Student Disciplinary Proceedings Revisited: A Responding Party is Not Entitled to “Quasi-Cross-Examination” in Private School Disciplinary ProceedingsPosted: February 19, 2020
by R. Victoria Fuller
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. 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.
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.
 “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).
Behind the Headlines: An Insider’s Guide to Title IX and the Student Discipline Process for Campus Sexual AssaultsPosted: July 8, 2015
Recent media coverage has caused a firestorm of controversy about how colleges investigate and discipline students for sexual misconduct. Why are these matters handled internally at all instead of being reported directly to the police? Why don’t accused students receive the same due process rights they would in criminal court? And why is the “preponderance of the evidence” standard used instead of the criminal standard of proof beyond a reasonable doubt? Many argue that the process received by students accused of sexual misconduct cannot be fair without access to the due process guarantees of the criminal justice system. Done well, however, college disciplinary proceedings can result in fair and just outcomes, and provide a platform to further educate students about their rights and obligations as students and as adults.
To understand college sexual misconduct proceedings, one must understand Title IX of the Education Amendments of 1972. Title IX prohibits gender discrimination, including sexual violence, in the classroom, on the field, or in the dormitory, by any school that accepts federal funding—in other words, the vast majority of higher education institutions in the country, as well as most public, and some private, elementary and secondary schools. The Office for Civil Rights (“OCR”) of the United States Department of Education enforces Title IX and periodically issues guidelines to educational institutions. Since 2001, OCR has advised schools to conduct “adequate, reliable and impartial”; “prompt and equitable”; and “effective” investigations of sexual misconduct complaints, but left it to the schools to establish systems to meet these criteria.
Prior to 2011, schools commonly used the “clear and convincing” standard of proof for sexual misconduct proceedings, or in some cases, proof beyond a reasonable doubt. Some criticized the use of these higher standards as tipping the scales in favor of those who commit sexual misconduct because they codify an incorrect, archaic, and even misogynistic presumption that all sex is consensual unless proven otherwise. In response to such criticism, OCR issued a letter in the spring of 2011 (widely referred to as “the Dear Colleague Letter”), marking a sea change in student sexual misconduct proceedings. For the first time, OCR suggested that schools make sexual misconduct charges easier to substantiate by using the “preponderance of the evidence” standard. The “preponderance of the evidence” standard, it is said, levels the playing field and removes the presumption that all sex is consensual.
In addition to changing the recommended standard of proof, other significant aspects of the 2011 Dear Colleague letter included the requirement that anyone investigating or adjudicating college sexual misconduct matters have specific training or experience responding to reports of sexual harassment and sexual violence, and that colleges should generally complete investigations within 60 days. It also suggested that schools take interim measures to ensure the safety of the reporting student during the investigation.
In April, 2014, in conjunction with the publication of a White House Task Force report titled, “Not Alone,” OCR issued “Questions and Answers on Title IX and Sexual Violence.” The Questions and Answers mandated (in contrast to OCR’s earlier suggestions) that schools use the “preponderance of the evidence” standard, take interim measures to ensure student safety, prohibit the questioning of a complainant about sexual interactions with anyone other than the respondent, and avoid using students as adjudicators.
OCR’s Questions and Answers also required schools to permit attorneys to act as advisors, which many schools previously did not allow. However, they did not require schools to permit active participation of those attorneys in disciplinary proceedings. Most schools in fact prohibit active participation by attorneys to prevent one party from having the advantage of skilled legal counsel that the other may not have, a particular risk when the adjudicator is not a lawyer. Attorneys can still play an important role, however, by preparing clients for interviews, advising them during breaks, and ensuring they fully understand and answer the questions asked.
Additionally, the “Not Alone” report approved the increasingly popular “single investigator” model, in which a single investigator—whether an employee or outside consultant, lawyer or non-lawyer—gathers all the evidence, questions witnesses, and issues findings and conclusions. The report noted that preliminary research demonstrated that this model has “very positive results” because it “encourage[s] reporting and bolster[s] trust in the process, while at the same time safeguard[s] an alleged perpetrator’s right to notice and to be heard.” When the single investigator model is used, generally the accused receives a written notice that the college has received a report of sexual misconduct, including basic details such as the date and location of the alleged incident, and the name of the reporting party. The investigator then interviews the complainant, the respondent, and the witnesses, at mutually convenient times. The investigator asks principals and witnesses to provide names of witnesses and to produce relevant documents, and identifies additional relevant witnesses and documents. Questioning is non-adversarial, and the investigator seeks information relevant to possible defenses as well as evidence that supports the allegations. Re-interviews give a party the opportunity to respond to new information or to clarify previous statements. The investigator ultimately writes a report summarizing factual findings and applying specific provisions of the college’s sexual misconduct policy to the facts. Regardless of the model used, colleges must investigate verbal and written reports of sexual misconduct, anonymous complaints (when possible), and additional allegations discovered during the course of the investigation.
Like criminal laws, which differ among states, student discipline processes vary by college, but some notable models have emerged. Some institutions exclusively use the single-investigator model, with an administrator adopting the recommendation of the investigator. Others use a hybrid model in which a single investigator makes a recommendation to a panel of administrators (sometimes from other institutions, to ensure impartiality) who make a final decision, sometimes meeting with the investigator and the students separately. Some schools continue to hold formal hearings at which the students appear, but have instituted measures to prevent re-traumatization of the reporting student, such as placing a partition between the reporter and respondent, or having the parties in different rooms but able to participate by video feed. While the number of institutions in Massachusetts makes it difficult to say with certainty which model most schools use, the model that appears to have the most momentum is the hybrid in which the investigator gathers facts and analyzes potential policy violations, and a panel of administrators reviews the conclusions with the investigator and the students to make its final decision.
Most Massachusetts colleges prohibit a wide variety of sexual misconduct, some of which—such as sexual harassment—may not constitute a crime. Still, these prohibitions set important boundaries that will help guide students in their sexual interactions throughout their adult lives. For instance, most of these colleges use the “affirmative consent” standard, in which the initiator of a sexual act must obtain consent, whether verbal or non-verbal, for any sexual act. Under this standard, consent to one act is not necessarily consent to another, consent may be withdrawn at any time, and silence does not equal consent. Consent also plays a key role in criminal prosecutions for rape, but there are significant differences between consent in that context and in how colleges treat sexual assault.
To prove rape in Massachusetts, the Commonwealth must persuade a fact finder that the accused committed “sexual intercourse with a person…by force and against his will.” G.L. c. 265, § 22 (b). “Against his will” means the same as “without her consent.” Commonwealth v. Roosnell, 143 Mass. 32 (1886). Rather than requiring the initiator of the sexual act to ensure that he has consent before proceeding, criminal prosecutions require the Commonwealth to prove a lack of consent beyond a reasonable doubt. Since Massachusetts does not further define consent, jurors—many of whom harbour outdated beliefs about sex and gender roles—may determine for themselves whether a lack of resistance, silence, or consent to a different sexual act equals consent to the one charged. Thus, in criminal sexual assault cases, like in college discipline cases before the Dear Colleague Letter, the deck is stacked in favor of the defendant.
While they may seem counterintuitive to criminal-law practitioners, affirmative-consent policies—in which students must be certain the desire for sex is mutual—promote socially responsible and considerate sexual interactions. Most people already follow these guidelines instinctively, because such consideration is no different than the consideration we display in the countless other non-sexual social interactions we engage in every day, such as checking traffic before changing lanes, and asking permission before borrowing a friend’s car. Adding sex to the equation does not reduce our social obligations. Affirmative-consent policies also promote gender equality by dismantling the presumption of criminal cases that all sex is consensual. Finally, by helping control for potential bias of fact finders, affirmative-consent policies, along with the lower standard of proof, promote greater accountability for sexual misconduct.
That college sexual misconduct policies may result in greater accountability for a broader range of offenses than does the criminal justice system does not make those policies inherently unfair. Nor does the fact that the due process protections provided at colleges differ from those available in the criminal setting. OCR recognizes that possible expulsion from school does not warrant the same due process protections provided to those facing possible imprisonment.
In addition, although much of the conduct addressed by college policies doesn’t rise to the level of criminal prosecution, colleges and universities correctly address such socially inappropriate behavior through school disciplinary procedures. After all, students increasingly learn fundamental social skills in school. Learning to hold themselves to the higher standard of sexual behavior expected by college policies better prepares students for adult life. When students are permitted to present evidence in a private, non-adversarial setting in which investigators and adjudicators have the appropriate skills and expertise, listen carefully, and treat them respectfully, the result is a fair process in which students and the campus community can have confidence.
Djuna Perkins is the principal of DP Law, a law firm in Dedham, Massachusetts that provides fact-finding, training and representation in sexual misconduct matters for schools and employers.