NAICU Washington Update

Court Expands Interpretation of Fair Disciplinary Procedures at Private Universities

June 05, 2020

In a decision that could significantly expand procedural requirements for students accused of sexual misconduct at private colleges and universities, the U.S. Court of Appeals for the Third Circuit ruled that an institution’s contractual promise of “fair” treatment for such students must include a live hearing and an opportunity for cross-examination. The case is highly significant because it marks the first time that a federal appellate court has required private, nonprofit institutions to provide such procedures.

The case, Doe v. University of the Sciences, arose when a student found responsible for sexual misconduct sued his institution, alleging that its disciplinary process violated both Title IX and contractual promises set forth in the institution’s own student handbook.

In its decision, the court acknowledged that private institutions of higher education are not subject to constitutional due process requirements. Nevertheless, the court determined that the institution’s student handbook, which promised a “fair” and “equitable” process in sexual misconduct cases, constituted a contract and that the guarantee of fairness for “a Title IX sexual-misconduct proceeding [must] include a real, meaningful hearing and, when credibility determinations are at issue, the opportunity for cross-examination of witnesses.”

Based on this reasoning, the court allowed the student’s breach of contract claim to proceed. The court also allowed the student’s Title IX claim to move forward, ruling that Doe’s complaint contained plausible allegations that the institution discriminated against him on account of his sex by yielding to federal pressure when enforcing its Title IX policy and by selectively disciplining male, rather than female, students.

It is important to note that the court’s decision was a procedural ruling and that a decision has yet to be made on the merits of the student’s claims. The case, however, is highly significant because of the way in which a federal court interpreted contractual rights to apply due process principles to a private, nonprofit college. Although new Title IX regulations that require institutions to provide live hearings and cross-examination in sexual misconduct cases are set to go into effect this summer, the court’s ruling opens the door to more stringent interpretation of admissions contracts and potential expansion of the application of due process requirements to private institutions in contexts that go beyond sexual misconduct hearings. As a result, the case could establish a challenging precedent for NAICU member institutions.

Separately, 17 states and the District of Columbia have filed a lawsuit that seeks to block implementation of the new Title IX regulations and to declare them unlawful.

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