On The Case

1st Circuit: ‘Quasi-cross examination’ not required in private colleges’ sex assault probes

(Reuters) - There’s a vigorous debate under way in state and federal appellate courts about how colleges and universities ought to conduct investigations of alleged sexual misconduct. As schools have adopted protocols to protect alleged victims, defendants have asserted that they must have a right to probe their accusers’ accounts.

Those arguments have found some support in the courts. In a landmark 2018 decision, for instance, the 6th U.S. Circuit Court of Appeals ruled in Doe v. Baum that a public university must give student defendants an opportunity to cross-examine their accusers. A California state appeals court similarly held in 2018’s Doe v. Claremont McKenna that the college did not afford a fair process to a student whose accuser did not appear at the hearing on her allegations. The 1st Circuit, in 2019’s Haidak v. University of Massachusetts-Amherst, stopped well short of the 6th Circuit’s holding that defendants at public universities have a right to cross-examine their accusers, but did say that “due process in the university disciplinary setting requires ‘some opportunity for real-time cross-examination, even if only through a hearing panel.’”

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A Boston College student litigating as John Doe pointed to these cases to challenge his one-year suspension for non-consensual sex, arguing that the college was required to allow him or his representatives an opportunity to pose questions in real time to his accuser, even if the questions were asked through a neutral investigator. In August, U.S. District Judge Douglas Woodlock of Boston ruled that Doe was likely to prevail with those arguments and granted a preliminary injunction against his suspension. Judge Woodlock said that even though the 1st Circuit’s Haidak decision involved a public university, fair process concerns at private institutions are parallel to due process considerations at public schools.

The 1st Circuit ruled Wednesday in BC’s closely watched appeal of Judge Woodlock’s injunction – and its decision should be a relief not just for BC but for all of the other private colleges and universities in Massachusetts, many of which joined an amicus brief backing BC.

The 1st Circuit held that the standard for assessing investigations by private institutions in Massachusetts is a matter of basic fairness under Massachusetts contract law – not the federal due process concerns that come into play in investigations by public universities. Judge Sandra Lynch, writing for a panel that included Judges Michael Boudin and Kermit Lipez, said the Massachusetts Supreme Judicial Court has made it abundantly clear, including in Schaer v. Brandeis in 2000, that private colleges and universities are not required to comply with federal due process to provide basic fairness to students in disciplinary investigations.

The 1st Circuit said its ruling in Haidak did not change that standard – and, indeed, could not because federal courts don’t make state law. Haidak, Judge Lynch wrote, “does not govern this Massachusetts state law issue … BC is not a public university or a government actor and is not subject to due process requirements.”

The appeals court described BC’s extensive investigation of the allegations against Doe, in which two neutral investigators conducted numerous interviews and followup interviews and provided Doe with several opportunities along the way to produce witnesses and comment on the investigators’ evidence and conclusions. (Doe participated very actively in the process, presenting a vigorous defense.) Doe argued that he had a reasonable expectation to engage in a “quasi-cross examination” of his accuser, based on BC’s description of the disciplinary investigation process, but the 1st Circuit said the college explicitly provides no such opportunity. Massachusetts law, the 1st Circuit said, requires deference to private schools when it comes to their disciplinary proceedings. BC, the judges said, met its contractual obligation to follow the procedures it has established.

It may be, the court said, that Massachusetts will someday wish to refine state law on what constitutes contractual basic fairness in disciplinary investigations by private colleges and universities. But that’s up to state lawmakers and courts, the 1st Circuit said. It’s not a job for the federal courts.

Doe counsel Jeannie Suk Gersen, a Harvard law professor, did not respond to my email requesting comment. BC’s lawyer, Daryl Lapp of Locke Lord, referred me to the university’s statement on the decision. BC said it is pleased that the 1st Circuit “recognized that Massachusetts law affords private institutions broad deference in choosing how to conduct student discipline proceedings.” The ruling, BC said, “made clear” that the university’s process “provides ample opportunity for the parties to make written statements, identify witnesses, submit evidence and review and respond to evidence and testimony.”