Title IX and Due Process: University Enrollment as Property Interest in DOE v. ALGER

Tuition-wise, public universities have long been considered a better option than private schools, and in Doe v. Alger, a federal court in Virginia held that public university tuition may bring an additional bonus, that being a constitutionally protected property interest in continued enrollment.  In Doe, the court held that the plaintiff student’s payment of tuition and its acceptance by the defendant James Madison University [“JMU”] formed a contract, which, in turn, transformed the plaintiff’s continued enrollment into a property interest that could not be terminated without adequate due process.

Although the plaintiff advanced a number of contract theories, the court focused on only one, which it somewhat bluntly characterized as “money in exchange for an education.” In reaching this conclusion, the court cited JMU’s Answer to the plaintiff’s Complaint, particularly JMU’s acknowledgement that as the plaintiff accepted JMU’s offer of admission and paid the required deposit, he “was entitled to be enrolled thereafter so long as he paid the required fees, remained in good standing academically . . .  and complied with JMU’s conduct rules.”  This, the court held, constituted an admission that an implied-in-fact contract existed between the plaintiff and the university.

The Doe case arose from a burgeoning field of litigation, that being challenges to university and college Title IX disciplinary proceedings following accusations of sexual assault.  In a nutshell, a female student claimed that she had had sexual intercourse with the plaintiff but had been too intoxicated to provide consent; the latter denied it, providing a counter version of what he claimed had occurred.  JMU initiated an investigation and subsequently convened a disciplinary hearing before a three-person board, which ruled in the plaintiff’s favor.  The female student, however, appealed and the appeals panel reversed the original decision and issued a five-year suspension despite neither explaining its decision nor even expressly holding that the plaintiff had engaged in sexual misconduct.

The court noted that due process requires some kind of explanation for disciplinary action, yet in Doe, the appeals panel failed to articulate either the basis for its finding or, for that matter, an actual finding.  Consequently, it was impossible to ascertain whether the panel had applied the correct standard for assessing consent and thus, whether the plaintiff had received adequate notice as to what conduct the panel was actually determining.  The court also cited:  the appeals panel’s failure to hear live testimony despite there being credibility issues; its failure to provide the plaintiff with important documentary evidence during the appeals process; its rules prohibiting him from contacting witnesses; its time constraints that prevented him from responding to others; and its not permitting him to appear before the appeals panel.

These procedural shortcomings denied the plaintiff adequate due process. Consequently, the court entered summary judgment in his favor.

So What Does It Mean?

Doe v. Alger is certainly not the first case in which a university or college student challenged his expulsion by bringing a contract claim.  In most of these cases, though, the alleged contractual breach pertained to alleged flaws in the school’s disciplinary process, and courts have rejected many, if not most, of these claims. Doe, however, is noteworthy for holding that the payment, and acceptance, of tuition creates a contract that, in turn, establishes a constitutionally protected property interest in enrollment.  This creates in public colleges and universities a heightened standard for ensuring that their student disciplinary process – regardless of whether it pertains to academic improprieties such as cheating or to misconduct such as sexual assault — provides students facing involuntary disenrollment with adequate due process.  Additionally, although private schools are not susceptible to the same constitutional claims as public institutions, Doe still serves as precedent for students seeking to establish a contractual claim based upon the payment of tuition.

As noted, the Doe court predicated its recognition of an implied-in-fact contract upon JMU’s admissions that once the plaintiff paid his initial deposit and subsequent tuition he “was entitled to be enrolled thereafter.”  Employers are commonly advised to include language within their employee handbooks that expressly states that nothing within the handbook is intended to create a contract of employment.  Using this paradigm as a model, perhaps colleges and universities should consider including within their admission materials express contractual disclaimers which clearly provide that the payment and acceptance of tuition does not create either an express or implied contract, and that the school enjoys the unilateral right to terminate the student’s enrollment at any time and for any reason.  Whether this would be sufficient to overcome a claim such as the one recognized in Doe cannot be definitively stated, but proactive measures such as this could help limit exposure in similar litigation.