A private Colorado university now has the dubious distinction of suffering major setbacks in both federal and state lawsuits alleging anti-male discrimination in the same Title IX sexual misconduct proceeding.
The Colorado Court of Appeals followed about a year behind the 10th U.S. Circuit Court of Appeals in reinstating an expelled student's lawsuit against the University of Denver. While the latter concerned Title IX, the former concerned breach of contract and negligence, "two questions of first impression" in Colorado.
The panel of judges concluded that UDenver's Office of Equal Opportunity (OEO) procedures are "sufficiently certain" to be enforceable under state contract law, and that a private college "owes a duty, independent of any contractual promises, to adopt fair procedures and to implement those procedures with reasonable care" in Title IX cases.
The New York-based lawyer for "John Doe," Andrew Miltenberg, told Colorado Politics he had litigated 80-100 similar cases and that Colorado had been "one of the worst places" to do it until recently. He now sees "a change in the momentum of this issue." UDenver told Just the News it had no comment.
Criminal defense lawyer Scott Greenfield, an expert in Title IX litigation, said it was a watershed decision because it comes from a state court, applies to private institutions and isn't dependent on their contractual promises.
"It's been a hard battle to get courts to come around on the deprivation of due process in Title IX sex cases," even when it concerns public universities "subject to federal constitutional mandates," he wrote in an email.
While the 10th Circuit joined the 8th and 6th Circuits in finding that the Obama administration's pressure on universities to favor accusers provided a "backdrop" that strengthened "circumstantial evidence" of anti-male bias, the new ruling deals with UDenver's obligations under Colorado law.
Those circumstances make it hard to determine whether other state courts might follow Colorado's lead, and what effect it could have on the Biden administration's forthcoming revision of campus sexual misconduct regulation.
That process is led by Catherine Lhamon, who was also Department of Education civil-rights chief in the Obama administration and financially-threatened universities that resisted its Title IX guidance. She faced scrutiny from elected Republicans in her first stint and, now again, following her tiebreaking Senate confirmation vote last fall.
Like the 10th Circuit with Title IX, the Colorado Court of Appeals remanded the case to a lower court to decide whether UDenver breached its contract and denied the accused student a "tort duty of care." The federal trial is scheduled for January.
Both dealt with the same factual record. John and "Jane Roe" started with a nonsexual relationship, but after both had been drinking one night, Jane brought him back to her dorm room. They disagreed on who initiated the sexual activity the next morning and whether it was consensual. Jane only reported the incident to the university as nonconsensual after she learned John had told multiple people about it.
By using the phrase "thorough, impartial and fair proceeding," and giving it weight through "specific investigation and adjudication procedures," the OEO procedures triggered Colorado contract law, according to the opinion by Judge Michael Berger, appointed by then-Gov. John Hickenlooper (D), for the unanimous panel.
The procedures promise an "equal opportunity … to identify witnesses," but investigators interviewed 11 of Jane's witnesses and only one of five identified by John, which the lower court could decide is a breach of contract, Berger wrote.
The state court concluded the 10th Circuit's Title IX analysis is "persuasive and relevant" to its questions of first impression.
Investigators ignored "Jane’s possible improper motivations" even though she admitted accusing John only after learning he was telling others about their sexual encounter. She also didn't characterize the event as nonconsensual to classmates until John spoke about it to others.
OEO initially declined to interview any of John's witnesses, including two who saw their interactions "in the hours surrounding" the disputed encounter and whom he told "very shortly after it happened." Investigators claimed this would be "duplicative" but couldn't explain why interviewing Jane's 11 witnesses wasn't also.
By letting Jane omit portions of her sexual assault nurse examination, including "medical analysis as to the possible cause or age of her injuries … it is at least open to question" whether investigators met the university's contractual obligations, Berger wrote. These "arguable deficiencies … create genuine issues of material fact" that may require a jury to resolve.
Sexual misconduct investigations also require a duty of care under state supreme court precedent. The risks of investigation to accused students are "palpable and severe" and a "mere allegation … can be devastating," Berger wrote.
"We are hard pressed to find another activity by a private educational institution that can be so devastating and long-lasting" than expelling a student and sharing his disciplinary records with others. John will "likely suffer a diminished earning capacity and stigma" and possible exclusion from his "chosen profession."
Invoking a separate ruling that judged Taco Bell "the only actor able to take reasonable measures to protect patrons" from criminals, Berger said UDenver must bear the burden of ensuring "its investigation and adjudication of a student are fair and impartial."
Colorado's ruling may be the first of its kind for a state court, according to a comprehensive spreadsheet of rulings and settlements in campus sexual misconduct litigation maintained by Brooklyn College professor KC Johnson.
He told Just the News about a "brief period" where federal courts in Minnesota, later reversed by the 8th Circuit, interpreted state negligence law to require "meaningful protections" for accused students. Similar findings in lawsuits against Brandeis University and Boston College were also reversed, Johnson said.
State lawsuits in New York and California "basically address the kind of themes you see in breach of contract cases" under their unique systems for challenging administrative decisions, he wrote in an email.
The Colorado ruling "may not be precedential ... but at least we finally have a really strong state court decision to serve as a basis for arguing the same elsewhere," Greenfield said. Judges have recognized "too many innocent lives are being ruined without any opportunity for a fair defense."