School or unit through their relevant policies.
J. Special Circumstances
i. Request for Anonymity
If a potential Complainant asks to remain anonymous, then the Investigative Team, the School
Title IX Coordinator, or the Title IX Officer, as appropriate, will consider how to proceed, taking
into account the potential Complainants wishes, the Universitys commitment to provide a nondiscriminatory environment, and the potential Respondents right to have specific notice of the
allegations. The Investigative Team, the School Title IX Coordinator, or the Title IX Officer may
conduct limited fact finding to better understand the context of the complaint. In some
circumstances, a request for anonymity may mean an investigation cannot go forward, or the
Investigative Team, the School Title IX Coordinator, or the Title IX Officer may determine that
further investigation is necessary, in which case the potential Complainant will be informed that
his or her identity will be disclosed as necessary for the investigatory process. In other
circumstances, the Investigative Team, the School Title IX Coordinator, or the Title IX Officer
may determine that the matter can be appropriately resolved without further investigation and
without revealing the Complainants identity.
ii.
Administrative Closure
If, after conducting the initial review of a formal complaint, the Investigative Team finds that the
allegation, if true, would not constitute a violation of the Policy, then the Title IX Officer will
administratively close the case and notify the Complainant (and the Reporter, if there is one), as
well as the School Title IX Coordinator.
Where the Complainant is unwilling to participate in further investigation, the Title IX Officer
will assess the severity of the alleged harassment or the potential risk of a hostile environment
for others in the community and will determine whether administrative closure is appropriate or
whether the University should proceed with an investigation.
Within one week of the decision to close a case administratively, the Complainant or Reporter
may request reconsideration on the grounds that there is substantive and relevant new
information that was not available at the time of the decision and that may change the outcome
of the decision. The Title IX Officer will consider requests for reconsideration and inform the
Complainant or Reporter of the outcome, ordinarily within one week of the date of the request.
In cases where the Title IX Officer concludes that the alleged conduct, while not a violation of
the Policy, might implicate other School or University conduct policies, the Title IX Officer may
refer the complaint to the appropriate School or University official.
iii.
Request to Withdraw the Complaint
While every effort will be made to respect the Complainants wishes to withdraw a formal
complaint, the University must be mindful of its overarching commitment to provide a nondiscriminatory environment. Thus, in certain circumstances, the Title IX Officer may determine
that investigation is appropriate despite a Complainants request to withdraw the complaint or
failure to cooperate. Other circumstances also may result in a request to withdraw the complaint
being declined, where, for example, a request to withdraw is made after a significant portion of
the investigation has been completed and terminating the investigation would be inequitable.
iv.
Request for Informal Resolution After a Complaint has Been Filed
Once a complaint has been opened for investigation and before the final report has been provided
to the parties, a party may request informal resolution as an alternative to formal resolution of the
complaint, but that disposition requires agreement of the Complainant and the Respondent and
the approval of the Title IX Officer in consultation with the relevant School or unit.
If such a request is approved, the timeframes will be stayed, and the Investigator or a designee
will take such steps as he or she deems appropriate to assist in reaching a resolution. If the
parties cannot reach an informal resolution within two weeks from receipt of the request, then the
Investigative Team will resume the investigation of the complaint in accordance with the formal
complaint procedures.
IV.
Appeal
Both the Respondent and the Complainant may appeal the decision of the Investigative Team to
the Title IX Officer or designee based on the following grounds:
1. A procedural error occurred, which may change the outcome of the decision; or
2. The appellant has substantive and relevant new information that was not available at the
time of investigation and that may change the outcome of the decision.
Disagreement with the Investigative Teams findings or determination is not, by itself, a ground
for appeal.
Appeals of the Investigative Teams decision must be received by the Title IX Officer or
designee within one week of the date of the final report. Likewise, appeals of decisions to
administratively close a case or to deny a request to withdraw the complaint must be received by
the Assistant to the President for Institutional Diversity and Equity or designee within one week
of the date of the decision under appeal. Ordinarily, appeals will be decided within two weeks
and the parties and the School Title IX Coordinator promptly will be informed of the outcome in
writing.
V.
Resources
University Resources:
Office of Sexual Assault Prevention & Response
HUHS Behavioral Health Services
Bureau of Study Counsel
Harvard University Health Services
Harvard Chaplains
Harvard University Police Department
Employee Assistance Program
Local Title IX Coordinators and University Sexual Harassment Policy:
University Sexual Harassment Policies & Procedures
University Title IX Officer:
Mia Karvonides
Outside Agencies:
U.S. Department of Education, Office for Civil Rights (OCR)
U.S. Equal Employment Opportunity Commission (EEOC)
Massachusetts Commission Against Discrimination (MCAD)
07.01.14
EXHIBIT C
FILED UNDER SEAL

(Leave Granted on 6/16/16)

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Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 1 of 22

UNITED STATES DISTRICT COURT

Civil Action No. 1:16-CV-10254-DJC

DEFENDANTS MEMORANDUM IN SUPPORT OF ITS MOTION TO

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 2 of 22

conduct a detailed investigation of Leaders allegations of sexual assault and retaliation;

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 3 of 22

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 4 of 22

sexual nature . . . sufficiently severe, persistent, or pervasive to interfere with a students

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 5 of 22

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 6 of 22

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 7 of 22

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 8 of 22

LEADERS ALLEGATIONS FAIL TO STATE A CLAIM UNDER TITLE IX.

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 9 of 22

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 10 of 22

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 11 of 22

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Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 13 of 22

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 14 of 22

PLAINTIFFS NEGLIGENCE CLAIM ALSO FAILS AS A MATTER OF LAW.

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 15 of 22

Leader Fails To Plausibly Allege That John Does Alleged Sexual

As a general matter, Massachusetts colleges like Harvard owe a duty to student[s]

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 16 of 22

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 17 of 22

Leader Fails To Plausibly Allege That Any Action Or Inaction By

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 18 of 22

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 19 of 22

LEADERS PREMISES LIABILITY CLAIM MUST BE DISMISSED BECAUSE

question. Rather, premises liability is a particular theory of negligence liabilitynot a separate

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 20 of 22

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 21 of 22

Dated: June 20, 2016

/s/ Apalla U. Chopra

Case 1:16-cv-10254-DJC Document 23 Filed 06/20/16 Page 22 of 22

/s/ Apalla U. Chopra

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Case 1:16-cv-10254-DJC Document 23-1 Filed 06/20/16 Page 3 of 6

Observing, photographing, videotaping, or making other visual or auditory records of sexual

Sexual advances, whether or not they involve physical touching

Commenting about or inappropriately touching an individual's body

Lewd or sexually suggestive comments, jokes, innuendoes, or gestures

Case 1:16-cv-10254-DJC Document 23-1 Filed 06/20/16 Page 4 of 6

Case 1:16-cv-10254-DJC Document 23-1 Filed 06/20/16 Page 5 of 6

Monitoring and Confidentiality

Violations of other Rules

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Case 1:16-cv-10254-DJC Document 23-2 Filed 06/20/16 Page 1 of 9

Case 1:16-cv-10254-DJC Document 23-2 Filed 06/20/16 Page 2 of 9

Requests for Information or Advice

Requests for Informal Resolution

Case 1:16-cv-10254-DJC Document 23-2 Filed 06/20/16 Page 3 of 9

Procedures for Formal Complaints

Case 1:16-cv-10254-DJC Document 23-2 Filed 06/20/16 Page 4 of 9

B. Referral of Complaints Against Staff, Faculty, Other Harvard

C. Timeframe for Filing a Complaint

Case 1:16-cv-10254-DJC Document 23-2 Filed 06/20/16 Page 5 of 9