PRIVATE COLLEGE DID NOT ADHERE TO ITS PUBLISHED RULES AND GUIDELINES AND FAILED TO INFORM PETITIONER-STUDENT OF HIS RIGHT TO SUBMIT QUESTIONS TO HIS ACCUSER, DETERMINATION THAT PETITIONER VIOLATED THE COLLEGE SEXUAL MISCONDUCT POLICY ANNULLED (FOURTH DEPT).

The Fourth Department, reversing the Supreme Court, determined petitioner-student was not afforded his due process rights in proceedings brought by a private college (Hamilton) stemming from allegations petitioner had violated the college’s sexual misconduct policy (Policy). Petitioner was not informed of his right to submit questions to his accuser:

Here, the parties agree that respondents did not have to afford petitioner a hearing under either Education Law § 6444 (5) (b) (ii) or the due process clauses of the State and Federal Constitutions. The parties further agree that petitioner did not have a right to confront or cross-examine witnesses against him … . Nevertheless, the College was required to ensure that its published rules were “substantially observed”… . This the College did not do.

At oral argument on the petition in Supreme Court and in their brief on appeal, respondents asserted that the Policy permits accused students to ask questions of accusers or witnesses in writing. …

Inasmuch as the United States Supreme Court has recognized that the right to ask questions of an accuser or witness is a significant and critical right (see generally Chambers v Mississippi, 410 US 284, 295 [1973]), we conclude that respondents’ failure to inform petitioner that he had such a right establishes that they did not substantially adhere to the College’s own published rules and guidelines requiring them to inform petitioner, i.e., the “individual whose conduct is alleged to have violated th[e] Policy,” of all of the campus judicial rules and procedures. We therefore reverse the judgment, reinstate the petition, grant the petition, annul the determinations that petitioner violated the College’s Policy and direct respondents to adhere to the College’s published rules and guidelines in any future proceeding against petitioner related to the incident reports. Matter of A.E. v Hamilton Coll., 2019 NY Slip Op 04833, Fourth Dept 6-14-19