On September 28, 2016, the United States District Court for the District of Rhode Island entered a lengthy order holding that Brown University breached a contract with student John Doe when it committed missteps in Doe’s disciplinary hearing stemming from allegations Doe engaged in sexual misconduct against a female student. The court vacated Doe’s dismissal from the university and ordered his record expunged, but it left open the potential for Brown to re-try Doe if it did so in conformity with the court’s rulings.

While the court identified a number of ways in which Brown failed to abide by the disciplinary procedures and rights specified in Brown’s student code of conduct, most notable was the court’s conclusion that Brown breached its contract with Doe by retroactively applying a new definition of “consent.” Specifically, a female student came forward in October 2015 to complain that Doe committed sexual misconduct against her in November 2014. The version of the code in effect for the 2014-2015 school year (the school year of the alleged misconduct) prohibited “non-consensual physical contact of a sexual nature,” but it failed to specifically define consent. The version of the conduct policy in place for the 2015-2016 school year (the school year of the female student’s report), included a highly detailed definition of consent, including a statement that consent could not be obtained through “coercion,” which the policy defined to include “manipulation [and] intimidation.” In its deliberations, the hearing panel decided to apply the new definition of consent from the 2015-2016 policy, ultimately concluding that Doe committed sexual misconduct by manipulating the female student into a sexual encounter.

Doe argued it violated his contractual rights for the panel to retroactively apply the 2015-2016 definition of consent to conduct that occurred in November 2014, before the definition was in place. The court agreed, concluding that a “reasonable student” operating under the 2014-2015 code would not understand that procuring sexual activity by way of “manipulation” was prohibited. Rather, the court concluded the 2014-2015 policy would only have put a reasonable student on notice that procuring sex by force, threat, intimidation or other similar conduct was prohibited. Because it concluded the 2015-2016 policy was materially different than the 2014-2015 policy in this respect, the court held application of the new consent definition to Doe was an improper attempt to alter the terms of Doe and Brown’s contract.

What this means to you

Given that most colleges and universities permit potential victims to report sexual misconduct well after its occurrence, many institutions will encounter a Brown-type scenario where the substantive provisions of applicable policies have changed between the time of the alleged act of misconduct and the time of the report. Title IX coordinators and other administrators involved in investigating and adjudicating cases should take care to apply the substantive policy provisions that were in place at the time of the alleged act of misconduct. Failing to do so could subject institutions to a breach of contract claim, as in Doe, and, for public institutions, additional claims for violating the Constitution’s guarantee of due process. To ensure that the right policy is applied, Title IX coordinators should maintain all historic versions of applicable policies and a record of the period of time during which the policy was in effect.