Although the Obama administration and its media and campus allies billed their crusade to erode due process for students accused of sexual assault a national one, it’s better seen as more of an elite movement. The rate of allegations is far higher at elite schools (Ivies, top-tier liberal arts colleges, Tier One research universities) where an identity politics atmosphere is especially prevalent. Given the disproportionate number of elite institutions in the states of the First Circuit, it should come as little surprise that the area has featured a disproportionate number of due process cases—Brandeis, Amherst, Brown (three cases), Williams, Holy Cross, Clark, and Boston College, as well as UMass and Western New England.

These cases run the gamut—from Judge Saylor’s opinion in Brandeis, the most comprehensive discussion of why campus due process matters from any judge since the Dear Colleague letter, to the opinions in the Holy Cross and BC cases, which essentially gave the institution carte blanche to be as unfair as they wanted. In contrast to the Second or Sixth Circuits (in different directions), First Circuit precedent regarding campus due process claims is ambiguous and leaves considerable leeway for lower-court judges. For instance, Gorman, a 1980s case, is so vague as to provide almost no guidance at all. The panel held for the university, and cautioned that “the undue judicialization of an administrative hearing, particularly in an academic environment, may . . . prove counter-productive.” But the decision also went out of its way to note that “whether the hearing was fair depends upon the nature of the interest affected and all of the circumstances of the particular case” and “beyond the right to notice and hearing, the span of procedural protections required to ensure fairness becomes uncertain, and must be determined by a careful weighing or balancing of the competing interests implicated in the particular case.”

The BC case could provide more clarity—and seems likely, at least based on the oral argument, to produce a victory for the accused student. With one Appeals Court decision favorable to due process (the Columbia case), one unfavorable but very limited decision, with a strong dissent (the Houston case), and one highly unfavorable decision (the Cincinnati case), the outcome from this liberal circuit could carry considerable weight, beyond its effect on the many colleges in First Circuit states.

The facts of the BC case are unique among the scores of campus sexual assault lawsuits since issuance of the Dear Colleague letter in 2011. In October 2012, the accused student (John Doe, or JD, in pleadings), a senior and a student reporter, was covering a campus cruise run by a minority student organization. As he was walking across the cruise’s dance floor (described as dark, with strobe lights), a female student said that she was digitally penetrated, from behind. She turned around, pointed at JD, and started screaming. At that point, JD claimed that another male student told him, “Sorry, dude, that was my bad.” (At the hearing, this student, identified in the record as JK, would deny making this remark, although post-incident texts cast doubt on his testimony.) Based on the female student’s point, JD was detained by security guards and eventually arrested.

Although it took a year and a half, JD was able to prove his innocence, and the prosecutor dropped all charges. Although he was immediately detained and arrested, without a chance to wash his hands, forensic tests of JD came back negative—which would seem to have been impossible if the accusing student had accurately identified him as the person who penetrated her with two fingers. Second, a video of the dance floor, enhanced by a defense expert, showed JD several feet away from the accusing student at the time the assault appeared to have occurred. JD also passed a polygraph test. His lawyer suggested that if an assault had occurred, JK, the other male student, was the perpetrator.

The investigation at Boston College, however, took a different course. The initial report on the incident, prepared by a campus police officer, inaccurately asserted that JD and the accuser were dancing, and that the accuser saw JD assault her. In her first discussion with JD, Dean Carole Hughes refused to hear his pleas of innocence, and so didn’t learn of JK’s existence until the day before the hearing was scheduled. (This refusal would become important to the First Circuit.)

The college investigation consisted solely of interviewing the parties and a handful of witnesses; BC did not wait until the police completed their forensic investigation, nor did they wait until an enhanced version of the dance-floor video could be prepared. The panel also refused to hear from the private investigator that JD’s lawyer had hired. It did, however, hear from JK—who received immunity from the college, but who Dean Hughes told the hearing panel to put “at ease” in his testimony. The disciplinary hearing occurred less than three weeks after the incident; a partition separated the two parties. BC elected not to record the hearing, and so no transcript exists.

JD was found guilty—though, oddly, not of what the accusing student claimed he did. On a Friday, after deliberations, panel chair Catherine-Mary Rivera informed Dean Hughes that her panel was considering returning a “no finding” verdict. Hughes discouraged this course, even though deliberations of the panel were supposed to be “private.” Rivera denied passing the dean’s recommendation on to her colleagues, but the following Monday, after resuming deliberations, the accused student was found guilty. He did not learn of the dean’s intervention until discovery from his lawsuit.

At first blush, JD appeared to have been cleared, since the panel concluded that it seemed “less likely than not” that the “perpetrator achieve[d] penetration”—despite the accusing student consistently saying her attacker had done so. (Her attacker’s “entire two fingers” penetrated her “all the way,” she said; it was “painful,” and “[i]t really hurt when he did it.”) The panel instead found JD guilty of “indecent assault and battery,” an offense for which he had not been charged and which the accuser had not alleged. This language, it came out in discovery, was recommended by BC’s counsel, not by the board itself.

The panel recommended a three-semester suspension, which JD served. He eventually graduated from BC; upon graduation, the family received a commitment from BC’s president that he would re-examine the facts of the case. The president’s designee concluded that the DNA evidence, the videotape, and the polygraph did not “justify a reconsideration of this case.” Though the lawsuit alleged that this non-review further indicated BC’s unfairness, neither the district court nor the Appeals Court seemed interested.

JD’s lawsuit was assigned to Judge Denise Casper, an Obama nominee. In October 2016, she sided with BC in a motion for summary judgment. Casper argued that nothing in BC’s procedures required the BC police to conduct an investigation (as JD had claimed), or for the university to wait for forensic testing or the enhancement of the video to occur. Anyhow, this refusal was irrelevant, according to Casper, since the video evidence was “ambiguous,” and “the proffered forensic evidence would not have been exculpatory given the nature of the charge or the board’s finding of indecent assault and battery.” Casper did not discuss the problem of why the board chose to disbelieve the accuser on the critical aspect of her testimony (how she was assaulted) but believed her on the identity of someone who, according to her own testimony, she never saw committing any offense.

The judge admitted that JD never received notice that he could be found guilty of “indecent assault and battery,” but concluded that as JD’s defense against this allegation was basically the same as his defense against the sexual assault allegation (someone else did it), BC hadn’t breached its contractual obligations. And it’s true, the judge conceded, that after seeing all the evidence, including material the BC panel never had, prosecutors dropped all charges, but since the university used a preponderance standard, this decision from the criminal justice system was irrelevant. Discussions had occurred between a member of the hearing panel and BC administrators during the deliberation process, but Casper contended that this administrative pressure didn’t color the final decision. Finally, she dismissed JD’s Title IX claims by arguing that nothing in BC’s conduct suggested gender bias; and deemed the process a fundamentally fair one.

Casper took a very narrow view of BC’s contractual obligations—as long as the college provided JD with notice of the charges (it did), a hearing (it did), and a tribunal he couldn’t prove was biased (it did), she would “not second guess the thoroughness or accuracy of a university investigation.” She was, however, remarkably non-curious as to why an institution of higher learning would appear indifferent to exculpatory evidence, and her vision of “fairness” was fundamentally different than Judge Saylor’s in Brandeis. And her arguments that BC was in the clear on Title IX because its policies were nominally gender neutral (the policy’s description of accusers as “survivors,” Casper noted, did not specify the gender of the “survivors”) and because BC didn’t find every accused student guilty would block virtually any accused student from filing a Title IX claim.

JD’s appeal, citing the wide gap between the Brandeis and BC decisions, framed the question bluntly, “What level of judicial scrutiny is appropriate for review of federally-mandated rape investigations and trials held at private colleges and conducted by administrators, faculty, and students?” (JD’s appellate brief is here; the school’s response is here.)

Yesterday, oral argument took place, before Judges Juan Torruella, Bruce Selya, and William Kayatta. With the caveat that after the UCSD oral argument, it’s impossible to predict how a panel might rule on a campus due process appeal, the hearing was a disaster for BC, the 180-degree opposite of the infamous 6^th Circuit panel in the Cincinnati case.

Charles Wayne argued for JD; after a somewhat hesitant start, he closed very strongly. The only skeptical questions he received  came when he asserted the district court should have granted JD summary judgment. The judges seemed disinterested in the fundamental fairness argument that played such a role in the Brandeis decision; they seemed more focused on JD’s breach of contract claims.

The opening few seconds of Daryl Lapp’s appearance for BC previewed things to come.

 

When the panel settled down, Judge Selya noted that parts of the complaint dealing with a breach of contract claim, such as the promise that disciplinary panel deliberations be private, had made an “initial impression” on him:

 

Judge Kayatta offered a series of skeptical questions (quite unlike the Sixth Circuit Cincinnati panel, none of the judges had anything supportive to say about BC). He quoted emails from Rivera to Hughes, which strongly implied a violation of the privacy of the board’s deliberations (Lapp claimed the emails were “very cryptic,” though what Kayatta read didn’t seem too cryptic to me):

 

Kayatta also wondered about Hughes’ instructions to put JK “at ease,” which seemed to send a message that JD’s defense (JK did it) shouldn’t be believed (Lapp deemed this an “innocuous comment” that had no effect on the outcome):

 

And he extended Lapp’s appearance by asking a final question regarding the board’s odd decision to not believe the accuser’s claim of what happened to her:

 

Faced with a barrage of tough questions, Lapp had his work cut out for him, but at several points he seemed to concede points to the panel. This exchange involved the allegation of improper interference by Dean Hughes:

 

This exchange with Judge Torruella, near the end of the oral argument, involved the relationship between fairness and excluding exculpatory evidence:

 

Lapp’s discussion of Hughes’ refusal to hear JD’s defense at their initial discussion appeared to misstate BC’s policies:

 

Judge Selya wondered if Lapp used the wrong standard to describe summary judgment:

 

And here Selya rebuked Lapp for an evasive response:

 

To sum things up, the panel seemed most concerned with the issue of breach of contract, regarding Dean Hughes’ refusal to discuss JD’s factual claims in their initial meeting; and emails between Dean Hughes and the panel chair that appeared to lead the chair to take off the table the possibility of a no-finding outcome. The most interesting question in the hearing was the panel’s last of BC, regarding the seeming inconsistency of finding the accused student guilty of an offense the accuser had not, in fact, alleged.

Selya and Kayatta were very active questioners; Torruella was mostly quiet, except for his questions about excluding exculpatory evidence. The panel asked virtually no questions of JD’s attorney, and those they did (whether breach of contract was a more suitable frame for the case than fundamental fairness, whether the evidence suggested the case should go to trial rather than a summary judgment for JD) were of a very different type than those that went to BC.