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July 18, 2018

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"
2018 NY Slip Op 05104, Appellate Division, Fourth Department

A college [Respondent] had sanctioned a student for alleged violations of the Student Code of Conduct. In response to the student's challenge to the Respondent's action the Appellate Division "unanimously annulled" the determination "on the law" and directed the Respondent "to expunge all references to this matter from [the student's] school record."

The Respondent had determined that the student had "possessed weapons and engaged in harassment" and imposed 50 hours of community service, two years of disciplinary probation, and exclusion from on-campus housing as the penalty for the alleged misconduct.

The Appellate Division said it agreed with the student that "the record is devoid of any evidence, much less substantial evidence," to support the Respondent's determination, pointing out that Respondent's determination rests exclusively on a "seriously controverted" hearsay statement, and that does not, as a matter of law, constitute substantial evidence."

The court also declined the Respondent's "invitation to remit the matter for a new hearing in light of its failure to transcribe the disciplinary hearing," explaining "Annulment and expungement is the prescribed remedy for an administrative determination that is unsupported by substantial evidence."

It would be anomalous, said the Appellate Division, were the Respondent afforded "a new opportunity to establish [the student's] culpability based on its own procedural error in failing to transcribe the initial hearing."

The court also said it felt "compelled to express [its] dismay at [Respondent's] cavalier attitude toward [the student's] due process rights in this case, and we remind [Respondent] -- and all other colleges and universities, particularly state-affiliated institution -- of their unwavering obligation to conduct student disciplinary proceedings in a manner that comports with fundamental notions of due process for the accused, that renders determinations consistent with the facts, and that respects the presumption of innocence to which all students are entitled."

The decision is posted on the Internet at:


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