THIRD CIRCUIT: Private Universities That Promise Basic Fairness Must Provide Hearing, X-Examination To Students Accused
In a sweeping, decisive victory for procedural fairness on campus, the U.S. Court of Appeals for the Third Circuit reversed the dismissal of a lawsuit brought by a student expelled for sexual misconduct from the University of the Sciences in Philadelphia. The court held not only that the university may have discriminated against the accused student on the basis of sex in violation of Title IX, but also that the school’s promises of fairness obligated it to provide the student with a live hearing and the opportunity to cross-examine witnesses, including his accusers. The court’s decision has broad significance for students’ rights as it will help ensure that private colleges and universities keep the promises they make to students.
The court took a remarkably straightforward, common-sense view of Doe’s breach of contract claim. FIRE has long argued that private schools must be required to keep their own promises, including promises of free speech and procedural fairness — and that if they fail to do so, they should be held liable for breach of contract. Recently, however, there have been some deeply frustrating court decisions on this question holding that general promises of fairness are too vague to be contractually enforceable. The Third Circuit’s decision, in contrast, breathes life into the promises that schools make in order to attract talented students and faculty, and ensures that they can’t engage in a bait-and-switch once those students and faculty are on campus.
It is difficult to overstate the significance of this holding. Courts around the country have increasingly been recognizing that due process at public universities requires a hearing with the right to cross-examination. And the Department of Education, in its new Title IX regulations, has determined that the lack of a hearing and cross-examination violates Title IX’s requirement of an equitable process. Now, for the first time, a federal appellate court has held that a private university’s contractual guarantee of a fair and equitable process also requires these critical procedural protections.
Critically, the court also held that the traditional judicial deference given to schools’ decisions around academic misconduct is inappropriate in the context of schools adjudicating quasi-criminal allegations.
With this decision, universities in the Third Circuit — which includes every school in Pennsylvania, New Jersey, and Delaware — must live up to their promises of procedural fairness by providing accused students with meaningful due process. The court’s decision also has important implications for free speech cases at private universities in the Third Circuit, because it gives teeth to the kinds of promises schools so often use in their handbooks and policy language.
FIRE is encouraged that the Third Circuit is formally recognizing principles that we have advocated for since the inception of our organization: That students must be treated with basic fairness and that universities must keep their promises.
thefire.org-Samantha Harris
