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January 23, 2018

Third Department Rules Cross-Examination Not Required Under "Enough Is Enough" Law

In a recent 3-2 decision, the Appellate Division, Third Department, ruled that Article 129-B of the Education Law (the Enough is Enough Law) does not require educational institutions to provide students accused of sexual assault, domestic violence, dating violence or stalking with a right to cross-examine a reporting party, and an institution would violate Article 129-B by advising a reporting party that a decision not to participate in a student disciplinary process may compromise its outcome.

The Petitioner in Matter of Jacobson v. Blaise (2018 N.Y. App. Div. LEXIS 195, * 8-9, 2018 N.Y. Slip Op. 00205, ** 4 (3d Dep't Jan. 11, 2018)) had been expelled from the State University of Plattsburgh ("College") after being found responsible of initiating sexual intercourse with another student without that student's affirmative consent. The putative victim notified the College of these allegations and gave a statement to this effect to the College's Title IX Officer, Butterfly Blaise. Ms. Blaise then notified the Petitioner of the allegation, and he provided her with text messages exchanged between him and the reporting party during the days leading up to and following the incident. The College charged Petitioner with violating its Code of Conduct by having "initiated sexual intercourse with another student three different times without establishing affirmative consent" on a specified date and at specified times. At the Petitioner's request, the Director of Student Discipline also provided the Petitioner with a condensed version of the reporting party's statements to Ms. Blaise. The reporting party declined to bring the charge or participate in the student disciplinary process, so Ms. Blaise brought the charge based on the information provided by the Petitioner and the reporting party.

The reporting party was allowed to observe the student disciplinary hearing via Skype, but she did not participate in the proceeding. The hearing officer denied the Petitioner's requests to question the reporting party, but allowed him to question Ms. Blaise about the basis for her decision to bring the charge. Ultimately, the disciplinary board found the Petitioner responsible for the charged offense and imposed a sanction of expulsion. The College denied Petitioner's appeal of the findings and sanction, and the Petitioner filed an Article 78 proceeding seeking to have the College's determinations overturned.

Among other things, the Petitioner argued that the College denied him adequate due process by refusing to let him question the reporting party. The majority rejected that argument, reasoning, in part, that because Article 129-B gives a reporting person the right to decide whether to participate in a disciplinary process "free from pressure by the institution," an institution would violate this provision by advising a reporting person that a decision not to participate in the process would hinder it. The majority also concluded that while a reporting person may request that a college file formal charges against an accused student, "it is the institution that determines whether such charges are warranted." Thus, the Court determined that it was SUNY – not the reporting individual – that had to show that the facts supported the charge. As such, the College provided the Petitioner with adequate process by allowing him to question Ms. Blaise about her basis for bringing the charge.

The majority noted that, in previous cases, institutions had provided a mechanism for the accused students to ask for additional information from the reporting person. It stated that such a process was not necessary in this case because the statements of the Petitioner and the reporting party provided "relatively consistent accounts[.]" However, "where a material factual conflict exists between the statements of a reporting person and an accused student, a mechanism should be made available for the accused student to present questions for the reporting person to address[.]" Ultimately, the Court vacated the College's determinations because it found that Ms. Blaise had badly misrepresented the meaning of "affirmative consent" and the term "initiated" during the hearing, which unfairly prejudiced Petitioner. It ordered the case remanded to the College for a new hearing.

In a strongly worded dissent, two of the five justices on the panel found that the statements of the Petitioner and the reporting party "materially differ." They noted that the reporting person had only provided her statements to Ms. Blaise, who then represented to the conduct board what the reporting party had told her. According to the dissent, "these hearsay statements materially differed [from the Petitioner's account] as to how the sexual contact was initiated and what the reporting individual did and said throughout." The dissent agreed that there is only a limited right to cross-examination in an administrative proceeding, and reasoned that cross-examination did not have to be provided in minor cases involving a risk of only "temporary embarrassment and a setback such as suspensions for weeks or months." However, the dissenting justices noted that the charge in this case would have significant impact on the Petitioner's education, employment and reputation. They asserted that the Hearing Officer could have easily allowed the Petitioner to cross-examine the reporting party, and his failure to do so hampered the conduct board's ability to decide which account to believe. In addition, they believed that Ms. Blaise's "trusted role as trainer, advisor and presenter compounded this problem, adding the imprimatur of authority and truthfulness to the hearsay that she was repeating, concomitantly impeaching petitioner." For these reasons, the dissent agreed that the College's determinations should be vacated, but, given what they found to be the Hearing Officer's refusal to provide the Petitioner with a fair hearing and his "further willingness to allow [Ms.] Blaise to offer an inaccurate and prejudicial definition of affirmative consent and the term initiate" it asserted that a remand to the College was inappropriate.

Given the split on the panel and the gravity of the issues involved, it is likely the Petitioner will seek leave to appeal the decision to the New York Court of Appeals and that the Court will grant that request. We will update you on this case if that appeal occurs. In the absence of such an appeal, this case stands for the premise that colleges and universities need not provide students with a right to question reporting persons in cases falling under Article 129-B, but should provide some mechanism for students to request additional information from a reporting party where there are substantial differences in the accounts of what occurred in a particular incident.

Should you have questions regarding the information presented in this alert, please contact Edward G. Melvin, Chair of the firm's Higher Education Practice Area, at (315) 425-2783 or


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