February 27, 2019
Higher Education Alert
Higher Education Alert
Author(s): Steven M. Richard
A ruling finds that a duty of care exists in Title IX disciplinary process, but holds that university did not breach that duty.
When sued by a student challenging the investigation and adjudication of a campus sexual misconduct disciplinary case, colleges and universities must often defend against several pled causes of action including not only federal claims (such as Title IX gender discrimination or Title VI racial discrimination), but also state law causes of action that do not require proof of discriminatory intent. Often, the student asserts a breach of contract claim alleging that his or her reasonable expectations were not met in the implementation of the rights and procedures prescribed in student handbooks, codes or policies. Many states have expressly recognized a contractual relationship between a school and its students, but some have declined to do so. Beyond breach of contract claims, questions arise whether a disciplined student may assert a negligence cause of action, alleging that the school owed him or her a standard of care that was breached during the disciplinary process.
Where courts have found a legal contractual relationship between a school and its students under the applicable state law, the student conduct code standards and procedures prescribe the disciplinary process. Based upon the contractual relationship, courts have typically rejected negligence claims, holding that the school did not owe a student any additional independent duty outside of the contractual terms. Accordingly, any remedy for an alleged breach must sound in contract, not in tort.
By contrast, where courts have been reluctant to find a contractual relationship under state law based upon student handbooks, courts have been more flexible in permitting negligence causes of action in lawsuits challenging disciplinary processes. In a recent ruling, the United States District Court for the District of Minnesota found that a university owed a duty of reasonable care to a student suspended for sexual misconduct, but did not breach the duty in its processing and determination of the disciplinary case. John Doe v. University of St. Thomas, Civil No. 16-1127 (D. Minn. Feb. 21, 2019).
The case arises from alleged sexual misconduct that occurred on the University of St. Thomas’s (UST) campus in December 2015. UST investigated the incident, initiated disciplinary process, suspended Doe and denied his appeal. Doe sued UST alleging six causes of action: (1) Declaratory Judgment under Title IX, (2) Title IX—Erroneous Outcome, (3) Title IX—Deliberate Indifference, (4) Breach of Contract, (5) Breach of Covenant of Good Faith and Fair Dealing and (6) Negligence. At the motion to dismiss stage, Minnesota Federal District Court Judge John R. Tunheim dismissed all of the claims except the negligence cause of action. Regarding the breach of contract claim, he noted that Minnesota courts have been reluctant to find that a handbook creates a unilateral contract or requires strict compliance with every handbook provision. After discovery occurred regarding Doe’s negligence claim, UST moved for summary judgment, which Judge Tunheim granted under the analysis discussed below.
In his opinion adjudicating UST’s summary judgment motion, Judge Tunheim wrote that Minnesota courts have not applied negligence theories in the context of a challenge of a sexual assault investigation by a private college or university, depicting Doe’s negligence cause of action as “a relatively new and untested legal strategy.” Analyzing the claim, Judge Tunheim referenced constitutional due process obligations imposed upon public institutions and concluded that “[t]he requirements imposed by common law on private universities parallel those imposed by the due process clause on public universities.” Although private institutions are not subject to the Due Process Clause, Judge Tunheim concluded that they do not escape judicial oversight in disciplinary matters. Private universities have a common law duty not to act arbitrarily. “The issue, therefore, is not whether universities have the ability to discipline their students in ways that give rise to severe consequences. Instead, given the harm that can come from that discipline, and given the unique relationship between student and university, the question is whether a private university must use reasonable care before making disciplinary decisions. The Court today holds that they must.” (Emphasis in original).
While finding that a legal duty of care is imposed, Judge Tunheim noted that its precise contours are not easily defined and depend upon the circumstances of each case. Schools are entitled to discretion in student conduct matters, which is not unrestricted. “Certainly, whether an investigation or decision was arbitrary will factor into a reasonable care analysis. But that a decision was non-arbitrary is insufficient, by itself, to establish reasonable care.” Also, reasonable care does not require strict adherence to a university handbook, as schools must have flexibility in their implementation. “If courts were to require strict adherence, the purpose and utility of the handbooks would be undercut, not bolstered.”
After determining that UST owed Doe a duty of reasonable care, Judge Tunheim analyzed whether UST breached that duty during Doe’s disciplinary case. Doe argued two grounds. First, he claimed that UST failed to provide him with a fair hearing because the individuals investigating and adjudicating his case had been indoctrinated with bias against men accused of sexual assault. Second, Doe argued that procedural deficiencies throughout the process cumulatively amounted to a breach of duty.
Regarding the claims of bias, Doe contended that UST’s training materials were gender-slanted against men, portrayed characterizations of how victims typically behave following an assault and offered statistics purporting a low rate of false campus sexual assaults. Judge Tunheim acknowledged that bias can provide proof that a university failed to use reasonable care in its disciplinary process, but found Doe’s claims to be unpersuasive and unproven. Judge Tunheim applied the presumption that university administrators act honestly and with integrity, unless actual bias is shown. Doe failed to provide any facts suggesting that anyone involved in his case was actually biased against him or showed how the training actually created any bias in his disciplinary case.
Regarding the claims of procedural deficiencies, Judge Tunheim reiterated that strict adherence to a university’s policies and procedures is not required to satisfy the duty of reasonable care. However, adherence to a school policy still has relevance in the breach analysis. “Thus, when—as here—a university relied on and sought to follow its own policies, evidence that it failed to do so may provide evidence of a university’s failure to use reasonable care.” Doe claimed that he was (1) denied access to information necessary to identify witnesses and documents favorable to his defense, (2) refused access to written findings against him and (3) even when provided access to the record, it was done only for his counsel through heavily redacted documents.
As to the first alleged deficiency, Judge Tunheim concluded that UST’s policies established the factfinders’ responsibility to conduct the investigation at an arm’s length from the parties, with input from the parties as the factfinders deemed appropriate. Doe had an erroneous impression “that he would be able to mount something of a full defense and become intricately involved in the investigatory process.” As to the other two alleged deficiencies, Judge Tunheim concluded Doe’s depictions were exaggerated and not shown by the record of the case.
Nonetheless, while ruling in the university’s favor, Judge Tunheim found flaws in its actions. Particularly, communications occurred between individuals involved at the factfinder and appellate levels as the case progressed to its disposition. “Ideally, there is complete separation between the two levels of the disciplinary process.” While this error occurred, Judge Tunheim concluded that it was ultimately harmless to the final result. Doe failed to identify specific violations of policy or Title IX guidance demonstrating a breach of the duty of care.
The permissible causes of action in a lawsuit challenging a sexual misconduct disciplinary process vary by jurisdiction under state laws, and may even vary by judges on the same court depending upon their interpretation of such laws. During a disciplinary process, a school must recognize what duties are imposed under state contract law (e.g., reasonable student expectations or fundamental fairness) or negligence law (e.g., duty of reasonable care) to guide the scope of its appropriate discretion. Later, if litigation ensues, state law claims will impact the scope of relevant discovery, which can be prohibitive in lawsuits of this nature, and recoverable damages, which can vary dependent upon the cause of action (e.g., whether pain and suffering is recoverable or attorneys’ fees may be recovered).
State law claims may survive past federal civil rights claims, as the lawsuit progresses beyond the motion to dismiss and summary judgment stages and may be the only triable causes of action ultimately presented to a jury. Consequently, in light of a judicial playing field that is wide-ranging and still evolving, state law claims must receive equal vigor with asserted federal civil rights claims throughout the defense of a lawsuit.
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