Jennifer DiPerna v. Chicago School of Professional , 893 F.3d 1001 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3351
JENNIFER DIPERNA,
Plaintiff-Appellant,
v.
THE CHICAGO SCHOOL OF
PROFESSIONAL PSYCHOLOGY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:14-cv-00057 — John Z. Lee, Judge.
____________________
ARGUED APRIL 19, 2018 — DECIDED JUNE 26, 2018
____________________
Before RIPPLE, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. Jennifer DiPerna was a student
pursuing a master’s degree in clinical psychology at The
Chicago School of Professional Psychology (TCSPP), a pri-
vate, non-profit institution. After TCSPP disciplined DiPerna
for posting an image to her personal Instagram account that
TCSPP considered offensive, DiPerna filed this lawsuit alleg-
ing breach of contract and negligence.
2 No. 17-3351
The year after DiPerna filed her complaint, one of her
professors accused her of plagiarism. A hearing was held
before a school committee, and DiPerna was dismissed. She
amended her complaint to include claims related to her dis-
missal.
In the proceedings below, DiPerna voluntarily withdrew
some of her claims, and the district court granted summary
judgment to TCSPP on all the others. DiPerna now challeng-
es the district court’s conclusions. We affirm.
I.
A. Background
DiPerna’s issues with TCSPP began in the spring of 2013.
That semester, DiPerna enrolled in a course titled “Diversity
in Clinical Practice.” One of the assignments in that course
was a group project. DiPerna, a white woman, was in a
group with a student named Shakira, 1 a black woman. While
they were together, DiPerna and Shakira got into a discus-
sion about “privilege.” This discussion prompted Shakira to
email their instructor, Dr. Patricia Perez, with “concerns
about [DiPerna’s] ability to work with clients of a diverse
background.” 2 When DiPerna’s group met with Dr. Perez,
DiPerna again got into a discussion about privilege, this time
with a different student.
After these incidents, DiPerna complained to various
TCSPP officials that she was the subject of harassment and
bullying. She claimed people were calling her “color blind,”
1 The parties have not informed us of Shakira’s last name.
2 DiPerna v. Chicago Sch. of Prof’l Psychology, 222 F. Supp. 3d 716, 719
(N.D. Ill. 2016).
No. 17-3351 3
making comments, and pointing at her. Despite her com-
plaints, TCSPP took no action. DiPerna tried to withdraw
from the class, but was told she could not as it was too far
into the semester.
That summer, DiPerna posted an image with a racial slur
on her personal Instagram account. Two black students at
TCSPP complained to a professor. On August 1, 2013, Di-
Perna met with Dr. Virginia Quiňonez, Department Chair,
and Dr. Luke Mudd, Associate Department Chair. DiPerna
defended herself on the grounds that the posting was sup-
posed to be humorous. She also objected to being punished
when Shakira, whose posts contained similar language, was
not.
Drs. Quiňonez and Mudd referred DiPerna to the Stu-
dent Affairs Committee (SAC). After a hearing, the SAC or-
dered DiPerna to complete an Academic Development Plan
(ADP) 3 and delayed her entry into an internship program.
Though TCSPP allowed for an internal appeal of that deci-
sion, DiPerna did not pursue one. On January 3, 2014, Di-
Perna filed the instant lawsuit, citing the federal diversity
jurisdiction statute and alleging claims for breach of contract
and negligence.
DiPerna continued in school while the lawsuit was pend-
ing. In 2015, she took a required seminar course taught by
Dr. Kristin Davisson. As part of that course, DiPerna com-
pleted a “Clinical Competency Examination” (CCE), which
required her to set out a specific psychological theory and
3 DiPerna’s ADP required her to write two papers, including “a 10
page review of derogative terms associated [with] minority groups … in
the U.S.” (R. 96-6 at 5.)
4 No. 17-3351
discuss how she applied it to her clinical experiences with a
patient.
The portion of the CCE in which she discusses the theory
she applied was called the “Conceptualization” or “Case
Formulation” section. When Dr. Davisson was reviewing
DiPerna’s CCE, she began to suspect DiPerna had plagia-
rized that section. Dr. Davisson noticed the writing style in
that section was different from other sections of the paper
and from DiPerna’s previous work. Dr. Davisson particular-
ly noted it was more sophisticated in word choice and fre-
quency of sources.
Dr. Davisson’s suspicions caused her to input some sen-
tences from the paper as the terms in a Google search. After
that search revealed a match, Dr. Davisson decided to run
the paper through turnitin.com (Turnitin), a web-based pro-
gram that compares submitted writings against a database of
potential sources. This was the first time Dr. Davisson had
used Turnitin in some time.
Dr. Davisson only had a hard copy of DiPerna’s paper, so
she personally typed DiPerna’s conceptualization section
(about two pages of text) into Turnitin. Turnitin returned a
92% similarity score, meaning it concluded 92% of the con-
ceptualization section was similar to material found in other
sources. Turnitin provided a list of sources that included
psychology publications, a website, and other student pa-
pers.
Dr. Davisson reported these results to then Interim De-
partment Chair Dr. Mudd. Dr. Mudd told Dr. Davisson to
request an electronic copy of the paper from DiPerna so that
she could run the entire paper through Turnitin, rather than
No. 17-3351 5
just the one section. Dr. Davisson did so, and that reduced
the similarity score to 10%. Nevertheless, the conceptualiza-
tion section was still extensively flagged. Dr. Mudd per-
formed some independent verification of Turnitin’s results
and referred DiPerna to the SAC.
Prior to her hearing before the SAC, DiPerna received no-
tice that nine people would make up the committee. When
she showed up for her hearing on May 12, 2015, the commit-
tee did not have nine members. Nevertheless, the hearing
proceeded. DiPerna argued she was being retaliated against
for her lawsuit and that her 10% similarity score was insuffi-
cient to have justified a referral. The day after the hearing,
DiPerna was informed she had been dismissed.
Ten days after learning of the SAC’s conclusion, DiPerna
sent an email to Dr. Azara Santiago-Rivera, the Dean of Ac-
ademic Affairs. DiPerna characterized her email as an appeal
of the SAC’s decision and argued Dr. Davisson had improp-
erly singled her out for scrutiny, the SAC had not been
properly composed, and she was being targeted because of
her lawsuit against the school. Neither Dr. Santiago-Rivera
nor anyone else at TCSPP ever responded to DiPerna’s
email.
B. Procedural History
On June 1, 2015, DiPerna amended her complaint in this
lawsuit to include claims relating to her dismissal. As
amended, DiPerna’s complaint made claims for breach of
contract and negligence arising from six events: (1) TCSPP’s
failure to respond to bullying and harassment; (2) TCSPP’s
decision to discipline DiPerna for her Instagram post; (3) the
SAC’s development of DiPerna’s ADP; (4) the SAC’s deci-
6 No. 17-3351
sion to delay DiPerna’s entry into an internship program; (5)
the reporting of DiPerna for plagiarism; and (6) DiPerna’s
dismissal.
TCSPP moved for summary judgment. In response to the
motion, DiPerna conceded she was barred from pursuing
her claims based on the development of her ADP and the
decision to delay her entry into an internship program be-
cause she had failed to internally appeal those decisions. She
also conceded her claim for negligence.
On November 28, 2016, the district court denied TCSPP’s
motion in part and granted it in part. The district court de-
termined there were genuine issues of material fact concern-
ing DiPerna’s claims relating to the harassment and her pun-
ishment for the Instagram post. However, the district court
granted summary judgment to TCSPP on DiPerna’s claims
relating to her dismissal, concluding there was no evidence
the SAC decided to dismiss DiPerna without a rational basis.
The district court also granted summary judgment to TCSPP
on DiPerna’s claims for tuition and living expenses as dam-
ages. The district court reasoned that any extra tuition Di-
Perna had paid was the result of her ADP and her delayed
internship. She had conceded her claims relating to those
punishments, so she could not recover for her extra tuition.
As for the living expenses, DiPerna had submitted a contract
between DiPerna and her mother requiring DiPerna to repay
those expenses incurred “as a result of [DiPerna’s] expul-
sion.” 4 Because the court had already concluded DiPerna’s
expulsion was not improper, it determined DiPerna could
not recover expenses arising from it.
4 (R. 182 at 6.)
No. 17-3351 7
After this order, the case continued toward trial on the
harassment and Instagram claims. In August 2017, TCSPP
filed a number of motions in limine, three of which are per-
tinent here. In those three motions, TCSPP sought to prevent
DiPerna from presenting: (1) evidence relating to damages
resulting from her dismissal; (2) evidence relating to damag-
es for tuition, living expenses, emotional distress, and attor-
ney’s fees; and (3) the testimony of her expert witness, Dr.
Stan V. Smith. The district court granted all three motions.
The district court granted the motion on evidence related
to DiPerna’s dismissal by simply referring to its earlier con-
clusion that the dismissal was lawful. DiPerna attempted to
argue that her dismissal was at least partly based on her In-
stagram post, but the district court found no evidence of that
and reasoned that, even if it were true, the plagiarism was a
sufficient cause for her dismissal.
Concerning the tuition and living expenses, the district
court again referred to its conclusions in its prior order. The
court also barred DiPerna from presenting evidence of emo-
tional damages because Illinois does not allow them in con-
tract actions absent special circumstances. Nor would the
court allow DiPerna to present evidence relating to attor-
ney’s fees, because DiPerna had shown no entitlement in law
or contract to such fees.
Finally, the court determined Dr. Smith’s testimony
would not be helpful to the jury. Dr. Smith, a forensic econ-
omist, intended to testify to DiPerna’s lost earnings and he-
8 No. 17-3351
donic damages. 5 On lost earnings, the court again relied on
its decision that DiPerna’s dismissal was lawful. On hedonic
damages, the court determined Dr. Smith had reached his
conclusion based on all of DiPerna’s experiences at TCSPP,
not just her experiences relating to the claims going to trial.
The court also saw Dr. Smith’s testimony, which went to Di-
Perna’s “enjoyment of life,” as a ploy to recover emotional
distress damages. In sum, the court concluded that whatever
probative value Dr. Smith’s testimony may have had, it was
sufficiently outweighed by the risk of undue prejudice and
jury confusion.
In light of those rulings, DiPerna conceded that she was
effectively barred from presenting any evidence of damages.
Accordingly, the district court entered summary judgment
for TCSPP on the remaining claims. 6 DiPerna now appeals,
focusing on the district court’s November 28 order, the mo-
tions in limine, and the final grant of summary judgment. 7
5 Hedonic damages are “[d]amages that attempt to compensate for
the loss of the pleasure of being alive.” Hedonic damages, Black’s Law Dic-
tionary (10th ed. 2014).
6 See generally In re Ill. Bell Tel. Link-Up II, 994 N.E.2d 553, 559 (Ill.
App. Ct. 2013) (“Damages are an essential element of a breach of contract
action and a claimant’s failure to prove damages entitles the defendant
to judgment as a matter of law.”).
7 DiPerna’s opening brief states a laundry list of orders she is alleg-
edly challenging, but we will not address the orders on which she did
not develop argument. See Anderson v. Hardman, 241 F.3d 544, 545 (7th
Cir. 2001) (“[A] brief must contain an argument consisting of more than a
generalized assertion of error … .”).
No. 17-3351 9
II.
A. Summary Judgment
We review first the November 28 grant of summary
judgment. Federal Rule of Civil Procedure 56 “mandates the
entry of summary judgment … against a party who fails to
make a showing sufficient to establish the existence of an el-
ement essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). “We review de novo the grant of
summary judgment, and we construe all facts in the light
most favorable to … the nonmoving party,” who “must
point to specific facts showing that there is a genuine issue
for trial, and inferences relying on mere speculation or con-
jecture will not suffice.” Stephens v. Erickson, 569 F.3d 779,
786 (7th Cir. 2009). If we conclude “the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party,” we will affirm the entry of summary
judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
The parties do not dispute that Illinois law governs the
claims in this diversity suit. See generally Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 427 (1996) (“[F]ederal courts
sitting in diversity apply state substantive law … .”). In Illi-
nois, “a college or university and its students have a contrac-
tual relationship, and the terms of the contract are generally
set forth in the school’s catalogs and bulletins.” Raethz v. Au-
rora Univ., 805 N.E.2d 696, 699 (Ill. App. Ct. 2004). However,
given that “courts are reluctant to interfere with the academ-
ic affairs and regulation of student conduct in a private uni-
versity setting,” breach of contract claims brought by a stu-
dent against a private college or university are subject to a
10 No. 17-3351
distinct standard: “a student may have a remedy for breach
of contract when it is alleged that an adverse academic deci-
sion has been made concerning the student but only if that
decision was made arbitrarily, capriciously, or in bad faith.” Id.
This requires the student to show the school’s action was
“without any discernable rational basis.” Id. (internal quota-
tion marks omitted) (quoting Frederick v. Nw. Univ. Dental
Sch., 617 N.E.2d 382, 387 (Ill. App. Ct. 1993)); see also Brody v.
Finch Univ. of Health Sciences/The Chicago Med. Sch., 698
N.E.2d 257, 266 (Ill. App. Ct. 1998). Or, put another way, the
student must show the decision was “such a substantial de-
parture from accepted academic norms as to demonstrate
that the person or committee responsible did not actually
exercise professional judgment.” Raethz, 805 N.E.2d at 699
(quoting Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214,
225 (1985)).
1. Dismissal for Plagiarism
At oral argument in this case, DiPerna asserted she creat-
ed genuine disputes of material fact as to whether she pla-
giarized and whether she violated TCSPP’s plagiarism poli-
cy. In her brief and at argument, she emphasized that
Turnitin scores are not conclusive proof of plagiarism and
TCSPP’s policy on what constituted plagiarism sufficient to
warrant referral to the SAC was unclear. In support of her
arguments on the latter point, she presented a syllabus from
her “Diversity” class stating that a student would automati-
cally be reported for plagiarism if something they turned in
received a Turnitin score of 20% or higher. 8 Because DiPer-
8 (R. 96-6 at 42.)
No. 17-3351 11
na’s paper only received a 10%, she believes her referral was
arbitrary and capricious.
These arguments are red herrings. Concerning TCSPP’s
policy on referrals for plagiarism, the Academic Catalog and
Student Handbook (Handbook) states: “All suspected inci-
dents [of academic dishonesty, which includes plagiarism,]
must be immediately referred to the Department Chair/Lead
Faculty or designee who will then refer the matter to the
Student Affairs Committee.” 9 The Diversity class syllabus
does not put that express policy in doubt. All it does is pro-
vide students in that course what amounts to a Turnitin-
score safe harbor—the instructor will automatically suspect
plagiarism solely on the basis of a Turnitin score only if it is
greater than or equal to 20%. The syllabus does not negate
TCSPP’s policy that “all suspected incidents” must be re-
ported, and it certainly does not call into question Dr. Davis-
son’s actions here. Dr. Davisson suspected plagiarism based
on her observations of DiPerna’s work (i.e., the more sophis-
ticated word choice), and from that moment a referral was
not only appropriate but mandated by the Handbook. Di-
Perna’s quibbling about required Turnitin percentages is just
a distraction.
So is DiPerna’s argument concerning whether there is a
genuine issue of material fact as to whether she plagiarized.
That was the question for the SAC to decide based on
TCSPP’s policy, which is explicitly broad, covering inten-
tional and unintentional conduct, down to “a single example
of failing to use quotation marks.” 10 We will only disturb the
9 (R. 96-1 at 77.)
10 (Id.)
12 No. 17-3351
SAC’s decision that DiPerna plagiarized if it was made
without a rational basis. The only evidence we have relating
to DiPerna’s plagiarism that could have been available to the
SAC are DiPerna’s arguments about unfair treatment, Dr.
Davisson’s observations, a Turnitin report suggesting almost
complete similarity in the conceptualization section of Di-
Perna’s paper, and Dr. Mudd’s statement that he did some
independent verification before he made the referral. Given
this evidence, we are not prepared to say it was irrational for
the SAC to conclude DiPerna had plagiarized. DiPerna
stresses to us that Turnitin is not the most authoritative tool
for detecting plagiarism, and that may be true. But the
Turnitin score is undeniably some evidence that plagiarism
occurred, particularly in light of Dr. Mudd’s independent
verification of the Turnitin report. DiPerna cannot meet Illi-
nois’s high burden for student plaintiffs in relation to the de-
cision to dismiss her for plagiarism, and summary judgment
was proper. 11
11 DiPerna also argues TCSPP’s failure to respond to her appeal and
the fact that the SAC was not made up of nine members shows that the
dismissal decision was arbitrary and capricious. First, we fail to see how
the failure to respond to an appeal makes the SAC’s initial decision irra-
tional. Perhaps DiPerna would have an independent claim for an irra-
tional decision not to address her appeal, but she does not even mention
the appeal in her complaint. (See R. 59.) Neither does DiPerna explain
how the SAC’s composition affected the rationality of the SAC’s deci-
sion. See Raethz, 805 N.E.2d at 700 (refusing to accept the argument that
“any failure by a university to comply with the terms set forth in the
university’s catalogs or manuals [amounts] to per se arbitrary and capri-
cious conduct”).
No. 17-3351 13
2. Damages
Summary judgment was also appropriate concerning Di-
Perna’s entitlement to living expenses and tuition as damag-
es. In responding to TCSPP’s motion for summary judgment,
DiPerna submitted a contract between herself and her moth-
er providing that DiPerna was obligated to pay her mother
back for living expenses incurred “as a result of [DiPerna’s]
expulsion from The University of Chicago [sic].” 12 The mis-
nomer aside, the contract shows that DiPerna’s claim for liv-
ing expenses arose from her dismissal. We have just con-
cluded her dismissal was not improper, so she is not entitled
to recover for living expenses incurred because of it.
Concerning her claims for tuition, the district court con-
cluded they arose from the punishment—the ADP and the
delay in entering her internship—she received from the SAC
after her first referral to that body for her Instagram post.
Because DiPerna conceded her claims relating to the ADP
and the internship delay, the district court held that she
could not seek tuition damages.
DiPerna argues the district court missed a fine distinc-
tion: she only conceded her claims based on the develop-
ment of her ADP and the imposition of delaying her intern-
ship, and it was the referral to the SAC itself that caused her
to incur extra tuition. That argument defies common sense.
The referral to the SAC, alone, did not cause DiPerna to in-
cur any extra tuition costs. The Handbook makes clear the
SAC is a forum for accused students to receive “an impartial
12 (R. 182 at 6.)
14 No. 17-3351
committee review.” 13 A punishment resulting in increased
tuition costs, or even the decision to render some form of
punishment at all, was not a guaranteed result of the refer-
ral. The SAC could have concluded DiPerna did nothing
wrong, or it could have imposed a punishment that did not
require her to extend her time in school. Accordingly, it was
the SAC’s decision to impose the specific punishments of the
ADP and delayed entry into an internship, not the mere re-
ferral to that body or a general decision to punish, that
caused DiPerna’s increased tuition expenses. She withdrew
her claims addressing the imposition of those punishments.
As she had no claims arising from conduct that caused her
tuition damages, summary judgment on her right to recover
such damages was and is appropriate. 14
B. Motions in Limine
We turn now to the motions in limine. “We review [a]
district court’s rulings on motions in limine for an abuse of
discretion.” Heft v. Moore, 351 F.3d 278, 283–84 (7th Cir.
2003). Here, DiPerna challenges the grant of three motions:
one relating to her ability to present evidence of damages
relating to her dismissal, one relating to evidence of various
other damages, and one relating to her expert, Dr. Smith. But
DiPerna appeals the district court’s decisions only as they
relate to her entitlement to present evidence of damages aris-
ing from her dismissal. We therefore consider only that ar-
gument. See Grandberry v. Smith, 754 F.3d 425, 428 (7th Cir.
13 (R. 96-1 at 74.)
14 DiPerna suggests she also incurred living-expenses damages from
the punishment, but that argument fails for the same reason.
No. 17-3351 15
2014) (“Arguments must be presented in the briefs; these
were not and have been forfeited … .”).
DiPerna’s argument is twofold. First, she argues her dis-
missal for plagiarism was unlawful. We already decided it
was not, so we may move to her second point: her dismissal
was caused at least in part by her first referral to the SAC for
the Instagram post. Her evidence in support of this theory is
that the SAC requested information from her first hearing
before it dismissed her for plagiarism. But, as the district
court found, even if the SAC concluded that DiPerna should
be dismissed partially for her Instagram post, its conclusion
that she plagiarized was a sufficient reason to dismiss her
anyway. Consequently, she is not entitled to damages as the
result of a dismissal that was not improper.
Her tuition and living-expenses claims fail for the same
reason. DiPerna raises the same arguments she did against
the district court’s summary judgment decision, and they are
just as unavailing. The same holds true concerning the tes-
timony of her expert, Dr. Smith. DiPerna has relied on her
attempt to convince us summary judgment was improper.
We are unconvinced and will not disturb the district court’s
rulings.
III.
Despite DiPerna’s arguments she did not plagiarize, our
role in her case against TCSPP was not to decide whether
TCSPP “exercised its academic judgment unwisely,” but on-
ly whether it “exercise[d] its academic judgment at all.” Rae-
thz, 805 N.E.2d at 700. We conclude there is no genuine issue
of material fact on that point, nor is there any merit to Di-
16 No. 17-3351
Perna’s other arguments. Therefore, the challenged decisions
are AFFIRMED.