In the case argued before the First Circuit by Harvard prawf Jeannie Suk Gerson, after much inexplicable melodrama, the sole issue before the court was whether to reverse a temporary restraining order issued by Judge Douglas Woodlock. Ordinarily, this isn’t a tough call. This time, it wasn’t merely tough, but added another level of bizarre to the case.

A TRO maintains the status quo ante until the suit against Boston College is determined, much like letting a defendant remain on bail rather than serve his sentence while his appeal is proceeding. The reason is fairly obvious: if the defendant is constrained to serve his sentence immediately, but the conviction is subsequently reversed, he doesn’t get that time back. Not even the god-like power of a federal court can alter time. It’s gone, lost forever, together with the consequences that follow from the punishment to family, job, life.

The criteria aren’t complicated. Will there be irreparable harm? Is there a likelihood of success?  In this case, the irreparable harm prong was huge and completely unforgiving. The plaintiff was an exceptional athlete. bound for the pros, and had spent his life working toward that goal, dedicating himself to achieving excellence.

If his college punishment went into effect, a one-year suspension, that would be the death knell of any sports career. His life, to that point, would be squandered, never to come to fruition. Regardless of what became of the suit later, his window of opportunity would slam shut. He wouldn’t be drafted. He wouldn’t go pro. The days and nights dedicated to this end would all be for naught, even though his “guilt” was determined by a process that was so biased as to reach no other conclusion and his alleged offense was, at worst, exceptionally dubious.*

None of this appears in the First Circuit’s opinion reversing Judge Woodlock’s grant of the TRO. This may be because Boston College didn’t challenge irreparable harm, and so it got shunted off to the side and the court forgot what this was all about, a life destroyed while the process goes forward. Instead, the court focused on Judge Woodlock’s focus on its decision in Haidak v. UMass-Amherst.

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.

The Haidak decison was based on due process, as required of public schools by the Constitution. Boston College was a private school, and thus not under any duty to provide due process, but rather only subject to suit under state contract law. But the First Circuit previously held in a 2018 case with the same name, Doe v. Boston College, that the contractual relationship between private college and student either had an express requirement for basic fairness or it would be implied as a matter of law.

The First Circuit concluded there are three separate paths, constitutional due process, implied duty and express contractual duty, all of which lead to the exact same place: fundamental fairness.

“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.

Seems clear, right? Not to Judge Sandra Lynch.

[T]he 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.”

The court held that since Massachusetts caselaw from decades earlier had not recognized “fairness” to include what is now held as basic to due process, the court would not be so “immodest” as to find the concept of fairness to be what it had already held to be fair.

A litigant who chooses federal court over state court “cannot expect this court ‘to . . . blaze new and unprecedented jurisprudential trails'” as to state law.

This expression of federal humility might have given rise to the Circuit’s certifying the question to the Massachusetts Supreme Judicial Court for determination, to ascertain whether the requirements of fairness under state law would be fundamentally deficient under federal law, but the Circuit instead chose to vacate the TRO.

What was bizarrely missed in this decision, which could be explained by the fact that fourteen other Massachusetts colleges filed a joint amici brief complaining that any change by the court would wreak havoc with their extant disciplinary processes by requiring them to be fair to male students,** is that this was an appeal of a TRO, not of an ultimate holding by Judge Woodlock as to what basic fairness required.

The question should not have been whether the Haidak ruling applies, as a matter of law, to private colleges by either the contractual or implied paths, or that whatever demands of constitutional due process are inherently applicable to private colleges by extrapolation. The question was whether irreparable harm should be caused Doe until the case was ultimately decided.

Ironically, the First Circuit’s holding doesn’t preclude the application of basic fairness, as held by federal courts, being adopted by the Massachusetts state courts, or that the same concept, the same word, won’t eventually be determined to have the same meaning, because logical consistency is occasionally viewed as a good thing, even in the law.

And yet, the First Circuit would happily stand back and watch the plaintiff’s life destroyed before the outcome of the suit, even if it turns out that he was right all along.

The case will go back to Judge Woodlock, and perhaps a new TRO will issue under other bases for likelihood of success so that the consequence won’t be “off with his head” before the trial.

*His accuser admitted to a consensual sexual encounter, but claimed that her consent ended at penetration, whereas Doe argued it was fully consensual, with the accuser every bit as enthusiastically involved as he was. Afterward, she decided otherwise.

**The crux of the amici brief was that private colleges should be entitled to use whatever means they choose in furtherance of their “diverse” pedagogical “missions,” provided they’re not arbitrary and capricious. Their missions, apparently, have no room for concern about the innocence of the male students they throw away.