Case 5:17-cv-00787-GTS-ATB Document 15 Filed 09/26/17 Page 1 of 2

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JOHN DOE, NOTICE OF MOTION
Plaintiff,
Civil Action No.:
vs.
5:17-CV-0787 (GTS/ATB)
SYRACUSE UNIVERSITY,
Oral Argument Requested
Defendant.

PLEASE TAKE NOTICE that upon the accompanying Memorandum of Law, defendant

Syracuse University will move this Court before the Honorable Glenn T. Suddaby at the United

States Courthouse, James M. Hanley Federal Building, 100 S. Clinton Street, Syracuse, New York

on November 2, 2017 at 10:00 AM, for an Order, pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure, dismissing all claims asserted by plaintiff in this action for plaintiff’s failure

to state a claim upon which relief can be granted, and on the ground that certain of those claims

are time-barred as well.

PLEASE TAKE FURTHER NOTICE that Syracuse University intends to file and serve

Reply papers, and requests the opportunity to orally argue the motion.

Dated: September 26, 2017
By: s/ Thomas S. D’Antonio
Thomas S. D’Antonio (Bar No.: 510890)
tdantonio@wardgreenberg.com

WARD GREENBERG HELLER & REIDY LLP
1800 Bausch & Lomb Place
Rochester, New York 14604
Telephone: (585) 454-0700
Facsimile: (585) 423-5910

Attorneys for defendant Syracuse University
Case 5:17-cv-00787-GTS-ATB Document 15 Filed 09/26/17 Page 2 of 2

TO: Catherine H. Josh, Esq.
45 Exchange Blvd., Suite 915
Rochester, New York 14614
Telephone: (585) 423-1974
Facsimile: (585) 325-1974
chjesq@gmail.com

Joshua Adam Engel, Esq.
ENGEL & MARTIN, LLC
4660 Duke Dr., Suite 101
Mason, Ohio 45040
Telephone: (513) 445-9600
Facsimile: (513) 492-8989
engel@engelandmartin.com

Attorneys for plaintiff

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JOHN DOE,

Plaintiff,

-against- Case No. 5:17-CV-0787 (GTS/ATB)

SYRACUSE UNIVERSITY,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S RULE 12(B)(6) MOTION

WARD GREENBERG HELLER & REIDY LLP
1800 Bausch & Lomb Place
Rochester, New York 14604
(585) 454-0700

Thomas S. D’Antonio
Jeffrey D. Casey,
of counsel
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................................................ ii

PRELIMINARY STATEMENT .....................................................................................................1

Overview of the Applicable Title IX Requirements………………….. ..............................1

Syracuse University’s Policy Regarding Sexual
Misconduct and Sexual Assault………………………………… .....................………….3

The University’s Process for Investigation and Review of
Sexual Misconduct Complaints…………….................................................. ....................4

STATEMENT OF PERTINENT ALLEGATIONS AND DOCUMENTED FACTS......................... 7

ARGUMENT ........................................................................................................................................ 9

I. STRONG JUDICIAL DEFERENCE IS COMPELLED BY RELEVANT
AUTHORITY ............................................................................................................... 9

II. THE TITLE IX CLAIMS FAIL ABSENT PLAUSIBLE ALLEGATIONS
OF GENDER BIAS OR DISCRIMINATORY INTENT…………………………..10

III. PLAINTIFF FAILS TO STATE A BREACH OF
CONTRACT CLAIM……………………………………………………………...20

IV. PLAINTIFF FAILS TO STATE A CLAIM FOR NEGLIGENCE………………... 24

CONCLUSION ..............................................................................................................................26

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TABLE OF AUTHORTIES
Cases Page

Central N.Y. Tel. & Tel. Co. v. Averill, 199 N.Y. 128 (1910)…………………………………...24

Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382 (1987)…………………...........24

Coleman v. Corp. Loss Prevention Assocs., 282 A.D.2d 703 (2nd Dep’t 2001)…………………25

Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) ....................................................... 9, 16

Demas v. Levitsky, 291 A.D.2d 653 (3rd Dep’t), leave dsmsd., 98 N.Y.2d 728 (2002)………… 20

Diehl v. St. John Fisher Coll., 278 A.D.2d 816 (4th Dep’t 2000),
leave den., 96 N.Y.2d 707 (2001)……………………………………………………………..20

Doe v. Columbia Univ., 101 F. Supp. 3d 356 (S.D.N.Y. 2015).................................................... 17

Doe v. Columbia Univ., 831 F.3d 46 (2nd Cir. 2016) .................................................. 11, 17, 19, 20

Faiaz v. Colgate Univ., 64 F. Supp. 3d 336 (N.D.N.Y. 2014)...................................................... 21

Fraad-Wolff v. Vassar Coll., 932 F. Supp. 88 (S.D.N.Y. 1996) ................................................... 20

Frankel v. Yeshiva Univ., 37 A.D.3d 760 (2nd Dep’t),
leave den., 9 N.Y.3d 802 (2007)………………………………………………………………20

Gally v. Columbia Univ., 22 F. Supp. 2d 199 (S.D.N.Y. 1998) ................................................... 22

Gary v. New York Univ., 48 A.D.3d 235 (1st Dep’t 2008)……………………………………….20

Gertler v. Goodgold, 107 AD2d 481 (1st Dep’t), aff’d, 66 N.Y.2d 946 (1985)….………………20

Grennan v. Nassau County, Civ. No. 04-2158, 2007 WL 952067 (E.D.N.Y. Mar. 29, 2007)…..25

Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001)……………………………………….24

Jones v. Trustees of Union Coll., 92 A.D.3d 997 (3rd Dep’t 2012) .............................................. 21

Maas v. Cornell Univ., 94 N.Y.2d 87 (1999)………………………………………….9, 16, 20, 21

Matter of Kickertz v. New York Univ., 25 N.Y.3d 942 (2015)…………………………………….2

Matter of Olsson v. Bd. Of Higher Educ., 49 N.Y.2d 408 (1980)………………………………..10

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Matter of Susan M. v. New York Law Sch., 76 N.Y.2d 241 (1990)……………………………....21

Obergefell v. Hodges, 135 S. Ct. 2584 (2015)…………………………………………………...14

Okoh v. Sullivan, 2011 U.S. Dist. LEXIS 18524
(S.D.N.Y. Feb. 24, 2011) ............................................................................................................ 22

Papelino v. Albany Coll. Of Pharmacy of Union Univ.,
633 F.3d 81 (2nd Cir. 2011) ..................................................................................................... 9, 24

Routh v. Univ. of Rochester, 981 F. Supp. 2d 184 (W.D.N.Y. 2013) ..................................... 11, 20

Sarwar v. New York Coll. of Osteopathic Med. of N.Y. Inst. of Tech., 2015 N.Y. Misc. LEXIS
234 (Sup. Ct. Nassau Cty. 2015)……………………………..…………………………………..20

Szerdahelyi v. Harris, 67 N.Y.2d 42 (1986)………..……………………………………………24

Spychalsky v. Sullivan, 2003 U.S. Dist. LEXIS 15704 (E.D.N.Y. Aug. 29, 2003)……………....22

Tedeschi v. Wagner Coll., 49 N.Y.2d 652 (1980)…………………………………………………2

Ward v. New York Univ., 2000 U.S. Dist.
LEXIS 14067 (S.D.N.Y. Sep. 28, 2000)..................................................................................... 22

Yu v. Vassar Coll., 97 F. Supp. 3d 448 (S.D.N.Y. 2015).............................................. 2, 11, 17, 25

Yusuf v. Vassar Coll., 35 F.3d 709 (2nd Cir. 1994) ............................................................. 1, 11, 15

Statutes

20 U.S.C. § 1681(a)……………………………………………………………………………….2

34 C.F.R. § 106.8(b)………………………………………………………………………………2

New York Civ. Prac. L. & R. 217(1) (McKinney’s 2003 & Supp. 2017)...……………………..20

New York Educ. L. §§ 6439-6449 (McKinney’s 2016)…………………………………………16

New York Educ. L. § 6441(1) (McKinney’s 2016)……………………………………………...22

New York Educ. L. § 6441(2)(b) (McKinney’s 2016)………………………………………17, 23

New York Educ. L. § 6441(2)(d) (McKinney’s 2016)…………………………………………..23

New York Educ. L. §§ 6443(2) (McKinney’s 2016)………………………………………...15, 16

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New York Educ. L. §§ 6443(5)-(8) (McKinney’s 2016)…………………………………….15, 23

New York Educ. L § 6444(1)(a) (McKinney’s 2016)…………………………………………...23

New York Educ. L § 6444(1)(a)(2) (McKinney’s 2016)…………………………………….…..23

New York Educ. L § 6444(4)(a) (McKinney’s 2016)…………………………………….…..7, 23

New York Educ. L § 6444(5)(c)(iv) (McKinney’s 2016)……………………………………….23

Other Authorities

Ltr. From Russlynn Ali, Ass’t Sec’y for Civil Rights, U.S. Dep’t of Educ.
(April 4, 2011)………………………………………………………………………3, 5, 6, 15, 16

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PRELIMINARY STATEMENT
Plaintiff John Doe,1 a former undergraduate student at Syracuse University (“Syracuse” or

the “University”), seeks to challenge the outcome of a procedurally fair and thorough internal

disciplinary process, which resulted in his expulsion from the University for engaging in non-

consensual sexual intercourse with his classmate, Jane Roe. The findings at Syracuse, made by

both a unanimous three-member hearing panel and a separate, unanimous three-member appellate

panel, were that Jane Roe was incapable of consenting to, and did not affirmatively consent to, the

sexual acts which occurred during the early morning hours of September 14, 2016.

The Complaint, asserting claims under Title IX as well as for breach of contract and

negligence, asks this Court to override the outcome of Syracuse’s proceedings on the premise that

plaintiff was more credible than Jane, and that Syracuse’s refusal to accept his version of events

was because he is male and she is female. Such bald assertions are insufficient to plausibly support

plaintiff’s claims, especially given the comprehensive and procedurally compliant internal

investigation that occurred, and the Supreme Court’s explicit caution that “courts should refrain

from second-guessing” internal decisionmakers in matters of this sort. For the reasons discussed

below, the University’s motion should be granted, and plaintiff’s Complaint should be dismissed.

Overview of the Applicable Title IX Requirements

Title IX of the Education Amendments of 1972 was enacted by Congress to “supplement

the Civil Rights Act of 1964’s ban on racial discrimination in the workplace and in universities”

by prohibiting discrimination on the basis of sex. Yusuf v. Vassar Coll., 35 F.3d 709, 714 (2nd Cir.

1994). In order to properly assess the inadequacy of plaintiff’s claims in this case, a brief overview

of relevant Title IX jurisprudence will be useful.

1
The Complaint refers to plaintiff using a pseudonym, “John Doe.” This Memorandum will do so
as well, and will refer to the student alleging that she was sexually assaulted as “Jane Roe.”
1
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The statute provides, in relevant part, that “[n]o person in the United States shall, on the

basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial assistance.” 20

U.S.C. § 1681(a). To further the goals of Title IX, the federal Department of Education has

promulgated regulations requiring schools receiving federal funding to “adopt and publish

grievance procedures providing for the prompt and equitable resolution of student and employee

complaints alleging any action which would be prohibited.” 34 C.F.R. § 106.8(b).

Private institutions such as Syracuse are not subject to constitutional due process

obligations when engaging in disciplinary activities. See, e.g., Yu v. Vassar Coll., 97 F. Supp. 3d

448, 462 (S.D.N.Y. 2015) (“[T]o the extent [plaintiff] is claiming that [private college’s]

disciplinary proceedings denied him constitutional due process, this argument is without merit”

because “‘the federal constitution does not establish the level of due process that [college] had to

give [plaintiff] in his disciplinary proceeding’” (internal citations omitted)). Under applicable law

the University is only obliged to substantially comply with its published disciplinary process. See,

e.g., Matter of Kickertz v. New York Univ., 25 N.Y.3d 942, 944 (2015) (“A student subject to

disciplinary action at a private educational institution is not entitled to the ‘full panoply of due

process rights’ . . . Such an institution need only ensure that its published rules are ‘substantially

observed’”) (internal citation omitted); Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 660 (1980)

(Guidelines establishing disciplinary procedure must be “substantially observed”).

Moreover, the Department of Education has identified five elements required to comply

with Title IX: (1) notice of applicable grievance procedures; (2) application of those procedures to

complaints alleging harassment; (3) adequate, reliable and impartial investigation of complaints,

with an opportunity for parties to identify witnesses and evidence; (4) defined and “reasonably

2
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prompt” process timeframes; and (5) notice to parties of the outcome of a complaint. See Ltr. From

Russlynn Ali, Ass’t Sec’y for Civil Rights, U.S. Dep’t of Educ., at 9 (April 4, 2011) (“April 2011

DCL”).2 There is no plausible basis to dispute that Syracuse has complied with all these

requirements, as well as its published process, in assessing the allegations against plaintiff; that

process is described below at some length in order to facilitate the Court’s review of this issue.

Syracuse University’s Policy Regarding Sexual Misconduct and Sexual Assault

The Syracuse Student Conduct System Handbook,3 attached to the Complaint as Exhibit

A (see Dkt. # 1 at ¶ 23), includes the University policy prohibiting sexual assault and related

misconduct (the “Syracuse Policy”). Dkt. # 1-1, at pp. 8-10.4 This gender-neutral Syracuse Policy

states that “Syracuse University is committed to the maintenance of an environment which is

supportive of its primary educational mission and free from all exploitation and intimidation. The

University does not tolerate rape, sexual assault, domestic or dating violence, stalking, sexual

coercion and non-contact sexual abuse such as voyeurism, and sexual exploitation or other forms

of sexual violence or non-consensual sexual activity.” Id. at p. 8.

Sexual assault is defined in the Syracuse Policy in relevant part as “any act or attempted

non-consensual sexual activity . . . with or without physical force[.]” Dkt. # 1-1 at p. 8. Consent

2
The April 2011 DCL is publicly available on the Department of Education’s website. While the
policy guidance in that DCL was withdrawn by the Department on September 22, 2017 (see
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf), at all times
relevant to this case the April 2011 DCL reflected the Department of Education’s expressed policy
guidance and enforcement position.
3
See http://studentconduct.syr.edu/_documents/StudentConductSystemHandbook2016%20-
%202017.pdf (last checked September 20, 2017).

4
Page references to Docket # 1-1 correlate to page numbers reflected in the CM/ECF legend; these
page numbers are inconsistent with the page numbers reflected on the footer of the document. As
an example, the citation to “Dkt. # 1-1, at pp. 8-10” actually references pages 7-9 of the Handbook.
This pattern is repeated throughout—i.e., Dkt. # 1-1 at p. 2 refers to page 1 of the Handbook, etc.
3
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also is defined in a gender-neutral manner in the Policy, and affirmative consent is required in

order for the act to be considered consensual. In order for affirmative consent to be established,

there must be proof of “a knowing, voluntary and mutual decision among all participants to engage

in sexual activity . . . . The definition of consent does not vary based upon a participant’s sex,

sexual orientation, gender identity, or gender expression.” Id. at p. 9 (emphasis supplied).

In addition, the University’s Policy addresses the impact that prior sexual encounters

between the parties, and the level of intoxication of those parties at the time of a sexual encounter,

will have on the consent calculus (see Dkt. # 1-1 at p. 9 (emphasis supplied)):

Consent to any sexual act or prior consensual sexual activity between or with any
party does not necessarily constitute consent to any other sexual act. Consent is
required regardless of whether the person initiating the act is under the influence
of drugs and/or alcohol. Consent may be initially given but withdrawn at any time.
Consent cannot be give when a person is incapacitated, which occurs when an
individual lacks the ability to knowingly choose to participate in sexual activity.
Incapacitation may be caused by the lack of consciousness or being asleep, being
involuntarily restrained, or if an individual otherwise cannot consent. Depending
on the degree of intoxication, someone who is under the influence of alcohol, drugs,
or other intoxicants may be incapacitated and therefore unable to consent.

The University’s Process for Investigation and Review of Sexual Misconduct Complaints

Also attached to the Complaint are the University’s Student Conduct System Procedures

(the “Syracuse Procedures”), which govern the process to be followed upon receipt of an allegation

of sexual misconduct. See Dkt. # 1-1 at 24-39. The initial step taken in response to a sexual

misconduct/sexual violence complaint involves the designation by the University’s Title IX

Coordinator of a trained Title IX investigator to conduct a comprehensive fact-finding. Each party

(complainant and respondent) at this stage, and throughout the process, is entitled to an advisor of

their choice, including University-trained procedural advisors. See generally id. at pp. 24-25.

The fact-finding process led by the Title IX investigator can include interviews with

witnesses, as well as the parties. Upon completion of the interviews and information-gathering,

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the investigator prepares a Report summarizing relevant factual findings. Dkt. # 1-1 at p. 25. Both

the complaining and responding parties are then given an opportunity to reply to the Report, and

those replies are shared by the investigator with the parties (i.e., the complainant is given

respondent’s reply, and respondent is provided with complainant’s reply). Id. Upon receipt of this

input from the parties, the Title IX investigator submits the final Report, together with the written

replies (if any) from the parties and a statement of the underlying charges to a three-member

University Conduct Board, comprised of trained faculty and staff members. Id. at pp. 25-26. The

investigative Report describes all relevant facts learned during the investigation, and summarizes

the interviews conducted by the investigator, but it does not include any conclusions regarding

responsibility for the charged violations, as that remains the province of the Board. Id.

At this time, the parties and their advisors attend individual pre-hearing meetings to review

the hearing process. See generally Dkt # 1-1 at pp. 25-26. The Syracuse Procedures provide that

the Conduct Board may, in its discretion, choose to rely solely on the investigator’s Report and

any written replies from the parties for its understanding of the facts, it may conduct its own

interviews and/or it may gather such additional information as it deems appropriate. Id.

Irrespective of the choice made in that regard, the Board invites both complainant and respondent

to address it and to provide any additional information they deem pertinent. The Procedures also

afford the parties an opportunity to access the records of any interviews conducted before it. Id.

At the conclusion of that portion of the process, the Conduct Board determines whether it

is more likely than not the responding party violated the Code of Student Conduct, using a

preponderance of evidence standard that was mandated by the Department of Education in cases

of this sort. See April 2011 DCL, at p. 11 (“in order for a school’s grievance procedures to be

consistent with Title IX standards, the school must use a preponderance of the evidence standard”).

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After the hearing process closes, if responsibility is found by the University Conduct Board it may

impose a sanction, up to and including expulsion from the University. Dkt. #1-1, at pp. 26-30.

The Syracuse Procedures allow either party to appeal the Conduct Board’s decision on one

or more of the following grounds: (i) new information that was not available at the time of the

original hearing has been identified; (ii) a procedural error exists, which detrimentally impacted

the outcome of the hearing; (iii) errors in the interpretation of University policy exist and are so

substantial as to deny either party a fair hearing; and/or (iv) a grossly inappropriate sanction having

no reasonable relationship to the charges was assessed. Dkt. # 1-1, at p. 35. If an appeal is

submitted by one party, the other party is afforded an opportunity to submit a written response. Id.

The Syracuse Procedures afford the three-member Appeals Board wide latitude with

respect to its review. The Appeals Board can re-hear the case, or limit its review to the issues raised

in the appeal filings. The Appeals Board issues a decision promptly after receipt of all submissions

related to the appeal, unless it determines additional proceedings are warranted. Thereafter, the

Appeals Board decision is reviewed by the Senior Vice President and Dean of the Students, and

again that review is broad in scope. The reviewing official considering the Appeals Board

determination “may interview any participant in an earlier proceeding, change the decision, alter

the sanction up or down, or return the case to the University Appeals Board or another hearing

board for further process.” See Dkt. # 1-1 at p. 36; see generally id. at pp. 35-36.

This comprehensive investigative and adjudicatory process cannot meaningfully be

claimed to violate Title IX’s strictures, or be deficient with respect to the five key elements needed

for compliance. The Syracuse process governs complaints alleging sexual misconduct; it affords

all participants, on a gender-neutral basis, informed and meaningful input into the process; it

defines appropriate timeframes for resolution; and it affords all parties both notice of the applicable

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procedures, and notice of the outcomes at each level. It is a process that at all times relevant to this

case was fully compliant with the law. See, e.g., April 2011 DCL, at p. 9.

STATEMENT OF PERTINENT ALLEGATIONS AND DOCUMENTED FACTS

Although Syracuse disagrees strenuously with many of the allegations and

characterizations contained in plaintiff’s Complaint, even if his plausible factual averments are

accepted as true for purposes of this motion, the Complaint still fails to state a viable claim for

relief. Plaintiff John Doe and Jane Roe both were students at Syracuse who had engaged in

consensual sexual conduct on several occasions. Dkt. # 1 at ¶ 35. On the evening of September 13,

2016, John and Jane exchanged a series of text messages and agreed to meet at a party; there, they

began kissing and returned to John’s room after the party, when both were intoxicated. Id. at ¶¶

36-37. During the early morning hours of September 14, while in John’s dorm room, they engaged

in “rough” sex which John alleges was consensual, but which he admits Jane claimed to remember

very little of afterward, other than having been bitten by John and at one point being scolded by

him for calling him by a different name. Id. at ¶ 36(b). One of them urinated in John’s bed, and

Jane woke in that bed later that morning with bruises on her chest and with a swollen lip. Id. at ¶¶

36(b)-(d). Although Jane did not recall much of what happened in John’s room that night, she

sought medical attention for the bruises on her chest. Id. at ¶ 37.

On October 12, 2016 John was informed by Syracuse that Jane had submitted a complaint

against him as a result of the sexual encounters that had occurred. See Dkt. # 1 at ¶ 38. The

University immediately took steps, consistent with its policies and governing New York law, to

limit the contact between John and Jane by issuing a no-contact order to John, restricting him from

contacting Jane. Id. at ¶ 40; New York Educ. L (“Educ. L”) § 6444(4)(a) (McKinney’s 2016).

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There is no claim in the Complaint that John requested similar relief, or sought any no-contact

directive with respect to Jane Roe.

The investigation commenced promptly, and the Complaint makes no allegation that John

was excluded from the investigative process, denied the ability to present pertinent information to

the investigator, denied the opportunity to identify witnesses on his behalf, or otherwise denied

any right or privilege available under the Syracuse Policy or the Syracuse Procedures. Indeed, the

gravamen of his complaint appears to be the weight afforded to his account of events, and the

failure of any evaluator in the process to agree that Jane Roe’s allegations were not credible. See,

e.g., id. at ¶¶ 37-39. He also objects to the manner in which a no-contact order was issued to him,

id. at ¶ 40, but as noted he does not claim that such issuance violated any University policy, that

he objected to the scope or content of the no-contact order at any time during the investigation or

the subsequent disciplinary proceedings, or that he sought relief from the terms of that directive.

After the investigative Report issued on December 6, 2016, the University Conduct Board

held a hearing at which plaintiff acknowledges he was “permitted to tell his side of the story[.]”

Dkt. #1 at ¶ 41. He complains, however, that he “never had an opportunity to confront adverse

witnesses, including Jane Roe.” Id. He again does not allege a deviation from University policy in

the manner in which the hearing was conducted, nor does he contend that witness confrontation

rights were available to either party under the Syracuse Procedures, or were afforded to the female

complainant but not to him—the essence of a viable Title IX case.

On January 26, 2017, six days after the hearing concluded, the Conduct Board found that

“both parties were intoxicated to the point where their judgment was impaired,” and that John

engaged in non-consensual sexual intercourse twice with Jane during the early morning hours of

September 14. Dkt. # 1 at ¶¶ 41-42; see especially id. at ¶ 42(b). John identifies no process

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deviation in terms of the manner in which the determination issued, but complains that although

both John and Jane were “too intoxicated to provide consent, the Board only recommended that

John Doe receive discipline.” Id. at ¶ 42(c). As a result of the finding of responsibility, the Conduct

Board recommended that John be expelled from the University. Id. at ¶ 42 (a).

John appealed the Conduct Board finding on January 31, and upon a review of his

submissions, his appeal was denied on February 14, 2017. Dkt. # 1 at ¶¶ 43-44. As with the

investigation and Conduct Board proceedings, John claims no process deviation with respect to

the appeal. His complaint is that the expulsion has denied him “the benefits of education at his

chosen school, damaged his academic and professional reputations, and may affect his ability to

enroll at other institutions of higher education and to pursue a career.” Id. at ¶ 45.

Five months after this internal appeal was denied and the University’s determination

became final and binding, this litigation ensued.

ARGUMENT

POINT I

STRONG JUDICIAL DEFERENCE IS COMPELLED BY RELEVANT AUTHORITY

Courts in New York, and elsewhere, uniformly acknowledge that claims like the instant

one call for the exercise of particular judicial restraint. Indeed, it is only in “rare education cases

where it is appropriate for a court to intervene.” Papelino v. Albany Coll. of Pharmacy of Union

Univ., 633 F.3d 81, 94 (2nd Cir. 2011); accord, Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629,

648 (1999) (“courts should refrain from second-guessing the disciplinary decisions made by school

administrators”); Maas v. Cornell Univ., 94 N.Y.2d 87, 92 (1999) (“This Court’s case law reflects

the policy that the administrative decisions of educational institutions involve the exercise of

highly specialized professional judgment and these institutions are, for the most part, better suited

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to make relatively final decisions concerning wholly internal matters”); Matter of Olsson v. Bd. of

Higher Educ., 49 N.Y.2d 408, 413 (1980) (courts should exercise “the utmost restraint in applying

traditional legal rules to disputes within the academic community”).

This case is no exception to the general rule that a university’s disciplinary decisions must

be afforded great deference, and should only be disturbed where it can be demonstrated that there

was overt discrimination against a party, or there has been a material and substantial deviation

from applicable disciplinary procedures. Here, plaintiff has not, and cannot, make a plausible

allegation of either. Plaintiff has not identified in his factual allegations any process deviation, and

even a cursory review of his allegations as to the University’s “breach” of contract, discussed at

greater length below, identify no explicit term of the Syracuse Policy or Procedures with which

the University did not substantially comply, and in all events there has been no timely challenge

to the determination at issue. See Point III at 20-24, infra), Similarly, plaintiff has not alleged any

facts supporting a plausible conclusion that he was discriminated against based on his gender, or

has a valid and cognizable claim under any legal theory. Id. at 10-20, 24-25.

Using the analytical framework mandated by the applicable law, on the facts plaintiff has

not and cannot assert a viable legal claim. His Complaint therefore should be dismissed.

POINT II

THE TITLE IX CLAIMS FAIL ABSENT PLAUSIBLE ALLEGATIONS
OF GENDER BIAS OR DISCRIMINATORY INTENT

The Second Circuit has recognized that under Title IX, “[p]laintiffs attacking a university

disciplinary proceeding on grounds of gender bias can be expected to fall generally within two

categories”: (1) those claiming “the severity of the penalty and/or the decision to initiate the

proceeding was affected by the student’s gender” (so-called “selective enforcement” claims); and

(2) those claiming they were “innocent and wrongly found to have committed an offense” (so-

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called “erroneous outcome” claims). Yusuf, 35 F.3d at 715. To adequately plead either type of Title

IX claim, plaintiff must allege facts—not legal conclusions or speculative assumptions—showing

a plausible causal link between defendants’ conduct and plaintiff’s gender. Doe v. Columbia Univ.,

831 F.3d 46, 56 (2nd Cir. 2016) (emphasis supplied) (unless Title IX complaint “pleads specific

facts” supporting an inference of discrimination “on account of sex in the imposition of university

discipline,” it is insufficient). The conclusory allegations here are insufficient.

To the extent plaintiff even attempts to assert a selective enforcement claim (one does not

appear to be asserted given the facts plaintiff has pleaded), such a claim may be dispensed with

immediately and easily. Plaintiff does not claim—as he must to support a selective enforcement

claim—that Syracuse treated similarly situated members of the opposite sex differently from him

in Title IX cases. That is, plaintiff does not allege that female students facing comparable

disciplinary charges were treated in a disparate and more favorable fashion than was he. The claim

therefore cannot stand. See Routh v. Univ. of Rochester, 981 F. Supp. 2d 184, 211-12 (W.D.N.Y.

2013) (plaintiff failed to allege that “any similarly situated female” was treated in a manner

different from him, and thus “the proposed pleading fails to state an actionable claim under Title

IX”); accord, Yu v. Vassar Coll., 97 F. Supp. 3d 448, 481 (S.D.N.Y. 2015) (selective enforcement

claim dismissed outright where plaintiff does not allege “that a female was in circumstances

sufficiently similar to his own and was treated more favorably by the University”).

Instead, plaintiff’s assertion is that Syracuse favors female complainants and disfavors

males. The factual support pleaded for that assertion is gossamer-thin, and legally inadequate. For

instance, plaintiff’s Complaint attacks the terms of the Department of Education’s April 2011

DCL, and complains of heightened pressures faced by universities generally in the period after

that April 2011 DCL issued to address sexual assaults on campus. See, e.g., Dkt. # 1 at ¶¶ 7-11,

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51-52. These allegations include excerpts from or citations to various internet articles about Title

IX enforcement on campuses other than Syracuse, id., and there is no fact alleged that would

support a finding that these circumstances impacted the proceedings involving John Doe and Jane

Roe.

In addition, the vast majority of the “facts” allegedly related to Syracuse, as pleaded, are

gender-neutral and thus of no moment to the analysis. These include:

 Small groups of protesters on campus, three years ago, complained about the
University’s changes to its sexual assault policies. Dkt. #1 at ¶¶ 13(b), 13(b)(i);

 The University Chancellor promised, in response to these protests, to consult about
“major decisions at the university before they’re announced.” Id. at ¶ 13(b)(ii).

 Students organized in November 2014, almost three years ago, to raise awareness
of “marginalized groups” to protest the closure of the Advocacy Center, which
offered sexual assault education and counseling. Id. at ¶ 13(c).

 A November 2014 occupation of the administration building by a student group,
“THE General Body,” protested (among other issues) closure of the Advocacy
Center, the absence of a “yes means yes” policy, and the Title IX Coordinator’s
inadequate level of training in sexual assault advocacy. Id. at ¶¶ 13(c)(i)-(iii).

 The following month the Workgroup on Sexual Violence Prevention, Education,
and Advocacy issued a report identifying “critical gaps in services and support for
victims and survivors of sexual and relationship violence on campus, and to propose
a set of recommendations for improving campus and community culture related to
these matters.” Id. at ¶ 14. Workgroup concerns included the adequacy of
investigative staffing and educational resources, the decision to close the Advocacy
Center, and the desire to see Syracuse adopt more “victim-centered” policies. Id. at
¶¶ 14(b)-(d).

 The University’s “adoption” in July 2015 of New York’s “Enough is Enough”
legislation. Id. at ¶ 15.

 A September 2015 CNBC report focused on a 2012 sexual assault which “never
led to criminal charges.” The report noted “both male and female” students were
“refusing to be silenced until the crisis stops.” Id. at ¶¶ 16(a)-(b).

 An April 2016 press release noted that Syracuse’s Title IX Coordinator had
received 143 reports from students “impacted by sexual assault, relationship

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violence, stalking and harassment” in the 2014-15 academic year, and that Syracuse
had hired a new investigator to “support the investigation process.” Id. at ¶ 17(a).

 A University Dean replied to contentions, also made in April 2016, that Syracuse
“was not taking the issue [of sexual assault] seriously” by stating that the University
had expelled and suspended an unspecified number of students, and placed others
on probation, where a finding of sexual assault had been made. Id. at ¶ 17(b).

 In October 2016, a student protest occurred which involved mattresses covered with
red tape, to protest the “rape culture on campus.” Id. at ¶ 18.

 The University was notified of two complaints filed with OCR alleging it did not
respond “promptly and equitably” to reports of a sexual assault; in one instance,
OCR attorneys asked “general questions” about opinions on Syracuse’s response
to sexual assault and discrimination allegations. In response to one of these OCR
inquiries, Syracuse allegedly contended that it had taken “‘significant steps’ in
recent years to prevent sexual and relationship violence.” Id. at ¶¶ 19-21.

Beyond the fact that these allegations reflect snippets of reports and communications over

a three year period “cherry-picked” by plaintiff in his effort to paint Syracuse as a place obsessively

and single-mindedly focused on sexual assault; beyond the fact that these allegations have no

connection whatsoever to John Doe, Jane Roe or their underlying disciplinary case; and beyond

the fact that most of these events occurred literally years before the events of September 13-14,

2016, it is critical to note that none of these “facts” involve, discuss, identify or relate to gender.

Plaintiff cannot credibly contend that parties complaining of sexual abuse are inevitably female,

or that parties allegedly engaged in acts of sexual abuse inevitably are male. He cannot credibly

assert that articulated concerns about the enhancement of services or support for victims of sexual

abuse suggest favoritism based on gender, no more than he can suggest that females are the only

persons who avail themselves of such services or who are victims of sexual abuse. Plaintiff

similarly cannot contend that “marginalized groups” are gender-dependent, that the Advocacy

Center’s closure was driven by some sort of gender preference or gender bias, or that obeying a

law passed by the New York State Legislature was a voluntary option elected by the University

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because it favors women over men in sexual assault cases. Plaintiff’s efforts to manufacture “facts”

to support his Title IX claim are transparently inadequate, and they fail.

Even those few pleaded “facts” that do reference gender are of no avail. For instance, the

2014 Workgroup statement—that the “discourse on campus typically focuses on male-on-female

violence involving students who are fulltime undergraduates, White, and heterosexual”5—

suggests, if anything, that Syracuse recognizes that sexual assaults come in many and varied forms,

and do not involve strictly “male-on-female” situations, or “white, heterosexual undergraduate”

assailants. Similarly, the apparent use by CNBC in 2015 of a “sound bite” identifying college

campuses as one of the “most dangerous places for women in America”6 was not an observation

made by the University, and was not linked to any disciplinary investigation, process or outcome.

Indeed, the only discussion there of a Syracuse student related to a 2013 event, in which she “chose

not to file charges against her attacker and has never identified him publicly, but she did file a no-

contact order.”7 Unsurprisingly, this fact was omitted in plaintiff’s “cherry-picking” exercise.

At most, these “facts” suggest a heightened awareness of sexual assault, and of students

potentially impacted by sexual assault on the Syracuse campus in the post-April 2011 DCL, post-

Enough Is Enough era—just as there has been a heightened awareness to concerns of racial

equality in the post-Ferguson, post-Eric Garner era; to issues of marriage equality after Obergefell

v. Hodges, 135 S. Ct. 2584 (2015); and to pay equity in the aftermath of the Lilly Ledbetter Fair

Pay Act. Awareness does not infer predisposition or bias, just as expressing concern for victims

of sexual violence—male and female—does not permit the inference that those investigating and

5
Dkt. # 1 at ¶ 14(a).
6
Dkt. # 1 at ¶ 16.
7
https://www.cnbc.com/2015/09/22/college-rape-crisis-in-america-under-fire.html.
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assessing sexual abuse claims will skew the process against men or in favor of women. To accept

plaintiff’s notion that the hodgepodge of occurrences raising the visibility of sexual assaults on

university campuses inevitably influences and biases every investigator, every reviewing body and

every disciplinary outcome—or any of them—against respondent male students finds no support

in fact or in logic. In addition, that is not a legally cognizable notion.

To sustain an erroneous outcome claim, there must be a plausible and particularly

identifiable connection between the “atmosphere” and the challenged outcome. See Yusuf, 35 F.3d

at 715 (to plead a viable erroneous outcome claim, “[a] plaintiff must . . . allege particular

circumstances suggesting that gender bias was a motivating factor behind the erroneous finding”)

(emphasis supplied)). Here, there is none. While plaintiff contends that gender drove the

determination in his case, he alleges no material fact that would tend to support this speculation.

Plaintiff’s “erroneous outcome” Title IX claim founders as a result.

An exposition of the operative allegations made as part of plaintiff’s Title IX “count” bear

out this point well. See Dkt. # 1 at ¶¶ 46-60; see especially id. at ¶¶ 51-55.

 The assumption that a complainant is a “victim” is not an assumption to be made
at the beginning of the process—Dkt. #1 at ¶¶ 50, 55(b)—beyond the point that
there is no fact alleged that would support the inference that any person involved
in the disciplinary process at issue assumed John to be “guilty because he was a
male,” it also is important to note that New York law mandates (among other
things) that disclosures related to sexual violence be “treated seriously” in all cases,
that the disclosing party be “treated with dignity” and “be free from any suggestion
that the reporting individual is at fault when these crimes and violations are
committed.” See Educ. L. §§ 6443(2), (5), (6). To the extent plaintiff is seeking to
assert that the University was solicitous of Jane when she came forward with her
complaint on October 12, 2016, it would have been unlawful for Syracuse to have
acted in any other manner.

 Syracuse, as a result of the widespread criticisms of schools not taking sexual
assault criticisms “seriously,” was “motivated to favor the accusing female over the
accused male, so as to protect [the University] from accusations that they had failed
to protect female students from sexual assault.” It also allegedly “adopted a biased
stance in favor of the accusing female and against the defending male in order to

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avoid the criticism that Syracuse turned a blind eye to such assaults by men.” Dkt.
# 1 at ¶¶ 51(a), (b). Again, there is not a single specific allegation linking this rank
speculation to the process in which plaintiff participated, or the determinations
made in his case. To the extent Syracuse is alleged to have violated Title IX by
taking Jane’s complaint “seriously,” such an allegation is specious, and as noted
above taking the allegation “seriously” is required under the law. See Educ. L. §
6443(2). To the extent plaintiff equates a rejection of his contentions in favor of
Jane’s contentions, or he conclusorily alleges that the circumstances of the
investigation and adjudication “cast doubt on the accuracy of the outcome,” see
Dkt. # 1 at ¶ 53, as evidence of bias, that is neither suggestive of an unfair or
inequitable process, nor even a proper subject for judicial review. See Davis, 526
U.S. at 648; Maas, 94 N.Y.2d at 92.

 Allegations that gender bias motivated the adverse findings against John because
Syracuse, “encouraged by federal officials, has instituted solutions to sexual
violence against women that abrogate the civil rights of men” and “applied flawed
or incorrect legal standards.” Dkt. # 1 at ¶¶ 52(a)-(c). While these conclusory
allegations make no valid assertion of fact, plaintiff appears to contest the
University’s use of the preponderance standard in assessing responsibility in this
case. The Syracuse Procedures do incorporate a “preponderance of evidence”
standard for investigations of alleged sexual misconduct, because federal
authorities proclaimed that such a standard was required in order to comply with
Title IX. See April 2011 DCL at 10-11. Indeed, adopting any other standard would
have been deemed illegal under Title IX. Similarly, plaintiff cannot demonstrate
that its process is not compliant with applicable law, see Educ. L. §§ 6439-6449,
and he has not alleged a single instance in which the University allegedly ignored
or violated its Policy or Procedures.

 Allegations that victims of sexual assault are treated as “survivors” at Syracuse,
Dkt. # 1 at ¶ 54(a), is irrelevant to a Title IX claim. The term “victim” is gender-
neutral, and both males and females can be (and are) victims of sexual assault.

 John alleges that his disciplinary proceeding was occurring at the “exact time” OCR
officials were visiting Syracuse. Dkt. #1 at ¶ 54(b). This fact, assuming its truth,
does not support an inference that the outcome of his proceedings was affected in
any way. The OCR was investigating matters unrelated to John’s matter, see id. at
¶¶ 19-21, and plaintiff does not allege that any of the Syracuse officials involved in
his case were even aware of an OCR inquiry while they were involved with his
case. His failure to “connect the dots” between any alleged external pressures and
the outcome of his disciplinary proceedings dooms his Title IX claim to dismissal.

 The bald allegation that Syracuse “fail[ed] to conduct a full and fair investigation,”
Dkt. # 1 at ¶¶ 54(c), is far too conclusory to comprise potential “factual” support
for a Title IX claim. Plaintiff also does not identify any specific manner in which
the investigation was incomplete or was unfair to him. Such vague and conclusory
allegations offer absolutely no factual basis to support a Title IX claim.

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 John’s allegation that students are denied access to counsel is demonstrably false.
Dkt. # 1 at ¶ 54(d). The Syracuse Procedures state explicitly that “complainant,
respondent and witnesses involved in the case may be advised by an advisor of their
choice…Procedural advisors, including attorneys where applicable, have no
standing in the University investigation or in the University student Conduct
System proceedings, except to provide advice to their respective parties in a quiet
non-disruptive manner.” Dkt. # 1-1 at p. 25 (emphasis supplied). Even if plaintiff
seeks to dispute the restrictions placed on counsel under the Syracuse Procedures,
that would not support a Title IX claim because the restriction applies equally to
counsel for complainants and respondents, and is gender-neutral.

 Allegations that respondents are denied the panoply of constitutional rights
afforded to criminal defendants are completely irrelevant. See Dkt. # 1 at ¶ 54(e).
University student disciplinary proceedings are not state-run criminal proceedings,
and constitutional due process considerations are inapposite and inapplicable. Doe
v. Columbia Univ., 101 F. Supp. 3d 356, 368 n.5 (S.D.N.Y. 2015), rev’d on other
grounds by Doe v. Columbia Univ., 831 F.3d 46 (2nd Cir. 2016); Yu v. Vassar Coll.,
97 F. Supp. 3d 448, 462 (S.D.N.Y. 2015). Student disciplinary proceedings at the
University must be conducted in accordance with the rules established by the
Syracuse Policy and Procedures, and plaintiff in this regard has failed to identify
any departure from those procedures that would support a Title IX claim.

 Plaintiff’s allegation that it was unfair to find him responsible where both he and
Jane were intoxicated at the time of the incident, but only he was disciplined, Dkt.
# 1 at ¶¶ 55(a), (c), ignores the relevant Syracuse Policy provisions and the
applicable New York law. “Consent is required regardless of whether the person
initiating the acts is under the influence of drugs or alcohol.” Dkt. # 1-1 at p. 9; see
also Educ. L. § 6441(2)(b). Moreover, the Complaint itself alleges that while Jane
“did not remember much of the sexual encounter in the room,” Dkt. # 1 at ¶ 36(c),
John was laboring under no such deficit. He claims no impediment in his ability to
recall events or comprehend what was occurring, and indeed he affirmatively
alleges that he remembered the sex as “‘rough’ but consensual.” Id. at ¶ 36(b).

 Finally, plaintiff’s speculation that Syracuse “assumed that Jane Roe, as an alleged
female victim, was truthful,” draws support from no pleaded fact. The Complaint
alleges in this regard that the investigator found both parties to be credible, Dkt. #
1 at ¶¶ 39(d)(i)-(ii), and ultimately the determination turned on the evaluators’
belief that John had not, as required, received affirmative consent from Jane. While
he vigorously disputes that determination, that is simply irrelevant to whether he
can plead a Title IX claim. Under the circumstances alleged, he has not.

A comparison between the “facts” pleaded by plaintiff, and those passing the Title IX

pleading thresholds in Doe v. Columbia Univ., is both instructive and compelling. In Columbia

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the following facts, specifically impacting the investigation and adjudication of the disciplinary

proceedings involving the plaintiff in that case, were explicitly pleaded in plaintiff’s Complaint:

 Columbia’s Title IX investigator had been “hostile” toward plaintiff, and “did not
ask [plaintiff] about the witnesses [he had identified], interview them, or follow up
with them in any way.” Plaintiff believed the investigator would “follow up on [his]
account of the evening once he conveyed his side of the story; [but] as it turns out,
that never happened.”

 The investigator’s questioning of plaintiff was “akin to cross-examination
calculated to elicit a confession,” while her treatment of the female complainant
was without hostility, supportive and fully informative.

 The investigator failed to tell plaintiff that he could submit his own written
statement to her, or to the disciplinary panel.

 Plaintiff complained to Columbia of harassment and assault by the complaining
party’s friends, but Columbia did not take his complaints “seriously.”

 Columbia’s Title IX investigator created notes of her interview with plaintiff that
“inaccurately and inadequately paraphrased” his verbal accounts.

 The investigator’s report “falsely depicted Plaintiff as having inflicted
nonconsensual sex on Jane Doe, by virtue of having coercively pressured her over
a period of weeks to have sex with him.”

 The investigator “failed to reconcile” complainant’s account of events with a
contrary account provided by her friend, India Knight.

 Plaintiff never was advised during the process that he could seek advice and counsel
from his Dean of Students, and was prohibited from having legal representation at
his disciplinary hearing.

 Plaintiff was not advised by the Title IX investigator that he could be asked to make
a statement at the hearing, and thus was not prepared to give one when called upon.

 Certain of plaintiff’s proffered questions were not asked by the hearing panel,
because they were deemed “irrelevant.”

 The hearing panel’s finding that Jane Doe had been coerced to have sex because
plaintiff put undue pressure on her for a number of weeks was made even though
“no evidence was presented in support of such coercion.”

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 Plaintiff’s appeal—supported by complainant Jane Doe who also asked that his
suspension sanction be reduced—was denied by Columbia’s Dean four days before
he and University President Bollinger were scheduled to address a University-wide
meeting about how Columbia was handling complaints of sexual misconduct.

Doe v. Columbia Univ., 831 F.3d 46, 49-50, 52-53 (2nd Cir. 2016). Unlike Columbia, here the

Complaint is barren of allegations of hostility toward plaintiff, of any intentional (or even

inadvertent) failure to inform him of his rights, of any inaccurate reporting of his comments or

mischaracterization of his accounts, or of any other occurrence that would, could or did prejudice

the outcome of the disciplinary proceedings or suggest that they were “slanted” in favor of Jane.

In addition to the disparate treatment that plaintiff in Columbia attributed to gender bias,

he pleaded a litany of facts suggesting that Columbia’s administration was motivated to ensure

that men alleged to have engaged in sexual assault were found responsible. These facts included:

 Newspaper articles in the New York Post accusing Columbia of “drop[ping the] ball
on jock ‘rapist’ probe: students.” The article quoted “female students asserting that
Columbia had mishandled their sexual assault complaints,” including failures to
promptly investigate, issuance of lenient sanctions, and disregard of complaints.

 Campus groups being highly critical of Columbia’s handling of sexual assault
complaints and demanding reforms, and opinion articles from Columbia Campus
Democrats calling for increased transparency in handling sexual assault cases.

 Student newspaper reports on the mishandling of complaints by three sexual assault
victims, which allowed an “accused student athlete to escape punishment.”

 Student newspaper articles sharply critical of the same Title IX investigator who
was handing the investigation into the plaintiff John Doe in the Columbia case.

 The filing, on the same day, of 23 student complaints with OCR, alleging
“violations of Title IX and other laws” due to Columbia’s mishandling of sexual
assault and misconduct complaints.

Id. at 50-51. Again, the facts in the instant case are a far cry from those in Columbia. While the

Court there found plausibility given the specific pleaded facts and their suggestion of a gender-

motivated outcome that ignored evidence and was determined on something other than a level

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playing field, here that inference simply cannot be made. Plaintiff’s effort to transform his case

into something akin to Columbia fails miserably. His Title IX claims should be dismissed.

POINT III

PLAINTIFF FAILS TO STATE A BREACH OF CONTRACT CLAIM

The law in New York is plain that students seeking to challenge university academic or

administrative decisions, including dismissal from the institution, must bring those challenges in

a proceeding under Article 78 of the Civil Practice Law and Rules. See, e.g., Gary v. New York

Univ., 48 A.D.3d 235, 236 (1st Dep’t 2008); Frankel v. Yeshiva Univ., 37 A.D.3d 760 (2nd Dep’t),

leave den., 9 N.Y.3d 802 (2007); Demas v. Levitsky, 291 A.D.2d 653, 660 (3rd Dep’t), leave dsmsd.,

98 N.Y.2d 728 (2002); Diehl v. St. John Fisher Coll., 278 A.D.2d 816, 817 (4th Dep’t 2000), leave

den., 96 N.Y.2d 707 (2001); Sarwar v. New York Coll. of Osteopathic Med. of N.Y. Inst. of Tech.,

2015 N.Y. Misc. LEXIS 234, *4 (Sup. Ct. Nassau Cty. 2015) (collecting cases). That proceeding

must be commenced within four months of the date the determination becomes final and binding.

See Civ. Prac. L. & R. 217(1) (McKinney’s 2003 & Supp. 2017; Maas, 94 N.Y.2d at 92; Gertler

v. Goodgold, 107 AD2d 481, 487 (1st Dep’t), aff’d, 66 NY2d 946 (1985); Frankel, 37 A.D.3d at

760; Demas, 291 A.D.2d at 660; Diehl, 278 A.D.2d at 817. Plaintiff pleads that the University

denied his internal appeal on February 14, 2017 (see Dkt. # 1 at ¶ 44), but the instant Complaint

was not filed until July 18, 2017, more than five months later. His challenge to the determination,

and the proceedings leading to that determination, is time-barred.

Even were his challenge timely (it is not), plaintiff’s contract claim fails on its “merits.”

Irrespective of plaintiff’s legal theory, “the crucial issue is whether defendant conducted the

disciplinary proceedings against plaintiff substantially in accordance with its established

procedures.” Fraad-Wolff v. Vassar Coll., 932 F. Supp. 88, 91 (S.D.N.Y. 1996); see also Routh,

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981 F. Supp. 2d at 208 (dismissing contract claim and noting that judicial review is limited to

whether the institution acted arbitrarily or substantially complied with its internal rules). Thus,

“[t]he application of contract principles to the student-university relationship does not provide

judicial recourse for every disgruntled student.” Faiaz v. Colgate Univ., 64 F. Supp. 3d 336, 359

(N.D.N.Y. 2014) (emphasis supplied). “[W]hen a disciplinary dispute arises between the student

and the institution, judicial review of the institution’s actions is limited ‘to whether the institution

acted arbitrarily or whether it substantially complied with its own rules and regulations.’” Jones v.

Trustees of Union Coll., 92 A.D.3d 997, 998-99 (3rd Dep’t 2012). And in performing that review,

the New York Court of Appeals has cautioned that “[s]trong policy considerations militate against

the intervention of courts in controversies relating to an educational institution’s judgment of a

student's academic performance.” Matter of Susan M. v. New York Law Sch., 76 N.Y.2d 241, 245

(1990), accord, Maas, 94 N.Y.2d at 92 (“Courts retain a restricted role” in dealing with and

reviewing controversies involving institutions of higher learning).

At the outset, it is plaintiff’s burden to identify precisely which policy provision was

breached—i.e., what specifically does the policy provide, and how specifically was it not provided?

“[A] failure [to do so] has been held to warrant the dismissal of this type of contract claim.” Routh,

981 F. Supp. 2d at 208 (citing Jones, 92 A.D.3d at 999) (“[P]laintiff’s failure to identify the specific

terms of the implied contract that he claims were violated by the College—such as an internal rule,

regulation or code—is fatal to his claim”).

Plaintiff’s contentions regarding Syracuse’s purported breach reflect merely alleged

violations of general statements of policy. These include an alleged “guarantee of fundamental

fairness,” the absence of “adequate notice,” the absence of a “reasonable threshold inquiry,” the

absence of a “full and fair inquiry” by an investigator with “real-world experience in, and training

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about, investigations into allegations of sexual assault,” and a finding of responsibility “without

sufficient evidence.” Dkt. # 1 at ¶¶ 66-69. Tellingly, the Complaint does not identify a single

specific provision of the Syracuse Policy or the Syracuse Procedures that was not followed or

substantially complied with in the conduct of the investigation, the disciplinary hearing or the

internal appeal involving John Doe.

Broad and unfocused allegations at the “30,000 foot level,” such as those in this case, do

not suffice. The law is plain that violations of “general statements of policy . . . cannot form the

basis for a breach of contract claim.” Ward v. New York Univ., 2000 U.S. Dist. LEXIS 14067, at

*11-12 (S.D.N.Y. Sep. 28, 2000). Similarly, “a general statement of adherence by [an educational

institution] to existing anti-discrimination laws . . . does not create a separate and independent

contractual obligation.” Gally v. Columbia Univ., 22 F. Supp. 2d 199, 208 (S.D.N.Y. 1998);

accord Spychalsky v. Sullivan, 2003 U.S. Dist. LEXIS 15704, at *14 (E.D.N.Y. Aug. 29, 2003),

aff’d, 96 F. App’x 790 (2d Cir. 2004); Okoh v. Sullivan, 2011 U.S. Dist. LEXIS 18524, at *14-15

(S.D.N.Y. Feb. 24, 2011). Indeed, “the mere allegation of mistreatment without the identification

of a specific breached promise or obligation does not state a claim upon which relief can be

granted.” Gally, 22 F. Supp. 2d at 207 (emphasis supplied). Even a cursory review of the Syracuse

Procedures and Policy (see Dkt. # 1-1 at pp. 8-10, 24-39) establishes that there has not been any

departure from the prescribed process. Therefore, plaintiff states no viable contract claim.

The Complaint’s critiques of the terms of the Syracuse Procedures and Syracuse Policy

also reveal that he has not familiarized himself with governing New York law. For instance, the

Policy definition of “affirmative consent” which he recites in his Complaint is a verbatim

restatement of the statutory definition in New York’s Enough is Enough Law. Compare Dkt. # 1

at ¶¶ 25(d) and (d)(i) with Educ. L. § 6441(1). Plaintiff also omits from his pleading the balance

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of the “affirmative consent” provisions, in the Policy as well as in the statute, establishing its

gender neutrality—“The definition of consent does not vary based upon a participant’s sex, sexual

orientation, gender identity or gender expression.” See Dkt. # 1-1 at p. 8; Educ. L. § 6441(1).

Indeed, plaintiff never comes to grip with the fact that the Syracuse Policy and Procedures are

entirely gender neutral. Compare Dkt. # 1 at ¶¶ 25(d)(ii) with Educ. L. §§ 6441(2)(b), (d). That

omission is perhaps unsurprising because it squarely undermines the principal theory of plaintiff’s

case, but it hardly is a forthright approach to pleading.

Allegations that certain Syracuse Policy provisions suggest a “biased, ‘victim centered’

approach aimed at always believing and supporting the victim without regard to any investigation

or adjudicatory process” (Dkt. # 1 at ¶ 26(d)) also founder on the rocks of the Enough is Enough

Law. Rights to be treated with dignity, to describe the event to as few institutional representatives

as possible, and to be protected from retaliation, as well as the right of reporting individuals to be

free from suggestions of fault upon reporting, are explicitly spelled out in the “Students’ Bill of

Rights” section of the law. Compare Dkt. # 1 at ¶¶ 26(d)(i)-(iv) with Educ. L. §§ 6443(5)-(8).

The Complaint’s focus on an alleged failure of the Syracuse Procedures to “mention any

rights for accused students” in the reporting of an incident suffers not only from an inherently

illogical premise—i.e., that a respondent would be coming forward to “report” an incident

allegedly violative of the Policy—but the options for reporting are, again, directly spelled out in

the law. Compare Dkt. # 1 at ¶ 27 with Educ. L. §§ 6444(1)(a), (2), (3). Similarly, the challenged

“accommodations” Syracuse affords are all mandated by Enough is Enough. Compare Dkt. # 1 at

¶¶ 28(b) and (c) with Educ. L. §§ 6444(4)(a), (5)(c)(iv).

To the extent that plaintiff seeks to indict the Syracuse Policy and Procedures because

they do not ignore the mandates of governing law, that challenge falls under the weight of its own

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irrationality. Indeed, it is ancient authority that any contract allegedly formed in violation of the

law is void as against public policy. See, e.g., Szerdahelyi v. Harris, 67 N.Y.2d 42, 48 (1986)

(“illegal contracts, or those contrary to public policy, are unenforceable and [courts] will not

recognize rights arising from them”) (citing McConnell v Commonwealth Pictures Corp., 7 NY2d

465, 469 (1960) and Sternaman v Metropolitan Life Ins. Co., 170 NY 13, 19, rearg. denied, 170

NY 616 (1902)); accord, Central N.Y. Tel.& Tel. Co. v. Averill, 199 N.Y. 128, 134 (1910).

At bottom, plaintiff in this case has failed to identify any basis to maintain an action for

breach, nor has he identified any particular provision of the Syracuse Policy or Procedures which

the University has breached. His contract claim is not viable, and it should be dismissed.

POINT IV

PLAINTIFF FAILS TO STATE A CLAIM FOR NEGLIGENCE

Under New York law, “[t]he threshold question in any negligence action is [whether]

defendant owe[s] a legally recognized duty of care to plaintiff.” Hamilton v. Beretta U.S.A. Corp.,

96 N.Y.2d 222, 232 (2001). The duties owed by Syracuse to plaintiff with respect to the

disciplinary process, however, are at most contractual in nature, as he himself pleads. See

generally Dkt. # 1 at ¶¶ 22-33, 61-70; Papelino, 633 F.3d at 93. This fact forecloses any

negligence-based claim. See Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 390

(1987) (dismissing tort claims that were “merely a restatement, albeit in slightly different language,

of the ‘implied’ contractual obligations asserted in the cause of action for breach of contract”).

Even if considered on its “merits,” plaintiff’s allegation is that the University was negligent

in the manner in which it investigated the sexual assault complaint, assigning the investigation to

an investigator who he alleges was inadequately experienced and who conducted a slipshod

investigation, and was further negligent because it “used a biased process and hearing panel.” Dkt.

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# 1 at ¶¶ 75-76. However, because the University’s obligations during a disciplinary proceeding

are circumscribed by the Policy and Procedures, no cause of action for “negligent investigation”

or conduct of a “negligent hearing” will lie. Thus, plaintiff’s allegations that Syracuse purportedly

owed “a duty of care to John Doe and others to conduct [the disciplinary process] in a non-

negligent manner and with due care” (id. at ¶ 72), is legally ineffectual. In fact, this exact allegation

recently was rejected in Yu v. Vassar Coll. “Yu asserts that Vassar breached its ‘duty of reasonable

care in the conduct and investigation of the allegations of rape and sexual misconduct against him.’

This claim fails as a matter of law because ‘[t]here is no cause of action in the State of New York

sounding in negligent prosecution or investigation.’” Yu, 97 F. Supp. 3d at 484 (citing Coleman v.

Corp. Loss Prevention Assocs., 282 A.D.2d 703 (2nd Dep’t 2001)); accord, Grennan v. Nassau

County, Civ. No. 04-2158, 2007 WL 952067, at *22 (E.D.N.Y. Mar. 29, 2007) (granting summary

judgment dismissing teacher’s claims against school for alleged improprieties during disciplinary

hearing because “New York does not recognize a cause of action for negligent investigation”).

The same outcome should be reached here. Plaintiff’s negligence claim should be dismissed.

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CONCLUSION

For the foregoing reasons, Syracuse University respectfully requests that plaintiff’s

Complaint be dismissed pursuant to Rule 12(b)(6) for failure to state a cause of action.

Dated: September 26, 2017 WARD GREENBERG HELLER & REIDY LLP

By: s/Thomas S. D’Antonio
Thomas S. D’Antonio

1800 Bausch & Lomb Place
Rochester, New York 14604
Telephone: (585) 454-0700
tdantonio@wardgreenberg.com

Jeffrey D. Casey*,
of counsel

*—Application for admission
to the Bar of this Court pending

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