Doe v. N.Y. Univ.

• Decision Date: 28 April 2021
• Docket Number: 21-Cv-2199 (SHS)
• Parties: Jane DOE, Plaintiff, v. NEW YORK UNIVERSITY, Defendant.
• Court: U.S. District Court — Southern District of New York

537 F.Supp.3d 483

Jane DOE, Plaintiff,

v.NEW YORK UNIVERSITY, Defendant.

21-Cv-2199 (SHS)

United States District Court, S.D. New York.

Signed April 28, 2021

Adam D. Zucker, Mudrick & Zucker, P.C., Blue Bell, PA, Julie A. Nociolo, E. Stewart Jones Hacker Murphy, LLP, Troy, NY, for Plaintiff.

Ira Martin Feinberg, Benjamin Andrew Fleming, Hogan Lovells US LLP, New York, NY, for Defendant.

OPINION & ORDER

SIDNEY H. STEIN, U.S. District Judge.

Plaintiff Jane Doe, a first-year student at defendant New York University ("NYU"), brings this breach-of-contract action for specific performance pursuant to this Court's diversity jurisdiction, 28 U.S.C. § 1332(a). (Compl., ECF No. 4.) Doe claims that NYU violated the terms of the parties’ implied contract when the university suspended her for allegedly failing to adhere to NYU's COVID-19 safety policies. On March 17, this Court granted Doe a restraining order temporarily enjoining NYU from enforcing its suspension pending the resolution of Doe's motion for a preliminary injunction. (ECF No. 13.) On April 14, after briefing from the parties, the Court heard oral argument on that motion by teleconference. For the reasons set forth below, Doe's motion for a preliminary injunction is denied and the temporary restraining order is dissolved. Her motion to proceed under a pseudonym is granted.

I. BACKGROUND

A. NYU's Response to the COVID-19 Pandemic

Plaintiff Doe began her freshman year of college in August 2020, as the COVID-19 pandemic insinuated itself across the country and disrupted daily life. College campuses have been a hotbed of this disruption, with educational institutions struggling to maintain in-person learning without enabling reckless student behavior and potential "super-spreader" events. See Shawn Hubler & Anemona Hartocollis, How Colleges Became the New Covid Hot Spots , N.Y. Times (last updated Oct. 26, 2020), https://www.nytimes.com/2020/09/11/us/college-campus-outbreak-covid.html.

NYU, located in downtown Manhattan, has taken extensive steps to control the virus's spread while remaining open for in-person instruction. In addition to a comprehensive, weekly testing program, NYU has implemented a series of health and safety protocols restricting student behavior both on- and off-campus. These protocols have been strictly enforced through disciplinary proceedings and sanctions, including suspensions, and NYU has maintained a COVID-19 positivity rate of one percent or less this academic year. That compares to a New York City positivity rate averaging approximately six percent during the same period. (See Def.’s Mem. at 1 n.2, ECF No. 33 (citing NYC COVID-19 Testing Data , New York Univ. (last updated Apr. 27, 2021), https://www.nyu.edu/life/safety-health-wellness/coronavirus-information/nyc-covid-19-testing-data.html).)

NYU promulgates its health and safety protocols through several interlocking avenues. At the highest level, NYU regulates conduct pursuant to its University Student Conduct Policy, which contains a number of broad proscriptions on harmful student behavior. ("Student Conduct Policy," Compl. Ex. D, ECF No. 4-4.) As relevant here, Policy B1 prohibits: "Engaging in or threatening to engage in behavior(s) that, by virtue of their intensity, repetitiveness, or otherwise, endanger or compromise the health, safety, or well-being of oneself, another person, or the general University community, or that disrupt the effective continuation of the academic/education process for individual students or for the general University community." (Id. at 2.) Section IV of the Student Conduct Policy provides that off-campus conduct "should generally be subject only to the consequences of the applicable authority," but explicitly reserves the right to "take student disciplinary action for conduct occurring outside the University context which substantially disrupts the regular operation of the University or threatens the health, safety, or security of the University community." (Id. at 6.)

Additionally, in advance of the 2020 school year, NYU adopted a "Policy on Requirements Related to Access to NYU Buildings and Campus Grounds Resulting from the COVID-19 Pandemic." ("COVID-19 Access Policy," Compl. Ex. B, ECF No. 4-2.) This policy mandates face coverings and physical distancing while in NYU buildings, prohibits non-essential visitors to NYU buildings, and establishes a confidential "COVID Compliance Line" for the reporting of incidents of noncompliance. (Id. at 2-3.) NYU also added Policy E3 to its Student Conduct Policy, prohibiting violations of the COVID-19 Access Policy "or any related governmental orders issued concerning public health." (Student Conduct Policy at 3.)

In order to effectuate and clarify these formal policies, NYU has issued extensive COVID-related information to its students throughout the school year. These frequent updates, provided by email, video, text, and online posting, have described both the types of activities prohibited and the potential sanctions for misconduct. In July 2020, more than one month before the school year began, students received an email informing them that NYU "plans to strictly enforce the new safety and health rules we are putting in place," including through the use of "interim suspension." (Jolley Decl. Ex. 1, ECF No. 28-1.) Students were then required to watch a video in mid-August instructing them to follow NYU's COVID-19 policies off-campus and to avoid bars and parties, and informing them that students found in violation may face penalties up to and including "suspension and de-enrollment." (Id. ¶¶ 24-27, Ex. 3, ECF No. 28-3.) After viewing the video, students were required to submit an acknowledgement agreeing to "abide by all applicable policies and procedures and make conscious efforts to reasonably support the health and safety of myself and others within our community," and recognizing that "any violations may be subject to disciplinary action." (Id. ¶ 27.) NYU's electronic records show that plaintiff Doe viewed this video and submitted the required acknowledgement on August 18. (Id. ¶ 27.)

On September 3, as fall classes began, students received an email entitled: "Keeping Each Other Safe: Additional Guidance on University Expectations." (Id. Ex. 4, ECF No. 28-4.) This "additional guidance" gave examples of safe and unsafe activities, and expressly instructed students to "stay away from gatherings where there are no masks or distancing, even at off-campus private residences. " (Id. (emphasis in original).) It also informed students that, "[i]n general, if a student is found to have participated in a gathering that impacts the community's health and safety, including by violating public health guidelines, they will likely be suspended for one academic semester." (Id. )

The university updated and reinforced these guidelines at the onset of the spring semester in January 2021. On January 15, students were required to watch another video, which again informed them that attendance at "any gatherings where masks and physical distancing are not appropriately observed, even when it occurs off-campus," is grounds for sanctions up to and including "suspension from the university." (Id. ¶¶ 33-34, Ex. 7, ECF No. 28-7.) NYU's electronic records show that Doe spent nearly eight minutes watching this video, after which she signed another required acknowledgement. (Id. Ex. 8, ECF No. 28-8.)

Thereafter, on the first day of classes, students received an updated version of the September 3 guidance, which reiterated and emphasized that students were required to "stay away from gatherings where there are no masks or distancing, even at off-campus private residences ," and that students found participating in such gatherings "will likely be suspended for at least one academic semester ." (Id. Ex. 9, ECF No. 28-9 (emphasis in original).) This email also linked to a separate bulletin, posted the same day, entitled: "Word on Gatherings." (Id. Ex. 10, ECF No. 28-10.) This bulletin reiterated that "the University has made the choice to prohibit all large, non-essential, in-person gatherings at this time," and expressly provided: "Regardless of the setting or the reason, the University's policies on mask-wearing and physical distancing remain in effect for all gatherings, and you will be held accountable for observing NYU's safety and health rules and any public health guidelines even if you are off-campus." (Id. )

B. Plaintiff Doe's Disciplinary Proceedings and Suspension

Doe began her freshman year at NYU in the fall of 2020, and she is now in her second semester of study. (Doe Decl. ¶ 3, ECF No. 2-3.) She resides on campus in an NYU dormitory, though she has returned to her home state of California during the pendency of these proceedings. This semester, Doe has been attending her classes remotely, with the exception of one in-person lab course; since the day the Court granted Doe a temporary restraining order, she has attended her lab remotely as well. (Doe Decl. ¶¶ 15-16.)

This action arises out of an indoor event Doe attended at an off-campus apartment on January 30, 2021—two days after the spring semester began. (Compl. ¶ 61.) Doe depicts this event as a "private dinner among the plaintiff and her fellow students," at which there were "only seven" people in attendance, including Doe. (Id. ) Doe represents that two days prior to the dinner, she tested negative for COVID-19, and that she then "remained alone" until the dinner. (Id. ¶ 62.) She also represents that she "confirmed that all other attendees had tested negative" before attending. Doe claims that she wore a mask and practiced social distancing at all times while traveling to and from the dinner; that she, and all other attendees, wore masks while in the apartment; and that the "only time that I and the other diners removed [our] masks was when the food was delivered and we sat down to eat our meals." (Doe Decl. ¶¶ 26-29.) Doe further claims that, as the meal concluded, someone...