Supreme Court, Tompkins County, December 15, 2017

McLaughlin & Stern, LLP, New York City (Alan Sash of counsel), for petitioner.

Cornell University, Office of University Counsel and Secretary of the Corporation, Ithaca (Jared M. Pittman of counsel), for respondent.

This matter comes before the court upon a verified petition of John Doe, dated July 27, 2017, brought under CPLR article 78, and an order to show cause signed by this court. Petitioner seeks: (1) a declaration that respondent Cornell University acted arbitrarily and capriciously in a disciplinary proceeding against Doe, by failing to substantially comply with its own rules, procedures and guidelines; (2) a declaration that the disciplinary determinations made against Doe were not supported by substantial evidence; and (3) a stay of the disciplinary determinations made against him. Petitioner also filed an amended verified petition adding a claim that the determinations did not have a rational basis in the record. Cornell filed two motions in response—one to vacate the stay imposed in the order to show cause, and the other to dismiss count II of the petition for failure to state a claim, arguing that the determinations questioned by Doe are not subject to the substantial evidence standard. Cornell also filed a verified answer and objections in point of law, seeking to dismiss the remaining two counts as well.

The case was previously before the court to address Doe's separate petition (index No. EF2016-0192) that Cornell had failed to process his complaint against the Title IX investigator, Elizabeth McGrath for gender bias. The court issued a decision and order on January 20, 2017, finding that Cornell's decision not to promptly investigate Doe's complaint was without a rational basis, and directing Cornell to immediately process and investigate Doe's discrimination complaint against the investigator. The court issued an amended decision and order dated March 13, 2017, which did not alter the substance of the{**59 Misc 3d at 918} court's determination. Cornell retained outside counsel, Bruce Melton, Esq., to investigate Doe's complaint against McGrath. The outside counsel issued a report on March 10, 2017, concluding that gender bias was not a contributing factor in any decision made by McGrath. The investigation into the Roe and Doe complaints continued.

This court concludes that the substantial evidence standard of review does not apply in this case, and the matter should not be transferred to the Appellate Division pursuant to CPLR 7803 (4). The challenged determination was not "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law." (CPLR 7803 [4].) This court further concludes that Cornell substantially complied with its own policies and procedures and had a rational basis for its determinations.

This action challenges a decision of a Cornell University Disciplinary Hearing Panel, dated May 24, 2017, which found Doe responsible for sexual assault and retaliation. The findings were in connection with a complaint filed by another Cornell student, [*3]Sally Roe, who alleged that Doe had sexual intercourse with her while attending a party off-campus on August 19, 2016, when she was intoxicated to the point of incapacitation and being unable to consent. There were a total of four complaints involved between Doe and Roe. The first was by Roe alleging sexual assault. The second was by Doe against Roe alleging she sexually assaulted him during the August 19, 2016 encounter. The third complaint was filed by Roe alleging that Doe filed his sexual assault complaint in retaliation to Roe's initial complaint. The fourth complaint was by Doe, based in part on allegations that Roe sought to have Doe suspended from college without good cause. In addition to finding Doe responsible for sexual assault, the Hearing Panel also found Doe filed his complaint in retaliation to the complaint filed by Roe. The Hearing Panel decision also found that Roe was not responsible for sexual assault or retaliation.

Doe was an incoming freshman and Roe was starting her sophomore year when they both attended the off-campus fraternity party in August 2016. They met at the party while playing "beer pong" and after a short time, went inside and made their way to a second floor room where they had sex. Testimony was obtained from other witnesses at the party{**59 Misc 3d at 919} concerning the actions and appearances of Roe, as well as Doe, prior to the sexual acts and subsequently. There was also testimony from Doe and Roe as to what transpired in the room during the sexual encounter, and two other witnesses who entered the room briefly as Doe and Roe were having sex. As noted by the Hearing Panel, and corroborated by testimony contained in the record, Roe had difficulty remembering details of the evening due to her level of intoxication.

The following day Roe sought medical treatment, and the Ithaca police were contacted regarding a possible rape allegation. On August 21, 2016, Ithaca Police Department Officer Christine Barksdale went to interview Doe at his dormitory room. Unbeknownst to Doe, Detective Barksdale was actually tape recording that conversation. During that interview, among other things, Doe admitted that he and Roe had sex, but he claimed that she had initiated it. Doe also told Detective Barksdale that he had not been drinking, and that he had used a condom. Later, when interviewed by the title IX investigator, he admitted that his statements about not drinking, and using a condom, were false.

Both parties also agree that once inside the bedroom, there was a conversation about birth control and a condom, but they disagree about exactly who said what, and whether it constituted evidence of consent. Following the sexual activity, Doe returned to the party, leaving Roe in the bedroom, where she was soon discovered by other partygoers who found her on the bed in her bra and underwear. She was unconscious or disoriented.

Roe filed her complaint with Cornell's Title IX office a few days later on August 23, 2016, and the investigation into this claim started. The hearing was held on April 17, 2017, before a three-member panel, and the non-voting hearing chair. Doe and Roe both testified in front of the Panel, as did three other live witnesses. Both parties presented written closing statements. The Hearing Panel issued its written decision on May 24, 2017, finding Doe responsible for sexual assault and retaliation, and finding Roe not responsible for sexual assault or retaliation. [*4]The Hearing Panel imposed a sanction of a two-year suspension against Doe to begin on May 29, 2017. Doe appealed to the Appeal Panel, who issued a decision dated July 26, 2017, affirming the decision of the Hearing Panel. This court ordered a stay of the sanctions when it signed the order to show cause.{**59 Misc 3d at 920}

The allegations of sexual offenses were investigated under Cornell's Policy 6.4 (Prohibited Discrimination, Protected-Status Harassment, Sexual Harassment, and Sexual Assault and Violence). Cornell's procedure for addressing complaints of sexual misconduct against students in violation of Policy 6.4 are incorporated in its Procedures for Resolution of Reports Against Students Under Cornell University Policy 6.4. Following a formal complaint, pursuant to the Procedures, claims of sexual misconduct by students are investigated by Cornell University title IX investigators, including interviews of the parties and witnesses, the collection of documents and other evidentiary materials. The investigator produces a draft investigative record which is provided to the parties for comment. At that point, the parties can submit comments about the content of the report, as well as request additional meetings or investigation. The investigator has discretion whether to act on any of those requests. The investigator ultimately provides a final investigative record and a report detailing the scope of the investigation and a summary of the findings. (Procedures at 25-26.) The investigator does not provide an opinion on responsibility, other than to indicate if the evidence is sufficient to warrant a hearing. (Procedures XIX E at 26.) If it is determined that the allegations are devoid of any merit, no hearing is directed and the file is closed. If there is sufficient evidence, the hearing is conducted by a panel of three members and a nonvoting hearing chair. The parties are allowed to present brief opening statements, testify, present oral testimony and written closing statements, and make requests regarding testimony and questions. Once the Hearing Panel issues a decision, the parties may appeal that decision to a three-member Appeal Panel. The decision of the Appeal Panel is final and binding.

As noted by Cornell, the procedures for addressing complaints of sexual misconduct have evolved over time. The most recent version of the Procedures was adopted on August 1, 2016, less than three weeks prior to the incident involved in this case. Under the new Procedures, the investigator collects and organizes the information and evidence, and provides it to the Hearing Panel to make a determination. Previously, the investigator would provide credibility determinations and offer recommendations on the outcome. The amendment of the Procedures is no doubt influenced by a 2015 amendment to the{**59 Misc 3d at 921} Education Law, known as the Enough is Enough Law, which will be discussed below.

A. Substantial Evidence Standard—Cornell's Motion to Dismiss Count II of the Complaint

[1] The court will first address Cornell's motion to dismiss count II of the amended complaint, because the issue of transfer to the Appellate Division could preclude this court's consideration of petitioner's other arguments. (See e.g. Matter of Hull-Hazard, Inc. v Roberts, 129 AD2d 348 [3d Dept 1987]; Hoch v New York State Dept. of Health, 1 AD3d 994 [4th Dept 2003]; Matter of Davis v Kelly, 145 AD2d 950 [4th Dept 1988]; W1-Bay Plaza v Environmental Control Bd., 2016 NY Slip Op 31972[U] [Sup Ct, NY County 2016].) If there is no substantial evidence question presented, this court should decline to transfer the matter to the Appellate Court. (See e.g. Matter of Cornelius v City of Oneonta, 71 AD3d 1282 [3d Dept 2010]; Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, Ichabod Crane Cent. School Dist. CSEA Unit v New York State Pub. Empl. Relations Bd., 300 AD2d 929 [3d Dept 2002]; Matter of Silverman v Carrion, 146 AD3d 570 [1st Dept 2017]; Matter of Scott v Village of Nyack Hous. Auth., 147 AD3d 957 [2d Dept 2017]; Matter of VanHouten v Mount St. Mary Coll., 137 AD3d 1293 [2d Dept 2016]; Matter of Horace v Annucci, 133 AD3d 1263 [4th Dept 2015].)

CPLR 7804 (g) provides as follows:

"Where the substantial evidence issue specified in [CPLR 7803 (4)] is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced."

" 'The mere fact that the petition alleges the lack of substantial evidence supporting the determination is not dispositive.' " {**59 Misc 3d at 922}(Matter of Cornelius, 71 AD3d at 1284, quoting Matter of Bonded Concrete v Town Bd. of Town of Rotterdam, 176 AD2d 1137, 1137 [3d Dept 1991] [emphasis omitted].) "[T]he appropriateness of a transfer turns upon Supreme Court's independent assessment of the type of hearing held preceding the administrative determination and whether the substantial evidence test is actually applicable, and not on a petitioner's characterization of the standard of review or issues to be raised." (Matter of Cornelius, 71 AD3d at 1284, citing Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7804:8 at 679.) An issue specified in CPLR 7803 (4) "arises only where a quasi-judicial hearing has been held and evidence taken pursuant to law." (Matter of Bonded Concrete, 176 AD2d at 1137-1138 [emphasis added].)

Doe contends that this case fits within CPLR 7803 (4) because Cornell's determinations were made as a result of hearings held "pursuant to direction by law." Doe claims that since Cornell deemed that the four complaints should not be dismissed and should go to a hearing, that a hearing was "appropriate" under Policy 6.4. According to Doe, because a hearing was[*6]"appropriate," Cornell, and the hearing process, were bound to comply with the Enough is Enough Law, codified in article 129-B of New York's Education Law, which grants the right to present evidence and testimony at a hearing, "where appropriate." Since the hearing was deemed appropriate by Cornell, it met the Education Law requirement, and was "pursuant to direction by law." Thus, argues Doe, it is subject to the "substantial evidence" standard under CPLR 7803 (4). Count II of the amended verified petition seeks to have Cornell's determinations nullified on the grounds that they were not supported by substantial evidence. That would require transfer to the Appellate Division for decision.

Cornell argues that the substantial evidence standard does not apply to disciplinary determinations of private universities in New York State such as Cornell, and Cornell also argues that the Enough is Enough Law does not require a hearing to resolve sexual misconduct issues against students. Rather, Cornell's Procedures voluntarily provide a hearing, but that does not make it a hearing required by law.

The Enough is Enough Law (L 2015, ch 76), mentioned above, was enacted in 2015, and "among other things, required colleges to adopt the standard of affirmative consent as part of their codes of conduct pertaining to sexual activity, and{**59 Misc 3d at 923} established procedures for related disciplinary proceedings." (Matter of Doe v Skidmore Coll., 152 AD3d 932, 933 [3d Dept 2017], citing Education Law § 6441.)

"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.' " (Skidmore at 934, citing Education Law § 6444 [5] [b] [ii].)

Due to the recent enactment of the law, there is little court guidance or interpretation of its requirements. However, the Third Department recently addressed it in the Skidmore case, which also involved a sexual misconduct complaint. The Third Department ultimately granted the petition because the university did not substantially comply with its own policy (and the decision was therefore arbitrary and capricious), but the decision also noted that the Enough is Enough Law

"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])." (Skidmore at 934.)

Further, the law "does not require a college to permit cross-examination of a complainant or a witness. The right to cross-examine witnesses is limited in administrative proceedings." (Id. at 934, citing Matter of Kosich v New York State Dept. of Health, 49 AD3d 980, 983 [3d Dept 2008], lv dismissed 10 NY3d 950 [2008].) Importantly, the Third Department in the Skidmore case was not dealing with the case being transferred to it pursuant to CPLR 7804 (g), but in the context of an appeal of whether the university had complied with its own policy, and whether the determination was rationally based.

In the present case, the fact that Cornell voluntarily adopted a policy which did permit a hearing to be conducted did not{**59 Misc 3d at 924} transform this into a situation where the hearing was "pursuant to direction of law." Cornell is a private not-for-profit corporation, with four state-sponsored State University of New York (SUNY) colleges. "Although [Cornell] receives some financial assistance from the State, this alone does not constitute a sufficient degree of State involvement so as to allow an intrusion into defendant's disciplinary policies." (Stone v Cornell Univ., 126 AD2d 816, 818 [3d Dept 1987]; see also Matter of Alderson v New York State Coll. of Agric. & Life Sciences at Cornell Univ., 4 NY3d 225 [2005]; Matter of Stoll v New York State Coll. of Veterinary Medicine at Cornell Univ., 94 NY2d 162 [1999].) As a private university, the charged student is not "entitled to the 'full panoply of due process rights' . . . , [and the university] need only ensure that its published rules are 'substantially observed.' " (Matter of Kickertz v New York Univ., 25 NY3d 942, 944 [2015] [citations omitted]; Skidmore; see Tedeschi v Wagner Coll., 49 NY2d 652 [1980].) In contrast, public universities are subject to due process requirements, and the substantial evidence standard applies. (See e.g. Matter of Haug v State Univ. of N.Y. at Potsdam, 149 AD3d 1200 [3d Dept 2017].) With respect to private universities, however, the court's role is much more limited, and private universities are given broad discretion in matters such as discipline against students. (Van Houten.) "[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.' " (Skidmore, 152 AD3d at 935, quoting Matter of Rensselaer Socy. of Engrs. v Rensselaer Polytechnic Inst., 260 AD2d 992, 993 [3d Dept 1999]; VanHouten.)

The Third Department has refused to apply the substantial evidence standard to review the determinations of private universities. (See e.g. Van Houten; Rensselaer Soc. of Engrs.) Since this court concludes that the private university standard, as opposed to a public or state university, applies in this case, then this is not a situation where transfer to the Appellate Division under CPLR 7803 (4) and 7804 (g) is applicable. There is nothing in the Enough is Enough Law which directs a substantial evidence standard in sexual misconduct cases involving private universities. The Third Department's recent decision in Skidmore (which appears to be the only case to date specifically addressing the Enough is Enough Law), was in the{**59 Misc 3d at 925} context of an appeal from the trial court's decision, and not pursuant to transfer under article 78. The Third Department did not suggest the case should have been transferred to it, which supports the conclusion that the new Enough is Enough Law did not create a substantial evidence procedure. This court concludes that Cornell's voluntary grant of a hearing does not transform this into a hearing pursuant to law. Thus, the substantial evidence standard does not apply, and therefore, the matter should not be transferred to the Appellate Division under CPLR 7803 (4) and 7804 (g).

Petitioner also makes a pragmatic argument for transfer to the Appellate Division, noting that if this court were to transfer the case under article 78, and that transfer is ultimately deemed improper, the Third Department could still retain jurisdiction and make a decision on the other aspects of the case. Cornell would not be harmed because it can still make the argument to the [*8]Appellate Division that this is not a substantial evidence review situation, and if Cornell is successful, then the Appellate Division could retain jurisdiction and decide the case on the merits. (See e.g. VanHouten; Matter of Baker v Mahon, 72 AD3d 811 [2d Dept 2010].) On the other hand, if this court does not transfer the case and that is subsequently found to be error, then Doe could be significantly prejudiced, including his present and future education. While there is some appeal to petitioner's argument, this court cannot simply transfer this case if the necessary criteria are not met. Furthermore, there is no guarantee that the Appellate Court would exercise its jurisdiction and retain jurisdiction in an improperly transferred case. After careful review, this court determines that the substantial evidence standard does not apply. Therefore this court declines to transfer the case to the Appellate Division, and accordingly count II is dismissed.

B. Did Cornell act arbitrarily and capriciously by not following its own rules and policy (count I of the verified petition)?

Having reached the determination that transfer is not appropriate, the court next turns to the other two counts raised in the amended verified petition. Count I argues that Cornell acted arbitrarily and capriciously by failing to follow its own policies and procedures. Count III argues that Cornell's determinations on sexual assault and retaliation were arbitrary and capricious and without rational basis in the record.

Doe argues that Cornell failed to follow Policy 6.4 and as a result, it denied Doe a fair process of these sexual assault and{**59 Misc 3d at 926} retaliation claims. The amended verified petition grouped these failures into seven general categories: (1) failure to ask questions of Roe at the hearing that could bear on her credibility and motive; (2) the lack of testimony from a Title IX investigator about the investigative report; (3) the hearing chair's refusal to take corrective action on inaccurate information in the investigative report, which Doe claims was one-sided, and the omission of evidence that could have benefitted him; (4) inclusion of a summary of a conversation between the Title IX investigators and a police investigator; (5) Cornell's exclusion of a videotaped interview of a witness, and transcript, which Doe contends was helpful to his case; (6) that a Title IX investigator had a conflict of interest but continued to work on the investigation; and (7) failure to provide Doe with notice of its sexual assault policy.

Doe provided arguments and examples of Cornell's failure to follow its own policies. Cornell maintains that it did, in fact, act in substantial compliance with its policy, and offered its own arguments and explanations in support of that position. The court concludes that Cornell did substantially comply with its policy.

[2] "Judicial review of the actions of a private school in disciplinary matters is limited to a determination as to whether the school acted arbitrarily and capriciously, or whether it substantially complied with its own rules and regulations." (Matter of Van Houten, 137 AD3d at 1295, citing Tedeschi v Wagner Coll., and Matter of Khaykin v Adelphi Academy of [*9]Brooklyn, 124 AD3d 781, 782 [2015]; see also Doe v Skidmore; Matter of Ibe v Pratt Inst., 151 AD3d 725 [2d Dept 2017].) The university's decision "must be annulled only where there has been a lack of substantial compliance, or where the determination lacks a rational basis. Perfect adherence to every procedural requirement is not necessary to demonstrate substantial compliance." (Skidmore, 152 AD3d at 935 [citations omitted].)

With respect to the substantial compliance aspect, Doe lists a number of examples to support his position that Cornell did not substantially comply with its own policy and procedures in this case. The court will address them in the order they were raised by Doe.

1. Questions Submitted by Doe for the Hearing Panel to Ask Roe

Doe contends that, before the hearing, he submitted questions and topics that would bear on Roe's "false statements, {**59 Misc 3d at 927}material inconsistencies, plans for the party and motive to fabricate her claims" (amended verified petition ¶¶ 70-71), but the Hearing Panel failed, or refused, to ask any of those questions, or explore any of those topics. Doe specifically notes that he is not claiming that the Hearing Panel was obligated to ask any particular question in the form he requested, but rather, that the Procedures require some questioning in some form, on relevant topics, and that Cornell failed to do so. (Petitioner's brief in response filed Sept. 6, 2017 at 3.) As a result, Doe claims he was not given a fair opportunity to defend himself and was deprived of a fair hearing.

Both parties cite to the Procedures at page 31 titled "Second Pre-Hearing Submission-Questions and Topics" to support their respective positions. Doe emphasized the provision that states "[t]he Hearing Chair will approve in substance all questions or topics that are relevant and that are not prohibited by these procedures or applicable laws, unduly prejudicial, or cumulative of other evidence." He claims that if a question is relevant, and not prohibited, the chair is obligated to approve it. However, the sentence immediately preceding that provision states "[t]he Hearing Chair, in consultation with the Hearing Panel, will determine which of the parties' requested questions will be asked or topics covered."

Doe exercised his right to submit proposed questions for Roe, and as the Appeal Panel observed, those proposed questions focused on two primary areas: (1) whether Roe had attended the party with the intention of possibly engaging in sexual activity and (2) false statements, inconsistencies and other factors that could bear on Roe's credibility.

In fact, Doe had raised these issues early on in the investigative process. (See letter from Doe's parents to Title IX coordinator dated Oct. 3, 2016.) It was claimed that Roe had recently broken up with her boyfriend, and made statements that she was going to "black out" at the party, and might even try to sleep with someone at the party. It was also alleged that a witness had claimed that Roe had an excellent memory, even when she "blacked out" from drinking. Doe contends that the Hearing Panel's refusal to ask any questions on Roe's credibility and her plans for the party were prejudicial as those items were vital to Doe's defense and his [*10]own claims.

Cornell has offered varied arguments in opposition to Doe's assertion. The Hearing Panel's decision stated that Doe's areas of inquiry were considered and questions were revised and{**59 Misc 3d at 928} combined. The Appeal Panel contended that Roe's plans for the party had no bearing on her ability to consent later that evening and that the voluminous record provided enough evidence as to her credibility. Cornell also argues at this juncture that Doe waived any challenge to the Hearing Panel's credibility determination.

The court's review of the transcript from the disciplinary hearing shows that Doe is correct that Roe was not asked questions about her plans for the party, or other questions Doe posed relative to Roe's credibility. Doe argues that the failure of the Hearing Panel to inquire about them deprived Doe of his rights. However, the court's inquiry is on whether Cornell substantially followed its policy and procedures. Although the questions would have been quite necessary in a cross-examination context, the Procedures give broad discretion to the Hearing Panel on the questions which will be asked. Further, the record here shows that the topics raised by Doe were addressed elsewhere in the investigative record, including in prior testimony of the parties and other witnesses, and were available to the Hearing Panel. The Procedures permit the parties to offer suggested questions and topics, but the Hearing Panel is not obligated to ask all questions. To be sure, the Hearing Panel cannot ignore all arguments made by the parties, but in this case, the information and evidence was available from other sources, and the only thing Doe was deprived of was having the questions asked directly to Roe by the Hearing Panel. However, the right of confrontation or cross-examination is not directed or guaranteed under the Procedures. While it is clear that the Procedures do permit input from the parties, the ultimate decision as to what questions will be asked of the witnesses is reserved to the discretion of the hearing chair and the Hearing Panel.

2. Doe's Request for the Title IX Investigator to Testify

Doe requested that the new lead Title IX investigator^[FN*] be present at the hearing to answer questions about the investigative report, and Doe sent a list of proposed questions. The Hearing Panel determined not to have the investigator testify because the investigative report is not considered evidence, and all the information and testimony referenced in the investigative record would be available to the Hearing Panel.{**59 Misc 3d at 929} In essence, the Hearing Panel would be conducting a de novo review. The hearing chair also informed the parties that she felt the investigator's testimony would not assist the factfinders, and would be irrelevant or cumulative.

Doe argues that the Procedures expressly state that the investigator will testify at the hearing, and will answer questions about the investigative report and record (Procedures at 31, 33 [emphasis added]). In fact, the Procedures specifically state that the typical hearing format [*11]will have the investigator testify after the introductions, and prior to the testimony of other witnesses. (Procedures at 33.)

Nevertheless, as previously discussed, the hearing chair is vested with discretion under Policy 6.4 to determine what witnesses will be called to testify. In this case, the hearing chair determined, within her discretion, that the investigator's testimony would not be helpful to the Panel, and that the members had no questions for him. Instead, the Panel would conduct its own independent review of the records, and reach its own conclusions. Such a course of action is within the discretion afforded the hearing chair under the policy and procedures.

3. Doe's Claim That the Investigative Report Contains Errors

Doe claims that the investigative report inaccurately describes a conversation between Doe and Roe about birth control and sexually transmitted infections (STI) just prior to the alleged sexual assault. Doe contends that the substance of the conversation is key to evaluating the consent issue, and in assessing the credibility/motivation of Roe. Doe sought to remedy the errors by seeking a direction from the hearing chair to the Panel members and/or through testimony from the investigator.

Policy 6.4 does not mandate that the chair evaluate the investigative report and offer opinions or corrective statements. Rather, the parties are permitted to make their own opening and closing statements, and provide their own arguments concerning any of the evidence that has been presented, including accuracy and sufficiency. The parties can also state their position as to any conclusions they think should be drawn from the evidence. In fact, Doe availed himself of the opportunity to highlight the alleged errors and point to any conflicting evidence to support his version. The Hearing Panel disagreed. Nothing more is required with respect to this. This is particularly true since the Hearing Panel is serving as factfinder, and{**59 Misc 3d at 930} any statements in the investigative report are subject to corroboration in the record (to the Hearing Panel's satisfaction), and are subject to any arguments made by the parties to call into question those statements or findings. Here, even with the arguments made by Doe, the Hearing Panel made its own determinations as to what the record established, including the conversation about birth control and STIs, and the record as a whole.

4. Summary of a Conversation between Title IX Investigators and a City of Ithaca Police Investigator

As previously noted, on August 21, 2016, Doe was interviewed by Detective Barksdale, who secretly recorded the interview. The Ithaca police released that recording to Cornell in early February 2017.

Meanwhile, in September 2016, the Title IX investigators had a conversation with Barksdale, but Barksdale indicated that she would not be interviewed as a witness, and she would not be audio recorded and she would not appear at any hearing. Following the [*12]discussion/conversation, the Title IX investigators made a written summary of what Barksdale had stated to them. Doe contends that the Procedures require interviews to be audio recorded, and since Barksdale refused the audio recording, any reference to it should be removed from the record. In fact, the interview should have terminated when Detective Barksdale declined the audio recording. Doe also argues that Cornell changed the characterization of the Barksdale encounter from an interview to a conversation in order to avoid the recording requirement. Doe also contends that the Title IX investigator's report contained false information about what Doe had said to Barksdale (which became clear once the Barksdale audiotape surfaced). The hearing chair rejected Doe's request to have the written summary of the Barksdale conversation excluded from the record and gave no corrective guidance to the Panel.

While the court is troubled by the written summary remaining in the record, as the written summary is inconsistent with the actual audio recording and is therefore of little probative value, it appears that the Hearing Panel did not place any weight on the investigator's written summary of her conversation with Barksdale. In fact, the Hearing Panel had the transcript of the Barksdale/Doe interview and was able to evaluate that, independent of the Title IX investigator's summary of her own conversation with Barksdale. Further, the{**59 Misc 3d at 931} Hearing Panel's decision makes several references to the transcript of the Barksdale/Doe interview, but no references to the Title IX investigator's summary. This is evidence the Hearing Panel went to the source of the information, and not the inaccurate written summary of the Title IX investigator. Thus, the inclusion of the written summary did not impact the determinations.

5. Exclusion of Videotaped Testimony

Doe additionally claims that the hearing chair improperly excluded videotaped testimony he sought to introduce in March 2017. After the City of Ithaca released the audiotaped Barksdale conversation with Doe, the Title IX Coordinator advised the parties that the record would be reopened to include that interview and to allow the parties to respond to that new evidence. Doe claims that the Procedures only allow the record to be open, or closed. It cannot be opened with limitations or restrictions. During the time that it was "re-opened," Doe sought to introduce a videotaped conversation that one of Doe's lawyers had with witness No. 4. That recording was made in September 2016 but not submitted by Doe until March 5, 2017. Doe claims that the email message about the investigation being reopened contained no limitation on the submission of evidence, and in fact, nothing in Cornell's Policy would permit the limiting of the evidence that could be submitted, as long as the record is "open." Doe does not claim that his evidence was "newly discovered" and thus he is not relying on that portion of the Policy which allows for submission of "newly discovered" evidence. Rather, the investigation was open when he submitted his evidence.

By the time the Barksdale recording was received, the investigative process had concluded and the record had been provided to the parties. Upon receipt of the Barksdale recording, the Title IX coordinator, Sarah Affel, sent an email to the parties on February 7, 2017, informing them of the receipt of the audio recording. She referenced the Procedures at pages 33-34, [*13]pertaining to "newly discovered" evidence. The parties were given until February 13, 2017, to request inclusion of the audio recording into the investigative record, and a request was made to have it included.

Thereafter, on February 22, 2017, the hearing chair sent an email to the parties informing them that the

"audio recording, which was unobtainable during the investigation, constitutes newly discovered evidence,{**59 Misc 3d at 932} and should be admitted into the investigative record . . . [I]n accordance with the Procedures, Section XXI.J.1., I am directing that the investigative process be reopened and I have referred these requests to Investigator Peat, who is handling the matter."

Investigator Peat sent an email to the parties on March 6, 2017, stating that the investigation would remain open through March 7, 2017, and that the investigation would close shortly thereafter, and he would prepare a supplemental investigative report. Doe places emphasis on the Peat letter to show that the whole investigation was open, and therefore, Doe should also be allowed to submit the videotape he seeks to introduce. He points to pages 23-24 of the Procedures that reference the parties' submission of evidence during the investigation.

However, it is evident from the emails of Affel and the hearing chair that the record was being reopened under section XXI.J.1, which provides, in pertinent part: "Where . . . newly discovered . . . evidence is introduced . . . the Hearing Chair will adjourn the hearing for the investigator to investigate the newly discovered witness or evidence," and the "Hearing Chair will also re-open the pre-hearing submission process so the parties may respond to the new information." (Emphasis added.) Thus, the court views the Procedures as allowing the record to be reopened for the limited purpose of addressing the newly discovered evidence, and only that evidence. That is also the interpretation and message conveyed by Affel's email and the hearing chair's email. The email from Peat is less specific, but does not stand for the reopening of the entire record. As Doe concedes his evidence is not newly discovered, it was proper for the Hearing Panel to refuse to accept it and make it part of the record.

6. Conflict of Interest of the Title IX Investigator

Doe also argues that the initial Title IX investigator, Elizabeth McGrath, should have been removed from the investigation, because she had a conflict of interest stemming from the discrimination complaint Doe had filed against her. The mere filing of a discrimination complaint against the Title IX investigator cannot give rise to automatic disqualification, as that would clearly allow false accusations to lead to removal of investigators until one deemed favorable was appointed. On the other hand, it is also clear that a person against whom a discrimination complaint is filed may have a conflict of interest in the handling of the original complaint.{**59 Misc 3d at 933}

In this case, Cornell did hire an outside attorney to evaluate Doe's complaint against McGrath and found it did not have merit. The Hearing Panel also made its own determinations [*14]of fact, and did not base it on the investigative report, or on McGrath's work.

The court finds insufficient evidence of an actual conflict, or that any perceived conflict had an impact on McGrath's work, or an impact on the Hearing Panel's determinations. Further, there is nothing specifically in Cornell's policy which would mandate the removal of McGrath from continuing to handle the investigation, which she had been involved with from the start of this case.

7. Alleged Failure to Provide Doe with Notice of the Sexual Abuse Policy

Doe claims that he did not receive notice about Cornell's sexual abuse policy until after this incident occurred, and was certainly unaware it could pertain to off-campus conduct. Specifically, the Title IX orientation for incoming students took place 2 days after this incident.

All incoming freshman receive a Cornell Family Guide, introducing the student and their families to Cornell and includes references to the Campus Code of Conduct. They also received a message from the university police department providing safety information, and links to Cornell's Sexual Harassment and Assault Resources. Whether he, or any other student, went to those links to look up the Campus Code of Conduct is doubtful. However, even without specifically doing so, the information about a sexual abuse policy was made known to incoming students, who could then follow up or not. It is at least sufficient to put a person on notice as to the existence of a policy.

Based upon the discussion above, the court concludes that Cornell substantially complied with its established policy, both with respect to the individual portions and claims noted above, and also as a collective whole. Accordingly, the court finds that count I of the verified petition should be dismissed.

C. Were the determinations supported by a rational basis (count III of the verified petition)?

[3] Having determined that Cornell substantially followed its own policy with respect to the processing of these complaints, the court next turns to the consideration of whether the determinations were supported by a rational basis. " 'An {**59 Misc 3d at 934}action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts' " (Matter of CDE Elec., Inc. v Rivera, 124 AD3d 1178, 1180 [3d Dept 2015], quoting Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]; Matter of Mallick v New York State Div. of Homeland Sec. & Emergency Servs., 145 AD3d 1172, 1174 [3d Dept 2016]). "When a determination is supported by a rational basis, it must be sustained even if the reviewing court would have reached a different result." (Matter of CDE Elec., 124 AD3d at 1180.)

In the present matter, the Hearing Panel was tasked with evaluating and ruling on four separate complaints, two dealing with the sexual acts of August 19, 2016, and the remaining two dealing with retaliation. The Hearing Panel had a very large record, consisting of numerous reports, documents and testimony from many different witnesses. As part of its deliberations, the Hearing Panel also made credibility determinations. While Doe and Roe have different accounts from that evening, and divergent views as to the proper application of the Procedures and interpretation of the evidence, there is ample evidence in the record to support the Hearing Panel's determinations.

In particular, there is evidence to support the conclusion that Doe violated Policy 6.4 by engaging in sexual activity with Roe at a time when she was unable to consent, by virtue of her intoxication, and that Doe knew, or should have known, that Roe was incapacitated. The Hearing Panel described the testimony and evidence it relied upon in making this determination, including: testimony of witnesses who observed and interacted with Doe and Roe before they went upstairs; testimony from witnesses who observed Roe shortly after and noted her level of intoxication; testimony from witnesses who entered the room, and observed the sexual encounter; text messages from various individuals, and the testimony of Doe and Roe themselves. The Hearing Panel also found Doe to lack credibility based upon untruthful statements he made to Barksdale and other statements he made throughout the case.

To be sure, Doe has presented his own evidence that could have reasonably supported a different conclusion. However, the Hearing Panel was charged with the responsibility of reaching conclusions in this case, and part of that involved making credibility determinations and determining the weight to give various pieces of evidence. The Hearing Panel's decision provides sufficient bases to support the conclusions it reached, and is therefore rationally based on the evidence.{**59 Misc 3d at 935}

Similarly, the Hearing Panel had a sufficient basis for reaching a determination that Doe was responsible for retaliation. The Hearing Panel concluded that Doe filed his sexual assault complaint against Roe in retaliation for her filing her complaint. The Hearing Panel concluded that Doe filed his complaint as a tactical maneuver, and discredited Doe's claim of lack of consent as "specious." The Hearing Panel noted that Doe did not mention his alleged lack of consent to Barksdale just two days after the sexual acts. That, and other factors, led to the conclusion that Doe's complaint was filed in retaliation. There is sufficient basis in the record to support that conclusion.

Based upon all the foregoing, the court finds that the Hearing Panel's determinations had a rational basis, and that count III of the amended verified complaint is dismissed.

Subsequent to the oral argument on the petition, Doe filed a motion on September 27, 2017, seeking a stay of enforcement of any adverse decision by this court to maintain the status [*16]quo pending an appeal, or to stay enforcement for a period of time in order to allow Doe to seek a stay from the Appellate Division. Cornell objected, and pointed out that petitioner is essentially making a "conditional" motion in the event the court's decision is adverse to him. The court wrote to the parties and informed them there would be no oral argument on the motion, and the court would address the stay when it renders its decision.

This court did issue a stay when the action was commenced in July 2017, in order to maintain the status quo, and to prevent substantial, if not irreparable harm to Doe that could have resulted from the enforcement of the disciplinary proceedings. The purpose of the stay was to maintain the status quo while the court considered the merits. The court has concluded that consideration and rendered its own decision and order, which results in dismissal of the petition. The rendering of this decision and order concludes this court's role in the process. The petitioner's avenue to challenge this court's decision and order is now through the appellate process.

The effect of the court's decision and order leaves intact the determinations made by Cornell. For the court to conclude that Cornell's determinations should not be overturned, and then conclude that Cornell should be further restrained from enforcing those determinations would be incongruent. There is no{**59 Misc 3d at 936} reason to maintain an ongoing status quo once the merits have been reached and the determinations made by Cornell have been upheld by this court. Further, with the dismissal of the petition, there is no action to which the injunction can apply.

Accordingly, petitioner's September 27, 2017, motion for a stay is denied. The temporary stay imposed as part of this court's signed order to show cause filed on July 28, 2017, is hereby vacated.

The court finds that this matter is not subject to transfer to the Appellate Division under CPLR 7803, 7804. The court also finds that Cornell substantially complied with its Policy and Procedures in handling these complaints, and that its determinations were rationally based.

Accordingly, the petition is dismissed. The stay previously imposed is vacated.