John Doe v. Princeton University

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-1458
______________
JOHN DOE
Appellant
v.
PRINCETON UNIVERSITY
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-20-cv-04352)
District Judge: Honorable Brian R. Martinotti
______________
Argued November 10, 2021
Before: HARDIMAN, PORTER, and MATEY, Circuit
Judges
(Filed: March 31, 2022)
Michael P. Bowen [Argued]
Edward E. Shapiro
Glenn Agre Bergman & Fuentes LLP
55 Hudson Yards, 20th Floor
New York, NY 10001
Counsel for Appellant
Stephen J. Kastenberg [Argued]
Ballard Spahr LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103-7599
Christopher Kelly
Cozen O’Connor
1650 Market Street
One Liberty Place, Suite 2800
Philadelphia, PA 19103
Counsel for Appellee
OPINION OF THE COURT
MATEY, Circuit Judge.
There are two sides to every story. But a complaint need
not tell both. John Doe’s Complaint plausibly tells his side,
alleging that Princeton discriminated on the basis of sex while
investigating Title IX claims filed against him. Discovery
might not bear out Doe’s account, but he has satisfied his
burden at this early stage. So we will vacate the District Court’s
2
order dismissing the matter and remand for the rest of the story
to develop.
I.
On a motion to dismiss, a court must “accept all factual
allegations in the complaint as true and view them in the light
most favorable to the plaintiff.” Umland v. PLANCO Fin.
Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). Following that rule,
we recount only the facts described in the Complaint.
A. The Beginning
John Doe and Jane Roe attended Princeton University
where, after meeting during the fall of their freshman year, they
began a steady, and steadily volatile, relationship. Arguments,
sometimes violent, were common. During their first summer
vacation, for example, Roe scratched and grabbed Doe’s arm
while traveling with Doe’s family. And in what became part of
Princeton’s investigation, the couple’s penchant for physical
altercations extended to intimacy, including “consensual
choking.” (App. at 43.)1 Soon enough, bad went to worse and,
1
Although associating violence with intimacy might
seem a contradiction, we note publications describing the
campus culture during this period. For example, a Princeton
website states that in December 2017, the Office of the Dean
of Undergraduate Students officially recognized “Princeton
Plays” as “the only kink and BDSM community on campus.”
3
when Roe informed Doe she was dating others, Doe called the
whole thing off. Except, it turned out, Doe had also been
unfaithful. A revelation that did not sit well with Roe, so she
began spreading rumors about Doe on campus. One such
accusation: that Roe ended the relationship because Doe was
physically abusive. And she threatened Doe directly: “take a
year off and nothing will happen to you.” (App. at 48.)
B. Princeton Intervenes
Concerned, Doe went to the Director of Student Life,
Garrett Meggs. In an email, Doe complained that he was being
harassed by his ex-girlfriend, who was “spreading false
information.” (App. at 48.) Doe explained that he “simply” did
not “feel safe” and Meggs recommended that Doe seek mental
health services. (App. at 48.) He did not recommend that Doe
file a Title IX complaint.
Meanwhile, Roe met with Princeton’s Director of
Gender Equity and Title IX Administration, Regan Crotty. Roe
told Crotty that she was a victim of “Intimate Relationship
Violence” under the Princeton Policy2 and described certain
Interview with Princeton Plays, Ask the Sexpert (Feb. 28,
2019), https://thesexpert.princeton.edu/2019/02/interview-
with-princeton-plays/; see also Ivy Truong, New BDSM club
shows its members the ropes, The Daily Princetonian (Dec. 6,
2017),
https://web.archive.org/web/20180811193926/http://www.dai
lyprincetonian.com/article/2017/12/princeton-plays.
2
Princeton’s Rights, Rules, Responsibilities policy
(“Princeton Policy”) defines “Intimate Relationship Violence”
4
incidents of abuse by Doe. Roe explained that she was not
interested in pursuing further action. But Crotty advised that
Princeton wanted Roe to press charges against Doe. Soon after,
when Doe began a new relationship, Roe agreed to Crotty’s
suggestion, and approved an order (“Order”) prohibiting Doe
and Roe from any contact. Still, on the day the Order issued,
Roe approached Doe on a campus running trail, attempting to
apologize. Doe notified Meggs of the incident, and the
violation of the Order, and Princeton simply told Roe not to let
it happen again.
A few months later, Roe notified Crotty that she would
cooperate with Princeton’s inquiry. A formal notice was
issued, and Princeton barred Doe—but not Roe—from campus
during the investigation. Then, several months later, Doe
accidentally “liked” one of Roe’s social media posts, in
violation of the Order. Doe immediately self-reported the
mistake but, unlike with Roe’s violation, Princeton launched
another disciplinary process that resulted in a reprimand and a
written warning from a dean.
C. The Investigation and Report
Princeton appointed a three-person panel (“Panel”) to
investigate Roe’s allegations against Doe,3 review the evidence
as “[a]cts of violence, threat or intimidation that harm or injure
a partner in a current or former intimate relationship.” (App. at
118.) But cf. supra note 1.
3
Whether Doe engaged in Intimate Relationship
Violence by: a) repeatedly grabbing and pinching Roe between
September 2016 and March 2018, b) choking Roe in
5
they gathered, weigh the testimony they allowed, and then
decide whether the facts they found violated the Princeton
Policy. At one of Doe’s meetings with the Panel, he mentioned
an interest in pursuing counterclaims against Roe. Unlike with
Roe, who was urged to pursue an investigation, Princeton
offered Doe no guidance. Later, when Doe formally asked the
Panel to consider his claims, the Panel expanded its
investigation.4
The Panel’s investigation culminated in a “Report”
finding evidence to support the incidents of physical abuse
alleged by Roe,5 but nothing sufficient to confirm any of Doe’s
claims. Doe received a letter with the Panel’s punishment:
expulsion from Princeton.6 Vindicated, Roe tweeted “my life
is good again . . . worked out boy problems that were never real
problems just things I created.” (App. at 56.)
D. The Federal Complaint
In April 2020, Doe filed a Complaint against Princeton
alleging violations of Title IX, and state law claims for breach
of contract, breach of the implied covenant of good faith and
September and October 2017, c) pulling Roe’s arm and
pushing her to the ground in 2019, and d) threatening self-harm
if Roe did not remain in a relationship with him.
4
Doe alleged that Roe scratched him multiple times,
punched him, and elbowed him in the face.
5
The Panel found insufficient evidence that Doe linked
the threat of self-harm to Roe remaining in a relationship with
him.
6
Doe appealed and the Panel’s decision was affirmed
by a separate three-member faculty group.
6
fair dealing, and denial of due process. The District Court
granted Princeton’s motion to dismiss all of Doe’s claims
without prejudice, offering Doe an opportunity to amend. See
Doe v. Princeton Univ., 2021 WL 194806, at *12 (D.N.J. Jan
20, 2021). Doe declined, so the District Court dismissed his
action with prejudice. Doe filed this timely appeal.7 For the
reasons below, we will vacate.
II.
We review the grant of a motion to dismiss de novo. See
Doe v. Univ. of Scis., 961 F.3d 203, 208 (3d Cir. 2020)
(“USciences”). To survive a motion to dismiss, a complaint
must provide “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
That requires “plausibly suggesting” facts sufficient to “draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Our
review must accept Doe’s factual allegations as true and
consider those facts in the light most favorable to Doe. See
USciences, 961 F.3d at 208, 210 n.3. But we “disregard legal
conclusions and recitals of the elements of a cause of action
supported by mere conclusory statements.” Davis v. Wells
Fargo, 824 F.3d 333, 341 (3d Cir. 2016).
A. The Princeton Report
7
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1367(a) and we have jurisdiction under 28 U.S.C.
§ 1291. Doe does not appeal the dismissal of his due process
claim.
7
We note two complications that may arise when
evaluating a complaint under Rule 12(b)(6): whether a district
court may consider documents outside of the pleadings and, if
so, whether the district court may disregard the well-pleaded
facts of a complaint in favor of facts in an external document.
Doe alleges that the District Court impermissibly credited
findings in the Report as true, despite his Complaint’s
assertions to the contrary. These findings included the Report’s
statements that “[t]he Panel found Jane credible,” there were
“significant concerns” with Doe’s credibility, and all other
witnesses were “generally credible.” (App. at 13.)
Generally, “a district court ruling on a motion to dismiss
may not consider matters extraneous to the pleadings.” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997). But where a document is “integral to or explicitly
relied upon in the complaint,” it “may be considered without
converting the motion to dismiss into one for summary
judgment” under Rule 56. USciences, 961 F.3d at 208 (quoting
Burlington, 114 F.3d at 1426). Because the Panel Report was
“integral to” and “explicitly relied upon in the [C]omplaint,”
consideration is appropriate. But consideration only goes so
far. When the truth of facts in an “integral” document are
contested by the well-pleaded facts of a complaint, the facts in
the complaint must prevail.
To see why, start with Twombly and Iqbal. They direct
courts to “accept[] as true” the factual assertions of a
complaint. Iqbal, 556 U.S. at 678. This guidance remains
“even if it strikes a savvy judge that actual proof of those facts
alleged is improbable and that a recovery is very remote and
unlikely.” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d
Cir. 2009) (quoting Twombly, 550 U.S. at 556). The proper
8
place to resolve factual disputes is not on a motion to dismiss,
but on a motion for summary judgment. See Flora v. Cnty. of
Luzerne, 776 F.3d 169, 175–76 & n.9 (3d Cir. 2015).
We have held, for example, that “we may take judicial
notice of another court’s opinion—not for the truth of the facts
recited therein, but for the existence of the opinion.” S. Cross
Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181
F.3d 410, 426 (3d Cir. 1999); see also Kamal v. J. Crew Grp.,
Inc., 918 F.3d 102, 118–19 (3d Cir. 2019). So, too, with a
public record, which may be considered “not for the truth of its
contents, but rather as evidence of the information provided
[that was relevant to the dispute].” Anspach ex rel. Anspach v.
City of Philadelphia, Dep’t of Pub. Health, 503 F.3d 256, 273
n.11 (3d Cir. 2007); see also Oran v. Stafford, 226 F.3d 275,
289 (3d Cir. 2000). Similarly, concessions by counsel may not
be used in a motion to dismiss to decide disputed issues of
material fact. See Wolfington v. Reconstructive Orthopaedic
Assocs. II PC, 935 F.3d 187, 197–98 (3d Cir. 2019). And
neither may testimony given at a hearing. See Bruni v. City of
Pittsburgh, 824 F.3d 353, 361 (3d Cir. 2016).
USciences reflects this approach. There, we accepted
facts in the university’s Title IX investigator’s report as true
when they were not disputed by the complaint. But not facts
challenged by the plaintiff. For example, we credited the
report’s assertion of how many drinks Doe and Roe consumed
on the relevant night. See 961 F.3d at 210. But where the
complaint alleged that Doe and Roe “were comparably
intoxicated [which] undermined [their] ability to give
affirmative consent,” we did not rely on the report’s contrary
9
assertion that “Doe . . . told the investigator that [the] sexual
encounter . . . was mutually consensual.” Id. at 210 n.4.8
Here, the District Court noted that the Panel’s
“credibility determinations were supported by sufficient
evidence.” (App. at 13.) That finding contradicted Doe’s
assertion that the Panel rendered “inconsistent credibility
determinations.” (App. at 63, 85.) As a result, crediting the
Report’s assertion over the Complaint’s was improper.
B. Title IX Claim
Title IX of the Education Amendments of 1972 states
that “[n]o person . . . shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity
receiving [f]ederal financial assistance.” 20 U.S.C. § 1681(a).
That “bar[s] the imposition of university discipline when sex is
a motivating factor in the decision to discipline.” USciences,
8
Other circuit courts agree. See, e.g., Khoja v. Orexigen
Therapeutics, Inc., 899 F.3d 988, 1014 (9th Cir. 2018)
(“Although incorporation by reference generally permits
courts to accept the truth of matters asserted in incorporated
documents, we reiterate that it is improper to do so only to
resolve factual disputes against the plaintiff’s well-pled
allegations in the complaint.”); Otis v. Demarasse, 886 F.3d
639, 647 (7th Cir. 2018) (“The district court . . . erred when it
credited the content of the police report over [the plaintiff’s]
denial.”); Banneker Ventures, LLC v. Graham, 798 F.3d 1119,
1134 (D.C. Cir. 2015) (“Ignoring, as we must at the pleading
stage, the opinions and conclusions of [a document
incorporated by reference].”).
10
961 F.3d at 209 (quoting Doe v. Columbia Univ., 831 F.3d 46,
53 (2d Cir. 2016)).
To state a claim under Title IX, Doe must allege facts
that, if true, support a plausible inference that Princeton
discriminated against him based on his sex. USciences, 961
F.3d at 209. While Doe is “free to characterize [his] claims
however [he] wish[es],” he alleges facts that mirror the
categories in USciences: 1) whether sex was a motivating
factor in Princeton’s investigation and 2) whether Princeton
yielded to external pressure when implementing and enforcing
its policy against him. USciences, 961 F.3d at 209. And based
on those facts, Doe has stated a plausible claim for relief.
1. Doe Plausibly Alleged that Sex was a Motivating
Factor
Doe points to two incidents to allege that sex was a
motivating factor in Princeton’s investigation: Roe’s report of
misconduct was treated with greater urgency and seriousness
than his own, and Roe’s violation of the Order produced only
a mild University response.9
i. Reported Misconduct
Begin with Doe’s argument that Princeton favored
Roe’s initial report. He alleges that while Crotty encouraged
Roe to file a formal Title IX complaint, Meggs steered Doe
9
Doe also argues the Panel credited nearly all female
witnesses but discredited nearly all male witnesses. As that
point is raised in his brief, but not his Complaint, we do not
consider this argument.
11
towards mental health services. The District Court found this
insufficient because “Plaintiff does not allege he filed a
complaint to trigger such an investigation.” (App. at 13.) That
might be a plausible and nondiscriminatory reason for treating
Doe’s Complaint differently.10 But on a motion to dismiss, we
must “construe the complaint in the light most favorable to the
plaintiff.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d
Cir. 2008). So while the District Court’s explanation is
plausible, the “plausibility standard is not akin to a ‘probability
requirement.’” Iqbal, 556 U.S. at 678. Indeed, though “anti-
male bias is not the only plausible explanation for the
university’s conduct, or even the most plausible[,] . . .
alternative explanations are not fatal to Doe’s ability to survive
a Rule 12(b)(6) motion to dismiss.” Doe v. Baum, 903 F.3d
575, 587 (6th Cir. 2018); see also Schwake v. Ariz. Bd. of
Regents, 967 F.3d 940, 948 (9th Cir. 2020) (“Sex
discrimination need not be the only plausible explanation or
even the most plausible explanation for a Title IX claim to
proceed.”); Does 1-2 v. Regents of the Univ. of Minn., 999 F.3d
571, 579 (8th Cir. 2021); Columbia Univ., 831 F.3d at 57.
Princeton replies that Doe’s allegation of mere “rumor
spreading” went un-investigated because it did not violate the
Princeton Policy. That misses the mark. The Princeton Policy
prohibits “harassment” and Doe’s Complaint alleges that he
reported “that he was being harassed by his ex-girlfriend” and
“simply” did not “feel safe.” (App. at 48, 108–09, 117–18.)
10
Even if a peculiar one, given that the Princeton Policy
states that the “[l]ack of a formal complaint does not diminish
the University’s obligation to respond to information
suggestive of sex discrimination or sexual misconduct.” (App.
at 114.)
12
And even if the conduct Doe alleged did not constitute
“harassment,” the Princeton Policy also proscribes
“[u]nwelcome or inappropriate conduct that does not fall under
other forms of sexual misconduct, but that is sexual and/or
gender-based in nature.” (App. at 118.) Doe has plausibly
alleged that he reported a violation that was not investigated by
the University. And that, in turn, plausibly supports the
inference that sex was a motivating factor in Princeton’s
investigation.
ii. Order Violations11
Next, Doe argues that Princeton’s response to violations
of the Order suggests sex discrimination. The parties do not
dispute that Roe’s intentional in-person contact was dismissed
as minor, while Doe’s accidental “like” was met with formal
disciplinary process. But the District Court relied on a brief
submitted by Princeton—which asserted that Doe was treated
differently because the “like” was not his first violation—to
dismiss this fact. Doe’s Complaint omits this story entirely.12
What to do?
11
The Panel Report references two orders, one called
“No Contact” and one labeled “No Communication.” But the
Complaint treats both as part of the same administrative
response, and at this stage we accept that as true.
12
Princeton’s brief walks up to, but not over, the line in
suggesting that Doe intentionally omitted this material fact
from his Complaint. But a motion to dismiss is not the proper
way to raise, let alone resolve that charge. Princeton may, of
course, pursue this theory in a separate motion under Rule 11
or 56.
13
First, a court reviewing a motion to dismiss must
examine the plausibility of “allegations in the complaint.”
Twombly, 550 U.S. at 555. Factual claims and assertions raised
by a defendant are not part of that scrutiny. Otherwise, every
motion to dismiss would become one for summary judgment,
a step permitted only under the process outlined in Rule 12(d).
See Bruni, 824 F.3d at 361 (“[I]t is reversible error for a district
court to convert a motion under Rule 12(b)(6) . . . into a motion
for summary judgment unless the court provides notice of its
intention to convert the motion and allows an opportunity to
submit materials admissible in a summary judgment
proceeding or allows a hearing.” (quoting Rose v. Bartle, 871
F.2d 331, 342 (3d Cir. 1989))). Disregarding Doe’s well-
pleaded facts in favor of those mentioned in Princeton’s brief
was erroneous. Second, even if it were permissible to consider
the fact mentioned in Princeton’s brief, the District Court
should not have found it dispositive. Though Princeton
suggests another explanation for why it treated the violations
differently, anti-male bias is still a plausible explanation. And
we must construe the facts in the light most favorable to Doe
at this stage. See Phillips, 515 F.3d at 233.
2. Doe Plausibly Alleged that Princeton Yielded to
External Pressure
Doe also plausibly contends that, in implementing the
Princeton Policy, the University succumbed to external
pressure. Doe alleges that Princeton was “under tremendous
pressure to respond aggressively and ‘over-correct’ by
favoring protection of female accusers at the expense of
finding male respondents guilty” after the Department of
Education (“DoEd”) published its 2011 Dear Colleague Letter
(“2011 DCL”), and the Office for Civil Rights launched a
14
related investigation into Princeton’s Title IX processes. (App.
at 77–79.) As others have noted, the 2011 DCL “ushered in a
more rigorous approach to campus sexual misconduct
allegations.” Doe v. Purdue Univ., 928 F.3d 652, 668 (7th Cir.
2019); see also Univ. of Minn., 999 F.3d at 578; Menaker v.
Hofstra Univ., 935 F.3d 20, 26 (2d Cir. 2019). The DoEd
“made clear that it took the letter and its enforcement very
seriously.” Purdue Univ., 928 F.3d at 668. If schools did not
comply, their “federal funding was at risk.” Id.; see also
USciences, 961 F.3d at 213–14.
That allegation is relevant because, while “pressure
from DoEd and the 2011 Dear Colleague Letter cannot alone
support a plausible claim of Title IX sex discrimination,” it
factors into the total mix of information supporting a plausible
Title IX discrimination claim. See USciences, 961 F.3d at 210.
When coupled with Doe’s allegations about Princeton’s
selective handling of the misconduct reports and Order
violations, the Complaint states a plausible claim of sex
discrimination. See id.; see also Purdue Univ., 928 F.3d at
668–71; Doe v. Miami Univ., 882 F.3d 579, 594 (6th Cir.
2018); Univ. of Minn., 999 F.3d at 578–79; Doe v. Regents of
the Univ. of Cal., 23 F.4th 930, 937–38 (9th Cir. 2022).
For these reasons, Doe has suitably alleged plausible
Title IX allegations and dismissing these claims was improper.
C. State Law Claims
Doe also appeals the dismissal of his two state law
claims: breach of contract and breach of the implied covenant
of good faith and fair dealing. Both state viable causes of
action.
15
1. Breach of Contract
Doe alleges that the University breached the Princeton
Policy by failing to investigate in an “impartial and unbiased”
manner. (App. at 89.) New Jersey courts do not describe “the
relationship between a private university and its students . . . in
pure contract or associational terms.” Mittra v. Univ. of Med.
& Dentistry of N.J., 719 A.2d 693, 696 (N.J. Super. Ct. App.
Div. 1998). Instead, “[t]he relationship is unique.” Napolitano
v. Trs. of Princeton Univ., 453 A.2d 263, 272 (N.J. Super. Ct.
App. Div. 1982). Following that approach, New Jersey courts
“have warned against a rigid application of the law of contracts
to students’ disciplinary proceedings.” Id. We consider that
malleable standard by reviewing the circumstances giving rise
to contract claims in educational settings.
Start with cases involving private university dismissals
for poor academic performance. New Jersey courts have
described their role as “limited,” Mittra, 719 A.2d at 697,
because of the “independence that should be accorded to a
university to permit it to exercise properly educational
responsibility,” Napolitano, 453 A.2d at 273. See also
Hernandez v. Overlook Hosp., 692 A.2d 971, 975 (N.J. 1997)
(“Assessing a student’s academic performance must be left to
the sound judgment of the individual academic institution.”).
As a result, New Jersey courts ask whether “the student [was]
afforded reasonable notice and a fair hearing in general
conformity with the institution’s rules and regulations.” Mittra,
719 A.2d at 694. And ultimately, a university must have
“sufficient evidence” to expel. See Hernandez v. Don Bosco
16
Preparatory High, 730 A.2d 365, 375 (N.J. Super. Ct. App.
Div. 1999). But Napolitano also distinguished between cases
“involving academic standards” and those involving a
“violation of [the] rules of conduct.” Napolitano, 453 A.2d at
273. And no New Jersey court has directly addressed whether
a student expelled from a private university for misconduct,
rather than poor academic performance, may bring a state law
contract claim.
But Don Bosco noted that, when adjudicating a
dismissal for misconduct, courts should consider whether the
school “follow[ed] its own established procedures for
expulsion,” a standard much like that for academic dismissals
from universities. 730 A.2d at 367. And because of the
“harm[]” that “plac[ing] [a] child in academic limbo” may
pose, B.S. v. Noor-Ul-Iman Sch., 2016 WL 4145921, at *6
(N.J. Super. Ct. App. Div. Aug. 5, 2016) (per curiam), the
school “must follow a procedure that is fundamentally fair,”
Don Bosco, 730 A.2d at 367. Don Bosco also distinguished
between the rights of high school and university students
because of the greater harms associated with expulsion from
college. Id. at 375. The court explained that “[a] student at a
private university, if expelled during the semester . . . loses
academic credit for the entire semester” and “must complete
applications for admission to another university in order to
complete the expected degree,” while “[a]n expelled student in
a private high school . . . may transfer immediately to the local
public high school” and “will not lose credit for the semester.”
Id. Given those added harms, “the procedural rights of a private
university student will be more aggressively protected by the
courts when compared to the procedural rights of an expelled
student at a private high school.” Id. at 376.
17
We need not outline all of the “more aggressive[]”
protections that private university students retain under New
Jersey law. It is enough to follow the direction of Don Bosco
and hold that New Jersey law requires at least that the school
“follow its own established procedures,” id. at 367, 376; see
also Mittra, 719 A.2d at 694, and that those procedures be
“fundamentally fair,” Don Bosco, 730 A.2d at 367, 376; see
also Mittra, 719 A.2d at 694; Romeo v. Seton Hall Univ., 875
A.2d 1043, 1045, 1048 (N.J. Super. Ct. App. Div. 2005)
(applying Mittra standard to student’s claim that university
breached contract by failing to recognize a student group).
Under that baseline standard, Doe plausibly alleges that
Princeton failed to adhere to its own disciplinary procedures in
the Princeton Policy on proof and impartiality. First, the
Princeton Policy guarantees that, after considering the “totality
of the facts and circumstances,” (App. at 116), “[t]he
investigative panel will . . . determine, by a preponderance of
the evidence, whether [the] policy was violated,” (App. at 132).
A familiar standard, preponderance of the evidence requires
proof by the “greater weight of the evidence.” See
Preponderance of the Evidence, Black’s Law Dictionary (11th
ed. 2019). “[A] party proves a fact by a preponderance of the
evidence when he proves that the fact’s existence is more likely
than not.” Greenwich Collieries v. Dir., Off. of Workers’
Comp. Programs, 990 F.2d 730, 736 (3d Cir. 1993). While the
evidentiary showing need not be “overwhelming,” United
States v. Ammar, 714 F.2d 238, 250 (3d Cir. 1983), a plaintiff
may not prevail where the “evidence is closely balanced” or
“inconclusive,” Syblis v. Att’y Gen., 763 F.3d 348, 357 (3d Cir.
2014).
18
Doe alleges that the Panel ignored that standard by
disregarding evidence that tended to inculpate Roe and
exculpate Doe. His Complaint notes that the Panel’s decision
failed to “consider[] the entirety of the evidence with a neutral
gaze,” “disregarded exculpatory evidence[,] and rendered
inconsistent and skewed credibility determinations.” (App. at
70.) Though the Report claims to apply the preponderance
standard, we must credit the Complaint’s factual allegations.
And “[f]rom these allegations, we draw the reasonable
inference that [Princeton] failed” to follow its own procedures
by assessing whether Roe’s allegations were true by a more
likely than not standard. USciences, 961 F.3d at 215.
Doe also alleges breaches of the Princeton Policy’s
promise that “[t]he panelists will . . . be impartial and
unbiased.” (App. at 132.) Because the Princeton Policy does
not define those terms, “we must construe [Princeton’s]
promise as a matter of contract interpretation.” USciences, 961
F.3d at 212. Our focus is the parties’ intent expressed in their
words, and “[w]e look to the dictionary definition[s] . . . for
assistance in determining the plain meaning of th[ese]
undefined term[s].” Aleynikov v. Goldman Sachs Grp., Inc.,
765 F.3d 350, 360 (3d Cir. 2014) (cleaned up). “Partial” means
“inclined to favor one party more than the other.” See Partial,
Merriam-Webster’s Collegiate Dictionary (11th ed. 2014); see
also Partial, Black’s Law Dictionary (11th ed. 2019)
(“Unfairly supporting one person, group, or organization
against another; predisposed to one side of an issue.”). And
“bias” or “biased” refers to “a settled and often prejudiced
outlook.” See Bias, Merriam-Webster’s Collegiate Dictionary
(11th ed. 2014); see also Bias, Black’s Law Dictionary (11th
ed. 2019) (“A mental inclination or tendency; prejudice;
predilection.”). “We can glean from these definitions that the
19
plain meaning of the term,” Aleynikov, 765 F.3d at 360,
“impartial” is one who does not favor one side or the other.
And the “plain meaning” of the word “unbiased” is one without
a prejudice or inclination in favor of one party.
Ordinary meanings in mind, Doe complains that the
Panel “applied inconsistent standards to assess [Roe]’s and
[Doe]’s credibility,” (App. at 64), “overlooked or minimized
glaring and substantial factors that would tend to undermine
[Roe]’s veracity . . . including . . . her motivations to lie,”
(App. at 64), and “disregarded compelling exculpatory
evidence which contradicted [Roe]’s allegations,” (App. at 68).
He also points to Princeton’s single investigator model,13
which he contends is “intrinsically flawed and incompatible
with a fair investigation.” (Opening Br. at 40.) Taken as true,
these facts suggest that Princeton failed to provide Doe the
promised fair and impartial proceeding.14 That is enough to
ground Doe’s breach of contract claim.
13
Under the single investigator model, a university
often “hires an outside attorney to serve as an investigator” and
“then tasks the investigator with interviewing witnesses,
gathering evidence, and determining the accused’s
culpability.” USciences, 961 F.3d at 206. Princeton tasked a
panel of three university employees with conducting the
investigation.
14
We need not accept Doe’s suggestion that Princeton
failed to follow a “fundamentally fair” procedure solely by
omitting a live hearing. While the bright-line test Doe urges
would provide precision, New Jersey courts have defined
fundamental fairness contextually, focusing on the setting and
circumstances. See Don Bosco, 730 A.2d at 376. So while
20
2. Breach of the Implied Covenant of Good Faith
and Fair Dealing
Finally, the Complaint alleges that Princeton violated
the covenant of good faith and fair dealing. In New Jersey,
“[e]very contract contains an implied covenant of good faith
and fair dealing.” Wade v. Kessler Inst., 798 A.2d 1251, 1259
(N.J. 2002). The implied covenant prohibits either party from
doing “anything which will have the effect of destroying or
injuring the right of the other party to receive the fruits of the
contract.” Sons of Thunder, Inc. v. Borden, Inc., 690 A.2d 575,
587 (N.J. 1997). Relevant here, the covenant “allow[s] redress
for the bad faith performance of an agreement.” Seidenberg v.
Summit Bank, 791 A.2d 1068, 1076 (N.J. Super. Ct. App. Div.
2002). Doe plausibly alleges facts suggesting the University
acted in bad faith.
The Complaint states that Princeton “[s]ubject[ed]
[Doe] to a discriminatory disciplinary process,”
“[d]isregard[ed] exculpatory evidence for [Doe] and
incriminating evidence against [Roe],” “constru[ed] all
academic decisions and secondary school expulsions are
subject to fewer procedural requirements, see Napolitano, 453
A.2d at 274 (allegations of plagiarism); Overlook, 692 A.2d at
975 (termination from medical residency program), non-
academic private university disciplinary matters warrant “more
aggressive[] protect[ion].” Don Bosco, 730 A.2d at 376. But
sketching all the “aggressive[] protect[ions]” that might be
required is unnecessary where, as here, the total mix of
procedures missing from Princeton’s investigation is sufficient
to state a claim.
21
discrepancies and inconsistencies in [Roe’s] favor,” and
“ignor[ed] evidence corroborative of [Doe’s] counter claims.”
(App. at 91.) All sufficient, at this stage, to allege improper
performance. The District Court read these allegations to share
facts with Doe’s contract claims. But factual overlap is not
fatal. While both claims share some events and circumstances,
we “view[] the pleadings with liberality” at this stage,
Seidenberg, 791 A.2d at 1080, and find they are not
“redundant” of one another, Berlin Med. Assocs., P.A. v. CMI
N.J. Operating Corp., 2006 WL 2162435, at *10 (N.J. Super.
Ct. App. Div. Aug. 3, 2006) (per curiam).15 So Doe has done
enough to proceed.16
III.
Doe’s Complaint provides sufficient factual allegations
to state a claim for relief under both Title IX and New Jersey
state law. We will vacate and remand to the District Court for
proceedings consistent with this opinion.
15
And even if they were, New Jersey courts “permit the
pleading and pursuit of alternative and even inconsistent
theories.” Kas Oriental Rugs, Inc. v. Ellman, 926 A.2d 387,
393 (N.J. Super. Ct. App. Div. 2007). They prohibit only
double recovery. See id.; Kluczyk v. Tropicana Prod., Inc., 847
A.2d 23, 31–32 (N.J. Super. Ct. App. Div. 2004).
16
By contrast, an implied covenant claim arising from
the Panel’s “contravention of the preponderance of the
evidence standard” would fail because Doe pleads the same
fact in support of his contract claim. (App. at 91, 89.)
22