Third Circuit: Private universities that promise basic fairness must provide hearing, cross-examination to students accused of sexual misconduct

June 1, 2020

In a sweeping, decisive victory for procedural fairness on campus, the U.S. Court of Appeals for the Third Circuit reversed the dismissal of a lawsuit brought by a student expelled for sexual misconduct from the University of the Sciences in Philadelphia. The court held not only that the university may have discriminated against the accused student on the basis of sex in violation of Title IX, but also that the school’s promises of fairness obligated it to provide the student with a live hearing and the opportunity to cross-examine witnesses, including his accusers. The court’s decision has broad significance for students’ rights as it will help ensure that private colleges and universities keep the promises they make to students. 

The student-plaintiff in this case, who filed suit under the pseudonym John Doe, was accused by two female students of engaging in non-consensual sex. The two accusers — Jane Roe 1 and Jane Roe 2 — were sorority sisters, and Doe’s complaint alleges that after Roe 1 came forward, the university encouraged her to disclose confidential information about her complaint to others in an effort to find more complainants. According to Doe, Roe 2 filed her complaint just days after Roe 1. 

It is difficult to overstate the significance of this holding.

Doe filed a federal lawsuit alleging both that the university had violated Title IX in the adjudication of his case, and that the university had breached its contract with him by failing to provide a procedure that was “conducted with fairness,” as promised in the university’s student handbook. 

In analyzing whether Doe’s Title IX claim should proceed, the Third Circuit rejected the framework for analyzing Title IX claims set forth by the Second Circuit in Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994), which established two specific categories of Title IX violations stemming from campus disciplinary actions: erroneous outcome and selective enforcement. To plead an erroneous outcome claim under Yusuf, a plaintiff must show facts both casting doubt on the outcome of the disciplinary proceeding and connecting that outcome to gender bias. To plead a selective enforcement claim, a plaintiff must plead facts showing that the institution treated a similarly situated individual differently on the basis of sex (e.g., that in a case where both parties were alleged to have had sex while heavily intoxicated and unable to consent, the university took action against one student but not the other). 

The Third Circuit instead adopted the more “straightforward” Title IX standard employed by the Seventh Circuit in Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019), and held:

[T]o 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.

Applying this standard, the court held that “Doe’s complaint contains plausible allegations supporting the reasonable inference that USciences discriminated against him on account of his sex.” The court first held that the university may have “succumbed to pressure from the federal government” to treat allegations of sexual misconduct against men differently from those against women. The court also held that Doe had plausibly alleged that the university enforced its sexual misconduct policy in a discriminatory way, bringing charges against him for having sex with Roe 2 after she had been drinking even though there was evidence that he’d had just as much to drink. 

The court also took a remarkably straightforward, common-sense view of Doe’s breach of contract claim. FIRE has long argued that private schools must be required to keep their own promises, including promises of free speech and procedural fairness — and that if they fail to do so, they should be held liable for breach of contract. Recently, however, there have been some deeply frustrating court decisions on this question holding that general promises of fairness are too vague to be contractually enforceable. The Third Circuit’s decision, in contrast, breathes life into the promises that schools make in order to attract talented students and faculty, and ensures that they can’t engage in a bait-and-switch once those students and faculty are on campus. 

Rather than saying the word “fairness” is broad and unenforceable, the Third Circuit looked to the actual definition of the word in the context it was used:

Here, the fairness promised by the Student Handbook and the Policy relates to procedural protections for students accused of sexual misconduct, and Doe alleges that he did not receive a “fair and impartial hearing.” In this context, a “fair hearing” or “fair process” “is a term of art used to describe a ‘judicial or administrative hearing conducted in accordance with due process.’” [Internal citations omitted.]

The court then wrote:

We hold 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.

It is difficult to overstate the significance of this holding. Courts around the country have increasingly been recognizing that due process at public universities requires a hearing with the right to cross-examination. And the Department of Education, in its new Title IX regulations, has determined that the lack of a hearing and cross-examination violates Title IX’s requirement of an equitable process. Now, for the first time, a federal appellate court has held that a private university’s contractual guarantee of a fair and equitable process also requires these critical procedural protections. 

Critically, the court also held that the traditional judicial deference given to schools’ decisions around academic misconduct is inappropriate in the context of schools adjudicating  quasi-criminal allegations, holding that while such deference is: 

appropriate for matters uniquely within the institution’s province, such as academic integrity or faculty development and discipline … this is not such a case. The investigation and fair adjudication of alleged criminal activity like sexual assault is not uniquely within the province of colleges and universities.

With this decision, universities in the Third Circuit — which includes every school in Pennsylvania, New Jersey, and Delaware — must live up to their promises of procedural fairness by providing accused students with meaningful due process. The court’s decision also has important implications for free speech cases at private universities in the Third Circuit, because it gives teeth to the kinds of promises schools so often use in their handbooks and policy language. 

FIRE is encouraged that the Third Circuit is formally recognizing principles that we have advocated for since the inception of our organization: That students must be treated with basic fairness and that universities must keep their promises.