Due Process

N.Y. Appellate Court Upholds Semester Suspension for Attending Unmasked/Undistanced Off-Campus Parties During Epidemic

“While the penalty of suspension is very harsh, it is not shockingly disproportionate to the offense. It does not shock the conscience for a university, acting during a pandemic, to enforce rules designed to prevent the spread of the virus with the penalty of suspension.”

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From Matter of Storino v. NYU, decided last week by the N.Y. intermediate appellate court (Judges Gische, Moulton, González & Scarpulla):

For the reasons set forth below, we find that NYU's determination to suspend petitioners was not arbitrary and capricious and was made in the exercise of honest discretion. Petitioners had notice that the gatherings they attended in August 2020 could result in disciplinary action by NYU….

All students at NYU are subject and required to comply with NYU's Student Conduct Policy (Policy) as a condition of enrollment. The Policy generally provides, under Section I, that it serves as the basis for disciplinary action for misconduct, whether the misconduct occurs within or outside NYU's premises. Under Section III, the Policy prohibits specific types of non academic misconduct, and in particular prohibits conduct by students which poses a danger to the health and safety of the University's community. The relevant sections of the Policy in question are as follows:

"University Student Conduct Policy/B1: Engaging in or threatening to engage in behavior(s) that, by virtue of their intensity, repetitiveness, or otherwise, endanger or compromise the health, safety or well-being of oneself, another person, or the general University community."

"University Student Conduct Policy/E1: Disorderly, disruptive, or antagonizing behavior that interferes with the safety, security, health or welfare of the community, and/or the regular operation of the University."

Under Section IV, the Policy states that NYU reserves the right to "take student disciplinary action for conduct occurring outside the University context which substantially disrupts the regular operation of the University or threatens the health, safety, or security of the University community."

The petitioners in this case, Marc Santonocito, Ashley Storino, and Elnaz Pourasgari, were each found to have violated the above policies because of off-campus gatherings they attended during August 2020 in the weeks leading up to the start of the fall semester. The main issue on this appeal is whether petitioners had notice prior to their conduct that attending these gatherings could result in discipline.

On August 12 and 14, 2020, Santonocito attended two gatherings of between 10 to 13 people, held indoors in a private apartment and partly on the apartment's private rooftop. No one at either gathering masked or social distanced. On August 12, 2020, Storino attended a party with 12 or 13 people indoors at an off-campus apartment and on August 14, 2020, she hosted a party with 10 to 12 guests on the private roof of her apartment building. No one wore a mask or social distanced at either gathering.

On August 22, 2020, Pourasgari attended a gathering with up to 15 guests at a friend's off-campus apartment rooftop. No one at the gathering masked or social distanced. Each petitioner was captured in at least one photo on social media depicting them unmasked and in physical contact with other individuals who were also not wearing masks: Santonocito arm in arm with other unmasked individuals, Storino cheek to cheek with other unmasked individuals, and Pourasgari touching the face of another unmasked individual.

Petitioners were each notified via email that the Office of Student Conduct had received reports that they had attended parties during the month of August without the proper use of masks and social distancing. Petitioners attended virtual individual conduct conferences at which all three admitted to attending the gatherings in question and admitted to not wearing a mask or social distancing at the gatherings. The Office of Student Conduct determined that each petitioner had violated sections B1 and E1 of the Policy, and each was suspended for the fall 2020 semester, among other disciplinary sanctions. Petitioners individually appealed the decisions pursuant to the procedure set forth in the Policy, and the Dean of each petitioner's school denied the appeals and upheld the disciplinary sanctions. These article 78 proceedings followed.

The crux of petitioners' article 78 petitions was that neither the Policy nor any of the emails sent by NYU in the months of July and August provided them with pre-conduct notice that their off-campus behavior in the weeks leading up to the start of the semester could result in discipline. The article 78 court granted their petitions and found that when a sanction as pejorative as suspension is imposed, students must be provided with "clear, unambiguous and full pre-conduct notice" that the behavior in question could result in discipline. There is no authority, however, which requires a private university to meet such a heightened notice standard, and in light of the limited role courts play in reviewing the disciplinary determinations of private universities, we decline to require it now.

Courts retain a restricted role in reviewing the determinations of private universities (Matter of Powers v St. John's Univ. School of Law [N.Y. 2015]). A disciplinary determination will only be disturbed when the university acts arbitrarily and not in the exercise of its honest discretion, when it fails to abide by its own rules, or when the penalty is so excessive that one's sense of fairness is shocked. Students at private universities are not afforded a full panoply of due process rights unless a threshold showing of State involvement is made, a contention not argued by petitioners here. This restricted review applies no matter what stage of the disciplinary process is being challenged. We find that none of the Powers factors are present in this case.

Petitioners argue that they did not have any pre-conduct notice that their behavior was prohibited under the Policy. Petitioners note that during August 2020, New York had relaxed its COVID-19 safety regulations. Petitioners argue that because they were following all New York State and City regulations in effect at the time of the gatherings in question, including those regulations which allowed for gatherings of up to 50 people, they could not anticipate discipline for gatherings that otherwise complied with the relevant laws.

However, the Executive Order allowing gatherings of up to 50 people contains the important caveat: "provided further that social distancing, face covering, and cleaning and disinfecting protocols … are adhered to." Petitioners admit they did not follow these protocols. The text of the regulations petitioners put forth to justify their behavior demonstrates that petitioners should have been aware that they were required, by the very Executive Order they claim exculpates them, to mask and social distance at the gatherings they attended. Thus, given their violation of the Executive Order, petitioners could have reasonably anticipated discipline for their conduct which put the University's congregant student community at risk.

Petitioners' violation of the mask and social distancing requirements of the Executive Orders is further evidence that it was rational for NYU to interpret its own Policy to include prohibition of the conduct at issue. NYU's Policy, specifically sections B1 and E1, made clear that conduct, even off-campus conduct, which could endanger the health or safety of the University community, could result in discipline. By themselves, these broad policies can rationally be interpreted to allow for discipline of students who threaten the health and safety of the University's community by attending unmasked and non socially distanced gatherings in the weeks leading up to the start of the semester. Although the Policy is written broadly, it is unrealistic to require a university to enumerate every example of unsafe conduct which falls under a written policy in order to enforce the policy.

In Powers, the Court of Appeals held that enforcing an unwritten policy concerning admissions was neither arbitrary nor capricious. In so holding, the Court said, "it is not necessary that the policy be in writing for the school to apply the policy. It would be untenable for courts to require that every factor that is taken into consideration … be reduced to writing." Similarly, NYU was not required to have detailed written policies regarding COVID-19 as it grappled with keeping its educational community safe.

Given the highly transmissible nature of COVID-19, the widely known health risks of maskless gatherings, the highly publicized shut down of colleges and universities in New York and around the country in August 2020 due to COVID-19 outbreaks, and New York City's own history of the virus running rampant, petitioners could have reasonably expected discipline for the conduct at issue here. We find that the Policy and the attendant widely known contemporaneous societal circumstances provided sufficient pre-conduct notice that such behavior might result in disciplinary action.

Petitioners argument that they did not have pre-conduct notice is further contradicted by communications they received from NYU. [Details omitted.-EV] …

While the penalty of suspension is very harsh, it is not shockingly disproportionate to the offense. It does not shock the conscience for a university, acting during a pandemic, to enforce rules designed to prevent the spread of the virus with the penalty of suspension.

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  1. The Appellate Division continues to give the California Courts of Appeal strong competition in terribly-written opinions.

    1. Masks are quackery, and fraud. They reduce the infection rate by 2%. They do make people look like Dem douche bags 100% of the time.

      From the CDC:

      Mask mandates were associated with a 0.7 percentage point decrease (p = 0.03) in daily COVID-19 death growth rates 1–20 days after implementation and decreases of 1.0, 1.4, 1.6, and 1.9 percentage points 21–40, 41–60, 61–80, and 81–100 days, respectively, after implementation (p<0.01 for all). Daily case and death growth rates before implementation of mask mandates were not statistically different from the reference period.

      1. Forget about the masks, distancing is not quackery. It is the most effective means of reducing transmission.
        The offenders did violate a primary prophylactic measure.
        Yes, the penalty was harsh. But then NYU deans have been known to be assholes.

        1. NYU deans being assholes is what leads to populist (and politician) demands that NYU pay the same taxes that everyone else does.

          You kinda know that every one of these kids is going to be talking to his state rep — and that’s the sort of bad press that can really cost. Furthermore, doing this is going to be noticed by the parents of high school students.

          1. As they sow, so shall they reap.

        2. They are young. Most infected people their age will have no symptoms. A ton of non-suspended, asymptomatic students likely had COVID and infected others. Say one moonlighted providing care in a NY nursing, that guy probably killed dozens of moribund old people.

          Testing and isolating positive testers for 2 weeks, even if asymptomatic is quarantine pra ctice from the 14th Century. It is the only prevention measure that is not quackery. The village of Vo Euganeo in the epicenter of the Italian epidemic did that. It ended its epidemic in 2 weeks in Feb. 2020. The rest is Dem tactic to get rid of Trump, to destroy his achievements in the economy and in the stock market, to impose Chinese Commie style tyranny, and to maintain a lockdown to greatly enrich tech billionaire. This lockdown is the most lucrative fraud heist in history. Wealth of our billionaires went up $1.7 trillion. The wealth of the Chinese billionaire went up $2.2 trillion.

          The lawyer profession is doing nothing about the greatest fraud heist, the greatest mass murder (millions of poor people died from starvation from the $4 trillion drop in world GDP), the greatest election fraud in history. You suck, you stinking lawyers.

          1. “They are young. Most infected people their age will have no symptoms. ”
            Young and stupid is seldom an effective defense in court.

      2. “Masks are quackery, and fraud. They reduce the infection rate by 2%. ”

        Well done. Even for you, managing too espouse two opposing viewpoints in so few words is impressive.

        1. A 2% decrease is not clinically meaningful. The gut cannot feel an effect of less than 30%.

      3. Was that the pre-Biden CDC, with the politicized numbers, or the post-Biden CDC?

        Because Don Nico didn’t mention it again, in a previous thread he posted references (not links) to well-researched papers. One in particular, in a Nature subsidiary looked impressive and informative. Don Nico, if you could put that reference up again, it would undoubtedly help inform commentary on this thread.

        1. I’ll look for them. They are in my covid research file.

          In the meanwhile one might look at
          “Respiratory virus shedding in exhaled breath and
          efficacy of face masks” in Nature Medicine
          https://www.nature.com/articles/s41591-020-0843-2

          1. Folks can look at this overview from the Association of American physicians and surgeons:
            https://aapsonline.org/mask-facts/

            1. Where on earth is it possible to obtain a real N95 mask meeting OSHA criteria?

              If that N95 were the requirement, I might support it. The requirement is make everyone look like a Democrat douche bag, with ineffective face coverings.

              1. Your local building contractor knows how to get them for the workers. Why are you having such a hard time by now?

            2. from the study cited by D nico
              Conclusion: Wearing masks (other than N95) will not be effective at preventing SARS-CoV-2 transmission, whether worn as source control or as PPE.
              N95s protect health care workers, but are not recommended for source control transmission.

      4. Biden’s disaster with the border — 10% of the illegal aliens have COVID and we’ve already caught two known terrorists from Yemen.

        This is going to go bang — and soon — either from a massive outbreak of COVID or a terrorist attack. And I think that a lot of things like NYU’s policies will be then viewed in a very different light.

        Do not forget that _West VA v. Barnette_, decided when the war was nearly won, overruled _Minersville School District v. Gobitis_, decided when Hitler was on the march and the war looming.

  2. Any info on who contacted covid as result of attending the party?

    1. “who contacted covid as result of attending the party?”
      That is irrelevant.
      The students violated university policy stated as a condition for being back on campus.

  3. The decision seems right. I wonder if EV (or others with actual subject matter expertise) will opine re: Would this court have reached the same result if the university had been a public one? I, myself, can’t tell from the written opinion.

    1. If the state can deny a public benefit for conduct unrelated to the benefit (i.e. any off campus conduct) then why can’t it deny welfare benefits for the same thing?

      Think that would pass legal muster — your son gets arrested downtown and you get evicted from public housing?

      1. Off-point entirely, Ed

      2. Dr Ed,
        I think you meant to write, “*You* get arrested downtown and you get evicted from public housing.” Because it makes no sense to use your example, given the facts of this case. (If a student had been suspended because her/his *parent* had gone to an unmasked party; then your hypo does make sense.)

        1. No, I was thinking of existing HUD policy where the parent *is* (supposed to be) evicted for the child’s illegal drug use on the premises. This isn’t the actual reg, but clearer: https://www.hud.gov/sites/documents/FAQSREENTRYPOLICIES.PDF

          I was trying to show how patently unfair punishment for *off* premises conduct was, because the CFR really does say that you are supposed to evict the single mother for even her children’s *friends* dealing drugs on the premises. That’s one thing — but downtown?

          And as to attending a public university being a public benefit — the taxpayers are subsidizing it and hence it is no less of a public benefit than, say, a Section 8 voucher.

  4. People objecting to masks and so on need to accept that by the standards of the vast majority, mask rules don’t ‘shock the conscience’ during a pandemic even if based on misplaced zeal.

    (Can’t we just agree to wash our hands regularly and catch our coughs and sneezes _anyway_?)

  5. A school this strong could reasonably conclude that persons unable to foresee these consequences are not smart enough to be part of this particular academic community. Perhaps the school should refund one term’s tuition (unless they are on track scholarships) and wish them well as they expand their educational horizons.

    1. I don’t think that this matter is settled yet – that there will be suits over those tuition dollars, particularly if most of them were in the form of loans which are now due. And depending on how NYU worded the suspension, there may be an ED clawback of things like Pell Grants and the real question is who is liable for that money, the students or NYU…

      The colleges are also under the truly asinine presumption that these kids are going to want to come back after this. Northeastern has made the same presumption. And I’m not so sure they are right — *I* wouldn’t go back…

      These colleges are still stuck in a 1970s mindset when higher education was a seller’s market, with demand outpacing supply. Today the opposite is true, and that’s without the very clear demonstration that ZoomSkool is possible.

      1. Since the students here filed a lawsuit to compel the school to let them come back, I think it’s fair to infer that they want to do so.

        1. The facts aren’t set out in the opinion, but if they were suspended for one semester it would have been Fall-2020 and hence they would have already been let back in, it seems.

          What this looks like to me — and I’m coming from a higher ed admin viewpoint instead of a legal one — is that this seeks a retroactive reversal of their F-20 suspension, along with full credit for the semester and removal of all notation that they had ever been suspended. That’s what is standard in an appeal within a university and I’m presuming — presuming — that’s what they sought the court to order.

          Without going too far into the weeds on the Federal Financial Aid laws, *both* the students and NYU may not want to go with simply making the F-20 semester (now past) a wash. Two reasons.

          First, if they never attended a class, NYU is liable to the Federal Govt for all of their FinAid money and that becomes a very interesting mess. I believe (but do not know) that Northeastern got into that when they suspended students for a similar reason before NEU’s first day of classes had been held, and NEU wound up “graciously” refunding the money.

          Second, the government pays the interest on (most) student loans while one is still in school, but repayment starts when one isn’t. And it gets funky when one goes back to school after an absence, and then various state laws apply.

          Hence, a one semester suspension could, under some circumstances, make it financially impossible for a student to return, particularly if the student was declared in default. It was messy when kids got called up for Iraq and memory is that Congress actually had to set in and change a few things for the Vets.

          1. The facts aren’t set out in the opinion, but if they were suspended for one semester it would have been Fall-2020 and hence they would have already been let back in, it seems.

            The complaint was filed in September 2020, and it sought immediate reinstatement as well as relief from some of the other penalties imposed, which were set to last until August 2021.

            So in other words, you are (as usual) completely wrong.

            (The complaint is available here, if anyone is interested:

            https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=m0fb33haGxX8mmdi3kinTw==&system=prod)

            1. What, pray tell, would “vacate, void and annul Respondent New York University’s (“NYU” or “Respondent”) decision” — particularly *now* — actually mean if not to “vacate, void and annul” the suspension?

              That means retroactively reinstating them. Go talk to any college registrar and ask him/her/it what he/she/it would do to comply with that order, were it to have been granted.

              The other thing I didn’t mention is that every IHE I am aware of asks applicants if they have been kicked out of anywhere else, so NYU is preventing them from going elsewhere.

          2. Ed,
            when we grow up, learning that we might be responsible to suffer (or enjoy) the consequences of our actions is supposed to be one of the lessons.

            1. And when we actually learn business law, we might learn about something known as an “unconscionable contract.”

              1. This contract was not one of those.
                The students were acting in reckless disregard (unconscionable) of NYU’s published efforts to safeguard the health of its in-class students.

      2. “also under the truly asinine presumption”
        Ed, that is not so asinine. At many, if not most universities, most students want to be back on campus. That is certainly the case at my university.

        1. ” under the truly asinine presumption that these kids are going to want to come back after this”

          Did we miss those two words?

          1. Your two words mean nothing, as in your post “these kids we not the NYU three but a general group of students at the general US university.
            As I said when “these kids” grow up, they may learn that their actions have consequences. I thought that was a conservative principle.

      3. “that there will be suits over those tuition dollars, particularly if most of them were in the form of loans which are now due”
        Maybe, (and that is a big maybe) NYU will deciside that they are willing to settle out of court.
        But I would not take these students’ case on a contingency basis

        1. “But I would not take these students’ case on a contingency basis”

          And that is because of the merit of their claims?
          OR because there isn’t the potential of a jackpot jury award here?

          Why is it that I suspect the latter?

          No, suits against IHEs aren’t taken on a contingency fee basis because (for a variety of reasons) the IHE’s exposure to liability is limited in ways that McDonald’s isn’t, and hence there isn’t the possibility of the multi-million dollar jury verdict to encourage settlement. A lawyer taking such a case would actually have to work, and heaven forbid a lawyer need to do that.

          However, (and this is a big however), NYU may not have a choice here depending of if the students exercise a no-longer-so-obscure clause in the student loan agreement as they were expelled before the semester even started (i.e. first class). I would not be at all surprised, particularly with Betsy DeVos gone, to see ED recharge these loans to NYU. (Google Corinthian Colleges….)

          1. Actually the answer is the product of the the two. The probability of success is very low AND the probability of a large award is also low.
            The useful definition of risk, Ed, that is taught both in law and business school.

    2. As the opinion inexplicably waits until the antepenultimate paragraph to note, NYU “sent all students an email and accompanying video further updating and tightening its COVID-19 policies, to expressly disallow attendance at bars and parties.” So it doesn’t exactly take a Rhodes scholar to realize that you might get in trouble if you go to a bar or party after that.

      1. Can Ford repossess your car if you go to a party or bar?

        The real issue here is the university’s right to seize your property (your interest in your student status, including the $$$ paid) for engaging in conduct which is neither related to being a student nor on university property.

        1. Services are not goods.

          1. Sarcastr0, let me ask this. Does the punishment fit the crime?

            1. it was harsh as the court said, but not unacceptably so.

            2. It’s harsher than I think I’d do were I an administrator.

              But it is certainly not the court’s place to weigh in on that discretion.

              1. You and I agree; it was overly harsh.

        2. “your interest”
          is delimited by the enrollment contract. You’ll have to provide citations that is recognized s a property right

  6. So are BLM protestors going to be suspended?

      1. “are BLM protestors going to be suspended?”
        irrelevant to this matter.
        In this case, the students violated promulgated university rules

        1. So did the NYU students who participated in BLM activities…

          And it wouldn’t take much to make that into a case of racial discrimination, particularly when one realizes that the “B” in “BLM” stands for _____…

          1. Unless you look at who actually participates in BLM activities.

          2. Also, these are unmasked private gatherings after August 2020. So maybe look for your double standard elsewhere.

          3. Stretch, stretch, stretch.
            The BLM protest participants violated no published NYU rule.

    1. Keep whining, clingers.

      It make victory in the culture war a bit sweeter for your betters.

      1. Artie, didn’t you pass 1L? You know what that makes you, or perhaps you do not because of what you are.

  7. The question is why one would want to attend a place with such ridiculous policies. Life is short.

    1. Many reasons. My daughter received an excellent medical education at NYU.

      1. I’m so glad I went to a community college and a business school after that. They actually treat you as adults there.

      2. Which raises an issue that the court did not address here — NYU could not exist without both public funding and exemption from taxation on everything from its property to its endowment.

        At what point does it become a de-facto state actor and hence no longer “private”?

        1. Receiving government funds or tax exempt status is so different from being a state actor in any sense that I think your question is not asked in good faith.

  8. Once again the great majority of commenters on a nominally libertarian blog inexplicably think the government, acting through its courts, should hold unlawful the enforcement of the terms of a contract between a private university and students who voluntarily chose to purchase its services with fair notice of its contractual terms. Like Louis of Casablanca fame “I’m shocked, shocked, to find that instrumentalism is going on in here.”

    1. Ummm — this was a unilateral amendment to an existing contract. The students had already agreed to the purchase and then NYU turned around and changed the terms of the agreement it was holding them to.

      In the real world, that’s called “fraud.”

      And this is above and beyond the issue of the revisions being unconscionable. Could your contractor keep your money but refuse to install the contracted-for new roof because you were down in DC on January 6th?

      What if he sent you an email on January 5th telling you he would do so if you went? Remember this is an *existing* contract that you signed last spring…

      1. In the real world, that’s called “fraud.”

        Amazing. You do realize that’s not factually or legally how this works.

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