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In re Jacobson

Supreme Court of New York, Third Department

January 11, 2018

In the Matter of MATTHEW JACOBSON, Petitioner,
BUTTERFLY BLAISE, as Title IX Coordinator of the State University of New York at Plattsburgh, et al., Respondents.

          Calendar Date: October 20, 2017

          Barry S. Jacobson, New York City, for petitioner.

          Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondents.

          Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.


          Lynch, J.

         Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the State University of New York at Plattsburgh finding petitioner guilty of sexual misconduct in violation of its Student Conduct Manual.

         In the early morning hours of October 31, 2015, petitioner, who was a student at the State University of New York at Plattsburgh (hereinafter SUNY), engaged in sexual intercourse with a female student (hereinafter the reporting individual) in her dorm room on three different occasions over an approximately

         seven-hour period. Five days later, the reporting individual went to SUNY's health center and reported that she had been sexually assaulted. The nurse at the health center referred the reporting individual to respondent Butterfly Blaise, SUNY's Title IX Coordinator (see 34 CFR 106.2), and filed a report with SUNY's police department. On November 6, 2015, the reporting individual met with Blaise and gave a statement detailing the events of October 31, 2015. On February 17, 2016, Blaise notified petitioner via email that there was a "no contact order" issued on a "matter pertaining to [him]" that she wanted to discuss with him. The two arranged to meet the next day. On February 18, 2016, petitioner met with Blaise and gave her a statement detailing his recollection of the events of October 31, 2015. Blaise prepared a written summary of the statements given by both petitioner and the reporting individual.

         On May 2, 2016, petitioner received a statement of judicial charges issued by respondent Larry Allen, SUNY's Director of Student Conduct. Therein, petitioner was notified that Blaise was charging petitioner with violating two provisions of SUNY's Student Conduct Manual because "[i]t was reported that on 10/31/15, in 142 Harrington Hall, between 12:30am-8:00am, [petitioner] initiated sexual intercourse with another student three different times without establishing affirmative consent." Further, the statement notified petitioner that if he decided to plead "not responsible" to the charge, he could bring witnesses and question the "person making the charge" and directed petitioner to appear "for a [r]eview of [j]udicial [c]harges and [p]rocedures" the following day. It is not clear from the record whether petitioner availed himself of that review. On May 4, 2016, petitioner was notified that a hearing before respondent Student Conduct Board (hereinafter the Board) was scheduled for May 10, 2016. On May 6, 2016, in response to his request for information, Allen sent petitioner a judicial form that included a condensed version of the reporting individual's statement to Blaise, which was characterized as the "details of [the] violation." The hearing was held as scheduled and, on May 10, 2016, petitioner was notified that the Board determined that he was "responsible" for the charges, and the sanction of dismissal was thereafter imposed. In accordance with the student conduct procedures, petitioner submitted an impact statement with regard to the sanction and, on May 11, 2016, petitioner was notified that, as a result of the Board's determination, he would be dismissed from school. Petitioner submitted a timely appeal and, on May 24, 2016, petitioner was notified that SUNY's Judicial Appeal Board upheld the findings of the Board and the sanction of dismissal. Thereafter, petitioner commenced this proceeding pursuant to CPLR article 78, which was transferred to this Court.

         In 2015, New York enacted article 129-B of the Education Law, known as the Enough is Enough Law (see L 2015, ch 76). The purpose of this law was to "require all colleges and universities in the State of New York to implement uniform prevention and response policies and procedures relating to sexual assault, domestic violence, dating violence and stalking" (Sponsor's Mem, Senate Bill S5965 [2015]). The disciplinary process is outlined in Education Law § 6444 (5) (b). As explained by the Department of Education, "[t]his section should not be read to extend to private colleges the constitutional due process rights that apply to public colleges. It establishes minimum requirements for cases of sexual and interpersonal violence covered by [article] 129-B, but institutions may offer more rights and requirements" (New York State Education Department, Complying with Education Law article 129-B at 26 [2016], available at http://www.highered. Particularly relevant here, the law sets forth a definition of affirmative consent - that all educational institutions shall adopt - as "a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent" (Education Law § 6441 [1]). Although the version of SUNY's Student Conduct Manual in effect during the 2015-2016 academic year did not include this express definition of affirmative consent, the parties do not dispute that it was proper for SUNY to apply the standards of the Enough is Enough Law when it responded to the reporting individual's accusation [1]. Rather, petitioner contends that SUNY'S determination should be annulled because he was not afforded due process, the Board was not properly advised as to the definition of affirmative consent and the determination was arbitrary and capricious and not supported by substantial evidence.

         We begin by considering petitioner's claim that he was not afforded due process [2]. In general, the Enough is Enough Law requires that colleges and universities implement a "students' bill of rights" that includes the right to "[p]articipate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard" (Education Law § 6443; see Education Law § 6444 [5] [c] [iii]). More specifically, the law provides that the minimum process to be afforded an accused student is: (1) notice of the "date, time, location and factual allegations concerning the violation, " as well as the "specific code of conduct provisions alleged to have been violated, and possible sanctions"; (2) "an opportunity to offer evidence during an investigation, and to present evidence and testimony at a hearing, where appropriate"; and (3) an ability to appeal the initial determination (see Education Law § 6444 [5] [b]). Further, in order to "effectuate an appeal, [an accused student]... shall receive written notice of the findings of fact, the decision and the sanction..., as well as the rationale for the decision and the sanction" (Education Law § 6444 [5] [b]). Throughout the proceedings, an accused student enjoys "the right to a presumption that [he or she] is 'not responsible' until a finding of responsibility is made" (Education Law § 6444 [5] [c] [ii]).

         We reject petitioner's claim that he did not receive adequate notice of the charge against him. The record confirms that he was first made aware of the reporting individual's claim in February 2016 when the no contact order was issued. Immediately following his meeting with Blaise in February 2016, petitioner provided copies of text messages that he exchanged with the reporting individual during the days leading up to and immediately preceding the events of October 31, 2015, presumably to support his claim that the alleged conduct was consensual. During the evening following his meeting with Blaise, petitioner emailed her to add that he "vaguely remember[ed] asking [the reporting individual] if she was ok during the second time and she said yea[h] I'm fine. I'm not sure if this helps but I vaguely recall that happening." Although petitioner received the formal charges one week prior to the hearing, he consented to the hearing date and did not ask for an adjournment.

         As for petitioner's complaint that he did not receive an "evidence packet" until the hearing, there is no "general constitutional right to discovery in... administrative proceedings" (Matter of Weber v State Univ. of N.Y., Coll. at Cortland, 150 A.D.3d 1429, 1432 [2017] [internal quotations and citation omitted]), and the Enough is Enough Law does not alter this general rule. In context, after receiving this packet at the hearing, petitioner - who was accompanied by his "advisor of choice" (Education Law § 6444 [5] [c] [i]) - requested a "10-15 minute recess to go over [it]" and he then received 10 minutes to review the packet prior to presenting his response. Notably, this packet included petitioner's statement, the text messages that petitioner had provided to Blaise, the no contact order and the reporting individual's statement as recorded by Blaise. At the close of the hearing, petitioner was granted the five minutes that he had requested to prepare a closing statement. To the extent that he claims that he was not afforded adequate time to prepare an appeal, we note that three days before the Judicial Appeal Board met, petitioner did not contend that he lacked sufficient information, but instead declined an invitation to appear, choosing to rely on a written submission. Under the circumstances, we find that petitioner was given adequate notice of the charges, and that such notice afforded him the ability to defend himself at the hearing before the Board (see Education Law § 6444 [5] [b]; New York State Education Department, Complying with Education Law article 129-B at 25 [2016]; Matter of Lambraia v State Univ. of N.Y. at Binghamton, 135 A.D.3d 1144, 1146 [2016]; Matter of Lampert v State Univ. of N.Y. at Albany, 116 A.D.3d 1292, 1294 [2014], lv denied 23 N.Y.3d 908');">23 N.Y.3d 908 [2014]).

         We also reject petitioner's claim that he was denied due process because he was not permitted to cross-examine the reporting individual. In general, there is a limited right to cross-examine an adverse witness in an administrative proceeding (see Matter of Weber v State Univ. of N.Y., Coll. at Cortland, 150 A.D.3d at 1432), and "[t]he right to cross[-]examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings" (Winnick v Manning, 460 F.2d 545, 549 [1972]; see Blanton v State Univ. of N.Y., 489 F.2d 377, 385 [1973]). The Enough is Enough Law does not require such cross-examination (see Matter of Doe v Skidmore Coll., 152 A.D.3d 932, 934 [2017]) [3]. To the contrary, in the event that charges are filed after a report of a violation is made, a reporting individual is not obligated to participate in the hearing (see Education Law §§ 6443, 6444 [1] [f]). Under the "Students' bill of rights" section in the Education Law, the reporting person has the right to "[m]ake a decision about whether or not to... participate in the judical or conduct process... free from pressure by the institution" (Education Law § 6443). This protection is twofold, meaning that a reporting person is entitled to participate or not in the conduct process as he or she sees fit, without pressure from the institution. Contrary to the observation in the dissent, it would be undue pressure for an institution to advise a reporting person that a decision not to participate would hinder the conduct process. Moreover, the reporting person is entitled to keep his or her identity private at all times (see Education Law § 6444 [a] [f]) and to "[w]ithdraw a complaint or involvement from the institution process at any time" (Education Law § 6444 [1] [i]). While a reporting person may request that formal charges be filed against the student accused of violating an educational institution's code of conduct, it is the institution that determines whether such charges are warranted (see Education Law ยง 6444 [5] [a]; New York State Education Department, Complying with Education Law article 129-B at 25 [2016]), and it was SUNY, not the reporting individual, that ...

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