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In re Doe

Supreme Court of New York, Third Department

July 13, 2017

In the Matter of JOHN DOE, Appellant,

          Calendar Date: June 8, 2017

          Harris Beach, PLLC, Albany (Victoria A. Graffeo of counsel), for appellant.

          Bond, Schoeneck & King, PLLC, Albany (Robert F. Manfredo of counsel), for respondent.

          Before: Garry, J.P., Egan Jr., Lynch, Mulvey and Aarons, JJ.


          GARRY, J.P.

         Appeal from a judgment of the Supreme Court (Nolan Jr., J.), entered June 1, 2016 in Saratoga County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent, among other things, finding petitioner guilty of violating respondent's Sexual and Gender-Based Misconduct Policy.

         In January 2014, petitioner and the complainant, both of whom were college students, spent several hours together in petitioner's dormitory room on respondent's campus. During this time, both parties agree that they lay down together on petitioner's bed, kissed, and took off some or all of their clothing, and that they had agreed in advance not to engage in sexual intercourse. In October 2015, petitioner received a

         formal complaint alleging that, in January 2014, he had committed misconduct against the complainant in violation of respondent's 2013-2014 Sexual and Gender-Based Misconduct Policy. An investigation followed, headed by respondent's Title IX deputy coordinator (hereinafter the deputy coordinator). Interviews were conducted with petitioner, the complainant and nine witnesses. Thereafter, the deputy coordinator provided petitioner and the complainant with an initial draft of the investigation report, to which they each submitted written responses. A second draft of the investigation report followed, adding a joint interview of the complainant and a tenth witness, and petitioner submitted a written response. The final investigation report was provided to petitioner and the complainant in December 2015. Several days later, they were each permitted to separately address the adjudication panel during a comment session. The panel thereafter found that petitioner had committed the charged violations and recommended the sanction of expulsion. Respondent expelled petitioner, and he filed an administrative appeal. The appeal panel agreed with one of petitioner's contentions - that the investigators had erred by interviewing the complainant and the tenth witness together - but determined that this error had not impacted the findings, and found no grounds upon which to reconsider the adjudication panel's findings.

         Petitioner thereafter commenced the instant CPLR article 78 proceeding seeking to annul the findings and set aside his expulsion on the grounds, as pertinent here, that the adjudication panel's findings were arbitrary and capricious, that the findings and sanction were arrived at in violation of respondent's procedures, that those procedures violated the requirements of fundamental fairness, and that the penalty imposed was excessive. After joinder of issue, Supreme Court rejected petitioner's contentions and dismissed the petition. Petitioner appeals.

         We first address petitioner's contentions that respondent's disciplinary process lacked fundamental fairness, was biased and did not comply with the Education Law [1]. Initially, we do not find that respondent erred in applying the standards of conduct that were in effect under its 2013-2014 policy, but using the procedures established by its 2015-2016 policy. Respondent's policy was revised after the underlying incident in compliance with a 2015 enactment commonly known as the Enough is Enough Law (L 2015, ch 76) that, among other things, required colleges to adopt the standard of affirmative consent as part of their codes of conduct pertaining to sexual activity, and established procedures for related disciplinary proceedings (see Education Law § 6441). It is undisputed that this affirmative consent standard, as set forth within the 2015-2016 policy, is more demanding than the effective consent requirement previously in effect. It was not irrational for respondent to apply the standard of conduct that was in effect at the time of the incident in determining whether there had been a violation, but to apply the procedural requirements established by statute and incorporated within the revised policy that was controlling at the time of the investigation. Petitioner contends that the split application of the two policies was confusing, but also concedes that he was advised of this procedure at the outset.

         The record does not support petitioner's argument that the deputy coordinator who led the investigation was biased against him. Although the deputy coordinator had been involved in a previous disciplinary proceeding against petitioner, there is no requirement that an official may not participate in more than one disciplinary proceeding against the same student. The fact that the deputy coordinator made certain procedural determinations that were adverse to petitioner does not, without more, reveal bias (see Matter of Weber v State Univ. of N.Y., Coll. At Cortland, 150 A.D.3d 1429, 1434 [2017]).

         We disagree with petitioner's contention that the 2015-2016 policy violated the Education Law and principles of fundamental fairness by eliminating a hearing requirement that had been part of the 2013-2014 policy. The Enough is Enough Law requires colleges to ensure that every student is afforded certain rights in proceedings involving accusations of sexual activity in violation of a college's code of conduct, including "an opportunity to offer evidence during an investigation, and to present evidence and testimony at a hearing, where appropriate " (Education Law § 6444 [5] [b] [ii] [emphasis added]). Contrary to petitioner's contention, this provision does not require colleges to offer hearings as part of their disciplinary procedures for such violations. Instead, as indicated by the qualified statutory language and further clarified by guidelines issued by the Education Department, the Enough is Enough Law requires colleges to provide students with an opportunity to offer evidence, but permits them to do so by a method other than a hearing, such as an investigatory process (see New York State Education Department, Complying with Education Law Article 129-B at 27 [2016]). Likewise, the Enough is Enough Law does not require a college to permit cross-examination of a complainant or a witness [2]. The right to cross-examine witnesses is limited in administrative proceedings (see Matter of Kosich v New York State Dept. of Health, 49 A.D.3d 980, 983 [2008], lv dismissed 10 N.Y.3d 950');">10 N.Y.3d 950 [2008]). Here, the policy satisfied the statutory requirements by permitting an accused student to submit written questions to be answered by the complainant or any witness if deemed to be relevant and appropriate by the investigators (see Matter of Weber v State Univ. of N.Y., Coll. At Cortland, 150 A.D.3d at 1432). We find no violation of the Enough is Enough Law.

         Petitioner's claims as to fundamental fairness are without merit as respondent is not a public university. Thus, its relationship with its students "is essentially a private one such that, absent some showing of State involvement, [its] disciplinary proceedings do not implicate the 'full panoply of due process guarantees'" (Matter of Rensselaer Socy. of Engrs. v Rensselaer Polytechnic Inst., 260 A.D.2d 992, 994 [1999], quoting Matter of Mu Ch. of Delta Kappa Epsilon v Colgate Univ., 176 A.D.2d 11, 13 [1992]; see Matter of Kickertz v New York Univ., 25 N.Y.3d 942, 944 [2015]).

         Petitioner next contends that respondent failed to follow its own procedures in implementing the disciplinary process. Where, as here, no hearing is required by law, a court reviewing a private university's disciplinary determination must determine "whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings so as to ascertain whether its actions were arbitrary or capricious" (Matter of Rensselaer Socy. of Engrs. v Rensselaer Polytechnic Inst., 260 A.D.2d at 993; accord Matter of Warner v Elmira Coll., 59 A.D.3d 909, 910 [2009]; see Matter of Basile v Albany Coll. of Pharm. of Union Univ., 279 A.D.2d 770, 771 [2001], lv denied96 N.Y.2d 708');">96 N.Y.2d 708 [2001]). The determination must be annulled only where there has been a lack of substantial compliance, or where the determination lacks a rational basis (see Matter of Hyman v Cornell Univ., 82 A.D.3d 1309, 1310 [2011]). Perfect adherence to every procedural requirement is not necessary to demonstrate substantial compliance (see e.g. Matter of Beilis v Albany ...

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