Court Finds University Policy To Engage In Fair Investigation Is Enforceable Under Contract Law

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: May 29, 2024

John Doe and Jane Roe started attending the University of Denver as freshmen in the Fall of 2015.  One night in March 2016, Roe consumed alcohol with friends.  She was so intoxicated that she could not remember leaving the bar and returning to her dorm.  Around the same time, Doe was in a friend’s room in the same dorm.  Like Roe, Doe was intoxicated.

Roe brought Doe into her dorm room, and they engaged in consensual sexual contact.  Doe’s and Roe’s account of the next morning varies.  Roe alleges that she woke up to Doe engaging in non-consensual contact with her.  Doe alleges that he woke up to Roe encouraging consensual contact with him.

Several weeks later, Roe filed a complaint with the University’s Office of Equal Opportunity (OEO).  Under the OEO Procedures, when a sexual-misconduct complaint alleging a violation of school policy is filed, the University makes an initial assessment.  If that assessment determines that corrective action may be appropriate, the School initiates an investigation.  The University must designate an investigator—either an employee or an outside person—to conduct any investigation.  An investigator “must be impartial and free of any actual conflict of interest.”  The Procedures provide that the investigation will be “thorough, impartial, and fair.”

The Procedures contain a precise investigation process, including that the investigator will conduct interviews, review documents, and any other relevant information; the parties may provide relevant information to the investigator, including names of witnesses and documents to review; the complainant and respondent will have an equal opportunity to be heard, to submit information, and to identify witnesses who may have relevant information.  After the investigation has begun, the respondent will be notified in writing and invited to an informational meeting to review the process and resources available to them throughout the process.  After the informational meeting, the Procedures require that the respondent is invited to an initial interview with the investigator.  Finally, after the investigation, the investigator must prepare a written report that synthesizes the areas of agreement and disagreement between the parties.  The parties must be given an opportunity to review a draft of the report and offer comments before the report is finalized.  The final report requires the investigator to make a finding as to whether a violation of school policy occurred.

Doe was notified of the complaint and participated in an informal and, later, formal interview with the investigators.  He asked the investigators to interview five individuals, who he believed had material information: two fellow students, his therapist, his legal counsel, and his mother.  The investigators interviewed all 11 witnesses identified by Roe and not a single witness identified by Doe.

The investigators reviewed a partial sexual assault medical report submitted by Roe from after her encounter with Doe.  Roe did not provide any corroborating evidence as to the injuries mentioned in the report, and the report did not include any medical analysis as to the possible cause or age of her injuries.

When the investigators provided a preliminary draft of their report for Doe and Roe to review, Doe asked again that the investigators interview his witnesses.  This was also the first time that Doe received Roe’s specific allegations.  The investigators only interviewed Doe’s therapist and declined to interview the remaining witnesses, even though the two students Doe identified had witnessed Doe and Roe in the hours leading up to the encounter and had seen Doe immediately after the encounter with Roe.  Doe’s therapist submitted a letter that raised concerns about the investigation’s integrity, which the investigators omitted.  The final report concluded that Doe engaged in nonconsensual sexual contact with Roe, and Doe was ultimately expelled.

Doe filed suit, alleging among other claims, breach of contract due to the University’s failure to conduct a “thorough, impartial, and fair” investigation as promised by the University’s policy.  The trial court ruled that the University’s promise was a vague aspirational goal and unenforceable in contract.  Doe appealed.

The Court of Appeals disagreed with the trial court.  It concluded that the OEO Procedures did require a “thorough, impartial, and fair investigation,” and the Procedures listed very specific provisions to ensure this promise would be fulfilled.  These requirements are not vague and aspirational.

Here, the Court of Appeals found four areas where the investigation was potentially not “through, impartial, or fair.”

First, the investigators interviewed all 11 witnesses identified by Roe, but only one of the five witnesses identified by Doe.  The investigators initially failed to interview any of Doe’s witnesses, despite the two students having relevant eyewitness accounts of what happened leading up to and after the encounter.

Second, only considering part of the sexual assault medical report was relevant.  The investigators had requested that Roe provide the full report, but when she only provided portions, they did not ask for the rest of the report.

Third, the investigators failed to consider any improper motive Roe may have had in accusing Doe of sexual assault.  For example, Roe waited several weeks to file her complaint and did so only after she became aware that Doe had told others about their encounter.  Roe initially had not told her classmates that she thought Doe had engaged in nonconsensual contact; it was only after Roe witnessed Doe talking with another young woman at a party that she filed the complaint.  While it is possible that Roe had no improper motives, the investigators did not even consider these motivations.

Finally, Doe was deprived an equal opportunity to be heard, submit information, and identify witnesses.  The Court of Appeals found the investigators seemingly gave a greater weight of evidence to Roe’s witnesses and self-selected portions of the medical report, as compared to Doe’s witnesses and his concerns about Roe’s potentially improper motivations.

In light of these findings, the Court of Appeals reversed the trial court’s ruling on the breach of contract claim.

Note:  This case emphasizes that schools must follow the procedures outlined in their policies.  If a school has detailed and specific requirements for investigating misconduct, failure to follow them may result in a breach of contract claim. 

Univ. of Denv. v. Doe, 2024 CO 27.

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