In the Matter of the Application of Zartoshti v. Columbia University, 2009 NY Slip Op 31830(U) (N.Y. Sup. Ct. 8/12/2009)
| Decision Date | 12 August 2009 |
| Docket Number | Motion Seq No. 001.,104231/09 |
| Parties | In the Matter of the Application of AFSHIN ZARTOSHTI, Petitioner, For a Judgment under Article 78 of the CPLR annulling the determination affirming a disciplinary penalty imposed against Petitioner, v. COLUMBIA UNIVERSITY, Respondent. |
| Court | New York Supreme Court |
Petitioner, Afshin Zartoshti, brings this Article 78 proceeding, seeking to annul the determination by respondent, Columbia University ("Columbia" or the "University") to change petitioner's grades in two courses to "Fs" and suspend him for two years. Petitioner asks that Columbia be directed to reinstate him immediately as a student in good standing and expunge his records of any reference to any disciplinary actions taken against him. Petitioner argues that respondent's determination was arbitrary and capricious because (1) respondent did not comply with its own procedures when it made its determination; (2) the evidence supporting the determination was insufficient; and, (3) the sanctions imposed were unreasonable.
A review of the papers supporting and in opposition to this petition indicates the following. Petitioner was a full lime student at the Institute of Human Nutrition ("IHM"), part of the College of Physicians and Surgeons at Columbia, from September 2007 until August 2008. In
May 2008, Dr. Kathleen Keller, a professor of clinical nutrition, informed Dr. Sharon Akabas, the Associate Director of IHM, that Richa Garg, another student, told Dr. Keller that she had witnessed petitioner sharing answers with Student V1 during final examinations for both clinical nutrition and biochemistry. Dr. Keller and Dr. Buchman, the biochemistry professor, were both present during the respective examinations. Although neither Dr. Keller nor Dr. Buchman reported that they had observed this behavior, they both recalled that while petitioner usually sat in the front of the room during class, petitioner sat in the back of the classroom next to Student V during these examinations. Another student, Ruchi Jain, reported that she observed similar behavior during the biochemistry final.2
After her communication with Dr. Keller, Dr. Akabas obtained copies of every' students' answer sheets for the midterms and final examinations from both courses. Each exam included a multiple choice section. For every examination, petitioner's and Student V's answers, both correct and incorrect, were nearly identical. This conformity of answers was not present in any of the other students' answer sheets. Dr. Akabas reviewed a statical analysis of these answer sheets and determined that it would be virtually impossible for such identical answers to have occurred by coincidence or without each student's participation.
Dr. Akabas—together with Dr. Dcckelbaum, the Director and functioning Dean of IHN—determined that a Dean's Discipline Committee (the "Committee") was needed to review the evidence regarding the allegations of cheating by petitioner and Student V. Although there is debate as lo whether Dr. Akabas and Dr. Dcckelbaum were part of the Committee or were merely present at the meetings, it is undisputed that Dr. Linda Lewis, Dr. Jeri Nieves and Dr. Bernard Erlanger, faculty members at IHM, were part of the Committee.
On June 15, 2008, petitioner received an e-mail from Dr. Akabas informing him that there was "a concern of irregularities on [petitioner's] exams;'" that a Committee has been formed to review these irregularities; that petitioner was lo speak with the Committee on June 18; and, that petitioner could bring an advisor (who was not a lawyer) to this meeting. Petitioner replied to this e-mail and asked what Dr. Akabas meant by "irregularities." Dr. Akabas replied, "[p]lease see message below" and attached her previous e-mail.
Before meeting with petitioner, the Committee (together with Dr. Akabas and Dr. Deckelbaum) met to discuss the matter and the disciplinary procedures and process. The Committee was also provided with a statistical analysis of the answer sheets and written statements of both the course instructors and Ms. Garg, the student who first came forward to report the alleged cheating.
On June 18, petitioner, accompanied by a student advisor, met with the Committee, Dr. Akabas, and Dr. Deckelbaum. He was informed that the Committee was assembled in order to determine whether he had cheated on his examinations. Petitioner was shown the same statistical
analysis that was given to the Committee and was asked if he had cheated on his examinations; petitioner denied cheating. He was then asked if he was confronted by another student about cheating, lo which he answered, "no." After speaking privately with his advisor, petitioner slated that he had in fact been confronted by another student about his cheating. Petitioner and his advisor offered an argument that a classmate may have cheated from petitioner's examination without his knowledge.
After this meeting, the Committee heard from Ms. Garg and Ms. Jain separately. Ms. Garg slated that she observed petitioner and Student V tap pencils, point to questions, and flip the examination pages during the clinical nutrition final examination. Ms. Garg stated that at one point during the examination, she observed Student V kick petitioner's chair, at which point petitioner immediately turned his examination page. Ms. Jain, Student V's roommate, told the Committee that she had been having disagreements with Student V. Ms. Jain reported that during one of these disagreements, she told Student V that she would report her and petitioner's cheating. Ms. Jain then told the Committee that petitioner later telephoned Ms. Jain and pled with her not to "turn us in".
Dr. Akabas informed petitioner, via e-mail, that a second meeting would be held on July 8, 2008, in order to "offer [petitioner] another opportunity lo discuss the irregularities of concern on [petitioner's] exam." Petitioner requested that Andrea Kim be his advisor during this second meeting. However, Dr. Akabas denied petitioner's request to have Ms. Kim present because Ms. Kim was present during one of the examinations and was a potential witness. Petitioner attended the second meeting with a different student advisor, and generally denied any participation in pencil lapping, chair kicking, or cheating.
The Committee determined that both petitioner and Student V were involved in cheating. The Committee decided that both students should receive failing grades in the two courses, but that both students would be permitted to retake these courses after a two-year period of suspension. Dr. Deckelbaum informed petitioner of the Committee's determinations via letter. In his letter, he also informed petitioner that he had a right to appeal.
Petitioner appealed to the Dean of the College of Physicians and Surgeons, Lee Goldman. In his appeal, petitioner argued (a) procedural irregularities, (b) evidentiary errors, and (c) lack of fairness. The Executive Committee of the Faculty Council of the College of Physicians and Surgeons reviewed petitioner's appeal and made a recommendation to Dean Goldman that the Committee's decision be upheld. On January 13, 2009, Dean Goldman sent a letter to petitioner denying his appeal. This proceeding followed.
Determinations of universities, both public and private, are subject to review under Article 78. See Trahms v. Columbia Univ., 245 A.D.2d 124, 125 (1st Dep't 1997): Weidemann v. State Univ. of New York, 188 A.D.2d 974, 975 (3d Dep't 1992). The role of the court is to consider whether the "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as lo the measure or mode of penalty or discipline imposed .. .." C.P.L.R. § 7803. Historically, New York courts have given a high level of deference to universities when reviewing university academic decisions. See Tedeschi v. Wagner College, 49 N.Y.2d 652, 658 (1980). The courts give such a high level of deference in order to preserve the fundamental notion of academic freedom and "are
reluctant to impose the strictures of traditional legal rules" in order to preserve the integral "subjective judgment of professional educators." 14 at 658. Therefore, "the issue reviewed in such a case is whether the institution has acted in good faith or its action was arbitrary or irrational." id. Accordingly, petitioner must show that the University's determination was arbitrary and irrational in order to warrant judicial intervention.
The record reflects that Columbia substantially complied with its own procedures. Unlike a student at a state institution, a student at a private university is not afforded "the full panoply of due process guarantees." Mu Chapter of Delta Kappa Epsilon Alumni Corp, v. Colgate Univ., 176 A.D.2d 11, 13 (3d Dep't 1992). Instead, when reviewing a determination made by a private university, judicial intervention will be warranted if the court concludes that the private university did not substantially observe a university established procedural rule or guideline, Tedeschi, supra, 49 N. Y.2d 660. Therefore, in order to warrant judicial intervention in this instance, petitioner must show that the University failed to substantially comply with one of its own published procedural guidelines. Petitioner has failed to do so.
Columbia has established and published its own set of procedural guidelines, the "Dean's Discipline," designed to govern the actions taken by the University in this type of disciplinary situation. Petitioner contends that Columbia failed to abide by its own rules in various ways, depriving petitioner of his rights. Petitioner argues that the University (1) failed to follow its own rules when it did not provide him with adequate written notice of the specific charges against
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