THE PROCEDURE SUNY BUFFALO USED TO QUESTION PARTIES AND WITNESSES ABOUT ALLEGATIONS OF PETITONER-STUDENT’S SEXUAL MISCONDUCT (SUBMITTED WRITTEN QUESTIONS) VIOLATED THE SCHOOL’S TITLE IX POLICY (LIVE CROSS-EXAMINATION); THE SCHOOL’S DETERMINATION WAS ANNULLED AND THE RECORD WAS EXPUNGED (FOURTH DEPT).

The Fourth Department, reversing the State University of New York at Buffalo (SUNY Buffalo) (respondent), held that the determination finding petitioner, a former student, violated the prohibition against sexual violence in the student code of conduct was arbitrary and capricious. The determination was annulled and the record expunged:

… [R]espondent departed from its own published rules and guidelines by adjudicating the alleged misconduct under the Code of Conduct rather than its Title IX Grievance Policy (Title IX Policy). Respondent’s Title IX Policy was established pursuant to 34 CFR 106.44 (b) (1), which requires as relevant here that respondent, in response to a formal complaint, follow a grievance process that complies with 34 CFR 106.45 if it seeks to impose disciplinary sanctions against someone accused of “sexual harassment,” a term that encompasses petitioner’s alleged misconduct … . Although respondent was permitted to dismiss the formal Title IX complaint against petitioner after his withdrawal from the university (see id. § 106.45 [b] [3] [ii]), respondent was nevertheless bound to apply the grievance procedure set forth in § 106.45 if it sought to impose a disciplinary sanction for the alleged misconduct … .

… [T]he questioning procedure provided at the Code of Conduct hearing substantially departed from the questioning procedure set forth in the Title IX Policy, and that the departure rendered respondent’s disciplinary determination arbitrary and capricious … . Respondent’s Title IX Policy, which codifies the regulatory requirements in 34 CFR 106.45 (b) (6) (i), entitles “[e]ach party’s advisor [to] conduct live cross-examination of the other party or parties and witnesses . . . in real time.” However, respondent made the disciplinary determination based on its Code of Conduct questioning procedure, which prohibits live cross-examination and instead limits the parties to submitting written questions to hearing officers in advance of the hearing. “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” … , and inasmuch as the application of the procedure set forth in the Code of Conduct significantly impeded that right as outlined in the Title IX Policy, we conclude that respondent failed to substantially adhere to its own published rules and guidelines. Matter of Doe 1 v State Univ. of N.Y. at Buffalo, 2023 NY Slip Op 04838, Fourth Dept 9-29-23

Practice Point: SUNY Buffalo’s Title IX policy required live cross-examination of parties and witnesses in a sexual harassment investigation. The school followed its code of conduct which limits the questioning to written questions submitted to the hearing officers. The Title IX policy should have been followed. The determination was annulled and the record was expunged.