Opinion
No. CV 98-0410320
June 25, 2004
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In this case a student was accused of cheating on an exam in her sophomore year.
The university investigated the matter and the plaintiff contested the charge of cheating. She requested a hearing and one was held at which she was assisted by an advisor. The committee responsible for reviewing the matter found the charge to be true and suspended the plaintiff for two semesters. The university has regulations governing how these matters are handled. An amended complaint in several counts has been filed which appear to allege breach of contract, misrepresentation, either intentional or negligent infliction of emotional distress, a claim that the regulations governing student discipline were inadequate and unconscionable, and a claim that the plaintiff did not have adequate and effective representation before the so-called Executive Committee that reviewed this matter. The defendant university has now filed a motion for summary judgment arguing that all claims against it should be dismissed.
The standards to be applied in deciding a motion for summary judgment are well known. If there is a genuine issue of disputed fact the court should not decide it since litigants have a constitutional right to a trial. On the other hand if there is no disputed issue of material fact and the matter can thus be decided as a question of law then the court should decide the motion, if warranted, against the non-moving party, here the plaintiff. Parties have a right not to be burdened with expense and difficulties presented by contesting unmerited litigation.
The court will try to set forth the facts. The plaintiff does not appear to contest the facts set forth in the defendant's brief which it has characterized as undisputed so the court will in some measure paraphrase and in some instances quote directly from that portion of the defendant's brief. The court will also refer to the plaintiff's affidavit attached to its opposition to the motion for summary judgment.
The plaintiff was suspended in January of 1998 when she was a sophomore. The relationship between the plaintiff and the defendant was governed by Yale's Undergraduate Regulations which the plaintiff received when she arrived at the school. The regulations describe the procedure involved when issues such as suspension and dismissal from the university are presented. Under the regulations when, for example, a student is accused of cheating on an exam the matter is heard by the Executive Committee. The committee is composed of tenured and non-tenured faculty, three undergraduates, and the dean of the college or a designated representative of the dean. There are three non-voting members including a "fact finder." The regulations say the following regarding the fact finder's role and a fact finder was appointed here:
The Factfinder shall be responsible for gathering the information in an impartial and thorough manner. The Factfinder is not to be regarded as a prosecutor and is specifically charged to be alert to information that may exonerate a student. The Factfinder shall have the responsibility to interview students, faculty, and other persons who he or she may reasonably believe have information relevant to the business of the Committee. All members of the Yale community should recognize their responsibility to cooperate fully and truthfully with the Factfinder. Throughout the Factfinder's investigation, however, the student has the right to remain silent. The Factfinder and the Committee are not to draw a negative inference from the student's silence, but the student by that silence forfeits an opportunity to ensure that the Factfinder obtains all relevant information. Normally, it is at the request of the Chairman that the Factfinder will undertake an investigation. The student involved in the complaint may also request the Factfinder to pursue particular information; the Factfinder shall consider seriously any such request but the decision of how to proceed is the responsibility of the Factfinder.
The Factfinder is to make a written report and it is turned over to the Chairman of the Executive Committee. A coordinating group reviews complaints of academic dishonesty and determines if the matter should be sent to the Executive Committee and if the fact finder should conduct an investigation as just described. If either of these courses of action is taken the student is informed of it and also of the alleged violation of the regulation being looked into by the committee. At that point the student has the right to choose an adviser. The adviser is a member of the Yale community such as a dean, faculty member, coach, etc. The regulations state the adviser is not an "advocate" but rather "a source of personal and moral support." He or she aides the student in appearing before the Executive Committee, can accompany the student to the hearing on the complaint and counsel the student and "unobtrusively suggest questions." The chairman of the committee prepares for it a written statement of the alleged infraction to which is attached "any statement prepared by the fact finder and copies of all other relevant documents. These materials should be made available to the student no less than seven days prior to the committee meeting, except when the student requests that less time be allowed to elapse prior to a scheduled meeting." These materials are also made available to the adviser. The student can make a written response to the materials at least forty-eight hours prior to the meeting.
A meeting is then held with the student for the purpose of addressing the complaint unless the student requests a disposition without a formal hearing. At the formal hearing a student may make a statement and the committee or the student can ask the fact finder to explain any report he/she has made. The regulations state the following regarding the nature and conduct of the hearing before the Executive Committee:
The Coordinating Group may arrange for the appearance of witnesses. If it does so, their names shall be made available to the student no less than forty-eight hours before the meeting. If the complaint is one of academic dishonesty, the faculty member may request from the Chairman permission to make a brief explanatory statement to the Committee in the presence of the student. The Coordinating Group shall assure that any witnesses providing expert information are disinterested parties. The student may also present a reasonable number of witnesses, whose names shall likewise be submitted to the Chairman forty-eight hours before the meeting, to provide information to the Committee about the details of the complaint or about his or her character.
The student and the members of the Committee may address relevant questions to the witnesses. All questions addressed to witnesses shall be so addressed with the permission of the Chairman, who shall have the right to rule questions irrelevant or out of order. The student may also request that the Chairman ask relevant questions about certain subjects on behalf of the student. The Chairman may grant this request if, in the Chairman's judgment, the student is having difficulty asking questions for himself or herself.
There is no "immunity" for testimony by witnesses; a statement by a witness concerning a violation of the Undergraduate Regulations by the witness or by another student may be used as the basis for a separate complaint against the witness or the other student.
The Chairman may grant a brief recess during the meeting, at the student's request, to allow the student to consult with the Adviser or to allow the student to compose himself or herself.
If during the meeting any voting member of the Committee, or the Chairman, believes additional information not immediately available is necessary to reach a decision, the consideration of the complaint may be postponed by majority vote of the Committee or by the Chairman until the Factfinder has prepared a report on the matter.
The student may make a concluding statement of reasonable length after all witnesses have been heard and all information has been presented. With the permission of the student, the student's Adviser may also make a concluding statement or reasonable length to the Committee.
Throughout the meeting the student has the right to remain silent. The Committee is not to draw a negative inference from the student's silence, but the student by that silence forfeits an opportunity to present his or her side of the matter.
The regulations provide for a committee of review composed of three people, two faculty members appointed by the university president and a student selected by these members. A student given a penalty by the Executive Committee or the Dean of Yale College can file written complaints about that committee's action. The review committee can ask the Executive Committee to reconsider its actions but the latter is not required to do so; however, upon reconsideration it cannot impose a more serious penalty than that originally imposed.
With these regulations as the context of further discussion the court will quote from the defendant's brief the facts underlying the disciplinary proceedings against the plaintiff. On November 7, 1997, the plaintiff took a chemistry exam. The teaching assistant monitoring the exam "witnessed the plaintiff appearing to copy answers from the exam of a student seated diagonally in front of her. The teaching assistant informed Professor Frederick Ziegler, Okafor's chemistry professor, who then reviewed her exam and compared it to that of the individual from whom she appeared to be copying answers. Based on the unusually similar answers (sometimes even identical — but wrong) that appeared on both exams, Professor Ziegler concluded that Plaintiff had, in fact, cheated.
Professor Ziegler sent a letter on November 10, 1997 charging Okafor with cheating and detailing the evidence to the . . . Executive Committee . . .
On November 19, 1997, the Committee informed Plaintiff in writing that it had received the complaint letter from her chemistry professor and advised her that disciplinary sanctions might be warranted if the cheating allegation was substantiated. Also pursuant to its Procedures, the Executive Committee informed Plaintiff of her right to select an advisor of her choosing, identified the members of the Executive Committee, advised her of her option of proceeding without a formal hearing, and asked her to make an appointment with the Executive Committee's Factfinder, Karen Rabe, Professor of Applied Physics. The Executive Committee also encouraged Plaintiff to submit a written statement and sent her an additional copy of the November 10 complaint letter and provided her with a copy of the Executive Committee's Procedures. Plaintiff chose her residential college dean, Laurence Winnie, as her advisor . . .
The Factfinder met with Plaintiff first, on December 3 . . . The following day, the Factfinder interviewed Plaintiff's chemistry professor and the professor's teaching assistants, including the one that proctored the examination on November 7 . . . The Factfinder also visited the examination room to determine whether Plaintiff would have had an unobstructed view of the exam of the student whose answers she was alleged to have copied . . . In addition, the Factfinder compared Plaintiff's exam to those of two other students to determine whether similarities in exam answers were unusual . . . The Factfinder submitted a report of her investigation to the Committee on December 8 . . .
Plaintiff also submitted a written statement to the Committee . . . On January 8, 1998, Plaintiff agreed to a formal hearing before the Executive Committee, on January 14 . . . Pursuant to its Procedures, the Executive Committee then wrote to Plaintiff to confirm the hearing date and to furnish her with copies of her chemistry professor's complaint letter, the Executive Committee's charge letter, the Factfinder's report, and plaintiff's December 8 written statement . . .
The Executive Committee convened on January 14, 1998 to consider Plaintiff's case. Nine of the Executive Committee's ten regular voting members, including all three undergraduate students, were in attendance . . . Plaintiff attended the formal hearing, accompanied by Dean Winnie, who acted as her advisor . . . The Procedures entitled Plaintiff to make an opening and a closing statement during the hearing, and she did so . . . She also availed herself of her right under the Procedures to cross-examine the Factfinder about her report, to answer questions put to her by members of the Executive Committee, and to raise additional points for the Executive Committee's consideration . . . The Handbook made clear to Plaintiff that she could call fact or character witnesses. Plaintiff chose to present three character witnesses, each of whom spoke directly to the Committee. But she presented no fact witnesses to corroborate her claim that she had not cheated . . .
After the testimony, the Executive Committee excused Plaintiff from the hearing while the Executive Committee members considered the information that had been presented to them . . . Following its deliberations, the nine voting members of the Executive Committee in attendance concluded unanimously that Plaintiff had cheated on her chemistry examination, in violation of the Regulations . . . When Plaintiff returned to the hearing, the Executive Committee informed her of its decision and invited her to make a statement before it determined her penalty . . . She did . . . Plaintiff's advisor, Dean Winnie, also made a supportive statement to the Executive Committee . . . Plaintiff then left the hearing room again while the Committee voted to impose the standard penalty for first-time cheating violations — a two-term suspension, effective January 12, 1998, with automatic readmission. When she returned, the Executive Committee told her that it had voted to impose the standard penalty of two terms suspension with automatic readmission.
Under the Regulations, students may appeal adverse Executive Committee decisions to the Committee of Review . . . The Review Committee does not sit as an appellate body to review facts de novo. Its limited bailiwick is set forth in the Regulations:
CT Page 9602 It is anticipated that in the vast majority of cases, the Committee of Review will decline to take action. It will request consideration by the Executive Committee only in cases where it believes that (1) some pertinent evidence was not taken into account; (2) long-standing precedents, in decisions of culpability and the assignment of penalties, were ignored; (3) errors in procedure may have substantially affected the decisions; (4) certain key principles of the University were not sufficiently considered in the original decision.
On January 16, 1998, Plaintiff exercised her right under the Procedures to ask the Review Committee to review the Executive Committee's unanimous January 14 decision . . . She was represented by legal counsel — separate and apart from her adviser, Dean Winnie — when she made her request.
Plaintiff's letter requested a "full review of all the evidence." Despite the Review Committee's limited jurisdiction, she reiterated her allegations that the unanimous Executive Committee had made an "unfair" decision and had come to the wrong conclusion on the facts . . . While she thought the Executive Committee had come to the wrong conclusion, she did not describe any way in which it had acted improperly under the Regulations. Nor did she explain why the Executive Committee's unanimous factual conclusions triggered any of the four grounds for review set forth in the Regulations . . .
On January 20, the Executive Committee forwarded all written records regarding Plaintiff's disciplinary hearing to the Review Committee. On February 26, 1998, after considering Plaintiff's request and the materials that had been forwarded to it, the Review Committee informed the Executive Committee and Plaintiff in writing that it found no basis for requesting a consideration of the Executive Committee's decision. The plaintiff has presented no factual assertions to rebut the specific factual assertions made by the defendant.
Breach of Contract
Based on the foregoing the plaintiff has made several claims against the defendant university one of which lies in breach of contract. The court has relied on a discussion in 15 Am.Jur.2d "Colleges and Universities" which at §§ 30 et seq., discusses the topic "Dismissal or Expulsion" which cites numerous cases from other jurisdictions. Although the plaintiff was neither expelled nor dismissed, her punishment was sufficient to make the legal principles discussed applicable here. The general law seems to be as follows with respect to expulsion of students and there seems to be no explicable reasons why it would also not apply to cases of the imposition of substantial discipline.
By the act of matriculation, together with the payment of the required tuition fees, a contract between the student and the university is created containing two implied conditions: (1) that no student shall be arbitrarily expelled therefrom; and (2) that the student will submit himself (sic) to reasonable rules and regulations for the breach of which, in a proper case, he (she) may be expelled, and that he (she) will not be guilty of such misconduct as will be subversive of the discipline of the university. Section 30, page 294 of 15 Am.Jur.2d "Colleges and Universities."
(Expulsion cases supporting this point: Regents of Univ. of California, 22 Cal.App.3d 763 (1972); John Stetson Univ. v. Hunt, 102 So. 637 (Fla. 1924).)
If contract principles are to apply, it would seem rights, given to students in university regulations, when complaints are filed against them before university bodies authorized to discipline them, are in turn binding on the university. The university in other words must comply with its own regulations, that's part of the contract; if it did not, any dismissal of a student could be classified as arbitrary. In any event it has been held that a private university expelling a student must comply with its own procedural rules. Shaer v. Bhandeis Univ., 716 N.E.2d 1055 (Mass.App. 1999).
The defendant's "Undergraduate Regulations" state that "Each student in Yale College is required as a condition of enrollment to comply with the Undergraduate Regulations." But enrollment is the marker which entitles the university to get its tuition bill paid and the regulations themselves, as the court's reference to them has indicated, give explicit rights to students during disciplinary proceedings with no recognition of an arbitrary right of the university to waive or otherwise ignore these rights and these rights apply to disciplinary action that does not entail expulsion. However, in deciding whether there has been a violation of contractual rights that students might have the courts seem to take the position set out at § 30, pp. 294-95 of the previously referenced Am.Jur. article:
Where the authorities of a college or university act with discretion in expelling a student for violation of a reasonable rule or regulation, their action will not be interfered with or set aside by the courts. Only where it is clear that such an action with respect to a student has not been an honest exercise of discretion, or has arisen from some motive extraneous to the purposes committed to that discretion, may the courts be called upon for relief. When judges are asked to review the substance of a genuinely academic decision, such as the dismissal of a student, they should show great respect for the faculty's professional judgment, and they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.
Thus, Schaer v. Brandeis University, supra, did hold that a student subject to discipline at a private university "is entitled to a hearing and adjunct proceedings that substantially observe the institution's code," 716 N.E.2d at p. 1061, but even went on to say at the same page that: "The principle of adherence to an institution's self-prescribed procedures does not require rigid compliance . . . The cases do not, and we do not require adherence to process consistent with basic fairness on federal or state constitutional imperatives, but on the common law rules we have discussed. Shaier, therefore, was entitled to a hearing that substantially but not rigidly, observed the procedures laid out in Brandeis's code." Id. This deference to actions taken by a university in discipline cases is analogous to deference given to awards or decisions by arbitrators authorized to decide contractual disputes especially in situations where, as here, the university has set up a balanced committee of faculty and students to find facts regarding transgressions, surrounds the process with procedural rights for the student and even provides for a limited right of appeal.
In this context then what must be shown to prove a breach of contract?
Rossomando v. Board of Regents of the University of Nebraska, 2 F. Sup.2d 1223 (D.Neb., 1998), is not directly on point since the defendant was a state institution so the challenge to removal from a dental program was made not on contractual but on substantive and procedural due process grounds. But there the court said of the substantive due process claim that to prevail, the student must show that the decision against her was based on ill will, bad faith or irrationality. Id. p. 1228. In a contract claim against a private university it is difficult to see why the same test should not apply where the university has set up a facially fair mechanism to determine the need for disciplinary action. Indeed in an early case previously cited, John B. Stetson Univ. v. Hunt, supra, a breach of contract action was in fact brought against a private university for having expelled the plaintiff and the court said: "In an action of this kind where malice is the gist of the offense, every presumption must be indulged in favor of the school authorities to the extent that they acted in good faith, for the best interests of the school and the pupil as they saw it, and no recovery can be had for error of judgment, but may be had for error grounded on malice." 102 So. at page 641.
Applying these tests to the present case the undisputed facts indicate that the defendant substantially complied with the rules and regulations it set up for disciplinary procedures against students. The question then becomes can a contractual violation be shown here because although the regulations were followed the finding that the plaintiff cheated on her exam was pretextual? In other words, was there such an absence of evidence or was the conclusion of the Executive Committee so irrational that the defendant's actions could be said to be based on malice or ill will or not reflective of an "honest exercise of discretion"? In her affidavit the plaintiff seems to suggest this is the case. She claims she was innocent of the charges leveled against her, she says the cheating allegation was "unproved, baseless, unsubstantiated, impossible." The charge was "false" and she was suspended without reasonable consideration of all the pertinent evidence. Broad allegations to prove malice, ill will, a failure to honestly exercise discretion, or irrationality just will not suffice. In Turner v. Croman, 52 Conn. App. 445, 447 (1999), the court said that ". . . A party opposing summary judgment must substantiate its adverse claim by showing there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact. If the non-movant does not recite specific facts, in accordance with (the Practice Book), that contradict those stated in the movant's affidavits and documents and show there is a genuine issue for trial, summary judgment shall be rendered against (the non-moving party)." Also see Gould v. Mellick Sexton, 263 Conn. 140, 151 (2003).
Also the plaintiff has presented no evidence through documentation that there was any ill will or bias on the part of the Executive Committee. Attached to the defendant's summary judgment motion is a fairly detailed summary of the actual hearing. The plaintiff, in accordance with the regulations, was asked if she wanted any of the members of the Executive Committee removed from the panel when the hearing first began and she indicated that she did not.
But in her affidavit, the plaintiff does make what she might at least argue are specific factual allegations. The question becomes do they create a genuine issue of material fact as to whether there was a contractual violation in light of the standards previously discussed?
At one point in her affidavit she suggests that the committee did not consider all the pertinent evidence in that her answers on the chemistry examining question were similar to the answers of other students who took the exam in the same room she did and in another building where the exam was also given. Assuming failure to consider all the relevant or pertinent evidence that is or might be available is a basis, without more, to find ill will, irrationality in fact finding or failure to exercise honest discretion and thus a contractual violation, the assertion of the plaintiff is not persuasive. For one thing the assertion is not supported by any documentation or production of the allegedly "similar" exam answers, or even a discussion which explains the similarity alleged. In any event the observation misses the point. A teaching assistant told her chemistry professor and the fact finder about what he felt was the plaintiff's suspicious looking about during the exam and the professor compared her exam with that of the student sitting diagonally in front of the plaintiff. "Similarity" is not the issue. The professor wrote a letter to the Executive Committee, a copy of which was given to the plaintiff, which gives a fairly detailed and particularized explanation of why he concluded cheating might have taken place. The plaintiff's exam and that of the student in question, identified as student A, were available to the fact finder, the committee and the plaintiff. The court has read over the exams' answers. The material is technical and the court cannot say that the professor's concerns and particularized comparisons of the two exams is not substantially correct. More to the point, perhaps, nowhere in the notes of the hearing or in anything submitted to the court in opposition to the summary judgment motion does the plaintiff address or attempt to refute by her own particularized responses the assertions made by the professor or offer her own comparative analysis of the two exams to support her assertions of innocence let alone raise question about the impartiality or ill will of the committee or whether it reached a rational decision in the exercise of honest discretion.
At another point in her affidavit the plaintiff reviews her position that the committee did not review or have before it all the pertinent evidence by saying witnesses who observed her conduct were not made available nor was the seating arrangement during the exam examined to determine whether the complaint could be established or whether she could be exonerated. But pursuant to the regulations the fact finder submitted a report which was given to the plaintiff prior to the hearing and she had an opportunity to question the fact finder at the hearing. That report indicates that the fact finder interviewed the plaintiff and two teaching assistants who monitored the exam and observed her conduct during the exam. The fact finder indicates he also went to the room where the exam was held, noted where student A was sitting and where the plaintiff was sitting during the exam. The fact finder concluded student A's writing was clearly legible from the plaintiff's seat.
Furthermore, the narration of the hearing attached to the summary judgment motion, which was not objected to, indicates the plaintiff presented character witnesses but no fact witnesses. The regulations gave her that right although she complains she was not given the option to do so under the regulations. How is it then that she presented character witnesses?
Also the affidavit suggests she did not know the identity of student A. As discussed it is not clear how this would be of any relevance — all had the student's exam for comparison and how could this individual have been aware of what someone was doing behind him or her? Besides, the affidavit does not explicitly suggest that the plaintiff asked and was refused the name. It merely says in paragraph a she "made an earnest effort to address this matter" but it is unclear whether she was referring to the issue of the identity of student A or the fact that in paragraph 8 she said she unequivocally denied cheating.
In any event the plaintiff's breach of contract claim is not viable and is dismissed. No material issue of fact prevents the court from finding that the defendant university complied with its contractual obligations under the contract. Not only must the court not substitute its judgment for the discretionary decision of the process set up by the university to decide matters of discipline where there is no evidence of bias, malice, ill will, irrational fact finding or a lack of honest exercise of discretion, but it is also true that, even if the court had such broad powers in resolving contractual claims in this setting, no facts have been suggested or offered by the plaintiff to suggest that the Executive Committee erred. In any event the breach of contract count is dismissed.
Negligent Misrepresentation
The complaint appears to allege a fraudulent misrepresentation claim to which the defendant's summary judgment motion is also directed. In the opposition brief the plaintiff characterizes the claim as being one of negligent misrepresentation. The argument is that: "Since no eyewitness to the alleged copying were presented and/or testified during the hearing, and no explanation why the plaintiff's answers were the same as students who took the exam at a different location, the defendant's actions in suspending the plaintiff on false accusation is a misrepresentation and contrary to the promise in the student handbook." In other words, the university through its regulations falsely represented it would consider all "relevant evidence" during its disciplinary procedures and the plaintiff justifiably relied on this representation. It is also claimed that the defendant "failed to exercise reasonable care or competence in obtaining or communicating the information" involving her discipline. As a result of all this the plaintiff claims to have suffered pecuniary loss.
The law of negligent misrepresentation in our state is defined in Mips v. Becon, Inc 70 Conn. App. 556 (2002). Quoting from an earlier case, the court said:
"Whether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact . . . [Our Supreme Court] has long recognized liability for negligent misrepresentation . . . The governing principles are set forth in . . . § 552 of the Restatement Second of Torts (1979): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by the justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information . . . [T]he plaintiff need not prove that the representations made by the [defendant] were promissory. It is sufficient . . . that the representations contained false information." "There must be justifiable reliance on the misrepresentation for a plaintiff to recover damages."
(Emphasis added.) Id. page 558.
The defendant is correct in pointing out that the negligent misrepresentation claim merely sets forth the breach of contract claim in another guise. In other words, as framed, the plaintiff is not seeking to add to or change the terms of the student handbook regulations regarding disciplinary matters. The regulations are accepted as a given and the claim is made that there was a negligent failure to comply with the regulations. In opposing the summary judgment motion the plaintiff notes that no eyewitnesses were brought to the hearing. But the regulations provide for a fact finder whose job it is to gather pertinent information and interview witnesses. He or she presents a copy to the committee and the student and the student may request that witnesses be allowed to testify. The fact finder, as noted previously, did interview teaching assistants who observed what they felt was suspicious activity on the plaintiff's part. The fact finder testified at the hearing and was available for questioning. The regulations do not require that witnesses be made to testify in the first instance before the committee.
The plaintiff also argues that no explanation was given for the fact that the "plaintiff's answers were the same" as students taking the exam elsewhere. In her affidavit, however, the plaintiff does not say her answers were "the same" as students taking the exam elsewhere, she said her answers were "similar" to those students. On this point the plaintiff makes no more than a general observation and there is no indication that through witnesses or documentation these other exams were presented to the Executive Committee and they were not presented to the court. As previously discussed, "similarity" is not the issue, the professor's complaint letter goes beyond questions of similarity.
There is no indication as to what the plaintiff means in her brief by the argument the Executive Committee did not consider all "relevant" evidence — what evidence? There is no explanation as to how it is claimed that the fact finder was not competent in gathering evidence or communicating the evidence gathered. In conformity with the regulations it is undisputed that the plaintiff was given a copy of the professor's complaint letter, copies of her own exam and that of student A, and the fact finder's report.
There are no specific factual allegations of any merit supported by the affidavit or other documentation as to how or in what manner there was no substantial compliance with the regulations. That being the case how can it be said that the university negligently misrepresented that it would so comply — in other words the only record before the court is that it did substantially comply.
The negligent misrepresentation count is dismissed.
Unconscionability Claim
The complaint appears to allege a claim of what is said to be "unconscionability." It is argued in the plaintiff's brief that the regulations failed to provide the plaintiff with an option "to face her accusers, to insure proper investigation, to obtain testimony of key witnesses, to cross-examine witnesses, fairness and justice." Factually, there are problems with these representations. As previously discussed under the regulations a fact finder who is to be a neutral gatherer of information and not act in a prosecutorial mode gathers the facts and interviews witnesses as was done here. The fact finder prepares a report, it is delivered to the student along with the original complaint and the student can request that witnesses be called. The plaintiff, as noted, only called character witnesses. The plaintiff also has the right to question the fact finder. If fairness is the issue, how fair is it to participate in a process, not take advantage of what it offers in terms of defending oneself, then after an unfavorable result criticize the process?
In any event what is more to the point is that "unconscionability" is a defense interposed against the enforcement of a contract, cf. Williams v. Walker-Thomas Furniture, Co., 350 F.2d 445, 447 (D.C., 1965); it does not provide an affirmative basis for relief. Even on its own terms the doctrine does not apply; it requires "an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." Id., p. 449. Given the neutral role of the fact finder, the disclosure requirements, and the student's opportunity to defend herself these regulations cannot be held to be unreasonable and unconscionable in the context of the academic community in which they operate.
In effect this motion insofar as it questions the viability of the unconscionability claim really is attacking the legal sufficiency of the complaint. There is a decision of authority as to whether this can be done, cf. Burke v. Avitabile, 32 Conn. App. 765, 768 Note 3 (1993) (no), with Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 408-09 (1971) (yes); see discussion Horton Knox, Connecticut Superior Court Rules, commentary to § 17-44 at pp. 758-59. This court follows Boucher and for the foregoing reasons dismisses the "unconscionability" claim.
Intentional Infliction of Emotional Distress
In its first brief in support of its motion for summary judgment the defendant queried whether the complaint alleged negligent infliction of emotional distress or intentional infliction of emotional distress. That question has been resolved by the plaintiff's reply brief which squarely and only makes a claim for intentional infliction of emotional distress.
Our state has recognized the tort of intentional infliction of emotional distress. Peytan v. Ellis, 200 Conn. 243, 253 (1986). Its reference to Murray v. Bridgeport Hospital, 40 Conn. Sup. 56, 62 (1984), and its discussion at pp. 253-54 indicates that the Restatement (Second) Torts § 46 requirements for the tort have been adopted by our court. One of the necessary elements of the tort is that the alleged conduct of the defendant must be "extreme and outrageous." Id. p. 253. In footnote 5 on page 254, the court quotes from Prosser Keeton, torts (5th ed.) § 12, page 60: "The rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Emphasis added by court.)
The Restatement at § 46, page 73 states: "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his (sic) resentment against the actor and lead him (sic) to exclaim 'Outrageous.' The liability clearly does not extend to mere insults, indignities, threats, petty oppressions or other trivialities." This motion to strike claims that the conduct set forth in the second count, as a matter of law, cannot be said to be outrageous. Can the issue raised by a motion to strike of whether conduct alleged in a complaint is extreme or outrageous or the same issue raised pursuant to a motion for summary judgment and relying on affidavits or documentation ever be treated as a question of law?
The plaintiff argues that the question is one for the jury; "reasonable minds can differ as to the characterization of the defendant's actions"; questions of motive, intent, and subjective feelings are inappropriately decided by way of summary judgment. Generally, the foregoing comments are true but this tort presents unique problems.
The Restatement believes the issue of whether conduct is extreme or outrageous can be treated as a question of law. In comment ? to § 46 it says:
It is for the court to determine, in the first instance, whether the defendants' conduct may reasonably be regarded as so extreme and outrageous as to permit recovery or whether it is necessarily so. Where reasonable men (sic) may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.
The necessary implication of the foregoing statement is that where reasonable people cannot differ in concluding the alleged conduct is not extreme or outrageous the court can so determine as a matter of law.
In fact several jurisdictions recognizing this tort have concluded that trial courts have the right to dismiss complaints, for example, which do not allege sufficient facts to support a claim that the conduct was extreme and outrageous. Pittman v. City of Oakland, 243 Cal.Rptr. 306, 311 (1988); Frankel v. Warwick Hotel, 881 F. Sup. 183, 187 (E.D.Pa., 1995); Whitehead v. Am. Intern Inc., 860 F. Sup. 1280, 1290 (N.D.Ill., 1994); Fudge v. Penthouse Intern., Ltd., 840 F.2d 1012, 1021 (CA, 1988); Knierem v. Izzo, 174 N.E.2d 157 (Ill. 1961).
The court has previously discussed the broad claims made by the plaintiff and her allegations about failure to consider the seating arrangement, interview certain witnesses, compare her answers to "similar" ones given by students in other buildings. For reasons previously stated these specific claims are not factually supported or relevant to the issue the Executive Committee had to decide. The court has found substantial compliance with the regulations. As a matter of law the defendant's conduct cannot be characterized as "extreme and outrageous."
Exercising its function of reviewing a claim such as this in the first instance, the court concludes based on what has been presented to it that this tort claim must be dismissed.
Ineffective Representation
The plaintiff also claims that she failed to receive adequate and effective representation from the adviser she chose to represent her before the Executive Committee. The motion for summary judgment is also directed at this claim. It is difficult to understand whether this is a separate claim or an adjunct to the breach of contract claim.
Is this a civil action based on some alleged violation of a constitutional right? Assuming the criteria for advancing such a claim can be met and assuming such a claim can even be considered without it being explicitly set forth — both inappropriate assumptions — there cannot be the sixth amendment violation. This a contractual dispute between private process so that the sixth amendment guarantee of the effective assistance of counsel is not an issue. Are procedural due process questions presented? It has been held that when a student is expelled from a state college he or she is entitled to due process, Donahue v. Baker, 976 F. Sup. 136, 145 (N.D.N.Y., 1997), and "the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a reasonable manner," Matthews v. Eldridge, 424 U.S. 319, 333 (1976). But this is a suit against a private institution. Cf. Andersen v. Regents of Univ. of California, 99 Cal.Rptr. 531, 535 (1972); John B. Stetson Univ. v. Hunt, 102 So. 637, 640 (Fla., 1925), on this point. But even in the due process arena "The Second Circuit has never recognized any absolute right to counsel in school disciplinary proceedings." Donahue, 976 F. Sup. at 146, citing, Wasson v. Trowbridge, 382 F.2d 807, 812 (CA2, 1967); Wimmer v. Lehman, 705 F.2d 1402, 1404-05 (CA 4, 1983). In Coveney v. President Trustees of Holy Cross, 445 N.E.2d 136 (Mass. 1983), the Massachusetts Supreme Court held that because Holy Cross was a private institution the student who sued the university for damages and specific performance after his expulsion had not only no constitutional right to a hearing, but no constitutional right to have an attorney present at any hearing. Id., page 140. No civil claim can be based on an alleged violation of constitutional rights. If the foregoing is true, how can one claim the assistance of someone who is not a lawyer and who you chose to advise you gives you any rights, if that person was ineffective?
Insofar as some variation of a breach of contract claim is being made based on the plaintiff's allegations that key witnesses were not called, seating arrangements were not looked into, exams were not compared because of the ineffective advice and representation of the adviser she chose, no contract claim can be based on the regulations. The regulations explicitly state that "[t]he adviser is not an advocate, but rather a source of personal and moral support to the student." They go on to say the "adviser may aid the student in preparing to appear before the Executive Committee and the adviser may also accompany the student to the committee meeting and counsel him or her." (Emphasis by court.) The adviser "may unobtrusively suggest questions for the student to pose to witnesses or issues for the student to raise with the committee." The adviser cannot participate directly in the proceedings except that he or she may make a brief concluding statement if the student desires. The regulations later go on to state that it is the student who may present witnesses and the student questions the witnesses. Nothing in the regulations which are the basis of the contractual relationship between these parties can be construed as promising the plaintiff or any other student adequate and effective representation through an adviser she was not required to chose but in fact did choose. The claim of ineffective representation must also fail and be dismissed.
The defendant's motion for summary judgment is granted.
Corradino, J.