Three Recent Appellate Decisions Raise the Bar for Procedural Fairness at Private Universities

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Rebecca Stewart: 513-479-3335

Three Recent Appellate Decisions Raise the Bar for Procedural Fairness at Private Universities

WASHINGTON / June 20, 2022 – Three recent appellate decisions highlight the growing number of judicial decisions against private institutions finding a lack of fairness in Title IX proceedings. The decisions were handed down during the past month against Denver University, Cornell University, and Harvard University.

In Doe v. University of Denver, the Colorado Court of Appeals made two findings against the school (1). First, the university’s Equal Opportunity Procedures were found to be sufficiently certain to be enforced under Colorado contract law. Second, “a private educational institution owes a duty, independent of any contractual promises, to adopt fair procedures and to implement those procedures with reasonable care when it investigates and adjudicates claims of sexual misconduct by one student against another.” (2)
In Vengalattore v. Cornell University, appellate Judge Jose Cabranes issued one of the most strongly worded judicial statements ever made in the Title IX context (3). Comparing campus disciplinary committees to the infamous English Star Chambers, the Judge warned gravely, “[T]hese threats to due process and academic freedom are matters of life and death for our great universities.” (4)
In Sonoiki v. Harvard University, the First Circuit Court of Appeals ruled last week on a breach of contract claim, reversing the decision of the district court (5). Following allegations of sexual misconduct against the man, the court chided the University, “Sonoiki reasonably expected the [Administrative] Board to conduct the proceedings in accordance with the procedures laid out in writing as well as in accordance with his fair interpretation of the contractual terms.” (6)

SAVE’s analysis of 170 judicial decisions reveals that each of the 27 major regulatory provisions in the 2020 Title IX regulation is consistent with at least one judicial decision (7). A recent SAVE survey found that 87% of Americans believe that colleges should uphold the presumption of innocence in Title IX proceedings (8).

Persons should urge the Department of Education to assure that its upcoming Title IX regulation assures fair procedures at all institutions of higher education. Contact Secretary Miguel Cardona, telephone (202) 401-3000; fax (202) 260-7867; email ocr@ed.gov.

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