Third Department holds student was denied a fair hearing in sexual assault case

Students who sue their universities for due process violations arising from in-house discipline have an uphill battle. These cases usually lose, as the courts find the university may generally comply with their disciplinary rules, even if they do not comply with their internal procedures to the letter. This plaintiff wins his case, however, demonstrating that the university denied him a fair shot at challenging a sexual assault allegation.

The case is Bibler v. State University at Albany, a Third Department ruling issued on June 5. A female student claimed that plaintiff had kissed and touched her against his will. Plaintiff said it was consensual. The university held a proceeding in response to the accuser's allegations, sustaining the charge and expelling plaintiff. Plaintiff wins the appeal, as he was denied a fair hearing.

These disciplinary hearings are not like trials. Courts hold that "there is a limited right to cross-examine witnesses generally," as that is not regarded as "an essential requirement of due process in school disciplinary hearings." However, cases hold, if the university does allow for cross-examination, or other procedural rights not compelled under state law, then the university must substantially comply with those procedures. In this case, the accuser did not testify (and therefore was not cross-examined) and the panel that ruled against plaintiff credited the accuser's unsworn written accusation against plaintiff. The panel thus denied plaintiff a fair hearing on the issue of whether the sexual encounters were consensual. Not only was plaintiff denied due process, but there was no substantial evidence to support the adverse findings against him.

Another problem with the hearing: the disciplinary panel did not apply the proper definition of "consent" under the state Eduction Law. Under the law, "consent" can be given by words or actions as long as the words or actions give "clear permission regarding willingness to engage in sexual activity." Silence or lack of resistance is not consent under the statute. Since the disciplinary panel said that only "verbal consent" could demonstrate the accuser's willingness to engage in sexual activity, it did not properly adhere to the "consent" definition under state law. This provides the plaintiff another avenue toward victory. SUNY is directed to reinstate plaintiff as a student.