Student Disciplinary Proceedings Revisited: A Responding Party is Not Entitled to “Quasi-Cross-Examination” in Private School Disciplinary Proceedings

by R. Victoria Fuller

Case Focus

Until recently, a key procedural issue in disciplinary proceedings administered by educational institutions—whether the responding party was entitled to conduct cross-examination—remained unclear in Massachusetts and the First Circuit.  A pair of recent First Circuit decisions provide some clarity for Massachusetts public and private institutions, respectively.  First, in Haidak v. University of Massachusetts-Amherst, 933 F.3d 56 (1st Cir. 2019), discussed in the Fall issue of the Boston Bar Journal, the First Circuit Court of Appeals addressed the obligations imposed by the Due Process Clause of the Fourteenth Amendment on public educational institutions in disciplinary proceedings.  There, the Court held that the responding party did not have a right to cross-examine the reporting party or other adverse witnesses in such proceedings, even where credibility was at issue, and that a public educational institution could implement a non-adversarial, “inquisitorial” system without violating the federal Due Process Clause so long as the educational institution adequately questioned the reporting party.

Most recently, in John Doe v. Trustees of Boston College, 942 F.3d 527 (1st Cir. 2019), the First Circuit addressed the same issue, but in relation to disciplinary proceedings in private educational institutions.  As discussed below, the responding party argued that he was entitled to real-time examination of the reporting party and adverse witnesses through a neutral—or as the First Circuit called it, “quasi-cross-examination.”  The Court rejected that argument.  It held that private school proceedings are governed by state law, not the federal Due Process Clause, and that applicable Massachusetts contract law did not recognize a right of cross-examination.

The Complaint and Disciplinary Proceedings

In John Doe, the disciplinary proceeding was triggered by a complaint by a female student that a male student—the responding party—had sexually assaulted her.  The complaint was governed by the university’s Student Sexual Misconduct Policy (the “Policy”), which established the university’s procedure for the adjudicating sexual misconduct complaints. Under the Policy, sexual misconduct complaints were to be investigated by one (or more) internal or external investigators.  The Policy did not permit either party to cross-examine the other party or adverse witnesses.

In the case of John Doe, once the investigators completed the investigation, they prepared a written report.  Applying a preponderance of the evidence standard, the investigators found that several of the responding party’s statements lacked credibility, or failed to support his defense that the sexual contact at issue was consensual, and concluded that the responding party had violated the Policy. Based on the investigators’ findings and conclusions, the university imposed an immediate one-year suspension on the responding party.

After exhausting his appeals at the university, the responding party sued in the District of Massachusetts, seeking an injunction staying his suspension. The responding party argued that he was entitled to a form of real-time examination, including:

• Contemporaneous questioning by a “neutral” (who may be a hearing officer or an investigator) of both the reporting party and the responding party (though not necessarily in the same room);
• Disclosure of the exact statements of the adverse party in real time; and
• The opportunity to submit questions to the neutral, either orally or in writing, to be put to the other party.

The District Court agreed, and granted the requested injunction, thus staying the responding party’s suspension.  The university appealed.

Private School Disciplinary Proceedings Are Governed by State Law

The First Circuit disagreed and vacated the injunction. The Court held that Massachusetts private schools are not obligated to provide any form of cross-examination, let alone the “real-time examination” sought by the responding party (and which the First Circuit referred to as “quasi-cross-examination”).

The Court explained that Massachusetts private school disciplinary proceedings are not governed by the federal Due Process Clause, but instead by applicable Massachusetts contract law.  See 942 F.3d at 529.  In Massachusetts, courts use two analyses to determine whether a private institution has breached its contract with a student: (1) whether the reasonable expectations of the parties have been met; and (2) whether the procedures implemented by the school were conducted with “basic fairness.”  Id. at 533-34.[1]  First, the Court rejected the responding party’s argument that he reasonably expected he would be afforded the opportunity to conduct a form of quasi-cross-examination.  Nothing in the Policy’s detailed procedures provided any basis for such an expectation.

Second, the Court stated that Massachusetts concept of “basic fairness” does not require quasi-cross-examination.  “Basic fairness” requires only that a public institution act in good faith and on reasonable grounds, and that its decision must not be arbitrary and capricious.  See Coveney v. President & Trs. of The Coll. of The Holy Cross, 388 Mass. 16, 19 (1983); Driscoll v. Bd. of Trs. of Milton Acad., 70 Mass. App. Ct. 285, 295 (2007).  The Court also clarified that its recent decision in Haidak v. University of Massachusetts-Amherst was inapplicable: Boston College was neither a public university nor a government actor, and therefore was not subject to the federal Due Process Clause.  The Court also noted that the Massachusetts Supreme Judicial Court had specifically held in Schaer v. Brandeis University, 432 Mass. 474 (2000) that the obligations imposed by basic fairness on private institutions were not equivalent to those imposed by the federal Due Process Clause on public institutions, and Massachusetts state courts had not recognized quasi-cross-examination as an obligation imposed by the basic fairness requirement.

Perhaps anticipating that its decision in John Doe would not be the final word on the matter, the First Circuit concluded that “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.”  Id. at 536.

Conclusion

With its decision in John Doe, the First Circuit clarified the distinction between the obligations imposed on public educational institutions by the federal Due Process Clause, and those imposed by Massachusetts contract law on private schools.

Importantly, the First Circuit also noted that “[f]ederal courts are not free to extend the reach of state law.”  942 F.3d at 535.  While no previous Massachusetts case has held that “basic fairness” includes a right to cross-examination in private school disciplinary proceedings, the right of cross-examination in both public and private school disciplinary proceedings has become a hot topic across the country.  Indeed, the law is rapidly evolving, and not always cohesively.  Compare Haidak v. University of Massachusetts-Amherst, 933 F.3d 56 (2019) (holding no absolute right to cross-examination in public institution disciplinary proceedings) with Doe v. Baum, 903 F.3d 575, 582-3 (6th Cir. 2018) (recognizing a right to cross-examination in public institution disciplinary proceedings).

Perhaps not surprisingly, then, after the case was remanded by the First Circuit, lawyers for John Doe requested that the District of Massachusetts certify to the Massachusetts Supreme Judicial Court the question:

[W]hether basic fairness, implied in the contract between a student and a college or university, requires an opportunity for parties in a college or university disciplinary process, to have their questions put to each other and witnesses in real time, even if only through a neutral person, particularly in matters that involve credibility determination, such as the Title IX investigatory setting.

See Civ. A. No. 1:19-cv-11626-DPW, Dkt. 73. The District of Massachusetts has postponed any potential certification until after summary judgment practice. One way or the other, given the recent changes and clarifications in this area of the law, we can expect unsatisfied responding parties in private school disciplinary proceedings to continue to raise the issue in Massachusetts courts until the Supreme Judicial Court directly addresses it.

Victoria Fuller is an attorney at White and Williams LLP. Her practice focuses on insurance law, employment law, and general commercial litigation.

[1] “Basic fairness” applies not only to colleges and universities, but to all private educational institutions.  See, e.g., Discol v. Bd. of Trs., 70 Mass. App. Ct. 285, 295 (2007) (applying “basic fairness” standard to disciplinary proceedings in private school that admitted students from kindergarten through grade twelve).