Doe v. Syracuse Univ.

457 F.Supp.3d 178

John DOE, Plaintiff,

v.SYRACUSE UNIVERSITY, Defendant.

No. 5:17-cv-787 (TJM/ATB)

United States District Court, N.D. New York.

Signed April 30, 2020

Catherine H. Josh, Rochester, NY, Joshua A. Engel, Pro Hac Vice, Engel & Marton, LLC, Mason, OH, for Plaintiff.

Thomas S. D'Antonio, Jeffrey D. Casey, Ward Greenberg Heller & Reidy LLP, Rochester, NY, for Defendant.

DECISION & ORDER

THOMAS J. McAVOY, Senior United States District Judge Before the Court are Plaintiff John Doe's motion for partial summary judgment and Defendant Syracuse University's ("Syracuse" or "the University") motion for summary judgment. See dkt. #s 63, 78. Also before the Court is a motion by the Daily Orange , an independent student newspaper at Syracuse University, to lift the Court's order sealing a certain document in this case. See dkt. # 72. The parties have briefed the issues, and the Court has determined to decide the matter without oral argument.

I. Background

This case concerns disciplinary action taken by Defendant Syracuse University against Plaintiff John Doe. After an investigation and a hearing, the University concluded that Doe violated the University's student contact policy by sexually assaulting another student, Jane Roe,¹ on the night of September 13, 2016 and the early morning hours of September 14, 2016. The University also found that Plaintiff had violated an interim no-contact order that administrators issued. After Plaintiff's appeal failed, the University expelled him. The instant action, in which Plaintiff alleges discrimination on the basis of his sex in violation of Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq., followed.

A. The Climate at Syracuse University Concerning Sexual Assault Allegations²

Plaintiff alleges that in "the period preceding the disciplinary sanctions" he faced, "there was substantial criticism of" the University, "both in the student body and in the public media[.]" Plaintiff's Statement of Material Facts in Support of his Summary Judgment Motion ("Plaintiff's Statement"), dkt. # 63-2, at ¶ 1. This criticism "accus[ed] Syracuse of not taking seriously complaints of female students alleging sexual assault." Id. Defendant disputes Plaintiff's allegation, noting that the "University in fact devotes substantial resources to anti-harassment, anti-violence[,] and anti-discrimination efforts, including efforts related to sexual misconduct and sexual assault." Defendant's Response to Plaintiff's Statement of Material Facts in Support of his Summary Judgment Motion ("Defendant's Response"), dkt. # 73-1, at ¶ 1. Syracuse received a report from the Chancellor's Workgroup on Sexual Violence Prevention, Education and Advocacy in December 2014. Plaintiff's Statement at ¶ 1(a). Plaintiff contends that the report focused on men when discussing how to prevent sexual violence, pointing to a statement that "[t]he discourse on campus about sexual assault and relationship violence typically focuses on male-on-female violence involving students who are full time undergraduates, White, and heterosexual."³ Id.

Plaintiff notes that the United States Department of Education's Office of Civil Rights (OCR) conducted two investigations into the University's response to the allegations of sexual assault. Id. at ¶ 1(b). OCR notified Syracuse on June 22, 2016 and January 17, 2017 that Office was investigating two complaints that the University had failed to respond " ‘promptly and equitably’ " to a " ‘report of sexual assault.’ " Id. The University acknowledges the existence of these notices, but also notes that the OCR's investigation did not result in a finding that the University had violated the law related to Title IX compliance and enforcement. Defendant's Response at ¶ 1(b). Status reports from the Chancellor's Task Force on Sexual and Relationship Violence noted that the Syracuse was monitoring developments related to the OCR investigation. Plaintiff's Statement at ¶¶ 1(c)-1(d).

B. Data on Adjudications at Syracuse Involving Sexual Assault

Plaintiff points to data provided by the University to show that Syracuse undertook 31 investigations of allegations of sexual assault between 2013 and 2016. Id. at ¶ 2. 30 of those investigations involved allegations that a male student had sexually assaulted a female student. Id. One case involved an allegation that a male student had assaulted another male student. Id. The data does not reflect a case where a female student allegedly assaulted a male student. Id. The University points out that the document in question contains "formal complaints of sexual assault adjudicated by the University from 2013/2014 to 2016/2017." Defendant's Response at ¶ 2. The Court's review of that document indicates that of the thirty-one sex-assault cases adjudicated during the period in question, thirty involved allegations by a woman that a man had assaulted her. See dkt. # 63-8. One case involved allegations that a man had attacked another man; one of the men complained. Id. Two cases involved allegations of sexual assault brought against a man by the University. Id.

C. Procedures for Adjudicating Sexual Assault Claims at the University

The Syracuse Student Conduct System Handbook contains a section entitled "Syracuse University Policy on Sexual Assault, Sexual Harassment, Stalking or Relationship Violence." Plaintiff's Statement at ¶ 3. In addition to other conduct, the policy prohibits harassment, sexual assault, and relationship violence. Id. The Sexual Misconduct Policy has a "Bill of Rights." Id. at ¶ 4. Included in these rights is the right to "participate in a process that is fair, impartial, and provides adequate notice and meaningful opportunity to be heard." Id. The Student Conduct System also guarantees each student "fundamental fairness." Id. The Syracuse policies do not "include the concept of ‘innocent until proven guilty.’ " Id. The University points out that the policies contain a statement that all students have "the right to written notice of the charges and a right to hearing before any change in status is incurred for disciplinary reasons unless a significant threat to persons or property exists." Defendant's Response at ¶ 4.

The Handbook defines "affirmative consent ... as ‘a knowing, voluntary and mutual decision among all participants to engage in sexual activity." Id. at ¶ 5. The policy further establishes that " ‘[c]onsent 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.’ " Id. The policy addresses intoxication, stating:

Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol ... Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness of being asleep, being involuntarily restrained, or if the individual otherwise cannot consent. Depending on the level of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.

Id. at ¶ 6. The policy does not define "incapacitation," and the parties disagree about what the word means. Id. at ¶ 7; Defendant's response at ¶ 7. Plaintiff claims that, in practice, "incapacitation" means "impaired or ‘very drunk.’ " Plaintiff's Statement at ¶ 7. Defendant contends that "[a] person is incapacitated when the person is not able to make decisions for themselves to consent to engagement in particular sexual activity." Defendant's Response at ¶ 7.

The policy also establishes, Defendant points out, that "[t]he definition of consent does not vary based on a participant's sex, sexual orientation, gender identity, or gender expression." Defendant's Statement of Material Facts in support of its summary judgment motion ("Defendant's Statement"), dkt. # 78-2, at ¶ 4. In addition, consent to a prior sexual act does not "necessarily" indicate consent to any other act. Id. at ¶ 5. A person may withdraw consent at any time. Id. at ¶ 6. The policy also provides that consent must be obtained when a person is under the influence of alcohol or drugs. Id. at ¶ 7.

Citing to the testimony of Syracuse University Title IX investigator Bernerd Jacobsen, Plaintiff contends that "if two students engage in sexual activity where both are intoxicated to the point of incapacitation, both have violated" the policy. Plaintiff's Statement at ¶ 8.⁴ Defendant responds that Jacobsen answered the question in only a "hypothetical" sense, noting that the policy would permit such an outcome. Defendant's Response at ¶ 8. According to the Defendant, "[t]here was no specific instance identified where that hypothetical circumstance actually occurred." Id.

The policy provides that people who allege violations of the University's sexual misconduct policy should make complaints to the Title IX Coordinator. Plaintiff's Statement at ¶ 9. The Title IX Coordinator can serve as a complainant and initiates claims on behalf of the alleged victim, and without the cooperation of that alleged victim. Id. The Title IX Coordinator designates an investigator upon receipt of a complaint. Id. at ¶ 10. The investigator "may" conduct an investigation. Id. Upon completion of a report, both the complainant and the respondent are permitted to review the report and provide a written response. Id. Both the complaining party and the party who responds are entitled to a procedural advisor of their choice throughout the investigation. Defendant's Statement at ¶ 11. The University contends that the final report from the investigator "describes the relevant facts learned but does not draw any conclusions or make any recommendations with respect to responsibility." Id. at ¶ 15. Plaintiff...