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Doe v. University of Denver.

2022 COA 57. No. 20CA1545. Student Sexual Misconduct Investigations—Contract—Tort.

May 26, 2022

John Doe and Jane Roe were undergraduate students at the University of Denver (DU). Jane filed a complaint with DU’s Office of Equal Opportunity (OEO) alleging that John had sexual intercourse with her without her consent. As part of the enrollment process, John received a copy of the OEO procedures. After OEO received the complaint, the Title IX coordinator held an informational meeting with Jane, and she requested a formal investigation. John submitted to a formal interview and gave five names of other people to be interviewed. In addition to John and Jane, investigators interviewed 11 witnesses that Jane identified but none of John’s witnesses. Jane underwent a sexual assault nurse examination (SANE). During the investigation, she submitted only portions of the SANE report, which did not include any medical analysis as to the possible cause or age of her injuries. After reviewing the preliminary report, John realized that investigators had not interviewed any of his witnesses and he again requested that they do so. Investigators then interviewed only one of John’s witnesses, his therapist. The OEO report concluded that it was more likely than not that John engaged in non-consensual sexual contact with Jane. John was subsequently dismissed from DU. He appealed, and his appeal was denied.

John sued DU, its trustees, and the individuals responsible for the investigation and adjudication in the US District Court for the District of Colorado. That court granted summary judgment on the federal claims in favor of all defendants and dismissed the state law claims for breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel, and negligence, without prejudice. John then filed the instant lawsuit in Denver District Court, raising the same state law claims he originally brought in federal court. The district court granted defendants’ motion for summary judgment on all claims. After the instant case was briefed, the US Court of Appeals for the Tenth Circuit reversed the federal district court’s grant of summary judgment, finding that genuine issues of material fact precluded summary judgment on his Title IX claim against DU. The Tenth Circuit’s opinion identified several inconsistencies and deficiencies in DU’s investigation of John and concluded that there were genuine issues of material fact as to whether DU’s investigation discriminated against John based on sex in violation of Title IX.

John argued on appeal that DU breached its contract by expelling him without following its OEO procedures by conducting a “thorough, impartial and fair” investigation. The fundamental question before the Court of Appeals was whether “thorough, impartial and fair” is sufficiently definite to be enforceable in contract. The basic relationship between a student and an educational institution is contractual in nature. Contract terms that are sufficiently definite to enable the court to determine whether the contract has been performed are enforceable. Here, when reviewed as a whole, the OEO procedures give sufficiently definite meaning to the words “thorough, impartial and fair” to determine whether those contractual terms have been performed or breached under Colorado contract law. Further, the record reveals arguable deficiencies in DU’s investigation that create genuine issues of material fact as to whether DU abided by its contractual commitments to provide a thorough, impartial, and fair investigation before it expelled John. And, for the same reasons, genuine issues of material fact precluded summary judgment on John’s breach of contract claim premised on a breach of the duty of good faith and fair dealing.

John also asserted that DU owed him a tort duty of care, independent of its contractual obligations, to adopt fair procedures and to implement those procedures with reasonable care when it investigated and adjudicated the allegations against him. Injuries resulting from procedurally faulty investigations and adjudications of allegations can be severe. DU’s burden in guarding against such injuries is significant but it does not outweigh the severe risk of harm inherent in DU’s conduct, the foreseeability and likelihood of injury to a student weighed against the social utility of DU’s conduct, and the consequences of placing the burden on DU. Therefore, DU owed John this duty of care, and genuine issues of material fact precluded summary judgment on his tort claim against DU. Accordingly the district court erred in entering summary judgment for DU. However, the trustees, employees, and agents of DU owed no tort duty of care, so summary judgment as to those parties was proper.

The district court’s summary judgment dismissing John’s contract and tort claims against DU was reversed. The summary judgment in favor of DU’s trustees, employees, and agents was affirmed. The case was remanded for further proceedings consistent with the opinion.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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