SU Response

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 plaintiffs 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. DAntonio
Thomas S. DAntonio (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
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
2
Case 5:17-cv-00787-GTS-ATB Document 15-1 Filed 09/26/17 Page 1 of 31
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 DEFENDANTS RULE 12(B)(6) MOTION
WARD GREENBERG HELLER & REIDY LLP

(585) 454-0700
Thomas S. DAntonio
Jeffrey D. Casey,
of counsel
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................................ ii
PRELIMINARY STATEMENT .....................................................................................................1
Overview of the Applicable Title IX Requirements.. ..............................1
Syracuse Universitys Policy Regarding Sexual

Misconduct and Sexual Assault ......................3
The Universitys 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
i
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 Dept 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 Dept), leave dsmsd., 98 N.Y.2d 728 (2002) 20
Diehl v. St. John Fisher Coll., 278 A.D.2d 816 (4th Dept 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 Dept),

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 Dept 2008).20
Gertler v. Goodgold, 107 AD2d 481 (1st Dept), affd, 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 Dept 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
ii
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) (McKinneys 2003 & Supp. 2017).....20
New York Educ. L. 6439-6449 (McKinneys 2016)16
New York Educ. L. 6441(1) (McKinneys 2016)...22
New York Educ. L. 6441(2)(b) (McKinneys 2016)17, 23
New York Educ. L. 6441(2)(d) (McKinneys 2016)..23
New York Educ. L. 6443(2) (McKinneys 2016)...15, 16
iii
New York Educ. L. 6443(5)-(8) (McKinneys 2016).15, 23
New York Educ. L 6444(1)(a) (McKinneys 2016)...23
New York Educ. L 6444(1)(a)(2) (McKinneys 2016)...23
New York Educ. L 6444(4)(a) (McKinneys 2016)...7, 23
New York Educ. L 6444(5)(c)(iv) (McKinneys 2016).23
Other Authorities
Ltr. From Russlynn Ali, Asst Secy for Civil Rights, U.S. Dept of Educ.
(April 4, 2011)3, 5, 6, 15, 16
iv
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 Syracuses proceedings on the premise that
plaintiff was more credible than Jane, and that Syracuses refusal to accept his version of events
was because he is male and she is female. Such bald assertions are insufficient to plausibly support
plaintiffs claims, especially given the comprehensive and procedurally compliant internal
investigation that occurred, and the Supreme Courts explicit caution that courts should refrain
from second-guessing internal decisionmakers in matters of this sort. For the reasons discussed
below, the Universitys motion should be granted, and plaintiffs 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 1964s 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 plaintiffs 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
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 colleges]
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
prompt process timeframes; and (5) notice to parties of the outcome of a complaint. See Ltr. From
Russlynn Ali, Asst Secy for Civil Rights, U.S. Dept 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 Courts review of this issue.
Syracuse Universitys 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 Educations 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 Educations 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 throughouti.e., Dkt. # 1-1 at p. 2 refers to page 1 of the Handbook, etc.
3
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 participants sex,
sexual orientation, gender identity, or gender expression. Id. at p. 9 (emphasis supplied).
In addition, the Universitys 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 Universitys Process for Investigation and Review of Sexual Misconduct Complaints
Also attached to the Complaint are the Universitys 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 Universitys 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,
4
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
respondents reply, and respondent is provided with complainants 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 investigators 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 schools grievance procedures to be
consistent with Title IX standards, the school must use a preponderance of the evidence standard).
5
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 Boards 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 IXs 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
6
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 plaintiffs 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 Johns room after the party, when both were intoxicated. Id. at
36-37. During the early morning hours of September 14, while in Johns 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 Johns 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 Johns 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) (McKinneys 2016).
7
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 Roes 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 himthe 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
8
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 Universitys 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 Courts 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
9
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 universitys 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 Universitys 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 students gender (so-called selective enforcement claims); and
(2) those claiming they were innocent and wrongly found to have committed an offense (so-
10
called erroneous outcome claims). Yusuf, 35 F.3d at 715. To adequately plead either type of Title
IX claim, plaintiff must allege factsnot legal conclusions or speculative assumptionsshowing
a plausible causal link between defendants conduct and plaintiffs 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 claimas he must to support a selective enforcement
claimthat 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, plaintiffs 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, plaintiffs Complaint attacks the terms of the Department of Educations 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,
11
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
Universitys 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 theyre 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 Coordinators
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 Universitys adoption in July 2015 of New Yorks 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 Syracuses Title IX Coordinator had
received 143 reports from students impacted by sexual assault, relationship
12
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 Syracuses 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
Centers 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
13
because it favors women over men in sexual assault cases. Plaintiffs 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 statementthat the discourse on campus typically focuses on male-on-female
violence involving students who are fulltime undergraduates, White, and heterosexual5
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 America6 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 plaintiffs 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 erajust 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 violencemale and femaledoes 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.
14
assessing sexual abuse claims will skew the process against men or in favor of women. To accept
plaintiffs 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 outcomeor any of themagainst 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.
Plaintiffs erroneous outcome Title IX claim founders as a result.
An exposition of the operative allegations made as part of plaintiffs 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 processDkt. #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
15
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 Janes 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
Janes 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
Universitys 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 Johns 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.
16
Johns 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
choiceProcedural 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), revd 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.
Plaintiffs 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, plaintiffs 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
17
the following facts, specifically impacting the investigation and adjudication of the disciplinary
proceedings involving the plaintiff in that case, were explicitly pleaded in plaintiffs Complaint:
Columbias 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 investigators 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

partys friends, but Columbia did not take his complaints seriously.
Columbias Title IX investigator created notes of her interview with plaintiff that
inaccurately and inadequately paraphrased his verbal accounts.
The investigators 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 complainants 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 plaintiffs proffered questions were not asked by the hearing panel,
because they were deemed irrelevant.
The hearing panels 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.
18
Plaintiffs appealsupported by complainant Jane Doe who also asked that his
suspension sanction be reducedwas denied by Columbias 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 Columbias 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 Columbias 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 Columbias 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
19
playing field, here that inference simply cannot be made. Plaintiffs 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 Dept 2008); Frankel v. Yeshiva Univ., 37 A.D.3d 760 (2nd Dept),
leave den., 9 N.Y.3d 802 (2007); Demas v. Levitsky, 291 A.D.2d 653, 660 (3rd Dept), leave dsmsd.,
98 N.Y.2d 728 (2002); Diehl v. St. John Fisher Coll., 278 A.D.2d 816, 817 (4th Dept 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) (McKinneys 2003 & Supp. 2017; Maas, 94 N.Y.2d at 92; Gertler
v. Goodgold, 107 AD2d 481, 487 (1st Dept), affd, 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), plaintiffs contract claim fails on its merits.
Irrespective of plaintiffs 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,
20
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 institutions 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 Dept 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 institutions 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 plaintiffs burden to identify precisely which policy provision was
breachedi.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]laintiffs failure to identify the specific
terms of the implied contract that he claims were violated by the Collegesuch as an internal rule,
regulation or codeis fatal to his claim).
Plaintiffs contentions regarding Syracuses 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
21
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),
affd, 96 F. Appx 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 Complaints 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 Yorks 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
22
of the affirmative consent provisions, in the Policy as well as in the statute, establishing its
gender neutralityThe definition of consent does not vary based upon a participants 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 plaintiffs
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 Complaints 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 premisei.e., that a respondent would be coming forward to report an incident
allegedly violative of the Policybut 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
23
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, plaintiffs 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.
24
# 1 at 75-76. However, because the Universitys 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, plaintiffs 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 Dept 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 teachers 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. Plaintiffs negligence claim should be dismissed.
25
CONCLUSION
For the foregoing reasons, Syracuse University respectfully requests that plaintiffs
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. DAntonio

Thomas S. DAntonio

Telephone: (585) 454-0700
tdantonio@wardgreenberg.com
Jeffrey D. Casey*,
of counsel
*Application for admission

to the Bar of this Court pending
26

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

UNITED STATES DISTRICT COURT

JOHN DOE, NOTICE OF MOTION

are time-barred as well.

Dated: September 26, 2017

WARD GREENBERG HELLER & REIDY LLP

Attorneys for defendant Syracuse University

TO: Catherine H. Josh, Esq.

Joshua Adam Engel, Esq.

Attorneys for plaintiff

UNITED STATES DISTRICT COURT

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

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS RULE 12(B)(6) MOTION

WARD GREENBERG HELLER & REIDY LLP

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

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

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

Syracuse Universitys Policy Regarding Sexual

The Universitys Process for Investigation and Review of

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

I. STRONG JUDICIAL DEFERENCE IS COMPELLED BY RELEVANT

II. THE TITLE IX CLAIMS FAIL ABSENT PLAUSIBLE ALLEGATIONS

III. PLAINTIFF FAILS TO STATE A BREACH OF

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

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

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

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 Dept),

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 Dept 2008).20

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

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

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

Papelino v. Albany Coll. Of Pharmacy of Union Univ.,

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

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

Ward v. New York Univ., 2000 U.S. Dist.

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

New York Educ. L. 6439-6449 (McKinneys 2016)16

New York Educ. L. 6441(1) (McKinneys 2016)...22

New York Educ. L. 6441(2)(b) (McKinneys 2016)17, 23

New York Educ. L. 6441(2)(d) (McKinneys 2016)..23

New York Educ. L. 6443(2) (McKinneys 2016)...15, 16

New York Educ. L. 6443(5)-(8) (McKinneys 2016).15, 23

New York Educ. L 6444(1)(a) (McKinneys 2016)...23

New York Educ. L 6444(1)(a)(2) (McKinneys 2016)...23

New York Educ. L 6444(4)(a) (McKinneys 2016)...7, 23

New York Educ. L 6444(5)(c)(iv) (McKinneys 2016).23

Overview of the Applicable Title IX Requirements

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

of relevant Title IX jurisprudence will be useful.

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

(Guidelines establishing disciplinary procedure must be substantially observed).

Syracuse Universitys Policy Regarding Sexual Misconduct and Sexual Assault

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

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

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

misconduct/sexual violence complaint involves the designation by the Universitys Title IX

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