Sunday, December 12, 2010
Matter Flores v. NYU, ____A.D. 3d___(1st Dept. 2010), is an interesting case. A dental student was dismissed from dental school permanently for cheating. He brought an Article 78 proceeding against his school, NYU, challenging this. Surprise, surprise, he lost. Readers to this blog should be well aware of the deference given by courts to decisions by universities involving students. The court, however, did not cite to those standards. In affirming the dismissal of the petition, the court stated:
The documentary evidence submitted with the petition demonstrates that, contrary to petitioner's allegations, the finding that petitioner had cheated in violation of the college's ethics code was based not just on hearsay (but see Matter of Ebert v Yeshiva Univ., 28 AD3d 315, 316 ), but also on petitioner's admission that he glanced at another student's test paper. Petitioner's denial that he made such admission at any of the unrecorded interviews and hearings conducted pursuant to the college's disciplinary procedures raises an issue of credibility that is immaterial in an article 78 proceeding that, like this, does not involve a determination made as a result of a hearing mandated by law, and in any event is largely unreviewable (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 ). The penalty of expulsion without possibility of reinstatement does not shock our sense of fairness (see generally Matter of Pell v Board of Educ., 34 NY2d 222, 233 ; cf. Matter of Carr v St. John's Univ., 17 AD2d 632, 634 , affd 12 NY2d 802 ). We have considered petitioner's other arguments and find them unavailing.
Mitchell H. Rubinstein