In Matter of Engel v. Pace University

Full title: IN THE MATTER OF MICAH ENGEL, Petitioner, For Judgment Pursuant to Article…

Court: Supreme Court of the State of New York, New York County

Date published: Nov 21, 2011

2011 N.Y. Slip Op. 33069 (N.Y. Sup. Ct. 2011)

Opinion

106386/09.

November 21, 2011.

OPINION

RICHARD F. BRAUN, J.

Petitioner has brought a CPLR article 78 proceeding to annul respondents determination that denied petitioner's appeal of his grade in NUR 460A; direct respondents to enter an interim grade of incomplete for NUR 460A; direct respondents to reinstate petitioner in the Pace University Nursing Program; direct that a substitute clinical practicum experience be provided to petitioner; direct that, if petitioner achieves a passing grade in the substitute clinical practicum experience, respondents will issue petitioner a passing grade in NUR 460A; provide petitioner with a full and fair opportunity to take the courses, and earn the credits to qualify for a B.S. degree in nursing; direct that respondents provide petitioner with the option of having his student record indicate a voluntary withdrawal in good standing from Pace University, and an authorized voluntary withdrawal from NUR 460A, with no grade for the course; annul the determination of respondent Harriet R. Feldman (Feldman) not to accept petitioner's December 12, 2008 grievance, and direct the appointment of an independent investigator regarding violation of Pace University's policies, rules, and procedures, and render a report and recommendation; direct that petitioner's student record be expunged of petitioner's NUR 460A grade, dismissal notice, and appeals; and, pursuant to CPLR 3001, grant a declaratory judgment that respondents' determination denying petitioner's grade appeal was arbitrary and capricious, an abuse of discretion, and contrary to law; that respondent Feldman's not accepting petitioner's December 12, 2008 grievance was arbitrary and capricious, an abuse of discretion, and contrary to law; that respondents violated their rules, policies, and due process procedures; that promises were breached by respondents regarding an independent evaluation; and that respondents violated their duty of good faith conduct and fair dealing. Alternatively, petitioner seeks discovery and a trial if there are questions of fact. Petitioner also requests costs and attorney's fees.

Petitioner was a student at the Lienhard School of Nursing of respondent Pace University. Petitioner did not pass his clinical practicum, NUR 460A. Ultimately, petitioner was notified that he was dismissed from the Combined Degree Program, due to petitioner's failing grade in NUR 460A.

Although not completely beyond the scope of judicial review, the determinations of educational institutions as to the academic performance of their students are limited to the questions "of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to Constitution or statute. . . ." ( Ochei v Helene Fuld Coll. of Nursing of N. Gen. Hosp., 22 AD3d 222 [1^st Dept 2005].) "This standard has rarely been satisfied in the context of challenges to academic determinations because the courts have repeatedly refused to become involved in the pedagogical evaluation of academic performance." ( Matter of Susan M. v New York Law School, 76 NY2d 241, 246; see Matter of Sofair v State Univ of N.Y. Upstate Med. Ctr. Coll. of Medicine, 44 NY2d 475, 480; Matter of Ebert v Yeshiva Univ., 28 AD3d 315 [1^st Dept 2006].)

Petitioner has not met his burden of showing a deprivation of his rights or bad faith or other arbitrary action constituting an abuse of discretion ( see Matter of York v McGuire, 99 AD2d 1023, 1024 [1^st Dept 1984]). Petitioner has not shown that Pace University did not substantially follow its rules and policies, implement its due process procedures, and fulfill its obligations ( cf Matter of Carr v St. John's Univ., N.Y., 17 AD2d 632, 634 [2^nd Dept 1962] [the Court determined that it may not review the discretionary acts of a university in expelling a student, when the acts were within the university's jurisdiction, and not arbitrary, but in the exercise of an honest discretion based on facts within the university's knowledge that justify the exercise of discretion], affd 12 NY2d 802). Through Pace University representatives, petitioner was advised of his academic deficiencies. Petitioner was given opportunities to correct those deficiencies. Pace University determined that petitioner should be dismissed. Petitioner has not shown that Pace University's decision to dismiss him was "arbitrary and capricious, irrational, violative of constitutional or statutory rights, or made in bad faith (citation omitted)." ( see Matter of Illickal v Roman, 236 AD2d 247, 248 [1^st Dept 1997].) This court will not disturb Pace University's determination ( see Matter of Susan M. v New York Law School, 76 NY2d at 245).

With respect to the requested declaratory relief, this court cannot dismiss petitioner's requests ( see 200 Genesee St. Corp. v City of Utica, 6 NY3d 761, 762). Rather, by this court's separate decision, order, judgment and declaration, dated November 18, 2011, the petition was denied, and this court declared that respondents' determinations were not arbitrary, capricious, an abuse of discretion, or contrary to law; that respondents did not substantially violate their own rules, policies, and due process procedures; that respondents did not breach their promises to petitioner that his clinical evaluation for NUR 460A would be based in part on an independent clinical evaluation; and that respondents did not violate their duty to petitioner of good faith conduct and fair dealing. This constitutes the opinion of this court.