PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

______________

No. 2 1

- 14 58

______________

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

- c v

- 0 4352 )
District Judge : Honorable Brian R. Martinotti

______________
Argued November 10 , 202 1

Before: HARDIMAN

, PORTER, and MATEY

, Circuit

Judges

(Filed: March 31, 2022 )2 Michael P. Bowen [Argued] Edward E. Shapiro Glenn Agre Bergman & Fuentes LLP
55 Hudson Yards

, 20th Floor New York, NY 10001 Counsel for Appell ant

Stephen J. Kastenberg [ Argued ] Ballard Spahr LLP 1735 Market Street, 51st Floor Philadelphia, PA 1910 3

- 7599

Christopher Kelly
Cozen O ’ Connor
1650 Market Street One Liberty Place, Suite 2800 Philadelphia, PA 19103 Counsel for Appell ee

OPINION OF THE COURT

MATEY, Circuit Judge

.

There are two sides to every story. But a complaint need

not tell both

. John Doe ’s C o mplaint plausibly tells his side

, alleg ing that Princeton discriminated on the basis of sex while investigating Title IX claims filed against him

. D iscovery might not bear out Doe’s account , b ut he has satisfied his
burden at th is early stage. So w e will vacate the District Court’s3 order dismiss ing 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

,

w e recount only the facts described in the C omplaint.

A

. The Beginning

John Doe and Jane Roe attended Princeton University where, after meeting during the fall of their freshman year, they began a s teady , and steadily volatile

, relationship. Arguments, sometimes violent, were common. During the ir 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.”4 when Roe informed Doe she was dat ing others, Doe called the whole thing off

. Except, it turned out, Doe had also been
unfaithful. A revelation that did not sit well with R oe , 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 “spreadin g 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 “In timate R elationship

V iolence ” under the Princeton P olicy 2 and described certain

Interview with Princeton Plays

, Ask the Sexpert (Feb. 28, 2019), https://thesexpert.princeton.edu/2019/02/interview

with

- princeton

- plays/ ; s ee also Ivy Truong, New BD SM 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 p olicy (“Princeton Polic y”) defines “Intimate Relationship Violence”5 in cidents of abuse by Doe

. Roe explai ned that she was not
interested in pursuing further action . B ut 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 O rder issue d

, Roe approached Doe on a campus running trail

, attempting to apologize

. Doe notified Meggs of the incident, and the
violation of the O rder, 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 O rder

. Doe immediately self

- reported the
mistake but

, unlike with Roe ’s violation

, Princeton launched

a nother disciplinary process that resulted in a reprimand and a written warning from a d ean

.

C

. The Investigation and Report

Princeton appointed a three

- person panel (“Panel”) to investigat e R oe’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 c

f. supra note 1

. 3 W hether Doe engaged in Intimate Relationship Violence by: a ) repeatedly grabbing and pinching Roe between September 2016 and March 2018, b ) choking Roe in6 they gathered, weigh the testimony they allowed, and then
deci de whether the facts they found violated th e Princeton

P olicy

. At one of Doe’s meetings with the Panel, he mentioned
an interest in pursuing counterclaims against Roe

. U nlik e with Roe, who was urged to pursue an investigation, Princeton offered Doe no guidance. Later, when Doe formally ask ed the Panel to consider his claims, the Panel expanded its investigati o n. 4

The Panel ’s investigation culminated in a “R eport ” finding evidence to su pport 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 j ust things I created.” (App. at 56.)

D

. The Federal Complaint

In April 2020, D oe filed a C omplaint 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 elbow ed 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 ap pealed and the Pan el’s decision was affirmed by a separate three

- member faculty group.7 fair dealing

, and denial of due process. T he 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 allege d. ” 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 con clusory statements.” Davis v. Wells Fargo , 824 F.3d 333, 341 (3d Cir. 2016)

.

A. Th e Princeton Report

7 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367(a) and w e have jurisdiction under 28 U.S.C. § 1291. Doe does not appeal the dismissal of his due process
claim.8 We note two complication s 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 credit e d 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 documen t 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, s tart 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)

. T he proper9 place to re solve 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, f

or 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 (3 d 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 th e 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 dispute d issues of
material fact. See Wolfington v. Reconstr uctive 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 u niversity’s Title IX i nvestigator’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. S ee 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 contrary10 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, c rediting the Report’s ass ertion over the C omplaint ’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]ede ral 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 trut h 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 distri ct 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]

. ”)

.11 961 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 bas ed 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 w as a Motivating

Factor

Doe points to t wo incidents to allege that sex was a motivating factor in Princeton’s investigation: R oe’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

. Report ed Misconduct

Begin with Doe ’s argum ent 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 D oe 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 C omplaint, we do not consider this argument.12 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 C omplaint 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 ak in 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 su rvive 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, 57 9 (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 C omplaint alleges that he reported “ that he was being harassed by h is ex

- girlfriend ” and “simply ” did not “ feel safe.” (App. at 48

, 10 8

– 0 9

, 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.)13 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 Unive rsity. And t h at, in turn, plausibly supports the inference that sex was a motivating factor in Princeton ’s investigation.

ii

. Order Violations 11

Next, Doe argues that Princeton’s response to violations
of the O rder 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 as serted that Doe was treated differently because the “like” was not his first violation

— to dismiss this fact

. Doe’s C omplaint omits this story entirely

. 12

What to do?

11 The Panel Report references two order s , 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 C omplaint. But a motion to dismiss is not the proper
way to r aise, let alone r esolve that charge. Princeton may, of course, pursue this theory in a separate motion under Rule 11
or 56

.14 First, a court reviewing a motion to dismiss must examine the plausibili ty of “ allegations in the complaint .” Twombly , 550 U.S. at 5 55. Factual claims and assertions raised by a defendant are no t part of that scrutiny

. Otherwise, every
motion to dismiss would become one for summary judgment, a step permitted only under the process ou tlined 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 33 1, 342 (3d Cir. 1989) )). D isregard ing Doe’s well

pleaded facts in favor of those mentioned in Princeton’s brief

was erroneous

. Second, even if it w ere 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 a15 related investigation into Princeton’s Title IX processes. (App.

at 77

– 79.) As others have noted, t he 2011 DCL “ushered in a more rigorous approach to campus sexual miscon duct 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)

. T he 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

. W hen coupled with Doe’s allegations about Princeton’s selective handling of the misconduct reports and Order
violations , the C omplaint 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 claim s 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.16 1. Breach of Contract

Doe a lleges that the University breached the Princeton Policy by failing to investigate in a n “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. ” Napol itano 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

m alleable 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 “i ndependence that should be accorded to a university to permit it to exercise properly educational responsibility

, ” Napolitano , 453 A. 2 d at 273

. S ee 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 c ourts as k whether “ the student [was]
afforded rea sonable notice and a fair hearing in general conformity with the institution ’ s rules and regulations .” Mittra

, 719 A.2d at 69 4

. And ultimately, a university must have “sufficient evidence” to expel. See Hernandez v. Don Bosco17 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. 2 d at
273. And no New Jersey c ourt ha s 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 3 67

. And because of the “harm[]” that “ plac [ing] [a] child in academic l imb o” 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 student s b ecause of the greater harms associated with expulsion from college

. Id. at 375. The c ourt explained that “[a] student at a private university, if expelled during the semester

. . . loses
academic c redit 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 scho ol ” 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 privat e high school. ” Id. at 376.18 W e need not outline all of the “more aggressive[]” protection s 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

, ” i d. 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 stud ent’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 guarantee s 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 w as 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 o f 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.
201 4).19 Doe alleges that the Panel ignored that s tandard by disregard ing e vidence that tended to inculpate Roe and exculpate Doe. H is C omplaint notes that the Panel ’s decision
failed to “ consider[] the entirety of the evidence with a neutral gaze,” “disrega rded 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 C omplaint’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 21 5.

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 partie s’ intent expressed in their words, and “ [w] e look to the dictionary definition [s]

. . . for assistance in determining the plain meaning of th [ese]
undefin ed term [s]

. ” Aleynikov v. Goldman Sachs Grp., Inc.

, 765 F.3d 350, 360 (3d Cir. 2014) (cleaned up). “Par tial” means “inclined to favor one party more than the other.” See Partial

, Merriam

- Webster ’s Collegiate Dictionary (11th ed. 2014) ; see also P artial

, 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 “ bias ed” refer s to “ a settled and often prejudiced
outlook.” See Bias

, Merriam

- We bster ’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 the20 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 motivation s to lie,” (App. at 64)

, and “disregarded compelling exculpatory
evidence which contradicted [Roe] ’s allegations

, ” (App. at 68)

. H e also points to Princeton’s s ingle 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 D oe ’s suggestion that Princeton failed to follow a “fundamentally fair” procedure solely b y omitting a live hearing. While the bright

- line test Doe urges would provide precision, New Jersey courts have defined
fundamental fairness contextually, focus ing on the setting and
circumstances. See Don Bosco , 730 A.2d at 376. So while21 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 co venant 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 th e 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] exculpa tory evidence for [Doe] and incriminating evidence against [Roe],” “constru[ed] all

academic decisions and secondary school expulsions are subject to fewer procedural requirements, s ee Napolitano

, 453
A. 2 d at 2 74 ( allegations of plagiarism) ; Overlook , 692 A.2d at 975 ( termination from medical residency program )

, non

academic private university disciplin ary matters warrant “ more aggressive [] protect [ion]

. ” Don Bosco , 730 A.2d at 376

. But
sketch ing al l the “aggressive[] protect[ions]” that might be required is unnecessar y where, as here, the total mix of procedures missing from Princeton’s investigation is sufficient
to state a claim.22 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 alleg e improper performance. The District Court read these allegations to share facts with Doe’s contract claims. But factual overlap is not
fatal

. W hile both claims share some events and circumstances, we “view[] the pleadings with liberality” at this stage,

S eidenberg , 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

I II

.

Doe’s C omplaint 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 D istrict C ourt 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. ; Kl uczyk 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
fac t in support of his contract claim. (App. at 91

, 89.)