Colleges and Universities - Judicial Review of Academic Discretion - Retroactive Application of Revised Academic Standards

Colleges and Universities - Judicial Review of Academic Discretion - Due Process

Ricotta, Mattrey, Callocchia, Markel & Cassert (Katherine V. Markel of counsel) for petitioner.

Letitia James, Attorney General (Melissa Thore of counsel), for respondents.

{**87 Misc 3d at 268}Petitioner commenced this proceeding pursuant to CPLR article 78 seeking a judgment annulling the July 3, 2024 decision of respondents (the Law School) which denied her petition for reinstatement to the JD program at the University at Buffalo School of Law. The court has reviewed all papers submitted by petitioner and respondents on this application. The petition is granted, and the determination made by respondents is annulled pursuant to the following:

There is an old saying among lawyers that "A" students become professors of law; "B" students become judges; and "C" students make all the money. Madeline Rivera was a "B" student. She now sues the Law School at the State University of New York at Buffalo for dismissing her for poor academic performance.

The facts are not in dispute. During petitioner's first semester in the fall of 2023, she received the following grades:

During petitioner's second semester in the spring of 2024, she received the following grades:

At the time petitioner applied to the Law School, she had graduated from SUNY Geneseo with a 3.5 GPA; had scored a 156 on her LSAT; had worked several years at a private law firm; and had strong recommendations from professors, one such professor even going so far as ranking the petitioner in the top 5% of all undergraduate students he had taught in his entire academic career. Her skill set pointed her to becoming a lawyer. The truth was, Madeline Rivera dreamed of becoming a lawyer.

By the time she matriculated, petitioner was the sole winner of the Alumni Association Scholarship award. There were no other such recipients in the class.{**87 Misc 3d at 269}

In April 2023, at the time petitioner enrolled, the Law School's minimum GPA to remain in good standing and enrolled was a 2.5. This was published in the "General Academic Requirements, Policies and Code of Student Conduct," known as GARP. While it had been [*3]revised in March 2022, it was effective for the 2023-2024 academic year, and had essentially not changed since 2018.

Four months later, however, after petitioner had fully matriculated at the Law School and had commenced her studies, the Law School revised the GARP effective August 2023. The Law School so advised petitioner and the entire class well after the school year had begun. But rather than applying the 2023 GARP to the new applicant class for the upcoming academic year (2024-2025), the Law School retroactively applied the revised 2023 GARP to the already-admitted students enrolled in the 2023-2024 academic year. But now the GARP embodied two significant changes: (1) The new minimum GPA to remain enrolled was being raised to a 2.8 GPA. (2) The GARP required a minimum GPA of 2.75 to be a student "in good standing."

As a result of application of the new academic standards, the Law School in June 2024 informed petitioner she was being dismissed. Her cumulative GPA was .058, or less than one twentieth of a point below the new academic threshold. And it was .01, or one one-hundredth of a point below the threshold to be considered "in good academic standing" and off academic supervision.

Not long thereafter, the Vice Dean informed petitioner that she could appeal the decision. The Vice Dean informed petitioner that as the Vice Dean, she had reached out to all of petitioner's professors for feedback on petitioner's performance. The Vice Dean also offered petitioner an opportunity to submit a written letter of reinstatement to the committee, and to submit letters of recommendation from her professors. Petitioner submitted a five-page petition and reached out to some professors who ostensibly knew her and submitted two substantive and highly supportive letters.

However, there was no notice regarding who was on the committee; when it was to meet; what criteria the committee would consider; nor what evidence had already been submitted by the Vice Dean or other professors to the committee. Petitioner was not provided an opportunity to be heard by the committee, nor was petitioner given access to any of the evidence submitted to{**87 Misc 3d at 270} the committee, nor apprised of any of the comments submitted by the Vice Dean or her professors. She was not provided an opportunity to rebut any of the charges, or dispute any of the potentially negative comments, or provide any context for any adverse evidence. She was not afforded a right to representation; a right to a hearing; or access to document discovery. Finally, she was never provided a copy of any report emanating from the committee.

By correspondence dated July 3, 2024, the Vice Dean informed petitioner that the committee had denied the petition for reinstatement. But all hope was not lost, wrote the Vice Dean. The decision is "not appealable. But this decision does not mean your law school journey has ended. You may apply to another law school." With a GPA of .01 (one one-hundredth of a point) below 2.75, however, petitioner was not permitted, under the August 2023 GARP, to receive a letter of good academic standing from the Law School, which petitioner has demonstrated is a prerequisite for admission as a transfer student to almost every law school in the country—including UB Law.

Madeline Rivera now petitions this court to annul the determinations of respondents, contending violation of statutory law and constitutional due process as embodied by New York common law.

The applicable statutory law in this circumstance is governed by CPLR 7803, which provides that judicial review of a governmental administrative decision shall be whether the action was, among other things, "arbitrary or capricious." The decisions of academic [*4]administrators are not immune from judicial scrutiny. Courts have indicated that they will intervene if an institution exercises its discretion in an arbitrary or irrational fashion (Matter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d 408 [1980], citing Matter of Sofair v State Univ. of N.Y. Upstate Med. Ctr. Coll. of Medicine, 54 AD2d 287, 290 [4th Dept 1976], revd 44 NY2d 475 [1978], also infra). An action that is arbitrary and capricious has been defined by the Court of Appeals as an action that is taken without sound basis in reason or regard to the facts (Matter of Peckham v Calogero, 12 NY3d 424 [2009], citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974], infra).

One of the seminal cases restating and providing applicable principles interpreting CPLR 7803 is Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & {**87 Misc 3d at 271}Mamaroneck, Westchester County (34 NY2d 222 [1974]), cited by both parties at bar. There, wrote the Court,

"The arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.' Arbitrary action is without sound basis in reason and is generally taken without regard to the facts . . . [T]he proper test is whether there is a rational basis for the administrative order[ ]" (id. at 231 [citation omitted]).

Furthermore, wrote the Court, an administrative action may be

"shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual . . . that it is disproportionate to the misconduct . . . [T]he reason for the enactment of the statute (CPLR 7803) was to make it possible, where warranted, to ameliorate harsh impositions of sanctions by administrative agencies. That purpose should be fulfilled by the courts not only as a matter of legislative intention, but also in order to accomplish what a sense of justice would dictate" (id. at 234-235).

Applying the law to the facts at bar, the Law School may have been within its rights to arbitrarily change its standards from one defined GPA to another; however, it is axiomatic that applying the brand-new changed standards to students such as petitioner who had already applied and enrolled under the prior minimum grading rubric was without any foundation in fact. Applying the newly revised standards to students such as petitioner was, to quote Pell, without sound basis in reason and taken without regard to any fact. Changing the standards for maintaining academic standing may be arguably arbitrary but applying those new standards to students already admitted and enrolled under previously-published and different academic standards is unquestionably arbitrary and capricious.

Furthermore, applying the Pell rationale of seeking to accomplish a sense of justice, dismissing a student for academic performance that would be acceptable under the prior rules under which she was admitted, but then unacceptable under revised rules after commencement of the program, is inherently unfair. It is the equivalent of moving the goalposts after the game has begun. Such actions are disproportionate, and{**87 Misc 3d at 272} when based upon arbitrary and capricious reasons, irrational and offensive.

Three New York cases are cited by counsel for the proposition that courts should not interfere with educational institutions' judgment of a student's academic performance (Matter of Susan M. v New York Law School, 76 NY2d 241 [1990]; Sarwar v New York Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 150 AD3d 913 [2d Dept 2017]; Matter of Zanelli v Rich, 127 AD3d 774 [2d Dept 2015]); however, those cases are completely distinguishable. In each of those cases students were contending that their dismissals for poor academic performance were arbitrary and capricious. Not so at bar. At bar, it was the Law School's application of a revised and changed policy to students who had matriculated under the former less stringent policy, [*5]without any rational justification, which was arbitrary and capricious.

Finally, there is a case which is stunningly similar to the matter at bar, but merely persuasive, as it comes from the Texas courts. In University of Tex. Health Science Ctr. at Hous. v Babb (646 SW2d 502 [Tex Ct App 1982]), a nursing student sued her university nursing school after the university changed the minimum academic standards after she had matriculated under the prior years' academic standards. There the court wrote:

"[Petitioner] never suggests that the standards of the University are unreasonable, or that the University cannot change the standards. Neither does she dispute that if a student fails to maintain the prescribed scholastic rating, the dismissal would be justified. [Petitioner] only questions her right to be judged under the scholastic rating prescribed in the [earlier student handbook in effect when she matriculated], rather than that contained in the [revised and updated handbook]" (id. at 506).

The court found in favor of the student. The matter at bar is virtually identical. Nobody is contesting the Law School's right to change the standards. But what the Law School did to petitioner and her entire class is subject them to newly revised standards without any rationale or justification. Had the Law School instead merely applied the revised standards to the new class beginning at the application process, they would have been setting new goalposts before the game was beginning, which would have been legally acceptable.{**87 Misc 3d at 273}

Turning to petitioner's due process claims, petitioner claims she was denied any due process first when she was expelled in June without any hearing after application of the revised August 2023 GARP to her 2023-2024 cumulative GPA, and second, when she was offered defective due process by virtue of the Vice Dean's suggestion that she petition a committee for reinstatement.

Two Fourth Department cases are instructive. In Matter of Sofair v State Univ. of N.Y. Upstate Med. Ctr. Coll. of Medicine (54 AD2d 287 [4th Dept 1976]), the Appellate Division afforded the student a series of fundamental rights. While the Court deemed a formal trial-type process to be excessive, it required "an 'informal give-and-take' between the student and the administrative body dismissing him—and foreclosing his opportunity to gain admission at all comparable institutions," holding that "would not unduly burden the educational process and would, at least, give the student the opportunity to characterize his conduct and put it in what he deems the proper context" (id. at 295 [internal quotation marks and citation omitted]). In Matter of Budd v State Univ. of N.Y. at Geneseo (133 AD3d 1341, 1342 [4th Dept 2015]), the Appellate Division held that "[a] public university such as respondent must 'provide its students with the full panoply of due process guarantees . . . [,] [which] requires that [students] be given the names of the witnesses against them, the opportunity to present a defense, and the results and finding of the hearing' " (citation omitted). In Matter of Pell (34 NY2d at 231), the Court of Appeals held that "[w]here . . . a hearing is held, the determination must be supported by substantial evidence" (CPLR 7803 [4]; see also Matter of Ryan v Hofstra Univ., 67 Misc 2d 651 [Sup Ct, Nassau County 1971]; accord Morales v New York Univ., 83 AD2d 811 [1st Dept 1981]).

Applying this law to the facts at bar, it is self-evident that the Law School afforded petitioner no due process rights whatsoever after applying the updated GARP and dismissing her from academic full-time status. There was no hearing; no right to contest the allegations; and no process whatsoever. Next, beginning in June, the petitioner entered a nightmare scenario. The Vice Dean appeared to be prosecutor, judge and jury, advising petitioner that she (the Vice Dean) had already reached out to petitioner's professors for feedback. The Vice Dean would provide evidence to the committee—whoever the members were—and petitioner could neither see nor [*6]rebut that {**87 Misc 3d at 274}evidence. Petitioner could not appear before the committee, let alone be afforded counsel. And the committee's decision could not be appealed. The scenario would be Kafkaesque, if it weren't more like a modern-day star chamber. However, the ultimate indignity suffered by petitioner was the Vice Dean's suggestion that petitioner could apply to another law school despite the fact that petitioner would not receive a letter of good standing under the newly-revised GARP—a meaningless and cynical offer since most all law schools in the country do not accept transfer students without such a letter of good standing. Under the Fourth Department's cases, Sofair and Budd, the Law School's actions constituted a fundamental deprivation of due process so egregiously unfair that it is astonishing if not unbelievable.

In conclusion, petitioner has demonstrated amply that respondents have acted arbitrarily and capriciously, and that respondents have violated petitioner's constitutional due process rights. Accordingly, the petition is granted, and the July 3, 2024 denial of reinstatement to the Law School is annulled. This court hereby orders the reinstatement of Madeline Rivera to active student status, commencing with the 2025-2026 academic year. While it is unknowable if Madeline Rivera will go on to achieve "A" grades and become a professor of law; "B" grades and become a judge; or "C" grades and make lots of money, those options are now available to her once again.

Petitioner's counsel is directed to submit a proposed order within seven days of filing of this decision, on notice to opposing counsel.