Bilicki v. Syracuse Univ.
| Decision Date | 21 March 2019 |
| Docket Number | 7103/2018 |
| Parties | Alexander BILICKI, Petitoner, v. SYRACUSE UNIVERSITY, Respondent. |
| Court | New York Supreme Court |
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.
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.
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:
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.
The petition tries to make the point that the code protects the student from discipline for the exercise of free speech. The code states:
The code allows for a finding of violation for the following 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).
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 , 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.
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.
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. 201...
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