What’s “Fair” in Private University Sexual Misconduct Proceedings?
A federal district court in Rhode Island held that Johnson & Wales University (“JWU”) must face a trial in a lawsuit brought by a male student expelled by the university for sexual assault. Doe v. Johnson & Wales Univ., 2019 WL 6324905 (D.R.I. Nov. 26, 2019).
The court held that a reasonable jury could conclude that JWU breached its promise to provide a “fair” disciplinary hearing to the student by failing to provide him with certain rights—including the right to cross-examine his accuser—even though none of those rights appeared in JWU’s conduct review process.
The Facts
This case began early in the fall of 2016 when two JWU students—Mary Smith and John Doe—struck up a sexual relationship.1 They slept together several times—sometimes at John’s place, others at Mary’s—neither of them apparently taking the relationship seriously: one of them, at least, described the arrangement as “friends with benefits.”
Mary alleged that, during one sexual encounter, she got up from bed to use the restroom. John followed her, she said, and began having sex with her against the bathroom sink—without her permission, in a much more aggressive way than usual, bruising her hip. Mary also claimed John sexually assaulted her again on a different night, continuing to have sex with her after she asked him to stop, complaining of pain.
Almost a year after the second incident, Mary reported the alleged assaults to JWU, although she apparently told the school that she “was not sure” it was sexual assault. John claimed the first assault never happened, and that the second incident was not any different from his prior sexual encounters with Mary. JWU charged John, held a disciplinary proceeding, and expelled him.
The Plaintiff’s Claims
What happened next is becoming increasingly common in student-on-student sexual assault proceedings: John sued the university for breach of contract (among other claims), alleging that the school had failed to provide him adequate protections during his disciplinary proceeding.
In support of his contract claim, John alleged that JWU breached its contract with him because: (1) he was never given a copy of the accuser’s statement against him; (2) he was not allowed to question his accuser or her witnesses; (3) the standard of proof used to find him guilty was a preponderance of the evidence, rather than beyond a reasonable doubt; (4) the final hearing was not transcribed; and (5) the university did not sufficiently explain the conduct review process to him.
Notably, JWU’s “Student Code of Conduct,” which included the “Conduct Review Process,” did not include any of the rights that John alleged he should have received. Nonetheless, John argued that JWU breached its contract with him because the Conduct Review Process promised a “fair” proceeding, and the rights he should have, but did not, receive were integral to a “fair” proceeding.
The Decision
In an opinion issued November 26, 2019, the trial court denied the university’s motion for summary judgment.
The court began by reaffirming that the relationship between a private university and its students is contractual, and that JWU’s “Student Code of Conduct” was the relevant contract between John and JWU. Next, the court examined the text of JWU’s code of conduct and concluded that it required JWU to provide Doe with a “fair” procedure because the Conduct Review Process stated that any resolution under that process would be “prompt, fair, and impartial,” and that JWU would “mak[e] every reasonable effort to be fair to all involved.”
The court concluded that, because “fair” was — as a matter of Rhode Island law — an ambiguous term that had many different meanings depending on the circumstances, a jury would have to decide whether JWU’s promise of a “fair” proceeding included the rights that John complained about:
[I]n the context of an uncounseled college junior, facing the frightening and very serious prospect of possible expulsion from school, in a case of contrary “he said,” “she said” allegations, a reasonable juror could determine that the meaning of “fair” includes being provided more protections than Doe alleges he received.
In reaching this decision, the court departed from rulings in other, similar cases, in which courts have concluded the accused students are not entitled to any procedures not expressly provided for in the university’s student handbook or other relevant document. See, e.g., Doe v. Vanderbilt Univ., 2019 WL 4748310 (M.D. Tenn. Sept. 30, 2019).
Takeaways
The decision in Johnson & Wales provides several takeaways for private universities in adjudicating cases of student-on-student sexual assault.
First, private colleges and universities should anticipate continued litigation brought by students accused of sexual assault. Johnson & Wales is merely one of many cases filed by accused students in the last five years alleging that the university failed to provide a fair or impartial disciplinary proceeding. See, e.g., Doe v. Trs. of Boston Coll., --- F.3d ----, 2019 WL 6167461 (1st Cir. Nov. 20, 2019); Doe v. Columbia Coll. Chi., 933 F.3d 849, 858 (7th Cir. 2019); Doe v. Vanderbilt Univ., 2019 WL 4748310 (M.D. Tenn. Sept. 30, 2019); Doe v. Tr. of the Univ. of Penn., 270 F. Supp. 3d 799, 813 (E.D. Pa. 2017); Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 601–607 (D. Mass. 2016).
Second, breach of contract claims will likely be the focus of that litigation. Students at public schools, of course, can rely on the Due Process Clause of the U.S. Constitution to provide them with a minimum level of protection in sexual misconduct proceedings. But because the Constitution constrains the actions only of public institutions, students accused of sexual assault at private schools cannot rely on the Due Process Clause to establish liability. Although accused students also invoke Title IX of the Education Amendments of 1972 (which prohibits discrimination on the basis of sex by educational institutions accepting federal funds) proving liability under that statute can be difficult. An accused must show either that the college selectively enforced its procedures against a particular sex or applied its procedures in a biased manner, leading to an erroneous outcome. Breach of contract claims, therefore, are the only claims to gain much traction in relation to fairness of the procedures provided to an accused.
Third, in many jurisdictions, a private university’s code of conduct and the provisions of its student handbook form the relevant part of the contract between the university and its students in this context. Courts will interpret the terms of those documents to impose contractual obligations on the university, even if the university did not intend that result. To mitigate the risk of liability, a university should, at a minimum, ensure that it follows all of the procedures described in its conduct review process.
Fourth, because a private university’s code of conduct and/or student handbook are contracts, a university should take great care in drafting those documents. A university should avoid describing its disciplinary process with ambiguous, subjective words like “fair” because a court or jury may construe those words as a promise to provide certain procedures that the university did not intend to provide. In Johnson & Wales, for example, the court determined that a reasonable jury could conclude that the university’s promise of a “fair” disciplinary proceeding included, among other things, the right to cross-examination—even though the university’s conduct review process did not expressly provide those rights. While some states have well-developed law on what is “fair” in the context of school disciplinary proceedings, not all states do—and in those states, a private university may find itself exposed even when it follows all of the procedures expressly provided for in a student handbook.
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1 Mary Smith and John Doe are pseudonyms used by the court to protect the involved students’ privacy.