Judge Halts Suspension After Student Alleges 'Perverse and Bizarre' Title IX Outcome

By Drew Musto - The Cornell Daily Sun

A student found guilty by Cornell of sexually assaulting and retaliating against a female student could be back on campus in the fall because a judge temporarily barred the University from suspending him.

Cornell handed the male student a two-year suspension in May, and a University appeal panel upheld the punishment on Wednesday, leaving the student, who is in the Class of 2020 and is referred to as John Doe, with a notation of guilt on his transcript. The student sued Cornell the next day, arguing that the University departed from its own policies and that there was a lack of substantial evidence to find him responsible.

On Friday, Tompkins County Justice Eugene Faughnan temporarily stayed the suspension while he considers the merits of Doe's case against Cornell.

Doe's attorney, Alan Sash, said the judge recognized the immediacy of the case and acted quickly so that Doe could be back at school in time for the fall semester.

This suit is the second claim filed in less than four months alleging that Cornell did not act properly in a Title IX investigation.

The new Doe case arises from a Friday night party in 2016. Doe and a female student accused each other of sexual assault within a week of that night.

The male student said the female student, who is referred to as Sally Roe, forced him to have sex without his affirmative consent. Roe said she was too intoxicated to consent to sex.

The same judge already sided with the plaintiff and against the University in a related case earlier this year. In January, Faughnan ordered the University to investigate Doe's claim that Elizabeth McGrath, one of the Title IX investigators who investigated his case, had discriminated against him during her investigation.

At first, Cornell refused to investigate this plaintiff's discrimination complaint until the Title IX investigation was completed, a decision Faughnan called "arbitrary and capricious." A Cornell spokesperson, Lindsey Hadlock, confirmed in April that McGrath was no longer employed by the University. McGrath is also at the center of the other open Title IX case.

But Doe's newest lawsuit makes cutting claims about the fairness of Cornell's Title IX investigation at a time when the Title IX process is under scrutiny from the Department of Education.

Doe alleges both that Cornell arbitrarily and prejudicially departed from its own policies and that Cornell's findings of guilt are unsupported by the available evidence. Doe is asking the court to vacate Cornell's findings of guilt and its suspension.

Doe's lawsuit rehashes similar complaints made by other students regarding Cornell's Title IX process, including that the process does not allow the same protections as the legal system, such as the right to confront one's accuser.

Doe said the three-member University hearing panel did not ask his accuser certain questions that may have weakened her case and that he specifically requested it ask. Cornell does not give parties in Title IX the right to confront each other, so students can only question each other by suggesting questions to the hearing panel.

Doe said the panel never addressed what he says are inconsistent claims by the female student, such as the amount of alcohol she drank — Doe says she first told a police investigator she didn't drink "that much," then later told the panel her level of intoxication was "in the death range" — and whether she was in pain after the sexual encounter.

The male student also asserted that another Title IX investigator, Kareem Peat, improperly excluded evidence from the investigative record and that McGrath had a conflict of interest because of his discrimination claim.

During the Title IX hearing, which Doe was watching remotely, Cornell's audio and video equipment failed, prompting the student to send eight emails within five minutes to the Title IX Office asking for the AV functions to be restored.

In Doe's suit asking the judge to vacate Cornell's punishment, he said the evidence in the case does not support the panel's "perverse and bizarre" decision.

Four witnesses who saw Roe before she and Doe had sex gave varying accounts of her state, ranging from "completely fine" to "a little bit drunk" and to "very drunk." The witness who said Roe was "very drunk" appeared to walk back the comment months later, saying he "fe[lt] like [Roe] was drinking but I didn't know as to what level of intoxication she was." The hearing panel credited the witness's earlier assessment that Roe was "very drunk," saying his memory likely eroded in the eight months that passed between the night and the day he testified that he "didn't know as to what level" Roe was intoxicated.

Another two witnesses actually entered the room where the two students were having sex at different times, both saying they did not discern that anything inappropriate was occurring.

Roe was found unconscious in the bed where the two had sex after the encounter. It is unclear exactly how much time elapsed between the end of their sexual activities and Roe's being found unconscious, but evidence from text messages and witness accounts suggests a maximum of 30 minutes passed, with some estimates putting the elapsed time at 17 minutes.

Roe's state after the encounter tended to support her telling of the story, the panel found, and it rendered Doe's story doubtful. Doe maintains that Roe's condition worsened significantly after the sexual encounter ended.

The panel slapped on a second guilty finding against Doe. It found that the male student accused the female student of sexual assault as "a tactical maneuver and in bad faith." The panel said the male student, in claiming that Roe had initiated sex without his affirmative consent, had put Roe "through the proverbial wringer" and that it constituted retaliation, prohibited by Cornell policy.

Doe said he filed the allegedly retaliatory complaint on the advice of his lawyer after he discovered Cornell's definition of sexual assault.

Faughnan has ordered both parties to appear in Tompkins County Court in September.

The Cornell Daily Sun

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