{"@context":"https://schema.org","@type":"DigitalDocument","altText":"PETITION","alternateName":"NYSCEF-case-4c779433507a-000001.pdf","caption":"NYSCEF document #1 | Filed: 2026-03-30 | Filed by: SASH, ALAN EDWARD Filed:  Received: | Docket status: Processed Confirmation Notice | Case: Jane Doe v. Cornell Univeristy (Tompkins County) | Source: NYSCEF","contentUrl":"https://lucycraig.blog/media/486/raw","datePublished":"2026-10-19T12:19:56+00:00","description":"NYSCEF document #1 | Filed: 2026-03-30 | Filed by: SASH, ALAN EDWARD Filed:  Received: | Docket status: Processed Confirmation Notice | Case: Jane Doe v. Cornell Univeristy (Tompkins County) | Source: NYSCEF","encodingFormat":"application/pdf","identifier":"486","isAccessibleForFree":true,"machineReadable":{"json":"https://lucycraig.blog/media/486/index.json","markdown":"https://lucycraig.blog/media/486/index.md"},"name":"PETITION","ocrStatus":"ready","ocrText":"--- Page 1 ---\n1 \n \nSUPREME COURT OF THE STATE OF NEW YORK  \nCOUNTY OF TOMPKINS \n------------------------------------------------------------X \nIn the Matter of the Application of \n \n \n \nIndex No. _____________/2026 \n \n JOHN DOE \n \nPetitioner, \n \nFOR A JUDGMENT PURSUANT TO ARTICLE 78           VERIFIED \nAND SECTION 3001 OF THE CPLR                                  PETITION \n \n   \n                 -against- \n  \n CORNELL UNIVERSITY,  \n \nRespondent. \n------------------------------------------------------------X \n \nPetitioner John Doe (\u201cDoe\u201d) respectfully alleges, on personal knowledge and upon \ninformation and belief, by his attorneys Bushell, Sovak, Kane & Sash LLP and Saland Law P.C. \nthat: \nPreliminary Statement \nThis proceeding challenges a procedurally defective disciplinary determination issued by \nRespondent Cornell University (\u201cCornell\u201d), which found Petitioner John Doe (\u201cDoe\u201d) responsible \nfor Attempted Sexual Exploitation -- an offense that Cornell never charged, never provided notice \nof, and never afforded Doe any opportunity to defend against. \nAt all relevant times, Cornell was bound by its own written policies and procedures \ngoverning student conduct investigations and hearings. Those procedures are not aspirational; they \nconstitute enforceable promises that require, at a minimum, notice of the alleged violations, a \nmeaningful opportunity to respond, and a fair adjudicative process. Cornell violated each of those \ncore requirements here. \nCI2026-07225\nIndex # : EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n1 of 17\n\n--- Page 2 ---\n2 \n \nDoe was investigated and required to defend himself against a discrete set of allegations \nthat did not include Attempted Sexual Exploitation. The written notice of allegations Cornell \nissued against Doe included only two charges: (1) Sexual Assault, and (2) Sexual Exploitation. \nThese two charges defined the scope of the proceeding and framed the issues to which Doe \nprepared his defense. He participated in the process in reliance on that notice, submitted \nstatements, testified, responded to questions, and marshaled evidence addressing the accusations \nactually brought against him. At no point during the investigation, hearing, or deliberative process \ndid Cornell amend the charges, notify Doe that Attempted Sexual Exploitation was being \nconsidered, or provide him an opportunity to address the elements of that offense. \nNevertheless, Cornell ultimately found Doe responsible for Attempted Sexual Exploitation \n-- a determination outside the scope of the process that Cornell itself prescribed.1 This bait-and-\nswitch deprived Doe of the most basic element of procedural fairness under Cornell\u2019s policies: \nnotice of the charge against him and an opportunity to address it.  \nNew York courts have repeatedly held that when a private university fails to substantially \ncomply with its own rules in disciplinary proceedings, the resulting determination cannot stand. \nThe requirement that a student receive clear notice of the charges and an opportunity to defend \nagainst them is not a technicality; it is the cornerstone of any fair process and embedded in \nCornell\u2019s own rules. A finding of responsibility for an uncharged offense -- particularly one \ncarrying serious reputational and academic consequences -- cannot be reconciled with those \nprinciples. \n \n1 Doe was found not responsible on the two charges actually brought against him -- Sexual \nAssault and Sexual Exploitation. \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n2 of 17\n\n--- Page 3 ---\n3 \n \nBecause Cornell imposed discipline based on a charge never brought and never litigated, \nits determination is legally defective and must be vacated. Doe respectfully seeks an Order \nannulling the finding of responsibility, expunging all references to the determination from his \neducational records, and granting such other relief as the Court deems just and proper. \nParties and Jurisdiction \n1. This is a special proceeding brought against Cornell pursuant to Article 78 and Section \n3001 of the CPLR.  The court has jurisdiction over Cornell pursuant to CPLR 301 and venue is \nproper pursuant to CPLR 503. \n2. This proceeding arises out of Cornell\u2019s finding that Doe violated its policy against \nAttempted Sexual Exploitation even though Cornell never provided Doe with notice of that charge \nand never afforded him any opportunity to defend against it.  \n3. Doe currently resides in Ithaca, NY, and is proceeding under a pseudonym pursuant to \nNYS Education Law \u00a7 6448. \n4. Cornell is a private university with its principal place of business located in Ithaca, New \nYork.   \nStatement of Facts \nI.  A Report of Sexual Assault at the Chi Phi Fraternity House \n5. Chi Phi is a fraternity associated with Cornell\u2019s Greek system, located in Ithaca, New \nYork, which, inter alia, provides housing to approximately 40 members of the fraternity.  \n6. At all relevant times, Doe was a member of that fraternity and lived in the fraternity \nhouse.     \n7. On or about October 20, 2024, Jane Roe (\u201cRoe\u201d) was allegedly sexually assaulted at the \nfraternity house and coerced into consuming ketamine and other drugs. \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n3 of 17\n\n--- Page 4 ---\n4 \n \n8. The assault allegedly occurred in a bedroom at the fraternity house known as the \n\u201cAlumni Room\u201d or \u201cAlumni.\u201d \nII. Cornell Brings Two Charges Against Doe \n9.  After conducting an initial investigation, Cornell charged six members of the Chi Phi \nfraternity, including Doe, with Title IX violations.  \n10. Specifically, Cornell charged Doe with two counts under its Title IX policy (known as \nPolicy 6.4 at Cornell). One count was for Sexual Assault, the other was for the Sexual Exploitation. \nSee, Exhibit 1 (Formal Complaint Against Doe).  \n11. The charges alleged that Doe intentionally viewed Roe in a state of undress without  \nher permission and touched his nose to her naked torso while inhaling Ketamine off her body. Id.  \n12. Under Cornell\u2019s rules, Doe is presumed not responsible and the burden of proof is on  \nCornell to prove, by a preponderance of the evidence, that Doe sexually assaulted and/or sexually \nexploited Roe. See, Exhibit 2 at \u00a7 26.2 (Policy 6.4 Procedures). \nIII. Cornell\u2019s Rules on Notice of Charges and Doe\u2019s Opportunity to be Heard  \n 13. Section 9 of Cornell\u2019s rules requires that it follows its grievance process before \nimposing disciplinary sanctions. Id. at \u00a7 9. (\u201cThe University will treat complainants and \nrespondents equitably \u2026 by following the grievance process set forth in these Procedures before \nthe imposition of any disciplinary sanctions or other actions \u2026  against a respondent.\u201d) \n14. Section 10 requires Cornell to \u201cpromptly inform\u201d Doe of any action that will impact \nhim including the opportunity to respond to such action. Id. at \u00a7 10. (\u201cThe Title IX Coordinator \nwill promptly inform the respondent of any actions undertaken by the University that will directly \nimpact the respondent, including the filing of a Formal Complaint \u2026 and provide an opportunity \nfor the respondent to respond to such action(s).\u201d) (emphasis added). \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n4 of 17\n\n--- Page 5 ---\n5 \n \n15. Section 18 requires that any formal complaint against Doe \u201cspecify the alleged \nprohibited conduct.\u201d Id. at \u00a7 18.  (\u201cAt the issuance of a Formal Complaint, the Title IX Coordinator \nwill notify the complainant and the respondent, in writing, of the commencement of an \ninvestigation and provide both parties with a copy of the Formal Complaint, Policy 6.4, and these \nprocedures. Such notice will: \u2026 specify the alleged prohibited conduct and its date, time, and \nlocation, to the extent known\u201d) (emphasis added). \n16. Section 24.1 and 24.2 requires, respectively, that Doe have an opportunity to be heard \nregarding the charges against him and that he will be regularly updated on the status of the \ninvestigation against him. Id. at \u00a7 24.1 and 24.2. (\u201cThe \u2026 respondent will have \u2026  an equal \nopportunity to be heard\u201d and \u201c\u2026will be updated at regular intervals on the status of the \ninvestigation.\u201d) \n17. Section 26.4 requires that, before the case is referred to a hearing panel, Cornell must \nprovide Doe notice of the \u201ccharges at issue\u201d. Id. at \u00a7 26.4. (\u201cAt the completion of an investigation, \nif a case is referred to a Hearing Panel for a hearing, a Notice of Hearing will be sent to the parties \nas soon as practicable. The notice will include the charges at issue \u2026\u201d (Emphasis added). \nIV. Cornell Holds a Hearing  \n18. Cornell held an evidentiary hearing on this matter and the hearing panel included  \nmembers of Cornell faculty and staff per its rules. Id. at \u00a7 26.3.   \n19. The hearing lasted several days and included testimony from several witnesses  \nincluding, inter alia, Doe and Roe. \n20. The hearing panel had access to a voluminous investigative record containing, inter  \nalia, text messages, witness statements, snapchat messages, and a medical hair follicle test \nconfirming that Doe tested negative for Ketamine.    \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n5 of 17\n\n--- Page 6 ---\n6 \n \nV. Factual Findings Made by Cornell  \n \n21. The factual findings made by Cornell\u2019s hearing panel are not disputed for the purpose \nof this Article 78 proceeding. See, Exhibit 3 at 31-37. \n22. The panel found that Doe was at the fraternity house that night, he saw a message in \nthe fraternity\u2019s Snapchat group chat that said, \u201cFree pussy in alumn pu [pick up],\u201d and that he went \nto the Alumni Room to see what was going on. Id.at 35-36. The panel also found that prior to \nentering Alumni, Doe responded to the Snapchat message by writing \u201cthe alumni shit is not a bit. \nFirst hand pov not a bit\u201d. Id. \n23. The panel further found that, upon entering Alumni, Doe saw Roe sitting on a bed and \nspeaking with a member of the fraternity, Roe was fully covered with sheets, and Doe asked them \nif they were okay, and after both said that they were, Doe left the room. Id. at 33.      \nVI. Cornell Finds Doe Not Responsible for All the Charges Brought Against Him  \n \n24. Based on the record and making credibility and factual determinations, the hearing \npanel determined that Doe was not responsible for sexually assaulting or sexually exploiting Roe.  \nId. at 36.  \n25. It found that there was no evidence that Doe intentionally viewed Roe in a state of \nundress or that he touched his nose to her naked torso while inhaling Ketamine off her. Id. \nVII. Cornell Finds Doe Responsible for Attempted Sexual Exploitation \u2013 a Violation that Doe  \n         was neither Charged with nor Notified that it was Even Being Considered     \n \n \n26. Although not charged and not noticed, the hearing panel found Doe responsible for \nAttempted Sexual Exploitation because he (a) went to the Alumni Room after viewing the Snapchat \nmessage from a third party stating \u201cFree pussy in alumn pu [pick up],\u201d and (b) before entering the \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n6 of 17\n\n--- Page 7 ---\n7 \n \nroom, he responded to the Snapchat message by writing \u201cthe alumni shit is not a bit. First hand \npov not a bit\u201d. Id. at pages 35-37.2 \n27. The hearing panel determined that, although not charged with Attempted Sexual \nExploitation, Doe was guilty of it because the panel:  \nconsidered Procedures Section 3.2, which prohibits attempting to commit \nprohibited conduct, and found that [Doe] attempted to commit sexual exploitation \nwhen he went into the alumni room in the early morning hours of October 20, 2024. \nSpecifically, by [Doe\u2019s] own account, he went to the room, at least in part, because \nof a Snapchat message indicating there was \u201cfree pussy in alumni.\u201d Also by [Doe\u2019s] \nown account, he thought \u201csomething [. . .] bad\u201d could be happening in the room, \nthat someone could be \u201cin danger,\u201d and that the situation could involve \u201ca lot of \ngirls.\u201d He also noted that, while he did not have specific knowledge of what was \noccurring in the room, he thought at the time, \u201cIf someone's having sex with \nsomeone in the room, they're not gonna send that text out.\u201d Taking these statements \ntogether, the Panel considered it more likely than not that [Doe] understood that the \n1:42 a.m. message indicated some kind of sexual situation involving a female. The \nPanel likewise found the objectively reasonable understanding of the message to \nindicate some kind of sexual situation was occurring with a female in the alumni \nroom. In addition, although [Doe] repeatedly indicated that he thought the message \nwas a \u201cjoke\u201d or not real, the Panel found such statements unreasonably \nincompatible with his account that he was sufficiently \u201cworried\u201d about what was \nhappening in the room that he went to check on the situation\u2014particularly when he \nnoted that it was not a social room that he frequented and that he was not close to \nits residents\u2014and therefore did not credit his account in this regard. The Panel \nfurther considered [Doe\u2019s] not a bit message and his statements acknowledging that, \nby the time he arrived at the alumni room, he had received confirmation that there \nwas \u201ca girl\u201d present in that space and still chose to enter it. The Panel therefore \ndetermined by a preponderance of the evidence that [Doe] understood that a female \nwas likely nude and/or engaged in sexual activity in the alumni room on October \n20, 2024, and entered the room on that basis, intending to observe the same. Id. at \n36-37.  \n \n28. Based on its finding that Doe attempted to sexually exploit Roe, the hearing panel \nimposed the following sanctions against him: (a) imposition of a one-way No Contact Order with \n \n2 Doe explained his text as follows: \u201cI found out from [someone] passing by as I was walking into \nthe [alumni] room that there was a girl in there. So, I was just saying, I mean, firsthand from \nsomebody else that there was a girl in that room and it\u2019s not a [\u2018joke\u2019], but again, it was an immature \nand dumb kind of just following along with what everybody else was saying in there. I shouldn\u2019t \nhave said it. And it is immature and a stupid text message for sure.\u201d Id. at 36  \n \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n7 of 17\n\n--- Page 8 ---\n8 \n \nRoe, (b) requiring that he take a class on the issues of social media use and sexual harassment, as \nwell as bystander intervention, and (c) write a reflection paper that engages with the specific \ncircumstances for which he was found responsible. Id. at 90-91.  \n29. Putting aside whether going to see what was going on in the Alumni Room after reading \nthat text message and then sending a text message in response is sufficient to establish Attempted \nSexual Exploitation, Cornell never charged Doe with Attempted Sexual Exploitation.  \nVIII. Attempted Sexual Exploitation is a Distinct Charge Under Cornell\u2019s Policy \n30. Attempted Sexual Exploitation is a separate and discrete charge from Sexual \nExploitation under Cornell\u2019s policy. Compare, Exhibit 2 at \u00a7 3.2 and \u00a7 3.6. Attempted Sexual \nExploitation contains a different element of the offense and different applicable defenses. Id.  \n31. Under Section 3.2 of Cornell\u2019s policy (Attempt), \u201cA person attempts to commit \nprohibited conduct if, with the intent to commit such conduct, that person engages in conduct \ndirectly tending toward completion of the prohibited conduct.\u201d Id. (emphasis added).   \n32. Under Section 3.6 of Cornell\u2019s policy (Sexual Exploitation), Sexual Exploitation is \ndefined as \u201cintentionally engaging in [. . . o]bserving another person when that person is nude or \nengaged in sexual activity without the knowledge and consent of the person observed[.]\u201d Id. at \u00a7 \n3.6. \n33. Thus, had Cornell informed Doe that he was being charged with Attempted Sexual \nExploitation under \u00a7 3.2, he would have focused his defense, arguments, questions to witnesses, \nand review of the investigative file towards disproving that he intentionally engaged \u201cin conduct \ndirectly tending toward completion of [Sexual Exploitation].\u201d \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n8 of 17\n\n--- Page 9 ---\n9 \n \n34. Instead, his entire defense was focused on proving that he did not sexually assault Roe \nand that he did not intentionally engaging in sexually exploiting her (i.e., observing her nude or \nengaged in sexual activity) under \u00a7 3.6. \n35. Doe was found responsible for Attempted Sexual Exploitation -- a violation that he was \nnever charged with and that contained different elements than the violations he was charged with.   \n36. Therefore, Doe\u2019s defense to Attempted Sexual Exploitation would necessarily require \na different and independent defense strategy than his defense to Sexual Exploitation/Sexual \nAssault.  \n37. Cornell, pursuant to its rules, was under an obligation to notify Doe of this new charge \nand give him the opportunity to directly address it before the hearing panel, but it failed to do so. \n \n38. Doe timely appealed this decision to Cornell\u2019s appeal panel. Doe had two primary \narguments on appeal. One, that Cornell improperly found him responsible for a violation \n(Attempted Sexual Exploitation) that he was never charged with and never notified of. And two, \nas discussed more fully below, that one of the hearing panel members, Savannah Bao (\u201cBao\u201d), was \nliterally driving in her car for 45 minutes and was otherwise distracted while a witness favorable \nto Doe was testifying.3   \nIX. Doe\u2019s Arguments Before Cornell\u2019s Appeal Panel  \n \n39. Doe\u2019s appeal stated, inter alai, that he was never charged with Attempted Sexual \nExploitation and, as such, his defense was neither directed at that charge nor did he address that \ncharge. He stated that, had he been notified of that charge, he would have presented a defense \n \n3 In addition to being a member of the hearing panel, Bao is the Director of eCornell\u2019s Masters \nPrograms at the business school. \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n9 of 17\n\n--- Page 10 ---\n10 \n \nspecific to that charge. He further argued that he had no reason to anticipate that the hearing panel \nwould find him responsible for a separate offense never charged or noticed. Ex. 5.  \n40. Doe\u2019s appeal also focused on panel member Boa and how she was, among other things, \ndriving a car during the taking of testimony over Zoom. Doe explained that the hearing was \nirreparably compromised by the repeated inattention of panel member Bao. Specifically, during \nhours of live testimony, Bao engaged in other activities including driving a car for 45 minutes \nduring the testimony of a co-respondent who was with Doe that night and was a critical witness to \nDoe\u2019s defense, and doing other work. Ex. 5. \n41. Doe argued that Boa\u2019s failure to pay attention was not trivial and led to Boa finding \nhim liable for Attempted Sexual Exploitation. At the very least, it tainted the hearing with an \nappearance of impropriety and the clear possibility that Boa missed critical testimony that \nprevented her from fairly assessing the evidence. It was also incredibly distracting. Doe informed \nthe appeal panel that he contemporaneously raised this issue with the hearing panel and requested \nthat the hearing be adjourned until Bao was done driving, but the Hearing Chair denied his request \nas follows:  \nAt this time, I have received no information that the hearing process has been \ntainted, let alone irreparably. Rather, when the issue was initially raised, it was \naddressed with the Panel members, who all confirmed their commitment to the \nprocess and thoughtful engagement with their roles therein. When it was raised a \nsecond time, it was again immediately and directly addressed. There has been no \nindication, e.g., of bias or prejudice on the part of any Hearing Panel member \ntowards or against any party or witness, nor of the Panel members not adhering to \napplicable Policy and Procedures. \n \nSee, Exhibit 4.4  \n \n4 Under Cornell\u2019s rule \u00a7 26.10.1, the Hearing Chair has the authority to adjourn the hearing once \ncommenced and \u201cmay also declare a \u2018mishearing\u2019 if the process has become irreparably tainted \n(e.g., prejudicial conduct by an advisor, circumstances during a hearing rendering a panelist \nunsuitable for the panel, etc.).\u201d (Emphasis added).  See, Exhibit 2 at \u00a7 26.10.1. \n \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n10 of 17\n\n--- Page 11 ---\n11 \n \n \nX. The Appeal Panel Affirms the Decision of the Hearing Panel  \n42. The appeal panel affirmed the decision of the hearing panel. See, Exhibit 5. \n43. With respect to Doe\u2019s argument that he was found responsible for a violation that he \nwas not charged with, the appeal panel held, in relevant part:  \n\u2026 the Notice of Formal Complaint issued to you at the commencement of this \nmatter clearly notified you that additional violations might be identified throughout \nthe process.5 That same document detailed the factual allegations underlying the \nmisconduct for which you were found responsible.  \n \nId. \n \n44. With respect to Doe\u2019s argument that Bao was driving during a portion of the hearing, \nthe appeal panel held:  \nWe acknowledge your concerns that a hearing panelist was apparently in a vehicle \nfor a portion of the hearing. However, our close review of the record shows this to \nbe a substantially de minimis amount of time in a hearing that spanned many hours \nand multiple days. Based on the record, it is apparent that this issue was addressed \npromptly and did not occur outside the single instance cited in your appeal. We \nfound no error in the hearing chair\u2019s procedural determination that the concerns \nraised did not render the hearing \u201cirreparably tainted,\u201d a determination that fell well \nwithin her discretion. Therefore, we do not find this argument sufficient to warrant \ngranting your appeal.  \n \nId. \n \n45. This decision was the final action of Cornell in this case, and the within Article 78 \nproceeding was timely filed thereafter.  \n \n \n \n \n5 As discussed above, Doe was never notified of the additional alleged violation during the \nprocess. He only found out about it for the first time after the hearing concluded in the hearing \npanel\u2019s decision.  \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n11 of 17\n\n--- Page 12 ---\n12 \n \nPoints of Law \nThe Court\u2019s Role in Reviewing Disciplinary Matters at Private Schools \n 46.\"'[P]rivate schools are afforded broad discretion in conducting their programs, \nincluding decisions involving the discipline, suspension and expulsion of\u2026students'\". Matter of \nVanHouten v. Mount St. Mary Coll., 137 AD3d 1293, 1295 (2d Dept 2016). \n47. \"[I]n dealing with and reviewing controversies involving colleges and universities\" the \n\"Courts retain a restricted role\" (Maas v. Cornell Univ., 94 NY2d 87, 92 (1999) (internal quotation \nmarks omitted) and \"[j]udicial review of the actions of a private school in disciplinary matters is \nlimited to a determination as to whether the school acted arbitrarily and capriciously, or whether it \nsubstantially complied with its own rules and regulations.\" Id. at 1295.  \n48. \"When a university has not substantially complied with its own guidelines \u2026 the \ndetermination will be annulled as arbitrary and capricious.\" Matter of Hyman v. Cornell Univ., 82 \nAD3d 1309, 1310 (3d Dept 2011).  \nThe Requirement to Give Students Notice of the Violations that they are being Charged With \n49. \" ... [A]dequate warning of the misconduct that could result in a student's discipline is \na fundamental element of fairness in the proceeding.\" Doe v. W. New Eng. Univ., 228 F. Supp. 3d \n154, 175  (D. Mass 2016) (private school).  \n50. A university's failure to provide plaintiff with notice of the specific charges \"may have \nsubstantially impaired the fairness of the proceeding.\" Doe v. Brandeis Univ., 177 F. Supp. 3d 561, \n604 (D. Mass. 2016) (private school).  \n51. A similar case can be found at Doe v. Dartmouth, 615 F. Supp. 3d 47, 61-62 (D.N.H. \n2022) (private school). In this case, \"Doe's first claim of contract violation is that Dartmouth did \nnot fulfill its obligation under the Process Policy to provide notice. In essence, Doe argues that he \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n12 of 17\n\n--- Page 13 ---\n13 \n \nreceived notice that he was being investigated for one violation, but then was found responsible \nfor another ...\u201d Id.   \n52. Under [Dartmouth's] Misconduct Policy, sexual touching and sexual intercourse (which \nincludes oral sex) are separate forms of misconduct. [] Doe argues that he cannot be found \nresponsible for sexual touching when he did not receive notice of that potential violation.\" Id.   \n53. \".... Drawing inferences in Doe's favor, because \u2018sexual intercourse\u2019 and \u2018sexual \ntouching\u2019 are separately delineated in the Misconduct Policy, they are separate \"policy violations\" \nfor notice purposes.\" Id.  \n54. \u201cDoe argued that had Dartmouth given him notice that it was charging him with \u2018sexual \ntouching,\u2019 \u2018it would have changed the emphasis of Doe's defense if he understood the shifting \nnature of the claim.\u2019\" Id.    \n55. \"...[I]it is reasonable to infer at this stage that proper notice would have affected Doe's \ndefense strategy, and thus could have \u2018materially affected\u2019 the outcome of the proceedings. [] Thus, \nthe court finds that Doe has adequately stated a claim that Dartmouth violated the policy by failing \nto provide proper notice.\" Id.  \n56. Another similar case can be found at Fellheimer v. Middlebury College, 869 F. Supp. \n238, 246-247 (D. Vt. 1994) (private school) where the court found that, based on the undisputed \nfacts, \u201cthe College did not \u2018state the nature of the charges with sufficient particularity to permit the \naccused party to meet the charges\u2019 as it had promised to do. Moreover, this deviation from the \nprocedures established by the College did render the hearing given Fellheimer fundamentally \nunfair.\u201d Fellheimer v. Middlebury College, 869 F. Supp. 238, 246-247 (D. Vt. 1994) (private \nschool).     \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n13 of 17\n\n--- Page 14 ---\n14 \n \n57. Like here, \u201c[the accused student] Fellheimer defended, successfully, against a charge \nof rape or sexual assault. He was never told that he was being charged with a separate offense of \ndisrespect of persons, or what conduct, if proven at the hearing, would constitute that offense. As \nsuch, it was impossible for him to defend against that charge.\" Id. \n58. \"Although the contractual obligations of the College are not onerous, the College's lack \nof notice of what conduct constituted \u2018Disrespect of Persons\u2019 violated its obligation to Fellheimer \nand he is entitled to Partial Summary Judgment on Count I of his complaint insofar as he seeks an \norder expunging his student record.\u201d Id.  \nCount I  \n(Declaratory Judgment Vacating the Appeal Panel\u2019s Decision) \n \n59. Doe repeats, reiterates, and realleges the allegations contained within this petition as if \nfully set forth herein. \n60. A genuine dispute exists between the parties as to whether Cornell followed its rules \nand procedures with respect to Doe\u2019s hearing.  \n61. Cornell\u2019s application of its policies and procedures was arbitrary, capricious, and \ncontrary to its own rules.    \n62. A declaratory judgment on this issue would have the effect of establishing the legal \nrights and obligations among and between the parties to this proceeding. \n63. Doe has no adequate remedy at law.  \n64. Here, as discussed above, Cornell violated its own rules.  \n65. For example, Cornell violated Section 10 of its policy requiring that it \u201cpromptly \ninform\u201d Doe of any action that will impact him including the opportunity to respond to such action. \nSee, Exhibit 2 at \u00a7 10. \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n14 of 17\n\n--- Page 15 ---\n15 \n \n66. It violated Section 18 of its policy requiring that any formal complaint against Doe \n\u201cspecify the alleged prohibited conduct\u201d. Id. at \u00a7 18. \n67. It violated Sections 24.1 and 24.2 of its policy, respectively, requiring that Doe have an \nopportunity to be heard regarding the charges against him and that Cornell would regularly update \nhim on the status of the investigation against him. Id. at \u00a7\u00a7 24.1-24.2.  \n68. It violated Section 26.4 of its policy requiring that, before the case is referred to a \nhearing panel, Cornell must provide Doe notice of the \u201ccharges at issue\u201d. Id. at \u00a7 26.4.  \n69. Cornell, by not following its own rules, prejudiced Doe because Doe was never made \naware that he was being charged with Attempted Sexual Exploitation and he could therefore not \nprepare for or defend same. \n70. The elements underlying a charge of Attempted Sexual Exploitation differ from the \ncharges that Doe was actually charged with (i.e., Sexual Assault and Sexual Exploitation). \nSpecifically, Attempted Sexual Exploitation required that Doe (a) intentionally attempt to commit \nsexual exploitation, and (b) engages in conduct directly tending toward completion of sexual \nexploitation.  Compare, Id. at \u00a7 3.2 and \u00a7 3.6. \n71. Had Cornell informed Doe that he was being charged with Attempted Sexual \nExploitation, he would have focused his defense on proving that he (a) did not intentionally attempt \nto commit sexual exploitation, and (b) did not engage in conduct directly tending toward \ncompletion of sexual exploitation.   \n72. Indeed, the entire foundation of Cornell\u2019s allegations against Doe was that he succeeded \nin seeing Roe naked and snorted ketamine from her body. Doe was found not responsible for both. \nAt no time was Doe aware that he had to defend against allegations of completing the prohibited \nacts and attempting to complete the prohibited acts.   \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n15 of 17\n\n--- Page 16 ---\n16 \n \n73. Based upon the foregoing, Doe is entitled to a judgment pursuant to CPLR \u00a7 3001 \ndeclaring that Cornell misapplied its relevant policies against him, acted in an arbitrary and \ncapricious manner and that its decision against Doe is annulled.  \n74.  Any declaratory judgment in Doe\u2019s favor should also declare the vacatur of any and \nall penalties imposed on him with respect to this matter and the expungement of all references to \nthe underlying charges contained in his academic record. \nRequested Relief \nFor the aforementioned reasons, Doe respectfully requests that this court:  \n(a) pursuant to CPLR \u00a7 3001 declare that Cornell misapplied its relevant policies and  \nprocedures against Doe, acted in an arbitrary and capricious manner and that its decision against \nDoe be annulled;    \n(b) vacate of any and all penalties imposed on Doe with respect to this matter and  \nthe expungement of all references to the underlying charges contained in his academic record; and  \n(c) order such other and further relief that the court deems just and proper.  \nDated: March __, 2026 \n \n \n \n \n \n \nSaland Law PC \n \n \n \n \n \n \n \nBy:______________________ \n \n \n \n \n \n \nJeremy Saland \n \n \n \n \n \n \n274 Madison Avenue, Suite 1401 \n \n \n \n \n \n \nNew York, NY 10016 \n \n \n \n \n \n \n(212) 312-7129 \n \n \n \n \n \n \njsaland@salandlaw.com  \n \n \n \n \n \n \n \nBushell, Sovak, Kane & Sash LLP \n \n \n \n \n \n \nAlan E. Sash, Esq. \n \n \n \n \n \n \n274 Madison Avenue, Suite 1401 \n \n \n \n \n \n \nNew York, NY 10016 \n \n \n \n \n \n \n(212) 949-4700 \n \n \n \n \n \n \nasash@bushellsovak.com  \n \n \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n16 of 17\n30\n/s/ Jeremy Saland\n\n--- Page 17 ---\n23\nAlan\nE. Sash\nReg. No. 02SA6041112\nWestchester County, NewYork\nExp. 05/01/2030\n17 \n \nVerification \nState of New York \n) \nCounty of Tompkins  ) \nI am John Doe, the petitioner in the above proceeding. I have read the petition and the \ncontents therein are true to the best of my knowledge, except as to matters alleged on information \nand belief, and that as to those matters, I believe it to be true.  \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nSworn to before me this \n___ day of March 2026 \n \n________________________ \nNotary Public \n_________________\nJohn Doe\nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n17 of 17\n23\nAlan E. Sash\nReg. No. 02SA6041112\nWestchester County, New York\nExp. 05/01/2030","text":"--- Page 1 ---\n1 \n \nSUPREME COURT OF THE STATE OF NEW YORK  \nCOUNTY OF TOMPKINS \n------------------------------------------------------------X \nIn the Matter of the Application of \n \n \n \nIndex No. _____________/2026 \n \n JOHN DOE \n \nPetitioner, \n \nFOR A JUDGMENT PURSUANT TO ARTICLE 78           VERIFIED \nAND SECTION 3001 OF THE CPLR                                  PETITION \n \n   \n                 -against- \n  \n CORNELL UNIVERSITY,  \n \nRespondent. \n------------------------------------------------------------X \n \nPetitioner John Doe (\u201cDoe\u201d) respectfully alleges, on personal knowledge and upon \ninformation and belief, by his attorneys Bushell, Sovak, Kane & Sash LLP and Saland Law P.C. \nthat: \nPreliminary Statement \nThis proceeding challenges a procedurally defective disciplinary determination issued by \nRespondent Cornell University (\u201cCornell\u201d), which found Petitioner John Doe (\u201cDoe\u201d) responsible \nfor Attempted Sexual Exploitation -- an offense that Cornell never charged, never provided notice \nof, and never afforded Doe any opportunity to defend against. \nAt all relevant times, Cornell was bound by its own written policies and procedures \ngoverning student conduct investigations and hearings. Those procedures are not aspirational; they \nconstitute enforceable promises that require, at a minimum, notice of the alleged violations, a \nmeaningful opportunity to respond, and a fair adjudicative process. Cornell violated each of those \ncore requirements here. \nCI2026-07225\nIndex # : EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n1 of 17\n\n--- Page 2 ---\n2 \n \nDoe was investigated and required to defend himself against a discrete set of allegations \nthat did not include Attempted Sexual Exploitation. The written notice of allegations Cornell \nissued against Doe included only two charges: (1) Sexual Assault, and (2) Sexual Exploitation. \nThese two charges defined the scope of the proceeding and framed the issues to which Doe \nprepared his defense. He participated in the process in reliance on that notice, submitted \nstatements, testified, responded to questions, and marshaled evidence addressing the accusations \nactually brought against him. At no point during the investigation, hearing, or deliberative process \ndid Cornell amend the charges, notify Doe that Attempted Sexual Exploitation was being \nconsidered, or provide him an opportunity to address the elements of that offense. \nNevertheless, Cornell ultimately found Doe responsible for Attempted Sexual Exploitation \n-- a determination outside the scope of the process that Cornell itself prescribed.1 This bait-and-\nswitch deprived Doe of the most basic element of procedural fairness under Cornell\u2019s policies: \nnotice of the charge against him and an opportunity to address it.  \nNew York courts have repeatedly held that when a private university fails to substantially \ncomply with its own rules in disciplinary proceedings, the resulting determination cannot stand. \nThe requirement that a student receive clear notice of the charges and an opportunity to defend \nagainst them is not a technicality; it is the cornerstone of any fair process and embedded in \nCornell\u2019s own rules. A finding of responsibility for an uncharged offense -- particularly one \ncarrying serious reputational and academic consequences -- cannot be reconciled with those \nprinciples. \n \n1 Doe was found not responsible on the two charges actually brought against him -- Sexual \nAssault and Sexual Exploitation. \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n2 of 17\n\n--- Page 3 ---\n3 \n \nBecause Cornell imposed discipline based on a charge never brought and never litigated, \nits determination is legally defective and must be vacated. Doe respectfully seeks an Order \nannulling the finding of responsibility, expunging all references to the determination from his \neducational records, and granting such other relief as the Court deems just and proper. \nParties and Jurisdiction \n1. This is a special proceeding brought against Cornell pursuant to Article 78 and Section \n3001 of the CPLR.  The court has jurisdiction over Cornell pursuant to CPLR 301 and venue is \nproper pursuant to CPLR 503. \n2. This proceeding arises out of Cornell\u2019s finding that Doe violated its policy against \nAttempted Sexual Exploitation even though Cornell never provided Doe with notice of that charge \nand never afforded him any opportunity to defend against it.  \n3. Doe currently resides in Ithaca, NY, and is proceeding under a pseudonym pursuant to \nNYS Education Law \u00a7 6448. \n4. Cornell is a private university with its principal place of business located in Ithaca, New \nYork.   \nStatement of Facts \nI.  A Report of Sexual Assault at the Chi Phi Fraternity House \n5. Chi Phi is a fraternity associated with Cornell\u2019s Greek system, located in Ithaca, New \nYork, which, inter alia, provides housing to approximately 40 members of the fraternity.  \n6. At all relevant times, Doe was a member of that fraternity and lived in the fraternity \nhouse.     \n7. On or about October 20, 2024, Jane Roe (\u201cRoe\u201d) was allegedly sexually assaulted at the \nfraternity house and coerced into consuming ketamine and other drugs. \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n3 of 17\n\n--- Page 4 ---\n4 \n \n8. The assault allegedly occurred in a bedroom at the fraternity house known as the \n\u201cAlumni Room\u201d or \u201cAlumni.\u201d \nII. Cornell Brings Two Charges Against Doe \n9.  After conducting an initial investigation, Cornell charged six members of the Chi Phi \nfraternity, including Doe, with Title IX violations.  \n10. Specifically, Cornell charged Doe with two counts under its Title IX policy (known as \nPolicy 6.4 at Cornell). One count was for Sexual Assault, the other was for the Sexual Exploitation. \nSee, Exhibit 1 (Formal Complaint Against Doe).  \n11. The charges alleged that Doe intentionally viewed Roe in a state of undress without  \nher permission and touched his nose to her naked torso while inhaling Ketamine off her body. Id.  \n12. Under Cornell\u2019s rules, Doe is presumed not responsible and the burden of proof is on  \nCornell to prove, by a preponderance of the evidence, that Doe sexually assaulted and/or sexually \nexploited Roe. See, Exhibit 2 at \u00a7 26.2 (Policy 6.4 Procedures). \nIII. Cornell\u2019s Rules on Notice of Charges and Doe\u2019s Opportunity to be Heard  \n 13. Section 9 of Cornell\u2019s rules requires that it follows its grievance process before \nimposing disciplinary sanctions. Id. at \u00a7 9. (\u201cThe University will treat complainants and \nrespondents equitably \u2026 by following the grievance process set forth in these Procedures before \nthe imposition of any disciplinary sanctions or other actions \u2026  against a respondent.\u201d) \n14. Section 10 requires Cornell to \u201cpromptly inform\u201d Doe of any action that will impact \nhim including the opportunity to respond to such action. Id. at \u00a7 10. (\u201cThe Title IX Coordinator \nwill promptly inform the respondent of any actions undertaken by the University that will directly \nimpact the respondent, including the filing of a Formal Complaint \u2026 and provide an opportunity \nfor the respondent to respond to such action(s).\u201d) (emphasis added). \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n4 of 17\n\n--- Page 5 ---\n5 \n \n15. Section 18 requires that any formal complaint against Doe \u201cspecify the alleged \nprohibited conduct.\u201d Id. at \u00a7 18.  (\u201cAt the issuance of a Formal Complaint, the Title IX Coordinator \nwill notify the complainant and the respondent, in writing, of the commencement of an \ninvestigation and provide both parties with a copy of the Formal Complaint, Policy 6.4, and these \nprocedures. Such notice will: \u2026 specify the alleged prohibited conduct and its date, time, and \nlocation, to the extent known\u201d) (emphasis added). \n16. Section 24.1 and 24.2 requires, respectively, that Doe have an opportunity to be heard \nregarding the charges against him and that he will be regularly updated on the status of the \ninvestigation against him. Id. at \u00a7 24.1 and 24.2. (\u201cThe \u2026 respondent will have \u2026  an equal \nopportunity to be heard\u201d and \u201c\u2026will be updated at regular intervals on the status of the \ninvestigation.\u201d) \n17. Section 26.4 requires that, before the case is referred to a hearing panel, Cornell must \nprovide Doe notice of the \u201ccharges at issue\u201d. Id. at \u00a7 26.4. (\u201cAt the completion of an investigation, \nif a case is referred to a Hearing Panel for a hearing, a Notice of Hearing will be sent to the parties \nas soon as practicable. The notice will include the charges at issue \u2026\u201d (Emphasis added). \nIV. Cornell Holds a Hearing  \n18. Cornell held an evidentiary hearing on this matter and the hearing panel included  \nmembers of Cornell faculty and staff per its rules. Id. at \u00a7 26.3.   \n19. The hearing lasted several days and included testimony from several witnesses  \nincluding, inter alia, Doe and Roe. \n20. The hearing panel had access to a voluminous investigative record containing, inter  \nalia, text messages, witness statements, snapchat messages, and a medical hair follicle test \nconfirming that Doe tested negative for Ketamine.    \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n5 of 17\n\n--- Page 6 ---\n6 \n \nV. Factual Findings Made by Cornell  \n \n21. The factual findings made by Cornell\u2019s hearing panel are not disputed for the purpose \nof this Article 78 proceeding. See, Exhibit 3 at 31-37. \n22. The panel found that Doe was at the fraternity house that night, he saw a message in \nthe fraternity\u2019s Snapchat group chat that said, \u201cFree pussy in alumn pu [pick up],\u201d and that he went \nto the Alumni Room to see what was going on. Id.at 35-36. The panel also found that prior to \nentering Alumni, Doe responded to the Snapchat message by writing \u201cthe alumni shit is not a bit. \nFirst hand pov not a bit\u201d. Id. \n23. The panel further found that, upon entering Alumni, Doe saw Roe sitting on a bed and \nspeaking with a member of the fraternity, Roe was fully covered with sheets, and Doe asked them \nif they were okay, and after both said that they were, Doe left the room. Id. at 33.      \nVI. Cornell Finds Doe Not Responsible for All the Charges Brought Against Him  \n \n24. Based on the record and making credibility and factual determinations, the hearing \npanel determined that Doe was not responsible for sexually assaulting or sexually exploiting Roe.  \nId. at 36.  \n25. It found that there was no evidence that Doe intentionally viewed Roe in a state of \nundress or that he touched his nose to her naked torso while inhaling Ketamine off her. Id. \nVII. Cornell Finds Doe Responsible for Attempted Sexual Exploitation \u2013 a Violation that Doe  \n         was neither Charged with nor Notified that it was Even Being Considered     \n \n \n26. Although not charged and not noticed, the hearing panel found Doe responsible for \nAttempted Sexual Exploitation because he (a) went to the Alumni Room after viewing the Snapchat \nmessage from a third party stating \u201cFree pussy in alumn pu [pick up],\u201d and (b) before entering the \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n6 of 17\n\n--- Page 7 ---\n7 \n \nroom, he responded to the Snapchat message by writing \u201cthe alumni shit is not a bit. First hand \npov not a bit\u201d. Id. at pages 35-37.2 \n27. The hearing panel determined that, although not charged with Attempted Sexual \nExploitation, Doe was guilty of it because the panel:  \nconsidered Procedures Section 3.2, which prohibits attempting to commit \nprohibited conduct, and found that [Doe] attempted to commit sexual exploitation \nwhen he went into the alumni room in the early morning hours of October 20, 2024. \nSpecifically, by [Doe\u2019s] own account, he went to the room, at least in part, because \nof a Snapchat message indicating there was \u201cfree pussy in alumni.\u201d Also by [Doe\u2019s] \nown account, he thought \u201csomething [. . .] bad\u201d could be happening in the room, \nthat someone could be \u201cin danger,\u201d and that the situation could involve \u201ca lot of \ngirls.\u201d He also noted that, while he did not have specific knowledge of what was \noccurring in the room, he thought at the time, \u201cIf someone's having sex with \nsomeone in the room, they're not gonna send that text out.\u201d Taking these statements \ntogether, the Panel considered it more likely than not that [Doe] understood that the \n1:42 a.m. message indicated some kind of sexual situation involving a female. The \nPanel likewise found the objectively reasonable understanding of the message to \nindicate some kind of sexual situation was occurring with a female in the alumni \nroom. In addition, although [Doe] repeatedly indicated that he thought the message \nwas a \u201cjoke\u201d or not real, the Panel found such statements unreasonably \nincompatible with his account that he was sufficiently \u201cworried\u201d about what was \nhappening in the room that he went to check on the situation\u2014particularly when he \nnoted that it was not a social room that he frequented and that he was not close to \nits residents\u2014and therefore did not credit his account in this regard. The Panel \nfurther considered [Doe\u2019s] not a bit message and his statements acknowledging that, \nby the time he arrived at the alumni room, he had received confirmation that there \nwas \u201ca girl\u201d present in that space and still chose to enter it. The Panel therefore \ndetermined by a preponderance of the evidence that [Doe] understood that a female \nwas likely nude and/or engaged in sexual activity in the alumni room on October \n20, 2024, and entered the room on that basis, intending to observe the same. Id. at \n36-37.  \n \n28. Based on its finding that Doe attempted to sexually exploit Roe, the hearing panel \nimposed the following sanctions against him: (a) imposition of a one-way No Contact Order with \n \n2 Doe explained his text as follows: \u201cI found out from [someone] passing by as I was walking into \nthe [alumni] room that there was a girl in there. So, I was just saying, I mean, firsthand from \nsomebody else that there was a girl in that room and it\u2019s not a [\u2018joke\u2019], but again, it was an immature \nand dumb kind of just following along with what everybody else was saying in there. I shouldn\u2019t \nhave said it. And it is immature and a stupid text message for sure.\u201d Id. at 36  \n \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n7 of 17\n\n--- Page 8 ---\n8 \n \nRoe, (b) requiring that he take a class on the issues of social media use and sexual harassment, as \nwell as bystander intervention, and (c) write a reflection paper that engages with the specific \ncircumstances for which he was found responsible. Id. at 90-91.  \n29. Putting aside whether going to see what was going on in the Alumni Room after reading \nthat text message and then sending a text message in response is sufficient to establish Attempted \nSexual Exploitation, Cornell never charged Doe with Attempted Sexual Exploitation.  \nVIII. Attempted Sexual Exploitation is a Distinct Charge Under Cornell\u2019s Policy \n30. Attempted Sexual Exploitation is a separate and discrete charge from Sexual \nExploitation under Cornell\u2019s policy. Compare, Exhibit 2 at \u00a7 3.2 and \u00a7 3.6. Attempted Sexual \nExploitation contains a different element of the offense and different applicable defenses. Id.  \n31. Under Section 3.2 of Cornell\u2019s policy (Attempt), \u201cA person attempts to commit \nprohibited conduct if, with the intent to commit such conduct, that person engages in conduct \ndirectly tending toward completion of the prohibited conduct.\u201d Id. (emphasis added).   \n32. Under Section 3.6 of Cornell\u2019s policy (Sexual Exploitation), Sexual Exploitation is \ndefined as \u201cintentionally engaging in [. . . o]bserving another person when that person is nude or \nengaged in sexual activity without the knowledge and consent of the person observed[.]\u201d Id. at \u00a7 \n3.6. \n33. Thus, had Cornell informed Doe that he was being charged with Attempted Sexual \nExploitation under \u00a7 3.2, he would have focused his defense, arguments, questions to witnesses, \nand review of the investigative file towards disproving that he intentionally engaged \u201cin conduct \ndirectly tending toward completion of [Sexual Exploitation].\u201d \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n8 of 17\n\n--- Page 9 ---\n9 \n \n34. Instead, his entire defense was focused on proving that he did not sexually assault Roe \nand that he did not intentionally engaging in sexually exploiting her (i.e., observing her nude or \nengaged in sexual activity) under \u00a7 3.6. \n35. Doe was found responsible for Attempted Sexual Exploitation -- a violation that he was \nnever charged with and that contained different elements than the violations he was charged with.   \n36. Therefore, Doe\u2019s defense to Attempted Sexual Exploitation would necessarily require \na different and independent defense strategy than his defense to Sexual Exploitation/Sexual \nAssault.  \n37. Cornell, pursuant to its rules, was under an obligation to notify Doe of this new charge \nand give him the opportunity to directly address it before the hearing panel, but it failed to do so. \n \n38. Doe timely appealed this decision to Cornell\u2019s appeal panel. Doe had two primary \narguments on appeal. One, that Cornell improperly found him responsible for a violation \n(Attempted Sexual Exploitation) that he was never charged with and never notified of. And two, \nas discussed more fully below, that one of the hearing panel members, Savannah Bao (\u201cBao\u201d), was \nliterally driving in her car for 45 minutes and was otherwise distracted while a witness favorable \nto Doe was testifying.3   \nIX. Doe\u2019s Arguments Before Cornell\u2019s Appeal Panel  \n \n39. Doe\u2019s appeal stated, inter alai, that he was never charged with Attempted Sexual \nExploitation and, as such, his defense was neither directed at that charge nor did he address that \ncharge. He stated that, had he been notified of that charge, he would have presented a defense \n \n3 In addition to being a member of the hearing panel, Bao is the Director of eCornell\u2019s Masters \nPrograms at the business school. \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n9 of 17\n\n--- Page 10 ---\n10 \n \nspecific to that charge. He further argued that he had no reason to anticipate that the hearing panel \nwould find him responsible for a separate offense never charged or noticed. Ex. 5.  \n40. Doe\u2019s appeal also focused on panel member Boa and how she was, among other things, \ndriving a car during the taking of testimony over Zoom. Doe explained that the hearing was \nirreparably compromised by the repeated inattention of panel member Bao. Specifically, during \nhours of live testimony, Bao engaged in other activities including driving a car for 45 minutes \nduring the testimony of a co-respondent who was with Doe that night and was a critical witness to \nDoe\u2019s defense, and doing other work. Ex. 5. \n41. Doe argued that Boa\u2019s failure to pay attention was not trivial and led to Boa finding \nhim liable for Attempted Sexual Exploitation. At the very least, it tainted the hearing with an \nappearance of impropriety and the clear possibility that Boa missed critical testimony that \nprevented her from fairly assessing the evidence. It was also incredibly distracting. Doe informed \nthe appeal panel that he contemporaneously raised this issue with the hearing panel and requested \nthat the hearing be adjourned until Bao was done driving, but the Hearing Chair denied his request \nas follows:  \nAt this time, I have received no information that the hearing process has been \ntainted, let alone irreparably. Rather, when the issue was initially raised, it was \naddressed with the Panel members, who all confirmed their commitment to the \nprocess and thoughtful engagement with their roles therein. When it was raised a \nsecond time, it was again immediately and directly addressed. There has been no \nindication, e.g., of bias or prejudice on the part of any Hearing Panel member \ntowards or against any party or witness, nor of the Panel members not adhering to \napplicable Policy and Procedures. \n \nSee, Exhibit 4.4  \n \n4 Under Cornell\u2019s rule \u00a7 26.10.1, the Hearing Chair has the authority to adjourn the hearing once \ncommenced and \u201cmay also declare a \u2018mishearing\u2019 if the process has become irreparably tainted \n(e.g., prejudicial conduct by an advisor, circumstances during a hearing rendering a panelist \nunsuitable for the panel, etc.).\u201d (Emphasis added).  See, Exhibit 2 at \u00a7 26.10.1. \n \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n10 of 17\n\n--- Page 11 ---\n11 \n \n \nX. The Appeal Panel Affirms the Decision of the Hearing Panel  \n42. The appeal panel affirmed the decision of the hearing panel. See, Exhibit 5. \n43. With respect to Doe\u2019s argument that he was found responsible for a violation that he \nwas not charged with, the appeal panel held, in relevant part:  \n\u2026 the Notice of Formal Complaint issued to you at the commencement of this \nmatter clearly notified you that additional violations might be identified throughout \nthe process.5 That same document detailed the factual allegations underlying the \nmisconduct for which you were found responsible.  \n \nId. \n \n44. With respect to Doe\u2019s argument that Bao was driving during a portion of the hearing, \nthe appeal panel held:  \nWe acknowledge your concerns that a hearing panelist was apparently in a vehicle \nfor a portion of the hearing. However, our close review of the record shows this to \nbe a substantially de minimis amount of time in a hearing that spanned many hours \nand multiple days. Based on the record, it is apparent that this issue was addressed \npromptly and did not occur outside the single instance cited in your appeal. We \nfound no error in the hearing chair\u2019s procedural determination that the concerns \nraised did not render the hearing \u201cirreparably tainted,\u201d a determination that fell well \nwithin her discretion. Therefore, we do not find this argument sufficient to warrant \ngranting your appeal.  \n \nId. \n \n45. This decision was the final action of Cornell in this case, and the within Article 78 \nproceeding was timely filed thereafter.  \n \n \n \n \n5 As discussed above, Doe was never notified of the additional alleged violation during the \nprocess. He only found out about it for the first time after the hearing concluded in the hearing \npanel\u2019s decision.  \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n11 of 17\n\n--- Page 12 ---\n12 \n \nPoints of Law \nThe Court\u2019s Role in Reviewing Disciplinary Matters at Private Schools \n 46.\"'[P]rivate schools are afforded broad discretion in conducting their programs, \nincluding decisions involving the discipline, suspension and expulsion of\u2026students'\". Matter of \nVanHouten v. Mount St. Mary Coll., 137 AD3d 1293, 1295 (2d Dept 2016). \n47. \"[I]n dealing with and reviewing controversies involving colleges and universities\" the \n\"Courts retain a restricted role\" (Maas v. Cornell Univ., 94 NY2d 87, 92 (1999) (internal quotation \nmarks omitted) and \"[j]udicial review of the actions of a private school in disciplinary matters is \nlimited to a determination as to whether the school acted arbitrarily and capriciously, or whether it \nsubstantially complied with its own rules and regulations.\" Id. at 1295.  \n48. \"When a university has not substantially complied with its own guidelines \u2026 the \ndetermination will be annulled as arbitrary and capricious.\" Matter of Hyman v. Cornell Univ., 82 \nAD3d 1309, 1310 (3d Dept 2011).  \nThe Requirement to Give Students Notice of the Violations that they are being Charged With \n49. \" ... [A]dequate warning of the misconduct that could result in a student's discipline is \na fundamental element of fairness in the proceeding.\" Doe v. W. New Eng. Univ., 228 F. Supp. 3d \n154, 175  (D. Mass 2016) (private school).  \n50. A university's failure to provide plaintiff with notice of the specific charges \"may have \nsubstantially impaired the fairness of the proceeding.\" Doe v. Brandeis Univ., 177 F. Supp. 3d 561, \n604 (D. Mass. 2016) (private school).  \n51. A similar case can be found at Doe v. Dartmouth, 615 F. Supp. 3d 47, 61-62 (D.N.H. \n2022) (private school). In this case, \"Doe's first claim of contract violation is that Dartmouth did \nnot fulfill its obligation under the Process Policy to provide notice. In essence, Doe argues that he \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n12 of 17\n\n--- Page 13 ---\n13 \n \nreceived notice that he was being investigated for one violation, but then was found responsible \nfor another ...\u201d Id.   \n52. Under [Dartmouth's] Misconduct Policy, sexual touching and sexual intercourse (which \nincludes oral sex) are separate forms of misconduct. [] Doe argues that he cannot be found \nresponsible for sexual touching when he did not receive notice of that potential violation.\" Id.   \n53. \".... Drawing inferences in Doe's favor, because \u2018sexual intercourse\u2019 and \u2018sexual \ntouching\u2019 are separately delineated in the Misconduct Policy, they are separate \"policy violations\" \nfor notice purposes.\" Id.  \n54. \u201cDoe argued that had Dartmouth given him notice that it was charging him with \u2018sexual \ntouching,\u2019 \u2018it would have changed the emphasis of Doe's defense if he understood the shifting \nnature of the claim.\u2019\" Id.    \n55. \"...[I]it is reasonable to infer at this stage that proper notice would have affected Doe's \ndefense strategy, and thus could have \u2018materially affected\u2019 the outcome of the proceedings. [] Thus, \nthe court finds that Doe has adequately stated a claim that Dartmouth violated the policy by failing \nto provide proper notice.\" Id.  \n56. Another similar case can be found at Fellheimer v. Middlebury College, 869 F. Supp. \n238, 246-247 (D. Vt. 1994) (private school) where the court found that, based on the undisputed \nfacts, \u201cthe College did not \u2018state the nature of the charges with sufficient particularity to permit the \naccused party to meet the charges\u2019 as it had promised to do. Moreover, this deviation from the \nprocedures established by the College did render the hearing given Fellheimer fundamentally \nunfair.\u201d Fellheimer v. Middlebury College, 869 F. Supp. 238, 246-247 (D. Vt. 1994) (private \nschool).     \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n13 of 17\n\n--- Page 14 ---\n14 \n \n57. Like here, \u201c[the accused student] Fellheimer defended, successfully, against a charge \nof rape or sexual assault. He was never told that he was being charged with a separate offense of \ndisrespect of persons, or what conduct, if proven at the hearing, would constitute that offense. As \nsuch, it was impossible for him to defend against that charge.\" Id. \n58. \"Although the contractual obligations of the College are not onerous, the College's lack \nof notice of what conduct constituted \u2018Disrespect of Persons\u2019 violated its obligation to Fellheimer \nand he is entitled to Partial Summary Judgment on Count I of his complaint insofar as he seeks an \norder expunging his student record.\u201d Id.  \nCount I  \n(Declaratory Judgment Vacating the Appeal Panel\u2019s Decision) \n \n59. Doe repeats, reiterates, and realleges the allegations contained within this petition as if \nfully set forth herein. \n60. A genuine dispute exists between the parties as to whether Cornell followed its rules \nand procedures with respect to Doe\u2019s hearing.  \n61. Cornell\u2019s application of its policies and procedures was arbitrary, capricious, and \ncontrary to its own rules.    \n62. A declaratory judgment on this issue would have the effect of establishing the legal \nrights and obligations among and between the parties to this proceeding. \n63. Doe has no adequate remedy at law.  \n64. Here, as discussed above, Cornell violated its own rules.  \n65. For example, Cornell violated Section 10 of its policy requiring that it \u201cpromptly \ninform\u201d Doe of any action that will impact him including the opportunity to respond to such action. \nSee, Exhibit 2 at \u00a7 10. \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n14 of 17\n\n--- Page 15 ---\n15 \n \n66. It violated Section 18 of its policy requiring that any formal complaint against Doe \n\u201cspecify the alleged prohibited conduct\u201d. Id. at \u00a7 18. \n67. It violated Sections 24.1 and 24.2 of its policy, respectively, requiring that Doe have an \nopportunity to be heard regarding the charges against him and that Cornell would regularly update \nhim on the status of the investigation against him. Id. at \u00a7\u00a7 24.1-24.2.  \n68. It violated Section 26.4 of its policy requiring that, before the case is referred to a \nhearing panel, Cornell must provide Doe notice of the \u201ccharges at issue\u201d. Id. at \u00a7 26.4.  \n69. Cornell, by not following its own rules, prejudiced Doe because Doe was never made \naware that he was being charged with Attempted Sexual Exploitation and he could therefore not \nprepare for or defend same. \n70. The elements underlying a charge of Attempted Sexual Exploitation differ from the \ncharges that Doe was actually charged with (i.e., Sexual Assault and Sexual Exploitation). \nSpecifically, Attempted Sexual Exploitation required that Doe (a) intentionally attempt to commit \nsexual exploitation, and (b) engages in conduct directly tending toward completion of sexual \nexploitation.  Compare, Id. at \u00a7 3.2 and \u00a7 3.6. \n71. Had Cornell informed Doe that he was being charged with Attempted Sexual \nExploitation, he would have focused his defense on proving that he (a) did not intentionally attempt \nto commit sexual exploitation, and (b) did not engage in conduct directly tending toward \ncompletion of sexual exploitation.   \n72. Indeed, the entire foundation of Cornell\u2019s allegations against Doe was that he succeeded \nin seeing Roe naked and snorted ketamine from her body. Doe was found not responsible for both. \nAt no time was Doe aware that he had to defend against allegations of completing the prohibited \nacts and attempting to complete the prohibited acts.   \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n15 of 17\n\n--- Page 16 ---\n16 \n \n73. Based upon the foregoing, Doe is entitled to a judgment pursuant to CPLR \u00a7 3001 \ndeclaring that Cornell misapplied its relevant policies against him, acted in an arbitrary and \ncapricious manner and that its decision against Doe is annulled.  \n74.  Any declaratory judgment in Doe\u2019s favor should also declare the vacatur of any and \nall penalties imposed on him with respect to this matter and the expungement of all references to \nthe underlying charges contained in his academic record. \nRequested Relief \nFor the aforementioned reasons, Doe respectfully requests that this court:  \n(a) pursuant to CPLR \u00a7 3001 declare that Cornell misapplied its relevant policies and  \nprocedures against Doe, acted in an arbitrary and capricious manner and that its decision against \nDoe be annulled;    \n(b) vacate of any and all penalties imposed on Doe with respect to this matter and  \nthe expungement of all references to the underlying charges contained in his academic record; and  \n(c) order such other and further relief that the court deems just and proper.  \nDated: March __, 2026 \n \n \n \n \n \n \nSaland Law PC \n \n \n \n \n \n \n \nBy:______________________ \n \n \n \n \n \n \nJeremy Saland \n \n \n \n \n \n \n274 Madison Avenue, Suite 1401 \n \n \n \n \n \n \nNew York, NY 10016 \n \n \n \n \n \n \n(212) 312-7129 \n \n \n \n \n \n \njsaland@salandlaw.com  \n \n \n \n \n \n \n \nBushell, Sovak, Kane & Sash LLP \n \n \n \n \n \n \nAlan E. Sash, Esq. \n \n \n \n \n \n \n274 Madison Avenue, Suite 1401 \n \n \n \n \n \n \nNew York, NY 10016 \n \n \n \n \n \n \n(212) 949-4700 \n \n \n \n \n \n \nasash@bushellsovak.com  \n \n \nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n16 of 17\n30\n/s/ Jeremy Saland\n\n--- Page 17 ---\n23\nAlan\nE. Sash\nReg. No. 02SA6041112\nWestchester County, NewYork\nExp. 05/01/2030\n17 \n \nVerification \nState of New York \n) \nCounty of Tompkins  ) \nI am John Doe, the petitioner in the above proceeding. I have read the petition and the \ncontents therein are true to the best of my knowledge, except as to matters alleged on information \nand belief, and that as to those matters, I believe it to be true.  \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nSworn to before me this \n___ day of March 2026 \n \n________________________ \nNotary Public \n_________________\nJohn Doe\nCI2026-07225\nIndex #: EF2026-0292\nFILED: TOMPKINS COUNTY CLERK 03/30/2026 01:47 PM\nINDEX NO. EF2026-0292\nNYSCEF DOC. NO. 1\nRECEIVED NYSCEF: 03/30/2026\n17 of 17\n23\nAlan E. Sash\nReg. No. 02SA6041112\nWestchester County, New York\nExp. 05/01/2030","thumbnailUrl":"https://lucycraig.blog/media/486/thumb.webp","transcriptStatus":"not_applicable","transcriptText":"","url":"https://lucycraig.blog/media/486"}