March 26, 2019

Judicial review of student disciplinary action taken by a private college or university is limited to whether the institution substantially complied with its own rules



A New York Supreme Court denied a petition filed by a student [Student] attending a private institution of higher education [Institution]. Student had asked the court to annul the Institution's decision affirming a hearing committee's suspending the Student for one semester based on its finding that Student had engaged in academic dishonesty -- forging an examination booklet. Student appealed the Supreme Court's decision, arguing that the disciplinary action taken by the Institution violated his right to "due process."*

The Appellate Division commenced its review of Student's appeal by observing that Student's "due process" challenge was misplaced. Citing Cavanagh v Cathedral Preparatory Seminary, 284 AD2d 360, among other decisions, the court explained that a student at a private university is not afforded the "full panoply" of due process rights that might be available to a student at a public institution of higher education.

Accordingly, in the absence of any "State involvement," the only issue for review by the court is whether the institution substantially complied with [1] its own rules; [2]  was made in accordance with its written disciplinary policy; and [3] was rationally based and not arbitrary and capricious.

Turning to the Institution's procedures, the Appellate Division observed that Student "had ample opportunity at the hearing to defend his conduct and explain his actions." However, said the court, the Institution's rejection of Student's explanation as not credible was not irrational nor was the denial of Student's internal appeal irrational. The Institutions' written policy provided for limited grounds for appeal, "none of which availed Student."

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and  Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division opined that there was nothing shocking or disproportionate about the one-semester suspension imposed on Student.

Addressing another issue, Student's allegation that the Institution had defamed him, the Appellate Division held that Supreme Court's dismissal of his defamation claim was correct because:

1. The subject statements were true;

2. The statements had not been published to any persons outside the university; and

3. The Institution's statements were protected by a qualified common interest privilege.

As to Student's allegations of malice, the Appellate Division said that this amounted to little more than "mere surmise and conjecture" and therefore was insufficient to overcome the Institution's qualified common interest privilege.

Another issue addressed in this action involve Student's allegation that he had been defamed by the disciplinary action taken against him by Institution.

** The so-called "Pell Doctrine" defines a reasonable disciplinary penalty as one that is "neither arbitrary and capricious nor so disproportionate to the offense as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:


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