A three-judge panel of the First Circuit Court of Appeals in Boston unanimously ruled on Wednesday that Boston College may suspend a student the college found had sexually assaulted another student.
Boston College had decided to suspend the student for a year.
The ruling reversed a lower court decision that had ordered Boston College to take back the suspended student. U.S. District Court Judge Douglas Woodlock had found the student likely to win his lawsuit claiming Boston College deprived him of a fair process.
He ruled that the accuser and the accused "should be subject to some form of real-time examination."
"A private institution like BC should follow practices that we'll call fair process that are parallel to due process claims against public institutions," Woodlock wrote in his decision.
The First Circuit disagreed.
"The critical issue in the appeal was whether basic fairness, which is required under Massachusetts state law in all college disciplinary processes, requires some opportunity for the accused student to be able to question his accuser, even if that questioning is indirect," said Professor K.C. Johnson, of Brooklyn College, who closely tracks Title IX litigation.
Judge Woodlock ruled that there is such a requirement. He was relying on an earlier case involving UMass Amherst that suggested that there is such a requirement under the due process clause of the U.S. Constitution.
Writing for three-judge appeals panel Wednesday, Judge Sandra Lynch disagreed. She wrote that Massachusetts law does not require a private college to provide an accused student the opportunity to cross-examine his accuser.
"BC is not a public university or a government actor and is not subject to due process requirements," Lynch wrote.
Johnson says the decision is limited in national scope because it applies Massachusetts law.
Courts across the country have increasingly sided with accused students who argue they were deprived the opportunity to cross-examine their accusers.
U.S. Secretary of Education Betsy DeVos has proposed requiring colleges that receive federal funds to allow cross-examination of accusers. Her proposal has been vehemently opposed by college presidents and advocates for victims of sexual assault, who argue cross-examination would re-victimize accusers.
Title IX is the federal law that bars colleges from discriminating against people on the basis of sex, and provides the framework for college disciplinary procedures in sexual assault cases.