In a precedential decision issued on May 29, the U.S. Court of Appeals for the Third Circuit reversed the lower court’s dismissal of a complaint filed against a private university alleging discrimination under Title IX and breach of contract. In Doe v. University of the Sciences, the Third Circuit held that, when a private college or university “promises . . . ‘fair’ and ‘equitable’ treatment to those accused of sexual misconduct,” it must provide “at least a real, live, and adversarial hearing and the opportunity for the accused student or his or her representative to cross-examine witnesses — including his or her accusers.”
John Doe, a then-student at the University of the Sciences, a private college in Philadelphia, was accused by two female students of violating the school’s sexual misconduct policy. Jane Roe 1 and Jane Roe 2 alleged that Doe sexually assaulted them in the fall of 2017 and spring of 2018, respectively. Both complainants lodged their reports of sexual assault in August 2018.
The University retained an outside attorney to serve as the investigator for both complaints. After interviewing Roe 1, Roe 2, Doe and 10 witnesses, the investigator concluded that Doe violated the University’s sexual misconduct policy in both matters by engaging in sexual intercourse without Roe 1’s or Roe 2’s affirmative consent. The University’s Title IX Administrative Panel expelled Doe, and its Title IX Appeals Panel denied his appeal.
Doe sued the University, alleging that it discriminated against him in violation of Title IX by yielding to external pressure when implementing and enforcing the sexual misconduct policy and because sex was a motivating factor in the University’s investigation and decision to expel him. He further alleged that the University breached its contractual obligations to him by failing to engage “in investigative inquiry and resolution of reports that are adequate, reliable, impartial, prompt, fair and equitable,” as required by the University’s policy. Slip op. 3.
The Court’s Decision
The district court dismissed Doe’s complaint, but the Third Circuit reversed. With respect to Doe’s Title IX claim, the court adopted the Seventh Circuit’s pleading standard, finding that “to state a claim under Title IX, the alleged facts, if true, must support a plausible inference that a federally-funded college or university discriminated against a person on the basis of sex.” Id. at 9. The court held that Doe did so.
Doe alleged that the University succumbed to pressure from the U.S. Department of Education in the wake of the Department’s 2011 Dear Colleague Letter (2011 DCL) by implementing policies to address sexual violence that abrogate the rights of men and treat them differently than women. He further alleged that the University was improperly motivated by sex when it decided to investigate his conduct, but not that of Roe 1 and Roe 2, whose actions allegedly also violated the sexual misconduct policy.
In reaching its decision in favor of Doe, the Third Circuit pointed to other courts that have found that “alleged university overreaction to [the Department of Education’s] or other public pressure is relevant to alleging a plausible Title IX discrimination claim,” but that the 2011 DCL alone is an insufficient basis upon which to state such a claim. However, pressure from the 2011 DCL coupled with other allegations, including that the University failed to investigate the conduct of female students, was sufficient to state a plausible claim.
Perhaps more significantly, the court also reversed the district court’s dismissal of Doe’s breach of contract claim, which was predicated on the University’s Student Handbook and the accompanying sexual misconduct policy. The Student Handbook stated that the University would engage “in investigative inquiry and resolution of reports that are adequate, reliable, impartial, prompt, fair and equitable” and would support “complainants and respondents equally.” Id. at 13.
Although the University argued that the “fairness” promised by the Handbook was met by the procedures set forth in its policy for investigating and adjudicating claims, which the University followed, the court engaged in its own analysis of what “fairness” means. The court was not persuaded by Pennsylvania case law providing that courts should not second-guess disciplinary decisions by private universities because, according to the court, allegations of sexual misconduct involve criminal activity, which is “not uniquely within the province of colleges and universities.” Id. at 15.
Purporting to follow Pennsylvania decisions regarding the concept of “fundamental fairness,” the court held that “notions of fairness in Pennsylvania law include providing the accused with a chance to test witness credibility through some form of cross-examination and a live, adversarial hearing during which he or she can put on a defense and challenge evidence against him or her.” Id. at 18. Although the court recognized that, as a private institution, the University is not subject to the Due Process Clause, the court nevertheless cited to decisions imposing similar procedural requirements on public universities, including Doe v. Baum, 903 F.3d 575 (6th Cir. 2018). While setting forth the requirements for a live adversarial hearing and “some form” of cross-examination, the court said it would not “attempt to prescribe the exact method by which a college or university must implement these procedures.” Id. at 19.
Doe v. University of the Sciences could be a very consequential decision.
The court’s ruling, although consistent with decisions from some other circuits, approved a relatively low pleading standard for respondent claims under Title IX. The court relied on the 2011 DCL, coupled with the University’s alleged failures to identify complainants’ misconduct, in allowing Doe’s complaint to survive dismissal. It is worth noting that, in doing so, the court apparently failed to take into consideration the fact that the 2011 DCL was withdrawn in September 2017, before the sexual misconduct was alleged to have occurred. This reliance calls into question the lasting effect that the 2011 DCL might have.
However, the court’s application of Pennsylvania contract law could be even more significant, given that it is a substantial departure from prior decisions. Pennsylvania courts have generally declined to overturn a private college’s disciplinary decision when the school was found to have complied with its own policies, and have held that student disciplinary proceedings are to be judged by the procedures set out in the student handbook. See, e.g., Boehm v. Univ. of Pa., 573 A.2d 575, 579 (Pa. Super. Ct. 1990); Reardon v. Allegheny Coll., 926 A.2d 477, 481 n.2 (Pa. Super. Ct. 2007); Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. Ct. 1999). The Third Circuit’s decision to engage in a freestanding analysis of “fairness” — including holding that following the actual procedures provided in the Handbook was somehow a breach of contract — conflicts with how Pennsylvania courts have ruled on this issue in the past. Schools will need to carefully evaluate the language and procedures provided in their policies to ensure they are in compliance with this new standard from the Third Circuit and, of course, the Department’s new Title IX regulations discussed in our earlier alert.
Public and private institutions in Pennsylvania and in other jurisdictions within the Third Circuit more broadly should carefully consider this decision. Pepper Hamilton’s Higher Education Practice will continue to monitor developments in this important area.