Doe v. Trustees of Boston College ( 2019 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 19-1871
    JOHN DOE,
    Plaintiff, Appellee,
    v.
    TRUSTEES OF BOSTON COLLEGE,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Douglas P. Woodlock, U.S. District Judge]
    Before
    Lynch, Boudin, and Lipez,
    Circuit Judges.
    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.
    November 20, 2019
    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
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    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.
    1    The Policy lists circumstances when an individual cannot
    give consent, including when an individual "[i]s incapacitated,
    including through the consumption of alcohol or drugs."
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    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
    2  The processes used to respond to sexual misconduct
    complaints differ from those used for other Code of Student Conduct
    violations.    BC adopted the processes for sexual misconduct
    violations in 2014 "with the intent of making the reporting of
    assaults more easily available to members of the community." BC
    says that, in its experience since the adoption of the policy, it
    believes this goal has been facilitated.
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    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.
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    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
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    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.
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    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.
    3    Issuance of the injunction was not based on Doe's
    allegation that BC violated Title IX or any of the other state law
    claims.
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    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 seems to me,
    is necessary; and in its absence, the process
    is deficient.
    And so it concluded:
    [T]his much is clear to me, that number one,
    a private institution like BC should follow
    practices that we'll call fair process that
    are parallel to due process claims against
    public institutions and that that fair process
    directs that when credibility of a central
    issue in a case such as this is presented, the
    process has to enable the factfinder to
    evaluate the credibility of the respective
    claims by a real-time process at which both of
    the respective parties are present and have
    the opportunity to suggest questions.     That
    wasn't provided here. And it is required I
    think   to   develop  a   fully   satisfactory
    process.4
    We will refer to the process the district court deemed
    necessary as "quasi-cross-examination in real time."   Though the
    components of that process were not specified in Doe's briefing,
    in response to questions at oral argument, counsel for Doe replied
    4    The court also separately and additionally found the
    review procedure inadequate, noting that "what we see in the
    appellate evaluation is basically a further deference to the role
    of the investigators without any critical analysis of what they've
    done."
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    that   the   claim   included   at    least      these   components:   (1) both
    complainant    and   respondent      and   their    representatives    must     be
    available at the same time for questioning by a "neutral," though
    not necessarily in the same room; (2) each must be informed of the
    exact statements of the other in real time, whether by transcript
    or some other means; (3) both the complainant and respondent must
    have the opportunity to submit questions to the "neutral," either
    orally or in writing, to be put to the other side; and (4) the
    "neutral" may be a hearing officer or may be an investigator.
    There is no contention that formal cross-examination such as takes
    place in criminal cases is required. Doe's position is that quasi-
    cross-examination in real time may be part of an investigative
    disciplinary    system,   and   does       not   require   that    there   be   an
    adjudicatory hearing.
    II.
    A.     Legal Analysis
    We review the district court's decision to grant a
    preliminary injunction for abuse of discretion.               OfficeMax, Inc.
    v. Levesque, 
    658 F.3d 94
    , 97 (1st Cir. 2011).                     We review its
    findings of fact for clear error and issues of law de novo.                 
    Id. The showing
    of a likelihood of success on the merits is
    the most important of the four preliminary injunction factors.
    Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 
    102 F.3d 12
    , 16
    (1st Cir. 1996) ("Likelihood of success is the main bearing wall
    - 10 -
    of the four-factor framework.").    When this probability finding is
    made in error, the district court has abused its discretion and we
    are required to vacate the injunction.    See Withrow v. Larkin, 
    421 U.S. 35
    , 46 (1975); New Comm Wireless Servs., Inc. v. SprintCom,
    Inc., 
    287 F.3d 1
    , 14 (1st Cir. 2002).
    Under Massachusetts breach of contract law as to private
    academic institutions, two tests are relevant to Doe's breach of
    contract claim.
    1.   Reasonable Expectations
    The first test looks at the terms of the contract
    established between the college and the student and asks whether
    the reasonable expectations of the parties have been met.      Schaer
    v. Brandeis Univ., 
    735 N.E.2d 373
    , 378 (Mass. 2000); Cloud v. Trs.
    of Bos. Univ., 
    720 F.2d 721
    , 724 (1st Cir. 1983).
    Although the district court did not base its conclusion
    of probability of success on this reasonable expectation theory,
    Doe nonetheless advances it on appeal.       Doe does not dispute that
    the Policy in fact governed BC's investigation and resolution of
    the complaint in this case.
    We    reject   Doe's    argument     that   his   reasonable
    expectations arising from the contract were that he would be given
    the opportunity to engage in quasi-cross-examination of Roe in
    real time.     Nothing in the contract provides any basis for the
    expectation.    Indeed, the contract procedures explicitly do not
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    provide for any such opportunity.             Given the Policy's plain
    description of BC's investigation process, Doe could not have
    reasonably expected to be allowed quasi-cross-examination in real
    time.
    2.   Basic Fairness
    The    district   court   instead    based     its   finding    of
    probability of success on the second test, that is, whether the
    procedures followed were "conducted with basic fairness."             
    Schaer, 735 N.E.2d at 380
    (quoting 
    Cloud, 720 F.2d at 725
    ).               The district
    court read this court's decision in Haidak as supporting its
    conclusion    that    the   Massachusetts   law   concept    of   fundamental
    fairness required a "real-time process at which both of the
    respective parties are present and have the opportunity to suggest
    questions."        In so concluding, in our view, the district court
    committed several errors of law, which require that the injunction
    be vacated.
    We start with the articulated basis for the district
    court's decision: that Haidak leads to the conclusion that the
    requirement for quasi-cross-examination in real time is inherent
    in the Massachusetts law requirement of basic fairness.5              Haidak,
    which involved a public university and the federal due process
    clause, was concerned with a different 
    claim. 933 F.3d at 65
    .        It
    5 We do not decide whether BC in fact violated                      the
    requirements described in 
    Haidak. 933 F.3d at 71-72
    .
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    does not govern this Massachusetts state law issue and provides no
    basis to depart from the Massachusetts cases we describe below.
    BC is not a public university or a government actor and is not
    subject to due process requirements.
    Indeed, the highest court of Massachusetts, the Supreme
    Judicial Court (SJC), has been explicit that a private university
    need not comply with federal due process to meet the basic fairness
    requirement in disciplining students.       
    Schaer, 735 N.E.2d at 381
    (private university not bound by due process clause); Coveney v.
    President & Trs. of Coll. of Holy Cross, 
    445 N.E.2d 136
    , 138-40
    (Mass. 1983) (holding that, where a private college expelled a
    student before any opportunity for disciplinary hearing, it was
    "clear that because the college is a private institution, [the
    student] had no constitutional right to a hearing").
    Existing Massachusetts law does not support the district
    court's conclusion for several reasons. Doe concedes that no state
    case   imposes   the   requirement   he   seeks.     Importantly,   no
    Massachusetts state decision has ever found the requirements the
    district court here imposed to be a necessary part of the basic
    fairness requirement.     In Schaer, a private university found a
    student responsible for sexual misconduct after a disciplinary
    process that did not allow the accused student to give any input
    during the investigation and admitted testimony that would have
    been excluded in a court 
    proceeding. 735 N.E.2d at 378
    , 380.   The
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    SJC held that these procedures provided basic fairness.                
    Id. at 381.
      In Coveney, the private college's student handbook was clear
    that an accused student was not entitled to a hearing before the
    imposition of disciplinary 
    sanctions. 445 N.E.2d at 140
    .     Because
    the student's offending conduct was undisputed, and because the
    college had no contractual obligation to provide a hearing process,
    the SJC held that the college's disciplinary decision was not
    arbitrary     or   capricious   and    did    not   violate   the   student's
    contractual rights.     
    Id. at 139-40.
    Massachusetts case law has also clearly approved school
    disciplinary procedures which did not involve any opportunity for
    the accused student to pose questions to be addressed to the
    accuser, through surrogates or directly, much less to do so in
    "real time."       See Driscoll v. Bd. of Trs. of Milton Acad., 
    873 N.E.2d 1177
    , 1187 (Mass. App. Ct. 2007).
    In Driscoll, the Massachusetts Appeals Court held that
    a private school's expulsion of a seventeen-year-old student for
    serious sexual misconduct with a younger student did not violate
    the basic fairness provision when the school followed procedures
    much less rigorous that those followed by BC.               
    Id. When school
    administrators learned of the misconduct, they met with the younger
    student and her parents and asked the younger student to produce
    a   written    statement,   which     she   wrote   after   the   meeting   and
    submitted the following day.        
    Id. at 1182.
         School administrators
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    informed the accused student of the allegations against him the
    day    after      they    received      the   younger     student's     statement   and
    immediately told him to produce a written statement, which he did.
    
    Id. The school
    did not give him an opportunity to seek advice or
    counsel of any kind.             
    Id. The school
    expelled the accused student
    the next day without giving him any access to the evidence against
    him.        
    Id. These approved
    procedures did not come close to
    including the quasi-cross-examination in real time requirement
    found necessary by the district court.                  See 
    id. at 1187.
    Nor      have     the    federal   courts     required    quasi-cross-
    examination        in     real    time    when    applying    Massachusetts     basic
    fairness law.            This court in Doe v. Trustees of Boston College,
    
    892 F.3d 67
    , 88 (1st Cir. 2018), concerning an earlier version of
    BC's       conduct    code,      held    that,    where    the   school's    policies
    themselves state a requirement of basic fairness, a failure to
    follow those policies could give rise to a claim.6                       Although the
    disciplinary procedures then in effect at BC provided for a live
    hearing at which each side could put questions to the witnesses
    6   Doe also held that, under Massachusetts law, "whenever
    a school expressly promises no less than basic fairness, . . . the
    school's implied duty [of basic fairness] becomes superfluous and
    the court's analysis to ensure that the disciplinary proceedings
    were 'conducted with basic fairness' focuses on assuring
    compliance with the express contractual 
    promise." 892 F.3d at 88
    (quoting 
    Cloud, 720 F.2d at 725
    ) (emphasis added). In this case,
    the Code stated that it "exists to . . . assure fundamental
    fairness."
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    and parties through a hearing chairperson, nothing in Doe suggested
    that basic fairness required that procedure, and Doe has conceded
    that his claim does not require there be a hearing.                 To be clear,
    no party asserts that a school's mere adherence to its policies
    itself resolves a basic fairness claim.
    Further, the finding of probability of success did not
    respect the deference Massachusetts law requires as to the choices
    of     student     discipline    proceedings     made    by   private     academic
    institutions.        Massachusetts law is clear that "[w]e adhere to the
    principle that courts are chary about interfering with academic
    and     disciplinary        decisions    made    by     private    colleges    and
    universities."         
    Schaer, 735 N.E.2d at 381
    (internal quotation
    omitted).        "A college must have broad discretion in determining
    appropriate sanctions for violations of its policies."                    
    Coveney, 445 N.E.2d at 139
    .           Massachusetts law permits its colleges and
    universities flexibility to adopt diverse approaches to student
    discipline        matters    that   do    not    meet    federal    due    process
    requirements.7
    Federal courts are not free to extend the reach of state
    law.        See Erie R. Co. v. Tompkins, 
    304 U.S. 64
    , 78 (1938) (federal
    courts must apply state law as "declared by its Legislature in a
    7 Fourteen private Massachusetts institutions of higher
    education have filed a brief as amici curiae, which describes these
    varying approaches.
    - 16 -
    statute or by its highest court in a decision"); Braga v. Genlyte
    Grp., Inc., 
    420 F.3d 35
    , 42 (1st Cir. 2005).     When applying state
    law, "we will take care not to extend state law beyond its well-
    marked boundaries in an area . . . that is quintessentially the
    province of state courts," Markham v. Fay, 
    74 F.3d 1347
    , 1356 (1st
    Cir. 1996), and must exercise considerable caution when even
    considering the adoption of a new application, Doyle v. Hasbro,
    Inc., 
    103 F.3d 186
    , 192 (1st Cir. 1996).      A litigant who chooses
    federal court over state court "cannot expect this court 'to . . .
    blaze new and unprecedented jurisprudential trails'" as to state
    law.   A. Johnson & Co. v. Aetna Cas. & Sur. Co., 
    933 F.2d 66
    , 73
    n.10 (1st Cir. 1991) (quoting Kotler v. Am. Tobacco Co., 
    926 F.2d 1217
    , 1224 (1st Cir. 1990)).   Rather, this court "must take state
    law as it finds it: 'not as it might conceivably be, some day; nor
    even as it should be.'"    Kassel v. Gannett Co., 
    875 F.2d 935
    , 950
    (1st Cir. 1989) (quoting Plummer v. Abbott Labs., 
    568 F. Supp. 920
    , 927 (D.R.I. 1983)).
    This limited role of federal courts in matters of state
    policy respects the design of our federal system, which allows a
    "state [to], if its citizens choose, serve as a laboratory; and
    try novel social and economic experiments without risk to the rest
    of the country."   New State Ice Co. v. Liebmann, 
    285 U.S. 262
    , 311
    (1932) (Brandeis, J., dissenting).      We give particular respect to
    state regulation of education, an area in which our "lack of
    - 17 -
    specialized knowledge and experience counsels against premature
    interference with the informed judgments made at the state and
    local levels."   San Antonio Indep. Sch. Dist. v. Rodriguez, 
    411 U.S. 1
    , 42 (1973).
    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.
    III.
    There is no need to say more.         We reverse, vacate the
    grant of preliminary injunction, and remand to the district court
    for any further proceedings, consistent with this opinion.             No
    costs are awarded.
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