Doe v. University of the Sciences

For decades, there have been legal and political fights over the proper balance between victim protection and the rights of the accused in university¹ sexual misconduct disciplinary proceedings.² These debates have taken place in academia,³ the Senate,⁴ administrative agencies,⁵ and the courtroom.⁶ As one academic put it, the issue presents a “classic civil rights enforcement dynamic.”⁷ Universities were whipsawed as they sought to adapt to the changing Title IX⁸ enforcement approaches of the Obama and Trump Administrations;⁹ they may be in for yet another round of revisions as President Joe Biden has promised to reverse course once again.¹⁰ Yet while the political battle rages, so too do court battles — adding another wrinkle to university compliance. Recently, in Doe v. University of the Sciences,¹¹ the Third Circuit held that where a private university contractually obliges itself to provide a “fair” process to students accused of sexual misconduct, Pennsylvania law defines the contractual term “fair” to require a hearing with the opportunity for cross-examination,¹² paralleling one of the most controversial provisions of the Trump-era regulations.¹³ While the court’s holding is supported by Pennsylvania case law, in declining to adopt the quasi-contract approach available under state law, the panel missed an opportunity to bring some stability to an otherwise volatile area of law.

In August 2018, the University of the Sciences’ (USciences or the University) Title IX Coordinator informed defendant John Doe of two sexual misconduct reports that two separate complainants had made against him.¹⁴ An outside investigator interviewed Doe, the two complainants — Jane Roes 1 and 2 — and ten other witnesses, yet the process to determine “responsibility”¹⁵ involved no hearing or cross-examination.¹⁶ In November 2018, the investigator submitted a report finding, by a preponderance of the evidence, Doe violated the University’s sexual misconduct policy.¹⁷ Based on the report, a University administrative panel expelled Doe and issued “a notation on his academic transcript, a campus restriction, and [a] no contact order” with respect to the victims; Doe’s subsequent appeal was denied.¹⁸

In January 2019, Doe filed a complaint and motion for a temporary restraining order and preliminary injunction against the University in the District Court for the Eastern District of Pennsylvania.¹⁹ The district court first denied Doe’s motion for a temporary restraining order and preliminary injunction,²⁰ then granted the University’s motion to dismiss the amended complaint.²¹ The court found Doe had not sufficiently pled a Title IX claim under an erroneous outcome, selective enforcement, or deliberate indifference theory.²² The court then dismissed Doe’s breach of contract claim, noting that the contract itself provided for the use of a single-investigator model, in which a single entity serves as both investigator and adjudicator.²³ It concluded that such a model was not in conflict with the contractual provision guaranteeing “fundamental fairness,”²⁴ as Pennsylvania law “only requires a university to provide ‘notice of the charges and some opportunity for hearing,’” and the single-investigator model satisfied those requirements.²⁵

The Third Circuit reversed and remanded. Writing for the panel, Judge Porter²⁶ aligned the Third Circuit’s Title IX pleading standard with the Seventh Circuit’s, refusing to require a specific theory of liability in challenges to university disciplinary proceedings.²⁷ Then, the panel found Doe’s complaint plausibly asserted USciences “discriminated against him on account of his sex,” citing Doe’s claims that the University gave in to “external pressure” in enforcing and implementing its sexual misconduct policy and that “sex was a motivating factor” in the University’s “investigation and decision to impose discipline.”²⁸ In deciding the proper standard to account for external pressure, the panel agreed with the Sixth and Seventh Circuits that allegations of “external pressure” — in this case arising from the 2011 Dear Colleague letter issued by the Obama Administration’s Department of Education (DOE)²⁹ — could not “support a plausible claim of . . . sex discrimination” on their own.³⁰ But here, the panel noted, Doe also plausibly alleged “USciences was improperly motivated by sex”³¹ when it chose to investigate Doe but not the two Roes and one of the witnesses, all females, despite the University “having notice” of various alleged violations the three committed.³² Based on the combined force of these allegations, the court found Doe alleged a plausible claim of sex discrimination.³³

The panel then considered USciences’ contractual promise of fairness. Among other things, the student handbook promises that USciences will “[e]ngag[e] in investigative inquiry and resolution of reports that are adequate, reliable, impartial, prompt, fair and equitable.”³⁴ In interpreting all of the relevant provisions, the panel rejected the University’s argument that the fairness promised was limited to the explicit provisions in the student handbook and sexual misconduct policy.³⁵ Instead, the panel found that the contract did not define “fairness” at all, leaving the matter of contractual interpretation to the court.³⁶ To reach this conclusion, the panel turned first to the dictionary definitions of “fair” (“just, unbiased, equitable, legitimate, in accordance with rules”)³⁷ and “fair hearing” (“a term of art used to describe a ‘judicial or administrative hearing conducted in accordance with due process’”).³⁸ While noting that sometimes courts are “chary about reviewing too closely the manner in which a private university chooses to investigate and discipline its students,”³⁹ the panel reasoned that such hesitations are more appropriate in cases involving university disciplinary actions directly related to the nature of a university’s mandate, “such as academic integrity or faculty development,”⁴⁰ rather than matters of alleged criminal activity, which can have much more serious implications.⁴¹ Further, Judge Porter considered the context of the 2011 Dear Colleague letter, wherein universities allegedly “overreact[ed]”⁴² to the DOE and related public pressure by improperly reducing protections for accused students, relevant to USciences’ contractual promise of “fairness.”⁴³

The panel next held that Doe sufficiently pled his contract claim. Turning to Pennsylvania case law to define the contractual term “fair,” the panel concluded Pennsylvania law defines fairness requirements rather broadly. It specifically concluded that “USciences’s contractual promises of ‘fair’ and ‘equitable’ treatment to those accused of sexual misconduct require[d] at least a real, live, and adversarial hearing and the opportunity . . . to cross-examine witnesses — including his or her accusers.”⁴⁴ However, the panel declined to dictate any particular form of procedure for such a hearing.⁴⁵ Nonetheless, because Doe had not been afforded this kind of “real, live, and adversarial hearing” or the ability to conduct cross-examination, Doe had plausibly alleged the single-investigator model, as applied, constituted a breach of contract.⁴⁶

Presented with an opportunity to pave a path toward stability on a long-unsettled question of law — the requisite process in private university sexual misconduct proceedings — the Third Circuit instead employed a strained approach to contract interpretation that may only layer on further uncertainty. By defining “fairness” as a contractual term — not otherwise contractually defined — by reference to Pennsylvania contract law’s definition of “fundamental fairness,” the panel forewent a more straightforward application of the state’s quasi-contract approach, potentially leaving universities the chance to contract out of the panel’s holding. Despite being characterized as “pathbreaking”⁴⁷ and “profound,”⁴⁸ the decision itself provided no added protections beyond the current Title IX regulations, nor did it provide a more stable baseline for universities to fall back on in the likely event federal regulations change yet again. In the end, the panel’s decision will likely leave private universities and their students subject to whiplash from the sharp pendulum swings generated by the political branches.

While public university disciplinary proceedings are subject to the strictures of federal and state due process, private university proceedings are not.⁴⁹ Instead, courts have applied contract law to the relationship between private universities — like USciences — and their students.⁵⁰ Under the contract approach, the precise contours of which vary from state to state, courts generally “employ the theory that the ‘relevant terms of the contractual relationship between a student and a university typically include language found in the university’s student handbook.’”⁵¹ The courts in some states, like Pennsylvania, go further, taking a “quasi-contract approach” to determine what process is due. Recognizing that a contractual relationship does not quite capture the university-student relationship, these courts find that “private schools should incorporate a requirement of ‘fundamental’ or ‘basic’ fairness in disciplinary proceedings.”⁵²

This contract approach is complicated by Title IX — a federal sex discrimination statute empowering the federal government to regulate sexual misconduct disciplinary proceedings at all schools receiving federal funding.⁵³ The current Title IX implementing regulations impose live hearing and cross-examination requirements, rendering the panel’s prescription of these procedures superfluous for the moment. But enforcement in this area has been uneven, as the Obama Administration took a very different stance on the proper balance between the rights of victims and the accused, imposing neither requirement prescribed by the panel.⁵⁴ With the Biden Administration now pledging to roll back the existing regulations, the procedures required by contract law represent the crucial baseline to which controlling standards would return if the regulatory environment reverted to something closer to the Obama Administration’s regime.⁵⁵

Yet, in crafting these consequential contractual requirements, the panel deviated from the standard approach dictated by Pennsylvania law. In cases where Pennsylvania courts have evaluated the “fundamental fairness” of a contract — outside of the contract’s explicit provisions — they have presupposed the occurrence of a hearing and found that proceedings were fair in part because a student had the opportunity to participate in a live, adversarial hearing.⁵⁶ Moreover, the Third Circuit itself has already adopted this reading of Pennsylvania case law.⁵⁷ But instead of invoking this line of precedent — and finding that, even if the University abided by the procedural safeguards specifically provided by its handbook and disciplinary policy, the policies in place did not comport with “‘fundamental’ or ‘basic’ fairness” — the panel chose to read the contract provision guaranteeing “fair[ness]” as guaranteeing “fundamental fairness” by reference to Pennsylvania case law.⁵⁸

Not only is the quasi-contract approach better supported by precedent, but it also does not require — as the panel’s reasoning does — disregarding the parties’ specific intent as expressed in other contractual provisions. There is a strong argument, despite the panel’s claim that USciences never defined the term “fair,” that the parties’ contractual intent was that “fairness” require only that the University abide by the extensive explanation of its own disciplinary policy — which, in sexual misconduct cases, meant using a single-investigator model. It seems unnatural to read the contract, construing “all provisions in the agreement . . . together” and giving each effect,⁵⁹ to guarantee a hearing — directly contradicting the specific provisions providing for a single-investigator model.⁶⁰ As the University argued, “a basic canon of construction is that the ‘specific governs the general.’”⁶¹ Conversely, it seems all the more plausible that despite the parties’ intent, the contract fails to provide “fundamental fairness,” a quasi-contractual limiting principle on the parties’ actual intent.

Furthermore, the panel’s reasoning allows other universities to contract out of the panel’s holding in ways that the quasi-contract approach does not — creating at least one perverse incentive in the process. Universities could either omit the word “fair” from their policies, which would seem to be normatively undesirable, or explicitly define the word “fair” by referencing procedures within the contract. While either workaround would require changes to university policies, each is an ostensibly easy way to nullify the panel’s holding. Moreover, the panel’s reasoning adds another layer of uncertainty as universities are left to wonder about the outcome of the next logical line of cases where a university provides no contractual guarantee of “fairness.” Would the court then take the quasi-contract approach? The question remains open — leaving universities with an “escape hatch” that, ultimately, may not even be sound. If the panel had instead adopted the quasi-contract reasoning in the first instance, no such uncertainty would exist.

The court could have provided a clear contract law baseline, shielding private universities from the vicissitudes of the ever-changing regulatory landscape — an approach that any state adopting the quasi-contract approach could follow.⁶² Under a regime where university-student contracts are limited by a quasi-contract requirement for a hearing and some form of cross-examination, there would be stability for private universities on one of the most controversial issues within the larger debate over how best to reconcile victim protection with the rights of the accused.⁶³ Yet the Third Circuit’s reasoning leaves universities subject to the whims of the political branches and leaves advocates of more protections for accused students with a hollow win.