Doe v. Williams College

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JOHN DOE, )

)

Plaintiff, )

)

v. ) Case No. 3:20-cv-30024-KAR

)

WILLIAMS COLLEGE, )

)

Defendant. )

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO CERTIFY QUESTIONS OF

LAW TO THE MASSACHUSETTS SUPREME JUDICIAL COURT

(Dkt. No. 43)

ROBERTSON, U.S.M.J.

I. INTRODUCTION

Plaintiff John Doe's suit against Williams College ("Williams" or "the college")

challenges the disciplinary proceeding that resulted in his one semester suspension from

Williams for sexual misconduct with a fellow student. Plaintiff alleges breach of contract,

breach of the covenant of good faith and fair dealing, and violation of Title IX of the Education

Amendments of 1972 ("Title IX"). Doe has asked the court to certify questions of law to the

Massachusetts Supreme Judicial Court ("SJC") including whether a student who has been

charged with misconduct is entitled to a live hearing when witness credibility may be key to the

outcome of the proceeding. The parties have consented to this court's jurisdiction (Dkt. No. 23).

See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the reasons that follow, Doe's motion is

DENIED.

II. RELEVANT BACKGROUND1

In response to a student's complaint of sexual misconduct by another student, the

Williams College Investigation and Adjudication Process for Sexual Misconduct (including

sexual assault and sexual exploitation) and for Stalking, Dating Violence, and Domestic

Violence (the "Process") directed the Dean of the College to appoint an independent investigator.

The investigator interviewed the complainant, respondent, and other witnesses and gathered

evidence. During the investigator's interviews of the complainant and respondent, they had the

opportunity to respond to each other's version of the events that formed the basis of the sexual

misconduct complaint. The investigator's written report contained the complainant's and

respondent's accounts of the events and their responses to the other's account but did not make

credibility assessments. The college submitted the investigator's written report, the exhibits, and

the complainant's and respondent's written responses to the report to a three-member hearing

panel. After reviewing the written materials, the hearing panel decided whether or not the

respondent violated the college's code of conduct. The Process did not provide for the hearing

panel to hear live testimony from the complainant, the respondent, or other witnesses during the

liability phase of the Process.

Doe was disciplined for engaging in sexual misconduct with another student, Sally Smith

(a pseudonym). Doe claimed that Smith consented to the sexual contact. Smith denied that she

consented to the sexual contact. After considering the written material, the college's hearing

panel credited Smith's account, found Doe responsible for sexual misconduct, and suspended

him for one semester. In his breach of contract claim, Doe alleged, among other things, that he

1 Williams has moved for summary judgement on all claims (Dkt. No. 36). The court's separate

memorandum and order granting Williams' motion contains a more detailed recitation of the

facts.

was denied a fair proceeding because the hearing panel's credibility determination was made on

the written record (Dkt. No. 1 ¶ 131).

III. LEGAL STANDARD

Doe seeks certification of questions of law under SJC Rule 1:03 § 1, which provides:

This court may answer questions of law certified to it by the Supreme Court of the

United States, a Court of Appeals of the United States, or of the District of

Columbia, or a United States District Court, or the highest appellate court of any

other state when requested by the certifying court if there are involved in any

proceeding before it questions of law of this state which may be determinative of

the cause then pending in the certifying court and as to which it appears to the

certifying court there is no controlling precedent in the decisions of this court.

S.J.C. R. 1:03 § 1.

III. ANALYSIS

Under Massachusetts law, a student handbook, or similar documents that describe a code

of conduct and a disciplinary process, generally constitute a contract between an academic

institution and a student. See Doe v. Trs. of Boston Coll. (BC II), 942 F.3d 527, 529-30 (1st Cir.

2019). To determine whether there was a breach of contract as a result of a disciplinary

proceeding, federal and state courts examine how the disciplinary process was conducted to

ascertain whether the academic institution failed to meet the accused student's reasonable

expectations under the terms of the contract and whether the proceeding was conducted with

basic fairness. See id. at 533; Helfman v. Ne. Univ., 149 N.E.3d 758, 777 (Mass. 2020).

Doe's breach of contract claim was based in part on his contention that Williams failed to

provide basic fairness when its process did not give the hearing panel the opportunity to "judge

the credibility of Smith or other witnesses face-to-face" (Dkt. No. 1 ¶ 1; Dkt. No. 46 at 13-16).

Doe asks this court to certify the following questions to the SJC:

• “[D]oes ‘basic fairness’ in a campus disciplinary proceeding, see Schaer v. Brandeis

Univ., 432 Mass. 474, 481 (2000), require that those making credibility determinations

have an opportunity to question relevant individuals personally rather than judging

credibility solely on a written record?”

• “[W]hat requirements does the obligation of ‘basic fairness’ impose on university

disciplinary proceedings beyond compliance with established processes and

procedures?”2

(Dkt. No. 43 at 1). Williams opposes certification on the ground that there is controlling

precedent in decisions of the SJC and the Massachusetts Appeals Court. The court agrees with

Williams.

To certify a question, there must be an absence of controlling state precedent. S.J.C. R.

1:03 § 1. "That a legal issue is close or difficult is not normally enough to warrant certification,

or else diversity cases would regularly require appellate proceedings in two courts." Boston Gas

Co. v. Century Indem. Co., 529 F.3d 8, 15 (1st Cir. 2008). Certification is necessary only "when

'the course [the] state court[] would take is [not] reasonably clear.'" Easthampton Sav. Bank v.

City of Springfield, 736 F.3d 46, 51 (1st Cir. 2013) (first and second alterations in original)

(quoting In re Engage, Inc., 544 F.3d 50, 53 (1st Cir. 2008)). This is not such a case.

It is true that the First Circuit recently indicated that "[b]oth Massachusetts and First

Circuit case law in this realm of school disciplinary proceedings show that although denial of

basic fairness is a recognized theory of recovery, the precise contours of such a claim are yet to

2 Doe asks the court to certify two additional questions, those being whether “’basis fairness’

require[s] that a university comply with all applicable federal and state laws and regulations in

adjudicating disciplinary complaints of sexual misconduct?,” and whether “the Defendant

demonstrated an absence of genuine disputes of material fact concerning Counts I and II of the

Complaint to the extent they are based on a violation of ‘basic fairness’?” (Dkt. No. 43 at 1-2).

As to the former, this question fails to identify a question of law which may be determinative of

the outcome of the instant case. As to the latter, this question is an inappropriate formulation for

certifying a question to the Commonwealth’s highest court, which is not in the business of

deciding cases pending in this court.

be clearly defined." Sonoiki v. Harvard Univ., 37 F.4th 691, 714 (1st Cir. 2022).3 The court

determined that although basic fairness was "one of the reasonable expectations a student has

about the disciplinary process," its "root[s] in 'the implied covenant of good faith and fair dealing

imposed on every contract by Massachusetts law'" made it "distinct" from a breach of contract

claim based on the student's reasonable expectations. Id. at 714-15 (quoting Doe v. Trs. of

Boston Coll. (BC I), 892 F.3d 67, 87 (1st Cir. 2018)).

In advocating for the court to certify legal questions to the SJC, Doe ignores Coveney v.

President and Trs. of the College of the Holy Cross, 445 N.E.2d 136 (Mass. 1983), in which the

SJC addressed the question of whether a private college was required to afford the student a

hearing before he was expelled (Dkt. Nos. 44, 56). Id. at 140. The plaintiff student had agreed

to sign a release of all claims against the college "in consideration for being granted a de novo

hearing before the president of the college." Id. In his subsequent suit against the college, the

student/plaintiff challenged the validity of the release on the ground that it lacked consideration

because he had a contractual right to a hearing before the college's judicial board. Id. The SJC

rejected that claim and held that the contract between the college and the student (the student

handbook) was "clear" that the student/plaintiff was not entitled to a hearing before he was

expelled. Id. In a more recent decision, the SJC repeated its unwillingness to alter a university's

code of conduct in response to a student's claim of unfairness. See Helfman, 149 N.E.3d at 758.

In a sexual misconduct case in which the outcome turned on the credibility of the

complainant and the respondent and the contract between the college and the student did not

provide an opportunity for "quasi-cross-examination [of the complainant and the respondent] in

3 The parties did not have the benefit of the First Circuit’s decision in Sonoiki, which was issued

after the parties submitted their briefs and after the court held a hearing in this case.

real time," the First Circuit relied on Coveney to reverse the lower court's finding that basic

fairness required the private college to provide the opportunity for such a proceeding. See BC II,

942 F.3d at 533-34. The court noted that "Massachusetts law permits its colleges and

universities flexibility to adopt diverse approaches to student discipline matters that do not meet

federal due process requirements." Id. at 535. Other courts in this district have followed BC II

(and Coveney) in rejecting claims that basic fairness requires a disciplinary proceeding with

some form of live testimony. See Doe v. Williams Coll., 530 F. Supp. 3d 92, 120-21 (D. Mass.

2021) ("[s]ince the disciplinary process set out in the [c]ollege's written policies did not include

an opportunity for the hearing panel to hear live testimony [including a form of cross-

examination], basic fairness did not require such a proceeding.") (citing BC II, 942 F.3d at 533-

34); Doe v. Stonehill Coll., Inc., Civil No. 20-10468-LTS, 2021 WL 706228, at *14 (D. Mass.

Feb. 23, 2021), appeal docketed, No. 21-1227 (1st Cir. Mar. 23, 2021) ("basic fairness under

Massachusetts law does not entitle parties to a live hearing or cross-examination") (citing BC II,

942 F.3d at 534-36).

The First Circuit did not exercise its discretion to certify questions about fairness in

college disciplinary proceedings in BC II or in Sonoiki. See Philips v. Equity Residential Mgmt.,

LLC, 844 F.3d 1, 4 n.7 (1st Cir. 2016) (noting that the First Circuit has discretion to certify

questions to the SJC sua sponte and even over the parties’ objections). The relevant First Circuit

opinions and the fact that the First Circuit has not deemed it necessary to ask the SJC whether

basic fairness requires a private college or university to provide the opportunity for live

questioning in student disciplinary hearings shows that controlling precedent exists on the

questions for which Doe seeks certification. S.J.C. R. 103 § 1. Similarly, relying on SJC

precedent, the First Circuit has repeatedly "defer[red] to 'the choices of student discipline

proceedings made by private academic institutions,' BC II, 942 F.3d at 535, and adheres to the

principle in Massachusetts law that courts are "chary about interfering with academic and

disciplinary decisions made by private colleges and universities, id. (quoting Schaer, 735 N.E.2d

at 381) (cleaned up))." Sonoiki, 37 F.4th at 715. Thus, controlling precedent also exists to the

effect that the SJC would defer to educational institutions and would not spell out the

requirements that the obligation of basic fairness imposes for purposes of college and university

disciplinary proceedings.

Doe has not presented a basis for certifying the proposed questions of law to the SJC.

IV. CONCLUSION

For the reasons set forth above, Plaintiff's Motion to Certify Questions of Law to the

Massachusetts Supreme Judicial Court (Dkt. No. 43) is DENIED.

It is so ordered.

Date: September 7, 2022 /s/ Katherine A. Robertson____

KATHERINE A. ROBERTSON

United States Magistrate Judge