Colorado Private Universities Have Contract & Tort Law Duties to Provide Fair Hearings to Accused Students
From today’s decision in Doe v. Univ. of Denver, decided by the Colorado Court of Appeals (Judge Michael Berger, joined by Judges Jaclyn Casey Brown and Sueanna Johnson):
John Doe appeals the district court’s summary judgment in favor of the University of Denver (DU) … that culminated in John’s expulsion for non-consensual sexual contact with Jane Roe….
We hold that DU’s OEO Procedures regarding student sexual misconduct investigations are sufficiently certain to be enforced under Colorado contract law. We also hold that a private educational institution owes a [tort law] duty, independent of any contractual promises, to adopt fair procedures and to implement those procedures with reasonable care when investigating and adjudicating claims of sexual misconduct by one student against another….
In fall 2015, John and Jane enrolled as undergraduate students at DU. In January 2016, they began a romantic relationship in which they sometimes spent the night with each other but did not engage in sexual intercourse. In February 2016, the relationship cooled, and they interacted with each other less often.
On a Friday in early March 2016, Jane was drinking alcohol with friends in a dorm and later at a bar. Jane wanted to talk to John, so after Jane returned to the dorm where both she and John lived, she attempted to locate John. After finding John in his friend’s dormroom, where he had also been drinking alcohol, Jane brought him to her dormroom. They began kissing and engaging in sexual contact but did not engage in sexual intercourse that night.
John and Jane dispute the events that occurred the following morning. John claimed that he awoke to find Jane on top of him attempting to engage in intercourse. They then engaged in consensual sexual intercourse “for a very brief time.” At some point, Jane abruptly left the room. About ten minutes later, she returned and wanted to talk about their relationship. John was unwilling to discuss their relationship and returned to his room.
Jane’s version of the Saturday morning events differed materially. She said that she woke up naked to find John fondling her genitals and kissing her. She claimed that John then had sexual intercourse with her without her consent.
After hearing John discuss the incident with others at a party and after returning from spring break to discover that John had told additional people about their sexual encounter, Jane filed a complaint with DU’s Office of Equal Opportunity (OEO). [Details about the investigation omitted, though some are mentioned below. -EV] …
After completion of briefing in this court, the United States Court of Appeals for the Tenth Circuit reversed the federal district court’s grant of summary judgment [in Doe’s parallel federal case], holding that genuine issues of material fact precluded summary judgment on John’s Title IX claim against DU. The Tenth Circuit’s opinion identified several inconsistencies and deficiencies in DU’s investigation of John and concluded that there were genuine issues of material fact as to whether DU’s investigation discriminated against John based on sex in violation of Title IX….
[III.] The OEO Procedures are Sufficiently Definite and Certain to be Enforced Under Colorado Contract Law
John claims that DU violated its OEO Procedures and thereby breached its contract with him by failing to conduct a “thorough, impartial and fair” investigation…. Other courts have concluded that general statements promising a safe and healthy workplace or that dissertation committee members would be involved in a “very active manner” are insufficiently certain to be enforced under contract law. The district court in this case reasoned that the term “thorough, impartial and fair” was not sufficiently definite to create an enforceable contract under Colorado law. Based on the specific investigation and adjudication procedures contained in the OEO Procedures, including the words “thorough, impartial and fair,” we disagree. [Details omitted. -EV] …
Having concluded that the OEO Procedures are sufficiently definite to be enforced in contract, we turn to whether the record permitted
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