By Robert E. Freeman, of Proskauer, Jonathan Mollod, and Sabrina Palazzolo, of Proskauer
On October 26, 2023, a Massachusetts judge denied the requests of 37 members of the Boston College Swimming and Diving Team (the “Plaintiffs” or “Team”) to reverse the indefinite suspension of the Team that was first announced in September 2023, following what Boston College Athletics called “credible reports of hazing.” (Does 1-37 v. Trustees of Boston College, No. 2381CV02900 (Mass. Super. Ct. Oct. 26, 2023)).
The Team members claimed that they were irreparably harmed when the Trustees of Boston College and Boston College Athletics officials (collectively, “Defendants” or the “University”) “arbitrarily” imposed a blanket suspension without conducting a complete investigation of an apparent hazing incident at an annual “Frosh” event on September 3, 2023, where Team members allegedly coordinated binge drinking activities involving freshmen. On September 20, 2023, Boston College made a public statement on the Boston College Athletics website noting that the University had “determined that a hazing incident had occurred” involving the Team. The University later updated the statement to say that there were “credible reports of hazing.” According to the University, its initial investigation involved interviews with 20 members of the Team, as well as a review of photos, videos and group chat messages. By the time the decision was made to suspend the Team, the Defendants had apparently been made aware of various Team events that occurred between September 2-4, 2023, which allegedly involved underage drinking. For example, the “Frosh” event, which is an apparent annual tradition for the Team, featured organized activities for freshmen Team members, but also allegedly involved initiation of freshmen to the Team by upperclassmen that resulted in reports of excessive drinking (as well as vomiting and passing out).
Boston College Athletics deemed such activities “hazing.” Boston College and Boston College Athletics, in relevant student policies, prohibits hazing, which is also a crime in Massachusetts (G.L. c. 269, § 17). Student and Athletic Department policy broadly defines hazing to include “any activity or abuse of power by a member of an organization and/or group used against any individual or group of individuals as a condition to affiliate with … (or to maintain full status in [the] group), that humiliates, degrades, or risks emotional and/or physical harm, regardless of the subject’s willingness to participate,” and expressly states that hazing may also involve “implied coercion.” In addition, according to the University, there had been reports of a Team hazing incident back in spring 2022. Thus, on September 20, 2023, Boston College Athletics issued a statement that the Team had been “placed on indefinite suspension.”
On October 17, 2023, the Plaintiffs filed their complaint while also seeking injunctive relief to reinstate the program based on a selective enforcement claim brought under Title IX of the Education Amendment of 1972. Principally, the Plaintiffs claimed that all-male University teams have faced similar allegations involving excessive underage drinking, but “were not imposed a disciplinary sanction prior to ‘an investigation process that amounted to more than what the Plaintiffs in the instant matter received.’” The Plaintiffs’ memo in support of its injunction request asserted that the decision to suspend the Team “was likely motivated by the fact that [the Team] is a co-ed program.” The Plaintiffs also stated that the University violated its own policies by imposing an “unprecedented and unwarranted” indefinite suspension of an entire sports program during the pendency of a conduct investigation by Boston College Athletics. Finally, the Plaintiffs argued that without an order reinstating the program, the team members would lose out on competitive opportunities and suffer irreparable harm to “their entire swimming careers.” The Defendants argued that Boston College Athletics’ decision to indefinitely suspend the Team was both warranted and within its Athletic Director’s discretion. In its opposition brief, Defendants countered that the “decision to suspend team activities had nothing to do with the fact that the team is co-ed. Nor is there any case involving ‘similar circumstances’ involving an all-male team known to the University.” The University also argued that the evidence gathered in the initial investigation was “sufficient” to make a finding that hazing occurred, which “warranted the team-suspension,” with individual student discipline to be later adjudicated “through the student conduct process.”
The court was unmoved by the Plaintiffs’ arguments and denied their motion for a preliminary injunction to reinstate the Team. The court stated that the Plaintiffs’ claims of selective enforcement of a disciplinary sanction on their co-ed sports team were based on allegations made only “upon information and belief,” not firsthand knowledge, and thus were insufficient to establish a likelihood of success on the merits of the Title IX claim.
The Plaintiffs also failed to convince the court that they were likely to succeed on the merits of their other claims, which included breach of contract, denial of fairness, defamation, and intentional infliction of emotional distress. After reviewing the materials presented, the court concluded that the University’s suspension was not “arbitrary and capricious” in light of a prior 2022 hazing incident, and the fact that the upperclassmen on the Team had been repeatedly warned that student-athlete hazing was prohibited by Boston College Athletics, Team rules and Massachusetts law and could result in “serious consequences.” The court further found that the University’s submissions substantiated their public announcement that hazing had occurred, thus the Plaintiffs’ defamation claims were also ruled by the court to be insufficient at this point to warrant injunctive relief. Additionally, since the Plaintiffs failed to show that the Defendants acted unlawfully or showed a likelihood of success on the merits, the court determined that it was unnecessary to address the question of irreparable harm.
On October 27, 2023, one day after the court’s ruling, the Plaintiffs filed a notice of discontinuance of the action without prejudice, given that the goal of the court action was to reinstate the program pending further investigation by the University. For the moment, the Plaintiffs have decided to end their legal challenge and have expressed hope that the University decides to lift the suspension at some point in the future.
