Doe v. Trustees of Boston College, No. 19-1871 (1st Cir. Nov. 20, 2019)
11/26/2019At the district court level, student John Doe was granted a preliminary injunction prohibiting the Trustees of Boston College from imposing a suspension of one year on him. The First Circuit reversed, and vacated the preliminary injunction, finding that the district court had abused its discretion. The First Circuit held that Massachusetts state law controlled this case, and that the contractual obligation of basic fairness does not require the right to cross-examination during the disciplinary process.
The district court found Doe had shown a likelihood of success on the merits for his state law claim of violation of a contractual obligation of basic fairness. To support this finding, the district court relied upon a recent decision that was concerned with the requirements of the federal due process clause and its application to public universities. Because Boston College is a private university, the federal due process clause does not apply.
Doe had argued that the procedures set forth in Boston College’s policy (the “Policy”) were inadequate. Specifically, Doe argued that the policies should have allowed for some form of cross-examination of the accuser before any decision was reached. Boston College conducted what the Court believed to be a thorough investigation in which they interviewed the complainant three times, and Doe twice. At each successive interview, the investigator used the information they had gathered from other witnesses in order to ask new questions and clarify ambiguities. Once the investigation concluded, the parties were given an opportunity to review an evidence binder that included all the evidence gathered, including the interview summaries, and provide further comments. Nothing in the Policy provided the parties with an opportunity for cross-examination.
The Court was not persuaded by Doe’s argument that a form of “quasi-cross-examination in real time,” in which Doe would have been able to propose questions for a “neutral” to ask of his accuser in real time, was required under the contract with Boston College. First, the Court held that no reasonable person could have expected the contract provided for quasi-cross-examination of Roe in real time, because nothing in the contract provided any basis for that expectation. Second, basic fairness did not require the right to cross-examination because the Massachusetts Supreme Judicial Court has repeatedly upheld disciplinary procedures that offered even fewer protections to student respondents at private schools.
Because the district court had gone beyond Massachusetts law in finding Doe had a probability of success on the merits, the First Circuit reversed and vacated the preliminary injunction.