United States Court of Appeals 

For the First Circuit 

No. 19-1871 

JOHN DOE, 

Plaintiff, Appellee, 

v. 

TRUSTEES OF BOSTON COLLEGE, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Douglas P. Woodlock, U.S. District Judge] 

Before 

Lynch, Boudin, and Lipez, 

Circuit Judges. 

Daryl J. Lapp, with whom Elizabeth H. Kelly and Locke Lord 

LLP were on brief, for appellant. 

Jeannie Suk Gersen, with whom Andrew T. Miltenberg, Stuart 

Bernstein, Tara J. Davis, and Nesenoff & Miltenberg, LLP were on 

brief, for appellee. 

November 20, 2019 
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LYNCH, Circuit Judge. This is an expedited appeal from 

entry of a preliminary injunction based on a Massachusetts law 

contract claim. The preliminary injunction prohibited the 

Trustees of Boston College ("BC") from imposing a suspension of 

one year on student John Doe, who was found after extensive 

investigation by BC to have engaged in sexual assault in the form 

of a nonconsensual penetration of a female student, Jane Roe. Roe 

filed a disciplinary complaint against Doe under BC's Student 

Sexual Misconduct Policy, and the suspension decision was the 

outcome of the procedures set forth in that Policy. 

The district court found Doe had shown a probability of 

success on the merits of the state law claim of violation of a 

contractual obligation of basic fairness. It ruled on this state 

law question primarily by reference to a decision of this court 

concerned with the requirements of the federal due process clause 

as to a public university. It is quite clear, and the parties do 

not dispute, that federal due process law does not dictate to 

states the procedures which its private colleges must follow in 

administering student discipline. 

Massachusetts law as it currently stands does not 

require the college discipline process Doe says must be a part of 

a contractual obligation of basic fairness. To the extent the 

district court was, without expressly saying so, attempting to 

base its ruling on a prediction of future developments in 
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Massachusetts contract law, it also erred. Any such future 

developments are up to the state courts and legislature, not the 

federal courts. 

For the reasons more fully stated below, we hold the 

district court erred in finding a probability of success as to 

Doe's claim under Massachusetts contract law and erred in granting 

the injunction. We now reverse, vacate the injunction, and remand. 

We describe the pertinent facts, procedures followed, and history 

of the litigation. 

I. 

A. Background 

The parties agree that the contract involved is found in 

BC's Student Sexual Misconduct Policy ("the Policy"), which was 

incorporated into its 2018-2019 Student Guide. That policy defines 

conduct subject to discipline. It provides, in relevant part, 

that "sexual misconduct" includes "sexual assault," which is "any 

sexual contact or sexual penetration with another individual 

without consent." "Consent" is defined in relevant part as "the 

clear and voluntary agreement to engage in particular sexual 

activity."1 Doe does not dispute that a school may discipline a 

student responsible for sexual assault.

 1 The Policy lists circumstances when an individual cannot 

give consent, including when an individual "[i]s incapacitated, 

including through the consumption of alcohol or drugs." 
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The event at issue in this case is Roe's claim that Doe 

sexually assaulted her, by penetration to which she had not 

consented, in the early morning of November 4, 2018. Without 

disputing that the sexual interaction occurred, Doe contended that 

it was at all times consensual.

Doe's challenge is to the adequacy of the procedures set 

forth in the Policy, alleging that some form of cross-examination 

of the accuser must be provided before any conclusion can be 

reached. We describe those procedures, which were followed in 

this case. 

The Policy defines in detail the processes for the 

college to follow once a sexual misconduct complaint is filed.2 

When a sexual misconduct complaint is made, the Policy provides 

that one or more internal or external investigators must 

investigate by interviewing the parties and other witnesses and 

gathering any other relevant evidence. The investigators must 

give all parties an opportunity to present written statements, 

identify witnesses, submit evidence, and review and respond to 

 2 The processes used to respond to sexual misconduct 

complaints differ from those used for other Code of Student Conduct 

violations. BC adopted the processes for sexual misconduct 

violations in 2014 "with the intent of making the reporting of 

assaults more easily available to members of the community." BC 

says that, in its experience since the adoption of the policy, it 

believes this goal has been facilitated.
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evidence. Both complainant and respondent may select an adviser 

to be present at any meeting related to the reported misconduct. 

Here, the investigators followed the iterative process 

described in the Policy. BC used two investigators: an assistant 

dean at BC and an external investigator. The accuser Roe was 

questioned at length on three occasions, the second two building 

on the information provided by the accused in his interviews, as 

well as information drawn from interviews with others and 

documentary evidence. Investigators probed her account for 

detail, and she was asked to clarify ambiguities. The accused was 

questioned on two occasions, following and building on information 

obtained both from the accuser and the accused and on other 

information. Doe, the accused, was represented by counsel at all 

relevant times. Roe, the accuser, was accompanied at each 

interview by a "support person."

After each time the complainant and respondent were 

interviewed, each was provided a written summary of his or her own 

interview and given five days to review it and provide comments to 

the investigators. At each stage, both Doe and Roe submitted 

written comments on the summary of each interview. Investigators 

conducted the next interview before receiving comments from either 

on the summary of the previous interview. The Policy does not 

provide either the complainant or the respondent an opportunity 

for cross-examination of the parties or of other witnesses. 
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Once the investigators gathered the evidence, the 

complainant and respondent were given an opportunity to review 

that evidence and submit further comments. Here, at the conclusion 

of the investigation, both Doe and Roe were allowed to review an 

Evidence Binder of all of the evidence gathered, including the 

interview summaries, and provide further comments. Doe did so and 

submitted a further comment document of seventeen pages. Roe also 

did so.

After receipt of those comments, the investigators 

prepared a written report that determined, using a preponderance 

of the evidence standard, whether Doe violated the Policy. Here, 

the investigators' final report spanned sixty-three single-spaced 

pages. It described in great detail the steps the investigators 

followed and the evidence they gathered. The report addressed 

each party's statements and arguments at each stage of the 

investigation, included detailed factual support for each of its 

conclusions, and explained the reasons for each of its credibility 

determinations. 

The report concluded that several of Doe's statements 

about the alleged sexual misconduct lacked credibility. The report 

noted that some of Doe's statements were inconsistent between his 

two interviews by investigators and that some of his later 

statements were implausible in light of his earlier statements. 

The report also noted that some statements and actions Doe alleged 
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as evidence of Roe's consent occurred after sexual penetration and 

so could not have provided consent for that act. 

The report credited Roe's version of the facts 

concerning crucial aspects of the sexual encounter and her lack of 

consent for sexual penetration. It found that Roe's statements 

were supported by the weight of the evidence and corroborated by 

her contemporaneous messages to friends.

The report found that, although Roe's "words and actions 

. . . conveyed clear and voluntary consent" for the initial part 

of her sexual encounter with Doe, Doe's penetration of Roe occurred 

"without having obtained her consent to do so." The report found 

Doe responsible for violating the Policy.

The investigators submitted the report to the Office of 

the Dean of Students and the Student Affairs Title IX Coordinator, 

who, in accordance with the Policy, determined the appropriate 

sanctions based on the report's finding of responsibility. On 

June 18, 2019, on the basis of the report, the two offices imposed 

a one-year suspension on Doe, to take effect immediately.

After the two offices' determination of appropriate 

sanctions, the respondent has the right of appeal, but an appeal 

is limited as to what may be argued. The decision of the Appeals 

Officer, who is appointed from the Office of Dean of Students, is 

then final. On June 27, 2019, Doe appealed BC's decision. The 

Appeals Officer denied the appeal on July 24, 2019. 
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B. Litigation History 

On July 29, 2019, Doe filed suit against BC in the U.S. 

District Court for the District of Massachusetts, alleging various 

state law claims and a claim for violation of Title IX, and moved 

for a preliminary injunction staying his suspension.

The district court granted Doe's motion for preliminary 

injunction, finding a substantial likelihood that Doe would 

succeed on his claim that BC's disciplinary process deprived him 

of fair process in violation of Massachusetts contract law.3

We set forth the reasoning used by the district court 

from the transcript of the preliminary injunction hearing. The 

court opined that the core consideration was with "how it is that 

credibility determinations are made when we're dealing with claims 

of sexual misconduct." It stated: 

Now, it's not cross-examination that I have in 

mind that's of a type that one used to see 

anyway in criminal cases, particularly rape 

cases. But it is the opportunity to observe 

together and ask questions with respect to the 

core issues. The . . . fundamental deficiency 

here that I see is that the BC process didn't 

provide . . . a mechanism for that. That's a 

fundamental deficiency in the wake of Haidak 

[v. Univ. of Mass.-Amherst, 933 F.3d 56 (1st 

Cir. 2019)], I believe.

 3 Issuance of the injunction was not based on Doe's 

allegation that BC violated Title IX or any of the other state law 

claims. 
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The court continued: 

John Doe and Jane Roe should be subject to 

some form of real-time examination with 

questions to come by their adversaries. It's 

not necessary that it be done in the way that 

it's done in the courtroom. It's not 

necessary that it be done by lawyers for them 

or even by them themselves. In fact, that 

might not be a good idea. But some mechanism 

for that real-time evaluation, it seems to me, 

is necessary; and in its absence, the process 

is deficient.

And so it concluded: 

[T]his much is clear to me, that number one, 

a private institution like BC should follow 

practices that we'll call fair process that 

are parallel to due process claims against 

public institutions and that that fair process 

directs that when credibility of a central 

issue in a case such as this is presented, the 

process has to enable the factfinder to 

evaluate the credibility of the respective 

claims by a real-time process at which both of 

the respective parties are present and have 

the opportunity to suggest questions. That 

wasn't provided here. And it is required I 

think to develop a fully satisfactory 

process.4

We will refer to the process the district court deemed 

necessary as "quasi-cross-examination in real time." Though the 

components of that process were not specified in Doe's briefing, 

in response to questions at oral argument, counsel for Doe replied 

 4 The court also separately and additionally found the 

review procedure inadequate, noting that "what we see in the 

appellate evaluation is basically a further deference to the role 

of the investigators without any critical analysis of what they've 

done." 
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that the claim included at least these components: (1) both 

complainant and respondent and their representatives must be 

available at the same time for questioning by a "neutral," though 

not necessarily in the same room; (2) each must be informed of the 

exact statements of the other in real time, whether by transcript 

or some other means; (3) both the complainant and respondent must 

have the opportunity to submit questions to the "neutral," either 

orally or in writing, to be put to the other side; and (4) the 

"neutral" may be a hearing officer or may be an investigator. 

There is no contention that formal cross-examination such as takes 

place in criminal cases is required. Doe's position is that quasicross-examination in real time may be part of an investigative 

disciplinary system, and does not require that there be an 

adjudicatory hearing. 

II. 

A. Legal Analysis 

We review the district court's decision to grant a 

preliminary injunction for abuse of discretion. OfficeMax, Inc. 

v. Levesque, 658 F.3d 94, 97 (1st Cir. 2011). We review its 

findings of fact for clear error and issues of law de novo. Id. 

The showing of a likelihood of success on the merits is 

the most important of the four preliminary injunction factors. 

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 

(1st Cir. 1996) ("Likelihood of success is the main bearing wall 
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of the four-factor framework."). When this probability finding is 

made in error, the district court has abused its discretion and we 

are required to vacate the injunction. See Withrow v. Larkin, 421 

U.S. 35, 46 (1975); New Comm Wireless Servs., Inc. v. SprintCom, 

Inc., 287 F.3d 1, 14 (1st Cir. 2002). 

Under Massachusetts breach of contract law as to private 

academic institutions, two tests are relevant to Doe's breach of 

contract claim. 

1. Reasonable Expectations 

The first test looks at the terms of the contract 

established between the college and the student and asks whether 

the reasonable expectations of the parties have been met. Schaer 

v. Brandeis Univ., 735 N.E.2d 373, 378 (Mass. 2000); Cloud v. Trs. 

of Bos. Univ., 720 F.2d 721, 724 (1st Cir. 1983). 

Although the district court did not base its conclusion 

of probability of success on this reasonable expectation theory, 

Doe nonetheless advances it on appeal. Doe does not dispute that 

the Policy in fact governed BC's investigation and resolution of 

the complaint in this case. 

We reject Doe's argument that his reasonable 

expectations arising from the contract were that he would be given 

the opportunity to engage in quasi-cross-examination of Roe in 

real time. Nothing in the contract provides any basis for the 

expectation. Indeed, the contract procedures explicitly do not 
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provide for any such opportunity. Given the Policy's plain 

description of BC's investigation process, Doe could not have 

reasonably expected to be allowed quasi-cross-examination in real 

time. 

2. Basic Fairness 

The district court instead based its finding of 

probability of success on the second test, that is, whether the 

procedures followed were "conducted with basic fairness." Schaer, 

735 N.E.2d at 380 (quoting Cloud, 720 F.2d at 725). The district 

court read this court's decision in Haidak as supporting its 

conclusion that the Massachusetts law concept of fundamental 

fairness required a "real-time process at which both of the 

respective parties are present and have the opportunity to suggest 

questions." In so concluding, in our view, the district court 

committed several errors of law, which require that the injunction 

be vacated. 

We start with the articulated basis for the district 

court's decision: that Haidak leads to the conclusion that the 

requirement for quasi-cross-examination in real time is inherent 

in the Massachusetts law requirement of basic fairness.5 Haidak, 

which involved a public university and the federal due process 

clause, was concerned with a different claim. 933 F.3d at 65. It 

 5 We do not decide whether BC in fact violated the 

requirements described in Haidak. 933 F.3d at 71-72. 
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does not govern this Massachusetts state law issue and provides no 

basis to depart from the Massachusetts cases we describe below. 

BC is not a public university or a government actor and is not 

subject to due process requirements. 

Indeed, the highest court of Massachusetts, the Supreme 

Judicial Court (SJC), has been explicit that a private university 

need not comply with federal due process to meet the basic fairness 

requirement in disciplining students. Schaer, 735 N.E.2d at 381 

(private university not bound by due process clause); Coveney v. 

President & Trs. of Coll. of Holy Cross, 445 N.E.2d 136, 138-40 

(Mass. 1983) (holding that, where a private college expelled a 

student before any opportunity for disciplinary hearing, it was 

"clear that because the college is a private institution, [the 

student] had no constitutional right to a hearing"). 

Existing Massachusetts law does not support the district 

court's conclusion for several reasons. Doe concedes that no state 

case imposes the requirement he seeks. Importantly, no 

Massachusetts state decision has ever found the requirements the 

district court here imposed to be a necessary part of the basic 

fairness requirement. In Schaer, a private university found a 

student responsible for sexual misconduct after a disciplinary 

process that did not allow the accused student to give any input 

during the investigation and admitted testimony that would have 

been excluded in a court proceeding. 735 N.E.2d at 378, 380. The 
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SJC held that these procedures provided basic fairness. Id. at 

381. In Coveney, the private college's student handbook was clear 

that an accused student was not entitled to a hearing before the 

imposition of disciplinary sanctions. 445 N.E.2d at 140. Because 

the student's offending conduct was undisputed, and because the 

college had no contractual obligation to provide a hearing process, 

the SJC held that the college's disciplinary decision was not 

arbitrary or capricious and did not violate the student's 

contractual rights. Id. at 139-40. 

Massachusetts case law has also clearly approved school 

disciplinary procedures which did not involve any opportunity for 

the accused student to pose questions to be addressed to the 

accuser, through surrogates or directly, much less to do so in 

"real time." See Driscoll v. Bd. of Trs. of Milton Acad., 873 

N.E.2d 1177, 1187 (Mass. App. Ct. 2007). 

In Driscoll, the Massachusetts Appeals Court held that 

a private school's expulsion of a seventeen-year-old student for 

serious sexual misconduct with a younger student did not violate 

the basic fairness provision when the school followed procedures 

much less rigorous that those followed by BC. Id. When school 

administrators learned of the misconduct, they met with the younger 

student and her parents and asked the younger student to produce 

a written statement, which she wrote after the meeting and 

submitted the following day. Id. at 1182. School administrators 
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informed the accused student of the allegations against him the 

day after they received the younger student's statement and 

immediately told him to produce a written statement, which he did. 

Id. The school did not give him an opportunity to seek advice or 

counsel of any kind. Id. The school expelled the accused student 

the next day without giving him any access to the evidence against 

him. Id. These approved procedures did not come close to 

including the quasi-cross-examination in real time requirement 

found necessary by the district court. See id. at 1187. 

Nor have the federal courts required quasi-crossexamination in real time when applying Massachusetts basic 

fairness law. This court in Doe v. Trustees of Boston College, 

892 F.3d 67, 88 (1st Cir. 2018), concerning an earlier version of 

BC's conduct code, held that, where the school's policies 

themselves state a requirement of basic fairness, a failure to 

follow those policies could give rise to a claim.6 Although the 

disciplinary procedures then in effect at BC provided for a live 

hearing at which each side could put questions to the witnesses 

 6 Doe also held that, under Massachusetts law, "whenever 

a school expressly promises no less than basic fairness, . . . the 

school's implied duty [of basic fairness] becomes superfluous and 

the court's analysis to ensure that the disciplinary proceedings 

were 'conducted with basic fairness' focuses on assuring 

compliance with the express contractual promise." 892 F.3d at 88 

(quoting Cloud, 720 F.2d at 725) (emphasis added). In this case, 

the Code stated that it "exists to . . . assure fundamental 

fairness." 
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and parties through a hearing chairperson, nothing in Doe suggested 

that basic fairness required that procedure, and Doe has conceded 

that his claim does not require there be a hearing. To be clear, 

no party asserts that a school's mere adherence to its policies 

itself resolves a basic fairness claim. 

Further, the finding of probability of success did not 

respect the deference Massachusetts law requires as to the choices 

of student discipline proceedings made by private academic 

institutions. Massachusetts law is clear that "[w]e adhere to the 

principle that courts are chary about interfering with academic 

and disciplinary decisions made by private colleges and 

universities." Schaer, 735 N.E.2d at 381 (internal quotation 

omitted). "A college must have broad discretion in determining 

appropriate sanctions for violations of its policies." Coveney, 

445 N.E.2d at 139. Massachusetts law permits its colleges and 

universities flexibility to adopt diverse approaches to student 

discipline matters that do not meet federal due process 

requirements.7 

Federal courts are not free to extend the reach of state 

law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (federal 

courts must apply state law as "declared by its Legislature in a 

 7 Fourteen private Massachusetts institutions of higher 

education have filed a brief as amici curiae, which describes these 

varying approaches. 
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statute or by its highest court in a decision"); Braga v. Genlyte 

Grp., Inc., 420 F.3d 35, 42 (1st Cir. 2005). When applying state 

law, "we will take care not to extend state law beyond its wellmarked boundaries in an area . . . that is quintessentially the 

province of state courts," Markham v. Fay, 74 F.3d 1347, 1356 (1st 

Cir. 1996), and must exercise considerable caution when even 

considering the adoption of a new application, Doyle v. Hasbro, 

Inc., 103 F.3d 186, 192 (1st Cir. 1996). A litigant who chooses 

federal court over state court "cannot expect this court 'to . . . 

blaze new and unprecedented jurisprudential trails'" as to state 

law. A. Johnson & Co. v. Aetna Cas. & Sur. Co., 933 F.2d 66, 73 

n.10 (1st Cir. 1991) (quoting Kotler v. Am. Tobacco Co., 926 F.2d 

1217, 1224 (1st Cir. 1990)). Rather, this court "must take state 

law as it finds it: 'not as it might conceivably be, some day; nor 

even as it should be.'" Kassel v. Gannett Co., 875 F.2d 935, 950 

(1st Cir. 1989) (quoting Plummer v. Abbott Labs., 568 F. Supp. 

920, 927 (D.R.I. 1983)). 

This limited role of federal courts in matters of state 

policy respects the design of our federal system, which allows a 

"state [to], if its citizens choose, serve as a laboratory; and 

try novel social and economic experiments without risk to the rest 

of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311 

(1932) (Brandeis, J., dissenting). We give particular respect to 

state regulation of education, an area in which our "lack of 
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specialized knowledge and experience counsels against premature 

interference with the informed judgments made at the state and 

local levels." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 

U.S. 1, 42 (1973). 

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. 

III. 

There is no need to say more. We reverse, vacate the 

grant of preliminary injunction, and remand to the district court 

for any further proceedings, consistent with this opinion. No 

costs are awarded.