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In January 2020, we wrote about Doe v. Johnson & Wales University, 2019 WL 6324905 (D.R.I. Nov. 26, 2019), which held that a private university would have to face trial in a lawsuit alleging that it breached a contract to provide a “fair” and “impartial” proceeding to resolve allegations of sexual misconduct.
Other federal courts have recently reached contradictory conclusions. Those decisions demonstrate that the law remains unsettled on this thorny issue: where some courts have discovered sweeping protections in university handbooks, others have been reluctant to follow that approach, holding instead that general promises of “fairness” are too vague to be enforceable.
Doe v. Syracuse University
In an opinion issued last month in Doe v. Syracuse University, 2020 WL 871250 (N.D.N.Y. Feb. 21, 2020), for example, the court held that the student handbook’s promises of a “fair” and “impartial” proceeding could not form the basis of a breach of contract claim against the university.
The accused alleged several breaches of specific handbook provisions, which the court concluded could proceed. But the accused student also alleged that Syracuse breached more general promises in the handbook, which stated “students have the right to fundamental fairness before formal disciplinary sanctions are imposed” and “students have the right to . . . a process that is fair, impartial, and provides adequate notice and meaningful opportunity to be heard.” The accused student alleged that Syracuse breached these promises by, among other things, ignoring evidence undermining his accuser’s credibility, unreasonably delaying the proceedings, and applying the wrong standard of proof.
The court held that the accused student could proceed with his claims that Syracuse breached provisions of the handbook requiring it to (1) provide him with a copy of the no contact order complaint filed against him, (2) adjudicate the charge within 60 days, and (3) use a “preponderance of the evidence” standard of proof. But the court dismissed the student’s claim that Syracuse breached the provisions requiring “fair” and “impartial” proceedings. It held that such promises were “non-actionable statements of general policy” that could not support a breach of contract claim under New York law, citing its ruling in two prior cases also involving Syracuse.
Doe v. Rollins College
The court in Doe v. Rollins College, 352 F. Supp. 3d 1205 (M.D. Fla. 2019), on the other hand, reached a different result.
At the motion to dismiss stage, the Rollins court held that the accused student could proceed with a claim that Rollins breached provisions of the student handbook promising a “fair” and “equitabl[e]” resolution of complaints based on information that is “credible, relevant, based in fact, and without prejudice.”
Last month, at the summary judgment stage, the court pushed its reasoning further, holding that the school would have to face trial on the accused student’s claim that it breached a promise to provide a fair proceeding. Doe v. Rollins College, No. 6:18-CV-01069 (M.D. Fla. Mar. 9, 2020). Where the Syracuse University court found similar “fairness” language unenforceable, the district court here had no similar hang up. The court instead concluded that the student had presented a triable issue as to whether the school breached its promise to provide a fair proceeding by presenting evidence showing that the Title IX coordinator favored the accuser’s story over the accused.
Notably, while the court found that the accused’s evidence that the school favored the accuser’s story was enough to create a triable issue on his breach of contract claims, it found that evidence of such bias was not enough to create a triable issue on the student’s Title IX claims, holding that the student had not presented evidence that any bias directed toward him was motivated by gender. That’s a fascinating outcome. What failed to prove bias under a Title IX theory could prove bias on under a contract theory.
These cases illustrate that breach of contract claims continue to be accused students’ most potent ammunition against private universities. In both cases, the accused students alleged Title IX claims alongside their contract claims and supported each claim with the same facts or allegations. But in both cases, the courts dismissed the Title IX claims, while at the same time allowing at least some of the contract claims to move forward. In other words, while bias or favoritism toward an alleged victim may be insufficient to make out a Title IX claim, it can be enough to make out a viable breach of contract claim.
“These broader” breach of contract claims based on a school’s failure to provide a “fair,” “impartial,” or “equitable” proceeding are arguably more worrisome than claims based on breaches of narrower protections in the handbook. A verdict that a school breached its contract with an accused by failing to reach a resolution within 60 days, or by failing to provide the accused with a copy of the complaint, is unlikely to yield a large damage award or an order requiring the school to “re-do” the entire proceeding. A verdict that a school breached a promise to provide a “fair” or “equitable” proceeding, on the other hand, seems more likely to result in a larger damages award, or perhaps an order requiring the school to re-do the entire investigation and adjudication.
Finally, these cases illustrate that the outcomes of similar lawsuits will perhaps depend less on federal law and more on state law, requiring schools to monitor not only developments in their circuit but also developments in their state. In both cases, the courts applied similar reasoning to dismiss Title IX claims but reached different results on the contract claims, leaning on the differing state contract laws at issue. It is plain from that case (and from others)1 that fidelity to state law is a motivating factor, at least in part, of their reasoning.
See, e.g., Doe v. Columbia Coll. Chicago, 933 F.3d 849, 858 (7th Cir. 2019) (affirming dismissal of a contract claim—but only after noting the reluctance of Illinois courts to interfere with academic decisions).