Doe v. Syracuse Univ.

Decision Date13 November 2020
Docket Number530,CA 19-01226
Citation135 N.Y.S.3d 536,188 A.D.3d 1570
Parties In the Matter of John DOE 1, et al., Petitioners, John Doe 3, John Doe 7 and John Doe 8, Petitioners-Appellants, v. SYRACUSE UNIVERSITY, Respondent-Respondent.
CourtNew York Supreme Court — Appellate Division
MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed without costs.

Memorandum: John Doe 3, John Doe 7, and John Doe 8 (petitioners) were among several other pledging members of the Theta Tau fraternity chapter (Chapter) at respondent, Syracuse University, who, in late March 2018, participated in a videotaped roast of current members before an assembled group of fraternity members in the basement of the Chapter house. The skits performed as part of this event, which were apparently attempts at satire, included dialogue in which students professed hatred for persons of certain races, ethnicities, and religions while using slurs to refer to those groups, and depictions of simulated sexual activity and sexual violence directed at persons imitating women and a disabled individual. The videotaped performances were subsequently posted online to the Chapter's private Facebook group. A few weeks later, a female student was granted access to the Facebook group, viewed and recorded the videos, and sent the videos to respondent's administrators and its student-run newspaper. The announcement of respondent's Chancellor disclosing the existence and describing the content of the videos and the subsequent release of an edited video clip by media outlets, including the student-run newspaper, resulted in campus-wide demonstrations, protests, and outrage. Open forums were held the same day—including one in the evening during which time the first video clip was released by the media—in which students, many of whom identified with marginalized groups, expressed the effect that petitioners' reported and depicted conduct had on them. Campus unrest continued over the following days, and a second edited video clip was also released by the media.

Following an investigation, petitioners and other pledging members of the Chapter were charged with various violations of respondent's Code of Student Conduct (Code). Petitioners appeared before the University Conduct Board (UCB) for a group disciplinary hearing, and the UCB thereafter found petitioners responsible for certain violations of the Code and recommended sanctions that included indefinite suspensions of one or two years with eligibility for readmission requiring a petition and completion of certain conditions. On administrative appeal, the University Appeals Board (UAB) upheld the UCB's decision, and the UAB determination was confirmed by respondent's representative.

Petitioners thereafter commenced this CPLR article 78 proceeding seeking to annul respondent's final determinations. Supreme Court granted the petition in part and denied the petition in part by upholding the final determinations to the extent that respondent found petitioners responsible for Code violations under Section 3 prohibiting conduct that threatens the mental health, physical health, or safety of any person or persons and under Section 15 prohibiting the violation of other university policies such as the guidelines of the Office of Fraternity and Sorority Affairs (FASA). The court also upheld the sanctions imposed against petitioners. Petitioners now appeal, and we affirm.

It is well settled that "the relationship between a private university and its students is essentially a private one such that, absent some showing of State involvement, [its] disciplinary proceedings do not implicate the full panoply of due process guarantees" ( Matter of A.E. v. Hamilton Coll. , 173 A.D.3d 1753, 1754, 104 N.Y.S.3d 445 [4th Dept. 2019] [internal quotation marks omitted]; see Matter of Kickertz v. New York Univ. , 25 N.Y.3d 942, 944, 6 N.Y.S.3d 546, 29 N.E.3d 893 [2015] ). " ‘Judicial scrutiny of the determination of disciplinary matters between a university and its students, or student organizations, is limited to determining 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’ " ( Matter of Al-Khadra v. Syracuse Univ. , 291 A.D.2d 865, 866, 737 N.Y.S.2d 491 [4th Dept. 2002], lv denied 98 N.Y.2d 603, 745 N.Y.S.2d 502, 772 N.E.2d 605 [2002] ; see A.E. , 173 A.D.3d at 1754-1755, 104 N.Y.S.3d 445 ; see generally Tedeschi v. Wagner Coll. , 49 N.Y.2d 652, 660, 427 N.Y.S.2d 760, 404 N.E.2d 1302 [1980] ). "Perfect adherence to every procedural requirement is not necessary to demonstrate substantial compliance" ( Matter of Doe v. Skidmore Coll. , 152 A.D.3d 932, 935, 59 N.Y.S.3d 509 [3d Dept. 2017] [hereafter, Skidmore Coll. ] ). "A university's determination will be annulled only where it has failed to substantially comply with its procedures or where its determination lacks a rational basis" ( Matter of Doe v. Cornell Univ. , 163 A.D.3d 1243, 1245, 80 N.Y.S.3d 695 [3d Dept. 2018] [hereafter, Cornell Univ. ]; see Matter of Ponichtera v. State Univ. of N.Y. at Buffalo , 149 A.D.3d 1565, 1565-1566, 52 N.Y.S.3d 795 [4th Dept. 2017] ).

We reject petitioners' contention that respondent failed to substantially adhere to its own published rules and guidelines for disciplinary proceedings. Contrary to petitioners' assertion, the record establishes that respondent substantially complied with its procedures in providing petitioners timely and adequate notice of the charges against them (see Matter of Lampert v. State Univ. of N.Y. at Albany , 116 A.D.3d 1292, 1294, 984 N.Y.S.2d 234 [3d Dept. 2014], lv denied 23 N.Y.3d 908, 2014 WL 2936283 [2014] ). Petitioners' contentions with respect to the use of a group disciplinary hearing format are likewise without merit because petitioners were provided notice that there would be a single hearing for all pledging members identified in the investigation (see Matter of Beilis v. Albany Med. Coll. of Union Univ. , 136 A.D.2d 42, 44, 525 N.Y.S.2d 932 [3d Dept. 1988] ), and the Code does not preclude respondent from conducting the hearing in the group manner employed here (see Matter of Shah v. Union Coll. , 97 A.D.3d 949, 951, 948 N.Y.S.2d 456 [3d Dept. 2012] ).

Petitioners also contend that respondent failed to substantially comply with its procedures by improperly applying the rules governing the questioning of the investigator at the hearing. That contention is without merit. Here, "the right of confrontation or cross-examination is not directed or guaranteed under respondent's procedures"; instead, the Code provides a limited right to submit proposed questions to witnesses indirectly through the UCB, which is granted discretion via its chairperson to determine whether and the extent to which, based on reasonableness and relevance, such questions are posed to witnesses ( Cornell Univ. , 163 A.D.3d at 1245, 80 N.Y.S.3d 695 ; see Matter of Weber v. State Univ. of N.Y., Coll. at Cortland , 150 A.D.3d 1429, 1432, 55 N.Y.S.3d 753 [3d Dept. 2017] ). Contrary to petitioners' contention, the record establishes that respondent substantially complied with this procedure inasmuch as petitioners were permitted to pose many questions to the investigator, even though the UCB exercised its discretion in precluding certain questions (see Cornell Univ. , 163 A.D.3d at 1245, 80 N.Y.S.3d 695 ).

Petitioners further contend that respondent failed to substantially comply with its procedures when the UCB denied their request to call certain witnesses. That contention lacks merit. The Code provides that "[e]ach party will have the opportunity to present relevant testimony" and that the "[r]elevance of testimony will be determined by the respective [UCB] chairperson." Here, the UCB determined that the information sought to be elicited from petitioners' proposed witnesses was "procedural and not factual" and that, inasmuch as the UCB's function was to hear factual information relevant to the subject events to determine whether the Code was violated, the opinions of anyone else about what charges should apply were "not relevant." That evidentiary determination was a discretionary one reserved by the Code for the UCB and, therefore, petitioners' contention that respondent failed to substantially comply with its procedures in that regard is without merit (see Matter of Hyman v. Cornell Univ. , 82 A.D.3d 1309, 1310, 918 N.Y.S.2d 226 [3d Dept. 2011] ).

Contrary to petitioners' additional contention, respondent substantially complied with its procedures when petitioners were permitted to "present objections to the participation of any [UCB] member for reason of conflict of interest" (see generally Weber , 150 A.D.3d at 1433, 55 N.Y.S.3d 753 ). Moreover, the UCB adequately ruled on those objections, and there is no indication in the record that any of the UCB members had predetermined the issues (see Skidmore Coll. , 152 A.D.3d at 933-934, 59 N.Y.S.3d 509 ; Weber , 150 A.D.3d at 1433-1434, 55 N.Y.S.3d 753 ; Shah , 97 A.D.3d at 951, 948 N.Y.S.2d 456 ).

Petitioners also contend that respondent did not substantially comply with its procedures because the UAB failed to timely render a decision on their administrative appeals or timely indicate in writing that its decision would be delayed. Although we agree with petitioners that the UAB failed to respond within the requisite three business days, we nonetheless conclude that respondent " ‘substantially adhered to the time frame’ of its [appeal] resolution process by responding to the [administrative appeals] within [eight business] days of [their] submission" with letters indicating that, in light of the quantity of the materials it had to review, the UAB required additional time to make a final decision ( Matter of Krysty v. State Univ. of N.Y. at Buffalo , 39 A.D.3d 1220, 1220, 832 N.Y.S.2d 846 [4th Dept. 2007], lv denied 9 N.Y.3d...

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