Boston Lawyer BlogMassachusetts Court Overturns Expulsion of Harvard Student on Contract and Basic Fairness Grounds
A recent decision against Harvard University in favor of a student accused of sexual assault demonstrates a viable path to challenging student discipline decisions. As we have discussed previously, courts are wary of interfering with academic decisions of universities, but have been willing to hold schools accountable for failing to follow their own established policies in student disciplinary processes. Where a student handbook or other policy promises certain protections, courts will defend the reasonable expectations of students who encounter a process significantly less fair than what the university agreed to provide. These principles came into play in the “Dr. Doe” case, recently decided by the Massachusetts Superior Court.
The extremely long odyssey of “Dr. Doe,” as the decision refers to the plaintiff, began all the way back in 2001, long before the Obama, Trump, or Biden administrations announced national policy shifts concerning campus sexual assault and harassment. In December 2001, Dr. Doe was a practicing dentist who was seeking a graduate degree at the Harvard School of Dental Medicine to specialize in periodontics. At that time, it was common for dental students, residents, and faculty to socialize and drink together. A female dental student (more junior than Dr. Doe) attended a party at Dr. Doe’s house where people were drinking alcohol and smoking marijuana. Although Dr. Doe taught to some extent at the clinic where the Complainant was learning, he never graded her work. At the party, the Complainant was, in the Court’s words, “sexually aggressive towards Dr. Doe,” and later in the evening Dr. Doe and the Complainant “hooked up” in the back of his car. Dr. Doe believed that this was consensual, but a few months later the Complainant reported to Harvard administrators and to the Boston Police Department that Dr. Doe had raped her. Harvard informed Dr. Doe of the rape allegation weeks before his scheduled graduation, and put his degree on hold pending the resolution of a criminal process.
That criminal process moved slowly. Dr. Doe was indicted for rape and tried twice in 2004, the first resulting in a hung jury and the second in a conviction. However, the appellate courts reversed Dr. Doe’s conviction because the Appeals Court and then the Supreme Judicial Court determined that the judge had not made clear to the jury that they needed to find the Complainant was so intoxicated that she was incapable of consenting to intercourse. After the Supreme Judicial Court’s 2008 decision, the prosecution entered a nolle prosequi to end the case rather than attempting to try Dr. Doe a third time.
Following the termination of the criminal case, Dr. Doe asked Harvard to award his degree, and Harvard decided instead to commence a disciplinary proceeding to determine whether Dr. Doe had violated Harvard’s standards of professional and ethical conduct. Harvard demanded the transcripts from Dr. Doe’s trials before making its determination, which Dr. Doe agreed to – although the process of obtaining and redacting the transcripts took nearly three years. Although the student handbook from when Dr. Doe had been a student required that a Harvard administrator or faculty member act as fact finder, Harvard instead hired an outside lawyer (experienced in managing risk for institutions) to investigate, at the recommendation of its General Counsel’s Office. The investigator spoke with Dr. Doe (but not the Complainant, who declined to participate) and reviewed the trial transcripts, then found that Dr. Doe had not only committed sexual assault on the date in question, but was also responsible for sexual harassment, unprofessional relationships, and abuse of authority on other occasions, even though he had not been given written notice of any such charges. This decision was upheld by multiple committees and eventually by the Dean in 2014.
In 2015, Dr. Doe filed a complaint in Superior Court, which ultimately went to a bench trial on claims of breach of contract and breach of the duty of good faith and fair dealing in 2023. In September 2023, Judge Cathleen Campbell issued a decision finding in Dr. Doe’s favor on both claims. The judge found that Harvard violated the explicit terms of its policies in multiple ways. Having an outside lawyer act as fact finder when the policy specified an administrator or faculty member was a breach of contract, which the judge determined was significant because a member of the community would have understood the social relationships and dynamics among dental students and residents (at that point, over a decade earlier). The court rejected Harvard’s explanation that reviewing thousands of pages of transcripts would have been a major burden on a faculty member because the policy was unambiguous. The court also found that Harvard breached its contract with Dr. Doe by proceeding with its disciplinary process without a written complaint by the Complainant, which its policy at the time required.
Notably, the court went on to conclude that Harvard also failed to conduct its disciplinary process with basic fairness, which has long been a requirement of Massachusetts law but has received limited explanation by the courts. Judge Campbell held that basic fairness required, at a minimum, notice of the alleged policy violations, but that Harvard failed to provide it. Dr. Doe was aware of the accusation of rape on one specific date, but he was never given written notice before Harvard’s investigation was complete that he was also being investigated more broadly for sexual harassment, unprofessional relationships, and abuse of authority. Even though the student handbook in 2002 did not expressly state how or when a student must receive notice, the court held that Dr. Doe was still entitled to “elementally fair notice of all of the allegations” before any hearing as a matter of basic fairness. In addition, the court sharply criticized Harvard for withholding exculpatory evidence – the first Harvard administrator with whom the Complainant met wrote a note to his file stating that the Complainant alleged she had been sexually assaulted in the dental school building in front of Dr. Doe’s roommate, which was inconsistent with the Complainant’s allegations the following day and during the criminal trials that the incident occurred in a parking lot with no witnesses. This note was not included in the investigator’s report and had never been revealed to Dr. Doe until after he filed this lawsuit. The judge found it violated basic fairness for Harvard to have relied upon the Supreme Judicial Court’s description of what the jury “could” have found (which the faculty panels did), particularly because the jury never heard evidence that the Complainant initially provided a different narrative before she reported to police.
Although the court recognized that the usual remedy when a campus disciplinary decision is overturned on procedural grounds is a new hearing, it found that such an order would be inappropriate in this case due to the passage of over 20 years, the Complainant’s refusal to participate in the disciplinary process, and “the lack of basic fairness in the previous disciplinary proceedings.” Therefore, the court ordered Harvard to expunge its disciplinary decision and determine whether Dr. Doe had otherwise met the criteria to receive his degree. Harvard did, apparently, confer Dr. Doe’s degree following the court’s judgment.
The Dr. Doe case is unique in some respects – particularly the amount of time it took and policies that have doubtless been superseded long ago – but it fits comfortably within recent trends that have primarily played out in the federal courts. When a school makes specific promises in a disciplinary setting – like having a faculty member or administrator act as fact finder – failing to fulfil that requirement is a breach of contract. Even when a policy is less specific – like when or how notice of allegations must be provided – a student’s reasonable expectation to receive notice of the charges at the outset may be a breach or a violation of basic fairness. And although the Supreme Judicial Court has not spelled out the contours of basic fairness, withholding key exculpatory evidence crosses a line that this court found unacceptable. In contrast to the deference courts tend to give universities in deciding academic matters, a court does not have to defer to a university on these types of contractual and basic fairness issues.
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