Kwiatkowski v. Ithaca College

• Decision Date: 23 May 1975
• Citation: 82 Misc.2d 43,368 N.Y.S.2d 973
• Parties: In the Matter of Randy A. KWIATKOWSKI, Petitioner, v. ITHACA COLLEGE and Dr. William R. Bergmark, Judicial Administrator, Respondents.
• Court: New York Supreme Court

Page 973

368 N.Y.S.2d 973

82 Misc.2d 43

In the Matter of Randy A. KWIATKOWSKI, Petitioner, v. ITHACA COLLEGE and Dr. William R. Bergmark, Judicial Administrator, Respondents.

Supreme Court, Tompkins County, Special Term, Cortland County.

May 23, 1975.

Norman D. Freeman, Ithaca, for petitioner.

Wiggins, Tsapis, Holmberg & Gersh, Walter J. Wiggins, Ithaca, of counsel, for respondents.

PAUL J. YESAWICH, Jr., Justice.

DECISION

In this Article 78 proceeding petitioner, a student attending Ithaca College, a private educational institution, seeks an order restraining his suspension from school and directing the College to reinstate him as a regular student.

Suspension resulted from an on campus incident which occurred in the early morning hours of November 16, 1974, when he pushed another student's mattress from a 10th floor dormitory window. While retrieving the mattress he was met by a campus security officer to whom he admitted his aberrant conduct. He was thereupon taken to the College's Office of Safety and Security where he was apprised of and waived his Miranda rights.

Under the Ithaca College Judicial Code (Code), which had been adopted after a student referendum, a student charged with violating the Code may request to have the matter adjudicated through the College's judicial system or referred to the Sheriff's Department for processing. Petitioner opted for adjudication under the Code and his request to so proceed was acceded to by the Deputy Judicial Administrator (Deputy).

After reviewing the security officer's investigative report relating to this incident the Deputy then formally charged petitioner with violating three specific sections of the Code. Written notice of the charges as well as notice of the date for a hearing were served on petitioner.

Although the Code does not provide that a student has the right to an attorney it does provide that he may choose any member of the College community to act as his counsel. At the hearing petitioner was represented by a member of the College's corps of judicial advocates, a group apparently consisting of students trained to prosecute and defend college community members charged with Code violations. Petitioner raised no objection to the student who volunteered to represent him.

A randomly selected hearing board, composed of four students, one faculty, one staff and one administrative member heard the matter. As provided by the Code the Deputy was also present and empowered to interpret and apply the rules of procedure subject to his being overruled by a majority of the hearing board.

At the outset of the hearing petitioner pled guilty to unauthorized possession or removal of property belonging to the College. With respect to the other charges the prosecutor introduced evidence in the form of written statements as well as oral testimony. The witnesses who testified were subject to cross-examination. Petitioner testified voluntarily and a character witness was called on his behalf.

He was found guilty of two of the charges and acquitted of the third. The penalty imposed, on this sophomore student, was suspension from the College for one semester. An appeal was taken and the appeal board upheld the hearing board's decision.

Petitioner then initiated this proceeding contending that the College's action was arbitrary and unlawful in that certain of the procedures followed by it violated his due process rights, that his prosecution constituted discriminatory enforcement, and that the penalty was unfair.

Before a private college's student disciplinary procedure can be circumscribed by all of the constitutional safeguards of due process, it must first be shown that the state is involved in the activities of the college to a significant degree. (Grossner v. Trustees of Columbia University in City of N.Y., D.C.N.Y., 287 F.Supp. 535; cf. Power v. Miles, 2 Cir., 407 F.2d 73; Mtr. of Oefelein v. Msgr. Farrell Sch., 77 Misc.2d 417, 353 N.Y.S.2d 674). Since petitioner has not shown state involvement of any degree there is no basis for bringing this disciplinary proceeding within the reach of the 14th Amendment.

While New York courts have applied a contract standard when reviewing a private educational institution's disciplinary proceedings (Carr v. St. John's Univ., 17 A.D.2d 632, 231 N.Y.S.2d 410, affd. 12 N.Y.2d 802, 235 N.Y.S.2d 834, 187 N.E.2d 18), the efficacy of that standard and the manner of its application has been questioned. (Note, 'Developments in the Law, Academic Freedom', 81 Harv.L.Rev. 1045, 1145--1147). But even when that standard is applied it is imperative that the college or university's decision to discipline the student be predicated on procedures which are fair and reasonable and which lend themselves to a reliable determination. (Cf. Mtr. of Bonwitt v. Sch. of Nursing, 77 Misc.2d 269, 353 N.Y.S.2d 82; Mitchell v. Long Is. Univ., 62 Misc.2d 733, 309 N.Y.S.2d 538, affd. 35 A.D.2d 654, 314 N.Y.S.2d 328; Goldstein v. New York Univ., 76 App.Div. 80, 78 N.Y.S. 739). These authorities implicitly recognize that the need to obtain a higher education for most high school graduates is more a necessity than a luxury and that the courts will not permit a student's efforts to attain this goal to be thwarted because of an innately unfair disciplinary proceeding.

In the Code more than the rudiments of an adversary proceeding are observed. The fact that a tape recording of the disciplinary hearing was not preserved does not alter that conclusion nor does it make it insurmountable for the Court to conclude whether the determinations of the hearing and appeal boards were supported by substantial evidence. The reason for the tapes destruction was not to inhibit review but rather to prevent use of the tapes to the student's detriment in the future. While retention of the tapes until the time to take legal action had expired would appear to be more desirable fortunately here what transpired at the hearing is largely undisputed. Furthermore the lack of a transcript of the hearing is not an impediment to judicial review for there is no showing that the student either requested the tapes be preserved or that he was denied the right to make his own recording of the hearing. (cf. Whitfield v. Simpson, D.C.Ill., 312 F.Supp. 889; Esteban v. Central Missouri State College, D.C.Mo., 277 F.Supp. 649, affd. 8 Cir., 415 F.2d 1077. But see Due v. Florida A & M University, D.C.Fla., 233 F.Supp. 396).

While petitioner does not claim a right to be represented by an attorney at the hearing he does allege he was denied the right to retain an attorney to assist him in his defense. That claim is insupportable not only because he has failed to show that the Code was interpreted so as to expressly exclude such assistance, but additionally because there is no averment that he ever attempted to retain an attorney.

Focusing more particularly on petitioner's allegations of unlawful...