In Doe v. Trustees of Boston College, the U.S. Court of Appeals for the First Circuit refused to extend due process protections to private Massachusetts colleges, despite its recent holding in Haidak v. UMass-Amherst that some form of cross-examination or equivalent questioning is required at public universities. It therefore reversed a District Court decision that would have required some form of real-time questioning on issue of credibility. In so doing, the First Circuit deferred to state courts and the state legislature to define the contours of the “basic fairness” requirements for private schools under state law (having ducked the issue in a previous decision in a different Boston College case). This narrow holding underscores the need for further development of state law governing student discipline in light of significant developments in law and practice around the country since the Massachusetts appellate courts last weighed in more than 10 years ago.
The brief summary of the facts given by the First Circuit is not unusual in a campus sexual misconduct case: Jane Roe and John Doe, both BC students, engaged in sexual activity, some of which Roe claimed was without her consent; Doe asserted that everything was consensual. BC assigned an assistant dean and an outside investigator to speak with the parties and other witnesses multiple times to understand their evidence and perspectives. Both parties had the right to a support person (attorney or not) with them throughout, and each had the opportunity to respond to some or all of the evidence in writing at various points. However, Doe did not have an opportunity to observe or question Roe in real time, directly or indirectly, nor did Roe have that opportunity for Doe. At the end of the process, the investigators found Roe largely credible and discredited some of Doe’s clear statements, and provided explanations for their conclusions. Based on the finding that Doe penetrated Roe without consent, Doe was suspended for a year. His appeal was denied.
Doe then brought suit in federal court, asserting violations of Title IX as well as Massachusetts contract law, primarily the guarantee of “basic fairness” that the Supreme Judicial Court has recognized without much elaboration. He moved for a preliminary injunction to prevent his suspension, which the District Court granted based solely on the contract claim. (The First Circuit thus did not address Doe’s Title IX claim.) The District Court relied heavily on the First Circuit’s decision in Haidak, which required public universities to provide some form of cross-examination or the functional equivalent as a matter of constitutional due process. The District Court concluded that a “fair process” had to include “a real-time process at which both of the respective parties are present and have the opportunity to suggest questions” where credibility was at issue. If the First Circuit had accepted this position, many if not most universities’ investigatory processes would have failed the District Court’s test; very few include a live hearing or any kind of real-time opportunity to provide feedback and questions for the other party.
However, the First Circuit reversed the injunction, refusing to go beyond what the Supreme Judicial Court (and, to a lesser extent, the Appeals Court) have outlined in past case law as the requirements of basic fairness. The First Circuit first pointed out that BC’s student handbook and disciplinary policies made no mention of real-time questioning. Then it distinguished Haidak as a possible basis to require real-time questioning because Haidak addressed the constitutional standard for public universities under the Due Process Clause, whereas this case was dealing with the different standard applicable to private colleges under Massachusetts contract or common law. In 1983 and 2000, the SJC had refused to apply a constitutional due process standard to private institutions. And in 2007, the Appeals Court found no fault with a private high school that expelled a student for sexual misconduct with no opportunity to seek counsel or review the evidence against him. The First Circuit held that any heightened requirements for these processes under state law would have to come from the state legislature or the state courts.
Universities may see this decision as a retreat from fairness concerns expressed in cases like Doe v. Brandeis, which found numerous substantive and procedural problems in the way that Brandeis handled sexual misconduct matters years ago. But Brandeis thoroughly catalogued numerous areas of unfairness that could have led the policy as a whole to be fundamentally unfair. In contrast, this claim sought to enshrine one specific procedural requirement as a necessary condition for a fair process – an ambitious invitation that the First Circuit’s limited decision declined. There is certainly room for the legislature to impose more detailed requirements, or for the SJC to spell out exactly what “basic fairness” means. At least one appellate court in another state has already decided that “fundamental fairness” in these cases requires some form of cross examination. In January of this year, an appellate court in California held that in sexual misconduct cases where witness credibility is central to the decision: “fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross–examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (e.g., videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments.” And in some of these cases going forward, state law may be eclipsed by federal Title IX regulations, which have been pending for some time and are rumored to be close to final. One way or another, it would be beneficial for schools and students alike to receive some clarification of how fair a process must be at a private school in order to satisfy the law.