Matter of Doe v. Skidmore Coll.Matter of Doe v. Skidmore Coll.
In January 2014, petitioner and the complainant, bоth 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 comрlainant 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 sеcond 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.
We first address petitioner‘s contentions that respondent‘s disciplinary process lacked fundamental fairness, was biased and did not comply with the
The record does not support petitioner‘s argument that the
We disagree with petitioner‘s contention that the 2015-2016 policy violated the
Petitioner‘s claims as to fundamental fairness are without
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 proсeedings so as to ascertain whether its actions were arbitrary or capricious” (Matter of Rensselaer Socy. of Engrs. v Rensselaer Polytechnic Inst., 260 AD2d at 993; accord Matter of Warner v Elmira Coll., 59 AD3d 909, 910 [2009]; see Matter of Basile v Albany Coll. of Pharm. of Union Univ., 279 AD2d 770, 771 [2001], lv denied 96 NY2d 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 AD3d 1309, 1310 [2011]). Perfect adherence to every procedural requirement is not necessary to demonstrаte substantial compliance (see e.g. Matter of Beilis v Albany Med. Coll. of Union Univ., 136 AD2d 42, 44 [1988]; see also Ladenburg Thalmann & Co. Inc. v Signature Bank, 128 AD3d 36, 43 [2015]). Nevertheless, we find that there were multiple failures that here, taken together, demonstrated a lack of substantial compliance.
Respondent‘s first such failure occurred at the outset of the investigation. Section XI of respondent‘s 2015-2016 policy provides that an accused student must be given notice through a “[f]ormal [c]omplaint,” which must “includ[e] the date, time, location and factual allegations concerning a violation” [emphasis added].3 The complaint provided to petitioner stated the date, time and location of the incident, but included no factual allegations identifying the specific actions that were alleged to be policy violations. Instead, it merely provided the text of the two policy provisions that petitioner was accused of violating—and nothing more. Thus, the complaint provided petitioner with no notice of the specific conduct that formed the
As a result of this failure, petitioner did not learn the specific nature of the complainant‘s allegations against him until he received the initial draft of the investigation report, which took place after he had been interviewed by investigators and after the complainant and nine of the witnesses had also been interviewed regarding the allegations. The interview is a significant stage of the investigatory procedure, as it provides the sole opportunity during the process for an accused student to speak directly with investigators. The investigators take notes describing this interview which are incorporated into the investigative report that will ultimately be submitted to the panel. Due to the absence of factual allegations within the complaint, petitioner was required to participate in the interview and respond to the investigators’ questions based solely upon his memory of an event that had taken place more than a year and a half earlier, with no knowledge of the specific allegations against him.
This lack of notice not only violated the express requirements of the policy, but also caused prejudice to petitioner. As an illustrative example, a section of the investigative report described the complainant‘s statement during her interview that petitioner had coerced her to perform oral sex upon him, and then noted that petitioner had not mentioned any form of oral sex during his interview. In his written response, petitioner denied that he and the complainant had engaged in oral sex and asserted that he had not mentioned the subject during the interview because he was not told that the complainant was making that claim. The statement regarding his failure to mention oral sex during his interview remained in the final version
The prejudice created by the failure to notify petitioner of the nature of the factual allegations against him at the outset of the investigation was compounded later in the investigation, when the complainant‘s written answers to petitioner‘s questions were withheld until the investigation ended and provided to petitioner for the first time in the final investigative report. The complainant‘s answers contained a new allegation of an act in violation of the policy that had not previously been alleged оr communicated to petitioner—that is, that he had performed oral sex upon the complainant. Petitioner had no notice of this new allegation at a time when he could have defended himself against it by denying it in writing or proposing related questions to the complainant. His only opportunity to respond to the new claim was to do so verbally during the 15-minute commenting period; this was also his only opportunity to address the panel about the entire repоrt, which comprised over 100 pages.5
The policy requires a complainant‘s answers to an accused student‘s questions to be included in the final investigative report. It neither requires respondent to give them to the accused student earlier nor precludes it from doing so. Thus, if considered in isolation, respondent‘s treatment of the complainant‘s answers did not constitute a failure to comply with the policy. Nevertheless, under the circumstances here, resрondent‘s failure to provide the answers to petitioner at an earlier stage of the investigation—or at a minimum, to notify him of the new allegation that the answers contained—presents significant concerns. Respondent had an opportunity to provide petitioner with notice of the new allegation during the course of the ongoing investigation, when petitioner specifically asked the deputy coordinator about the complainant‘s answers in his written response to the second draft of the investigative report. The deputy coordinator responded that the answers would be included in the final report, but provided no details, and neither advised petitioner that they would include a new allegation of misconduct nor gave him an opportunity to respond to that allegation. Notably, in that same communication, the deputy coordinator stated that petitioner had been given an opportunity to respond to the second draft of the investigative report precisely because it contained new information.
The adjudication panel‘s final decision did not specify the
We further find that respondent failed to comply with its pоlicies as to certain witness interviews and statements. Section V of the 2015-2016 policy defines a witness as one who observes a crime or other conduct in violation of the policy, or who has “information directly relevant to the incident.” Initially, we reject petitioner‘s claim that the statements of witnesses who described conversations with the complainant were hearsay and therefore inadmissible. As a general rule, hearsay evidence is admissible in administrаtive proceedings, and such evidence may thus be admitted in a college disciplinary proceeding (see Matter of Budd v State Univ. of N.Y. at Geneseo, 133 AD3d 1341, 1343-1344 [2015], lv denied 26 NY3d 919 [2016]; see generally Matter of Hoffman v Village of Sidney, 252 AD2d 844, 845 [1998]). Here, the challenged interviews concerned the witnesses’ accounts of statements about the incident that the complainant had made directly to them. As these witnesses had information that met the requisite standard, we find no error in the consideration of the interview notes pertaining to them.
However, the interview notes and statements of two witnesses—referred to as witness 4 and witness 10—should not have been considered. Notes from an interview between witness 4 and the deputy coordinator indicate that witness 4 said that she had heard that the complainant was “in a ‘non-committed relationship’ with some guy, but he overstepped one day.” This witness did not know what had taken place beyond the fact that the complainant was uncomfortable with thе interaction, did not know the identity of the accused student and could not remember who had told her about the incident. These vague statements amount to little more than gossip; this witness statement should not have been included in the investigative report.
As for witness 10, respondent concedes that, as determined in the administrative appeal, the deputy coordinator‘s joint
The interview with witness 10 concerned only her knowledge of the conversation that she overheard; she was not interviewed as part of the investigation of the 2014 incident and had no direct personal knowledge of that matter. A written message that she later submitted likewise concerned only the separate matter. The message also included a statement of her opinion about the mental state of the participants in the conversation that was nothing more than speculation, and failed to constitute “directly relevant” information in any manner. Including the interview and statement of this witness within the investigative report was a violation of the policy, and—in light of petitioner‘s claim that he was assured that the separate matter would not be included in the report—prejudicial to petitioner.
For the reasons discussed above, and considering the record as a whole, we find that respondent did not substantially comрly with its policy during the investigative phase of the process. While any one of the failures discussed above might not have been enough to preclude a finding of substantial compliance, we cannot say that substantial compliance occurred when the multiple failures are considered together. In particular, we find that the failure to establish the nature of the allegations at the outset of the proceeding by stating them in the complaint had an ongоing prejudicial effect upon petitioner‘s ability to prepare a defense that continued throughout the investigation and was aggravated by respondent‘s failure to notify him of a new factual allegation until after the investigation had closed.
The previous incident did not involve any physical contact, sexual activity or coercion to participate in such aсtivity. Upon review, we do not find that it was substantially similar to the January 2014 incident, nor did it indicate a pattern of behavior. The mere fact that both incidents involved violations of the Sexual and Gender-Based Misconduct Policy is not enough. Respondent thus failed to adhere to the policy in providing information about the prior incident to the panel.
Accordingly, both the determination relative to the violations and the recommendation for petitioner‘s expulsion were not made in substantial compliance with respondent‘s policy, and must be annulled as arbitrary and capricious (compare Tedeschi v Wagner Coll., 49 NY2d 652, 660 [1980]; see Matter of Warner v Elmira Coll., 59 AD3d at 910-911; Matter of Basile v Albany Coll. of Pharm. of Union Univ., 279 AD2d at 771-772). Petitioner‘s remaining contentions are rendered academic by this determination.
Egan Jr., Lynch, Mulvey and Aarons, JJ., concur. Ordered that the judgment is reversed, without costs, petition granted, and respondent is directed to reinstate petitioner as a student and expunge all references to this matter from his school record.