Enforcing Campus Due Process Through Contracts Law and Addressing Vagueness Claims

I happened upon these two different cases that seem evidence of a trend. Perhaps the trend is old, but I had not spotted it before. In the COVID cases, students sought recovery of tuition and fees based on their universities’ alleged breach of a promise to provide in-person education. There were also claims for unjust enrichment. Sometimes the courts recognized a contract; sometimes they didn’t.

In the cases discussed below, the courts use a contractual frame to protect the due process of right of students subject to discipline for alleged sexual misconduct. In the eyes of these courts, there is no question that the students’ alleged due-process rights derive from certain representations the universities made through handbooks and manuals. The courts do not speak of due process. The only questions are whether contractual promises have been made and whether the promises are too vague to be enforced. 

Vagueness cases are hard to come by and so these cases could be useful teaching vehicles. Unfortunately, the cases are about campus rape and sexual assault, so there is a danger that class discussion will trigger responses unrelated to the legal issues at hand. That’s too bad, because the underlying facts really don’t matter for the purposes of testing the legal doctrine of vagueness. I will keep on the look-out for students dismissed for less sensitive reasons, like plagiarism (if that still exists in the age of AI).

There was an interesting case, Doe v. Emory, reported on by Meghan Morris here. The case involved two students who were first rewarded for developing a new AI study tool and then disciplined (with shocking severity) when the school determined that the tool could be used for cheating. Unfortunately, for our purposes, the case settled before it generated any legal opinions. The complaint is here.

The University of Denver expelled plaintiff John Doe (Plaintiff) for alleged non-consensual sexual contact with student Jane Roe. He sued the University, alleging breach of contract, breach of the duty of good faith and fair dealing, promissory estoppel, and negligence. In University of Denver v. Doe, the Colorado Supreme Court found that there remained genuine disputes of material fact as to (1) whether DU adhered to the specific investigation provisions in the Office of Equal Opportunity (OEO) Procedures and, by extension, (2) whether DU fulfilled its promise of a “thorough, impartial, and fair” investigation. Accordingly, it allowed Plaintiff’s breach of contract claims to proceed while dismissing his other claims.

Plaintiff and Ms. Roe have differing accounts. Both acknowledge being drunk. Both acknowledge that they had intercourse. They dispute whether Ms. Roe consented. Ms Roe filed a complaint with DU’s OEO, and the OEO then  followed procedures for investigation dictated by state and federal law. That process resulted in a report finding that Plaintiff more likely than not had engaged in nonconsensual sexual contact with Ms. Roe. The penalty was dismissal. He appealed, alleging that the investigators were biased and that the penalty was disproportionate.  His appeal was dismissed, and the  report became a final decision.

The trial court had dismissed Plaintiff’s breach of contract claim, finding that the University’s promise of a “thorough, impartial, and fair” investigation was too vague to constitute a contractual promise. The Supreme Court disagreed. Viewed in the context of the University’s detailed specifications of its investigative procedures, the language was sufficiently definite to constitute a legally binding contractual obligation.

The trial court had also concluded that Plaintiff’s allegations that the OEO procedures were faulty were either demonstrably false or immaterial. Here again, the Supreme Court disagreed. The problems that Plaintiff identified with the OEO procedures were sufficiently weighty to constitute genuine issues of material fact, precluding summary judgment on the breach of contract claims.

One Justice dissented from the denial of summary judgment as to the breach of contract claims.

The Eleventh Circuit reached a very similar conclusion in Doe v. Emory University. The case featured an ugly claim by Emory that its unilateral right to amend its implied contract with its students rendered that contract void for vagueness. Again the facts involve an alleged sexual assault.

The Court first held that the Plaintiff had adequately alleged an implied contract based on Emory’s Sexual Misconduct Manual. It noted the accuracy of Emory’s claim that, as a matter of Georgia law, “if any term of [a] contract is amendable at the will of [one party], the entire contract [is] void for vagueness because there could be no assent of the parties to the terms of the contract.” Emory also noted that it had amended its Sexual Misconduct Manual seventeen times between 2007 and 2020. However, the Court noted that most of the changes were trivial, such as updating the names of the relevant Emory officials. Moreover, the Court rejected Emory’s claim that the changes were made without student input and thus rejected Emory’s argument that it had “absolute right to amend its policy that would render it effectively illusory and preclude the parties’ mutual assent.” The Court thus reversed the District Court’s dismissal of Plaintiff’s claim and remanded for further proceedings.