Doe v. Haas, No. 19-CV-0014 (DRH)(AKT), 2019 U.S. Dist. LEXIS 211575 (E.D.N.Y. Dec. 9, 2019)
12/17/2019John Doe was accused by fellow student B.G. of non-consensual sexual contact and non-consensual sexual intercourse, in violation of Stony Brook University’s (“SBU”) Code of Student Responsibility (the “Code”). B.G. alleged the encounter began consensually, but that during the encounter, Doe attempted non-consensual anal intercourse. Doe stated he did not remember the night in question and filed a cross-complaint alleging he was intoxicated and was unable to consent to the encounter. Doe was found responsible; B.G. was found not responsible. Doe subsequently filed this action alleging due process and Title IX violations.
During the Title IX hearing, Doe was permitted to submit written questions to be asked of B.G. Haas, the Title IX review panel hearing officer, refused to ask certain questions of B.G. Additionally, a critical witness against Doe did not appear to testify but instead submitted an undated supplemental written statement. Despite the inability to question this witness, and Haas’s refusal to ask certain questions of B.G., the Court held that there was no due process violation. Doe had argued that he had a right to personally cross-examine his accuser, an argument the Court rejected as unsupported by any current case law. Additionally, Doe failed to allege SBU’s use of hearsay testimony violated his rights. Furthermore, the Court held that the individual defendants were entitled to qualified immunity because there is no clearly established right to personally cross-examine the accuser, or to exclude hearsay evidence. Consequently, Doe’s due process claims were dismissed.
As for Doe’s Title IX erroneous outcome claim, Doe’s allegations regarding SBU’s decision to accept untimely evidence from B.G. while denying Doe the same opportunity, as well as the failure to ask all the cross-examination questions proposed by Doe, were sufficient to cast doubt on the accuracy of the outcome. Doe was able to show gender bias by highlighting the clearly irregular adjudicative process. This included finding B.G. not responsible despite substantial evidence that Doe was intoxicated at the time of the encounter. Additionally, the differing treatment of Doe and B.G., such as accepting untimely evidence from B.G. but not Doe, permitted an inference of bias based on sex. For these reasons, Doe’s erroneous outcome claim survived the motion to dismiss.
Doe’s selective enforcement claim, that he was punished more harshly than similarly situated female students, was dismissed because his comparator, B.G., was not found responsible, and therefore not punished. While the Court found Doe’s allegations of the differences in the hearing panel’s treatment of him and B.G. relevant to his erroneous outcome claim, they were insufficient to support a plausible selective enforcement claim. As a result, Doe’s selective enforcement claim was dismissed.