Friday, April 2, 2021

Discipline For School Social Distancing Violations Upheld

The New York Appellate Division for the First Judicial Department affirmed the imposition of disciplinary sanctions imposed by New York University for violation of social distancing policies

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 court found that proper notice had been provided and that the school had not acted in an arbitrary or capricious manner.

Petitioners argument that they did not have pre-conduct notice is further contradicted by communications they received from NYU. Prior to the gatherings in question, NYU had sent emails to its students regarding safety procedures related to COVID-19. These emails reflect NYU's concern over COVID-19 spreading through the congregant university community and convey the seriousness with which NYU was approaching the threat. NYU notified students via email on July 30, 2020 of certain requirements. While many of those requirements concerned out of state students, still others also applied to in-state students. Students were notified that anyone intending to access the NYU campus at the start of the semester would have to provide a negative COVID-19 test. The only students explicitly exempt from being tested were those who would live off-campus, attend class remotely, and, crucially, would not be interacting with members of NYU's community. By its own logic, the testing requirement implicates safe practices to avoid contracting the virus prior to the start of the semester. The July 30 email further stated that, to have a successful semester, all students must "strictly abide by the new COVID-19 health and safety protocols — wearing a mask, keeping social distance . . ." and warned students that they may face discipline, including interim suspension, for repeated or egregious behavior that threatened the health and safety of others. Given the substantial deference to be accorded to NYU's application of its policies, we find that the July 30 email can rationally be understood to immediately govern student conduct (see Powers, 25 NY3d at 216).

(Mike Frisch)

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