Cameron Pollack / Sun Photography Editor

November 30, 2016

Judge Suggests Cornell Revise Sexual Assault Policy 6.4

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At a preliminary hearing at Tompkins County Supreme Court on Wednesday, Judge Eugene Faughnan said Cornell’s policy guiding sexual assault investigation is flawed and should be amended.

Attorney Alan Sash, representing a client identified as John Doe, alleged at the hearing that Cornell University mishandled his client’s sexual assault claim because of his gender, calling it “shameful” that Cornell tried to get the lawsuit thrown out.

Doe’s lawsuit alleges that when he and another student, identified as Jane Roe, accused each other of sexual assault, Cornell’s Title IX coordinator, Sarah Affel, assigned a Title IX investigator to the case who was “biased and one-sided” and “abusive, insensitive and disrespectful to [Doe] during an interview.”

When Doe alerted Affel on Oct. 2 that he was filing a sex discrimination claim against the investigator, the Title IX office said the sex discrimination complaint would not be reviewed until the sexual assault investigations were complete, the lawsuit claims.

Doe claims that Cornell’s delay violates federal law mandating “prompt” investigations, in addition to University policy 6.4, which establishes guidelines for investigations of discrimination, sexual harassment, sexual assault and violence.

At Wednesday’s hearing, Judge Faughnan asked the Cornell representation why there was a delay in the investigation of the discrimination complaint.

“If a student uses a racial epithet against another, do we wait for the grade period?” he asked.

Cornell said the example was not an issue of discrimination, but of harassment, adding that handling the discrimination filing immediately would set a bad precedent and allow students to claim discrimination to circumvent policy.

Sash disagreed, saying a jury should know if an investigator is biased and adding that Cornell’s argument allows investigators to discriminate against students without consequence.

“Waiting until Jane Roe’s investigation was complete had no basis,” Sash said. “That was an ad hoc decision by Title IX staff.”

After hearing both arguments, Judge Faughnan said Cornell’s policy 6.4 is neither immediate nor direct, as it suggests, and should be updated. Faughnan also questioned why Cornell is arguing to have the case dismissed, adding that if the university was confident no discrimination took place, they should not be concerned with the lawsuit.

  • Belle Bet Devoe

    The judge is clearly not familiar with the directives from the US Department of Education. Cornell’s policy stems directly from the threat of Federal enforcement action.

    • Sabre

      Actually, the link you provide indicates that Cornell doesn’t understand that harassment can be a form of discrimination if it involves a protected classification.

      Contrary to Cornell’s position (harassment is not discrimination), the Judge’s hypothetical racial epithet is actionable because it is a form if racial discrimination. capable of creating a hostile environment in violation of Title VI, as well as NYS Human Rights Law.

      In the case of sexist epithets, they are a form of gender discrimination that may create a hostile environment in violation of Title IX, as well as NYS Human Rights Law.

      In any event, I don’t think you have identified guidance from the US Dept. of Ed. that is in direct opposition to the limited comments the Judge has made in this case so far.

      Finally, any investigation can be derailed by investigator bias, and so bias claims must be carefully considered as soon as they arise. It is the height of foolishness to ignore bias objections and press forward with an investigation that may be fatally flawed from the very start.

  • borris batanov

    The Fed link above is not law, but policy. Apparently Ms. Devoe does not know the difference.

    Last I checked we are a democracy, where due process is afforded to everyone, even Cornell students.

    We are a nation of laws and ruled by law, not by the capricious whims and biases of the ideologies of political correctness, progressivism or whatever the mob mentality of the month is.

    Goodbye Obama, goodbye Clinton’s, goodbye Saunders, goodbye Stein, goodbye Soros. A new era is about to begin, one of law and order, of the US Constitution. That is the will of the American people in this, our, democracy. Are you listening Cornell administrators, faculty and so-called “activists”?

  • Reality Check

    Recounting statements by the parties is fine, but what was the issue to be resolved at this hearing, and what was the outcome? Who must adjust their approach to addressing this case, and what’s the next expected public point in its resolution?

  • Sue pinder

    As I recall, this case involved a female accusing a male of pulling her hair as he pushed her off him, as she was on top of him on his bed. Both were clothed and no sex took place outside of pudding le kissing.

    What has this world come to if this kind of case lead to a suspension by Cornell of the male student? Has he no rights?

    Of course, this all stems from The threat of the federal government to stop funding if sexual assault claims are not taken seriously by Universities. But there must be some common sense involved!! Does this make student deserve to be suspended and have this case drag on for over a year?! His whole life is on hold.

    • borris batanov

      Fed regs in particular and political correctness/progressivism in general victimize white males, who have become an endangered species on the job market, esp. in government and academic bureaucracies and the corporate ladder.

      In former times, a case like this would have been handled by a dorm counselor, if at all. Today, the so-called “empowered” have become predatory.

  • Sue pinder

    ” outside of possible kissing” not ‘pudding le kissing”.


  • safetitleixforall

    “Cornell said the example was not an issue of discrimination, but of harassment, adding that handling the discrimination filing immediately would set a bad precedent and allow students to claim discrimination to circumvent policy.” Naturally Cornell argued this, but it is because it would take away the team’s most potent tool (discriminating against make students) for railroading male students.

  • safetitleixforall

    The problem is not with the Policy but with the people Cornell trusts to run the process. So long as Sarah Affel and her devout anti-male teammates Jody Kunk, Liz McGrath, Christina Liang and the Review Panel/Hearing Panel pool, supported by Alan Mittman’s WPLR “investigation” team are in charge, Cornell University can expect a steady stream of lawsuits in Tompkins County Supreme Court as well as investigations by the Department of Education Office For Civil Rights. This line in the article sums up why complaints against Cornell, like the one in this article, will continue so long as this team is left to operate: “ ….Cornell’s argument allows investigators to discriminate against students without consequence.” Even with the most restrictive policy, which would include some level of oversight, this team will find a way to railroad male students. For one of the greatest universities in the world to have to be embarrassed by this group of thugs is shameful.