The U.S. Court of Appeals for the First Circuit ruled on Wednesday that Boston College can reinstate its suspension of “John Doe,” a student-athlete who the University had found responsible for sexual assault last June. The opinion, written by Judge Sandra L. Lynch, overturns a previous U.S. District Court ruling granting Doe a preliminary injunction on his suspension.
In addition to reversing the injunction of the suspension, the ruling also remanded the case back to U.S. District Court.
BC’s investigation, which finished in June, said that Doe had engaged in a non-consensual sexual encounter with another BC student, “Jane Roe,” in November of last year. The investigators found that Roe was under the influence of alcohol and thus unable to consent, although they did not find that he had known or should have reasonably known that she was incapacitated by alcohol. Instead, the investigators concluded that Roe did not give “clear and voluntary agreement” to sexual intercourse, a separate issue from her level of intoxication, according to court documents.
The ruling refutes Doe’s argument that BC’s investigatory model denied him of a contractual obligation to fundamental fairness. Doe said that the University failed to offer him the opportunity to ask or suggest specific questions of the complainant and fellow BC student “Jane Roe,” in order to test the credibility of her testimony.
“The First Circuit ruled in the University’s favor, finding that our process for adjudicating sexual misconduct complaints is fundamentally fair, and that the University’s detailed policy was followed in this case,” the BC Office of Legal Counsel said in an email to The Heights. “We are pleased that the Court also recognized that Massachusetts law affords private institutions broad deference in choosing how to conduct student discipline proceedings. Judge Lynch not only found that BC’s process is fundamentally fair, but made clear that it is a thorough, iterative process that provides ample opportunity for the parties to make written statements, identify witnesses, submit evidence and review and respond to evidence and testimony. ”
Representatives for Doe did not immediately respond to a request for comment from The Heights.
Doe had cited recent First Circuit ruling Haidak v. University of Massachusetts Amherst, which said that public schools that provide an opportunity for such “real-time cross-examination” satisfy their constitutional obligation to provide due process—a higher bar than fundamental fairness.
On Aug. 20, District Court Judge Douglas P. Woodlock equated “fair process” in sexual misconduct cases to one’s constitutional due process rights during investigations at a public university. He then ordered an injunction of Doe’s suspension on the likelihood that he would succeed on his claims of denied fundamental fairness.
The University appealed Woodlock’s ruling to the First Circuit in early September.
The First Circuit ruling also addressed Doe’s claims regarding breach of contract. The decision rejected Doe’s argument that he could have reasonably expected for something similar to cross-examination by noting that “[the BC Student Sexual Misconduct Policy] explicitly [does] not provide for any such opportunity.”
In pushing back against the comparisons between Doe’s argument and Haidak, Lynch cited two rulings from the Supreme Judicial Court of Massachusetts: Schaer v. Brandeis University and Coveney v. President and Trustees of the College of the Holy Cross. Both rulings say that private universities are not bound by the due process clause of the Constitution.
Massachusetts common law holds that all contracts contain an inherent promise of fundamental fairness and the Supreme Judicial Court of Massachusetts has also ruled multiple times that private colleges and universities have to provide students accused of sexual assault with basic fairness.
Lynch wrote that Woodlock erred in “attempting to base [his] ruling on a prediction of future developments in Massachusetts contract law” because “any such future developments are up to the state courts and legislature, not the federal courts.”
Lynch cited several passages from the transcript of the District Court ruling in which Woodlock applied the public school standard from Haidak and compared fair process obligations to due process obligations. With respect to Woodlock’s assertion that Doe was likely to succeed on the merits of his argument, Lynch wrote in the First Circuit ruling that “the district court has abused its discretion and we are required to vacate the injunction.”
BC uses a “single investigator model” in cases of alleged sexual assault. Two investigators—in this case, Assistant Dean of Students Kristen O’Driscoll and external investigator Jennifer Davis—interviewed Doe, Row, and 17 witnesses. They also reviewed EagleID records, Uber receipts, several photos and videos of Roe taken throughout the night, as well as text messages sent by the two parties to other students, according to the investigatory report, which BC submitted as evidence.
The investigators interviewed Doe and Roe multiple times, which the University argued in court documents and before the First Circuit allowed them to ask informed questions about inconsistencies, even though Doe didn’t provide questions himself. Although there was no formal obligation binding the investigators to ask questions at Doe’s suggestion, the University said that the investigators were still able to weigh his input while interviewing Roe and other witnesses.
The opinion ended by noting the role of federal courts in applying state laws such as fundamental fairness.
“Whether Massachusetts in the future will wish to redefine the requirements of contractual basic fairness in college and university discipline matters poses important policy choices for the Supreme Judicial Court and/or state legislature to make,” Lynch wrote.
Featured Image Courtesy of Massachusetts District Court
