New York High Court Renders Important Decision Deferring to Institutional Determination in Sexual Misconduct Proceeding

November 6, 2018

By: Howard M. Miller

Irrespective of one’s political point of view, the Kavanagh confirmation hearings captured the Nation’s attention and created watercooler debates, heated at times, as to respective views of the truth in a case involving sexual assault.  And while the public may becoming adept at sideline adjudications of wildly divergent versions of events, Colleges have long been on the front line. 

As with many well intended statutes, Title IX and its state law corollaries have spawned unintended litigation from all sides and every angle.   Colleges frequently get sued when the alleged victim feels that nothing or not enough has been done.  Conversely, with increasing frequency colleges are being sued in so-called “wrongful outcome” cases when the accused has been disciplined, including being expelled from the institution.  

Against this backdrop, the United States Department of Education has repealed its prior guidance on proper procedures for student on student harassment matters, but has yet to articulate a clear view on how to best protect the rights of both parties in an internal disciplinary hearing.   Adding to the uncertainty regarding the governing rules and standards in a student hearing where sexual assault is the allegation was an Appellate Division, Third Department decision, Haug v. State University of New York at Potsdam, 149 A.D.3d 1200 (3d Dep’t 2017), that seemed to leave colleges open to serious second guessing after a final determination is made as to a student’s guilt of sexual assault.  That decision, however, was recently overturned in an opinion by the Court of Appeals that should restore at least some comfort to those tasked with making what are at times seemingly impossible determinations. 

                The Third Department’s Split Decision 

The Third Department’s decision sets forth the underlying facts that were before the college hearing panel, but not in a particular order.  This is because the Court was bitterly divided 3-2, with each opinion relying on facts that were not stated in the other’s opinion.   The case came before the Court after a male student was expelled from SUNY Potsdam as the result of being found guilty of sexual assault on a female student.

The initial facts may sound familiar as they are common on campuses everywhere. Two college freshmen whom had been friends for years crossed paths after a night of drinking.  The female student invited the male student into her dorm room.  The male proceeded to enter the room and lock the door.  

The friends began “making out” on the female student’s bed and when the male student suggested they have sex, the female student did not say anything or give any gesture to indicate that the sexual encounter was not welcome.  She did, however, take her shirt off.  
From here, the versions of events diverge. 

A.    The Majority Opinion

According to the account given by the female student to the school’s director of student conduct and community standards, the female “froze up” and did not respond to the male’s advances.  The male student continued to have sexual relations with her, contending consent has been affirmatively given.  The majority sharply noted with respect to the female’s account, “the record does not reveal how this inner turmoil was manifested or whether [the male student] was or should have been aware of it.”

The majority went further: 

It is not clear to us that a reasonable person could find from these hearsay accounts an absence of behavior that indicated, without doubt to either party, a mutual agreement to participate in sexual intercourse, as to do so would require overlooking the complainant’s admission that she removed her shirt when sex was suggested. Indeed, the only path to finding a lack of consent under these circumstances would be to make inferences that do not   reasonably follow from the hearsay accounts of what the complainant said, such as that petitioner intimidated her into agreeing to proceed or that the manner in which she “froze up” should have caused petitioner to question her apparent willingness to engage in sex (internal citations and quotations omitted). 

In addressing the hearsay account of the female’s version of the incident, the majority attacked the propriety of the college panel’s reliance on hearsay evidence: 

Petitioner [the male student] testified at the hearing and, while the board contours of his account matched those of the complainant, their accounts differed on the critical issue of the consent. Petitioner specifically stated that they began kissing after talking and that, after a while the complainant took off both of their shirts. Petitioner then removed the rest of their clothing and asked the complainant if she had any condoms, to which she replied that she did not but that it was “fine” and no reason to worry. The complainant then straddled petitioner from above while they had sex and, after it was over, asked petitioner if he had fun. Simply put, petitioner’s testimony seriously controverted the hearsay evidence indicating that the complainant had not given affirmative consent to sexual relations and, as a result, that hearsay proof did not constitute substantial evidence to support the determination. 

B.    The Dissent

The dissenting opinion took to the majority to task both on its recitation of the facts and on its conclusions of law.   The dissent noted that the female’s freezing up was the result of having been “involved in a prior ‘traumatic’ incident.”

The dissent went on to point out salient facts that, in its view, had been omitted in the majority’s opinion. 

…petitioner’s own testimony revealed that he had doubts as to whether the complainant consented to engaging in sexual intercourse. Petitioner testified that, after receiving a campus-wide ape alert, he sent the complainant a text message about the alert,  he was “worried” and “didn’t know if she had reported [him.]” Petitioner’s testimony in this regard was indicative of a consciousness of guilt…

Although not revealed by the majority, petitioner repeatedly stated at the hearing that he had consumed a “ridiculous” amount of alcohol on the night in question going so far as to state that he had been “intoxicated,” “unable to decide what was smart” and not “fully aware of . . .the situation.” He admitted that his memories of the night were clouded by his intoxication and that he “d[did not] remember everything,” only “parts.” He stated that he did not remember locking the door to the complainant’s room and that his testimony was the result of him “piec[ing] . . .together” those parts of the night that he did remember. However, he stated that he was able to recall that the complainant told him not to “worry about it” when he stated that he did not have a condom and that the complainant had straddled him from above during intercourse. When challenged by a member of SUNY’s Hearing Board on his inconsistent testimony that the complainant had said “yes” to sex, petitioner immediately conceded that such testimony was inaccurate, thereby giving rise to an inference that other portions of petitioner’s testimony may have also been inaccurate, particularly in light of his hazy memory of the night. Moreover, petitioner’s self-serving testimony that the complainant had given him indications of consent was inconsistent with his testimony that he was “worried’ that the complainant had reported him for rape.  

Based on these additional facts, the dissent concluded:

In short, SUNY was presented with competing versions of events, each of which could reasonably support conflicting conclusions. In such cases, the duty of weighing the evidence and making the choice between conflicting inferences lies exclusively within the province of SUNY.  (internal citations and quotations omitted).

It is this view that had long been considered to be the prevailing standard for judicial review of college disciplinary determinations.  Given the 3-2 split in the Third Department, the stage was set for a landmark review from the Court of Appeals.

Court of Appeals Reverses

On October 18, 2018, the Court of Appeals reversed the Third Department’s decision. See 2018 N.Y. Dist. LEXIS 2969 (2018).   The Court did not recite the facts, but instead laid bare critical standards of review that will serve as guideposts for future cases.

First, the Court noted that often evidence can support differing conclusions.  In such situations, a reviewing court must deter to the college:

Often there is substantial evidence on both sides of an issue disputed before an administrative agency. Where substantial evidence exists to support a decision being reviewed by the courts, the determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions (internal citations and quotations omitted). 

With respect to reliance on hearsay, the Court held that “hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds.” 

The Court concluded:

Contrary to petitioner’s argument, the hearsay evidence proffered at the administrative hearing, along with petitioner’s testimony, provides substantial evidence in support of the finding that he violated respondents’ code of conduct. The hearing board also could have reasonably interpreted some of petitioner’s conceded behavior as consciousness of guilt and concluded that his version of the events was not credible. Ultimately, it was the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations. The Appellate Division improperly engaged in a re-weighing of the evidence when it substituted its own factual findings for those of respondents. 

The importance of the Haug decision cannot be overstated.  Disciplinary panels often are faced with competing versions of events which can be clouded by the effect of alcohol on the key witnesses.  The Court of Appeals has made clear that credibility determinations made by hearing panels are not subject to reweighing and second-guessing.  While it cannot be gainsaid that colleges must continue to strive to make their adjudication processes as fair and equitable as possible, they can take comfort in the fact that the Court of Appeals has made judicial review of hearing determinations restrained and not subject to annulment simply because judges disagree with them.