United States Court of Appeals For the First Circuit
No. 19-1871
JOHN DOE,
Plaintiff, Appellee,
v.
TRUSTEES OF BOSTON COLLEGE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Boudin, and Lipez, Circuit Judges.
Daryl J. Lapp, with whom Elizabeth H. Kelly and Locke Lord LLP were on brief, for appellant. Jeannie Suk Gersen, with whom Andrew T. Miltenberg, Stuart Bernstein, Tara J. Davis, and Nesenoff & Miltenberg, LLP were on brief, for appellee.
November 20, 2019 LYNCH, Circuit Judge. This is an expedited appeal from
entry of a preliminary injunction based on a Massachusetts law
contract claim. The preliminary injunction prohibited the
Trustees of Boston College ("BC") from imposing a suspension of
one year on student John Doe, who was found after extensive
investigation by BC to have engaged in sexual assault in the form
of a nonconsensual penetration of a female student, Jane Roe. Roe
filed a disciplinary complaint against Doe under BC's Student
Sexual Misconduct Policy, and the suspension decision was the
outcome of the procedures set forth in that Policy.
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
- 2 - Massachusetts contract law, it also erred. Any such future
developments are up to the state courts and legislature, not the
federal courts.
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.
1 The Policy lists circumstances when an individual cannot give consent, including when an individual "[i]s incapacitated, including through the consumption of alcohol or drugs."
- 3 - The event at issue in this case is Roe's claim that Doe
sexually assaulted her, by penetration to which she had not
consented, in the early morning of November 4, 2018. Without
disputing that the sexual interaction occurred, Doe contended that
it was at all times consensual.
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
2 The processes used to respond to sexual misconduct complaints differ from those used for other Code of Student Conduct violations. BC adopted the processes for sexual misconduct violations in 2014 "with the intent of making the reporting of assaults more easily available to members of the community." BC says that, in its experience since the adoption of the policy, it believes this goal has been facilitated.
- 4 - evidence. Both complainant and respondent may select an adviser
to be present at any meeting related to the reported misconduct.
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.
- 5 - Once the investigators gathered the evidence, the
complainant and respondent were given an opportunity to review
that evidence and submit further comments. Here, at the conclusion
of the investigation, both Doe and Roe were allowed to review an
Evidence Binder of all of the evidence gathered, including the
interview summaries, and provide further comments. Doe did so and
submitted a further comment document of seventeen pages. Roe also
did so.
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
- 6 - as evidence of Roe's consent occurred after sexual penetration and
so could not have provided consent for that act.
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.
- 7 - B. Litigation History
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 Title IX, and moved
for a preliminary injunction staying his suspension.
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.
3 Issuance of the injunction was not based on Doe's allegation that BC violated Title IX or any of the other state law claims.
- 8 - The court continued:
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
4 The court also separately and additionally found the review procedure inadequate, noting that "what we see in the appellate evaluation is basically a further deference to the role of the investigators without any critical analysis of what they've done."
- 9 - that the claim included at least these components: (1) both
complainant and respondent and their representatives must be
available at the same time for questioning by a "neutral," though
not necessarily in the same room; (2) each must be informed of the
exact statements of the other in real time, whether by transcript
or some other means; (3) both the complainant and respondent must
have the opportunity to submit questions to the "neutral," either
orally or in writing, to be put to the other side; and (4) the
"neutral" may be a hearing officer or may be an investigator.
There is no contention that formal cross-examination such as takes
place in criminal cases is required. Doe's position is that quasi-
cross-examination in real time may be part of an investigative
disciplinary system, and does not require that there be an
adjudicatory hearing.
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
- 10 - of the four-factor framework."). When this probability finding is
made in error, the district court has abused its discretion and we
are required to vacate the injunction. See Withrow v. Larkin, 421
U.S. 35, 46 (1975); New Comm Wireless Servs., Inc. v. SprintCom,
Inc., 287 F.3d 1, 14 (1st Cir. 2002).
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
- 11 - provide for any such opportunity. Given the Policy's plain
description of BC's investigation process, Doe could not have
reasonably expected to be allowed quasi-cross-examination in real
time.
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
5 We do not decide whether BC in fact violated the requirements described in Haidak. 933 F.3d at 71-72.
- 12 - does not govern this Massachusetts state law issue and provides no
basis to depart from the Massachusetts cases we describe below.
BC is not a public university or a government actor and is not
subject to due process requirements.
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
- 13 - SJC held that these procedures provided basic fairness. Id. at
381. In Coveney, the private college's student handbook was clear
that an accused student was not entitled to a hearing before the
imposition of disciplinary sanctions. 445 N.E.2d at 140. Because
the student's offending conduct was undisputed, and because the
college had no contractual obligation to provide a hearing process,
the SJC held that the college's disciplinary decision was not
arbitrary or capricious and did not violate the student's
contractual rights. Id. at 139-40.
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
- 14 - informed the accused student of the allegations against him the
day after they received the younger student's statement and
immediately told him to produce a written statement, which he did.
Id. The school did not give him an opportunity to seek advice or
counsel of any kind. Id. The school expelled the accused student
the next day without giving him any access to the evidence against
him. Id. These approved procedures did not come close to
including the quasi-cross-examination in real time requirement
found necessary by the district court. See id. at 1187.
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
6 Doe also held that, under Massachusetts law, "whenever a school expressly promises no less than basic fairness, . . . the school's implied duty [of basic fairness] becomes superfluous and the court's analysis to ensure that the disciplinary proceedings were 'conducted with basic fairness' focuses on assuring compliance with the express contractual promise." 892 F.3d at 88 (quoting Cloud, 720 F.2d at 725) (emphasis added). In this case, the Code stated that it "exists to . . . assure fundamental fairness."
- 15 - and parties through a hearing chairperson, nothing in Doe suggested
that basic fairness required that procedure, and Doe has conceded
that his claim does not require there be a hearing. To be clear,
no party asserts that a school's mere adherence to its policies
itself resolves a basic fairness claim.
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
7 Fourteen private Massachusetts institutions of higher education have filed a brief as amici curiae, which describes these varying approaches.
- 16 - statute or by its highest court in a decision"); Braga v. Genlyte
Grp., Inc., 420 F.3d 35, 42 (1st Cir. 2005). When applying state
law, "we will take care not to extend state law beyond its well-
marked boundaries in an area . . . that is quintessentially the
province of state courts," Markham v. Fay, 74 F.3d 1347, 1356 (1st
Cir. 1996), and must exercise considerable caution when even
considering the adoption of a new application, Doyle v. Hasbro,
Inc., 103 F.3d 186, 192 (1st Cir. 1996). A litigant who chooses
federal court over state court "cannot expect this court 'to . . .
blaze new and unprecedented jurisprudential trails'" as to state
law. A. Johnson & Co. v. Aetna Cas. & Sur. Co., 933 F.2d 66, 73
n.10 (1st Cir. 1991) (quoting Kotler v. Am. Tobacco Co., 926 F.2d
1217, 1224 (1st Cir. 1990)). Rather, this court "must take state
law as it finds it: 'not as it might conceivably be, some day; nor
even as it should be.'" Kassel v. Gannett Co., 875 F.2d 935, 950
(1st Cir. 1989) (quoting Plummer v. Abbott Labs., 568 F. Supp.
920, 927 (D.R.I. 1983)).
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
- 17 - specialized knowledge and experience counsels against premature
interference with the informed judgments made at the state and
local levels." San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 42 (1973).
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.
- 18 -