Title IX / College Discipline Practice - Warshaw Burstein LLP | <em >Feibleman v. Trs. of Columbia Univ.,</em > No. 19-CV-4327 (VEC), 2020 U.S. Dist. LEXIS 31499 (S.D.N.Y. Feb. 24, 2020)
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  • Feibleman v. Trs. of Columbia Univ., No. 19-CV-4327 (VEC), 2020 U.S. Dist. LEXIS 31499 (S.D.N.Y. Feb. 24, 2020)
    Following an eight-month-long investigation, Feibleman was expelled from Columbia University’s School of Journalism (“Columbia”) for allegedly sexually assaulting a fellow student who was incapacitated and unable to consent. Feibleman then filed this lawsuit for violations of Title IX and state law breach of contract claims alleging that a contemporaneous audio recording, over 700 photographs and videos from the night, as well as witness statements exculpated him and that he was subjected to an unfair and discriminatory investigation. Columbia moved to dismiss, which the Court denied with regard to Feibleman’s Title IX claim but granted in part for Feibleman’s various contract-based claims.

    Feibleman was successful in pleading gender bias for his erroneous outcome claim. The Court held that procedural irregularities, including the preferential treatment given to the complainant, Jane Doe, Columbia refusing to investigate Doe's retaliatory behavior, declining to prevent Doe from talking to witnesses about the incident, ignoring evidence contradicting Doe's version of events, and finding him less credible than Doe, even though he had corroborating evidence while Doe had limited recall, was sufficient to plead a minimal inference of gender bias.

    Feibleman did not dispute the sexual activity he and Doe engaged in, but instead attacked Columbia’s finding that Doe was incapacitated and unable to consent. Feibleman pointed to the fact Doe had only had a sip of beer in the hours since they left a reception earlier in the night. He also used photographs and witness statements to show that Doe had managed to climb a water tower and balance herself on the steep incline. Later in the night, at Doe’s apartment, witness testimony showed that Doe had been alert and engaged in conversation shortly before the incident. Feibleman also had an audio recording in which Doe repeatedly expressed her desire to have sex with Feibleman. This evidence, combined with Doe’s capacity when she was on the water tower, called into question whether Columbia erred in finding by a preponderance of the evidence that Feibleman committed sexual assault in Doe’s bedroom.

    Feibleman’s breach of contract claim for failure to complete the investigation within 60 days was dismissed because the 60-day timeline was aspirational in nature and included an array of possible exceptions in individual cases. The Court also dismissed Feibleman’s breach of contract claim for Columbia’s failure to enforce its anti-retaliation policy against Doe. The Court did not view Columbia’s order that neither party speaks with witnesses about the case as a confidentiality policy, and therefore Columbia did not breach a contractual duty by failing to prevent Doe from spreading false rumors about the case. Feibleman’s breach of contract claim based on Columbia improperly withholding his degree remains, as it is linked to Feibleman’s erroneous outcome claim.