Title IX / College Discipline Practice - Warshaw Burstein LLP | <em >Rosenberg v. New York University,</em > No. 160326/2020 (NY Sup. Ct. Dec. 7, 2020)
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  • Rosenberg v. New York University, No. 160326/2020 (NY Sup. Ct. Dec. 7, 2020)
    Petitioner Nicole Rosenberg was suspended from NYU for the fall 2020 semester after violating NYU’s COVID-19 policy by attending a boat party on October 15. Rosenberg filed this Article 78 proceeding and moved for a temporary restraining order staying the suspension. Rosenberg argued that NYU’s disciplinary process lacked adequate notice, and her punishment was arbitrary and capricious. Rosenberg also argued that if she is not allowed to finish the remainder of the semester, she would suffer irreparable harm because she would lose credit for the work she had already done. The Court denied Rosenberg’s motion, questioning whether there was irreparable harm, and holding that Rosenberg failed to prove a likelihood of success on the merits.

    Rosenberg and her friends attended a boat party on the night of October 15. The party was advertised as going “10PM-LATE,” and promised music. The boat was departing from a “secret port,” and claimed the party would be operating under COVID guidelines. NYU did not find Rosenberg’s story credible. Rosenberg claimed she did not realize people on the boat would not be following COVID guidelines, but NYU said that it was not “plausible that [Rosenberg] would have been naïve to the type of [] event [she was] attending before stepping on to the boat.”

    Relying on the recent decision in Storino v New York University, No. 157947/2020, 2020 WL 6161626 (NY Sup. Ct. Oct. 21, 2020), the Court held that Rosenberg had pre-conduct notice that attending a gathering at an off-campus location without the proper use of masks and social distancing may result in suspension. This notice came in the form of a September 3 communication, which told students to avoid such gatherings. It also alerted students to the possibility they could be suspended for violating COVID-19 guidance.

    Next, the Court questioned whether Rosenberg’s inability to complete the fall 2020 semester constituted irreparable harm. While several Supreme Court cases have held that a one-semester suspension constituted irreparable harm, the Court here pointed out that Rosenberg only stood to lose, at most, six more days of class before the semester ends. While the ultimate sanction of suspension may be irreparable, the Court believed any interim harm is minimal. The Court went on to find that Rosenberg was unlikely to succeed on the merits of her case. While there were minor deviations from the Student Conduct Procedures, “perfect adherence to every procedural requirement is not necessary to demonstrate substantial compliance.” Considering Rosenberg admitted to the conduct with which she was charged, NYU’s failure to provide notice of the date and location of the incident upon which the charges against her were based was insufficient to show NYU did not substantially comply with its own policy. Additionally, NYU’s decision to consider hearsay evidence was not arbitrary, because NYU can consider hearsay evidence during an administrative proceeding. Furthermore, it is not the Court’s place to reweigh the evidence. Moreover, Rosenberg’s arguments that NYU’s policy did not provide a rational basis to discipline her failed because the Court cannot second guess the scope of policies that may properly fall within the purview of the educational institutions which issued and implements them.

    Finally, the Court held that the balance of hardships did not favor issuing an interim stay. The Court held that Rosenberg only stood to lose six more days of class time. Meanwhile, allowing Rosenberg to return to class, even remotely, would effectively prevent NYU from implementing the penalty of suspension as Rosenberg would have already completed her fall 2020 semester by the time the merits of the petition were decided. On its face, this argument seems flawed, because the Court is throwing out a semester of work that Rosenberg cannot get back, whereas NYU can implement the one-semester suspension in the spring. However, considering the Court has indicated Rosenberg is unlikely to succeed on the merits, the decision may benefit Rosenberg, as she will be allowed to return to class in January.
    CATEGORY: Civil Litigation