THE TITLE IX CONTRACT QUAGMIRE.

• Date: 01 March 2020
• Author: Freeman, Bryce

TABLE OF CONTENTS INTRODUCTION I. TITLE IX GRIEVANCE PROCEDURES AND RELATED LAWSUITS A. The Statutory and Regulatory Background of Title IX Grievance Procedures B. Causes of Action Available to Challenge Grievance Procedure Outcomes 1. Due Process 2. Title IX Statutory Claims 3. Breach of Contract II. THE JURISDICTIONAL SPLIT ON STUDENT HANDBOOKS AS CONTRACTS A. Considerations for Evaluating the Contractual Liability of Private Universities B. Four Models of Student Handbooks as Contracts 1. The Massachusetts Model 2. The Virginia Model 3. The New York Model 4. The Pennsylvania Model CONCLUSION INTRODUCTION

Few legal questions are as important, sensitive, and controversial as what procedures colleges and universities should use to adjudicate complaints of campus sexual assault. Studies have found that nearly one out of four female undergraduate students experience sexual assault. (1) Most incidents go unreported. (2) The reasons for not reporting include a sense that the conduct was not serious enough to report, feelings of embarrassment, and concern that nothing will be done about the misconduct. (3) When survivors do report, Title IX interpretive guidance requires universities to investigate the complaint and respond through conducting "grievance procedures." (4) Since the Department of Education's 2011 "Dear Colleague" Letter, (5) critics have charged that the procedures at these "quasi-judicial" hearings are biased against the accused. (6) Soon after taking office, the Trump Administration rescinded the "Dear Colleague" Letter and initiated a rulemaking process (7) that has also been heavily criticized. (8) Almost ten years after the "Dear Colleague Letter," the public continues to struggle to answer the critical question of what procedures universities are obligated to afford to survivors and those accused of sexual misconduct.

Beneath the surface of this difficult question lies another: Are private university students in contract with their universities, and if so, what are the terms of the contractual relationship? When universities discipline students accused of sexual misconduct, those students often seek judicial review. (9) All students may sue under Title IX statutory remedies, which require a finding of gender bias, (10) and public university students may sue under the Due Process Clause. (11) Private university students, though, generally cannot sue under due process and instead pursue breach of contract claims. (12) These students allege that they are in contract with their private educational institutions and then point to the terms of their student handbooks, as well as notions of "fundamental fairness," as the source of a private university's contractual obligations in Title IX investigations and hearings. (13) The question of what private universities owe their students is not new, (14) but the blend of public and private law that is private universities' contractual liability in the Title IX context is yet unexplored.

This Comment proposes a framework for understanding the contractual liability of private universities and uses the recent surge of Title IX litigation as the basis for this inquiry. Though not comprehensive, the framework is a heuristic for appreciating the range of judicial approaches. It avoids the difficult questions of what procedures and standards should be employed, leaving that problem to other commentators, practitioners, and affected students. Instead, this Comment analyzes how courts have--or have not--stretched the boundaries of contract law in a way that provides private university students with equal access to judicial review of their institution's sexual misconduct disciplinary actions. While some courts applying contract law have adhered closely to the fundamental contract law principles one might learn in a first-year contracts course, (15) others have openly departed from these principles to facilitate equitable opportunity for judicial review between public and private university students. (16) Still others land somewhere in the middle, using contract law to create a door to judicial review for students, but leaving the key with the institution itself. (17)

Part I explores the legal landscape governing Title IX grievance procedures, the causes of action plaintiffs employ against their universities, and the existing literature on the contractual liability of private universities. Part II analyzes four approaches to contractual liability courts have taken in the Title IX context. The Comment concludes by highlighting the approach taken by courts applying Pennsylvania law, which strikes the best balance between providing private universities with equitable access to judicial review while still adhering to ordinary principles of contract law.

1. TITLE IX GRIEVANCE PROCEDURES AND RELATED LAWSUITS

   The U.S. Department of Education's Office for Civil Rights (OCR) has worked to reduce the incidence of sexual misconduct on college campuses by encouraging institutions to respond with disciplinary action. (18) Ensuring that reported instances of misconduct are taken seriously while also providing some protections for the accused is a difficult task--one that OCR has grappled with for decades. (19) Survivors deserve a system that responds to their complaints without causing undue stress, (20) and the accused are entitled to some minimum safeguards for their constitutionally protected interests in completing their education. (21)

   The debate over how to balance these interests often sounds in due process. While plaintiffs' arguments will be referred to as "due process" claims for convenience, in reality there are several causes of action available to such plaintiffs, including statutory causes of action and breach of contract. Yet these claims are not available to all plaintiffs and vary considerably in terms of what plaintiffs must plead to survive motions to dismiss. This Part first situates the recent flurry of contractual claims within the statutes, regulations, and guidance documents shaping disciplinary procedures for students. It then discusses the causes of action available to those seeking to challenge the results of these disciplinary procedures, including due process, statutory causes of action, and breach of contract. This discussion reveals that Department of Education efforts to combat campus sexual assault have reignited a debate within courts about whether and to what extent private universities are subject to contract claims from their students.

   1. The Statutory and Regulatory Background of Title IX Grievance Procedures

      The complex web of campus sexual assault adjudication began in 1972 with Title IX of the Education Amendments. (22) The statute provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." (23) This mandate has enormous reach, encompassing any public or private school for any age group, including institutions of higher education. (24) Under Title IX's effectuating regulations, institutions must "adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints" of actions in violation of Title IX. (25) When OCR finds an institution has discriminated on the basis of sex, thereby violating Title IX, the institution must take "remedial action." (26)

      While OCR has published guidance on how universities should take "remedial action" regarding peer-on-peer sexual harassment since at least the mid-1990s, (27) OCR's 2011 guidance marked a crucial turning point in how grievance procedures were viewed by the public and courts. In its April 2011 "Dear Colleague" Letter (DCL), OCR discussed both preventative and remedial measures to address campus sexual misconduct that would allow universities to demonstrate compliance with Title IX. (28) Core to this effort was requiring schools to resolve complaints of sexual harassment in a "prompt and equitable" manner, which may include disciplinary action against the accused student, accommodations for the complainant, and remedies for the broader student population. (29) While the DCL permitted a wide amount of variance in the structure of grievance procedures from school to school, it noted that compliance with Title IX requires "[a]dequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence." (30) Failure to comply with the Title IX "prompt and equitable" requirement may result in the loss of federal funds. (31)

      Much of the scholarly attention given to the DCL has focused on whether the protections OCR expects universities to provide to accused students satisfy due process. Generally speaking, due process requires government actors to provide individuals notice of state actions against them and an opportunity for a fair hearing. (32) In the criminal context, the Court has held that due process requires both proof beyond a reasonable doubt (33) and the ability for defendants to cross-examine their accusers. (34) OCR made clear in the DCL, however, that it expected universities to use a preponderance standard to reach findings of "responsibility" (35) and to bar the opportunity for the accused to cross-examine complainants. (36) Because a finding of responsibility can result in disciplinary action up to expulsion and be permanently reflected on a student's transcript, OCR's expectations for grievance procedures and satisfaction of due process requirements have been subject to considerable controversy. (37)

      While scholarly attention has overwhelmingly focused on the question of grievance procedures as fair hearings, this Comment is primarily concerned with the effects of the DCL's notice provisions. (38) The DCL included recommendations to universities on how exactly to...