Alan Sash Successfully Represents University Student in State Court

(Ashe Schow, Watchdog.org) In November 2016, a male Cornell University student filed a complaint against the university for refusing to immediately investigate his claim of gender bias. Now a judge has ruled that Cornell acted in an “arbitrary and capricious” manner by refusing to follow its own anti-discrimination policy, which caused the male accused student “actual harm.”

It was August 2016 when two Cornell students — John Doe and Jane Roe, as they’re referred to in court documents — engaged in sexual activity. Jane filed a sexual assault accusation against John. But John alleges that he had wanted to file his own accusation against Jane, but didn’t know her name until after she lodged a complaint against her with the school.

Even though both students’ claims should have been investigated per Cornell policy, only Jane’s was looked into. John alleged in his complaint against Cornell that the investigator looking into Jane’s claims showed a clear bias against him. For example, the investigator asked “misleading, prejudicial and slanted questions only of John Doe,” and refused to require Jane and her witnesses to preserve and produce text messages that could have helped John’s complaint against Jane.

John attempted to get his complaint investigated, and even told Cornell’s Title IX coordinator, Sarah Affel, that he was being discriminated against. Affel at first seemed to be open to John’s complaint, and put him in touch with the school’s deputy Title IX coordinator, Laurie Johnston. But when no movement was made on his complaint, John’s attorney, Alan Sash, wrote to Affel. Several hours later, Johnston told John she would not be investigating his complaint against the investigator any time soon, even though Cornell Policy 6.4, which refers to accusations against students, requires investigations to be “timely, thorough, and impartial and provide for a fair and reliable gathering of the facts.”

John and his attorney filed a complaint in court, and in late January, Judge Eugene D. Faughnan of the Supreme Court of the State of New York, ruled in his favor.

Cornell argued that it would investigate John’s claims of discrimination after it finished adjudicating Jane’s sexual assault accusation against him, and that he could bring up the matter of bias from the investigator while defending himself from that accusation. Faughnan wrote in his decision that Cornell “ignores the reality that it has placed [John] in a procedurally more vulnerable position.”

“Rather than pursuing his complaint as the aggrieved party, [John] is required to pursue his claim while simultaneously defending himself against both his accuser and the investigator who found sufficient evidence to warrant a hearing,” Faughnan wrote. “Further, by forcing [John] to pursue his complaint in the context of his defense in the first instance, he is denied the opportunity to have his complaint promptly investigated and adjudicated on its own merits.”

An attorney for Cornell also argued that it was entitled to interpret its own rules how it saw fit, with which Faughnan disagreed. The judge argued that nowhere in Cornell Policy 6.4 did the school have leeway to defer an investigation — therefore, the decision to delay John’s claim was “arbitrary and capricious and without a rational basis.”

During oral arguments (a transcript of which was provided to Watchdog and verified by John’s attorney), Faughnan appeared not to buy Cornell’s position on the matter. In one such exchange, Cornell attorney Wendy Tarlow tried to argue that John would only be harmed by the decision to delay his complaint against the investigator if he were found responsible for sexual assault. Faughnan didn’t buy the argument.

Tarlow: It’s from Laurie Johnston basically saying, as you understood it, that if and when there’s some harm to him, that the process, the complaint will be processed.

Faughnan: Isn’t discrimination by itself harm?

Tarlow: If you’d like me to address that.

Faughnan: Yes.

Tarlow: So I guess my question is, what has happened to this young man that’s a harm? The only harm that will come, just as your Honor pointed out in the other Doe case, is if he’s held responsible for doing something in violation of policy.

Faughnan: I don’t know. Do you really think that’s the case, that a violation of his rights under this policy is only a harm if he ends up having some other harm?

Faughnan and Tarlow then argued for some time about whether the investigator’s bias resulted in harm if John hadn’t been found responsible. Faughnan used an example of a professor using a racial epithet or expressing a thought that women shouldn’t be scientists, and asked Tarlow if the student would have to wait until grades came out to determine whether those statements were discriminatory.

Tarlow tried to argue that the analogy was different from John’s complaint, and that there was “no basis for judging whether he’s being treated fairly.” Faughnan shot back, telling Tarlow: “You can investigate what this investigator has done or hasn’t done.”

Obviously, Faughnan didn’t accept Tarlow’s arguments, and denied Cornell’s motion to dismiss John’s complaint. He also ruled that Cornell must now investigate John’s complaint.

Something appears to be wrong with Cornell’s adjudication process, because it now has more active Title IX investigations against it from the Education Department’s Office for Civil Rights than any other college. There are currently six ongoing investigations into the way Cornell handles sexual assault accusations, some of which appear to have been filed by accused students.

Title IX states that students cannot be discriminated against on the basis of their sex, and was used by the Obama administration to require schools to more forcefully adjudicate accusations of sexual assault, which has led to many due-process rights violations for accused students.

In one complaint against Cornell, a student alleged the school ignored polygraph tests and testimony favorable to the student, the school also dismissed inconsistencies in a students’ account of the sexual assault and ignored concerns about the students’ credibility.

This doesn’t even include the lawsuits against Cornell from accused student, of which there are several.

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