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Doe v. Trustees of Boston College

United States Court of Appeals, First Circuit

November 20, 2019

JOHN DOE, Plaintiff, Appellee,


          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.

          Before Lynch, Boudin, and Lipez, Circuit Judges.


         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.


         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 ...

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