Despite some recent speculation to the contrary, federal courts are not in the habit of imposing procedural due process standards applicable to public institutions on private colleges and universities. The First Circuit has now triple-underlined this point in Doe v. Trustees of Boston Coll., No. 19-1871, 2019 WL 6167461, at *1 (1st Cir. Nov. 20, 2019).
Whatever comes from the ongoing Title IX rulemaking on the issue of cross-examination, the First Circuit’s opinion makes clear that the Western District of Tennessee’s unreported opinion in Doe v. Rhodes College, No. 2:19-CV-02336 (JTF-tmp), at 8-10 (W.D. Tenn. June 14, 2019) is an outlier: private institutions need not apply Constitutional due process standards unless directed to by state law or state judicial precedent. Effectively, we are back to where we started in understanding the due process requirements applicable to private institutions of higher education.
In August, we covered a major decision from the First Circuit Court of Appeals, Haidak v. Univ. of Massachusetts-Amherst, 933 F. 3d 56 (1st Cir. 2019), which held that a public university had to offer “some” form of cross-examination in student disciplinary hearings arising from sexual and interpersonal violence. This questioning could be directed through the hearing panel, as long as the approach was “reasonably calculated to get to the truth” and performed “in a manner reasonably calculated to expose any relevant flaws” in the complaint. 933 F.3d at 71.
This opinion arrived amid a summer’s worth of supposition about the impact of an unreported opinion from a federal trial-level court in Tennessee that granted a preliminary injunction of a conduct sanction arising from a Title IX disciplinary proceeding. Doe v. Rhodes College, No. 2:19-CV-02336 (JTF-tmp), at 8-10 (W.D. Tenn. June 14, 2019). Applying Sixth Circuit precedent applicable to public institutions, the Rhodes court granted a temporary restraining order of a respondent's expulsion made without the opportunity for live cross-examination of a witness whose credibility was alleged to be at stake in the case. Id., at *8. The court held that the requirement of cross-examination "invokes due process concerns under Title IX"; in other words, the need for cross-examination was not a constitutional issue, but one arising from the statute itself. Id., at *9. This reasoning, it should be noted, is inconsistent with decisions of other courts within the Sixth Circuit. See, Doe v. Vanderbilt Univ., No. 3:18-CV-00569, 2019 WL 4748310, at *14 (M.D. Tenn. Sept. 30, 2019) (declining to apply the cross-examination requirement in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) to private universities facing breach of contract claims, reasoning that standards of procedural due process need not bind a private institution); Doe v. Belmont Univ., 334 F. Supp. 3d 877, 894 (M.D. Tenn. 2018) (same).
Several months after Rhodes College, in Doe v. Trustees of Boston College, the First Circuit heard an expedited appeal from a district court that seemingly followed the Rhodes College reasoning and found a likelihood of harm from an adjudication made without live cross-examination. The First Circuit reversed, making clear that the due process standard it announced in Haidak is not part of the “contractual obligation of basic fairness” offered in a private institution’s code of conduct.
In other words, the U.S. Constitution does not dictate a single due process standard equally applicable to public and private institutions when they investigate and adjudicate these claims. Instead, those standards rest on state law and judicial rulings and the language of the code itself. In the First Circuit’s well-reasoned opinion, any such changes in the due process applicable to private institutions must come from the state courts and legislature, and not from federal courts applying the Constitution.
In Doe v. Trustees of Boston College, the respondent was found responsible for sexual assault and suspended for one year. The college adhered to its own procedures, which included an investigation and adjudication of responsibility by a team of internal and external investigators, followed by the issuance of sanctions by the dean of students and the Title IX Coordinator. The respondent challenged this outcome in federal court, and the trial-level district court granted a preliminary injunction of the sanction based only on the respondent’s claim that this “single-investigator”-style process violated state contract law.
The district court agreed with the respondent that the due process protections described in Haidak should apply to private institutions when the “credibility” of the parties is at issue. The district court insisted on the need for “real-time evaluation” through a process where both parties were present and had the chance to ask questions.
On appeal, the First Circuit reversed the district court, holding that it had overreached in demanding what it described as “quasi-cross examination in real time” to a private contractual relationship. The court cited several decisions from Massachusetts’ highest appellate court holding that a private institution did not need to comply with federal due process standards to meet the “basic fairness” necessary in campus adjudications. It further noted that the district court’s ruling unduly interfered with the right of academic institutions to make disciplinary decisions. And it spoke to the need for judicial modesty in defining the law, as a federal court “must take state law as it finds it” and not import federal due process standards to reshape state contract law. Any such decisions amounted to “policy choices for the Supreme Judicial Court and/or state legislature to make.”