[UPDATE 5/27/2022: Prof. KC Johnson (Brooklyn College-CUNY), who has studied this area closely, reports to me that "this is the broadest state court" decision interpreting state law in favor of the expelled student in such cases.]
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 summary judgment in favor of DU on John's contract claim. We hold that it did not….
First, John alleges (and the record supports the allegation) that the investigators did not consider Jane's possible improper motivations for filing the complaint against John. As the Tenth Circuit noted, Jane admitted to investigators that she filed her complaint only after learning that John had allegedly told other classmates about their sexual encounter. Jane initially did not tell her classmates she thought the encounter was a sexual assault or nonconsensual; "[i]t was not until later — after Jane saw John talking to another young woman at a party — that she began telling people the encounter was not consensual." So far as the record reveals, the investigators apparently did not consider or address in the preliminary or final reports any of these motivations for a sexual assault charge.
Second, John points to the eleven witnesses whom the investigators interviewed at Jane's request. Through the preparation of the preliminary report, DU rejected John's request to interview any of his proposed witnesses. Only after issuance of the preliminary report and John's second request that his supporting witnesses be interviewed did the investigators interview one of his five requested witnesses: his therapist. The OEO Procedures state that the "Complainant and Respondent will have an equal opportunity to be heard, to submit information, and to identify witnesses who may have relevant information."
As the Tenth Circuit persuasively explained, two of the witnesses whom John requested be interviewed were his roommate and one of his close friends, both of whom he told about the sexual encounter "very shortly after it happened." Perhaps more importantly, these same witnesses also had "witnessed interactions between John and Jane in the hours surrounding the alleged assault." The potential relevance of information provided by such witnesses is obvious.
The investigators' final report dismissed out of hand the potential significance of these witnesses' knowledge, stating that John's roommate and friend would likely only provide "duplicative" information and the investigators wanted to limit those interviewed given the private nature of the issues. But, again, as the Tenth Circuit reasoned, "the same could be said for Jane's eleven witnesses [whom] investigators opted to interview." We therefore conclude that there is a genuine issue of material fact as to whether John received an "equal opportunity to be heard, to submit information, and to identify witnesses who may have relevant information."
The failure of the investigators to consider Jane's entire SANE report also gave the Tenth Circuit pause. We acknowledge that DU may not have had legal authority to compel production of the full SANE report. But the fact that the investigators relied on selective portions of the SANE report (chosen by Jane) to reach the conclusions in the final report has obvious consequences regarding the reliability of the findings made in reliance on the incomplete SANE report. As the Tenth Circuit observed, a complete SANE report includes "summaries by the SANE nurse, the attending physician, and the patient's written statement regarding the source of the injuries." The investigators did not consider any of this information because Jane elected not to provide it.
Although the final report acknowledged that Jane had not provided the complete SANE report, it nevertheless relied on the self-selected portions of the SANE report, stating that it "seem[ed] to corroborate [Jane's] assertion that [John] was 'manipulating' her body by 'grabbing and pushing' her legs aside before forcibly putting his penis inside her." The final report concluded that the information from the SANE that Jane provided corroborated her version of events but discounted other SANE information that might have been included as speculative. But without the other information not produced — specifically a medical cause for her injuries and a date of injury — it is at least open to question by a fact finder whether the investigators and DU thoroughly, impartially, and fairly "review[ed] and determine[d] the weight and materiality of all submitted information" as section XI.E of the OEO Procedures required.
We reject DU's argument that John has presented no facts, other than his mere disagreement with the result of the investigation, to support his breach of contract claim. Instead, we hold that the arguable deficiencies in DU's investigation identified above and in Doe create genuine issues of material fact as to whether DU abided by its contractual commitments to provide a "thorough, impartial and fair" investigation as provided in the OEO Procedures before it expelled John based on its finding that he had engaged in non-consensual sexual contact.
{We emphasize that we are not resolving any of these factual issues. We have identified factual questions regarding whether DU complied with its contractual commitments that require further proceedings. But it is for the district court or a jury, as appropriate, to resolve these factual questions on remand. We express no opinion on the ultimate resolution of these questions.} …
[IV.] Colorado Law Recognizes a Tort Duty of Care Owed by DU
John asserts, as he did in the district court, that DU owed him a tort duty of care, independent of DU's contractual obligations, to adopt fair procedures and to implement those procedures with reasonable care when it investigated and adjudicated the allegations against him. The district court held that no such duty exists under Colorado law and granted summary judgment to all defendants on that basis.
We disagree with the district court as to DU and hold that it owed John that duty of care. We also conclude that genuine issues of material fact precluded summary judgment on his negligence claim….
[a.] The Risk Involved in DU's Conduct
The risks involved in investigating and adjudicating claims of non-consensual sexual contact are palpable and severe. A mere allegation of sexual misconduct can be devastating to the accused. A determination that a person engaged in non-consensual sexual contact can potentially destroy the accused's educational, employment, and other future prospects. Here, DU found John responsible for non-consensual sexual contact.
The OEO Procedures outline the range of possible outcomes when a policy violation is found, stating that "violations of the non-consensual sexual contact provision of these Procedures typically result in a dismissal." A student who is dismissed "is permanently prohibited from participating in any University activities, academic or otherwise, and will be restricted from all University Premises and activities." Additionally, "Student Conduct files of students who have been dismissed from the University will be kept indefinitely" and may be provided to educational institutions, employers, or others.
We are hard pressed to find another activity by a private educational institution that can be so devastating and long-lasting in the life of a student.
[b.] The Foreseeability and Likelihood of Injury Weighed Against the Social Utility of DU's Conduct
Injuries resulting from procedurally faulty investigations and adjudications of allegations of non-consensual sexual contact are foreseeable and likely. Under the foreseeability factor, "it is not necessary that the tortfeasor be able to foresee the exact nature and extent of the injuries or the precise manner in which the injuries occur, but only that some injury will likely result in some manner as a consequence of his negligent acts." Indeed, here, such injury to a student resulting from a negligently handled investigation is foreseeable. "When a university levies charges against a student without proper investigation or allows a biased committee to decide the student's guilt, the foreseeability of harm to the student is great.".
A student who is dismissed after the culmination of a partial or unfair investigation will likely suffer a diminished earning capacity and stigma from the expulsion, and may be prevented from engaging in their chosen profession.
On the other hand, the social utility of investigations and adjudications of allegations of non-consensual sexual contact is significant. Private educational institutions have a substantial interest in protecting their students and preventing those who engage in non-consensual sexual contact from using their facilities or interacting with other students.
Congress enacted Title IX with the express goal that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Title IX's implementing regulations provide a grievance process for formal complaints of sexual harassment.
When we weigh the significant foreseeability and likelihood of injury against the significant social utility, we conclude on balance that "the seriousness of the potential harm militates in favor of imposing a duty."
[c.] The Magnitude of the Burden of Guarding Against the Injury
The magnitude of the burden imposed on DU of guarding against the injury is significant. Training employees to use fair procedures in investigating and adjudicating allegations of non-consensual sexual contact and overseeing such investigations and adjudications demands both economic and personnel resources.
Accordingly, this factor weighs against recognizing a duty of care.
[d.] The Consequences of Placing the Burden on DU
… [T]he burden of imposing a duty to use fair procedures when investigating and adjudicating claims of improper sexual conduct by students will undoubtedly result in an economic and personnel burden on DU. For example, DU might be required to provide additional training and resources to, and maintain oversight over, its employees, particularly because the investigations may be lengthy and the persons conducting them must exercise discretion in the performance of their duties…. [But] it is equitable for these costs to be borne by DU and, indirectly, DU's students…. DU is the only actor able to ensure that its investigation and adjudication of a student are fair and impartial.
The consequences of placing the burden on DU weigh in favor of recognizing a duty to adopt fair procedures and to implement those procedures with reasonable care in the investigation and adjudication of allegations of non-consensual sexual contact.
[e.] Weighing of the Relevant Factors
Although the magnitude of the burden of guarding against the injury is significant, it does not outweigh the severe risk of harm inherent in DU's conduct, the foreseeability and likelihood of injury to a student weighed against the social utility of DU's conduct, and the consequences of placing the burden on DU. Accordingly, … conclude that DU had a duty to adopt fair procedures and to implement those procedures with reasonable care in the investigation and adjudication of allegations that John committed non-consensual sexual contact.
[2.] Cases from Other Jurisdictions Support our Conclusion and Those that Don't are Distinguishable
[Details omitted. -EV]
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