Key question in BC student's sexual misconduct case may be sent to SJC.

Byline: Kris Olson

Lawyers for a student suspended from Boston College for a year for sexual misconduct are asking a federal judge to certify a question to the Supreme Judicial Court on a key issue that the 1st U.S. Circuit Court of Appeals has already weighed in on.

The question would ask "whether basic fairness, implied in the contract between a student and a private 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 through a neutral person, particularly in matters that involve credibility determinations, such as the Title IX investigatory setting."

In August, the 1st Circuit had imposed such an obligation on a public university in Haidak v. University of Massachusetts-Amherst, et al., ruling that "due process in the university disciplinary setting requires 'some opportunity for real-time cross-examination, even if only through a hearing panel.'"

Then in the current case, Doe v. Boston College, U.S. District Court Judge Douglas P. Woodlock had imported such an obligation into the context of private institutions, only to be reversed by the 1st Circuit.

On Nov. 20, the 1st Circuit instead agreed with Boston College and more than a dozen other Massachusetts colleges and universities who submitted an amicus brief that there was a significant difference between what the Due Process Clause requires of public universities and the "basic fairness" standard that private institutions must adhere to when administering their disciplinary proceedings.

The 1st Circuit stated that "no Massachusetts state decision has ever found the requirements the district court here imposed to be a necessary part of the basic fairness requirement," adding that it was improper for a federal district court to "base its ruling on a prediction of future developments in Massachusetts contract law."

But in a Jan. 7 filing responding to Woodlock's request that the parties submit proposals for bringing the case to final judgment, attorneys for plaintiff John Doe argued that the 1st Circuit "effectively invited the Supreme Judicial Court to address the question" related to real-time cross-examination by writing, "[W]hether Massachusetts in the future will wish to redefine the...