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
             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


                                       - 2 -
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."