Opinion
012501-11
01-04-2012
In the Matter of the Application of Mark Kallini, Petitioner, For a judgment pursuant to CPLR Article 78 v. New York Institute of Technology, Respondent.
Attorney for Plaintiff: Jerome H. Ehrlich Attorney at Law PLLC Attorney for Defendant: Elan Raday Attorney at Law
Attorney for Plaintiff: Jerome H. Ehrlich Attorney at Law PLLC
Attorney for Defendant: Elan Raday Attorney at Law
Vito M. DeStefano, J.
In a proceeding pursuant to Article 78 of the CPLR to review a determination of the Respondent, New York Institute of Technology ("School"), which, after a hearing, found Petitioner Mark Kallini ("Kallini") responsible for violating the School's Academic Integrity Policy, Kallini seeks a judgment: 1) annulling, reversing and setting aside the determination rendered by the School's Judicial Hearing Panel ("Judicial Panel"), which found that Kallini had violated the School's Academic Integrity Policy and suspended Kallini for two years; and annulling, reversing and setting aside the determination of the School's Appeal Review Board ("Appeal Board"), which rendered a decision affirming the Judicial Panel's determination and reducing the suspension from two years to one year; 2) directing the School to reinstate Kallini as if the foregoing determinations of the Judicial Panel and Appeal Board were never rendered; and 3) directing the School to expunge any record of the disciplinary charges from its records.
"Academic integrity is the pursuit of scholarly work in an open, honest, and responsible manner. Academic integrity is a basic guiding principle for all academic activity at NYIT, and all members of the college community are expected to act in accordance with this principle. Academic integrity includes a commitment not to engage in or tolerate acts of falsification, misrepresentation or deception in the completion of academic work. Such acts of dishonesty violate the fundamental and ethical principles of the NYIT community and compromise the worth of work completed by others" (Ex. "A" to Petition).
For the reasons that follow, the petition is granted. The petitioner's motion is denied as academic.
After service of the amended notice of petition, Kallini filed an order to show cause seeking, inter alia, that the School enroll Kallini as a student in the occupational therapy program in the same status he would have occupied as if there had been no interruption in his enrollment due to the determination rendered by the Judicial Panel. The within decision and order shall decide both the order to show cause and the Article 78 petition.
Background
Kallini is a graduate student in the School's occupational therapy program. On December 20, 2010, Kallini, along with approximately 26 other students, took a final examination in a course taught by Assistant Professor Tricia Nicholes ("Professor Nicholes") (Petition at ¶¶ 23-25). Near the conclusion of the examination period, Professor Nicholes left the room to go to the bathroom, leaving two students remaining, one of whom was Kallini (Ex. "A" to Answer). The answer key to a portion of the examination was left on Professor Nicholes' desk.
When Professor Nicholes returned from the bathroom, she noticed that Kallini was seated in a different seat then the one he was sitting in when she left the room (Exs. "A" and "B" to Answer). Professor Nicholes also noticed that Kallini had two rows of answers on his answer sheet (Exs. "A" and "C" to Answer).
When Professor Nicholes left the room, Kallini and the other student were seated in the second to last row, several rows away from each other. When Professor Nicholes returned, Kallini was seated at the "desk directly in front of" her desk (Ex. "A" to Answer).
Professor Nicholes believed that Kallini was cheating on the exam and reported him to Francy Magee, the Dean of Campus Life ("Dean"). The Dean's Office thereafter commenced disciplinary proceedings against Kallini which were followed by a hearing on February 28, 2011 (the "Hearing"). The disciplinary proceedings were conducted pursuant to the guidelines set forth in the School's Student Handbook and Code of Conduct incorporated therein ("School Guidelines") (Ex. "D" to Answer).
The Hearing
The Hearing was chaired by Assistant Dean of Campus Life, Marisol Ray Bazille ("Assistant Dean"). Other members of the Judicial Panel were Oren Shatayermann, Gail Weltz and Michael Harris (Magee Affidavit at ¶¶ 5, 10).
Following the Hearing, Kallini was found "responsible" for violating the School's Academic Integrity Policy and was placed on suspension for two years (Ex. "A" to Petition). On March 23, 2011, Kallini appealed the Judicial Panels's decision (Ex. "B" to Petition). By letter dated April 29, 2011, the Dean informed Kallini that the Appeal Board reviewed the audio recording and written documentation as well as Kallini's appeal letter, and upon review, upheld the finding that Kallini violated the School's Academic Integrity Policy but reduced the suspension from two years to one year (Ex. "C" to Petition).
Kallini thereafter commenced the instant Article 78 proceeding seeking, inter alia, annullment of the Judicial Panel's decision, reinstatement, and an expungement from his record of the disciplinary charges. The School answered and sought dismissal of the Petition.
Discussion
"When reviewing a private university's disciplinary determinations concerning its students, where a hearing is not required by law, the court must determine whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings so as to ascertain whether its actions were arbitrary or capricious.' The court must then review whether the university's determination is rationally based upon the evidence" (Warner v Elmira College, 59 AD3d 910 [3d Dept 2009]; see also Tedeschi v Wagner College, 49 NY2d 652, 660 [1980] ["[W]hen a university has adopted a rule or guideline establishing the procedure to be followed in relation to a suspension or expulsion that procedure must be substantially observed"]; Katz v Board of Regents, 85 AD3d 1277 [3d Dept 2011]). If the university has not substantially complied with its own guidelines and policies or its determination is not rationally based upon the evidence, the determination will be annulled as arbitrary and capricious (Hyman v Cornell Univ., 82 AD3d 1309 [3d Dept 2011]; see also Hutcheson v Grace Lutheran School, 132 AD2d 599 [2d Dept 1987]).
In his petition, Kallini alleges that the School failed to adhere to many of the procedures set forth in the School Guidelines. Some of the procedural non-conformities include the following: 1) Professor Nicholes gave testimony at the Hearing in the absence of Kallini's presence; and 2) the Judicial Panel asked questions at the Hearing related to Kallini's academic record, character, ability and potential prior to a determination that he had violated the School's Academic Integrity Policy.
The issue at bar is whether the School substantially complied with its policies and procedures notwithstanding its minor deviations which, according to the School, did not result in prejudice to Kallini. The court concludes that the actions of the Judicial Panel during the Hearing did not substantially comply with its own School Guidelines and, as such, were arbitrary and capricious.
Relying on Zartoshti v Columbia Univ. (79 AD3d 470 [1st Dept 2010] [First Department upheld the disciplining of a student where student did not suffer any prejudice resulting from the university's deviation from literal compliance with the student handbook procedures]), the School argues that "Kallini's claims of non-compliance amount to minor deviations" which have not prejudiced Kallini (Memorandum of Law in Opposition at p 10).
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Kallini asserts that the School violated its School Guidelines when the Judicial Panel proceeded to hear testimony of Professor Nicholes when Kallini was not present in the room. Kallini's affidaivt, as well as the transcripts/audio recording demonstrate that Kallini was not present when Professor Nicholes gave much of her testimony. Professor Nicholes was initially questioned regarding what transpired on the day of the exam and then about Kallini's academic ability, his classroom and clinical performance, and overall abilities. After Professor Nicholes completed most of her testimony, Kallini reentered the hearing room. Professor Nicholes was then asked to "give the synopsis of what [she] had shared with the panel" and Kallini was told that he would be given "an opportunity to ask Miss Nicholes any question" (Ex. "E" to Answer at p 44). Professor Nicholes gave a short synopsis but Kallini did not ask any questions of her.
Kallini argues that the Judicial Panel's questioning of Professor Nicholes in his absence violated Section 10 of the disciplinary process as set forth in the School Guidelines. Specifically, Section 10.J.7. of the School Guidelines provides:
Section 10 - Disciplinary Process
J. Hearing Procedures (formal): All formal hearings are private and closed to the public. Formal hearings are taped via audio or video recording (at the sole discretion of the chair), and the recording will act as the official record of the hearing. The following procedures are applicable to formal hearings before all judicial bodies:
* * * *(Ex. "E" to Petition at pp 51-54).
7. Presentation of witnesses by NYIT, followed by questioning of those witnesses by the hearing body and the student. The judicial advisor reserves the right to determine the relevance of the question. Witnesses are then dismissed. Witnesses, other than the respondent, may, at the discretion of the judicial advisor, be excluded from the hearing during the testimony of other witnesses . . . .
Section 10.J.7 allows for the student to question the witness and also provides that witnesses, except for the student, may be excluded from the Hearing. It is undisputed that Kallini was not present during the majority of Professor Nicholes' testimony. The school's decision to ellicit testimony from Professor Nicoles in Kallin's absence does not constitute "substantial compliance" with Section 10.J.7 of the School Guidelines.
With respect to the Judicial Panel's questions concerning Kallini's acadmic record and character, the School acknowledges that the School Guidelines require separate consideration for responsibility as opposed to sanctions yet nevertheless argues that a bifurcated hearing is not mandated.
Specifically, the "Scope of Inquiry" at the Hearing, as outlined in the School Guidelines, is as follows:
A student's academic and previous disciplinary record (if applicable) can not be considered when determining whether the student has violated the Student Code of Conduct. However, after a student is found responsible for a violation of the code, any academic or previous disciplinary record may be taken into account when determining the appropriate educational sanction(s) (Ex. "E" to Petition at p 53).
A review of the transcripts/audio recording demonstrate that the Judicial Panel questioned Kallini at the Hearing concerning his academic performance prior to determining whether he was guilty of violating the School's Academic Integrity Policy. The transcripts/audio recording also demonstrate that most of Professor Nicholes' testimony did not concern any purported cheating on the examination but, rather, Kallini's overall academic performance in the classroom and clinical rotations, the fact that Kallini was on academic probation in the past, and Kallini's ability and potential to be a successful occupational therapist.
The court rejects the School's argument that the Judicial Panel made a determination of guilt prior to discussing Kallini's academic record and performance in the program (Memorandum of Law in Opposition at p 12). In furtherance of this argument, the Dean stated in her affidavit that "it became clear to all the board members [of the Appeal Board] that the Judicial Panel first addressed the issue of Kallini's responsibility and, after approximately five minutes (and eleven questions) focused solely on what transpired in the room, the panel then proceeded to discuss Kallini's academic record in the sanctions phase. While it is true that the panel very briefly returned to the responsibility' phase after discussing Kallini's academic record, these questions were mere afterthoughts and were minor deviations from the rules" (Magee Affidavit at ¶16) (emphasis in original).
The record is devoid of any deliberations or communications amongst the Judicial Panel prior to the discussion concerning Kallini's academice record, ability, and potential. Specifically, after a brief inquiry as to what transpired on the day of the examination, the Judicial Panel immediately started questioning Kallini as to his academic record, grades, probation, etc. Similarly, after Professor Nicholes gave her testimony with respect to Kallini's conduct on the day of the exam, she testified at length as to Kallini's academic ability and performance, and his potential to be a successful occupational therapist. It was not until the end of the Hearing that the Assistant Dean asked both Kallini and Professor Nicholes to "step out of the room". The Assistant Dean stated: "[t]he panel is going to deliberate, and once they have made their decision, I'll call you back in and they will read their — I'll read their findings which will include the sanction" (Ex. "E" to Answer at p 48). Some time thereafter, the Assistant Dean continued: "Okay, Mark. The panel has reviewed all the information in the files and the testimonies that both you and Tricia Nicholes has given. Um, they have found you responsible for having violated the Academic Integrity Policy. Um, your sanction is suspension for two years at which time you'd be able to apply to be readmitted to NYIT" (Ex. "E" to Answer at pp 48-49).
The court agrees with Kallini that the "the panel only deliberated after the close of testimony" and did not make a determination as to Kallini's guilt before it received testimony from both Kallini and Professor Nicholes as to Kallini's academic performance (Kallini Memorandum of Law at p 6). The Judicial Panel's consideration and receipt of testimony of Kallini's academic record prior to a determination that Kallini had violated the Academic Integrity Policy was more than a minor deviation from the School Guidelines.
Based on the foregoing, the court concludes that the School has not substantially complied with its own guidelines and policies and, thus, its determination that Kallini had violated the School's Academic Integrity Policy, is annulled as arbitrary and capricious (Hyman v Cornell Univ., 82 AD3d 1309 [3d Dept 2011]; see also Hutcheson v Grace Lutheran School, 132 AD2d 599 [2d Dept 1987]). Accordingly, it is hereby ordered that the petition is granted in its entirety and motion sequence # 02 is academic in light of the within decision and order granting the petition.
This constitutes the decision and order of the court.
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Hon. Vito M. DeStefano, J.S.C.