John Doe v. Trs. of Bos. Coll., 19-1871

• Citation: 942 F.3d 527
• Decision Date: 20 November 2019
• Docket Number: No. 19-1871,19-1871
• Parties: John DOE, Plaintiff, Appellee, v. TRUSTEES OF BOSTON COLLEGE, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

942 F.3d 527

John DOE, Plaintiff, Appellee,

v.TRUSTEES OF BOSTON COLLEGE, Defendant, Appellant.

No. 19-1871

United States Court of Appeals, First Circuit.

November 20, 2019

Daryl J. Lapp, with whom Elizabeth H. Kelly and Locke Lord LLP, Boston, MA, were on brief, for appellant.

Jeannie Suk Gersen, with whom Andrew T. Miltenberg, Stuart Bernstein, Tara J. Davis, and Nesenoff & Miltenberg, LLP, New York, NY, were on brief, for appellee.

Before Lynch, Boudin, and Lipez, Circuit Judges.

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 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.

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 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.

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 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.

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.

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

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