Third Department Surprisingly Vacates Expulsion of SUNY Student for Sexual Assault

In a surprising reversal in Matter of Haug v State Univ. of N.Y. at Potsdam, the Third Department annulled SUNY’s determination to expel a student who sexually assaulted another student as unsupported by substantial evidence in the record.  The SUNY Student Code required affirmative consent to sex, which it was undisputed that the student never received, but the Court nevertheless said that the complainant’s hearsay account of the incident was insufficient to meet the substantial evidence standard. Instead, the Court held, the complainant’s act of removing her shirt when the student offered sex was enough to show consent in this situation. The Court, therefore, vacated the student’s expulsion. 

In a cogent dissent, the dissenting Justices take the majority to task for finding consent here, and for substituting the Court’s own judgment of the facts for the SUNY disciplinary board that heard the testimony at the disciplinary proceeding.  The dissent emphasizes that the complainant’s story that she “froze” upon the student’s advances was consistent when she told it both to the SUNY investigator and to an administrator.  It did not have any of the hallmarks of unreliability that have lead to the general rule that hearsay evidence, on its own, isn’t enough to constitute substantial evidence.  Moreover, the only reason why the complainant’s account was technically hearsay, the dissent pointed out, was because she didn’t want to participate in disciplinary proceedings.  Her decision doesn’t undermine the credibility of her account of the assault.  Thus, the dissent would have confirmed the SUNY expulsion determination.

The dissent has the far better analysis in my opinion. I’m pretty surprised the majority went as far as it did to vacate SUNY expulsion, given the deference that is traditionally owed to administrative disciplinary determinations. What’s more is that the policy implications of the majority’s holding overruling a lack of express consent finding could be significant.  SUNY has an express consent to sex policy on its campuses statewide, and that majority largely ignored that to find that implied consent was enough.  Although the Court of Appeals is not an error correction court, generally, I wouldn’t be surprised to see the dissent in the Third Department grant leave to appeal to review the case.

The Third Department’s order can be found here.

*UPDATE*

According to Victor Paladino, an excellent appellate advocate in the State Attorney General’s office, SUNY has taken an appeal as of right to the Court of Appeals from the Third Department’s order based upon the two Justice dissent. The issue on appeal will be whether hearsay testimony of the kind involved here can constitute substantial evidence to support the SUNY expulsion determination. As this case could significant alter the types of proof upon which disciplinary determinations can be based, it will have a significant effect on colleges and universities throughout the State.  This case bears watching, to be sure.

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