A panel of judges on the U.S. Court of Appeals for the First Circuit heard arguments for the lawsuit against Boston College that could reshape how private universities investigate cases of sexual assault on Tuesday.
The plaintiff in the case, a BC student-athlete going by the pseudonym “John Doe,” had been suspended in June after the University found him responsible last November for sexually assaulting another student, “Jane Roe.”
The University’s investigation said that Doe had engaged in a non-consensual sexual encounter with Roe while she was intoxicated, although it did not find that he had known or should have reasonably known that she was incapacitated by alcohol. Rather, 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.
After BC denied his appeal, Doe took the case to court, primarily arguing that the University’s “single investigator model” had violated the principle of fundamental fairness. The heart of the complaint is that Doe did not have an opportunity to present questions for the investigators to ask of Roe and other witnesses.
The University’s model utilizes a pair of investigators—in this case Assistant Dean of Students Kristen O’Driscoll and external investigator Jennifer Davis—who interviewed Doe, Roe, and 17 other witnesses. They also reviewed EagleID records, Uber receipts, several photos and videos of Roe taken throughout the night, and text messages sent by the two parties to other students, according to the investigatory report, which BC submitted as evidence.
Massachusetts common law holds that all contracts contain and inherent promise of fundamental fairness. 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, rather than just following the letter of the contract. More recently, the First Circuit ruled in a separate suit against BC that colleges must provide “basic fairness” in the disciplinary process.
On Aug. 20, Judge Douglas P. Woodlock agreed and ordered BC to allow Doe to return to campus and register for classes this semester. In that hearing, Woodlock said that BC’s investigatory process did not thoroughly address questions of credibility because there was no opportunity for “real-time cross-examination.”
Woodlock likened fair process at private universities to the constitutional due process obligations of public universities. He cited the recent First Circuit ruling in Haidak v. University of Massachusetts Amherst, which said that public schools must offer the accused student to ask questions of the complainant or witnesses in real-time, possibly through a hearing panel or representatives.
First before the panel, which consisted of Judges Sandra L. Lynch, Michael Boudin, and Kermit V. Lipez, was BC’s attorney, Daryl Lapp. After giving a brief summary of the case for the class of high school students in the room, Lapp began addressing the court.
Lapp began by arguing that by sticking to its contract with Doe, laid out in the Student Code of Conduct, the University had not violated fundamental fairness. Doe had been given notice of the charges and an opportunity to be heard, Lapp said, so the process was not “arbitrary or capricious.”
The panel rebuked Lapp’s assertion and stated that following the Student Code of Conduct would qualify as fair process: Lipez asked whether it would be possible for the process that the University had set forth via contract to be deficient. Later on, Lynch questioned whether the contractual obligation for fundamental fairness is more than simply not being “arbitrary and capricious.”
Like he did before Woodlock, Lapp also argued that Haidak should not be the controlling precedent because, as a matter of due process, it could not be reconciled with previous state-level cases about fair process.
Lapp defended BC’s model by noting that the investigators spoke to Doe and Roe multiple times through an iterative process, with each meeting informed by information from previous interviews. Doe was informed of the allegation, had an opportunity to respond to the specifics of Roe’s testimony, and reviewed the evidence binder at the end of the process, Lapp said. The questions that the investigator asked of Roe were informed by Doe’s recollection of events, although he did not get to submit questions himself, Lapp said.
Lipez, like Woodlock did in August, questioned whether this process allows the factfinders to make determinations about the credibility of Roe and the other witnesses.
After Lapp’s 15 minutes before the panel, Doe’s attorney, Jeannie Suk Gersen spoke. Gersen, a Harvard Law professor who has previously written about and argued Title IX cases, had initially been blocked from representing Doe at oral arguments because it would “create a recusal” on the panel. It wasn’t until Nov. 1 that the court reversed and allowed Gersen to appear.
Gersen’s argument largely focused on the question of real-time cross-examination. She noted that neither Doe nor Roe had an opportunity to see the content of the other’s interviews, and therefore could not formulate questions or respond to specific claims.
Gersen said that Doe had a reasonable expectation of real-time cross-examination, potentially through a neutral third-party or the investigators reading off a list of questions for Roe. BC’s policy promises students the opportunity to review and respond to all the available evidence, Gersen said, which should not be limited to the end of the investigatory process.
Both Lipez and Lynch quickly probed her use of Haidak, pointedly asking whether she was asking the First Circuit to go beyond current Massachusetts standards for private universities and order BC to alter its process. Gersen demurred, responding that due process should inform fair process.
At the end of arguments, Lipez again suggested that the First Circuit would be pushing Massachusetts law past its current boundaries if it ruled against BC’s model.
Featured Image Courtesy of Massachusetts District Court