This is one of many cases in which universities make grand promises to conduct “thorough, impartial and fair” misconduct investigations, then give color to those promises with specific policy provisions, only to – when they deviate from them and are sued by accused students – walk into court stating that they should not be legally bound to them.

Here, the University of Denver (DU) argued that such promises were mere “vague aspirational goals” that were “incapable of meaningful determination” and hence “unenforceable in contract” – no more than feelgood words. In a 6-1 decision on May 6, an all-Democrat Colorado Supreme Court held otherwise. Their decision affirmed the appellate court’s decision to reverse the grant of summary judgment to DU on the former student’s breach of contract claim, meaning the case will proceed to trial unless the parties settle.

This win has been a long time coming for John Doe, a DU student accused of nonconsensual sexual contact by fellow student Jane Roe. Following an investigation, DU found him responsible and determined the appropriate sanction was expulsion. Doe appealed on the grounds that university personnel were biased against him, but his appeal was denied due to not meeting appeal criteria.

That was in 2016. The following year, he sued DU in federal court. He filed another lawsuit in state court in 2020. His state court claims are:

1. Breach of contract (the “general contract” claim, as the court describes it)
2. Breach of contract based on a covenant of good faith and fair dealing
3. Promissory estoppel
4. Negligence

Doe was assisted by the team at Nesenoff and Miltenberg and attorney Michael Mirabella at Campbell Killin Brittan & Ray, with Michael Mirabella speaking before Colorado Supreme Court during oral argument. The court’s decision primarily addresses the first two claims, so I will as well.

The Decision

A contract requires mutual knowledge and agreement (a “meeting of the minds”). It also requires “sufficiently definite and certain terms.” DU claimed its promise of being “thorough, impartial and fair” was neither sufficiently definite nor certain. And, if that were all there was to the picture, it may have prevailed.

But, as Colorado Supreme Court noted, such terms cannot be considered “in isolation, detached from other terms in the agreement.” DU did not merely promise impartiality, fairness, and thoroughness; it also promised specific investigation provisions – none of which DU argued were merely “vague and aspirational,” and all of which helped fleshed out what it meant by its promise to be thorough, impartial, and fair.

The court further noted that Doe’s lawsuit presented genuine issues of material fact that would befit a trial and preclude a grant of summary judgment in favor of DU. They are:

Selective Interviewing of Witnesses

The University of Denver’s investigators interviewed all eleven of Jane Roe’s witnesses. As Doe saw after reading the investigators’ preliminary report, they interviewed none of Doe’s five witnesses. His witnesses included two friends who were with him around the time of the incident and discussed it with him shortly afterward, his therapist, his legal counsel, and his mother.

At Doe’s insistence after seeing the preliminary report, the investigators interviewed the therapist. The therapist wrote a letter to DU complaining about inaccuracies and bias in the investigation, but nothing in her letter was incorporated into the final investigative report.

DU tried to play this off by arguing that Doe’s witnesses would have only delivered “duplicative” statements that would essentially be redundant, but this argument had obvious problems. First, it was false; Doe’s friends made specific and unique observations and interactions around the time of the incident. Second, DU could have easily applied this logic to at least some of his accuser’s eleven witnesses – but it didn’t.

Reliance on a Manipulated SANE Report

Jane Roe was examined by a Sexual Assault Nurse Examiner (“SANE”) four days after the alleged incident. She received a “SANE report” to document it, but the version she submitted to DU was blatantly edited with critical sections removed. DU admitted as much.

The portions of the SANE report that Roe submitted confirmed in writing that she had a series of abrasions and bruises. The portions that she withheld were:

1. Photographs of those abrasions and bruises so investigators could discern their severity and location on her body
2. Her written statement to the SANE nurse, including her statements to medical professionals of the likely or potential cause or age of her injuries
3. Summaries and analyses by the SANE nurse and attending physician, including their thoughts about the possible cause or age of her injuries

Withholding evidence is a problem in itself, but DU compounded this by refusing to ask for the rest of the report while relying on the edited one for its determinations. As the court notes, “it is possible that, had the investigators asked Roe for authorization to obtain the full SANE report, she may have declined to provide it to them anyway. But we’ll never know now because they didn’t ask.”

Refusal to Consider Potential Improper Motivations by Doe’s Accuser

Let’s zoom in to a undisputed few key facts:

1. John Doe and Jane Roe started dating in 2016
2. They had a sexual encounter in which Jane Roe lost her virginity
3. Shortly afterward, John Doe then broke up with Jane Roe
4. Jane Roe confided in a friend that this encounter was consensual
5. Jane Roe did not file a report with the university claiming this encounter was not consensual until several weeks after the sexual encounter. She did so only after she was upset to learn that John had told people at a party that they had slept together.

Doe claimed that Jane Roe’s untrue accusation was motivated by regret, but DU’s investigators refused to consider it. Fortunately for Doe, the court did not.

Common Themes and Conclusion

DU investigators exhibited a pattern of refusing to follow up on leads that could expose the accuser’s claims to additional scrutiny. That is the common theme that ties it all together. We see it in their refusal to interview Doe’s witnesses, their refusal to ask for the withheld portions of the SANE report, and their refusal to consider any ulterior motives for Jane Roe to make such an accusation.

This pattern of behavior is neither impartial, thorough, nor fair.

The case will be returned to the trial court and will proceed to trial unless the parties settle. But would Doe settle? I’m not sure. This ordeal has now occupied eight years of his life. He may be looking for a chance to move on. On the other hand, he has now won critical battles in Colorado Supreme Court and the Tenth Circuit – and both of them on summary judgment matters. He has demonstrated the ability and will to fight this long-term.

In the federal case, the Tenth Circuit held in favor of Doe’s Title IX claim, holding that “a reasonable jury could find that John’s sex was a motivating factor in the University’s decision to expel him.” As we have recently seen, however, it is possible to win everything up to trial but still lose at trial. Best of luck to John Doe in his endeavors.

Of course, these two lawsuits and the key decisions are found in our Accused Students Database.