Full opinion text
OPINION AND ORDER RONNIE ABRAMS, District Judge. Plaintiff Xiaolu “Peter” Yu brings this action against Defendant Vassar College for sexual discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), and various state law causes of action. Before the Court is Vassar’s motion for summary judgment. For the reasons that follow, Vassar’s motion is granted. BACKGROUND I. General Background Yu is a Chinese citizen who has resided in the United States since 2008, when he enrolled in boarding school in Connecticut. (Def.’s 56.1 Statement ¶ 3.) He later enrolled at Vassar College, a residential liberal arts college in Poughkeepsie, New York, where he remained a student until his expulsion in March 2013. (Id. at ¶ 1, ¶ 2.) The circumstances of his expulsion form the basis of this case. On February 18, 2013, another student at Vassar (the “Complainant”), reported to a member of Vassar’s Sexual Assault Response Team that she had been sexually assaulted by Yu. (See Brown Aff. Ex. A.) Vassar began an investigation, led by its Title IX investigator Richard Horowitz, with the assistance of Vassai’s Associate Director of Security, Kim Squillace. (Def.’s 56.1 Statement ¶7.) On February 26, 2013, Horowitz sent an email to Julian Williams, Vassar’s Director of the Office of Equal Opportunity and Affirmative Action (“EO/AA”), who oversees allegations of sexual misconduct, copying David Brown, Vassar’s Dean of Students, informing them that he had concluded his investigation and that Yu may have violated Sections 5.05 and 20.1 of Vassar’s College Regulations. (Horowitz Aff. Ex. E.) Section 5.05 of the College Regulations provides as follows: 5.05 Sexual Misconduct offenses include, but are not limited to, non-consensual sexual contact (or attempts to commit same), non-consensual sexual intercourse (or attempts to commit same), and sexual exploitation. Non-consensual sexual intercourse is any sexual intercourse, however slight, or with any object, by a person upon a person, that is without consent and/or by force. (Yu Decl. Ex. L at 188.) Section 20.2 provides that “[n]on-consensual sexual intercourse is any sexual intercourse, however slight, with any object, by a person upon a person, that is without consent and/or by force.” (Id. at 144.) The Vassar College Student Conduct Sanctioning Parameters provide that a student may be subject to sanctions ranging from probation to expulsion for violations of Section 5.05 and from suspension to expulsion for violations of Section 20.2. (Brown Aff. Ex. B.) Following a March 7, 2018 disciplinary hearing before an Interpersonal Violence Panel (“IVP”), Yu was found to have violated both of the above sections and was expelled. (Brown Aff. Ex. D.) II. Yu’s and Complainant’s Divergent Version of Events The parties agree that the incident in question took place one year before Complainant’s report to the school. (See Def.’s 56.1 Statement ¶ 6; Pl.’s 56.1 Statement ¶ 6c.) From there, their accounts diverge. A. Yu’s Version of Events Yu claims that on the night of February 18, 2012, he was at a Vassar rowing team party on campus where he saw Complainant, a fellow rowing teammate. (Yu Decl. at ¶ 2.) Yu was supposed to meet Student B, another teammate with whom he had previously had an “intimate” relationship. (Id. at ¶ 3.) At the rowing party, Yu and Complainant consumed alcohol and began talking to each other. (Id. at ¶ 4.) The two left the party and went to “The Mug,” a “social hangout venue” on campus. (Id.) According to Yu, Complainant did not require assistance walking; “to the contrary, [she] placed her arm around [his] shoulders as a sign of intimacy.” (Id.) At The Mug, Yu and Complainant kissed “for a while.” (Id. at ¶ 5.) Yu asked Complainant if she wanted to have sex and she agreed. (Id.) Complainant then called her roommate to inquire about the “availability” of her dorm room. (Id.) Complainant could not get in touch with her roommate so the two went to Yu’s dorm instead. (Id.) Complainant and Yu then walked from The Mug to Yu’s dorm with her arms again “placed ... around [him].” (Id. at ¶ 6.) At this time, Student B and another rowing team member, Student A, observed Complainant walking with Yu. (Id.) During the walk, Complainant asked Yü if he wanted to have breakfast or dinner the next day] to which he responded, “no.” (Id. at ¶ 7.) Upon arriving at Yu’s room, Complainant went to use the bathroom before returning to Yu’s room. (Id. at ¶ 8.) Yu then left to use the bathroom himself while Complainant waited in his room. (Id.) When he returned, he told Complainant that it was his “first time” and she responded “it’s okay, I know what to do.” (Id. at ¶ 9.) Complainant then undressed herself while Yu, with Complainant’s assistance, did the same. (Id.) They then kissed and Complainant began to perform oral sex on Yu, stating, “I know how to do this; I have done this before.” (Id. at ¶ 10.) Complainant picked up the condom next to the bed, and using her hand and her teeth, ripped it open and placed it on Yu. (Id.) Yu then began performing oral sex on Complainant while she instructed him on where and how to do so. (Id.) They then began engaging in sexual intercourse while kissing. (Id.) At one point, Complainant changed positions and got on top of Yu. (Id.) While in the act, Yu’s roommate entered the room and Yu asked him to leave. (Id. at ¶ 11.) Following the interruption, Yu and Complainant did not resume sexual intercourse. (Id.) Complainant began talking about her ex-boyfriend and stated that she was not ready for “anything new.” (Id.) Complainant then got dressed and commented on how she “took [Yu’s] virginity.” (Id.) Shortly after Complainant left, Yu’s student fellow/resident advisor (the “Student Fellow”), knocked on the door and asked Yu to step out into the hallway. (Id. at ¶ 12.) The Student Fellow questioned Yu about his “party habits” while Yu noticed Student A standing at the doorway of his room. (Id.) Yu later learned that Student A had coordinated with the Student Fellow so that she could enter Yu’s dorm to search for Complainant while the Student Fellow distracted Yu in the hallway. (Id.) The next morning, the Student Fellow advised Yu that two students, later determined to be Student A and Student B, had observed Yu walking with Complainant, who appeared to be drunk, and tried to alert campus security. (Id. at ¶ 13.) Campus security never visited Yu. (Id.) B. Complainant’s Version of Events Complainant’s version of events, as reported in her statements to Vassar’s investigators, summarized in Horowitz’s report, and submitted to the Vassar hearing panel, is very different. (See Horowitz Aff. Exs. A, C, F; Roellke Aff. Ex. A at VAS 1314-18, 1325.) Complainant claims that she tried to avoid Yu at the rowing team party, where he was “hitting” on her. (Horowitz Aff. Ex. A at VAS 1541.) At the party, she consumed several glasses of punch without knowing what type of alcohol it contained and became intoxicated. (Horowitz Aff. Ex. A at VAS 1541; Ex. C at VAS 432; Ex. F at VAS 423.) She initially turned down an offer by Yu to go to The Mug, but eventually ended up leaving the party and going to The Mug with him. (Horowitz Ex. F at VAS 423.) She stated that she did not remember walking to or spending time at The Mug. (Horowitz Ex. F at VAS 423;’ Roellke Aff. Ex. A at VAS 1315.) She did remember, however, Yu asking for a kiss and her reply being “I only kiss people I am in a relationship with.” (Roellke Aff. Ex. A at VAS 1315; Horowitz Ex. C at VAS 432.) At some point in the evening, either on the way to The Mug or on the way to his dorm, Yu said he wanted to have sex with Complainant and/or asked if she wanted to go to his room, to which she either said nothing or said “no.” (Horowitz Ex. A at VAS 1541; Ex C. at VAS 432; Ex. F at VAS 428.) In her statement to the investigators, she said that she “remember[ed] feeling helpless, like [she] couldn’t talk” and “had to do whatever he said.” (Horowitz Ex. C at VAS 432.) She eventually found herself in Yu’s room, where she said that events were “fuzzy” to her. (Roellke Ex. A at VAS 1325.) Complainant believed that Yu removed all of her clothing. (Horowitz Ex. A at VAS 1541; Ex. C at VAS 433; Roellke Ex. A at VAS 1316.) Yu then pushed Complainant’s face into his crotch area for her to perform oral sex on him, stating, “you should like it, and kiss it” referring to his penis. (Horowitz Ex. C at VAS 433; Ex. A at VAS 1541; Ex. F at VAS 426.) She tried to resist but was unable to do so. (Horowitz Ex. A at VAS 1541; Ex. C at VAS 433.) She felt, she said, “physically] entrap[ped].” (Horowitz Ex. C at VAS 433.) The next thing Complainant remembered was being on her back with Yu on top of her and forcibly engaging in sexual intercourse. (Horowitz Ex A at VAS 1541; Ex. C at VAS 433; Ex. F at VAS 426.) She tried to push him off but was unable to. (Horowitz Ex. A at VAS 1541; Ex. C at VAS 433; Ex. F at VAS 426.) After what seemed like a long time to her, Yu stopped and Complainant got up, got dressed, and left Yu’s room. (Horowitz Ex. C at VAS 433; Ex. F at VAS 428.) C. The Facebook Messages On February 19, 2013, the day after the incident, Yu sent a Facebook message to Complainant, saying “Hey, wish you didn’t have a really bad hangover. I was really drunk last night and I feel maybe i was way too forward. I’d be more shy if i was more sober. I just want to make sure that you are okay.” (Yu Decl. Ex. A at 4.) Complainant replied: Peter, I was really drunk as well, don’t worry I actually don’t have a bad hang over today how about -you? I realized I just am way too close to my previous relationship which was really serious so I can’t date any one yet. I’m really sorry I led you on last night I should have known better then to let my self drink yet, I really don’t want this to effect our team dynamic or friendship. I don’t think any less of you at all I had a wonderful time last night I’m just too close to my previous relationship to be in one right now. (Id.) Yu responded, saying “I totally understand you and i’m glad we are still friends. Apparently somebody called security on me last night cuz they thought i might be potentially hurting somebody and my student fellow went nuts on me today haha:P[.]” (Id. at 5.) Complainant replied, “oh I’m really sorry! also did they write you up? ... I will stand up for you because you were not[.]” (Id.) Yu then said “don’t worry i i didn’t even se the securties, it’s just my stuednt fellow is overreacting and he told me that somebody called security haha[.]” (Id. at 6.) Complainant replied, “oh okaygoodl just wanted to make sure you didn’t get in trouble!.]” (Id.) Approximately one month later, on March 20, 2012, Complainant sent Yu another Facebook message, saying: Peter, I wanted to write to you to apologize for that night about two months ago, I have not been trying to avoid you since then. I am really sorry, it was very irresponsible of me to get drunk and do that with you. I really don’t want it to effect our friendship or team dynamic.... I did not treat you very well, and it was disrespectful on my part to do what I did because I was drunk. I would really like to be your friend I think you are a really cool guy and I don’t want this to get in the way! ... [I]f you want to try to be friends I would really like that because you are also my team mate and I care about you and I never ever meant to hurt you and we were both drunk. I hope we can both put it behind us as a memory and learn from it.... (Id. at 7.) Yu responded by saying: [TJhanks for the concern. I am totally fíne and I was honestly surprised by this extremely long message. Thanks anyway for being so considerate. I say we should just forget about it. I was so drunk I didn’t know what i was doing. I am sure that’s the case for you as well.... Just curious tho, what made you so concerned all the sudden? (Id. at 8.) Complainant responded: [Hjonestly I have been feeling guilty about it for awhile and after we went on spring break and during spring break I felt worse because I hadn’t said I was sorry and then when everyone was saying how much closer to the team they had gotten over spring break and stuff at the dinner last night at the team dinner, I just felt really bad. (Id.) Yu and Complainant continued communicating over Faeebook sporadically in May and October 2012. (Id. at 8-13.) These Faeebook messages were the subject of questioning during both the investigation and the hearing. In Yu’s view, these messages are proof that the encounter was consensual and that Complainant’s subsequent account of the events “simply lacked credibility.” (Opp. at 20.) As discussed in more detail below, Complainant explained that these messages “did not correctly reflect her feelings” because she was “in a state of ‘shock and disbelief ” at the time. (Horowitz Ex. F at VAS 423.) D. The Investigation After Complainant reported that Yu had assaulted her, Horowitz began his Title IX investigation. The investigation involved interviewing Yu, Complainant, and the students who witnessed Yu and Complainant together on the night in question. (Horowitz Aff. Ex. A, F.) On February 27, 2013, the day after being notified that Horowitz had concluded his investigation, Dean Brown sent a letter to Yu informing him that an investigation had been conducted based on a complaint and that he may be in violation of Sections 5.05 and 20.2 of the College Regulations. (Bogdan Decl. Ex. C.) The letter enclosed a copy of the relevant pages of the College Regulations, as well as a copy of the rules and procedures of the IVP that would be convened to hear the case. (Id.) The information included an enumerated statement of Yu’s rights. (Id. at 00027-28.) Brown’s letter notified Yu that he would have at least 24 hours to review the documentation related to the case “as is appropriate to acquaint you with the evidence gathered in this case.” (Id. at 00016.) The letter also informed Yu that the hearing was scheduled for March 7, 2013. (Id.) Yu was asked to call Brown as soon as possible to discuss panel procedures, and also to contact Horowitz. (Id.) On the same day, Horowitz sent Yu an email informing him of when the IVP hearing would take place, which provisions of the College Regulations he allegedly violated, and to offer him further information about the process so as to help Yu “be as comfortable as possible.” (Horowitz Aff. Ex. K at VAS 1162.) Yu emailed Horowitz a series of questions, including when he would be able to review the evidence file and where he could obtain a copy of the student handbook, all of which were answered. (Horowitz Aff. Ex. K.) Additionally, on February 28, 2013, Horowitz emailed Yu, telling him “I mentioned, when we met, that the issues of incapacitation and consent would be the primary issue[s] addressed with regard[] to the incident, but I should also share that there will also be questions regarding force. You’ll have all the information as soon as [Brown] has the file ready for you.” (Horowitz Aff. Ex. L.) At the conclusion of Horowitz’s investigation, he drafted a written summary (the “Investigator Report”), which was included in the hearing file. (Horowitz Ex. F; Def.’s 56.1 Statement ¶ 23.) Regarding the two witnesses who had seen Yu and Complainant walking to Yu’s room, Student A and Student B, Horowitz wrote that they “became concerned and made an effort to intervene due to concern. [Complainant’s] apparent high level of intoxication was noted by both witnesses and was one, if not the primary, source of concern and motivation to intervene.” (Horowitz Ex. F at VAS 423.) The Investigator Report also quoted from the Face-book exchanges and mentioned that Complainant had stated that “she said these things at the time because she was ‘in denial,’ ‘extremely scared’ and in a state of ‘shock and disbelief ” and that “the exchange did not correctly reflect her feelings.” (Id.) On March 4, 2013, after the conclusion of the investigation, Horowitz sent an email to Brown letting him know that Yu had asked for two additional students to serve as witnesses. (Horowitz Aff. Ex. G.) One was Complainant’s roommate, who “might be able to confirm whether or not [Complainant] tried to call her on that evening.” (Id. at YAS 753.) The other was Yu’s roommate, who could “confirm that he walked in on the two and quickly closed the door and left.” (Id.) Brown replied that it was ultimately up to Horowitz whether to call the two witnesses but that it would “probably [be] ok if it appears helpful for a panel in making a decision.” (Id.) Horowitz responded, saying “[m]y dominant concern is that [Yu] be given every opportunity to fully present his case.... Let’s invite them on in, then.” (Id.) Horowitz reached out to both potential witnesses but neither was able to attend the hearing. (Horowitz Ex. H-J.) Accordingly, he invited them to provide written statements. (Id.) As to Complainant’s roommate, she told Horowitz over email that she could not remember missing a phone call from a year ago and that she could not check her call log because she no longer had the same phone. (Horowitz Ex. J.) Yu’s roommate told Horowitz over email that he [O]pened the door, saw Peter in bed with someone else and he asked me to leave.... I left after I walked in on Peter and this other person. I was fairly sure that Peter and/or the other person may have been intoxicated because of the unusually forceful way Peter told me to leave, but I can’t be sure of that for a fact. That’s all that I witnessed. This happened within the span of probably 30 seconds to a minute, so I didn’t witness very much besides what I just said.... (Horowitz Ex. I at VAS 1120-21.) Upon further questioning by Horowitz regarding his comment about intoxication, Yu’s roommate stated: By that I mean that Peter was typically not very aggressive/assertive when it came to talking with me, on basically anything. But when I walked in on him and the other person, he was forceful and very quick to tell me to leave, which lent me to assuming that he was intoxicated (and maybe the other person, but I can’t be sure of that.) (Id. at VAS 1120.) Horowitz then asked whether Yu could have been forceful and quick simply because he had someone in bed with him. (Id.) Yu’s roommate agreed, saying “as you said, given the circumstances, how he acted doesn’t necessarily mean he was intoxicated.” (Id.) Horowitz informed Yu that neither of his proposed witnesses could attend the hearing, but that he had asked for written statements. (Horowitz Ex. H.) E. The Hearing In addition to exchanging emails and meeting with Horowitz, Yu, in the days leading up to the IVP hearing, also emailed with Brown regarding questions about the hearing procedure. (Brown Aff. Ex. C.) Brown answered all of Yu’s questions. (Id.) On March 4, 2013, three days before the IVP hearing, Yu was given access to the hearing file, (Def.’s 56.1 Statement ¶ 23.) The file consisted of the letter notifying him of the charges against him, the Investigator Report, Complainant’s statements to the investigators, witness statements, Yu’s own written statement, the Facebook messages (which Yu had submitted to the investigators), the names of the witnesses who would testify at the hearing, and the names of the panel members. (Id.) The hearing was held on March 7, 2013.-(Id. at ¶ 24.) According to the IVP Rules and Procedures, which were provided to Yu, the IVP is composed of “1 elected student, 2 appointed faculty members, and an administrator (or faculty member) who is assigned to serve as a Chair. If either the complainant/alleged victim ... or the respondent/accused student prefers, all three panelists will be faculty members.” (Bogdan Decl. Ex. C at 23.) Because Complainant had requested that all three panelists be faculty members, there were no students on the panel. (Yu Decl. Ex. B.) Luis Inoa, Assistant Dean of Residential Life, served as the non-voting Chair of the panel. (Def.’s 56.1 Statement ¶ 25.) The voting panel consisted of Jane Parker, an Athletics and Physical Education Lecturer (Parker Aff. ¶¶ 1, 2); Jamie Kelly, an Assistant Professor of Philosophy (Kelly Aff. ¶¶ 1, 2); and Sophia Harvey, an Assistant Professor of Film (Yu Decl. ¶ 27.) Yu had expressed concern that, because Complainant’s father was a faculty member, the panel not be conflicted. (Yu Decl. ¶ 20; Ex. B.) At the hearing, Yu, Complainant, Horowitz, and the three student witnesses (Student A,'Student B, and the Student Fellow) all testified. (Def.’s 56.1 Statement ¶ 28; PL’s 56.1 Statement 28a.) Yu was able to question all witnesses, although, as required by the IVP Rules and Procedures, his questions were made through Inoa, the panel Chair. (Kelly Aff., ¶4; Parker Aff. ¶ 3; Yu Decl. ¶ 28.) Yu would direct his question to Inoa, who would then ask the witness the question. (Id.) Yu maintains that Inoa “did not ask many of [Yu’s] questions and ... allowed [Complainant] to be non-responsive. Also, panel Chair Inoa interrupted or otherwise did not allow [Yu’s] questions to Horowitz.” (Pis’ 56.1 Statement ¶ 30a.) In response to questioning from Yu (through Inoa), Complainant testified at the hearing that the statements she made on Facebook “[did] not reflect any truth of how [she] felt that day because [she] was just trying to cope.” (Roellke Aff. Ex. A at VAS 1317.) As to the messages wherein she stated that she “wanted to ... apologize for that night,” which were made approximately one month after the incident, she stated at the hearing that she had heard that Yu was upset and was “trying to make amends.” (Id.) She stated that she was “trying to make sure [she] was on good terms with all [her] teammates.” (Id.) When asked if she was “still in shock and denial when [she] initiated [that portion of the] Facebook conversation,” she replied that she was “[l]ess shocked because [she] had some time, but over all, yes.” (Id.) As recounted by Horowitz and the panelists, the main issue before the IVP was “the incapacitation of the complainant and whether or not there was enough information to say she was more likely than not incapacitated.” (Lau Decl. Ex. 1 (Horowitz Deposition) at 258:12-15; Kelly Aff. ¶7 (IVP decision based, among other things, on Complainant’s “level of intoxication”); Park Aff. ¶ 5 (same).) Vassar’s College Regulations provide that “Mon-sent cannot be gained by ... taking advantage of the incapacitation of another, where the accused knows or should have reasonably known of such incapacitation.” (Yu Decl. Ex. L at 125.) “Incapacitation” is defined as “a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the ‘who, what, when, where, why or how1 of their sexual interaction).” (Id.) The Regulations go on to state that “incapacitation is determined on a case-by-case basis. It will include an analysis of whether the accused knew, or a sober, reasonable person in the position of the accused should have known, that the complainant was incapacitated.” (Id. at 126.) Because of this reasonable person standard, the accused’s level of intoxication is not considered. (See Horowitz Aff. Ex. F at YAS 426 (“[Yu]’s level of intoxication does not matter.... It is an objective question [of] ‘what would a reasonable person, in the position of the accused, have known?’.... Intoxication does not excuse accountability for a violation of the regulations.”); Lau Suppl. Decl. Ex. 6 at 83:4-10, 83:23-84:1 (Williams testifying in his deposition that “the level of ... voluntary intoxication[ ] by the respondent typically isn’t a factor that the panelists are concerned with” and that “the level of incapacitation on behalf of the respondent is not a factor that is either ... mitigating ... or ... exculpatory”); Yu Decl. Ex. L at 124 (“Use of alcohol ... will never function as a defense to a violation of this policy”).) After deliberating at the close of the hearing, the IVP found Yu responsible for violations of Sections 5.05 and 20.2 of the College Regulations. (Inoa Aff. Ex. A; Parker Aff. ¶ 5; Kelly Aff. ¶ 7.) Yu was so informed in the hearing room. (Bogdan Decl. Ex. A at 176:11-17.) The IVP’s written findings (the “IVP Written Findings”), drafted and signed by Inoa, list the following under “Information that was considered in reaching a decision regarding responsibility for violations”: “The 3 witnesses”; “Investigator finding”;' “Complainant testimony”; “Respondent testimony.” (Inoa Aff. ¶ 7; Ex. A at VAS 377.) Under “Information that was NOT considered in reaching a decision regarding responsibility,” the IVP Written Findings state, “We did not consider a claim in [Student A’s] testimony stating the respondent was involved in a prior ‘sexual assault.’ ” (Id.) Also under “Information that was NOT considered,” the IVP Written Findings list, but then crosses out, “Facebook chat because it occurred after the in[....]” (Id.) Under “Recommended sanctions,” the IVP Written Findings state “Expulsion.” (Id.) In the affidavits submitted for this litigation and in deposition testimony, the panelists indicated that their decision was based on credibility determinations made in favor of Complainant and the witness testimony corroborating her incapacitation. (See Bogdan Suppl. Decl. Ex, A at 69:4-6, 131:15-22 (Kelly testifying at deposition that the student witnesses’ testimony “corroborated [Complainant’s] claims about her level of intoxication and incapacitation” and that it “was important” that Complainant’s “narrative[ ] of events leading up to the incident” was “supported by the testimony of those individuals in the moments that they saw [Complainant] prior to it”), 113:11-19 (Kelly testifying that he did not think Yu’s claims were credible because “[t]hey didn’t cohere with the witness testimony, [Complainant’s] account and just didn’t seem to fit with everything else in the case”), 96:16-18 (Kelly testifying that with regard to the Facebook messages, he “weighed [Complainant’s] testimony and tried to evaluate it and found it to be credible”); Kelly Aff. ¶ 7 (“This determination was based on our consideration of the evidence as a whole including, among other things, that other witnesses corroborated Complainant’s testimony concerning her level of intoxication.”); Parker Aff. ¶ 5 (same); (Bogdan Reply Decl. Ex. A at 99:20-23 (Harvey testifying at her deposition that in assessing the credibility of the witnesses, “part of the process is to look at consistency of witness statements and ... the witness statements seemed very consistent”).) The day after the hearing, Brown informed Yu in writing that he had been expelled. (Def.’s 56.1 Statement ¶ 56.) F. The Appeal Yu was informed that he may appeal the IVP decision on grounds of (1) procedural error; (2) new evidence; or (3) sanctions disproportionate to the severity of the violation. (Id. at ¶ 58.) Yu exchanged emails with Christopher Roellke, the Dean of the College, with questions about the appellate process. (Roellke Aff. Ex. B.) Yu subsequently submitted an appeal of his expulsion to the Appeal Committee on grounds of procedural error and disproportionate sanctions. (Def.’s 56.1 Statement ¶ 62.) In response, Complainant and Inoa also submitted statements to the Appeal Committee. (Id. at ¶ 63.) On March 27, 2013, the Appeal Committee denied Yu’s appeal. (Id. at ¶ 64.) Roellke sent Yu an email on the same day notifying him that the Appeals Committee had voted unanimously to uphold the IVP decision and sanctions. (Roellke Aff. Ex. E.) G. Procedural History On June 25, 2013, Yu filed his Complaint in this matter, alleging eight causes of action: (1) gender discrimination in violation of Title IX; (2) breach of contract; (3) breach of the covenant of good faith and fair dealing; (4) unfair or deceptive trade practices; (5) estoppel and reliance; (6) intentional infliction of emotional distress; (7) negligence; (8) declaratory judgment. After discovery was completed, Vassar moved for summary judgment on all of the claims and this case was reassigned from Judge Baer. LEGAL STANDARD Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of showing that no genuine issue of material fact exists rests with the moving party. Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 57 (2d Cir.1987). “Where the moving party does not bear the ultimate burden of proof at trial, the summary judgment burden may be satisfied by pointing out the absence of evidence to support the non-movant’s claims.” Harker v. Utica Coll. of Syracuse Univ., 885 F.Supp. 378, 384 (N.D.N.Y.1995) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). “Once the movant shows the absence of such evidence, the burden of persuasion shifts to the non-movant to show that the record contains sufficient evidence to establish each element of its case.” Id. The court must “draw all factual inferences in favor of the party against whom summary judgment is sought,” Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989) and “construe the evidence in the light most favorable to the nonmoving party.” United States v. All Funds Distributed To Weiss, 345 F.3d 49, 53 (2d Cir.2003). DISCUSSION There has been much debate in recent times about the most effective method for addressing the formidable problem of sexual assault on college campuses. College administrators, politicians, academics and students alike have clashed on how best to balance the interests and rights of complainants with those of the accused. The Court’s role, of course, is neither to advocate for best practices or policies nor to retry disciplinary proceedings. See Doe v. Univ. of the South, 687 F.Supp.2d 744, 755 (E.D.Tenn.2009) (“this Court’s review is substantially circumscribed; the law does not allow this Court to retry the University’s disciplinary proceeding” (internal quotation marks omitted)). Here, the sole questions before the Court are whether when Vassar College expelled Peter Yu for sexually assaulting a fellow student, it discriminated against him based on his gender in violation of Title IX, or otherwise violated a provision of state law. For the reasons stated below, the record before the Court establishes that it did not. I. Title IX Title IX of the Education Amendments of 1972 provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. ...” 20 U.S.C. § 1681(a). There is no dispute that Title IX applies to Vassar. Unlike with Title VII of the Civil Rights Act of 1964, which provides private rights of action against both intentional discrimination (known as “disparate treatment”) and practices that, while not intentionally discriminatory, have a disproportionately adverse effect on a protected class (known as “disparate impact”), see Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009), it does not appear that a private right of action for disparate impact is cognizable under Title IX. Perhaps for this reason, Yu has not advocated that the Court consider a disparate impact theory of liability, nor have the parties raised or briefed the issue. In the context of university discipline, the Second Circuit has recognized two categories of Title IX claims: (1) claims of an erroneous outcome from a flawed proceeding, and (2) claims of selective enforcement. Scott v. WorldStarHi- pHop, Inc., No. 10-CV-9538-PKC, 2011 WL 5082410, at *4 (S.D.N.Y. Oct. 25, 2011) (citing Yusuf v. Vassar Coll., 35 F.3d 709, 714-16 (2d Cir.1994)). “In the former case, a party asserts that he or she was innocent and wrongly found to have committed the offense; in the latter case, a party asserts that, regardless of guilt, the severity of the penalty was affected by the student’s gender.” Id. A plaintiff must show that “gender bias was a motivating factor” behind the erroneous outcome or the severity of the penalty. Id. Yu brings claims of both an erroneous outcome and selective enforcement. A. Erroneous Outcome Vassar argues that Yu cannot show that the disciplinary proceedings were “flawed” because they were in compliance with Title IX’s implementing regulations and guidance, which require that schools “adopt and publish grievance procedures providing for the prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited.” 34 C.F.R. § 106.8(b); see also Letter from Russlynn Ali, Assistant Sec’y for Civil Rights, Office for Civil Rights, U.S. Dep’t of Educ. (Apr. 4, 2011) (available at http://www2.ed.gov/about/ offlces/list/ocrAetters/colleague-201104.pdf) (“Dear Colleague Letter”). Yu counters that Vassar’s procedures denied him basic due process and that Vassar did not comply with its own procedures. Vassar also argues that Yu has failed to show that the outcome of the disciplinary proceeding was erroneous or motivated by gender bias. Yu responds primarily that the IVP could not have believed Complainant’s version of events in the face of the contradictory and exculpatory Facebook messages but for gender bias, and that Vassar’s policy of only considering the intoxication and incapacitation of female complainants but not male respondents is discriminatory. Yu further argues that Vassar afforded preferential treatment to Complainant. The record establishes that there is no material factual issue as to whether Yu’s disciplinary proceeding was flawed and thus may have resulted in an erroneous outcome, or that, even if there had been such flaws or errors, these deficiencies were due to gender bias, as he must show in order to state a Title IX claim. To the extent that Yu simply disagrees with the IVP’s decision, the Court cannot now-absent flawed process and gender discrimination-second-guess the panelists’ credibility determinations and factual conclusions. 1. Flawed Proceeding a. Due Process As an initial matter, to the extent that Yu is claiming that Vassar’s disciplinary proceedings denied him constitutional due process, this argument is without merit. Since Vassar is a private college, and not a state actor, “the federal Constitution does not establish the level of due process that [Vassar] had to give [Yu] in his disciplinary proceeding.” Bleiler v. Coll. of Holy Cross, No. 11-CV-11541-DJC, 2013 WL 4714340, at *4 (D.Mass. Aug. 26, 2013); see also Rensselaer Soc’y of Eng’rs v. Rensselaer Polytechnic Inst., 260 A.D.2d 992, 689 N.Y.S.2d 292, 295 (3d Dep’t 1999) (“the relationship between a private university and its students ... is essentially a private one such that, absent some showing of State involvement, their disciplinary proceedings do not implicate the full panoply of due process guarantees” (internal quotation marks omitted)); Dear Colleague Letter at 12 (“Public and state-supported schools must provide due process to the alleged perpetrator”) That said, a “private university, college, or school may not arbitrarily or capriciously dismiss a student.” Bleiler, 2013 WL 4714340, at *5 (internal quotation marks omitted). The Dear Colleague Letter provides that “prompt and equitable” resolution of sexual violence complaints shall include, among others, the following “critical” elements: “[njotice to students ... of the grievance procedures”; “[adequate, reliable, and impartial investigation of complaints [including any hearing], including the opportunity for both parties to present witnesses and other evidence”; “[njotice to parties of the outcome of the complaint....” Dear Colleague Letter at 9, 11. To this end, Yu makes several allegations as to how his disciplinary proceeding was flawed. i. Lack of Impartial Tribunal Yu argues that he was denied an impartial tribunal in violation of Title IX because “the [IVP] consisted of all faculty members when [Complainant’s] father was and is a •Vassar faculty member.” (Opp. at 15.) This argument fails. The record shows that conflict checks were conducted prior to the hearing, and, in any event, there is no evidence that the voting panelists were aware of the fact that Complainant’s father was a member of the faculty. When Jane Parker was asked in her deposition when she was told the names of the students in this proceeding, she responded, “Before the hearing because we, you know, always make sure there is no sort of history.... We have to go to [Brown’s] office to review the file to get a sense of it, first identify the students involved, make sure there is no conflict.” (Bogdan Reply Deck Ex. D at 31:21-32:7.) When asked if she was familiar with who Yu or Complainant were prior to the hearing, Parker said she was not. (Id. at 33:5-17.)' Similarly, in Sophia Harvey’s deposition, she stated that Brown notifies the potential panelists of when the hearing file is complete so that they may review it to identify any conflict in advance of the hearing: “We are encouraged to view it as soon as possible, the completed file, because if you have to recuse yourself, there is time to find an alternative panel member.” (Bogdan Reply Deck Ex. A at 68:3-15.) Harvey also stated that while she knew of Complainant’s father, she was unaware that he had a daughter attending Vassar. (Id. at 36:4-22.) Yu does not identify any evidence to the contrary that would raise a triable issue as to the panelists’ bias toward Complainant because of her father. See Bleiler, 2013 WL 4714340, at *13 (granting summary judgment on equity and due process claims where alleged conflicts of interest were “fully disclosed before the hearing and explored,” by the administrator in charge, and where the administrator “concluded that both panel members believed that they did not have a conflict of interest” and the “panel members did not know [the complainant] well and there was no suggestion ... that either knew [the respondent].”) ii. Rush to Convict; Inadequate Time to Prepare and Consult With Counsel Yu next contends that the proceedings against him were unfair because Vassar “does not recognize a right to consult with counsel and rushed the proceedings so as to make it practically unavailable.” (Opp. at 16.) Yu argues that it was only eight days from the day he was given notice of the charges to the day he was expelled, and only three days between his first opportunity to view the hearing file and the hearing itself. (Id.) These arguments are unavailing. Yu’s contention that “Vassar does not recognize a right to consult with counsel” is simply incorrect. The College Regulations explicitly state that “[i]t is the respondent/accused student’s decision whether to seek the advice and assistance of an attorney at his/her own expense if legal advice is needed.” (Bogdan Decl. Ex. C at 27.) While the rules go on to state that the respondent “may not be represented by legal counsel at meetings, investigatory interviews, informal resolution processes, or during a ... hearing,” this is in accord with the “general consensus ... that ‘at most the student has a right to get the advice of a lawyer; the lawyer need not be allowed to participate in the proceeding in the usual way of trial counsel....’” Johnson v. Temple Univ. Of Commonwealth Sys. of Higher Educ., No. CIV.A. 12-515, 2013 WL 5298484, at *10 (E.D.Pa. Sept. 19, 2013) (quoting Osteen v. Henley, 13 F.3d 221, 225 (7th Cir.1993)). Yu points to no evidence otherwise showing that Vassar interfered in any way with his right to consult an attorney. As to the purported “rush to convict,” Yu cites no authority for the proposition that eight days between the notice of charges and the verdict, or three days between the presentation of evidence and the hearing, is inherently inadequate. Indeed, courts have not disapproved of notice of charges given just one day prior to the hearing. See Doe, 687 F.Supp.2d at 753; see also Donohue v. Baker, 976 F.Supp. 136, 145-46 (N.D.N.Y.1997) (telephonic notice of charges at least three days prior to the hearing and written notice one day. before the hearing “would seem [to be] sufficient”). iii. Limited Cross-Examination Yu next argues that the proceedings were unfair because he was required to question the witnesses through Inoa, the IVP Chair, who “refused to ask many of [his questions directed at Complainant and Horowitz] and allowed [Complainant] to be non-responsive with crying and non-responsive answers.” (Opp. at 17.) Yu claims that as a result, his cross-examination of the witnesses was “effectively denied.” (Yu Deck ¶ 28.) As an initial matter, any claim of unfairness due to a requirement that questions be asked through the panel Chair fails as a matter of law. Courts have found that similar policies are procedurally adequate. See Donohue, 976 F.Supp. at 147 (“due process required that the panel permit the plaintiff to hear all evidence against him and to direct questions to his accuser through the panel”); see also Nash v. Auburn Univ., 812 F.2d 655, 664 (11th Cir.1987) (“Appellants were told they could pose questions of the accusing witnesses by directing their questions to the presiding board chancellor, who would then direct appellants’ questions to the witnesses.... That. they did not avail themselves of the opportunity to question the witnesses through the chancellor cannot be characterized as a denial of process.”). Moreover, the Dear Colleague Letter specifically states that the Department of Education’s Office for Civil Rights “strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” Dear Colleague Letter at 12. To the extent Yu contends that he was denied effective cross-examination because Inoa cut short his questioning, he has not established a genuine issue of material fact as to whether this led to an erroneous outcome or was motivated by gender bias. Inoa testified in his deposition that in exercising his power to allow or disallow questions, he would cut off Yu’s questioning where answers to those questions had already been given and further questioning would be redundant. (Bogdan Reply Deck Ex. C at 80:9-25, 81:6-19, 82:4-12, 82:18-88:11, 84:10-18.) If the response was incomplete, and necessitated further questioning along similar lines, Inoa would allow the additional questions. (Id. at 85:2-10.) Notwithstanding his conclusory statement that Inoa “refused to ask many of my cross-examination questions,” Yu presents no evidence specifying which questions Inoa did not ask, their relevance to the proceedings, whether they were redundant, or whether not asking them may have prejudiced Yu in some way. (Yu Deck ¶ 28.) In fact, a review of the hearing transcript shows that Yu was able to ask Horowitz (though Inoa) extensive questions about the sufficiency of his investigation, (see Roellke Aff. Ex. A at YAS 1312-14 (Yu asking, for example, “[w]hat is the evidence other than [Complainant’s] own statement that she did not want to connect with me?” and “[a]re these statements only provided by [Complainant] or are they supported by any other source?”)), and was also able to ask Complainant about the Facebook messages. (See Roellke Aff. Ex. A at VAS 1314-18 (Yu asking, for example, “[w]ho initiated contact on March 20th on Facebook?” and “[w]ere you still in shock and denial when you initiated the Facebook conversation?”).) Further, aside from stating that this was so, Yu has adduced no evidence substantiating his argument that Inoa “allowed [Complainant] to be non-responsive with crying and non-responsive answers.” (Opp. at 17.) Because Yu never specifies precisely what questions he would have asked Complainant, what her “non-responsive answers” were, how such responses prejudiced him, or how Inoa’s conduct was motivated by gender bias, this claim must fail. iv. Horowitz Testified as a Fact Witness/Horowitz’s Flawed Investigation Yu also argues that the proceedings were unfair because Horowitz, Vassal’s Title IX investigator, testified' as a “fact witness with personal knowledge, which Horowitz did not have.” (Opp. at 17.) In so doing, “Horowitz’s statement gave an official imprimatur on finding the accused guilty based on a treatment of the facts not based on percipient knowledge and reflecting a biased investigation,” (Id.) To the extent that Yu bases his argument on due process standards regarding keeping the roles of prosecutor, witness, and judge separate, see Tumey v. Ohio, 273 U.S. 510, 534, 47 S.Ct. 437, 71 L.Ed. 749 (1927), as noted earlier, private colleges like Vassar are not bound by constitutional due process. Yu points to no authority otherwise providing that Title IX prohibits a school’s Title IX investigator from testifying at the disciplinary hearing. Indeed, investigators have so testified in similar circumstances without a court taking issue. See Doe, 687 F.Supp.2d at 754 (“the hearing panel heard oral testimony from the hearing investigator”). In any event, Horowitz had no decision making role in the outcome of the hearing, and there is no reason to believe that the panel members could have confused Horowitz’s testimony to be anything other than the statements of the investigator — they were presented, after all, with his Investigator Report as part of the hearing file — rather than as a percipient witness with personal knowledge of the events. Insofar as Yu is arguing that Horowitz’s investigation itself was biased, this is largely conclusory and unsupported by the record. Yu claims that the Investigator Report “(i) ‘cherry pick[ed]’ statements from each witness without providing their full context; (ii) took [Complainant’s] statements as true; (iii) glossed over [Complainant’s] unexplained inconsistencies; and (iv) framed the statements in a way that reflected his own biased decision that [Yu] was guilty.” (Compl. ¶ 45.) Yu points to no specific facts, however, to support these conclusory allegations. A review of the Investigator Report shows that it lays out the events from both Yu’s and Complainant’s perspectives, and indicates which statements were made by whom. (See, e.g., Horowitz Aff. Ex. F at VAS 423 (“She stated that ... ”; “She reported that ... ”; “Peter shared an account of ...,”); see also Bogdan Decl. Ex. A at 26:19-21 (Yu agreeing in deposition that “the report had what she said and what you said, correct?”).) The Investigator Report summarizes and quotes from the Facebook exchanges, including the statements on which Yu relies. (See Horowitz Aff. Ex. F at VAS 423 (“She stated that she ‘had a wonderful time’ during the evening of the incident with Peter and T will stand up for you.... ’ ”). The Investigator Report then goes on to explain the issues of “incapacitation,” “consent,” and “force” and break down how the factual issues involved in this case may fit into these administrative definitions. (Id. at VAS 424-428). The closest that Horowitz comes to injecting any sort of commentary into this recitation of facts and governing standards is when, in fleshing out the “in-eapacitation” issue, he states that the information gathered “appears to suggest” that Complainant “may have made a series of decisions and exhibited behaviors to suggest that she was incapacitated prior to, and during, the incident.” (Id. at VAS 425 (emphasis in original).) That this statement contains equivocating caveats suggests that no bias against Yu was either intended or realized. Indeed, Yu points to no specific portion or portions of the Investigator Report with which he takes issue. In his deposition, he refers to one sentence — which he could not remember, but that he said was with regard to Complainant “not wanting] to leave with Peter” — that he claims was taken from Complainant but that was not put in quotes, and was thus misleadingly set forth as undisputed fact. (Bogdan Deck Ex. A at 25:21-26:5.) No fair reading of the Investigator Report could lead a reasonable juror to conclude that this omission of quotation marks — wherever they were supposed to go — somehow rendered the document anything other than a summary of the events as told by the students involved, rather than one of undisputed fact. Yu additionally argues that Horowitz’s investigation was biased because he “refused” to call the two witnesses Yu had requested and noted only that he received emails from them, based on which he concluded that they would not provide useful testimony. (Compl. ¶ 50.) To the contrary, not only did Horowitz suggest that these witnesses be contacted, but it was only after he did in fact reach out to both requested witnesses that he determined that they did not possess materially relevant information. (Horowitz Aff. Ex. I, J.) Yu points to no evidence that this finding was made in bad faith. With respect to Complainant’s roommate, she could not remember whether she missed a call from Complainant on the night of the incident and could not consult her phone log since she no longer had the same phone. (Horowitz Aff. Ex. J.) As for Yu’s roommate— who was unable to attend the hearing — the substance of what he could have offered, as he stated in his 'email to Horowitz, was that he observed “Peter in bed with someone else and he asked me to leave.” (Horowitz Aff. Ex. I at VAS 1121.) Yu points to no other material evidence that his roommate would have provided, and agreed in his deposition testimony that there is no dispute that he and Complainant were in bed. (Bogdan Decl. Ex. A at 37:17-21.) To the extent that Yu’s roommate could have offered information regarding his perception of Yu’s drunkenness, his observations would have been irrelevant given Vassar’s reasonable person standard. As to the key issue of Complainant’s incapacitation, Yu’s roommate specifically said that he could not be sure of her level of intoxication. (Horowitz Aff. Ex. I at VAS 1120 (Yu’s roommate stating that he “assume[d] that [Yu] was intoxicated (and maybe the other person, but I can’t be sure of that”)).) In any event, Yu’s roommates’ observations were so fleeting that Horowitz could have reasonably concluded that he could not contribute any additional, material information to what was already part of the record. There is thus no genuine issue of material fact as to Horowitz’s non-discriminatory reason for not compelling the roommates’ appearances at the hearing. Yu also claims that Horowitz’s investigation was biased because he did not investigate the witness’ “potential biases or motives,” even though the IVP relied on him to perform such “background check[s].” (PL’s Suppl. Br. at 3.) To the contrary, when asked if he ever independently investigated potential biases or motivations by student witnesses, Horowitz stated that “[w]hen they become apparent or not necessarily even apparent, when they are even suggested during the course of the investigation for a student to come forward and say, Hey, I think she is misrepresenting this and this is why, we’ll look into that. But we don’t go fishing for them (Lau Suppl. Deck Ex. 2 at 252:25-253:13.) When asked at his deposition about Student B’s statements in this case, Horowitz stated that there was no reason to question her credibility and that her account was consistent with Student A’s and Complainant’s. (Lau Decl. Ex. 1 at 230:23-231:6.) He further stated that “when it’s brought to my attention, when it comes across as a misrepresentation or inconsistency with a story, I certainly call students on that and say, Here is what I am hearing from this individual, but it’s not consistent with what you shared. But in this particular case there is nothing that she shared that suggested she had an agenda or she was misrepresenting. Everything, in fact, suggested that this was somebody who had credibility.” (Id. at 231:7-17.) Thus, while Horowitz did acknowledge that it was generally not his practice to automatically engage in an investigation of a witness’ motivations or biases, (Lau Suppl. Deck Ex. 2 at 253:14-16), he clearly stated that he does engage in such inquiries-when there is a reason to do so. In Horowitz’s view, there was no reason to do so here, and even if there were, Yu does not present any evidence that Horowitz failed to do so for discriminatory reasons. Finally, Yu attempts to discredit Horowitz’s investigation by contending that oversight of Horowitz and the investigatory process is insufficient. Yu asserts that Horowitz was not adequately trained; that there is “no substantive audit” of Horowitz’s compliance with Title IX; that Horowitz “had only been an investigator for Vassar ... [for] less than one ... year from the date of the [h]earing”; and that Julian Williams, Horowitz’s supervisor, does not “double-check” Horowitz’s work. (PL’s Suppl. Br. at 5.) Each of these claims is either unsupported by the record and/or does not raise any issues of material fact that would show Vassar discriminated against Yu based on his gender. As to Horowitz’s training, Yu points to Williams’ deposition testimony, wherein he stated that Title IX requires “annual training” but it “doesn’t specifically set out what that training would look like or from who.” (Lau Suppl. Decl. Ex 6 at 15:24-16:3.) Yu does not explain how attending annual trainings (or only annual trainings) as described somehow violates Title IX. Moreover, Yu presents no evidence that the training Horowitz detailed in his own deposition testimony is insufficient under Title IX. (See Bogdan Reply Decl. Ex. B at 7:14-16:3, 25:10-36:25, 101:14-102:24; 107-11-111:12, 112:6-14.) Similarly, Yu does not explain how the fact that Horowitz had been an investigator for less than one year by the time of the hearing prejudiced Yu or otherwise rendered the investigation flawed. Further, contrary to Yu’s contention that there is no substantive audit of Horowitz, Williams testified that he and Horowitz, “as well as other investigators, will meet frequently to talk about our processes, our procedures, what we are doing, what they are doing in cases. So I would see that as a specific type of audit and review.” (Bogdan Suppl. Decl. Ex. B at 64:15-20.) While Williams did acknowledge that he does not provide a “second opinion” or check over each piece of information gathered by Horowitz, (Lau Suppl. Decl. at 60:24-61:6), he also stated that he conducts a “holistic review” by “looking at the facts, how they are stated, is the information clear ... is there enough information there to give the panelists or is there too much information there.” (Bogdan Suppl. Decl. at 56:13-57:4.) Yu offers no authority suggesting that this is insufficient under Title IX,-or that any deficiencies, if they exist, were motivated by gender bias. Yu is therefore unable to establish that Horowitz’s testimony or investigation contributed to a flawed disciplinary proceeding. v. No Sworn Testimony Next, Yu argues that the procedures were flawed because “hearing statements were not sworn_” (Opp. at 17.) Yu has cited no authority for the proposition that Title IX requires sworn testimony at a school disciplinary proceeding, where the school’s procedures expressly state that witnesses will not be placed under oath, (Bogdan Decl. Ex. C at 23 (IVP proceedings “are administrative hearings, not trials. No one is placed under oath at hearings.”).) Particularly since Yu was able to ask the witnesses questions through Inoa, the admission of unsworn testimony at the hearing does not mark the proceedings as flawed, much less gender-biased. See Rensselaer Soc’y of Eng’rs, 689 N.Y.S.2d at 295 (disciplinary proceedings at private university “do not implicate the full panoply of due process guarantees” (internal quotation marks omitted)); cf. Sampson v. Dist. Council of New York City and Vicinity of United Bhd. of Carpenters and Joiners of Am., No. 10-CV-8120-LAP, 2012 WL 4471535, at *6 (S.D.N.Y. Sept. 27, 2012) (rejecting due process claim under the Labor-Management Reporting and Disclosure Act where plaintiff “fail[ed] to show how [the statute] require[d] that witnesses be placed under oath or how his accuser’s providing unsworn testimony deprived him ' of due process”). vi. Presumption of Male Guilt Yu contends that the “panel members took the accusatory testimony of [Complainant], Students A and B and the Student Fellow at face value, effectively using a presumption of male guilt that negated ... [the] preponderance of evidence burden of proof.” (Opp. at 17.) Yu is essentially arguing that the panel did not properly assess the credibility of the witnesses. In particular, he contends that they accepted the testimony of Student A and Student B despite the two witnesses being “demonstrably[ ] not competent to testify.” (Pl.’s Supp. Br. at 2.) This contention is unsupported by the. record. Jamie Kelly, one of the panelists, testified in his deposition that the IVP relied on Student A’s and Student B’s testimony to corroborate Complainant’s claim of incapacitation: “We had testimony from two individuals who believed her to be very drunk. We had her own account of the evening, which said that she was very, very drunk. That all seemed coherent in a way that made it credible.” (Lau Suppl. Decl. Ex 5 at 112:20-24.) Yu argues, however, that “the [p]anel did not question [Student B] or [Student'A] about their definition of ‘very drunk,’ even though Mr. Kelly admitted that one person’s definition of ‘very drunk’ can vary from another’s.” (PL’s Suppl. Br. at 3; Lau Suppl. Decl. Ex. 5 at 70:8-71:3.) This fact, Yu argues, along with the fact that the panel did not ask whether Student A or Student B had ever seen Complainant intoxicated, is evidence that the panel “did not challenge [Student B] or [Student A’s] statements and took them at face-value.” (PL’s Suppl. Br. at 3; Lau Suppl. Decl. Ex. 5 at 110:12-18, 111:8-10.) This argument fails. In a judicial proceeding under the Federal Rules of Evidence, “[t]here is near universal agreement that lay opinion testimony about whether someone was intoxicated is admissible.... ” United States v. Horn, 185 F.Supp.2d 530, 560 (D.Md.2002). The Federal Rules do not require a specific definitional breakdown of the components of intoxication, nor past familiarity with an individual’s drunken habits, but. merely a direct statement, “assuming adequate observation and common experience,” that the person “seemed drunk....” Id. (the witness is “not confined to descriptions of glazed eyes, problems in speech or motor coordination, changes in behavior or mood or affect, but may say directly ... that the person seemed drunk or under the influence” (quoting Mueller and Kirkpatrick, Evidence § 7.4 (4th ed.1995))). Yu gives no reason why a school disciplinary proceeding would be held to a higher evidentiary standard than a federal court proceeding, nor why the only witnesses competent to testify as to drunkenness are those who are familiar with a particular person’s drunkenness, or why commonplace testimony as to intoxication could not be accepted as credible but for gender bias. Indeed, in his deposition, Kelly further stated that the panel did not further question the witnesses about their familiarity with levels of intoxication because “one could make that kind of determination in general-[Y]ou ... rely on sort of general traits and characteristics about how people behave when they are drunk.... [TJhere will be aberrant cases, alcoholics that have high functioning while intoxicated, for example. But that doesn’t diminish the fact that it’s generally possible to make some judgments about an individual’s level of intoxication.” (Lau Suppl. Decl. Ex 5 at 110:23-112:2.) Moreover, as mentioned above, in assessing the .witnesses’ credibility, Kelly t