Cloud v. Trustees of Boston University

• Decision Date: 04 November 1983
• Docket Number: No. 83-1182,83-1182
• Citation: Cloud v. Trustees of Boston University, 720 F.2d 721 (1st Cir. 1983)
• Parties: 14 Ed. Law Rep. 450 Leevonn CLOUD, Plaintiff, Appellant, v. TRUSTEES OF BOSTON UNIVERSITY, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 721

720 F.2d 721

14 Ed. Law Rep. 450

Leevonn CLOUD, Plaintiff, Appellant, v. TRUSTEES OF BOSTON UNIVERSITY, et al., Defendants, Appellees.

No. 83-1182.

United States Court of Appeals First Circuit.

Argued Sept. 12, 1983.

Decided Nov. 4, 1983.

Robert Pressman, Cambridge, Mass., with whom Gail Strassfeld, Brookline, Mass., was on brief, for plaintiff, appellant.

John H. Henn, Boston, Mass., with whom Thomas P. Billings, Foley, Hoag & Eliot and Bancroft Littlefield, Jr., Boston, Mass., were on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, COWEN ^* and SKELTON ^*, Senior Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Leevonn Cloud appeals from the district court's granting of summary judgment on behalf of appellees, Trustees of Boston University.

I.

Cloud, a third-year law student at Boston University, was charged with four separate incidents of serious misconduct for peeping under the skirts of women students in the university library. Cloud allegedly engaged in the conduct while crawling on all fours under tables where the women were seated. The university conducted a disciplinary hearing pursuant to the Provisional Student Code (PSC), a copy of which was sent to Cloud along with a statement of charges. The PSC provides that various sanctions, including expulsion, may be imposed on a student found guilty of serious misconduct. The PSC affords students the following procedural rights:

1) notice in writing of the alleged violation of the code and of the time and place of a hearing;

2) a hearing before a three-member Judicial Committee selected from one or more of the faculty, student body and administration;

3) a university-appointed prosecutor;

4) a university-appointed Hearing Examiner who is a licensed attorney.

Further, the PSC provides certain "protections of due process" including:

1) the right to be represented at the hearing by legal counsel;

2) the right to have the case decided by an impartial judicial body;

3) the right to confront and cross examine any witness;

4) the right to call witnesses and introduce evidence.

Finally, the governing procedures at the hearing are established by the PSC:

1) conformity to technical rules of procedure is not required, rather the Hearing Examiner may make procedural rulings to expedite the hearing and insure "due process of law";

2) the hearing is generally closed to the public;

3) the technical rules of evidence do not govern the hearing, but the Hearing Examiner has discretion to make protective rulings to exclude unreliable or prejudicial evidence;

4) the Judicial Committee is the sole arbiter of weight of the evidence, demeanor and credibility of the witness, guilt or innocence of the student and the appropriateness of any sanctions imposed.

The university appointed Leslie Srager, General Counsel of Boston University, as Hearing Examiner, and Bancroft Littlefield as prosecutor. The hearing lasted 20 hours with Cloud, who had counsel, testifying on his own behalf and presenting nine witnesses. The university presented six witnesses, one of whom was permitted to testify outside of Cloud's field of vision because of her professed fear of appellant. The university also introduced the transcript of Cloud's 1970 rape conviction in a Maryland court. The Judicial Committee found Cloud guilty of all four charges and imposed the sanction of expulsion. Cloud's appeal to the President of Boston University was unsuccessful.

Cloud subsequently brought a diversity action in the district court seeking damages and reinstatement, in which he alleged violation of his contract rights due to the improper conduct of the hearing. He also alleged violation of his privacy rights under Mass.Gen.Laws ch. 214, Sec. 1B. The district court granted Boston University's motion for summary judgment, and Cloud now appeals.

II.

We first consider Cloud's attack on the fairness of his disciplinary hearing. Since his claim is based on his contract with the university, Massachusetts law governs this issue. We have, however, found little Massachusetts caselaw describing the principles to be applied in ascertaining the terms of the contract established between a university and its students. Thus we apply the standard of Giles v. Howard University, 428 F.Supp. 603, 605 (D.D.C.1977), which we adopted in Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir.1977) (applying Rhode Island law), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978); namely, the standard of "reasonable expectation--what meaning the party making the manifestation, the university, should reasonably expect the other party to give it." See also Slaughter v. Brigham Young University, 514 F.2d 622 (10th Cir.), cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46 L.Ed.2d 131 (1975).

Cloud argues that his hearing should have been governed by the Law School Disciplinary Rules (LSDR), rather than the PSC, since Cloud was a member of the law school community. ¹ We disagree. The alleged misconduct took place in the general library of the university, not at the law school. The complaining students were not law students. The LSDR Art. I-1 provides,

Students are subject both to the rules of Boston University and to the rules and regulations of the School of Law, as published from time to time, relating to student conduct and discipline.

Cloud contends that the PSC was not properly "published" as required by the above language. However, the university printed copies of the PSC and kept them on file in the Office of Student Life for distribution to interested students. Interpreting the language "published from time to time" in light of the reasonable expectation of a student, the university's action was adequate. We do not think the phrase required distribution of the PSC to every student as Cloud suggests. We reject Cloud's challenge to the application of the PSC and hold that it was within the reasonable expectation of any student reading the above quoted passage from the LSDR.

Cloud also attacks the fairness of the hearing as conducted under the PSC. The Massachusetts Supreme Judicial Court has recently spoken on the issue of fair procedure in college expulsions. The court held that "[i]f school officials act in good faith and on reasonable grounds ... their decision to suspend or expel a student will not be subject to successful challenge in the courts." Coveney v. President & Trustees of Holy Cross College, 388 Mass. 16, 19, 445 N.E.2d 136, 139 (1983). This deferential standard of review applies when, as in Coveney, there is no contractual right to a hearing. Where, as here, the university specifically provides for a disciplinary hearing before expulsion, we review the procedures followed to ensure that they fall within the range of reasonable expectations of one reading the relevant rules. Lyons, 565 F.2d at 202. We also examine the hearing to ensure that it was conducted with basic fairness. ²

Although the PSC specifically states that hearings are not controlled by technical rules of either evidence or procedure, Cloud seeks to invoke such rules arguing that the Hearing Examiner selectively utilized them in resolving procedural questions during the hearing. This is a spurious argument. The Hearing Examiner referred, for comparison, to certain court-established evidentiary and procedural rules in making his own decisions. Similarly, we may refer to such rules in measuring the adequacy and fairness of the hearing. To argue that there can be no reference to technical rules developed by courts over time to ensure fairness without triggering full application of...