            United States Court of Appeals
                       For the First Circuit
No. 15-1154

                            MEGON WALKER,

                        Plaintiff, Appellant,

                                 v.

     PRESIDENT AND FELLOWS OF HARVARD COLLEGE, also known as
       Harvard Corporation, ELLEN COSGROVE, LLOYD WEINREB,

                       Defendants, Appellees,


                BRADLEY HAMBURGER, LINDSAY KITZINGER,

                             Defendants.



            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF MASSACHUSETTS
              [Hon. Rya W. Zobel, U.S. District Judge]


                               Before

                Thompson and Kayatta, Circuit Judges,
                  and Mastroianni,* District Judge.


          John J.E. Markham, II, for appellant.
          Daryl J. Lapp, with whom Elizabeth H. Kelley was on
brief, for appellee.


                          October 24, 2016




     *   Of the District of Massachusetts, sitting by designation.
              MASTROIANNI, District Judge. Between 2006 and 2009 Megon

Walker ("Walker") attended Harvard Law School ("HLS").            Walker was

a member of the staff of a student-run law journal, the Journal of

Law and Technology ("JOLT").        During her final semester at HLS,

Walker delivered a draft article (the "Note") to senior staff of

JOLT.       After concerns arose among the senior staff regarding the

Note, an investigation was launched by HLS. The HLS Administrative

Board (the "Board") subsequently held a hearing and found the Note

contained plagiarism in violation of the HLS Handbook of Academic

Policies (the "Handbook").      Walker received a formal reprimand and

a notation regarding the matter was added to her transcript.

Despite the reprimand, Walker graduated on time from HLS. However,

after the notation was placed on her transcript, at least one law

firm rescinded a lucrative offer of employment.

              Seeking   to   have   the     notation    removed      from   her

transcript, Walker initiated this suit asserting claims for breach

of contract and defamation against the President and Fellows of

Harvard College ("Harvard")1; Ellen Cosgrove ("Cosgrove"), then-

Dean of Students at HLS; and Lloyd Weinreb, a Professor at HLS and

Chair of the Board in 2009 (together "Defendants").2                 After the


        1
       This entity has         ultimate     authority   over   HLS    and   the
conferral of degrees.
        2
       Initially, the two students who were co-Editors-in-Chief of
JOLT, Bradley Hamburger ("Hamburger") and Lindsay Kitzinger
("Kitzinger"), were also named as defendants.      Walker filed a



                                    - 2 -
completion of discovery and a stipulation of dismissal as to some

claims, Defendants filed their Motion for Summary Judgment.                The

district court granted summary judgment for Defendants on all

counts and dismissed the action.             Walker has appealed the ruling

on two of the counts.              After reviewing the issues de novo, we

affirm.



                                   I.   Background

                  Walker initiated this suit in May 2012.      Jurisdiction is

based on diversity and the claims are brought under Massachusetts

law.        Four counts were pending when Defendants filed their Motion

for Summary Judgment: Count I – breach of contract against Harvard

based        on    the   Board's   finding   that   Walker   had   sufficiently

"submitted" the Note for it to be covered by the Handbook; Count

II – breach of contract against Harvard based on alleged failures

of the Board to comply with provisions in the Handbook; Count IV

– defamation based on the inclusion of the plagiarism findings in

Walker's HLS transcript; and Count VI – asserting an entitlement

to injunctive relief.3             Walker has appealed only the district

court's grant of summary judgment as to Counts I and IV.                   We,




stipulation of dismissal as to all claims against them before
Defendants filed their Motion for Summary Judgment.
        3
       Count III and Count V were resolved by stipulation of
dismissal before the motion for summary judgment was filed.


                                        - 3 -
therefore, set out the facts we deem relevant to those counts in

the light most favorable to her and draw all reasonable inferences

in her favor.      See Martinez v. Petrenko, 792 F.3d 173, 175 (1st

Cir. 2015).



     A. Preparation of the Note

            As a first year student at HLS, Walker joined the staff

of JOLT.    Walker first worked as a "sub-citer," checking citations

against their original source material.         During her last year of

law school, Walker applied to write a comment for JOLT on a

recently decided patent case.         Her application was accepted and

she commenced work on the comment, which was to be published in

the spring of her third year.

            Upon acceptance of her application, JOLT informed Walker

that an initial complete draft of the Note would be due on February

1, 2009.    The deadline for the final draft of the Note was February

22, 2009.     Walker understood that the piece she turned in on (or

after) the February 22, 2009 deadline would be subjected to the

rigorous editing and citation-checking process she had helped with

as a sub-citer.     As that process normally unfolded, an author was

not permitted to make changes to an article during the editing and

citation-checking process.          At the conclusion of that process,

authors     were   permitted   to    make   limited   changes   prior   to

publication.


                                    - 4 -
            Walker delivered a first draft of the Note to JOLT on

February 2, 2009.          She turned in a second draft on February 8,

2009, and a third draft on February 16, 2009.             Around the time the

third draft was due, Walker began experiencing problems with her

laptop.    On the day she sent the third draft to JOLT, her laptop

was infected with a computer virus.            While working on her computer

with IT support, Walker saw Anna Volfstun ("Volfstun"), JOLT's

Submissions      Editor.      She    told    Volfstun   about   the   virus   and

explained that due to the virus, the Note would require significant

additional work to be made ready for publication.                The next day,

on February 17, 2009, Walker attended a JOLT student writing

committee meeting where she discussed the virus causing her to

lose data from her computer.

            On February 20, 2009, Doug Kochelek ("Kochelek"), the

JOLT editor in charge of student articles, sent an email to remind

Walker and other students their final draft articles were due on

February 22, 2009.       Kochelek said the articles would be "subcited"

the following weekend before being returned "after spring break

for [authors'] last round of review with opportunity for changes."

Walker responded, via email, on February 22, 2009: "I doubt that

I   can   send    [the     Note]    before    10   tonight.     Footnotes     and

proofreading are taking all weekend."              When Kochelek asked Walker

when she would be sending the Note, she replied it would be that




                                       - 5 -
night. She also wrote "I'm over the length limit again and cutting

more."



        B. Concerns Regarding the Note

              On February 24, 2009, two days after Walker said she

would send the Note to JOLT, she sent an email to Kochelek and

other JOLT senior staff, which read: "Here's the latest draft of

the . . . piece.        Sorry about the delay. Let me know if you have

difficulty finding any sources."               The piece was still over the

word     limit.       Walker    subsequently     met   with     Andrew    Ungberg

("Ungberg"), the line editor responsible for part of the citation-

checking process.        During that meeting Walker gave Ungberg two

electronic files that contained versions of her sources obtained

from Westlaw.        She told Ungberg about the virus on her computer,

indicating her draft had problems, including issues with citations

and quotations, and she would need to "go back to the sources and

compare the arguments . . . and quotations."                 Walker also sent an

email    to   JOLT   staff     on   February   27,   2009,    stating    that   she

continued to work on the Note after having provided the final draft

on February 24, 2009.

              In early March, when JOLT staff began editing the Note,

concerns arose that much of Walker's argument was derivative of

the dissent in the case about which she was writing.                The Article

Editor for the Note prepared a summary of the draft for comparison


                                       - 6 -
with other publications and Ungberg compared the Note with the

dissent from the case.        On March 11, 2009, Volftsun, the JOLT

staffer who had spoken with Walker at the IT Help area on February

16, 2009, sent an email offering to help Walker fix issues with

the Note.     Around the same time, Hamburger used Google to run

searches on full sentences from the Note.       He created an annotated

version of the Note showing which sentences were copied from other

sources.     He stopped after documenting 23 instances.          In mid-

March,     Hamburger   and   Kitzinger    discussed   their   attribution

concerns with Walker and then with Cosgrove, the Dean of Students.



     C. HLS Review and Disciplinary Process

            Cosgrove referred the Note to the Board, which reviewed

the matter and considered whether to move forward with a charge of

plagiarism. The plagiarism policy of HLS reads in part as follows:

     All work submitted by a student for any academic or non-
     academic exercise is expected to be the student's own
     work. In the preparation of their work, students should
     always take great care to distinguish their own ideas
     and knowledge from information derived from sources. .
     . . Students who submit work that is not their own
     without clear attribution of all sources, even if
     inadvertently, will be subject to disciplinary action.



            After the Board voted to move forward with the plagiarism

charge, Walker was notified.       The Board consulted with Walker's

attorneys and scheduled a hearing for May 7, 2009. Although Walker



                                  - 7 -
sought to resolve the situation without a hearing, she was told

the plagiarism charge was too serious to be resolved informally.

Following the hearing, the Board issued Walker a formal reprimand

which ultimately appeared on her transcript and caused the loss of

an employment offer.4



                        II.   Standard of Review

          "Summary judgment is appropriate when the record shows

that 'there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.'"    Farmers Ins.

Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting

Fed. R. Civ. P. 56(a)).       "A genuine issue is one that can 'be

resolved in favor of either party' and a material fact is one which

'has the potential of affecting the outcome of the case.'"    Gerald

v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013) (quoting Pérez–

Cordero v. Wal–Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir. 2011)).

"We review de novo the grant of a motion for summary judgment."

Farmers Ins. Exch., 632 F.3d at 782.      "[W]e may affirm the entry

of summary judgment on any ground made manifest by the record, so

long as the record reveals that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment




     4 Suspension is the normal punishment following a finding of
plagiarism.


                                  - 8 -
as a matter of law."        Batista v. Cooperativa De Vivienda Jardines

De   San   Ignacio,   776    F.3d   38,    42   (1st   Cir.   2015)   (citations

omitted).



                               III. Discussion

            The parties agree the Student Handbook sets out the terms

of a contract between Walker and HLS.                  We proceed under that

assumption, applying Massachusetts law to interpret the Handbook.5

See Cloud v. Trs. of Boston Univ., 720 F.2d 721, 724 (1st Cir.

1983); Schaer, 735 N.E.2d at 378.

            Where,    as    here,   a   private-school    student     or   former

student sues a school alleging breach of contract, the standard of

reasonable expectation applies.            Schaer, 735 N.E.2d at 378; see

also Driscoll, 873 N.E.2d at 1185-86.                  Under this reasonable

expectation standard, courts ask, in interpreting the contractual



      5Because HLS does not dispute that the Handbook sets out the
terms of a contract, we assume without deciding that a contract
exists. We note, however, that while courts have treated student
handbooks as contracts between students and schools, the question
of whether such a document always constitutes a contract is,
arguably, an unsettled issue under Massachusetts law.       Compare
Pacella v. Tufts Univ. Sch. of Dental Med., 66 F. Supp. 2d 234,
240 (D. Mass. 1999) (noting that "[w]hether a student handbook can
supply the terms of the contract between a university and its
students is unclear under Massachusetts law"), with Driscoll v.
Bd. of Trs. of Milton Acad., 873 N.E.2d 1177, 1185 (Mass. App. Ct.
2007) (deciding to treat school’s student handbook as a contract);
see also Schaer v. Brandeis Univ., 735 N.E.2d 373, 378 (Mass. 2000)
(assuming without deciding that the student handbook gave rise to
a contractual relationship between the student and the school).


                                        - 9 -
terms, "what meaning the party making the manifestation, the

university,   should   reasonably   expect   the   other   party   [,   the

student,] to give it."    Schaer, 735 N.E.2d at 378 (quoting Cloud,

720 F.2d at 724).   A breach of contract is established if the facts

show that the university has "failed to meet [the student's]

reasonable expectations."    Id.

          Walker argues here, as she did below, that she reasonably

expected that the word "submit" in the HLS plagiarism policy meant

yielding or surrendering completed work to the will of another.

The record, she asserts, establishes that, although she acquiesced

to the JOLT senior staff's demands and emailed them her incomplete

draft, she intended at some point in the future to go back and

insert the missing citations.6      No student in her shoes, Walker

claims, would reasonably have expected that turning in a draft in


     6 We credit Walker's claims that she only emailed her draft
to JOLT senior staff when they insisted, saying, "We need your
draft. . . . [E]very other student author has gotten their piece
in", and that her communications with the student editors made it
otherwise clear that she intended to continue to make changes.
     Specifically, on February 22 (the original deadline for the
Note), Walker told the student editors in an email, "I doubt that
I can send it before 10 tonight. Footnotes and proofreading are
taking all weekend," and on February 24, as she finally prepared
to send in the Note two days late, she emailed to say, "ok, sending
it out now. All the sources are included, but I'm still moving
words around," and then later described the attached document as
"the latest draft" (and not the final draft). Finally, on February
27, after the Note was turned in, Walker emailed again to ask,
"I'm still getting comments/feedback from partners at [a law firm].
If I send a revised copy TONIGHT, [i]s that too late??? . . . Did
you guys pull sources already?"


                                - 10 -
such an incomplete state would have constituted "submitting" the

draft for purposes of the plagiarism policy.          But even viewing all

the facts in the light most favorable to Walker, we conclude that

no student could reasonably have believed that the HLS plagiarism

policy did not apply to her February 24 Note, and thus summary

judgment for HLS was proper.

             By its terms, the HLS plagiarism policy applied to "[a]ll

work submitted by a student for any academic or non-academic

exercise," regardless of intent.           The policy uses the qualifier

"all" to modify the phrase "work submitted," and goes so far as to

state that the plagiarism ban applies, even if an attribution error

was "inadvertent[]."       Given such broad language, we think it clear

that the plagiarism policy applied to Walker’s work turned in for

the   exercise      of   preparing   a   student   note   for   publication,

regardless of whether the work was in draft or final form.

             Even if, as Walker argues, the facts establish that she,

indeed, believed her Note was badly incomplete, they do not

establish that a student could reasonably expect that the words

"[a]ll work submitted" exempted such an incomplete draft. There is

no evidence, for example, that the terms "[a]ll work submitted"

were "word[s] of art," or that they otherwise had "acquired any

secondary meaning" in this context.           Lyons v. Salve Regina Coll.,

565   F.2d   200,    203   (1st   Cir.   1977)   (applying   the   reasonable

expectation standard to a Rhode Island case involving a student


                                     - 11 -
manual dispute between a student and a college).               The evidence

proffered by Walker proves only that her own intentions were to go

back and insert attributions for the uncited passages.               It does

not establish any "rational basis for believing that the word[s in

the plagiarism policy] . . . meant anything other than [their]

normal, everyday meaning."     Id. at 202-03.

           Thus, because the record, even viewed in the light most

favorable to Walker, gives us no basis on which a reasonable

student could have interpreted the words "[a]ll work submitted"

any differently, we give them their plain meaning here.              In this

case, Walker turned in the fourth draft of her Note (the draft in

question) to JOLT senior staff for citation checks.             Unlike with

her preliminary drafts, this draft was slated to go directly into

the subciting process, and there was to be no opportunity to make

changes until the post-check "author edit" period at the end of

March.   No reasonable student could have expected that turning in

a draft, even a woefully incomplete one, for this citation-check

deadline did not constitute "submitting" the draft for the exercise

of student publication.

           Finally, to the extent that Walker argues that her

communications   with   JOLT   senior    staff,   in   which   the   editors

acknowledged that her draft was in rough shape, gave her reason to

expect that the HLS plagiarism policy would not apply to the Note,

such an argument must also fail.        The contract in question is one


                                 - 12 -
between Walker and HLS.    Although members of the JOLT senior staff

may have had discretion to respond with some flexibility to

citation   issues   in   student-authored    work,   no   student   could

reasonably expect that the student editors could somehow have

exempted Walker from being held to the HLS plagiarism policy once

her work was before the Board.      See Mangla v. Brown Univ., 135

F.3d 80, 83 (1st Cir. 1998) (finding it reasonable for Brown to

expect its students not to rely on oral statements by faculty or

administrators as binding promises by the university when such

statements ran contrary to its school catalog).



                            IV. Conclusion

           Walker has not presented facts a student could have

relied upon to form a reasonable expectation that the plagiarism

policy had the meaning she is asserting. The HLS plagiarism policy

refers to "[a]ll work submitted," a phrase that on its face applies

to any student work for any academic or nonacademic exercise,

whether in draft or final form, turned in to an instructor or

student editor of an extracurricular law journal.         We affirm the

district court's grant of summary judgment to Defendants on Count

I.    Walker's failure to prevail as to Count I undermines her

arguments with respect to the defamation claims she made in Count

IV.   We, therefore, also affirm the district court's grant of

summary judgment to Defendants on Count IV.


                                - 13 -
