Title IX / College Discipline Practice - Warshaw Burstein LLP | <em >John Doe v. University of the Sciences,</em > No. 19-2966 (3d Cir. 2020
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  • John Doe v. University of the Sciences, No. 19-2966 (3d Cir. 2020
    Two female students accused John Doe of violating the University of the Sciences (“USciences”) sexual misconduct policy. John was found responsible and expelled. John then filed suit alleging that USciences was improperly motivated by sex and that USciences breached its contract with him by failing to provide “fair” and “equitable” treatment as promised to students under USciences policy. The Court held that it would not impose doctrinal tests, such as erroneous outcome and selective enforcement, when pleading a cause of action under Title IX. Instead, the Third Circuit joins the Seventh Circuit in asking: “do the alleged facts, if true, raise a plausible inference that the university discriminated against [the student] ‘on the basis of sex’?” The Court then held that John sufficiently stated a Title IX claim.

    John alleged that the 2011 Dear Colleague Letter (the “2011 DCL”) created a backdrop that encouraged USciences to limit procedural protections afforded to male students in sexual misconduct cases. Although rescinded by the time he was investigated, John argued that USciences retained the same provisions it instituted in response to the 2011 DCL. John further alleged that USciences encouraged Roe 1 and Witness 1 to disclose confidential information to recruit Roe 2 to file a complaint against John. Because the disclosure of confidential information about an investigation is prohibited under USciences’ policy, Plaintiff alleged that USciences enforced its policy differently according to gender. USciences also chose to punish John but did not investigate Roe 2 despite evidence that John was equally intoxicated the night in question. Based on these facts, the Court held that John adequately pleaded a Title IX violation under the Third Circuit’s new test.

    Additionally, John successfully pleaded a claim for breach of contract based on UScience’s promise that it would “engage in investigative inquiry and resolution of reports that are adequate, reliable, impartial, prompt, fair and equitable.” Often, courts dismiss breach of contract claims based on “aspirational” language such as promises that students will be treated fairly. Bucking the trend, the Third Circuit held that “USciences’s contractual promises of “fair” and “equitable” treatment to those accused of sexual misconduct require 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.” This holding applies to both public and private institutions. The USciences decision is surprising not only because it goes against the trend that such promises are unenforceable, but because it also interprets “fairness” to override the other contractual provisions that provided for the use of the single investigator process for Title IX complaints.

    John was deprived of fairness because he was not given a chance to cross-examine witnesses or any sort of real, live, and adversarial hearing. As a result, John plausibly alleged a breach of contract claim against USciences.