Matar v. Florida Intern. University, 3D05-1444.

CourtCourt of Appeal of Florida (US)
Citation944 So.2d 1153
Docket NumberNo. 3D05-1444.,3D05-1444.
Decision Date13 December 2006
944 So.2d 1153
Aziz MATAR, Appellant,
No. 3D05-1444.
District Court of Appeal of Florida, Third District.
December 13, 2006.

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Lisa S. Walsh, Miami, for appellant.

Hinshaw & Culbertson LLP, and James H. Wyman, Ft. Lauderdale, for appellee.



Aziz Matar ("Mr. Matar") appeals his expulsion from Florida International University ("FIU") upon FIU's determination that Mr. Matar engaged in academic misconduct. Because the evidence more than amply supports FIU's ultimate determination and because Mr. Matar failed to demonstrate any material error in the underlying academic grievance proceeding, we affirm.

Mr. Matar was a student at FIU's construction management program. During the spring semester of 2005, Mr. Matar enrolled in BCN 4910 Senior Project ("Course"), a course required for a bachelor's degree in construction management. As part of the Course, each student was required to develop his or her own hypothetical construction company.

On March 2, 2005, Mr. Matar submitted his midterm project for the Course, comprised of a large document setting forth the details of his hypothetical construction company. After reviewing Mr. Matar's project, the instructor for the Course, Professor Gene Farmer ("Prof. Farmer"), concluded that portions of Mr. Matar's midterm project were identical to a project that had been submitted by other students the previous semester. Prof. Farmer also suspected that the architectural office plan drawings and a construction cost estimate submitted were not prepared by Mr. Matar.

On March 9, 2005, Prof. Farmer met with Mr. Matar in the presence of the Chairman of the Construction Management Department, Dr. Irtishad Ahmed, confronted Mr. Matar with the allegations, and informed him that a formal academic misconduct charge would be filed against him. Accordingly, on March 17, 2005, Prof. Farmer filed the formal charge of academic misconduct and alleged that Mr. Matar had plagiarized other students' work, submitted work that was not prepared by him, and violated the class academic honesty pledge signed by him. Prof. Farmer indicated that because Mr. Matar previously received an "F" in a structures course as a result of being caught cheating, he felt it was best to resolve the matter via a formal charge of academic misconduct.

On March 18, 2005, the Vice-Provost for Academic Affairs, Kenneth E. Johnson ("Vice-Provost"), sent Mr. Matar a certified letter advising him of the charge of academic misconduct by Prof. Farmer. The Vice-Provost enclosed a copy of the 2004-2005 FIU Student Handbook ("Handbook"), specifically directing Mr. Matar to read the Code of Academic Integrity ("Code") section of the Handbook, and also enclosed a copy of the materials

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detailing the allegations. The Vice-Provost specified that the matter could not be resolved through an informal resolution and requested that Mr. Matar inform him, in writing, whether he would like to have the matter resolved by administrative disposition, administrative hearing, or by a University Academic Conduct Review Board ("Review Board") hearing. The letter included the contact information for Margaret Cuchel ("Ms. Cuchel") in the Vice-Provost's office should Mr. Matar have any questions.

On March 28, 2005, Mr. Matar contacted Ms. Cuchel by telephone to inform her that he wished to have his case resolved by an administrative hearing. Ms. Cuchel corresponded via e-mail with Mr. Matar, Prof. Farmer, and the Vice-Provost in order to confirm the administrative hearing and to set the date for April 7, 2005. That same afternoon, Mr. Matar wrote Ms. Cuchel an e-mail stating "i spoke with profeesor farmer from an hour ago and he will resolve this situation with dr. jhonsen without a hearing" [sic]. Ms. Cuchel responded to Mr. Matar and specified that the administrative hearing was nonetheless proceeding as scheduled on April 7, 2005.

The April 7, 2005 hearing was held with Mr. Matar, Prof. Farmer, and the Vice-Provost in attendance. Prof. Farmer presented evidence and testified that Mr. Matar had engaged in cheating, plagiarism, and academic dishonesty. During Prof. Farmer's testimony, Mr. Matar attempted to comment but the Vice-Provost told him to wait until it was his time to present his side of the story, and directed Mr. Matar to address his comments to him, not to Prof. Farmer.

In response to the evidence, Mr. Matar admitted that he had hired an architect to render drawings for the design of the office but argued that he was only doing what a contractor would do in "the real world." He also admitted that he used approximately ten percent of a senior project submitted the previous semester by other students. He explained that he was enrolled in the course taken by these other students the previous semester, and participated with them on the previous group project. Mr. Matar claimed that although he dropped the class after two weeks, he continued working with the group as he intended to submit the group's ultimate plan the next semester when he re-took the class.

After Mr. Matar's presentation of the evidence, the Vice-Provost asked him if there was anything he wished to add. In response, Mr. Matar asked that he not be penalized in the matter. After the proceedings had concluded, Mr. Matar requested to ask a question of Prof. Farmer. The Vice-Provost responded "No questions for Professor Farmer. Ask me." Mr. Matar, therefore, directed his question to the Vice-Provost, which was whether he could take his project book with him. The Vice-Provost responded negatively and concluded the hearing.

On April 14, 2005, the Vice-Provost issued his decision, finding that Mr. Matar had engaged in plagiarism, cheating and collusion, and expelled Mr. Matar from FIU. The Vice-Provost advised Mr. Matar that he had the right to appeal the decision to the President of FIU as outlined in the Code. After exhausting his administrative remedies, Mr. Matar filed the instant appeal.

In this appeal, Mr. Matar argues that his due process rights were violated because (1) formal review proceedings were improperly waived; (2) he was precluded from confronting or cross-examining his accuser; (3) he was improperly deprived of proceeding in an informal review process; and (4) the penalty was too severe.

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Section 120.68, Florida Statutes, provides that "[a] party who is adversely affected by final agency action is entitled to judicial review." § 120.68(1), Fla. Stat. (2005); Morfit v. Univ. of S. Fla., 794 So.2d 655, 656 (Fla. 2d DCA 2001). A district court reviewing a final agency action shall reverse or set aside agency action if it finds that "[t]he fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure." § 120.68(7)(c), Fla. Stat. (2005); see also Ames v. Dist. Bd. of Trustees, Lake City Cmty. Coll., 908 So.2d 1142, 1143 (Fla. 1st DCA 2005)(specifying that Florida's Administrative Procedure Act ("APA") permits reversal only upon a showing of "material error in procedure or a failure to follow prescribed procedure"). This standard of review "has been characterized as the APA's version of the harmless error rule." Ames, 908 So.2d at 1143 (emphasis added).

Florida universities and community colleges follow different procedures than other administrative agencies. Morfit, 794 So.2d at 656. "In any proceeding in which the substantial interests of a student are determined by the state university system or a community college district, sections 120.569 and 120.57 (the general due process provisions of the Administrative Procedure Act) do not apply." Id.; § 120.81(1)(g), Fla. Stat. (2005). Rather, pursuant to section 6C-6.0105(1) of the Florida Administrative Code, each university president is directed to "establish university rules that ensure fairness and due process in student disciplinary proceedings and that guarantee the academic integrity of the university." Fla. Admin. Code R. 6C-6.0105(1).

An agency violates a person's due process rights if it ignores rules promulgated...

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