John Doe v. University of the Sciences

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 19-2966
______________

JOHN DOE,
Appellant

v.

UNIVERSITY OF THE SCIENCES
____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-19-cv-00358)
District Judge: Honorable Juan R. Sánchez
____________

Argued: March 31, 2020

Before: RESTREPO, PORTER, and MATEY,
Circuit Judges.

(Filed: May 29, 2020)
____________

Zainab K. Ali
Riley H. Ross III
MINCEY FITZPATRICK ROSS
1500 John F. Kenney Boulevard
Two Penn Center, Suite 1525
Philadelphia, PA 19102
Joshua A. Engel [ARGUED]
ENGEL & MARTIN
4660 Duke Drive, Suite 101
Mason, OH 45040

Counsel for Plaintiff-Appellant John Doe

Leslie M. Greenspan [ARGUED]
Joe H. Tucker, Jr.
TUCKER LAW GROUP
Ten Penn Center
1801 Market Street, Suite 2500
Philadelphia, PA 19103

Counsel for Defendant-Appellee University of
the Sciences

David A. Super
Nancy Chi Cantalupo
GEORGETOWN UNIVERSITY LAW CENTER
600 New Jersey Avenue, N.W., Suite 312
Washington, DC 20001

Counsel for Amicus/Appellee Law Professors

____________

OPINION OF THE COURT
____________

PORTER, Circuit Judge.

The University of the Sciences (“USciences”) is a
private college in Philadelphia, Pennsylvania. John Doe, a
student at USciences, had completed nearly all the coursework
required to earn a degree in biomedical science. Before Doe
could finish his degree, two female students accused him of
violating USciences’s Sexual Misconduct Policy (the
“Policy”). After investigating Doe, USciences concluded that
he violated the Policy and expelled him.

2
 Doe filed a lawsuit in the District Court alleging that
USciences was improperly motivated by sex when it
investigated and enforced the Policy against him. Doe also
asserted that USciences breached its contract with him by
failing to provide him the fairness promised to students under
the Policy. The District Court dismissed Doe’s complaint.

Doe’s complaint contains plausible allegations
supporting both claims. So we will reverse the District Court’s
order dismissing Doe’s complaint.

I

A

USciences distributes to its students a series of policies
governing disciplinary issues. These documents include the
Student Handbook and the Policy, which USciences considers
“companion documents.” App. 191. The Student Handbook
promises that USciences will “[e]ngag[e] in investigative
inquiry and resolution of reports that are adequate, reliable,
impartial, prompt, fair and equitable[.]” App. 149 (emphasis
added). And the Student Handbook states that USciences will
“[s]upport[ ] complainants and respondents equally[.]” Id.

The Policy specifically addresses allegations of sexual
misconduct. Like the Student Handbook, the Policy makes the
same promises about providing fairness to accused students.
The Policy also includes substantive rules governing
prohibited misconduct and procedures that outline the process
for investigating and adjudicating alleged violations of the
Policy.

1

The Policy forbids students from engaging in
“prohibited conduct.” App. 123. One form of prohibited
conduct is sexual assault, which “consists of sexual contact
and/or sexual intercourse that occurs without affirmative
consent.” Id. A student gives affirmative consent “through the
demonstration of clear and coherent words or actions[ ] . . .
indicat[ing] permission to engage in mutually agreed-upon
sexual activity.” App. 124.

3
 The Policy states that certain circumstances may
undermine a student’s ability to give affirmative consent. For
example, “[a]ffirmative consent cannot be gained by taking
advantage of the incapacitation of another, where the person
initiating sexual activity knew or reasonably should have
known that the other was incapacitated.” Id. Incapacitation
occurs when “a person lacks the ability to make informed,
rational judgments about whether or not to engage in sexual
activity.” Id. A student may become “incapacitated as a result
of the consumption of alcohol or other drugs[.]” Id.

The Policy also forbids students from revealing
confidential information after a formal investigation begins.
The “consequences” for violating the confidentiality provision
“may include suspension or dismissal from USciences, being
barred from residing on campus, or being prohibited from
participating in extracurricular activities, including varsity
athletics.” App. 142.

2

USciences “deem[s itself] to have had notice [of alleged
sexual misconduct] if a responsible employee knew, or in the
exercise of reasonable care should have known, about [sexual]
misconduct.” App. 128. A “responsible employee” is defined
as “any employee who is required to share all reports of sexual
misconduct with [USciences] administrative officials (i.e.,
Title IX Coordinator/Deputy Coordinator).” Id. The Title IX
Coordinator is responsible for the “[o]versight of a prompt,
fair, [and] equitable investigation and resolution process for
reports of prohibited conduct at [USciences].” App. 122.

If the Title IX Coordinator decides to launch a formal
investigation into alleged sexual misconduct, USciences
employs the so-called “single-investigator model.” Under that
model, USciences hires an outside attorney to serve as an
investigator. USciences then tasks the investigator with
interviewing witnesses, gathering evidence, and determining
the accused’s culpability. USciences, however, does not offer
the accused student, or the “respondent,” a chance to cross-
examine witnesses or the opportunity to participate in any sort
of live, adversarial hearing in which he or she may put on a
defense or otherwise challenge the investigator’s findings.

4
 If the investigator determines that the respondent
violated the Policy, he or she will not make a recommendation
on any sanctions. Instead, a three-person panel appointed by
the Title IX Coordinator—the Title IX Administrative Panel—
will issue a letter detailing the sanctions imposed on the
respondent.

The Policy permits certain appeals. For instance, a
student may appeal if he “believes the decision regarding
responsibility was in error[.]” App. 141. If the respondent
timely files his appeal, the Title IX Coordinator “will convene
a Title IX Appeals Panel,” which is “a [three-person] panel of
appropriately trained faculty and staff[.]” Id. The Title IX
Appeals Panel “may request clarification on the facts from the
investigator[ ].” Id. “If no merit is found,” the panel “will
notify the Title IX Coordinator that the [a]ppeal will not move
forward.” Id.

B

Two female students at USciences, Jane Roe 1 and Jane
Roe 2, filed formal complaints alleging that Doe committed
sexual misconduct in violation of the Policy. As for Doe’s
allegations about his encounter with Roe 1, she and Doe knew
each other for more than a year as of the fall 2017 semester. At
the time, Roe 1 had been in an “open relationship” with a
student at a different university. App. 97. On November 3,
2017, Roe 1 and Doe discussed over Snapchat her desire for
someone “to provide physical affection in the absence of her
boyfriend.” Id. Doe invited Roe 1 to his home, and she
accepted his invitation. In doing so, Roe 1 understood that they
may engage in sexual activity.

Roe 1 arrived at Doe’s house between 11:00 p.m. and
12:00 a.m. Doe alleges that they engaged in consensual sexual
intercourse and then fell asleep in Doe’s bed. His complaint
also states that, during the night, Roe 1 and Doe engaged in
sexual intercourse at least two more times. Nine months later,
in August 2018, Roe 1 and Witness 1, the president of Roe 1’s
sorority, reported to USciences that Doe sexually assaulted
Roe 1. Specifically, Roe 1 alleged that all their sexual
encounters on that night were consensual except for their last
one, which she claimed was not consensual because Doe did
not use a condom.
5
 As for Doe’s allegations about his encounter with Roe
2, she and Doe had a “friends with benefits” relationship
throughout the fall 2017 semester. App. 99. Over that time,
they had consensual sexual intercourse about ten times,
including after parties. At the beginning of the spring 2018
semester, Doe and his roommates hosted a party. Doe alleges
that he asked Roe 2 if she wanted to come to the party and then
spend the night with him; Roe 2 agreed. Roe 2 attended the
party, and both Doe and Roe 2 consumed alcohol. Specifically,
Roe 2 recalls drinking “three or four” cups of “juice,” App.
212, a cocktail made of vodka and mixers. Doe recalls having
three or four cups of beer and a cup of “juice.” App. 251.

During the party, Roe 2 was elbowed on the dance floor,
fell, and bloodied her nose. Doe tried to assist her. Afterwards,
Doe asked Roe 2 if she wanted to lay down in his room and
spend the night. Roe 2 agreed. Doe alleges that he and Roe 2
then went to his room, where they soon had sexual intercourse.
Doe alleges that Roe 2 was “an active participant” and “fully
engaged the entire time.” App. 100. Seven months later, in
August 2018, Roe 2 reported that Doe had sexually assaulted
her during the party. She alleged that she passed out in Doe’s
bedroom and woke up to him having nonconsensual sexual
intercourse with her.

C

In his complaint, Doe alleges that USciences “permitted
and encouraged” Roe 1 and Witness 1 to disclose confidential
information about Roe 1’s complaint “to find other women
willing to make a complaint against” him. App. 98. Doe further
alleges that, after Roe 1 reported him to USciences, she and
Witness 1 “convinced” their sorority sister, Roe 2, to file her
own complaint against him. App. 98–99. Within days, Roe 2
reported that Doe committed sexual assault during their
January 2018 “hookup.” App. 195.

A member of the Title IX Coordinator’s team
determined that if Roe 1’s and Roe 2’s allegations were true,
then Doe would have violated the Policy. For that reason, the
Title IX Coordinator gave Doe a Notice of Sexual Misconduct
Investigation, which notified him that Roe 1 and Roe 2 had
accused him of sexual assault. According to Doe’s complaint,
“the Notice did not provide [Doe] with any specifics about the
6
allegations against him despite the fact that [USciences]
possessed specific details about the allegations against [him].”
App. 101.

USciences retained a Philadelphia attorney to serve as
the investigator. The investigator interviewed Roe 1, Roe 2,
Doe, and ten witnesses. She also conducted follow-up
interviews with Roe 1, Roe 2, and Doe. After completing her
investigation, the investigator credited the allegations made by
Roe 1 and Roe 2 and concluded that Doe violated the Policy
by engaging in sexual intercourse without Roe 1’s or Roe 2’s
affirmative consent. A Title IX Administrative Panel expelled
Doe. Doe appealed to a Title IX Appeals Panel, but it denied
his appeal.

Doe then sued USciences. He alleges that USciences
violated Title IX and breached its contract with him. The
District Court dismissed Doe’s complaint. He timely appealed.

II

The District Court had subject-matter jurisdiction over
Doe’s case under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction over Doe’s appeal under 28 U.S.C. § 1291. And
we exercise de novo review over the grant of a motion to
dismiss. Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 n.2
(3d Cir. 2016).

To survive a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must
set forth enough factual allegations to “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A facially plausible claim is one that
permits a reasonable inference that the defendant is liable for
the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). When assessing the merits of a Rule 12(b)(6) motion,
we accept as true all factual allegations in the complaint and
view those facts in the light most favorable to the non-moving
party. Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64
(3d Cir. 2008).

7
 “To decide a motion to dismiss, courts generally
consider only the allegations contained in the complaint,
exhibits attached to the complaint[,] and matters of public
record.” Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). In addition, “a
document integral to or explicitly relied upon in the complaint
may be considered without converting the motion to dismiss
into one for summary judgment.” In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)
(internal quotation marks, citation, and emphasis omitted).
Because the investigator’s report, which USciences attached to
its motion to dismiss, is integral to Doe’s complaint, we may
consider the report.

III

Title IX of the Education Amendments of 1972 states
that “[n]o person . . . 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 [f]ederal financial assistance[.]” 20 U.S.C.
§ 1681(a). “Because Title IX prohibits . . . subjecting a person
to discrimination on account of sex, it is understood to bar the
imposition of university discipline [when sex] is a motivating
factor in the decision to discipline.” Doe v. Columbia Univ.,
831 F.3d 46, 53 (2d Cir. 2016) (internal quotation marks,
alteration, and citation omitted). No one disputes that
USciences receives federal financial assistance under Title IX
and that, by expelling Doe, it “excluded [him] from
participation in [or] denied [him] the benefits of . . . [an]
education program.” See 20 U.S.C. § 1681(a).

Some Courts of Appeals have examined Title IX claims
using the doctrinal framework announced by the Second
Circuit in Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994).1
Yusuf recognized two theories under which one may allege a

1
See, e.g., Doe v. Valencia Coll., 903 F.3d 1220, 1236 (11th
Cir. 2018); Doe v. Baum, 903 F.3d 575, 585 (6th Cir. 2018);
Doe v. Trs. of Boston Coll., 892 F.3d 67, 90–91 (1st Cir. 2018);
Plummer v. Univ. of Houston, 860 F.3d 767, 777 (5th Cir.
2017); cf. Austin v. Univ. of Oregon, 925 F.3d 1133, 1138 (9th
Cir. 2019).
8
Title IX violation: erroneous outcome and selective
enforcement. Id. at 715. The Sixth Circuit added two additional
theories: deliberate indifference and archaic assumptions. Doe
v. Miami Univ., 882 F.3d 579, 589 (6th Cir. 2018). In Doe v.
Purdue University, 928 F.3d 652 (7th Cir. 2019), the Seventh
Circuit observed that “[a]ll of these [theories] simply describe
ways in which a plaintiff might show that sex was a motivating
factor in a university’s decision to discipline a student.” Id. at
667. Ultimately, the Seventh Circuit “ask[ed] the question
more directly: do the alleged facts, if true, raise a plausible
inference that the university discriminated against [the student]
‘on the basis of sex’?” Id. at 667–68.

We agree with the Seventh Circuit and “see no need to
superimpose doctrinal tests on the [Title IX] statute.” See id. at
667. Thus, we adopt the Seventh Circuit’s straightforward
pleading standard and hold that, to state a claim under Title IX,
the alleged facts, if true, must support a plausible inference that
a federally-funded college or university discriminated against
a person on the basis of sex. Although parties are free to
characterize their claims however they wish, this standard
hews most closely to the text of Title IX. See 20 U.S.C.
§ 1681(a).

Doe’s complaint contains plausible allegations
supporting the reasonable inference that USciences
discriminated against him on account of his sex. His
allegations fit into two categories. First, Doe alleges that
USciences yielded to external pressure when implementing
and enforcing the Policy. Second, he alleges that sex was a
motivating factor in USciences’s investigation and decision to
impose discipline.

To begin, Doe plausibly contends that USciences, in its
implementation and enforcement of the Policy, succumbed to
pressure from the federal government. Doe alleges that, after
the United States Department of Education (“DoEd”) issued

9
the 2011 Dear Colleague Letter, 2 USciences “limited
procedural protections afforded to male students like [Doe] in
sexual misconduct cases.” App. 96. He further alleges that
USciences, “encouraged by federal officials, has instituted
solutions to sexual violence against women that abrogate the
civil rights of men and treat men differently than women.”
App. 109.

The 2011 Dear Colleague Letter “ushered in a more
rigorous approach to campus sexual misconduct allegations.”
Purdue Univ., 928 F.3d at 668. Three of our sister circuits have
found that alleged university overreaction to DoEd or other
public pressure is relevant to alleging a plausible Title IX
discrimination claim. See id. at 668–69; Doe v. Baum, 903 F.3d
575, 586 (6th Cir. 2018); Miami Univ., 882 F.3d at 594;
Columbia Univ., 831 F.3d at 58. Like our colleagues on the
Sixth and Seventh Circuits, we also recognize that allegations
about pressure from DoEd and the 2011 Dear Colleague Letter
cannot alone support a plausible claim of Title IX sex
discrimination. See Purdue Univ., 928 F.3d at 669 (“That said,
the letter, standing alone, is obviously not enough to get [the
plaintiff] over the plausibility line.” (citation omitted)); Baum,
903 F.3d at 586 (noting that pressure from DoEd “alone is not
enough to state a claim that the university acted with bias in
this particular case”).

Doe also claims that USciences was improperly
motivated by sex when it investigated him but chose not to
investigate three female students who allegedly violated the
Policy: Roe 2, Roe 1, and Witness 1. As for Roe 2, Doe alleges
that USciences “[e]ngaged in selective investigation and
enforcement of [its] policies by failing to consider [Doe’s]
alcohol consumption and whether [Roe] 2 should have been
charged with violations of [the Policy] if [Doe] was intoxicated
when they had sex[.]” App. 104. According to the
investigator’s report, Roe 2 and Doe consumed between three

2
See United States Department of Education, Office of the
Assistant Secretary for Civil Rights, Dear Colleague Letter
(2011),
https:/www2.ed.gov/print/about/offices/list/ocr/letters/colleag
ue-201104.html.
10
and five drinks each. 3 Doe further alleges that “[a]lthough both
[he] and [Roe] 2 had been drinking [during the party],
[USciences] identified [Doe] as the initiator of sexual activity,
notwithstanding the comparable intoxication of both
participants.” App. 110.4

Drawing all reasonable inferences in the light most
favorable to Doe, as we must at this stage, it is plausible that,
as he alleges, sex was a motivating factor in USciences’s
investigation and decision to expel him. Under the Policy,
USciences considers itself to have notice of potential sexual
misconduct whenever a responsible employee knows or
reasonably should know about the misconduct. See App. 133,
134, 137. And even though USciences never investigated Roe
2, Doe plausibly alleges that, at the latest, USciences had notice
that she may have violated the Policy when the investigator
submitted her report to the Title IX coordinator. See Miami
Univ., 882 F.3d at 596.

3
The District Court erred when it noted that it was “skeptical”
of Doe’s claim “because it appears to flow from a faulty
premise—namely, the consumption of any alcohol renders a
person unable to give affirmative consent under the” Policy.
App. 16. Doe’s argument does not “flow from a faulty
premise,” but from his allegations and the reasonable
inferences that can be drawn from them. By indulging its
skepticism, the District Court misapplied the familiar standard
that governs motions to dismiss under Rule 12(b)(6). To the
contrary, the District Court should have viewed the allegations
in Doe’s complaint in the light most favorable to him and
drawn all reasonable inferences from those allegations in his
favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Umland
v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
4
Doe initially told the investigator that his sexual encounter
with Roe 2 was mutually consensual. See, e.g., App. 252
(“[Doe] state[d] that [Roe 2] fully participated in the sex and
he had no doubt about her consent.”). But under the Policy,
Doe’s allegation that he and Roe 2 were comparably
intoxicated undermined his ability to give affirmative consent,
just as it impaired hers. See Doe v. Miami Univ., 882 F.3d 579,
596 (6th Cir. 2018).
11
 Doe also contends that USciences was motivated by sex
when it chose not to investigate Roe 1 and Witness 1—both
female students—despite having notice that both allegedly
violated the Policy. In his complaint, Doe alleges that Roe 1
and Witness 1 breached the Policy’s confidentiality provision
by colluding with each other about the investigation. Under the
Policy, “[i]f it is determined that anyone involved in a report
or complaint either as a complainant, respondent[,] or
witness[ ] colluded or shared information with another,
sanctions may be imposed by USciences.” App. 142.
According to Doe’s complaint, Roe 1 and Witness 1
“disclose[d] information about [Roe] 1’s complaint . . . in an
effort to find other women willing to make a complaint
against” him. App. 98. And Doe alleges that USciences knew
that Roe 1 and Witness 1 violated the Policy because
USciences “permitted and encouraged” them to disclose
confidential information in order to recruit Roe 2 to file a
complaint against him. Id.

Doe plausibly alleges that USciences enforced the
Policy against him alone because of his sex. In Baum, the court
found that the plaintiff stated a viable claim because, “[w]hen
viewing th[e] evidence in the light most favorable to [the
accused student], . . . one plausible explanation is that the
[b]oard discredited all males, including [the accused student],
and credited all females, including [the accuser], because of
[sex] bias.” 903 F.3d at 586. Doe’s allegations of sex-
motivated investigation and enforcement are like the plausible
allegations in Baum. And when Doe’s allegations about
selective investigation and enforcement are combined with his
allegations related to pressure applied by the 2011 Dear
Colleague Letter, we conclude that he states a plausible claim
of sex discrimination. See Purdue, 928 F.3d at 668–70; Baum,
903 F.3d at 586–87. For these reasons, we will reverse the
District Court’s order dismissing Doe’s Title IX claim.

12
 IV

Next, we turn to Doe’s breach-of-contract claim. Under
Pennsylvania law, 5 “three elements are necessary to plead a
cause of action for breach of contract: (1) the existence of a
contract, including its essential terms[;] (2) a breach of the
contract; and[ ] (3) resultant damages.” Meyer, Darragh,
Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone
Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016) (citation
omitted). The parties do not dispute that the relationship
between USciences and Doe is contractual. See Barker v. Trs.
of Bryn Mawr Coll., 122 A. 220, 221 (Pa. 1923). Likewise,
USciences does not dispute that, if it breached its contract with
Doe, that breach would have caused damages. Thus, we focus
our analysis on whether USciences breached a duty imposed
by its contract with Doe. As explained below, we conclude that
Doe states a plausible breach-of-contract claim.

A

In the Student Handbook, USciences promises all
students that it will “[e]ngag[e] in investigative inquiry and
resolution of reports that are adequate, reliable, impartial,
prompt, fair and equitable[.]” App. 149. USciences also
promises in the Student Handbook to “[s]upport[ ]
complainants and respondents equally[.]” Id. USciences makes
these same promises in the companion Policy. App. 168. The
Policy also tasks the Title IX Coordinator with the
responsibility of overseeing “a prompt, fair, [and] equitable
investigation and resolution process for reports of prohibited
conduct at [USciences].” App. 122. And the Student Handbook
states that “[p]rocedures and rights in student conduct
[proceedings] are conducted with fairness to all, but do not
include all of the same protections afforded by the courts.”
App. 150.

5
The parties assume that Pennsylvania contract-interpretation
principles govern their contract, and we agree. See, e.g., In re
Remicade (Director Purchaser) Antitrust Litig., 938 F.3d 515,
523 n.5 (3d Cir. 2019) (interpreting a collective bargaining
agreement under New Jersey law because the parties assumed
New Jersey law applied).
13
 USciences contends that the fairness promised in the
Student Handbook and the Policy consists of the procedures
provided by those documents. USciences essentially argues
that because it provided some procedural protections in the
Policy, Doe was treated fairly. We disagree. “[I]n determining
the intent of the contracting parties, all provisions in the
agreement will be construed together and each will be given
effect.” LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d
639, 647–48 (Pa. 2009) (emphasis added) (citation omitted).
Nowhere in either the Policy or the Student Handbook is
fairness defined, let alone explicitly defined as the procedural
protections contained in the Student Handbook and the Policy.
Because the fairness promised in the Student Handbook and
the Policy must “be given effect,” see id., we reject
USciences’s circular argument.

B

Given that neither the Student Handbook nor the Policy
defines fairness, we must construe that promise as a matter of
contract interpretation. “When interpreting a contract, the
court’s paramount goal is to ascertain and give effect to the
intent of the parties as reasonably manifested by the language
of their written agreement.” Halpin v. LaSalle Univ., 639 A.2d
37, 39 (Pa. Super. Ct. 1994) (citations omitted). When “the
contract evidences care in its preparation, it will be presumed
that [the contract’s] words were employed deliberately and
with intention. In determining what the parties intended by
their contract, the law must look to what they clearly expressed.
Courts in interpreting a contract do not assume that its
language was chosen carelessly.” Steuart v. McChesney, 444
A.2d 659, 662 (Pa. 1982) (internal quotation marks and
citations omitted).

The plain meaning of the word “fair” is “just, unbiased,
equitable, legitimate, in accordance with rules.” See Fair, The
Concise Oxford Dictionary 347 (7th ed. 1982). Here, the
fairness promised by the Student Handbook and the Policy
relates to procedural protections for students accused of sexual
misconduct, and Doe alleges that he did not receive a “fair and
impartial hearing.” App. 114. In this context, a “fair hearing”
or “fair process” “is a term of art used to describe a ‘judicial or
administrative hearing conducted in accordance with due

14
process.’” Wojchowski v. Daines, 498 F.3d 99, 102 n.5 (2d Cir.
2007) (quoting Fair hearing, Black’s Law Dictionary 738 (8th
ed. 1999)).

Doe’s allegations of unfairness arise in a breach-of-
contract claim between two private parties—a private
university and one of its students. Under those circumstances,
courts are sometimes chary about reviewing too closely the
manner in which a private university chooses to investigate and
discipline its students. That is especially appropriate for
matters uniquely within the institution’s province, such as
academic integrity or faculty development and discipline. See,
e.g., Reardon v. Allegheny Coll., 926 A.2d 477, 480 n.2 (Pa.
Super. Ct. 2007) (discussing Murphy v. Duquesne Univ. of the
Holy Ghost, 777 A.2d 418 (Pa. 2001)); Boehm v. Univ. of Pa.
Sch. of Veterinary Med., 573 A.2d 575, 579–82 (Pa. Super. Ct.
1990).

This is not such a case. The investigation and fair
adjudication of alleged criminal activity like sexual assault is
not uniquely within the province of colleges and universities.
Yet accused “students have a substantial interest at stake when
it comes to school disciplinary hearings for sexual
misconduct,” Baum, 903 F.3d at 582, because the
consequences are potentially dire and permanent: “[a] finding
of responsibility for a sexual offense can have a ‘lasting
impact’ on a student’s personal life, in addition to his
‘educational and employment opportunities,’ especially when
the disciplinary action involves a long-term suspension.”
Miami Univ., 882 F.3d at 600 (citation omitted). Under the
Policy, for example, students accused of sexual misconduct
face grave consequences, including a suspension of up to two
years or—as in Doe’s case—permanent expulsion.

Moreover, this case and others like it differ from
garden-variety breach-of-contract disputes involving colleges
and universities because of the impact of the 2011 Dear
Colleague Letter and colleges’ and universities’ reactions to it.
Although the 2011 Dear Colleague Letter was provided as
“guidance,” DoEd backed it up by investigating alleged
noncompliance. An official from DoEd’s Office of Civil
Rights (“OCR”) warned that “[s]ome schools still are failing
their students by responding inadequately to sexual assaults on

15
campus. For those schools, my office [in DoEd] and [the]
Administration have made it clear that the time for delay is
over.” Purdue Univ., 928 F.3d at 668 (citing Examining Sexual
Assault on Campus, Focusing on Working to Ensure Student
Safety, Hearing Before the S. Comm. on Health, Educ., Labor,
and Pensions, 113th Cong. 7 (2014) (statement of Catherine
Lhamon, Assistant Secretary for Civil Rights, U.S. Dep’t of
Educ.)). That official cautioned that OCR was “committed to
using all its tools to ensure that all schools comply with [T]itle
IX so campuses will be safer for students across the country.”
Id. To ensure compliance, OCR put all of “a school’s federal
funding . . . at risk if [the school] could not show that it was
vigorously investigating and punishing sexual misconduct.”
Id.; see also Baum, 903 F.3d at 586; Miami Univ., 882 F.3d at
594. In another context, the Supreme Court has described the
total withdrawal of federal funding as “economic dragooning”
and “a gun to the head.” Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519, 581, 582 (2012). Similarly, for most colleges and
universities, the loss of federal funds would be ruinous. 6

Doe’s complaint focuses on this background. He alleges
that, after the 2011 Dear Colleague Letter issued, “educational
institutions like [USciences] limited procedural protections
afforded to . . . students like [Doe] in sexual misconduct cases.”
App. 96. And he claims that, although the 2011 Dear Colleague
Letter was rescinded before his investigation and expulsion,
USciences kept in place the policies enumerated in that letter.
In related contexts, Courts of Appeals have carefully
considered allegations of unfairness against colleges or
universities that were allegedly intimidated by the 2011 Dear
Colleague Letter and associated threats of litigation or DoEd

6
“Although the [2011 Dear Colleague Letter] was fashioned
as a guidance document that itself did not impose any new
binding legal obligations, OCR initiated investigations into
dozens of schools for noncompliance with Title IX, utilizing
interpretations and requirements specified only in the [2011
Dear Colleague Letter]. The explicit threat was (and remains)
to terminate all federal funding—upon which virtually all
institutions of higher education significantly rely—if schools
did not change their policies and disciplinary procedures to
comply.” Jacob Gersen & Jeannie Suk, The Sex Bureaucracy,
104 Calif. L. Rev. 881, 931–32 (2016).
16
scrutiny. See, e.g., Purdue Univ., 928 F.3d at 668; Baum, 903
F.3d at 586; Miami Univ., 882 F.3d at 594; cf. Columbia Univ.,
831 F.3d at 58 (recognizing plausibility of allegations that
university acted with bias because of public criticism of its
handling of Title IX claims). The backdrop of Doe’s complaint
informs our consideration of the fairness that USciences
promises students accused of sexual misconduct.

1

Procedural fairness is a well-worn concept.
Pennsylvania courts have made clear that, at private
universities, “basic principles of . . . fundamental fairness [are]
adhered to [when] the students involved[ ] . . . [are] given
notice of the charges and evidence against them, [are] allowed
to be present and to participate in the hearing assisted by
faculty, to call their own witnesses and to cross-examine the
witnesses against them, and [are] fully apprised of the findings
of the [h]earing [p]anel.” Psi Upsilon of Phila. v. Univ. of Pa.,
591 A.2d 755, 758 (Pa. Super. Ct. 1991).

In other private-university cases, Pennsylvania courts
have similarly determined that fairness includes the chance to
cross-examine witnesses and the ability to participate in a live,
adversarial hearing during which the accused may present
evidence and a defense. In Boehm, the court held that the
private university’s disciplinary proceedings were
“fundamentally fair” because the procedures included (1)
giving notice of charges to the accused students; (2) presenting
the accused students with the evidence against them; (3)
allowing the accused students to be present for and to
participate in a live hearing; (4) permitting the accused students
to be assisted by a faculty adviser during the hearing; (5)
allowing the cross-examination of witnesses; and (6)
permitting the accused students to call their own witnesses. 573
A.2d at 582. And in Reardon, the court found that a private
university provided the accused with a fair process by
“provid[ing] for minimum procedural safeguards—notice, the
admission of relevant testimony, the right to call witnesses and

17
present evidence, and the right to be represented by a member
of the college community.” 926 A.2d at 482.7

In short, notions of fairness in Pennsylvania law include
providing the accused with a chance to test witness credibility
through some form of cross-examination and a live, adversarial
hearing during which he or she can put on a defense and
challenge evidence against him or her.

2

As a private university, USciences is not subject to the
Constitution’s due process guarantees. Nevertheless, we
observe that federal notions of fairness in student disciplinary
proceedings are consistent with those recognized in
Pennsylvania’s jurisprudence. They require, at a minimum,
“rudimentary precautions against unfair or mistaken findings
of misconduct and arbitrary exclusion from school.” Goss v.
Lopez, 419 U.S. 565, 581 (1975). And as in Pennsylvania, the
basic elements of federal procedural fairness in a Title IX
sexual-misconduct proceeding include a real, meaningful
hearing and, when credibility determinations are at issue, the
opportunity for cross-examination of witnesses. See Purdue
Univ., 928 F.3d at 663–64 (holding that, among other things,
procedural fairness requires “a hearing [to] be a real one, not a
sham or pretense” and some “attempt to examine [the
accuser’s] credibility” (citation omitted)); Baum, 903 F.3d at
581 (holding that procedural fairness means that “(1) if a
student is accused of misconduct, the university must hold
some sort of hearing before imposing a sanction as serious as
expulsion or suspension, and (2) when the university's
determination turns on the credibility of the accuser, the
accused, or witnesses, that hearing must include an opportunity
for cross-examination”).

7
Consistent with Pennsylvania’s private-university decisions,
the Pennsylvania Administrative Code requires universities in
the State System of Higher Education to adopt procedures that
guarantee a hearing with “[a]n opportunity for submission of
written, physical and testimonial evidence and for reasonable
questioning of witnesses by both parties.” 22 Pa. Code § 505.3;
see also Ruane v. Shippensburg Univ., 871 A.2d 859, 862 (Pa.
Commw. Ct. 2005).
18
 * * *

We hold that USciences’s contractual promises of “fair”
and “equitable” treatment to those accused of sexual
misconduct require at least a real, live, and adversarial hearing
and the opportunity for the accused student or his or her
representative to cross-examine witnesses—including his or
her accusers. 8 We do not, however, attempt to prescribe the
exact method by which a college or university must implement
these procedures.

C

We now consider whether Doe plausibly alleges that
USciences failed to provide him fairness. In his complaint, Doe
claims that “[t]he conduct of the entire process . . . violat[ed]
the guarantees of fundamental fairness and fair and impartial
hearing.” App. 114. Doe also alleges that he “was prohibited
from confronting his accusers” and that he “was not allowed to
have a hearing before a panel.” Id. In particular, Doe alleges
that the sexual assault claims against him hinged on credibility
and so, without a hearing, the charges went unexamined in a
meaningful way. From these allegations, we draw the
reasonable inference that USciences failed to provide Doe a
fair, equitable investigation and resolution process. In other
words, Doe plausibly alleges that USciences deprived him of
fairness because he never received a chance to cross-examine
witnesses or any sort of real, live, and adversarial hearing.

USciences argues that, under Pennsylvania law, it need
not provide Doe with a “full-dress judicial hearing.”
Appellee’s Br. at 31. We agree. Basic fairness in this context
does not demand the full panoply of procedural protections
available in courts. But it does include the modest procedural
protections of a live, meaningful, and adversarial hearing and
the chance to test witnesses’ credibility through some method
of cross-examination.

8
Doe does not allege that USciences failed to provide him
fairness by employing the preponderance-of-the-evidence
standard to adjudicate charges of sexual assault, so we do not
address that question.
19
 USciences also claims that the procedures outlined in
the Student Handbook and the Policy satisfy the requirements
of basic fairness because Doe had a chance to be heard by the
investigator and received other procedural protections. The
District Court accepted this argument, concluding that Doe
received a fair and equitable process because USciences
afforded him the following procedural protections:

(1) the time, date, sexual nature,
and locations of the alleged
incidents, as well as the identities
of his accusers; (2) more than one
opportunity to review the witness
statements attached to the Report;
(3) more than one opportunity to
defend himself before the
investigator, including the
opportunity to provide an
additional statement to her after
reviewing the investigator’s
preliminary report; (4) the benefit
of an administrative panel, distinct
from the investigator, to determine
his punishment, and yet another
administrative panel to review his
appeal of the initial panel’s
determination; and (5) the
opportunity to identify witnesses
in his defense—a right which he
exercised with such alacrity that
seven of the ten total witnesses
(excluding Roes 1 & 2) were
people Doe identified[.]

App. 22–23 (emphasis in original) (citations omitted).
USciences therefore argues that the process it provided Doe—
its implementation of the single-investigator model—is fair.

To be sure, the investigator listened to Doe during her
two interviews with him. But USciences did not provide Doe a
real, live, and adversarial hearing. Nor did USciences permit
Doe to cross-examine witnesses—including his accusers,
Roe 1 and Roe 2. As we explained above, basic fairness in the

20
context of sexual-assault investigations requires that students
accused of sexual assault receive these procedural protections.
Thus, Doe states a plausible claim that, at least as it has been
implemented here, the single-investigator model violated the
fairness that USciences promises students accused of sexual
misconduct.

V

Doe’s complaint includes enough factual allegations to
state a claim for relief under Title IX. Doe also states a
plausible claim that USciences breached its contractual
obligation to provide him fairness. We will reverse the District
Court’s order and remand this case for proceedings consistent
with our opinion.

21