JOHN DOE, Plaintiff, Appellee, v. TRUSTEES OF BOSTON COLLEGE, Defendant, Appellant.
No. 19-1871
United States Court of Appeals For the First Circuit
November 20, 2019
Before Lynch, Boudin, and Lipez, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]
Jeannie Suk Gersen, with whom Andrew T. Miltenberg, Stuart Bernstein, Tara J. Davis, and Nesenoff & Miltenberg, LLP were on brief, for appellee.
The district court found Doe had shown a probability of success on the merits of the state law claim of violation of a contractual obligation of basic fairness. It ruled on this state law question primarily by reference to a decision of this court concerned with the requirements of the federal due process clause as to a public university. It is quite clear, and the parties do not dispute, that federal due process law does not dictate to states the procedures which its private colleges must follow in administering student discipline.
Massachusetts law as it currently stands does not require the college discipline process Doe says must be a part of a contractual obligation of basic fairness. To the extent the district court was, without expressly saying so, attempting to base its ruling on a prediction of future developments in
For the reasons more fully stated below, we hold the district court erred in finding a probability of success as to Doe‘s claim under Massachusetts contract law and erred in granting the injunction. We now reverse, vacate the injunction, and remand. We describe the pertinent facts, procedures followed, and history of the litigation.
I.
A. Background
The parties agree that the contract involved is found in BC‘s Student Sexual Misconduct Policy (“the Policy“), which was incorporated into its 2018-2019 Student Guide. That policy defines conduct subject to discipline. It provides, in relevant part, that “sexual misconduct” includes “sexual assault,” which is “any sexual contact or sexual penetration with another individual without consent.” “Consent” is defined in relevant part as “the clear and voluntary agreement to engage in particular sexual activity.”1 Doe does not dispute that a school may discipline a student responsible for sexual assault.
Doe‘s challenge is to the adequacy of the procedures set forth in the Policy, alleging that some form of cross-examination of the accuser must be provided before any conclusion can be reached. We describe those procedures, which were followed in this case.
The Policy defines in detail the processes for the college to follow once a sexual misconduct complaint is filed.2 When a sexual misconduct complaint is made, the Policy provides that one or more internal or external investigators must investigate by interviewing the parties and other witnesses and gathering any other relevant evidence. The investigators must give all parties an opportunity to present written statements, identify witnesses, submit evidence, and review and respond to
Here, the investigators followed the iterative process described in the Policy. BC used two investigators: an assistant dean at BC and an external investigator. The accuser Roe was questioned at length on three occasions, the second two building on the information provided by the accused in his interviews, as well as information drawn from interviews with others and documentary evidence. Investigators probed her account for detail, and she was asked to clarify ambiguities. The accused was questioned on two occasions, following and building on information obtained both from the accuser and the accused and on other information. Doe, the accused, was represented by counsel at all relevant times. Roe, the accuser, was accompanied at each interview by a “support person.”
After each time the complainant and respondent were interviewed, each was provided a written summary of his or her own interview and given five days to review it and provide comments to the investigators. At each stage, both Doe and Roe submitted written comments on the summary of each interview. Investigators conducted the next interview before receiving comments from either on the summary of the previous interview. The Policy does not provide either the complainant or the respondent an opportunity for cross-examination of the parties or of other witnesses.
After receipt of those comments, the investigators prepared a written report that determined, using a preponderance of the evidence standard, whether Doe violated the Policy. Here, the investigators’ final report spanned sixty-three single-spaced pages. It described in great detail the steps the investigators followed and the evidence they gathered. The report addressed each party‘s statements and arguments at each stage of the investigation, included detailed factual support for each of its conclusions, and explained the reasons for each of its credibility determinations.
The report concluded that several of Doe‘s statements about the alleged sexual misconduct lacked credibility. The report noted that some of Doe‘s statements were inconsistent between his two interviews by investigators and that some of his later statements were implausible in light of his earlier statements. The report also noted that some statements and actions Doe alleged
The report credited Roe‘s version of the facts concerning crucial aspects of the sexual encounter and her lack of consent for sexual penetration. It found that Roe‘s statements were supported by the weight of the evidence and corroborated by her contemporaneous messages to friends.
The report found that, although Roe‘s “words and actions . . . conveyed clear and voluntary consent” for the initial part of her sexual encounter with Doe, Doe‘s penetration of Roe occurred “without having obtained her consent to do so.” The report found Doe responsible for violating the Policy.
The investigators submitted the report to the Office of the Dean of Students and the Student Affairs Title IX Coordinator, who, in accordance with the Policy, determined the appropriate sanctions based on the report‘s finding of responsibility. On June 18, 2019, on the basis of the report, the two offices imposed a one-year suspension on Doe, to take effect immediately.
After the two offices’ determination of appropriate sanctions, the respondent has the right of appeal, but an appeal is limited as to what may be argued. The decision of the Appeals Officer, who is appointed from the Office of Dean of Students, is then final. On June 27, 2019, Doe appealed BC‘s decision. The Appeals Officer denied the appeal on July 24, 2019.
On July 29, 2019, Doe filed suit against BC in the U.S. District Court for the District of Massachusetts, alleging various state law claims and a claim for violation of
The district court granted Doe‘s motion for preliminary injunction, finding a substantial likelihood that Doe would succeed on his claim that BC‘s disciplinary process deprived him of fair process in violation of Massachusetts contract law.3
We set forth the reasoning used by the district court from the transcript of the preliminary injunction hearing. The court opined that the core consideration was with “how it is that credibility determinations are made when we‘re dealing with claims of sexual misconduct.” It stated:
Now, it‘s not cross-examination that I have in mind that‘s of a type that one used to see anyway in criminal cases, particularly rape cases. But it is the opportunity to observe together and ask questions with respect to the core issues. The . . . fundamental deficiency here that I see is that the BC process didn‘t provide . . . a mechanism for that. That‘s a fundamental deficiency in the wake of Haidak [v. Univ. of Mass.-Amherst, 933 F.3d 56 (1st Cir. 2019)], I believe.
John Doe and Jane Roe should be subject to some form of real-time examination with questions to come by their adversaries. It‘s not necessary that it be done in the way that it‘s done in the courtroom. It‘s not necessary that it be done by lawyers for them or even by them themselves. In fact, that might not be a good idea. But some mechanism for that real-time evaluation, it seems to me, is necessary; and in its absence, the process is deficient.
And so it concluded:
[T]his much is clear to me, that number one, a private institution like BC should follow practices that we‘ll call fair process that are parallel to due process claims against public institutions and that that fair process directs that when credibility of a central issue in a case such as this is presented, the process has to enable the factfinder to evaluate the credibility of the respective claims by a real-time process at which both of the respective parties are present and have the opportunity to suggest questions. That wasn‘t provided here. And it is required I think to develop a fully satisfactory process.4
We will refer to the process the district court deemed necessary as “quasi-cross-examination in real time.” Though the components of that process were not specified in Doe‘s briefing, in response to questions at oral argument, counsel for Doe replied
II.
A. Legal Analysis
We review the district court‘s decision to grant a preliminary injunction for abuse of discretion. OfficeMax, Inc. v. Levesque, 658 F.3d 94, 97 (1st Cir. 2011). We review its findings of fact for clear error and issues of law de novo. Id.
The showing of a likelihood of success on the merits is the most important of the four preliminary injunction factors. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996) (“Likelihood of success is the main bearing wall
Under Massachusetts breach of contract law as to private academic institutions, two tests are relevant to Doe‘s breach of contract claim.
1. Reasonable Expectations
The first test looks at the terms of the contract established between the college and the student and asks whether the reasonable expectations of the parties have been met. Schaer v. Brandeis Univ., 735 N.E.2d 373, 378 (Mass. 2000); Cloud v. Trs. of Bos. Univ., 720 F.2d 721, 724 (1st Cir. 1983).
Although the district court did not base its conclusion of probability of success on this reasonable expectation theory, Doe nonetheless advances it on appeal. Doe does not dispute that the Policy in fact governed BC‘s investigation and resolution of the complaint in this case.
We reject Doe‘s argument that his reasonable expectations arising from the contract were that he would be given the opportunity to engage in quasi-cross-examination of Roe in real time. Nothing in the contract provides any basis for the expectation. Indeed, the contract procedures explicitly do not
2. Basic Fairness
The district court instead based its finding of probability of success on the second test, that is, whether the procedures followed were “conducted with basic fairness.” Schaer, 735 N.E.2d at 380 (quoting Cloud, 720 F.2d at 725). The district court read this court‘s decision in Haidak as supporting its conclusion that the Massachusetts law concept of fundamental fairness required a “real-time process at which both of the respective parties are present and have the opportunity to suggest questions.” In so concluding, in our view, the district court committed several errors of law, which require that the injunction be vacated.
We start with the articulated basis for the district court‘s decision: that Haidak leads to the conclusion that the requirement for quasi-cross-examination in real time is inherent in the Massachusetts law requirement of basic fairness.5 Haidak, which involved a public university and the federal due process clause, was concerned with a different claim. 933 F.3d at 65. It
Indeed, the highest court of Massachusetts, the Supreme Judicial Court (SJC), has been explicit that a private university need not comply with federal due process to meet the basic fairness requirement in disciplining students. Schaer, 735 N.E.2d at 381 (private university not bound by due process clause); Coveney v. President & Trs. of Coll. of Holy Cross, 445 N.E.2d 136, 138-40 (Mass. 1983) (holding that, where a private college expelled a student before any opportunity for disciplinary hearing, it was “clear that because the college is a private institution, [the student] had no constitutional right to a hearing“).
Existing Massachusetts law does not support the district court‘s conclusion for several reasons. Doe concedes that no state case imposes the requirement he seeks. Importantly, no Massachusetts state decision has ever found the requirements the district court here imposed to be a necessary part of the basic fairness requirement. In Schaer, a private university found a student responsible for sexual misconduct after a disciplinary process that did not allow the accused student to give any input during the investigation and admitted testimony that would have been excluded in a court proceeding. 735 N.E.2d at 378, 380. The
Massachusetts case law has also clearly approved school disciplinary procedures which did not involve any opportunity for the accused student to pose questions to be addressed to the accuser, through surrogates or directly, much less to do so in “real time.” See Driscoll v. Bd. of Trs. of Milton Acad., 873 N.E.2d 1177, 1187 (Mass. App. Ct. 2007).
In Driscoll, the Massachusetts Appeals Court held that a private school‘s expulsion of a seventeen-year-old student for serious sexual misconduct with a younger student did not violate the basic fairness provision when the school followed procedures much less rigorous that those followed by BC. Id. When school administrators learned of the misconduct, they met with the younger student and her parents and asked the younger student to produce a written statement, which she wrote after the meeting and submitted the following day. Id. at 1182. School administrators
Nor have the federal courts required quasi-cross-examination in real time when applying Massachusetts basic fairness law. This court in Doe v. Trustees of Boston College, 892 F.3d 67, 88 (1st Cir. 2018), concerning an earlier version of BC‘s conduct code, held that, where the school‘s policies themselves state a requirement of basic fairness, a failure to follow those policies could give rise to a claim.6 Although the disciplinary procedures then in effect at BC provided for a live hearing at which each side could put questions to the witnesses
Further, the finding of probability of success did not respect the deference Massachusetts law requires as to the choices of student discipline proceedings made by private academic institutions. Massachusetts law is clear that “[w]e adhere to the principle that courts are chary about interfering with academic and disciplinary decisions made by private colleges and universities.” Schaer, 735 N.E.2d at 381 (internal quotation omitted). “A college must have broad discretion in determining appropriate sanctions for violations of its policies.” Coveney, 445 N.E.2d at 139. Massachusetts law permits its colleges and universities flexibility to adopt diverse approaches to student discipline matters that do not meet federal due process requirements.7
Federal courts are not free to extend the reach of state law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (federal courts must apply state law as “declared by its Legislature in a
This limited role of federal courts in matters of state policy respects the design of our federal system, which allows a “state [to], if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). We give particular respect to state regulation of education, an area in which our “lack of
Whether Massachusetts in the future will wish to redefine the requirements of contractual basic fairness in college and university discipline matters poses important policy choices for the Supreme Judicial Court and/or state legislature to make.
III.
There is no need to say more. We reverse, vacate the grant of preliminary injunction, and remand to the district court for any further proceedings, consistent with this opinion. No costs are awarded.