Opinion
7103/2018
03-21-2019
Alexander BILICKI, Petitoner, v. SYRACUSE UNIVERSITY, Respondent.
Jonathan Wallace, Esq., Law Office of Imke Ratschko, 30 Broad Street, 14th Floor, New York, New York 10004, Attorney for Petitioner. John G. Powers, Esq., Hancock & Estabrook, LLP, 1500 AXA Tower 1, 100 Madison Street, Syracuse, New York 13244, Attorney for Respondent. Abby R. Perer, Esq., Syracuse University Office of University Counsel, 513 Crouse-Hinds Hall, 900 South Crouse Avenue, Syracuse, New York 13244, Of Counsel for Respondent.
Jonathan Wallace, Esq., Law Office of Imke Ratschko, 30 Broad Street, 14th Floor, New York, New York 10004, Attorney for Petitioner.
John G. Powers, Esq., Hancock & Estabrook, LLP, 1500 AXA Tower 1, 100 Madison Street, Syracuse, New York 13244, Attorney for Respondent.
Abby R. Perer, Esq., Syracuse University Office of University Counsel, 513 Crouse-Hinds Hall, 900 South Crouse Avenue, Syracuse, New York 13244, Of Counsel for Respondent.
Gregory R. Gilbert, J.
BACKGROUND
Petitioner was an undergraduate student at Syracuse University. He was expelled after a hearing and administrative appeal as a consequence of postings on his facebook account. Administrative remedies have been exhausted effective on 3/30/18. The petition is filed 7/23/18 and is timely.
FACTS
The petition seeks to have petitioner readmitted together with a declaration that his rights were violated under the student code as well as the 1st, 5th, 6th, and 14th Amendments to the US Constitution.
Petitioner reacted poorly to a news article which his father had e-mailed to him on 12/8/17 about an armed robbery near the campus. He posted on his facebook account as follows:
"If I was patrolling the streets of Syracuse I'd pull a Dirty Harry and hunt down every hood rat and shoot every one of them down with my 44 without fucking blinking".
"Fucking hood rats are infesting my college. We need a hard ass to run our schools and stop letting libs let things like this go. ‘Oh, forgive them! Those men have rights too! Give them the money! They need it!’ Fucking go to hell you left wing assholes who let white people die and hood rats live".
The facebook posts were up for a few days but were then taken down. A university police officer came calling on 1/12/18 to interview petitioner about the postings. There were no Miranda warnings and the officer assured petitioner that he didn't need an attorney and then took petitioner's statement which was later used against petitioner in a student disciplinary proceeding.
On 1/16/18 he was suspended. His hearing was 3/5/18 and counsel was not permitted to attend. The petition generally claims that there were no rules for the hearing and petitioner's "basic rights" were not protected. He was expelled by order of 3/12/18 on the basis that the postings: constituted threats; harassment or "fighting words" and "conduct threatening the mental health, physical health or safety" of other persons and this was affirmed by an appeals board on 3/30/18.
CODE OF CONDUCT
The petition tries to make the point that the code protects the student from discipline for the exercise of free speech. The code states:
"Students have the right to express themselves freely on any subject provided they do so in a manner that does not violate the Code of Student Conduct. Students in turn have the responsibility to respect the right of all members of the University to exercise these freedoms."
The code allows for a finding of violation for the following behavior:
"1. Physical harm or threat of physical harm to any person or persons, including, but not limited to: assault, sexual abuse, or other forms of physical abuse.
2. Harassment—whether physical, verbal or electronic, oral, written or video—which is beyond the bounds of protected free speech, directed at a specific individual(s), easily construed as "fighting words," or likely to cause an immediate breach of the peace.
3. Conduct— whether physical, verbal or electronic, oral, written or video—which threatens the mental health, physical health, or safety of any person or persons including, but not limited to hazing, drug or alcohol abuse, bullying or other forms of destructive behavior."
There is adequate notice that speech allowed for under the code of conduct has its limitations.
The record of proceedings on the student disciplinary matter has been submitted and has been reviewed. There was an answer with objections in point of law filed by SU.
No issue of substantial evidence is presented under CPLR § 7803 for transfer to the Appellate Division under CPLR § 7804(g) because the determination being reviewed was not made at a hearing held pursuant to direction of law at which evidence was taken. Van Houten v. Mount St. Mary College , 137 A.D.3d 1293 (2nd Dept. 2016). Even if the petition had raised the issue, there is substantial evidence present to support the finding of discipline and it is not for this Court to substitute its own judgment in the matter. Matter of Haug v. State University of New York at Potsdam , 149 A.D.3d 1200 (3rd Dept. 2017) reversed 32 N.Y.3d 1044 (2018).
Petitioner asserts that the objections in point of law are an attempt to seek summary judgment on matters outside the record of the underlying proceeding. The Court does not agree with this assessment and, in any event, reviews the matter based solely on the record of the proceedings as presented. Objections in point of law are a proper response to the petition in all respects under CPLR § 7804(f).
DISCUSSION
First Objection - Petitioner has no due process rights.
As a student attending a private college, petitioner is not entitled to the full panoply of due process rights under the 5th and 14th Amendments of the US Constitution. Kickertz v. New York University , 25 N.Y.3d 942 (2015) held to this effect while finding a triable issue of fact of whether NYU substantially complied with its own procedure. The inquiry is limited to whether the rules set out by the university were substantially observed. Tedeschi v. Wagner College , 93 Misc 2d 510 (Supreme Court Richmond County 1978), affirmed 70 A.D.2d 934, reversed on other grounds 49 NY2d 652 held to this effect as to an academic suspension. While there is a great deal of deference by the courts when it comes to academic standards [see eg. Susan M. v. New York Law School , 76 NY2d 241 (1990) ], a review of discipline for nonacademic reasons is based on substantial compliance with the procedure as established by a private university as seen in Kickertz v. New York University , 25 N.Y.3d 942 (2015).
A private university is required to follow its own rules and there is no basis for an action based on constitutional principals. Beilis v. Albany Medical College of Union University , 136 A.D.2d 42 (3rd Dept. 1988) ; Van Houten v. Mount St. Mary College , 137 A.D.3d 1293 (2nd Dept. 2016) and Galiani v. Hofstra University , 118 A.D.2d 572 (2nd Dept. 1986). Stated another way, the determination is subject to annulment only when there has been a lack of substantial compliance with the university's procedure (perfect adherence to every procedural requirement not being required) or the determination is found to lack a rational basis. Matter of Doe v. Skidmore College , 152 A.D.3d 932 (3rd Dept. 2017) and Simkovich v. Vasser College , 249 A.D.2d 551 (2nd Dept. 1998) appeal denied 92 NY2d 809. Courts have a restricted role in the review of disciplinary determinations of colleges and universities and may act only in cases of arbitrary action not in the exercise of honest discretion, the failure to abide by the procedure established or imposition of a penalty that shocks the conscience. Matter of Aryeh v. St. John's University , 154 A.D.3d 747 (2nd Dept. 2017). What applies is the SU code of conduct and what remains is a determination of whether there was substantial compliance with that code of conduct by the university, an issue that is properly raised and preserved by petitioner.
The first objection in point of law is well taken and all claims of constitutional dimension asserted by the petition are DISMISSED .
Second Objection - Petitioner has shown no violation of the code.
Petitioner has no rights beyond those stated in the disciplinary rules. Stated another way, SU was not bound to do anything for petitioner in this matter that was not expressly provided by the code of conduct. Matter of Doe v. Skidmore College , 152 A.D.3d 932 (3rd Dept. 2017) and Matter of Aryeh v. St. John's University , 154 A.D.3d 747 (2nd Dept. 2017). The specific points raised by petitioner are examined in this context.
Miranda Rights
Petitioner claims that he was not given Miranda warnings as to his right to remain silent or that anything he said to university security could later be used against him in a disciplinary proceeding. While this is true, the petition assumes that such rights were acquired as part of the code of conduct or otherwise constitutionally required. Such a claim was rejected in Kwiatkowski v. Ithaca College , 82 Misc 2d 43 (Supreme Court Tompkins County 1975). This Court agrees with the assessment made in Kwiatkowski that a non-judicial proceeding brought under a student disciplinary code does not equate with or require those safeguards inherent to a criminal proceeding. There is nothing in the disciplinary code that requires application of Miranda warnings. The university's argument based on People v. Tracy , 197 A.D.2d 853 (4th Dept. 1993) is, however, expressly rejected where it would be otherwise applied in the context of a criminal proceeding. The Court finds that the claim that petitioner possessed Miranda rights that were violated under the code of conduct has no merit.
Right To Counsel
The issue of the right to counsel in the student disciplinary context has been examined in a few cases. In Stapor v. Wagner College , 44 Misc 3d 1209 (Supreme Court Richmond County 2014) the fact that a student handbook allowed for an advisor which was provided but did not require that the student be allowed to have counsel present was found to be proper. In Matter of Ebert v. Yeshiva University , 28 A.D.3d 315, 315 (1st Dept. 2006) the university's procedure expressly prohibited the presence of counsel and this was found not to deprive the student of "fundamental fairness". Agudio v. State University of New York , 164 A.D.3d 986 (3rd Dept. 2018) directly holds that a student has no right to counsel in a disciplinary proceeding except as expressly stated by the code of conduct governing the hearing. The assertion of a right to counsel to attend and participate in the disciplinary hearing or appeal has no basis in the code of conduct.
Hearsay Evidence
Petitioner asserts that the determination was procedurally flawed as it allowed for the use of hearsay evidence. Such an objection was rejected in Matter of Ebert v. Yeshiva University , 28 A.D.3d 315 (1st Dept. 2006) and Matter of Budd v. State University of New York at Geneseo , 133 A.D.3d 1341 (4th Dept. 2015) leave to appeal denied 26 N.Y.3d 919. It is similarly rejected here as having no merit.
Cross Examination
Petitioner asserts that he was deprived of the right of cross examination. Al-Khadra v. Syracuse University , 291 A.D.2d 865 (4th Dept. 2002) appeal denied 98 NY2d 603 applies to the contrary on facts very similar to those presented here concerning testimony submitted by the complainant university security officer. See also Nawaz v. State University of New York at Buffalo School of Dental Medicine , 295 A.D.2d 944 (4th Dept. 2002). The cases Doe v. Skidmore College , 152 A.D.3d 932 (3rd Dept. 2017) and Doe v. Cornell University , 59 Misc 3d 915 (Supreme Court Tompkins County 2017) affirmed 163 A.D.3d 1243 (3rd Dept. 2018) cited by the University are not applicable as they involve application of the "Enough is Enough Law" [ Education Law § 6444(5)(b)(2) ] not at issue here. The claim that there was no ability to cross examine has no factual or legal merit.
Anonymous Complaint
The claim by petitioner that the testimony of the university security officer was in some respects triggered by anonymous complaints creates no fact issue in this matter. The postings and petitioner's responsibility for those postings were never at issue. How and why the postings came to the attention of the university security officer is not relevant to the content of the postings or that they were in fact made.
Attempted Factual Disputes
Petitioner asserts that the determination is in error as to various factual conclusions and should therefore be overturned. As noted earlier, the issue is one of whether there is substantial evidence present to support the finding of discipline and it is not for this Court to substitute its own judgment in the matter. Matter of Haug v. State University of New York at Potsdam , 149 A.D.3d 1200 (3rd Dept. 2017) reversed 32 N.Y.3d 1044 (2018).
Petitioner contends that he never intended for the postings to be seen by anyone except a few select friends who supposedly shared his views and would not have been offended thereby. Whatever his intentions were, and even if that intent was relevant (which it isn't), the fact is well established that the postings were available to be seen by anyone.
Petitioner asserts that he did not intend to threaten anyone in the postings, essentially claiming that he was engaging in hyperbole. There has never been a dispute as to the exact language of the postings. A finding that these posting were of a threatening and violent nature has a reasonable basis. The university was not required to await an overt act in furtherance of the postings to take action.
Petitioner asserts that his use of the term "hood rat" was intended to refer to "someone who has sex with everyone in the ‘hood’ or neighborhood...and often poor woman who engages in sexual activity like a prostitute, but without charge and without being coerced". This is a disingenuous position given the actual wording of the postings at issue. The Court finds the language used to be quite plain and racially charged and to be obviously intended to be so. The finding to this effect was reasonable.
Matters Beyond The Hearing Record
Petitioner attempts to interject matters outside the context of the hearing in the form of an affidavits by Gregory DeCinque and Mark Bartholomew, neither of whom testified or offered an affidavit for consideration by the university. The Court is not in a position of retrying petitioner's disciplinary hearing or directing that the same be retried by the university based on such matters. Petitioner had every right to submit such concerns to the university in the first instance.
Even if these affidavits were to be considered, they would make no difference. As to the DeCinque affidavit, it is no more than an expression that he would have reached a different conclusion and his opinion is irrelevant as a matter of law. As to the Bartholomew affidavit, it merely seeks to excuse petitioner's behavior by claiming that the facebook privacy settings were confusing and may have led petitioner to post to a wider audience than he had intended. The Court finds the affidavit to be speculative at best and that there is no question of fact presented that the postings were generally available to anyone.
The other procedural errors asserted by petitioner have been reviewed and have no merit. The Court's review of the matter shows that the university substantially complied with the code of conduct in all respects.
The second objection in point of law is well taken and the petition is DISMISSED on this basis as well.
Third Objection - No arbitrary or capricious conduct.
The university takes the position that it followed its disciplinary rules and the suspension was rendered in accordance with the rules and based on an exercise of honest discretion. Tedeschi v. Wagner College , 49 NY2d 652 (1980) ; Olsson v. Board of Higher Education , 49 NY2d 408 (1980) ; Galiani v. Hofstra University , 118 A.D.2d 572 (2nd Dept. 1986) ; Al-Khadra v. Syracuse University , 291 A.D.2d 865 (4th Dept. 2002) ; Fernandez v. Columbia University , 16 A.D.3d 227 (1st Dept. 2005) ; Van Houten v. Mount St. Mary College , 137 A.D.3d 1293 (2nd Dept. 2016) and Doe v. Cornell University , 59 Misc 3d 915 (Supreme Court Tompkins County 2017) affirmed 163 A.D.3d 1243 (3rd Dept. 2018).
As noted above, the university substantially complied with the code of conduct throughout the hearing process. There is no claim of bias by any member of the panel that heard the disciplinary charges herein. Petitioner was given proper notice of the charges against him. He was notified of the right to have an advisor and declined. The facebook postings were admitted by petitioner who attempted to downplay the racially charged and violent nature of the content. The disciplinary panel accepted and considered all of the evidence offered by petitioner, including testimony by petitioner's psychologist and parents.
The pertinent findings of the panel were as follows:
"The Board determined the Respondent to be responsible for violating CSC 1 and 3 because he used threatening language in a post on Facebook. The language he used threatened physical harm to individuals he described as hood rats. Specifically, he described that he would use a .44 to shoot them. The Board determined that the post he made implied that hood rats were any non-white person in the community. Regardless, the threat to shoot any group of individuals is a threat to both the mental health and physical safety of members of the University community."
Petitioner is entitled to a favorable view of the evidence and every inference that may be drawn from that evidence. See Brito v. Manhattan & Bronx Surface Transit Operating Authority , 188 A.D.2d 253 (1st Dept. 1992). The determination is not plainly and totally irrational as it is based on the largely undisputed facts relating to petitioner's conduct. Compare Civil Service Employees Association, Local 1000 v. State, 15 A.D.3d 748 (3rd Dept. 2005) and Matter of Jandrew v. County of Cortland , 84 A.D.3d 1616 (3rd Dept. 2011).
Generally, an administrative determination is arbitrary and capricious when it is without sound basis in reason and is taken without regard to the facts rendering the determination to be without rational basis. Pell v. Board of Education of Union Free School District No.1 , 34 N.Y.2d 222 (1974). The determination must be supported by such relevant proof as a reasonable mind may accept as adequate to support the conclusion. 300 Gramatan Avenue Associates v. State Division of Human Rights , 45 N.Y.2d 176 (1978) ; Matter of Castiglia v. County of Ontario , 140 A.D.3d 1648 (4th Dept. 2016).
This Court does not sit as an independent trier of fact in the matter. The issue considered is whether the university followed its own rules from the code of conduct, exercised honest discretion and articulated a basis in the facts presented to make the finding that was reached. The Court concludes that there is nothing arbitrary or capricious about the determination that was rendered.
The third objection in point of law is valid in all respects and the petition is DISMISSED on this basis.
Fourth Objection - Waiver of rights.
The university argues that petitioner failed to preserve his rights by making a timely objection during the disciplinary proceeding. This involves the appeal petitioner made to the university appeals board in which Petitioner asserted that there was new evidence not reasonably available at the time of the hearing; that there was a grossly inappropriate sanction and that there were errors in the interpretation of university policy affecting the outcome. Petitioner did not make a specific claim of procedural error.
There is no applicable case law referenced by the fourth objection in point of law. Petitioner's objection as to proper interpretation of the code could be seen as incorporating the failure of constitutional and other procedural protections. This would accord the petitioner the most favorable view of the evidence and inferences possible. Of course, petitioner is still required to show some mention of those rights within the disciplinary policy and, as noted earlier, the rights that petitioner claims to have been violated were not secured to him by the code of conduct. Additionally, the errors in interpretation asserted more particularly by petitioner had nothing to do with the violations now alleged by the petition as to Miranda warnings, right to counsel, use of hearsay evidence and right of cross examination.
Petitioner has failed to properly exhaust administrative remedies by placing these issues before the board panel and appeals board in the first instance and they are not now properly before the Court for consideration in the first instance. Nawaz v. State University of New York at Buffalo School of Dental Medicine , 295 A.D.2d 944 (4th Dept. 2002).
The fourth objection in point of law is valid for the reasons indicated and the claimed procedural violations as to Miranda warnings, right to counsel, use of hearsay evidence and right of cross examination are DISMISSED on this basis as well.
Fifth Objection - The First Amendment does not apply.
The university is not a state actor and university students are, consequently, not protected by the First Amendment of the US Constitution. Rendell-Baker v. Kohn , 457 US 830 (1982) ; Mitchell v. New York University , 129 A.D.3d 542 (1st Dept. 2015), leave to appeal dismissed 27 N.Y.3d 949, certiorari denied 2017 US LEXIS 2886 and Weise v. Syracuse University , 553 FSupp 675 (NDNY 1982). See also Stone v. Cornell University , 126 A.D.2d 816 (3rd Dept. 1987) and Tedeschi v. Wagner College , 93 Misc 2d 510 (Supreme Court Richmond County 1978), affirmed 70 A.D.2d 934, reversed on other grounds 49 NY2d 652.
As noted earlier, the general reference to "the right to express themselves freely" has to be taken with the limitations expressed by the policy. The policy does not give the students a blanket right to say or post anything that they wish. The university disciplinary policy did not expressly or impliedly adopt a First Amendment standard governed by First Amendment case law and make it applicable to the university as a private entity.
The Court finds that the careful and detailed reasoning expressed by Chief Judge Munson in Weise v. Syracuse University , 553 FSupp 675 (NDNY 1982) applies in this case and precludes the view of the university as a state actor to which a claim under the First Amendment would be properly applied. Petitioner has failed to establish that the university's disciplinary findings constituted state action in any respect. To the extent that petitioner proceeds on the basis that the code of conduct expressly incorporated the First Amendment, that claim is rejected based on a plain reading of the code of conduct.
The fifth objection in point of law is well taken and petitioner's first amendment claims are DISMISSED on this basis.
Sixth Objection - Sanctions applied even under the First Amendment.
The university argues that even if it was a public entity, the First Amendment would not have prohibited disciplinary action based on the case, Keefe v. Adams , 840 F3d 523 (8th Cir 2016) certiorari denied 2017 US LEXIX 3466. The Keefe case is similar to the matter before this Court in many respects as it involved a nursing student who made a facebook post that was viewed as threatening. In Keefe , however, there was an added element that the student referred to a fellow student as a "stupid bitch" and this element is absent in this case. The larger issue in Keefe that distinguishes it from the matter at hand is that it dealt with the regulation of speech and First Amendment protections in the context of the professionalism required on and off campus by aspiring members of the medical professions.
The Court declines to view Keefe v. Adams , 840 F3d 523 (8th Cir 2016) certiorari denied 2017 US LEXIX 3466 so broadly as to be applied in this situation nor is such a broad reading required for the disposition of this matter.
The sixth objection in point of law is DENIED on the basis above.
Seventh Objection - Expulsion was not shocking to the conscience.
This is an argument under Pell v. Board of Education of Union Free School District No. 1 , 34 NY2d 222 (1974). The university notes that petitioner was already on disciplinary probation at the time he made the facebook posts in question. This, coupled with the nature of the posts, and what the university refers to as "aggressive tendencies" is said to make expulsion an appropriate remedy. The supporting affidavits detail five student conduct complaints involving two cases of property damage and three outbursts in classes, one of which was withdrawn. There is also reference to "fighting with his room mate" but whether this relates to the previous complaints is not clear. Petitioner had already been suspended for a semester from a December 2016 outburst and his disciplinary probation went into effect on his return to school from that suspension. All of these matters were properly before the university in reaching a determination of penalty and before the appeal board that reviewed the matter.
The standard is whether the expulsion of petitioner is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness so that it constitutes an abuse of discretion as a matter of law. The Court is not allowed to simply substitute its judgment as to the appropriate measure of punishment for that determined appropriate by the administrative body. Pell v. Board of Education of Union Free School District #1 , 34 NY2d 222 (1974) ; Kelly v. Safir , 96 NY2d 32 (2001).
Kramer v. Kinney , 87 A.D.2d 870 (2nd Dept. 1982) as referenced by the university has no application to this case as it relates to maritime cadets and quasi-military disciplinary considerations. Matter of Ebert v. Yeshiva University , 28 A.D.3d 315 (1st Dept. 2006) does have application to this matter and found that a disciplinary history, including the fact the student was on disciplinary probation at the time of the offense made a finding of expulsion to not be shocking to the sense of fairness. In Van Houten v. Mount St. Mary College , 137 A.D.3d 1293 (2nd Dept. 2016) it was found that expulsion was a permissible sanction under the code of conduct and was not arbitrary or capricious for disruptive classroom behavior and failure to follow strategies put into effect to address prior instances of similar misconduct. The court in Matter of Budd v. State University of New York at Geneseo , 133 A.D.3d 1341 (4th Dept. 2015) leave to appeal denied 26 N.Y.3d 919 upheld expulsion due in large part to four prior violations, including a previous suspension.
Even if this Court were to assume a lesser penalty to be more appropriate, it is not proper to substitute such a view to replace the judgment upheld by the board panel. Scahill v. Greece Central School District , 2 N.Y.3d 254 (2004); Kocur v. Erie County Water Authority , 9 A.D.3d 910 (4th Dept. 2004). The finding of termination does not shock the conscience and the Court declines to substitute its judgment in the matter.
The seventh objection in point of law is properly taken and the petition is DISMISSED on this basis.
Eighth Objection - Petitioner seeks inappropriate remedies.
The university takes the position that petitioner's remedy, if any at all, should be limited to another disciplinary hearing curing any defect found to exist from the first hearing process citing Gupta v. Boyer , 55 A.D.2d 1024 (4th Dept. 1977) ; Jacobson v. Blaise , 157 A.D.3d 1072 (3rd Dept. 2018) ; Skorin-Kapov v. State University of New York at Stony Brook , 281 A.D.2d 632 (2nd Dept. 2001) and Libra v. University of State of New York , 124 A.D.2d 939 (3rd Dept. 1986). The Court does not reach this issue as it has found no defect to be cured in the first instance.
The eighth objection in point of law is DENIED as moot.
CONCLUSION
The Court has considered all of the arguments made by the petitioner. There are no factual issues that would require a trial in this matter. The full disciplinary record has been submitted to and reviewed by the Court. There are no points raised by petitioner that have any merit either as a matter of fact or as a matter of law.
The expulsion of the petitioner, who was fairly close to completing requirements for his degree, may be viewed by some as debatable but it was not shocking to the conscience as a matter of law.
Accordingly, and based upon all of the foregoing, the petition is in all respects DISMISSED with prejudice on the merits and as a matter of law.
IT IS SO ORDERED.