The case could hold significance for the frequency with which student-athletes face allegations of sexual misconduct.
By James H. Moss, JD
At issue in this lawsuit is how the University of Denver (DU) handled a sexual assault investigation filed by one student against another student.
The Colorado Court of Appeals held that DU’s Office of Equal Opportunity Procedures for the 2015-2016 academic year (OEO Procedures) created an enforceable contract with its students and the university stating that it “owes a duty, independent of any contractual promises, to adopt fair procedures and to implement those procedures with reasonable care when it investigates and adjudicates claims of sexual misconduct by one student against another.”
Two freshmen at the University of Denver had an on again/off again relationship that ended with one student claiming she had been sexually assaulted by the other student. She filed a complaint with the university. The complaint was filed weeks after the alleged assault and only occurred after she heard that Plaintiff John Doe has discussed the incident with several people.
As part of the enrollment procedures, the freshmen students received a copy of the OEO Procedures. The procedures had several requirements to ensure that any investigation would be “thorough, impartial and fair.” After an investigation, the procedure requires that a report be made by an investigator, and the parties are given an opportunity to review the report. Plaintiff Doe was given the report and made several arguments that his witnesses were not contacted and the investigation by the university was one-sided.
The preliminary report stated that Plaintiff John Doe had been given a copy of the report and “John and Jane “were given the opportunity to review the preliminary report and offer any factual clarifications and additional relevant information related to the statements.” After receiving the report, the Plaintiff realized that the investigator had not interviewed any of his witnesses. The investigator then interviewed one of Plaintiff’s John Doe’s witnesses, his therapist.
Nothing else was done and no other witnesses were investigated. According to the report:
“The investigators declined to interview the other witnesses John identified even though some of those witnesses – students – were in the dormroom with him when Jane came and brought him back to her dormroom on the night in question. The final report stated that interviews of John’s witnesses were unnecessary because ‘the [i]nvestigators had already interviewed witnesses [who] could corroborate the information that [John] expected them to provide.’”
Afterwards, no further investigation was done. The final report concluded, “it is more likely than not that [John] engaged in non-consensual sexual contact with [Jane] on the morning in question.” Plaintiff Doe was informed of the final report and the outcome and immediately dismissed from the University.
Plaintiff John Doe initially filed a complaint in federal court, then eventually filed another complaint in state court over the dismissal at the federal level, arguing the same four issues in both courts. The Federal District Court dismissed the plaintiffs federal and state law claims. So, the plaintiff appealed the federal dismissal in state court. The Tenth Circuit Court of Appeals reversed the Federal District Court holding that there were “genuine issues of material fact preclude[ing] summary judgment on John’s Title IX claim against DU.”
The state court dismissed the plaintiff’s claims, and the plaintiff once again appealed, which resulted in this most recent decision.
The Colorado Court of Appeals sought to determine (1) whether the OEO Procedures were sufficiently definite and certain to be enforced under Colorado contract law and (2) whether the phrase “thorough, impartial and fair” in a policy book creates a contract. This review started with examining what creates a contract under Colorado law. The court concluded that a meeting of the minds occurs if the “contract terms that are ‘sufficiently definite to enable the court to determine whether the contract has been performed or not’ are enforceable.” Then, the court looked to the OEO procedures to see if the terms of the OEO Procedures were sufficiently definite.
“Thorough, impartial and fair” are not defined in the OEO manual, but by reviewing the entire manual as well as the examples and requirements set out in the manual, the court was able to determine a definition. The court found that the terms were definite, clear and thus enforceable based on their review of the manual. The court also found that the terms were included throughout the OEO manual and easily definable as such.
Next, the court looked at whether or not the investigation had been fair or impartial, as required by the OEO manual. “The OEO Procedures state that the ‘Complainant and Respondent will have an equal opportunity to be heard, to submit information, and to identify witnesses who may have relevant information.’” If the court found that the investigation was not fair or impartial, then there would be a genuine issue of material fact, which would have precluded the lower court’s motion for summary judgment.
Following the court’s review of the investigation, the court determined that the investigation was neither fair nor impartial. Among the facts the court pointed to in making this determination were that several of the witnesses had not been interviewed and the investigator did not include the medical report in the report including only specific facts which supported the victim’s position instead. The court rejected the argument by DU that stated Plaintiff John Doe had presented no facts to support his position.
In fact, the court found just the opposite, holding that “the arguable deficiencies in DU’s investigation identified above…create genuine issues of material fact as to whether DU abided by its contractual commitments to provide a ‘thorough, impartial and fair’ investigation as provided in the OEO Procedures before it expelled John based on its finding that he had engaged in non-consensual sexual contact.”
According to the court, DU’s investigation and re-investigation failed to adequately examine the defenses of the plaintiff in this case.
Furthermore, the court also found that the OEO created a contractual relationship between the plaintiff and the University. That agreement included the implied covenant of good faith and fair dealing, which is found in every contact in Colorado. Therefore, the court said that covenant was breached by the University when it failed to properly investigate Plaintiff John Doe’s claims.
Finally, the court looked at whether the University owed the student a duty that was breached, creating a breach of the duty of care claim for Plaintiff John Doe.
Under Colorado law to prove a breach of duty of care the plaintiff must prove: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached that duty; (3) the plaintiff suffered an injury; and (4) the cause of the injury was the defendant’s conduct.
In sexual misconduct cases, the duty of care is greater when the outcome of the investigation can have a permanent and long-lasting negative effect upon the student. Here, the mere allegation of sexual misconduct would be severe and last forever.
After an exhaustive review of the law, the court found that the university owed the plaintiff a duty of care. The court said, “DU owed him a tort duty of care, independent of DU’s contractual obligations, to adopt fair procedures and to implement those procedures with reasonable care when it investigated and adjudicated the allegations against him.” For these reasons, the court concluded, “that university had a duty to adopt fair procedures and to implement those procedures with reasonable care in the investigation and adjudication of the allegations against John.”
This duty of care extended to the University, but the court found it did not extend to the trustees, employees, and agents of the University. In Colorado, whether a duty of care can be applied is a balancing test, which looks at the cost of imposing the duty on the individual defendants with the opportunity to allay those costs. This duty had already been imposed on DU, so the individual defendants did not owe Plaintiff John Doe a duty of care.
Ultimately, this case creates a new relationship between a college and its students. Information provided to the student, whether in a policy, handbook, or other information can be used to create a contract if promises are made in the information. No matter what the purpose, in Colorado, if a university tells a student that he or she has certain rights, problems will be handled this way, and treatment will be fair, then the university may be bound by those conditions. As this case clearly shows, failure to follow the polices, procedures and promises now creates liability for the college in the future.
