Campus Due Process Litigation Tracker

Feibleman v. Columbia University, No. 1:19-cv-04327 (S.D.N.Y. Feb. 24, 2020)

School type: Private
State: New York
Federal Circuit: Second
Decision primarily favorable to: Student
Stage of litigation: Motion to dismiss
Keywords: Basic fairness, Breach of contract, Erroneous outcome, Exculpatory evidence, Title IX

The court granted in part and denied in part the university’s motion to dismiss.

Columbia revoked Ben Feibleman’s journalism degree after finding that he had sexually assaulted a fellow student, Jane Doe, who alleged that she was too drunk to consent to sexual activity.

Feibleman and Doe attended a reception together on October 4, 2016, at which both of them consumed alcohol and flirted with one another. They returned to a classmate’s apartment to socialize afterwards, and Roe eventually led Feibleman to the roof of the apartment building. Doe climbed a water tower on the roof, where she allegedly removed her sweater and unhooked her bra. She and Feibleman kissed. Feibleman was afraid of heights, and when he told Doe he wanted to descend, she allegedly slapped him in the face and bit his lip. Eventually, their other friends joined them on the roof.

Later that night, after the party broke up, Feibleman walked Doe home. According to Feibleman, he tucked her into bed and she pulled him in for a kiss; following that, they had sexual contact but not intercourse. When Doe began asking Feibleman to have intercourse and getting upset when he said no, Feibleman alleges he became nervous and began an audio recording of the incident. The recording captures Doe repeatedly asking Feibleman to have sex with her, with Feibleman declining because he believes Doe is too drunk.

Columbia’s investigator found that Doe was incapacitated while she was on top of the water tower, finding that her behavior on the water tower was “irrational risk-taking” that indicated incapacitation. The investigator also found that Doe was still incapacitated during the sexual contact at her apartment after the party. She recommended finding Feibleman responsible. Although Feibleman asked Columbia’s investigator also to investigate Doe for allegedly assaulting him (the slapping and biting on the water tower) and for allegedly retaliating against witnesses who might have undermined Doe’s credibility, the investigator declined to investigate those claims.

After a panel hearing at which the investigators were not present to testify and at which the panel did not allow testimony from witnesses other than Doe and Feibleman, the panel found that Doe had been incapacitated. Feibleman was retroactively expelled and his degree revoked.

Feibleman brought suit alleging Title IX violations and breach of contract claims.

Feibleman alleged Title IX violations under both the “erroneous outcome” and “selective enforcement” theories; Columbia moved to dismiss only his erroneous outcome claim. To make an erroneous outcome claim, a plaintiff must plead facts casting articulable doubt on the outcome of a disciplinary proceeding, and facts linking the allegedly erroneous outcome to gender bias.

The court noted that the Second Circuit maintains “what it describes as a ‘low standard’ for pleading the existence of gender bias in Title IX cases,” and that Feibleman had cleared that bar by making allegations of bias (pressure on Columbia from an OCR investigation and from the high-profile “Mattress Girl” case) that were “essentially identical to those found to be adequate in Doe v. Columbia Univ.

The court also found that Feibleman had alleged numerous procedural irregularities in Columbia’s adjudication of Jane Doe’s claim. The court held that procedural irregularities alone, however, were insufficient to establish articulable doubt, and that Feibleman must actually plead facts suggesting “there is an ‘articulable doubt’ as to whether the preponderance of the evidence showed that Feibleman either knew, or should have reasonably known, based on Doe’s observable characteristics, that she was incapacitated.”

With regard to the sexual contact on the water tower, the court held that there was articulable doubt because

[T]here is reason to believe that Doe was aware of what she was doing and in command of her faculties. Doe appeared to know who Feibleman was, as she allegedly taunted him for being a former Marine who was afraid of heights. Doe also appeared to know where she was, inasmuch it was her idea to climb the water tower of an apartment building in which she did not live. Doe was also the one who initiated the sexual contact by approaching Feibleman, kissing him, and taking off her sweater.

Additionally, “There was no unsteady gait or imbalance, as she ascended and descended a 30-foot high water tower, multiple times, in addition to taking several flights of stairs, quickly and without issue, and somersaulting across the roof of the tank and onto a ladder.”

The court also held that there was articulable doubt as to whether Doe was incapacitated later that evening in her bedroom, when she and Feibleman again had sexual contact, finding that “at least some aspects of Doe’s behavior suggested that she was capable of consenting to sexual activity consistent with [Columbia’s policy] and that some of the behavior tending to suggest incapacity may have been feigned.”

The court made clear that it did not find Feibleman’s account of events in the bedroom to be more believable than Doe’s account, but held that at this early stage of litigation, Feibleman only needed to show that there was a “question whether Columbia erred in finding by a preponderance of the evidence that Feibleman committed sexual assault in Doe’s bedroom.”

Feibleman also brought breach of contract claims against Columbia “for failing to complete its investigation within 60 days, not providing a fair and impartial disciplinary process, and revoking or withholding his degree.” Columbia moved to dismiss those claims, alleging that “the 60-day timeframe is merely aspirational; the assurance of a ‘fair and impartial’ disciplinary process is merely a general policy statement, not an enforceable promise; and withholding his diploma did
not breach any contract because Feibleman violated [Columbia’s policy].”

In New York, the relationship between a student and a private university is contractual in nature, with the terms of the implied contract “contained in the university’s bulletins, circulars and regulations made available to the student.” The court held that both the 60-day timeline and the promise of a fair and impartial process were aspirational and, regarding the latter, too general to be enforceable. The only ground on which the court allowed Feibleman’s contract claim to proceed is his allegation that Columbia failed to disclose conflicts of interest in his case.