The attorney representing the State University of New York in the Sarah Tubbs lawsuit has filed a request for a pre-motion conferencea request that states Tubbs’s complaint should be dismissed.

State Assistant Attorney General Mark Klein filed the request on March 12. Judge Nelson Roman of the United States District Court, Southern District of New York, approved the request for the conference, which is scheduled for March 25. In a pre-motion conference, the judge and lawyers in a civil lawsuit discuss what motion a party plans to file and the opposing party’s response to the motion.

Klein’s request also states that because Stony Brook University is not a “legally-cognizable entity separate from SUNY,” SUNY has taken Stony Brook University’s place as the defendant in the lawsuit.

Tubbs filed a lawsuit against Stony Brook University on Jan. 23, 2015 for “deliberate indifference” regarding the manner in which the administration allegedly handled her complaint of sexual assault under Title IX. Title IX is the federal clause that prohibits discrimination based on sex at any federally-funded educational institution.


“The University is unable to comment on specific litigation, as Federal privacy laws prohibit us from disclosing student information,” SBU Media Relations Officer Lauren Sheprow said in an email. “The court will have the opportunity to consider the full record, including information we cannot immediately share publicly.”

The Statesman is publishing Tubbs’s name with her expressed permission to do so.

Klein’s request cites the standard for student-on-student harassment set by the 2013 lawsuit KF v. Monroe Woodbury Central School District. Judge Edgardo Ramos, also a judge of the United States District Court, Southern District of New York, presided over the KF lawsuit. Sussman & Watkins, the law firm that is representing Tubbs, also represented the plaintiffs in the KF lawsuit.

The court’s opinion in the KF lawsuit states that “Title IX funding recipients may be held liable for student-on-student harassment if the plaintiff can establish damages only where the school district: (1) was deliberately indifferent; (2) to sexual harassment; (3) of which it had actual knowledge; (4) that was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or 10 benefits provided by the school.”


The opinion for the KF lawsuit cites the 1999 lawsuit Davis v. Monroe County Board of Education, the opinion for which states that deliberate indifference must “at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.”

“Accordingly, even accepting as true plaintiff’s [Tubbs’s] allegations that SUNY’s response to plaintiff’s [Tubbs’s] claims was deficient, plaintiff’s [Tubbs’s] allegations nonetheless fail to support any assertion that SUNY effectively caused plaintiff to encounter discrimination,” Klein’s request states.

According to Tubbs’s lawsuit complaint, she reported her alleged sexual assault to Stony Brook’s Office of University Community Standards, which scheduled the disciplinary hearing during her final exams, less than a week before her graduation ceremony in the spring of 2014.

Tubbs was allegedly informed “she would be responsible for prosecuting her case” during the hearing. Both Tubbs’s complaint and her alleged assailant’s counterclaim state that Tubbs and the alleged assailant were separated by a paper screen during the hearing.

“Despite the presence of the screen, nothing could address the trauma of having to question, and be questioned by, this man,” Tubbs’s complaint states.


On May 22, 2014, the day of her first graduation ceremony, Tubbs was informed the alleged assailant was found not responsible. After receiving the written basis for the hearing panel’s decision, dated July 9, 2014, Tubbs filed an appeal.

In a letter dated Aug. 28, 2014, Director of Campus Recreation Jay Souza allegedly advised her that after reviewing the case, he “found no evidence that the Hearing Board considered the definition of consent found in the University Code of Conduct and/or applied that definition to the facts of this case” and that the finding “constitutes a significant procedural error warranting the granting of your appeal.”

Tubbs’s complaint states she was notified she would be contacted by the Office of University Community Standards with the next steps in the process, but no university official provided any “substantive response” or further steps.

Tubbs’ lawyer, Amy Attias of Sussman and Watkins, said in a meeting with media representatives that on March 6, 2015, Tubbs received an email from Stony Brook University’s Director of the Office of Community Standards Matty Orlich stating that the appeal was found against Tubbs.

For more of The Statesman’s coverage of and relating to Title IX, click here.

Correction: March 17, 2015
A previous version of this story included a quote attributed to University Spokeswoman Lauren Sheprow. The quote was published out of context—it was given in an email interview on February 3, not March 16 when this story was initially published.


1 comment

  1. Kangaroo Court held by state employees who know better than to bite the hand that feeds them. These “professionals” who make life altering decisions have a loyalty to both the students they serve and the institution they work for, which is a conflict of interest. This in itself is “deliberate indifference.”

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