First Circuit finds no right to cross-exam witness in sexual misconduct disciplinary hearing.  On any given day, when schools are in session, university students can end up wandering around as they wonder what to do.  Groups of friends and acquaintances meet up at a local hangout and run into strangers who will become friends. Sometimes they consume alcohol, and sometimes they don’t.  Sometimes they flirt, and sometimes they don’t.

Students who attend Boston College may be vaguely aware of the Student Conduct Handbook. They may know that there are consequences to actions, and there are forums to disprove an accusation. What they may not be aware of is that the Student Conduct Handbook creates a contract between the student and Boston College and that that contract rules disciplinary matters regarding allegations of sexual misconduct.

In November 2018, a female student (Roe) accused a male student (Doe) of sexual misconduct.  Boston College investigated the incident by interviewing both students separately and on multiple occasions as well as interviewing witnesses, finally issuing a 60 plus page report.  As a result of a finding of sexual misconduct, Doe was suspended for one year (2019-2020).

Doe filed suit in U.S. District Court alleging BC’s violation of Title IX and Massachusetts contract law, among other claims.  The state law contract claim alleged that the student should have been afforded the right to a “quasi-real-time questioning of witnesses” during the disciplinary proceeding.  Because this was not allowed, Doe argued that BC’s Student Conduct Handbook violated the right to basic or fundamental fairness.  Doe then requested a preliminary injunction to stay the suspension. The District Court granted the preliminary injunction, relying heavily on a recent First Circuit decision finding that a university owes students fundamental fairness during disciplinary proceedings that included a “real-time process at which both of the respective parties are present and have the opportunity to suggest questions.” Haidak v. University of Mass.-Amherst, 933 F.3d 56 (1st Cir. 2019)  In granting the preliminary injunction, the District Court concentrated on the idea that the contract between Doe and BC required a disciplinary procedure that included basic fairness.  Because the contract did not provide the opportunity for the accused to question witnesses, Doe would likely prevail on the merits of that claim. Therefore the suspension was stayed.

BC appealed to the First Circuit.  The First Circuit acknowledged that Haidak did require basic fairness between a student and a university, but federal due process law does not dictate to States the procedures for private universities. Students who attend private colleges and universities were limited to the disciplinary procedures outlined in the contract between the university and the student – The Student Conduct Handbook.  The Student Conduct Handbook clearly and plainly described the investigation process. Nothing in the policy would have implicitly or explicitly given Doe the expectation of a quasi-cross-examination of Roe and witnesses in real-time. The injunction to stay the suspension was reversed and vacated, and the case remanded for a decision on the merits.

Title IX is the federal law that requires universities and colleges to strive to eliminate sexual harassment and assault on campuses or off campuses at school-sponsored events.  In the wake of concern that too many cases of assault were going unaddressed, campuses have heightened the level of investigation and discipline.  Colleges do not need to prove beyond a reasonable doubt that the assault happened.  The standard of more likely than not is enough for a student accused of sexual misconduct to face disciplinary action.  Disciplinary action could mean suspension and a notation on the student’s academic record.  Some activists believe the attempt to eradicate sexual assault on campuses imposes a rush to judgment that could have lasting and irreversible effects on those who are falsely accused.

It is now in the hands of the legislature and state courts, if they so choose, to equal the playing field between public and private schools.  Until then, courts are divided over the extent of what right there is to cross examine during disciplinary hearings.

To read more about this issue and decision of other courts click here.

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