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June 3, 2018

Martha E. Pollack, President
Madelyn F. Wessel, University Counsel
Kareem Peat, Acting University Title IX Coordinator
Lauren Branchini, Lead Title IX Investigator
Cornell University
Ithaca, N.Y. 14853

Dear President Pollack, Ms. Wessel, Mr. Peat, and Ms. Branchini:

As you probably know, the complainant in the well-known case of the male Cornell
physics professor has taken another step, this time too far. She filed, on the eve of graduation, a
new complaint against a Ph.D. candidate, Yogesh Patil, who worked in the professor’s lab. The
charge in its entirety was that Yogesh had retaliated against her “by posting information obtained
in the course of a Policy 6.4 investigation [into her case against the professor]” on a website,

Cornell University has withheld Yogesh’s degree in response to the mere filing of this
complaint. Cornell might be thereby placing itself in the cross-hairs for disastrous publicity and
exposing itself to substantial legal liability.

There are several glaring factual problems with the complaint. First, the website posts
publicly available documents from the professor’s tenure litigation, not from any Cornell Policy
6.4 case. Second, her original Policy 6.4 complaint is mentioned on the website only in
connection with the narrative of the tenure deliberations. Third, the website does not identify the
complainant, and it includes no confidential documents whatsoever. Fourth, Yogesh neither owns
nor operates the website.

But my core objection is legal. The website is not a retaliation. Policy 6.4 ¶ 2.5 defines
retaliation thus:
Retaliation is adverse action taken against an individual for making a good faith report of
prohibited conduct or participating in any investigation or proceeding under these
procedures. Retaliation may include intimidation, threats, coercion, or adverse
employment or educational actions. Retaliation may be found even when an underlying
report made in good faith was not substantiated. Retaliation may be committed by the
respondent, the complainant, or any other individual or group of individuals. Retaliation
does not include good faith actions pursued in response to a report of prohibited conduct.

All the website did was publicly discuss a case of immense academic importance. Yogesh’s
involvement comprised only “good faith actions” to question Cornell’s treatment of his professor
and to pursue his own professional self-interest so impacted by Cornell’s actions against his lab.
Restrained speech of this sort should not be deemed suppressible by a university.

If there was retaliation in this sequence, it was the complaint made by her against Yogesh,
retaliating for his actively supporting his professor’s case against Cornell, for being an honest
witness against the complainant during the investigations into her allegations against the
professor, and for having lodged complaints against her with Cornell’s Judicial Administrator
and other University officials as well as with the federal Office of Civil Rights. The
circumstances of her new complaint are suspicious: After waiting months or years, she filed on
May 23, 2018. Yogesh's parents and brother were en route from India and Australia to see him
graduate. At the last moment, he learned that Cornell, without investigation, was automatically
withholding his degree in response to her mere filing of the complaint. Indeed, there is the
injustice: the automatic withholding of a degree based on a complainant’s say-so.

The harm that Yogesh is suffering is huge. The University’s action has certainly tainted
emotionally the long march to a Ph.D. Yogesh is going to incur great expense if forced to sue to
lift Cornell’s hold on his degree. Critical to Yogesh, the situation impedes his employment plans.

In brief, Cornell’s treatment of Yogesh is disturbing. If Yogesh is guilty of retaliation,
then so is anyone who discusses Title IX proceedings at Cornell even without identifying details.

What to do? Mr. Peat should, or should be instructed to, dismiss the complaint against
Yogesh immediately under ¶ 19 of Policy 6.4: “The Title IX Coordinator or the investigator may
dismiss a Formal Complaint and close a case where . . . the facts set forth in the Formal
Complaint do not constitute prohibited conduct under these procedures.” And, of course, the hold
on his degree should be forthwith released.

Very truly yours,

Kevin M. Clermont

John J. Barceló III
William N. Cromwell Professor of International & Comparative Law

Celia Bigoness
Assistant Clinical Professor of Law

John H. Blume
Samuel F. Leibowitz Professor of Trial Techniques; Director of Clinical, Advocacy and Skills
Programs; Director, Cornell Death Penalty Project

Cynthia Grant Bowman
Dorothea S. Clarke Professor of Law

Dawn Chutkow
Visiting Professor of Law

Henry D. Edelman
Adjunct Professor of Law

Stephen P. Garvey
Professor of Law

George A. Hay
Charles Frank Reavis Sr. Professor of Law and Professor of Economics

Michael Heise
Professor of Law

Robert A. Hillman
Edwin H. Woodruff Professor of Law

Sheri Lynn Johnson
James and Mark Flanagan Professor of Law

Beth Lyon
Clinical Professor of Law
Peter W. Martin
Jane M.G. Foster Professor of Law, Emeritus

Muna B. Ndulo
Professor of Law; Elizabeth and Arthur Reich Director, Leo and Arvilla Berger International
Legal Studies Program; Director of the Institute for African Development

Emily L. Sherwin
Frank B. Ingersoll Professor of Law

Sid Tarrow
Associate Member of the Law Faculty & Maxwell M. Upson Professor Emeritus, Government

Keir M. Weyble
Clinical Professor of Law and Director of Death Penalty Litigation

Charles K. Whitehead
Myron C. Taylor Alumni Professor of Business Law and Director, Law, Technology and
Entrepreneurship Program