Doe v. Univ. of the Sciences, No. 19-2966 (3rd Cir., May 29, 2020)
Summary of procedural history:
Plaintiff, a senior at The University of the Sciences in Philadelphia filed suit alleging USciences discriminated against him on the basis of sex during the investigation and hearing process; he also alleged USciences engaged in breach of contract for failing to provide him with a fair process. The district court dismissed the Plaintiff’s complaint. Plaintiff appealed to the Third Circuit, which reversed the District Court’s ruling.
Summary of facts:
John Doe was accused of sexual misconduct by two women, Jane Roe 1 and Jane Roe 2. Roe 1 and Roe 2 were sorority sisters, and Roe 1 had shared information about her complaint with Roe 2, prompting Roe 2 to report her allegation.
Roe 1 alleged that she and Doe engaged in intercourse at least three times in one evening in November 2017. She alleged that the first two were consensual, but that the third was not because Doe did not use a condom – a deviation from the first two instances. Roe 1 reported this to USciences in August 2018.
Doe and Roe 2, who were sexually active with each other throughout fall 2017, attended a party in January 2018 where both consumed similar and significant amounts of alcohol, after which they engaged in sexual intercourse. Roe alleged that Doe engaged in sexual intercourse with her while she was incapacitated due to alcohol consumption. Roe 2 reported to USciences in August 2018.
USciences provided Doe a generalized, non-specific notice of the allegations and, using a single investigator model, hired an external attorney to conduct the investigation and make findings. The investigator found Doe in violation under both allegations, and a Title IX Administrative Panel expelled him from USciences.
Summary of significance:
This case could be game-changing for three reasons: 1) It adopted the more generalized Title IX pleading standard used by the Seventh Circuit in Doe. v. Purdue Univ. 2) it reaffirmed the requirement under Title IX cases that colleges and universities must hold a live hearing with the ability for the parties to cross-examine witnesses and the other party; and 3) it extended the requirements for a live hearing with cross examination to all private colleges and universities in the Third Circuit.
While citing to the four Title IX-based claims made within the courts: erroneous outcome, selective enforcement, deliberate indifference, and archaic assumptions, the court saw “no need to superimpose doctrinal tests on the [Title IX] statute.” The court chose, instead, to mirror the Seventh Circuit’s standard “that, to state a claim under Title IX, the alleged facts, if true, must support a plausible inference that a federally-funded college or university discriminated against a person on the basis of sex.”
In Doe’s case, the court felt that external pressures (e.g. the OCR 2011 Dear Colleague Letter), USciences’s failure to entertain Doe’s counterclaim – of which the school had notice – that he was incapacitated and could not consent to sex with Roe 2, and USciences’s failure to discipline Roe 1 for disclosing confidential information about her allegation to Roe 2 – Roe 1’s actions violated USciences’s policies – all combined to create sufficient evidence of sex discrimination to survive a 12(b)(6) Motion to Dismiss.
Noting that a private university is not subject to due process at the constitutional level, the Third Circuit nevertheless opined that fairness in Title IX cases, where students have a “substantial interest at stake,” requires private universities to provide “the modest procedural protections of a live, meaningful, and adversarial hearing and the chance to test witnesses’ credibility through some method of cross-examination.”
Key take-aways:
- Four Circuit Courts of Appeals, the Third, Seventh, Eighth and Ninth, have now rejected the more complex pleading standards under Title IX, opting instead for a straightforward “plausible inference” of sex discrimination standard at the 12(b)(6) stage. Additionally, the Seventh Circuit decision in Purdue was written by newly-seated Supreme Court Justice, Amy Coney-Barrett, perhaps portending a future Supreme Court impact.
- The legal trajectory is definitively toward enhanced due process for Title IX resolution processes. Hearing, cross examination, and transparency are the new normal. Whether such decisions will also impact on other suspension and expulsion-level cases that are not based on sexual misconduct remains to be seen.
- Private colleges and universities are now overtly included in the due process expansion we are seeing from the courts, with the Third Circuit now the first court of appeals to so rule.