Colorado Colleges and Universities May Soon Face New Liability for Handling of Title IX Claims
The Colorado Supreme Court will soon consider whether a school’s sexual misconduct policy, and its adherence to the policy, may give rise to contractual and tort claims. If the Supreme Court upholds the decision of the Colorado Court of Appeals, Division VII, and finds that such contractual and tort duties exist under Colorado law, a student, employee or faculty member dissatisfied with the outcome of their Title IX investigation will have additional recourse in the courts to challenge the school’s determination. All institutions of higher education that participate in the Title IV student aid program or otherwise receive federal funds should follow this case and its outcome.
On March 6, 2023, the Court granted University of Denver’s (DU) Petition for Writ of Certiorari in University of Denver v. Doe (No. 22SC499, Court of Appeals Case No. 20CA1545). In the case, a student filed a complaint of sexual misconduct against another student, which DU investigated using its Office of Equal Opportunity (OEO) Procedures. The OEO Procedures contained a number of provisions that are intended to ensure a “thorough, impartial and fair investigation,” such as permitting both parties the opportunity to submit witness names and other relevant information. The OEO Procedures also confirmed that “Investigators will review and determine the weight and materiality of all submitted information and including the necessity of interviewing potential information.”
The respondent took issue with the thoroughness of the investigation, in which, among other purported deficiencies, the investigators initially failed to interview any of the respondent’s proposed witnesses and relied in substance on an incomplete medical report submitted by the complainant. After exhausting the internal appeal process, the respondent filed suit against DU alleging breach of contract, breach of the covenant of good faith and fair dealing, and breach of duty of care. While the trial court granted summary judgment in favor of DU on each of these claims, the Court of Appeals reversed, finding both that these claims could be brought, and that there were genuine issues of material fact that precluded summary judgment.
First, the Court of Appeals held that although “[t]he words ‘thorough,’ ‘impartial,’ and ‘fair’ [were] not defined in the OEO Procedures’ definitional section,” the terms were “give[n] meaning” by the “specific investigational requirements” found within the OEO Procedures, making them “sufficiently definite to determine whether the contractual terms have been performed or breached.” Having found that the OEO Procedures constituted an enforceable contract, the Court of Appeals went on to hold that there were sufficient material facts in the record relating to various decisions and arguable failures of the investigators to obtain and consider relevant information that precluded summary judgment on the question of whether the investigators had failed to conduct a “thorough, impartial and fair” investigation and thus violated the OEO Procedures. The Court of Appeals also confirmed that the implied covenant of good faith and fair dealing applied to the OEO Procedures and, for the same reasons as noted above, found that summary judgment was also not appropriate for the breach of implied covenant claim.
DU was also found to owe the respondent a duty of care, separate from the contractual duty arising from the OEO Procedures themselves, to adopt fair procedures and to implement them with reasonable care in the investigation and adjudication of the sexual misconduct claim brought against him. Citing the 2015 case of Westin Operator, LLC v. Groh, the Court of Appeals explained that “[t]o determine whether a duty should be recognized,” it would weigh four factors: “(1) the risk involved in the defendant’s conduct; (2) the foreseeability and likelihood of injury weighed against the social utility of the defendant’s conduct; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing the burden on the defendant.” The Court ultimately found that all except the third factor—the magnitude of the burden—weighed in favor of recognizing a duty in the case of a student sexual misconduct complaint, and thus “conclude[d] that DU had a duty to adopt fair procedures and to implement those procedures with reasonable care in the investigation and adjudication of allegations that [the respondent] committed non-consensual sexual contact.” The Court clarified, however, that “[i]f DU adopts fair procedures and implements those procedures with reasonable care, the outcome of the investigation and adjudication is not open to question.”
The Supreme Court’s decision to take up this case is an important development for all Colorado institutions of higher education that receive federal funding and must therefore comply with the requirements of Title IX as they apply to the handling of complaints of sexual misconduct and other forms of gender-based discrimination and harassment. In particular, if the Supreme Court upholds the decision of the Court of Appeals finding both a contractual obligation arising from a Title IX policy, which recipients of federal funds are required to have by law, and a tort duty of care to adopt “fair” procedures and to implement them “with reasonable care,” schools may soon find themselves the subject of an increasing number of claims by parties who are dissatisfied with the outcome of an investigation.
We will be tracking this development and will provide additional information as it becomes available. In the meantime, if you have any questions, please contact your regular AT lawyer, the authors listed below, or any member of our Education industry team.
 Respondent also named DU’s trustees, employees and agents in the suit, but the Court of Appeals ultimately found that neither the contract nor the tort claims could be brought against these additional parties, and the Supreme Court will not review these issues.