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BC Requests Two Witnesses Be Barred From Testifying in Alumnus Lawsuit

Boston College has asked for two witnesses to be barred from testifying in a lawsuit brought against the University by an alumnus over 2012 disciplinary proceedings related to sexual assault allegations. The case is scheduled to go to a jury trial on Sept. 16.

The alumnus–identified only as “John Doe” in court documents–was originally suspended for three semesters, and he is seeking $3 million in damages and an expunged disciplinary record from BC. 

The University is attempting to bar Elizabeth Fee and Joseph Walcott-Lewis from being called as witnesses. Fee is a BC alumna and family friend of Doe, and Walcott-Lewis was Doe’s roommate and “a close friend,” according to the plaintiff’s written opposition to the University motion. 

This will be the first jury trial related to college disciplinary due process rights since the Obama administration wrote a Dear Colleague letter in 2011 redefining how universities should approach disciplinary matters related to sexual misconduct. The Trump administration rescinded these guidelines earlier this year, but the 2011 letter is still seen as an important turning point regarding how universities handle disciplinary matters related to sexual misconduct.

Doe filed the lawsuit after the University decided against reversing a disciplinary decision that ruled against him over an alleged sexual assault that took place on the AHANA Leadership Council Boat Cruise in 2012. The plaintiff was reporting on the event for The Heights when the alleged incident occurred.

Doe has argued that he was standing near a woman on the boat, identified in earlier court documents as “A.B.,” when she was assaulted. She turned around and accused Doe of committing the assault. 

Allegedly, Doe walked away from the incident, and another student—referred to in court documents as “J.K.”—allegedly said “Sorry dude, that was my bad,” to Doe. 

Moments later, Doe was arrested and charged with sexual assault. 

The Administrative Hearing Board, an entity made up of administrators and students that, although no longer utilized, was previously charged with hearing cases such as this one, heard the case with both the accuser and Doe present. The lack of privacy involved in the hearing process is a specific reason why the University no longer utilizes the board as an arbiter of discipline in these types of situations. 

Doe was found guilty of indecent assault—the court record notes he was not informed that he could be found guilty of this charge. Shortly after his suspension was issued, the criminal charges pending against him were dropped after exculpatory video evidence was presented to the police. Doe’s two appeals of his University suspension fell on deaf ears, leading to his lawsuit against BC. 

Emails released by the University to the plaintiffs showed that J.K. was used as a witness against Doe, denying Doe’s allegation that J.K. tacitly acknowledged the assault. This is an important issue being examined at trial.

BC has successfully argued that the alleged breach-of-contract violation should only be subject to a review of whether former Dean of Students Paul Chebator’s and former Executive Director for Planning and Staff Development Carole Hughes’ interactions with the hearing board that handled Doe’s case were improper. The judge in charge of the case, Denise Casper, ruled during pretrial hearings any issues beyond this scope were not to be considered by the jury in the upcoming trial.

The BC Student Handbook guarantees the protection of fair student rights during BC disciplinary processes—Doe is arguing that the University did not provide him with these rights during the investigation.

Doe is also allowed to submit evidence based on “basic fairness,” an argument that hinges on “source of duty” and “the standard of basic fairness in the context of higher education discipline,” according to the brief. The basic fairness claim covers the same issues as the breach-of-contract claim does, but rather than appealing to the fairness promised in the BC student handbook, it appeals to an “implied covenant of good faith and fair dealings imposed on every contract in Massachusetts law,” according to the Appeals Court decision, which vacated parts of the prior District Court decision. 

The reason this issue requires a jury trial, ultimately, is that the facts in dispute between the two sides specifically relate to email conversations between Chebator, Hughes, and former Program Manager in the Office of Residential Life Catherine-Mary Rivera about Doe’s disciplinary hearing: Doe believes that conversation was decisive, the University believes that contact was incidental to the decision, and the appeals court judges do not believe that the issue is so clear that it can be ruled upon in summary judgment.

The decision written by First Circuit Judge Juan R. Torruella, who presided over the case on appeal in the summer of 2018 with Judges Bruce M. Selya and William J. Kayatta Jr. when deliberations on Doe’s fate began, notes that BC’s disciplinary board had trouble coming to a decision and considered making a “no finding” determination. That means that neither an innocent or guilty verdict would be issued. 

When Rivera informed Hughes of this, Hughes reached out to Chebator, asking him if such an outcome was allowed. Chebator replied that although “no finding” determinations had been made in the past, “he ‘discourage[d] them.’”

The other primary issue is whether or not the University gave J.K. immunity in an effort to put him “at ease” and appear at the disciplinary hearing, according to Torruella’s decision. 

“This, the Does conclude, is an indication that J.K. received special treatment and, thus, Doe’s case was not ‘fairly considered’ by the [disciplinary board],” the decision said. 

Prior to the hearing, J.K. and his father met with Hughes, who told them J.K. was not being charged with anything “in an effort to put J.K. at ease,” according to Toruella’s description of the events that transpired. Doe has argued in both the previous district and appeal cases that Hughes instructed Rivera, ‘through a subordinate,’ to make sure that J.K. was put ‘at ease’ by the disciplinary board. He did this by emphasizing that though J.K. was required to attend the disciplinary hearing, he was not being charged with anything. 

Through these actions, Doe is arguing the University gave J.K. immunity and completely discounted the primary facet of Doe’s defense: that somebody else committed the assault—a defense known legally as an “alternative culprit defense.”

It is noted in Torruella’s decision that upon Doe’s graduation in 2014, his parents brought the issue to University President Rev. William P. Leahy, S.J., who promised to review the incident. He passed that responsibility on—eventually a review was carried out by former Vice President for Student Affairs Barb Jones, who decided there was not enough evidence for the case to be revisited despite the video evidence now available. 

Upon filing this lawsuit in 2015, Doe initially had little success in court. Casper ruled on summary judgement that the video evidence was ambiguous, not exculpatory, and that BC did not “breach its contractual obligations.” She also stated that the discussions that occurred between Rivera, Hughes, and Chebator did not have an effect on the disciplinary decision.

On appeal, the University’s arguments did not hold up on certain issues. Although the part of the original decision granting summary judgment in favor of BC regarding Jones’ review and any alleged gender bias issues were upheld, the judges presiding cited unfair process, the conversation between the three administrators, the way J.K.’s existence and immunity was handled, and the lack of privacy involved in the hearing in ruling that no summary judgment could be reached, sending the case back to district court for a jury trial.

When the District Court rendered the initial decision in summary judgment, that meant that a single judge could make the decision on the case based only on indisputable facts. If there is a factual dispute, that requires a jury trial. The appeals court ruled that this case is, in fact, a case based around disputed facts—here those facts surround the administration’s impact on the alumnus’ disciplinary hearing.

BC has already won pretrial battles related to admission of testimony from multiple witnesses the plaintiff has asked the court to hear. The trial was initially scheduled for April 22 but was delayed when the Doe’s lawyer was hospitalized.

The University is arguing that since neither witness was present for the disciplinary board’s deliberations nor the disciplinary hearing, Fee’s and Walcott-Lewis’ respective testimonies will not offer relevant evidence and will have more to do with Doe’s “emotional state” at the time of the disciplinary proceedings. The Court has already ruled against Doe regarding whether he can sue BC for emotional damages. 

After pretrial wrangling over the scope of the case, the jury is tasked with evaluating whether the University broke its contract by not properly taking into account Doe’s defense—that another person committed the alleged assault.

The plaintiff’s counterargument is that the two witnesses will provide details regarding the “sequence of events in 2012.” The Doe family stayed with the Fee family during John Doe’s disciplinary proceedings, and the plaintiff noted that Fee can provide insight into the Doe family’s interactions with BC throughout the entirety of the disciplinary proceedings. 

That testimony would include her “disbelief” when the University allegedly discounted Doe’s alternative culprit defense, according to the plaintiff. The University argued such testimony regarding the alternative culprit defense is not what is being tried in this case, outside of how that defense was handled within the context of the disciplinary board’s considerations. 

Doe has countered by arguing both Walcott-Lewis’ and Fee’s testimonies will “corroborate that John’s ‘key defense [was] that someone other than [him] committed the alleged sexual assault,’ and affirm based on their contemporaneous perception of the events following John’s arrest that his alternative culprit defense was genuine from the outset and not a post hoc justification concocted by his attorneys.” 

“Doe’s motion in opposition also notes that Walcott-Lewis, though not directly involved in the disciplinary proceedings, was present outside the hearing in case BC called him as a witness. As a result, he witnessed the preparation of the hearing room.” Walcott-Lewis was not with Doe when the alleged assault took place, but he was on the cruise. He was aware that Doe’s primary defense was an alternative-culprit defense, according to the plaintiff’s motion.

Doe noted that Fee and Walcott-Lewis would not testify about Doe’s emotional state. The plaintiff also argued that Fee and Walcott-Lewis were included as parts of a witness list documenting each potential person who could take the stand in the trial filed in March. 

Motions to bar witnesses based on relevancy were also due in March, and Doe is arguing that the University has never previously asked the court to bar Fee or Walcott-Lewis from testifying. The plaintiff’s counsel wrote he does not believe his illness should have given BC the chance to reconsider whether previously disclosed witnesses should be allowed to testify.

A final pretrial conference has been scheduled for Sept. 12, where this matter will be resolved. 

This case is unrelated to a separate, ongoing lawsuit brought by a current student alleging that the University did not provide him with fair process rights during disciplinary proceedings this past spring, related to allegations that the student was involved in a sexual misconduct incident.

Featured Image Courtesy of Massachusetts District Court

September 5, 2019