DECISION AND ORDER INTRODUCTION Plaintiff John Doe1 brings this action against Defendant Rochester Institute of Technology (“RIT”), alleging that he was wrongly disciplined due to gender bias, in violation of Title IX of the Education Amendments of 1972 and in breach of his rights under RIT’s student policies. ECF No. 1. RIT moves for summary judgment. ECF No. 25. Plaintiff opposes the motion, ECF No. 30, and RIT has filed its reply. ECF No. 36. Both parties filed supplemental memoranda. ECF Nos. 42, 43. For the reasons that follow, RIT’s motion for summary judgment is GRANTED IN PART and DENIED IN PART. LEGAL STANDARD Summary judgment is appropriate when the record shows that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in the non-moving party’s favor. See Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). However, the non-moving party “may not rely on conclusory allegations or unsubstantiated speculation.” F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation omitted). BACKGROUND The following facts are taken from the record, as viewed in the light most favorable to Plaintiff. RIT is a private university located in Rochester. Plaintiff enrolled as an undergraduate student at RIT in Fall 2018. In Fall 2019, Plaintiff met Jane Roe,2 another RIT student, via the online dating application “Tinder.” From Fall 2019 to Spring 2020, Plaintiff and Roe engaged in consensual sexual activities, including sexual intercourse, approximately “four to six times.” ECF No. 25-1 26; ECF No. 31 26. On the evening of July 3, 2020, Plaintiff met Roe and her friends at a bar, and accompanied them to a residence that Roe and her friends had rented for the weekend. The sexual conduct between Plaintiff and Roe on that date — the nature of which is disputed — became the subject of Plaintiff’s later disciplinary proceedings. More than eight months later, on March 15, 2021, Roe filed an internal complaint with RIT’s Title IX office, ECF No. 37-8 at 5 and Plaintiff received a “Notice of Investigation and Allegations” summarizing her complaint two days later. ECF No. 25-7 at 1. The summary of Roe’s complaint reads: [Roe] reported that on July 3rd, 2020, you made sexual contact with her without her consent at an Air B&B that she rented for the July 4th weekend. She shared that she allowed you to share the bed she was sleeping in as there was nowhere else to sleep and she was concerned about you driving while intoxicated. [Roe] shared that you and she were just friends at that time and hadn’t had a sexual relationship since the previous year. She said you had a girlfriend and she respected that. She reported that as soon as the lights went out, you began hugging and kissing her. She told you “no” but you continued. [Roe] alleges that you then forcibly pushed your hand down into her pants and penetrated her vagina with your fingers. She said that she told you to stop and you did for a short period. She then reports that you then placed her hand on your penis, climbed on top of her, and tried to push her underwear to the side to penetrate her vagina. She reports that you were not successful. [Roe] said that you then went to the bathroom and motioned for her to follow you. She said she followed you into the bathroom “not knowing what to expect.” At that time you asked her to perform oral sex on you and she began to. [Roe] said that you firmly held her head in place with both hands which made it very difficult to stop the oral sex. She eventually pushed away. You then asked her to lay down on the bathroom floor, to which she said “no.” She reports that you then lifted her onto the top of the counter in an attempt to penetrate her with your penis, but she left the bathroom to prevent that from happening. She returned to the bedroom and reported no additional sexual activity happened after you also returned to the bedroom. [Roe] alleges that you then told her not to tell anyone what happened. ECF No. 37 at 1. The complaint notified Plaintiff that, “[b]ased on these allegations,” RIT believed that Plaintiff may have violated RIT’s “Non Consensual Sexual Contact” (III.G.1) and “Non Consensual Intercourse” (III.G.2) student policies. Id. The former generally encompasses “any intentional sexual touching [of another], however slight,” and the latter generally encompasses sexual penetration. ECF No. 25-13 at 4. To constitute a violation, the conduct must be performed “without Affirmative Consent,” id., which means “the ability to engage in activity knowingly and voluntarily.” Id. at 7. Under RIT policy, “[c]onsent can be given by words (verbal or signed) or actions, as long as those words or actions create clear permission regarding willingness to engage in sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate Consent.” Id. Pursuant to RIT policy, Plaintiff would be presumed “not responsible” for these alleged violations “unless and until a finding of responsibility was made,” ECF No. 25-13 at 25, and any finding of responsibility could only be reached if the hearing officers concluded that the “misconduct more likely than not occurred.” Id. at 26. On the second page of the notice that Plaintiff received is a section titled “Mutual No Contact Order” in bold. ECF No. 37 at 2. It informed Plaintiff that he was not have contact with Roe. Id. On the day that Plaintiff received the notice, he sent a text message to Roe reading “Hey.” ECF No. 25-7 at 25. Pursuant to RIT’s internal procedures, RIT’s Public Safety Department commenced an investigation and met with Plaintiff on March 24, 2021. ECF No. 37-4 at 1. Plaintiff described his version of the events that occurred on July 3, 2020. In brief, Plaintiff stated that the sexual encounter between the pair was consensual. See id. Their relationship had not been of a sexual nature recently, since Plaintiff had declined to begin a “romantic relationship” with Roe and had begun dating someone else. Id. On July 3, 2020, Plaintiff met Roe and her friends at a bar and drove them to their rental. Id. After drinking together, Plaintiff and Roe decided to share a bed to sleep in that night. While in bed together, they kissed and touched each other’s genitals. Id. Plaintiff suggested that they go into the bathroom to avoid waking up Roe’s friends, and Roe agreed. While in the bathroom, the pair continued to kiss, until Roe stopped, pushed Plaintiff away, and told him that she “can’t do this anymore because you have a girlfriend.” Id. The encounter ended, and the pair went back to the bed and slept. Id. After that night, Roe told Plaintiff that she felt bad about what happened and encouraged Plaintiff to tell his girlfriend. Id. As for the apparent violation of the no-contact order, Plaintiff stated that “he had not yet received the No Contact Order” and “did not know that he was in violation of the No Contact Order.” Id. at 2. The investigation continued and resulted in an “Evidence Packet” to be used in the Title IX proceeding. ECF No. 37-8. The first hearing on Roe’s complaint occurred on May 24, 2021. Plaintiff was provided with a student advocate to assist him during the hearing. ECF No. 25-1
47, 48. The hearing was conducted before two hearing officers, Jennifer Newell and Sean Watson. ECF No. 40-1 at 1. Stacy DeRooy, Director of RIT’s Title IX Office, was also in attendance. Id. A transcript of that hearing is available in the record (ECF No. 33-1).3 A decision was issued on May 28, 2021. ECF No. ECF No. 33-3 at 3. The hearing officers found Plaintiff “responsible” for violation of the Non-Consensual Sexual Contact policy, but found him “not responsible” for violation of the Non-Consensual Sexual Intercourse policy. No. 33-3 at 4. As to the former, the hearing officers concluded by a preponderance of the evidence that Plaintiff had placed his hands down Roe’s pants and inserted his fingers into her vagina without consent. As to the latter, the hearing officers concluded that, whatever sexual conduct occurred in the bathroom, Plaintiff “discontinu[ed]” it once Roe “ rescinded” her consent. Id. The hearing officers ordered that Plaintiff be placed on a term of probation lasting through July 2021. Id. at 5. Plaintiff appealed this adverse outcome because, inter alia, there was new information that could substantially impact the original outcome. ECF No. 33-4 at 1. The additional evidence included an email that another student had written to Newell and DeRooy prior to the first hearing but that was “excluded from the hearing process.” ECF No. 37-15 at 3. In the email, the student states that she was present with Plaintiff and Roe on the night of July 3, 2020. Id. at 6. The student discloses a variety of information bearing on Roe’s credibility and motive for her Title IX complaint. For example, the student observes that, after July 3, 2020, Roe continued to invite Plaintiff to outings and “spent weeks practically blackmailing him so he would tell his girlfriend about the incident.” Id. Importantly, Roe told this student that she “enjoyed [the night of July 3, 2020] but felt guilty [] since she knew he was in a relationship.” Id. The student believed Roe’s complaint was a result of “her obsession with [Plaintiff]” and “ her jealousy,” rather than an honest complaint of sexual assault. Id. In addition to this email, Plaintiff proffered text messages tending to corroborate the student’s narrative. One text-message chain shows that Roe had subtly threatened Plaintiff that she would tell his girlfriend about the incident. See ECF No. 37-15 at 17 (“[Y]ou don’t have to be the one to tell her, there are probably plenty of people who could do that for you. I know I could name a few.”). Other text messages reveal that Roe had schemed and joked with her friends about disclosing the incident to Plaintiff’s girlfriend. See id. at 15, 19; see also id. at 21 (after sending copies of Plaintiff’s messages, texting to friend: “[PLAINTIFF] BLOCKED ME AHAHAHA”). RIT accepted the appeal on the basis of the evidence and ordered that a new hearing be conducted. ECF No. 25-1 62. In addition, RIT added a new charge: violation of the no-contact order. On September 3, 2021, a second hearing was conducted before two new hearing officers, Ericka Smith-Schubart and Bill St. Jean. ECF No. 33-2. DeRooy attended this hearing, putatively as a mere “observ[er].” Id. at 2. Tony Yazback, the Assistant Director of Public Safety, attended, ostensibly to “answer any questions regarding the public safety investigation.” Id. at 3. A transcript of that hearing is available in the record (ECF No. 33-2). A few aspects of the second hearing merit discussion. Part way through the hearing, the hearing officers took a break. ECF No. 33-2 at 38. They told the parties that they intended to “confer” with each other to assess whether they had any “additional questions.” Id. During this break, Smith-Schubart and St. Jean proceeded to talk about their early reactions to the hearing, not only with each other, but with DeRooy and Yazback.4 Smith-Schubart remarked that, in her view, Plaintiff had made a “blanket statement” that he had “consent” because of “[their] sexual history.” Id. at 39. She was unsure whether Plaintiff had “been able to demonstrate any affirmative consent.” Id. In response, Yazback provided guidance to Smith-Schubart on how to interpret Plaintiff’s testimony, remarking as an aside that it was “clear as mud.” Id. at 40. Despite the fact that neither Smith-Schubart nor St. Jean were given access to the prior hearing transcript, DeRooy disclosed that Plaintiff’s present testimony regarding the encounter in the bathroom was “not necessarily what was said before.” Id. at 41. Yazback and DeRooy both opined that it was suspicious that Plaintiff was claiming not to remember what happened in the bathroom given his prior clarity about the night of July 3, 2020. Id. at 42. Smith-Schubart stated that she intended to “flip” the issue and question Plaintiff regarding how he had obtained Roe’s consent, since RIT policy “is about affirmative consent.” ECF No. 33-2 at 42. Smith-Schubart stated that she believed Plaintiff was relying on “tropes” about consent to justify his behavior, and she was “super floored by that statement.” Id. at 44. DeRooy acknowledged that “we can’t make assumptions about this” and noted that Plaintiff may simply “have a hard time articulating” what he meant. Id. at 45. But, DeRooy said, “he did say I assume. I mean we can’t makeup words; right? He said I assumed.” Id. Yazback remarked that “if you assume, you make an ass out of you and me.” Id. at 46. The transcript records laughter at this remark. Id. DeRooy noted that she “appreciate[d] that [Smith-Schubart was] seeing it as clearly as [she was] seeing it.” Id. at 47. Before restarting the hearing, DeRooy assured Smith-Schubart that she was “seeing it clearly” and that she should “resist the urge” to worry about the scheduled length of the hearing if “it [is] clear.” Id. The hearing proceeded. When Plaintiff attempted to raise the issue of Roe’s later conduct and possible ulterior motive for her complaint, Smith-Schubart rejected its relevance. She opined that the “focus” should be on “the interactions between the two of you” on July 3, 2020, and felt that later interactions were not “connected.” ECF No. 33-2 at 64; id. at 73. Although Plaintiff and his advocate tried to make clear that this conduct was relevant to assessing Roe’s credibility, see id. at 66, 72, 74-77, Smith-Schubart maintained that it was irrelevant except as “context.” Id. at 79-80. At another point, when Plaintiff attempted to discuss Roe’s testimony from the first hearing, Smith-Schubart stopped him. Smith-Schubart claimed to Plaintiff that this was a “brandnew hearing” and that the hearing officers were operating “from the set of facts that are presented to us in this conversation.” Id. at 77. Smith-Schubart also cautioned Plaintiff that he should not raise issues “to cloud any of the conversations that we’re having about what somebody said last time” — though she did not disclose that DeRooy had already disclosed information about Plaintiff’s testimony from the first hearing. Id. at 78. On September 9, 2021, a decision was issued. ECF No. 40-5 at 1. The decision reduced the hotly contested factual disputes to a single question: could Plaintiff defend himself against Roe’s allegations by claiming that he “had consent due to [their] prior sexual history”? Id. at 2. Answering that question in the negative, the hearing officers concluded that Plaintiff had committed the sexual misconduct complained of. See id. Smith-Schubart and St. Jean found Plaintiff responsible on all three alleged violations and ordered that he be suspended for one year. Id. at 2-3. In the section titled “Information Considered,” the decision heavily emphasized the notion — raised by Smith-Schubart and encouraged by DeRooy and Yazback — that Plaintiff believed he had Roe’s consent solely due to “[his] prior sexual interactions” with Roe. Id. at 2. The decision entirely omits mention of the additional evidence provided during Plaintiff’s first appeal. See id. The omission of this evidence is notable, both because RIT policy requires that hearing officers engage in a “careful review of all information presented,” ECF No. 25-13 at 26 (emphasis added), and because this evidence is what precipitated the new hearing in the first place. At her deposition, Smith-Schubart admitted that she believed this additional evidence was irrelevant. See ECF No. 40-8 at 48 (stating that evidence post-dating July 3, 2020 “did not help us determine whether or not there was consent for the sexual actions”). Plaintiff appealed the decision from the second hearing panel. ECF No. 25-1 73. On October 12, 2021 the University Appeals Board upheld the second hearing panel’s decision. ECF No. 33-6 at 1-2. Like the second hearing panel, the Appeals Board found the sanction appropriate because Plaintiff had “assumed” consent based on their “sexual history.” Id. at 2. The Appeals Board concluded a finding of responsibility was appropriate because “the standard for affirmative consent was not met” based on Plaintiff’s “own statements.” Id. As a result, Plaintiff was suspended for the remainder of the 2021-2022 school year. ECF No. 27 at 15. In December 2021, Plaintiff brought the present action. ECF No. 1. He raises three claims: (1) breach of contract; (2) promissory estoppel; and (3) violation of Title IX. ECF No. 1 at 50-60. DISCUSSION RIT moves for summary judgment on all three claims. ECF No. 25. Plaintiff opposes the motion. The Court evaluates each claim in turn. I. Breach of Contract RIT argues that Plaintiff cannot sustain a claim for breach of contract because the alleged promises on which he relies are insufficiently specific and discrete. ECF No. 25-14 at 17-18. In the alternative, RIT argues that there is no evidence that it violated any of its Title IX policies. Id. at 19-20. Generally, “[t]o make out a breach of contract claim under New York law, a plaintiff must plead (1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages.” Doe v. Yeshiva Univ., No. 22-CV-5405, 2023 WL 8236316, at *11 (S.D.N.Y. Nov. 28, 2023) (internal quotation marks omitted). “Under New York law, a student and the college or university in which the student enrolls enter into an implied contract, the essence of which is that the academic institution must act in good faith in its dealings with the student.” Goldberg v. Pace Univ., 88 F.4th 204, 210 (2d Cir. 2023). The precise terms of the implied contract are established by “the university’s bulletins, circulars and regulations made available to the student.” Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 93 (2d Cir. 2011). “To [prove] a valid claim for breach of contract in [this] unique context, the student must first identify an express promise for certain specified services in the university’s relevant materials.” Goldberg, 88 F.4th at 210 (internal quotation marks omitted). “He then must [establish] when and how the defendant breached [that] specific contractual promise.” Id. “[W]ithout the identification of a specific breached promise or obligation, the claims of a disgruntled student do not suffice” to state a claim for breach of contract. Id. (internal quotation marks omitted). In the context of a “disciplinary dispute” between a student and the institution, “judicial review of the institution’s actions is limited to whether the institution acted arbitrarily or whether it substantially complied with its own rules and regulations.” Rolph v. Hobart & William Smith Colls., 271 F. Supp. 3d 386, 405 (W.D.N.Y. 2017). The student must identify “specific terms of the implied contract that were allegedly violated,” such as “an internal rule regulation, or code.” Id. “General statements of policy or broad pronouncements of a University’s compliance with existing anti-discrimination laws [or] promising equitable treatment of all students cannot provide the basis for a breach of contract claim.” Id. (internal quotation marks and brackets omitted). The Court agrees with RIT that Plaintiff has largely failed to identify express promises that could form the basis for a breach-of-contract claim. In his complaint, Plaintiff alleges that RIT’s “Gender-Based and Sexual Misconduct Policy makes clear that it is intended to be interpreted and applied consistently with Title IX.” ECF No. 1 150. Plaintiff thus asserts that this university policy “intends that students have impartial investigators investigate the case, impartial hearing officers hear the case, and a fair and impartial disciplinary process,” id. 151, and he alleges that RIT violated these intentions. Id.
