              United States Court of Appeals
                         For the First Circuit


No. 18-1248

                              JAMES HAIDAK,

                          Plaintiff, Appellant,

                                   v.

  UNIVERSITY OF MASSACHUSETTS-AMHERST; ENKU GELAYE, individually
and in her official capacity as Dean of Students and Acting Vice
 Chancellor of Student Affairs and Campus Life of the University
   of Massachusetts at Amherst; DAVID VAILLANCOURT, individually
      and in his official capacity as Senior Associate Dean of
 Students of the University of Massachusetts at Amherst; ALLISON
  BERGER, individually and in her official capacity as Associate
    Dean of Students at University of Massachusetts at Amherst;
                          PATRICIA CARDOSO,

                         Defendants, Appellees.


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

              [Hon. Michael A. Ponsor, U.S. District Judge]


                                 Before

                         Kayatta, Circuit Judge,
                       Souter, Associate Justice,*
                        and Selya, Circuit Judge.


     Luke Ryan, with whom Sasson, Turnbull, Ryan & Hoose was on
brief, for appellant.
     Monica R. Shah and Zalkind Duncan & Bernstein LLP on brief

     * Hon.David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
for Foundation for Individual Rights in Education, amicus curiae.
     Denise Barton, Senior Litigation Counsel, with whom Maura
Healy, Attorney General, Gerard Leone, Special Assistant Attorney
General, General Counsel, and University of Massachusetts, Office
of the General Counsel, were on brief, for appellees.


                         August 6, 2019
            KAYATTA, Circuit Judge.      In the wake of allegations that

student James Haidak assaulted a fellow student, the University of

Massachusetts at Amherst ("the university") suspended and then

expelled    Haidak.      Seeking   compensatory     damages,   declaratory

relief, and an injunction preventing the university from enforcing

the expulsion, Haidak filed this suit against the university and

several of its officials.     Following discovery, the district court

entered summary judgment in the defendants' favor. Haidak appealed

to this court.        For the following reasons, we find that the

university violated Haidak's federal constitutional right to due

process in suspending him for five months without prior notice or

a fair hearing, but that it did not thereafter violate his rights

in expelling him after providing a fair expulsion hearing.               We

therefore affirm the dismissal of Haidak's complaint in part and

otherwise vacate the judgment and remand for further proceedings.

                                    I.

                                    A.

            We begin by describing the student disciplinary process

at the university, as specified in the version of the Code of

Student Conduct (CSC) in effect during the 2012–2013 academic year.

The   CSC   enumerated   disciplinary      and   academic   violations   and

described the procedures the university employed to adjudicate

suspected violations.      The CSC applied to conduct that occurred

both on campus and "in other locations when the behavior distinctly


                                   - 3 -
and directly affect[ed] the University community."   The university

could file charges at the request of any student, faculty member,

or staff member, or the university could initiate charges itself.

           The CSC called for the university to send an accused

student a Notice of Charge.   The student then had at least forty-

eight hours to request a Disciplinary Conference to discuss the

alleged offense.    If the Notice of Charge involved a serious

violation, and a university official determined that the accused

student was a threat to self, others, or property, the CSC allowed

university officials to impose an interim restriction such as a

suspension.   Interim restrictions could be imposed without prior

notice, although "whenever reasonably possible" a meeting would

"be held prior to the imposition of interim restrictions" to inform

the student of the "basis of the allegation" and give the student

"the opportunity to present his or her own version of the facts."

Any violation of an interim restriction could lead to further

charges.

           The CSC established a Hearing Board, made up of three to

five employees and students appointed by the Vice Chancellor for

Student Affairs.   The Hearing Board adjudicated contested charges

in proceedings in which the university bore the burden of proof by

a preponderance of the evidence.       The Hearing Board was not

required to "observe the rules of evidence observed by courts, and

[could] exclude unduly repetitious or irrelevant evidence."   After


                               - 4 -
a hearing, the board would create a written summary of testimony,

findings of fact, a decision, and a rationale, and then forward

this record to the Dean of Students.               A designated university

official would then render a written decision and sanction.                 The

sanction was informed by, among other factors, the nature of the

offense and the student's disciplinary record.

           A student could appeal the decision or the sanction to

the University Appeals Board.         Possible grounds for appeal were:

(1) "procedural error or irregularity which materially affected

the decision"; (2) "[n]ew evidence not previously available which

would   have   materially     affected       the   decision";    (3) lack    of

"substantial evidence" supporting the decision; or (4) lack of

support for the sanction imposed.          The Appeals Board would review

the record and make a recommendation to the Vice Chancellor for

Student Affairs, who would issue a final decision.

                                      B.

           Haidak and Lauren Gibney, both university students, were

in a tumultuous romantic relationship beginning in 2012.                    The

incident   that   triggered    the    initial      charges    against   Haidak

occurred in the early morning hours of April 16, 2013, during a

semester when Haidak and Gibney were studying abroad in Barcelona.

Haidak and Gibney agree that, after the two got home from a club,

they got in an argument that turned physical.                They dispute who

hit whom first.   According to Gibney, Haidak put his hands around


                                     - 5 -
her neck, pushed her onto the bed, hurt her by squeezing various

pressure points, and grabbed her wrists and punched himself in the

face with her fists.     According to Haidak, Gibney struck him, and

he only restrained her to prevent her from continuing to hit him,

slap him, and kick him in the groin.

             Later that day, Gibney's mother called the university to

report that Haidak had physically assaulted her daughter.              Gibney

followed up three days later by submitting a written report of the

incident.      On   April 17,   Enku    Galaye,   the   Dean   of    Students,

instructed Allison Berger, an Associate Dean of Students, to open

a CSC case against Haidak. On April 19, 2013, Berger issued Haidak

a Notice of Charge for violating two provisions of the CSC:

(1) Physical Assault1 and (2) Endangering Behavior to Persons or

Property.2    The notice included a no-contact order: "You are not

to have any direct or indirect contact with [Gibney].                     This

includes, but is not limited to comments, words or gestures in

person,   through    postal   mail,    email,   text,   instant     messaging,

social networking sites, or by having others . . . act on your



     1 The definition of physical assault applied by the Hearing
Board without objection was "physical attack upon or physical
interference with a person that causes that person to suffer actual
physical injury."   Haidak v. Univ. of Mass. at Amherst, 299 F.
Supp. 3d 242, 258 n.18 (D. Mass. 2018).
     2 The 2012–2013 CSC prohibited "[e]ndangering the safety of
persons (self or others) or property, [and] any action that might
lead to loss of life or serious physical harm to others . . . ."


                                  - 6 -
behalf."   Haidak met with Berger on May 1, 2013.    He denied the

allegations and followed up that same day with an email containing

his version of the incident.

           Despite the no-contact order, Haidak and Gibney resumed

contact almost immediately, both over the phone and in person.   On

May 9, 2013, Gibney's mother discovered hundreds of calls and

thousands of text messages from Haidak on the family's phone bill.

When Gibney discussed these calls and texts with her mother, and

with Berger later that same day, she failed to disclose that the

contact had been largely welcomed and reciprocated.      On May 28,

2013, Berger issued to Haidak a second Notice of Charge for

(1) Harassment3 and (2) Failure to Comply with the Direction of

University Officials.4    The second notice contained the same

explicit directive not to contact Gibney.

           On June 3, 2013, Gibney and her mother met with Berger

to complain about continued communications from Haidak, and the

next day Gibney provided Berger a phone log that chronicled the

calls and texts she had received from Haidak:   311 calls and 1,749

text messages between April 24 and June 1.      Thirty-one of these


     3 Under the CSC, harassment meant "repeated use by one or more
students of a written, verbal, or electronic expression or a
physical act or gesture, or any combination thereof, directed at
a person that places that person to be [sic] in fear for his or
her physical safety."
     4 The CSC prohibited "[f]ailure to comply with the directions
of University officials acting in performance of their duties."


                               - 7 -
calls occurred between May 28 and June 1, in violation of the no-

contact order contained in the second Notice of Charge.5                      Gibney

admitted to Berger that she "did unfortunately get comfortable

with talking and therefore would respond some and answer a few

calls." It later became clear that Gibney sent approximately seven

hundred text messages to Haidak during that six-week period, with

many messages after May 28.

               The university took no official action between June 4

and June 17.          On June 17, Berger issued a third Notice of Charge

for (1) Harassment and (2) Failure to Comply with the Direction of

University Officials.            This time, the university also concluded,

without       prior     notice       to   Haidak,   that     Haidak's    "behavior

represent[ed] a direct and imminent threat to [his] safety and the

safety of the University community" and warranted an immediate

suspension.          The notice informed Haidak that he had the right to

a meeting to discuss the suspension.

               Two     days   later,      on   June 19,     Berger    conducted    a

telephonic disciplinary conference with Haidak and his father.

They agreed that Haidak would submit a response to the allegations

that he had violated the no-contact orders and harassed Gibney and

that       Berger    would    then    decide   whether     Haidak    should   remain

suspended pending his hearing for the assault charge.


       5
       Haidak maintains that he did not receive the second Notice
of Charge until June 1.


                                          - 8 -
            During the June 19 call, Haidak also expressed interest

in filing charges against Gibney for her violence against him

during the Barcelona incident.             Berger told Haidak that he was

free to file a charge, but that it was unlikely the university

would address any charges against Gibney until after the conclusion

of the disciplinary process against Haidak.

            On July 8, 2013, Haidak sent Berger an email detailing

his side of the story and explaining that the communications in

violation   of    the    no-contact      orders   were   mutual    and     welcome.

Silence ensued (and the suspension continued) until August 5,

2013,   when     the    university    notified    Haidak    that    the     interim

suspension remained in place pending a hearing on the assault

charge, which had yet to be scheduled.

            Over the summer of 2013, the university took no action

to schedule a hearing for Haidak.            In fact, the university had no

procedures in place that would have allowed it to conduct a hearing

while   student        board   members     were   away     for    summer     break.

Recruitment of new student members began on August 30, 2013, with

applications due on September 13 and trainings running through

September 27.

            On    September 1,       2013,    Haidak     withdrew        from   the

university, concerned that "the lack of a timely Hearing Board

date . . . meant that the complaint against him would not be

addressed until several weeks into the new school year, at the


                                      - 9 -
earliest."     Haidak v. Univ. of Mass. at Amherst, 299 F. Supp. 3d

242, 255 (D. Mass. 2018).       Haidak got an apartment in Amherst and

he and Gibney maintained their off-and-on relationship.

             Two incidents that took place in mid- to late-September

led Gibney to finally cut off communication with Haidak.          First,

on September 14, Haidak -- intoxicated at the time -- called Gibney

for a ride.        The two got into an argument, and Haidak threatened

to kill himself and then exited the moving car.        Gibney called the

police, and her mother reported the incident to Berger the next

day.

             Gibney and her mother met with Berger on September 19,

2013.   Gibney admitted that she had continued to maintain a

relationship with Haidak, but said she no longer wanted contact

with him.     Berger "explained that the no contact is in place for

both her & James."        It is unclear whether this statement was a

reminder that the no-contact order applied to Gibney as well or

whether this was the first time Gibney received notice that she

was subject to the no-contact order.           According to Berger, the

university generally advised the protected party not to engage in

contact, but that advice was "very different from a no contact

directive as issued in an order or a letter to a student as part

of the conduct process."

             The    second   incident   took   place   on   September 26.

Apparently intoxicated, Haidak arrived at the bar where Gibney


                                  - 10 -
worked.   He positioned himself uncomfortably close to Gibney until

security eventually removed him from the premises.                 The next day,

after notifying the university about the events of the previous

night,    Gibney    sought    and    obtained     a     state-court      temporary

restraining order against Haidak.

            On October 8, a state district court held an adversarial

hearing to consider Gibney's application to extend the restraining

order.    Gibney first testified that she and Haidak broke up in

April when they left Barcelona, but then later acknowledged that

she and Haidak had been "speaking."              When confronted with text

messages she sent to a friend about her relationship with Haidak,

Gibney further admitted that she had voluntarily interacted with

Haidak after the no-contact order had been issued, including by

having consensual sex with him as recently as mid-September.                    She

also admitted that she had struck and bitten Haidak during the

course of their relationship.         The state court declined to extend

the restraining order.

            The    university   offered       Haidak    three    dates    for   the

hearing and Haidak selected November 22, 2013.                  Haidak knew that

he would not be present in Amherst that day and would have to

participate by phone.        The university sent Haidak a handout on

hearing procedures.       It described a new policy, instituted at the

beginning   of     the   2013–2014   school     year,    under    which    charged

students could no longer question other students directly, but


                                     - 11 -
instead could submit proposed questions for the Board to consider

posing to the witness.     Haidak submitted thirty-six questions he

wanted the Hearing Board to ask Gibney.       Patricia Cardoso, the

Assistant Dean of Students, pared this list down to sixteen.

           In the weeks preceding the Hearing Board meeting, Haidak

and Cardoso also discussed the evidence Haidak wished to present

to the Hearing Board.      Haidak sent Cardoso a transcript of the

state-court restraining order hearing, as well as a photograph of

a bite mark Gibney left on his arm in a previous altercation.    He

also wanted his mother to testify about Gibney's prior acts of

violence against him.     Cardoso did not permit the introduction of

any of these three pieces of evidence.

           Four students and one staff chair sat on the Hearing

Board that considered Haidak's charges.    Gibney attended in person

while Haidak phoned in.    Haidak's attorney was present, though not

allowed to do more than observe the hearing and consult with Haidak

by phone. Both Haidak and Gibney had university-appointed advisors

present.   Moving back and forth between Haidak and Gibney, the

Hearing Board ultimately examined each student three times.      Of

the dozens of questions the Board asked Gibney, none were worded

identically to any on Haidak's pre-submitted list, but many were

designed to elicit the same information.    The Board also examined

the photos and statements submitted by each party, as well as text

messages and phone logs.


                                - 12 -
          The   Board   ultimately   found   Haidak   responsible   for

assault and failure to comply with the no-contact orders, but not

for endangerment or harassment.      The Board's report provided the

following rationale:

          The board finds [Haidak] not responsible for
          [endangering behavior to persons or property],
          because his actions did not rise to a level
          violating this policy. However, his behavior
          was disproportionate to the actions he
          attributed to Gibney, and the board believes
          [Haidak] did cause physical harm to [Gibney's]
          wrists and arms based on the narratives and
          pictures presented in the hearing. As such,
          we find [Haidak] responsible for [physical
          assault].

          Regarding the second and third incidents, the
          board finds [Haidak] not responsible for
          [harassment] in both cases, as the contact
          after the April incident was mutual and non-
          threatening   according    to    both   parties.
          However, we find [Haidak] responsible for
          [failure to comply] in both cases because he
          still knowingly violated the directives of the
          university,   and   failed    to   address   any
          reservations he might have had with the
          appropriate official.

David Vaillancourt, the Associate Dean of Students, found the

outcome "consistent with the charges and based on substantial

evidence."   After reviewing Haidak's disciplinary history, which

included two prior violations of the CSC,6 Vaillancourt decided on


     6  In 2010, Haidak, while intoxicated, assaulted another
student and pushed and spat on the resident advisor who broke up
the altercation. Haidak was placed in protective custody because
of his "level of intoxication," the "anger [he] demonstrated," and
his "unwillingness to calm down."     He faced CSC violations of
endangering behavior, harassment/physical assault, and breach of


                               - 13 -
expulsion as the appropriate sanction.            Haidak appealed to the

University Appeals Board, which recommended that the sanction be

upheld.     Enku   Gelaye,   the   Dean   of   Students   and   Acting   Vice

Chancellor of Student Affairs, upheld the expulsion based on the

Appeals Board's recommendation.

            Haidak then took the fight to federal court.           He filed

a two-count complaint against the university and the officials

involved. The first count alleged due process and equal protection

violations, and the second count asserted a violation of Title IX,

20 U.S.C. § 1681.     Both parties moved for summary judgment, and

the district court allowed the university's motion and denied

Haidak's.     Haidak, 299 F. Supp. 3d at 271.         Haidak appeals the

dismissal of his procedural due process and Title IX claims to

this court.


university policies. The university ultimately dropped the more
serious charges when Haidak agreed to be found responsible for
violating university policies. Haidak received the sanctions of
housing probation, anger management meetings, and alcohol
education workshops.
     In 2012, the Amherst Police Department arrested Haidak and
charged him with nuisance, noisy and disorderly house, and
disturbing the peace.    The university charged Haidak with CSC
violations of alcohol, endangering behavior, and violations of
local, state, or federal law.    When Haidak agreed to be found
responsible for violating local, state, or federal law, the
university dropped the other two charges.    Haidak received the
sanctions of a reprimand and the writing of a three-page paper on
alcohol and student disturbances. Vaillancourt was "disheartened"
by Haidak's reflection paper, which said that "[k]ids will party
no matter what.     End of story . . . .    Is this responsible?
Certainly not, but it is a simple truth."


                                   - 14 -
                                     II.

           We turn first to Haidak's appeal from the district

court's dismissal of his procedural due process challenges to his

suspension and expulsion.         We review de novo a district court's

decision on summary judgment, "drawing all reasonable [factual]

inferences in favor of the non-moving party."          Doe v. Trs. of Bos.

Coll., 892 F.3d 67, 79 (1st Cir. 2018) (quoting Roman Catholic

Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st

Cir. 2013)).    Summary judgment is appropriate only when "there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law."           Fed. R. Civ. P. 56(a).

           It has long been clear that, though states have broad

authority to establish and enforce codes of conduct in their

educational    institutions,      they     must   "recognize   a   student's

legitimate entitlement to a public education as a property interest

which is protected by the Due Process Clause and which may not be

taken   away   for   misconduct    without    adherence   to   the   minimum

procedures required by that Clause."         Goss v. Lopez, 419 U.S. 565,

574 (1975); see also Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1st

Cir. 1988) ("[A] student facing expulsion or suspension from a

public educational institution is entitled to the protections of

due process.").

           "Once it is determined that due process applies, the

question remains what process is due."            Morrissey v. Brewer, 408


                                   - 15 -
U.S.    471,    481   (1972).        To   determine     what    process    is

constitutionally due, we generally balance three factors:

             First, the private interest that will be
             affected by the official action; second, the
             risk of an erroneous deprivation of such
             interest through the procedures used, and the
             probable value, if any, of additional or
             substitute    procedural   safeguards;    and
             finally, the Government's interest, including
             the function involved and the fiscal and
             administrative burdens that the additional or
             substitute   procedural   requirement   would
             entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Gorman,

837 F.2d at 12–16 (applying the Mathews test to determine whether

a university's disciplinary proceedings afforded due process).

             The principal private and governmental interests at

stake   in   school   disciplinary    proceedings     are   reasonably    well

acknowledged.    Students have "paramount" interests "in completing

their education, as well as avoiding unfair or mistaken exclusion

from the educational environment, and the accompanying stigma."

Gorman, 837 F.2d at 14.         The state university, in turn, has an

important interest in protecting itself and other students from

those whose behavior violates the basic values of the school, Goss,

419 U.S. at 580, 583, and in balancing the need for fair discipline

against the need to allocate resources toward "promot[ing] and

protect[ing] the primary function of institutions that exist to

provide education,"      Gorman, 837 F.2d at 14.            In theory, both

parties also share an interest in speed and accuracy in the


                                  - 16 -
adjudication of charges.         In this case, all of these interests

were   implicated.      Haidak      faced   a   substantial    suspension      and

complete expulsion, while the university had probable cause to

believe that he had used undue physical force on another student

and continued to harass her.

             "Notice   and     an     opportunity       to    be    heard     have

traditionally and consistently been held to be the essential

requisites of procedural due process."            Id. at 12.       In the school

disciplinary context, the opportunity to be heard requires "some

kind of hearing."      Goss, 419 U.S. at 579 (emphasis added).              Here,

we consider the adequacy of two hearings: one in connection with

Haidak's suspension and the other in connection with his expulsion.

We address each in turn, beginning with the expulsion hearing.

                                       A.

             The   expulsion   hearing      proceeded    in   accordance      with

written procedures given to Haidak in advance.                 The hearing was

limited to charges of which Haidak received timely and detailed

notice.   Haidak makes no claim that any of the adjudicators was

unfit for the job or should have been excluded for cause.                   Haidak

was afforded the rights to be present at the hearing, to hear all

evidence against him, to respond directly himself, and to call

witnesses.    He was also allowed to have an attorney present and to

consult with that attorney.         The burden of proof was placed on the




                                     - 17 -
charging party to a degree unchallenged by Haidak.                         The hearing

was recorded.

               Haidak     claims      that    the       hearing     was   nevertheless

constitutionally flawed for two reasons: (1) some of his proffered

evidence was excluded; and (2) he was not allowed to cross-examine

Gibney.       In assessing these claims, we do not ask whether "the

hearing mirrored a common law criminal trial," but simply whether

Haidak       "had   an   opportunity     to       answer,   explain,      and   defend."

Gorman, 837 F.2d at 14.

                                             1.

               Haidak argues first that the university unreasonably

impeded his opportunity to defend against the charges by excluding

certain        evidence        from    the        Hearing     Board       proceedings.

Specifically, Haidak challenges the university's refusal to allow

him to present: (1) a transcript of the state-court restraining

order       hearing;7    and   (2) evidence        of    Gibney's    "propensity    for

violence," consisting of a photograph of the bite mark Gibney left

on Haidak's arm in February 2013 and the testimony of Haidak's

mother about Gibney's history of physical aggression.




        7
       Cardoso maintains that, after she pointed out that the
transcript included information that would be damaging to Haidak,
and that Gibney would admit that some of their contact was
consensual, Haidak chose not to put the transcript before the
Board.   Haidak disputes this account, and for purposes of this
appeal, we are required to credit Haidak's version of the facts.


                                        - 18 -
          The excluded transcript revealed that, in state court,

Gibney first tried to minimize the extent of her welcomed contact

with Haidak that took place after the no-contact orders were

issued.   When pressed, she admitted to additional consensual

interactions with Haidak.     Had Gibney thereafter successfully

convinced the Hearing Board that there was no significant, post-

order consensual contact between the two of them, one might well

question the exclusion of the transcript. Gibney, though, admitted

to the Hearing Board the consensual nature of her post-order

contact with Haidak.    And as the district court aptly noted, the

board acquitted Haidak of the harassment charge.    Haidak, 299 F.

Supp. 3d at 266.       So, Haidak is reduced to arguing that he

nevertheless should have been able to use the transcript to show

that, because Gibney tried to mislead the state court on what

transpired over the summer, she was also trying to mislead the

Hearing Board on what transpired in Barcelona.

          As we noted earlier, the rules that govern a common law

trial need not govern a university disciplinary proceeding.    See

Gorman, 837 F.2d at 14.     But the rules of trial may serve as a

useful benchmark to guide our analysis.    For example, even in a

full-blown federal trial, "extrinsic evidence is not admissible to

prove specific instances of a witness's conduct in order to attack

or support the witness's character for truthfulness."     Fed. R.

Evid. 608(b).   And extrinsic evidence aside, the court has ample


                               - 19 -
discretion     to    exclude    evidence   "if   its   probative   value   is

substantially outweighed by a danger of . . . undue delay, wasting

time, or needlessly presenting cumulative evidence."                Fed. R.

Evid. 403.     Because a federal district court would have been well

within its discretion in excluding the transcript, it follows a

fortiori that an identical decision by the Hearing Board did not

violate Haidak's right to due process.

             Similar reasoning applies to the exclusion of "evidence

of [Gibney's] propensity for violence," including the photograph

of the bite mark and the testimony by Haidak's mother.             Even in a

federal criminal trial, "[e]vidence of a person's character or

character trait is not admissible to prove that on a particular

occasion the person acted in accordance with the character or

trait."   Fed. R. Evid. 404(a)(1).           An exception to this general

rule allows a defendant in a criminal case to "offer evidence of

an   alleged        victim's   pertinent     trait,"   such   as    physical

aggressiveness.       Fed. R. Evid. 404(a)(2).     However, such evidence

may only be introduced in the form of testimony about the alleged

victim's reputation or by testimony in the form of an opinion.

Fed. R. Evid. 405(a).          Testimony by Haidak's mother that Gibney

had previously struck Haidak would have exceeded this narrow

exception.     And in any event, the evidence was redundant.         Haidak

testified -- and Gibney did not dispute -- that "a lot of these

instances occurred, these sort of instances where she would become


                                    - 20 -
violent when she was drunk."             There was nothing unfair -- much

less constitutionally unfair -- about the Board's decision to keep

its focus on the events at issue.

                                         2.

             Next, Haidak argues that the Hearing Board violated his

right to procedural due process by failing to accord him the

opportunity    to   interrogate        Gibney      directly.       In    Gorman     v.

University     of     Rhode     Island,        a    student      challenged         the

constitutionality      of   university        disciplinary       proceedings    that

resulted in his suspension.            837 F.2d at 9.       Among other things,

Gorman    contended     that     the     university        deprived      him   of    a

constitutional right to cross-examine members of the university

Hearing Board on his allegations of bias.             Id. at 16.        We concluded

that the University of Rhode Island did not violate Gorman's

procedural due process rights, noting that "the right to unlimited

cross-examination has not been deemed an essential requirement of

due process in school disciplinary cases."                 Id. (emphasis added).

Haidak urges us to hold that, while unlimited cross-examination

may not be required, due process demands that the accused be

allowed   to   question       opposing    witnesses        directly     whenever     a

university     disciplinary      proceeding        turns    on    the    witnesses'

credibility.

             In adjudicating Haidak's case, the university employed

a non-adversarial model of truth seeking.              It was the university's


                                       - 21 -
responsibility, rather than the parties', to investigate the facts

and     develop     the    arguments     for    and    against     a   finding      of

responsibility.       Neither party made opening or closing arguments

to the board.       Though both parties submitted written statements of

fact, neither submitted brief-like materials that argued for or

against a finding of responsibility.                  Neither party questioned

witnesses.

             Such a system of adjudication can fairly be called

inquisitorial.       See Inquisitorial System, Black's Law Dictionary

(11th ed. 2019) (defining "inquisitorial system" as a "system of

proof-taking used in civil law, whereby the judge conducts the

trial, determines what questions to ask, and defines the scope and

the extent of the inquiry").            No doubt, this model of justice is

not the one our founders chose for criminal trials.                     U.S. Const.

amend. VI       ("In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him

. . . ."); see also Crawford v. Washington, 541 U.S. 36, 61 (2004)

(The    Confrontation        Clause    "commands,      not    that     evidence     be

reliable, but that reliability be assessed in a particular manner:

by testing in the crucible of cross-examination.").                    But this is

not    to   say   that     the    inquisitorial   model      is   constitutionally

inadequate in all settings. In fact, we consider the inquisitorial

model    fair     enough    for    critical    administrative      decisions      like

whether to award or terminate disability benefits.                     See Sims v.


                                       - 22 -
Apfel, 530 U.S. 103, 110–11 (2000) (explaining that Social Security

proceedings are inquisitorial rather than adversarial).

             We are aware of no data proving which form of inquiry

produces the more accurate result in the school disciplinary

setting.     Considerable anecdotal experience suggests that cross-

examination in the hands of an experienced trial lawyer is an

effective tool.    See California v. Green, 399 U.S. 149, 158 (1970)

(noting that cross-examination is "the greatest legal engine ever

invented for the discovery of truth" (internal quotation marks

omitted)).    One must keep in mind, however, that courts generally

find that an accused student has no right to legal counsel in

school disciplinary proceedings.    See Gorman 837 F.2d at 16.   Nor

does Haidak assert such a right in this case.      So, his position

would seem to be that the accused student must be allowed to

question opposing witnesses himself.

             As a general rule, we disagree, primarily because we

doubt that student-conducted cross-examination would so increase

the probative value of hearings and decrease the "risk of erroneous

deprivation," Mathews, 424 U.S. at 335, that it is constitutionally

required in this setting.    In the hands of a relative tyro, cross-

examination can devolve into more of a debate.        And when the

questioner and witness are the accused and the accuser, schools

may reasonably fear that student-conducted cross-examination will

lead to displays of acrimony or worse.


                               - 23 -
           This   is   not    to   say   that   a   university     can    fairly

adjudicate a serious disciplinary charge without any mechanism for

confronting the complaining witness and probing his or her account.

Rather, we are simply not convinced that the person doing the

confronting   must     be    the   accused   student   or   that    student's

representative.      In this respect, we agree with a position taken

by the Foundation for Individual Rights in Education, as amicus in

support of the appellant -- that due process in the university

disciplinary setting requires "some opportunity for real-time

cross-examination, even if only through a hearing panel."

           Arguing that due process requires more than inquisition

of the complaining witness by the factfinder alone, Haidak points

to the Sixth Circuit's decision in Doe v. Baum, 903 F.3d 575 (6th

Cir. 2018).   In that case, a female student alleged that a male

student had sex with her while she was so drunk that she could not

consent.   Id. at 579.       The accused claimed that his accuser did

not appear drunk and in fact expressly consented.            Id.     A school

investigator found the competing versions in equipoise.                   Id. at

580.   A university board then ruled against the accused student,

with no testimonial hearing at all, because "Roe's description of

events was 'more credible' than Doe's, and Roe's witnesses were

more persuasive."      Id.    In a holding that we could easily join,

the court found the complete absence of any examination before the

factfinder to be procedurally deficient.             Id. at 581.         But the


                                    - 24 -
court took the conclusion one step further than we care to go,

announcing a categorical rule that the state school had to provide

for cross-examination by the accused or his representative in all

cases turning on credibility determinations.                       Id.

              We stop short of adopting that latter pronouncement

because      we    have    no   reason   to    believe      that    questioning    of   a

complaining witness by a neutral party is so fundamentally flawed

as    to   create     a    categorically       unacceptable        risk   of   erroneous

deprivation.        We also take seriously the admonition that student

disciplinary proceedings need not mirror common law trials.                           See

Goss, 419 U.S. at 583 ("To impose . . . even truncated trial-type

procedures might well overwhelm administrative facilities in many

places and, by diverting resources, cost more than it would save

in educational effectiveness."); Gorman, 837 F.2d at 16 ("A major

purpose of the administrative process, and the administrative

hearing,      is     to     avoid     the     formalistic         adversary    mode     of

procedure.").         If we were to insist on a right to party-conducted

cross-examination, it would be a short slide to insist on the

participation of counsel able to conduct such examination, and at

that point the mandated mimicry of a jury-waived trial would be

near complete.

              That still leaves us with the question of whether, in

this case, the university's inquisitorial approach to ferreting

out    the    truth       was   so   inadequate      that    it     violated   Haidak's


                                            - 25 -
procedural due process rights.      When a school reserves to itself

the right to examine the witnesses, it also assumes for itself the

responsibility to conduct reasonably adequate questioning.                 A

school cannot both tell the student to forgo direct inquiry and

then fail to reasonably probe the testimony tendered against that

student.

           Whether   the   university   in    this   case    fulfilled   that

responsibility is a close question.          The university's manual for

its Hearing Board implied that the Board should choose student

comfort at the expense of serious examination.          It called for the

Board to start by calming the student with "easy" questions, to

avoid leading questions, and to beware of the "danger of pursuing

a line of questions" because "it can be very adversarial." Efforts

of this type to put a witness "at ease," when applied only to a

complaining   witness,     helped   render     potentially      unfair   the

proceedings in another recent case we decided.              See Trs. of Bos.

Coll., 892 F.3d at 87.     Here, though, at least the manual advised

the Board to use this ill-suited kid-gloves approach for witnesses

on both sides of the dispute.

           Even more concerning, when Haidak proposed a list of

thirty-six questions that he wanted the Board to ask Gibney,

Cardoso struck twenty questions from the list before submitting it

to the Hearing Board, thereby preventing the Board from knowing

Haidak's proposed questions and deciding whether to ask them as it


                                 - 26 -
saw the testimony play out. In this manner, the university created

the possibility that nobody would effectively confront Gibney's

accusations.

              As it turned out, the members of the Board nevertheless

managed to avoid the pitfalls created by the university. The Board

questioned Gibney at length on the matters central to the charges.

It probed for detail8 and required her to clarify ambiguities in

her responses.9     It inquired into her level of intoxication, asking

for an estimate of the number of drinks she had consumed and if it

was true that she had fallen down earlier in the night.                    By

alternating between questioning Haidak and Gibney, ultimately

examining each student three times, it engaged in an iterative

process in which its questioning of Gibney was informed in real

time by Haidak's testimony as the proceedings unfolded.              In so

doing,   it    extracted   Gibney's   admission   that   she   continued   a




     8 For example, observing that Gibney's description of the
incident "went a little fast," the Board asked, "Would you mind
restating . . . how you got from the main room where you were
arguing to the bedroom? Did you go there of your own accord? Were
you pushed or pulled? You said he took you by the neck to there,
but could you be more specific?".
     9 For example, a Board member asked whether Gibney and Haidak
"[had] any contact that could be considered like a romantic
relationship as a continuation from [their] prior relationship
during the time when the no contact order was in place." When
Gibney answered with a simple "yes," the Board member asked her to
"explain what you mean by yes."       In response, Gibney stated,
"[w]hen he came to Amherst we did have romantic, physical contact."


                                  - 27 -
"romantic" relationship with Haidak after Barcelona and during the

period covered by the no-contact orders.

             In arguing that the Board's questioning of Gibney was

nevertheless constitutionally inadequate, Haidak points to four

areas of inquiry that he claims the Board improperly failed to

pursue.   For two of these -- Gibney's "propensity for violence"

and her "untruthfulness at the restraining order proceeding" -- we

rest on our discussion above.      As to the third area of inquiry,

"the   post-Barcelona    steps    [Gibney]   took   to   conceal   her

relationship with Haidak from her parents" and "whether [Gibney]

lied to her friends about resuming contact with Haidak," we fail

to see much, if any, probative value in such inquiries.        Gibney

conceded that she and Haidak had consensual contact, including

physical contact, while the no-contact orders were in place.       The

Board also absolved Haidak of the harassment charge, and Gibney's

desire to hide the ongoing relationship from her parents and

friends seems irrelevant to whether Haidak's use of force was

justified.    Finally, Haidak takes issue with the Board's decision

not to inquire into whether Gibney "blamed her parents for the

disciplinary proceedings" or "expressed a desire that all charges

be 'dropped.'"    But it is unclear what relevance Gibney's feelings

about the disciplinary process have to whether Haidak's use of

force in Barcelona was disproportionate.




                                 - 28 -
          The Board's ultimate findings also reflect that its

probing exposed weaknesses in the charges against Haidak.      The

Board decided that Haidak was not responsible for Endangering

Behavior, the most serious charge he faced, because "his actions

did not rise to a level violating this policy." It similarly found

him not responsible for either harassment charge because "the

contact after the April incident was mutual and non-threatening."

It found Haidak responsible for violating the no-contact orders,

which he admitted, and assault, but only because "his behavior was

disproportionate to the actions he attributed" to Gibney.     This

finding seems reasonable, and was very likely the product of a

judgment about the credibility of the two protagonists, the bruises

on Gibney's wrists, and the undisputed fact that she immediately

reported to her mother that Haidak had assaulted her.    Moreover,

Gibney testified in person, while Haidak chose to appear by phone,

a decision that possibly created a greater disadvantage than that

posed by any of the challenged procedures.

          All in all, the Board managed to conduct a hearing

reasonably calculated to get to the truth by allowing Haidak to be

heard after Gibney testified and by examining Gibney in a manner

reasonably calculated to expose any relevant flaws in her claims.

We therefore disagree with Haidak that the expulsion hearing did

not provide due process.




                              - 29 -
                                          B.

            We    turn    next    to    the    process     surrounding        Haidak's

suspension pending the expulsion hearing.                  To recap, on June 3

and 4, Gibney and her mother presented Berger with evidence that

Haidak    had    called   Gibney       thirty-one   times       after      the   May 28

no-contact order was issued.               Thirteen days later, and without

prior notice, Berger suspended Haidak indefinitely. Two days after

that, Berger spoke on the phone with Haidak and his father and

agreed to review Haidak's written response to the charges.                          As

best the record reflects, Berger did not thereafter confront Gibney

with   those     responses,      instead      letting    the    suspension       stand.

Because the university failed to schedule an expulsion hearing

before November, the suspension lasted five months.

            While it lasts, a suspension more or less deprives a

student of all the benefits of being enrolled at a university.

The Supreme Court has held that a deprivation of this sort requires

notice and a hearing.            See Goss 419 U.S. at 579 ("At the very

minimum   . . .     students      facing      suspension       and   the    consequent

interference with a protected property interest must be given some

kind of notice and afforded some kind of hearing.").                       What type of

notice and what type of hearing turn on the interests implicated

in each particular case.          See Doe v. Univ. of Cincinnati, 872 F.3d

393, 400 (6th Cir. 2017) ("The more serious the deprivation, the

more demanding the process.").


                                        - 30 -
            As a general rule, both notice and a hearing should

precede a suspension.      Goss, 419 U.S. at 582; Gorman, 837 F.2d at

12-13.    On occasion, though, exigencies may properly provide an

exception to this general rule:       "Students whose presence poses a

continuing danger to persons or property or an ongoing threat of

disrupting the academic process may be immediately removed from

school.     In such cases, the necessary notice and rudimentary

hearing should follow as soon as practicable . . . ."           Goss, 419

U.S. at 582–83; see also Elena v. Mun. of San Juan, 677 F.3d 1, 9

(1st Cir. 2012) ("Although prior notice is generally required for

a governmental deprivation of property to comport with procedural

due process, the Supreme Court has held that there is an exception

for cases 'where a State must act quickly, or where it would be

impractical to provide predeprivation process.'" (quoting Gilbert

v. Homar, 520 U.S. 924, 930 (1997))).

            Here, however, the record belies any claim of exigency.

The university waited thirteen days after learning about the

continued   contact   to   issue    the   suspension   order.    And   the

university offers no evidence suggesting that it was infeasible to

provide some type of process during the available thirteen days

before it imposed a suspension.

            The university did allow Haidak to respond to the charges

both orally and in writing fifteen days after Gibney complained

and two days after the suspension took effect.         Given the apparent


                                   - 31 -
absence of any perceived exigency, that process came too late to

serve as an opportunity to be heard before the suspension began.

And it was, in any event, insufficient to provide, by itself, due

process in connection with a five-month suspension that ran through

most of a semester.      Importantly, the university knew that on the

key issue justifying a lengthy suspension -- whether the continued

communication represented a threat to the university community --

Haidak directly disputed Gibney's account in a manner that could

be verified.    The university could easily have confronted Gibney

with the information provided by Haidak, and even a rudimentary

hearing would have revealed that Haidak's contact with Gibney was

welcomed and reciprocated.      When a state university faces no real

exigency and certainly when it seeks to continue a suspension for

a lengthy period, due process requires "something more than an

informal    interview    with   an    administrative     authority       of   the

college."   Gorman, 837 F.2d at 14 (quoting Dixon v. Ala. State Bd.

of Educ., 294 F.2d 150, 158 (5th Cir. 1961)).                 But "an informal

interview" is all Haidak received.

            Certainly,   a   university       may   proceed    in   stages.     A

university can first ask a student to respond to the charge.                  And

if the response offers no plausible defense, then the need for

further inquiry diminishes, much like the manner in which a guilty

plea eliminates the need for further proceedings.                   But when the

response leaves the matter turning on credibility, the interests


                                     - 32 -
at stake are as substantial as those implicated by an extended

suspension, and no perceived exigency exists, a university must do

more than presume one version to be correct.

           The   university     does      argue    that,   given     Gibney's

accusations and Haidak's response, it had no need to conduct a

more robust hearing.      The university points to Haidak's admission

that he had repeatedly contacted Gibney even after the no-contact

orders took effect.       But, had university officials conducted a

more substantial hearing before suspending Haidak, they would

likely have discovered that they misunderstood the nature of the

contact   between   him   and   Gibney.      And   as   university   counsel

forthrightly conceded at oral argument, the record does not compel

a finding that the university would have suspended Haidak had it

known that the communications were welcomed and reciprocated by

Gibney. After all, the Board ultimately concluded that the contact

between Haidak and Gibney was "non-threatening," undermining the

university's contention that the illicit contact was a threat that

warranted immediate suspension.        In sum, the suspension decision

was not a slam dunk, and there was ample time to provide prior

notice and a meaningful opportunity to be heard. On such a record,

the university violated Haidak's due process rights.

           It is true, as the university argues, that the failure

to provide a pre-suspension hearing ultimately caused no actual

injury, because the final penalty of expulsion was imposed in


                                  - 33 -
accordance with due process.        But the Supreme Court has ruled that

a violation of procedural due process rights, even in the absence

of actual injury, justifies a finding in favor of the student and

an award of nominal damages.         See Carey v. Piphus, 435 U.S. 247,

266 (1978); see also Farrar v. Hobby, 506 U.S. 103, 112 (1992)

("Carey obligates a court to award nominal damages when a plaintiff

establishes the violation of his right to procedural due process

but cannot prove actual injury."); Ford v. Bender, 768 F.3d 15, 24

(1st    Cir.    2014)   ("The   merits    of   the   deprivation   itself   are

immaterial to the procedural due process analysis.").10

                                         C.

               Haidak also tries to advance an argument that the delay

in convening his expulsion hearing was itself a violation of due

process.       To a large extent, this argument is simply the flipside

of the argument that we have already accepted, i.e., that he should

not have been suspended for so long without a hearing.                 Haidak

also seems to suggest that the delay independently harmed him

because the version of the university's hearing procedures in

effect prior to the fall of 2013 allowed for student-conducted

cross-examination.        But Haidak develops no argument that due

process requires the application of whatever procedural rules were

in effect at the time of the offense or charge, so we deem any


       10
       We need not consider prior to remand how the district court
should handle a motion for fees should one be filed.


                                    - 34 -
such argument waived.        See United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied    by   some   effort    at    developed   argumentation,   are

deemed waived.").

                                      III.

             Finally, Haidak challenges the district court's summary

judgment dismissal of his Title IX claim.                Title IX prohibits

federally funded universities from discriminating against students

on the basis of sex.     20 U.S.C. § 1681(a).        Below, Haidak pursued

both "erroneous outcome" and "selective enforcement" theories of

liability.     See Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir.

1994) (explaining that attacks against a university disciplinary

proceeding on grounds of gender bias generally fall within these

two categories).11     On appeal, Haidak presses only the selective

enforcement theory.     To succeed on such a claim, Haidak must show

that "the severity of the penalty and/or the decision to initiate

the proceeding was affected by the student's gender."           Id. at 715.




     11 Both parties agree on the theories of liability outlined
in Yusuf. We have, in the past, applied the Yusuf framework to
Title IX challenges based on disciplinary proceedings, though we
have held off on deciding whether, as in the Second Circuit, "the
temporary presumption afforded to plaintiffs in employment
discrimination cases under Title VII applies to sex discrimination
plaintiffs under Title IX as well." Trs. of Bos. Coll., 892 F.3d
at 90 n.13 (quoting Doe v. Columbia Univ., 831 F.3d 46, 56 (2d
Cir. 2016)).


                                   - 35 -
Haidak alleges that both the decision to initiate charges and the

penalty imposed were affected by his sex.

           Haidak's claim that the decision to initiate charges was

affected by his sex rests on the fact that the university filed

charges against him when Gibney accused him of misconduct, yet

filed no charges against her when he accused her of misconduct.

But the two were not similarly situated as complainants.                  Gibney

and her mother affirmatively contacted the university to report

her charges and to seek relief.          A reasonable administrator would

have construed that contact as a request to pursue the matter so

as to be able to provide relief.         Haidak's accusations came second

in time and arose only defensively.            And when expressly told that

he could initiate a charge under the CSC, he demurred.

           As     the    university    concedes,    it    still   could     have

initiated a charge against Gibney on its own initiative.               The CSC

provided   that    the    university    could    file    appropriate   charges

against a student "[a]t the request of any student, faculty or

staff member or independently."          But we see no basis in the CSC or

in the record for concluding that the university always had to

initiate a charge even when the student declined an invitation to

do so.

           More importantly, showing that the university had an

"unwritten, race-to-the-dean's-office policy," as Haidak alleges,

is not enough to support an inference of discrimination on the


                                      - 36 -
basis of sex.     To make out a claim under Title IX, Haidak must

show that "gender bias was a motivating factor" in the disciplinary

process.   Trs. of Bos. Coll., 892 F.3d 67, 90 (1st Cir. 2018)

(quoting Yusuf, 35 F.3d at 715).     At most, Haidak has alleged that

the university pursued Gibney's case instead of his because Gibney

made the allegation first -- not because Haidak's sex influenced

the university.

           We turn next to Haidak's argument that the testimony of

his expert witness justifies a trial on his claim that he was

penalized more severely on account of his sex.          Haidak's expert

analyzed   university   data    regarding   assault   charges   occurring

between 2010 and 2015.         The data set included the sex of the

complaining and charged students, the charges, whether there was

a finding of responsibility, and what sanction followed.          It did

not include the students' disciplinary records or any information

about the charged conduct, including whether injuries resulted.

The data revealed that ninety-three male students and twenty-six

female students were found responsible for assault, and of these,

thirteen students were expelled, all of whom were male.

           We have never recognized a private right of action for

disparate-impact discrimination under Title IX.        See Alexander v.

Sandoval, 532 U.S. 275, 283 (2001) (holding that there is no

private right of action for disparate-impact discrimination under

the similarly worded Title VI); see also Cannon v. Univ. of


                                  - 37 -
Chicago,   441   U.S.   677,   694–95    (1979)   (noting   that   Congress

patterned Title IX after Title VI and intended to create the same

remedies under both statutes).          Haidak, though, correctly argues

that proper evidence of a statistical disparity may generate an

inference of intentional discrimination.          Cohen v. Brown Univ.,

101 F.3d 155, 170–71 (1st Cir. 1996) ("Title IX, like other anti-

discrimination schemes, permits an inference that a significant

gender-based statistical disparity may indicate the existence of

discrimination.").

           For a statistical disparity to support an inference of

sex discrimination, the evidence must "tend to show that there was

a causal connection between the outcome of [the] disciplinary

proceedings and gender bias."      Trs. of Bos. Coll., 892 F.3d at 91.

Here, although the data show that male students were more often

accused of and more often expelled for assault, the data fail to

address an array of alternative explanations.         These trends could

reflect, for example, that male students on average had lengthier

disciplinary histories or committed more serious assaults, or that

assaults committed by women were reported less often, rather than

that the university discriminated against male students.           Haidak's

expert acknowledged these weaknesses, stating in his deposition,

"I'm not saying that there is proof here of discrimination, or

even bias in sort of a colloquial sense."




                                  - 38 -
            Haidak half-heartedly counters that the district court

prevented him from obtaining the kind of detailed data that would

have allowed his expert to draw more robust conclusions.                  But

Haidak's brief presses no appeal to the discovery orders that

limited the data available to his expert and instead asserts that

"the statistical universe upon which [the expert] relied was

complete and highly relevant."

            Even if the foregoing weaknesses might not preclude the

use of the expert's analysis in a disparate-impact case -- an issue

we   need   not   decide   --   its    relevance   in   proving   intentional

discrimination is further undercut by the absence of any evidence

that the person who selected Haidak's penalty, Vaillancourt, was

also the person who selected the penalties in the assault cases

examined by Haidak's expert.           Even if one could infer from the

data that another decision maker issued higher penalties based on

sex, that inference says little about whether the decision maker

in this case brought to bear any bias on the basis of sex.

            The university also provided a convincing, sex-neutral

explanation for the sanction of expulsion:

            Despite the [two] earlier attempts by the
            University to redirect [Haidak's] decision-
            making and behavior, he had not altered his
            behavior. Further, in light of his flagrant
            violation of the university's [two] no contact
            orders, it was clear he would not comply with
            any future directives from the university to
            ensure the safety of himself, [Gibney], or
            others.


                                      - 39 -
In light of this highly plausible explanation, and the weakness of

the statistical evidence, we agree with the district court that no

reasonable jury could infer from the expert's report that the

decision to expel Haidak was motivated by his sex in violation of

Title IX.

                                    IV.

            The university argues that, should we find that the

district court erred, in whole or in part, in granting its motion

for summary judgment, we should dismiss the claims for monetary

relief against the university officials as barred by sovereign

immunity under the Eleventh Amendment.               Haidak concedes that

sovereign immunity bars his claims for monetary damages against

the university officials acting in their official capacities, but

notes   that   he   also   sued   the   university    officials   in    their

individual capacities.      The Eleventh Amendment does not bar suits

for damages against state officials sued in their individual

capacities, though such officials are usually protected by common

law immunity.       See Hafer v. Melo, 502 U.S. 21, 26 (1991).               We

therefore   affirm    on   alternate    grounds   the   dismissal      of   the

section 1983 claims for damages, but only against the university

employees acting in their official capacities.

            In the alternative, the university argues that -- even

if sovereign immunity does not bar the claims against the officials



                                   - 40 -
in their individual capacities -- the university officials are

protected by qualified immunity.                 However, the university failed

to invoke qualified immunity below, and this defense is therefore

waived.     See Guzmán-Rivera v. Rivera-Cruz, 98 F.3d 664, 667 (1st

Cir. 1996) ("Since immunity must be affirmatively pleaded, it

follows that failure to do so can work a waiver of the defense."

(quoting Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir.

1986))).

                                            V.

            For    the     foregoing    reasons,       we    affirm   the   district

court's dismissal of Haidak's section 1983 claims challenging the

constitutional adequacy of his expulsion hearing; we affirm on

alternate     grounds       the   district         court's    dismissal     of   his

section 1983      claims    for   money      damages    against   the    university

officials acting in their official capacities; and we affirm the

dismissal of his Title IX claim; but we vacate for the entry of

nominal monetary damages the dismissal of Haidak's section 1983

claims challenging the constitutionality of the manner in which

the university suspended him for five months without prior notice

or   an   adequate   hearing.          We    remand    for   further    proceedings

consistent with this opinion.                No costs are awarded to either

party.




                                       - 41 -
